[Title 26 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2006 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          26


          Part 1 (Sec. Sec.  1.1001 to 1.1400)

                         Revised as of April 1, 2006


          Internal Revenue
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2006
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 26:
          Chapter I--Internal Revenue Service, Department of 
          the Treasury (Continued)                                   3
  Finding Aids:
      Table of CFR Titles and Chapters........................     843
      Alphabetical List of Agencies Appearing in the CFR......     861
      Table of OMB Control Numbers............................     871
      List of CFR Sections Affected...........................     889

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 26 CFR 1.1001-1 
                       refers to title 26, part 
                       1, section 1001-1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its 
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
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Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
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January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
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CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
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the revision dates of the 50 CFR titles.

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[[Page vii]]

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2006.

[[Page ix]]



                               THIS TITLE

    Title 26--Internal Revenue is composed of twenty volumes. The 
contents of these volumes represent all current regulations issued by 
the Internal Revenue Service, Department of the Treasury, as of April 1, 
2006. The first thirteen volumes comprise part 1 (Subchapter A--Income 
Tax) and are arranged by sections as follows: Sec. Sec.  1.0-1.60; 
Sec. Sec.  1.61-1.169; Sec. Sec.  1.170-1.300; Sec. Sec.  1.301-1.400; 
Sec. Sec.  1.401-1.440; Sec. Sec.  1.441-1.500; Sec. Sec.  1.501-1.640; 
Sec. Sec.  1.641-1.850; Sec. Sec.  1.851-1.907; Sec. Sec.  1.908-1.1000; 
Sec. Sec.  1.1001-1.1400; Sec. Sec.  1.1401-1.1550; and Sec.  1.1551 to 
end. The fourteenth volume containing parts 2-29, includes the remainder 
of subchapter A and all of Subchapter B--Estate and Gift Taxes. The last 
six volumes contain parts 30-39 (Subchapter C--Employment Taxes and 
Collection of Income Tax at Source); parts 40-49; parts 50-299 
(Subchapter D--Miscellaneous Excise Taxes); parts 300-499 (Subchapter 
F--Procedure and Administration); parts 500-599 (Subchapter G--
Regulations under Tax Conventions); and part 600 to end (Subchapter H--
Internal Revenue Practice).

    The OMB control numbers for Title 26 appear in Sec.  602.101 of this 
chapter. For the convenience of the user, Sec.  602.101 appears in the 
Finding Aids section of the volumes containing parts 1 to 599.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

[[Page 1]]



                       TITLE 26--INTERNAL REVENUE




        (This book contains part 1, Sec. Sec. 1.1001 to 1.1400)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Internal Revenue Service, Department of the 
  Treasury (Continued)......................................           1

[[Page 3]]



    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)




  --------------------------------------------------------------------


  Editorial Note: IRS published a document at 45 FR 6088, Jan. 25, 1980, 
deleting statutory sections from their regulations. In Chapter I cross-
references to the deleted material have been changed to the 
corresponding sections of the IRS Code of 1954 or to the appropriate 
regulations sections. When either such change produced a redundancy, the 
cross-reference has been deleted. For further explanation, see 45 FR 
20795, March 31, 1980.

                  SUBCHAPTER A--INCOME TAX (CONTINUED)
Part                                                                Page
1               Income taxes................................           5

Supplementary Publications: Internal Revenue Service Looseleaf 
  Regulations System.

  Additional supplementary publications are issued covering Alcohol and 
Tobacco Tax Regulations, and Regulations Under Tax Conventions.

[[Page 5]]



                   SUBCHAPTER A_INCOME TAX (CONTINUED)





PART 1_INCOME TAXES--Table of Contents




                  Normal Taxes and Surtaxes (Continued)

                 Gain or Loss on Disposition of Property

       Determination of Amount of and Recognition of Gain or Loss

Sec.
1.1001-1 Computation of gain or loss.
1.1001-2 Discharge of liabilities.
1.1001-3 Modifications of debt instruments.
1.1001-4 Modifications of certain notional principal contracts.
1.1001-5 European Monetary Union (conversion to the euro).
1.1002-1 Sales or exchanges.

                   Basis Rules of General Application

1.1011-1 Adjusted basis.
1.1011-2 Bargain sale to a charitable organization.
1.1012-1 Basis of property.
1.1012-2 Transfers in part a sale and in part a gift.
1.1013-1 Property included in inventory.
1.1014-1 Basis of property acquired from a decedent.
1.1014-2 Property acquired from a decedent.
1.1014-3 Other basis rules.
1.1014-4 Uniformity of basis; adjustment to basis.
1.1014-5 Gain or loss.
1.1014-6 Special rule for adjustments to basis where property is 
          acquired from a decedent prior to his death.
1.1014-7 Example applying rules of Sec. Sec. 1.1014-4 through 1.1014-6 
          to case involving multiple interests.
1.1014-8 Bequest, devise, or inheritance of a remainder interest.
1.1014-9 Special rule with respect to DISC stock.
1.1015-1 Basis of property acquired by gift after December 31, 1920.
1.1015-2 Transfer of property in trust after December 31, 1920.
1.1015-3 Gift or transfer in trust before January 1, 1921.
1.1015-4 Transfers in part a gift and in part a sale.
1.1015-5 Increased basis for gift tax paid.
1.1016-1 Adjustments to basis; scope of section.
1.1016-2 Items properly chargeable to capital account.
1.1016-3 Exhaustion, wear and tear, obsolescence, amortization, and 
          depletion for periods since February 28, 1913.
1.1016-3T Exhaustion, wear and tear, obsolescence, amortization, and 
          depletion for periods since February 28, 1913 (temporary).
1.1016-4 Exhaustion, wear and tear, obsolescence, amortization, and 
          depletion; periods during which income was not subject to tax.
1.1016-5 Miscellaneous adjustments to basis.
1.1016-6 Other applicable rules.
1.1016-10 Substituted basis.
1.1017-1 Basis reductions following a discharge of indebtedness.
1.1017-1T Basis reductions following a discharge of indebtedness 
          (temporary).
1.1018-1 Adjusted basis; exception to section 270 of the Bankruptcy Act, 
          as amended.
1.1019-1 Property on which lessee has made improvements.
1.1020-1 Election as to amounts allowed in respect of depreciation, 
          etc., before 1952.
1.1021-1 Sale of annuities.

                       Common Nontaxable Exchanges

1.1031-0 Table of contents.
1.1031(a)-1 Property held for productive use in trade or business or for 
          investment.
1.1031(a)-2 Additional rules for exchanges of personal property.
1.1031(b)-1 Receipt of other property or money in tax-free exchange.
1.1031(b)-2 Safe harbor for qualified intermediaries.
1.1031(c)-1 Nonrecognition of loss.
1.1031(d)-1 Property acquired upon a tax-free exchange.
1.1031(d)-1T Coordination of section 1060 with section 1031 (temporary).
1.1031(d)-2 Treatment of assumption of liabilities.
1.1031(e)-1 Exchange of livestock of different sexes.
1.1031(j)-1 Exchanges of multiple properties.
1.1031(k)-1 Treatment of deferred exchanges.
1.1032-1 Disposition by a corporation of its own capital stock.
1.1032-2 Disposition by a corporation of stock of a controlling 
          corporation in certain triangular reorganizations.
1.1032-3 Disposition of stock or stock options in certain transactions 
          not qualifying under any other nonrecognition provision.
1.1033(a)-1 Involuntary conversions; nonrecognition of gain.
1.1033(a)-2 Involuntary conversion into similar property, into money or 
          into dissimilar property.
1.1033(a)-3 Involuntary conversion of principal residence.
1.1033(b)-1 Basis of property acquired as a result of an involuntary 
          conversion.

[[Page 6]]

1.1033(c)-1 Disposition of excess property within irrigation project 
          deemed to be involuntary conversion.
1.1033(d)-1 Destruction or disposition of livestock because of disease.
1.1033(e)-1 Sale or exchange of livestock solely on account of drought.
1.1033(g)-1 Condemnation of real property held for productive use in 
          trade or business or for investment.
1.1033(h)-1 Effective date.
1.1034-1 Sale or exchange of residence.
1.1035-1 Certain exchanges of insurance policies.
1.1036-1 Stock for stock of the same corporation.
1.1037-1 Certain exchanges of United States obligations.
1.1038-1 Reacquisitions of real property in satisfaction of 
          indebtedness.
1.1038-2 Reacquisition and resale of property used as a principal 
          residence.
1.1038-3 Election to have section 1038 apply for taxable years beginning 
          after December 31, 1957.
1.1039-1 Certain sales of low-income housing projects.
1.1041-1T Treatment of transfer of property between spouses or incident 
          to divorce (temporary).
1.1041-2 Redemptions of stock.
1.1042-1T Questions and answers relating to the sales of stock to 
          employee stock ownership plans or certain cooperatives 
          (temporary).
1.1044(a)-1 Time and manner for making election under the Omnibus Budget 
          Reconciliation Act of 1993.

                              Special Rules

1.1051-1 Basis of property acquired during affiliation.
1.1052-1 Basis of property established by Revenue Act of 1932.
1.1052-2 Basis of property established by Revenue Act of 1934.
1.1052-3 Basis of property established by the Internal Revenue Code of 
          1939.
1.1053-1 Property acquired before March 1, 1913.
1.1054-1 Certain stock of Federal National Mortgage Association.
1.1055-1 General rule with respect to redeemable ground rents.
1.1055-2 Determination of amount realized on the transfer of the right 
          to hold real property subject to liabilities under a 
          redeemable ground rent.
1.1055-3 Basis of real property held subject to liabilities under a 
          redeemable ground rent.
1.1055-4 Basis of redeemable ground rent reserved or created in 
          connection with transfers of real property before April 11, 
          1963.
1.1059(e)-1 Non-pro rata redemptions.
1.1059A-1 Limitation on taxpayer's basis or inventory cost in property 
          imported from related persons.
1.1060-1 Special allocation rules for certain asset acquisitions.
1.1060-1T Special allocation rules for certain asset acquisitions 
          (temporary).

                   Changes To Effectuate F.C.C. Policy

1.1071-1 Gain from sale or exchange to effectuate policies of Federal 
          Communications Commission.
1.1071-2 Nature and effect of election.
1.1071-3 Reduction of basis of property pursuant to election under 
          section 1071.
1.1071-4 Manner of election.

                 Exchanges in Obedience to S.E.C. Orders

1.1081-1 Terms used.
1.1081-2 Purpose and scope of exception.
1.1081-3 Exchanges of stock or securities solely for stock or 
          securities.
1.1081-4 Exchanges of property for property by corporations.
1.1081-5 Distribution solely of stock or securities.
1.1081-6 Transfers within system group.
1.1081-7 Sale of stock or securities received upon exchange by members 
          of system group.
1.1081-8 Exchanges in which money or other nonexempt property is 
          received.
1.1081-9 Requirements with respect to order of Securities and Exchange 
          Commission.
1.1081-10 Nonapplication of other provisions of the Internal Revenue 
          Code of 1954.
1.1081-11 Records to be kept and information to be filed with returns.
1.1082-1 Basis for determining gain or loss.
1.1082-2 Basis of property acquired upon exchanges under section 1081 
          (a) or (e).
1.1082-3 Reduction of basis of property by reason of gain not recognized 
          under section 1081(b).
1.1082-4 Basis of property acquired by corporation under section 
          1081(a), 1081(b), or 1081(e) as contribution of capital or 
          surplus, or in consideration for its own stock or securities.
1.1082-5 Basis of property acquired by shareholder upon tax-free 
          distribution under section 1081(c) (1) or (2).
1.1082-6 Basis of property acquired under section 1081(d) in 
          transactions between corporations of the same system group.
1.1083-1 Definitions.

                    Wash Sales of Stock or Securities

1.1091-1 Losses from wash sales of stock or securities.
1.1091-2 Basis of stock or securities acquired in ``wash sales''.
1.1092(b)-1T Coordination of loss deferral rules and wash sale rules 
          (temporary).

[[Page 7]]

1.1092(b)-2T Treatment of holding periods and losses with respect to 
          straddle positions (temporary).
1.1092(b)-3T Mixed straddles; straddle-by-straddle identification under 
          section 1092(b)(2)(A)(i)(I) (temporary).
1.1092(b)-4T Mixed straddles; mixed straddle account (temporary).
1.1092(b)-5T Definitions (temporary).
1.1092(c)-1 Qualified covered calls.
1.1092(c)-2 Equity options with flexible terms.
1.1092(c)-3 Qualifying over-the-counter options.
1.1092(c)-4 Definitions.
1.1092(d)-1 Definitions and special rules.
1.1092(d)-2 Personal property.

                        CAPITAL GAINS AND LOSSES

                       Treatment of Capital Gains

1.1201-1 Alternative tax.
1.1202-0 Table of contents.
1.1202-1 Deduction for capital gains.
1.1202-2 Qualified small business stock; effect of redemptions.

                       Treatment of Capital Losses

1.1211-1 Limitation on capital losses.
1.1212-1 Capital loss carryovers and carrybacks.

         General Rules for Determining Capital Gains and Losses

1.1221-1 Meaning of terms.
1.1221-2 Hedging transactions.
1.1222-1 Other terms relating to capital gains and losses.
1.1223-1 Determination of period for which capital assets are held.
1.1223-3 Rules relating to the holding periods of partnership interests.

         Special Rules for Determining Capital Gains and Losses

1.1231-1 Gains and losses from the sale or exchange of certain property 
          used in the trade or business.
1.1231-2 Livestock held for draft, breeding, dairy, or sporting 
          purposes.
1.1232-1 Bonds and other evidences of indebtedness; scope of section.
1.1232-2 Retirement.
1.1232-3 Gain upon sale or exchange of obligations issued at a discount 
          after December 31, 1954.
1.1232-3A Inclusion as interest of original issue discount on certain 
          obligations issued after May 27, 1969.
1.1232-4 Obligations with excess coupons detached.
1.1233-1 Gains and losses from short sales.
1.1233-2 Hedging transactions.
1.1234-1 Options to buy or sell.
1.1234-2 Special rule for grantors of straddles applicable to certain 
          options granted on or before September 1, 1976.
1.1234-3 Special rules for the treatment of grantors of certain options 
          granted after September 1, 1976.
1.1234-4 Hedging transactions.
1.1235-1 Sale or exchange of patents.
1.1235-2 Definition of terms.
1.1236-1 Dealers in securities.
1.1237-1 Real property subdivided for sale.
1.1238-1 Amortization in excess of depreciation.
1.1239-1 Gain from sale or exchange of depreciable property between 
          certain related taxpayers after October 4, 1976.
1.1239-2 Gain from sale or exchange of depreciable property between 
          certain related taxpayers on or before October 4, 1976.
1.1240-1 Capital gains treatment of certain termination payments.
1.1241-1 Cancellation of lease or distributor's agreement.
1.1242-1 Losses on small business investment company stock.
1.1243-1 Loss of small business investment company.
1.1244(a)-1 Loss on small business stock treated as ordinary loss.
1.1244(b)-1 Annual limitation.
1.1244(c)-1 Section 1244 stock defined.
1.1244(c)-2 Small business corporation defined.
1.1244(d)-1 Contributions of property having basis in excess of value.
1.1244(d)-2 Increases in basis of section 1244 stock.
1.1244(d)-3 Stock dividend, recapitalizations, changes in name, etc.
1.1244(d)-4 Net operating loss deduction.
1.1244(e)-1 Records to be kept.
1.1245-1 General rule for treatment of gain from dispositions of certain 
          depreciable property.
1.1245-2 Definition of recomputed basis.
1.1245-3 Definition of section 1245 property.
1.1245-4 Exceptions and limitations.
1.1245-5 Adjustments to basis.
1.1245-6 Relation of section 1245 to other sections.
1.1247-1 Election by foreign investment companies to distribute income 
          currently.
1.1247-2 Computation and distribution of taxable income.
1.1247-3 Treatment of capital gains.
1.1247-4 Election by foreign investment company with respect to foreign 
          tax credit.
1.1247-5 Information and recordkeeping requirements.
1.1248-1 Treatment of gain from certain sales or exchanges of stock in 
          certain foreign corporations.
1.1248-2 Earnings and profits attributable to a block of stock in simple 
          cases.

[[Page 8]]

1.1248-3 Earnings and profits attributable to stock in complex cases.
1.1248-4 Limitation on tax applicable to individuals.
1.1248-5 Stock ownership requirements for less developed country 
          corporations.
1.1248-6 Sale or exchange of stock in certain domestic corporations.
1.1248-7 Taxpayer to establish earnings and profits and foreign taxes.
1.1249-1 Gain from certain sales or exchanges of patents, etc., to 
          foreign corporations.
1.1250-1 Gain from dispositions of certain depreciable realty.
1.1250-2 Additional depreciation defined.
1.1250-3 Exceptions and limitations.
1.1250-4 Holding period.
1.1250-5 Property with two or more elements.
1.1251-1 General rule for treatment of gain from disposition of property 
          used in farming where farm losses offset nonfarm income.
1.1251-2 Excess deductions account.
1.1251-3 Definitions relating to section 1251.
1.1251-4 Exceptions and limitations.
1.1252-1 General rule for treatment of gain from disposition of farm 
          land.
1.1252-2 Special rules.
1.1254-0 Table of contents for section 1254 recapture rules.
1.1254-1 Treatment of gain from disposition of natural resource 
          recapture property.
1.1254-2 Exceptions and limitations.
1.1254-3 Section 1254 costs immediately after certain acquisitions.
1.1254-4 Special rules for S corporations and their shareholders.
1.1254-5 Special rules for partnerships and their partners.
1.1254-6 Effective date of regulations.
1.1256(e)-1 Identification of hedging transactions.
1.1258-1 Netting rule for certain conversion transactions.
1.1271-0 Original issue discount; effective date; table of contents.
1.1271-1 Special rules appplicable to amounts received on retirement, 
          sale, or exchange of debt instruments.
1.1272-1 Current inclusion of OID in income.
1.1272-2 Treatment of debt instruments purchased at a premium.
1.1272-3 Election by a holder to treat all interest on a debt instrument 
          as OID.
1.1273-1 Definition of OID.
1.1273-2 Determination of issue price and issue date.
1.1274-1 Debt instruments to which section 1274 applies.
1.1274-2 Issue price of debt instruments to which section 1274 applies.
1.1274-3 Potentially abusive situations defined.
1.1274-4 Test rate.
1.1274-5 Assumptions.
1.1274A-1 Special rules for certain transactions where stated principal 
          amount does not exceed $2,800,000.
1.1275-1 Definitions.
1.1275-2 Special rules relating to debt instruments.
1.1275-3 OID information reporting requirements.
1.1275-4 Contingent payment debt instruments.
1.1275-5 Variable rate debt instruments.
1.1275-6 Integration of qualifying debt instruments.
1.1275-7 Inflation-indexed debt instruments.
1.1286-1 Tax treatment of certain stripped bonds and stripped coupons.
1.1286-2 Stripped inflation-indexed debt instruments.
1.1287-1 Denial of capital gains treatment for gains on registration-
          required obligations not in registered form.
1.1291-0 Treatment of shareholders of certain passive foreign investment 
          companies; table of contents.
1.1291-1 Taxation of U.S. persons that are shareholders of PFICs that 
          are not pedigreed QEFs.
1.1291-9 Deemed dividend election.
1.1291-9T Deemed dividend election (temporary).
1.1291-10 Deemed sale election.
1.1293-0 Table of contents.
1.1293-1 Current taxation of income from qualified electing funds.
1.1294-0 Table of contents.
1.1294-1T Election to extend the time for payment of tax on 
          undistributed earnings of a qualified electing fund 
          (temporary).
1.1295-0 Table of contents.
1.1295-1 Qualified electing funds.
1.1295-3 Retroactive elections.
1.1296-1 Mark to market election for marketable stock.
1.1296-2 Definition of marketable stock.
1.1297-0 Table of contents.
1.1297-0T Table of contents (temporary).
1.1297-3 Deemed sale or deemed dividend election by a U.S. person that 
          is a shareholder of a section 1297(e) PFIC.
1.1297-3T Deemed sale or deemed dividend election by a U.S. person that 
          is a shareholder of a section 1297(e) PFIC (temporary).
1.1298-0 Table of contents.
1.1298-0T Table of contents (temporary).
1.1298-3 Deemed sale or deemed dividend election by a U.S. person that 
          is a shareholder of a former PFIC.
1.1298-3T Deemed sale or deemed dividend election by a U.S. person that 
          is a shareholder of a former PFIC (temporary).

                            Income Averaging

1.1301-1 Averaging of farm income.

[[Page 9]]

        READJUSTMENT OF TAX BETWEEN YEARS AND SPECIAL LIMITATIONS

        Mitigation of Effect of Limitations and Other Provisions

1.1311(a)-1 Introduction.
1.1311(a)-2 Purpose and scope of section 1311.
1.1311(b)-1 Maintenance of an inconsistent position.
1.1311(b)-2 Correction not barred at time of erroneous action.
1.1311(b)-3 Existence of relationship in case of adjustment by way of 
          deficiency assessment.
1.1312-1 Double inclusion of an item of gross income.
1.1312-2 Double allowance of a deduction or credit.
1.1312-3 Double exclusion of an item of gross income.
1.1312-4 Double disallowance of a deduction or credit.
1.1312-5 Correlative deductions and inclusions for trusts or estates and 
          legatees, beneficiaries, or heirs.
1.1312-6 Correlative deductions and credits for certain related 
          corporations.
1.1312-7 Basis of property after erroneous treatment of a prior 
          transaction.
1.1312-8 Law applicable in determination of error.
1.1313(a)-1 Decision by Tax Court or other court as a determination.
1.1313(a)-2 Closing agreement as a determination.
1.1313(a)-3 Final disposition of claim for refund as a determination.
1.1313(a)-4 Agreement pursuant to section 1313(a)(4) as a determination.
1.1313(c)-1 Related taxpayer.
1.1314(a)-1 Ascertainment of amount of adjustment in year of error.
1.1314(a)-2 Adjustment to other barred taxable years.
1.1314(b)-1 Method of adjustment.
1.1314(c)-1 Adjustment unaffected by other items.

       Involuntary Liquidation and Replacement of Lifo Inventories

1.1321-1 Involuntary liquidation of lifo inventories.
1.1321-2 Liquidation and replacement of lifo inventories by acquiring 
          corporations.

                           War Loss Recoveries

1.1331-1 Recoveries in respect of war losses.
1.1332-1 Inclusion in gross income of war loss recoveries.
1.1333-1 Tax adjustment measured by prior benefits.
1.1334-1 Restoration of value of investments.
1.1335-1 Elective method; time and manner of making election and effect 
          thereof.
1.1336-1 Basis of recovered property.
1.1337-1 Determination of tax benefits from allowable deductions.

                             Claim of Right

1.1341-1 Restoration of amounts received or accrued under claim of 
          right.
1.1342-1 Computation of tax where taxpayer recovers substantial amount 
          held by another under claim of right; effective date.

                            Other Limitations

1.1346-1 Recovery of unconstitutional taxes.
1.1347-1 Tax on certain amounts received from the United States.
1.1348-1 Fifty-percent maximum tax on earned income.
1.1348-2 Computation of the fifty-percent maximum tax on earned income.
1.1348-3 Definitions.

           Small Business Corporations and Their Shareholders

1.1361-0 Table of contents.
1.1361-1 S corporation defined.
1.1361-2 Definitions relating to S corporation subsidiaries.
1.1361-3 QSub election.
1.1361-4 Effect of QSub election.
1.1361-5 Termination of QSub election.
1.1361-6 Effective date.
1.1362-0 Table of contents.
1.1362-1 Election to be an S corporation.
1.1362-2 Termination of election.
1.1362-3 Treatment of S termination year.
1.1362-4 Inadvertent terminations.
1.1362-5 Election after termination.
1.1362-6 Elections and consents.
1.1362-7 Effective dates.
1.1362-8 Dividends received from affiliated subsidiaries.
1.1363-1 Effect of election on corporation.
1.1363-2 Recapture of LIFO benefits.
1.1366-0 Table of contents.
1.1366-1 Shareholder's share of items of an S corporation.
1.1366-2 Limitations on deduction of passthrough items of an S 
          corporation to its shareholders.
1.1366-3 Treatment of family groups.
1.1366-4 Special rules limiting the passthrough of certain items of an S 
          corporation to its shareholders.
1.1366-5 Effective date.
1.1367-0 Table of contents.
1.1367-1 Adjustments to basis of shareholder's stock in an S 
          corporation.
1.1367-2 Adjustments to basis of indebtedness to shareholder.
1.1367-3 Effective date and transition rule.
1.1368-0 Table of contents.
1.1368-1 Distributions by S corporations.
1.1368-1T Distributions by S corporations (temporary).

[[Page 10]]

1.1368-2 Accumulated adjustments account (AAA).
1.1368-3 Examples.
1.1368-4 Effective date and transition rule.
1.1374-0 Table of contents.
1.1374-1 General rules and definitions.
1.1374-2 Net recognized built-in gain.
1.1374-3 Net unrealized built-in gain.
1.1374-4 Recognized built-in gain or loss.
1.1374-5 Loss carryforwards.
1.1374-6 Credits and credit carryforwards.
1.1374-7 Inventory.
1.1374-8 Section 1374(d)(8) transactions.
1.1374-9 Anti-stuffing rule.
1.1374-10 Effective date and additional rules.
1.1375-1 Tax imposed when passive investment income of corporation 
          having subchapter C earnings and profits exceed 25 percent of 
          gross receipts.
1.1377-0 Table of contents.
1.1377-1 Pro rata share.
1.1377-1T Pro rata share (temporary).
1.1377-2 Post-termination transition period.
1.1377-3 Effective dates.
1.1378-1 Taxable year of S corporation.

             Section 1374 Before the Tax Reform Act of 1986

1.1374-1A Tax imposed on certain capital gains.

                     COOPERATIVES AND THEIR PATRONS

                      Tax Treatment of Cooperatives

1.1381-1 Organizations to which part applies.
1.1381-2 Tax on certain farmers' cooperatives.
1.1382-1 Taxable income of cooperatives; gross income.
1.1382-2 Taxable income of cooperatives; treatment of patronage 
          dividends.
1.1382-3 Taxable income of cooperatives; special deductions for exempt 
          farmers' cooperatives.
1.1382-4 Taxable income of cooperatives; payment period for each taxable 
          year.
1.1382-5 Taxable income of cooperatives; products marketed under pooling 
          arrangements.
1.1382-6 Taxable income of cooperatives; treatment of earnings received 
          after patronage occurred.
1.1382-7 Special rules applicable to cooperative associations exempt 
          from tax before January 1, 1952.
1.1383-1 Computation of tax where cooperative redeems nonqualified 
          written notices of allocation.

             Tax Treatment by Patrons of Patronage Dividends

1.1385-1 Amounts includible in patron's gross income.

                       Definitions; Special Rules

1.1388-1 Definitions and special rules.
1.1394-0 Table of contents.
1.1394-1 Enterprise zone facility bonds.

                   Empowerment Zone Employment Credit

1.1396-1 Qualified zone employees.
1.1397E-1 Qualified zone academy bonds.

              Rules Relating to Individuals' Title 11 Cases

1.1398-1 Treatment of passive activity losses and passive activity 
          credits in individuals' title 11 cases.
1.1398-2 Treatment of section 465 losses in individuals' title 11 cases.
1.1398-3 Treatment of section 121 exclusion in individuals' title 11 
          cases.
1.1400L(b)-1T Additional first year depreciation deduction for qualified 
          New York Liberty Zone property (temporary).

    Authority: 26 U.S.C. 7805, unless otherwise noted.
    Section 1.1036-1 also issued under 26 U.S.C. 351(g)(4).
    Section 1.1059(e)-1 also issued under 26 U.S.C. 1059 (e)(1) and 
(e)(2).
    Section 1.1060-1 also issued under 26 U.S.C. 1060.
    Sections 1.1092(b)-1T and 1.1092(b)-2T also issued under 26 U.S.C. 
1092 (b)(1).
    Section 1.1092(b)-4T also issued under 26 U.S.C. 1092(b)(2).
    Section 1.1092(c)-1 also issued under 26 U.S.C. 1092(c)(4)(H).
    Section 1.1092(c)-2 also issued under 26 U.S.C. 1092(c)(4)(H).
    Section 1.1092(c)-3 also issued under 26 U.S.C. 1092(c)(4)(H).
    Section 1.1092(c)-4 also issued under 26 U.S.C. 1092(c)(4)(H).
    Section 1.1092(d)-2 also issued under 26 U.S.C. 1092(d)(3)(B).
    Section 1.1202-2 is also issued under 26 U.S.C. 1202(k).
    Section 1.1221-2 also issued under 26 U.S.C. 1221(b)(2)(A)(iii), 
(b)(2)(B), and (b)(3); 1502 and 6001.
    Section 1.1244(e)-1 also issued under 26 U.S.C. 1244(e).
    Section 1.1254-1 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-2 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-3 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-4 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-5 also issued under 26 U.S.C. 1254(b).
    Section 1.1254-6 also issued under 26 U.S.C. 1254(b).
    Section 1.1271-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1272-1 also issued under 26 U.S.C. 1275(d).

[[Page 11]]

    Section 1.1272-2 also issued under 26 U.S.C. 1275(d).
    Section 1.1272-3 also issued under 26 U.S.C. 1275(d).
    Section 1.1273-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1273-2 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-2 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-3 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-4 also issued under 26 U.S.C. 1275(d).
    Section 1.1274-5 also issued under 26 U.S.C. 1275(d).
    Section 1.1274A-1 also issued under 26 U.S.C. 1274A(e) and 26 U.S.C. 
1275(d).
    Section 1.1275-1 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-2 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-3 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-4 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-5 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-6 also issued under 26 U.S.C. 1275(d).
    Section 1.1275-7 also issued under 26 U.S.C. 1275(d).
    Section 1.1286-1 also issued under 26 U.S.C. 1275(D) and 1286(f).
    Section 1.1286-2 also issued under 26 U.S.C. 1286(f).
    Section 1.1287-1 also issued under 26 U.S.C. 165 (j)(3).
    Section 1.1291-1 also issued under 26 U.S.C. 1291.
    Section 1.1291-9 also issued under 26 U.S.C. 1291(d)(2).
    Section 1.1291-10 also issued under 26 U.S.C. 1291(d)(2).
    Section 1.1293-1 also issued under 26 U.S.C. 1293.
    Section 1.1294-1T also issued under 26 U.S.C. 1294.
    Section 1.1295-1 also issued under 26 U.S.C. 1295.
    Section 1.1295-3 also issued under 26 U.S.C. 1295.
    Section 1.1296-1 also issued under 26 U.S.C. 1296(g) and 26 U.S.C. 
1298(f).
    Section 1.1296(e)-1 also issued under 26 U.S.C. 1296(e).
    Section 1.1297-3T also issued under 26 U.S.C. 1297(b)(1).
    Section 1.1301-1 also issued under 26 U.S.C. 1301(c).
    Section 1.1361-1(j) (6), (10) and (11) also issued under 26 U.S.C. 
1361(d)(2)(B)(iii).
    Section 1.1361-1(l) also issued under 26 U.S.C. 1361(c)(5)(C).
    Sections 1.1362-1, 1.1362-2, 1.1362-3, 1.1362-4, 1.1362-5, 1.1362-6, 
1.1362-7, and 1.1363-1 also issued under 26 U.S.C. 1377.
    Section 1.1363-2 also issued under 26 U.S.C. 337(d).
    Section 1.1368-1(f) and (g) also issued under 26 U.S.C. 1377(c).
    Section 1.1368-2(b) also issued under 26 U.S.C. 1368(c).
    Section 1.1374-1 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-2 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-3 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-4 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-5 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-6 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-7 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-8 also issued under 26 U.S.C. 337(d) and 1374(e).
    Section 1.1374-8 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-8T also issued under 26 U.S.C. 337(d) and 1374(e).
    Section 1.1374-9 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-10 also issued under 26 U.S.C. 337(d) and 1374(e).
    Section 1.1374-10 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-10T also issued under 26 U.S.C. 337(d) and 1374(e).
    Section 1.1377-1 also issued under 26 U.S.C. 1377(a)(2) and (c).
    Section 1.1394-1 also issued under 26 U.S.C. 1397D.
    Section 1.1396-1 also issued under 26 U.S.C. 1397D.
    Section 1.1397E-1 also issued under 26 U.S.C. 1397E(b) and (d).

    Source: T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 
1960, unless otherwise noted.

                 GAIN OR LOSS ON DISPOSITION OF PROPERTY

       Determination of Amount of and Recognition of Gain or Loss



Sec. 1.1001-1  Computation of gain or loss.

    (a) General rule. Except as otherwise provided in subtitle A of the 
Code, the gain or loss realized from the conversion of property into 
cash, or from the exchange of property for other property differing 
materially either in kind or in extent, is treated as income or as loss 
sustained. The amount realized from a sale or other disposition of

[[Page 12]]

property is the sum of any money received plus the fair market value of 
any property (other than money) received. The fair market value of 
property is a question of fact, but only in rare and extraordinary cases 
will property be considered to have no fair market value. The general 
method of computing such gain or loss is prescribed by section 1001 (a) 
through (d) which contemplates that from the amount realized upon the 
sale or exchange there shall be withdrawn a sum sufficient to restore 
the adjusted basis prescribed by section 1011 and the regulations 
thereunder (i.e., the cost or other basis adjusted for receipts, 
expenditures, losses, allowances, and other items chargeable against and 
applicable to such cost or other basis). The amount which remains after 
the adjusted basis has been restored to the taxpayer constitutes the 
realized gain. If the amount realized upon the sale or exchange is 
insufficient to restore to the taxpayer the adjusted basis of the 
property, a loss is sustained to the extent of the difference between 
such adjusted basis and the amount realized. The basis may be different 
depending upon whether gain or loss is being computed. For example, see 
section 1015(a) and the regulations thereunder. Section 1001(e) and 
paragraph (f) of this section prescribe the method of computing gain or 
loss upon the sale or other disposition of a term interest in property 
the adjusted basis (or a portion) of which is determined pursuant, or by 
reference, to section 1014 (relating to the basis of property acquired 
from a decedent) or section 1015 (relating to the basis of property 
acquired by gift or by a transfer in trust).
    (b) Real estate taxes as amounts received. (1) Section 1001(b) and 
section 1012 state rules applicable in making an adjustment upon a sale 
of real property with respect to the real property taxes apportioned 
between seller and purchaser under section 164(d). Thus, if the seller 
pays (or agrees to pay) real property taxes attributable to the real 
property tax year in which the sale occurs, he shall not take into 
account, in determining the amount realized from the sale under section 
1001(b), any amount received as reimbursement for taxes which are 
treated under section 164(d) as imposed upon the purchaser. Similarly, 
in computing the cost of the property under section 1012, the purchaser 
shall not take into account any amount paid to the seller as 
reimbursement for real property taxes which are treated under section 
164(d) as imposed upon the purchaser. These rules apply whether or not 
the contract of sale calls for the purchaser to reimburse the seller for 
such real property taxes paid or to be paid by the seller.
    (2) On the other hand, if the purchaser pays (or is to pay) an 
amount representing real property taxes which are treated under section 
164(d) as imposed upon the seller, that amount shall be taken into 
account both in determining the amount realized from the sale under 
section 1001(b) and in computing the cost of the property under section 
1012. It is immaterial whether or not the contract of sale specifies 
that the sale price has been reduced by, or is in any way intended to 
reflect, the taxes allocable to the seller. See also paragraph (b) of 
Sec. 1.1012-1.
    (3) Subparagraph (1) of this paragraph shall not apply to a seller 
who, in a taxable year prior to the taxable year of sale, pays an amount 
representing real property taxes which are treated under section 164(d) 
as imposed on the purchaser, if such seller has elected to capitalize 
such amount in accordance with section 266 and the regulations 
thereunder (relating to election to capitalize certain carrying charges 
and taxes).
    (4) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. Assume that the contract price on the sale of a parcel of 
real estate is $50,000 and that real property taxes thereon in the 
amount of $1,000 for the real property tax year in which occurred the 
date of sale were previously paid by the seller. Assume further that 
$750 of the taxes are treated under section 164(d) as imposed upon the 
purchaser and that he reimburses the seller in that amount in addition 
to the contract price. The amount realized by the seller is $50,000. 
Similarly, $50,000 is the purchaser's cost. If, in this example, the 
purchaser made no payment other than the contract price of $50,000, the 
amount realized by the seller would be $49,250, since the sales price 
would be deemed to include $750 paid to the seller in reimbursement for 
real property taxes imposed

[[Page 13]]

upon the purchaser. Similarly, $49,250 would be the purchaser's cost.
    Example 2. Assume that the purchaser in example (1), above, paid all 
of the real property taxes. Assume further that $250 of the taxes are 
treated under section 164(d) as imposed upon the seller. The amount 
realized by the seller is $50,250. Similarly, $50,250 is the purchaser's 
cost, regardless of the taxable year in which the purchaser makes actual 
payment of the taxes.
    Example 3. Assume that the seller described in the first part of 
example (1), above, paid the real property taxes of $1,000 in the 
taxable year prior to the taxable year of sale and elected under section 
266 to capitalize the $1,000 of taxes. In such a case, the amount 
realized is $50,750. Moreover, regardless of whether the seller elected 
to capitalize the real property taxes, the purchaser in that case could 
elect under section 266 to capitalize the $750 of taxes treated under 
section 164(d) as imposed upon him, in which case his adjusted basis 
would be $50,750 (cost of $50,000 plus capitalized taxes of $570).

    (c) Other rules. (1) Even though property is not sold or otherwise 
disposed of, gain is realized if the sum of all the amounts received 
which are required by section 1016 and other applicable provisions of 
subtitle A of the Code to be applied against the basis of the property 
exceeds such basis. Except as otherwise provided in section 301(c)(3)(B) 
with respect to distributions out of increase in value of property 
accrued prior to March 1, 1913, such gain is includible in gross income 
under section 61 as ``income from whatever source derived''. On the 
other hand, a loss is not ordinarily sustained prior to the sale or 
other disposition of the property, for the reason that until such sale 
or other disposition occurs there remains the possibility that the 
taxpayer may recover or recoup the adjusted basis of the property. Until 
some identifiable event fixes the actual sustaining of a loss and the 
amount thereof, it is not taken into account.
    (2) The provisions of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example: A, an individual on a calendar year basis, purchased 
certain shares of stock subsequent to February 28, 1913, for $10,000. On 
January 1, 1954, A's adjusted basis for the stock had been reduced to 
$1,000 by reason of receipts and distributions described in sections 
1016(a)(1) and 1016(a)(4). He received in 1954 a further distribution of 
$5,000, being a distribution covered by section 1016(a)(4), other than a 
distribution out of increase of value of property accrued prior to March 
1, 1913. This distribution applied against the adjusted basis as 
required by section 1016(a)(4) exceeds that basis by $4,000. The $4,000 
excess is a gain realized by A in 1954 and is includible in gross income 
in his return for that calendar year. In computing gain from the stock, 
as in adjusting basis, no distinction is made between items of receipts 
or distributions described in section 1016. If A sells the stock in 1955 
for $5,000, he realizes in 1955 a gain of $5,000, since the adjusted 
basis of the stock for the purpose of computing gain or loss from the 
sale is zero.

    (d) Installment sales. In the case of property sold on the 
installment plan, special rules for the taxation of the gain are 
prescribed in section 453.
    (e) Transfers in part a sale and in part a gift. (1) Where a 
transfer of property is in part a sale and in part a gift, the 
transferor has a gain to the extent that the amount realized by him 
exceeds his adjusted basis in the property. However, no loss is 
sustained on such a transfer if the amount realized is less than the 
adjusted basis. For the determination of basis of property in the hands 
of the transferee, see Sec. 1.1015-4. For the allocation of the 
adjusted basis of property in the case of a bargain sale to a charitable 
organization, see Sec. 1.1011-2.
    (2) Examples. The provisions of subparagraph (1) may be illustrated 
by the following examples:

    Example 1. A transfers property to his son for $60,000. Such 
property in the hands of A has an adjusted basis of $30,000 (and a fair 
market value of $90,000). A's gain is $30,000, the excess of $60,000, 
the amount realized, over the adjusted basis, $30,000. He has made a 
gift of $30,000, the excess of $90,000, the fair market value, over the 
amount realized, $60,000.
    Example 2. A transfers property to his son for $30,000. Such 
property in the hands of A has an adjusted basis of $60,000 (and a fair 
market value of $90,000). A has no gain or loss, and has made a gift of 
$60,000, the excess of $90,000, the fair market value, over the amount 
realized, $30,000.
    Example 3. A transfers property to his son for $30,000. Such 
property in A's hands has an adjusted basis of $30,000 (and a fair 
market value of $60,000). A has no gain and has made a gift of $30,000, 
the excess of $60,000, the fair market value, over the amount realized, 
$30,000.
    Example 4. A transfers property to his son for $30,000. Such 
property in A's hands has an adjusted basis of $90,000 (and a fair 
market

[[Page 14]]

value of $60,000). A has sustained no loss, and has made a gift of 
$30,000, the excess of $60,000, the fair market value, over the amount 
realized, $30,000.

    (f) Sale or other disposition of a term interest in property--(1) 
General rule. Except as otherwise provided in subparagraph (3) of this 
paragraph, for purposes of determining gain or loss from the sale or 
other disposition after October 9, 1969, of a term interest in property 
(as defined in subparagraph (2) of this paragraph) a taxpayer shall not 
take into account that portion of the adjusted basis of such interest 
which is determined pursuant, or by reference, to section 1014 (relating 
to the basis of property acquired from a decedent) or section 1015 
(relating to the basis of property acquired by gift or by a transfer in 
trust) to the extent that such adjusted basis is a portion of the 
adjusted uniform basis of the entire property (as defined in Sec. 
1.1014-5). Where a term interest in property is transferred to a 
corporation in connection with a transaction to which section 351 
applies and the adjusted basis of the term interest (i) is determined 
pursuant to section 1014 or 1015 and (ii) is also a portion of the 
adjusted uniform basis of the entire property, a subsequent sale or 
other disposition of such term interest by the corporation will be 
subject to the provisions of section 1001(e) and this paragraph to the 
extent that the basis of the term interest so sold or otherwise disposed 
of is determined by reference to its basis in the hands of the 
transferor as provided by section 362(a). See subparagraph (2) of this 
paragraph for rules relating to the characterization of stock received 
by the transferor of a term interest in property in connection with a 
transaction to which section 351 applies. That portion of the adjusted 
uniform basis of the entire property which is assignable to such 
interest at the time of its sale or other disposition shall be 
determined under the rules provided in Sec. 1.1014-5. Thus, gain or 
loss realized from a sale or other disposition of a term interest in 
property shall be determined by comparing the amount of the proceeds of 
such sale with that part of the adjusted basis of such interest which is 
not a portion of the adjusted uniform basis of the entire property.
    (2) Term interest defined. For purposes of section 1001(e) and this 
paragraph, a term interest in property means--
    (i) A life interest in property,
    (ii) An interest in property for a term of years, or
    (iii) An income interest in a trust.

Generally, subdivisions (i), (ii), and (iii) refer to an interest, 
present or future, in the income from property or the right to use 
property which will terminate or fail on the lapse of time, on the 
occurrence of an event or contingency, or on the failure of an event or 
contingency to occur. Such divisions do not refer to remainder or 
reversionary interests in the property itself or other interests in the 
property which will ripen into ownership of the entire property upon 
termination or failure of a preceding term interest. A term interest in 
property also includes any property received upon a sale or other 
disposition of a life interest in property, an interest in property for 
a term of years, or an income interest in a trust by the original holder 
of such interest, but only to the extent that the adjusted basis of the 
property received is determined by reference to the adjusted basis of 
the term interest so transferred.
    (3) Exception. Paragraph (1) of section 1001(e) and subparagraph (1) 
of this paragraph shall not apply to a sale or other disposition of a 
term interest in property as a part of a single transaction in which the 
entire interest in the property is transferred to a third person or to 
two or more other persons, including persons who acquire such entire 
interest as joint tenants, tenants by the entirety, or tenants in 
common. See Sec. 1.1014-5 for computation of gain or loss upon such a 
sale or other disposition where the property has been acquired from a 
decedent or by gift or transfer in trust.
    (4) Illustrations. For examples illustrating the application of this 
paragraph, see paragraph (c) of Sec. 1.1014-5.
    (g) Debt instruments issued in exchange for property--(1) In 
general. If a debt instrument is issued in exchange for property, the 
amount realized attributable to the debt instrument is the issue price 
of the debt instrument as determined under Sec. 1.1273-2 or Sec. 
1.1274-2, whichever is applicable. If, however,

[[Page 15]]

the issue price of the debt instrument is determined under section 
1273(b)(4), the amount realized attributable to the debt instrument is 
its stated principal amount reduced by any unstated interest (as 
determined under section 483).
    (2) Certain debt instruments that provide for contingent payments--
(i) In general. Paragraph (g)(1) of this section does not apply to a 
debt instrument subject to either Sec. 1.483-4 or Sec. 1.1275-4(c) 
(certain contingent payment debt instruments issued for nonpublicly 
traded property).
    (ii) Special rule to determine amount realized. If a debt instrument 
subject to Sec. 1.1275-4(c) is issued in exchange for property, and the 
income from the exchange is not reported under the installment method of 
section 453, the amount realized attributable to the debt instrument is 
the issue price of the debt instrument as determined under Sec. 1.1274-
2(g), increased by the fair market value of the contingent payments 
payable on the debt instrument. If a debt instrument subject to Sec. 
1.483-4 is issued in exchange for property, and the income from the 
exchange is not reported under the installment method of section 453, 
the amount realized attributable to the debt instrument is its stated 
principal amount, reduced by any unstated interest (as determined under 
section 483), and increased by the fair market value of the contingent 
payments payable on the debt instrument. This paragraph (g)(2)(ii), 
however, does not apply to a debt instrument if the fair market value of 
the contingent payments is not reasonably ascertainable. Only in rare 
and extraordinary cases will the fair market value of the contingent 
payments be treated as not reasonably ascertainable.
    (3) Coordination with section 453. If a debt instrument is issued in 
exchange for property, and the income from the exchange is not reported 
under the installment method of section 453, this paragraph (g) applies 
rather than Sec. 15a.453-1(d)(2) to determine the taxpayer's amount 
realized attributable to the debt instrument.
    (4) Effective date. This paragraph (g) applies to sales or exchanges 
that occur on or after August 13, 1996.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 7142, 36 FR 
18950, Sept. 24, 1971; T.D. 7207, 37 FR 20797, Oct. 5, 1972; T.D. 7213, 
37 FR 21992, Oct. 18, 1972; T.D. 8517, 59 FR 4807, Feb. 2, 1994; T.D. 
8674, 61 FR 30139, June 14, 1996]



Sec. 1.1001-2  Discharge of liabilities.

    (a) Inclusion in amount realized--(1) In general. Except as provided 
in paragraph (a) (2) and (3) of this section, the amount realized from a 
sale or other disposition of property includes the amount of liabilities 
from which the transferor is discharged as a result of the sale or 
disposition.
    (2) Discharge of indebtedness. The amount realized on a sale or 
other disposition of property that secures a recourse liability does not 
include amounts that are (or would be if realized and recognized) income 
from the discharge of indebtedness under section 61(a)(12). For 
situations where amounts arising from the discharge of indebtedness are 
not realized and recognized, see section 108 and Sec. 1.61-12(b)(1).
    (3) Liability incurred on acquisition. In the case of a liability 
incurred by reason of the acquisition of the property, this section does 
not apply to the extent that such liability was not taken into account 
in determining the transferor's basis for such property.
    (4) Special rules. For purposes of this section--
    (i) The sale or other disposition of property that secures a 
nonrecourse liability discharges the transferor from the liability;
    (ii) The sale or other disposition of property that secures a 
recourse liability discharges the transferor from the liability if 
another person agrees to pay the liability (whether or not the 
transferor is in fact released from liability);
    (iii) A disposition of property includes a gift of the property or a 
transfer of the property in satisfaction of liabilities to which it is 
subject;
    (iv) Contributions and distributions of property between a partner 
and a partnership are not sales or other dispositions of property; and

[[Page 16]]

    (v) The liabilities from which a transferor is discharged as a 
result of the sale or disposition of a partnership interest include the 
transferor's share of the liabilities of the partnership.
    (b) Effect of fair market value of security. The fair market value 
of the security at the time of sale or disposition is not relevant for 
purposes of determining under paragraph (a) of this section the amount 
of liabilities from which the taxpayer is discharged or treated as 
discharged. Thus, the fact that the fair market value of the property is 
less than the amount of the liabilities it secures does not prevent the 
full amount of those liabilities from being treated as money received 
from the sale or other disposition of the property. However, see 
paragraph (a)(2) of this section for a rule relating to certain income 
from discharge of indebtedness.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples. In each example assume the taxpayer uses the 
cash receipts and disbursements method of accounting, makes a return on 
the basis of the calendar year, and sells or disposes of all property 
which is security for a given liability.

    Example 1. In 1976 A purchases an asset for $10,000. A pays the 
seller $1,000 in cash and signs a note payable to the seller for $9,000. 
A is personally liable for repayment with the seller having full 
recourse in the event of default. In addition, the asset which was 
purchased is pledged as security. During the years 1976 and 1977, A 
takes depreciation deductions on the asset in the amount of $3,100. 
During this same time period A reduces the outstanding principal on the 
note to $7,600. At the beginning of 1978 A sells the asset. The buyer 
pays A $1,600 in cash and assumes personal liability for the $7,600 
outstanding liability. A becomes secondarily liable for repayment of the 
liability. A's amount realized is $9,200 ($1,600 + $7,600). Since A's 
adjusted basis in the asset is $6,900 ($10,000 - $3,100) A realizes a 
gain of $2,300 ($9,200 - $6,900).
    Example 2. Assume the same facts as in example (1) except that A is 
not personally liable on the $9,000 note given to the seller and in the 
event of default the seller's only recourse is to the asset. In 
addition, on the sale of the asset by A, the purchaser takes the asset 
subject to the liability. Nevertheless, A's amount realized is $9,200 
and A's gain realized is $2,300 on the sale.
    Example 3. In 1975 L becomes a limited partner in partnership GL. L 
contributes $10,000 in cash to GL and L's distributive share of 
partnership income and loss is 10 percent. L is not entitled to receive 
any guaranteed payments. In 1978 M purchases L's entire interest in 
partnership GL. At the time of the sale L's adjusted basis in the 
partnership interest is $20,000. At that time L's proportionate share of 
liabilities, of which no partner has assumed personal liability, is 
$15,000. M pays $10,000 in cash for L's interest in the partnership. 
Under section 752(d) and this section, L's share of partnership 
liabilities, $15,000, is treated as money received. Accordingly, L's 
amount realized on the sale of the partnership interest is $25,000 
($10,000 + $15,000). L's gain realized on the sale is $5,000 ($25,000 - 
$20,000).
    Example 4. In 1976 B becomes a limited partner in partnership BG. In 
1978 B contributes B's entire interest in BG to a charitable 
organization described in section 170(c). At the time of the 
contribution all of the partnership liabilities are liabilities for 
which neither B nor G has assumed any personal liability and B's 
proportionate share of which is $9,000. The charitable organization does 
not pay any cash or other property to B, but takes the partnership 
interest subject to the $9,000 of liabilities. Assume that the 
contribution is treated as a bargain sale to a charitable organization 
and that under section 1011(b) $3,000 is determined to be the portion of 
B's basis in the partnership interest allocable to the sale. Under 
section 752(d) and this section, the $9,000 of liabilities is treated by 
B as money received, thereby making B's amount realized $9,000. B's gain 
realized is $6,000 ($9,000 - $3,000).
    Example 5. In 1975 C, an individual, creates T, an irrevocable 
trust. Due to certain powers expressly retained by C, T is a ``grantor 
trust'' for purposes of subpart E of part 1 of subchapter J of the code 
and therefore C is treated as the owner of the entire trust. T purchases 
an interest in P, a partnership. C, as owner of T, deducts the 
distributive share of partnership losses attributable to the partnership 
interest held by T. In 1978, when the adjusted basis of the partnership 
interest held by T is $1,200, C renounces the powers previously and 
expressly retained that initially resulted in T being classified as a 
grantor trust. Consequently, T ceases to be a grantor trust and C is no 
longer considered to be the owner of the trust. At the time of the 
renunciation all of P's liabilities are liabilities on which none of the 
partners have assumed any personal liability and the proportionate share 
of which of the interest held by T is $11,000. Since prior to the 
renunciation C was the owner of the entire trust, C was considered the 
owner of all the trust property for Federal income tax purposes, 
including the partnership interest. Since C was considered to be the 
owner of the partnership interest, C not T, was considered to be the 
partner in P during the time T was a

[[Page 17]]

``grantor trust''. However, at the time C renounced the powers that gave 
rise to T's classification as a grantor trust, T no longer qualified as 
a grantor trust with the result that C was no longer considered to be 
the owner of the trust and trust property for Federal income tax 
purposes. Consequently, at that time, C is considered to have 
transferred ownership of the interest in P to T, now a separate taxable 
entity, independent of its grantor C. On the transfer, C's share of 
partnership liabilities ($11,000) is treated as money received. 
Accordingly, C's amount realized is $11,000 and C's gain realized is 
$9,800 ($11,000 - $1,200).
    Example 6. In 1977 D purchases an asset for $7,500. D pays the 
seller $1,500 in cash and signs a note payable to the seller for $6,000. 
D is not personally liable for repayment but pledges as security the 
newly purchased asset. In the event of default, the seller's only 
recourse is to the asset. During the years 1977 and 1978 D takes 
depreciation deductions on the asset totaling $4,200 thereby reducing 
D's basis in the asset to $3,300 ($7,500 - $4,200). In 1979 D transfers 
the asset to a trust which is not a ``grantor trust'' for purposes of 
subpart E of part 1 of subchapter J of the Code. Therefore D is not 
treated as the owner of the trust. The trust takes the asset subject to 
the liability and in addition pays D $750 in cash. Prior to the transfer 
D had reduced the amount outstanding on the liability to $4,700. D's 
amount realized on the transfer is $5,450 ($4,700 + $750). Since D's 
adjusted basis is $3,300, D's gain realized is $2,150 ($5,450 - $3,300).
    Example 7. In 1974 E purchases a herd of cattle for breeding 
purposes. The purchase price is $20,000 consisting of $1,000 cash and a 
$19,000 note. E is not personally liable for repayment of the liability 
and the seller's only recourse in the event of default is to the herd of 
cattle. In 1977 E transfers the herd back to the original seller thereby 
satisfying the indebtedness pursuant to a provision in the original 
sales agreement. At the time of the transfer the fair market value of 
the herd is $15,000 and the remaining principal balance on the note is 
$19,000. At that time E's adjusted basis in the herd is $16,500 due to a 
deductible loss incurred when a portion of the herd died as a result of 
disease. As a result of the indebtedness being satisfied, E's amount 
realized is $19,000 notwithstanding the fact that the fair market value 
of the herd was less than $19,000. E's realized gain is $2,500 ($19,000 
- $16,500).
    Example 8. In 1980, F transfers to a creditor an asset with a fair 
market value of $6,000 and the creditor discharges $7,500 of 
indebtedness for which F is personally liable. The amount realized on 
the disposition of the asset is its fair market value ($6,000). In 
addition, F has income from the discharge of indebtedness of $1,500 
($7,500 - $6,000).

[T.D. 7741, 45 FR 81744, Dec. 12, 1980]



Sec. 1.1001-3  Modifications of debt instruments.

    (a) Scope--(1) In general. This section provides rules for 
determining whether a modification of the terms of a debt instrument 
results in an exchange for purposes of Sec. 1.1001-1(a). This section 
applies to any modification of a debt instrument, regardless of the form 
of the modification. For example, this section applies to an exchange of 
a new instrument for an existing debt instrument, or to an amendment of 
an existing debt instrument. This section also applies to a modification 
of a debt instrument that the issuer and holder accomplish indirectly 
through one or more transactions with third parties. This section, 
however, does not apply to exchanges of debt instruments between 
holders.
    (2) Qualified tender bonds. This section does not apply for purposes 
of determining whether tax-exempt bonds that are qualified tender bonds 
are reissued for purposes of sections 103 and 141 through 150.
    (b) General rule. For purposes of Sec. 1.1001-1(a), a significant 
modification of a debt instrument, within the meaning of this section, 
results in an exchange of the original debt instrument for a modified 
instrument that differs materially either in kind or in extent. A 
modification that is not a significant modification is not an exchange 
for purposes of Sec. 1.1001-1(a). Paragraphs (c) and (d) of this 
section define the term modification and contain examples illustrating 
the application of the rule. Paragraphs (e) and (f) of this section 
provide rules for determining when a modification is a significant 
modification. Paragraph (g) of this section contains examples 
illustrating the application of the rules in paragraphs (e) and (f) of 
this section.
    (c) Modification defined--(1) In general--(i) Alteration of terms. A 
modification means any alteration, including any deletion or addition, 
in whole or in part, of a legal right or obligation of the issuer or a 
holder of a debt instrument, whether the alteration is evidenced by an 
express agreement (oral

[[Page 18]]

or written), conduct of the parties, or otherwise.
    (ii) Alterations occurring by operation of the terms of a debt 
instrument. Except as provided in paragraph (c)(2) of this section, an 
alteration of a legal right or obligation that occurs by operation of 
the terms of a debt instrument is not a modification. An alteration that 
occurs by operation of the terms may occur automatically (for example, 
an annual resetting of the interest rate based on the value of an index 
or a specified increase in the interest rate if the value of the 
collateral declines from a specified level) or may occur as a result of 
the exercise of an option provided to an issuer or a holder to change a 
term of a debt instrument.
    (2) Exceptions. The alterations described in this paragraph (c)(2) 
are modifications, even if the alterations occur by operation of the 
terms of a debt instrument.
    (i) Change in obligor or nature of instrument. An alteration that 
results in the substitution of a new obligor, the addition or deletion 
of a co-obligor, or a change (in whole or in part) in the recourse 
nature of the instrument (from recourse to nonrecourse or from 
nonrecourse to recourse) is a modification.
    (ii) Property that is not debt. An alteration that results in an 
instrument or property right that is not debt for Federal income tax 
purposes is a modification unless the alteration occurs pursuant to a 
holder's option under the terms of the instrument to convert the 
instrument into equity of the issuer (notwithstanding paragraph 
(c)(2)(iii) of this section).
    (iii) Certain alterations resulting from the exercise of an option. 
An alteration that results from the exercise of an option provided to an 
issuer or a holder to change a term of a debt instrument is a 
modification unless--
    (A) The option is unilateral (as defined in paragraph (c)(3) of this 
section); and
    (B) In the case of an option exercisable by a holder, the exercise 
of the option does not result in (or, in the case of a variable or 
contingent payment, is not reasonably expected to result in) a deferral 
of, or a reduction in, any scheduled payment of interest or principal.
    (3) Unilateral option. For purposes of this section, an option is 
unilateral only if, under the terms of an instrument or under applicable 
law--
    (i) There does not exist at the time the option is exercised, or as 
a result of the exercise, a right of the other party to alter or 
terminate the instrument or put the instrument to a person who is 
related (within the meaning of section 267(b) or section 707(b)(1)) to 
the issuer;
    (ii) The exercise of the option does not require the consent or 
approval of--
    (A) The other party;
    (B) A person who is related to that party (within the meaning of 
section 267(b) or section 707(b)(1)), whether or not that person is a 
party to the instrument; or
    (C) A court or arbitrator; and
    (iii) The exercise of the option does not require consideration 
(other than incidental costs and expenses relating to the exercise of 
the option), unless, on the issue date of the instrument, the 
consideration is a de minimis amount, a specified amount, or an amount 
that is based on a formula that uses objective financial information (as 
defined in Sec. 1.446-3(c)(4)(ii)).
    (4) Failure to perform--(i) In general. The failure of an issuer to 
perform its obligations under a debt instrument is not itself an 
alteration of a legal right or obligation and is not a modification.
    (ii) Holder's temporary forbearance. Notwithstanding paragraph 
(c)(1) of this section, absent a written or oral agreement to alter 
other terms of the debt instrument, an agreement by the holder to stay 
collection or temporarily waive an acceleration clause or similar 
default right (including such a waiver following the exercise of a right 
to demand payment in full) is not a modification unless and until the 
forbearance remains in effect for a period that exceeds--
    (A) Two years following the issuer's initial failure to perform; and
    (B) Any additional period during which the parties conduct good 
faith negotiations or during which the issuer is in a title 11 or 
similar case (as defined in section 368(a)(3)(A)).

[[Page 19]]

    (5) Failure to exercise an option. If a party to a debt instrument 
has an option to change a term of an instrument, the failure of the 
party to exercise that option is not a modification.
    (6) Time of modification--(i) In general. Except as provided in this 
paragraph (c)(6), an agreement to change a term of a debt instrument is 
a modification at the time the issuer and holder enter into the 
agreement, even if the change in the term is not immediately effective.
    (ii) Closing conditions. If the parties condition a change in a term 
of a debt instrument on reasonable closing conditions (for example, 
shareholder, regulatory, or senior creditor approval, or additional 
financing), a modification occurs on the closing date of the agreement. 
Thus, if the reasonable closing conditions do not occur so that the 
change in the term does not become effective, a modification does not 
occur.
    (iii) Bankruptcy proceedings. If a change in a term of a debt 
instrument occurs pursuant to a plan of reorganization in a title 11 or 
similar case (within the meaning of section 368(a)(3)(A)), a 
modification occurs upon the effective date of the plan. Thus, unless 
the plan becomes effective, a modification does not occur.
    (d) Examples. The following examples illustrate the provisions of 
paragraph (c) of this section:

    Example 1. Reset bond. A bond provides for the interest rate to be 
reset every 49 days through an auction by a remarketing agent. The reset 
of the interest rate occurs by operation of the terms of the bond and is 
not an alteration described in paragraph (c)(2) of this section. Thus, 
the reset of the interest rate is not a modification.
    Example 2. Obligation to maintain collateral. The original terms of 
a bond provide that the bond must be secured by a certain type of 
collateral having a specified value. The terms also require the issuer 
to substitute collateral if the value of the original collateral 
decreases. Any substitution of collateral that is required to maintain 
the value of the collateral occurs by operation of the terms of the bond 
and is not an alteration described in paragraph (c)(2) of this section. 
Thus, such a substitution of collateral is not a modification.
    Example 3. Alteration contingent on an act of a party. The original 
terms of a bond provide that the interest rate is 9 percent. The terms 
also provide that, if the issuer files an effective registration 
statement covering the bonds with the Securities and Exchange 
Commission, the interest rate will decrease to 8 percent. If the issuer 
registers the bond, the resulting decrease in the interest rate occurs 
by operation of the terms of the bond and is not an alteration described 
in paragraph (c)(2) of this section. Thus, such a decrease in the 
interest rate is not a modification.
    Example 4. Substitution of a new obligor occurring by operation of 
the terms of the debt instrument. Under the original terms of a bond 
issued by a corporation, an acquirer of substantially all of the 
corporation's assets may assume the corporation's obligations under the 
bond. Substantially all of the corporation's assets are acquired by 
another corporation and the acquiring corporation becomes the new 
obligor on the bond. Under paragraph (c)(2)(i) of this section, the 
substitution of a new obligor, even though it occurs by operation of the 
terms of the bond, is a modification.
    Example 5. Defeasance with release of covenants. (i) A corporation 
issues a 30-year, recourse bond. Under the terms of the bond, the 
corporation may secure a release of the financial and restrictive 
covenants by placing in trust government securities as collateral that 
will provide interest and principal payments sufficient to satisfy all 
scheduled payments on the bond. The corporation remains obligated for 
all payments, including the contribution of additional securities to the 
trust if necessary to provide sufficient amounts to satisfy the payment 
obligations. Under paragraph (c)(3) of this section, the option to 
defease the bond is a unilateral option.
    (ii) The alterations occur by operation of the terms of the debt 
instrument and are not described in paragraph (c)(2) of this section. 
Thus, such a release of the covenants is not a modification.
    Example 6. Legal defeasance. Under the terms of a recourse bond, the 
issuer may secure a release of the financial and restrictive covenants 
by placing in trust government securities that will provide interest and 
principal payments sufficient to satisfy all scheduled payments on the 
bond. Upon the creation of the trust, the issuer is released from any 
recourse liability on the bond and has no obligation to contribute 
additional securities to the trust if the trust funds are not sufficient 
to satisfy the scheduled payments on the bond. The release of the issuer 
is an alteration described in paragraph (c)(2)(i) of this section, and 
thus is a modification.
    Example 7. Exercise of an option by a holder that reduces amounts 
payable. (i) A financial institution holds a residential mortgage. Under 
the original terms of the mortgage, the financial institution has an 
option to decrease the interest rate. The financial institution 
anticipates that, if market interest

[[Page 20]]

rates decline, it may exercise this option in lieu of the mortgagor 
refinancing with another lender.
    (ii) The financial institution exercises the option to reduce the 
interest rate. The exercise of the option results in a reduction in 
scheduled payments and is an alteration described in paragraph 
(c)(2)(iii) of this section. Thus, the change in interest rate is a 
modification.
    Example 8. Conversion of adjustable rate to fixed rate mortgage. (i) 
The original terms of a mortgage provide for a variable interest rate, 
reset annually based on the value of an objective index. Under the terms 
of the mortgage, the mortgagor may, upon the payment of a fee equal to a 
specified percentage of the outstanding principal amount of the 
mortgage, convert to a fixed rate of interest as determined based on the 
value of a second objective index. The exercise of the option does not 
require the consent or approval of any person or create a right of the 
holder to alter the terms of, or to put, the instrument.
    (ii) Because the required consideration to exercise the option is a 
specified amount fixed on the issue date, the exercise of the option is 
unilateral as defined in paragraph (c)(3) of this section. The 
conversion to a fixed rate of interest is not an alteration described in 
paragraph (c)(2) of this section. Thus, the change in the type of 
interest rate occurs by operation of the terms of the instrument and is 
not a modification.
    Example 9. Holder's option to increase interest rate. (i) A 
corporation issues an 8-year note to a bank in exchange for cash. Under 
the terms of the note, the bank has the option to increase the rate of 
interest by a specified amount upon a certain decline in the 
corporation's credit rating. The bank's right to increase the interest 
rate is a unilateral option as described in paragraph (c)(3) of this 
section.
    (ii) The credit rating of the corporation declines below the 
specified level. The bank exercises its option to increase the rate of 
interest. The increase in the rate of interest occurs by operation of 
the terms of the note and does not result in a deferral or a reduction 
in the scheduled payments or any other alteration described in paragraph 
(c)(2) of this section. Thus, the change in interest rate is not a 
modification.
    Example 10. Issuer's right to defer payment of interest. A 
corporation issues a 5-year note. Under the terms of the note, interest 
is payable annually at the rate of 10 percent. The corporation, however, 
has an option to defer any payment of interest until maturity. For any 
payments that are deferred, interest will compound at a rate of 12 
percent. The exercise of the option, which results in the deferral of 
payments, does not result from the exercise of an option by the holder. 
The exercise of the option occurs by operation of the terms of the debt 
instrument and is not a modification.
    Example 11. Holder's option to grant deferral of payment. (i) A 
corporation issues a 10-year note to a bank in exchange for cash. 
Interest on the note is payable semi-annually. Under the terms of the 
note, the bank may grant the corporation the right to defer all or part 
of the interest payments. For any payments that are deferred, interest 
will compound at a rate 150 basis points greater than the stated rate of 
interest.
    (ii) The corporation encounters financial difficulty and is unable 
to satisfy its obligations under the note. The bank exercises its option 
under the note and grants the corporation the right to defer payments. 
The exercise of the option results in a right of the corporation to 
defer scheduled payments and, under paragraph (c)(3)(i) of this section, 
is not a unilateral option. Thus, the alteration is described in 
paragraph (c)(2)(iii) of this section and is a modification.
    Example 12. Alteration requiring consent. The original terms of a 
bond include a provision that the issuer may extend the maturity of the 
bond with the consent of the holder. Because any extension pursuant to 
this term requires the consent of both parties, such an extension does 
not occur by the exercise of a unilateral option (as defined in 
paragraph (c)(3) of this section) and is a modification.
    Example 13. Waiver of an acceleration clause. Under the terms of a 
bond, if the issuer fails to make a scheduled payment, the full 
principal amount of the bond is due and payable immediately. Following 
the issuer's failure to make a scheduled payment, the holder temporarily 
waives its right to receive the full principal for a period ending one 
year from the date of the issuer's default to allow the issuer to obtain 
additional financial resources. Under paragraph (c)(4)(ii) of this 
section, the temporary waiver in this situation is not a modification. 
The result would be the same if the terms provided the holder with the 
right to demand the full principal amount upon the failure of the issuer 
to make a scheduled payment and, upon such a failure, the holder 
exercised that right and then waived the right to receive the payment 
for one year.

    (e) Significant modifications. Whether the modification of a debt 
instrument is a significant modification is determined under the rules 
of this paragraph (e). Paragraph (e)(1) of this section provides a 
general rule for determining the significance of modifications not 
otherwise addressed in this paragraph (e). Paragraphs (e) (2) through 
(6) of this section provide specific rules for determining the 
significance of certain types of modifications. Paragraph (f) of this 
section provides

[[Page 21]]

rules of application, including rules for modifications that are 
effective on a deferred basis or upon the occurrence of a contingency.
    (1) General rule. Except as otherwise provided in paragraphs (e)(2) 
through (e)(6) of this section, a modification is a significant 
modification only if, based on all facts and circumstances, the legal 
rights or obligations that are altered and the degree to which they are 
altered are economically significant. In making a determination under 
this paragraph (e)(1), all modifications to the debt instrument (other 
than modifications subject to paragraphs (e) (2) through (6) of this 
section) are considered collectively, so that a series of such 
modifications may be significant when considered together although each 
modification, if considered alone, would not be significant.
    (2) Change in yield--(i) Scope of rule. This paragraph (e)(2) 
applies to debt instruments that provide for only fixed payments, debt 
instruments with alternative payment schedules subject to Sec. 1.1272-
1(c), debt instruments that provide for a fixed yield subject to Sec. 
1.1272-1(d) (such as certain demand loans), and variable rate debt 
instruments. Whether a change in the yield of other debt instruments 
(for example, a contingent payment debt instrument) is a significant 
modification is determined under paragraph (e)(1) of this section.
    (ii) In general. A change in the yield of a debt instrument is a 
significant modification if the yield computed under paragraph 
(e)(2)(iii) of this section varies from the annual yield on the 
unmodified instrument (determined as of the date of the modification) by 
more than the greater of--
    (A) \1/4\ of one percent (25 basis points); or
    (B) 5 percent of the annual yield of the unmodified instrument (.05 
x annual yield).
    (iii) Yield of the modified instrument--(A) In general. The yield 
computed under this paragraph (e)(2)(iii) is the annual yield of a debt 
instrument with--
    (1) An issue price equal to the adjusted issue price of the 
unmodified instrument on the date of the modification (increased by any 
accrued but unpaid interest and decreased by any accrued bond issuance 
premium not yet taken into account, and increased or decreased, 
respectively, to reflect payments made to the issuer or to the holder as 
consideration for the modification); and
    (2) Payments equal to the payments on the modified debt instrument 
from the date of the modification.
    (B) Prepayment penalty. For purposes of this paragraph (e)(2)(iii), 
a commercially reasonable prepayment penalty for a pro rata prepayment 
(as defined in Sec. 1.1275-2(f)) is not consideration for a 
modification of a debt instrument and is not taken into account in 
determining the yield of the modified instrument.
    (iv) Variable rate debt instruments. For purposes of this paragraph 
(e)(2), the annual yield of a variable rate debt instrument is the 
annual yield of the equivalent fixed rate debt instrument (as defined in 
Sec. 1.1275-5(e)) which is constructed based on the terms of the 
instrument (either modified or unmodified, whichever is applicable) as 
of the date of the modification.
    (3) Changes in timing of payments--(i) In general. A modification 
that changes the timing of payments (including any resulting change in 
the amount of payments) due under a debt instrument is a significant 
modification if it results in the material deferral of scheduled 
payments. The deferral may occur either through an extension of the 
final maturity date of an instrument or through a deferral of payments 
due prior to maturity. The materiality of the deferral depends on all 
the facts and circumstances, including the length of the deferral, the 
original term of the instrument, the amounts of the payments that are 
deferred, and the time period between the modification and the actual 
deferral of payments.
    (ii) Safe-harbor period. The deferral of one or more scheduled 
payments within the safe-harbor period is not a material deferral if the 
deferred payments are unconditionally payable no later than at the end 
of the safe-harbor period. The safe-harbor period begins on the original 
due date of the first scheduled payment that is deferred and extends for 
a period equal to the lesser of five years or 50 percent of the original

[[Page 22]]

term of the instrument. For purposes of this paragraph (e)(3)(ii), the 
term of an instrument is determined without regard to any option to 
extend the original maturity and deferrals of de minimis payments are 
ignored. If the period during which payments are deferred is less than 
the full safe-harbor period, the unused portion of the period remains a 
safe-harbor period for any subsequent deferral of payments on the 
instrument.
    (4) Change in obligor or security--(i) Substitution of a new obligor 
on recourse debt instruments--(A) In general. Except as provided in 
paragraph (e)(4)(i) (B), (C), or (D) of this section, the substitution 
of a new obligor on a recourse debt instrument is a significant 
modification.
    (B) Section 381(a) transaction. The substitution of a new obligor is 
not a significant modification if the acquiring corporation (within the 
meaning of section 381) becomes the new obligor pursuant to a 
transaction to which section 381(a) applies, the transaction does not 
result in a change in payment expectations, and the transaction (other 
than a reorganization within the meaning of section 368(a)(1)(F)) does 
not result in a significant alteration.
    (C) Certain asset acquisitions. The substitution of a new obligor is 
not a significant modification if the new obligor acquires substantially 
all of the assets of the original obligor, the transaction does not 
result in a change in payment expectations, and the transaction does not 
result in a significant alteration.
    (D) Tax-exempt bonds. The substitution of a new obligor on a tax-
exempt bond is not a significant modification if the new obligor is a 
related entity to the original obligor as defined in section 
168(h)(4)(A) and the collateral securing the instrument continues to 
include the original collateral.
    (E) Significant alteration. For purposes of this paragraph (e)(4), a 
significant alteration is an alteration that would be a significant 
modification but for the fact that the alteration occurs by operation of 
the terms of the instrument.
    (F) Section 338 election. For purposes of this section, an election 
under section 338 following a qualified stock purchase of an issuer's 
stock does not result in the substitution of a new obligor.
    (G) Bankruptcy proceedings. For purposes of this section, the filing 
of a petition in a title 11 or similar case (as defined in section 
368(a)(3)(A)) by itself does not result in the substitution of a new 
obligor.
    (ii) Substitution of a new obligor on nonrecourse debt instruments. 
The substitution of a new obligor on a nonrecourse debt instrument is 
not a significant modification.
    (iii) Addition or deletion of co-obligor. The addition or deletion 
of a co-obligor on a debt instrument is a significant modification if 
the addition or deletion of the co-obligor results in a change in 
payment expectations. If the addition or deletion of a co-obligor is 
part of a transaction or series of related transactions that results in 
the substitution of a new obligor, however, the transaction is treated 
as a substitution of a new obligor (and is tested under paragraph 
(e)(4)(i)) of this section rather than as an addition or deletion of a 
co-obligor.
    (iv) Change in security or credit enhancement--(A) Recourse debt 
instruments. A modification that releases, substitutes, adds or 
otherwise alters the collateral for, a guarantee on, or other form of 
credit enhancement for a recourse debt instrument is a significant 
modification if the modification results in a change in payment 
expectations.
    (B) Nonrecourse debt instruments. A modification that releases, 
substitutes, adds or otherwise alters a substantial amount of the 
collateral for, a guarantee on, or other form of credit enhancement for 
a nonrecourse debt instrument is a significant modification. A 
substitution of collateral is not a significant modification, however, 
if the collateral is fungible or otherwise of a type where the 
particular units pledged are unimportant (for example, government 
securities or financial instruments of a particular type and rating). In 
addition, the substitution of a similar commercially available credit 
enhancement contract is not a significant modification, and an 
improvement to the property securing a nonrecourse debt instrument does 
not result in a significant modification.

[[Page 23]]

    (v) Change in priority of debt. A change in the priority of a debt 
instrument relative to other debt of the issuer is a significant 
modification if it results in a change in payment expectations.
    (vi) Change in payment expectations--(A) In general. For purposes of 
this section, a change in payment expectations occurs if, as a result of 
a transaction--
    (1) There is a substantial enhancement of the obligor's capacity to 
meet the payment obligations under a debt instrument and that capacity 
was primarily speculative prior to the modification and is adequate 
after the modification; or
    (2) There is a substantial impairment of the obligor's capacity to 
meet the payment obligations under a debt instrument and that capacity 
was adequate prior to the modification and is primarily speculative 
after the modification.
    (B) Obligor's capacity. The obligor's capacity includes any source 
for payment, including collateral, guarantees, or other credit 
enhancement.
    (5) Changes in the nature of a debt instrument--(i) Property that is 
not debt. A modification of a debt instrument that results in an 
instrument or property right that is not debt for Federal income tax 
purposes is a significant modification. For purposes of this paragraph 
(e)(5)(i), any deterioration in the financial condition of the obligor 
between the issue date of the unmodified instrument and the date of 
modification (as it relates to the obligor's ability to repay the debt) 
is not taken into account unless, in connection with the modification, 
there is a substitution of a new obligor or the addition or deletion of 
a co-obligor.
    (ii) Change in recourse nature--(A) In general. Except as provided 
in paragraph (e)(5)(ii)(B) of this section, a change in the nature of a 
debt instrument from recourse (or substantially all recourse) to 
nonrecourse (or substantially all nonrecourse) is a significant 
modification. Thus, for example, a legal defeasance of a debt instrument 
in which the issuer is released from all liability to make payments on 
the debt instrument (including an obligation to contribute additional 
securities to a trust if necessary to provide sufficient funds to meet 
all scheduled payments on the instrument) is a significant modification. 
Similarly, a change in the nature of the debt instrument from 
nonrecourse (or substantially all nonrecourse) to recourse (or 
substantially all recourse) is a significant modification. If an 
instrument is not substantially all recourse or not substantially all 
nonrecourse either before or after a modification, the significance of 
the modification is determined under paragraph (e)(1) of this section.
    (B) Exceptions--(1) Defeasance of tax-exempt bonds. A defeasance of 
a tax-exempt bond is not a significant modification even if the issuer 
is released from any liability to make payments under the instrument if 
the defeasance occurs by operation of the terms of the original bond and 
the issuer places in trust government securities or tax-exempt 
government bonds that are reasonably expected to provide interest and 
principal payments sufficient to satisfy the payment obligations under 
the bond.
    (2) Original collateral. A modification that changes a recourse debt 
instrument to a nonrecourse debt instrument is not a significant 
modification if the instrument continues to be secured only by the 
original collateral and the modification does not result in a change in 
payment expectations. For this purpose, if the original collateral is 
fungible or otherwise of a type where the particular units pledged are 
unimportant (for example, government securities or financial instruments 
of a particular type and rating), replacement of some or all units of 
the original collateral with other units of the same or similar type and 
aggregate value is not considered a change in the original collateral.
    (6) Accounting or financial covenants. A modification that adds, 
deletes, or alters customary accounting or financial covenants is not a 
significant modification.
    (f) Rules of application--(1) Testing for significance--(i) In 
general. Whether a modification of any term is a significant 
modification is determined under each applicable rule in paragraphs (e) 
(2) through (6) of this section and, if not specifically addressed in 
those

[[Page 24]]

rules, under the general rule in paragraph (e)(1) of this section. For 
example, a deferral of payments that changes the yield of a fixed rate 
debt instrument must be tested under both paragraphs (e) (2) and (3) of 
this section.
    (ii) Contingent modifications. If a modification described in 
paragraphs (e) (2) through (5) of this section is effective only upon 
the occurrence of a substantial contingency, whether or not the change 
is a significant modification is determined under paragraph (e)(1) of 
this section rather than under paragraphs (e) (2) through (5) of this 
section.
    (iii) Deferred modifications. If a modification described in 
paragraphs (e) (4) and (5) of this section is effective on a 
substantially deferred basis, whether or not the change is a significant 
modification is determined under paragraph (e)(1) of this section rather 
than under paragraphs (e) (4) and (5) of this section.
    (2) Modifications that are not significant. If a rule in paragraphs 
(e) (2) through (4) of this section prescribes a degree of change in a 
term of a debt instrument that is a significant modification, a change 
of the same type but of a lesser degree is not a significant 
modification under that rule. For example, a 20 basis point change in 
the yield of a fixed rate debt instrument is not a significant 
modification under paragraph (e)(2) of this section. Likewise, if a rule 
in paragraph (e)(4) of this section requires a change in payment 
expectations for a modification to be significant, a modification of the 
same type that does not result in a change in payment expectations is 
not a significant modification under that rule.
    (3) Cumulative effect of modifications. Two or more modifications of 
a debt instrument over any period of time constitute a significant 
modification if, had they been done as a single change, the change would 
have resulted in a significant modification under paragraph (e) of this 
section. Thus, for example, a series of changes in the maturity of a 
debt instrument constitutes a significant modification if, combined as a 
single change, the change would have resulted in a significant 
modification. The significant modification occurs at the time that the 
cumulative modification would be significant under paragraph (e) of this 
section. In testing for a change of yield under paragraph (e)(2) of this 
section, however, any prior modification occurring more than 5 years 
before the date of the modification being tested is disregarded.
    (4) Modifications of different terms. Modifications of different 
terms of a debt instrument, none of which separately would be a 
significant modification under paragraphs (e) (2) through (6) of this 
section, do not collectively constitute a significant modification. For 
example, a change in yield that is not a significant modification under 
paragraph (e)(2) of this section and a substitution of collateral that 
is not a significant modification under paragraph (e)(4)(iv) of this 
section do not together result in a significant modification. Although 
the significance of each modification is determined independently, in 
testing a particular modification it is assumed that all other 
simultaneous modifications have already occurred.
    (5) Definitions. For purposes of this section:
    (i) Issuer and obligor are used interchangeably and mean the issuer 
of a debt instrument or a successor obligor.
    (ii) Variable rate debt instrument and contingent payment debt 
instrument have the meanings given those terms in section 1275 and the 
regulations thereunder.
    (iii) Tax-exempt bond means a state or local bond that satisfies the 
requirements of section 103(a).
    (iv) Conduit loan and conduit borrower have the same meanings as in 
Sec. 1.150-1(b).
    (6) Certain rules for tax-exempt bonds--(i) Conduit loans. For 
purposes of this section, the obligor of a tax-exempt bond is the entity 
that actually issues the bond and not a conduit borrower of bond 
proceeds. In determining whether there is a significant modification of 
a tax-exempt bond, however, transactions between holders of the tax-
exempt bond and a borrower of a conduit loan may be an indirect 
modification under paragraph (a)(1) of this section. For example, a 
payment by the holder

[[Page 25]]

of a tax-exempt bond to a conduit borrower to waive a call right may 
result in an indirect modification of the tax-exempt bond by changing 
the yield on that bond.
    (ii) Recourse nature--(A) In general. For purposes of this section, 
a tax-exempt bond that does not finance a conduit loan is a recourse 
debt instrument.
    (B) Proceeds used for conduit loans. For purposes of this section, a 
tax-exempt bond that finances a conduit loan is a recourse debt 
instrument unless both the bond and the conduit loan are nonrecourse 
instruments.
    (C) Government securities as collateral. Notwithstanding paragraphs 
(f)(6)(ii) (A) and (B) of this section, for purposes of this section a 
tax-exempt bond that is secured only by a trust holding government 
securities or tax-exempt government bonds that are reasonably expected 
to provide interest and principal payments sufficient to satisfy the 
payment obligations under the bond is a nonrecourse instrument.
    (g) Examples. The following examples illustrate the provisions of 
paragraphs (e) and (f) of this section:

    Example 1. Modification of call right. (i) Under the terms of a 30-
year, fixed-rate bond, the issuer can call the bond for 102 percent of 
par at the end of ten years or for 101 percent of par at the end of 20 
years. At the end of the eighth year, the holder of the bond pays the 
issuer to waive the issuer's right to call the bond at the end of the 
tenth year. On the date of the modification, the issuer's credit rating 
is approximately the same as when the bond was issued, but market rates 
of interest have declined from that date.
    (ii) The holder's payment to the issuer changes the yield on the 
bond. Whether the change in yield is a significant modification depends 
on whether the yield on the modified bond varies from the yield on the 
original bond by more than the change in yield as described in paragraph 
(e)(2)(ii) of this section.
    (iii) If the change in yield is not a significant modification, the 
elimination of the issuer's call right must also be tested for 
significance. Because the specific rules of paragraphs (e)(2) through 
(e)(6) of this section do not address this modification, the 
significance of the modification must be determined under the general 
rule of paragraph (e)(1) of this section.
    Example 2. Extension of maturity and change in yield. (i) A zero-
coupon bond has an original maturity of ten years. At the end of the 
fifth year, the parties agree to extend the maturity for a period of two 
years without increasing the stated redemption price at maturity (i.e., 
there are no additional payments due between the original and extended 
maturity dates, and the amount due at the extended maturity date is 
equal to the amount due at the original maturity date).
    (ii) The deferral of the scheduled payment at maturity is tested 
under paragraph (e)(3) of this section. The safe-harbor period under 
paragraph (e)(3)(ii) of this section starts with the date the payment 
that is being deferred is due. For this modification, the safe-harbor 
period starts on the original maturity date, and ends five years from 
this date. All payments deferred within this period are unconditionally 
payable before the end of the safe-harbor period. Thus, the deferral of 
the payment at maturity for a period of two years is not a material 
deferral under the safe-harbor rule of paragraph (e)(3)(ii) of this 
section and thus is not a significant modification.
    (iii) Even though the extension of maturity is not a significant 
modification under paragraph (e)(3)(ii) of this section, the 
modification also decreases the yield of the bond. The change in yield 
must be tested under paragraph (e)(2) of this section.
    Example 3. Change in yield resulting from reduction of principal. 
(i) A debt instrument issued at par has an original maturity of ten 
years and provides for the payment of $100,000 at maturity with interest 
payments at the rate of 10 percent payable at the end of each year. At 
the end of the fifth year, and after the annual payment of interest, the 
issuer and holder agree to reduce the amount payable at maturity to 
$80,000. The annual interest rate remains at 10 percent but is payable 
on the reduced principal.
    (ii) In applying the change in yield rule of paragraph (e)(2) of 
this section, the yield of the instrument after the modification 
(measured from the date that the parties agree to the modification to 
its final maturity date) is computed using the adjusted issue price of 
$100,000. With four annual payments of $8,000, and a payment of $88,000 
at maturity, the yield on the instrument after the modification for 
purposes of determining if there has been a significant modification 
under paragraph (e)(2)(i) of this section is 4.332 percent. Thus, the 
reduction in principal is a significant modification.
    Example 4. Deferral of scheduled interest payments. (i) A 20-year 
debt instrument issued at par provides for the payment of $100,000 at 
maturity with annual interest payments at the rate of 10 percent. At the 
beginning of the eleventh year, the issuer and holder agree to defer all 
remaining interest payments until maturity with compounding. The yield 
of the modified instrument remains at 10 percent.
    (ii) The safe-harbor period of paragraph (e)(3)(ii) of this section 
begins at the end of

[[Page 26]]

the eleventh year, when the interest payment for that year is deferred, 
and ends at the end of the sixteenth year. However, the payments 
deferred during this period are not unconditionally payable by the end 
of that 5-year period. Thus, the deferral of the interest payments is 
not within the safe-harbor period.
    (iii) This modification materially defers the payments due under the 
instrument and is a significant modification under paragraph (e)(3)(i) 
of this section.
    Example 5. Assumption of mortgage with increase in interest rate. 
(i) A recourse debt instrument with a 9 percent annual yield is secured 
by an office building. Under the terms of the instrument, a purchaser of 
the building may assume the debt and be substituted for the original 
obligor if the purchaser has a specified credit rating and if the 
interest rate on the instrument is increased by one-half percent (50 
basis points). The building is sold, the purchaser assumes the debt, and 
the interest rate increases by 50 basis points.
    (ii) If the purchaser's acquisition of the building does not satisfy 
the requirements of paragraphs (e)(4)(i) (B) or (C) of this section, the 
substitution of the purchaser as the obligor is a significant 
modification under paragraph (e)(4)(i)(A) of this section.
    (iii) If the purchaser acquires substantially all of the assets of 
the original obligor, the assumption of the debt instrument will not 
result in a significant modification if there is not a change in payment 
expectations and the assumption does not result in a significant 
alteration.
    (iv) The change in the interest rate, if tested under the rules of 
paragraph (e)(2) of this section, would result in a significant 
modification. The change in interest rate that results from the 
transaction is a significant alteration. Thus, the transaction does not 
meet the requirements of paragraph (e)(4)(i)(C) of this section and is a 
significant modification under paragraph (e)(4)(i)(A) of this section.
    Example 6. Assumption of mortgage. (i) A recourse debt instrument is 
secured by a building. In connection with the sale of the building, the 
purchaser of the building assumes the debt and is substituted as the new 
obligor on the debt instrument. The purchaser does not acquire 
substantially all of the assets of the original obligor.
    (ii) The transaction does not satisfy any of the exceptions set 
forth in paragraph (e)(4)(i) (B) or (C) of this section. Thus, the 
substitution of the purchaser as the obligor is a significant 
modification under paragraph (e)(4)(i)(A) of this section.
    (iii) Section 1274(c)(4), however, provides that if a debt 
instrument is assumed in connection with the sale or exchange of 
property, the assumption is not taken into account in determining if 
section 1274 applies to the debt instrument unless the terms and 
conditions of the debt instrument are modified in connection with the 
sale or exchange. Because the purchaser assumed the debt instrument in 
connection with the sale of property and the debt instrument was not 
otherwise modified, the debt instrument is not retested to determine 
whether it provides for adequate stated interest.
    Example 7. Substitution of a new obligor in section 381(a) 
transaction. (i) The interest rate on a 30-year debt instrument issued 
by a corporation provides for a variable rate of interest that is reset 
annually on June 1st based on an objective index.
    (ii) In the tenth year, the issuer merges (in a transaction to which 
section 381(a) applies) into another corporation that becomes the new 
obligor on the debt instrument. The merger occurs on June 1st, at which 
time the interest rate is also reset by operation of the terms of the 
instrument. The new interest rate varies from the previous interest rate 
by more than the greater of 25 basis points and 5 percent of the annual 
yield of the unmodified instrument. The substitution of a new obligor 
does not result in a change in payment expectations.
    (iii) The substitution of the new obligor occurs in a section 381(a) 
transaction and does not result in a change in payment expectations. 
Although the interest rate changed by more than the greater of 25 basis 
points and 5 percent of the annual yield of the unmodified instrument, 
this alteration did not occur as a result of the transaction and is not 
a significant alteration under paragraph (e)(4)(i)(E) of this section. 
Thus, the substitution meets the requirements of paragraph (e)(4)(i)(B) 
of this section and is not a significant modification.
    Example 8. Substitution of credit enhancement contract. (i) Under 
the terms of a recourse debt instrument, the issuer's obligations are 
secured by a letter of credit from a specified bank. The debt instrument 
does not contain any provision allowing a substitution of a letter of 
credit from a different bank. The specified bank, however, encounters 
financial difficulty and rating agencies lower its credit rating. The 
issuer and holder agree that the issuer will substitute a letter of 
credit from another bank with a higher credit rating.
    (ii) Under paragraph (e)(4)(iv)(A) of this section, the substitution 
of a different credit enhancement contract is not a significant 
modification of a recourse debt instrument unless the substitution 
results in a change in payment expectations. While the substitution of a 
new letter of credit by a bank with a higher credit rating does not 
itself result in a change in payment expectations, such a substitution 
may result in a change

[[Page 27]]

in payment expectations under certain circumstances (for example, if the 
obligor's capacity to meet payment obligations is dependent on the 
letter of credit and the substitution substantially enhances that 
capacity from primarily speculative to adequate).
    Example 9. Improvement to collateral securing nonrecourse debt. A 
parcel of land and its improvements, a shopping center, secure a 
nonrecourse debt instrument. The obligor expands the shopping center 
with the construction of an additional building on the same parcel of 
land. After the construction, the improvements that secure the 
nonrecourse debt include the new building. The building is an 
improvement to the property securing the nonrecourse debt instrument and 
its inclusion in the collateral securing the debt is not a significant 
modification under paragraph (e)(4)(iv)(B) of this section.

    (h) Effective date. This section applies to alterations of the terms 
of a debt instrument on or after September 24, 1996. Taxpayers, however, 
may rely on this section for alterations of the terms of a debt 
instrument after December 2, 1992, and before September 24, 1996.

[T.D. 8675, 61 FR 32930, June 26, 1996; 61 FR 47822, Sept. 11, 1996]



Sec. 1.1001-4  Modifications of certain notional principal contracts.

    (a) Dealer assignments. For purposes of Sec. 1.1001-1(a), the 
substitution of a new party on an interest rate or commodity swap, or 
other notional principal contract (as defined in Sec. 1.446-3(c)(1)), 
is not treated as a deemed exchange by the nonassigning party of the 
original contract for a modified contract that differs materially either 
in kind or in extent if--
    (1) The party assigning its rights and obligations under the 
contract and the party to which the rights and obligations are assigned 
are both dealers in notional principal contracts, as defined in Sec. 
1.446-3(c)(4)(iii); and
    (2) The terms of the contract permit the substitution.
    (b) Effective date. This section applies to assignments of interest 
rate swaps, commodity swaps, and other notional principal contracts 
occurring on or after September 23, 1996.

[T.D. 8763, 63 FR 4396, Jan. 29, 1998]



Sec. 1.1001-5  European Monetary Union (conversion to the euro).

    (a) Conversion of currencies. For purposes of Sec. 1.1001-1(a), the 
conversion to the euro of legacy currencies (as defined in Sec. 1.985-
8(a)(1)) is not the exchange of property for other property differing 
materially in kind or extent.
    (b) Effect of currency conversion on other rights and obligations. 
For purposes of Sec. 1.1001-1(a), if, solely as the result of the 
conversion of legacy currencies to the euro, rights or obligations 
denominated in a legacy currency become rights or obligations 
denominated in the euro, that event is not the exchange of property for 
other property differing materially in kind or extent. Thus, for 
example, when a debt instrument that requires payments of amounts 
denominated in a legacy currency becomes a debt instrument requiring 
payments of euros, that alteration is not a modification within the 
meaning of Sec. 1.1001-3(c).
    (c) Effective date. This section applies to tax years ending after 
July 29, 1998.

[T.D. 8927, 66 FR 2218, Jan. 11, 2001]



Sec. 1.1002-1  Sales or exchanges.

    (a) General rule. The general rule with respect to gain or loss 
realized upon the sale or exchange of property as determined under 
section 1001 is that the entire amount of such gain or loss is 
recognized except in cases where specific provisions of subtitle A of 
the code provide otherwise.
    (b) Strict construction of exceptions from general rule. The 
exceptions from the general rule requiring the recognition of all gains 
and losses, like other exceptions from a rule of taxation of general and 
uniform application, are strictly construed and do not extend either 
beyond the words or the underlying assumptions and purposes of the 
exception. Nonrecognition is accorded by the Code only if the exchange 
is one which satisfies both (1) the specific description in the Code of 
an excepted exchange, and (2) the underlying purpose for which such 
exchange is excepted from the general rule. The exchange must be germane 
to, and a necessary incident of, the investment or enterprise in hand. 
The relationship of the exchange to the venture or enterprise

[[Page 28]]

is always material, and the surrounding facts and circumstances must be 
shown. As elsewhere, the taxpayer claiming the benefit of the exception 
must show himself within the exception.
    (c) Certain exceptions to general rule. Exceptions to the general 
rule are made, for example, by sections 351(a), 354, 361(a), 371(a)(1), 
371(b)(1), 721, 1031, 1035 and 1036. These sections describe certain 
specific exchanges of property in which at the time of the exchange 
particular differences exist between the property parted with and the 
property acquired, but such differences are more formal than 
substantial. As to these, the Code provides that such differences shall 
not be deemed controlling, and that gain or loss shall not be recognized 
at the time of the exchange. The underlying assumption of these 
exceptions is that the new property is substantially a continuation of 
the old investment still unliquidated; and, in the case of 
reorganizations, that the new enterprise, the new corporate structure, 
and the new property are substantially continuations of the old still 
unliquidated.
    (d) Exchange. Ordinarily, to constitute an exchange, the transaction 
must be a reciprocal transfer of property, as distinguished from a 
transfer of property for a money consideration only.

                   Basis Rules of General Application



Sec. 1.1011-1  Adjusted basis.

    The adjusted basis for determining the gain or loss from the sale or 
other disposition of property is the cost or other basis prescribed in 
section 1012 or other applicable provisions of subtitle A of the code, 
adjusted to the extent provided in sections 1016, 1017, and 1018 or as 
otherwise specifically provided for under applicable provisions of 
internal revenue laws.



Sec. 1.1011-2  Bargain sale to a charitable organization.

    (a) In general. (1) If for the taxable year a charitable 
contributions deduction is allowable under section 170 by reason of a 
sale or exchange of property, the taxpayer's adjusted basis of such 
property for purposes of determining gain from such sale or exchange 
must be computed as provided in section 1011(b) and paragraph (b) of 
this section. If after applying the provisions of section 170 for the 
taxable year, including the percentage limitations of section 170(b), no 
deduction is allowable under that section by reason of the sale or 
exchange of the property, section 1011(b) does not apply and the 
adjusted basis of the property is not required to be apportioned 
pursuant to paragraph (b) of this section. In such case the entire 
adjusted basis of the property is to be taken into account in 
determining gain from the sale or exchange, as provided in Sec. 1.1011-
1(e). In ascertaining whether or not a charitable contributions 
deduction is allowable under section 170 for the taxable year for such 
purposes, that section is to be applied without regard to this section 
and the amount by which the contributed portion of the property must be 
reduced under section 170(e)(1) is the amount determined by taking into 
account the amount of gain which would have been ordinary income or 
long-term capital gain if the contributed portion of the property had 
been sold by the donor at its fair market value at the time of the sale 
or exchange.
    (2) If in the taxable year there is a sale or exchange of property 
which gives rise to a charitable contribution which is carried over 
under section 170(b)(1)(D)(ii) or section 170(d) to a subsequent taxable 
year or is postponed under section 170(a)(3) to a subsequent taxable 
year, section 1011(b) and paragraph (b) of this section must be applied 
for purposes of apportioning the adjusted basis of the property for the 
year of the sale or exchange, whether or not such contribution is 
allowable as a deduction under section 170 in such subsequent year.
    (3) If property is transferred subject to an indebtedness, the 
amount of the indebtedness must be treated as an amount realized for 
purposes of determining whether there is a sale or exchange to which 
section 1011(b) and this section apply, even though the transferee does 
not agree to assume or pay the indebtedness.

[[Page 29]]

    (4)(i) Section 1011(b) and this section apply where property is sold 
or exchanged in return for an obligation to pay an annuity and a 
charitable contributions deduction is allowable under section 170 by 
reason of such sale or exchange.
    (ii) If in such case the annuity received in exchange for the 
property is nonassignable, or is assignable but only to the charitable 
organization to which the property is sold or exchanged, and if the 
transferor is the only annuitant or the transferor and a designated 
survivor annuitant or annuitants are the only annuitants, any gain on 
such exchange is to be reported as provided in example (8) in paragraph 
(c) of this section. In determining the period over which gain may be 
reported as provided in such example, the life expectancy of the 
survivor annuitant may not be taken into account. The fact that the 
transferor may retain the right to revoke the survivor's annuity or 
relinquish his own right to the annuity will not be considered, for 
purposes of this subdivision, to make the annuity assignable to someone 
other than the charitable organization. Gain on an exchange of the type 
described in this subdivision pursuant to an agreement which is entered 
into after December 19, 1969, and before May 3, 1971, may be reported as 
provided in example (8) in paragraph (c) of this section, even though 
the annuity is assignable.
    (iii) In the case of an annuity to which subdivision (ii) of this 
subparagraph applies, the gain unreported by the transferor with respect 
to annuity payments not yet due when the following events occur is not 
required to be included in gross income of any person where--
    (a) The transferor dies before the entire amount of gain has been 
reported and there is no surviving annuitant, or
    (b) The transferor relinquishes the annuity to the charitable 
organization.

If the transferor dies before the entire amount of gain on a two-life 
annuity has been reported, the unreported gain is required to be 
reported by the surviving annuitant or annuitants with respect to the 
annuity payments received by them.
    (b) Apportionment of adjusted basis. For purposes of determining 
gain on a sale or exchange to which this paragraph applies, the adjusted 
basis of the property which is sold or exchanged shall be that portion 
of the adjusted basis of the entire property which bears the same ratio 
to the adjusted basis as the amount realized bears to the fair market 
value of the entire property. The amount of such gain which shall be 
treated as ordinary income (or long-term capital gain) shall be that 
amount which bears the same ratio to the ordinary income (or long-term 
capital gain) which would have been recognized if the entire property 
had been sold by the donor at its fair market value at the time of the 
sale or exchange as the amount realized on the sale or exchange bears to 
the fair market value of the entire property at such time. The terms 
ordinary income and long-term capital gain, as used in this section, 
have the same meaning as they have in paragraph (a) of Sec. 1.170A-4. 
For determining the portion of the adjusted basis, ordinary income, and 
long- term capital gain allocated to the contributed portion of the 
property for purposes of applying section 170(e)(1) and paragraph (a) of 
Sec. 1.170A-4 to the contributed portion of the property, and for 
determining the donee's basis in such contributed portion, see paragraph 
(c) (2) and (4) of Sec. 1.170A-4. For determining the holding period of 
such contributed portion, see section 1223(2) and the regulations 
thereunder.
    (c) Illustrations. The application of this section may be 
illustrated by the following examples, which are supplemented by other 
examples in paragraph (d) of Sec. 1.170A-4:

    Example 1. In 1970, A, a calendar-year individual taxpayer, sells to 
a church for $4,000 stock held for more than 6 months which has an 
adjusted basis of $4,000 and a fair market value of $10,000. A's 
contribution base for 1970, as defined in section 170(b)(1)(F), is 
$100,000, and during that year he makes no other charitable 
contributions. Thus, A makes a charitable contribution to the church of 
$6,000 ($10,000 value -$4,000 amount realized). Without regard to this 
section, A is allowed a deduction under section 170 of $6,000 for his 
charitable contribution to the church, since there is no reduction under 
section 170(e)(1) with respect to the long-term capital gain. 
Accordingly, under paragraph (b) of this section the adjusted basis for 
determining gain on the bargain sale is $1,600 ($4,000 adjusted basis x 
$4,000 amount

[[Page 30]]

realized / $10,000 value of property). A has recognized long-term 
capital gain of $2,400 ($4,000 amount realized - $1,600 adjusted basis) 
on the bargain sale.
    Example 2. The facts are the same as in example (1) except that A 
also makes a charitable contribution in 1970 of $50,000 cash to the 
church. By reason of section 170(b)(1)(A), the deduction allowed under 
section 170 for 1970 is $50,000 for the amount of cash contributed to 
the church; however, the $6,000 contribution of property is carried over 
to 1971 under section 170(d). Under paragraphs (a)(2) and (b) of this 
section the adjusted basis for determining gain for 1970 on the bargain 
sale in that year is $1,600 ($4,000 x $4,000 / $10,000). A has a 
recognized long-term capital gain for 1970 of $2,400 ($4,000 - $1,600) 
on the sale.
    Example 3. In 1970, C, a calendar-year individual taxpayer, makes a 
charitable contribution of $50,000 cash to a church. In addition, he 
sells for $4,000 to a private foundation not described in section 
170(b)(1)(E) stock held for more than 6 months which has an adjusted 
basis of $4,000 and a fair market value of $10,000. Thus, C makes a 
charitable contribution of $6,000 of such property to the private 
foundation ($10,000 value - $4,000 amount realized). C's contribution 
base for 1970, as defined in section 170(b)(1)(F), is $100,000, and 
during that year he makes no other charitable contributions. By reason 
of section 170(b)(1)(A), the deduction allowed under section 170 for 
1970 is $50,000 for the amount of cash contributed to the church. Under 
section 170(e)(1)(B)(ii) and paragraphs (a)(1) and (c)(2)(i) of Sec. 
1.170A-4, the $6,000 contribution of stock is reduced to $4,800 ($6,000 
- [50% x ($6,000 value of contributed portion of stock - $3,600 adjusted 
basis)]). However, by reason of section 170(b)(1)(B)(ii), applied 
without regard to section 1011(b), no deduction is allowed under section 
170 for 1970 or any other year for the reduced contribution of $4,800 to 
the private foundation. Accordingly, paragraph (b) of this section does 
not apply for purposes of apportioning the adjusted basis of the stock 
sold to the private foundation, and under section 1.1011-1(e) the 
recognized gain on the bargain sale is $0 ($4,000 amount realized - 
$4,000 adjusted basis).
    Example 4. In 1970, B, a calendar-year individual taxpayer, sells to 
a church for $2,000 stock held for not more than 6 months which has an 
adjusted basis of $4,000 and a fair market value of $10,000. B's 
contribution base for 1970, as defined in section 170(b)(1)(F), is 
$20,000 and during such year B makes no other charitable contributions. 
Thus, he makes a charitable contribution to the church of $8,000 
($10,000 value - $2,000 amount realized). Under paragraph (b) of this 
section the adjusted basis for determining gain on the bargain sale is 
$800 ($4,000 adjusted basis x $2,000 amount realized / $10,000 value of 
stock). Accordingly, B, has a recognized short-term capital gain of 
$1,200 ($2,000 amount realized - $800 adjusted basis) on the bargain 
sale. After applying section 1011(b) and paragraphs (a)(1) and (c)(2)(i) 
of Sec. 1.170A-4, B is allowed a charitable contributions deduction for 
1970 of $3,200 ($8,000 value of gift - [$8,000 - ($4,000 adjusted basis 
of property x $8,000 value of gift / $10,000 value of property)]).
    Example 5. The facts are the same as in Example 4 except that B 
sells the property to the church for $4,000. Thus, B makes a charitable 
contribution to the church of $6,000 ($10,000 value -$4,000 amount 
realized). Under paragraph (b) of this section the adjusted basis for 
determining gain on the bargain sale is $1,600 ($4,000 adjusted basis x 
$4,000 amount realized / $10,000 value of stock). Accordingly, B has a 
recognized short-term capital gain of $2,400 ($4,000 amount realized - 
$1,600 adjusted basis) on the bargain sale. After applying section 
1011(b) and paragraphs (a)(1) and (c)(2)(i) of Sec. 1.170A-4, B is 
allowed a charitable contributions deduction for 1970 of $2,400 ($6,000 
value of gift - [$6,000 - ($4,000 adjusted basis of property x $6,000 
value of gifts / $10,000 value of property)]).
    Example 6. The facts are the same as in Example 4 except that B 
sells the property to the church for $6,000. Thus, B makes a charitable 
contribution to the church of $4,000 ($10,000 value -$6,000 amount 
realized). Under paragraph (b) of this section the adjusted basis for 
determining gain on the bargain sale is $2,400 ($4,000 adjusted basis 
x$6,000 amount realized/$10,000 value of stock). Accordingly, B has a 
recognized short-term capital gain of $3,600 ($6,000 amount realized -
$2,400 adjusted basis) on the bargain sale. After applying section 
1011(b) and paragraphs (a)(1) and (c)(2)(i) of Sec. 1.170A-4, B is 
allowed a charitable contributions deduction for 1970 of $1,600 ($4,000 
value of gift -[$4,000 -($4,000 adjusted basis of property x$4,000 value 
of gift/$10,000 value of property]).
    Example 7. In 1970, C, a calendar-year individual taxpayer, sells to 
a church for $4,000 tangible personal property used in his business for 
more than 6 months which has an adjusted basis of $4,000 and a fair 
market value of $10,000. Thus, C makes a charitable contribution to the 
church of $6,000 ($10,000 value -$4,000 adjusted basis). C's 
contribution base for 1970, as defined in section 170(b)(1)(F) is 
$100,000 and during such year he makes no other charitable 
contributions. If C had sold the property at its fair market value at 
the time of its contribution, it is assumed that under section 1245 
$4,000 of the gain of $6,000 ($10,000 value -$4,000 adjusted basis) 
would have been treated as ordinary icome. Thus, there would have been 
long-term capital gain of $2,000. It is also assumed that the church 
does not put the property to an unrelated use, as defined in paragraph

[[Page 31]]

(b)(3) of Sec. 1.170A-4. Under paragraph (b) of this section the 
adjusted basis for determining gain on the bargain sale is $1,600 
($4,000 adjusted basis x$4,000 amount realized/$10,000 value of 
property). Accordingly, C has a recognized gain of $2,400 ($4,000 amount 
realized -$1,600 adjusted basis) on the bargain sale, consisting of 
ordinary income of $1,600 ($4,000 ordinary income x$4,000 amount 
realized/$10,000 value of property) and of long-term capital gain of 
$800 ($2,000 long-term gain x$4,000 amount realized/$10,000 value of 
property). After applying section 1011(b) and paragraphs (a) and 
(c)(2)(i) of Sec. 1.170A-4, C is allowed a charitable contributions 
deduction for 1970 of $3,600 ($6,000 gift -[$4,000 ordinary income 
x$6,000 value of gift/$10,000 value of property]).
    Example 8. (a) On January 1, 1970, A, a male of age 65, transfers 
capital assets consisting of securities held for more than 6 months to a 
church in exchange for a promise by the church to pay A a nonassignable 
annuity of $5,000 per year for life. The annuity is payable monthly with 
the first payment to be made on February 1, 1970. A's contribution base 
for 1970, as defined in section 170(b)(1)(F), is $200,000, and during 
that year he makes no other charitable contributions. On the date of 
transfer the securities have a fair market value of $100,000 and an 
adjusted basis to A of $20,000.
    (b) The present value of the right of a male age 65 to receive a 
life annuity of $5,000 per annum, payable in equal installments at the 
end of each monthly period, is $59,755 ($5,000 x [11.469 + 0.482]), 
determined in accordance with section 101(b) of the Code, paragraph 
(e)(1)(iii)(b)(2) of Sec. 1.101-2, and section 3 of Rev. Rul. 62-216, 
C.B. 1962-2, 30. Thus, A makes a charitable contribution to the church 
of $40,245 ($100,000 -$59,755). See Rev. Rul. 84-162, 1984-2 C.B. 200, 
for transfers for which the valuation date falls after November 23, 
1984. (See Sec. 601.601(d)(2)(ii)(b) of this chapter). For the 
applicable valuation tables in connection therewith, see Sec. 20.2031-
7(d)(6) of this chapter. See, however, Sec. 1.7520-3(b) (relating to 
exceptions to the use of standard actuarial factors in certain 
circumstances).
    (c) Under paragraph (b) of this section, the adjusted basis for 
determining gain on the bargain sale is $11,951 ($20,000 x $59,755 / 
$100,000). Accordingly, A has a recognized long-term capital gain of 
$47,804 ($59,755 - $11,951) on the bargain sale. Such gain is to be 
reported by A ratably over the period of years measured by the expected 
return multiple under the contract, but only from that portion of the 
annual payments which is a return of his investment in the contract 
under section 72 of the Code. For such purposes, the investment in the 
contract is $59,755, that is, the present value of the annuity.
    (d) The computation and application of the exclusion ratio, the 
gain, and the ordinary annuity income are as follows, determined by 
using the expected return multiple of 15.0 applicable under table I of 
Sec. 1.72-9:

A's expected return (annual payments of $5,000 x 15)........  $75,000.00
Exclusion ratio ($59,755 investment in contract divided by         79.7%
 expected return of $75,000)................................
Annual exclusion (annual payments of $5,000 x 79.7%)........   $3,985.00
Ordinary annuity income ($5,000-$3,985).....................   $1,015.00
Long-term capital gain per year ($47,804/15) with respect to   $3,186.93
 the annual exclusion.......................................
 

    (e) The exclusion ratio of 79.7 percent applies throughout the life 
of the contract. During the first 15 years of the annuity, A is required 
to report ordinary income of $1,015 and long-term capital gain of 
$3,186.93 with respect to the annuity payments he receives. After the 
total long-term capital gain of $47,804 has been reported by A, he is 
required to report only ordinary income of $1,015.00 per annum with 
respect to the annuity payments he receives.

    (d) Effective date. This section applies only to sales and exchanges 
made after December 19, 1969.
    (e) Cross reference. For rules relating to the treatment of 
liabilities on the sale or other disposition or encumbered property, see 
Sec. 1.1001-2.

[T.D. 7207, 37 FR 20798, Oct. 5, 1972, as amended by T.D. 7741, 45 FR 
81745, Dec. 12, 1980; T.D. 8176, 53 FR 5570, Feb. 25, 1988; 53 FR 11002, 
Apr. 4, 1988; T.D. 8540, 59 FR 30148, June 10, 1994]



Sec. 1.1012-1  Basis of property.

    (a) General rule. In general, the basis of property is the cost 
thereof. The cost is the amount paid for such property in cash or other 
property. This general rule is subject to exceptions stated in 
subchapter O (relating to gain or loss on the disposition of property), 
subchapter C (relating to corporate distributions and adjustments), 
subchapter K (relating to partners and partnerships), and subchapter P 
(relating to capital gains and losses), chapter 1 of the code.
    (b) Real estate taxes as part of cost. In computing the cost of real 
property, the purchaser shall not take into account any amount paid to 
the seller as reimbursement for real property taxes which are treated 
under section 164(d) as imposed upon the purchaser. This rule applies 
whether or not the contract of sale calls for the purchaser to reimburse 
the seller for such real estate taxes paid or to be paid by the seller. 
On the other hand, where the

[[Page 32]]

purchaser pays (or assumes liability for) real estate taxes which are 
treated under section 164(d) as imposed upon the seller, such taxes 
shall be considered part of the cost of the property. It is immaterial 
whether or not the contract of sale specifies that the sale price has 
been reduced by, or is in any way intended to reflect, real estate taxes 
allocable to the seller under section 164(d). For illustrations of the 
application of this paragraph, see paragraph (b) of Sec. 1.1001-1.
    (c) Sale of stock--(1) In general. If shares of stock in a 
corporation are sold or transferred by a taxpayer who purchased or 
acquired lots of stock on different dates or at different prices, and 
the lot from which the stock was sold or transferred cannot be 
adequately identified, the stock sold or transferred shall be charged 
against the earliest of such lots purchased or acquired in order to 
determine the cost or other basis of such stock and in order to 
determine the holding period of such stock for purposes of subchapter P, 
chapter 1 of the code. If, on the other hand, the lot from which the 
stock is sold or transferred can be adequately identified, the rule 
stated in the preceding sentence is not applicable. As to what 
constitutes ``adequate identification'', see subparagraphs (2), (3), and 
(4) of this paragraph.
    (2) Identification of stock. An adequate identification is made if 
it is shown that certificates representing shares of stock from a lot 
which was purchased or acquired on a certain date or for a certain price 
were delivered to the taxpayer's transferee. Except as otherwise 
provided in subparagraph (3) or (4) of this paragraph, such stock 
certificates delivered to the transferee constitute the stock sold or 
transferred by the taxpayer. Thus, unless the requirements of 
subparagraph (3) or (4) of this paragraph are met, the stock sold or 
transferred is charged to the lot to which the certificates delivered to 
the transferee belong, whether or not the taxpayer intends, or instructs 
his broker or other agent, to sell or transfer stock from a lot 
purchased or acquired on a different date or for a different price.
    (3) Identification on confirmation document. (i) Where the stock is 
left in the custody of a broker or other agent, an adequate 
identification is made if--
    (a) At the time of the sale or transfer, the taxpayer specifies to 
such broker or other agent having custody of the stock the particular 
stock to be sold or transferred, and
    (b) Within a reasonable time thereafter, confirmation of such 
specification is set forth in a written document from such broker or 
other agent.

Stock identified pursuant to this subdivision is the stock sold or 
transferred by the taxpayer, even though stock certificates from a 
different lot are delivered to the taxpayer's transferee.
    (ii) Where a single stock certificate represents stock from 
different lots, where such certificate is held by the taxpayer rather 
than his broker or other agent, and where the taxpayer sells a part of 
the stock represented by such certificate through a broker or other 
agent, an adequate identification is made if--
    (a) At the time of the delivery of the certificate to the broker or 
other agent, the taxpayer specifies to such broker or other agent the 
particular stock to be sold or transferred, and
    (b) Within a reasonable time thereafter, confirmation of such 
specification is set forth in a written document from such broker or 
agent.

Where part of the stock represented by a single certificate is sold or 
transferred directly by the taxpayer to the purchaser or transferee 
instead of through a broker or other agent, an adequate identification 
is made if the taxpayer maintains a written record of the particular 
stock which he intended to sell or transfer.
    (4) Stock held by a trustee, executor, or administrator. Where stock 
is held by a trustee or by an executor or administrator of an estate 
(and not left in the custody of a broker or other agent), an adequate 
identification is made if at the time of a sale, transfer, or 
distribution, the trustee, executor, or administrator--
    (i) Specifies in writing in the books and records of the trust or 
estate the particular stock to be sold, transferred, or distributed, and

[[Page 33]]

    (ii) In the case of a distribution, also furnishes the distributee 
with a written document setting forth the particular stock distributed 
to him.

Stock identified pursuant to this subparagraph is the stock sold, 
transferred, or distributed by the trust or estate, even though stock 
certificates from a different lot are delivered to the purchaser, 
transferee, or distributee.
    (5) Subsequent sales. If stock identified under subparagraph (3) or 
(4) of this paragraph as belonging to a particular lot is sold, 
transferred, or distributed, the stock so identified shall be deemed to 
have been sold, transferred, or distributed, and such sale, transfer, or 
distribution will be taken into consideration in identifying the 
taxpayer's remaining stock for purposes of subsequent sales, transfers, 
or distributions.
    (6) Bonds. The provisions of subparagraphs (1) through (5) of this 
paragraph shall apply to the sale or transfer of bonds after July 13, 
1965.
    (7) Book-entry securities. (i) In applying the provisions of 
subparagraph (3)(i)(a) of this paragraph in the case of a sale or 
transfer of a book-entry security (as defined in subdivision (iii) (a) 
of this subparagraph) which is made after December 31, 1970, pursuant to 
a written instruction by the taxpayer, a specification by the taxpayer 
of the unique lot number which he has assigned to the lot which contains 
the securities being sold or transferred shall constitute specification 
as required by such subparagraph. The specification of the lot number 
shall be made either--
    (a) In such written instruction, or
    (b) In the case of a taxpayer in whose name the book entry by the 
Reserve Bank is made, in a list of lot numbers with respect to all book-
entry securities on the books of the Reserve Bank sold or transferred on 
that date by the taxpayer, provided such list is mailed to or received 
by the Reserve Bank on or before the Reserve Bank's next business day.

This subdivision shall apply only if the taxpayer assigns lot numbers in 
numerical sequence to successive purchases of securities of the same 
loan title (series) and maturity date, except that securities of the 
same loan title (series) and maturity date which are purchased at the 
same price on the same date may be included within the same lot.
    (ii) In applying the provisions of subparagraph (3)(i)(b) of this 
paragraph in the case of a sale or transfer of a book-entry security 
which is made pursuant to a written instruction by the taxpayer, a 
confirmation as required by such subparagraph shall be deemed made by--
    (a) In the case of a sale or transfer made after December 31, 1970, 
the furnishing to the taxpayer of a written advice of transaction, by 
the Reserve Bank or the person through whom the taxpayer sells or 
transfers the securities, which specifies the amount and description of 
the securities sold or transferred and the date of the transaction, or
    (b) In the case of a sale or transfer made before January 1, 1971, 
the furnishing of a serially-numbered advice of transaction by a Reserve 
Bank.
    (iii) For purposes of this subparagraph:
    (a) The term book-entry security means--
    (1) In the case of a sale or transfer made after December 31, 1970, 
a transferable Treasury bond, note, certificate of indebtedness, or bill 
issued under the Second Liberty Bond Act (31 U.S.C. 774 (2)), as 
amended, or other security of the United States (as defined in (b) of 
this subdivision (iii)) in the form of an entry made as prescribed in 31 
CFR part 306, or other comparable Federal regulations, on the records of 
a Reserve Bank, or
    (2) In the case of a sale or transfer made before January 1, 1971, a 
transferable Treasury bond, note, certificate of indebtedness, or bill 
issued under the Second Liberty Bond Act, as amended, in the form of an 
entry made as prescribed in 31 CFR part 306, subpart O, on the records 
of a Reserve Bank which is deposited in an account with a Reserve Bank 
(i) as collateral pledged to a Reserve Bank (in its individual capacity) 
for advances by it, (ii) as collateral pledged to the United States 
under Treasury Department Circular No. 92 or 176, both as revised and 
amended, (iii) by a member bank of the Federal Reserve System for its 
sole account for safekeeping by a Reserve Bank in its

[[Page 34]]

individual capacity, (iv) in lieu of a surety or sureties upon the bond 
required by section 61 of the Bankruptcy Act, as amended (11 U.S.C. 
101), of a banking institution designated by a judge of one of the 
several courts of bankruptcy under such section as a depository for the 
moneys of a bankrupt's estate, (v) pursuant to 6 U.S.C. 15, in lieu of a 
surety or sureties required in connection with any recognizance, 
stipulation, bond, guaranty, or undertaking which must be furnished 
under any law of the United States or regulations made pursuant thereto, 
(vi) by a banking institution, pursuant to a State or local law, to 
secure the deposit in such banking institution of public funds by a 
State, municipality, or other political subdivision, (vii) by a State 
bank or trust company or a national bank, pursuant to a State or local 
law, to secure the faithful performance of trust or other fiduciary 
obligations by such State bank or trust company or national bank, or 
(viii) to secure funds which are deposited or held in trust by a State 
bank or trust company or a national bank and are awaiting investment, 
but which are used by such State bank or trust company or national bank 
in the conduct of its business;
    (b) The term other security of the United States means a bond, note, 
certificate of indebtedness, bill, debenture, or similar obligation 
which is subject to the provisions of 31 CFR part 306 or other 
comparable Federal regulations and which is issued by (1) any department 
or agency of the Government of the United States, or (2) the Federal 
National Mortgage Association, the Federal Home Loan Banks, the Federal 
Home Loan Mortgage Corporation, the Federal Land Banks, the Federal 
Intermediate Credit Banks, the Banks for Cooperatives, or the Tennessee 
Valley Authority;
    (c) The term serially-numbered advice of transaction means the 
confirmation (prescribed in 31 CFR 306.116) issued by the Reserve Bank 
which is identifiable by a unique number and indicates that a particular 
written instruction to the Reserve Bank with respect to the deposit or 
withdrawal of a specified book-entry security (or securities) has been 
executed; and
    (d) The term Reserve Bank means a Federal Reserve Bank and its 
branches acting as Fiscal Agent of the United States.
    (d) Obligations issued as part of an investment unit. For purposes 
of determining the basis of the individual elements of an investment 
unit (as defined in paragraph (b)(2)(ii)(a) of Sec. 1.1232-3) 
consisting of an obligation and an option (which is not an excluded 
option under paragraph (b)(1)(iii)(c) of Sec. 1.1232-3), security, or 
other property, the cost of such investment unit shall be allocated to 
such individual elements on the basis of their respective fair market 
values. In the case of the initial issuance of an investment unit 
consisting of an obligation and an option, security, or other property, 
where neither the obligation nor the option, security, or other property 
has a readily ascertainable fair market value, the portion of the cost 
of the unit which is allocable to the obligation shall be an amount 
equal to the issue price of the obligation as determined under paragraph 
(b)(2)(ii)(a) of Sec. 1.1232-3.
    (e) Election as to certain regulated investment company stock--(1) 
General rule--(i) In general. Notwithstanding paragraph (c) of this 
section, and except as provided in subdivision (ii) of this 
subparagraph, if--
    (a) Shares of stock of a regulated investment company (as defined in 
subparagraph (5) of this paragraph) are left by a taxpayer in the 
custody of a custodian or agent in an account maintained for the 
acquisition or redemption of shares of such company, and
    (b) The taxpayer purchased or acquired shares of stock held in the 
account at different prices or bases, the taxpayer may elect to 
determine the cost or other basis of shares of stock he sells or 
transfers from such account by using one of the methods described in 
subparagraphs (3) and (4) of this paragraph. The cost or other basis 
determined in accordance with either of such methods shall be known as 
the average basis. For purposes of this paragraph, securities issued by 
unit investment trusts shall be treated as shares of stock and the term 
share or shares shall include fractions of a share.

[[Page 35]]

    (ii) Certain gift shares. (a) Except as provided in subdivision (b) 
of this subdivision (ii), this paragraph shall not apply to any account 
which contains shares which were acquired by the taxpayer by gift after 
December 31, 1920, if the basis of such shares (adjusted for the period 
before the date of the gift as provided in section 1016) in the hands of 
the donor or the last preceding owner by whom it was not acquired by 
gift was greater than the fair market value of such shares at the time 
of the gift. However, shares acquired by a taxpayer as a result of a 
taxable dividend or a capital gain distribution from such an account may 
be included in an account to which this paragraph applies.
    (b) Notwithstanding the provisions of subdivision (a) of this 
subdivision (ii), this paragraph shall apply with respect to accounts 
containing gift shares described in such subdivision (a) if, at the time 
the election described in this paragraph is made in the manner 
prescribed in subparagraph (6) of this paragraph, the taxpayer includes 
a statement, in writing, indicating that the basis of such gift shares 
shall be the fair market value of such gift shares at the time they were 
acquired by the taxpayer by gift and that such basis shall be used in 
computing average basis in the manner described in subparagraph (3) or 
(4) of this paragraph. Such statement shall be effective with respect to 
gift shares acquired prior to making such election and with respect to 
gift shares acquired after such time and shall remain in effect so long 
as such election remains in effect.
    (2) Determination of average basis. Average basis shall be 
determined using either the method described in subparagraph (3) of this 
paragraph (the double-category method) or the method described in 
subparagraph (4) of this paragraph (the single-category method). The 
taxpayer shall specify, in the manner described in subparagraph (6) of 
this paragraph, the method used. Such method shall be used with respect 
to an account until such time as the election is revoked with the 
consent of the Commissioner. Although a taxpayer may specify different 
methods with respect to accounts in different regulated investment 
companies, the same method shall be used with respect to all of the 
taxpayer's accounts in the same regulated investment company.
    (3) Double-category method--(i) In general. In determining average 
basis using the double category method, all shares in an account at the 
time of each sale or transfer shall be divided into two categories. The 
first category shall include all shares in such account having, at the 
time of the sale or transfer, a holding period of more than 1-year (6-
months for taxable years beginning before 1977; 9-months for taxable 
years beginning in 1977) (the ``more-than 1-year (6-months for taxable 
years beginning before 1977; 9-months for taxable years beginning in 
1977)'' category), and the second category shall include all shares in 
such account having, at such time, a holding period of 1-year (6-months 
for taxable years beginning before 1977; 9-months for taxable years 
beginning in 1977) or less (the ``1-year (6-months for taxable years 
beginning before 1977; 9-months for taxable years beginning in 1977)-or-
less'' category). The cost or other basis of each share in a category 
shall be an amount equal to the remaining aggregate cost or other basis 
of all shares in that category at the time of the sale or transfer 
divided by the aggregate number of shares in that category at such time.
    (ii) Order of disposition of shares old or transferred. Prior to a 
sale or transfer of shares from such an account, the taxpayer may 
specify, to the custodian or agent having custody of the account, from 
which category (described in subdivision (i) of this subparagraph) the 
shares are to be sold or transferred. Shares shall be deemed sold or 
transferred from the category specified without regard to the stock 
certificates, if any, actually delivered if, within a reasonable time 
thereafter, confirmation of such specification is set forth in a written 
document from the custodian or agent having custody of the account. In 
the absence of such specification or confirmation, shares sold or 
transferred shall be charged against the more-than-1-year (6-months for 
taxable years beginning before 1977; 9-months for taxable years 
beginning in 1977) category. However, if

[[Page 36]]

the number of shares sold or transferred exceeds the number in such 
category, the additional shares sold or transferred shall be charged 
against the shares in the 1-year (6-months for taxable years beginning 
before 1977; 9-months for taxable years beginning in 1977)-or-less 
category. Any gain or loss attributable to a sale or transfer which is 
charged against shares in the more-than-1-year (6-months for taxable 
years beginning before 1977; 9-months for taxable years beginning in 
1977) category shall constitute long-term gain or loss, and any gain or 
loss attributable to a sale or transfer which is charged against shares 
in the 1-year (6-months for taxable years beginning before 1977; 9-
months for taxable years beginning in 1977)-or-less category shall 
constitute short-term gain or loss. As to adjustments from wash sales, 
see section 1091(d) and subdivisions (iii) (c) and (d) of this 
subparagraph.
    (iii) Special rules with respect to shares from the 1 year-or-less 
category. (a) After the taxpayer's holding period with respect to a 
share is more than 1-year (6-months for taxable years beginning before 
1977; 9-months for taxable years beginning in 1977), such share shall be 
changed from the 1-year (6-months for taxable years beginning before 
1977; 9-months for taxable years beginning in 1977)-or-less category to 
the more-than 1-year (6-months for taxable years beginning before 1977; 
9-months for taxable years beginning in 1977) category. For purposes of 
such change, the basis of a changed share shall be its actual cost or 
other basis to the taxpayer or its basis determined in accordance with 
the rules contained in subdivision (b)(2) of this subdivision (iii) if 
the rules of such subdivision (b)(2) are applicable.
    (b) If, during the period that shares are in the 1-year (6-months 
for taxable years beginning before 1977; 9-months for taxable years 
beginning in 1977)-or-less category some but not all of the shares in 
such category are sold or transferred, then--
    (1) The shares sold or transferred (the basis of which was 
determined in the manner prescribed by subdivision (i) of this 
subparagraph) shall be assumed to be those shares in such category which 
were earliest purchased or acquired, and
    (2) The basis of those shares which are not sold or transferred and 
which are changed from the 1-year (6-months for taxable years beginning 
before 1977; 9-months for taxable years beginning in 1977)-or-less 
category to the more-than-1-year (6-months for taxable years beginning 
before 1977; 9-months for taxable years beginning in 1977) category 
shall be the average basis of the shares in the 1-year (6-months for 
taxable years beginning before 1977; 9-months for taxable years 
beginning in 1977)-or-less category at the time of the most recent sale 
or transfer of shares from such category. For such purposes, the average 
basis shall be determined in the manner prescribed in subdivision (i) of 
this subparagraph.
    (c) Paragraph (a) of Sec. 1.1091-2 contains examples which 
illustrate the general application of section 1091(d), relating to 
unadjusted basis in the case of a wash sale of stock. However, in the 
case of certain wash sales of stock from the 1-year (6-months for 
taxable years beginning before 1977; 9-months for taxable years 
beginning in 1977)-or-less category, the provisions of section 1091(d) 
shall be applied in the manner described in subdivision (d) of this 
subdivision (iii).
    (d) In the case of a wash sale of stock (determined in accordance 
with the provisions of section 1091) from the 1-year (6-months for 
taxable years beginning before 1977; 9-months for taxable years 
beginning in 1977)-or-less category which occurs after the acquisition 
of shares of stock into such category, the aggregate cost or other basis 
of all shares remaining in the 1-year (6-months for taxable years 
beginning before 1977; 9-months for taxable years beginning in 1977)-or-
less category after such sale shall be increased by the amount of the 
loss which is not deductible because of the provisions of section 1091 
and the regulations thereunder. The provisions of this subdivision may 
be illustrated by the following example:

    Example: Assume the following acquisitions to, and sale from, the 1-
year (6-months for taxable years beginning before 1977; 9-months for 
taxable years beginning in 1977)-or-less category:

[[Page 37]]



 1-Year (6-Months for Taxable Years Beginning Before 1977; 9-Months for Taxable Years Beginning in 1977)-or-Less
                                                    Category
----------------------------------------------------------------------------------------------------------------
                                                                                   Number    Price/
                     Date                                    Action                shares     share    Aggregate
----------------------------------------------------------------------------------------------------------------
1-5-71........................................  Purchase........................        10      $110      $1,100
2-5-71........................................  ......do........................        10       100       1,000
3-5-71........................................  ......do........................        10        90         900
                                                                                 -------------------------------
Average.......................................  ................................        30       100       3,000
3-15-71.......................................  Sale............................        10        90         900
                                                                                 -------------------------------
                                                Loss............................        10        10         100
----------------------------------------------------------------------------------------------------------------

    In this example, the unadjusted basis of the shares remaining in the 
account after the sale is $2,000 (aggregate basis of $3,000 before the 
sale, less $1,000, the aggregate basis of the shares sold after the 
averaging of costs). The adjusted basis of the shares remaining in the 
1-year (6-months for taxable years beginning before 1977; 9-months for 
taxable years beginning in 1977)-or-less category after the sale and 
after adjustment is $2,100 (the unadjusted basis of $2,000, plus the 
$100 loss resulting from the sale).

    (4) Single-category method--(i) In general. In determining average 
basis using the single-category method, the cost or other basis of all 
shares in an account at the time of each sale or transfer (whether such 
shares have a holding period of more than 1 year (6 months for taxable 
years beginning before 1977; 9 months for taxable years beginning in 
1977) or 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977)-or-less) shall be used in 
making the computation. The cost or other basis of each share in such 
account shall be an amount equal to the remaining aggregate cost or 
other basis of all shares in such account at the time of the sale or 
transfer divided by the aggregate number of shares in such account at 
such time.
    (ii) Order of disposition of shares sold or transferred. In the case 
of the sale or transfer of shares from an account to which the election 
provided by this paragraph applies, and with respect to which the 
taxpayer has specified that he uses the single-category method of 
determining average basis, shares sold or transferred shall be deemed to 
be those shares first acquired. Thus, when shares are sold or 
transferred from an account such shares will be those with a holding 
period of more than 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable years beginning in 1977) to the extent that 
such account contains shares with a holding period of more than 1 year 
(6 months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977). If the number of shares sold or transferred 
exceeds the number of shares in the account with a holding period of 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977), any such excess shares sold 
or transferred will be deemed to be shares with a holding period of 1 
year (6 months for taxable years beginning before 1977; 9 months for 
taxable years beginning in 1977) or less. Any gain or loss attributable 
to shares held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) 
shall constitute long-term gain or loss, and any gain or loss 
attributable to shares held for 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) or 
less shall constitute short-term gain or loss. For example, if a 
taxpayer sells or transfers 50 shares from an account containing 100 
shares with a holding period of more than 1 year (6 months for taxable 
years beginning before 1977; 9 months for taxable years beginning in 
1977) and 100 shares with a holding period of 6 months or less, all of 
the shares sold or transferred will be deemed to be shares with a 
holding period of more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977). If, however, 
the account contains 40 shares with a holding period of more than 1 year 
(6 months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977) and 100 shares with a holding period of 1 year 
(6 months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977) or less, the taxpayer will be deemed to have 
sold or transferred 40 shares with a holding period of more than 1 year 
(6 months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977) and 10 shares with a holding period of 1 year 
(6 months for taxable years beginning

[[Page 38]]

before 1977; 9 months for taxable years beginning in 1977) or less.
    (iii) Restriction on use of single-category method. The single-
category method of determining average basis shall not be used where it 
appears from the facts and circumstances that a purpose of using such 
single-category method is to convert long-term capital gains or losses 
to short-term capital gains or losses or to convert short-term capital 
gains or losses to long-term capital gains or losses.
    (iv) Wash sales. The provisions of section 1091(d) (relating to 
unadjusted basis in the case of a wash sale of stock) and the 
regulations thereunder shall apply in the case of wash sales of stock 
from an account with respect to which the single-category method of 
determining average basis is being used.
    (5) Definition. (i) For purposes of this paragraph, a regulated 
investment company means any domestic corporation (other than a personal 
holding company as defined in section 542) which meets the limitations 
of section 851(b) and Sec. 1.851-2, and which is registered at all 
times during the taxable year under the Investment Company Act of 1940, 
as amended (15 U.S.C. 80a-1 to 80b-2), either as a management company, 
or as a unit investment trust.
    (ii) Notwithstanding subdivision (i), this paragraph shall not apply 
in the case of a unit investment trust unless it is one--
    (a) Substantially all of the assets of which consist (1) of 
securities issued by a single management company (as defined in such 
Act) and securities acquired pursuant to subdivision (b) of this 
subdivision (ii), or (2) securities issued by a single other 
corporation, and
    (b) Which has no power to invest in any other securities except 
securities issued by a single other management company, when permitted 
by such Act or the rules and regulations of the Securities and Exchange 
Commission.
    (6) Election. (i) An election to adopt one of the methods described 
in this paragraph shall be made in an income tax return for the first 
taxable year ending on or after December 31, 1970, for which the 
taxpayer desires the election to apply. If the taxpayer does not file a 
timely return (taking into account extensions of the time for filing) 
for such taxable year, the election shall be filed at the time the 
taxpayer files his first return for such year. The election may be made 
with an amended return only if such amended return is filed no later 
than the time prescribed by law (including extensions thereof) for 
filing the return for such taxable year. If the election is made, the 
taxpayer shall clearly indicate on his income tax return for each year 
to which the election is applicable that an average basis has been used 
in reporting gain or loss from the sale or transfer of shares sold or 
transferred. In addition, the taxpayer shall specify on such return the 
method (either the single-category method or the double-category method) 
used in determining average basis. The taxpayer shall also indicate in a 
statement described in subparagraph (1)(ii)(b) of this paragraph if the 
election is to apply to accounts described in subparagraph (1)(ii) of 
this paragraph. Such statement shall be attached to, or incorporated in, 
such return. A taxpayer making the election shall maintain such records 
as are necessary to substantiate the average basis (or bases) used on 
his income tax return.
    (ii) An election made with respect to some of the shares of a 
regulated investment company sold or transferred from an account 
described in subparagraph (1)(i) of this paragraph applies to all such 
shares in the account. Such election also applies to all shares of that 
regulated investment company held in other such accounts (i.e., those 
described in subparagraph (1)(i) of this paragraph) by the electing 
taxpayer for his own benefit. Thus, the election shall apply to all 
shares of the regulated investment company held by the electing taxpayer 
(for his own benefit) in such accounts on or after the first day of the 
first taxable year for which the election is made. Such election does 
not apply to shares held in accounts described in subparagraph (1)(ii) 
of this paragraph unless the taxpayer indicates, in the manner described 
in subdivision (i) of this subparagraph, that the election is to apply 
to shares held in such accounts. An election made pursuant to the 
provisions of this

[[Page 39]]

paragraph may not be revoked without the prior written permission of the 
Commissioner.
    (7) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) On January 11, 1971, taxpayer A, who files his income 
tax return on a calendar year basis, enters into an agreement with the W 
Bank establishing an account for the periodic acquisition of shares of 
the Y Company, an open-end mutual fund. The agreement provides (1) that 
the bank is to purchase, for A, shares of Y stock as A may from time to 
time direct, (2) that all shares in the account are to be left in the 
custody of the bank, and (3) that the bank is to reinvest any dividends 
paid by Y (including capital gain dividends) in additional shares of Y 
stock. Pursuant to the agreement, on January 11, 1971, February 1, 1971, 
and March 1, 1971, respectively, the bank purchases, at A's direction, 
100 shares of Y stock for a total of $1,880, 20 shares of Y stock for a 
total of $400, and 20 shares of Y stock for a total of $410. On March 
15, 1971, the bank reinvests a $1-per-share capital gain dividend (that 
is, a total of $140) in seven additional shares of Y stock. The 
acquisitions to A's account, are, therefore, as follows:

------------------------------------------------------------------------
                                                    Number of
                       Date                           shares     Basis
------------------------------------------------------------------------
January 11, 1971..................................        100     $1,880
February 1, 1971..................................         20        400
March 1, 1971.....................................         20        410
March 15, 1971....................................          7        140
------------------------------------------------------------------------

    On August 20, 1971, at A's direction, the bank redeems (i.e., sells) 
40 shares of Y stock, and on September 20, 1971, 30 shares. A elects to 
determine the gain or loss from the sales of the stock by reference to 
its average basis using the double-category method of determining 
average basis. A did not specify from which category the sales were to 
take place, and therefore, each sale is deemed to have been made from 
the more-than-6-months category.
    (ii) The average basis for the shares sold on August 20, 1971, is 
$19, and the total average basis for the 40 shares which are sold is 
$760, computed as follows:

------------------------------------------------------------------------
 Number of shares in the more-than-6-months category at the
                        time of sale                             Basis
------------------------------------------------------------------------
100.........................................................      $1,880
20..........................................................         400
------------------------------------------------------------------------
    Total 120...............................................       2,280
------------------------------------------------------------------------


Average cost or other basis: $2,280 / 120 = $19.40 shares x $19 each = 
$760, total average basis. Therefore, after the sale on August 20, 1971, 
80 shares remain in the more-than-6-months category, and their remaining 
aggregate cost is $1,520.
    (iii) The average basis for the shares sold on September 20, 1971, 
must reflect the sale which was made on August 20, 1971. Accordingly, 
such average basis would be $19.35 and may be computed as follows:

------------------------------------------------------------------------
 Number of shares in the more-than-6-months category at the
                        time of sale                             Basis
------------------------------------------------------------------------
80..........................................................      $1,520
20..........................................................         410
7...........................................................         140
------------------------------------------------------------------------
    Total 107...............................................       2,070
------------------------------------------------------------------------

Average cost or other basis: $2,070 / 107 shares = $19.35 (to the 
nearest cent).
    Example 2. Taxpayer B, who files his income tax returns on a 
calendar year basis, enters into an agreement with the X Bank 
establishing an account for the periodic acquisition of shares of the Z 
Company, an open-end mutual fund. X acquired for B's account shares of Z 
on the following dates in the designated amounts:

January 15, 1971..........................  50 shares.
February 16, 1971.........................  30 shares.
March 15, 1971............................  25 shares.
 


Pursuant to B's direction, the Bank redeemed (i.e., sold) 25 shares from 
the account on February 1, 1971, and 20 shares on April 1, 1971, for a 
total of 45 shares. All of such shares had been held for less than 6 
months. B elects to determine the gain or loss from the sales of the 
stock by reference to its average basis using the double-category method 
of determining average basis. Thus, the 45 shares which were sold are 
assumed to be from the 50 shares which were purchased on January 15, 
1971. Accordingly, on July 16, 1971, only five shares from those shares 
which had been purchased on January 15, 1971, remain to be transferred 
from the 6-months-or-less category to the more- than-6-months category. 
The basis of such five shares for purposes of the change to the more-
than-6-months category would be the average basis of the shares in the 
6-months- or-less category at the time of the sale on April 1, 1971.
    Example 3. Assume the same facts as in example (2), except that an 
additional sale of 18 shares was made on May 3, 1971. There were, 
therefore, a total of 63 shares sold during the 6-month period beginning 
on January 15, 1971, the date of the earliest purchase. Fifty of the 
shares which were sold during such period shall be assumed to be the 
shares purchased on January 15, 1971, and the remaining 13 shares shall 
be assumed to be from the shares which were purchased on February 16, 
1971. Thus, none of the shares which were purchased on January 15, 1971, 
remain to be changed from the 6-months-or-less category to the more-
than-6-months category. In the

[[Page 40]]

absence of further dispositions of shares during the 6-month holding 
period for the shares purchased on February 16, 1971, there would be 17 
of such shares to be changed over after the expiration of that period 
since 13 of the shares sold on May 3, 1971, were assumed to be from the 
shares purchased on February 16, 1971. The basis of the 17 shares for 
purposes of the change to the more-than-6-months category would be the 
average basis of the shares in the 6-months-or-less category at the time 
of the sale on May 3, 1971.
    Example 4. Taxpayer C, who files his income tax returns on a 
calendar year basis, enters into an agreement with Y Bank establishing 
an account for the periodic acquisition of XYZ Company, a closed-end 
mutual fund. Y acquired for B's account shares of XYZ on the following 
dates in the designated amounts:

------------------------------------------------------------------------
                                                      Number of
                        Date                            shares     Cost
------------------------------------------------------------------------
January 8, 1971.....................................         25     $200
February 8, 1971....................................         24      200
March 8, 1971.......................................         23      200
April 8, 1971.......................................         23      200
------------------------------------------------------------------------


Pursuant to C's direction, the bank redeemed (i.e., sold) 40 shares from 
the account on July 15, 1971, for $10 per share or a total of $400. C 
elects to determine the gain or loss from the sale of the stock by 
reference to its average basis using the single-category method of 
determining average basis. The average basis for the shares sold on July 
15, 1971 (determined by dividing the total number of shares in the 
account at such time (95) into the aggregate cost of such shares ($800)) 
is $8.42 (to the nearest cent). Under the rules of subparagraph (4) of 
this paragraph the shares sold would be deemed to be those first 
acquired. Thus, C would realize a $39.50 ($1.58 x 25) long-term capital 
gain with respect to the 25 shares acquired on January 8, 1971, and he 
would realize a $23.70 ($1.58 x 15 short-term capital gain with respect 
to 15 of the shares acquired on February 8, 1971. The next sale occurred 
on August 16, 1971. At that time, absent further intervening 
acquisitions or dispositions, the account contained nine shares (the 24 
shares acquired on February 8, 1971, less 15 of such shares which were 
sold on July 15, 1971) with a holding period of more than 6 months, and 
46 shares with a holding period of 6 months or less.
    Example 5. Taxpayer D owns four separate accounts (D-1, D-2, D-3, 
and D-4) for the periodic acquisition of shares of the Y Company, an 
open-end mutual fund. Account D-4 contains shares which D acquired by 
gift on April 15, 1970. These shares had an adjusted basis in the hands 
of the donor which was greater than the fair market value of the donated 
shares on such date. For his taxable year ending on December 31, 1971, D 
elects to use an average basis for shares sold from account D-1 during 
such year using the single-category method of determining average basis. 
Under the provisions of subparagraph (1)(ii) of this paragraph, D may 
use an average basis for shares sold or transferred from account D-4 if 
he includes with his statement of election a statement, in writing, 
indicating that the basis of such gift shares in account D-4 shall be 
the fair market value of such shares at the time he acquired such shares 
and that such basis shall be used in computing the average basis of 
shares in account D-4. In addition, since D elected to use an average 
basis for shares sold from account D-1, he must also use an average 
basis for all shares sold or transferred from accounts D-2 and D-3 (as 
well as account D-1) for his taxable year ending on December 31, 1971, 
and for all subsequent years until he revokes (with the consent of the 
Commissioner) his election to use an average basis for such accounts. 
Further, D must use the single-category method of determining average 
basis with respect to accounts D-2, D-3 (and D-4 if the above-mentioned 
statement is filed).

    (f) Special rules. For special rules for determining the basis for 
gain or loss in the case of certain vessels acquired through the 
Maritime Commission (or its successors) or pursuant to an agreement with 
the Secretary of Commerce, see sections 510, 511, and 607 of the 
Merchant Marine Act, 1936, as amended (46 U.S.C. 1160, 1161) and parts 2 
and 3 of this chapter. For special rules for determining the unadjusted 
basis of property recovered in respect of war losses, see section 1336. 
For special rules with respect to taxable years beginning before January 
1, 1964, for determining the basis for gain or loss in the case of a 
disposition of a share of stock acquired pursuant to the timely exercise 
of a restricted stock option where the option price was between 85 
percent and 95 percent of the fair market value of the stock at the time 
the option was granted, see paragraph (b) of Sec. 1.421-5. See section 
423(c)(1) or 424(c)(1), whichever is applicable, for special rules with 
respect to taxable years ending after December 31, 1963, for determining 
the basis for gain or loss in the case of the disposition of a share of 
stock acquired pursuant to the timely exercise of a stock option 
described in such sections. See section 422(c)(1) for special rules with 
respect to taxable years ending after December 31, 1963, for determining 
the basis for gain or loss in the case of an exercise of a qualified 
stock option.

[[Page 41]]

    (g) Debt instruments issued in exchange for property--(1) In 
general. For purposes of paragraph (a) of this section, if a debt 
instrument is issued in exchange for property, the cost of the property 
that is attributable to the debt instrument is the issue price of the 
debt instrument as determined under Sec. 1.1273-2 or Sec. 1.1274-2, 
whichever is applicable. If, however, the issue price of the debt 
instrument is determined under section 1273(b)(4), the cost of the 
property attributable to the debt instrument is its stated principal 
amount reduced by any unstated interest (as determined under section 
483).
    (2) Certain tax-exempt obligations. This paragraph (g)(2) applies to 
a tax-exempt obligation (as defined in section 1275(a)(3)) that is 
issued in exchange for property and that has an issue price determined 
under Sec. 1.1274-2(j) (concerning tax-exempt contingent payment 
obligations and certain tax-exempt variable rate debt instruments 
subject to section 1274). Notwithstanding paragraph (g)(1) of this 
section, if this paragraph (g)(2) applies to a tax-exempt obligation, 
for purposes of paragraph (a) of this section, the cost of the property 
that is attributable to the obligation is the sum of the present values 
of the noncontingent payments (as determined under Sec. 1.1274-2(c)).
    (3) Effective date. This paragraph (g) applies to sales or exchanges 
that occur on or after August 13, 1996.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960]

    Editorial Note: For Federal Register citations affecting Sec. 
1.1012-1, see the List of CFR Sections Affected in the printed volume, 
26 CFR part 600-end, and on GPO Access.



Sec. 1.1012-2  Transfers in part a sale and in part a gift.

    For rules relating to basis of property acquired in a transfer which 
is in part a gift and in part a sale, see Sec. Sec. 1.170A-4(c), 
1.1011-2(b), and Sec. 1.105-4.

[T.D. 7207, 37 FR 20799, Oct. 5, 1972]



Sec. 1.1013-1  Property included in inventory.

    The basis of property required to be included in inventory is the 
last inventory value of such property in the hands of the taxpayer. The 
requirements with respect to the valuation of an inventory are stated in 
subpart D (section 471 and following), part II, subchapter E, chapter 1 
of the Code, and the regulations thereunder.



Sec. 1.1014-1  Basis of property acquired from a decedent.

    (a) General rule. The purpose of section 1014 is, in general, to 
provide a basis for property acquired from a decedent which is equal to 
the value placed upon such property for purposes of the Federal estate 
tax. Accordingly, the general rule is that the basis of property 
acquired from a decedent is the fair market value of such property at 
the date of the decedent's death, or, if the decedent's executor so 
elects, at the alternate valuation date prescribed in section 2032, or 
in section 811(j) of the Internal Revenue Code of 1939. Property 
acquired from a decedent includes, principally, property acquired by 
bequest, devise, or inheritance, and, in the case of decedents dying 
after December 31, 1953, property required to be included in determining 
the value of the decedent's gross estate under any provision of the 
Internal Revenue Code of 1954 or the Internal Revenue Code of 1939. The 
general rule governing basis of property acquired from a decedent, as 
well as other rules prescribed elsewhere in this section, shall have no 
application if the property is sold, exchanged, or otherwise disposed of 
before the decedent's death by the person who acquired the property from 
the decedent. For general rules on the applicable valuation date where 
the executor of a decedent's estate elects under section 2032, or under 
section 811(j) of the Internal Revenue Code of 1939, to value the 
decedent's gross estate at the alternate valuation date prescribed in 
such sections, see paragraph (e) of Sec. 1.1014-3.
    (b) Scope and application. With certain limitations, the general 
rule described in paragraph (a) of this section is applicable to the 
classes of property described in paragraphs (a) and (b) of Sec. 1.1014-
2, including stock in a DISC or former DISC. In the case of stock in a 
DISC or former DISC, the provisions of this section and Sec. Sec. 
1.1014-2 through 1.1014-8 are applicable, except as provided in Sec. 
1.1014-9. Special basis rules

[[Page 42]]

with respect to the basis of certain other property acquired from a 
decedent are set forth in paragraph (c) of Sec. 1.1014-2. These special 
rules concern certain stock or securities of a foreign personal holding 
company and the surviving spouse's one-half share of community property 
held with a decedent dying after October 21, 1942, and on or before 
December 31, 1947. In this section and Sec. Sec. 1.1014-2 to 1.1014-6, 
inclusive, whenever the words property acquired from a decedent are 
used, they shall also mean property passed from a decedent, and the 
phrase person who acquired it from the decedent shall include the person 
to whom it passed from the decedent.
    (c) Property to which section 1014 does not apply. Section 1014 
shall have no application to the following classes of property:
    (1) Property which constitutes a right to receive an item of income 
in respect of a decedent under section 691; and
    (2) Restricted stock options described in section 421 which the 
employee has not exercised at death if the employee died before January 
1, 1957. In the case of employees dying after December 31, 1956, see 
paragraph (d)(4) of Sec. 1.421-5. In the case of employees dying in a 
taxable year ending after December 31, 1963, see paragraph (c)(4) of 
Sec. 1.421-8 with respect to an option described in part II of 
subchapter D.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6527, 26 FR 
413, Jan. 19, 1961; T.D. 6887, 31 FR 8812, June 24, 1966; T.D. 7283, 38 
FR 20825, Aug. 3, 1973]



Sec. 1.1014-2  Property acquired from a decedent.

    (a) In general. The following property, except where otherwise 
indicated, is considered to have been acquired from a decedent and the 
basis thereof is determined in accordance with the general rule in Sec. 
1.1014-1:
    (1) Without regard to the date of the decedent's death, property 
acquired by bequest, devise, or inheritance, or by the decedent's estate 
from the decedent, whether the property was acquired under the 
decedent's will or under the law governing the descent and distribution 
of the property of decedents. However, see paragraph (c)(1) of this 
section if the property was acquired by bequest or inheritance from a 
decedent dying after August 26, 1937, and if such property consists of 
stock or securities of a foreign personal holding company.
    (2) Without regard to the date of the decedent's death, property 
transferred by the decedent during his lifetime in trust to pay the 
income for life to or on the order or direction of the decedent, with 
the right reserved to the decedent at all times before his death to 
revoke the trust.
    (3) In the case of decedents dying after December 31, 1951, property 
transferred by the decedent during his lifetime in trust to pay the 
income for life to or on the order or direction of the decedent with the 
right reserved to the decedent at all times before his death to make any 
change in the enjoyment thereof through the exercise of a power to 
alter, amend, or terminate the trust.
    (4) Without regard to the date of the decedent's death, property 
passing without full and adequate consideration under a general power of 
appointment exercised by the decedent by will. (See section 2041(b) for 
definition of general power of appointment.)
    (5) In the case of decedents dying after December 31, 1947, property 
which represents the surviving spouse's one-half share of community 
property held by the decedent and the surviving spouse under the 
community property laws of any State, Territory, or possession of the 
United States or any foreign country, if at least one-half of the whole 
of the community interest in that property was includible in determining 
the value of the decedent's gross estate under part III, chapter 11 of 
the Internal Revenue Code of 1954 (relating to the estate tax) or 
section 811 of the Internal Revenue Code of 1939. It is not necessary 
for the application of this subparagraph that an estate tax return be 
required to be filed for the estate of the decedent or that an estate 
tax be payable.
    (6) In the case of decedents dying after December 31, 1950, and 
before January 1, 1954, property which represents the survivor's 
interest in a joint and survivor's annuity if the value of any part of 
that interest was required to be included in determining the value of

[[Page 43]]

the decedent's gross estate under section 811 of the Internal Revenue 
Code of 1939. It is necessary only that the value of a part of the 
survivor's interest in the annuity be includible in the gross estate 
under section 811. It is not necessary for the application of this 
subparagraph that an estate tax return be required to be filed for the 
estate of the decedent or that an estate tax be payable.
    (b) Property acquired from a decedent dying after December 31, 
1953--(1) In general. In addition to the property described in paragraph 
(a) of this section, and except as otherwise provided in subparagraph 
(3) of this paragraph, in the case of a decedent dying after December 
31, 1953, property shall also be considered to have been acquired from 
the decedent to the extent that both of the following conditions are 
met: (i) The property was acquired from the decedent by reason of death, 
form of ownership, or other conditions (including property acquired 
through the exercise or non-exercise of a power of appointment), and 
(ii) the property is includible in the decedent's gross estate under the 
provisions of the Internal Revenue Code of 1954, or the Internal Revenue 
Code of 1939, because of such acquisition. The basis of such property in 
the hands of the person who acquired it from the decedent shall be 
determined in accordance with the general rule in Sec. 1.1014-1. See, 
however, Sec. 1.1014-6 for special adjustments if such property is 
acquired before the death of the decedent. See also subparagraph (3) of 
this paragraph for a description of property not within the scope of 
this paragraph.
    (2) Rules for the application of subparagraph (1) of this paragraph. 
Except as provided in subparagraph (3) of this paragraph, this paragraph 
generally includes all property acquired from a decedent, which is 
includible in the gross estate of the decedent if the decedent died 
after December 31, 1953. It is not necessary for the application of this 
paragraph that an estate tax return be required to be filed for the 
estate of the decedent or that an estate tax be payable. Property 
acquired prior to the death of a decedent which is includible in the 
decedent's gross estate, such as property transferred by a decedent in 
contemplation of death, and property held by a taxpayer and the decedent 
as joint tenants or as tenants by the entireties is within the scope of 
this paragraph. Also, this paragraph includes property acquired through 
the exercise or nonexercise of a power of appointment where such 
property is includible in the decedent's gross estate. It does not 
include property not includible in the decedent's gross estate such as 
property not situated in the United States acquired from a nonresident 
who is not a citizen of the United States.
    (3) Exceptions to application of this paragraph. The rules in this 
paragraph are not applicable to the following property:
    (i) Annuities described in section 72;
    (ii) Stock or securities of a foreign personal holding company as 
described in section 1014(b)(5) (see paragraph (c)(1) of this section);
    (iii) Property described in any paragraph other than paragraph (9) 
of section 1014(b). See paragraphs (a) and (c) of this section.

In illustration of subdivision (ii), assume that A acquired by gift 
stock of a character described in paragraph (c)(1) of this section from 
a donor and upon the death of the donor the stock was includible in the 
donor's estate as being a gift in contemplation of death. A's basis in 
the stock would not be determined by reference to its fair market value 
at the donor's death under the general rule in section 1014(a). 
Furthermore, the special basis rules prescribed in paragraph (c)(1) of 
this section are not applicable to such property acquired by gift in 
contemplation of death. It will be necessary to refer to the rules in 
section 1015(a) to determine the basis.
    (c) Special basis rules with respect to certain property acquired 
from a decedent--(1) Stock or securities of a foreign personal holding 
company. The basis of certain stock or securities of a foreign 
corporation which was a foreign personal holding company with respect to 
its taxable year next preceding the date of the decedent's death is 
governed by a special rule. If such stock was acquired from a decedent 
dying after August 26, 1937, by bequest or inheritance, or by the 
decedent's estate

[[Page 44]]

from the decedent, the basis of the property in the hands of the person 
who so acquired it (notwithstanding any other provision of section 1014) 
shall be the fair market value of such property at the date of the 
decedent's death or the adjusted basis of the stock in the hands of the 
decedent, whichever is lower.
    (2) Spouse's interest in community property of decedent dying after 
October 21, 1942, and on or before December 31, 1947. In the case of a 
decedent dying after October 21, 1942, and on or before December 31, 
1947, a special rule is provided for determining the basis of such part 
of any property, representing the surviving spouse's one-half share of 
property held by the decedent and the surviving spouse under the 
community property laws of any State, Territory, or possession of the 
United States or any foreign country, as was included in determining the 
value of the decedent's gross estate, if a tax under chapter 3 of the 
Internal Revenue Code of 1939 was payable upon the decedent's net 
estate. In such case the basis shall be the fair market value of such 
part of the property at the date of death (or the optional valuation 
elected under section 811(j) of the Internal Revenue Code of 1939) or 
the adjusted basis of the property determined without regard to this 
subparagraph, whichever is the higher.



Sec. 1.1014-3  Other basis rules.

    (a) Fair market value. For purposes of this section and Sec. 
1.1014-1, the value of property as of the date of the decedent's death 
as appraised for the purpose of the Federal estate tax or the alternate 
value as appraised for such purpose, whichever is applicable, shall be 
deemed to be its fair market value. If no estate tax return is required 
to be filed under section 6018 (or under section 821 or 864 of the 
Internal Revenue Code of 1939), the value of the property appraised as 
of the date of the decedent's death for the purpose of State inheritance 
or transmission taxes shall be deemed to be its fair market value and no 
alternate valuation date shall be applicable.
    (b) Property acquired from a decedent dying before March 1, 1913. If 
the decedent died before March 1, 1913, the fair market value on that 
date is taken in lieu of the fair market value on the date of death, but 
only to the same extent and for the same purposes as the fair market 
value on March 1, 1913, is taken under section 1053.
    (c) Reinvestments by a fiduciary. The basis of property acquired 
after the death of the decedent by a fiduciary as an investment is the 
cost or other basis of such property to the fiduciary, and not the fair 
market value of such property at the death of the decedent. For example, 
the executor of an estate purchases stock of X company at a price of 
$100 per share with the proceeds of the sale of property acquired from a 
decedent. At the date of the decedent's death the fair market value of 
such stock was $98 per share. The basis of such stock to the executor or 
to a legatee, assuming the stock is distributed, is $100 per share.
    (d) Reinvestments of property transferred during life. Where 
property is transferred by a decedent during life and the property is 
sold, exchanged, or otherwise disposed of before the decedent's death by 
the person who acquired the property from the decedent, the general rule 
stated in paragraph (a) of Sec. 1.1014-1 shall not apply to such 
property. However, in such a case, the basis of any property acquired by 
such donee in exchange for the original property, or of any property 
acquired by the donee through reinvesting the proceeds of the sale of 
the original property, shall be the fair market value of the property 
thus acquired at the date of the decedent's death (or applicable 
alternate valuation date) if the property thus acquired is properly 
included in the decedent's gross estate for Federal estate tax purposes. 
These rules also apply to property acquired by the donee in any further 
exchanges or in further reinvestments. For example, on January 1, 1956, 
the decedent made a gift of real property to a trust for the benefit of 
his children, reserving to himself the power to revoke the trust at 
will. Prior to the decedent's death, the trustee sold the real property 
and invested the proceeds in stock of the Y company at $50 per share. At 
the time of the decedent's death, the value of such stock was $75 per 
share. The corpus of the trust was required to

[[Page 45]]

be included in the decedent's gross estate owing to his reservation of 
the power of revocation. The basis of the Y company stock following the 
decedent's death is $75 per share. Moreover, if the trustee sold the Y 
Company stock before the decedent's death for $65 a share and reinvested 
the proceeds in Z company stock which increased in value to $85 per 
share at the time of the decedent's death, the basis of the Z company 
stock following the decedent's death would be $85 per share.
    (e) Alternate valuation dates. Section 1014(a) provides a special 
rule applicable in determining the basis of property described in Sec. 
1.1014-2 where--
    (1) The property is includible in the gross estate of a decedent who 
died after October 21, 1942, and
    (2) The executor elects for estate tax purposes under section 2032, 
or section 811(j) of the Internal Revenue Code of 1939, to value the 
decedent's gross estate at the alternate valuation date prescribed in 
such sections.

In those cases, the value applicable in determining the basis of the 
property is not the value at the date of the decedent's death but (with 
certain limitations) the value at the date one year after his death if 
not distributed, sold, exchanged, or otherwise disposed of in the 
meantime. If such property was distributed, sold, exchanged, or 
otherwise disposed of within one year after the date of the decedent's 
death by the person who acquired it from the decedent, the value 
applicable in determining the basis is its value as of the date of such 
distribution, sale, exchange, or other disposition. For illustrations of 
the operation of this paragraph, see the estate tax regulations under 
section 2032.



Sec. 1.1014-4  Uniformity of basis; adjustment to basis.

    (a) In general. (1) The basis of property acquired from a decedent, 
as determined under section 1014(a), is uniform in the hands of every 
person having possession or enjoyment of the property at any time under 
the will or other instrument or under the laws of descent and 
distribution. The principle of uniform basis means that the basis of the 
property (to which proper adjustments must, of course, be made) will be 
the same, or uniform, whether the property is possessed or enjoyed by 
the executor or administrator, the heir, the legatee or devisee, or the 
trustee or beneficiary of a trust created by a will or an inter vivos 
trust. In determining the amount allowed or allowable to a taxpayer in 
computing taxable income as deductions for depreciation or depletion 
under section 1016(a)(2), the uniform basis of the property shall at all 
times be used and adjusted. The sale, exchange, or other disposition by 
a life tenant or remainderman of his interest in property will, for 
purposes of this section, have no effect upon the uniform basis of the 
property in the hands of those who acquired it from the decedent. Thus, 
gain or loss on sale of trust assets by the trustee will be determined 
without regard to the prior sale of any interest in the property. 
Moreover, any adjustment for depreciation shall be made to the uniform 
basis of the property without regard to such prior sale, exchange, or 
other disposition.
    (2) Under the law governing wills and the distribution of the 
property of decedents, all titles to property acquired by bequest, 
devise, or inheritance relate back to the death of the decedent, even 
though the interest of the person taking the title was, at the date of 
death of the decedent, legal, equitable, vested, contingent, general, 
specific, residual, conditional, executory, or otherwise. Accordingly, 
there is a common acquisition date for all titles to property acquired 
from a decedent within the meaning of section 1014, and, for this 
reason, a common or uniform basis for all such interests. For example, 
if distribution of personal property left by a decedent is not made 
until one year after his death, the basis of such property in the hands 
of the legatee is its fair market value at the time when the decedent 
died, and not when the legatee actually received the property. If the 
bequest is of the residue to trustees in trust, and the executors do not 
distribute the residue to such trustees until five years after the death 
of the decedent, the basis of each piece of property left by the 
decedent and thus received, in the hands of the trustees, is its fair 
market value at the

[[Page 46]]

time when the decedent dies. If the bequest is to trustees in trust to 
pay to A during his lifetime the income of the property bequeathed, and 
after his death to distribute such property to the survivors of a class, 
and upon A's death the property is distributed to the taxpayer as the 
sole survivor, the basis of such property, in the hands of the taxpayer, 
is its fair market value at the time when the decedent died. The purpose 
of the Code in prescribing a general uniform basis rule for property 
acquired from a decedent is, on the one hand, to tax the gain, in 
respect of such property, to him who realizes it (without regard to the 
circumstances that at the death of the decedent it may have been quite 
uncertain whether the taxpayer would take or gain anything); and, on the 
other hand, not to recognize as gain any element of value resulting 
solely from the circumstance that the possession or enjoyment of the 
taxpayer was postponed. Such postponement may be, for example, until the 
administration of the decedent's estate is completed, until the period 
of the possession or enjoyment of another has terminated, or until an 
uncertain event has happened. It is the increase or decrease in the 
value of property reflected in a sale or other disposition which is 
recognized as the measure of gain or loss.
    (3) The principles stated in subparagraphs (1) and (2) of this 
paragraph do not apply to property transferred by an executor, 
administrator or trustee, to an heir, legatee, devisee or beneficiary 
under circumstances such that the transfer constitutes a sale or 
exchange. In such a case, gain or loss must be recognized by the 
transferor to the extent required by the revenue laws, and the 
transferee acquires a basis equal to the fair market value of the 
property on the date of the transfer. Thus, for example, if the trustee 
of a trust created by will transfers to a beneficiary, in satisfaction 
of a specific bequest of $10,000, securities which had a fair market 
value of $9,000 on the date of the decedent's death (the applicable 
valuation date) and $10,000 on the date of the transfer, the trust 
realizes a taxable gain of $1,000 and the basis of the securities in the 
hands of the beneficiary would be $10,000. As a further example, if the 
executor of an estate transfers to a trust property worth $200,000, 
which had a fair market value of $175,000 on the date of the decedent's 
death (the applicable valuation date), in satisfaction of the decedent's 
bequest in trust for the benefit of his wife of cash or securities to be 
selected by the executor in an amount sufficient to utilize the marital 
deduction to the maximum extent authorized by law (after taking into 
consideration any other property qualifying for the marital deduction), 
capital gain in the amount of $25,000 would be realized by the estate 
and the basis of the property in the hands of the trustees would be 
$200,000. If, on the other hand, the decedent bequeathed a fraction of 
his residuary estate to a trust for the benefit of his wife, which 
fraction will not change regardless of any fluctuations in value of 
property in the decedent's estate after his death, no gain or loss would 
be realized by the estate upon transfer of property to the trust, and 
the basis of the property in the hands of the trustee would be its fair 
market value on the date of the decedent's death or on the alternate 
valuation date.
    (b) Multiple interests. Where more than one person has an interest 
in property acquired from a decedent, the basis of such property shall 
be determined and adjusted without regard to the multiple interests. The 
basis of computing gain or loss on the sale of any one of such multiple 
interests shall be determined under Sec. 1.1014-5. Thus, the deductions 
for depreciation and for depletion allowed or allowable, under sections 
167 and 611, to a legal life tenant as if the life tenant were the 
absolute owner of the property, constitute an adjustment to the basis of 
the property not only in the hands of the life tenant, but also in the 
hands of the remainderman and every other person to whom the same 
uniform basis is applicable. Similarly, the deductions allowed or 
allowable under sections 167 and 611, both to the trustee and to the 
trust beneficiaries, constitute an adjustment to the basis of the 
property not only in the hands of the trustee, but also in the hands of 
the trust beneficiaries and every other person to whom the uniform basis 
is applicable. See, however, section 262. Similarly,

[[Page 47]]

adjustments in respect of capital expenditures or losses, tax-free 
distributions, or other distributions applicable in reduction of basis, 
or other items for which the basis is adjustable are made without regard 
to which one of the persons to whom the same uniform basis is applicable 
makes the capital expenditures or sustains the capital losses, or to 
whom the tax-free or other distributions are made, or to whom the 
deductions are allowed or allowable. See Sec. 1.1014-6 for adjustments 
in respect of property acquired from a decedent prior to his death.
    (c) Records. The executor or other legal representative of the 
decedent, the fiduciary of a trust under a will, the life tenant and 
every other person to whom a uniform basis under this section is 
applicable, shall maintain records showing in detail all deductions, 
distributions, or other items for which adjustment to basis is required 
to be made by sections 1016 and 1017, and shall furnish to the district 
director such information with respect to those adjustments as he may 
require.



Sec. 1.1014-5  Gain or loss.

    (a) Sale or other disposition of a life interest, remainder 
interest, or other interest in property acquired from a decedent. (1) 
Except as provided in paragraph (b) of this section with respect to the 
sale or other disposition after October 9, 1969, of a term interest in 
property, gain or loss from a sale or other disposition of a life 
interest, remainder interest, or other interest in property acquired 
from a decedent is determined by comparing the amount of the proceeds 
with the amount of that part of the adjusted uniform basis which is 
assignable to the interest so transferred. The adjusted uniform basis is 
the uniform basis of the entire property adjusted to the date of sale or 
other disposition of any such interest as required by sections 1016 and 
1017. The uniform basis is the unadjusted basis of the entire property 
determined immediately after the decedent's death under the applicable 
sections of part II of subchapter O of chapter 1 of the Code.
    (2) Except as provided in paragraph (b) of this section, the proper 
measure of gain or loss resulting from a sale or other disposition of an 
interest in property acquired from a decedent is so much of the increase 
or decrease in the value of the entire property as is reflected in such 
sale or other disposition. Hence, in ascertaining the basis of a life 
interest, remainder interest, or other interest which has been so 
transferred, the uniform basis rule contemplates that proper adjustments 
will be made to reflect the change in relative value of the interests on 
account of the passage of time.
    (3) The factors set forth in the tables contained in Sec. 20.2031-7 
or, for certain prior periods, Sec. 20.2031-7A, of part 20 of this 
chapter (Estate Tax Regulations) shall be used in the manner provided 
therein in determining the basis of the life interest, the remainder 
interest, or the term certain interest in the property on the date such 
interest is sold. The basis of the life interest, the remainder 
interest, or the term certain interest is computed by multiplying the 
uniform basis (adjusted to the time of the sale) by the appropriate 
factor. In the case of the sale of a life interest or a remainder 
interest, the factor used is the factor (adjusted where appropriate) 
which appears in the life interest or the remainder interest column of 
the table opposite the age (on the date of the sale) of the person at 
whose death the life interest will terminate. In the case of the sale of 
a term certain interest, the factor used is the factor (adjusted where 
appropriate) which appears in the term certain column of the table 
opposite the number of years remaining (on the date of sale) before the 
term certain interest will terminate.
    (b) Sale or other disposition of certain term interests. In 
determining gain or loss from the sale or other disposition after 
October 9, 1969, of a term interest in property (as defined in paragraph 
(f)(2) of Sec. 1.1001-1) the adjusted basis of which is determined 
pursuant, or by reference, to section 1014 (relating to the basis of 
property acquired from a decedent) or section 1015 (relating to the 
basis of property acquired by gift or by a transfer in trust), that part 
of the adjusted uniform basis assignable under the rules of paragraph 
(a) of this section to the interest sold or otherwise disposed of shall 
be disregarded to the extent and in the manner provided

[[Page 48]]

by section 1001(e) and paragraph (f) of Sec. 1.1001-1.
    (c) Illustrations. The application of this section may be 
illustrated by the following examples, in which references are made to 
the actuarial tables contained in part 20 of this chapter (Estate Tax 
Regulations):

    Example 1. Securities worth $500,000 at the date of decedent's death 
on January 1, 1971, are bequeathed to his wife, W, for life, with 
remainder over to his son, S. W is 48 years of age when the life 
interest is acquired. The estate does not elect the alternate valuation 
allowed by section 2032. By reference to Sec. 20.2031-7A(c), the life 
estate factor for age 48, female, is found to be 0.77488 and the 
remainder factor for such age is found to be 0.22512. Therefore, the 
present value of the portion of the uniform basis assigned to W's life 
interest is $387,440 ($500,000 x 0.77488), and the present value of the 
portion of the uniform basis assigned to S's remainder interest is 
$112,560 ($500,000 x 0.22512). W sells her life interest to her nephew, 
A, on February 1, 1971, for $370,000, at which time W is still 48 years 
of age. Pursuant to section 1001(e), W realizes no loss; her gain is 
$370,000, the amount realized from the sale. A has a basis of $370,000 
which he can recover by amortization deductions over W's life 
expectancy.
    Example 2. The facts are the same as in example (1) except that W 
retains the life interest for 12 years, until she is 60 years of age, 
and then sells it to A on February 1, 1983, when the fair market value 
of the securities has increased to $650,000. By reference to Sec. 
20.2031-7A(c), the life estate factor for age 60, female, is found to be 
0.63226 and the remainder factor for such age is found to be 0.36774. 
Therefore, the present value on February 1, 1983, of the portion of the 
uniform basis assigned to W's life interest is $316,130 ($500,000 x 
0.63226) and the present value on that date of the portion of the 
uniform basis assigned to S's remainder interest is $183,870 ($500,000 x 
0.36774). W sells her life interest for $410,969, that being the 
commuted value of her remaining life interest in the securities as 
appreciated ($650,000 x 0.63226). Pursuant to section 1001(e), W's gain 
is $410,969, the amount realized. A has a basis of $410,969 which he can 
recover by amortization deductions over W's life expectancy.
    Example 3. Unimproved land having a fair market value of $18,800 at 
the date of the decedent's death on January 1, 1970, is devised to A, a 
male, for life, with remainder over to B, a female. The estate does not 
elect the alternate valuation allowed by section 2032. On January 1, 
1971, A sells his life interest to S for $12,500. S is not related to A 
or B. At the time of the sale, A is 39 years of age. By reference to 
Sec. 20.2031-7A(c), the life estate factor for age 39, male, is found 
to be 0.79854. Therefore, the present value of the portion of the 
uniform basis assigned to A's life interest is $15,012.55 ($18,800 x 
0.79854). This portion is disregarded under section 1001(e). A realizes 
no loss; his gain is $12,500, the amount realized. S has a basis of 
$12,500 which he can recover by amortization deductions over A's life 
expectancy.
    Example 4. The facts are the same as in example (3) except that on 
January 1, 1971, A and B jointly sell the entire property to S for 
$25,000 and divide the proceeds equally between them. A and B are not 
related, and there is no element of gift or compensation in the 
transaction. By reference to Sec. 20.2031-7A(c), the remainder factor 
for age 39, male, is found to be 0.20146. Therefore, the present value 
of the uniform basis assigned to B's remainder interest is $3,787.45 
($18,800 x 0.20146). On the sale A realizes a loss of $2,512.55 
($15,012.55 less $12,500), the portion of the uniform basis assigned to 
his life interest not being disregarded by reason of section 1001(e)(3). 
B's gain on the sale is $8,712.55 ($12,500 less $3,787.45). S has a 
basis in the entire property of $25,000, no part of which, however, can 
be recovered by amortization deductions over A's life expectancy.
    Example 5. (a) Nondepreciable property having a fair market value of 
$54,000 at the date of decedent's death on January 1, 1971, is devised 
to her husband, H, for life and, after his death, to her daughter, D, 
for life, with remainder over to her grandson, G. The estate does not 
elect the alternate valuation allowed by section 2032. On January 1, 
1973, H sells his life interest to D for $32,000. At the date of the 
sale, H is 62 years of age, and D is 45 years of age. By reference to 
Sec. 20.2031-7A(c), the life estate factor for age 62, male, is found 
to be 0.52321. Therefore, the present value on January 1, 1973, of the 
portion of the adjusted uniform basis assigned to H's life interest is 
$28,253 ($54,000 x 0.52321). Pursuant to section 1001(e), H realizes no 
loss; his gain is $32,000, the amount realized from the sale. D has a 
basis of $32,000 which she can recover by amortization deductions over 
H's life expectancy.
    (b) On January 1, 1976, D sells both life estates to G for $40,000. 
During each of the years 1973 through 1975, D is allowed a deduction for 
the amortization of H's life interest. At the date of the sale H is 65 
years of age, and D is 48 years of age. For purposes of determining gain 
or loss on the sale by D, the portion of the adjusted uniform basis 
assigned to H's life interest and the portion assigned to D's life 
interest are not taken into account under section 1001(e). However, 
pursuant to Sec. 1.1001-1(f)(1), D's cost basis in H's life interest, 
minus deductions for the amortization of such interest, is taken into 
account. On the sale, D realizes gain of $40,000 minus an amount which 
is equal to the $32,000 cost basis (for H's life estate) reduced by 
amortization deductions. G is entitled to

[[Page 49]]

amortize over H's life expectancy that part of the $40,000 cost which is 
attributable to H's life interest. That part of the $40,000 cost which 
is attributable to D's life interest is not amortizable by G until H 
dies.
    Example 6. Securities worth $1,000,000 at the date of decedent's 
death on January 1, 1971, are bequeathed to his wife, W, for life, with 
remainder over to his son, S. W is 48 years of age when the life 
interest is acquired. The estate does not elect the alternate valuation 
allowed by section 2032. By reference to Sec. 20.2031-7A(c), the life 
estate factor for age 48, female, is found to be 0.77488, and the 
remainder factor for such age is found to be 0.22512. Therefore, the 
present value of the portion of the uniform basis assigned to W's life 
interest is $774,880 ($1,000,000 x 0.77488), and the present value of 
the portion of the uniform basis assigned to S's remainder interest is 
$225,120 ($1,000,000 x 0.22512). On February 1, 1971, W transfers her 
life interest to corporation X in exchange for all of the stock of X 
pursuant to a transaction in which no gain or loss is recognized by 
reason of section 351. On February 1, 1972, W sells all of her stock in 
X to S for $800,000. Pursuant to section 1001(e) and Sec. 1.1001-
1(f)(2), W realizes no loss; her gain is $800,000, the amount realized 
from the sale. On February 1, 1972, X sells to N for $900,000 the life 
interest transferred to it by W. Pursuant to section 1001(e) and Sec. 
1.1001-1(f)(1), X realizes no loss; its gain is $900,000, the amount 
realized from the sale. N has a basis of $900,000 which he can recover 
by amortization deductions over W's life expectancy.

[T.D. 7142, 36 FR 18951, Sept. 24, 1971, as amended by T.D. 8540, 59 FR 
30102, June 10, 1994]



Sec. 1.1014-6  Special rule for adjustments to basis where property is 
acquired from a decedent prior to his death.

    (a) In general. (1) The basis of property described in section 
1014(b)(9) which is acquired from a decedent prior to his death shall be 
adjusted for depreciation, obsolescence, amortization, and depletion 
allowed the taxpayer on such property for the period prior to the 
decedent's death. Thus, in general, the adjusted basis of such property 
will be its fair market value at the decedent's death, or the applicable 
alternate valuation date, less the amount allowed (determined with 
regard to section 1016(a)(2)(B)) to the taxpayer as deductions for 
exhaustion, wear and tear, obsolescence, amortization, and depletion for 
the period held by the taxpayer prior to the decedent's death. The 
deduction allowed for a taxable year in which the decedent dies shall be 
an amount properly allocable to that part of the year prior to his 
death. For a discussion of the basis adjustment required by section 
1014(b)(9) where property is held in trust, see paragraph (c) of this 
section.
    (2) Where property coming within the purview of subparagraph (1) of 
this paragraph was held by the decedent and his surviving spouse as 
tenants by the entirety or as joint tenants with right of survivorship, 
and joint income tax returns were filed by the decedent and the 
surviving spouse in which the deductions referred to in subparagraph (1) 
were taken, there shall be allocated to the surviving spouse's interest 
in the property that proportion of the deductions allowed for each 
period for which the joint returns were filed which her income from the 
property bears to the total income from the property. Each spouse's 
income from the property shall be determined in accordance with local 
law.
    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. The taxpayer acquired income-producing property by gift 
on January 1, 1954. The property had a fair market value of $50,000 on 
the date of the donor's death, January 1, 1956, and was included in his 
gross estate at that amount for estate tax purposes as a transfer in 
contemplation of death. Depreciation in the amount of $750 per year was 
allowable for each of the taxable years 1954 and 1955. However, the 
taxpayer claimed depreciation in the amount of $500 for each of these 
years (resulting in a reduction in his taxes) and his income tax returns 
were accepted as filed. The adjusted basis of the property as of the 
date of the decedent's death is $49,000 ($50,000, the fair market value 
at the decedent's death, less $1,000, the total of the amounts actually 
allowed as deductions).
    Example 2. On July 1, 1952, H purchased for $30,000 income-producing 
property which he conveyed to himself and W, his wife, as tenants by the 
entirety. Under local law each spouse was entitled to one-half of the 
income therefrom. H died on January 1, 1955, at which time the fair 
market value of the property was $40,000. The entire value of the 
property was included in H's gross estate. H and W filed joint income 
tax returns for the years 1952, 1953, and 1954. The total depreciation 
allowance for the year 1952 was $500 and for each of the other years 
1953 and 1954 was $1,000. One-half of the $2,500 depreciation will

[[Page 50]]

be allocated to W. The adjusted basis of the property in W's hands of 
January 1, 1955, was $38,750 ($40,000, value on the date of H's death, 
less $1,250, depreciation allocated to W for periods before H's death). 
However, if, under local law, all of the income from the property was 
allocable to H, no adjustment under this paragraph would be required and 
W's basis for the property as of the date of H's death would be $40,000.

    (b) Multiple interests in property described in section 1014(b)(9) 
and acquired from a decedent prior to his death. (1) Where more than one 
person has an interest in property described in section 1014(b)(9) which 
was acquired from a decedent before his death, the basis of such 
property and of each of the several interests therein shall, in general, 
be determined and adjusted in accordance with the principles contained 
in Sec. Sec. 1.1014-4 and 1.1014-5, relating to the uniformity of basis 
rule. Application of these principles to the determination of basis 
under section 1014(b)(9) is shown in the remaining subparagraphs of this 
paragraph in connection with certain commonly encountered situations 
involving multiple interests in property acquired from a decedent before 
his death.
    (2) Where property is acquired from a decedent before his death, and 
the entire property is subsequently included in the decedent's gross 
estate for estate tax purposes, the uniform basis of the property, as 
well as the basis of each of the several interests in the property, 
shall be determined by taking into account the basis adjustments 
required by section 1014(a) owing to such inclusion of the entire 
property in the decedent's gross estate. For example, suppose that the 
decedent transfers property in trust, with a life estate to A, and the 
remainder to B or his estate. The transferred property consists of 100 
shares of the common stock of X Corporation, with a basis of $10,000 at 
the time of the transfer. At the time of the decedent's death the value 
of the stock is $20,000. The transfer is held to have been made in 
contemplation of death and the entire value of the trust is included in 
the decedent's gross estate. Under section 1014(a), the uniform basis of 
the property in the hands of the trustee, the life tenant, and the 
remainderman, is $20,000. If immediately prior to the decedent's death, 
A's share of the uniform basis of $10,000 was $6,000, and B's share was 
$4,000, then, immediately after the decedent's death, A's share of the 
uniform basis of $20,000 is $12,000, and B's share is $8,000.
    (3)(i) In cases where, due to the operation of the estate tax, only 
a portion of property acquired from a decedent before his death is 
included in the decedent's gross estate, as in cases where the decedent 
retained a reversion to take effect upon the expiration of a life estate 
in another, the uniform basis of the entire property shall be determined 
by taking into account any basis adjustments required by section 1014(a) 
owing to such inclusion of a portion of the property in the decedent's 
gross estate. In such cases the uniform basis is the adjusted basis of 
the entire property immediately prior to the decedent's death increased 
(or decreased) by an amount which bears the same relation to the total 
appreciation (or diminution) in value of the entire property (over the 
adjusted basis of the entire property immediately prior to the 
decedent's death) as the value of the property included in the 
decedent's gross estate bears to the value of the entire property. For 
example, assume that the decedent creates a trust to pay the income to A 
for life, remainder to B or his estate. The trust instrument further 
provides that if the decedent should survive A, the income shall be paid 
to the decedent for life. Assume that the decedent predeceases A, so 
that, due to the operation of the estate tax, only the present value of 
the remainder interest is included in the decedent's gross estate. The 
trust consists of 100 shares of the common stock of X Corporation with 
an adjusted basis immediately prior to the decedent's death of $10,000 
(as determined under section 1015). At the time of the decedent's death, 
the value of the stock is $20,000, and the value of the remainder 
interest in the hands of B is $8,000. The uniform basis of the entire 
property following the decedent's death is $14,000, computed as follows:

Uniform basis prior to decedent's death.......................   $10,000
                             plus
Increase in uniform basis (determined by the following             4,000
 formula).....................................................

[[Page 51]]

 
[Increase in uniform basis (to be determined)/$10,000 (total
 appreciation)]=
[$8,000 (value of property included in gross estate)/$20,000
 (value of entire property)]
                                                               ---------
Uniform basis under section 1014(a)...........................    14,000
 

    (ii) In cases of the type described in subdivision (i) of this 
subparagraph, the basis of any interest which is included in the 
decedent's gross estate may be ascertained by adding to (or subtracting 
from) the basis of such interest determined immediately prior to the 
decedent's death the increase (or decrease) in the uniform basis of the 
property attributable to the inclusion of the interest in the decedent's 
gross estate. Where the interest is sold or otherwise disposed of at any 
time after the decedent's death, proper adjustment must be made in order 
to reflect the change in value of the interest on account of the passage 
of time, as provided in Sec. 1.1014-5. For an illustration of the 
operation of this subdivision, see step 6 of the example in Sec. 
1.1014-7.
    (iii) In cases of the type described in subdivision (i) of this 
subparagraph (cases where, due to the operation of the estate tax, only 
a portion of the property is included in the decedent's gross estate), 
the basis for computing the depreciation, amortization, or depletion 
allowance shall be the uniform basis of the property determined under 
section 1014(a). However, the manner of taking into account such 
allowance computed with respect to such uniform basis is subject to the 
following limitations:
    (a) In cases where the value of the life interest is not included in 
the decedent's gross estate, the amount of such allowance to the life 
tenant under section 167(h) (or section 611(b)) shall not exceed (or be 
less than) the amount which would have been allowable to the life tenant 
if no portion of the basis of the property was determined under section 
1014(a). Proper adjustment shall be made for the amount allowable to the 
life tenant, as required by section 1016. Thus, an appropriate 
adjustment shall be made to the uniform basis of the property in the 
hands of the trustee, to the basis of the life interest in the hands of 
the life tenant, and to the basis of the remainder in the hands of the 
remainderman.
    (b) Any remaining allowance (that is, the increase in the amount of 
depreciation, amortization, or depletion allowable resulting from any 
increase in the uniform basis of the property under section 1014(a)) 
shall not be allowed to the life tenant. The remaining allowance shall, 
instead, be allowed to the trustee to the extent that the trustee both 
(1) is required or permitted, by the governing trust instrument (or 
under local law), to maintain a reserve for depreciation, amortization, 
or depletion, and (2) actually maintains such a reserve. If, in 
accordance with the preceding sentence, the trustee does maintain such a 
reserve, the remaining allowance shall be taken into account, under 
section 1016, in adjusting the uniform basis of the property in the 
hands of the trustee and in adjusting the basis of the remainder 
interest in the hands of the remainderman, but shall not be taken into 
account, under section 1016, in determining the basis of the life 
interest in the hands of the life tenant. For an example of the 
operation of this subdivision, see paragraph (b) of Sec. 1.1014-7.
    (4) In cases where the basis of any interest in property is not 
determined under section 1014(a), as where such interest (i) is not 
included in the decedent's gross estate, or (ii) is sold, exchanged or 
otherwise disposed of before the decedent's death, the basis of such 
interest shall be determined under other applicable provisions of the 
Code. To illustrate, in the example shown in subparagraph (3)(i) of this 
paragraph the basis of the life estate in the hands of A shall be 
determined under section 1015, relating to the basis of property 
acquired by gift. If, on the other hand, A had sold his life interest 
prior to the decedent's death, the basis of the life estate in the hands 
of A's transferee would be determined under section 1012.
    (c) Adjustments for deductions allowed prior to the decedent's 
death. (1) As stated in paragraph (a) of this section, section 
1014(b)(9) requires a reduction in the uniform basis of property 
acquired from a decedent before his death for certain deductions allowed 
in respect of such property during the decedent's lifetime. In general, 
the amount of the reduction in basis required by section

[[Page 52]]

1014(b)(9) shall be the aggregate of the deductions allowed in respect 
of the property, but shall not include deductions allowed in respect of 
the property to the decedent himself. In cases where, owing to the 
operation of the estate tax, only a part of the value of the entire 
property is included in the decedent's gross estate, the amount of the 
reduction required by section 1014(b)(9) shall be an amount which bears 
the same relation to the total of all deductions (described in paragraph 
(a) of this section) allowed in respect of the property as the value of 
the property included in the decedent's gross estate bears to the value 
of the entire property.
    (2) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. The decedent creates a trust to pay the income to A for 
life, remainder to B or his estate. The property transferred in trust 
consists of an apartment building with a basis of $50,000 at the time of 
the transfer. The decedent dies 2 years after the transfer is made and 
the gift is held to have been made in contemplation of death. 
Depreciation on the property was allowed in the amount of $1,000 
annually. At the time of the decedent's death the value of the property 
is $58,000. The uniform basis of the property in the hands of the 
trustee, the life tenant, and the remainderman, immediately after the 
decedent's death is $56,000 ($58,000, fair market value of the property 
immediately after the decedent's death, reduced by $2,000, deductions 
for depreciation allowed prior to the decedent's death).
    Example 2. The decedent creates a trust to pay the income to A for 
life, remainder to B or his estate. The trust instrument provides that 
if the decedent should survive A, the income shall be paid to the 
decedent for life. The decedent predeceases A and the present value of 
the remainder interest is included in the decedent's gross estate for 
estate tax purposes. The property transferred consists of an apartment 
building with a basis of $110,000 at the time of the transfer. Following 
the creation of the trust and during the balance of the decedent's life, 
deductions for depreciation were allowed on the property in the amount 
of $10,000. At the time of decedent's death the value of the entire 
property is $150,000, and the value of the remainder interest is 
$100,000. Accordingly, the uniform basis of the property in the hands of 
the trustee, the life tenant, and the remainderman, as adjusted under 
section 1014(b)(9), is $126,666, computed as follows:

Uniform basis prior to decedent's death......................   $100,000
                             plus
Increase in uniform basis--before reduction (determined by        33,333
 the following formula)......................................
[Increase in uniform basis (to be determined)/$50,000 (total
 appreciation of property since time of transfer)]=
[$100,000 (value of property included in gross estate)/
 $150,000 (value of entire property)]
                                                              ----------
                             less                                133,333
Deductions allowed prior to decedent's death--taken into           6,667
 account under section 1014(b)(9) (determined by the
 following formula)..........................................
[Prior deductions taken into account (to be determined)
 $10,000 (total deductions allowed prior to decedent's
 death)]=
[$100,000 (value of property included in gross estate)
 $150,000 (value of entire property)]
                                                              ----------
Uniform basis under section 1014.............................    126,666
 


[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6712, 29 FR 
3656, Mar. 24, 1964; T.D. 7142, 36 FR 18952, Sept. 24, 1971]



Sec. 1.1014-7  Example applying rules of Sec. Sec. 1.1014-4 through 
1.1014-6 to case involving multiple interests.

    (a) On January 1, 1950, the decedent creates a trust to pay the 
income to A for life, remainder to B or his estate. The trust instrument 
provides that if the decedent should survive A, the income shall be paid 
to the decedent for life. The decedent, who died on January 1, 1955, 
predeceases A, so that, due to the operation of the estate tax, only the 
present value of the remainder interest is included in the decedent's 
gross estate. The trust consists of an apartment building with a basis 
of $30,000 at the time of transfer. Under the trust instrument the 
trustee is required to maintain a reserve for depreciation. During the 
decedent's lifetime depreciation is allowed in the amount of $800 
annually. At the time of the decedent's death the value of the apartment 
building is $45,000. A, the life tenant, is 43 years of age at the time 
of the decedent's death. Immediately after the decedent's death, the 
uniform basis of the entire property under section 1014(a) is $32,027; 
A's basis for the life interest is $15,553; and B's basis for the 
remainder interest is $16,474, computed as follows:

Step 1. Uniform basis (adjusted) immediately prior to
 decedent's death:
  Basis at time of transfer...................................   $30,000
                             less
  Depreciation allowed under section 1016 before decedent's        4,000
   death ($800 x 5)...........................................
                                                     -----------

[[Page 53]]

 
                                                                  26,000
Step 2. Value of property included in decedent's gross estate:
  0.40180 (remainder factor, age 43) x$45,000 (value of entire   $18,081
   property)..................................................
Step 3. Uniform basis of property under section 1014(a),
 before reduction required by section 1014(b)(9):
  Uniform basis (adjusted) prior to decedent's death..........    26,000
  Increase in uniform basis (determined by the following           7,634
   formula)...................................................
Increase in uniform basis (to be determined) $19,000 (total
 appreciation, $45,000-$26,000)]=
$18,081 (value of property included in gross estate) $45,000
 (value of entire property)]
                                                     -----------
                                                                  33,634
Step 4. Uniform basis reduced as required by section
 1014(b)(9) for deductions allowed prior to death:
  Uniform basis before reduction..............................   $33,634
                             less
  Deductions allowed prior to decedent's death--taken into         1,607
   account under section 1014(b)(9) (determined by the
   following formula).........................................
Prior deductions taken into account (to be determined) $4,000
 (total deductions allowed prior to decedent's death)]=
$18,081 (value of property included in gross estate) $45,000
 (value of entire property)
                                                     -----------
                                                                  32,027
Step 5. A's basis for the life interest at the time of the        15,553
 decedent's death, determined under section 1015: 0.59820
 (life factor, age 43) x $26,000
Step 6. B's basis for the remainder interest, determined under
 section 1014(a): Basis prior to the decedent's death:
  0.40180 (remainder factor, age 43) x $26,000................    10,447
                             plus
  Increase in uniform basis owing to decedent's death:
    Increase in uniform basis.......................    $7,634
                        plus
    Reduction required by section 1014(b)(9)........     1,607
                                                     ----------
                                                      ........     6,027
                                                               ---------
                                                      ........    16,474
 

    (b) Assume the same facts as in paragraph (a) of this section. 
Assume further, that following the decedent's death depreciation is 
allowed in the amount of $1,000 annually. As of January 1, 1964, when 
A's age is 52, the adjusted uniform basis of the entire property is 
$23,027; A's basis for the life interest is $9,323; and B's basis for 
the remainder interest is $13,704, computed as follows:

Step 7. Uniform basis (adjusted) as of January 1, 1964:
  Uniform basis determined under section 1014(a), reduced as     $32,027
   required by section 1014(b)(9).............................
                             less
  Depreciation allowed since decedent's death ($1,000 x 9)....     9,000
                                                               ---------
                                                                  23,027
Step 8. Allocable share of adjustment for depreciation
 allowable in the nine years since the decedent's death:
                         A's interest
  0.49587 (life factor, age 52) x$7,200 ($800, depreciation        3,570
   attributable to uniform basis before increase under section
   1014(a), x9)...............................................
                         B's interest
  0.50413 (remainder factor, age 52) x$7,200 ($800,                3,630
   depreciation attributable to uniform basis before increase
   under section 1014(a), x9).................................
                             plus
  $200 (annual depreciation attributable to increase in            1,800
   uniform basis under section 1014(a)) x9....................
                                                               ---------
                                                                   5,430
Step 9. Tentative bases of A's and B's interests as of January
 1, 1964 (before adjustment for depreciation).
                         A's interest
  0.49587 (life factor, age 52) x$26,000 (adjusted uniform        12,893
   basis immediately before decedent's death).................
                         B's interest
  0.50413 (remainder factor, age 52) x$26,000 (adjusted           13,107
   uniform basis immediately before decedent's death).........
                             plus
  Increase in uniform basis owing to inclusion of remainder in     6,027
   decedent's gross estate....................................
                                                               ---------
                                                                  19,134
Step 10. Bases of A's and B's interests as of January 1, 1964.
                               A
  Tentative basis (Step 9)....................................    12,893
                             less
  Allocable depreciation (Step 8).............................     3,570
                                                               ---------
                                                                   9,323
                               B
  Tentative basis (Step 9)....................................    19,134
                             less
  Allocable depreciation (Step 8).............................     5,430
                                                               ---------
                                                                  13,704
 



Sec. 1.1014-8  Bequest, devise, or inheritance of a remainder interest.

    (a)(1) Where property is transferred for life, with remainder in 
fee, and the remainderman dies before the life tenant, no adjustment is 
made to the uniform basis of the property on the death of the 
remainderman (see paragraph (a) of Sec. 1.1014-4). However, the basis 
of the remainderman's heir, legatee, or devisee for the remainder 
interest is determined by adding to (or subtracting from) the part of 
the adjusted uniform basis assigned to the remainder interest 
(determined in accordance with the principles set forth in Sec. Sec. 
1.1014-4 through 1.1014-6) the difference between--
    (i) The value of the remainder interest included in the 
remainderman's estate, and

[[Page 54]]

    (ii) The basis of the remainder interest immediately prior to the 
remainderman's death.
    (2) The basis of any property distributed to the heir, legatee, or 
devisee upon termination of a trust (or legal life estate) or at any 
other time (unless included in the gross income of the legatee or 
devisee) shall be determined by adding to (or subtracting from) the 
adjusted uniform basis of the property thus distributed the difference 
between--
    (i) The value of the remainder interest in the property included in 
the remainderman's estate, and
    (ii) The basis of the remainder interest in the property immediately 
prior to the remainderman's death.
    (b) The provisions of paragraph (a) of this section are illustrated 
by the following examples:

    Example 1. Assume that, under the will of a decedent, property 
consisting of common stock with a value of $1,000 at the time of the 
decedent's death is transferred in trust, to pay the income to A for 
life, remainder to B or to B's estate. B predeceases A and bequeaths the 
remainder interest to C. Assume that B dies on January 1, 1956, and that 
the value of the stock originally transferred is $1,600 at B's death. 
A's age at that time is 37. The value of the remainder interest included 
in B's estate is $547 (0.34185, remainder factor age 37, x$1,600), and 
hence $547 is C's basis for the remainder interest immediately after B's 
death. Assume that C sells the remainder interest on January 1, 1961, 
when A's age is 42. C's basis for the remainder interest at the time of 
such sale is $596, computed as follows:

Basis of remainder interest computed with respect to uniform        $391
 basis of entire property (0.39131, remainder factor age 42,
 x$1,000, uniform basis of entire property)...................
                        plus
Value of remainder interest included in B's estate..      $547
                        less
Basis of remainder interest immediately prior to B's       342
 death (0.34185, remainder factor age 37, x$1,000)..
                                                        ------       205
                                                               ---------
Basis of C's remainder interest at the time of sale...........       596
 

    Example 2. Assume the same facts as in example (1), except that C 
does not sell the remainder interest. Upon A's death terminating the 
trust, C's basis for the stock distributed to him is computed as 
follows:

Uniform basis of the property, adjusted to date of termination    $1,000
 of the trust.................................................
                        plus
Value of remainder interests in the property at the       $547
 time of B's death..................................
                        less
B's share of uniform basis of the property at the          342
 time of his death..................................
                                                        ------       205
                                                               ---------
C's basis for the stock distributed to him upon the                1,205
 termination of the trust.....................................
 

    Example 3. Assume the same facts as in example (2), except that the 
property transferred is depreciable. Assume further that $100 of 
depreciation was allowed prior to B's death and that $50 of depreciation 
is allowed between the time of B's death and the termination of the 
trust. Upon A's death terminating the trust, C's basis for the property 
distributed to him is computed as follows:

Uniform basis of the property, adjusted to date of
 termination of the trust:
  Uniform basis immediately after decedent's death..    $1,000
  Depreciation allowed following decedent's death...       150
                                                     ----------
                                                      ........      $350
                        plus
Value of remainder interest in the property at the         547
 time of B's death..................................
                        less
B's share of uniform basis of the property at the          308
 time of his death (0.34185x$900, uniform basis at
 B's death).........................................
                                                     ----------
                                                        ------       239
                                                               ---------
C's basis for the property distributed to him upon the             1,089
 termination of the trust.....................................
 

    (c) The rules stated in paragraph (a) of this section do not apply 
where the basis of the remainder interest in the hands of the 
remainderman's transferee is determined by reference to its cost to such 
transferee. See also paragraph (a) of Sec. 1.1014-4. Thus, if, in 
example (1) of paragraph (b) of this section B sold his remainder 
interest to C for $547 in cash, C's basis for the stock distributed to 
him upon the death of A terminating the trust is $547.



Sec. 1.1014-9  Special rule with respect to DISC stock.

    (a) In general. If property consisting of stock of a DISC or former 
DISC (as defined in section 992(a) (1) or (3) as the case may be) is 
considered to have been acquired from a decedent (within the meaning of 
paragraph (a) or (b) of Sec. 1.1014-2), the uniform basis of such stock 
under section 1014, as determined pursuant to Sec. Sec. 1.1014-1 
through 1.1014-8 shall be reduced as provided in this section. Such 
uniform basis shall be reduced by the amount (hereinafter referred to in 
this section as the amount

[[Page 55]]

of reduction), if any, which the decedent would have included in his 
gross income under section 995(c) as a dividend if the decedent had 
lived and sold such stock at its fair market value on the estate tax 
valuation date. If the alternate valuation date for Federal estate tax 
purposes is elected under section 2032, in computing the gain which the 
decedent would have had if he had lived and sold the stock on the 
alternate valuation date, the decedent's basis shall be determined with 
reduction for any distributions with respect to the stock which may have 
been made, after the date of the decedent's death and on or before the 
alternate valuation date, from the DISC's previously taxed income (as 
defined in section 996(f)(2)). For this purpose, the last sentence of 
section 996(e)(2) (relating to reductions of basis of DISC stock) shall 
not apply. For purposes of this section, if the corporation is not a 
DISC or former DISC at the date of the decedent's death but is a DISC 
for a taxable year which begins after such date and on or before the 
alternate valuation date, the corporation will be considered to be a 
DISC or former DISC only if the alternate valuation date is elected. The 
provisions of this paragraph apply with respect to stock of a DISC or 
former DISC which is included in the gross estate of the decedent, 
including but not limited to property which--
    (1) Is acquired from the decedent before his death, and the entire 
property is subsequently included in the decedent's gross estate for 
estate tax purposes, or
    (2) Is acquired property described in paragraph (d) of Sec. 1.1014-
3.
    (b) Portion of property acquired from decedent before his death 
included in decedent's gross estate--(1) In general. In cases where, due 
to the operation of the estate tax, only a portion of property which 
consists of stock of a DISC or former DISC and which is acquired from a 
decedent before his death is included in the decedent's gross estate, 
the uniform basis of such stock under section 1014, as determined 
pursuant to Sec. Sec. 1.1014-1 through 1.1014-8, shall be reduced by an 
amount which bears the same ratio to the amount of reduction which would 
have been determined under paragraph (a) of this section if the entire 
property consisting of such stock were included in the decedent's gross 
estate as the value of such property included in the decedent's gross 
estate bears to the value of the entire property.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example: The decedent creates a trust during his lifetime to pay the 
income to A for life, remainder to B or his estate. The trust instrument 
further provides that if the decedent shall survive A, the income shall 
be paid to the decedent for life. The decedent predeceases A, so that, 
due to the operation of the estate tax, only the present value of the 
remainder interest is included in the decedent's gross estate. The trust 
consists of 100 shares of the stock of X corporation (which is a DISC at 
the time the shares are transferred to the trust and at the time of the 
decedent's death) with an adjusted basis immediately prior to the 
decedent's death of $10,000 (as determined under section 1015). At the 
time of the decedent's death the value of the stock is $20,000, and the 
value of the remainder interest in the hands of B is $8,000. Applying 
the principles of paragraph (b)(3)(i) of Sec. 1.1014-6, the uniform 
basis of the entire property following the decedent's death, prior to 
reduction pursuant to this paragraph, is $14,000. The amount of 
reduction which would have been determined under paragraph (a) of this 
section if the entire property consisting of such stock of X corporation 
were included in the decedent's gross estate is $5,000. The uniform 
basis of the entire property following the decedent's death, as reduced 
pursuant to this paragraph, is $12,000, computed as follows:

Uniform basis under section 1014(a), prior to                    $14,000
 reduction pursuant to this paragraph..............
Less decrease in uniform basis (determined by the                  2,000
 following formula)................................
                                                    --------------------
[Reduction in uniform basis (to be determined)/
 $5,000 (amount of reduction if paragraph (a)
 applied)] =
[$8,000 (value of property included in gross estate/
 $20,000 (value of entire property)]
Uniform basis under section 1014(a) reduced                       12,000
 pursuant to this paragraph........................
 

    (c) Estate tax valuation date. For purposes of section 1014(d) and 
this section, the estate tax valuation date is the date of the 
decedent's death or, in the case of an election under section 2032, the 
applicable valuation date prescribed by that section.
    (d) Examples. The provisions of this section may be illustrated by 
the following examples:


[[Page 56]]


    Example 1. At the date of A's death, his DISC stock has a fair 
market value of $100. The estate does not elect the alternate valuation 
allowed by section 2032, and A's basis in such stock is $60 at the date 
of his death. The person who acquires such stock from the decedent will 
take as a basis for such stock its fair market value at A's death 
($100), reduced by the amount which would have been included in A's 
gross income under section 995(c) as a dividend if A had sold stock on 
the date he died. Thus, if the amount that would have been treated as a 
dividend under section 995(c) were $30, such person will take a basis of 
$70 for such stock ($100, reduced by $30). If such person were 
immediately to sell the DISC stock so received for $100, $30 of the 
proceeds from the sale would be treated as a dividend by such person 
under section 995(c).
    Example 2. Assume the same facts as in example (1) except that the 
estate elects the alternate valuation allowed by section 2032, the DISC 
stock has a fair market value of $140 on the alternate valuation date, 
the amount that would have been treated as a dividend under section 
995(c) in the event of a sale on such date is $50 and the DISC has $20 
of previously taxed income which accrued after the date of the 
decedent's death and before the alternate valuation date. The basis of 
the person who acquires such stock will be $90 determined as follows:

(1) Fair market value of DISC stock at alternate                    $140
 valuation date.......................................
(2) Less: Amount which would have been treated as a                   50
 dividend under section 995(c)........................
                                                       -----------------
(3) Basis of person who acquires DISC stock...........                90
 

    If a distribution of $20 attributable to such previously taxed 
income had been made by the DISC on or before the alternate valuation 
date (with the DISC stock having a fair market value of $120 after such 
distribution), the basis of the person who acquires such stock will be 
$70 determined as follows:

(1) Fair market value of DISC stock at alternate                    $120
 valuation date.......................................
(2) Less: Amount which would have been treated as a                   50
 dividend under section 995(c)........................
                                                       -----------------
(3) Basis of person who acquires DISC stock...........                70
 


[T.D. 7283, 38 FR 20825, Aug. 3, 1973]



Sec. 1.1015-1  Basis of property acquired by gift after December 31, 
1920.

    (a) General rule. (1) In the case of property acquired by gift after 
December 31, 1920 (whether by a transfer in trust or otherwise), the 
basis of the property for the purpose of determining gain is the same as 
it would be in the hands of the donor or the last preceding owner by 
whom it was not acquired by gift. The same rule applies in determining 
loss unless the basis (adjusted for the period prior to the date of gift 
in accordance with sections 1016 and 1017) is greater than the fair 
market value of the property at the time of the gift. In such case, the 
basis for determining loss is the fair market value at the time of the 
gift.
    (2) The provisions of subparagraph (1) of this paragraph may be 
illustrated by the following example.

    Example: A acquires by gift income-producing property which has an 
adjusted basis of $100,000 at the date of gift. The fair market value of 
the property at the date of gift is $90,000. A later sells the property 
for $95,000. In such case there is neither gain nor loss. The basis for 
determining loss is $90,000; therefore, there is no loss. Furthermore, 
there is no gain, since the basis for determining gain is $100,000.

    (3) If the facts necessary to determine the basis of property in the 
hands of the donor or the last preceding owner by whom it was not 
acquired by gift are unknown to the donee, the district director shall, 
if possible, obtain such facts from such donor or last preceding owner, 
or any other person cognizant thereof. If the district director finds it 
impossible to obtain such facts, the basis in the hands of such donor or 
last preceding owner shall be the fair market value of such property as 
found by the district director as of the date or approximate date at 
which, according to the best information the district director is able 
to obtain, such property was acquired by such donor or last preceding 
owner. See paragraph (e) of this section for rules relating to fair 
market value.
    (b) Uniform basis; proportionate parts of. Property acquired by gift 
has a single or uniform basis although more than one person may acquire 
an interest in such property. The uniform basis of the property remains 
fixed subject to proper adjustment for items under sections 1016 and 
1017. However, the value of the proportionate parts of the uniform basis 
represented, for instance, by the respective interests of the life 
tenant and remainderman are adjustable to reflect the change in the 
relative values of such interest on account of the lapse of time. The 
portion

[[Page 57]]

of the basis attributable to an interest at the time of its sale or 
other disposition shall be determined under the rules provided in Sec. 
1.1014-5. In determining gain or loss from the sale or other disposition 
after October 9, 1969, of a term interest in property (as defined in 
Sec. 1.1001-1(f)(2)) the adjusted basis of which is determined 
pursuant, or by reference, to section 1015, that part of the adjusted 
uniform basis assignable under the rules of Sec. 1.1014- 5(a) to the 
interest sold or otherwise disposed of shall be disregarded to the 
extent and in the manner provided by section 1001(e) and Sec. 1.1001-
1(f).
    (c) Time of acquisition. The date that the donee acquires an 
interest in property by gift is when the donor relinquishes dominion 
over the property and not necessarily when title to the property is 
acquired by the donee. Thus, the date that the donee acquires an 
interest in property by gift where he is a successor in interest, such 
as in the case of a remainderman of a life estate or a beneficiary of 
the distribution of the corpus of a trust, is the date such interests 
are created by the donor and not the date the property is actually 
acquired.
    (d) Property acquired by gift from a decedent dying after December 
31, 1953. If an interest in property was acquired by the taxpayer by 
gift from a donor dying after December 31, 1953, under conditions which 
required the inclusion of the property in the donor's gross estate for 
estate tax purposes, and the property had not been sold, exchanged, or 
otherwise disposed of by the taxpayer before the donor's death, see the 
rules prescribed in section 1014 and the regulations thereunder.
    (e) Fair market value. For the purposes of this section, the value 
of property as appraised for the purpose of the Federal gift tax, or, if 
the gift is not subject to such tax, its value as appraised for the 
purpose of a State gift tax, shall be deemed to be the fair market value 
of the property at the time of the gift.
    (f) Reinvestments by fiduciary. If the property is an investment by 
the fiduciary under the terms of the gift (as, for example, in the case 
of a sale by the fiduciary of property transferred under the terms of 
the gift, and the reinvestment of the proceeds), the cost or other basis 
to the fiduciary is taken in lieu of the basis specified in paragraph 
(a) of this section.
    (g) Records. To insure a fair and adequate determination of the 
proper basis under section 1015, persons making or receiving gifts of 
property should preserve and keep accessible a record of the facts 
necessary to determine the cost of the property and, if pertinent, its 
fair market value as of March 1, 1913, or its fair market value as of 
the date of the gift.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6693, 28 FR 
12818, Dec. 3, 1963; T.D. 7142, 36 FR 18952, Sept. 24, 1971]



Sec. 1.1015-2  Transfer of property in trust after December 31, 1920.

    (a) General rule. (1) In the case of property acquired after 
December 31, 1920, by transfer in trust (other than by a transfer in 
trust by a gift, bequest, or devise) the basis of property so acquired 
is the same as it would be in the hands of the grantor increased in the 
amount of gain or decreased in the amount of loss recognized to the 
grantor upon such transfer under the law applicable to the year in which 
the transfer was made. If the taxpayer acquired the property by a 
transfer in trust, this basis applies whether the property be in the 
hands of the trustee, or the beneficiary, and whether acquired prior to 
the termination of the trust and distribution of the property, or 
thereafter.
    (2) The principles stated in paragraph (b) of Sec. 1.1015-1 
concerning the uniform basis are applicable in determining the basis of 
property where more than one person acquires an interest in property by 
transfer in trust after December 31, 1920.
    (b) Reinvestment by fiduciary. If the property is an investment made 
by the fiduciary (as, for example, in the case of a sale by the 
fiduciary of property transferred by the grantor, and the reinvestment 
of the proceeds), the cost or other basis to the fiduciary is taken in 
lieu of the basis specified in paragraph (a) of this section.

[[Page 58]]



Sec. 1.1015-3  Gift or transfer in trust before January 1, 1921.

    (a) In the case of property acquired by gift or transfer in trust 
before January 1, 1921, the basis of such property is the fair market 
value thereof at the time of the gift or at the time of the transfer in 
trust.
    (b) The principles stated in paragraph (b) of Sec. 1.1015-1 
concerning the uniform basis are applicable in determining the basis of 
property where more than one person acquires an interest in property by 
gift or transfer in trust before January 1, 1921. In addition, if an 
interest in such property was acquired from a decedent and the property 
had not been sold, exchanged, or otherwise disposed of before the death 
of the donor, the rules prescribed in section 1014 and the regulations 
thereunder are applicable in determining the basis of such property in 
the hands of the taxpayer.



Sec. 1.1015-4  Transfers in part a gift and in part a sale.

    (a) General rule. Where a transfer of property is in part a sale and 
in part a gift, the unadjusted basis of the property in the hands of the 
transferee is the sum of--
    (1) Whichever of the following is the greater:
    (i) The amount paid by the transferee for the property, or
    (ii) The transferor's adjusted basis for the property at the time of 
the transfer, and
    (2) The amount of increase, if any, in basis authorized by section 
1015(d) for gift tax paid (see Sec. 1.1015-5).

For determining loss, the unadjusted basis of the property in the hands 
of the transferee shall not be greater than the fair market value of the 
property at the time of such transfer. For determination of gain or loss 
of the transferor, see Sec. 1.1001-1(e) and Sec. 1.1011-2. For special 
rule where there has been a charitable contribution of less than a 
taxpayer's entire interest in property, see section 170(e)(2) and Sec. 
1.170A-4(c).
    (b) Examples. The rule of paragraph (a) of this section is 
illustrated by the following examples:

    Example 1. If A transfers property to his son for $30,000, and such 
property at the time of the transfer has an adjusted basis of $30,000 in 
A's hands (and a fair market value of $60,000), the unadjusted basis of 
the property in the hands of the son is $30,000.
    Example 2. If A transfers property to his son for $60,000, and such 
property at the time of transfer has an adjusted basis of $30,000 in A's 
hands (and a fair market value of $90,000), the unadjusted basis of such 
property in the hands of the son is $60,000.
    Example 3. If A transfers property to his son for $30,000, and such 
property at the time of transfer has an adjusted basis in A's hands of 
$60,000 (and a fair market value of $90,000), the unadjusted basis of 
such property in the hands of the son is $60,000.
    Example 4. If A transfers property to his son for $30,000 and such 
property at the time of transfer has an adjusted basis of $90,000 in A's 
hands (and a fair market value of $60,000), the unadjusted basis of the 
property in the hands of the son ins $90,000. However, since the 
adjusted basis of the property in A's hands at the time of the transfer 
was greater than the fair market value at that time, for the purpose of 
determining any loss on a later sale or other disposition of the 
property by the son its unadjusted basis in his hands is $60,000.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6693, 28 FR 
12818, Dec. 3, 1963; T.D. 7207, 37 FR 20799, Oct. 5, 1972]



Sec. 1.1015-5  Increased basis for gift tax paid.

    (a) General rule in the case of gifts made on or before December 31, 
1976. (1)(i) Subject to the conditions and limitations provided in 
section 1015(d), as added by the Technical Amendments Act of 1958, the 
basis (as determined under section 1015(a) and paragraph (a) of Sec. 
1.1015-1) of property acquired by gift is increased by the amount of 
gift tax paid with respect to the gift of such property. Under section 
1015(d)(1)(A), such increase in basis applies to property acquired by 
gift on or after September 2, 1958 (the date of enactment of the 
Technical Amendments Act of 1958). Under section 1015(d)(1)(B), such 
increase in basis applies to property acquired by gift before September 
2, 1958, and not sold, exchanged, or otherwise disposed of before such 
date. If section 1015(d)(1)(A) applies, the basis of the property is 
increased as of the date of the gift regardless of the date of payment 
of the gift tax. For example, if the property was acquired by gift on 
September 8, 1958, and sold by the donee on October 15, 1958, the basis 
of the property would be increased (subject to the limitation of section 
1015(d))

[[Page 59]]

as of September 8, 1958 (the date of the gift), by the amount of gift 
tax applicable to such gift even though such tax was not paid until 
March 1, 1959. If section 1015(d)(1)(B) applies, any increase in the 
basis of the property due to gift tax paid (regardless of date of 
payment) with respect to the gift is made as of September 2, 1958. Any 
increase in basis under section 1015(d) can be no greater than the 
amount by which the fair market value of the property at the time of the 
gift exceeds the basis of such property in the hands of the donor at the 
time of the gift. See paragraph (b) of this section for rules for 
determining the amount of gift tax paid in respect of property 
transferred by gift.
    (ii) With respect to property acquired by gift before September 2, 
1958, the provisions of section 1015(d) and this section do not apply 
if, before such date, the donee has sold, exchanged, or otherwise 
disposed of such property. The phrase sold, exchanged, or otherwise 
disposed of includes the surrender of a stock certificate for corporate 
assets in complete or partial liquidation of a corporation pursuant to 
section 331. It also includes the exchange of property for property of a 
like kind such as the exchange of one apartment house for another. The 
phrase does not, however, extend to transactions which are mere changes 
in form. Thus, it does not include a transfer of assets to a corporation 
in exchange for its stock in a transaction with respect to which no gain 
or loss would be recognizable for income tax purposes under section 351. 
Nor does it include an exchange of stock or securities in a corporation 
for stock or securities in the same corporation or another corporation 
in a transaction such as a merger, recapitalization, reorganization, or 
other transaction described in section 368(a) or 355, with respect to 
which no gain or loss is recognizable for income tax purposes under 
section 354 or 355. If a binding contract for the sale, exchange, or 
other disposition of property is entered into, the property is 
considered as sold, exchanged, or otherwise disposed of on the effective 
date of the contract, unless the contract is not subsequently carried 
out substantially in accordance with its terms. The effective date of a 
contract is normally the date it is entered into (and not the date it is 
consummated, or the date legal title to the property passes) unless the 
contract specifies a different effective date. For purposes of this 
subdivision, in determining whether a transaction comes within the 
phrase sold, exchanged, or otherwise disposed of, if a transaction would 
be treated as a mere change in the form of the property if it occurred 
in a taxable year subject to the Internal Revenue Code of 1954, it will 
be so treated if the transaction occurred in a taxable year subject to 
the Internal Revenue Code of 1939 or prior revenue law.
    (2) Application of the provisions of subparagraph (1) of this 
paragraph may be illustrated by the following examples:

    Example 1. In 1938, A purchased a business building at a cost of 
$120,000. On September 2, 1958, at which time the property had an 
adjusted basis in A's hands of $60,000, he gave the property to his 
nephew, B. At the time of the gift to B, the property had a fair market 
value of $65,000 with respect to which A paid a gift tax in the amount 
of $7,545. The basis of the property in B's hands at the time of the 
gift, as determined under section 1015(a) and Sec. 1.1015-1, would be 
the same as the adjusted basis in A's hands at the time of the gift, or 
$60,000. Under section 1015(d) and this section, the basis of the 
building in B's hands as of the date of the gift would be increased by 
the amount of the gift tax paid with respect to such gift, limited to an 
amount by which the fair market value of the property at the time of the 
gift exceeded the basis of the property in the hands of A at the time of 
gift, or $5,000. Therefore, the basis of the property in B's hands 
immediately after the gift, both for determining gain or loss on the 
sale of the property, would be $65,000.
    Example 2. C purchased property in 1938 at a cost of $100,000. On 
October 1, 1952, at which time the property had an adjusted basis of 
$72,000 in C's hands, he gave the property to his daughter, D. At the 
date of the gift to D, the property had a fair market value of $85,000 
with respect to which C paid a gift tax in the amount of $11,745. On 
September 2, 1958, D still held the property which then had an adjusted 
basis in her hands of $65,000. Since the excess of the fair market value 
of the property at the time of the gift to D over the adjusted basis of 
the property in C's hands at such time is greater than the amount of 
gift tax paid, the basis of the property in D's hands would be increased 
as of September 2, 1958, by the amount of the gift tax paid, or $11,745. 
The adjusted basis of

[[Page 60]]

the property in D's hands, both for determining gain or loss on the sale 
of the property, would then be $76,745 ($65,000 plus $11,745).
    Example 3. On December 31, 1951, E gave to his son, F, 500 shares of 
common stock of the X Corporation which shares had been purchased 
earlier by E at a cost of $100 per share, or a total cost of $50,000. 
The basis in E's hands was still $50,000 on the date of the gift to F. 
On the date of the gift, the fair market value of the 500 shares was 
$80,000 with respect to which E paid a gift tax in the amount of 
$10,695. In 1956, the 500 shares of X Corporation stock were exchanged 
for 500 shares of common stock of the Y Corporation in a reorganization 
with respect to which no gain or loss was recognized for income tax 
purposes under section 354. F still held the 500 shares of Y Corporation 
stock on September 2, 1958. Under such circumstances, the 500 shares of 
X Corporation stock would not, for purposes of section 1015(d) and this 
section, be considered as having been sold, exchanged, or otherwise 
disposed of by F before September 2, 1958. Therefore, the basis of the 
500 shares of Y Corporation stock held by F as of such date would, by 
reason of section 1015(d) and this section, be increased by $10,695, the 
amount of gift tax paid with respect to the gift to F of the X 
Corporation stock.
    Example 4. On November 15, 1953, G gave H property which had a fair 
market value of $53,000 and a basis in the hands of G of $20,000. G paid 
gift tax of $5,250 on the transfer. On November 16, 1956, H gave the 
property to J who still held it on September 2, 1958. The value of the 
property on the date of the gift to J was $63,000 and H paid gift tax of 
$7,125 on the transfer. Since the property was not sold, exchanged, or 
otherwise disposed of by J before September 2, 1958, and the gift tax 
paid on the transfer to J did not exceed $43,000 ($63,000, fair market 
value of property at time of gift to J, less $20,000, basis of property 
in H's hands at that time), the basis of property in his hands is 
increased on September 2, 1958, by $7,125, the amount of gift tax paid 
by H on the transfer. No increase in basis is allowed for the $5,250 
gift tax paid by G on the transfer to H, since H had sold, exchanged, or 
otherwise disposed of the property before September 2, 1958.

    (b) Amount of gift tax paid with respect to gifts made on or before 
December 31, 1976. (1)(i) If only one gift was made during a certain 
calendar period (as defined in Sec. 25.2502-1(c)(1)), the entire amount 
of the gift tax paid under chapter 12 or the corresponding provisions of 
prior revenue laws for that calendar period is the amount of the gift 
tax paid with respect to the gift.
    (ii) If more than one gift was made during a certain calendar 
period, the amount of the gift tax paid under chapter 12 or the 
corresponding provisions of prior revenue laws with respect to any 
specified gift made during that calendar period is an amount, A, which 
bears the same ratio to B (the total gift tax paid for that calendar 
period) as C (the amount of the gift, computed as described in this 
paragraph (b)(1)(ii)) bears to D (the total taxable gifts for the 
calendar period computed without deduction for the gift tax specific 
exemption under section 2521 (as in effect prior to its repeal by the 
Tax Reform Act of 1976) or the corresponding provisions of prior revenue 
laws). Stated algebraically, the amount of the gift tax paid with 
respect to a gift equals:

 [Amount of the gift (C) / Total taxable gifts, plus specific exemption 
                 allowed (D)] x Total gift tax paid (B)

For purposes of the ratio stated in the preceding sentence, the amount 
of the gift referred to as factor ``C'' is the value of the gift reduced 
by any portion excluded or deducted under section 2503(b) (annual 
exclusion), 2522 (charitable deduction), or 2523 (marital deduction) of 
the Code or the corresponding provisions of prior revenue laws. In 
making the computations described in this paragraph, the values to be 
used are those finally determined for purposes of the gift tax.
    (iii) If a gift consists of more than one item of property, the gift 
tax paid with respect to each item shall be computed by allocating to 
each item a proportionate part of the gift tax paid with respect to the 
gift, computed in accordance with the provisions of this paragraph.
    (2) For purposes of this paragraph, it is immaterial whether the 
gift tax is paid by the donor or the donee. Where more than one gift of 
a present interest in property is made to the same donee during a 
calendar period (as defined in Sec. 25.2502-1(c)(1)), the annual 
exclusion shall apply to the earliest of such gifts in point of time.
    (3) Where the donor and his spouse elect under section 2513 or the 
corresponding provisions of prior law to have any gifts made by either 
of them

[[Page 61]]

considered as made one-half by each, the amount of gift tax paid with 
respect to such a gift is the sum of the amounts of tax (computed 
separately) paid with respect to each half of the gift by the donor and 
his spouse.
    (4) The method described in section 1015(d)(2) and this paragraph 
for computing the amount of gift tax paid in respect of a gift may be 
illustrated by the following examples:

    Example 1. Prior to 1959 H made no taxable gifts. On July 1, 1959, 
he made a gift to his wife, W, of land having a value for gift purposes 
of $60,000 and gave to his son, S, certain securities valued at $60,000. 
During the year 1959, H also contributed $5,000 in cash to a charitable 
organization described in section 2522. H filed a timely gift tax return 
for 1959 with respect to which he paid gift tax in the amount of $6,000, 
computed as follows:

Value of land given to W..................  ........   $60,000  ........
Less: Annual exclusion....................    $3,000  ........  ........
Marital deduction.........................    30,000    33,000  ........
                                           --------------------
Included amount of gift...................  ........  ........   $27,000
                                                               =========
Value of securities given to S............  ........    60,000  ........
Less: Annual exclusion....................  ........     3,000  ........
                                                     ----------
Included amount of gift...................  ........  ........    57,000
Gift to charitable organization...........  ........     5,000  ........
Less: Annual exclusion....................     3,000  ........  ........
Charitable deduction......................     2,000     5,000  ........
                                           --------------------
Included amount of gift...................  ........  ........         0
Total included gifts......................  ........  ........    84,000
Less: Specific exemption allowed..........  ........  ........    30,000
                                                               ---------
Taxable gifts for 1959....................  ........  ........    54,000
                                                               =========
Gift tax on $54,000.......................  ........  ........     6,000
 


In determining the gift tax paid with respect to the land given to W, 
amount C of the ratio set forth in subparagraph (1)(ii) of this 
paragraph is $60,000, value of property given to W, less $33,000 (the 
sum of $3,000, the amount excluded under section 2503(b), and $30,000, 
the amount deducted under section 2523), or $27,000. Amount D of the 
ratio is $84,000 (the amount of taxable gifts, $54,000, plus the gift 
tax specific exemption, $30,000). The gift tax paid with respect to the 
land given to W is $1,928.57, computed as follows:

$27,000(C) / $84,000(D) x $6,000(B)

    Example 2. The facts are the same as in example (1) except that H 
made his gifts to W and S on July 1, 1971, and that prior to 1971, H 
made no taxable gifts. Furthermore, H made his charitable contribution 
on August 12, 1971. These were the only gifts made by H during 1971. H 
filed his gift tax return for the third quarter of 1971 on November 15, 
1971, as required by section 6075(b). With respect to the above gifts H 
paid a gift tax in the amount of $6,000 on total taxable gifts of 
$54,000 for the third quarter of 1971. The gift tax paid with respect to 
the land given to W is $1,928.57. The computations for these figures are 
identical to those used in example (1).
    Example 3. On January 15, 1956, A made a gift to his nephew, N, of 
land valued at $86,000, and on June 30, 1956, gave N securities valued 
at $40,000. On July 1, 1956, A gave to his sister, S, $46,000 in cash. A 
and his wife, B, were married during the entire calendar year 1956. The 
amount of A's taxable gifts for prior years was zero although in 
arriving at that amount A had used in full the specific exemption 
authorized by section 2521. B did not make any gifts before 1956. A and 
B elected under section 2513 to have all gifts made by either during 
1956 treated as made one-half by A and one-half by B. Pursuant to that 
election, A and B each filed a gift tax return for 1956. A paid gift tax 
of $11,325 and B paid gift tax of $5,250, computed as follows:

------------------------------------------------------------------------
                                                          A         B
------------------------------------------------------------------------
Value of land given to N............................   $43,000   $43,000
Less: exclusion.....................................     3,000     3,000
                                                     -------------------
    Included amount of gift.........................    40,000    40,000
                                                     ===================
Value of securities given to N......................    20,000    20,000
Less: exclusion.....................................      None      None
                                                     -------------------
    Included amount of gift.........................    20,000    20,000
                                                     ===================
Cash gift to S......................................    23,000    23,000
Less: exclusion.....................................     3,000     3,000
                                                     -------------------
    Included amount of gift.........................    20,000    20,000
                                                     ===================
    Total included gifts............................    80,000    80,000
Less: specific exemption............................      None    30,000
                                                     -------------------
    Taxable gifts for 1956..........................    80,000    50,000
                                                     ===================
Gift tax for 1956...................................    11,325     5,250
------------------------------------------------------------------------


The amount of the gift tax paid by A with respect to the land given to N 
is computed as follows:

$40,000(C) / $80,000(D) x $11,325(B) = $5,662.50

The amount of the gift tax paid by B with respect to the land given to N 
is computed as follows:

$40,000(C) / $80,000(D) x $5,250(B) = $2,625

The amount of the gift tax paid with respect to the land is $5,662.50 
plus $2,625, or $8,287.50. Computed in a similar manner, the amount of 
gift tax paid by A with respect to the securities given to N is 
$2,831.25, and the amount of gift tax paid by B with respect thereto is 
$1,312.50, or a total of $4,143.75.
    Example 4. The facts are the same as in example (3) except that A 
gave the land to N on

[[Page 62]]

January 15, 1972, the securities to N on February 3, 1972, and the cash 
to S on March 7, 1972. As in example (3), the amount of A's taxable 
gifts for taxable years prior to 1972 was zero, although in arriving at 
that amount A had used in full the specific exemption authorized by 
section 2521. B did not make any gifts before 1972. Pursuant to the 
election under section 2513, A and B treated all gifts made by either 
during 1972 as made one-half by A and one-half by B. A and B each filed 
a gift tax return for the first quarter of 1972 on May 15, 1972, as 
required by section 6075(b). A paid gift tax of $11,325 on taxable gifts 
of $80,000 and B paid gift tax of $5,250 on taxable gifts of $50,000. 
The amount of the gift tax paid by A and B with respect to the land 
given to N is $5,662.50 and $2,625, respectively. The computations for 
these figures are identical to those used in example (3).

    (c) Special rule for increased basis for gift tax paid in the case 
of gifts made after December 31, 1976--(1) In general. With respect to 
gifts made after December 31, 1976 (other than gifts between spouses 
described in section 1015(e)), the increase in basis for gift tax paid 
is determined under section 1015(d)(6). Under section 1015(d)(6)(A), the 
increase in basis with respect to gift tax paid is limited to the amount 
(not in excess of the amount of gift tax paid) that bears the same ratio 
to the amount of gift tax paid as the net appreciation in value of the 
gift bears to the amount of the gift.
    (2) Amount of gift. In general, for purposes of section 
1015(d)(6)(A)(ii), the amount of the gift is determined in conformance 
with the provisions of paragraph (b) of this section. Thus, the amount 
of the gift is the amount included with respect to the gift in 
determining (for purposes of section 2503(a)) the total amount of gifts 
made during the calendar year (or calendar quarter in the case of a gift 
made on or before December 31, 1981), reduced by the amount of any 
annual exclusion allowable with respect to the gift under section 
2503(b), and any deductions allowed with respect to the gift under 
section 2522 (relating to the charitable deduction) and section 2523 
(relating to the marital deduction). Where more than one gift of a 
present interest in property is made to the same donee during a calendar 
year, the annual exclusion shall apply to the earliest of such gifts in 
point of time.
    (3) Amount of gift tax paid with respect to the gift. In general, 
for purposes of section 1015(d)(6), the amount of gift tax paid with 
respect to the gift is determined in conformance with the provisions of 
paragraph (b) of this section. Where more than one gift is made by the 
donor in a calendar year (or quarter in the case of gifts made on or 
before December 31, 1981), the amount of gift tax paid with respect to 
any specific gift made during that period is the amount which bears the 
same ratio to the total gift tax paid for that period (determined after 
reduction for any gift tax unified credit available under section 2505) 
as the amount of the gift (computed as described in paragraph (c)(2) of 
this section) bears to the total taxable gifts for the period.
    (4) Qualified domestic trusts. For purposes of section 1015(d)(6), 
in the case of a qualified domestic trust (QDOT) described in section 
2056A(a), any distribution during the noncitizen surviving spouse's 
lifetime with respect to which a tax is imposed under section 
2056A(b)(1)(A) is treated as a transfer by gift, and any estate tax paid 
on the distribution under section 2056A(b)(1)(A) is treated as a gift 
tax. The rules under this paragraph apply in determining the extent to 
which the basis in the assets distributed is increased by the tax 
imposed under section 2056A(b)(1)(A).
    (5) Examples. Application of the provisions of this paragraph (c) 
may be illustrated by the following examples:

    Example 1. (i) Prior to 1995, X exhausts X's gift tax unified credit 
available under section 2505. In 1995, X makes a gift to X's child Y, of 
a parcel of real estate having a fair market value of $100,000. X's 
adjusted basis in the real estate immediately before making the gift was 
$70,000. Also in 1995, X makes a gift to X's child Z, of a painting 
having a fair market value of $70,000. X timely files a gift tax return 
for 1995 and pays gift tax in the amount of $55,500, computed as 
follows:

Value of real estate transferred to Y...........    $100,000  ..........
Less: Annual exclusion..........................      10,000  ..........
                                                 ------------
Included amount of gift (C).....................  ..........     $90,000
Value of painting transferred to Z..............     $70,000  ..........
Less: annual exclusion..........................      10,000  ..........
                                                 ------------
Included amount of gift.........................  ..........      60,000
                                                             -----------
    Total included gifts (D)....................  ..........    $150,000

[[Page 63]]

 
    Total gift tax liability for 1995 gifts (B).  ..........     $55,500
------------------------------------------------------------------------

    (ii) The gift tax paid with respect to the real estate transferred 
to Y, is determined as follows:
[GRAPHIC] [TIFF OMITTED] TR22AU95.005

    (iii)(A) The amount by which Y's basis in the real property is 
increased is determined as follows:
[GRAPHIC] [TIFF OMITTED] TR22AU95.006

    (B) Y's basis in the real property is $70,000 plus $11,100, or 
$81,100. If X had not exhausted any of X's unified credit, no gift tax 
would have been paid and, as a result, Y's basis would not be increased.
    Example 2. (i) X dies in 1995. X's spouse, Y, is not a United States 
citizen. In order to obtain the marital deduction for property passing 
to X's spouse, X established a QDOT in X's will. In 1996, the trustee of 
the QDOT makes a distribution of principal from the QDOT in the form of 
shares of stock having a fair market value of $70,000 on the date of 
distribution. The trustee's basis in the stock (determined under section 
1014) is $50,000. An estate tax is imposed on the distribution under 
section 2056A(b)(1)(A) in the amount $38,500, and is paid. Y's basis in 
the shares of stock is increased by a portion of the section 2056A 
estate tax paid determined as follows:
[GRAPHIC] [TIFF OMITTED] TR22AU95.007

    (ii) Y's basis in the stock is $50,000 plus $11,000, or $61,000.

    (6) Effective date. The provisions of this paragraph (c) are 
effective for gifts made after August 22, 1995.
    (d) Treatment as adjustment to basis. Any increase in basis under 
section 1015(d) and this section shall, for purposes of section 1016(b) 
(relating to adjustments to a substituted basis), be treated as an 
adjustment under section 1016(a) to the basis of the donee's property to 
which such increase applies. See paragraph (p) of Sec. 1.1016-5.

[T.D. 6693, 28 FR 12818, Dec. 3, 1963, as amended by T.D. 7238, 37 FR 
28715, Dec. 29, 1972; T.D. 7910, 48 FR 40372, Sept. 7, 1983; T.D. 8612, 
60 FR 43537, Aug. 22, 1995]



Sec. 1.1016-1  Adjustments to basis; scope of section.

    Section 1016 and Sec. Sec. 1.1016-2 to 1.1016-10, inclusive, 
contain the rules relating to the adjustments to be made to the basis of 
property to determine the adjusted basis as defined in section 1011. 
However, if the property was acquired from a decedent before his death, 
see Sec. 1.1014-6 for adjustments on account of certain deductions 
allowed the taxpayer for the period between the date of acquisition of 
the property and the date of death of the decedent. If an election has 
been made under the Retirement-Straight Line Adjustment Act of 1958 (26 
U.S.C. 1016 note), see Sec. 1.9001-1 for special rules for determining 
adjusted basis in the case of a taxpayer who has changed from the 
retirement to the straight-line method of computing depreciation 
allowances.



Sec. 1.1016-2  Items properly chargeable to capital account.

    (a) The cost or other basis shall be properly adjusted for any 
expenditure, receipt, loss, or other item, properly chargeable to 
capital account, including the cost of improvements and betterments made 
to the property. No adjustment shall be made in respect of any item 
which, under any applicable provision of law or regulation, is treated 
as an item not properly chargeable to capital account but is allowable 
as a deduction in computing net or taxable

[[Page 64]]

income for the taxable year. For example, in the case of oil and gas 
wells no adjustment may be made in respect of any intangible drilling 
and development expense allowable as a deduction in computing net or 
taxable income. See the regulations under section 263(c).
    (b) The application of the foregoing provisions may be illustrated 
by the following example:

    Example: A, who makes his returns on the calendar year basis, 
purchased property in 1941 for $10,000. He subsequently expended $6,000 
for improvements. Disregarding, for the purpose of this example, the 
adjustments required for depreciation, the adjusted basis of the 
property is $16,000. If A sells the property in 1954 for $20,000, the 
amount of his gain will be $4,000.

    (c) Adjustments to basis shall be made for carrying charges such as 
taxes and interest, with respect to property (whether real or personal, 
improved or unimproved, and whether productive or unproductive), which 
the taxpayer elects to treat as chargeable to capital account under 
section 266, rather than as an allowable deduction. The term taxes for 
this purpose includes duties and excise taxes but does not include 
income taxes.
    (d) Expenditures described in section 173 to establish, maintain, or 
increase the circulation of a newspaper, magazine, or other periodical 
are chargeable to capital account only in accordance with and in the 
manner provided in the regulations under section 173.



Sec. 1.1016-3  Exhaustion, wear and tear, obsolescence, amortization, 
and depletion for periods since February 28, 1913.

    (a) In general--(1) Adjustment where deduction is claimed. (i) For 
taxable periods beginning on or after January 1, 1952, the cost or other 
basis of property shall be decreased for exhaustion, wear and tear, 
obsolescence, amortization, and depletion by the greater of the 
following two amounts:
    (a) The amount allowed as deductions in computing taxable income, to 
the extent resulting in a reduction of the taxpayer's income taxes, or
    (b) The amount allowable for the years involved.

See paragraph (b) of this section. Where the taxpayer makes an 
appropriate election the above rule is applicable for periods since 
February 28, 1913, and before January 1, 1952. See paragraph (d) of this 
section. For rule for such periods where no election is made, see 
paragraph (c) of this section.
    (ii) The determination of the amount properly allowable for 
exhaustion, wear and tear, obsolescence, amortization, and depletion 
shall be made on the basis of facts reasonably known to exist at the end 
of the taxable year. A taxpayer is not permitted to take advantage in a 
later year of his prior failure to take any such allowance or his taking 
an allowance plainly inadequate under the known facts in prior years. In 
the case of depreciation, if in prior years the taxpayer has 
consistently taken proper deductions under one method, the amount 
allowable for such prior years shall not be increased even though a 
greater amount would have been allowable under another proper method. 
For rules governing losses on retirement of depreciable property, 
including rules for determining basis, see Sec. 1.167(a)-8. This 
subdivision may be illustrated by the following example:

    Example: An asset was purchased January 1, 1950, at a cost of 
$10,000. The useful life of the asset is 10 years. It has no salvage 
value. Depreciation was deducted and allowed for 1950 to 1954 as 
follows:

1950..........................................................      $500
1951..........................................................  ........
1952..........................................................     1,000
1953..........................................................     1,000
1954..........................................................     1,000
                                                               ---------
    Total amount allowed......................................     3,500
 


The correct reserve as of December 31, 1954, is computed as follows:

December 31:
  1950 ($10,000/10)................................               $1,000
  1951 ($9,000/9)..................................                1,000
  1952 ($8,000/8)..................................                1,000
  1953 ($7,000/7)..................................                1,000
  1954 ($6,000/6)..................................                1,000
                                                    --------------------
    Reserve December 31, 1954......................                5,000
Depreciation for 1955 is computed as follows:
  Cost.............................................               10,000
  Reserve as of December 31, 1954..................                5,000
                                                    --------------------
    Unrecovered cost...............................                5,000
  Depreciation allowable for 1955 ($5,000/5).......                1,000
 

    (2) Adjustment for amount allowable where no depreciation deduction 
claimed.

[[Page 65]]

(i) If the taxpayer has not taken a depreciation deduction either in the 
taxable year or for any prior taxable year, adjustments to basis of the 
property for depreciation allowable shall be determined by using the 
straight-line method of depreciation. (See Sec. 1.1016-4 for 
adjustments in the case of persons exempt from income taxation.)
    (ii) For taxable years beginning after December 31, 1953, and ending 
after August 16, 1954, if the taxpayer with respect to any property has 
taken a deduction for depreciation properly under one of the methods 
provided in section 167(b) for one or more years but has omitted the 
deduction in other years, the adjustment to basis for the depreciation 
allowable in such a case will be the deduction under the method which 
was used by the taxpayer with respect to that property. Thus, if A 
acquired property in 1954 on which he properly computed his depreciation 
deduction under the method described in section 167(b)(2) (the 
declining-balance method) for the first year of its useful life but did 
not take a deduction in the second and third year of the asset's life, 
the adjustment to basis for depreciation allowable for the second and 
third year will be likewise computed under the declining-balance method.
    (3) Adjustment for depletion deductions with respect to taxable 
years before 1932. Where for any taxable year before the taxable year 
1932 the depletion allowance was based on discovery value or a 
percentage of income, then the adjustment for depletion for such year 
shall not exceed a depletion deduction which would have been allowable 
for such year if computed without reference to discovery value or a 
percentage of income.
    (b) Adjustment for periods beginning on or after January 1, 1952. 
The decrease required by paragraph (a) of this section for deductions in 
respect of any period beginning on or after January 1, 1952, shall be 
whichever is the greater of the following amounts:
    (1) The amount allowed as deductions in computing taxable income 
under subtitle A of the Code or prior income tax laws and resulting (by 
reason of the deductions so allowed) in a reduction for any taxable year 
of the taxpayer's taxes under subtitle A of the Code (other than chapter 
2, relating to tax on self-employment income) or prior income, war-
profits, or excess-profits tax laws; or
    (2) The amount properly allowable as deductions in computing taxable 
income under subtitle A of the Code or prior income tax laws (whether or 
not the amount properly allowable would have caused a reduction for any 
taxable year of the taxpayer's taxes).
    (c) Adjustment for periods since February 28, 1913, and before 
January 1, 1952, where no election made. If no election has been 
properly made under section 1020, or under section 113(d) of the 
Internal Revenue Code of 1939 (see paragraph (d) of this section), the 
decrease required by paragraph (a) of this section for deductions in 
respect of any period since February 28, 1913, and before January 1, 
1952, shall be whichever of the following amounts is the greater:
    (1) The amount allowed as deductions in computing net income under 
chapter 1 of the Internal Revenue Code of 1939 or prior income tax laws;
    (2) The amount properly allowable in computing net income under 
chapter 1 of the Internal Revenue Code of 1939 or prior income tax laws.

For the purpose of determining the decrease required by this paragraph, 
it is immaterial whether or not the amount under subparagraph (1) of 
this paragraph or the amount under subparagraph (2) of this paragraph 
would have resulted in a reduction for any taxable year of the 
taxpayer's taxes.
    (d) Adjustment for periods since February 28, 1913, and before 
January 1, 1952, where election made. If an election has been properly 
made under section 1020, or under section 113(d) of the Internal Revenue 
Code of 1939, the decrease required by paragraph (a) of this section for 
deductions in respect of any period since February 28, 1913, and before 
January 1, 1952, shall be whichever is the greater of the following 
amounts:
    (1) The amount allowed as deductions in computing net income under 
chapter 1 of the Internal Revenue Code of 1939 or prior income tax laws 
and resulting (by reason of the deductions so allowed) in a reduction 
for any taxable year of the taxpayer's taxes under such

[[Page 66]]

chapter 1 (other than subchapter E, relating to tax on self-employment 
income), subchapter E, chapter 2, of the Internal Revenue Code of 1939, 
or prior income, war-profits, or excess-profits tax laws;
    (2) The amount properly allowable as deductions in computing net 
income under chapter 1 of the Internal Revenue Code of 1939 or prior 
income tax laws (whether or not the amount properly allowable would have 
caused a reduction for any taxable year of the taxpayer's taxes).
    (e) Determination of amount allowed which reduced taxpayer's taxes. 
(1) As indicated in paragraphs (b) and (d) of this section, there are 
situations in which it is necessary to determine (for the purpose of 
ascertaining the basis adjustment required by paragraph (a) of this 
section) the extent to which the amount allowed as deductions resulted 
in a reduction for any taxable year of the taxpayer's taxes under 
subtitle A (other than chapter 2 relating to tax on self-employment 
income) of the Code, or prior income, war-profits, or excess-profits tax 
laws. This amount (amount allowed which resulted in a reduction of the 
taxpayer's taxes) is hereinafter referred to as the tax-benefit amount 
allowed. For the purpose of determining whether the tax-benefit amount 
allowed exceeded the amount allowable, a determination must be made of 
that portion of the excess of the amount allowed over the amount 
allowable which, if disallowed, would not have resulted in an increase 
in any such tax previously determined. If the entire excess of the 
amount allowed over the amount allowable could be disallowed without any 
such increase in tax, the tax-benefit amount allowed shall not be 
considered to have exceeded the amount allowable. In such a case (if 
paragraph (b) or (d) of this section is applicable) the reduction in 
basis required by paragraph (a) of this section would be the amount 
properly allowable as a deduction. If only part of such excess could be 
disallowed without any such increase in tax, the tax-benefit amount 
allowed shall be considered to exceed the amount allowable to the extent 
of the remainder of such excess. In such a case (if paragraph (b) or (d) 
of this section is applicable), the reduction in basis required by 
paragraph (a) of this section would be the amount of the tax-benefit 
amount allowed.
    (2) For the purpose of determining the tax-benefit amount allowed 
the tax previously determined shall be determined under the principles 
of section 1314. The only adjustments made in determining whether there 
would be an increase in tax shall be those resulting from the 
disallowance of the amount allowed. The taxable years for which the 
determination is made shall be the taxable year for which the deduction 
was allowed and any other taxable year which would be affected by the 
disallowance of such deduction. Examples of such other taxable years are 
taxable years to which there was a carryover or carryback of a net 
operating loss from the taxable year for which the deduction was 
allowed, and taxable years for which a computation under section 111 or 
section 1333 was made by reference to the taxable year for which the 
deduction was allowed. In determining whether the disallowance of any 
part of the deduction would not have resulted in an increase in any tax 
previously determined, proper adjustment must be made for previous 
determinations under section 1311, or section 3801 of the Internal 
Revenue Code of 1939, and for any previous application of section 
1016(a)(2)(B), or section 113(b) (1)(B)(ii) of the Internal Revenue Code 
of 1939.
    (3) If a determination under section 1016(a)(2)(B) must be made with 
respect to several properties for each of which the amount allowed for 
the taxable year exceeded the amount allowable, the tax-benefit amount 
allowed with respect to each of such properties shall be an allocated 
portion of the tax-benefit amount allowed determined by reference to the 
sum of the amounts allowed and the sum of the amounts allowable with 
respect to such several properties.
    (4) In the case of property held by a partnership or trust, the 
computation of the tax-benefit amount allowed shall take into account 
the tax benefit of the partners or beneficiaries, as the case may be, 
from the deduction by the partnership or trust of the amount allowed to 
the partnership or the trust. For this purpose, the determination of

[[Page 67]]

the amount allowed which resulted in a tax benefit to the partners or 
beneficiaries shall be made in the same manner as that provided above 
with respect to the taxes of the person holding the property.
    (5) A taxpayer seeking to limit the adjustment to basis to the tax-
benefit amount allowed for any period, in lieu of the amount allowed, 
must establish the tax-benefit amount allowed. A failure of adequate 
proof as to the tax-benefit amount allowed with respect to one period 
does not preclude the taxpayer from limiting the adjustment to basis to 
the tax-benefit amount allowed with respect to another period for which 
adequate proof is available. For example, a corporate transferee may 
have available adequate records with respect to the tax effect of the 
deduction of erroneous depreciation for certain taxable years, but may 
not have available adequate records with respect to the deduction of 
excessive depreciation for other taxable years during which the property 
was held by its transferor. In such case the corporate transferee shall 
not be denied the right to apply this section with respect to the 
erroneous depreciation for the period for which adequate proof is 
available.
    (f) Determination of amount allowable in prior taxable years. (1) 
One of the factors in determining the adjustment to basis as of any date 
is the amount of depreciation, depletion, etc., allowable for periods 
prior to such date. The amount allowable for such prior periods is 
determined under the law applicable to such prior periods; all 
adjustments required by the law applicable to such periods are made in 
determining the adjusted basis of the property for the purpose of 
determining the amount allowable. Provisions corresponding to the rules 
in section 1016(a)(2)(B) described in paragraphs (d) and (e) of this 
section, which limit adjustments to the tax-benefit amount allowed where 
an election is properly exercised, were first enacted by the Act of July 
14, 1952 (66 Stat. 629). That law provided that corresponding rules are 
deemed to be includible in all revenue laws applicable to taxable years 
ending after December 31, 1931. Accordingly, those rules shall be taken 
into account in determining the amount of depreciation, etc., allowable 
for any taxable year ending after December 31, 1931. For example, if the 
adjusted basis of property held by the taxpayer since January 1, 1930, 
is determined as of January 1, 1955, and if an election was properly 
made under section 1020, or section 113(d) of the Internal Revenue Code 
of 1939, then the amount allowable which is taken into account in 
computing the adjusted basis as of January 1, 1955, shall be determined 
by taking those rules into account for all taxable years ending after 
December 31, 1931. The Act of July 14, 1952, made no change in the law 
applicable in determining the amount allowable for taxable years ending 
before January 1, 1932. If there was a final decision of a court prior 
to the enactment of the Act of July 14, 1952, determining the amount 
allowable for a particular taxable year, such determination shall be 
adjusted. In such case the adjustment shall be made only for the purpose 
of taking the provision of that law into account and only to the extent 
made necessary by such provisions.
    (2) Although the Act of July 14, 1952, amended the law applicable to 
all taxable years ending after December 31, 1931, the amendment does not 
permit refund, credit, or assessment of a deficiency for any taxable 
year for which such refund, credit, or assessment was barred by any law 
or rule of law.
    (g) Property with transferred basis. The following rules apply in 
the determination of the adjustments to basis of property in the hands 
of a transferee, donee, or grantee which are required by section 
1016(b), or section 113(b)(2) of the Internal Revenue Code of 1939, with 
respect to the period the property was held by the transferor, donor, or 
grantor:
    (1) An election or a revocation of an election under section 1020, 
or section 113(d) of the Internal Revenue Code of 1939, by a transferor, 
donor, or grantor, which is made after the date of the transfer, gift, 
or grant of the property shall not affect the basis of such property in 
the hands of the transferee, donee, or grantee. An election or a 
revocation of an election made before the date of the transfer, gift, or 
grant of

[[Page 68]]

the property shall be taken into account in determining under section 
1016(b) the adjustments to basis of such property as of the date of the 
transfer, gift, or grant, whether or not an election or a revocation of 
an election under section 1020, or section 113(d) of the Internal 
Revenue Code of 1939, was made by the transferee, donee, or grantee.
    (2) An election by the transferee, donee, or grantee or a revocation 
of such an election shall be applicable in determining the adjustments 
to basis for the period during which the property was held by the 
transferor, donor, or grantor, whether or not the transferor, donor, or 
grantor had made an election or a revocation of an election, provided 
that the property was held by the transferee, donee, or grantee at any 
time on or before the date on which the election or revocation was made.
    (h) Application to a change in method of accounting. [Reserved]. For 
further guidance, see Sec. 1.1016-3T(h).
    (i) Examples. The application of section 1016(a) (1) and (2) may be 
illustrated by the following examples:

    Example 1. The case of Corporation A discloses the following facts:

The cost or other basis is to be adjusted by $16,500 with respect to the 
years 1952-54, that is, by the amount allowable but not less than the 
amount allowed which reduced the taxpayer's taxes. An adjustment must 
also be made with respect to the years 1949-1951, the amount of such 
adjustment depending upon whether an election was properly made under 
section 1020, or section 113(d) of the Internal Revenue Code of 1939. If 
no such election was made, the amount of the adjustment with respect to 
the years 1949-1951 is $19,500, that is, the amount allowed but not less 
than the amount allowable. If an election was properly made, the amount 
of the adjustment with respect to the years 1949-1951 is $19,000, that 
is, the amount allowable but not less than the amount allowed which 
reduced the taxpayer's taxes.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                          (6)--Amount
                                                                                 (3)--Amount                           (5)--Amount     allowable but not
                                                              (2)--Amount       allowed which       (4)--Amount     allowable but not   less than amount
                        (1)--Year                               allowed            reduced           allowable       less than amount    allowed which
                                                                               taxpayer's taxes                          allowed            reduced
                                                                                                                                        taxpayer's taxes
--------------------------------------------------------------------------------------------------------------------------------------------------------
1949.....................................................             $6,000             $5,500             $5,000             $6,000             $5,500
1950.....................................................              7,000              7,000              6,500              7,000              7,000
1951.....................................................              5,000              4,000              6,500              6,500              6,500
                                                          ----------------------------------------------------------------------------------------------
  Total, 1949-1951.......................................  .................  .................  .................             19,500             19,000
                                                          ==============================================================================================
1952.....................................................              6,500              6,500              6,000  .................              6,500
1953.....................................................              5,000              4,000              4,000  .................              4,000
1954.....................................................              4,500              4,500              6,000  .................              6,000
                                                          ----------------------------------------------------------------------------------------------
  Total, 1952-1954.......................................  .................  .................  .................  .................             16,500
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 2. Corporation A, which files its returns on the basis of a 
calendar year, purchased a building on January 1, 1950, at a cost of 
$100,000. On the basis of the facts reasonably known to exist at the end 
of 1950, a period of 50 years should have been used as the correct 
useful life of the building; nevertheless, depreciation was computed by 
Corporation A on the basis of a useful life of 25 years, and was allowed 
for 1950 through 1953 as a deduction in an annual amount of $4,000. The 
building was sold on January 1, 1954. Corporation A did not make an 
election under section 1020, or section 113(d) of the Internal Revenue 
Code of 1939. No part of the amount allowed Corporation A for any of the 
years 1950 through 1953 resulted in a reduction of Corporation A's 
taxes. The adjusted basis of the building as of January 1, 1954, is 
$88,166, computed as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Adjustments to
                                                              basis as of     Adjusted basis on  Remaining life on     Depreciation       Depreciation
                       Taxable year                           beginning of        January 1          January 1          allowable           allowed
                                                              taxable year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1950.....................................................  .................           $100,000                 50             $2,000             $4,000
1951.....................................................             $4,000             96,000                 49              1,959              4,000
1952.....................................................              8,000             92,000                 48              1,917              4,000
1953.....................................................              9,917             90,083                 47              1,917              4,000

[[Page 69]]

 
1954.....................................................             11,834             88,166  .................  .................  .................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 3. The facts are the same as in example (2), except that 
Corporation A made a proper election under section 1020. In such case, 
the adjusted basis of the building as of January 1, 1954, is $92,000 
computed as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Adjustments to
                                                              basis as of     Adjusted basis on  Remaining life on     Depreciation       Depreciation
                       Taxable year                           beginning of        January 1          January 1          allowable           allowed
                                                              taxable year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1950.....................................................  .................           $100,000                 50             $2,000             $4,000
1951.....................................................             $2,000             98,000                 49              2,000              4,000
1952.....................................................              4,000             96,000                 48              2,000              4,000
1953.....................................................              6,000             94,000                 47              2,000              4,000
1954.....................................................              8,000             92,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 4. If it is assumed that in example (2), or in example (3), 
all of the deduction allowed Corporation A for 1953 had resulted in a 
reduction of A's taxes, the adjustment to the basis of the building for 
depreciation for 1953 would reflect the entire $4,000 deduction. In such 
case, the adjusted basis of the building as of January 1, 1954, would be 
$86,083 in example (2), and $90,000 in example (3).
    Example 5. The facts are the same as in example (2), except that for 
the year 1950 all of the $4,000 amount allowed Corporation A as a 
deduction for depreciation for that year resulted in a reduction of A's 
taxes. In such case, the adjustments to the basis of the building remain 
the same as those set forth in example (2).
    Example 6. The facts are the same as in example (3), except that for 
the year 1950 all of the $4,000 amount allowed Corporation A as a 
deduction for depreciation resulted in a reduction of A's taxes. In such 
case, the adjusted basis of the building as of January 1, 1954, is 
$90,123, computed as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Adjustments to
                                                              basis as of     Adjusted basis on  Remaining life on     Depreciation       Depreciation
                       Taxable year                           beginning of        January 1          January 1          allowable           allowed
                                                              taxable year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1950.....................................................  .................           $100,000                 50             $2,000             $4,000
1951.....................................................             $4,000             96,000                 49              1,959              4,000
1952.....................................................              5,959             94,041                 48              1,959              4,000
1953.....................................................              7,918             92,082                 47              1,959              4,000
1954.....................................................              9,877             90,123
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (j) Effective date. [Reserved]. For further guidance, see Sec. 
1.1016-3T(j)(1) and (2).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 9105, 69 FR 12, Jan. 2, 2004]



Sec. 1.1016-3T  Exhaustion, wear and tear, obsolescence, amortization, 
and depletion for periods since February 28, 1913 (temporary).

    (a) through (g) [Reserved]. For further guidance, see Sec. 1.1016-
3(a) through (g).
    (h) Application to a change in method of accounting. For purposes of 
determining whether a change in depreciation or amortization for 
property subject to section 167, 168, 197, 1400I, 1400L(b), or 1400L(c), 
or to section 168 prior to its amendment by the Tax Reform Act of 1986 
(100 Stat. 2121) (former section 168) is a change in method of 
accounting under section 446(e) and the regulations under section 
446(e), section 1016(a)(2) does not permanently affect a taxpayer's 
lifetime income.
    (i) [Reserved]. For further guidance, see Sec. 1.1016-3(i).
    (j) Effective date--(1) In general. Except as provided in paragraph 
(j)(2) of this section, this section applies on or after December 30, 
2003. For the applicability of regulations before December

[[Page 70]]

30, 2003, see Sec. 1.1016-3 in effect prior to December 30, 2003 (Sec. 
1.1016-3 as contained in 26 CFR part 1 edition revised as of April 1, 
2003).
    (2) Depreciation or amortization changes. Paragraph (h) of this 
section applies to a change in depreciation or amortization for property 
subject to section 167, 168, 197, 1400I, 1400L(b), or 1400L(c), or 
former section 168 for taxable years ending on or after December 30, 
2003.
    (3) The applicability of this section expires on or before December 
29, 2006.

[T.D. 9105, 69 FR 12, Jan. 2, 2004; 69 FR 5273, Feb. 4, 2004]



Sec. 1.1016-4  Exhaustion, wear and tear, obsolescence, amortization, 
and depletion; periods during which income was not subject to tax.

    (a) Adjustments to basis must be made for exhaustion, wear and tear, 
obsolescence, amortization, and depletion to the extent actually 
sustained in respect of:
    (1) Any period before March 1, 1913,
    (2) Any period since February 28, 1913, during which the property 
was held by a person or organization not subject to income taxation 
under chapter 1 of the Code or prior income tax laws,
    (3) Any period since February 28, 1913, and before January 1, 1958, 
during which the property was held by a person subject to tax under part 
I, subchapter L, chapter 1 of the Code, or prior income tax law, to the 
extent that section 1016(a)(2) does not apply, and
    (4) Any period since February 28, 1913, during which such property 
was held by a person subject to tax under part II of subchapter L, 
chapter 1 of the Code, or prior income tax law, to the extent that 
section 1016(a)(2) does not apply.
    (b) The amount of the adjustments described in paragraph (a) of this 
section actually sustained is that amount charged off on the books of 
the taxpayer where such amount is considered by the Commissioner to be 
reasonable. Otherwise, the amount actually sustained will be the amount 
that would have been allowable as a deduction:
    (1) During the period described in paragraph (a) (1) or (2) of this 
section, had the taxpayer been subject to income tax during those 
periods, or
    (2) During the period described in paragraph (a) (3) or (4) of this 
section, with respect to property held by a taxpayer described in that 
paragraph, to the extent that section 1016(a)(2) was inapplicable to 
such property during that period.

In the case of a taxpayer subject to the adjustment required by 
subparagraph (1) or (2) of this paragraph, depreciation shall be 
determined by using the straight line method.

[T.D. 6681, 28 FR 11131, Oct. 17, 1963]



Sec. 1.1016-5  Miscellaneous adjustments to basis.

    (a) Certain stock distributions. (1) In the case of stock, the cost 
or other basis must be diminished by the amount of distributions 
previously made which, under the law applicable to the year in which the 
distribution was made, either were tax free or were applicable in 
reduction of basis (not including distributions made by a corporation 
which was classified as a personal service corporation under the 
provisions of the Revenue Act of 1918 (40 Stat. 1057) or the Revenue Act 
of 1921 (42 Stat. 227), out of its earnings or profits which were 
taxable in accordance with the provisions of section 218 of the Revenue 
Act of 1918 or the Revenue Act of 1921). For adjustments to basis in the 
case of certain corporate distributions, see section 301 and the 
regulations thereunder.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example: A, who makes his returns upon the calendar year basis, 
purchased stock in 1923 for $5,000. He received in 1924 a distribution 
of $2,000 paid out of earnings and profits of the corporation 
accumulated before March 1, 1913. The adjusted basis for determining the 
gain or loss from the sale or other disposition of the stock in 1954 is 
$5,000 less $2,000, or $3,000, and the amount of the gain or loss from 
the sale or other disposition of the stock is the difference between 
$3,000 and the amount realized from the sale or other disposition.

    (b) Amortizable bond premium--(1) In general. A holder's basis in a 
bond is reduced by the amount of bond premium used to offset qualified 
stated interest income under Sec. 1.171-2. This reduction

[[Page 71]]

occurs when the holder takes the qualified stated interest into account 
under the holder's regular method of accounting.
    (2) Special rules for taxable bonds. A holder's basis in a taxable 
bond is reduced by the amount of bond premium allowed as a deduction 
under Sec. 1.171-3(c)(5)(ii) (relating to the issuer's call of a 
taxable bond) or under Sec. 1.171-2(a)(4)(i)(A) (relating to excess 
bond premium).
    (3) Special rule for tax-exempt obligations. A holder's basis in a 
tax-exempt obligation is reduced by the amount of excess bond premium 
that is treated as a nondeductible loss under Sec. 1.171-2(a)(4)(ii).
    (c) Municipal bonds. In the case of a municipal bond (as defined in 
section 75(b)), basis shall be adjusted to the extent provided in 
section 75 or as provided in section 22(o) of the Internal Revenue Code 
of 1939, and the regulations thereunder.
    (d) Sale or exchange of residence. Where the acquisition of a new 
residence results in the nonrecognition of any part of the gain on the 
sale, or exchange, or involuntary conversion of the old residence, the 
basis of the new residence shall be reduced by the amount of the gain 
not so recognized pursuant to section 1034(a), or section 112(n) of the 
Internal Revenue Code of 1939, and the regulations thereunder. See 
section 1034(e) and the regulations thereunder.
    (e) Loans from Commodity Credit Corporation. In the case of property 
pledged to the Commodity Credit Corporation, the basis of such property 
shall be increased by the amount received as a loan from such 
corporation and treated by the taxpayer as income for the year in which 
received under section 77, or under section 123 of the Internal Revenue 
Code of 1939. The basis of such property shall be reduced to the extent 
of any deficiency on such loan with respect to which the taxpayer has 
been relieved from liability.
    (f) Deferred development and exploration expenses. Expenditures for 
development and exploration of mines or mineral deposits treated as 
deferred expenses under sections 615 and 616, or under the corresponding 
provisions of prior income tax laws, are chargeable to capital account 
and shall be an adjustment to the basis of the property to which they 
relate. The basis so adjusted shall be reduced by the amount of such 
expenditures allowed as deductions which results in a reduction for any 
taxable year of the taxpayer's taxes under subtitle A (other than 
chapter 2 relating to tax on self-employment income) of the Code, or 
prior income, war-profits, or excess-profits tax laws, but not less than 
the amounts allowable under such provisions for the taxable year and 
prior years. This amount is considered as the tax-benefit amount allowed 
and shall be determined in accordance with paragraph (e) of Sec. 
1.1016-3. For example, if a taxpayer purchases unexplored and 
undeveloped mining property for $1,000,000 and at the close of the 
development stage has incurred exploration and development costs of 
$9,000,000 treated as deferred expenses, the basis of such property at 
such time for computing gain or loss will be $10,000,000. Assuming that 
the taxpayer in this example has operated the mine for several years and 
has deducted allowable percentage depletion in the amount of $2,000,000 
and has deducted allowable deferred exploration and development 
expenditures of $2,000,000, the basis of the property in the taxpayer's 
hands for purposes of determining gain or loss from a sale will be 
$6,000,000.
    (g) Sale of land with unharvested crop. In the case of an 
unharvested crop which is sold, exchanged, or involuntarily converted 
with the land and which is considered as property used in the trade or 
business under section 1231, the basis of such crop shall be increased 
by the amount of the items which are attributable to the production of 
such crop and which are disallowed, under section 268, as deductions in 
computing taxable income. The basis of any other property shall be 
decreased by the amount of any such items which are attributable to such 
other property, notwithstanding any provisions of section 1016 or of 
this section to the contrary. For example, if the items attributable to 
the production of an unharvested crop consist only of fertilizer costing 
$100 and $50 depreciation on a tractor used only to cultivate such crop, 
and such items are

[[Page 72]]

disallowed under section 268, the adjustments to the basis of such crop 
shall include an increase of $150 for such items and the adjustments to 
the basis of the tractor shall incude a reduction of $50 for 
depreciation.
    (h) Consent dividends. (1) In the case of amounts specified in a 
shareholder's consent to which section 28 of the Internal Revenue Code 
of 1939 applies, the basis of the consent stock shall be increased to 
the extent provided in subsection (h) of such section.
    (2) In the case of amounts specified in a shareholder's consent to 
be treated as a consent dividend to which section 565 applies, the basis 
of the consent stock shall be increased by the amount which, under 
section 565(c)(2), is treated as contributed to the capital of the 
corporation.
    (i) Stock in foreign personal holding company. In the case of the 
stock of a United States shareholder in a foreign personal holding 
company, basis shall be adjusted to the extent provided in section 
551(f) or corresponding provisions of prior income tax laws.
    (j) Research and experimental expenditures. Research and 
experimental expenditures treated as deferred expenses under section 
174(b) are chargeable to capital account and shall be an adjustment to 
the basis of the property to which they relate. The basis so adjusted 
shall be reduced by the amount of such expenditures allowed as 
deductions which results in a reduction for any taxable year of the 
taxpayer's taxes under subtitle A (other than chapter 2 relating to tax 
on self-employment income) of the Code, or prior income, war-profits, or 
excess-profits tax laws, but not less than the amounts allowable under 
such provisions for the taxable year and prior years. This amount is 
considered as the tax-benefit amount allowed and shall be determined in 
accordance with paragraph (e) of Sec. 1.1016-3.
    (k) Deductions disallowed in connection with disposal of coal or 
domestic iron ore. Basis shall be adjusted by the amount of the 
deductions disallowed under section 272 with respect to the disposal of 
coal or domestic iron ore covered by section 631.
    (l) Expenditures attributable to grants or loans covered by section 
621. In the case of expenditures attributable to a grant or loan made to 
a taxpayer by the United States for the encouragement of exploration 
for, or development or mining of, critical and strategic minerals or 
metals, basis shall be adjusted to the extent provided in section 621, 
or in section 22(b)(15) of the Internal Revenue Code of 1939.
    (m) Trademark and trade name expenditures. Trademark and trade name 
expenditures treated as deferred expenses under section 177 are 
chargeable to capital account and shall be an adjustment to the basis of 
the property to which they relate. The basis so adjusted shall be 
reduced by the amount of such expenditures allowed as deductions which 
results in a reduction for any taxable year of the taxpayer's taxes 
under subtitle A (other than chapter 2, relating to tax on self-
employment income) of the Code, but not less than the amounts allowable 
under such section for the taxable year and prior years. This amount is 
considered as the tax-benefit amount allowed and shall be determined in 
accordance with paragraph (e) of Sec. 1.1016-3.
    (n) Life insurance companies. In the case of any evidence of 
indebtedness referred to in section 818(b), the basis shall be adjusted 
to the extent of the adjustments required under section 818(b) (or the 
corresponding provisions of prior income tax laws) for the taxable year 
and all prior taxable years. The basis of any such evidence of 
indebtedness shall be reduced by the amount of the adjustment required 
under section 818(b) (or the corresponding provision of prior income tax 
laws) on account of amortizable premium and shall be increased by the 
amount of the adjustment required under section 818(b) on account of 
accruable discounts.
    (o) Stock and indebtedness of electing small business corporation. 
In the case of a shareholder of an electing small business corporation, 
as defined in section 1371(b), the basis of the shareholder's stock in 
such corporation, and the basis of any indebtedness of such corporation 
owing to the shareholder, shall be adjusted to the extent provided in 
Sec. Sec. 1.1375-4, 1.1376-1, and 1.1376-2.
    (p) Gift tax paid on certain property acquired by gift. Basis shall 
be adjusted by

[[Page 73]]

that amount of the gift tax paid in respect of property acquired by gift 
which, under section 1015(d), is an increase in the basis of such 
property.
    (q) Section 38 property. In the case of property which is or has 
been section 38 property (as defined in section 48(a)), the basis shall 
be adjusted to the extent provided in section 48(g) and in section 
203(a)(2) of the Revenue Act of 1964.
    (r) Stock in controlled foreign corporations and other property. In 
the case of stock in controlled foreign corporations (or foreign 
corporations which were controlled foreign corporations) and of property 
by reason of which a person is considered as owning such stock, the 
basis shall be adjusted to the extent provided in section 961.
    (s) Original issue discount. In the case of certain corporate 
obligations issued at a discount after May 27, 1969, the basis shall be 
increased under section 1232(a)(3)(E) by the amount of original issue 
discount included in the holder's gross income pursuant to section 
1232(a)(3).
    (t) Section 23 credit. In the case of property with respect to which 
a credit has been allowed under section 23 or former section 44C 
(relating to residential energy credit), basis shall be adjusted as 
provided in paragraph (k) of Sec. 1.23-3.
    (u) Gas guzzler tax. In the case of an automobile upon which the gas 
guzzler tax was imposed, the basis shall be reduced as provided in 
section 1016 (d).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960]

    Editorial Note: For Federal Register citations affecting Sec. 
1.1016-5, see the List of CFR Sections Affected in the printed volume, 
26 CFR 600a-end, and on GPO Access.



Sec. 1.1016-6  Other applicable rules.

    (a) Adjustments must always be made to eliminate double deductions 
or their equivalent. Thus, in the case of the stock of a subsidiary 
company, the basis thereof must be properly adjusted for the amount of 
the subsidiary company's losses for the years in which consolidated 
returns were made.
    (b) In determining basis, and adjustments to basis, the principles 
of estoppel apply, as elsewhere under the Code, and prior internal 
revenue laws.



Sec. 1.1016-10  Substituted basis.

    (a) Whenever it appears that the basis of property in the hands of 
the taxpayer is a substituted basis, as defined in section 1016(b), the 
adjustments indicated in Sec. Sec. 1.1016-1 to 1.1016-6, inclusive, 
shall be made after first making in respect of such substituted basis 
proper adjustments of a similar nature in respect of the period during 
which the property was held by the transferor, donor, or grantor, or 
during which the other property was held by the person for whom the 
basis is to be determined. In addition, whenever it appears that the 
basis of property in the hands of the taxpayer is a substituted basis, 
as defined in section 1016(b)(1), the adjustments indicated in 
Sec. Sec. 1.1016-7 to 1.1016-9, inclusive, and in section 1017 shall 
also be made, whenever necessary, after first making in respect of such 
substituted basis a proper adjustment of a similar nature in respect of 
the period during which the property was held by the transferor, donor, 
or grantor. Similar rules shall also be applied in the case of a series 
of substituted bases.
    (b)cation of this section may be illustrated by the following 
example:

    Example: A, who makes his returns upon the calendar year basis, in 
1935 purchased the X Building and subsequently gave it to his son B. B 
exchanged the X Building for the Y Building in a tax-free exchange, and 
then gave the Y Building to his wife C. C, in determining the gain from 
the sale or disposition of the Y Building in 1954, is required to reduce 
the basis of the building by deductions for depreciation which were 
successively allowed (but not less than the amount allowable) to A and B 
upon the X Building and to B upon the Y Building, in addition to the 
deductions for depreciation allowed (but not less than the amount 
allowable) to herself during her ownership of the Y Building.



Sec. 1.1017-1  Basis reductions following a discharge of indebtedness.

    (a) General rule for section 108(b)(2)(E). This paragraph (a) 
applies to basis reductions under section 108(b)(2)(E) that are required 
by section 108(a)(1) (A) or (B) because the taxpayer excluded discharge 
of indebtedness (COD income) from gross income. A taxpayer must reduce 
in the following order, to the extent of the excluded COD income (but 
not below zero), the adjusted bases

[[Page 74]]

of property held on the first day of the taxable year following the 
taxable year that the taxpayer excluded COD income from gross income (in 
proportion to adjusted basis):--
    (1) Real property used in a trade or business or held for 
investment, other than real property described in section 1221(1), that 
secured the discharged indebtedness immediately before the discharge;
    (2) Personal property used in a trade or business or held for 
investment, other than inventory, accounts receivable, and notes 
receivable, that secured the discharged indebtedness immediately before 
the discharge;
    (3) Remaining property used in a trade or business or held for 
investment, other than inventory, accounts receivable, notes receivable, 
and real property described in section 1221(1);
    (4) Inventory, accounts receivable, notes receivable, and real 
property described in section 1221(1); and
    (5) Property not used in a trade or business nor held for 
investment.
    (b) Operating rules--(1) Prior tax-attribute reduction. The amount 
of excluded COD income applied to reduce basis does not include any COD 
income applied to reduce tax attributes under sections 108(b)(2) (A) 
through (D) and, if applicable, section 108(b)(5). For example, if a 
taxpayer excludes $100 of COD income from gross income under section 
108(a) and reduces tax attributes by $40 under sections 108(b)(2) (A) 
through (D), the taxpayer is required to reduce the adjusted bases of 
property by $60 ($100-$40) under section 108(b)(2)(E).
    (2) Multiple discharged indebtednesses. If a taxpayer has COD income 
attributable to more than one discharged indebtedness resulting in the 
reduction of tax attributes under sections 108(b)(2) (A) through (D) 
and, if applicable, section 108(b)(5), paragraph (b)(1) of this section 
must be applied by allocating the tax-attribute reductions among the 
indebtednesses in proportion to the amount of COD income attributable to 
each discharged indebtedness. For example, if a taxpayer excludes $20 of 
COD income attributable to secured indebtedness A and excludes $80 of 
COD income attributable to unsecured indebtedness B (a total exclusion 
of $100), and if the taxpayer reduces tax attributes by $40 under 
sections 108(b)(2) (A) through (D), the taxpayer must reduce the amount 
of COD income attributable to secured indebtedness A to $12 ($20 - ($20 
/ $100 x $40)) and must reduce the amount of COD income attributable to 
unsecured indebtedness B to $48 ($80 - ($80 / $100 x $40)).
    (3) Limitation on basis reductions under section 108(b)(2)(E) in 
bankruptcy or insolvency. If COD income arises from a discharge of 
indebtedness in a title 11 case or while the taxpayer is insolvent, the 
amount of any basis reduction under section 108(b)(2)(E) shall not 
exceed the excess of--
    (i) The aggregate of the adjusted bases of property and the amount 
of money held by the taxpayer immediately after the discharge; over
    (ii) The aggregate of the liabilities of the taxpayer immediately 
after the discharge.
    (4) Transactions to which section 381 applies. If a taxpayer 
realizes COD income that is excluded from gross income under section 
108(a) either during or after a taxable year in which the taxpayer is 
the distributor or transferor of assets in a transaction described in 
section 381(a), the basis of property acquired by the acquiring 
corporation in the transaction must reflect the reductions required by 
section 1017 and this section. For this purpose, the basis of property 
of the distributor or transferor corporation immediately prior to the 
transaction described in section 381(a), but after the determination of 
tax for the year of the distribution or transfer of assets, will be 
available for reduction under section 108(b)(2). However, the basis of 
stock or securities of the acquiring corporation, if any, received by 
the taxpayer in exchange for the transferred assets shall not be 
available for reduction under section 108(b)(2). See Sec. 1.108-7. This 
paragraph (b)(4) applies to discharges of indebtedness occurring on or 
after May 10, 2004.
    (c) Modification of ordering rules for basis reductions under 
sections 108(b)(5) and 108(c)--(1) In general. The ordering rules 
prescribed in paragraph (a) of this section apply, with appropriate 
modifications, to basis reductions under sections 108(b)(5) and (c). 
Thus, a taxpayer

[[Page 75]]

that elects to reduce basis under section 108(b)(5) may, to the extent 
that the election applies, reduce only the adjusted basis of property 
described in paragraphs (a) (1), (2), and (3) of this section and, if an 
election is made under paragraph (f) of this section, paragraph (a) (4) 
of this section. Within paragraphs (a) (1), (2), (3) and (4) of this 
section, such a taxpayer may reduce only the adjusted bases of 
depreciable property. A taxpayer that elects to apply section 108(c) may 
reduce only the adjusted basis of property described in paragraphs (a) 
(1) and (3) of this section and, within paragraphs (a)(1) and (3) of 
this section, may reduce only the adjusted bases of depreciable real 
property. Furthermore, for basis reductions under section 108(c), a 
taxpayer must reduce the adjusted basis of the qualifying real property 
to the extent of the discharged qualified real property business 
indebtedness before reducing the adjusted bases of other depreciable 
real property. The term qualifying real property means real property 
with respect to which the indebtedness is qualified real property 
business indebtedness within the meaning of section 108(c)(3). See 
paragraphs (f) and (g) of this section for elections relating to section 
1221(1) property and partnership interests.
    (2) Partial basis reductions under section 108(b)(5). If the amount 
of basis reductions under section 108(b)(5) is less than the amount of 
the COD income excluded from gross income under section 108(a), the 
taxpayer must reduce the balance of its tax attributes, including any 
remaining adjusted bases of depreciable and other property, by following 
the ordering rules under section 108(b)(2). For example, if a taxpayer 
excludes $100 of COD income from gross income under section 108(a) and 
elects to reduce the adjusted bases of depreciable property by $10 under 
section 108(b)(5), the taxpayer must reduce its remaining tax attributes 
by $90, starting with net operating losses under section 108(b)(2).
    (3) Modification of fresh start rule for prior basis reductions 
under section 108(b)(5). After reducing the adjusted bases of 
depreciable property under section 108(b)(5), a taxpayer must compute 
the limitation on basis reductions under section 1017(b)(2) using the 
aggregate of the remaining adjusted bases of property. For example, if, 
immediately after the discharge of indebtedness in a title 11 case, a 
taxpayer's adjusted bases of property is $100 and its undischarged 
indebtedness is $70, and if the taxpayer elects to reduce the adjusted 
bases of depreciable property by $10 under section 108(b)(5), section 
1017(b)(2) limits any further basis reductions under section 
108(b)(2)(E) to $20 (($100 - $10) - $70).
    (d) Changes in security. If any property is added or eliminated as 
security for an indebtedness during the one-year period preceding the 
discharge of that indebtedness, such addition or elimination shall be 
disregarded where a principal purpose of the change is to affect the 
taxpayer's basis reductions under section 1017.
    (e) Depreciable property. For purposes of this section, the term 
depreciable property means any property of a character subject to the 
allowance for depreciation or amortization, but only if the basis 
reduction would reduce the amount of depreciation or amortization which 
otherwise would be allowable for the period immediately following such 
reduction. Thus, for example, a lessor cannot reduce the basis of leased 
property where the lessee's obligation in respect of the property will 
restore to the lessor the loss due to depreciation during the term of 
the lease, since the lessor cannot take depreciation in respect of such 
property.
    (f) Election to treat section 1221(1) real property as depreciable--
(1) In general. For basis reductions under section 108(b)(5) and basis 
reductions relating to qualified farm indebtedness, a taxpayer may elect 
under sections 1017(b) (3)(E) and (4)(C), respectively, to treat real 
property described in section 1221(1) as depreciable property. This 
election is not available, however, for basis reductions under section 
108(c).
    (2) Time and manner. To make an election under section 1017(b) 
(3)(E) or (4)(C), a taxpayer must enter the appropriate information on 
Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness 
(and Section 1082 Basis Adjustment), and attach the form to a timely 
filed (including extensions) Federal income tax return for the taxable

[[Page 76]]

year in which the taxpayer has COD income that is excluded from gross 
income under section 108(a). An election under this paragraph (f) may be 
revoked only with the consent of the Commissioner.
    (g) Partnerships--(1) Partnership COD income. For purposes of 
paragraph (a) of this section, a taxpayer must treat a distributive 
share of a partnership's COD income as attributable to a discharged 
indebtedness secured by the taxpayer's interest in that partnership.
    (2) Partnership interest treated as depreciable property--(i) In 
general. For purposes of making basis reductions, if a taxpayer makes an 
election under section 108(b)(5) (or 108(c)), the taxpayer must treat a 
partnership interest as depreciable property (or depreciable real 
property) to the extent of the partner's proportionate share of the 
partnership's basis in depreciable property (or depreciable real 
property), provided that the partnership consents to a corresponding 
reduction in the partnership's basis (inside basis) in depreciable 
property (or depreciable real property) with respect to such partner.
    (ii) Request by partner and consent of partnership--(A) In general. 
Except as otherwise provided in this paragraph (g)(2)(ii), a taxpayer 
may choose whether or not to request that a partnership reduce the 
inside basis of its depreciable property (or depreciable real property) 
with respect to the taxpayer, and the partnership may grant or withhold 
such consent, in its sole discretion. A request by the taxpayer must be 
made before the due date (including extensions) for filing the 
taxpayer's Federal income tax return for the taxable year in which the 
taxpayer has COD income that is excluded from gross income under section 
108(a).
    (B) Request for consent required. A taxpayer must request a 
partnership's consent to reduce inside basis if, at the time of the 
discharge, the taxpayer owns (directly or indirectly) a greater than 50 
percent interest in the capital and profits of the partnership, or if 
reductions to the basis of the taxpayer's depreciable property (or 
depreciable real property) are being made with respect to the taxpayer's 
distributive share of COD income of the partnership.
    (C) Granting of request required. A partnership must consent to 
reduce its partners' shares of inside basis with respect to a discharged 
indebtedness if consent is requested with respect to that indebtedness 
by partners owning (directly or indirectly) an aggregate of more than 80 
percent of the capital and profits interests of the partnership or five 
or fewer partners owning (directly or indirectly) an aggregate of more 
than 50 percent of the capital and profits interests of the partnership. 
For example, if there is a cancellation of partnership indebtedness that 
is secured by real property used in a partnership's trade or business, 
and if partners owning (in the aggregate) 90 percent of the capital and 
profits interests of the partnership elect to exclude the COD income 
under section 108(c), the partnership must make the appropriate 
reductions in those partners' shares of inside basis.
    (iii) Partnership consent statement--(A) Partnership requirement. A 
consenting partnership must include with the Form 1065, U.S. Partnership 
Return of Income, for the taxable year following the year that ends with 
or within the taxable year the taxpayer excludes COD income from gross 
income under section 108(a), and must provide to the taxpayer on or 
before the due date of the taxpayer's return (including extensions) for 
the taxable year in which the taxpayer excludes COD income from gross 
income, a statement that--
    (1) Contains the name, address, and taxpayer identification number 
of the partnership; and
    (2) States the amount of the reduction of the partner's 
proportionate interest in the adjusted bases of the partnership's 
depreciable property or depreciable real property, whichever is 
applicable.
    (B) [Reserved]. For further guidance, see Sec. 1.1017-
1T(g)(2)(iii)(B).
    (iv) Partner's share of partnership basis--(A) In general. For 
purposes of this paragraph (g), a partner's proportionate share of the 
partnership's basis in depreciable property (or depreciable real 
property) is equal to the sum of--
    (1) The partner's section 743(b) basis adjustments to items of 
partnership depreciable property (or depreciable real property); and

[[Page 77]]

    (2) The common basis depreciation deductions (but not including 
remedial allocations of depreciation deductions under Sec. 1.704-3(d)) 
that, under the terms of the partnership agreement effective for the 
taxable year in which the discharge of indebtedness occurs, are 
reasonably expected to be allocated to the partner over the property's 
remaining useful life. The assumptions made by a partnership in 
determining the reasonably expected allocation of depreciation 
deductions must be consistent for each partner. For example, a 
partnership may not treat the same depreciation deductions as being 
reasonably expected by more than one partner.
    (B) Effective date. This paragraph (g)(2)(iv) applies to elections 
made under sections 108(b)(5) and 108(c) on or after December 15, 1999.
    (v) Treatment of basis reduction--(A) Basis adjustment. The amount 
of the reduction to the basis of depreciable partnership property 
constitutes an adjustment to the basis of partnership property with 
respect to the partner only. No adjustment is made to the common basis 
of partnership property. Thus, for purposes of income, deduction, gain, 
loss, and distribution, the partner will have a special basis for those 
partnership properties the bases of which are adjusted under section 
1017 and this section.
    (B) Recovery of adjustments to basis of partnership property. 
Adjustments to the basis of partnership property under this section are 
recovered in the manner described in Sec. 1.743-1.
    (C) Effect of basis reduction. Adjustments to the basis of 
partnership property under this section are treated in the same manner 
and have the same effect as an adjustment to the basis of partnership 
property under section 743(b). The following example illustrates this 
paragraph (g)(2)(v):

    Example. (i) A, B, and C are equal partners in partnership PRS, 
which owns (among other things) Asset 1, an item of depreciable property 
with a basis of $30,000. A's basis in its partnership interest is 
$20,000. Under the terms of the partnership agreement, A's share of the 
depreciation deductions from Asset 1 over its remaining useful life will 
be $10,000. Under section 1017, A requests, and PRS agrees, to decrease 
the basis of Asset 1 with respect to A by $10,000.
    (ii) In the year following the reduction of basis under section 
1017, PRS amends its partnership agreement to provide that items of 
depreciation and loss from Asset 1 will be allocated equally between B 
and C. In that year, A's distributive share of the partnership's common 
basis depreciation deductions from Asset 1 is now $0. Under Sec. 1.743-
1(j)(4)(ii)(B), the amount of the section 1017 basis adjustment that A 
recovers during the year is $1,000. A will report $1,000 of ordinary 
income because A's distributive share of the partnership's common basis 
depreciation deductions from Asset 1 ($0) is insufficient to offset the 
amount of the section 1017 basis adjustment recovered by A during the 
year ($1,000).
    (iii) In the following year, PRS sells Asset 1 for $15,000 and 
recognizes a $12,000 loss. This loss is allocated equally between B and 
C, and A's share of the loss is $0. Upon the sale of Asset 1, A recovers 
its entire remaining section 1017 basis adjustment ($9,000). A will 
report $9,000 of ordinary income.

    (D) Effective date. This paragraph (g)(2)(v) applies to elections 
made under sections 108(b)(5) and 108(c) on or after December 15, 1999.
    (3) Partnership basis reduction. The rules of this section 
(including this paragraph (g)) apply in determining the properties to 
which the partnership's basis reductions must be made.
    (h) Special allocation rule for cases to which section 1398 applies. 
If a bankruptcy estate and a taxpayer to whom section 1398 applies 
(concerning only individuals under Chapter 7 or 11 of title 11 of the 
United States Code) hold property subject to basis reduction under 
section 108(b) (2)(E) or (5) on the first day of the taxable year 
following the taxable year of discharge, the bankruptcy estate must 
reduce all of the adjusted bases of its property before the taxpayer is 
required to reduce any adjusted bases of property.
    (i) Effective date. This section applies to discharges of 
indebtedness occurring on or after October 22, 1998.

[T.D. 8787, 63 FR 56563, Oct. 22, 1998, as amended by T.D. 8847, 64 FR 
69921, Dec. 15, 1999; T.D. 9080, 68 FR 42593, July 18, 2003; T.D. 9100, 
68 FR 70705, Dec. 19, 2003; T.D. 9100, 69 FR 5017, Feb. 3, 2004; T.D. 
9127, 69 FR 26039, May 11, 2004]

[[Page 78]]



Sec. 1.1017-1T  Basis reductions following a discharge of indebtedness 
(temporary).

    (a) through (b)(4) [Reserved] For further guidance, see Sec. 
1.1017-1(a) through (b)(4).
    (c) through (g)(2)(iii)(A) [Reserved]. For further guidance, see 
Sec. 1.1017-1(c) through (g)(2)(iii)(A).
    (g)(2)(iii)(B) Taxpayer's requirement. For taxable years beginning 
before January 1, 2003, statements described in Sec. 1.1017-
1(g)(2)(iii)(A) must be attached to a taxpayer's timely filed (including 
extensions) Federal income tax return for the taxable year in which the 
taxpayer has COD income that is excluded from gross income under section 
108(a). For taxable years beginning after December 31, 2002, taxpayers 
must retain the statements and keep them available for inspection in the 
manner required by Sec. 1.6001-1(e), but are not required to attach the 
statements to their returns.
    (g)(2)(iv) through (i) [Reserved]. For further guidance, see Sec. 
1.1017-1(g)(2)(iv) through (i).

[T.D. 9080, 68 FR 42593, July 18, 2003, as amended by T.D. 9100, 68 FR 
70706, Dec. 19, 2003; T.D. 9127, 69 FR 26039, May 11, 2004]



Sec. 1.1018-1  Adjusted basis; exception to section 270 of the 
Bankruptcy Act, as amended.

    The adjustment to basis provided by section 270 of the Bankruptcy 
Act, as amended (11 U.S.C. 670), and by Sec. Sec. 1.1016-7 and 1.1016-8 
shall not be made if, in a proceeding under section 77B of such Act, as 
amended (11 U.S.C. 207; 48 Stat. 912), indebtedness was canceled in 
pursuance of a plan of reorganization which was consummated by 
adjustment of the capital or debt structure of the insolvent 
corporation, and the final judgment or decree in such proceeding was 
entered before September 22, 1938. Section 1018 and this section do not 
apply if the plan of reorganization under such section 77B was 
consummated by the transfer of assets of the insolvent corporation to 
another corporation.



Sec. 1.1019-1  Property on which lessee has made improvements.

    In any case in which a lessee of real property has erected buildings 
or made other improvements upon the leased property and the lease is 
terminated by forfeiture or otherwise resulting in the realization by 
such lessor of income which, were it not for the provisions of section 
109, would be includible in gross income of the lessor, the amount so 
excluded from gross income shall not be taken into account in 
determining the basis or the adjusted basis of such property or any 
portion thereof in the hands of the lessor. If, however, in any taxable 
year beginning before January 1, 1942, there has been included in the 
gross income of the lessor an amount representing any part of the value 
of such property attributable to such buildings or improvements, the 
basis of each portion of such property shall be properly adjusted for 
the amount so included in gross income. For example, A leased in 1930 to 
B for a period of 25 years unimproved real property and in accordance 
with the terms of the lease B erected a building on the property. It was 
estimated that upon expiration of the lease the building would have a 
depreciated value of $50,000, which value the lessor elected to report 
(beginning in 1931) as income over the term of the lease. This method of 
reporting was used until 1942. In 1952 B forfeits the lease. The amount 
of $22,000 reported as income by A during the years 1931 to 1941, 
inclusive, shall be added to the basis of the property represented by 
the improvements in the hands of A. If in such case A did not report 
during the period of the lease any income attributable to the value of 
the building erected by the lessee and the lease was forfeited in 1940 
when the building was worth $75,000, such amount, having been included 
in gross income under the law applicable to that year, is added to the 
basis of the property represented by the improvements in the hands of A. 
As to treatment of such property for the purposes of capital gains and 
losses, see subchapter P (section 1201 and following), chapter 1 of the 
Code.



Sec. 1.1020-1  Election as to amounts allowed in respect of 
depreciation, etc., before 1952.

    (a) In general. (1) Any person may elect to have the adjustments to 
the cost or other basis of property under

[[Page 79]]

section 1016(a)(2) determined in accordance with subparagraph (B) of 
such section by filing a statement of election in accordance with the 
requirements set forth in paragraph (b) of this section. Any election 
made after 1952 shall be irrevocable when made. Any election made after 
1952 shall apply with respect to all property held by the person making 
the election at any time on or before December 31, 1952, and shall apply 
to all periods since February 28, 1913, and before January 1, 1952, 
during which such person held such property or for which adjustments 
must be made under section 1016(b). For rules with respect to an 
election made on or before December 31, 1952, see paragraph (c) of this 
section.
    (2) An election by a partner on his own behalf is not an election 
for the partnership of which he is a member. A separate election must be 
made on behalf of the partnership. (See section 703(b) (relating to 
elections of the partnership).) An election on behalf of the partnership 
applies only with respect to the partnership, and does not apply to the 
separate property of the partners. A similar rule applies with respect 
to elections by trusts and beneficiaries of trusts. These rules also 
apply with respect to a revocation of an election where such election 
was made on or before December 31, 1952.
    (b) Rules applicable to making of election. The following rules are 
applicable to the making of an election under section 1020:
    (1) Form of election. The election shall be in the form of a 
statement in writing, shall state the name and address of the taxpayer 
making the election, and shall contain a statement that such taxpayer 
elects to have the provisions of section 1016(a)(2)(B) apply in respect 
of all periods since February 28, 1913, and before January 1, 1952.
    (2) Signature. The statement shall be signed by the taxpayer making 
the election, if an individual, or, if the taxpayer making the election 
is not an individual, the statement shall be signed by the person or 
persons required to sign the income return of such taxpayer.
    (3) Filing. The statement must be filed on or before December 31, 
1954, in the office of the district director for the internal revenue 
district in which the income tax return for the year of the election is 
required to be filed. For rules as to when timely mailing will be 
treated as timely filing of the statement see section 7502.
    (4) Filing of duplicate. A copy of the statement of election must be 
filed with the first return, amended return, or claim for refund filed 
on or after the date on which the election is made.
    (c) Election made on or before December 31, 1952. An election made 
on or before December 31, 1952, in accordance with the provisions of 
section 113(d) of the Internal Revenue Code of 1939, may be revoked by 
filing on or before December 31, 1954, in the same office in which the 
election was filed, a statement of revocation signed in the same manner 
as the election. Such statement made by any person is irrevocable when 
made with respect to such person, and no new election may thereafter be 
made by such person. A copy of the revocation must be filed with the 
first return, amended return, or claim for refund, filed after the date 
of the revocation. For additional rules with respect to election made on 
or before December 31, 1952, see 26 CFR (1939) 39.113(b)(1)-1 
(Regulations 118).
    (d) Validity of elections or revocation of elections. An election or 
revocation of an election which conforms in substance to the provisions 
of this section will not be deemed invalid solely because it was filed 
before the date on which the regulations in this section were 
promulgated.
    (e) Effect of election. For rules relating to the effect of an 
election under this section, see section 1016(a)(2) and the regulations 
thereunder.



Sec. 1.1021-1  Sale of annuities.

    In the case of a transfer for value of an annuity contract to which 
section 72(g) and paragraph (a) of Sec. 1.72-10 apply, the transferor 
shall adjust his basis in such contract as of the time immediately prior 
to such transfer by subtracting from the premiums or other consideration 
he has paid or is deemed to have paid for such contract all amounts he 
has received or is deemed to have received under such annuity contract 
to the extent that such amounts were not includible in the

[[Page 80]]

gross income of the transferor or other recipient under the applicable 
income tax law. In any case where the amounts which were not includible 
in the gross income of the recipient were received or deemed to have 
been received by such transferor exceed the amounts paid or deemed paid 
by him, the adjusted basis of the contract shall be zero. The income 
realized by the transferor on such a transfer shall not exceed the total 
of the amounts received as consideration for the transfer.

                       Common Nontaxable Exchanges



Sec. 1.1031-0  Table of contents.

    This section lists the captions that appear in the regulations under 
section 1031.

    Sec. 1.1031(a)-1 Property held for productive use in a trade or 
                       business or for investment.

    (a) In general.
    (b) Definition of ``like kind.''
    (c) Examples of exchanges of property of a ``like kind.''
    (d) Examples of exchanges not solely in kind.
    (e) Effective date.

 Sec. 1.1031(a)-2 Additional rules for exchanges of personal property.

    (a) Introduction.
    (b) Depreciable tangible personal property.
    (c) Intangible personal property and nondepreciable personal 
property.

    Sec. 1.1031(b)-1 Receipt of other property or money in tax-free 
                                exchange.

Sec. 1.1031(b)-2 Safe harbor for qualified intermediaries.

                Sec. 1.1031(c)-1 Nonrecognition of loss.

      Sec. 1.1031(d)-1 Property acquired upon a tax-free exchange.

   Sec. 1.1031(d)-1T Coordination of section 1060 with section 1031 
                              (temporary).

        Sec. 1.1031(d)-2 Treatment of assumption of liabilities.

      Sec. 1.1031(e)-1 Exchanges of livestock of different sexes.

           Sec. 1.1031(j)-1 Exchanges of multiple properties.

    (a) Introduction.
    (b) Computation of gain recognized.
    (c) Computation of basis of properties received.
    (d) Examples.
    (e) Effective date.

           Sec. 1.1031(K)-1 Treatment of deferred exchanges.

    (a) Overview.
    (b) Identification and receipt requirements.
    (c) Identification of replacement property before the end of the 
identification period.
    (d) Receipt of identified replacement property.
    (e) Special rules for identification and receipt of replacement 
property to be produced.
    (f) Receipt of money or other property.
    (g) Safe harbors.
    (h) Interest and growth factors.
    (i) [Reserved]
    (j) Determination of gain or loss recognized and the basis of 
property received in a deferred exchange.
    (k) Definition of disqualified person.
    (l) [Reserved]
    (m) Definition of fair market value.
    (n) No inference with respect to actual or constructive receipt 
rules outside of section 1031.
    (o) Effective date.

[T.D. 8346, 56 FR 19937, May 1, 1991]



Sec. 1.1031(a)-1  Property held for productive use in trade or business 
or for investment.

    (a) In general--(1) Exchanges of property solely for property of a 
like kind. Section 1031(a)(1) provides an exception from the general 
rule requiring the recognition of gain or loss upon the sale or exchange 
of property. Under section 1031(a)(1), no gain or loss is recognized if 
property held for productive use in a trade or business or for 
investment is exchanged solely for property of a like kind to be held 
either for productive use in a trade or business or for investment. 
Under section 1031(a)(1), property held for productive use in a trade or 
business may be exchanged for property held for investment. Similarly, 
under section 1031(a)(1), property held for investment may be exchanged 
for property held for productive use in a trade or business. However, 
section 1031(a)(2) provides that section 1031(a)(1) does not apply to 
any exchange of--
    (i) Stock in trade or other property held primarily for sale;
    (ii) Stocks, bonds, or notes;
    (iii) Other securities or evidences of indebtedness or interest;
    (iv) Interests in a partnership;
    (v) Certificates of trust or beneficial interests; or
    (vi) Choses in action.

[[Page 81]]


Section 1031(a)(1) does not apply to any exchange of interests in a 
partnership regardless of whether the interests exchanged are general or 
limited partnership interests or are interests in the same partnership 
or in different partnerships. An interest in a partnership that has in 
effect a valid election under section 761(a) to be excluded from the 
application of all of subchapter K is treated as an interest in each of 
the assets of the partnership and not as an interest in a partnership 
for purposes of section 1031(a)(2)(D) and paragraph (a)(1)(iv) of this 
section. An exchange of an interest in such a partnership does not 
qualify for nonrecognition of gain or loss under section 1031 with 
respect to any asset of the partnership that is described in section 
1031(a)(2) or to the extent the exchange of assets of the partnership 
does not otherwise satisfy the requirements of section 1031(a).
    (2) Exchanges of property not solely for property of a like kind. A 
transfer is not within the provisions of section 1031(a) if, as part of 
the consideration, the taxpayer receives money or property which does 
not meet the requirements of section 1031(a), but the transfer, if 
otherwise qualified, will be within the provisions of either section 
1031 (b) or (c). Similarly, a transfer is not within the provisions of 
section 1031(a) if, as part of the consideration, the other party to the 
exchange assumes a liability of the taxpayer (or acquires property from 
the taxpayer that is subject to a liability), but the transfer, if 
otherwise qualified, will be within the provisions of either section 
1031 (b) or (c). A transfer of property meeting the requirements of 
section 1031(a) may be within the provisions of section 1031(a) even 
though the taxpayer transfers in addition property not meeting the 
requirements of section 1031(a) or money. However, the nonrecognition 
treatment provided by section 1031(a) does not apply to the property 
transferred which does not meet the requirements of section 1031(a).
    (b) Definition of ``like kind.'' As used in section 1031(a), the 
words like kind have reference to the nature or character of the 
property and not to its grade or quality. One kind or class of property 
may not, under that section, be exchanged for property of a different 
kind or class. The fact that any real estate involved is improved or 
unimproved is not material, for that fact relates only to the grade or 
quality of the property and not to its kind or class. Unproductive real 
estate held by one other than a dealer for future use or future 
realization of the increment in value is held for investment and not 
primarily for sale. For additional rules for exchanges of personal 
property, see Sec. 1.1031 (a)-2.
    (c) Examples of exchanges of property of a ``like kind.'' No gain or 
loss is recognized if (1) a taxpayer exchanges property held for 
productive use in his trade or business, together with cash, for other 
property of like kind for the same use, such as a truck for a new truck 
or a passenger automobile for a new passenger automobile to be used for 
a like purpose; or (2) a taxpayer who is not a dealer in real estate 
exchanges city real estate for a ranch or farm, or exchanges a leasehold 
of a fee with 30 years or more to run for real estate, or exchanges 
improved real estate for unimproved real estate; or (3) a taxpayer 
exchanges investment property and cash for investment property of a like 
kind.
    (d) Examples of exchanges not solely in kind. Gain or loss is 
recognized if, for instance, a taxpayer exchanges (1) Treasury bonds 
maturing March 15, 1958, for Treasury bonds maturing December 15, 1968, 
unless section 1037(a) (or so much of section 1031 as relates to section 
1037(a)) applies to such exchange, or (2) a real estate mortgage for 
consolidated farm loan bonds.
    (e) Effective date relating to exchanges of partnership interests. 
The provisions of paragraph (a)(1) of this section relating to exchanges 
of partnership interests apply to transfers of property made by 
taxpayers on or after April 25, 1991.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6935, 32 FR 
15822, Nov. 17, 1967; T.D. 8343, 56 FR 14854, Apr. 12, 1991; T.D. 8346, 
56 FR 19937, May 1, 1991]



Sec. 1.1031(a)-2  Additional rules for exchanges of personal property.

    (a) Introduction. Section 1.1031(a)-1(b) provides that the 
nonrecognition rules of section 1031 do not apply to an exchange of one 
kind or class of property

[[Page 82]]

for property of a different kind or class. This section contains 
additional rules for determining whether personal property has been 
exchanged for property of a like kind or like class. Personal properties 
of a like class are considered to be of a ``like kind'' for purposes of 
section 1031. In addition, an exchange of properties of a like kind may 
qualify under section 1031 regardless of whether the properties are also 
of a like class. In determining whether exchanged properties are of a 
like kind, no inference is to be drawn from the fact that the properties 
are not of a like class. Under paragraph (b) of this section, 
depreciable tangible personal properties are of a like class if they are 
either within the same General Asset Class (as defined in paragraph 
(b)(2) of this section) or within the same Product Class (as defined in 
paragraph (b)(3) of this section). Paragraph (c) of this section 
provides rules for exchanges of intangible personal property and 
nondepreciable personal property.
    (b) Depreciable tangible personal property--(1) General rule. 
Depreciable tangible personal property is exchanged for property of a 
``like kind'' under section 1031 if the property is exchanged for 
property of a like kind or like class. Depreciable tangible personal 
property is of a like class to other depreciable tangible personal 
property if the exchanged properties are either within the same General 
Asset Class or within the same Product Class. A single property may not 
be classified within more than one General Asset Class or within more 
than one Product Class. In addition, property classified within any 
General Asset Class may not be classified within a Product Class. A 
property's General Asset Class or Product Class is determined as of the 
date of the exchange.
    (2) General Asset Classes. Except as provided in paragraphs (b)(4) 
and (b)(5) of this section, property within a General Asset Class 
consists of depreciable tangible personal property described in one of 
asset classes 00.11 through 00.28 and 00.4 of Rev. Proc. 87-56, 1987-2 
C.B. 674. These General Asset Classes describe types of depreciable 
tangible personal property that frequently are used in many businesses. 
The General Asset Classes are as follows:
    (i) Office furniture, fixtures, and equipment (asset class 00.11),
    (ii) Information systems (computers and peripheral equipment) (asset 
class 00.12),
    (iii) Data handling equipment, except computers (asset class 00.13),
    (iv) Airplanes (airframes and engines), except those used in 
commercial or contract carrying of passengers or freight, and all 
helicopters (airframes and engines) (asset class 00.21),
    (v) Automobiles, taxis (asset class 00.22),
    (vi) Buses (asset class 00.23),
    (vii) Light general purpose trucks (asset class 00.241),
    (viii) Heavy general purpose trucks (asset class 00.242),
    (ix) Railroad cars and locomotives, except those owned by railroad 
transportation companies (asset class 00.25),
    (x) Tractor units for use over-the-road (asset class 00.26),
    (xi) Trailers and trailer-mounted containers (asset class 00.27),
    (xii) Vessels, barges, tugs, and similar water-transportation 
equipment, except those used in marine construction (asset class 00.28), 
and
    (xiii) Industrial steam and electric generation and/or distribution 
systems (asset class 00.4).
    (3) Product classes. Except as provided in paragraphs (b)(4) and (5) 
of this section, or as provided by the Commissioner in published 
guidance of general applicability, property within a product class 
consists of depreciable tangible personal property that is described in 
a 6-digit product class within Sectors 31, 32, and 33 (pertaining to 
manufacturing industries) of the North American Industry Classification 
System (NAICS), set forth in Executive Office of the President, Office 
of Management and Budget, North American Industry Classification System, 
United States, 2002 (NAICS Manual), as periodically updated. Copies of 
the NAICS Manual may be obtained from the National Technical Information 
Service, an agency of the U.S. Department of Commerce, and may be 
accessed on the internet. Sectors 31 through 33 of the NAICS Manual 
contain listings of specialized industries for the manufacture of 
described products and equipment. For this purpose, any 6-digit NAICS

[[Page 83]]

product class with a last digit of 9 (a miscellaneous category) is not a 
product class for purposes of this section. If a property is listed in 
more than one product class, the property is treated as listed in any 
one of those product classes. A property's 6-digit product class is 
referred to as the property's NAICS code.
    (4) Modifications of NAICS product classes. The product classes of 
the NAICS Manual may be updated or otherwise modified from time to time 
as the manual is updated, effective on or after the date of the 
modification. The NAICS Manual generally is modified every five years, 
in years ending in a 2 or 7 (such as 2002, 2007, and 2012). The 
applicability date of the modified NAICS Manual is announced in the 
Federal Register and generally is January 1 of the year the NAICS Manual 
is modified. Taxpayers may rely on these modifications as they become 
effective in structuring exchanges under this section. Taxpayers may 
rely on the previous NAICS Manual for transfers of property made by a 
taxpayer during the one-year period following the effective date of the 
modification. For transfers of property made by a taxpayer on or after 
January 1, 1997, and on or before January 1, 2003, the NAICS Manual of 
1997 may be used for determining product classes of the exchanged 
property.
    (5) Administrative procedures for revising general asset classes and 
product classes. The Commissioner may, through published guidance of 
general applicability, supplement, modify, clarify, or update the 
guidance relating to the classification of properties provided in this 
paragraph (b). (See Sec. 601.601(d)(2) of this chapter.) For example, 
the Commissioner may determine not to follow (in whole or in part) a 
general asset class for purposes of identifying property of like class, 
may determine not to follow (in whole or in part) any modification of 
product classes published in the NAICS Manual, or may determine that 
other properties not listed within the same or in any product class or 
general asset class nevertheless are of a like class. The Commissioner 
also may determine that two items of property that are listed in 
separate product classes or in product classes with a last digit of 9 
are of a like class, or that an item of property that has a NAICS code 
is of a like class to an item of property that does not have a NAICS 
code.
    (6) No inference outside of section 1031. The rules provided in this 
section concerning the use of general asset classes or product classes 
are limited to exchanges under section 1031. No inference is intended 
with respect to the classification of property for other purposes, such 
as depreciation.
    (7) Examples. The application of this paragraph (b) may be 
illustrated by the following examples:

    Example 1. Taxpayer A transfers a personal computer (asset class 
00.12) to B in exchange for a printer (asset class 00.12). With respect 
to A, the properties exchanged are within the same General Asset Class 
and therefore are of a like class.
    Example 2. Taxpayer C transfers an airplane (asset class 00.21) to D 
in exchange for a heavy general purpose truck (asset class 00.242). The 
properties exchanged are not of a like class because they are within 
different General Asset Classes. Because each of the properties is 
within a General Asset Class, the properties may not be classified 
within a Product Class. The airplane and heavy general purpose truck are 
also not of a like kind. Therefore, the exchange does not qualify for 
nonrecognition of gain or loss under section 1031.
    Example 3. Taxpayer E transfers a grader to F in exchange for a 
scraper. Neither property is within any of the general asset classes. 
However, both properties are within the same product class (NAICS code 
333120). The grader and scraper are of a like class and deemed to be of 
a like kind for purposes of section 1031.
    Example 4. Taxpayer G transfers a personal computer (asset class 
00.12), an airplane (asset class 00.21) and a sanding machine (NAICS 
code 333210), to H in exchange for a printer (asset class 00.12), a 
heavy general purpose truck (asset class 00.242) and a lathe (NAICS code 
333210). The personal computer and the printer are of a like class 
because they are within the same general asset class. The sanding 
machine and the lathe are of a like class because they are within the 
same product class (although neither property is within any of the 
general asset classes). The airplane and the heavy general purpose truck 
are neither within the same general asset class nor within the same 
product class, and are not of a like kind.
    (8) Transition rule. Properties within the same product classes 
based on the 4-digit codes contained in Division D of the Executive 
Office of the President,

[[Page 84]]

Office of Management and Budget, Standard Industrial Classification 
Manual (1987), will be treated as property of a like class for transfers 
of property made by taxpayers on or before May 19, 2005.

    (c) Intangible personal property and nondepreciable personal 
property--(1) General rule. An exchange of intangible personal property 
of nondepreciable personal property qualifies for nonrecognition of gain 
or loss under section 1031 only if the exchanged properties are of a 
like kind. No like classes are provided for these properties. Whether 
intangible personal property is of a like kind to other intangible 
personal property generally depends on the nature or character of the 
rights involved (e.g., a patent or a copyright) and also on the nature 
or character of the underlying property to which the intangible personal 
property relates.
    (2) Goodwill and going concern value. The goodwill or going concern 
value of a business is not of a like kind to the goodwill or going 
concern value of another business.
    (3) Examples. The application of this paragraph (c) may be 
illustrated by the following examples:

    Example 1. Taxpayer K exchanges a copyright on a novel for a 
copyright on a different novel. The properties exchanged are of a like 
kind.
    Example 2. Taxpayer J exchanges a copyright on a novel for a 
copyright on a song. The properties exchanged are not of a like kind.

    (d) Effective date. Except as otherwise provided in this paragraph 
(d), this section applies to exchanges occurring on or after April 11, 
1991. Paragraphs (b)(3) through (b)(6), Example 3 and Example 4 of 
paragraph (b)(7), and paragraph (b)(8) of this section apply to 
transfers of property made by taxpayers on or after August 12, 2004. 
However, taxpayers may apply paragraphs (b)(3) through (b)(6), and 
Example 3 and Example 4 of paragraph (b)(7) of this section to transfers 
of property made by taxpayers on or after January 1, 1997, in taxable 
years for which the period of limitation for filing a claim for refund 
or credit under section 6511 has not expired.

[T.D. 8343, 56 FR 14854, Apr. 12, 1991, as amended by T.D. 9151, 69 FR 
50068, Aug. 13, 2004; T.D. 9202, 70 FR 28819, May 19, 2005]



Sec. 1.1031(b)-1  Receipt of other property or money in tax-free 
exchange.

    (a) If the taxpayer receives other property (in addition to property 
permitted to be received without recognition of gain) or money--
    (1) In an exchange described in section 1031(a) of property held for 
investment or productive use in trade or business for property of like 
kind to be held either for productive use or for investment,
    (2) In an exchange described in section 1035(a) of insurance 
policies or annuity contracts,
    (3) In an exchange described in section 1036(a) of common stock for 
common stock, or preferred stock for preferred stock, in the same 
corporation and not in connection with a corporate reorganization, or
    (4) In an exchange described in section 1037(a) of obligations of 
the United States, issued under the Second Liberty Bond Act (31 U.S.C. 
774 (2)), solely for other obligations issued under such Act, the gain, 
if any, to the taxpayer will be recognized under section 1031(b) in an 
amount not in excess of the sum of the money and the fair market value 
of the other property, but the loss, if any, to the taxpayer from such 
an exchange will not be recognized under section 1031(c) to any extent.
    (b) The application of this section may be illustrated by the 
following examples:

    Example 1. A, who is not a dealer in real estate, in 1954 exchanges 
real estate held for investment, which he purchased in 1940 for $5,000, 
for other real estate (to be held for productive use in trade or 
business) which has a fair market value of $6,000, and $2,000 in cash. 
The gain from the transaction is $3,000, but is recognized only to the 
extent of the cash received of $2,000.
    Example 2. (a) B, who uses the cash receipts and disbursements 
method of accounting and the calendar year as his taxable year, has 
never elected under section 454(a) to include in gross income currently 
the annual increase in the redemption price of non-interest-bearing 
obligations issued at a discount. In 1943, for $750 each, B purchased 
four $1,000

[[Page 85]]

series E U.S. savings bonds bearing an issue date of March 1, 1943.
    (b) On October 1, 1963, the redemption value of each such bond was 
$1,396, and the total redemption value of the four bonds was $5,584. On 
that date B submitted the four $1,000 series E bonds to the United 
States in a transaction in which one of such $1,000 bonds was reissued 
by issuing four $100 series E U.S. savings bonds bearing an issue date 
of March 1, 1943, and by considering six $100 series E bonds bearing an 
issue date of March 1, 1943, to have been issued. The redemption value 
of each such $100 series E bond was $139.60 on October 1, 1963. Then, as 
part of the transaction, the six $100 series E bonds so considered to 
have been issued and the three $1,000 series E bonds were exchanged, in 
an exchange qualifying under section 1037(a), for five $1,000 series H 
U.S. savings bonds plus $25.60 in cash.
    (c) The gain realized on the exchange qualifying under section 
1037(a) is $2,325.60, determined as follows:

Amount realized:
  Par value of five series H bonds...........................  $5,000.00
  Cash received..............................................      25.60
                                                   ------------
   Total realized............................................   5,025.60
Less: Adjusted basis of series E bonds surrendered in the
 exchange:
   Three $1,000 series E bonds....................  $2,250.00
   Six $100 series E bonds at $75 each............     450.00
                                                   -----------
                                                    .........   2,700.00
                                                              ----------
    Gain realized.................................  .........   2,325.60
 

    (d) Pursuant to section 1031(b), only $25.60 (the money received) of 
the total gain of $2,325.60 realized on the exchange is recognized at 
the time of exchange and must be included in B's gross income for 1963. 
The $2,300 balance of the gain ($2,325.60 less $25.60) must be included 
in B's gross income for the taxable year in which the series H bonds are 
redeemed or disposed of, or reach final maturity, whichever is earlier, 
as provided in paragraph (c) of Sec. 1.454-1.
    (e) The gain on the four $100 series E bonds, determined by using 
$75 as a basis for each such bond, must be included in B's gross income 
for the taxable year in which such bonds are redeemed or disposed of, or 
reach final maturity, whichever is earlier.
    Example 3. (a) The facts are the same as in example (2), except 
that, as part of the transaction, the $1,000 series E bond is reissued 
by considering ten $100 series E bonds bearing an issue date of March 1, 
1943, to have been issued. Six of the $100 series E bonds so considered 
to have been issued are surrendered to the United States as part of the 
exchange qualifying under section 1037(a) and the other four are 
immediately redeemed.
    (b) Pursuant to section 1031(b), only $25.60 (the money received) of 
the total gain of $2,325.60 realized on the exchange qualifying under 
section 1037(a) is recognized at the time of the exchange and must be 
included in B's gross income for 1963. The $2,300 balance of the gain 
($2,325.60 less $25.60) realized on such exchange must be included in 
B's gross income for the taxable year in which the series H bonds are 
redeemed or disposed of, or reach final maturity, whichever is earlier, 
as provided in paragraph (c) of Sec. 1.454-1.
    (c) The redemption on October 1, 1963, of the four $100 series E 
bonds considered to have been issued at such time results in gain of 
$258.40, which is then recognized and must be included in B's gross 
income for 1963. This gain of $258.40 is the difference between the 
$558.40 redemption value of such bonds on the date of the exchange and 
the $300 (4x$75) paid for such series E bonds in 1943.
    Example 4. On November 1, 1963, C purchased for $91 a marketable 
U.S. bond which was originally issued at its par value of $100 under the 
Second Liberty Bond Act. On February 1, 1964, in an exchange qualifying 
under section 1037(a), C surrendered the bond to the United States for 
another marketable U.S. bond, which then had a fair market value of $92, 
and $1.85 in cash, $0.85 of which was interest. The $0.85 interest 
received is includible in gross income for the taxable year of the 
exchange, but the $2 gain ($93 less $91) realized on the exchange is 
recognized for such year under section 1031(b) to the extent of $1 (the 
money received). Under section 1031(d), C's basis in the bond received 
in exchange is $91 (his basis of $91 in the bond surrendered, reduced by 
the $1 money received and increased by the $1 gain recognized).

    (c) Consideration received in the form of an assumption of 
liabilities (or a transfer subject to a liability) is to be treated as 
other property or money for the purposes of section 1031(b). Where, on 
an exchange described in section 1031(b), each party to the exchange 
either assumes a liability of the other party or acquires property 
subject to a liability, then, in determining the amount of other 
property or money for purposes of section 1031(b), consideration given 
in the form of an assumption of liabilities (or a receipt of property 
subject to a liability) shall be offset against consideration received 
in the form of an assumption of liabilities (or a transfer subject to a 
liability). See Sec. 1.1031(d)-2, examples (1) and (2).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6935, 32 FR 
15822, Nov. 17, 1967]

[[Page 86]]



Sec. 1.1031(b)-2  Safe harbor for qualified intermediaries.

    (a) In the case of simultaneous transfers of like-kind properties 
involving a qualified intermediary (as defined in Sec. 1.1031(k)-
1(g)(4)(iii)), the qualified intermediary is not considered the agent of 
the taxpayer for purposes of section 1031(a). In such a case, the 
transfer and receipt of property by the taxpayer is treated as an 
exchange.
    (b) In the case of simultaneous exchanges of like-kind properties 
involving a qualified intermediary (as defined in Sec. 1.1031(k)-
1(g)(4)(iii)), the receipt by the taxpayer of an evidence of 
indebtedness of the transferee of the qualified intermediary is treated 
as the receipt of an evidence of indebtedness of the person acquiring 
property from the taxpayer for purposes of section 453 and Sec. 
15a.453-1(b)(3)(i) of this chapter.
    (c) Paragraph (a) of this section applies to transfers of property 
made by taxpayers on or after June 10, 1991.
    (d) Paragraph (b) of this section applies to transfers of property 
made by taxpayers on or after April 20, 1994. A taxpayer may choose to 
apply paragraph (b) of this section to transfers of property made on or 
after June 10, 1991.

[T.D. 8346, 56 FR 19937, May 1, 1991, as amended by T.D. 8535, 59 FR 
18749, Apr. 20, 1994]



Sec. 1.1031(c)-1  Nonrecognition of loss.

    Section 1031(c) provides that a loss shall not be recognized from an 
exchange of property described in section 1031(a), 1035(a), 1036(a), or 
1037(a) where there is received in the exchange other property or money 
in addition to property permitted to be received without recognition of 
gain or loss. See example (4) of paragraph (a)(3) of Sec. 1.1037-1 for 
an illustration of the application of this section in the case of an 
exchange of U.S. obligations described in section 1037(a).

[T.D. 6935, 32 FR 15822, Nov. 17, 1967]



Sec. 1.1031(d)-1  Property acquired upon a tax-free exchange.

    (a) If, in an exchange of property solely of the type described in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), no 
part of the gain or loss was recognized under the law applicable to the 
year in which the exchange was made, the basis of the property acquired 
is the same as the basis of the property transferred by the taxpayer 
with proper adjustments to the date of the exchange. If additional 
consideration is given by the taxpayer in the exchange, the basis of the 
property acquired shall be the same as the property transferred 
increased by the amount of additional consideration given (see section 
1016 and the regulations thereunder).
    (b) If, in an exchange of properties of the type indicated in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), gain 
to the taxpayer was recognized under the provisions of section 1031(b) 
or a similar provision of a prior revenue law, on account of the receipt 
of money in the transaction, the basis of the property acquired is the 
basis of the property transferred (adjusted to the date of the 
exchange), decreased by the amount of money received and increased by 
the amount of gain recognized on the exchange. The application of this 
paragaph may be illustrated by the following example:

    Example: A, an individual in the moving and storage business, in 
1954 transfers one of his moving trucks with an adjusted basis in his 
hands of $2,500 to B in exchange for a truck (to be used in A's 
business) with a fair market value of $2,400 and $200 in cash. A 
realizes a gain of $100 upon the exchange, all of which is recognized 
under section 1031(b). The basis of the truck acquired by A is 
determined as follows:

Adjusted basis of A's former truck......................          $2,500
Less: Amount of money received..........................             200
                                                         ---------------
   Difference...........................................           2,300
Plus: Amount of gain recognized.........................             100
                                                         ---------------
   Basis of truck acquired by A.........................           2,400
 

    (c) If, upon an exchange of properties of the type described in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), the 
taxpayer received other property (not permitted to be received without 
the recognition of gain) and gain from the transaction was recognized as 
required under section 1031(b), or a similar provision of a prior 
revenue law, the basis (adjusted to the date of the exchange) of the 
property transferred by the taxpayer, decreased by the amount of any 
money received and increased by the amount of gain recognized, must be 
allocated to and is the basis of the properties (other than

[[Page 87]]

money) received on the exchange. For the purpose of the allocation of 
the basis of the properties received, there must be assigned to such 
other property an amount equivalent to its fair market value at the date 
of the exchange. The application of this paragraph may be illustrated by 
the following example:

    Example: A, who is not a dealer in real estate, in 1954 transfers 
real estate held for investment which he purchased in 1940 for $10,000 
in exchange for other real estate (to be held for investment) which has 
a fair market value of $9,000, an automobile which has a fair market 
value of $2,000, and $1,500 in cash. A realizes a gain of $2,500, all of 
which is recognized under section 1031(b). The basis of the property 
received in exchange is the basis of the real estate A transfers 
($10,000) decreased by the amount of money received ($1,500) and 
increased in the amount of gain that was recognized ($2,500), which 
results in a basis for the property received of $11,000. This basis of 
$11,000 is allocated between the automobile and the real estate received 
by A, the basis of the automobile being its fair market value at the 
date of the exchange, $2,000, and the basis of the real estate received 
being the remainder, $9,000.

    (d) Section 1031(c) and, with respect to section 1031 and section 
1036(a), similar provisions of prior revenue laws provide that no loss 
may be recognized on an exchange of properties of a type described in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), 
although the taxpayer receives other property or money from the 
transaction. However, the basis of the property or properties (other 
than money) received by the taxpayer is the basis (adjusted to the date 
of the exchange) of the property transferred, decreased by the amount of 
money received. This basis must be allocated to the properties received, 
and for this purpose there must be allocated to such other property an 
amount of such basis equivalent to its fair market value at the date of 
the exchange.
    (e) If, upon an exchange of properties of the type described in 
section 1031, section 1035(a), section 1036(a), or section 1037(a), the 
taxpayer also exchanged other property (not permitted to be transferred 
without the recognition of gain or loss) and gain or loss from the 
transaction is recognized under section 1002 or a similar provision of a 
prior revenue law, the basis of the property acquired is the total basis 
of the properties transferred (adjusted to the date of the exchange) 
increased by the amount of gain and decreased by the amount of loss 
recognized on the other property. For purposes of this rule, the 
taxpayer is deemed to have received in exchange for such other property 
an amount equal to its fair market value on the date of the exchange. 
The application of this paragraph may be illustrated by the following 
example:

    Example: A exchanges real estate held for investment plus stock for 
real estate to be held for investment. The real estate transferred has 
an adjusted basis of $10,000 and a fair market value of $11,000. The 
stock transferred has an adjusted basis of $4,000 and a fair market 
value of $2,000. The real estate acquired has a fair market value of 
$13,000. A is deemed to have received a $2,000 portion of the acquired 
real estate in exchange for the stock, since $2,000 is the fair market 
value of the stock at the time of the exchange. A $2,000 loss is 
recognized under section 1002 on the exchange of the stock for real 
estate. No gain or loss is recognized on the exchange of the real estate 
since the property received is of the type permitted to be received 
without recognition of gain or loss. The basis of the real estate 
acquired by A is determined as follows:

Adjusted basis of real estate transferred..........              $10,000
Adjusted basis of stock transferred................                4,000
                                                    --------------------
                                                                  14,000
Less: Loss recognized on transfer of stock.........                2,000
                                                    --------------------
    Basis of real estate acquired upon the exchange               12,000
 


[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6935, 32 FR 
15823, Nov. 17, 1967]



Sec. 1.1031(d)-1T  Coordination of section 1060 with section 1031 
(temporary).

    If the properties exchanged under section 1031 are part of a group 
of assets which constitute a trade or business under section 1060, the 
like-kind property and other property or money which are treated as 
transferred in exchange for the like-kind property shall be excluded 
from the allocation rules of section 1060. However, section 1060 shall 
apply to property which is not like-kind property or other property or 
money which is treated as transferred in exchange for the like-kind 
property.

[[Page 88]]

For application of the section 1060 allocation rules to property which 
is not part of the like-kind exchange, see Sec. 1.1060-1(b), (c), and 
(d) Example 1 in Sec. 1.338-6(b), to which reference is made by Sec. 
1.1060-1(c)(2).

[T.D. 8215, 53 FR 27044, July 18, 1988, as amended by T.D. 8858, 65 FR 
1237, Jan. 7, 2000; T.D. 8940, 66 FR 9929, Feb. 13, 2001]



Sec. 1.1031(d)-2  Treatment of assumption of liabilities.

    For the purposes of section 1031(d), the amount of any liabilities 
of the taxpayer assumed by the other party to the exchange (or of any 
liabilities to which the property exchanged by the taxpayer is subject) 
is to be treated as money received by the taxpayer upon the exchange, 
whether or not the assumption resulted in a recognition of gain or loss 
to the taxpayer under the law applicable to the year in which the 
exchange was made. The application of this section may be illustrated by 
the following examples:

    Example 1. B, an individual, owns an apartment house which has an 
adjusted basis in his hands of $500,000, but which is subject to a 
mortgage of $150,000. On September 1, 1954, he transfers the apartment 
house to C, receiving in exchange therefor $50,000 in cash and another 
apartment house with a fair market value on that date of $600,000. The 
transfer to C is made subject to the $150,000 mortgage. B realizes a 
gain of $300,000 on the exchange, computed as follows:

Value of property received.................................     $600,000
Cash.......................................................       50,000
Liabilities subject to which old property was transferred..      150,000
                                               --------------
    Total consideration received...........................      800,000
Less: Adjusted basis of property transferred...............      500,000
                                               --------------
    Gain realized..........................................      300,000
                                               ==============
Under section 1031(b), $200,000 of the $300,000 gain is          500,000
 recognized. The basis of the apartment house acquired by B
 upon the exchange is $500,000, computed as follows:
 Adjusted basis of property transferred....................
Less: Amount of money received:
  Cash........................................      $50,000
  Amount of liabilities subject to which            150,000
   property was transferred...................
                                                     ------      200,000
                                                            ------------
    Difference................................  ...........      300,000
Plus: Amount of gain recognized upon the exchange..........      200,000
                                               --------------
    Basis of property acquired upon the exchange...........      500,000
 

    Example 2. (a) D, an individual, owns an apartment house. On 
December 1, 1955, the apartment house owned by D has an adjusted basis 
in his hands of $100,000, a fair market value of $220,000, but is 
subject to a mortgage of $80,000. E, an individual, also owns an 
apartment house. On December 1, 1955, the apartment house owned by E has 
an adjusted basis of $175,000, a fair market value of $250,000, but is 
subject to a mortgage of $150,000. On December 1, 1955, D transfers his 
apartment house to E, receiving in exchange therefore $40,000 in cash 
and the apartment house owned by E. Each apartment house is transferred 
subject to the mortgage on it.
    (b) D realizes a gain of $120,000 on the exchange, computed as 
follows:

Value of property received......................  ..........    $250,000
Cash........................................................      40,000
Liabilities subject to which old property was transferred...      80,000
                                                 -------------
    Total consideration received............................     370,000
Less:
  Adjusted basis of property transferred........    $100,000
  Liabilities to which new property is subject..     150,000
                                                    --------     250,000
                                                             -----------
    Gain realized...............................  ..........     120,000
 


For purposes of section 1031(b), the amount of other property or money 
received by D is $40,000. (Consideration received by D in the form of a 
transfer subject to a liability of $80,000 is offset by consideration 
given in the form of a receipt of property subject to a $150,000 
liability. Thus, only the consideration received in the form of cash, 
$40,000, is treated as other property or money for purposes of section 
1031(b).) Accordingly, under section 1031(b), $40,000 of the $120,000 
gain is recognized. The basis of the apartment house acquired by D is 
$170,000, computed as follows:

Adjusted basis of property transferred............              $100,000
Liabilities to which new property is subject......               150,000
                             -----------------------
    Total.........................................               250,000
Less: Amount of money                      $40,000
 received: Cash.............
Amount of liabilities                       80,000
 subject to which property
 was transferred............
                                          --------               120,000
                                                   ---------------------
    Difference....................................               130,000
Plus: Amount of gain recognized upon the exchange.                40,000
                             -----------------------
    Basis of property acquired upon the exchange..               170,000
 


[[Page 89]]

    (c) E realizes a gain of $75,000 on the exchange, computed as 
follows:

Value of property received........................              $220,000
Liabilities subject to which old property was                    150,000
 transferred......................................
                             -----------------------
    Total consideration received..................               370,000
Less:
  Adjusted basis of property              $175,000
   transferred..............
  Cash......................                40,000
  Liabilities to which new                  80,000
   property is subject......
                                          --------               295,000
                                                   ---------------------
    Gain realized.................................                75,000
 

For purposes of section 1031(b), the amount of other property or money 
received by E is $30,000. (Consideration received by E in the form of a 
transfer subject to a liability of $150,000 is offset by consideration 
given in the form of a receipt of property subject to an $80,000 
liability and by the $40,000 cash paid by E. Although consideration 
received in the form of cash or other property is not offset by 
consideration given in the form of an assumption of liabilities or a 
receipt of property subject to a liability, consideration given in the 
form of cash or other property is offset against consideration received 
in the form of an assumption of liabilities or a transfer of property 
subject to a liability.) Accordingly, under section 1031(b), $30,000 of 
the $75,000 gain is recognized. The basis of the apartment house 
acquired by E is $175,000, computed as follows:

Adjusted basis of property transferred............              $175,000
Cash..............................................                40,000
Liabilities to which new property is subject......                80,000
                             -----------------------
    Total.........................................               295,000
Less: Amount of money                     $150,000
 received: Amount of
 liabilities subject to
 which property was
 transferred................
                                          --------               150,000
                                                   ---------------------
    Difference....................................               145,000
Plus: Amount of gain recognized upon the exchange.                30,000
                             -----------------------
    Basis of property acquired upon the exchange..               175,000
 



Sec. 1.1031(e)-1  Exchange of livestock of different sexes.

    Section 1031(e) provides that livestock of different sexes are not 
property of like kind. Section 1031(e) and this section are applicable 
to taxable years to which the Internal Revenue Code of 1954 applies.

[T.D. 7141, 36 FR 18792, Sept. 22, 1971]



Sec. 1.1031(j)-1  Exchanges of multiple properties.

    (a) Introduction--(1) Overview. As a general rule, the application 
of section 1031 requires a property-by-property comparison for computing 
the gain recognized and basis of property received in a like-kind 
exchange. This section provides an exception to this general rule in the 
case of an exchange of multiple properties. An exchange is an exchange 
of multiple properties if, under paragraph (b)(2) of this section, more 
than one exchange group is created. In addition, an exchange is an 
exchange of multiple properties if only one exchange group is created 
but there is more than one property being transferred or received within 
that exchange group. Paragraph (b) of this section provides rules for 
computing the amount of gain recognized in an exchange of multiple 
properties qualifying for nonrecognition of gain or loss under section 
1031. Paragraph (c) of this section provides rules for computing the 
basis of properties received in an exchange of multiple properties 
qualifying for nonrecognition of gain or loss under section 1031.
    (2) General approach. (i) In general, the amount of gain recognized 
in an exchange of multiple properties is computed by first separating 
the properties transferred and the properties received by the taxpayer 
in the exchange into exchange groups in the manner described in 
paragraph (b)(2) of this section. The separation of the properties 
transferred and the properties received in the exchange into exchange 
groups involves matching up properties of a like kind of like class to 
the extent possible. Next, all liabilities assumed by the taxpayer as 
part of the transaction are offset by all liabilities of which the 
taxpayer is relieved as part

[[Page 90]]

of the transaction, with the excess liabilities assumed or relieved 
allocated in accordance with paragraph (b)(2)(ii) of this section. Then, 
the rules of section 1031 and the regulations thereunder are applied 
separately to each exchange group to determine the amount of gain 
recognized in the exchange. See Sec. Sec. 1.1031(b)-1 and 1.1031(c)-1. 
Finally, the rules of section 1031 and the regulations thereunder are 
applied separately to each exchange group to determine the basis of the 
properties received in the exchange. See Sec. Sec. 1.1031(d)-1 and 
1.1031(d)-2.
    (ii) For purposes of this section, the exchanges are assumed to be 
made at arms' length, so that the aggregate fair market value of the 
property received in the exchange equals the aggregate fair market value 
of the property transferred. Thus, the amount realized with respect to 
the properties transferred in each exchange group is assumed to equal 
their aggregate fair market value.
    (b) Computation of gain recognized--(1) In general. In computing the 
amount of gain recognized in an exchange of multiple properties, the 
fair market value must be determined for each property transferred and 
for each property received by the taxpayer in the exchange. In addition, 
the adjusted basis must be determined for each property transferred by 
the taxpayer in the exchange.
    (2) Exchange groups and residual group. The properties transferred 
and the properties received by the taxpayer in the exchange are 
separated into exchange groups and a residual group to the extent 
provided in this paragraph (b)(2).
    (i) Exchange groups. Each exchange group consists of the properties 
transferred and received in the exchange, all of which are of a like 
kind or like class. If a property could be included in more than one 
exchange group, the taxpayer may include the property in any of those 
exchange groups. Property eligible for inclusion within an exchange 
group does not include money or property described in section 1031(a)(2) 
(i.e., stock in trade or other property held primarily for sale, stocks, 
bonds, notes, other securities or evidences of indebtedness or interest, 
interests in a partnership, certificates of trust or beneficial 
interests, or choses in action). For example, an exchange group may 
consist of all exchanged properties that are within the same General 
Asset Class or within the same Product Class (as defined in Sec. 
1.1031(a)-2(b)). Each exchange group must consist of at least one 
property transferred and at least one property received in the exchange.
    (ii) Treatment of liabilities. (A) All liabilities assumed by the 
taxpayer as part of the exchange are offset against all liabilities of 
which the taxpayer is relieved as part of the exchange, regardless of 
whether the liabilities are recourse or nonrecourse and regardless of 
whether the liabilities are secured by or otherwise relate to specific 
property transferred or received as part of the exchange. See Sec. Sec. 
1.1031 (b)-1(c) and 1.1031(d)-2. For purposes of this section, 
liabilities assumed by the taxpayer as part of the exchange consist of 
liabilities of the other party to the exchange assumed by the taxpayer 
and liabilities subject to which the other party's property is 
transferred in the exchange. Similarly, liabilities of which the 
taxpayer is relieved as part of the exchange consist of liabilities of 
the taxpayer assumed by the other party to the exchange and liabilities 
subject to which the taxpayer's property is transferred.
    (B) If there are excess liabilities assumed by the taxpayer as part 
of the exchange (i.e., the amount of liabilities assumed by the taxpayer 
exceeds the amount of liabilities of which the taxpayer is relieved), 
the excess is allocated among the exchange groups (but not to the 
residual group) in proportion to the aggregate fair market value of the 
properties received by the taxpayer in the exchange groups. The amount 
of excess liabilities assumed by the taxpayer that are allocated to each 
exchange group may not exceed the aggregate fair market value of the 
properties received in the exchange group.
    (C) If there are excess liabilities of which the taxpayer is 
relieved as part of the exchange (i.e., the amount of liabilities of 
which the taxpayer is relieved exceeds the amount of liabilities assumed 
by the taxpayer), the excess is treated as a Class I asset for purposes 
of making allocations to the residual

[[Page 91]]

group under paragraph (b)(2)(iii) of this section.
    (D) Paragraphs (b)(2)(ii) (A), (B), and (C) of this section are 
applied in the same manner even if section 1031 and this section apply 
to only a portion of a larger transaction (such as a transaction 
described in section 1060(c) and Sec. 1.1060-1T(b)). In that event, the 
amount of excess liabilities assumed by the taxpayer or the amount of 
excess liabilities of which the taxpayer is relieved is determined based 
on all liabilities assumed by the taxpayer and all liabilities of which 
the taxpayer is relieve as part of the larger transaction.
    (iii) Residual group. If the aggregate fair market value of the 
properties transferred in all of the exchange groups differs from the 
aggregate fair market value of the properties received in all of the 
exchange groups (taking liabilities into account in the manner described 
in paragraph (b)(2)(ii) of this section), a residual group is created. 
The residual group consists of an amount of money or other property 
having an aggregate fair market value equal to that difference. The 
residual group consists of either money or other property transferred in 
the exchange or money or other property received in the exchange, but 
not both. For this purpose, other property includes property described 
in section 1031(a)(2) (i.e., stock in trade or other property held 
primarily for sale, stocks, bonds, notes, other securities or evidences 
of indebtedness or interest, interests in a partnership, certificates of 
trust or beneficial interests, or choses in action), property 
transferred that is not of a like kind or like class with any property 
received, and property received that is not of a like kind or like class 
with any property transferred. The money and properties that are 
allocated to the residual group are considered to come from the 
following assets in the following order: first from Class I assets, then 
from Class II assets, then from Class III assets, and then from Class IV 
assets. The terms Class I assets, Class II assets, Class III assets, and 
Class IV assets have the same meanings as in Sec. 1.338-6(b), to which 
reference is made by Sec. 1.1060-1(c)(2). Within each Class, taxpayers 
may choose which properties are allocated to the residual group.
    (iv) Exchange group surplus and deficiency. For each of the exchange 
groups described in this section, an ``exchange group surplus'' or 
``exchange group deficiency,'' if any, must be determined. An exchange 
group surplus is the excess of the aggregate fair market value of the 
properties received (less the amount of any excess liabilities assumed 
by the taxpayer that are allocated to that exchange group), in an 
exchange group over the aggregate fair market value of the properties 
transferred in that exchange group. An exchange group deficiency is the 
excess of the aggregate fair market value of the properties transferred 
in an exchange group over the aggregate fair market value of the 
properties received (less the amount of any excess liabilities assumed 
by the taxpayer that are allocated to that exchange group) in that 
exchange group.
    (3) Amount of gain recognized. (i) For purposes of this section, the 
amount of gain or loss realized with respect to each exchange group and 
the residual group is the difference between the aggregate fair market 
value of the properties transferred in that exchange group or residual 
group and the properties' aggregate adjusted basis. The gain realized 
with respect to each exchange group is recognized to the extent of the 
lesser of the gain realized and the amount of the exchange group 
deficiency, if any. Losses realized with respect to an exchange group 
are not recognized. See section 1031 (a) and (c). The total amount of 
gain recognized under section 1031 in the exchange is the sum of the 
amount of gain recognized with respect to each exchange group. With 
respect to the residual group, the gain or loss realized (as determined 
under this section) is recognized as provided in section 1001 or other 
applicable provision of the Code.
    (ii) The amount of gain or loss realized and recognized with respect 
to properties transferred by the taxpayer that are not within any 
exchange group or the residual group is determined under section 1001 
and other applicable provisions of the Code, with proper adjustments 
made for all liabilities not

[[Page 92]]

allocated to the exchange groups or the residual group.
    (c) Computation of basis of properties received. In an exchange of 
multiple properties qualifying for nonrecognition of gain or loss under 
section 1031 and this section, the aggregate basis of properties 
received in each of the exchange groups is the aggregate adjusted basis 
of the properties transferred by the taxpayer within that exchange 
group, increased by the amount of gain recognized by the taxpayer with 
respect to that exchange group, increased by the amount of the exchange 
group surplus or decreased by the amount of the exchange group 
deficiency, and increased by the amount, if any, of excess liabilities 
assumed by the taxpayer that are allocated to that exchange group. The 
resulting aggregate basis of each exchange group is allocated 
proportionately to each property received in the exchange group in 
accordance with its fair market value. The basis of each property 
received within the residual group (other than money) is equal to its 
fair market value.
    (d) Examples. The application of this section may be illustrated by 
the following examples:

    Example 1. (i) K exchanges computer A (asset class 00.12) and 
automobile A (asset class 00.22), both of which were held by K for 
productive use in its business, with W for printer B (asset class 00.12) 
and automobile B (asset class 00.22), both of which will be held by K 
for productive use in its business. K's adjusted basis and the fair 
market value of the exchanged properties are as follows:

------------------------------------------------------------------------
                                                            Fair market
                                          Adjusted basis       value
------------------------------------------------------------------------
Computer A..............................            $375          $1,000
Automobile A............................           1,500           4,000
Printer B...............................  ..............           2,050
Automobile B............................  ..............           2,950
------------------------------------------------------------------------

    (ii) Under paragraph (b)(2) of this section, the properties 
exchanged are separated into exchange groups as follows:
    (A) The first exchange group consists of computer A and printer B 
(both are within the same General Asset Class) and, as to K, has an 
exchange group surplus of $1050 because the fair market value of printer 
B ($2050) exceeds the fair market value of computer A ($1000) by that 
amount.
    (B) The second exchange group consists of automobile A and 
automobile B (both are within the same General Asset Class) and, as to 
K, has an exchange group deficiency of $1050 because the fair market 
value of automobile A ($4000) exceeds the fair market value of 
automobile B ($2950) by that amount.
    (iii) K recognizes gain on the exchange as follows:
    (A) With respect to the first exchange group, the amount of gain 
realized is the excess of the fair market value of computer A ($1000) 
over its adjusted basis ($375), or $625. The amount of gain recognized 
is the lesser of the gain realized ($625) and the exchange group 
deficiency ($0), or $0.
    (B) With respect to the second exchange group, the amount of gain 
realized is the excess of the fair market value of automobile A ($4000) 
over its adjusted basis ($1500), or $2500. The amount of gain recognized 
is the lesser of the gain realized ($2500) and the exchange group 
deficiency ($1050), or $1050.
    (iv) The total amount of gain recognized by K in the exchange is the 
sum of the gains recognized with respect to both exchange groups ($0 + 
$1050), or $1050.
    (v) The bases of the property received by K in the exchange, printer 
B and automobile B, are determined in the following manner:
    (A) The basis of the property received in the first exchange group 
is the adjusted basis of the property transferred within the exchange 
group ($375), increased by the amount of gain recognized with respect to 
that exchange group ($0), increased by the amount of the exchange group 
surplus ($1050), and increased by the amount of excess liabilities 
assumed allocated to that exchange group ($0), or $1425. Because printer 
B was the only property received within the first exchange group, the 
entire basis of $1425 is allocated to printer B.
    (B) The basis of the property received in the second exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($1500), increased by the amount of gain recognized with respect 
to that exchange group ($1050), decreased by the amount of the exchange 
group deficiency ($1050), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $1500. 
Because automobile B was the only property received within the second 
exchange group, the entire basis of $1500 is allocated to automobile B.
    Example 2. (i) F exchanges computer A (asset class 00.12) and 
automobile A (asset class 00.22), both of which were held by F for 
productive use in its business, with G for printer B (asset class 00.12) 
and automobile B (asset class 00.22), both of which will be held by F 
for productive use in its business, and corporate stock and $500 cash. 
The adjusted basis and fair market value of the properties are as 
follows:

[[Page 93]]



------------------------------------------------------------------------
                                                            Fair market
                                          Adjusted basis       value
------------------------------------------------------------------------
Computer A..............................            $375          $1,000
Automobile A............................           3,500           4,000
Printer B...............................  ..............             800
Automobile B............................  ..............           2,950
Corporate stock.........................  ..............             750
Cash....................................  ..............             500
------------------------------------------------------------------------

    (ii) Under paragraph (b)(2) of this section, the properties 
exchanged are separated into exchange groups as follows:
    (A) The first exchange group consists of computer A and printer B 
(both are within the same General Asset Class) and, as to F, has an 
exchange group deficiency of $200 because the fair market value of 
computer A ($1000) exceeds the fair market value of printer B ($800) by 
that amount.
    (B) The second exchange group consists of automobile A and 
automobile B (both are within the same General Asset Class) and, as to 
F, has an exchange group deficiency of $1050 because the fair market 
value of automobile A ($4000) exceeds the fair market value of 
automobile B ($2950) by that amount.
    (C) Because the aggregate fair market value of the properties 
transferred by F in the exchange groups ($5,000) exceeds the aggregate 
fair market value of the properties received by F in the exchange groups 
($3750) by $1250, there is a residual group in that amount consisting of 
the $500 cash and the $750 worth of corporate stock.
    (iii) F recognizes gain on the exchange as follows:
    (A) With respect to the first exchange group, the amount of gain 
realized is the excess of the fair market value of computer A ($1000) 
over its adjusted basis ($375), or $625. The amount of gain recognized 
is the lesser of the gain realized ($625) and the exchange group 
deficiency ($200), or $200.
    (B) With respect to the second exchange group, the amount of gain 
realized is the excess of the fair market value of automobile A ($4000) 
over its adjusted basis ($3500), or $500. The amount of gain recognized 
is the lesser of the gain realized ($500) and the exchange group 
deficiency ($1050), or $500.
    (C) No property transferred by F was allocated to the residual 
group. Therefore, F does not recognize gain or loss with respect to the 
residual group.
    (iv) The total amount of gain recognized by F in the exchange is the 
sum of the gains recognized with respect to both exchange groups ($200 + 
$500), or $700.
    (v) The bases of the properties received by F in the exchange 
(printer B, automobile B, and the corporate stock) are determined in the 
following manner:
    (A) The basis of the property received in the first exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($375), increased by the amount of gain recognized with respect to 
that exchange group ($200), decreased by the amount of the exchange 
group deficiency ($200), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $375. 
Because printer B was the only property received within the first 
exchange group, the entire basis of $375 is allocated to printer B.
    (B) The basis of the property received in the second exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($3500), increased by the amount of gain recognized with respect 
to that exchange group ($500), decreased by the amount of the exchange 
group deficiency ($1050), and increased by the amount of excess 
liabilites assumed allocated to that exchange group ($0), or $2950. 
Because automobile B was the only property received within the second 
exchange group, the entire basis of $2950 is allocated to automobile B.
    (C) The basis of the property received within the residual group 
(the corporate stock) is equal to its fair market value or $750. Cash of 
$500 is also received within the residual group.
    Example 3. (i) J and H enter into an exchange of the following 
properties. All of the property (except for the inventory) transferred 
by J was held for productive use in J's business. All of the property 
received by J will be held by J for productive use in its business.

----------------------------------------------------------------------------------------------------------------
                      J Transfers:                                             H Transfers:
----------------------------------------------------------------------------------------------------------------
                                              Adjusted   Fair market                                 Fair market
                 Property                      basis        value                Property               value
----------------------------------------------------------------------------------------------------------------
Computer A................................       $1,500       $5,000  Computer Z...................       $4,500
Computer B................................          500        3,000  Printer Y....................        2,500
Printer C.................................        2,000        1,500  Real Estate X................        1,000
Real Estate D.............................        1,200        2,000  Real Estate W................        4,000
Real Estate E.............................            0        1,800  Grader V.....................        2,000
Scraper F.................................        3,300        2,500  Truck T......................        1,700
Inventory.................................        1,000        1,700  Cash.........................        1,800
                                           --------------------------                               ------------
      Total...............................        9,500       17,500  .............................       17,500
----------------------------------------------------------------------------------------------------------------


[[Page 94]]

    (ii) Under paragraph (b)(2) of this section, the properties 
exchanged are separated into exchange groups as follows:
    (A) The first exchange group consists of computer A, computer B, 
printer C, computer Z, and printer Y (all are within the same General 
Asset Class) and, as to J, has an exchange group deficiency of $2500 
(($5000 + $3000 + $1500) - ($4500 + $2500)).
    (B) The second exchange group consists of real estate D, E, X and W 
(all are of a like kind) and, as to J, has an exchange group surplus of 
$1200 (($1000 + $4000) - ($2000 + $1800)).
    (C) The third exchange group consists of scraper F and grader V 
(both are within the same Product Class (NAICS code 333120)) and, as to 
J, has an exchange group deficiency of $500 ($2500 - $2000).
    (D) Because the aggregate fair market value of the properties 
transferred by J in the exchange groups ($15,800) exceeds the aggregate 
fair market value of the properties received by J in the exchange groups 
($14,000) by $1800, there is a residual group in that amount consisting 
of the $1800 cash (a Class I asset).
    (E) The transaction also includes a taxable exchange of inventory 
(which is property described in section 1031 (a)(2)) for truck T (which 
is not of a like kind or like class to any property transferred in the 
exchange).
    (iii) J recognizes gain on the transaction as follows:
    (A) With respect to the first exchange group, the amount of gain 
realized is the excess of the aggregate fair market value of the 
properties transferred in the exchange group ($9500) over the aggregate 
adjusted basis ($4000), or $5500. The amount of gain recognized is the 
lesser of the gain realized ($5500) and the exchange group deficiency 
($2500), or $2500.
    (B) With respect to the second exchange group, the amount of gain 
realized is the excess of the aggregate fair market value of the 
properties transferred in the exchange group ($3800) over the aggregate 
adjusted basis ($1200), or $2600. The amount of gain recognized is the 
lesser of the gain realized ($2600) and the exchange group deficiency 
($0), or $0.
    (C) With respect to the third exchange group, a loss is realized in 
the amount of $800 because the fair market value of the property 
transferred in the exchange group ($2500) is less than its adjusted 
basis ($3300). Although a loss of $800 was realized, under section 1031 
(a) and (c) losses are not recognized.
    (D) No property transferred by J was allocated to the residual 
group. Therefore, J does not recognize gain or loss with respect to the 
residual group.
    (E) With respect to the taxable exchange of inventory for truck T, 
gain of $700 is realized and recognized by J (amount realized of $1700 
(the fair market value of truck T) less the adjusted basis of the 
inventory ($1000)).
    (iv) The total amount of gain recognized by J in the transaction is 
the sum of the gains recognized under section 1031 with respect to each 
exchange group ($2500 + $0 + $0) and any gain recognized outside of 
section 1031 ($700), or $3200.
    (v) The bases of the property received by J in the exchange are 
determined in the following manner:
    (A) The aggregate basis of the properties received in the first 
exchange group is the adjusted basis of the properties transferred 
within that exchange group ($4000), increased by the amount of gain 
recognized with respect to that exchange group ($2500), decreased by the 
amount of the exchange group deficiency ($2500), and increased by the 
amount of excess liabilities assumed allocated to that exchange group 
($0), or $4000. This $4000 of basis is allocated proportionately among 
the assets received within the first exchange group in accordance with 
their fair market values: Computer Z's basis is $2571 ($4000 x $4500/
$7000); printer Y's basis is $1429 ($4000 x $2500/$7000).
    (B) The aggregate basis of the properties received in the second 
exchange group is the adjusted basis of the properties transferred 
within that exchange group ($1200), increased by the amount of gain 
recognized with respect to that exchange group ($0), increased by the 
amount of the exchange group surplus ($1200), and increased by the 
amount of excess liabilities assumed allocated to that exchange group 
($0), or $2400. This $2400 of basis is allocated proportionately among 
the assets received within the second exchange group in accordance with 
their fair market values: Real estate X's basis is $480 ($2400 x $1000/
$5000); real estate W's basis is $1920 ($2400 x $4000/$5000).
    (c) The basis of the property received in the third exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($3300), increased by the amount of gain recognized with respect 
to that exchange group ($0), decreased by the amount of the exchange 
group deficiency ($500), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $2800. 
Because grader V was the only property received within the third 
exchange group, the entire basis of $2800 is allocated to grader V.
    (D) Cash of $1800 is received within the residual group.
    (E) The basis of the property received in the taxable exchange 
(truck T) is equal to its cost of $1700.
    Example 4. (i) B exchanges computer A (asset class 00.12), 
automobile A (asset class 00.22) and truck A (asset class 00.241), with 
C for computer R (asset class 00.12), automobile R (asset class 00.22), 
truck R (asset class 00.241) and $400 cash. All properties

[[Page 95]]

transferred by either B or C were held for productive use in the 
respective transferor's business. Similarly, all properties to be 
received by either B or C will be held for productive use in the 
respective recipient's business. Automobile A, automobile R and truck R 
are each secured by a nonrecourse liability and are transferred subject 
to such liability. The adjusted basis, fair market value, and liability 
secured by each property, if any, are as follows:

------------------------------------------------------------------------
                                                       Fair
                                          Adjusted    market   Liability
                                           basis      value
------------------------------------------------------------------------
B transfers:
  Computer A...........................       $800     $1,500         $0
  Automobile A.........................        900      2,500        500
  Truck A..............................        700      2,000          0
C transfers:
  Computer R...........................      1,100      1,600          0
  Automobile R.........................      2,100      3,100        750
  Truck R..............................        600      1,400        250
  Cash.................................  .........        400  .........
------------------------------------------------------------------------

    (ii) The tax treatment to B is as follows:
    (A)(1) The first exchange group consists of computers A and R (both 
are within the same General Asset Class).
    (2) The second exchange group consists of automobiles A and R (both 
are within the same General Asset Class).
    (3) The third exchange group consists of trucks A and R (both are in 
the same General Asset Class).
    (B) Under paragraph (b)(2)(ii) of this section, all liabilities 
assumed by B ($1000) are offset by all liabilities of which B is 
relieved ($500), resulting in excess liabilities assumed of $500. The 
excess liabilities assumed of $500 is allocated among the exchange 
groups in proportion to the fair market value of the properties received 
by B in the exchange groups as follows:
    (1) $131 of excess liabilities assumed ($500 x $1600/$6100) is 
allocated to the first exchange group. The first exchange group has an 
exchange group deficiency of $31 because the fair market value of 
computer A ($1500) exceeds the fair market value of computer R less the 
excess liabilities assumed allocated to the exchange group ($1600-$131) 
by that amount.
    (2) $254 of excess liabilities assumed ($500 x $3100/$6100) is 
allocated to the second exchange group. The second exchange group has an 
exchange group surplus of $346 because the fair market value of 
automobile R less the excess liabilities assumed allocated to the 
exchange group ($3100-$254) exceeds the fair market value of automobile 
A ($2500) by that amount.
    (3) $115 of excess liabilities assumed ($500 x $1400/$6100) is 
allocated to the third exchange group. The third exchange group has an 
exchange group deficiency of $715 because the fair market value of truck 
A ($2000) exceeds the fair market value of truck R less the excess 
liabilities assumed allocated to the exchange group ($1400-$115) by that 
amount.
    (4) The difference between the aggregate fair market value of the 
properties transferred in all of the exchange groups, $6000, and the 
aggregate fair market value of the properties received in all of the 
exchange groups (taking excess liabilities assumed into account), $5600, 
is $400. Therefore there is a residual group in that amount consisting 
of $400 cash received.
    (C) B recognizes gain on the exchange as follows:
    (1) With respect to the first exchange group, the amount of gain 
realized is the excess of the fair market value of computer A ($1500) 
over its adjusted basis ($800), or $700. The amount of gain recognized 
is the lesser of the gain realized ($700) and the exchange group 
deficiency ($31), or $31.
    (2) With respect to the second exchange group, the amount of gain 
realized is the excess of the fair market value of automobile A ($2500) 
over its adjusted basis ($900), or $1600.
    The amount of gain recognized is the lesser of the gain realized 
($1600) and the exchange group deficiency ($0), or $0.
    (3) With respect to the third exchange group, the amount of gain 
realized is the excess of the fair market value of truck A ($2000) over 
its adjusted basis ($700), or $1300. The amount of gain recognized is 
the lesser of gain realized ($1300) and the exchange group deficiency 
($715), or $715.
    (4) No property transferred by B was allocated to the residual 
group. Therefore, B does not recognize gain or loss with respect to the 
residual group.
    (D) The total amount of gain recognized by B in the exchange is the 
sum of the gains recognized under section 1031 with respect to each 
exchange group ($31 + $0 +$715), or $746.
    (E) the bases of the property received by B in the exchange 
(computer R, automobile R, and truck R) are determined in the following 
manner:
    (1) The basis of the property received in the first exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($800), increased by the amount of gain recognized with respect to 
that exchange group ($31), decreased by the amount of the exchange group 
deficiency ($31), and increased by the amount of excess liabilities 
assumed allocated to that exchange group ($131), or $931. Because 
computer R was the only property received within the first exchange 
group, the entire basis of $931 is allocated to computer R.
    (2) The basis of the property received in the second exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($900), increased by the amount of gain recognized with respect to 
that exchange group ($0), increased by the amount of the exchange group 
surplus ($346),

[[Page 96]]

and increased by the amount of excess liabilities assumed allocated to 
that exchange group ($254), or $1500. Because automobile R was the only 
property received within the second exchange group, the entire basis of 
$1500 is allocated to automobile R.
    (3) The basis of the property received in the third exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($700), increased by the amount of gain recognized with respect to 
that exchange group ($715), decreased by the amount of the exchange 
group deficiency ($715), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($115), or $815. 
Because truck R was the only property received within the third exchange 
group, the entire basis of $815 is allocated to truck R.
    (F) Cash of $400 is also received by B.
    (iii) The tax treatment to C is as follows:
    (A) (1) The first exchange group consists of computers R and A (both 
are within the same General Asset Class).
    (2) The second exchange group consists of automobiles R and A (both 
are within the same General Asset Class).
    (3) The third exchange group consists of trucks R and A (both are in 
the same General Asset Class).
    (B) Under paragraph (b)(2)(ii) of this section, all liabilities of 
which C is relieved ($1000) are offset by all liabilities assumed by C 
($500), resulting in excess liabilities relieved of $500. This excess 
liabilities relieved is treated as cash received by C.
    (1) The first exchange group has an exchange group deficiency of 
$100 because the fair market value of computer R ($1600) exceeds the 
fair market value of computer A ($1500) by that amount.
    (2) The second exchange group has an exchange group deficiency of 
$600 because the fair market value of automobile R ($3100) exceeds the 
fair market value of automobile A ($2500) by that amount.
    (3) The third exchange group has an exchange group surplus of $600 
because the fair market value of truck A ($2000) exceeds the fair market 
value of truck R ($1400) by that amount.
    (4) The difference between the aggregate fair market value of the 
properties transferred by C in all of the exchange groups, $6100, and 
the aggregate fair market value of the properties received by C in all 
of the exchange groups, $6000, is $100. Therefore, there is a residual 
group in that amount, consisting of excess liabilities relieved of $100, 
which is treated as cash received by C.
    (5) The $400 cash paid by C and $400 of the excess liabilities 
relieved which is treated as cash received by C are not within the 
exchange groups of the residual group.
    (C) C recognizes gain on the exchange as follows:
    (1) With respect to the first exchange group, the amount of gain 
realized is the excess of the fair market value of computer R ($1600) 
over its adjusted basis ($1100), or $500. The amount of gain recognized 
is the lesser of the gain realized ($500) and the exchange group 
deficiency ($100), or $100.
    (2) With respect to the second exchange group, the amount of gain 
realized is the excess of the fair market value of automobile R ($3100) 
over its adjusted basis ($2100), or $1000. The amount of gain recognized 
is the lesser of the gain realized ($1000) and the exchange group 
deficiency ($600), or $600.
    (3) With respect to the third exchange group, the amount of gain 
realized is the excess of the fair market value of truck R ($1400) over 
its adjusted basis ($600), or $800. The amount of gain recognized is the 
lesser of gain realized ($800) and the exchange group deficiency ($0), 
or $0.
    (4) No property transferred by C was allocated to the residual 
group. Therefore, C does not recognize any gain with respect to the 
residual group.
    (D) The total amount of gain recognized by C in the exchange is the 
sum of the gains recognized under section 1031 with respect to each 
exchange group ($100+$600+$0), or $700.
    (E) The bases of the properties received by C in the exchange 
(computer A, automobile A, and truck A) are determined in the following 
manner:
    (1) The basis of the property received in the first exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($1100), increased by the amount of gain recognized with respect 
to that exchange group ($100), decreased by the amount of the exchange 
group deficiency ($100), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $1100. 
Because computer A was the only property received within the first 
exchange group, the entire basis of $1100 is allocated to computer A.
    (2) The basis of the property received in the second exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($2100), increased by the amount of gain recognized with respect 
to that exchange group ($600), decreased by the amount of the exchange 
group deficiency ($600), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($0), or $2100. 
Because automobile A was the only property received within the second 
exchange group, the entire basis of $2100 is allocated to automobile A.
    (3) The basis of the property received in the third exchange group 
is the adjusted basis of the property transferred within that exchange 
group ($600), increased by the amount of gain recognized with respect to 
that exchange group ($0), increased by the amount of the exchange group 
surplus ($600),

[[Page 97]]

and increased by the amount of excess liabilities assumed allocated to 
that exchange group ($0), or $1200. Because truck A was the only 
property received within the third exchange group, the entire basis of 
$1200 is allocated to truck A.
    Example 5. (i) U exchanges real estate A, real estate B, and grader 
A (NAICS code 333120) with V for real estate R and railroad car R 
(General Asset Class 00.25). All properties transferred by either U or V 
were held for productive use in the respective transferor's business. 
Similarly, all properties to be received by either U or V will be held 
for productive use in the respective recipient's business. Real estate R 
is secured by a recourse liability and is transferred subject to that 
liability. The adjusted basis, fair market value, and liability secured 
by each property, if any, are as follows:

------------------------------------------------------------------------
                                     Adjusted   Fair market
                                      basis        value      Liability
------------------------------------------------------------------------
U Transfers:
  Real Estate A..................        $2000        $5000  ...........
  Real Estate B..................         8000       13,500  ...........
  Grader A.......................          500         2000  ...........
V Transfers:
  Real Estate R..................      $20,000      $26,500        $7000
  Railroad car R.................         1200         1000
------------------------------------------------------------------------

    (ii) The tax treatment to U is as follows:
    (A) The exchange group consists of real estate A, real estate B, and 
real estate R.
    (B) Under paragraph (b)(2)(ii) of this section, all liabilities 
assumed by U ($7000) are excess liabilities assumed. The excess 
liabilities assumed of $7000 is allocated to the exchange group.
    (1) The exchange group has an exchange group surplus of $1000 
because the fair market value of real estate R less the excess 
liabilities assumed allocated to the exchange group ($26,500-$7000) 
exceeds the aggregate fair market value of real estate A and B ($18,500) 
by that amount.
    (2) The difference between the aggregate fair market value of the 
properties received in the exchange group (taking excess liabilities 
assumed into account), $19,500, and the aggregate fair market value of 
the properties transferred in the exchange group, $18,500, is $1000. 
Therefore, there is a residual group in that amount consisting of $1000 
(or 50 percent of the fair market value) of grader A.
    (3) The transaction also includes a taxable exchange of the 50 
percent portion of grader A not allocated to the residual group (which 
is not of a like kind or like class to any property received by U in the 
exchange) for railroad car R (which is not of a like kind or like class 
to any property transferred by U in the exchange).
    (C) U recognizes gain on the exchange as follows:
    (1) With respect to the exchange group, the amount of the gain 
realized is the excess of the aggregate fair market value of real estate 
A and B ($18,500) over the aggregate adjusted basis ($10,000), or $8500. 
The amount of the gain recognized is the lesser of the gain realized 
($8500) and the exchange group deficiency ($0), or $0.
    (2) With respect to the residual group, the amount of gain realized 
and recognized is the excess of the fair market value of the 50 percent 
portion of grader A that is allocated to the residual group ($1000) over 
its adjusted basis ($250), or $750.
    (3) With respect to the taxable exchange of the 50 percent portion 
of grader A not allocated to the residual group for railroad car R, gain 
of $750 is realized and recognized by U (amount realized of $1000 (the 
fair market value of railroad car R) less the adjusted basis of the 50 
percent portion of grader A not allocated to the residual group ($250)).
    (D) The total amount of gain recognized by U in the transaction is 
the sum of the gain recognized under section 1031 with respect to the 
exchange group ($0), any gain recognized with respect to the residual 
group ($750), and any gain recognized with respect to property 
transferred that is not in the exchange group or the residual group 
($750), or $1500.
    (E) The bases of the property received by U in the exchange (real 
estate R and railroad car R) are determined in the following manner:
    (1) The basis of the property received in the exchange group is the 
aggregate adjusted basis of the property transferred within that 
exchange group ($10,000), increased by the amount of gain recognized 
with respect to that exchange group ($0), increased by the amount of the 
exchange group surplus ($1000), and increased by the amount of excess 
liabilities assumed allocated to that exchange group ($7000), or 
$18,000. Because real estate R is the only property received within the 
exchange group, the entire basis of $18,000 is allocated to real estate 
R.
    (2) The basis of railroad car R is equal to its cost of $1000.
    (iii) The tax treatment to V is as follows:
    (A) The exchange group consists of real estate R, real estate A, and 
real estate B.
    (B) Under paragraph (b)(2)(ii) of this section, the liabilities of 
which V is relieved ($7000) results in excess liabilities relieved of 
$7000 and is treated as cash received by V.
    (1) The exchange group has an exchange group deficiency of $8000 
because the fair market value of real estate R ($26,500) exceeds the 
aggregate fair market value of real estate A and B ($18,500) by that 
amount.
    (2) The difference between the aggregate fair market value of the 
properties transferred by V in the exchange group, $26,500, and the 
aggregate fair market value of the properties received by V in the 
exchange group, $18,500, is $8000. Therefore, there is a residual group 
in that amount, consisting of the excess liabilities relieved of $7000, 
which

[[Page 98]]

is treated as cash received by V, and $1000 (or 50 percent of the fair 
market value) of grader A.
    (3) The transaction also includes a taxable exchange of railroad car 
R (which is not of a like kind or like class to any property received by 
V in the exchange) for the 50 percent portion of grader A (which is not 
of a like kind or like class to any property transferred by V in the 
exchange) not allocated to the residual group.
    (C) V recognizes gain on the exchange as follows:
    (1) With respect to the exchange group, the amount of the gain 
realized is the excess of the fair market value of real estate R 
($26,500) over its adjusted basis ($20,000), or $6500. The amount of the 
gain recognized is the lesser of the gain realized ($6500) and the 
exchange group deficiency ($8000), or $6500.
    (2) No property transferred by V was allocated to the residual 
group. Therefore, V does not recognize gain or loss with respect to the 
residual group.
    (3) With respect to the taxable exchange of railroad car R for the 
50 percent portion of grader A not allocated to the exchange group or 
the residual group, a loss is realized and recognized in the amount of 
$200 (the excess of the $1200 adjusted basis of railroad car R over the 
amount realized of $1000 (fair market value of the 50 percent portion of 
grader A)).
    (D) The basis of the property received by V in the exchange (real 
estate A, real estate B, and grader A) are determined in the following 
manner:
    (1) The basis of the property received in the exchange group is the 
adjusted basis of the property transferred within that exchange group 
($20,000), increased by the amount of gain recognized with respect to 
that exchange group ($6500), and decreased by the amount of the exchange 
group deficiency ($8000), or $18,500. This $18,500 of basis is allocated 
proportionately among the assets received within the exchange group in 
accordance with their fair market values: real estate A's basis is $5000 
($18,500 x $5000/$18,500); real estate B's basis is $13,500 ($18,500 x 
$13,500/$18,500).
    (2) The basis of grader A is $2000.

    (e) Effective date. Section 1.1031 (j)-1 is effective for exchanges 
occurring on or after April 11, 1991.

[T.D. 8343, 56 FR 14855, Apr. 12, 1991, as amended by T.D. 8858, 65 FR 
1237, Jan. 7, 2000; T.D. 8940, 66 FR 9929, Feb. 13, 2001; T.D. 9202, 70 
FR 28820, May 19, 2005]



Sec. 1.1031(k)-1  Treatment of deferred exchanges.

    (a) Overview. This section provides rules for the application of 
section 1031 and the regulations thereunder in the case of a ``deferred 
exchange.'' For purposes of section 1031 and this section, a deferred 
exchange is defined as an exchange in which, pursuant to an agreement, 
the taxpayer transfers property held for productive use in a trade or 
business or for investment (the ``relinquished property'') and 
subsequently receives property to be held either for productive use in a 
trade or business or for investment (the ``replacement property''). In 
the case of a deferred exchange, if the requirements set forth in 
paragraphs (b), (c), and (d) of this section (relating to identification 
and receipt of replacement property) are not satisfied, the replacement 
property received by the taxpayer will be treated as property which is 
not of a like kind to the relinquished property. In order to constitute 
a deferred exchange, the transaction must be an exchange (i.e., a 
transfer of property for property, as distinguished from a transfer of 
property for money). For example, a sale of property followed by a 
purchase of property of a like kind does not qualify for nonrecognition 
of gain or loss under section 1031 regardless of whether the 
identification and receipt requirements of section 1031(a)(3) and 
paragraphs (b), (c), and (d) of this section are satisfied. The transfer 
of relinquished property in a deferred exchange is not within the 
provisions of section 1031(a) if, as part of the consideration, the 
taxpayer receives money or property which does not meet the requirements 
of section 1031(a), but the transfer, if otherwise qualified, will be 
within the provisions of either section 1031 (b) or (c). See Sec. 
1.1031(a)-1(a)(2). In addition, in the case of a transfer of 
relinquished property in a deferred exchange, gain or loss may be 
recognized if the taxpayer actually or constructively receives money or 
property which does not meet the requirements of section 1031(a) before 
the taxpayer actually receives like-kind replacement property. If the 
taxpayer actually or constructively receives money or property which 
does not meet the requirements of section 1031(a) in the full amount of 
the consideration for the relinquished property, the transaction will 
constitute a sale, and not a deferred exchange, even though the taxpayer 
may

[[Page 99]]

ultimately receive like-kind replacement property. For purposes of this 
section, property which does not meet the requirements of section 
1031(a) (whether by being described in section 1031(a)(2) or otherwise) 
is referred to as ``other property.'' For rules regarding actual and 
constructive receipt, and safe harbors therefrom, see paragraphs (f) and 
(g), respectively, of this section. For rules regarding the 
determination of gain or loss recognized and the basis of property 
received in a deferred exchange, see paragraph (j) of this section.
    (b) Identification and receipt requirements--(1) In general. In the 
case of a deferred exchange, any replacement property received by the 
taxpayer will be treated as property which is not of a like kind to the 
relinquished property if--
    (i) The replacement property is not ``identified'' before the end of 
the ``identification period,'' or
    (ii) The identified replacement property is not received before the 
end of the ``exchange period.''
    (2) Identification period and exchange period. (i) The 
identification period begins on the date the taxpayer transfers the 
relinquished property and ends at midnight on the 45th day thereafter.
    (ii) The exchange period begins on the date the taxpayer transfers 
the relinquished property and ends at midnight on the earlier of the 
180th day thereafter or the due date (including extensions) for the 
taxpayer's return of the tax imposed by chapter 1 of subtitle A of the 
Code for the taxable year in which the transfer of the relinquished 
property occurs.
    (iii) If, as part of the same deferred exchange, the taxpayer 
transfers more than one relinquished property and the relinquished 
properties are transferred on different dates, the identification period 
and the exchange period are determined by reference to the earliest date 
on which any of the properties are transferred.
    (iv) For purposes of this paragraph (b)(2), property is transferred 
when the property is disposed of within the meaning of section 1001(a).
    (3) Example. This paragraph (b) may be illustrated by the following 
example.

    Example: (i) M is a corporation that files its Federal income tax 
return on a calendar year basis. M and C enter into an agreement for an 
exchange of property that requires M to transfer property X to C. Under 
the agreement, M is to identify like-kind replacement property which C 
is required to purchase and to transfer to M. M transfers property X to 
C on November 16, 1992.
    (ii) The identification period ends at midnight on December 31, 
1992, the day which is 45 days after the date of transfer of property X. 
The exchange period ends at midnight on March 15, 1993, the due date for 
M's Federal income tax return for the taxable year in which M 
transferred property X. However, if M is allowed the automatic six-month 
extension for filing its tax return, the exchange period ends at 
midnight on May 15, 1993, the day which is 180 days after the date of 
transfer of property X.

    (c) Identification of replacement property before the end of the 
identification period--(1) In general. For purposes of paragraph 
(b)(1)(i) of this section (relating to the identification requirement), 
replacement property is identified before the end of the identification 
period only if the requirements of this paragraph (c) are satisfied with 
respect to the replacement property. However, any replacement property 
that is received by the taxpayer before the end of the identification 
period will in all events be treated as identified before the end of the 
identification period.
    (2) Manner of identifying replacement property. Replacement property 
is identified only if it is designated as replacement property in a 
written document signed by the taxpayer and hand delivered, mailed, 
telecopied, or otherwise sent before the end of the identification 
period to either--
    (i) The person obligated to transfer the replacement property to the 
taxpayer (regardless of whether that person is a disqualified person as 
defined in paragraph (k) of this section); or
    (ii) Any other person involved in the exchange other than the 
taxpayer or a disqualified person (as defined in paragraph (k) of this 
section).

Examples of persons involved in the exchange include any of the parties 
to the exchange, an intermediary, an escrow agent, and a title company. 
An identification of replacement property made in a written agreement 
for the exchange of properties signed by all parties thereto before the 
end of the

[[Page 100]]

identification period will be treated as satisfying the requirements of 
this paragraph (c)(2).
    (3) Description of replacement property. Replacement property is 
identified only if it is unambiguously described in the written document 
or agreement. Real property generally is unambiguously described if it 
is described by a legal description, street address, or distinguishable 
name (e.g., the Mayfair Apartment Building). Personal property generally 
is unambiguously described if it is described by a specific description 
of the particular type of property. For example, a truck generally is 
unambigously described if it is described by a specific make, model, and 
year.
    (4) Alternative and multiple properties. (i) The taxpayer may 
identify more than one replacement property. Regardless of the number of 
relinguished properties transferred by the taxpayer as part of the same 
deferred exchange, the maximum number of replacement properties that the 
taxpayer may identify is--
    (A) Three properties without regard to the fair market values of the 
properties (the ``3-property rule''), or
    (B) Any number of properties as long as their aggregate fair market 
value as of the end of the identification period does not exceed 200 
percent of the aggregate fair market value of all the relinguished 
properties as of the date the relinguished properties were transferred 
by the taxpayer (the ``200-percent rule'').
    (ii) If, as of the end of the identification period, the taxpayer 
has identified more properties as replacement properties than permitted 
by paragraph (c)(4)(i) of this section, the taxpayer is treated as if no 
replacement property had been identified. The preceding sentence will 
not apply, however, and an identification satisfying the requirements of 
paragraph (c)(4)(i) of this section will be considered made, with 
respect to--
    (A) Any replacement property received by the taxpayer before the end 
of the identification period, and
    (B) Any replacement property identified before the end of the 
identification period and received before the end of the exchange 
period, but only if the taxpayer receives before the end of the exchange 
period identified replacement property the fair market vlaue of which is 
at least 95 percent of the aggregate fair market value of all identified 
replacement properties (the ``95-percent rule'').

For this purpose, the fair market value of each identified replacement 
property is determined as of the earlier of the date the property is 
received by the taxpayer or the last day of the exchange period.
    (iii) For purposes of applying the 3-property rule, the 200-percent 
rule, and the 95-percent rule, all identifications of replacement 
property, other than identifications of replacement property that have 
been revoked in the manner provided in paragraph (c)(6) of this section, 
are taken into account. For example, if, in a deferred exchange, B 
transfers property X with a fair market value of $100,000 to C and B 
receives like-kind property Y with a fair market value of $50,000 before 
the end of the identification period, under paragraph (c)(1) of this 
section, property Y is treated as identified by reason of being received 
before the end of the identification period. Thus, under paragraph 
(c)(4)(i) of this section, B may identify either two additional 
replacement properties of any fair market value or any number of 
additional replacement properties as long as the aggregate fair market 
value of the additional replacement properties does not exceed $150,000.
    (5) Incidental property disregarded. (i) Solely for purposes of 
applying this paragraph (c), property that is incidental to a larger 
item of property is not treated as property that is separate from the 
larger item of property. Property is incidental to a larger item of 
property if--
    (A) In standard commercial transactions, the property is typically 
transferred together with the larger item of property, and
    (B) The aggregate fair market value of all of the incidental 
property does not exceed 15 percent of the aggregate fair market value 
of the larger item of property.
    (ii) This paragraph (c)(5) may be illustrated by the following 
examples.


[[Page 101]]


    Example 1. For purposes of paragraph (c) of this section, a spare 
tire and tool kit will not be treated as separate property from a truck 
with a fair market value of $10,000, if the aggregate fair market value 
of the spare tire and tool kit does not exceed $1,500. For purposes of 
the 3-property rule, the truck, spare tire, and tool kit are treated as 
1 property. Moreover, for purposes of paragraph (c)(3) of this section 
(relating to the description of replacement property), the truck, spare 
tire, and tool kit are all considered to be unambiguously described if 
the make, model, and year of the truck are specified, even if no 
reference is made to the spare tire and tool kit.
    Example 2. For purposes of paragraph (c) of this section, furniture, 
laundry machines, and other miscellaneous items of personal property 
will not be treated as separate property from an apartment building with 
a fair market value of $1,000,000, if the aggregate fair market value of 
the furniture, laundry machines, and other personal property does not 
exceed $150,000. For purposes of the 3-property rule, the apartment 
building, furniture, laundry machines, and other personal property are 
treated as 1 property. Moreover, for purposes of paragraph (c)(3) of 
this section (relating to the description of replacement property), the 
apartment building, furniture, laundry machines, and other personal 
property are all considered to be unambiguously described if the legal 
description, street address, or distinguishable name of the apartment 
building is specified, even if no reference is made to the furniture, 
laundry machines, and other personal property.

    (6) Revocation of identification. An identification of replacement 
property may be revoked at any time before the end of the identification 
period. An identification of replacement property is revoked only if the 
revocation is made in a written document signed by the taxpayer and hand 
delivered, mailed, telecopied, or othewise sent before the end of the 
identification period to the person to whom the identification of the 
replacement property was sent. An identification of replacement property 
that is made in a written agreement for the exchange of properties is 
treated as revoked only if the revocation is made in a written amendment 
to the agreement or in a written document signed by the taxpayer and 
hand delivered, mailed, telecopied, or othewise sent before the end of 
the identification period to all of the parties to the agreement.
    (7) Examples. This paragraph (c) may be illustrated by the following 
examples. Unless otherwise provided in an example, the following facts 
are assumed: B, a calendar year taxpayer, and C agree to enter into a 
deferred exchange. Pursuant to their agreement, B transfers real 
property X to C on May 17, 1991. Real property X, which has been held by 
B for investment, is unencumbered and has a fair market value on May 17, 
1991, of $100,000. On or before July 1, 1991 (the end of the 
identification period), B is to identify replacement property that is of 
a like kind to real property X. On or before November 13, 1991 (the end 
of the exchange period), C is required to purchase the property 
identified by B and to transfer that property to B. To the extent the 
fair market value of the replacement property transferred to B is 
greater or less than the fair market value of real property X, either B 
or C, as applicable, will make up the difference by paying cash to the 
other party after the date the replacement property is received by B. No 
replacement property is identified in the agreement. When subsequently 
identified, the replacement property is described by legal description 
and is of a like kind to real property X (determined without regard to 
section 1031(a)(3) and this section). B intends to hold the replacement 
property received for investment.

    Example 1. (i) On July 2, 1991, B identifies real property E as 
replacement property by designating real property E as replacement 
property in a written document signed by B and personally delivered to 
C.
    (ii) Because the identification was made after the end of the 
identification period, pursuant to paragraph (b)(1)(i) of this section 
(relating to the identification requirement), real property E is treated 
as property which is not of a like kind to real property X.
    Example 2. (i) C is a corporation of which 20 percent of the 
outstanding stock is owned by B. On July 1, 1991, B identifies real 
property F as replacement property by designating real property F as 
replacement property in a written document signed by B and mailed to C.
    (ii) Because C is the person obligated to transfer the replacement 
property to B, real property F is identified before the end of the 
identification period. The fact that C is a ``disqualified person'' as 
defined in paragraph (k) of this section does not change this result.
    (iii) Real property F would also have been treated as identified 
before the end of the identification period if, instead of sending

[[Page 102]]

the identification to C, B had designated real property F as replacement 
property in a written agreement for the exchange of properties signed by 
all parties thereto on or before July 1, 1991.
    Example 3. (i) On June 3, 1991, B identifies the replacement 
property as ``unimproved land located in Hood County with a fair market 
value not to exceed $100,000.'' The designation is made in a written 
document signed by B and personally delivered to C. On July 8, 1991, B 
and C agree that real property G is the property described in the June 
3, 1991 document.
    (ii) Because real property G was not unambiguously described before 
the end of the identification period, no replacement property is 
identified before the end of the identification period.
    Example 4. (i) On June 28, 1991, B identifies real properties H, J, 
and K as replacement properties by designating these properties as 
replacement properties in a written document signed by B and personally 
delivered to C. The written document provides that by August 1, 1991, B 
will orally inform C which of the identified properties C is to transfer 
to B. As of July 1, 1991, the fair market values of real properties H, 
J, and K are $75,000, $100,000, and $125,000, respectively.
    (ii) Because B did not identify more than three properties as 
replacement properties, the requirements of the 3-property rule are 
satisfied, and real properties H, J, and K are all identified before the 
end of the identification period.
    Example 5. (i) On May 17, 1991, B identifies real properties L, M, 
N, and P as replacement properties by designating these properties as 
replacement properties in a written document signed by B and personally 
delivered to C. The written document provides that by July 2, 1991, B 
will orally inform C which of the identified properties C is to transfer 
to B. As of July 1, 1991, the fair market values of real properties L, 
M, N, and P are $30,000, $40,000, $50,000, and $60,000, respectively.
    (ii) Although B identified more than three properties as replacement 
properties, the aggregate fair market value of the identified properties 
as of the end of the identification period ($180,000) did not exceed 200 
percent of the aggregate fair market value of real property X (200% x 
$100,000 = $200,000). Therefore, the requirements of the 200-percent 
rule are satisfied, and real properties L, M, N, and P are all 
identified before the end of the identification period.
    Example 6. (i) On June 21, 1991, B identifies real properties Q, R, 
and S as replacement properties by designating these properties as 
replacement properties in a written document signed by B and mailed to 
C. On June 24, 1991, B identifies real properties T and U as replacement 
properties in a written document signed by B and mailed to C. On June 
28, 1991, B revokes the identification of real properties Q and R in a 
written document signed by B and personally delivered to C.
    (ii) B has revoked the identification of real properties Q and R in 
the manner provided by paragraph (c)(6) of this section. Identifications 
of replacement property that have been revoked in the manner provided by 
paragraph (c)(6) of this section are not taken into account for purposes 
of applying the 3-property rule. Thus, as of June 28, 1991, B has 
identified only replacement properties S, T, and U for purposes of the 
3-property rule. Because B did not identify more than three properties 
as replacement properties for purposes of the 3-property rule, the 
requirements of that rule are satisfied, and real properties S, T, and U 
are all identified before the end of the identification period.
    Example 7. (i) On May 20, 1991, B identifies real properties V and W 
as replacement properties by designating these properties as replacement 
properties in a written document signed by B and personally delivered to 
C. On June 4, 1991, B identifies real properties Y and Z as replacement 
properties in the same manner. On June 5, 1991, B telephones C and 
orally revokes the identification of real properties V and W. As of July 
1, 1991, the fair market values of real properties V, W, Y, and Z are 
$50,000, $70,000, $90,000, and $100,000, respectively. On July 31, 1991, 
C purchases real property Y and Z and transfers them to B.
    (ii) Pursuant to paragraph (c)(6) of this section (relating to 
revocation of identification), the oral revocation of the identification 
of real properties V and W is invalid. Thus, the identification of real 
properties V and W is taken into account for purposes of determining 
whether the requirements of paragraph (c)(4) of this section (relating 
to the identification of alternative and multiple properties) are 
satisfied. Because B identified more than three properties and the 
aggregate fair market value of the identified properties as of the end 
of the identification period ($310,000) exceeds 200 percent of the fair 
market value of real property X (200% x $100,000 = $200,000), the 
requirements of paragraph (c)(4) of this section are not satisfied, and 
B is treated as if B did not identify any replacement property.

    (d) Receipt of identified replacement property--(1) In general. For 
purposes of paragraph (b)(1)(ii) of this section (relating to the 
receipt requirement), the identified replacement property is received 
before the end of the exchange period only if the requriements of this 
paragraph (d) are satisfied with respect to the replacement property. In 
the case of a deferred exchange, the identified replacement property is 
received

[[Page 103]]

before the end of the exchange period if--
    (i) The taxpayer receives the replacement property before the end of 
the exchange period, and
    (ii) The replacement property received is substantially the same 
property as identified.

If the taxpayer has identified more than one replacement property, 
section 1031(a)(3)(B) and this paragraph (d) are applied separately to 
each replacement property.
    (2) Examples. This paragraph (d) may be illustrated by the following 
examples. The following facts are assumed: B, a calendar year taxpayer, 
and C agree to enter into a deferred exchange. Pursuant to their 
agreement, B transfers real property X to C on May 17, 1991. Real 
property X, which has been held by B for investment, is unencumbered and 
has a fair market value on May 17, 1991, of $100,000. On or before July 
1, 1991 (the end of the identification period), B is to identify 
replacement property that is of a like kind to real property X. On or 
before November 13, 1991 (the end of the exchange period), C is required 
to purchase the property identified by B and to transfer that property 
to B. To the extent the fair market value of the replacement property 
transferred to B is greater or less than the fair market value of real 
property X, either B or C, as applicable, will make up the difference by 
paying cash to the other party after the date the replacement property 
is received by B. The replacement property is identified in a manner 
that satisfies paragraph (c) of this section (relating to identification 
of replacement property) and is of a like kind to real property X 
(determined without regard to section 1031(a)(3) and this section). B 
intends to hold any replacement property received for investment.

    Example 1. (i) In the agreement, B identifies real properties J, K, 
and L as replacement properties. The agreement provides that by July 26, 
1991, B will orally inform C which of the properties C is to transfer to 
B.
    (ii) As of July 1, 1991, the fair market values of real properties 
J, K, and L are $75,000, $100,000, and $125,000, respectively. On July 
26, 1991, B instructs C to acquire real property K. On October 31, 1991, 
C purchases real property K for $100,000 and transfers the property to 
B.
    (iii) Because real property K was identified before the end of the 
identification period and was received before the end of the exchange 
period, the identification and receipt requirements of section 
1031(a)(3) and this section are satisfied with respect to real property 
K.
    Example 2. (i) In the agreement, B identifies real property P as 
replacement property. Real property P consists of two acres of 
unimproved land. On October 15, 1991, the owner of real property P 
erects a fence on the property. On November 1, 1991, C purchases real 
property P and transfers it to B.
    (ii) The erection of the fence on real property P subsequent to its 
identification did not alter the basic nature or character of real 
property P as unimproved land. B is considered to have received 
substantially the same property as identified.
    Example 3. (i) In the agreement, B identifies real property Q as 
replacement property. Real property Q consists of a barn on two acres of 
land and has a fair market value of $250,000 ($187,500 for the barn and 
underlying land and $87,500 for the remaining land). As of July 26, 
1991, real property Q remains unchanged and has a fair market value of 
$250,000. On that date, at B's direction, C purchases the barn and 
underlying land for $187,500 and transfers it to B, and B pays $87,500 
to C.
    (ii) The barn and underlying land differ in basic nature or 
character from real property Q as a whole, B is not considered to have 
received substantially the same property as identified.
    Example 4. (i) In the agreement, B identifies real property R as 
replacement property. Real property R consists of two acres of 
unimproved land and has a fair market value of $250,000. As of October 
3, 1991, real property R remains unimproved and has a fair market value 
of $250,000. On that date, at B's direction, C purchases 1\1/2\ acres of 
real property R for $187,500 and transfers it to B, and B pays $87,500 
to C.
    (ii) The portion of real property R that B received does not differ 
from the basic nature or character of real property R as a whole. 
Moreover, the fair market value of the portion of real property R that B 
received ($187,500) is 75 percent of the fair market value of real 
property R as of the date of receipt. Accordingly, B is considered to 
have received substantially the same property as identified.


[[Page 104]]


    (e) Special rules for identification and receipt of replacement 
property to be produced--(1) In general. A transfer of relinquished 
property in a deferred exchange will not fail to qualify for 
nonrecognition of gain or loss under section 1031 merely because the 
replacement property is not in existence or is being produced at the 
time the property is identified as replacement property. For purposes of 
this paragraph (e), the terms ``produced'' and ``production'' have the 
same meanings as provided in section 263A(g)(1) and the regulations 
thereunder.
    (2) Identification of replacement property to be produced. (i) In 
the case of replacement property that is to be produced, the replacement 
property must be identified as provided in paragraph (c) of this section 
(relating to identification of replacement property). For example, if 
the identified replacement property consists of improved real property 
where the improvements are to be constructed, the description of the 
replacement property satisfies the requirements of paragraph (c)(3) of 
this section (relating to description of replacement property) if a 
legal description is provided for the underlying land and as much detail 
is provided regarding construction of the improvements as is practicable 
at the time the identification is made.
    (ii) For purposes of paragraphs (c)(4)(i)(B) and (c)(5) of this 
section (relating to the 200-percent rule and incidental property), the 
fair market value of replacement property that is to be produced is its 
estimated fair market value as of the date it is expected to be received 
by the taxpayer.
    (3) Receipt of replacement property to be produced. (i) For purposes 
of paragraph (d)(1)(ii) of this section (relating to receipt of the 
identified replacement property), in determining whether the replacement 
property received by the taxpayer is substantially the same property as 
identified where the identified replacement property is property to be 
produced, variations due to usual or typical production changes are not 
taken into account. However, if substantial changes are made in the 
property to be produced, the replacement property received will not be 
considered to be substantially the same property as identified.
    (ii) If the identified replacement property is personal property to 
be produced, the replacement property received will not be considered to 
be substantially the same property as identified unless production of 
the replacement property received is completed on or before the date the 
property is received by the taxpayer.
    (iii) If the identified replacement property is real property to be 
produced and the production of the property is not completed on or 
before the date the taxpayer receives the property, the property 
received will be considered to be substantially the same property as 
identified only if, had production been completed on or before the date 
the taxpayer receives the replacement property, the property received 
would have been considered to be substantially the same property as 
identified. Even so, the property received is considered to be 
substantially the same property as identified only to the extent the 
property received constitutes real property under local law.
    (4) Additional rules. The transfer of relinquished property is not 
within the provisions of section 1031(a) if the relinquished property is 
transferred in exchange for services (including production services). 
Thus, any additional production occurring with respect to the 
replacement property after the property is received by the taxpayer will 
not be treated as the receipt of property of a like kind.
    (5) Example. This paragraph (e) may be illustrated by the following 
example.

    Example: (i) B, a calendar year taxpayer, and C agree to enter into 
a deferred exchange. Pursuant to their agreement, B transfers improved 
real property X and personal property Y to C on May 17, 1991. On or 
before November 13, 1991 (the end of the exchange period), C is required 
to transfer to B real property M, on which C is constructing 
improvements, and personal property N, which C is producing. C is 
obligated to complete the improvements and production regardless of when 
properties M and N are transferred to B. Properties M and N are 
identified in a manner that satisfies paragraphs (c) (relating to 
identification of replacement property) and (e)(2) of this section. In 
addition, properties M and N are of a like kind, respectively, to real 
property X

[[Page 105]]

and personal property Y (determined without regard to section 1031(a)(3) 
and this section). On November 13, 1991, when construction of the 
improvements to property M is 20 percent completed and the production of 
property N is 90 percent completed, C transfers to B property M and 
property N. If construction of the improvements had been completed, 
property M would have been considered to be substantially the same 
property as identified. Under local law, property M constitutes real 
property to the extent of the underlying land and the 20 percent of the 
construction that is completed.
    (ii) Because property N is personal property to be produced and 
production of property N is not completed before the date the property 
is received by B, property N is not considered to be substantially the 
same property as identified and is treated as property which is not of a 
like kind to property Y.
    (iii) Property M is considered to be substantially the same property 
as identified to the extent of the underlying land and the 20 percent of 
the construction that is completed when property M is received by B. 
However, any additional construction performed by C with respect to 
property M after November 13, 1991, is not treated as the receipt of 
property of a like kind.

    (f) Receipt of money or other property--(1) In general. A transfer 
of relinquished property in a deferred exchange is not within the 
provisions of section 1031(a) if, as part of the consideration, the 
taxpayer receives money or other property. However, such a transfer, if 
otherwise qualified, will be within the provisions of either section 
1031 (b) or (c). See Sec. 1.1031(a)-1(a)(2). In addition, in the case 
of a transfer of relinquished property in a deferred exchange, gain or 
loss may be recognized if the taxpayer actually or constructively 
receives money or other property before the taxpayer actually receives 
like-kind replacement property. If the taxpayer actually or 
constructively receives money or other property in the full amount of 
the consideration for the relinquished property before the taxpayer 
actually receives like-kind replacement property, the transaction will 
constitute a sale and not a deferred exchange, even though the taxpayer 
may ultimately receive like-kind replacement property.
    (2) Actual and constructive receipt. Except as provided in paragraph 
(g) of this section (relating to safe harbors), for purposes of section 
1031 and this section, the determination of whether (or the extent to 
which) the taxpayer is in actual or constructive receipt of money or 
other property before the taxpayer actually receives like-kind 
replacement property is made under the general rules concerning actual 
and constructive receipt and without regard to the taxpayer's method of 
accounting. The taxpayer is in actual receipt of money or property at 
the time the taxpayer actually receives the money or property or 
receives the economic benefit of the money or property. The taxpayer is 
in constructive receipt of money or property at the time the money or 
property is credited to the taxpayer's account, set apart for the 
taxpayer, or otherwise made available so that the taxpayer may draw upon 
it at any time or so that the taxpayer can draw upon it if notice of 
intention to draw is given. Although the taxpayer is not in constructive 
receipt of money or property if the taxpayer's control of its receipt is 
subject to substantial limitations or restrictions, the taxpayer is in 
constructive receipt of the money or property at the time the 
limitations or restrictions lapse, expire, or are waived. In addition, 
actual or constructive receipt of money or property by an agent of the 
taxpayer (determined without regard to paragraph (k) of this section) is 
actual or constructive receipt by the taxpayer.
    (3) Example. This paragraph (f) may be illustrated by the following 
example.

    Example: (i) B, a calendar year taxpayer, and C agree to enter into 
a deferred exchange. Pursuant to the agreement, on May 17, 1991, B 
transfers real property X to C. Real property X, which has been held by 
B for investment, is unencumbered and has a fair market value on May 17, 
1991, of $100,000. On or before July 1, 1991 (the end of the 
identification period), B is to identify replacement property that is of 
a like kind to real property X. On or before November 13, 1991 (the end 
of the exchange period), C is required to purchase the property 
identified by B and to transfer that property to B. At any time after 
May 17, 1991, and before C has purchased the replacement property, B has 
the right, upon notice, to demand that C pay $100,000 in lieu of 
acquiring and transferring the replacement property. Pursuant to the 
agreement, B identifies replacement property, and C purchases the 
replacement property and transfers it to B.

[[Page 106]]

    (ii) Under the agreement, B has the unrestricted right to demand the 
payment of $100,000 as of May 17, 1991. B is therefore in constructive 
receipt of $100,000 on that date. Because B is in constructive receipt 
of money in the full amount of the consideration for the relinquished 
property before B actually receives the like-kind replacement property, 
the transaction constitutes a sale, and the transfer of real property X 
does not qualify for nonrecognition of gain or loss under section 1031. 
B is treated as if B received the $100,000 in consideration for the sale 
of real property X and then purchased the like-kind replacement 
property.
    (iii) If B's right to demand payment of the $100,000 were subject to 
a substantial limitation or restriction (e.g., the agreement provided 
that B had no right to demand payment before November 14, 1991 (the end 
of the exchange period)), then, for purposes of this section, B would 
not be in actual or constructive receipt of the money unless (or until) 
the limitation or restriction lapsed, expired, or was waived.

    (g) Safe harbors--(1) In general. Paragraphs (g)(2) through (g)(5) 
of this section set forth four safe harbors the use of which will result 
in a determination that the taxpayer is not in actual or constructive 
receipt of money or other property for purposes of section 1031 and this 
section. More than one safe harbor can be used in the same deferred 
exchange, but the terms and conditions of each must be separately 
satisfied. For purposes of the safe harbor rules, the term ``taxpayer'' 
does not include a person or entity utilized in a safe harbor (e.g., a 
qualified intermediary). See paragraph (g)(8), Example 3(v), of this 
section.
    (2) Security or guarantee arrangements. (i) In the case of a 
deferred exchange, the determination of whether the taxpayer is in 
actual or constructive receipt of money or other property before the 
taxpayer actually receives like-kind replacement property will be made 
without regard to the fact that the obligation of the taxpayer's 
transferee to transfer the replacement property to the taxpayer is or 
may be secured or guaranteed by one or more of the following--
    (A) A mortgage, deed of trust, or other security interest in 
property (other than cash or a cash equivalent),
    (B) A standby letter of credit which satisfies all of the 
requirements of Sec. 15A.453-1 (b)(3)(iii) and which may not be drawn 
upon in the absence of a default of the transferee's obligation to 
transfer like-kind replacement property to the taxpayer, or
    (C) A guarantee of a third party.
    (ii) Paragraph (g)(2)(i) of this section ceases to apply at the time 
the taxpayer has an immediate ability or unrestricted right to receive 
money or other property pursuant to the security or guarantee 
arrangement.
    (3) Qualified escrow accounts and qualified trusts. (i) In the case 
of a deferred exchange, the determination of whether the taxpayer is in 
actual or constructive receipt of money or other property before the 
taxpayer actually receives like-kind replacement property will be made 
without regard to the fact that the obligation of the taxpayer's 
transferee to transfer the replacement property to the taxpayer is or 
may be secured by cash or a cash equivalent if the cash or cash 
equivalent is held in a qualified escrow account or in a qualified 
trust.
    (ii) A qualified escrow account is an escrow account wherein--
    (A) The escrow holder is not the taxpayer or a disqualified person 
(as defined in paragraph (k) of this section), and
    (B) The escrow agreement expressly limits the taxpayer's rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the cash or 
cash equivalent held in the escrow account as provided in paragraph 
(g)(6) of this section.
    (iii) A qualified trust is a trust wherein--
    (A) The trustee is not the taxpayer or a disqualified person (as 
defined in paragraph (k) of this section, except that for this purpose 
the relationship between the taxpayer and the trustee created by the 
qualified trust will not be considered a relationship under section 
267(b)), and
    (B) The trust agreement expressly limits the taxpayer's rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the cash or 
cash equivalent held by the trustee as provided in paragraph (g)(6) of 
this section.
    (iv) Paragraph (g)(3)(i) of this section ceases to apply at the time 
the taxpayer has an immediate ability or unrestricted right to receive, 
pledge, borrow, or otherwise obtain the benefits of the cash or cash 
equivalent held in the

[[Page 107]]

qualified escrow account or qualified trust. Rights conferred upon the 
taxpayer under state law to terminate or dismiss the escrow holder of a 
qualified escrow account or the trustee of a qualified trust are 
disregarded for this purpose.
    (v) A taxpayer may receive money or other property directly from a 
party to the exchange, but not from a qualified escrow account or a 
qualified trust, without affecting the application of paragraph 
(g)(3)(i) of this section.
    (4) Qualified intermediaries. (i) In the case of a taxpayer's 
transfer of relinquished property involving a qualified intermediary, 
the qualified intermediary is not considered the agent of the taxpayer 
for purposes of section 1031(a). In such a case, the taxpayer's transfer 
of relinquished property and subsequent receipt of like-kind replacement 
property is treated as an exchange, and the determination of whether the 
taxpayer is in actual or constructive receipt of money or other property 
before the taxpayer actually receives like-kind replacement property is 
made as if the qualified intermediary is not the agent of the taxpayer.
    (ii) Paragraph (g)(4)(i) of this section applies only if the 
agreement between the taxpayer and the qualified intermediary expressly 
limits the taxpayer's rights to receive, pledge, borrow, or otherwise 
obtain the benefits of money or other property held by the qualified 
intermediary as provided in paragraph (g)(6) of this section.
    (iii) A qualified intermediary is a person who--
    (A) Is not the taxpayer or a disqualified person (as defined in 
paragraph (k) of this section), and
    (B) Enters into a written agreement with the taxpayer (the 
``exchange agreement'') and, as required by the exchange agreement, 
acquires the relinquished property from the taxpayer, transfers the 
relinquished property, acquires the replacement property, and transfers 
the replacement property to the taxpayer.
    (iv) Regardless of whether an intermediary acquires and transfers 
property under general tax principals, solely for purposes of paragraph 
(g)(4)(iii)(B) of this section--
    (A) An intermediary is treated as acquiring and transferring 
property if the intermediary acquires and transfers legal title to that 
property,
    (B) An intermediary is treated as acquiring and transferring the 
relinquished property if the intermediary (either on its own behalf or 
as the agent of any party to the transaction) enters into an agreement 
with a person other than the taxpayer for the transfer of the 
relinquished property to that person and, pursuant to that agreement, 
the relinquished property is transferred to that person, and
    (C) An intermediary is treated as acquiring and transferring 
replacement property if the intermediary (either on its own behalf or as 
the agent of any party to the transaction) enters into an agreement with 
the owner of the replacement property for the transfer of that property 
and, pursuant to that agreement, the replacement property is transferred 
to the taxpayer.
    (v) Solely for purposes of paragraphs (g)(4)(iii) and (g)(4)(iv) of 
this section, an intermediary is treated as entering into an agreement 
if the rights of a party to the agreement are assigned to the 
intermediary and all parties to that agreement are notified in writing 
of the assignment on or before the date of the relevent transfer of 
property. For example, if a taxpayer enters into an agreement for the 
transfer of relinquished property and thereafter assigns its rights in 
that agreement to an intermediary and all parties to that agreement are 
notified in writing of the assignment on or before the date of the 
transfer of the relinquished property, the intermediary is treated as 
entering into that agreement. If the relinquished property is 
transferred pursuant to that agreement, the intermediary is treated as 
having acquired and transferred the relinquished property.
    (vi) Paragraph (g)(4)(i) of this section ceases to apply at the time 
the taxpayer has an immediate ability or unrestricted right to receive, 
pledge, borrow, or otherwise obtain the benefits of money or other 
property held by the qualified intermediary. Rights conferred upon the 
taxpayer under state

[[Page 108]]

law to terminate or dismiss the qualified intermediary are disregarded 
for this purpose.
    (vii) A taxpayer may receive money or other property directly from a 
party to the transaction other than the qualified intermediary without 
affecting the application of paragraph (g)(4)(i) of this section.
    (5) Interest and growth factors. In the case of a deferred exchange, 
the determination of whether the taxpayer is in actual or constructive 
receipt of money or other property before the taxpayer actually receives 
the like-kind replacement property will be made without regard to the 
fact that the taxpayer is or may be entitled to receive any interest or 
growth factor with respect to the deferred exchange. The preceding 
sentence applies only if the agreement pursuant to which the taxpayer is 
or may be entitled to the interest or growth factor expressly limits the 
taxpayer's rights to receive the interest or growth factor as provided 
in paragragh (g)(6) of this section. For additional rules concerning 
interest or growth factors, see paragraph (h) of this section.
    (6) Additional restrictions on safe harbors under paragraphs (g)(3) 
through (g)(5). (i) An agreement limits a taxpayer's rights as provided 
in this paragraph (g)(6) only if the agreement provides that the 
taxpayer has no rights, except as provided in paragraph (g)(6)(ii) and 
(g)(6)(iii) of this section, to receive, pledge, borrow, or otherwise 
obtain the benefits of money or other property before the end of the 
exchange period.
    (ii) The agreement may provide that if the taxpayer has not 
identified replacement property by the end of the identification period, 
the taxpayer may have rights to receive, pledge, borrow, or othewise 
obtain the benefits of money or other property at any time after the end 
of the identification period.
    (iii) The agreement may provide that if the taxpayer has identified 
replacement property, the taxpayer may have rights to receive, pledge, 
borrow, or otherwise obtain the benefits of money or other property upon 
or after--
    (A) The receipt by the taxpayer of all of the replacement property 
to which the taxpayer is entitled under the exchange agreement, or
    (B) The occurrence after the end of the identification period of a 
material and substantial contingency that--
    (1) Relates to the deferred exchange,
    (2) Is provided for in writing, and
    (3) Is beyond the control of the taxpayer and of any disqualified 
person (as defined in paragraph (k) of this section), other than the 
person obligated to transfer the replacement property to the taxpayer.
    (7) Items disregarded in applying safe harbors under paragraphs 
(g)(3) through (g)(5). In determining whether a safe harbor under 
paragraphs (g)(3) through (g)(5) of this section ceases to apply and 
whether the taxpayer's rights to receive, pledge, borrow, or otherwise 
obtain the benefits of money or other property are expressly limited as 
provided in paragraph (g)(6) of this section, the taxpayer's receipt of 
or right to receive any of the following items will be disregarded--
    (i) Items that a seller may receive as a consequence of the 
disposition of property and that are not included in the amount realized 
from the disposition of property (e.g., prorated rents), and
    (ii) Transactional items that relate to the disposition of the 
relinquished property or to the acquisition of the replacement property 
and appear under local standards in the typical closing statements as 
the responsibility of a buyer or seller (e.g., commissions, prorated 
taxes, recording or transfer taxes, and title company fees).
    (8) Examples. This paragraph (g) may be illustrated by the following 
examples. Unless otherwise provided in an example, the following facts 
are assumed: B, a calendar year taxpayer, and C agree to enter into a 
deferred exchange. Pursuant to their agreement, B is to transfer real 
property X to C on May 17, 1991. Real property X, which has been held by 
B for investment, is unencumbered and has a fair market value on May 17, 
1991, of $100,000. On or before July 1, 1991 (the end of the 
identification period), B is to identify replacement property that is of 
a like kind to real property X. On or before

[[Page 109]]

November 13, 1991 (the end of the exchange period), C is required to 
purchase the property identified by B and to transfer that property to 
B. To the extent the fair market value of the replacement property 
transferred to B is greater or less than the fair market value property 
X, either B or C, as applicable, will make up the difference by paying 
cash to the other party after the date the replacement property is 
received by B. The replacement property is identified as provided in 
paragraph (c) of this section (relating to identification of replacement 
property) and is of a like kind to real property X (determined without 
regard to section 1031(a)(3) and this section). B intends to hold any 
replacement property received for investment.

    Example 1. (i) On May 17, 1991, B transfers real property X to C. On 
the same day, C pays $10,000 to B and deposits $90,000 in escrow as 
security for C's obligation to perform under the agreement. The escrow 
agreement provides that B has no rights to receive, pledge, borrow, or 
otherwise obtain the benefits of the money in escrow before November 14, 
1991, except that:
    (A) if B fails to identify replacement property on or before July 1, 
1991, B may demand the funds in escrow at any time after July 1, 1991; 
and
    (B) if B identifies and receives replacement property, then B may 
demand the balance of the remaining funds in escrow at any time after B 
has received the replacement property.
    The funds in escrow may be used to purchase the replacement 
property. The escrow holder is not a disqualified person as defined in 
paragraph (k) of this section. Pursuant to the terms of the agreement, B 
identifies replacement property, and C purchases the replacement 
property using the funds in escrow and tranfers the replacement property 
to B.
    (ii) C's obligation to transfer the replacement property to B was 
secured by cash held in a qualified escrow account because the escrow 
holder was not a disqualified person and the escrow agreement expressly 
limited B's rights to receive, pledge, borrow, or otherwise obtain the 
benefits of the money in escrow as provided in paragraph (g)(6) of this 
section. In addition, B did not have the immediate ability or 
unrestricted right to receive money or other property in escrow before B 
actually received the like-kind replacement property. Therefore, for 
purposes of section 1031 and this section, B is determined not to be in 
actual or constructive receipt of the $90,000 held in escrow before B 
received the like-kind replacement property. The transfer of real 
property X by B and B's acquisition of the replacement property qualify 
as an exchange under section 1031. See paragraph (j) of this section for 
determining the amount of gain or loss recognized.
    Example 2. (i) On May 17, 1991, B transfers real property X to C, 
and C deposits $100,000 in escrow as security for C's obligation to 
perform under the agreement. Also on May 17, B identifies real property 
J as replacement property. The escrow agreement provides that no funds 
may be paid out without prior written approval of both B and C. The 
escrow agreement also provides that B has no rights to receive, pledge, 
borrow, or otherwise obtain the benefits of the money in escrow before 
November 14, 1991, except that:
    (A) B may demand the funds in escrow at any time after the later of 
July 1, 1991, and the occurrence of any of the following events--
    (1) real property J is destroyed, seized, requisitioned, or 
condemned, or
    (2) a determination is made that the regulatory approval necessary 
for the transfer of real property J cannot be obtained in time for real 
property J to be transferred to B before the end of the exchange period;
    (B) B may demand the funds in escrow at any time after August 14, 
1991, if real property J has not been rezoned from residential to 
commercial use by that date; and
    (C) B may demand the funds in escrow at the time B receives real 
property J or any time thereafter.
    Otherwise, B is entitled to all funds in escrow after November 13, 
1991. The funds in escrow may be used to purchase the replacement 
property. The escrow holder is not a disqualified person as described in 
paragraph (k) of this section. Real property J is not rezoned from 
residential to commercial use on or before August 14, 1991.
    (ii) C's obligation to transfer the replacement property to B was 
secured by cash held in a qualified escrow account because the escrow 
holder was not a disqualified person and the escrow agreement expressly 
limited B's rights to receive, pledge, borrow, or otherwise obtain the 
benefits of the money in escrow as provided in paragraph (g)(6) of this 
section. From May 17, 1991, until August 15, 1991, B did not have the 
immediate ability or unrestricted right to receive money or other 
property before B actually received the like-kind replacement property. 
Therefore, for purposes of section 1031 and this section, B is 
determined not to be in actual or constructive receipt of the $100,000 
in escrow from May 17, 1991, until August 15, 1991. However, on August 
15, 1991, B had the unrestricted right, upon notice, to draw upon the 
$100,000 held in escrow. Thus, the safe harbor ceased to apply and B was 
in constructive receipt of the funds held in escrow. Because B 
constructively received the full amount of the

[[Page 110]]

consideration ($100,000) before B actually received the like-kind 
replacement property, the transaction is treated as a sale and not as a 
deferred exchange. The result does not change even if B chose not to 
demand the funds in escrow and continued to attempt to have real 
property J rezoned and to receive the property on or before November 13, 
1991.
    (iii) If real property J had been rezoned on or before August 14, 
1991, and C had purchased real property J and transferred it to B on or 
before November 13, 1991, the transaction would have qualified for 
nonrecognition of gain or loss under section 1031(a).
    Example 3. (i) On May 1, 1991, D offers to purchase real property X 
for $100,000. However, D is unwilling to participate in a like-kind 
exchange. B thus enters into an exchange agreement with C whereby B 
retains C to facilitate an exchange with respect to real property X. C 
is not a disqualified person as described in paragraph (k) of this 
section. The exchange agreement between B and C provides that B is to 
execute and deliver a deed conveying real property X to C who, in turn, 
is to execute and deliver a deed conveying real property X to D. The 
exchange agreement expressly limits B's rights to receive, pledge, 
borrow, or otherwise obtain the benefits of money or other property held 
by C as provided in paragraph (g)(6) of this section. On May 3, 1991, C 
enters into an agreement with D to transfer real property X to D for 
$100,000. On May 17, 1991, B executes and delivers to C a deed conveying 
real property X to C. On the same date, C executes and delivers to D a 
deed conveying real property X to D, and D deposits $100,000 in escrow. 
The escrow holder is not a disqualified person as defined in paragraph 
(k) of this section and the escrow agreement expressly limits B's rights 
to receive, pledge, borrow, or otherwise obtain the benefits of money or 
other property in escrow as provided in paragraph (g)(6) of this 
section. However, the escrow agreement provides that the money in escrow 
may be used to purchase replacement property. On June 3, 1991, B 
identifies real property K as replacement property. On August 9, 1991, E 
executes and delivers to C a deed conveying real property K to C and 
$80,000 is released from the escrow and paid to E. On the same date, C 
executes and delivers to B a deed conveying real property K to B, and 
the escrow holder pays B $20,000, the balance of the $100,000 sale price 
of real property X remaining after the purchase of real property K for 
$80,000.
    (ii) B and C entered into an exchange agreement that satisfied the 
requirements of paragraph (g)(4)(iii)(B) of this section. Regardless of 
whether C may have acquired and transferred real property X under 
general tax principles, C is treated as having acquired and transferred 
real property X because C acquired and transferred legal title to real 
property X. Similarly, C is treated as having acquired and transferred 
real property K because C acquired and transferred legal title to real 
property K. Thus, C was a qualified intermediary. This result is reached 
for purposes of this section regardless of whether C was B's agent under 
state law.
    (iii) Because the escrow holder was not a disqualified person and 
the escrow agreement expressly limited B's rights to receive, pledge, 
borrow, or otherwise obtain the benefits of money or other property in 
escrow as provided in paragraph (g)(6) of this section, the escrow 
account was a qualified escrow account. For purposes of section 1031 and 
this section, therefore, B is determined not to be in actual or 
constructive receipt of the funds in escrow before B received real 
property K.
    (iv) The exchange agreement between B and C expressly limited B's 
rights to receive, pledge, borrow, or otherwise obtain the benefits of 
any money held by C as provided in paragraph (g)(6) of this section. 
Because C was a qualified intermediary, for purposes of section 1031 and 
this section B is determined not to be in actual or constructive receipt 
of any funds held by C before B received real property K. In addition, 
B's transfer of real property X and acquisition of real property K 
qualify as an exchange under section 1031. See paragraph (j) of this 
section for determining the amount of gain or loss recognized.
    (v) If the escrow agreement had expressly limited C's rights to 
receive, pledge, borrow, or otherwise obtain the benefits of money or 
other property in escrow as provided in paragraph (g)(6) of this 
section, but had not expressly limited B's rights to receive, pledge, 
borrow, or otherwise obtain the benefits of that money or other 
property, the escrow account would not have been a qualified escrow 
account. Consequently, paragraph (g)(3)(i) of this section would not 
have been applicable in determining whether B was in actual or 
constructive receipt of that money or other property before B received 
real property K.
    Example 4. (i) On May 1, 1991, B enters into an agreement to sell 
real property X to D for $100,000 on May 17, 1991. However, D is 
unwilling to participate in a like-kind exchange. B thus enters into an 
exchange agreement with C whereby B retains C to facilitate an exchange 
with respect to real property X. C is not a disqualified person as 
described in paragraph (k) of this section. In the exchange agreement 
between B and C, B assigns to C all of B's rights in the agreement with 
D. The exchange agreement expressly limits B's rights to receive, 
pledge, borrow, or otherwise obtain the benefits of money or other 
property held by C as provided in paragraph (g)(6) of this section. On 
May 17, 1991, B notifies D in writing of the assignment. On the same 
date, B executes

[[Page 111]]

and delivers to D a deed conveying real property X to D. D pays $10,000 
to B and $90,000 to C. On June 1, 1991, B identifies real property L as 
replacement property. On July 5, 1991, B enters into an agreement to 
purchase real property L from E for $90,000, assigns its rights in that 
agreement to C, and notifies E in writing of the assignment. On August 
9, 1991, C pays $90,000 to E, and E executes and delivers to B a deed 
conveying real property L to B.
    (ii) The exchange agreement entered into by B and C satisfied the 
requirements of paragraph (g)(4)(iii)(B) of this section. Because B's 
rights in its agreements with D and E were assigned to C, and D and E 
were notified in writing of the assignment on or before the transfer of 
real properties X and L, respectively, C is treated as entering into 
those agreements. Because C is treated as entering into an agreement 
with D for the transfer of real property X and, pursuant to that 
agreement, real property X was transferred to D, C is treated as 
acquiring and transferring real property X. Similarly, because C is 
treated as entering into an agreement with E for the transfer of real 
property K and, pursuant to that agreement, real property K was 
transferred to B, C is treated as acquiring and transferring real 
property K. This result is reached for purposes of this section 
regardless of whether C was B's agent under state law and regardless of 
whether C is considered, under general tax principles, to have acquired 
title or beneficial ownership of the properties. Thus, C was a qualified 
intermediary.
    (iii) The exchange agreement between B and C expressly limited B's 
rights to receive, pledge, borrow, or otherwise obtain the benefits of 
the money held by C as provided in paragraph (g)(6) of this section. 
Thus, B did not have the immediate ability or unrestricted right to 
receive money or other property held by C before B received real 
property L. For purposes of section 1031 and this section, therefore, B 
is determined not to be in actual or constructive receipt of the $90,000 
held by C before B received real property L. In addition, the transfer 
of real property X by B and B's acquisition of real property L qualify 
as an exchange under section 1031. See paragraph (j) of this section for 
determining the amount of gain or loss recognized.
    Example 5. (i) On May 1, 1991, B enters into an agreement to sell 
real property X to D for $100,000. However, D is unwilling to 
participate in a like-kind exchange. B thus enters into an agreement 
with C whereby B retains C to facilitate an exchange with respect to 
real property X. C is not a disqualified person as described in 
paragraph (k) of this section. The agreement between B and C expressly 
limits B's rights to receive, pledge, borrow, or otherwise obtain the 
benefits of money or other property held by C as provided in paragraph 
(g)(6) of this section. C neither enters into an agreement with D to 
transfer real property X to D nor is assigned B's rights in B's 
agreement to sell real property X to D. On May 17, 1991, B transfers 
real property X to D and instructs D to transfer the $100,000 to C. On 
June 1, 1991, B identifies real property M as replacement property. On 
August 9, 1991, C purchases real property L from E for $100,000, and E 
executes and delivers to C a deed conveying real property M to C. On the 
same date, C executes and delivers to B a deed conveying real property M 
to B.
    (ii) Because B transferred real property X directly to D under B's 
agreement with D, C did not acquire real property X from B and transfer 
real property X to D. Moreover, because C did not acquire legal title to 
real property X, did not enter into an agreement with D to transfer real 
property X to D, and was not assigned B's rights in B's agreement to 
sell real property X to D, C is not treated as acquiring and 
transferring real property X. Thus, C was not a qualified intermediary 
and paragraph (g)(4))(i) of this section does not apply.
    (iii) B did not exchange real property X for real property M. 
Rather, B sold real property X to D and purchased, through C, real 
property M. Therefore, the transfer of real property X does not qualify 
for nonrecognition of gain or loss under section 1031.

    (h) Interest and growth factors--(1) In general. For purposes of 
this section, the taxpayer is treated as being entitled to receive 
interest or a growth factor with respect to a deferred exchange if the 
amount of money or property the taxpayer is entitled to receive depends 
upon the length of time elapsed between transfer of the relinquished 
property and receipt of the replacement property.
    (2) Treatment as interest. If, as part of a deferred exchange, the 
taxpayer receives interest or a growth factor, the interest or growth 
factor will be treated as interest, regardless of whether it is paid to 
the taxpayer in cash or in property (including property of a like kind). 
The taxpayer must include the interest or growth factor in income 
according to the taxpayer's method of accounting.
    (i) [Reserved]
    (j) Determination of gain or loss recognized and the basis of 
property received in a deferred exchange--(1) In general. Except as 
otherwise provided, the amount of gain or loss recognized and the basis 
of property received in a deferred exchange is determined by applying 
the

[[Page 112]]

rules of section 1031 and the regulations thereunder. See Sec. Sec. 
1.1031(b)-1, 1.1031(c)-1, 1.1031(d)-1, 1.1031(d)-1T, 1.1031(d)-2, and 
1.1031(j)-1.
    (2) Coordination with section 453--(i) Qualified escrow accounts and 
qualified trusts. Subject to the limitations of paragraphs (j)(2) (iv) 
and (v) of this section, in the case of a taxpayer's transfer of 
relinquished property in which the obligation of the taxpayer's 
transferee to transfer replacement property to the taxpayer is or may be 
secured by cash or a cash equivalent, the determination of whether the 
taxpayer has received a payment for purposes of section 453 and Sec. 
15a.453-1(b)(3)(i) of this chapter will be made without regard to the 
fact that the obligation is or may be so secured if the cash or cash 
equivalent is held in a qualified escrow account or a qualified trust. 
This paragraph (j)(2)(i) ceases to apply at the earlier of--
    (A) The time described in paragraph (g)(3)(iv) of this section; or
    (B) The end of the exchange period.
    (ii) Qualified intermediaries. Subject to the limitations of 
paragraphs (j)(2) (iv) and (v) of this section, in the case of a 
taxpayer's transfer of relinquished property involving a qualified 
intermediary, the determination of whether the taxpayer has received a 
payment for purposes of section 453 and Sec. 15a.453-1(b)(3)(i) of this 
chapter is made as if the qualified intermediary is not the agent of the 
taxpayer. For purposes of this paragraph (j)(2)(ii), a person who 
otherwise satisfies the definition of a qualified intermediary is 
treated as a qualified intermediary even though that person ultimately 
fails to acquire identified replacement property and transfer it to the 
taxpayer. This paragraph (j)(2)(ii) ceases to apply at the earlier of--
    (A) The time described in paragraph (g)(4)(vi) of this section; or
    (B) The end of the exchange period.
    (iii) Transferee indebtedness. In the case of a transaction 
described in paragraph (j)(2)(ii) of this section, the receipt by the 
taxpayer of an evidence of indebtedness of the transferee of the 
qualified intermediary is treated as the receipt of an evidence of 
indebtedness of the person acquiring property from the taxpayer for 
purposes of section 453 and Sec. 15a.453-1(b)(3)(i) of this chapter.
    (iv) Bona fide intent requirement. The provisions of paragraphs 
(j)(2) (i) and (ii) of this section do not apply unless the taxpayer has 
a bona fide intent to enter into a deferred exchange at the beginning of 
the exchange period. A taxpayer will be treated as having a bona fide 
intent only if it is reasonable to believe, based on all the facts and 
circumstances as of the beginning of the exchange period, that like-kind 
replacement property will be acquired before the end of the exchange 
period.
    (v) Disqualified property. The provisions of paragraphs (j)(2) (i) 
and (ii) of this section do not apply if the relinquished property is 
disqualified property. For purposes of this paragraph (j)(2), 
disqualified property means property that is not held for productive use 
in a trade or business or for investment or is property described in 
section 1031(a)(2).
    (vi) Examples. This paragraph (j)(2) may be illustrated by the 
following examples. Unless otherwise provided in an example, the 
following facts are assumed: B is a calendar year taxpayer who agrees to 
enter into a deferred exchange. Pursuant to the agreement, B is to 
transfer real property X. Real property X, which has been held by B for 
investment, is unencumbered and has a fair market value of $100,000 at 
the time of transfer. B's adjusted basis in real property X at that time 
is $60,000. B identifies a single like-kind replacement property before 
the end of the identification period, and B receives the replacement 
property before the end of the exchange period. The transaction 
qualifies as a like-kind exchange under section 1031.

    Example 1. (i) On September 22, 1994, B transfers real property X to 
C and C agrees to acquire like-kind property and deliver it to B. On 
that date B has a bona fide intent to enter into a deferred exchange. 
C's obligation, which is not payable on demand or readily tradable, is 
secured by $100,000 in cash. The $100,000 is deposited by C in an escrow 
account that is a qualified escrow account under paragraph (g)(3) of 
this section. The escrow agreement provides that B has no rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the cash 
deposited in the escrow account until the earlier

[[Page 113]]

of the date the replacement property is delivered to B or the end of the 
exchange period. On March 11, 1995, C acquires replacement property 
having a fair market value of $80,000 and delivers the replacement 
property to B. The $20,000 in cash remaining in the qualified escrow 
account is distributed to B at that time.
    (ii) Under section 1031(b), B recognizes gain to the extent of the 
$20,000 in cash that B receives in the exchange. Under paragraph 
(j)(2)(i) of this section, the qualified escrow account is disregarded 
for purposes of section 453 and Sec. 15a.453-1(b)(3)(i) of this chapter 
in determining whether B is in receipt of payment. Accordingly, B's 
receipt of C's obligation on September 22, 1994, does not constitute a 
payment. Instead, B is treated as receiving payment on March 11, 1995, 
on receipt of the $20,000 in cash from the qualified escrow account. 
Subject to the other requirements of sections 453 and 453A, B may report 
the $20,000 gain in 1995 under the installment method. See section 
453(f)(6) for special rules for determining total contract price and 
gross profit in the case of an exchange described in section 1031(b).
    Example 2. (i) D offers to purchase real property X but is unwilling 
to participate in a like-kind exchange. B thus enters into an exchange 
agreement with C whereby B retains C to facilitate an exchange with 
respect to real property X. On September 22, 1994, pursuant to the 
agreement, B transfers real property X to C who transfers it to D for 
$100,000 in cash. On that date B has a bona fide intent to enter into a 
deferred exchange. C is a qualified intermediary under paragraph (g)(4) 
of this section. The exchange agreement provides that B has no rights to 
receive, pledge, borrow, or otherwise obtain the benefits of the money 
held by C until the earlier of the date the replacement property is 
delivered to B or the end of the exchange period. On March 11, 1995, C 
acquires replacement property having a fair market value of $80,000 and 
delivers it, along with the remaining $20,000 from the transfer of real 
property X to B.
    (ii) Under section 1031(b), B recognizes gain to the extent of the 
$20,000 cash B receives in the exchange. Under paragraph (j)(2)(ii) of 
this section, any agency relationship between B and C is disregarded for 
purposes of section 453 and Sec. 15a.453-1(b)(3)(i) of this chapter in 
determining whether B is in receipt of payment. Accordingly, B is not 
treated as having received payment on September 22, 1994, on C's receipt 
of payment from D for the relinquished property. Instead, B is treated 
as receiving payment on March 11, 1995, on receipt of the $20,000 in 
cash from C. Subject to the other requirements of sections 453 and 453A, 
B may report the $20,000 gain in 1995 under the installment method.
    Example 3. (i) D offers to purchase real property X but is unwilling 
to participate in a like-kind exchange. B enters into an exchange 
agreement with C whereby B retains C as a qualified intermediary to 
facilitate an exchange with respect to real property X. On December 1, 
1994, pursuant to the agreement, B transfers real property X to C who 
transfers it to D for $100,000 in cash. On that date B has a bona fide 
intent to enter into a deferred exchange. The exchange agreement 
provides that B has no rights to receive, pledge, borrow, or otherwise 
obtain the benefits of the cash held by C until the earliest of the end 
of the identification period if B has not identified replacement 
property, the date the replacement property is delivered to B, or the 
end of the exchange period. Although B has a bona fide intent to enter 
into a deferred exchange at the beginning of the exchange period, B does 
not identify or acquire any replacement property. In 1995, at the end of 
the identification period, C delivers the entire $100,000 from the sale 
of real property X to B.
    (ii) Under section 1001, B realizes gain to the extent of the amount 
realized ($100,000) over the adjusted basis in real property X 
($60,000), or $40,000. Because B has a bona fide intent at the beginning 
of the exchange period to enter into a deferred exchange, paragraph 
(j)(2)(iv) of this section does not make paragraph (j)(2)(ii) of this 
section inapplicable even though B fails to acquire replacement 
property. Further, under paragraph (j)(2)(ii) of this section, C is a 
qualified intermediary even though C does not acquire and transfer 
replacement property to B. Thus, any agency relationship between B and C 
is disregarded for purposes of section 453 and Sec. 15a.453-1(b)(3)(i) 
of this chapter in determining whether B is in receipt of payment. 
Accordingly, B is not treated as having received payment on December 1, 
1994, on C's receipt of payment from D for the relinquished property. 
Instead, B is treated as receiving payment at the end of the 
identification period in 1995 on receipt of the $100,000 in cash from C. 
Subject to the other requirements of sections 453 and 453A, B may report 
the $40,000 gain in 1995 under the installment method.
    Example 4. (i) D offers to purchase real property X but is unwilling 
to participate in a like-kind exchange. B thus enters into an exchange 
agreement with C whereby B retains C to facilitate an exchange with 
respect to real property X. C is a qualified intermediary under 
paragraph (g)(4) of this section. On September 22, 1994, pursuant to the 
agreement, B transfers real property X to C who then transfers it to D 
for $80,000 in cash and D's 10-year installment obligation for $20,000. 
On that date B has a bona fide intent to enter into a deferred exchange. 
The exchange agreement provides that B has no

[[Page 114]]

rights to receive, pledge, borrow, or otherwise obtain the benefits of 
the money or other property held by C until the earlier of the date the 
replacement property is delivered to B or the end of the exchange 
period. D's obligation bears adequate stated interest and is not payable 
on demand or readily tradable. On March 11, 1995, C acquires replacement 
property having a fair market value of $80,000 and delivers it, along 
with the $20,000 installment obligation, to B.
    (ii) Under section 1031(b), $20,000 of B's gain (i.e., the amount of 
the installment obligation B receives in the exchange) does not qualify 
for nonrecognition under section 1031(a). Under paragraphs (j)(2) (ii) 
and (iii) of this section, B's receipt of D's obligation is treated as 
the receipt of an obligation of the person acquiring the property for 
purposes of section 453 and Sec. 15a.453-1(b)(3)(i) of this chapter in 
determining whether B is in receipt of payment. Accordingly, B's receipt 
of the obligation is not treated as a payment. Subject to the other 
requirements of sections 453 and 453A, B may report the $20,000 gain 
under the installment method on receiving payments from D on the 
obligation.
    Example 5. (i) B is a corporation that has held real property X to 
expand its manufacturing operations. However, at a meeting in November 
1994, B's directors decide that real property X is not suitable for the 
planned expansion, and authorize a like-kind exchange of this property 
for property that would be suitable for the planned expansion. B enters 
into an exchange agreement with C whereby B retains C as a qualified 
intermediary to facilitate an exchange with respect to real property X. 
On November 28, 1994, pursuant to the agreement, B transfers real 
property X to C, who then transfers it to D for $100,000 in cash. The 
exchange agreement does not include any limitations or conditions that 
make it unreasonable to believe that like-kind replacement property will 
be acquired before the end of the exchange period. The exchange 
agreement provides that B has no rights to receive, pledge, borrow, or 
otherwise obtain the benefits of the cash held by C until the earliest 
of the end of the identification period, if B has not identified 
replacement property, the date the replacement property is delivered to 
B, or the end of the exchange period. In early January 1995, B's 
directors meet and decide that it is not feasible to proceed with the 
planned expansion due to a business downturn reflected in B's 
preliminary financial reports for the last quarter of 1994. Thus, B's 
directors instruct C to stop seeking replacement property. C delivers 
the $100,000 cash to B on January 12, 1995, at the end of the 
identification period. Both the decision to exchange real property X for 
other property and the decision to cease seeking replacement property 
because of B's business downturn are recorded in the minutes of the 
directors' meetings. There are no other facts or circumstances that 
would indicate whether, on November 28, 1994, B had a bona fide intent 
to enter into a deferred like-kind exchange.
    (ii) Under section 1001, B realizes gain to the extent of the amount 
realized ($100,000) over the adjusted basis of real property X 
($60,000), or $40,000. The directors' authorization of a like-kind 
exchange, the terms of the exchange agreement with C, and the absence of 
other relevant facts, indicate that B had a bona fide intent at the 
beginning of the exchange period to enter into a deferred like-kind 
exchange. Thus, paragraph (j)(2)(iv) of this section does not make 
paragraph (j)(2)(ii) of this section inapplicable, even though B fails 
to acquire replacement property. Further, under paragraph (j)(2)(ii) of 
this section, C is a qualified intermediary, even though C does not 
transfer replacement property to B. Thus, any agency relationship 
between B and C is disregarded for purposes of section 453 and Sec. 
15a.453-1(b)(3)(i) of this chapter in determining whether B is in 
receipt of payment. Accordingly, B is not treated as having received 
payment until January 12, 1995, on receipt of the $100,000 cash from C. 
Subject to the other requirements of sections 453 and 453A, B may report 
the $40,000 gain in 1995 under the installment method.
    Example 6. (i) B has held real property X for use in its trade or 
business, but decides to transfer that property because it is no longer 
suitable for B's planned expansion of its commercial enterprise. B and D 
agree to enter into a deferred exchange. Pursuant to their agreement, B 
transfers real property X to D on September 22, 1994, and D deposits 
$100,000 cash in a qualified escrow account as security for D's 
obligation under the agreement to transfer replacement property to B 
before the end of the exchange period. D's obligation is not payable on 
demand or readily tradable. The agreement provides that B is not 
required to accept any property that is not zoned for commercial use. 
Before the end of the identification period, B identifies real 
properties J, K, and L, all zoned for residential use, as replacement 
properties. Any one of these properties, rezoned for commercial use, 
would be suitable for B's planned expansion. In recent years, the zoning 
board with jurisdiction over properties J, K, and L has rezoned similar 
properties for commercial use. The escrow agreement provides that B has 
no rights to receive, pledge, borrow, or otherwise obtain the benefits 
of the money in the escrow account until the earlier of the time that 
the zoning board determines, after the end of the identification period, 
that it will not rezone the properties for commercial use or the end of 
the exchange period. On January 5, 1995, the zoning board decides that 
none of the properties will be rezoned

[[Page 115]]

for commercial use. Pursuant to the exchange agreement, B receives the 
$100,000 cash from the escrow on January 5, 1995. There are no other 
facts or circumstances that would indicate whether, on September 22, 
1994, B had a bona fide intent to enter into a deferred like-kind 
exchange.
    (ii) Under section 1001, B realizes gain to the extent of the amount 
realized ($100,000) over the adjusted basis of real property X 
($60,000), or $40,000. The terms of the exchange agreement with D, the 
identification of properties J, K, and L, the efforts to have those 
properties rezoned for commercial purposes, and the absence of other 
relevant facts, indicate that B had a bona fide intent at the beginning 
of the exchange period to enter into a deferred exchange. Moreover, the 
limitations imposed in the exchange agreement on acceptable replacement 
property do not make it unreasonable to believe that like-kind 
replacement property would be acquired before the end of the exchange 
period. Therefore, paragraph (j)(2)(iv) of this section does not make 
paragraph (j)(2)(i) of this section inapplicable even though B fails to 
acquire replacement property. Thus, for purposes of section 453 and 
Sec. 15a.453-1(b)(3)(i) of this chapter, the qualified escrow account 
is disregarded in determining whether B is in receipt of payment. 
Accordingly, B is not treated as having received payment on September 
22, 1994, on D's deposit of the $100,000 cash into the qualified escrow 
account. Instead, B is treated as receiving payment on January 5, 1995. 
Subject to the other requirements of sections 453 and 453A, B may report 
the $40,000 gain in 1995 under the installment method.

    (vii) Effective date. This paragraph (j)(2) is effective for 
transfers of property occurring on or after April 20, 1994. Taxpayers 
may apply this paragraph (j)(2) to transfers of property occurring 
before April 20, 1994, but on or after June 10, 1991, if those transfers 
otherwise meet the requirements of Sec. 1.1031(k)-1. In addition, 
taxpayers may apply this paragraph (j)(2) to transfers of property 
occurring before June 10, 1991, but on or after May 16, 1990, if those 
transfers otherwise meet the requirements of Sec. 1.1031(k)-1 or follow 
the guidance of IA-237-84 published in 1990-1, C.B. See Sec. 
601.601(d)(2)(ii)(b) of this chapter.
    (3) Examples. This paragraph (j) may be illustrated by the following 
examples. Unless otherwise provided in an example, the following facts 
are assumed: B, a calendar year taxpayer, and C agree to enter into a 
deferred exchange. Pursuant to their agreement, B is to transfer real 
property X to C on May 17, 1991. Real property X, which has been held by 
B for investment, is unencumbered and has a fair market value on May 17, 
1991, of $100,000. B's adjusted basis in real property X is $40,000. On 
or before July 1, 1991 (the end of the identification period), B is to 
identify replacement property that is of a like kind to real property X. 
On or before November 13, 1991 (the end of the exchange period), C is 
required to purchase the property identified by B and to transfer that 
property to B. To the extent the fair market value of the replacement 
property transferred to B is greater or less than the fair market value 
of real property X, either B or C, as applicable, will make up the 
difference by paying cash to the other party after the date the 
replacement property is received. The replacement property is identified 
as provided in paragraph (c) of this section and is of a like kind to 
real property X (determined without regard to section 1031(a)(3) and 
this section). B intends to hold any replacement property received for 
investment.

    Example 1. (i) On May 17, 1991, B transfers real property X to C and 
identifies real property R as replacement property. On June 3, 1991, C 
transfers $10,000 to B. On September 4, 1991, C purchases real property 
R for $90,000 and transfers real property R to B.
    (ii) The $10,000 received by B is ``money or other property'' for 
purposes of section 1031 and the regulations thereunder. Under section 
1031(b), B recognizes gain in the amount of $10,000. Under section 
1031(d), B's basis in real property R is $40,000 (i.e., B's basis in 
real property X ($40,000), decreased in the amount of money received 
($10,000), and increased in the amount of gain recognized ($10,000) in 
the deferred exchange).
    Example 2. (i) On May 17, 1991, B transfers real property X to C and 
identifies real property S as replacement property, and C transfers 
$10,000 to B. On September 4, 1991, C purchases real property S for 
$100,000 and transfers real property S to B. On the same day, B 
transfers $10,000 to C.
    (ii) The $10,000 received by B is ``money or other property'' for 
purposes of section 1031 and the regulations thereunder. Under section 
1031(b), B recognizes gain in the amount of $10,000. Under section 
1031(d), B's basis in real property S is $50,000 (i.e., B's basis in 
real property X ($40,000), decreased in the amount of money received 
($10,000), increased in the amount of gain recognized ($10,000), and 
increased in the amount of the

[[Page 116]]

additional consideration paid by B ($10,000) in the deferred exchange).
    Example 3. (i) Under the exchange agreement, B has the right at all 
times to demand $100,000 in cash in lieu of replacement property. On May 
17, 1991, B transfers real property X to C and identifies real property 
T as replacement property. On September 4, 1991, C purchases real 
property T for $100,000 and transfers real property T to B.
    (ii) Because B has the right on May 17, 1991, to demand $100,000 in 
cash in lieu of replacement property, B is in constructive receipt of 
the $100,000 on that date. Thus, the transaction is a sale and not an 
exchange, and the $60,000 gain realized by B in the transaction (i.e., 
$100,000 amount realized less $40,000 adjusted basis) is recognized. 
Under section 1031(d), B's basis in real property T is $100,000.
    Example 4. (i) Under the exchange agreement, B has the right at all 
times to demand up to $30,000 in cash and the balance in replacement 
propertry instead of receiving replacement property in the amount of 
$100,000. On May 17, 1991, B transfers real property X to C and 
identifies real property U as replacement property. On September 4, 
1991, C purchases real property U for $100,000 and transfers real 
property U to B.
    (ii) The transaction qualifies as a deferred exchange under section 
1031 and this section. However, because B had the right on May 17, 1991, 
to demand up to $30,000 in cash, B is in constructive receipt of $30,000 
on that date. Under section 1031(b), B recognizes gain in the amount of 
$30,000. Under section 1031(d), B's basis in real property U is $70,000 
(i.e., B's basis in real property X ($40,000), decreased in the amount 
of money that B received ($30,000), increased in the amount of gain 
recognized ($30,000), and increased in the amount of additional 
consideration paid by B ($30,000) in the deferred exchange).
    Example 5. (i) Assume real property X is encumbered by a mortgage of 
$30,000. On May 17, 1991, B transfers real property X to C and 
identifies real property V as replacement property, and C assumes the 
$30,000 mortgage on real property X. Real property V is encumbered by a 
$20,000 mortgage. On July 5, 1991, C purchases real property V for 
$90,000 by paying $70,000 and assuming the mortgage and transfers real 
property V to B with B assuming the mortgage.
    (ii) The consideration received by B in the form of the liability 
assumed by C ($30,000) is offset by the consideration given by B in the 
form of the liability assumed by B ($20,000). The excess of the 
liability assumed by C over the liability assumed by B, $10,000, is 
treated as ``money or other property.'' See Sec. 1.1031(b)-1(c). Thus, 
B recognizes gain under section 1031(b) in the amount of $10,000. Under 
section 1031(d), B's basis in real property V is $40,000 (i.e., B's 
basis in real property X ($40,000), decreased in the amount of money 
that B is treated as receiving in the form of the liability assumed by C 
($30,000), increased in the amount of money that B is treated as paying 
in the form of the liability assumed by B ($20,000), and increased in 
the amount of the gain recognized ($10,000) in the deferred exchange).

    (k) Definition of disqualified person. (1) For purposes of this 
section, a disqualified person is a person described in paragraph 
(k)(2), (k)(3), or (k)(4) of this section.
    (2) The person is the agent of the taxpayer at the time of the 
transaction. For this purpose, a person who has acted as the taxpayer's 
employee, attorney, accountant, investment banker or broker, or real 
estate agent or broker within the 2-year period ending on the date of 
the transfer of the first of the relinquished properties is treated as 
an agent of the taxpayer at the time of the transaction. Solely for 
purposes of this paragraph (k)(2), performance of the following services 
will not be taken into account--
    (i) Services for the taxpayer with respect to exchanges of property 
intended to qualify for nonrecognition of gain or loss under section 
1031; and
    (ii) Routine financial, title insurance, escrow, or trust services 
for the taxpayer by a financial institution, title insurance company, or 
escrow company.
    (3) The person and the taxpayer bear a relationship described in 
either section 267(b) or section 707(b) (determined by substituting in 
each section ``10 percent'' for ``50 percent'' each place it appears).
    (4)(i) Except as provided in paragraph (k)(4)(ii) of this section, 
the person and a person described in paragraph (k)(2) of this section 
bear a relationship described in either section 267(b) or 707(b) 
(determined by substituting in each section ``10 percent'' for ``50 
percent'' each place it appears).
    (ii) In the case of a transfer of relinquished property made by a 
taxpayer on or after January 17, 2001, paragraph (k)(4)(i) of this 
section does not apply to a bank (as defined in section 581) or a bank 
affiliate if, but for this paragraph (k)(4)(ii), the bank or bank 
affiliate would be a disqualified person under paragraph (k)(4)(i) of 
this section solely because it is a member of the same controlled group 
(as determined

[[Page 117]]

under section 267(f)(1), substituting ``10 percent'' for ``50 percent' 
where it appears) as a person that has provided investment banking or 
brokerage services to the taxpayer within the 2-year period described in 
paragraph (k)(2) of this section. For purposes of this paragraph 
(k)(4)(ii), a bank affiliate is a corporation whose principal activity 
is rendering services to facilitate exchanges of property intended to 
qualify for nonrecognition of gain under section 1031 and all of whose 
stock is owned by either a bank or a bank holding company (within the 
meaning of section 2(a) of the Bank Holding Company Act of 1956 (12 
U.S.C. 1841(a)).
    (5) This paragraph (k) may be illustrated by the following examples. 
Unless otherwise provided, the following facts are assumed: On May 1, 
1991, B enters into an exchange agreement (as defined in paragraph 
(g)(4)(iii)(B) of this section) with C whereby B retains C to facilitate 
an exchange with respect to real property X. On May 17, 1991, pursuant 
to the agreement, B executes and delivers to C a deed conveying real 
property X to C. C has no relationship to B described in paragraph 
(k)(2), (k)(3), or (k)(4) of this section.

    Example 1. (i) C is B's accountant and has rendered accounting 
services to B within the 2-year period ending on May 17, 1991, other 
than with respect to exchanges of property intended to qualify for 
nonrecognition of gain or loss under section 1031.
    (ii) C is a disqualified person because C has acted as B's 
accountant within the 2-year period ending on May 17, 1991.
    (iii) If C had not acted as B's accountant within the 2-year period 
ending on May 17, 1991, or if C had acted as B's accountant within that 
period only with respect to exchanges intended to qualify for 
nonrecognition of gain or loss under section 1031, C would not have been 
a disqualified person.
    Example 2. (i) C, which is engaged in the trade or business of 
acting as an intermediary to facilitate deferred exchanges, is a wholly 
owned subsidiary of an escrow company that has performed routine escrow 
services for B in the past. C has previously been retained by B to act 
as an intermediary in prior section 1031 exchanges.
    (ii) C is not a disqualified person notwithstanding the intermediary 
services previously provided by C to B (see paragraph (k)(2)(i) of this 
section) and notwithstanding the combination of C's relationship to the 
escrow company and the escrow services previously provided by the escrow 
company to B (see paragraph (k)(2)(ii) of this section).
    Example 3. (i) C is a corporation that is only engaged in the trade 
or business of acting as an intermediary to facilitate deferred 
exchanges. Each of 10 law firms owns 10 percent of the outstanding stock 
of C. One of the 10 law firms that owns 10 percent of C is M. J is the 
managing partner of M and is the president of C. J, in his capacity as a 
partner in M, has also rendered legal advice to B within the 2-year 
period ending on May 17, 1991, on matters other than exchanges intended 
to qualify for nonrecognition of gain or loss under section 1031.
    (ii) J and M are disqualified persons. C, however, is not a 
disqualified person because neither J nor M own, directly or indirectly, 
more than 10 percent of the stock of C. Similarly, J's participation in 
the management of C does not make C a disqualified person.

    (l) [Reserved]
    (m) Definition of fair market value. For purposes of this section, 
the fair market value of property means the fair market value of the 
property without regard to any liabilities secured by the property.
    (n) No inference with respect to actual or constructive receipt 
rules outside of section 1031. The rules provided in this section 
relating to actual or constructive receipt are intended to be rules for 
determining whether there is actual or constructive receipt in the case 
of a deferred exchange. No inference is intended regarding the 
application of these rules for purposes of determining whether actual or 
constructive receipt exists for any other purpose.
    (o) Effective date. This section applies to transfers of property 
made by a taxpayer on or after June 10, 1991. However, a transfer of 
property made by a taxpayer on or after May 16, 1990, but before June 
10, 1991, will be treated as complying with section 1031 (a)(3) and this 
section if the deferred exchange satisfies either the provision of this 
section or the provisions of the notice of proposed rulemaking published 
in the Federal Register on May 16, 1990 (55 FR 20278).

[T.D. 8346, 56 FR 19938, May 1, 1991, as amended by T.D. 8535, 59 FR 
18749, Apr. 20, 1994; T.D. 8982, 67 FR 4909, Feb. 1, 2002]



Sec. 1.1032-1  Disposition by a corporation of its own capital stock.

    (a) The disposition by a corporation of shares of its own stock 
(including

[[Page 118]]

treasury stock) for money or other property does not give rise to 
taxable gain or deductible loss to the corporation regardless of the 
nature of the transaction or the facts and circumstances involved. For 
example, the receipt by a corporation of the subscription price of 
shares of its stock upon their original issuance gives rise to neither 
taxable gain nor deductible loss, whether the subscription or issue 
price be equal to, in excess of, or less than, the par or stated value 
of such stock. Also, the exchange or sale by a corporation of its own 
shares for money or other property does not result in taxable gain or 
deductible loss, even though the corporation deals in such shares as it 
might in the shares of another corporation. A transfer by a corporation 
of shares of its own stock (including treasury stock) as compensation 
for services is considered, for purposes of section 1032(a), as a 
disposition by the corporation of such shares for money or other 
property.
    (b) Section 1032(a) does not apply to the acquisition by a 
corporation of shares of its own stock except where the corporation 
acquires such shares in exchange for shares of its own stock (including 
treasury stock). See paragraph (e) of Sec. 1.311-1, relating to 
treatment of acquisitions of a corporation's own stock. Section 1032(a) 
also does not relate to the tax treatment of the recipient of a 
corporation's stock.
    (c) Where a corporation acquires shares of its own stock in exchange 
for shares of its own stock (including treasury stock) the transaction 
may qualify not only under section 1032(a), but also under section 
368(a)(1)(E) (recapitalization) or section 305(a) (distribution of stock 
and stock rights).
    (d) For basis of property acquired by a corporation in connection 
with a transaction to which section 351 applies or in connection with a 
reorganization, see section 362. For basis of property acquired by a 
corporation in a transaction to which section 1032 applies but which 
does not qualify under any other nonrecognition provision, see section 
1012.



Sec. 1.1032-2  Disposition by a corporation of stock of a controlling 
corporation in certain triangular reorganizations.

    (a) Scope. This section provides rules for certain triangular 
reorganizations described in Sec. 1.358-6(b) when the acquiring 
corporation (S) acquires property or stock of another corporation (T) in 
exchange for stock of the corporation (P) in control of S.
    (b) General nonrecognition of gain or loss. For purposes of Sec. 
1.1032-1(a), in the case of a forward triangular merger, a triangular C 
reorganization, or a triangular B reorganization (as described in Sec. 
1.358-6(b)), P stock provided by P to S, or directly to T or T's 
shareholders on behalf of S, pursuant to the plan of reorganization is 
treated as a disposition by P of shares of its own stock for T's assets 
or stock, as applicable. For rules governing the use of P stock in a 
reverse triangular merger, see section 361.
    (c) Treatment of S. S must recognize gain or loss on its exchange of 
P stock as consideration in a forward triangular merger, a triangular C 
reorganization, or a triangular B reorganization (as described in Sec. 
1.358-6(b)), if S did not receive the P stock from P pursuant to the 
plan of reorganization. See Sec. 1.358-6(d) for the effect on P's basis 
in its S or T stock, as applicable. For rules governing S's use of P 
stock in a reverse triangular merger, see section 361.
    (d) Examples. The rules of this section are illustrated by the 
following examples. For purposes of these examples, P, S, and T are 
domestic corporations, P and S do not file consolidated returns, P owns 
all of the only class of S stock, the P stock exchanged in the 
transaction satisfies the requirements of the applicable reorganization 
provisions, and the facts set forth the only corporate activity.

    Example 1. Forward triangular merger solely for P stock. (a) Facts. 
T has assets with an aggregate basis of $60 and fair market value of 
$100 and no liabilities. Pursuant to a plan, P forms S by transferring 
$100 of P stock to S and T merges into S. In the merger, the T 
shareholders receive, in exchange for their T stock, the P stock that P 
transferred to S. The transaction is a reorganization to which sections 
368(a)(1)(A) and (a)(2)(D) apply.

[[Page 119]]

    (b) No gain or loss recognized on the use of P stock. Under 
paragraph (b) of this section, the P stock provided by P pursuant to the 
plan of reorganization is treated for purposes of Sec. 1.1032-1(a) as 
disposed of by P for the T assets acquired by S in the merger. 
Consequently, neither P nor S has taxable gain or deductible loss on the 
exchange.
    Example 2. Forward triangular merger solely for P stock provided in 
part by S. (a) Facts. T has assets with an aggregate basis of $60 and 
fair market value of $100 and no liabilities. S is an operating company 
with substantial assets that has been in existence for several years. S 
also owns P stock with a $20 adjusted basis and $30 fair market value. S 
acquired the P stock in an unrelated transaction several years before 
the reorganization. Pursuant to a plan, P transfers additional P stock 
worth $70 to S and T merges into S. In the merger, the T shareholders 
receive $100 of P stock ($70 of P stock provided by P to S as part of 
the plan and $30 of P stock held by S previously). The transaction is a 
reorganization to which sections 368(a)(1)(A) and (a)(2)(D) apply.
    (b) Gain or loss recognized by S on the use of its P stock. Under 
paragraph (b) of this section, the $70 of P stock provided by P pursuant 
to the plan of reorganization is treated as disposed of by P for the T 
assets acquired by S in the merger. Consequently, neither P nor S has 
taxable gain or deductible loss on the exchange of those shares. Under 
paragraph (c) of this section, however, S recognizes $10 of gain on the 
exchange of its P stock in the reorganization because S did not receive 
the P stock from P pursuant to the plan of reorganization. See Sec. 
1.358-6(d) for the effect on P's basis in its S stock.

    (e) Stock options. The rules of this section shall apply to an 
option to buy or sell P stock issued by P in the same manner as the 
rules of this section apply to P stock.
    (f) Effective dates. This section applies to triangular 
reorganizations occurring on or after December 23, 1994, except for 
paragraph (e) of this section, which applies to transfers of stock 
options occurring on or after May 16, 2000.

[T.D. 8648, 60 FR 66081, Dec. 21, 1995, as amended by T.D. 8883, 65 FR 
31076, May 16, 2000]



Sec. 1.1032-3  Disposition of stock or stock options in certain 
transactions not qualifying under any other nonrecognition provision.

    (a) Scope. This section provides rules for certain transactions in 
which a corporation or a partnership (the acquiring entity) acquires 
money or other property (as defined in Sec. 1.1032-1) in exchange, in 
whole or in part, for stock of a corporation (the issuing corporation).
    (b) Nonrecognition of gain or loss--(1) General rule. In a 
transaction to which this section applies, no gain or loss is recognized 
on the disposition of the issuing corporation's stock by the acquiring 
entity. The transaction is treated as if, immediately before the 
acquiring entity disposes of the stock of the issuing corporation, the 
acquiring entity purchased the issuing corporation's stock from the 
issuing corporation for fair market value with cash contributed to the 
acquiring entity by the issuing corporation (or, if necessary, through 
intermediate corporations or partnerships). For rules that may apply in 
determining the issuing corporation's adjustment to basis in the 
acquiring entity (or, if necessary, in determining the adjustment to 
basis in intermediate entities), see sections 358, 722, and the 
regulations thereunder.
    (2) Special rule for actual payment for stock of the issuing 
corporation. If the issuing corporation receives money or other property 
in payment for its stock, the amount of cash deemed contributed under 
paragraph (b)(1) of this section is the difference between the fair 
market value of the issuing corporation stock and the amount of money or 
the fair market value of other property that the issuing corporation 
receives as payment.
    (c) Applicability. The rules of this section apply only if, pursuant 
to a plan to acquire money or other property--
    (1) The acquiring entity acquires stock of the issuing corporation 
directly or indirectly from the issuing corporation in a transaction in 
which, but for this section, the basis of the stock of the issuing 
corporation in the hands of the acquiring entity would be determined, in 
whole or in part, with respect to the issuing corporation's basis in the 
issuing corporation's stock under section 362(a) or 723 (provided that, 
in the case of an indirect acquisition by the acquiring entity, the 
transfers of issuing corporation stock through intermediate entities 
occur immediately after one another);

[[Page 120]]

    (2) The acquiring entity immediately transfers the stock of the 
issuing corporation to acquire money or other property (from a person 
other than an entity from which the stock was directly or indirectly 
acquired);
    (3) The party receiving stock of the issuing corporation in the 
exchange specified in paragraph (c)(2) of this section from the 
acquiring entity does not receive a substituted basis in the stock of 
the issuing corporation within the meaning of section 7701(a)(42); and
    (4) The issuing corporation stock is not exchanged for stock of the 
issuing corporation.
    (d) Stock options. The rules of this section shall apply to an 
option issued by a corporation to buy or sell its own stock in the same 
manner as the rules of this section apply to the stock of an issuing 
corporation.
    (e) Examples. The following examples illustrate the application of 
this section:

    Example 1. (i) X, a corporation, owns all of the stock of Y 
corporation. Y reaches an agreement with C, an individual, to acquire a 
truck from C in exchange for 10 shares of X stock with a fair market 
value of $100. To effectuate Y's agreement with C,X transfers to Y the X 
stock in a transaction in which, but for this section, the basis of the 
X stock in the hands of Y would be determined with respect to X's basis 
in the X stock under section 362(a). Y immediately transfers the X stock 
to C to acquire the truck.
    (ii) In this Example 1, no gain or loss is recognized on the 
disposition of the X stock by Y. Immediately before Y's disposition of 
the X stock, Y is treated as purchasing the X stock from X for $100 of 
cash contributed to Y by X. Under section 358, X's basis in its Y stock 
is increased by $100.
    Example 2. (i) Assume the same facts as Example 1, except that, 
rather than X stock, X transfers an option with a fair market value of 
$100 to purchase X stock.
    (ii) In this Example 2, no gain or loss is recognized on the 
disposition of the X stock option by Y. Immediately before Y's 
disposition of the X stock option, Y is treated as purchasing the X 
stock option from X for $100 of cash contributed to Y by X. Under 
section 358, X's basis in its Y stock is increased by $100.
    Example 3. (i) X, a corporation, owns all of the outstanding stock 
of Y corporation. Y is a partner in partnership Z. Z reaches an 
agreement with C, an individual, to acquire a truck from C in exchange 
for 10 shares of X stock with a fair market value of $100. To effectuate 
Z's agreement with C, X transfers to Y the X stock in a transaction in 
which, but for this section, the basis of the X stock in the hands of Y 
would be determined with respect to X's basis in the X stock under 
section 362(a). Y immediately transfers the X stock to Z in a 
transaction in which, but for this section, the basis of the X stock in 
the hands of Z would be determined under section 723. Z immediately 
transfers the X stock to C to acquire the truck.
    (ii) In this Example 3, no gain or loss is recognized on the 
disposition of the X stock by Z. Immediately before Z's disposition of 
the X stock, Z is treated as purchasing the X stock from X for $100 of 
cash indirectly contributed to Z by X through an intermediate 
corporation, Y. Under section 722, Y's basis in its Z partnership 
interest is increased by $100, and, under section 358, X's basis in its 
Y stock is increased by $100.
    Example 4. (i) X, a corporation, owns all of the outstanding stock 
of Y corporation. B, an individual, is an employee of Y. Pursuant to an 
agreement between X and Y to compensate B for services provided to Y, X 
transfers to B 10 shares of X stock with a fair market value of $100. 
Under Sec. 1.83-6(d), but for this section, the transfer of X stock by 
X to B would be treated as a contribution of the X stock by X to the 
capital of Y, and immediately thereafter, a transfer of the X stock by Y 
to B. But for this section, the basis of the X stock in the hands of Y 
would be determined with respect to X's basis in the X stock under 
section 362(a).
    (ii) In this Example 4, no gain or loss is recognized on the deemed 
disposition of the X stock by Y. Immediately before Y's deemed 
disposition of the X stock, Y is treated as purchasing the X stock from 
X for $100 of cash contributed to Y by X. Under section 358, X's basis 
in its Y stock is increased by $100.
    Example 5. (i) X, a corporation, owns all of the outstanding stock 
of Y corporation. B, an individual, is an employee of Y. To compensate B 
for services provided to Y, B is offered the opportunity to purchase 10 
shares of X stock with a fair market value of $100 at a reduced price of 
$80. B transfers $80 and Y transfers $10 to X as partial payment for the 
X stock.
    (ii) In this Example 5, no gain or loss is recognized on the deemed 
disposition of the X stock by Y. Immediately before Y's deemed 
disposition of the X stock, Y is treated as purchasing the X stock from 
X for $100, $80 of which Y is deemed to have received from B, $10 of 
which originated with Y, and $10 of which is deemed to have been 
contributed to Y by X. Under section 358, X's basis in its Y stock is 
increased by $10.
    Example 6. (i) X, a corporation, owns stock of Y. To compensate Y's 
employee, B, for services provided to Y, X issues 10 shares of X stock 
to B, subject to a substantial risk of forfeiture. B does not have an 
election under

[[Page 121]]

section 83(b) in effect with respect to the X stock. X retains the only 
reversionary interest in the X stock in the event that B forfeits the 
right to the stock. Several years after X's transfer of the X shares, 
the stock vests. At the time the stock vests, the 10 shares of X stock 
have a fair market value of $100. Under Sec. 1.83-6(d), but for this 
section, the transfer of the X stock by X to B would be treated, at the 
time the stock vests, as a contribution of the X stock by X to the 
capital of Y, and immediately thereafter, a disposition of the X stock 
by Y to B. The basis of the X stock in the hands of Y, but for this 
section, would be determined with respect to X's basis in the X stock 
under section 362(a).
    (ii) In this Example 6, no gain or loss is recognized on the deemed 
disposition of X stock by Y when the stock vests. Immediately before Y's 
deemed disposition of the X stock, Y is treated as purchasing X's stock 
from X for $100 of cash contributed to Y by X. Under section 358, X's 
basis in its Y stock is increased by $100.
    Example 7. (i) Assume the same facts as in Example 6, except that Y 
(rather than X) retains a reversionary interest in the X stock in the 
event that B forfeits the right to the stock. Several years after X's 
transfer of the X shares, the stock vests.
    (ii) In this Example 7, this section does not apply to Y's deemed 
disposition of the X shares because Y is not deemed to have transferred 
the X stock to B immediately after receiving the stock from X. For the 
tax consequences to Y on the deemed disposition of the X stock, see 
Sec. 1.83-6(b).
    Example 8. (i) X, a corporation, owns all of the outstanding stock 
of Y corporation. In Year 1, X issues to Y's employee, B, a nonstatutory 
stock option to purchase 10 shares of X stock as compensation for 
services provided to Y. The option is exercisable against X and does not 
have a readily ascertainable fair market value (determined under Sec. 
1.83-7(b)) at the time the option is granted. In Year 2, B exercises the 
option by paying X the strike price of $80 for the X stock, which then 
has a fair market value of $100.
    (ii) In this Example 8, because, under section 83(e)(3), section 
83(a) does not apply to the grant of the option, paragraph (d) of this 
section also does not apply to the grant of the option. Section 83 and 
Sec. 1.1032-3 apply in Year 2 when the option is exercised; thus, no 
gain or loss is recognized on the deemed disposition of X stock by Y in 
Year 2. Immediately before Y's deemed disposition of the X stock in Year 
2, Y is treated as purchasing the X stock from X for $100, $80 of which 
Y is deemed to have received from B and the remaining $20 of which is 
deemed to have been contributed to Y by X. Under section 358, X's basis 
in its Y stock is increased by $20.
    Example 9. (i) A, an individual, owns a majority of the stock of X. 
X owns stock of Y constituting control of Y within the meaning of 
section 368(c). A transfers 10 shares of its X stock to B, a key 
employee of Y. The fair market value of the 10 shares on the date of 
transfer was $100.
    (ii) In this Example 9, A is treated as making a nondeductible 
contribution of the 10 shares of X to the capital of X, and no gain or 
loss is recognized by A as a result of this transfer. See Commissioner 
v. Fink, 483 U.S. 89 (1987). A must allocate his basis in the 
transferred shares to his remaining shares of X stock. No gain or loss 
is recognized on the deemed disposition of the X stock by Y. Immediately 
before Y's disposition of the X stock, Y is treated as purchasing the X 
stock from X for $100 of cash contributed to Y by X. Under section 358, 
X's basis in its Y stock is increased by $100.
    Example 10. (i) In Year 1, X, a corporation, forms a trust which 
will be used to satisfy deferred compensation obligations owed by Y, X's 
wholly owned subsidiary, to Y's employees. X funds the trust with X 
stock, which would revert to X upon termination of the trust, subject to 
the employees' rights to be paid the deferred compensation due to them. 
The creditors of X can reach all the trust assets upon the insolvency of 
X. Similarly, Y's creditors can reach all the trust assets upon the 
insolvency of Y. In Year 5, the trust transfers X stock to the employees 
of Y in satisfaction of the deferred compensation obligation.
    (ii) In this Example 10, X is considered to be the grantor of the 
trust, and, under section 677, X is also the owner of the trust. Any 
income earned by the trust would be reflected on X's income tax return. 
Y is not considered a grantor or owner of the trust corpus at the time X 
transfers X stock to the trust. In Year 5, when employees of Y receive X 
stock in satisfaction of the deferred compensation obligation, no gain 
or loss is recognized on the deemed disposition of the X stock by Y. 
Immediately before Y's deemed disposition of the X stock, Y is treated 
as purchasing the X stock from X for fair market value using cash 
contributed to Y by X. Under section 358, X's basis in its Y stock 
increases by the amount of cash deemed contributed.

    (f) Effective date. This section applies to transfers of stock or 
stock options of the issuing corporation occurring on or after May 16, 
2000.

[T.D. 8883, 65 FR 31076, May 16, 2000; 65 FR 37482, June 15, 2000]



Sec. 1.1033(a)-1  Involuntary conversions; nonrecognition of gain.

    (a) In general. Section 1033 applies to cases where property is 
compulsorily or involuntarily converted. An involuntary conversion may 
be the result of the

[[Page 122]]

destruction of property in whole or in part, the theft of property, the 
seizure of property, the requisition or condemnation of property, or the 
threat or imminence of requisition or condemnation of property. An 
involuntary conversion may be a conversion into similar property or into 
money or into dissimilar property. Section 1033 provides that, under 
certain specified circumstances, any gain which is realized from an 
involuntary conversion shall not be recognized. In cases where property 
is converted into other property similar or related in service or use to 
the converted property, no gain shall be recognized regardless of when 
the disposition of the converted property occurred and regardless of 
whether or not the taxpayer elects to have the gain not recognized. In 
other types of involuntary conversion cases, however, the proceeds 
arising from the disposition of the converted property must (within the 
time limits specified) be reinvested in similar property in order to 
avoid recognition of any gain realized. Section 1033 applies only with 
respect to gains; losses from involuntary conversions are recognized or 
not recognized without regard to this section.
    (b) Special rules. For rules relating to the application of section 
1033 to involuntary conversions of a principal residence with respect to 
which an election has been made under section 121 (relating to gain from 
sale or exchange of residence of individual who has attained age 65), 
see paragraph (g) of Sec. 1.121-5. For rules applicable to involuntary 
conversions of a principal residence occurring before January 1, 1951, 
see Sec. 1.1033(a)-3. For rules applicable to involuntary conversions 
of a principal residence occurring after December 31, 1950, and before 
January 1, 1954, see paragraph (h)(1) of Sec. 1.1034-1. For rules 
applicable to involuntary conversions of a personal residence occurring 
after December 31, 1953, see Sec. 1.1033(a)-3. For special rules 
relating to the election to have section 1034 apply to certain 
involuntary conversions of a principal reisdence occurring after 
December 31, 1957, see paragraph (h)(2) of Sec. 1.1034-1. For special 
rules relating to certain involuntary conversions of real property held 
either for productive use in trade or business or for investment and 
occurring after December 31, 1957, see Sec. 1.1033(g)-1. See also 
special rules applicable to involuntary conversions of property sold 
pursuant to reclamation laws, livestock destroyed by disease, and 
livestock sold on account of drought provided in Sec. Sec. 1.1033(c)-1, 
1.1033(d)-1, and 1.1033(e)-1, respectively. For rules relating to basis 
of property acquired through involuntary conversions, see Sec. 
1.1033(b)-1. For determination of the period for which the taxpayer has 
held property acquired as a result of certain involuntary conversions, 
see section 1223 and regulations issued thereunder. For treatment of 
gains from involuntary conversions as capital gains in certain cases, 
see section 1231(a) and regulations issued thereunder. For portion of 
war loss recoveries treated as gain on involuntary conversion, see 
section 1332(b)(3) and regulations issued thereunder.

(Secs. 1033 (90 Stat. 1920, 26 U.S.C. 1033), and 7805 (68A Stat. 917, 26 
U.S.C. 7805))

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6856, 30 FR 
13318, Oct. 20, 1965; T.D. 7625, 44 FR 31013, May 30, 1979; T.D. 7758, 
46 FR 6925, Jan. 22, 1981]



Sec. 1.1033(a)-2  Involuntary conversion into similiar property, into 
money or into dissimilar property.

    (a) In general. The term disposition of the converted property means 
the destruction, theft, seizure, requisition, or condemnation of the 
converted property, or the sale or exchange of such property under 
threat or imminence of requisition or condemnation.
    (b) Conversion into similar property. If property (as a result of 
its destruction in whole or in part, theft, seizure, or requisition or 
condemnation or threat or imminence thereof) is compulsorily or 
involuntarily converted only into property similar or related in service 
or use to the property so converted, no gain shall be recognized. Such 
nonrecognition of gain is mandatory.
    (c) Conversion into money or into dissimilar property. (1) If 
property (as a result of its destruction in whole or in part, theft, 
seizure, or requisition or condemnation or threat or imminence thereof) 
is compulsorily or involuntarily converted into money or into property 
not similar or related in service or use to the converted property,

[[Page 123]]

the gain, if any, shall be recognized, at the election of the taxpayer, 
only to the extent that the amount realized upon such conversion exceeds 
the cost of other property purchased by the taxpayer which is similar or 
related in service or use to the property so converted, or the cost of 
stock of a corporation owning such other property which is purchased by 
the taxpayer in the acquisition of control of such corporation, if the 
taxpayer purchased such other property, or such stock, for the purpose 
of replacing the property so converted and during the period specified 
in subparagraph (3) of this paragraph. For the purposes of section 1033, 
the term control means the ownership of stock possessing at least 80 
percent of the total combined voting power of all classes of stock 
entitled to vote and at least 80 percent of the total number of shares 
of all other classes of stock of the corporation.
    (2) All of the details in connection with an involuntary conversion 
of property at a gain (including those relating to the replacement of 
the converted property, or a decision not to replace, or the expiration 
of the period for replacement) shall be reported in the return for the 
taxable year or years in which any of such gain is realized. An election 
to have such gain recognized only to the extent provided in subparagraph 
(1) of this paragraph shall be made by including such gain in gross 
income for such year or years only to such extent. If, at the time of 
filing such a return, the period within which the converted property 
must be replaced has expired, or if such an election is not desired, the 
gain should be included in gross income for such year or years in the 
regular manner. A failure to so include such gain in gross income in the 
regular manner shall be deemed to be an election by the taxpayer to have 
such gain recognized only to the extent provided in subparagraph (1) of 
this paragraph even though the details in connection with the conversion 
are not reported in such return. If, after having made an election under 
section 1033(a)(2), the converted property is not replaced within the 
required period of time, or replacement is made at a cost lower than was 
anticipated at the time of the election, or a decision is made not to 
replace, the tax liability for the year or years for which the election 
was made shall be recomputed. Such recomputation should be in the form 
of an amended return. If a decision is made to make an election under 
section 1033(a)(2) after the filing of the return and the payment of the 
tax for the year or years in which any of the gain on an involuntary 
conversion is realized and before the expiration of the period within 
which the converted property must be replaced, a claim for credit or 
refund for such year or years should be filed. If the replacement of the 
converted property occurs in a year or years in which none of the gain 
on the conversion is realized, all of the details in connection with 
such replacement shall be reported in the return for such year or years.
    (3) The period referred to in subparagraphs (1) and (2) of this 
paragraph is the period of time commencing with the date of the 
disposition of the converted property, or the date of the beginning of 
the threat or imminence of requisition or condemnation of the converted 
property, whichever is earlier, and ending 2 years (or, in the case of a 
disposition occurring before December 31, 1969, 1 year) after the close 
of the first taxable year in which any part of the gain upon the 
conversion is realized, or at the close of such later date as may be 
designated pursuant to an application of the taxpayer. Such application 
shall be made prior to the expiration of 2 years (or, in the case of a 
disposition occurring before December 31, 1969, 1 year) after the close 
of the first taxable year in which any part of the gain from the 
conversion is realized, unless the taxpayer can show to the satisfaction 
of the district director--
    (i) Reasonable cause for not having filed the application within the 
required period of time, and
    (ii) The filing of such application was made within a reasonable 
time after the expiration of the required period of time. The 
application shall contain all of the details in connection with the 
involuntary conversion. Such application shall be made to the district 
director for the internal revenue district in which the return is filed 
for the first taxable year in which any of the gain

[[Page 124]]

from the involuntary conversion is realized. No extension of time shall 
be granted pursuant to such application unless the taxpayer can show 
reasonable cause for not being able to replace the converted property 
within the required period of time.

See section 1033(g)(4) and Sec. 1.1033(g)-1 for the circumstances under 
which, in the case of the conversion of real property held either for 
productive use in trade or business or for investment, the 2-year period 
referred to in this paragraph (c)(3) shall be extended to 3 years.
    (4) Property or stock purchased before the disposition of the 
converted property shall be considered to have been purchased for the 
purpose of replacing the converted property only if such property or 
stock is held by the taxpayer on the date of the disposition of the 
converted property. Property or stock shall be considered to have been 
purchased only if, but for the provisions of section 1033(b), the 
unadjusted basis of such property or stock would be its cost to the 
taxpayer within the meaning of section 1012. If the taxpayers unadjusted 
basis of the replacement property would be determined, in the absence of 
section 1033(b), under any of the exceptions referred to in section 
1012, the unadjusted basis of the property would not be its cost within 
the meaning of section 1012. For example, if property similar or related 
in service or use to the converted property is acquired by gift and its 
basis is determined under section 1015, such property will not qualify 
as a replacement for the converted property.
    (5) If a taxpayer makes an election under section 1033(a)(2), any 
deficiency, for any taxable year in which any part of the gain upon the 
conversion is realized, which is attributable to such gain may be 
assessed at any time before the expiration of three years from the date 
the district director with whom the return for such year has been filed 
is notified by the taxpayer of the replacement of the converted property 
or of an intention not to replace, or of a failure to replace, within 
the required period, notwithstanding the provisions of section 6212(c) 
or the provisions of any other law or rule of law which would otherwise 
prevent such assessment. If replacement has been made, such notification 
shall contain all of the details in connection with such replacement. 
Such notification should be made in the return for the taxable year or 
years in which the replacement occurs, or the intention not to replace 
is formed, or the period for replacement expires, if this return is 
filed with such district director. If this return is not filed with such 
district director, then such notification shall be made to such district 
director at the time of filing this return. If the taxpayer so desires, 
he may, in either event, also notify such district director before the 
filing of such return.
    (6) If a taxpayer makes an election under section 1033(a)(2) and the 
replacement property or stock was purchased before the beginning of the 
last taxable year in which any part of the gain upon the conversion is 
realized, any deficiency, for any taxable year ending before such last 
taxable year, which is attributable to such election may be assessed at 
any time before the expiration of the period within which a deficiency 
for such last taxable year may be assessed, notwithstanding the 
provisions of section 6212(c) or 6501 or the provisions of any law or 
rule of law which would otherwise prevent such assessment.
    (7) If the taxpayer makes an election under section 1033(a)(2), the 
gain upon the conversion shall be recognized to the extent that the 
amount realized upon such conversion exceeds the cost of the replacement 
property or stock, regardless of whether such amount is realized in one 
or more taxable years.
    (8) The proceeds of a use and occupancy insurance contract, which by 
its terms insured against actual loss sustained of net profits in the 
business, are not proceeds of an involuntary conversion but are income 
in the same manner that the profits for which they are substituted would 
have been.
    (9) There is no investment in property similar in character and 
devoted to a similar use if--
    (i) The proceeds of unimproved real estate, taken upon condemnation 
proceedings, are invested in improved real estate.

[[Page 125]]

    (ii) The proceeds of conversion of real property are applied in 
reduction of indebtedness previously incurred in the purchase or a 
leasehold.
    (iii) The owner of a requisitioned tug uses the proceeds to buy 
barges.
    (10) If, in a condemnation proceeding, the Government retains out of 
the award sufficient funds to satisfy special assessments levied against 
the remaining portion of the plot or parcel of real estate affected for 
benefits accruing in connection with the condemnation, the amount so 
retained shall be deducted from the gross award in determining the 
amount of the net award.
    (11) If, in a condemnation proceeding, the Government retains out of 
the award sufficient funds to satisfy liens (other than liens due to 
special assessments levied against the remaining portion of the plot or 
parcel of real estate affected for benefits accruing in connection with 
the condemnation) and mortgages against the property, and itself pays 
the same, the amount so retained shall not be deducted from the gross 
award in determining the amount of the net award. If, in a condemnation 
proceeding, the Government makes an award to a mortgagee to satisfy a 
mortgage on the condemned property, the amount of such award shall be 
considered as a part of the amount realized upon the conversion 
regardless of whether or not the taxpayer was personally liable for the 
mortgage debt. Thus, if a taxpayer has acquired property worth $100,000 
subject to a $50,000 mortgage (regardless of whether or not he was 
personally liable for the mortgage debt) and, in a condemnation 
proceeding, the Government awards the taxpayer $60,000 and awards the 
mortgagee $50,000 in satisfaction of the mortgage, the entire $110,000 
is considered to be the amount realized by the taxpayer.
    (12) An amount expended for replacement of an asset, in excess of 
the recovery for loss, represents a capital expenditure and is not a 
deductible loss for income tax purposes.

(Secs. 1033 (90 Stat. 1920, 26 U.S.C. 1033), and 7805 (68A Stat. 917, 26 
U.S.C. 7805)

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6679, 28 FR 
10515, Oct. 1, 1963; T.D. 7075, 35 FR 17996, Nov. 24, 1970; T.D. 7625, 
44 FR 31013, May 30, 1979; T.D. 7758, 46 FR 6925, Jan. 22, 1981]



Sec. 1.1033(a)-3  Involuntary conversion of principal residence.

    Section 1033 shall apply in the case of property used by the 
taxpayer as his principal residence if the destruction, theft, seizure, 
requisition, or condemnation of such residence, or the sale or exchange 
of such residence under threat or imminence thereof, occurs before 
January 1, 1951, or after December 31, 1953. However, section 1033 shall 
not apply to the seizure, requisition, or condemnation (but not 
destruction), or the sale or exchange under threat or imminence thereof, 
of such residence property if the seizure, requisition, condemnation, 
sale, or exchange occurs after December 31, 1957, and if the taxpayer 
properly elects under section 1034(i) to treat the transaction as a sale 
(see paragraph (h)(2)(ii) of Sec. 1.1034-1). See section 121 and 
paragraphs (d) and (g) of Sec. 1.121-5 for special rules relating to 
the involuntary conversion of a principal residence of individuals who 
have attained age 65.

[T.D. 6856, 30 FR 13319, Oct. 20, 1965. Redesignated and amended by T.D. 
7625, 44 FR 31013, May 30, 1979]



Sec. 1.1033(b)-1  Basis of property acquired as a result of an 
involuntary conversion.

    (a) The provisions of the first sentence of section 1033(b) may be 
illustrated by the following example:

    Example: A's vessel which has an adjusted basis of $100,000 is 
destroyed in 1950 and A receives in 1951 insurance in the amount of 
$200,000. If A invests $150,000 in a new vessel, taxable gain to the 
extent of $50,000 would be recognized. The basis of the new vessel is 
$100,000; that is, the adjusted basis of the old vessel ($100,000) minus 
the money received by the taxpayer which was not expended in the 
acquisition of the new vessel ($50,000) plus the amount of gain 
recognized upon the conversion ($50,000). If any amount in excess of the 
proceeds of the conversion is expended in the acquisition of the new 
property, such

[[Page 126]]

amount may be added to the basis otherwise determined.

    (b) The provisions of the last sentence of section 1033(b) may be 
illustrated by the following example:

    Example: A taxpayer realizes $22,000 from the involuntary conversion 
of his barn in 1955; the adjusted basis of the barn to him was $10,000, 
and he spent in the same year $20,000 for a new barn which resulted in 
the nonrecognition of $10,000 of the $12,000 gain on the conversion. The 
basis of the new barn to the taxpayer would be $10,000--the cost of the 
new barn ($20,000) less the amount of the gain not recognized on the 
conversion ($10,000). The basis of the new barn would not be a 
substituted basis in the hands of the taxpayer within the meaning of 
section 1016(b)(2). If the replacement of the converted barn had been 
made by the purchase of two smaller barns which, together, were similar 
or related in service or use to the converted barn and which cost $8,000 
and $12,000, respectively, then the basis of the two barns would be 
$4,000 and $6,000, respectively, the total basis of the purchased 
property ($10,000) allocated in proportion to their respective costs 
(8,000/ 20,000 of $10,000 or $4,000; and 12,000/20,000 of $10,000, or 
$6,000).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated and amended by T.D. 7625, 44 FR 31013, May 30, 1979]



Sec. 1.1033(c)-1  Disposition of excess property within irrigation 
project deemed to be involuntary conversion.

    (a) The sale, exchange, or other disposition occurring in a taxable 
year to which the Internal Revenue Code of 1954 applies, of excess lands 
lying within an irrigation project or division in order to conform to 
acreage limitations of the Federal reclamation laws effective with 
respect to such project or division shall be treated as an involuntary 
conversion to which the provisions of section 1033 and the regulations 
thereunder shall be applicable. The term excess lands means irrigable 
lands within an irrigation project or division held by one owner in 
excess of the amount of irrigable land held by such owner entitled to 
receive water under the Federal reclamation laws applicable to such 
owner in such project or division. Such excess lands may be either (1) 
lands receiving no water from the project or division, or (2) lands 
receiving water only because the owner thereof has executed a valid 
recordable contract agreeing to sell such lands under terms and 
conditions satisfactory to the Secretary of the Interior.
    (b) If a disposition in order to conform to the acreage limitation 
provisions of Federal reclamation laws includes property other than 
excess lands (as, for example, where the excess lands alone do not 
constitute a marketable parcel) the provisions of section 1033(d) shall 
apply only to the part of the disposition that relates to excess lands.
    (c) The provisions of Sec. 1.1033(a)-2 shall be applicable in the 
case of dispositions treated as involuntary conversions under this 
section. The details in connection with such a disposition required to 
be reported under paragraph (c)(2) of Sec. 1.1033(a)-2 shall include 
the authority whereby the lands disposed of are considered excess lands, 
as defined in this section, and a statement that such disposition is not 
part of a plan contemplating the disposition of all or any nonexcess 
land within the irrigation project or division.
    (d) The term involuntary conversion, where it appears in subtitle A 
of the Code or the regulations thereunder, includes dispositions of 
excess property within irrigation projects described in this section. 
(See, e.g., section 1231 and the regulations thereunder.)

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated and amended by T.D. 7625, 44 FR 31013, May 30, 1979]



Sec. 1.1033(d)-1  Destruction or disposition of livestock because of 
disease.

    (a) The destruction occurring in a taxable year to which the 
Internal Revenue Code of 1954 applies, of livestock by, or on account 
of, disease, or the sale or exchange, in such a year, of livestock 
because of disease, shall be treated as an involuntary conversion to 
which the provisions of section 1033 and the regulations thereunder 
shall be applicable. Livestock which are killed either because they are 
diseased or because of exposure to disease shall be considered destroyed 
on account of disease. Livestock which are sold or exchanged because 
they are diseased or have been exposed to disease, and would not 
otherwise have been sold or exchanged at that particular time shall be 
considered sold or exchanged because of disease.

[[Page 127]]

    (b) The provisions of Sec. 1.1033(a)-2 shall be applicable in the 
case of a disposition treated as an involuntary conversion under this 
section. The details in connection with such a disposition required to 
be reported under paragraph (c)(2) of Sec. 1.1033(a)-2 shall include a 
recital of the evidence that the livestock were destroyed by or on 
account of disease, or sold or exchanged because of disease.
    (c) The term involuntary conversion, where it appears in subtitle A 
of the Code or the regulations thereunder, includes disposition of 
livestock described in this section. (See, e.g., section 1231 and the 
regulations thereunder.)

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated by T.D. 7625, 44 FR 31013, May 30, 1979]



Sec. 1.1033(e)-1  Sale or exchange of livestock solely on account of 
drought.

    (a) The sale or exchange of livestock (other than poultry) held for 
draft, breeding, or dairy purposes in excess of the number the taxpayer 
would sell or exchange during the taxable year if he followed his usual 
business practices shall be treated as an involuntary conversion to 
which section 1033 and the regulations thereunder are applicable if the 
sale or exchange of such livestock by the taxpayer is solely on account 
of drought. Section 1033(e) and this section shall apply only to sales 
and exchanges occurring after December 31, 1955.
    (b) To qualify under section 1033(e) and this section, the sale or 
exchange of the livestock need not take place in a drought area. While 
it is not necessary that the livestock be held in a drought area, the 
sale or exchange of the livestock must be solely on account of drought 
conditions the existence of which affected the water, grazing, or other 
requirements of the livestock so as to necessitate their sale or 
exchange.
    (c) The total sales or exchanges of livestock held for draft, 
breeding, or dairy purposes occurring in any taxable year which may 
qualify as an involuntary conversion under section 1033(e) and this 
section is limited to the excess of the total number of such livestock 
sold or exchanged during the taxable year over the number that the 
taxpayer would have sold or exchanged if he had followed his usual 
business practices, that is, the number he would have been expected to 
sell or exchange under ordinary circumstances if there had been no 
drought. For example, if in the past it has been a taxpayer's practice 
to sell or exchange annually one-half of his herd of dairy cows, only 
the number sold or exchanged solely on account of drought conditions 
which is in excess of one-half of his herd, may qualify as an 
involuntary conversion under section 1033(e) and this section.
    (d) The replacement requirements of section 1033 will be satisfied 
only if the livestock sold or exchanged is replaced within the 
prescribed period with livestock which is similar or related in service 
or use to the livestock sold or exchanged because of drought, that is, 
the new livestock must be functionally the same as the livestock 
involuntarily converted. This means that the new livestock must be held 
for the same useful purpose as the old was held. Thus, although dairy 
cows could be replaced by dairy cows, a taxpayer could not replace draft 
animals with breeding or dairy animals.
    (e) The provisions of Sec. 1.1033(a)-2 shall be applicable in the 
case of a sale or exchange treated as an involuntary conversion under 
this section. The details in connection with such a disposition required 
to be reported under paragraph (c)(2) of Sec. 1.1033(a)-2 shall 
include:
    (1) Evidence of the existence of the drought conditions which forced 
the sale or exchange of the livestock;
    (2) A computation of the amount of gain realized on the sale or 
exchange;
    (3) The number and kind of livestock sold or exchanged; and
    (4) The number of livestocks of each kind that would have been sold 
or exchanged under the usual business practice in the absence of the 
drought.
    (f) The term involuntary conversion, where it appears in subtitle A 
of the Code or the regulations thereunder, includes the sale or exchange 
of livestock described in this section.
    (g) The provisions of section 1033(e) and this section apply to 
taxable years ending after December 31, 1955, but

[[Page 128]]

only in the case of sales or exchange of livestock after December 31, 
1955.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated by T.D. 7625, 44 FR 31013, May 30, 1979]



Sec. 1.1033(g)-1  Condemnation of real property held for productive use 
in trade or business or for investment.

    (a) Special rule in general. This section provides special rules for 
applying section 1033 with respect to certain dispositions, occurring 
after December 31, 1957, of real property held either for productive use 
in trade or business or for investment (not including stock in trade or 
other property held primarily for sale). For this purpose, disposition 
means the seizure, requisition, or condemnation (but not destruction) of 
the converted property, or the sale or exchange of such property under 
threat or imminence of seizure, requisition, or condemnation. In such 
cases, for purposes of applying section 1033, the replacement of such 
property with property of like kind to be held either for productive use 
in trade or business or for investment shall be treated as property 
similar or related in service or use to the property so converted. For 
principles in determining whether the replacement property is property 
of like kind, see paragraph (b) of Sec. 1.1031(a)-1.
    (b) Election to treat outdoor advertising displays as real 
property--(1) In general. Under section 1033(g)(3) of the Code, a 
taxpayer may elect to treat property which constitutes an outdoor 
advertising display as real property for purposes of chapter 1 of the 
Code. The election is available for taxable years beginning after 
December 31, 1970. In the case of an election made on or before July 21, 
1981, the election is available whether or not the period for filing a 
claim for credit or refund under section 6511 has expired. No election 
may be made with respect to any property for which (i) the investment 
credit under section 38 has been claimed, or (ii) an election to expense 
certain depreciable business assets under section 179(a) is in effect. 
The election once made applies to all outdoor advertising displays of 
the taxpayer which may be made the subject of an election under this 
paragraph, including all outdoor advertising displays acquired or 
constructed by the taxpayer in a taxable year after the taxable year for 
which the election is made. The election applies with respect to 
dispositions during the taxable year for which made and all subsequent 
taxable years (unless an effective revocation is made pursuant to 
paragraph (b)(2) (ii) or (iii)).
    (2) Election--(i) Time and manner of making election--(A) In 
general. Unless otherwise provided in the return or in the instructions 
for a return for a taxable year, any election made under section 
1033(g)(3) shall be made by attaching a statement to the return (or 
amended return if filed on or before July 21, 1981) for the first 
taxable year to which the election is to apply. Any election made under 
this paragraph must be made not later than the time, including 
extensions thereof, prescribed by law for filing the income tax return 
for such taxable year or July 21, 1981, whichever occurs last. If a 
taxpayer makes an election (or revokes an election under subdivision 
(ii) or (iii) of this subparagraph (b) (2)) for a taxable year for which 
he or she has previously filed a return, the return for that taxable 
year and all other taxable years affected by the election (or 
revocation) must be amended to reflect any tax consequences of the 
election (or revocation). However, no return for a taxable year for 
which the period for filing a claim for credit or refund under section 
6511 has expired may be amended to make any changes other than those 
resulting from the election (or revocation). In order for the election 
(or revocation) to be effective, the taxpayer must remit with the 
amended return any additional tax due resulting from the election (or 
revocation), notwithstanding the provisions of section 6212(c) or 6501 
or the provisions of any other law which would prevent assessment or 
collection of such tax.
    (B) Statement required when making election. The statement required 
when making the election must clearly indicate that the election to 
treat outdoor advertising displays as real property is being made.
    (ii) Revocation of election by Commissioner's consent. Except as 
otherwise provided in paragraph (b)(2)(iii) of this section, an election 
under section

[[Page 129]]

1033(g)(3) shall be irrevocable unless consent to revoke is obtained 
from the Commissioner. In order to secure the Commissioner's consent to 
revoke an election, the taxpayer must file a request for revocation of 
election with the Commissioner of Internal Revenue, Washington, DC 
20224. The request for revocation shall include--
    (A) The taxpayer's name, address, and taxpayer identification 
number,
    (B) The date on which and taxable year for which the election was 
made and the Internal Revenue Service office with which it was filed,
    (C) Identification of all outdoor advertising displays of the 
taxpayer to which the revocation would apply (including the location, 
date of purchase, and adjusted basis in such property),
    (D) The effective date desired for the revocation, and
    (E) The reasons for requesting the revocation.

The Commissioner may require such other information as may be necessary 
in order to determine whether the requested revocation will be 
permitted. The Commissioner may prescribe administrative procedures 
(subject to such limitations, terms and conditions as he deems 
necessary) to obtain his consent to permit the taxpayer to revoke the 
election. The taxpayer may submit a request for revocation for any 
taxable year for which the period of limitations for filing a claim for 
credit or refund or overpayment of tax has not expired.
    (iii) Revocation where election was made on or before December 11, 
1979. In the case of an election made on or before December 11, 1979, 
the taxpayer may revoke such election provided such revocation is made 
not later than March 23, 1981. The request for revocation shall be made 
in conformity with the requirements of paragraph (b)(2)(ii), except 
that, in lieu of the information required by paragraph (b)(2)(ii)(E), 
the taxpayer shall state that the revocation is being made pursuant to 
this paragraph. In addition, the taxpayer must forward, with the 
statement of revocation, copies of his or her tax returns, including 
both the original return and any amended returns, for the taxable year 
in which the original election was made and for all subsequent years and 
must remit any additional tax due as a result of the revocation.
    (3) Definition of outdoor advertising display. The term outdoor 
advertising display means a rigidly assembled sign, display, or device 
that constitutes, or is used to display, a commercial or other 
advertisement to the public and is permanently affixed to the ground or 
permanently atttached to a building or other inherently permanent 
structure. The term includes highway billboards affixed to the ground 
with wood or metal poles, pipes, or beams, with or without concrete 
footings.
    (4) Character of replacement property. For purposes of section 
1033(g), an interest in real property purchased as replacement property 
for a compulsorily or involuntarily converted outdoor advertising 
display (with respect to which an election under this section is in 
effect) shall be considered property of a like kind as the property 
converted even though a taxpayer's interest in the replacement property 
is different from the interest held in the property converted. Thus, for 
example, a fee simple interest in real estate acquired to replace a 
converted billboard and a 5-year leasehold interest in the real property 
on which the billboard was located qualifies as property of a like kind 
under this section.
    (c) Special rule for period within which property must be replaced. 
In the case of a disposition described in paragraph (a) of this section, 
section 1033(a)(2)(B) and Sec. 1.1033(a)-2(c)(3) (relating to the 
period within which the property must be replaced) shall be applied by 
substituting 3 years for 2 years. This paragraph shall apply to any 
disposition described in section 1033(f)(1) and paragraph (a) of this 
section occurring after December 31, 1974, unless a condemnation 
proceeding with respect to the property was begun before October 4, 
1976. Thus, regardless of when the property is disposed of, the taxpayer 
will not be eligible for the 3-year replacement period if a condemnation 
proceeding was begun before October 4, 1976. However, if the property is 
disposed of after December 31, 1974, and the condemnation proceeding was 
begun (if at all) after October 4, 1976, then the taxpayer is eligible 
for the 3-year replacement period. For

[[Page 130]]

the purposes of this paragraph, whether a condemnation proceeding is 
considered as having begun is determined under the applicable State or 
Federal procedural law.
    (d) Limitation on application of special rule. This section shall 
not apply to the purchase of stock in the acquisition of control of a 
corporation described in section 1033(a)(2)(A).

(Secs. 1033 (90 Stat. 1920, 26 U.S.C. 1033), and 7805 (68A Stat. 917, 26 
U.S.C. 7805))

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated and amended by T.D. 7625, 44 FR 31013, May 30, 1979; 44 FR 
38458, July 2, 1979. Further redesignated and amended by T.D. 7758, 46 
FR 6925, Jan. 22, 1981; T.D. 7758, 46 FR 23235, Apr. 24, 1981; T.D. 
8121, 52 FR 414, Jan. 6, 1987]



Sec. 1.1033(h)-1  Effective date.

    Except as provided otherwise in Sec. 1.1033(e)-1 and Sec. 
1.1033(g)-1, the provisions of section 1033 and the regulations 
thereunder are effective for taxable years beginning after December 31, 
1953, and ending after August 16, 1954.

(Secs. 1033 (90 Stat. 1920, 26 U.S.C. 1033), and 7805 (68A Stat. 917, 26 
U.S.C. 7805))

[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960. 
Redesignated and amended by T.D. 7625, 44 FR 31013, May 30, 1979. 
Further redesignated and amended by T.D. 7758, 46 FR 6925, Jan. 22, 
1981]



Sec. 1.1034-1  Sale or exchange of residence.

    (a) Nonrecognition of gain; general statement. Section 1034 provides 
rules for the nonrecognition of gain in certain cases where a taxpayer 
sells one residence after December 31, 1953, and buys or builds, and 
uses as his principal residence, another residence within specified time 
limits before or after such sale. In general, if the taxpayer invests in 
a new residence an amount at least as large as the adjusted sales price 
of his old residence, no gain is recognized on the sale of the old 
residence (see paragraph (b) of this section for definitions of adjusted 
sales price, new residence, and old residence). On the other hand, if 
the new residence costs the taxpayer less than the adjusted sales price 
of the old residence, gain is recognized to the extent of the 
difference. Thus, if an amount equal to or greater than the adjusted 
sales price of an old residence is invested in a new residence, 
according to the rules stated in section 1034, none of the gain (if any) 
realized from the sale shall be recognized. If an amount less than such 
adjusted sales price is so invested, gain shall be recognized, but only 
to the extent provided in section 1034. If there is no investment in a 
new residence, section 1034 is inapplicable and all of the gain shall be 
recognized. Whenever, as a result of the application of section 1034, 
any or all of the gain realized on the sale of an old residence is not 
recognized, a corresponding reduction must be made in the basis of the 
new residence. The provisions of section 1034 are mandatory, so that the 
taxpayer cannot elect to have gain recognized under circumstances where 
this section is applicable. Section 1034 applies only to gains; losses 
are recognized or not recognized without regard to the provisions of 
this section. Section 1034 affects only the amount of gain recognized, 
and not the amount of gain realized (see also section 1001 and the 
regulations issued thereunder). Any gain realized upon disposition of 
other property in exchange for the new residence is not affected by 
section 1034. For special rules relating to the sale or exchange of a 
principal residence by a taxpayer who has attained age 65, see section 
121 and paragraph (g) of Sec. 1.121-5. For special rules relating to a 
case where real property with respect to the sale of which gain is not 
recognized under this section is reacquired by the seller in partial or 
full satisfaction of the indebtedness arising from such sale and resold 
by him within 1 year after the date of such reacquisition, see Sec. 
1.1038-2.
    (b) Definitions. The following definitions of frequently used terms 
are applicable for purposes of section 1034 (other definitions and 
detailed explanations appear in subsequent paragraphs of this 
regulation):
    (1) Old residence means property used by the taxpayer as his 
principal residence which is the subject of a sale by him after December 
31, 1953 (section 1034(a); for detailed explanation see paragraph (c)(3) 
of this section).

[[Page 131]]

    (2) New residence means property used by the taxpayer as his 
principal residence which is the subject of a purchase by him (section 
1034(a); for detailed explanation and limitations see paragraphs (c)(3) 
and (d)(1) of this section).
    (3) Adjusted sales price means the amount realized reduced by the 
fixing-up expenses (section 1034(b)(1); for special rule applicable in 
some cases to husband and wife, see paragraph (f) of this section).
    (4) Amount realized is to be computed by subtracting,
    (i) The amount of the items which, in determining the gain from the 
sale of the old residence, are properly an offset against the 
consideration received upon the sale (such as commissions and expenses 
of advertising the property for sale, of preparing the deed, and of 
other legal services in connection with the sale); from
    (ii) The amount of the consideration so received, determined (in 
accordance with section 1001(b) and regulations issued thereunder) by 
adding to the sum of any money so received, the fair market value of the 
property (other than money) so received. If, as part of the 
consideration for the sale, the purchaser either assumes a liability of 
the taxpayer or acquires the old residence subject to a liability 
(whether or not the taxpayer is personally liable on the debt), such 
assumption or acquisition, in the amount of the liability, shall be 
treated as money received by the taxpayer in computing the amount 
realized.
    (5) Gain realized is the excess (if any) of the amount realized over 
the adjusted basis of the old residence (see also section 1001(a) and 
regulations issued thereunder).
    (6) Fixing-up expenses means the aggregate of the expenses for work 
performed (in any taxable year, whether beginning before, on, or after 
January 1, 1954) on the old residence in order to assist in its sale, 
provided that such expenses (i) are incurred for work performed during 
the 90-day period ending on the day on which the contract to sell the 
old residence is entered into; and (ii) are paid on or before the 30th 
day after the date of the sale of the old residence; and (iii) are 
neither (a) allowable as deductions in computing taxable income under 
section 63(a), nor (b) taken into account in computing the amount 
realized from the sale of the old residence (section 1034(b) (2) and 
(3)). Fixing-up expenses does not include expenditures which are 
properly chargeable to capital account and which would, therefore, 
constitute adjustments to the basis of the old residence (see section 
1016 and regulations issued thereunder).
    (7) Cost of purchasing the new residence means the total of all 
amounts which are attributable to the acquisition, construction, 
reconstruction, and improvements constituting capital expenditures, made 
during the period beginning 18 months (one year in the case of a sale of 
an old residence prior to January 1, 1975) before the date of sale of 
the old residence and ending either (i) 18 months (one year in the case 
of a sale of an old residence prior to January 1, 1975) after such date 
in the case of a new residence purchased but not constructed by the 
taxpayer, or (ii) two years (18 months in the case of a sale of an old 
residence prior to January 1, 1975) after such date in the case of a new 
residence the construction of which was commenced by the taxpayer before 
the expiration of 18 months (one year in the case of a sale of an old 
residence prior to January 1, 1975) after such date (section 1034(a), 
(c)(2) and (c)(5); for detailed explanation, see paragraph (c)(4) of 
this section; for special rule applicable in some cases to husband and 
wife, see paragraph (f) of this section; see also paragraph (b)(9) of 
this section for definition of purchase).
    (8) Sale (of a residence) means a sale or an exchange (of a 
residence) for other property which occurs after December 31, 1953, an 
involuntary conversion (of a residence) which occurs after December 31, 
1950, and before January 1, 1954, or certain involuntary conversions 
where the disposition of the property occurs after December 31, 1957, in 
respect of which a proper election is made under section 1034(i)(2) (see 
sections 1034(c)(1), 1034(i)(1)(A), and 1034(i)(2); for detailed 
explanation concerning involuntary conversions, see paragraph (h) of 
this section).
    (9) Purchase (of a residence) means a purchase or an acquisition (of 
a residence) on the exchange of property or

[[Page 132]]

the partial or total construction or reconstruction (of a residence) by 
the taxpayer (section 1034(c) (1) and (2)). However, the mere 
improvement of a residence, not amounting to reconstruction, does not 
constitute purchase of a residence.
    (c) Rules for application of section 1034--(1) General rule; 
limitations on applicability. Gain realized from the sale (after 
December 31, 1953) of an old residence will be recognized only to the 
extent that the taxpayer's adjusted sales price of the old residence 
exceeds the taxpayer's cost of purchasing the new residence, provided 
that the taxpayer either (i) within a period beginning 18 months (one 
year in the case of a sale of an old residence prior to January 1, 1975) 
before the date of such sale and ending 18 months (one year in the case 
of a sale of an old residence prior to January 1, 1975) after such date 
purchases property and uses it as his principal residence, or (ii) 
within a period beginning 18 months (one year in the case of a sale of 
an old residence prior to January 1, 1975) before the date of such sale 
and ending two years (18 months in the case of a sale of an old 
residence prior to January 1, 1975) after such date uses as his 
principal residence a new residence the construction of which was 
commenced by him at any time before the expiration of 18 months (one 
year in the case of a sale of an old residence prior to January 1, 1975) 
after the date of the sale of the old residence (section 1034 (a) and 
(c)(5); for detailed explanation of use as principal residence see 
subparagraph (3) of this paragraph). The rule stated in the preceding 
sentence applies to a new residence purchased by the taxpayer before the 
date of sale of the old residence provided the new residence is still 
owned by him on such date (section 1034(c)(3)). Whether the construction 
of a new residence was commenced by the taxpayer before the expiration 
of 18 months (one year in the case of a sale of an old residence prior 
to January 1, 1975) after the date of the sale of the old residence will 
depend upon the facts and circumstances of each case. Section 1034 is 
not applicable to the sale of a residence if within the previous 18 
months (previous year in the case of a sale of an old residence prior to 
January 1, 1975) the taxpayer made another sale of residential property 
on which gain was realized but not recognized (section 1034(d)). For 
further details concerning limitations on the application of section 
1034, see paragraph (d) of this section.
    (2) Computation and examples. In applying the general rule stated in 
subparagraph (1) of this paragraph, the taxpayer should first subtract 
the commissions and other selling expenses from the selling price of his 
old residence, to determine the amount realized. A comparison of the 
amount realized with the cost or other basis of the old residence will 
then indicate whether there is any gain realized on the sale. Unless the 
amount realized is greater than the cost or other basis, no gain is 
realized and section 1034 does not apply. If the amount realized exceeds 
the cost or other basis, the amount of such excess constitutes the gain 
realized. The amount realized should then be reduced by the fixing-up 
expenses (if any), to determined the adjusted sales price. A comparison 
of the adjusted sales price of the old residence with the cost of 
purchasing the new residence will indicate how much (if any) of the 
realized gain is to be recognized. If the cost of purchasing the new 
residence is the same as, or greater than, the adjusted sales price of 
the old residence, then none of the realized gain is to be recognized. 
On the other hand, if the cost of purchasing the new residence is 
smaller than the adjusted sales price of the old residence, the gain 
realized, all of the gain realized is to be recognized to the extent of 
the difference. It should be noted that any amount of gain realized but 
not recognized is to be applied as a downward adjustment to the basis of 
the new residence (for details see paragraph (e) of this section).) The 
application of the general rule stated above may be illustrated by the 
following examples:

    Example 1. A taxpayer decides to sell his residence, which has a 
basis of $17,500. To make it more attractive to buyers, he paints the 
outside at a cost of $300 in April, 1954. He pays for the painting when 
the work is finished. In May, 1954, he sells the house for $20,000. 
Brokers' commissions and other selling expenses are $1,000. In October, 
1954, the taxpayer buys a new residence for $18,000. The amount 
realized, the gain realized, the

[[Page 133]]

adjusted sales price, and the gain to be recognized are computed as 
follows:

Selling price.................................................   $20,000
Less: Commissions and other selling expenses..................     1,000
                                                               ---------
Amount realized...............................................    19,000
Less: Basis...................................................    17,500
                                                               ---------
Gain realized.................................................     1,500
                                                               =========
Amount realized...............................................    19,000
Less: Fixing-up expenses......................................       300
                                                               ---------
Adjusted sales price..........................................    18,700
Cost of purchasing new residence..............................    18,000
                                                               ---------
Gain recognized...............................................       700
Gain realized but not recognized..............................       800
Adjusted basis of new residence (see paragraph (e) of this        17,200
 section).....................................................
 

    Example 2. The facts are the same as in example (1), except that the 
selling price of the old residence is $18,500. The computations are as 
follows:

Selling price.................................................   $18,500
Less: Commissions and other selling expenses..................     1,000
                                                               ---------
Amount realized...............................................    17,500
Less: Basis...................................................    17,500
                                                               ---------
Gain realized.................................................         0
 

    Note: Since no gain is realized, section 1034 is inapplicable; it 
is, therefore, unnecessary to compute the adjusted sales price of the 
old residence and compare it with the cost of purchasing the new 
residence. No adjustment to the basis of the new residence is to be 
made.
    Example 3. The facts are the same as in example (1), except that the 
cost of purchasing the new residence is $17,000. The computations are as 
follows:

Selling price.................................................   $20,000
Less: Commissions and other selling expenses..................     1,000
                                                               ---------
Amount realized...............................................    19,000
Less: Basis...................................................    17,500
                                                               ---------
Gain realized.................................................     1,500
                                                               =========
Amount realized...............................................    19,000
Less: Fixing-up expenses......................................       300
                                                               ---------
Adjusted sales price..........................................    18,700
Cost of purchasing the new residence..........................    17,000
                                                               ---------
Gain recognized...............................................     1,500
 

    Note: Since the adjusted sales price of the old residence exceeds 
the cost of purchasing the new residence by $1,700, which is more than 
the gain realized, all of the gain realized is recognized. No adjustment 
to the basis of the new residence is to be made.

Gain realized but not recognized.................................     $0
 

    Example 4. The facts are the same as in example (1), except that the 
fixing-up expenses are $1,100. The computations are as follows:

Selling price.................................................   $20,000
Less: Commissions and other selling expenses..................     1,000
                                                               ---------
Amount realized...............................................    19,000
Less: Basis...................................................    17,500
                                                               ---------
Gain realized.................................................     1,500
                                                               =========
Amount realized...............................................    19,000
Less: Fixing-up expenses......................................     1,100
                                                               ---------
Adjusted sales price..........................................    17,900
Cost of purchasing the new residence..........................    18,000
                                                               ---------
Gain recognized...............................................         0
 

    Note: Since the cost of purchasing the new residence exceeds the 
adjusted sales price, none of the gain realized is recognized.

Gain realized but not recognized....................              $1,500
                                                     -------------------
Adjusted basis of new residence (see paragraph (e)                16,500
 of this section)...................................
 

    (3) Property used by the taxpayer as his principal residence. (i) 
Whether or not property is used by the taxpayer as his residence, and 
whether or not property is used by the taxpayer as his principal 
residence (in the case of a taxpayer using more than one property as a 
residence), depends upon all the facts and circumstances in each case, 
including the good faith of the taxpayer. The mere fact that property 
is, or has been, rented is not determinative that such property is not 
used by the taxpayer as his principal residence. For example, if the 
taxpayer purchases his new residence before he sells his old residence, 
the fact that he temporarily rents out the new residence during the 
period before he vacates the old residence may not, in the light of all 
the facts and circumstances in the case, prevent the new residence from 
being considered as property used by the taxpayer as his principal 
residence. Property used by the taxpayer as his principal residence may 
include a houseboat, a house trailer, or stock held by a tenant-
stockholder in a cooperative housing corporation (as those terms are 
defined in section 216(b) (1) and (2)), if the dwelling which the 
taxpayer is entitled to occupy as such stockholder is used by him as his 
principal residence (section 1034(f)). Property used by the taxpayer as 
his principal residence does not include personal property such as a 
piece of furniture, a radio, etc., which, in accordance with the 
applicable local law, is not a fixture.
    (ii) Where part of a property is used by the taxpayer as his 
principal residence and part is used for other purposes, an allocation 
must be made to

[[Page 134]]

determine the application of this section. If the old residence is used 
only partially for residential purposes, only that part of the gain 
allocable to the residential portion is not to be recognized under this 
section and only an amount allocable to the selling price of such 
portion need be invested in the new residence in order to have the gain 
allocable to such portion not recognized under this section. If the new 
residence is used only partially for residential purposes only so much 
of its cost as is allocable to the residential portion may be counted as 
the cost of purchasing the new residence.
    (4) Cost of purchasing new residence. (i) The taxpayer's cost of 
purchasing the new residence includes not only cash but also any 
indebtedness to which the property purchased is subject at the time of 
purchase whether or not assumed by the taxpayer (including purchase-
money mortgages, etc.) and the face amount of any liabilities of the 
taxpayer which are part of the consideration for the purchase. 
Commissions and other purchasing expenses paid or incurred by the 
taxpayer on the purchase of the new residence are to be included in 
determining such cost. In the case of an acquisition of a residence upon 
an exchange which is considered as a purchase under this section, the 
fair market value of the new residence on the date of the exchange shall 
be considered as the taxpayer's cost of purchasing the new residence. 
Where any part of the new residence is acquired by the taxpayer other 
than by purchase, the value of such part is not to be included in 
determining the taxpayer's cost of the new residence (see paragraph 
(b)(9) of this section for definition of purchase). For example, if the 
taxpayer acquires a residence by gift or inheritance, and spends $20,000 
in reconstructing such residence, only such $20,000 may be treated as 
his cost of purchasing the new residence.
    (ii) The taxpayer's cost of purchasing the new residence includes 
only so much of such cost as is attributable to acquisition, 
construction, reconstruction, or improvements made within the period of 
three years or 42 months (two years or 30 months in the case of a sale 
of an old residence prior to January 1, 1975), as the case may be, in 
which the purchase and use of the new residence must be made in order to 
have gain on the sale of the old residence not recognized under this 
section. Thus, if the construction of the new residence is begun three 
years before the date of sale of the old residence and completed on the 
date of sale of the old residence, only that portion of the cost which 
is attributable to the last 18 months (last year in the case of a sale 
of an old residence prior to January 1, 1975) of such construction 
constitutes the taxpayer's cost of purchasing the new residence, for 
purposes of section 1034. Furthermore, the taxpayer's cost of purchasing 
the new residence includes only such amounts as are properly chargeable 
to capital account rather than to current expense. As to what 
constitutes capital expenditures, see section 263.
    (iii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: M began the construction of a new residence on January 15, 
1974, and completed it on October 14, 1974. The cost of $45,000 was 
incurred ratably over the 9-month period of construction. On December 
14, 1975, M sold his old residence and realized a gain. In determining 
the extent to which the realized gain is not to be recognized under 
section 1034, M's cost of constructing the new residence shall include 
only the $20,000 which was attributable to the June 15--October 14, 
1974, period (4 months at $5,000). The $25,000 balance of the cost of 
constructing the new residence was not attributable to the period 
beginning 18 months before the date of the sale of the old residence and 
ending two years after such date and, under section 1034, is not 
properly a part of M's cost of constructing the new residence.

    (d) Limitations on application of section 1034. (1) If a residence 
is purchased by the taxpayer prior to the date of the sale of the old 
residence, the purchased residence shall, in no event, be treated as a 
new residence if such purchased residence is sold or otherwise disposed 
of by him prior to the date of the sale of the old residence (section 
1034(c)(3)). And, if the taxpayer, during the period within which the 
purchase and use of the new residence must be made in order to have any 
gain on the sale of the old residence not recognized under this section, 
purchases more than one property which is used by him as his principal 
residence during the 18

[[Page 135]]

months (or two years in the case of the construction of the new 
residence) succeeding the date of the sale of the old residence, only 
the last of such properties shall be considered a new residence (section 
1034(c)(4)). In the case of a sale of an old residence prior to January 
1, 1975, the period of 18 months (or two years) referred to in the 
preceding sentence shall be one year (or 18 months). If within 18 months 
(one year in the case of a sale of an old residence prior to January 1, 
1975) before the date of the sale of the old residence, the taxpayer 
sold other property used by him as his principal residence at a gain, 
and any part of such gain was not recognized under this section or 
section 112(n) of the Internal Revenue Code of 1939, this section shall 
not apply with respect to the sale of the old residence (section 
1034(d)).
    (2) The following example will illustrate the rules of subparagraph 
(1) of this paragraph:

    Example: A taxpayer sells his old residence on January 15, 1954, and 
purchases another residence on February 15, 1954. On March 15, 1954, he 
sells the residence which he bought on February 15, 1954, and purchases 
another residence on April 15, 1954. The gain on the sale of the old 
residence on January 15, 1954, will not be recognized except to the 
extent to which the taxpayer's adjusted sales price of the old residence 
exceeds the cost of purchasing the residence which he purchased on April 
15, 1954. Gain on the sale of the residence which was bought on February 
15, 1954, and sold on March 15, 1954, will be recognized.

    (e) Basis of new residence. (1) Where the purchase of a new 
residence results, under this section, in the nonrecognition of any part 
of the gain realized upon the sale of an old residence, then, in 
determining the adjusted basis of the new residence as of any time 
following the sale of the old residence, the adjustments to basis shall 
include a reduction by an amount equal to the amount of the gain which 
was not recognized upon the sale of the old residence (section 1034(e); 
for special rule applicable in some cases to husband and wife, see 
paragraph (f) of this section). Such a reduction is not to be made for 
the purpose of determining the adjusted basis of the new residence as of 
any time preceding the sale of the old residence. For the purpose of 
this determination, the amount of the gain not recognized under this 
section upon the sale of the old residence includes only so much of the 
gain as is not recognized because of the taxpayer's cost, up to the date 
of the determination of the adjusted basis, of purchasing the new 
residence.
    (2) The following example will illustrate the rule of subparagraph 
(1) of this paragraph:

    Example: On January 1, 1954, the taxpayer buys a new residence for 
$10,000. On March 1, 1954, he sells for an adjusted sales price of 
$15,000 his old residence, which has an adjusted basis to him of $5,000 
(no fixing-up expenses are involved, so that $15,000 is the amount 
realized as well as the adjusted sales price). Between April 1 and April 
15 a wing is constructed on the new house at a cost of $5,000. Between 
May 1 and May 15 a garage is constructed at a cost of $2,000. The 
adjusted basis of the new residence is $10,000 during January and 
February, $5,000 during March, $5,000 following the completion of the 
construction in April, and $7,000 following the completion of the 
construction in May. Since the old residence was not sold until March 1, 
no adjustment to the basis of the new residence is made during January 
and February. Computations for March, April, and May are as follows:

Amount realized on sale of old residence............             $15,000
Less: Adjusted basis of old residence...............               5,000
                                                     -------------------
Gain realized on sale of old residence..............              10,000
                    March 1, 1954
Adjusted sales price of old residence...............              15,000
Less: Cost of purchasing new residence..............              10,000
                                                     -------------------
Gain recognized.....................................               5,000
                                                     -------------------
Gain realized but not recognized....................               5,000
                                                     ===================
Cost of purchasing new residence....................              10,000
Less: Gain realized but not recognized..............               5,000
                                                     -------------------
Adjusted basis of new residence.....................               5,000
                   April 15, 1954
Gain realized on sale of old residence..............              10,000
Adjusted sales price of old residence...............              15,000
Less: Cost of purchasing new residence..............              15,000
                                                     -------------------
Gain recognized.....................................                   0
                                                     -------------------
Gain realized but not recognized....................              10,000
                                                     ===================
Cost of purchasing new residence....................              15,000
Less: Gain realized but not recognized..............              10,000
                                                     -------------------
Adjusted basis of new residence.....................               5,000
                                                     ===================
                    May 15, 1954
Gain realized on sale of old residence..............              10,000
Adjusted sales price of old residence...............              15,000

[[Page 136]]

 
Less: Cost of purchasing new residence..............              17,000
                                                     -------------------
Gain recognized.....................................                   0
                                                     -------------------
Gain realized but not recognized....................              10,000
                                                     ===================
Cost of purchasing new residence....................              17,000
Less: Gain realized but not recognized..............              10,000
                                                     -------------------
Adjusted basis of new residence.....................               7,000
 

    (f) Husband and wife. (1) If the taxpayer and his spouse file the 
consent referred to in this paragraph, then the taxpayer's adjusted 
sales price of the old residence shall mean the taxpayer's, or the 
taxpayer's and his spouse's, adjusted sales price of the old residence, 
and the taxpayer's cost of purchasing the new residence shall mean the 
cost to the taxpayer, or to his spouse, or to both of them, of 
purchasing the new residence, whether such new residence is held by the 
taxpayer, or his spouse, or both (section 1034(g)). Such consent may be 
filed only if the old residence and the new residence are each used by 
the taxpayer and his same spouse as their principal residence. If the 
taxpayer and his spouse do not file such a consent, the recognition of 
gain upon sale of the old residence shall be determined under this 
section without regard to the foregoing.
    (2) The consent referred to in subparagraph (1) of this paragraph is 
a consent by the taxpayer and his spouse to have the basis of the 
interest of either of them in the new residence reduced from what it 
would have been but for the filing of such consent by an amount by which 
the gain of either of them on the sale of his interest in the old 
residence is not recognized solely by reason of the filing of such 
consent. Such reduction in basis is applicable to the basis of the new 
residence, whether such basis is that of the husband, of the wife, or 
divided between them. If the basis is divided between the husband and 
wife, the reduction in basis shall be divided between them in the same 
proportion as the basis (determined without regard to such reduction) is 
divided. Such consent shall be filed with the district director with 
whom the taxpayer filed the return for the taxable year or years in 
which the gain from the sale of the old residence was realized.
    (3) The following examples will illustrate the application of this 
rule:

    Example 1. A taxpayer, in 1954, sells for an adjusted sales price of 
$10,000 the principal residence of himself and his wife, which he owns 
individually and which has an adjusted basis to him of $5,000 (no 
fixing-up expenses are involved, so that $10,000 is the amount realized 
as well as the adjusted sales price). Within a year after such sale he 
and his wife contribute $5,000 each from their separate funds for the 
purchase of their new principal residence which they hold as tenants in 
common, each owning an undivided one-half interest therein. If the 
taxpayer and his wife file the required consent, the gain of $5,000 upon 
the sale of the old residence will not be recognized to the taxpayer, 
and the adjusted basis of the taxpayer's interest in the new residence 
will be $2,500 and the adjusted basis of his wife's interest in such 
property will be $2,500.
    Example 2. A taxpayer and his wife, in 1954, sell for an adjusted 
sales price of $10,000 their principal residence, which they own as 
joint tenants and which has an adjusted basis of $2,500 to each of them 
($5,000 together) (no fixing-up expenses are involved, so that $10,000 
is the amount realized as well as the adjusted sales price). Within a 
year after such sale, the wife spends $10,000 of her own funds in the 
purchase of a principal residence for herself and the taxpayer and takes 
title in her name only. If the taxpayer and his wife file the required 
consent, the adjusted basis to the wife of the new residence will be 
$5,000, and the gain of the taxpayer will be $2,500 upon the sale of the 
old residence will not be recognized. The wife, as a taxpayer herself, 
will have her gain of $2,500 on the sale of the old residence not 
recognized under the general rule.

    (g) Members of Armed Forces. (1) Section 1034(h) provides a special 
rule for members of the Armed Forces with respect to the period after 
the sale of the old residence within which the acquisition of a new 
residence may result in a non-recognition of gain on such sale. The 
running of the period of 18 months (one year in the case of a sale of an 
old residence prior to January 1, 1975) after the sale of the old 
residence in the case of the purchase of a new residence, or the period 
of two years (18 months in the case of a sale of an old residence prior 
to January 12, 1975) after such sale in the case of the construction of 
a new residence, is suspended during any time that the taxpayer serves 
on extended active duty with the Armed Forces of the United States. 
(This

[[Page 137]]

paragraph applies to time served on extended active duty prior to July 
1, 1973, only if such extended active duty occurred during an induction 
period as defined in section 112(c)(5) as in effect prior to July 1, 
1973.) However, in no event may such suspension extend for more than 
four years after the date of the sale of the old residence the period 
within which the purchase or construction of a new residence may result 
in a nonrecognition of gain. For example, if the taxpayer is on extended 
active duty with the Army from January 1, 1975, to June 30, 1976, and if 
he sold his old residence on January 10, 1975, the latest date on which 
the taxpayer may use a new residence constructed by him and have any 
part of the gain on the sale of his old residence not recognized under 
this section is June 30, 1978 (the date two years following the 
taxpayer's termination of active duty). However, if this taxpayer were 
on extended active duty with the Army from January 1, 1975, to December 
31, 1978, the latest date on which he might use a new residence 
constructed by him and have any part of the gain on the sale of his old 
residence not recognized under this section would be January 10, 1979 
(the date four years following the date of the sale of the old 
residence).
    (2) This suspension covers not only the Armed Forces service of the 
taxpayer but if the taxpayer and his same spouse used both the old and 
the new residences as their principal residence, then the extension 
applies in like manner to the time the taxpayer's spouse is on extended 
active duty with the Armed Forces of the United States.
    (3) The time during which the running of the period is suspended is 
part of such period. Thus, construction costs during such time are 
includible in the cost of purchasing the new residence under paragraph 
(c)(4) of this section.
    (4) The running of the period of 18 months (or two years) after the 
date of sale of the old residence referred to in section 1034(c)(4) and 
in paragraph (d) of this section is not suspended. The running of the 
18-month period prior to the date of the sale of the old residence 
within which the new residence may be purchased in order to have gain on 
the sale of the old residence not recognized under this section is also 
not suspended. In the case of a sale of an old residence prior to 
January 1, 1975, the periods of 18 months (or two years) referred to in 
each of the two preceding sentences shall be one year (or 18 months).
    (5) The term extended active duty means any period of active duty 
which is served pursuant to a call or order to such duty for a period in 
excess of 90 days or for an indefinite period. If the call or order is 
for a period of more than 90 days, it is immaterial that the time served 
pursuant to such call or order is less than 90 days, if the reason for 
such shorter period of service occurs after the beginning of such duty. 
As to what constitutes active service as a member of the Armed Forces of 
the United States, see paragraph (i) of Sec. 1.112-1. As to who are 
members of the Armed Forces of the United States, see section 
7701(a)(15), and the regulations in part 301 of this chapter 
(Regulations on Procedure and Administration).
    (h) Special rules for involuntary conversions--(1) In general. 
Except as provided in subparagraph (2) of this paragraph, section 1034 
is inapplicable to involuntary conversions of personal residences 
occurring after December 31, 1953 (section 1034(i)(1)(B)). For purposes 
of section 1034, an involuntary conversion of a personal residence 
occurring after December 31, 1950, and before January 1, 1954, is 
treated as a sale of such residence (section 1034(i)(1)(A); see 
paragraph (b)(8) of this section). For purposes of this paragraph, an 
involuntary conversion is defined, as the destruction in whole or in 
part, theft, seizure, requisition, or condemnation of property, or the 
sale or exchange of property under threat or imminence thereof. See 
section 1033 and Sec. 1.1033(a)-3 for treatment of residences 
involuntarily converted after December 31, 1953.
    (2) Election to treat condemnation of personal residence as sale. 
(i) Section 1034(i)(2) provides a special rule which permits a taxpayer 
to elect to treat the seizure, requisition, or condemnation of his 
principal residence, or the sale or exchange of such residence under 
threat or imminence thereof, if occurring after December 31, 1957, as 
the sale of such residence for purposes of section 1034 (relating to 
sale or exchange

[[Page 138]]

of residence). A taxpayer may thus elect to have section 1034 apply, 
rather than section 1033 (relating to involuntary conversions), in 
determining the amount of gain realized on the disposition of his old 
residence that will not be recognized and the extent to which the basis 
of his new residence acquired in lieu thereof shall be reduced. Once 
made, the election shall be irrevocable.
    (ii) If the taxpayer elects to be governed by the provisions of 
section 1034, section 1033 will have no application. Thus, a taxpayer 
who elects under section 1034(i)(2) to treat the seizure, requisition, 
or condemnation of his principal residence (but not the destruction), or 
the sale or exchange of such residence under threat or imminence 
thereof, as a sale for the purpose of section 1034 must satisfy the 
requirements of section 1034 and this section. For example, under 
section 1034 a taxpayer generally must replace his old residence with a 
new residence which he uses as his principal residence, within a period 
beginning 18 months (one year in the case of a sale of an old residence 
prior to January 1, 1975) before the date of disposition of his old 
residence, and ending 18 months (one year in the case of a sale of an 
old residence prior to January 1, 1975) after such date. However, in the 
case of a new residence the construction of which was commenced by the 
taxpayer within such period, the replacement period shall not expire 
until 2 years (18 months in the case of a sale of an old residence prior 
to January 1, 1975) after the date of disposition of the old residence.
    (iii) Time and manner of making election. The election under section 
1034(i)(2) shall be made in a statement attached to the taxpayer's 
income tax return, when filed, for the taxable year during which the 
disposition of his old residence occurs. The statement shall indicate 
that the taxpayer elects under section 1034(i)(2) to treat the 
disposition of his old residence as a sale for purposes of section 1034, 
and shall also show--
    (a) The basis of the old residence;
    (b) The date of its disposition;
    (c) The adjusted sales price of the old residence, if known; and
    (d) The purchase price, date of purchase, and date of occupancy of 
the new residence if it has been acquired prior to the time of making 
the election.
    (i) Statute of limitations. (1) Whenever a taxpayer sells property 
used as his principal residence at a gain, the statutory period 
prescribed in section 6501(a) for the assessment of a deficiency 
attributable to any part of such gain shall not expire prior to the 
expiration of three years from the date of receipt, by the district 
director with whom the return was filed for the taxable year or years in 
which the gain from the sale of the old residence was realized (section 
1034(j)), of a written notice from the taxpayer of--
    (i) The taxpayer's cost of purchasing the new residence which the 
taxpayer claims result in nonrecognition of any part of such gain.
    (ii) The taxpayer's intention not to purchase a new residence within 
the period when such a purchase will result in nonrecognition of any 
part of such gain, or
    (iii) The taxpayer's failure to make such a purchase within such 
period.

Any gain from the sale of the old residence which is required to be 
recognized shall be included in gross income for the taxable year or 
years in which such gain was realized. Any deficiency attributable to 
any portion of such gain may be assessed before the expiration of the 3-
year period described in this paragraph, notwithstanding the provisions 
of any law or rule of law which might otherwise bar such assessment.
    (2) The notification required by the preceding subparagraph shall 
contain all pertinent details in connection with the sale of the old 
residence and, where applicable, the purchase price of the new 
residence. The notification shall be in the form of a written statement 
and shall be accompanied, where appropriate, by an amended return for 
the year in which the gain from the sale of the old residence was 
realized, in order to reflect the inclusion in gross income for that 
year of gain required to be recognized in connection with such sale.
    (j) Effective date. Pursuant to section 7851(a)(1)(C), paragraphs 
(a), (b), (c), (d), (f), (g), and (i) of this section apply in the case 
of any sale (as defined in paragraph (b)(8) of this section) made after

[[Page 139]]

December 31, 1953, although such sale may occur in a taxable year 
subject to the Internal Revenue Code of 1939. Similarly, the rule in 
paragraph (h) of this section that involuntary conversions of personal 
residences are not to be treated as sales for purposes of section 1034 
but are governed by section 1033 applies to any such involuntary 
conversion made after December 31, 1953, although such involuntary 
conversion may occur in a taxable year subject to the Internal Revenue 
Code of 1939. The rule in paragraph (e) of this section requiring an 
adjustment to the basis of a new residence, the purchase of which 
results (under section 1034, or section 112(n) of the Internal Revenue 
Code of 1939) in the nonrecognition of gain on the sale of an old 
residence, applies in determining the adjusted basis of the new 
residence at any time following such sale, although such sale may occur 
in a taxable year subject to the Internal Revenue Code of 1939.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6916, 32 FR 
5924, Apr. 13, 1967; 32 FR 6971, May 6, 1967; T.D. 7404, 41 FR 6758, 
Feb. 13, 1976; T.D. 7625, 44 FR 31013, May 30, 1979]



Sec. 1.1035-1  Certain exchanges of insurance policies.

    Under the provisions of section 1035 no gain or loss is recognized 
on the exchange of:
    (a) A contract of life insurance for another contract of life 
insurance or for an endowment or annuity contract (section 1035(a)(1));
    (b) A contract of endowment insurance for another contract of 
endowment insurance providing for regular payments beginning at a date 
not later than the date payments would have begun under the contract 
exchanged, or an annuity contract (section 1035(a)(2)); or
    (c) An annuity contract for another annuity contract (section 
1035(a)(3)), but section 1035 does not apply to such exchanges if the 
policies exchanged to not relate to the same insured. The exchange, 
without recognition of gain or loss, of an annuity contract for another 
annuity contract under section 1035(a)(3) is limited to cases where the 
same person or persons are the obligee or obligees under the contract 
received in exchange as under the original contract. This section and 
section 1035 do not apply to transactions involving the exchange of an 
endowment contract or annuity contract for a life insurance contract, 
nor an annuity contract for an endowment contract. In the case of such 
exchanges, any gain or loss shall be recognized. In the case of 
exchanges which would be governed by section 1035 except for the fact 
that the property received in exchange consists not only of property 
which could otherwise be received without the recognition of gain or 
loss, but also of other property or money, see section 1031 (b) and (c) 
and the regulations thereunder. Such an exchange does not come within 
the provisions of section 1035. Determination of the basis of property 
acquired in an exchange under section 1035(a) shall be governed by 
section 1031(d) and the regulations thereunder.



Sec. 1.1036-1  Stock for stock of the same corporation.

    (a) Section 1036 permits the exchange, without the recognition of 
gain or loss, of common stock for common stock, or of preferred stock 
for preferred stock, in the same corporation. Section 1036 applies even 
though voting stock is exchanged for nonvoting stock or nonvoting stock 
is exchanged for voting stock. It is not limited to an exchange between 
two individual stockholders; it includes a transaction between a 
stockholder and the corporation. However, a transaction between a 
stockholder and the corporation may qualify not only under section 
1036(a), but also under section 368(a)(1)(E) (recapitalization) or 
section 305(a) (distribution of stock and stock rights). The provisions 
of section 1036(a) do not apply if stock is exchanged for bonds, or 
preferred stock is exchanged for common stock, or common stock is 
exchanged for preferred stock, or common stock in one corporation is 
exchanged for common stock in another corporation. See paragraph (l) of 
section 1301-1 for certain transactions treated as distributions under 
section 301. See paragraph (e)(5) of Sec. 1.368-2 for certain 
transactions which result in deemed distributions under section 305(c) 
to which sections 305(b)(4) and 301 apply.

[[Page 140]]

    (b) For rules relating to recognition of gain or loss where an 
exchange is not wholly in kind, see subsections (b) and (c) of section 
1031. For rules relating to the basis of property acquired in an 
exchange described in paragraph (a) of this section, see subsection (d) 
of section 1031.
    (c) A transfer is not within the provisions of section 1036(a) if as 
part of the consideration the other party to the exchange assumes a 
liability of the taxpayer (or if the property transferred is subject to 
a liability), but the transfer, if otherwise qualified, will be within 
the provisions of section 1031(b).
    (d) Nonqualified preferred stock. See Sec. 1.356-7(a) for the 
applicability of the definition of nonqualified preferred stock in 
section 351(g)(2) for stock issued prior to June 9, 1997, and for stock 
issued in transactions occurring after June 8, 1997, that are described 
in section 1014(f)(2) of the Taxpayer Relief Act of 1997, Public Law 
105-34 (111 Stat. 788, 921).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 7281, 38 FR 
18540, July 12, 1973; T.D. 8904, 65 FR 58652, Oct. 2, 2000]



Sec. 1.1037-1  Certain exchanges of United States obligations.

    (a) Nonrecognition of gain or loss--(1) In general. Section 1037(a) 
provides for the nonrecognition of gain or loss on the surrender to the 
United States of obligations of the United States issued under the 
Second Liberty Bond Act (31 U.S.C. 774(2)) when such obligations are 
exchanged solely for other obligations issued under that Act and the 
Secretary provides by regulations promulgated in connection with the 
issue of such other obligations that gain or loss is not to be 
recognized on such exchange. It is not necessary that at the time of the 
exchange the obligation which is surrendered to the United States be a 
capital asset in the hands of the taxpayer. For purposes of section 
1037(a) and this subparagraph, a circular of the Treasury Department 
which offers to exchange obligations of the United States issued under 
the Second Liberty Bond Act for other obligations issued under that Act 
shall constitute regulations promulgated by the Secretary in connection 
with the issue of the obligations offered to be exchanged if such 
circular contains a declaration by the Secretary that no gain or loss 
shall be recognized for Federal income tax purposes on the exchange or 
grants the privilege of continuing to defer the reporting of the income 
of the bonds exchanged until such time as the bonds received in the 
exchange are redeemed or disposed of, or have reached final maturity, 
whichever is earlier. See, for example, regulations of the Bureau of the 
Public Debt, 31 CFR part 339, or Treasury Department Circular 1066, 26 
FR 8647. The application of section 1037(a) and this subparagraph will 
not be precluded merely because the taxpayer is required to pay money on 
the exchange. See section 1031 and the regulations thereunder if the 
taxpayer receives money on the exchange.
    (2) Recognition of gain or loss postponed. Gain or loss which has 
been realized but not recognized on the exchange of a U.S. obligation 
for another such obligation because of the provisions of section 1037(a) 
(or so much of section 1031 (b) or (c) as related to section 1037(a)) 
shall be recognized at such time as the obligation received in the 
exchange is disposed of, or redeemed, in a transaction other than an 
exchange described in section 1037(a) (or so much of section 1031 (b) or 
(c) as relates to section 1037(a)) or reaches final maturity, whichever 
is earlier, to the extent gain or loss is realized on such later 
transaction.
    (3) Illustrations. The application of this paragraph may be 
illustrated by the following examples, in which it is assumed that the 
taxpayer uses the cash receipts and disbursements method of accounting 
and has never elected under section 454(a) to include in gross income 
currently the annual increase in the redemption price of non-interest-
bearing obligations issued at a discount. In addition, it is assumed 
that the old obligations exchanged are capital assets transferred in an 
exchange in respect of which regulations are promulgated pursuant to 
section 1037(a):

    Example 1. A, the owner of a $1,000 series E U.S. savings bond 
purchased for $750 and bearing an issue date of May 1, 1945, surrenders 
the bond to the United States in exchange solely for series H U.S. 
savings bonds on February 1, 1964, when the series E bond

[[Page 141]]

has a redemption value of $1,304.80. In the exchange A pays an 
additional $195.20 and obtains three $500 series H bonds. None of the 
$554.80 gain ($1,304.80 less $750) realized by A on the series E bond is 
recognized at the time of the exchange.
    Example 2. In 1963, B purchased for $97 a marketable U.S. bond which 
was originally issued at its par value of $100. In 1964 he surrenders 
the bond to the United States in exchange solely for another marketable 
U.S. bond which then has a fair market value of $95. B's loss of $2 on 
the old bond is not recognized at the time of the exchange, and his 
basis for the new bond is $97 under section 1031(d). If it has been 
necessary for B to pay $1 additional consideration in the exchange, his 
basis in the new bond would be $98.
    Example 3. The facts are the same as in example (2) except that B 
also receives $1 interest on the old bond for the period which has 
elapsed since the last interest payment date and that B does not pay any 
additional consideration on the exchange. As in example (2), B has a 
loss of $2 which is not recognized at the time of the exchange and his 
basis in the new bond is $97. In addition, the $1 of interest received 
on the old bond is includible in gross income. B holds the new bond 1 
year and sells it in the market for $99 plus interest. At this time he 
has a gain of $2, the difference between his basis of $97 in the new 
bond and the sales price of such bond. In addition, the interest 
received on the new bond is includible in gross income.
    Example 4. The facts are the same as in example (2), except that in 
addition to the new bond B also receives $1.85 in cash, $0.85 of which 
is interest. The $0.85 interest received is includible in gross income. 
B's loss of $1 ($97 less $96) on the old bond is not recognized at the 
time of the exchange by reason of section 1031(c). Under section 1031(d) 
B's basis in the new bond is $96 (his basis of $97 in the old bond, 
reduced by the $1 cash received in the exchange).
    Example 5. (a) For $975 D subscribes to a marketable U.S. obligation 
which has a face value of $1,000. Thereafter, he surrenders this 
obligation to the United States in exchange solely for a 10-year 
marketable $1,000 obligation which at the time of exchange has a fair 
market value of $930, at which price such obligation is initially 
offered to the public. At the time of issue of the new obligation there 
was no intention to call it before maturity. Five years after the 
exchange D sells the new obligation for $960.
    (b) On the exchange of the old obligation for the new obligation D 
sustains a loss of $45 ($975 less $930), none of which is recognized 
pursuant to section 1037(a).
    (c) The basis of the new obligation in D's hands, determined under 
section 1031(d), is $975 (the same basis as that of the old obligation).
    (d) On the sale of the new obligation D sustains a loss of $15 ($975 
less $960), all of which is recognized by reason of section 1002.
    Example 6. (a) The facts are the same as in example (5), except that 
five years after the exchange D sells the new obligation for $1,020.
    (b) On the exchange of the old obligation for the new obligation D 
sustains a loss of $45 ($975 less $930), none of which is recognized 
pursuant to section 1037(a).
    (c) The basis of the new obligation in D's hands, determined under 
section 1031(d), is $975 (the same basis as that of the old obligation). 
The issue price of the new obligation under section 1232(b)(2) is $930.
    (d) On the sale of the new obligation D realizes a gain of $45 
($1,020 less $975), all of which is recognized by reason of section 
1002. Of this gain of $45, the amount of $35 is treated as ordinary 
income and $10 is treated as long-term capital gain, determined as 
follows:

(1) Ordinary income under first sentence of section
 1232(a)(2)(B) on sale of new obligation:
  Stated redemption price of new obligation at maturity........   $1,000
  Less: Issue price of new obligation under section 1232(b)(2).      930
                                                                --------
  Original issue discount on new obligation....................       70
                                                                ========
  Proration under section 1232(a)(2)(B)(ii): ($70x60 months/120       35
   months).....................................................
(2) Long-term capital gain ($45 less $35)......................       10
 

    Example 7. (a) The facts are the same as in example (5), except that 
D retains the new obligation and redeems it at maturity for $1,000.
    (b) On the exchange of the old obligation for the new obligation D 
sustains a loss of $45 ($975 less $930), none of which is recognized 
pursuant to section 1037(a).
    (c) The basis of the new obligation in D's hands, determined under 
section 1031(d), is $975 (the same basis as that of the old obligation). 
The issue price of the new obligation is $930 under section 1232(b)(2).
    (d) On the redemption of the new obligation D realizes a gain of $25 
($1,000 less $975), all of which is recognized by reason of section 
1002. Of this gain of $25, the entire amount is treated as ordinary 
income, determined as follows:

Ordinary income under first sentence of section 1232(a)(2)(B)
 on redemption of new obligation:
  Stated redemption price of new obligation at maturity........   $1,000
  Less: Issue price of new obligation under section 1232(b)(2).      930
                                                                --------
  Original issue discount on new obligation....................       70
                                                                ========
  Proration under section 1232(a)(2)(B)(ii): ($70x120 months/         25
   120 months), but such amount not to exceed the $25 gain
   recognized on redemption....................................
 


[[Page 142]]

    (b) Application of section 1232 upon disposition or redemption of 
new obligation--(1) Exchanges involving nonrecognition of gain on 
obligations issued at a discount. If an obligation, the gain on which is 
subject to the first sentence of section 1232(a)(2)(B), because the 
obligation was originally issued at a discount, is surrendered to the 
United States in exchange for another obligation and any part of the 
gain realized on the exchange is not then recognized because of the 
provisions of section 1037(a) (or because of so much of section 1031(b) 
as relates to section 1037(a)), the first sentence of section 
1232(a)(2)(B) shall apply to so much of such unrecognized gain as is 
later recognized upon the disposition or redemption of the obligation 
which is received in the exchange as though the obligation so disposed 
of or redeemed were the obligation surrendered, rather than the 
obligation received, in such exchange. See the first sentence of section 
1037(b)(1). Thus, in effect that portion of the gain which is 
unrecognized on the exchange but is recognized upon the later 
disposition or redemption of the obligation received from the United 
States in the exchange shall be considered as ordinary income in an 
amount which is equal to the gain which, by applying the first sentence 
of section 1232(a)(2)(B) upon the earlier surrender of the old 
obligation to the United States, would have been considered as ordinary 
income if the gain had been recognized upon such earlier exchange. Any 
portion of the gain which is recognized under section 1031(b) upon the 
earlier exchange and is treated at such time as ordinary income shall be 
deducted from the gain which is treated as ordinary income by applying 
the first sentence of section 1232(a)(2)(B) pursuant to this 
subparagraph upon the disposition or redemption of the obligation which 
is received in the earlier exchange. This subparagraph shall apply only 
in a case where on the exchange of United States obligations there was 
some gain not recognized by reason of section 1037(a) (or so much of 
section 1031(b) as relates to section 1037(a)); it shall not apply 
where, only loss was unrecognized by reason of section 1037(a).
    (2) Rules to apply when a nontransferable obligation is surrendered 
in the exchange. For purposes of applying both section 1232(a)(2)(B) and 
subparagraph (1) of this paragraph to the total gain realized on the 
obligation which is later disposed of or redeemed, if the obligation 
surrendered to the United States in the earlier exchange is a 
nontransferable obligation described in section 454 (a) or (c)--
    (i) The aggregate amount considered, with respect to the obligation 
so surrendered in the earlier exchange, as ordinary income shall not 
exceed the difference between the issue price of the surrendered 
obligation and the stated redemption price of the surrendered obligation 
which applied at the time of the earlier exchange, and
    (ii) The issue price of the obligation which is received from the 
United States in the earlier exchange shall be considered to be the 
stated redemption price of the surrendered obligation which applied at 
the time of the earlier exchange, increased by the amount of other 
consideration (if any) paid to the United States as part of the earlier 
exchange.


If the obligation received in the earlier exchange is a nontransferable 
obligation described in section 454(c) and such obligation is partially 
redeemed before final maturity or partially disposed of by being 
partially reissued to another owner, the amount determined by applying 
subdivision (i) of this subparagraph shall be determined on a basis 
proportional to the total denomination of obligations redeemed or 
disposed of. See paragraph (c) of Sec. 1.454-1.
    (3) Long-term capital gain. If, in a case where both subparagraphs 
(1) and (2) of this paragraph are applied, the total gain realized on 
the redemption or disposition of the obligation which is received from 
the United States in the exchange to which section 1037(a) (or so much 
of section 1031(b) as related to section 1037(a)) applies exceeds the 
amount of gain which, by applying such subparagraphs, is treated as 
ordinary income, the gain in excess of such amount shall be treated as 
long-term capital gain.
    (4) Illustrations. The application of this paragraph may be 
illustrated by the following examples, in which it is

[[Page 143]]

assumed that the taxpayer uses the cash receipts and disbursements 
method of accounting and has never elected under section 454(a) to 
include in gross income currently the annual increase in the redemption 
price of non-interest-bearing obligations issued at a discount. In 
addition, it is assumed that the old obligations exchanged are capital 
assets transferred in an exchange in respect of which regulations are 
promulgated pursuant to section 1037(a):

    Example 1. (a) A purchased a noninterest-bearing nontransferable 
U.S. bond for $74 which was issued after December 31, 1954, and 
redeemable in 10 years for $100. Several years later, when the stated 
redemption value of such bond is $94.50, A surrenders it to the United 
States in exchange for $1 in cash and a 10-year marketable bond having a 
face value of $100. On the date of exchange the bond received in the 
exchange has a fair market value of $96. Less than one month after the 
exchange, A sells the new bond for $96.
    (b) On the exchange of the old bond for the new bond A realizes a 
gain of $23, determined as follows:

Amount realized (a new bond worth $96 plus $1 cash)..............    $97
Less: Adjusted basis of old bond.................................     74
                                                                  ------
    Gain realized................................................     23
 

    Pursuant to so much of section 1031(b) as applies to section 
1037(a), the amount of such gain which is recognized is $1 (the money 
received). Such recognized gain of $1 is treated as ordinary income. On 
the exchange of the old bond a gain of $22 ($23 less $1) is not 
recognized.
    (c) The basis of the new bond in A's hands, determined under section 
1031(d) is $74 (the basis of the old bond, decreased by the $1 received 
in cash and increased by the $1 gain recognized on the exchange).
    (d) On the sale of the new bond A realizes a gain of $22 ($96 less 
$74), all of which is recognized by reason of section 1002. Of this gain 
of $22, the amount of $19.50 is treated as ordinary income and $2.50 is 
treated as long-term capital gain, determined as follows:

(1) Ordinary income, treating sale of new bond as though
 a sale of old bond and applying section 1037(b)(1)(A):
  Stated redemption price of old bond...................          $94.50
  Less: Issue price of old bond.........................           74.00
                                         -----------------
    Aggregate gain under section 1037(b)(1)(A) (not to             20.50
     exceed $22 not recognized at time of exchange).....
    Less: Amount of such gain recognized at time of                 1.00
     exchange...........................................
                                         -----------------
  Ordinary income.......................................           19.50
                                         =================
(2) Ordinary income under first sentence of section
 1232(a)(2)(B), applying section 1037(b)(1)(B) to sale
 of new bond:
  Stated redemption price of new bond at         $100.00
   maturity.............................
  Less: Issue price of new bond under              94.50
   section 1037(b)(1)(B) ($94.50 plus $0
   additional consideration paid on
   exchange)............................
                                         ----------------
  Original issue discount on new bond...            5.50
                                         ================
  Proration under section                 ..............               0
   1232(a)(2)(B)(ii): ($5.50x0 months/
   120 months)..........................
                                                         ---------------
(3) Total ordinary income (sum of subparagraphs (1) and            19.50
 (2))...................................................
(4) Long-term capital gain ($22 less $19.50)............            2.50
 

    Example 2. (a) The facts are the same as in example (1), except 
that, less than one month after the exchange of the old bond, the new 
bond is sold for $92.
    (b) On the sale of the new bond A realizes a gain of $18 ($92 less 
$74), all of which is recognized by reason of section 1002. Of this 
gain, the entire amount of $18 is treated as ordinary income. This 
amount is determined as provided in paragraph (d)(1) of example (1) 
except that the ordinary income of $19.50 is limited to the $18 
recognized on the sale of the new bond.
    Example 3. (a) The facts are the same as in example (1), except that 
2 years after the exchange of the old bond A sells the new bond for $98.
    (b) On the sale of the new bond A realizes a gain of $24 ($98 less 
$74), all of which is recognized by reason of section 1002. Of this gain 
of $24, the amount of $20.60 is treated as ordinary income and $3.40 is 
treated as long-term capital gain, determined as follows:

(1) Ordinary income applicable to old bond (determined as         $19.50
 provided in paragraph (d)(1) of example (1)).................
(2) Ordinary income applicable to new bond (determined as           1.10
 provided in paragraph (d)(2) of example (1), except that the
 proration of the original issue discount under section
 1232(a)(2)(B)(ii) amounts to $1.10 ($5.50x24 months/120
 months)......................................................
                                                               ---------
(3) Total ordinary income (sum of subparagraphs (1) and (2))..     20.60
(4) Long-term capital gain ($24 less $20.60)..................      3.40
 

    Example 4. (a) The facts are the same as in example (1), except that 
A retains the new bond and redeems it at maturity for $100.
    (b) On the redemption of the new bond A realizes a gain of $26 ($100 
less $74), all of which is recognized by reason of section 1002. Of this 
gain of $26, the amount of $25 is treated as ordinary income and $1 is 
treated as long-term capital gain, determined as follows:

[[Page 144]]



(1) Ordinary income applicable to old bond (determined as         $19.50
 provided in paragraph (d)(1) of example (1)).................
(2) Ordinary income applicable to new bond (determined as           5.50
 provided in paragraph (d)(2) of example (1), except that the
 proration of the original issue discount under section
 1232(a)(2)(B)(ii) amounts to $5.50 ($5.50x120 months/120
 months)).....................................................
                                                               ---------
(3) Total ordinary income (sum of subparagraphs (1) and (2))..     25.00
(4) Long-term capital gain ($26 less $25).....................      1.00
 

    Example 5. (a) In 1958 B purchased for $7,500 a series E United 
States savings bond having a face value of $10,000. In 1965 when the 
stated redemption value of the series E bond is $9,760, B surrenders it 
to the United States in exchange solely for a $10,000 series H U.S. 
savings bond, after paying $240 additional consideration. B retains the 
series H bond and redeems it at maturity in 1975 for $10,000, after 
receiving all the semiannual interest payments thereon.
    (b) On the exchange of the series E bond for the series H bond, B 
realizes a gain of $2,260 ($9,760 less $7,500), none of which is 
recognized at such time by reason of section 1037(a).
    (c) The basis of the series H bond in B's hands, determined under 
section 1031(d), is $7,740 (the $7,500 basis of the series E bond, plus 
$240 additional consideration paid for the series H bond).
    (d) On the redemption of the series H bond, B realizes a gain of 
$2,260 ($10,000 less $7,740), all of which is recognized by reason of 
section 1002. This entire gain is treated as ordinary income by treating 
the redemption of the series H bond as though it were a redemption of 
the series E bond and by applying section 1037(b)(1)(A).
    (e) Under section 1037(b)(1)(B) the issue price of the series H 
bonds is $10,000 ($9,760 stated redemption price of the series E bond at 
time of exchange, plus $240 additional consideration paid). Thus, with 
respect to the series H bond, there is no original issue discount to 
which section 1232(a)(2)(B) might apply.
    Example 6. (a) The facts are the same as in example (5), except that 
in 1970 B submits the $10,000 series H bond to the United States for 
partial redemption in the amount of $3,000 and for reissuance of the 
remainder in $1,000 series H savings bonds registered in his name. On 
this transaction B receives $3,000 cash and seven $1,000 series H bonds, 
bearing the original issue date of the $10,000 bond which is partially 
redeemed. The $1,000, series H bonds are redeemed at maturity in 1975 
for $7,000.
    (b) On the partial redemption of the $10,000 series H bond in 1970 B 
realizes a gain of $678 ($3,000 less $2,322 [$7,740x$3,000/$10,000]), 
all of which is recognized at such time by reason of section 1002 and 
paragraph (c) of Sec. 1.454-1. This entire gain is treated as ordinary 
income, by treating the partial redemption of the series H bond as 
though it were a redemption of the relevant denominational portion of 
the series E bond and by applying section 1037(b)(1)(A).
    (c) On the redemption at maturity in 1975 of the seven $1,000 series 
H bonds B realizes a gain of $1,582 ($7,000 less $5,418 [$7,740x$7,000/
$10,000]), all of which is recognized at such time by reason of section 
1002 and paragraph (c) of Sec. 1.454-1. This entire gain is treated as 
ordinary income, determined in the manner described in paragraph (b) of 
this example.
    Example 7. (a) The facts are the same as in example (5), except that 
in 1970 B requests the United States to reissue the $10,000 series H 
bond by issuing two $5,000 series H bonds bearing the original issue 
date of such $10,000 bond. One of such $5,000 bonds is registered in B's 
name, and the other is registered in the name of C, who is B's son. Each 
$5,000 series H bond is redeemed at maturity in 1975 for $5,000.
    (b) On the issuing in 1970 of the $5,000 series H bond to C, B 
realizes a gain of $1,130 ($5,000 less $3,870 [$7,740x$5,000/$10,000]), 
all of which is recognized at such time by reason of section 1002 and 
paragraph (c) of Sec. 1.454-1. This entire gain is treated as ordinary 
income by treating the transaction as though it were a redemption of the 
relevant denominational portion of the series E bond and by applying 
section 1037(b)(1)(A).
    (c) On the redemption at maturity in 1975 of the $5,000 series H 
bond registered in his name B realizes a gain of $1,130 ($5,000 less 
$3,870 [$7,740x$5,000/$10,000]), all of which is recognized at such time 
by reason of section 1002 and paragraph (c) of Sec. 1.454-1. This 
entire gain is treated as ordinary income, determined in the manner 
described in paragraph (b) of this example.
    (d) On the redemption at maturity in 1975 of the $5,000 series H 
bond registered in his name C does not realize any gain, since the 
amount realized on redemption does not exceed his basis in the property, 
determined as provided in section 1015.

    (5) Exchanges involving nonrecognition of gain or loss on 
transferable obligations issued at not less than par--(i) In general. If 
a transferable obligation of the United States which was originally 
issued at not less than par is surrendered to the United States for 
another transferable obligation in an exchange to which the provisions 
of section 1037(a) (or so much of section 1031 (b) or (c) as relates to 
section 1037(a)) apply, the issue price of the obligation received from 
the United States in the exchange shall be considered for purposes of 
applying section 1232 to gain

[[Page 145]]

realized on the disposition or redemption of the obligation so received, 
to be the same as the issue price of the obligation which is surrendered 
to the United States in the exchange, increased by the amount of other 
consideration, if any, paid to the United States as part of the 
exchange. This subparagraph shall apply irrespective of whether there is 
gain or loss unrecognized on the exchange and irrespective of the fair 
market value, at the time of the exchange, of either the obligation 
surrendered to, or the obligation received from, the United States in 
the exchange.
    (ii) Illustrations. The application of this subparagraph may be 
illustrated by the following examples, in which it is assumed that the 
taxpayer uses the cash receipts and disbursements method of accounting 
and that the old obligations exchanged are capital assets transferred in 
an exchange in respect of which regulations are promulgated pursuant to 
section 1037(a):

    Example 1. (a) A purchases in the market for $85 a marketable U.S. 
bond which was originally issued at its par value of $100. Three months 
later, A surrenders this bond to the United States in exchange solely 
for another $100 marketable U.S. bond which then has a fair market value 
of $88. He holds the new bond for 5 months and then sells it on the 
market for $92.
    (b) On the exchange of the old bond for the new bond A realizes a 
gain of $3 ($88 less $85), none of which is recognized by reason of 
section 1037(a).
    (c) The basis of the new bond in A's hands, determined under section 
1031(d), is $85 (the same as that of the old bond). The issue price of 
the new bond for purposes of section 1232(a)(2)(B) is considered under 
section 1037(b)(2) to be $100 (the same issue price as that of the old 
bond).
    (d) On the sale of the new bond A realizes a gain of $7 ($92 less 
$85), all of which is recognized by reason of section 1002. Of this gain 
of $7, the entire amount is treated as long-term capital gain, 
determined as follows:

(1) Ordinary income under first sentence of
 section 1232(a)(2)(B), applicable to old bond:
  Stated redemption price of old bond at maturity.       $100
  Less: Issue price of old bond...................        100
                                                   -----------
  Original issue discount on old bond........................          0
(2) Ordinary income under first sentence of section
 1232(a)(2)(B), applying section 1037(b)(2) to sale of new
 bond:
  Stated redemption price of new bond at maturity.        100
  Less: Issue price of new bond under section             100
   1037(b)(2).....................................
                                                   -----------
  Original issue discount on new bond........................          0
(3) Long-term capital gain ($7 less sum of subparagraphs (1)          $7
 and (2))....................................................
 

    Example 2. The facts are the same as in example (1), except that A 
retains the new bond and redeems it at maturity for $100. On the 
redemption of the new bond, A realizes a gain of $15 ($100 less $85), 
all of which is recognized under section 1002. This entire gain is 
treated as long-term capital gain, determined in the same manner as 
provided in paragraph (d) of example (1).
    Example 3. (a) For $1,000 B subscribes to a marketable U.S. bond 
which has a face value of $1,000. Thereafter, he surrenders this bond to 
the United States in exchange solely for a 10-year marketable $1,000 
bond which at the time of exchange has a fair market value of $930, at 
which price such bond is initially offered to the public. Five years 
after the exchange, B sells the new bond for $950.
    (b) On the exchange of the old bond for the new bond, B sustains a 
loss of $70 ($1,000 less $930), none of which is recognized pursuant to 
section 1037(a).
    (c) The basis of the new bond in A's hands, determined under section 
1031(d), is $1,000 (the same basis as that of the old bond).
    (d) On the sale of the new bond B sustains a loss of $50 ($1,000 
less $950), all of which is recognized by reason of section 1002.
    Example 4. (a) The facts are the same as in example (3), except that 
5 years after the exchange B sells the new bond for $1,020.
    (b) On the exchange of the old bond for the new bond B sustains a 
loss of $70 ($1,000 less $930), none of which is recognized pursuant to 
section 1037(a).
    (c) The basis of the new bond in B's hands, determined under section 
1031(d), is $1,000 (the same basis as that of the old bond). The issue 
price of the new bond for purposes of section 1232(a)(2)(B) is 
considered under section 1037(b)(2) to be $1,000 (the same issue price 
as that of the old bond).
    (d) On the sale of the new bond B realizes a gain of $20 ($1,020 
less $1,000), all of which is recognized by reason of section 1002. This 
entire gain is treated as long-term capital gain, determined in the same 
manner as provided in paragraph (d) of example (1).

    (6) Other rules for applying section 1232. To the extent not 
specifically affected by the provisions of section 1037(b) and 
subparagraphs (1) through (5) of this paragraph, any gain realized on 
the disposition or redemption of any obligation received from the United

[[Page 146]]

States in an exchange to which section 1037(a) (or so much of section 
1031 (b) or (c) as relates to section 1037(a)) applies shall be treated 
in the manner provided by section 1232 if the facts and circumstances 
relating to the acquisition and disposition or redemption of such 
obligation require the application of section 1232.
    (c) Holding period of obligation received in the exchange. The 
holding period of an obligation received from the United States in an 
exchange to which the provisions of section 1037(a) (or so much of 
section 1031 (b) or (c) as relates to section 1037(a)) apply shall 
include the period for which the obligation which was surrendered to the 
United States in the exchange was held by the taxpayer, but only if the 
obligation so surrendered was at the time of the exchange a capital 
asset in the hands of the taxpayer. See section 1223 and the regulations 
thereunder.
    (d) Basis. The basis of an obligation received from the United 
States in an exchange to which the provisions of section 1037(a) (or so 
much of section 1031 (b) or (c) as relates to section 1037(a)) apply 
shall be determined as provided in section 1031(d) and the regulations 
thereunder.
    (e) Effective date. Section 1.1037 and this section shall apply only 
for taxable years ending after September 22, 1959.

[T.D. 6935, 32 FR 15824, Nov. 17, 1967, as amended by T.D. 7154, 36 FR 
24998, Dec. 28, 1971]



Sec. 1.1038-1  Reacquisitions of real property in satisfaction of 
indebtedness.

    (a) Scope of section 1038--(1) General rule on gain or loss. If a 
sale of real property gives rise to indebtedness to the seller which is 
secured by the real property which is sold, and the seller of such 
property reacquires such property in a taxable year beginning after 
September 2, 1964, in partial or full satisfaction of such indebtedness, 
then, except as provided in paragraphs (b) and (f) of this section, no 
gain or loss shall result to the seller from such reacquisition. The 
treatment so provided is mandatory; however, see Sec. 1.1038-3 for an 
election to apply the provisions of this section to certain taxable 
years beginning after December 31, 1957. It is immaterial, for purposes 
of applying this subparagraph, whether the seller realized a gain or 
sustained a loss on the sale of the real property, or whether it can be 
ascertained at the time of the sale whether gain or loss occurs as a 
result of the sale. It is also immaterial what method of accounting the 
seller used in reporting gain or loss from the sale of the real property 
or whether at the time of reacquisition such property has depreciated or 
appreciated in value since the time of the original sale. Moreover, the 
character of the gain realized on the original sale of the property is 
immaterial for purposes of applying this subparagraph. The provisions of 
this section shall apply, except as provided in Sec. 1.1038-2, to the 
reacquisition of real property which was used by the seller as his 
principal residence and with respect to the sale of which an election 
under section 121 is in effect or with respect to the sale of which gain 
was not recognized under section 1034.
    (2) Sales giving rise to indebtedness--(i) Sale defined. For 
purposes of this section, it is not necessary for title to the property 
to have passed to the purchaser in order to have a sale. Ordinarily, a 
sale of property has occurred in a transaction in which title to the 
property has not passed to the purchaser, if the purchaser has a 
contractual right to retain possession of the property so long as he 
performs his obligations under the contract and to obtain title to the 
property upon the completion of the contract. However, a sale may have 
occurred even if the purchaser does not have the right to possession 
until he partially or fully satisfies the terms of the contract. For 
example, if S contracts to sell real property to P, and if S promises to 
convey title to P upon the completion of all of the payments due under 
the contract and to allow P to obtain possession of the property after 
10 percent of the purchase price has been paid, there has been a sale on 
the date of the contract for purposes of this section. This section 
shall not apply to a disposition of real property which constituted an 
exchange of property or was treated as a sale under section 121(d)(4) or 
section 1034(i); nor shall it apply to a sale of

[[Page 147]]

stock in a cooperative housing corporation described in section 
121(d)(3) or section 1034(f).
    (ii) Secured indebtedness defined. An indebtedness to the seller is 
secured by the real property for purposes of this section whenever the 
seller has the right to take title or possession of the property or both 
if there is a default with respect to such indebtedness. A sale of real 
property may give rise to an indebtedness to the seller although the 
seller is limited in his recourse to the property for payment of the 
indebtedness in the case of a default.
    (3) Reacquisitions in partial or full satisfaction of indebtedness--
(i) Purpose of reacquisition. This section applies only where the seller 
reacquires the real property in partial or full satisfaction of the 
indebtedness to him that arose from the sale of the real property and 
was secured by the property. That is, the reacquisition must be in 
furtherance of the seller's security rights in the property with respect 
to indebtedness to him that arose at the time of the sale. Accordingly, 
if the seller in reacquiring the real property does not pay 
consideration in addition to discharging the purchaser's indebtedness to 
him that arose from the sale and was secured by such property, this 
section shall apply to the reacquisition even though the purchaser has 
not defaulted in his obligations under the contract or such a default is 
not imminent. If in addition to discharging the purchaser's indebtedness 
to him that arose from the sale the seller pays consideration in 
reacquiring the real property, this section shall generally apply to the 
reacquisition if the reacquisition and the payment of additional 
consideration is provided for in the original contract for the sale of 
the property. This section generally shall apply to a reacquisition of 
real property if the seller reacquires the property either when the 
purchaser has defaulted in his obligations under the contract or when 
such a default is imminent. This section generally shall not apply to a 
reacquisition of real property where the seller pays consideration in 
addition to discharging the purchaser's indebtedness to him that arose 
from the sale if the reacquisition and payment of additional 
consideration was not provided for in the original contract for the sale 
of the property and if the purchaser has not defaulted in his 
obligations under the contract or such a default is not imminent. Thus, 
for example, if the purchaser is in arrears on the payment of interest 
or principal or has in any other way defaulted on his contract for the 
purchase of the property, or if the facts of the case indicate that the 
purchaser is unable satisfactorily to perform his obligations under the 
contract, and the seller reacquires the property from the purchaser in a 
transaction in which the seller pays consideration in addition to 
discharging the purchaser's indebtedness to him that arose from the sale 
and was secured by the property, this section shall apply to the 
reacquisition. Additional consideration paid by the seller includes 
money and other property paid or transferred by the seller. Also, the 
reacquisition by the seller of real property subject to an indebtedness 
(or the assumption, upon the reacquisition, of indebtedness) which arose 
subsequent to the original sale shall be considered as a payment by the 
seller of additional consideration. However, the reacquisition by the 
seller of real property subject to an indebtedness (or the assumption, 
upon the reacquisition, of an indebtedness) which arose prior to or 
arose out of the original sale shall not be considered as a payment by 
the seller of additional consideration.
    (ii) Manner of reacquisition. For purposes of applying section 1038 
and this section there must be a reacquisition by the seller of the real 
property itself, but the manner in which the seller so reduces the 
property to ownership or possession, as the case may be, shall generally 
be immaterial. Thus, the seller may reduce the real property to 
ownership or possession or both, as the case may require, by agreement 
or by process of law. The reduction of the real property to ownership or 
possession by agreement includes, where valid under local law, such 
methods as voluntary conveyance from the purchaser and abandonment to 
the seller. The reduction of the real property to ownership or 
possession by process of law includes foreclosure proceedings in which a 
competitive bid is entered, such as foreclosure by judicial sale or

[[Page 148]]

by power of sale contained in the loan agreement without recourse to the 
courts, as well as those types of foreclosure proceedings in which a 
competitive bid is not entered, such as strict foreclosure and 
foreclosure by entry and possession, by writ of entry, or by publication 
or notice.
    (4) Persons from whom real property may be reacquired. The real 
property reacquired in satisfaction of the indebtedness need not be 
reacquired from the purchaser but may be reacquired from the purchaser's 
transferee or assignee, or from a trustee holding title to such property 
pending the purchaser's satisfaction of the terms of the contract, so 
long as the indebtedness that is partially or completely satisfied in 
the reacquisition of such property arose in the original sale of the 
property and was secured by the property so reacquired. In such a case, 
a reference in this section to the purchaser shall, where appropriate, 
include the purchaser's transferee or assignee. Thus, for example, this 
section will apply if the seller reacquires the property from a 
purchaser from the original purchaser and either the property is subject 
to, or the subsequent purchaser assumes, the liability to the seller on 
the indebtedness.
    (5) Reacquisitions not included. This section shall not apply to 
reacquisitions of real property by mutual savings banks, domestic 
building and loan associations, and cooperative banks, described in 
section 593(a). However, for rules respecting the reacquisition of real 
property by such organizations, see Sec. 1.595-1.
    (b) Amount of gain resulting from a reacquisition--(1) Determination 
of amount--(i) In general. As a result of a reacquisition to which 
paragraph (a) of this section applies gain shall be derived by the 
seller to the extent that the amount of money and the fair market value 
of other property (other than obligations of the purchaser arising with 
respect to the sale) which are received by the seller, prior to such 
reacquisition, with respect to the sale of the property exceed the 
amount of the gain derived by the seller on the sale of such property 
which is returned as income for periods prior to the reacquisition. 
However, the amount of gain so determined shall in no case exceed the 
amount determined under paragraph (c) of this section with respect to 
such reacquisition.
    (ii) Amount of gain returned as income for prior periods. For 
purposes of this subparagraph and paragraph (c)(1) of this section, the 
amount of gain on the sale of the property which is returned as income 
for periods prior to the reacquisition of the real property does not 
include any amount of income determined under paragraph (f)(2) of this 
section which is considered to be received at the time of the 
reacquisition of the property. However, the amount of gain on the sale 
of the property which is returned as income for such periods does 
include gain on the sale resulting from payments received in the taxable 
year in which the date of reacquisition occurs if such payments are 
received prior to such reacquisition. The application of this 
subdivision may be illustrated by the following example:

    Example: In 1965 S, who uses the calendar year as the taxable year, 
sells to P for $10,000 real property which has an adjusted basis of 
$3,000. S properly elects under section 453 to report the income from 
the sale on the installment method. In 1965 and 1966, S receives a total 
of $4,000 on the contract. On May 15, 1967, S receives $1,000 on the 
contract. Because of P's default, S reacquires the property on August 
31, 1967. The gain on the sale which is returned as income for periods 
prior to the reacquisition is $3,500 ($5,000x$7,000/$10,000).

    (2) Amount of money and other property received with respect to the 
sale--(i) In general. Amounts of money and other property received by 
the seller with respect to the sale of the property include payments 
made by the purchaser for the seller's benefit, as well as payments made 
and other property transferred directly to the seller. If the purchaser 
of the real property makes payments on a mortgage or other indebtedness 
to which the property is subject at the time of the sale of such 
property to him, or on which the seller was personally liable at the 
time of such sale, such payments are considered amounts received by the 
seller with respect to the sale. However, if after the sale the 
purchaser borrows money and uses the property as security for the loan, 
payments by the purchaser in satisfaction

[[Page 149]]

of the indebtedness are not considered as amounts received by the seller 
with respect to the sale, although the seller does in fact receive some 
indirect benefit when the purchaser makes such payments.
    (ii) Payments by purchaser at time of reacquisition. All payments 
made by the purchaser at the time of the reacquisition of the real 
property that are with respect to the original sale of the property 
shall be treated, for purposes of subparagraph (1) of this paragraph, by 
the seller as having been received prior to the reacquisition with 
respect to such sale. For example, if the purchaser, at the time of the 
reacquisition by the seller, pays money or other property to the seller 
in partial or complete satisfaction of the purchaser's indebtedness on 
the original sale, the seller shall treat such amounts as having been 
received prior to the reacquisition with respect to the sale.
    (iii) Interest received. For purposes of this subparagraph and 
paragraph (c)(1) of this section any amounts received by the seller as 
interest, stated or unstated, are excluded from the computation of gain 
on the sale of the property and are not considered amounts of money or 
other property received with respect to the sale.
    (iv) Amounts received on sale of purchaser's indebtedness. Money or 
other property received by the seller on the sale of the purchaser's 
indebtedness that arose at the time of the sale of the real property are 
amounts received by the seller with respect to the sale of such real 
property, except that the amounts so received from the sale of such 
indebtedness shall be reduced by the amount of money and the fair market 
value of other property paid or transferred by the seller, before the 
reacquisition of the real property, to reacquire such indebtedness. For 
example, if S sells real property to P for $25,000, and under the 
contract receives $10,000 down and a note from P for $15,000, S would 
receive $22,000 with respect to the sale if he were to discount the note 
for $12,000. If before the reacquisition of the real property S were to 
reacquire the discounted note for $8,000, he would receive $14,000 with 
respect to the sale.
    (3) Obligations of the purchaser arising with respect to the sale. 
The term obligations of the purchaser arising with respect to the sale 
of the real property includes, for purposes of subparagraph (1) of this 
paragraph, only that indebtedness on which the purchaser is liable to 
the seller and which arises out of the sale of such property. Thus, the 
term does not include any indebtedness in respect of the property that 
the seller owes to a third person which the purchaser assumes, or to 
which the property is subject, at the time of the sale of the property 
to the purchaser. Nor does the term include any indebtedness on which 
the purchaser is liable to the seller if such indebtedness arises 
subsequent to the sale of such property.
    (c) Limitation upon amount of gain--(1) In general. Except as 
provided by subparagraph (2) of this paragraph, the amount of gain on a 
reacquisition of real property, as determined under paragraph (b) of 
this section, shall in no case exceed--
    (i) The amount by which the price at which the real property was 
sold exceeded its adjusted basis at the time of the sale, as determined 
under Sec. 1.1011-1, reduced by
    (ii) The amount of gain on the sale of such real property which is 
returned as income for periods prior to the reacquisition, and by
    (iii) The amount of money and the fair market value of other 
property (other than obligations of the purchaser to the seller which 
are secured by the real property) paid or transferred by the seller in 
connection with the reacquisition of such real property.
    (2) Cases where limitation does not apply. The limitation provided 
by subparagraph (1) of this paragraph shall not apply in a case where 
the selling price of property is indefinite in amount and cannot be 
ascertained at the time of the reacquisition of such property, as, for 
example, where the selling price is stated as a percentage of the 
profits to be realized from the development of the property which is 
sold. Moreover, the limitation so provided shall not apply to a 
reacquisition of real property occurring in a taxable year beginning 
before September 3, 1964, to which the provisions of this

[[Page 150]]

section are applied pursuant to an election under Sec. 1.1038-3.
    (3) Determination of sales price. The price at which the real 
property was sold shall be, for purposes of subparagraph (1) of this 
paragraph, the gross sales price reduced by the selling commissions, 
legal fees, and other expenses incident to the sale of such property 
which are properly taken into account in determining gain or loss on the 
sale. For example, the amount of selling commissions paid by a nondealer 
will be deducted from the gross sales price in determining the price at 
which the real property was sold; on the other hand, selling commissions 
paid by a real estate dealer will be deducted as a business expense. 
Examples of other expenses incident to the sale of the property are 
expenses for appraisal fees, advertising expense, cost of preparing 
maps, recording fees, and documentary stamp taxes. Payments on 
indebtedness to the seller which are for interest, stated or unstated, 
are not included in determining the price at which the property was 
sold. See paragraph (b)(2)(iii) of this section.
    (4) Determination of amounts paid or transferred in connection with 
a reacquisition--(i) In general. Amounts of money or property paid or 
transferred by the seller of the real property in connection with the 
reacquisition of such property include payments of money, or transfers 
of property, to persons from whom the real property is reacquired as 
well as to other persons. Payments or transfers in connection with the 
reacquisition of the property do not include money or property paid or 
transferred by the seller to reacquire obligations of the purchaser to 
the seller which were received by the seller with respect to the sale of 
the property or which arose subsequent to the sale. Amounts of money or 
property paid or transferred by the seller in connection with the 
reacquisition of the property include payments or transfers for such 
items as court costs and fees for services of an attorney, master, 
trustee, or auctioneer, or for publication, acquiring title, clearing 
liens, or filing and recording.
    (ii) Assumption of indebtedness. The assumption by the seller, upon 
reacquisition of the real property, of any indebtedness to another 
person which at such time is secured by such property will be considered 
a payment of money by the seller in connection with the reacquisition. 
Also, if at the time of reacquisition such property is subject to an 
indebtedness which is not an indebtedness of the purchaser to the 
seller, the seller shall be considered to have paid money, in an amount 
equal to such indebtedness, in connection with the reacquisition of the 
property. Thus, for example, if at the time of the sale the purchaser 
executes in connection with the sale a first mortgage to a bank and a 
second mortgage to the seller and at the time of reacquisition the 
seller reacquires the property subject to the first mortgage which he 
does not assume, the seller will be considered to have paid money, in an 
amount equal to the unpaid amount of the first mortgage, in connection 
with the reacquisition.
    (d) Character of gain resulting from a reacquisition. Paragraphs (b) 
and (c) of this section set forth the extent to which gain shall be 
derived from a reacquisition to which paragraph (a) of this section 
applies, but the rule provided by section 1038 and this section do not 
affect the character of the gain so derived. The character of the gain 
resulting from such a reacquisition is determined on the basis of 
whether the gain on the original sale was returned on the installment 
method or, if not, on the basis of whether title to the real property 
was transferred to the purchaser; and, if title was transferred to the 
purchaser in a deferred-payment sale, whether the reconveyance of the 
property to the seller was voluntary. For example, if the gain on the 
original sale of the reacquired property was returned on the installment 
method, the character of the gain on reacquisition by the seller shall 
be determined in accordance with the rules provided in paragraph (a) of 
Sec. 1.453-9. If the original sale was not on the installment method 
but was a deferred-payment sale, as described in Sec. 1.453-6(a), where 
title to the real property was transferred to the purchaser and the 
seller accepts a voluntary reconveyance of the property, the gain on the 
reacquisition shall be

[[Page 151]]

ordinary income; however, if the obligations satisfied are securities 
(as defined in section 165(g)(2)(C)), any gain resulting from the 
reacquisition is capital gain subject to the provisions of subchapter P 
of chapter 1 of the Code.
    (e) Recognition of gain. The entire amount of the gain determined 
under paragraphs (b) and (c) of this section with respect to a 
reacquisition to which paragraph (a) of this section applies shall be 
recognized notwithstanding any other provisions of subtitle A (relating 
to income taxes) of the Code.
    (f) Special rules applicable to worthless indebtedness--(1) 
Worthlessness resulting from reacquisition. No debt of the purchaser to 
the seller which was secured by the reacquired real property shall be 
considered as becoming worthless or partially worthless as a result of a 
reacquisition of such real property to which paragraph (a) of this 
section applies. Accordingly, no deduction for a bad debt and no charge 
against a reserve for bad debts shall be allowed, as a result of the 
reacquisition, in order to reflect the noncollectibility of any 
indebtedness of the purchaser to the seller which at the time of 
reacquisition was secured by such real property.
    (2) Indebtedness treated as worthless prior to reacquisition--(i) 
Prior taxable years. If for any taxable year ending before the taxable 
year in which occurs a reacquisition of real property to which paragraph 
(a) of this section applies the seller of such property has treated any 
indebtedness of the purchaser which is secured by such property as 
having become worthless or partially worthless by taking a bad debt 
deduction under section 166(a), he shall be considered as receiving, at 
the time of such reacquisition, income in an amount equal to the amount 
of such indebtedness previously treated by him as having become 
worthless. The amount so treated as income received shall be treated as 
a recovery of a bad debt previously deducted as worthless or partially 
worthless. Accordingly, the amount of such income shall be excluded from 
gross income, as provided in Sec. 1.111-1, to the extent of the 
recovery exclusion with respect to such item. For purposes of Sec. 
1.111-1, if the indebtedness was treated as partially worthless in a 
prior taxable year, the amount treated under this subparagraph as a 
recovery shall be considered to be with respect to the part of the 
indebtedness that was previously deducted as worthless. The seller shall 
not be considered to have treated an indebtedness as worthless in any 
taxable year for which he took the standard deduction under section 141 
or paid the tax imposed by section 3 if a deduction in respect of such 
indebtedness was not allowed in determining adjusted gross income for 
such year under section 62.
    (ii) Current taxable year. No deduction shall be allowed under 
section 166 (a), for the taxable year in which occurs a reacquisition of 
real property to which paragraph (a) of this section applies, in respect 
of any indebtedness of the purchaser secured by such property which has 
been treated by the seller as having become worthless or partially 
worthless in such taxable year but prior to the date of such 
reacquisition.
    (3) Basis adjustment. The basis of any indebtedness described in 
subparagraph (2)(i) of this paragraph shall be increased (as of the date 
of the reacquisition) by an amount equal to the amount which, under such 
subparagraph of this paragraph, is treated as income received by the 
seller with respect to such indebtedness, but only to the extent the 
amount so treated as received is not excluded from gross income by 
reason of the application of Sec. 1.111-1.
    (g) Rules for determining gain or loss on disposition of reacquired 
property--(1) Basis of reacquired real property. The basis of any real 
property acquired in a reacquisition to which paragraph (a) of this 
section applies shall be the sum of the following amounts, determined as 
of the date of such reacquisition:
    (i) The amount of the adjusted basis, determined under sections 453 
and 1011, and the regulations thereunder, of all indebtedness of the 
purchaser to the seller which at the time of reacquisition was secured 
by such property, including any increase by reason of paragraph (f)(3) 
of this section,
    (ii) The amount of gain determined under paragraphs (b) and (c) of 
this section with respect to such reacquisition, and

[[Page 152]]

    (iii) The amount of money and the fair market value of other 
property (other than obligations of the purchaser to the seller which 
are secured by the real property) paid or transferred by the seller in 
connection with the reacquisition of such real property, determined as 
provided in paragraph (c) of this section even though such paragraph 
does not apply to the reacquisition.
    (2) Basis of undischarged indebtedness. The basis of any 
indebtedness of the purchaser to the seller which was secured by the 
reacquired real property described in subparagraph (1) of this 
paragraph, to the extent that such indebtedness is not discharged upon 
the reacquisition of such property, shall be zero. Therefore, to the 
extent not discharged upon the reacquisition of the real property, 
indebtedness on the original obligation of the purchaser, a substituted 
obligation of the purchaser, a deficiency judgment entered in a court of 
law into which the purchaser's obligation has merged, or any other 
obligation of the purchaser to the seller, shall be zero if such 
indebtedness constitutes an indebtedness to the seller which was secured 
by such property.
    (3) Holding period of reacquired property. Since the reacquisition 
described in subparagraph (1) of this paragraph is in a sense considered 
a nullification of the original sale of the real property, for purposes 
of determining gain or loss on a disposition of such property after its 
reacquisition the period for which the seller has held the real property 
at the time of such disposition shall include the period for which such 
property is held by him prior to the original sale. However, the holding 
period shall not include the period of time commencing with the date 
following the date on which the property is originally sold to the 
purchaser and ending with the date on which the property is reacquired 
by the seller. The period for which the property was held by the seller 
prior to the original sale shall be determined as provided in Sec. 
1.1223-1. For example, if under paragraph (a) of Sec. 1.1223-1 real 
property, which was acquired as the result of an involuntary conversion, 
has been held for five months on January 1, 1965, the date of its sale, 
and such property is reacquired on July 2, 1965, and resold on July 3, 
1965, the seller will be considered to have held such property for five 
months and one day for purposes of this subparagraph.
    (h) Illustrations. The application of this section may be 
illustrated by the following examples in which it is assumed that the 
reacquisition is in satisfaction of secured indebtedness arising out of 
the sale of the real property:

    Example 1. (a) S purchases real property for $20 and sells it to P 
for $100, the property not being mortgaged at the time of sale. Under 
the contract P pays $10 down and executes a note for $90, with stated 
interest at 6 percent, to be paid in nine annual installments. S 
properly elects to report the gain on the installment method. After the 
second $10 annual payment P defaults and S accepts a voluntary 
reconveyance of the property in complete satisfaction of the 
indebtedness. S pays $5 in connection with the reacquisition of the 
property. The fair market value of the property at the time of the 
reacquisition is $110.
    (b) The gain derived by S on the reacquisition of the property is 
$6, determined as follows:

Gain before application of limitation:
  Money with respect to the sale received by S prior to the          $30
   reacquisition.............................................
  Less: Gain returned by S as income for periods prior to the         24
   reacquisition ($30x[ ($100-$20)/$100])....................
                                                   ------------
  Gain before application of limitation......................          6
                                                   ============
Limitation on amount of gain:
  Sales price of real property...............................        100
  Less:
    Adjusted basis of the property at the time of         $20
     sale.........................................
    Gain returned by S as income for periods prior         24
     to the reacquisition.........................
    Amount of money paid by S in connection with            5         49
     the reacquisition............................
                                                   ---------------------
  Limitation on amount of gain...............................         51
                                                   ============
Gain resulting from the reacquisition of the property........          6
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $25, determined as follows:

Adjusted basis of P's indebtedness to S ($70-[$70x$80/$100]).        $14
Gain resulting from the reacquisition of the property........          6
Amount of money paid by S in connection with the                       5
 reacquisition...............................................
                                                              ----------
    Basis of reacquired property.............................         25
 


[[Page 153]]

    Example 2. (a) The facts are the same as in example (1) except that 
S purchased the property for $80.
    (b) The gain derived by S on the reacquisition of the property is 
$9, determined as follows:

Gain before application of limitation:
  Money with respect to the sale received by S prior to the          $30
   reacquisition.............................................
  Less: Gain returned by S as income for periods prior to the         $6
   reacquisition ($30x[($100-$80)/$100]).....................
                                                   ------------
  Gain before application of limitation......................         24
                                                   ============
Limitation on amount of gain:
  Sales price of real property...............................        100
  Less:
    Adjusted basis of the property at the time of         $80
     sale.........................................
    Gain returned by S as income for periods prior          6
     to the reacquisition.........................
    Amount of money paid by S in connection with            5         91
     the reacquisition............................
                                                   ---------------------
  Limitation on amount of gain...............................          9
                                                   ============
  Gain resulting from the reacquisition of the property......          9
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $70, determined as follows:

Adjusted basis of P's indebtedness to S ($70-[$70x$20/$100]).        $56
Gain resulting from the reacquisition of the property........          9
Amount of money paid by S in connection with the                       5
 reacquisition...............................................
                                                              ----------
    Basis of reacquired property.............................         70
                                                              ==========
 

    Example 3. (a) S purchases real property for $70 and sells it to P 
for $100, the property not being mortgaged at the time of sale. Under 
the contract P pays $10 down and executes a note for $90, with stated 
interest at 6 percent, to be paid in nine annual installments. S 
properly elects to report the gain on the installment method. After the 
first $10 annual payment P defaults and S accepts a voluntary 
reconveyance of the property in complete satisfaction of the 
indebtedness. S pays $5 in connection with the reacquisition of the 
property. The fair market value of the property at the time of the 
reacquisition is $50.
    (b) The gain derived by S on the reacquisition of the property is 
$14, determined as follows:

Gain before application of limitation:
  Money with respect to the sale received by S prior to the          $20
   reacquisition.............................................
  Less: Gain returned by S as income for periods prior to the          6
   reacquisition ($20x[($100-$70)/$100]).....................
                                                   ------------
  Gain before application of limitation......................         14
                                                   ============
Limitation on amount of gain:
  Sales price of real property...............................        100
  Less:
    Adjusted basis of the property at time of sale        $70
    Gain returned by S as income for periods prior          6
     to the reacquisition.........................
    Amount paid by S in connection with the                 5         81
     reacquisition................................
                                                   ---------------------
  Limitation on amount of gain...............................         19
                                                   ============
  Gain resulting from the reacquisition of the property......         14
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $75, determined as follows:

Adjusted basis of P's indebtedness to S ($80-[$80x$30/$100]).        $56
Gain resulting from the reacquisition of the property........         14
Amount of money paid by S in connection with the                       5
 reacquisition...............................................
                                                              ----------
    Basis of reacquired property.............................         75
 

    Example 4. (a) S purchases real property for $20 and sells it to P 
for $100, the property not being mortgaged at the time of sale. Under 
the contract P pays $10 down and executes a note for $90, with stated 
interest at 6 percent, to be paid in nine annual installments. S 
properly elects to report gain on the installment method. After the 
second $10 annual payment P defaults and S accepts from P in complete 
satisfaction of the indebtedness a voluntary reconveyance of the 
property plus cash in the amount of $20. S does not pay any amount in 
connection with the reacquisition of the property. The fair market value 
of the property at the time of the reacquisition is $30.
    (b) The gain derived by S on the reacquisition of the property is 
$10, determined as follows:

Gain before application of the limitation:
  Money with respect to the sale received by S prior to the          $50
   reacquisition ($30+$20)...................................
  Less: Gain returned by S as income for periods prior to the         40
   reacquisition ($50x[($100-$20)/$100]).....................
                                                   ------------
  Gain before application of limitation......................         10
                                                   ============
Limitation on amount of gain:
  Sales price of real property...............................        100
  Less:
    Adjusted basis of the property at time of sale        $20
    Gain returned by S as income for periods prior         40         60
     to the reacquisition.........................
                                                   ---------------------
  Limitation on amount of gain...............................         40
                                                   ============
Gain resulting from the reacquisition of the property........         10
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $20, determined as follows:

[[Page 154]]



Adjusted basis of P's indebtedness to S ($50-[$50x$80/$100]).        $10
Gain resulting from the reacquisition of the property........         10
                                                              ----------
    Basis of reacquired property.............................         20
 

    Example 5. (a) S purchases real property for $80 and sells it to P 
for $100, the property not being mortgaged at the time of sale. Under 
the contract P pays $10 down and executes a note for $90, with stated 
interest at 6 percent, to be paid in nine annual installments. At the 
time of sale P's note has a fair market value of $90. S does not elect 
to report the gain on the installment method but treats the transaction 
as a deferred-payment sale. After the third $10 annual payment P 
defaults and S forecloses. Under the foreclosure sale S bids in the 
property at $70, cancels P's obligation of $60, and pays $10 to P. There 
are no other amounts paid by S in connection with the reacquisition of 
the property. The fair market value of the property at the time of the 
reacquisition is $70.
    (b) The gain derived by S on the reacquisition of the property is 
$0, determined as follows:

Gain before application of the limitation:
  Money with respect to the sale received by S prior to the          $40
   reacquisition.............................................
  Less: Gain returned by S as income for periods prior to the         20
   reacquisition ([$10+$90]-$80).............................
                                                   ------------
  Gain before application of limitation......................         20
                                                   ============
Limitation on amount of gain:
  Sales price of real property....................  .........        100
  Less:
    Adjusted basis of the property at the time of         $80
     sale.........................................
    Gain returned by S as income for periods prior         20
     to the reacquisition.........................
    Amount of money paid by S in connection with           10        110
     the reacquisition............................
                                                   ---------------------
  Limitation on amount of gain (not to be less than zero)....          0
                                                   ============
Gain resulting from the reacquisition of the property........          0
 

    (c) The basis of the reacquired real property at the date of the 
reacquisition is $70, determined as follows:

Adjusted basis of P's indebtedness to S (face value at time          $60
 of reacquisition)...........................................
Gain resulting from the reacquisition of the property........          0
Amount of money paid by S in connection with the                      10
 reacquisition...............................................
                                                              ----------
    Basis of reacquired property.............................         70
 


[T.D. 6916, 32 FR 5925, Apr. 13, 1967; 32 FR 6971, May 6, 1967]



Sec. 1.1038-2  Reacquisition and resale of property used as a principal 
residence.

    (a) Application of special rules--(1) In general. If paragraph (a) 
of Sec. 1.1038-1 applies to the reacquisition of real property which 
was used by the seller as his principal residence and with respect to 
the sale of which an election under section 121 is in effect or with 
respect to the sale of which gain was not recognized under section 1034, 
the provisions of Sec. 1.1038-1 (other than paragraph (a) thereof) 
shall not, and this section shall, apply to the reacquisition of such 
property if the property is resold by the seller within one year after 
the date of the reacquisition. For purposes of this section an election 
under section 121 shall be considered to be in effect with respect to 
the sale of the property if, at the close of the last day for making 
such an election under section 121(c) with respect to such sale, an 
election under section 121 has been made and not revoked. Thus, a 
taxpayer who properly elects, subsequent to the reacquisition, to have 
section 121 apply to a sale of his residence may be eligible for the 
treatment provided in this section. The treatment provided by this 
section is mandatory; however, see Sec. 1.1038-3 for an election to 
apply the provisions of this section to certain taxable years beginning 
after December 31, 1957.
    (2) Sale and resale treated as one transaction. In the case of a 
reacquisition to which this section applies, the resale of the 
reacquired property shall be treated, for purposes of applying sections 
121 and 1034, as part of the transaction constituting the original sale 
of such property. In effect, the reacquisition is generally disregarded 
pursuant to this section and, for purposes of applying sections 121 and 
1034, the resale of the property is considered to constitute a sale of 
such property occurring on the date of the original sale of such 
property.
    (b) Transactions not included. (1) If with respect to the original 
sale of the property there was no nonrecognition of gain under section 
1034 and an election under section 121 is not in effect, the provisions 
of Sec. 1.1038-1, and not this section, shall apply to the 
reacquisition. Thus, for example, if in the case

[[Page 155]]

of a taxpayer not entitled to the benefit of section 121 there is no 
gain on the original sale of the property, the provisions of Sec. 
1.1038-1, and not this section, shall apply even though a 
redetermination of gain under this section would result in the 
nonrecognition of gain on the sale under section 1034. Also, if in the 
case of such a taxpayer there was gain on the original sale of the 
property but after the application of section 1034 all of such gain was 
recognized, the provisions of Sec. 1.1038-1, and not this section, 
shall apply to the reacquisition.
    (2) If the original sale of the property was not eligible for the 
treatment provided by section 121 and section 1034, the provisions of 
Sec. 1.1038-1, and not this section, shall apply to the reacquisition 
of the property even though the resale of such property is eligible for 
the treatment provided by either or both of sections 121 and 1034.
    (c) Redetermination of gain required--(1) Sale of old residence. The 
amount of gain excluded under section 121 on the sale of the property 
and the amount of gain recognized under section 1034 on the sale of the 
property shall be redetermined under this section by recomputing the 
adjusted sales price and the adjusted basis of the property, and any 
adjustments resulting from the redetermination of the gain on the sale 
of such property shall be reflected in the income of the seller for his 
taxable year in which the resale of the property occurs.
    (2) Sale of new residence. If gain was not recognized under section 
1034 on the original sale of the property, the adjusted basis of the new 
residence shall be redetermined under this section. If the new residence 
has been sold, the amount of gain returned on such sale of the new 
residence which is affected by the redetermination of the recognized 
gain on the sale of the old residence shall be redetermined under this 
section, and any adjustments resulting from the redetermination of the 
gain on the sale of the new residence shall be reflected in income of 
the seller for his taxable year in which the resale of the old residence 
occurs.
    (d) Redetermination of adjusted sales price. For purposes of 
applying sections 121 and 1034 pursuant to this section, the adjusted 
sales price of the reacquired real property shall be redetermined by 
taking into account both the sale and the resale of the property and 
shall be--
    (1) The amount realized, which for purposes of section 1001 shall 
be--
    (i) The amount realized on the resale of the property, as determined 
under paragraph (b)(4) of Sec. 1.1034-1, plus
    (ii) The amount realized on the original sale of the property, 
determined as provided in paragraph (b)(4) of Sec. 1.1034-1, less that 
portion of any obligations of the purchaser arising with respect to such 
sale which at the time of reacquisition is secured by such property and 
is unpaid, less
    (iii) The amount of money and the fair market value of other 
property (other than obligations of the purchaser to the seller secured 
by the real property) paid or transferred by the seller in connection 
with the reacquisition of such real property,

reduced by

    (2) The total of the fixing-up expenses (as defined in par. (b)(6) 
of Sec. 1.1034-1) incurred for work performed on such real property to 
assist in both its original sale and its resale.

For purposes of applying paragraph (b)(6) of Sec. 1.1034-1, there shall 
be two 90-day periods, the first ending on the day on which the contract 
to sell is entered into in connection with the original sale of the 
property, and the second ending on the day on which the contract to sell 
is entered into in connection with the resale of the property. There 
shall also be two 30-day periods for such purposes, the first ending on 
the 30th day after the date of the original sale, and the second ending 
on the 30th day after the date of the resale. For determination of the 
obligations of the purchaser arising with respect to the original sale 
of the property, see paragraph (b)(3) of Sec. 1.1038-1. For 
determination of amounts paid or transferred by the seller in connection 
with the reacquisition of the property, see paragraph (c)(4) of Sec. 
1.1038-1.
    (e) Determination of adjusted basis at time of resale. For purposes 
of applying sections 121 and 1034 pursuant to this section, the adjusted 
basis of the reacquired real property at the time of its resale shall 
be--

[[Page 156]]

    (1) The sum of--
    (i) The adjusted basis of such property at the time of the original 
sale, with proper adjustment under section 1016(a) in respect of such 
property for the period occurring after the reacquisition of such 
property, and
    (ii) Any indebtedness of the purchaser to the seller which arose 
subsequent to the original sale of such property and which at the time 
of reacquisition was secured by such property,

reduced by

    (2) Any indebtedness of the purchaser to the seller which at the 
time of reacquisition was secured by the reacquired real property and 
which, for any taxable year ending before the taxable year in which 
occurs the reacquisition to the seller which was secured by the seller 
as having become worthless or partially worthless by taking a bad debt 
deduction under section 166(a).

The reduction under the preceding sentence by reason of having treated 
indebtedness as worthless or partially worthless shall not exceed the 
amount by which there would be an increase in the basis of such 
indebtedness under paragraph (f)(3) of Sec. 1.1038-1 if section 1038(d) 
had been applicable to the reacquisition of such property.
    (f) Treatment of indebtedness secured by the property--(1) Year of 
reacquisition. No debt of the purchaser to the seller which was secured 
by the reacquired real property shall be considered as becoming 
worthless or partially worthless as a result of a reacquisition of such 
real property to which this section applies. Accordingly, no deduction 
for a bad debt shall be allowed, as a result of the reacquisition, in 
order to reflect the noncollectibility of any indebtedness of the 
purchaser to the seller which at the time of reacquisition was secured 
by such real property. In addition, no deduction shall be allowed, for 
the taxable year in which occurs a reacquisition of real property to 
which this section applies, in respect of any indebtedness of the 
purchaser secured by such property which has been treated by the seller 
as having become worthless or partially worthless in such taxable year 
but prior to the date of such reacquisition.
    (2) Prior taxable years. For reduction of the basis of the real 
property for indebtedness treated as worthless or partially worthless 
for taxable years ending before the taxable year in which occurs the 
reacquisition, see paragraph (e) of this section.
    (3) Basis of indebtedness. The basis of any indebtedness of the 
purchaser to the seller which was secured by the reacquired real 
property, to the extent that such indebtedness is not discharged upon 
the reacquisition of such property, shall be zero.
    (g) Date of sale. Since the resale of the property, by being treated 
as part of the transaction constituting the original sale of the 
property, is treated as having occurred on the date of the original 
sale, in determining whether any of the time requirements of section 121 
or section 1034 are satisfied for purposes of this section the date of 
the original sale is used, except to the extent provided in paragraph 
(d)(2) of this section.
    (h) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. (a) On June 30, 1964, S, a single individual over 65 
years of age, sells his principal residence to P for $25,000, the 
property not being mortgaged at the time of sale. S properly elects to 
apply the provisions of section 121 to the sale. Under the contract, P 
pays $5,000 down and executes a note for $20,000 with stated interest at 
6 percent, the principal being payable in installments of $5,000 each on 
January 1 of each year and the note being secured by the real property 
which is sold. At the time of sale P's note has a fair market value of 
$20,000. S does not elect to report the gain on the installment method 
but treats the transaction as a deferred-payment sale, title to the 
property being transferred to P at the time of sale. S uses the calendar 
year as the taxable year and the cash receipts and disbursements method 
of accounting. After making two annual payments of $5,000 each on the 
note, P defaults on the contract, and on March 1, 1967, S reacquires the 
real property in full satisfaction of P's indebtedness, title to the 
property being voluntarily reconveyed to S. On November 1, 1967, S sells 
the property to T for $35,000. The assumption is made that no fixing-up 
expenses are incurred for work performed on the principal residence in 
order to assist in the sale of the property in 1964 or in the resale of 
the property in 1967. At the time of sale in 1964 the property has an 
adjusted basis of $15,000. S does not treat any indebtedness with 
respect to the sale in 1964 as being worthless or partially worthless or 
make any capital expenditures with respect

[[Page 157]]

to the property after such sale. In his return for 1964, S includes in 
income $2,000 capital gain from the sale of his residence.
    (b) The results obtained before and after the reacquisition of the 
property are as follows:

------------------------------------------------------------------------
                                                Before         After
                                            reacquisition  reacquisition
------------------------------------------------------------------------
Adjusted sales price:
  $5,000+$20,000..........................      $25,000    .............
  $15,000+$35,000.........................  .............      $50,000
Less: Adjusted basis of property at time         15,000         15,000
 of sale..................................
                                           -----------------------------
Gain on sale..............................       10,000         35,000
                                           =============================
Gain excluded from income under section
 121:.....................................
  $10,000x$20,000/$25,000.................        8,000    .............
  $35,000x$20,000/$50,000.................  .............       14,000
Gain included in income after applying
 section 121:
  $10,000-$8,000..........................        2,000    .............
  $35,000-$14,000.........................  .............       21,000
------------------------------------------------------------------------

    (c) S is required to show the additional inclusion of $19,000 
capital gain ($21,000 -$2,000) in income on his return for 1967.
    Example 2. (a) The facts are the same as in example (1) except that 
on April 1, 1965, S purchases a new residence at a cost of $30,000 and 
qualifies for the nonrecognition of gain under section 1034 in respect 
of the sale of his principal residence on June 30, 1964. In his return 
for 1964, S does not include any capital gain in income as a result of 
the sale of the old residence.
    (b) The results obtained before and after the reacquisition of the 
property are as follows:

------------------------------------------------------------------------
                                                Before         After
                                            reacquisition  reacquisition
------------------------------------------------------------------------
Application of section 121 (see example
 (1)):
  Adjusted sales price....................      $25,000        $50,000
  Less: Adjusted basis of property at time       15,000         15,000
   of sale................................
                                           -----------------------------
  Gain on sale............................       10,000         35,000
                                           =============================
  Gain excluded from income under section         8,000         14,000
   121....................................
  Gain not excluded from income under             2,000         21,000
   section 121............................
Application of section 1034: Adjusted
 sales price:
  $25,000-$8,000..........................       17,000    .............
  $50,000-$14,000.........................  .............       36,000
Less: Cost of new residence...............       30,000         30,000
                                           -----------------------------
Gain recognized under section 1034 on sale            0          6,000
 of old residence.........................
                                           =============================
Gain not recognized under section 1034 on
 sale of old residence:
  ($10,000-[$8,000+$0])...................        2,000    .............
  ($35,000-[$14,000+$6,000])..............  .............       15,000
Adjusted basis of new residence on April
 1, 1965:
  $30,000-$2,000..........................       28,000    .............
  $30,000-$15,000.........................  .............       15,000
------------------------------------------------------------------------

    (c) The $6,000 of capital gain on the sale of the old residence is 
required to be included in income on the return for 1967. The adjusted 
basis on April 1, 1965, for determining gain on a sale or exchange of 
the new residence at any time on or after that date is $15,000, after 
taking into account the reacquisition and resale of the old residence.
    Example 3. The facts are the same as in example (2) except that S 
sells the new residence on June 20, 1965, for $40,000 and includes 
$12,000 of capital gain ($40,000- $28,000) on its sale in his income on 
the return for 1965. S is required to include the additional capital 
gain of $13,000 ([$40,000- $15,000]-$12,000) on the sale of the new 
residence in his income on the return for 1967. For this purpose, the 
assumption is also made that there are no additional adjustments to the 
basis of the new residence after April 1, 1965.

[T.D. 6916, 32 FR 5929, Apr. 13, 1967; 32 FR 6971, May 6, 1967]



Sec. 1.1038-3  Election to have section 1038 apply for taxable years 
beginning after December 31, 1957.

    (a) In general. If an election is made in the manner provided by 
paragraph (b) of this section, the applicable provisions of Sec. Sec. 
1.1038-1 and 1.1038-2 shall apply to all reacquisitions of real property 
occurring in each and every taxable year beginning after December 31, 
1957, and before September 3, 1964, for which the assessment of a 
deficiency, or the credit or refund of an overpayment, is not prevented 
on September 2, 1964, by the operation of any law or rule of law. The 
election so made shall apply to all taxable years beginning after 
December 31, 1957, and before September 3, 1964, for which the 
assessment of a deficiency, or the credit or refund of an overpayment, 
is not prevented on September 2, 1964, by the operation of any law or 
rule of law and shall apply to every reacquisition occurring in such 
taxable years. The fact that the assessment of a deficiency, or the 
credit or refund of an overpayment, is prevented for any other taxable 
year or years affected by the election will not prohibit the making of 
an election

[[Page 158]]

under this section. For example, if an individual who uses the calendar 
year as the taxable year were to sell in 1960 real property used as his 
principal residence in respect of the sale of which gain is not 
recognized under section 1034, and if such property were reacquired by 
the seller in 1962 and resold within 1 year, he would be permitted to 
make an election under this section with respect to such reacquisition 
even though on September 2, 1964, the period of limitations on 
assessment or refund has run for 1960. An election under this section 
shall be deemed a consent to the application of the provisions of this 
section.
    (b) Time and manner of making election--(1) In general. (i) An 
election to have the provisions of Sec. 1.1038-2 apply to 
reacquisitions of real property occurring in taxable years beginning 
after December 31, 1957, and before September 3, 1964, shall be made by 
filing on or before September 3, 1965, a return, an amended return, or a 
claim for refund, whichever is proper, for each taxable year in which 
the resale of such real property occurs. If the return for any such year 
is not due on or before such date and has not been filed, the election 
with respect to such taxable year shall be made by filing on or before 
such date the statement described in subparagraph (2) of this paragraph.
    (ii) An election to have the provisions of Sec. 1.1038-1 apply to 
reacquisitions of real property occurring in taxable years beginning 
after December 31, 1957, and before September 3, 1964, shall be made by 
filing on or before September 3, 1965, a return, an amended return, or a 
claim for refund, whichever is proper, for each taxable year in which 
such reacquisitions occur. If the return for any such year is not due on 
or before such date and has not been filed, the election with respect to 
such taxable year shall be made by filing on or before such date the 
statement described in subparagraph (2) of this paragraph.
    (iii) If the facts are such that Sec. 1.1038-2 applies to a 
reacquisition of property except that the reacquisition occurs in a 
taxable year beginning after December 31, 1957, and before September 3, 
1964, an election may not be made under this paragraph to have the 
provisions of Sec. 1.1038-1 apply to such reacquisition.
    (iv) Once made, an election under this paragraph may not be revoked 
after September 3, 1965. To any return, amended return, or claim for 
refund filed under this subparagraph there shall be attached the 
statement described in subparagraph (2) of this paragraph.
    (2) Statement to be attached. The statement described in 
subparagraph (1) of this paragraph shall indicate--
    (i) The name, address and account number of the taxpayer, and the 
fact that the taxpayer is electing to have the provisions of section 
1038 apply to the reacquisitions of real property,
    (ii) The taxable years in which the reacquisitions of property occur 
and any other taxable year or years the tax for which is affected by the 
application of section 1038 to such reacquisitions,
    (iii) The office of the district director where the return or 
returns for such taxable year or years were or will be filed,
    (iv) The dates on which such return or returns were filed and on 
which the tax for such taxable year or years was paid,
    (v) The type of real property reacquired, the terms under which such 
property was sold and reacquired, and an indication of whether the 
taxpayer is applying the provisions of Sec. 1.1038-2 to the 
reacquisition of such property,
    (vi) If Sec. 1.1038-2 is being applied to the reacquisition, the 
terms under which the old residence was resold and, if applicable, the 
terms under which the new residence was sold, and
    (vii) The office where, and the date when, the election to apply 
section 121 in respect to any sale of such property was or will be made.
    (3) Place for filing. Any claim for refund, amended return, or 
statement, filed under this paragraph in respect of any taxable year, 
whether the taxable year in which occurs the reacquisition of property 
or the taxable year in which occurs the resale of the old residence, 
shall be filed in the office of the district director in which the 
return for such taxable year was or will be filed.

[[Page 159]]

    (c) Extension of period of limitations on assessment or refund--(1) 
Assessment of tax. If an election is properly made under paragraph (b) 
of this section and the assessment of a deficiency for the taxable years 
to which such election applies is not prevented on September 2, 1964, by 
the operation of any law or rule of law, the period within which a 
deficiency for such taxable years may be assessed shall, to the extent 
such deficiency is attributable to the application of section 1038, not 
expire prior to one year after the date on which such election is made.
    (2) Refund of tax. If an election is properly made under paragraph 
(b) of this section and the credit or refund of any overpayment for the 
taxable years to which such election applies is not prevented on 
September 2, 1964, by the operation of any law or rule of law, the 
period within which a claim for credit or refund of an overpayment for 
such taxable years may be filed shall, to the extent such overpayment is 
attributable to the application of section 1038, not expire prior to one 
year after the date on which such election is made.
    (d) Payment of interest for period prior to September 2, 1964. No 
interest shall be payable with respect to any deficiency attributable to 
the application of the provisions of section 1038, and no interest shall 
be allowed with respect to any credit or refund of any overpayment 
attributable to the application of such section, for any period prior to 
September 2, 1964. See section 2(c)(3) of the Act of September 2, 1964 
(Pub. L. 88-750, 78 Stat. 856).

[T.D. 6916, 32 FR 5930, Apr. 13, 1967]



Sec. 1.1039-1  Certain sales of low-income housing projects.

    (a) Nonrecognition of gain. Section 1039 provides rules under which 
the taxpayer may elect not to recognize gain in certain cases where a 
qualified housing project is sold or disposed of after October 9, 1969, 
in an approved disposition and another such qualified housing project or 
projects (referred to as the replacement project) is acquired, 
constructed, or reconstructed within a specified reinvestment period. If 
the requirements of section 1039 are met, and if the taxpayer makes an 
election in accordance with the provisions of paragraph (b)(4) of this 
section, then the gain realized upon the sale or disposition is 
recognized only to the extent that the net amount realized on such sale 
or disposition exceeds the cost of the replacement project. However, 
notwithstanding section 1039, gain may be recognized by reason of the 
application of section 1245 or 1250 to the sale or disposition. (See 
Sec. 1.1245-6(b) and Sec. 1.1250-3(h). The terms qualified housing 
project, approved disposition, reinvestment period, and net amount 
realized are defined in paragraph (c) of this section.
    (b) Rules of application--(1) In general. The election under section 
1039(a) may be made only by the taxpayer owning the qualified housing 
project disposed of. Thus, if the qualified housing project disposed of 
is owned by a partnership, the partnership must make the election. (See 
section 703(b).) Similarly, if the qualified housing project disposed of 
is owned by a corporation or trust, the corporation or trust must make 
the election. In addition, the reinvestment of the taxpayer must be in 
such a manner that the taxpayer would be entitled to a deduction for 
depreciation on the replacement project. Thus, if the qualified housing 
project disposed of is owned by individual A, the purchase by A of stock 
in a corporation owning or constructing such a project or of an interest 
in a partnership owning or constructing such a project will not be 
considered as the purchase or construction by A of such a project.
    (2) Special rules. (i) The cost of a replacement project acquired 
before the approved disposition of a qualified housing project shall be 
taken into account under section 1039 only if such property is held by 
the taxpayer on the date of the approved disposition.
    (ii) Except as provided in section 1039 (d), no property acquired by 
the taxpayer shall be taken into account for purposes of section 
1039(a)(2) unless the unadjusted basis of such property is its cost 
within the meaning of section 1012. For example, if a qualified housing 
project is acquired in an exchange under section 1031, relating to 
exchange of property held for productive use or investment, such 
property will

[[Page 160]]

not be taken into account under section 1039(a)(2) because its basis is 
determined by reference to the basis of the property exchanged. (See 
section 1031(d).)
    (3) Cost of replacement project. The taxpayer's cost for the 
replacement project includes only amounts properly treated as capital 
expenditures by the taxpayer that are attributable to acquisition, 
construction, or reconstruction made within the reinvestment period (as 
defined in paragraph (c)(4) of this section). See section 263 for rules 
as to what constitutes capital expenditures. Thus, assume that a 
calendar year taxpayer realizes gain in 1970 upon the approved 
disposition of a qualified housing project occurring on January 1, 1970. 
If the taxpayer had begun construction of another qualified housing 
project on January 1, 1969, and completes such construction on June 1, 
1972, only that portion of the cost attributable to the period before 
January 1, 1972, constitutes the cost of the replacement project for 
purposes of section 1039. For purposes of determining the cost of a 
replacement project attributable to a particular period, the total cost 
of the project may be allocated to such period on the basis of the 
portion of the total project actually constructed during such period.
    (4) Election. (i) An election not to recognize the gain realized 
upon an approved disposition of a qualified housing project to the 
extent provided in section 1039(a) may be made by attaching a statement 
to the income tax return filed for the first taxable year in which any 
portion of the gain on such disposition is realized. Such a statement 
shall contain the information required by subdivision (iii) of this 
subparagraph. If the taxpayer does not file such a statement for the 
first taxable year in which any portion of the gain is realized, but 
fails to report a portion of the gain realized upon the approved 
disposition as income for such year or for any subsequent taxable year, 
then an election shall be deemed to be made under section 1039 (a) with 
respect to that portion of the gain not reported as income.
    (ii) An election may be made under section 1039(a) even though the 
replacement project has not been acquired or constructed at the time of 
election. However, if an election has been made and (a) a replacement 
project is not constructed, reconstructed, or acquired, (b) the cost of 
the replacement project is lower than the net amount realized from the 
approved disposition, or (c) a decision is made not to construct, 
reconstruct, or acquire a replacement project, then the tax liability 
for the year or years for which the election was made shall be 
recomputed and an amended return filed. An election may be made even 
though the taxpayer has filed his return and recognized gain upon the 
disposition provided that the period of limitation on filing claims for 
credit or refund prescribed by section 6511 has not expired. In such 
case, a statement containing the information required by subdivision 
(iii) of this subparagraph should be filed together with a claim for 
credit or refund for the taxable year or years in which gain was 
recognized.
    (iii) The statement referred to in subdivisions (i) and (ii) of this 
subparagraph shall contain the following information:
    (a) The date of the approved disposition;
    (b) If a replacement project has been acquired, the date of 
acquisition and cost of the project;
    (c) If a replacement project has been constructed or reconstructed 
by or for the taxpayer, the date construction was begun, the date 
construction was completed, and the percentage of construction completed 
within the reinvestment period;
    (d) If no replacement project has been constructed, reconstructed, 
or acquired prior to the time of filing of the statement, the estimated 
cost of such construction, reconstruction, or acquisition;
    (e) The adjusted basis of the project disposed of; and
    (f) The amount realized upon the approved disposition and a 
description of the expenses directly connected with the disposition and 
the taxes (other than income taxes) attributable to the disposition.
    (c) Definitions--(1) General. The definitions contained in 
subparagraphs (2) through (5) of this paragraph shall apply for purposes 
of this section.

[[Page 161]]

    (2) Qualified housing project. The term qualified housing project 
means a rental or cooperative housing project for lower income families 
that has been constructed, reconstructed, or rehabilitated pursuant to a 
mortgage which is insured under section 221(d)(3) or 236 of the National 
Housing Act, provided that with respect to the housing project disposed 
of and the replacement project constructed, reconstructed, or acquired, 
the owner of the project at the time of the approved disposition and 
prior to the close of the reinvestment period is, under such sections or 
regulations issued thereunder,
    (i) Limited as to rate of return on his investment in the project, 
and
    (ii) Limited as to rentals or occupancy charges for units in the 
project.

If the owner of the project is organized and operated as a nonprofit 
cooperative or other nonprofit organization, then such owner shall be 
considered to meet the requirement of subdivision (i) of this 
subparagraph.
    (3) Approved disposition. The term approved disposition means a sale 
or other disposition of a qualified housing project to the tenants or 
occupants of units in such project, or to a nonprofit cooperative or 
other nonprofit organization formed and operated solely for the benefit 
of such tenants or occupants, provided that it is approved by the 
Secretary of Housing and Urban Development or his delegate under section 
221 (d)(3) or 236 of the National Housing Act or regulations issued 
under such sections. Evidence of such approval should be attached to the 
tax return or statement in which the election under section 1039 is 
made.
    (4) Reinvestment period. (i) The term reinvestment period means the 
period beginning 1 year before the date of the disposition and ending 1 
year after the close of the first taxable year in which any part of the 
gain from such disposition is realized, or at such later date as may be 
designated pursuant to an application made by the taxpayer. Such 
application shall be made before the expiration of one year after the 
close of the first taxable year in which any part of the gain from such 
disposition is realized, unless the taxpayer can show to the 
satisfaction of the district director that--
    (a) Reasonable cause exists for not having filed the application 
within the required period, and
    (b) The filing of such application was made within a reasonable time 
after the expiration of the required period.

The application shall contain all the information required by paragraph 
(b)(4) of this section and shall be made to the district director for 
the internal revenue district in which the return is filed for the first 
taxable year in which any of the gain from the approved disposition is 
realized.
    (ii) Ordinarily, requests for extension of the reinvestment period 
will not be granted until near the end of such period and any extension 
will usually be limited to a period not exceeding one year. Although 
granting of an extension depends upon the facts and circumstances of a 
particular case, if a predominant portion of the construction of the 
replacement project has been completed or is reasonably expected to be 
completed within the reinvestment period (determined without regard to 
any extension thereof), an extension of the reinvestment period will 
ordinarily be granted. The fact that there is a scarcity of replacement 
property for acquisition will not be considered sufficient grounds for 
granting an extension.
    (5) Net amount realized. (i) The net amount realized from the 
approved disposition of a qualified housing project is the amount 
realized from such disposition, reduced by--
    (a) The expenses paid or incurred by the taxpayer which are directly 
connected with the approved disposition, and
    (b) The amount of taxes (other than income taxes) paid or incurred 
by the taxpayer which are attributable to the approved disposition.
    (ii) Examples of expenses directly connected with an approved 
disposition of a qualified housing project include amounts paid for 
sales or other commissions, advertising, and for the preparation of a 
deed or other legal services in connection with the disposition. An 
amount paid for a repair to the building will be considered as an 
expense directly connected with the approved disposition under 
subdivision (i)(a) of this

[[Page 162]]

subparagraph only if such repair is required as a condition of sale, or 
is required by the Secretary of Housing and Urban Development or his 
delegate as a condition of approval of the disposition.
    (iii) Examples of taxes that are attributable to the approved 
disposition include local property transfer taxes and stamp taxes. A 
local real property tax is not so attributable.
    (d) Basis and holding period of replacement project--(1) Basis. If 
the taxpayer makes an election under section 1039, the basis of the 
replacement housing project shall be its cost (including costs incurred 
subsequent to the reinvestment period) reduced by the amount of gain not 
recognized under section 1039 (a). If the replacement consists of more 
than one housing project, the basis determined under this subparagraph 
shall be allocated to the properties in proportion to their respective 
costs.
    (2) Holding period. The holding period of the replacement housing 
project shall begin on the date the taxpayer acquires such project, that 
is, on the date the taxpayer first acquires possession or control of 
such project and bears the burdens and enjoys the benefits of ownership 
of the replacement project. (For special rule regarding the holding 
period of property for purposes of section 1250, see section 
1250(e)(4).)
    (e) Assessment of deficiencies--(1) Deficiency attributable to gain. 
If a taxpayer makes an election under section 1039(a) with respect to an 
approved disposition, any deficiency attributable to the gain on such 
disposition, for any taxable year in which any part of such gain is 
realized, may be assessed at any time before the expiration of 3 years 
after the date the district director or director of the regional service 
center with whom the return for such year has been filed is notified by 
the taxpayer of the acquisition or the completion of construction or 
reconstruction of the replacement qualified housing project or of the 
failure to acquire, construct, or reconstruct a replacement qualified 
housing project, as the case may be. Such a deficiency may be assessed 
before the expiration of such 3-year period notwithstanding the 
provisions of section 6212(c) or the provisions of any other law or rule 
of law which would otherwise prevent such assessment. If replacement has 
been made, such notification shall contain the information required by 
paragraph (b)(4)(iii) of this section. Such notification shall be 
attached to the return filed for the taxable year or years in which the 
replacement occurs, or in which the period for the replacement expires, 
and a copy of such notification shall be filed with the district 
director or director of regional service center with whom the election 
under section 1039(a) was required to be filed, if the return is not 
filed with such director.
    (2) Deficiency attributable to election. If gain upon an approved 
disposition is realized in two (or more) taxable years, and the 
replacement qualified housing project was acquired, constructed, or 
reconstructed before the beginning of the last such year, any 
deficiency, for any taxable year before such last year, which is 
attributable to an election by the taxpayer under section 1039(a) may be 
assessed at any time before the expiration of the period within which a 
deficiency for such last taxable year may be assessed, notwithstanding 
the provisions of section 6212(c) or 6501 or the provisions of any law 
or rule of law which would otherwise prevent such assessment. Thus, if 
gain upon an approved disposition is realized in 1971 and 1975, and if a 
replacement project is purchased in 1971, any deficiency for 1971 may be 
assessed within the period for assessing a deficiency for 1975.

[T.D. 7191, 37 FR 12951, June 30, 1972; 37 FR 14385, July 20, 1972, as 
amended by T.D. 7400, 41 FR 5101, Feb. 4, 1976]



Sec. 1.1041-1T  Treatment of transfer of property between spouses or 
incident to divorce (temporary).

    Q-1: How is the transfer of property between spouses treated under 
section 1041?
    A-1: Generally, no gain or loss is recognized on a transfer of 
property from an individual to (or in trust for the benefit of) a spouse 
or, if the transfer is incident to a divorce, a former spouse. The 
following questions and answers describe more fully the scope, tax 
consequences and other rules which apply to transfers of property under 
section 1041.

[[Page 163]]

    (a) Scope of section 1041 in general.
    Q-2: Does section 1041 apply only to transfers of property incident 
to divorce?
    A-2: No. Section 1041 is not limited to transfers of property 
incident to divorce. Section 1041 applies to any transfer of property 
between spouses regardless of whether the transfer is a gift or is a 
sale or exchange between spouses acting at arm's length (including a 
transfer in exchange for the relinquishment of property or marital 
rights or an exchange otherwise governed by another nonrecognition 
provision of the Code). A divorce or legal separation need not be 
contemplated between the spouses at the time of the transfer nor must a 
divorce or legal separation ever occur.

    Example 1. A and B are married and file a joint return. A is the 
sole owner of a condominium unit. A sale or gift of the condominium from 
A to B is a transfer which is subject to the rules of section 1041.
    Example 2. A and B are married and file separate returns. A is the 
owner of an independent sole proprietorship, X Company. In the ordinary 
course of business, X Company makes a sale of property to B. This sale 
is a transfer of property between spouses and is subject to the rules of 
section 1041.
    Example 3. Assume the same facts as in example (2), except that X 
Company is a corporation wholly owned by A. This sale is not a sale 
between spouses subject to the rules of section 1041. However, in 
appropriate circumstances, general tax principles, including the step-
transaction doctrine, may be applicable in recharacterizing the 
transaction.

    Q-3: Do the rules of section 1041 apply to a transfer between 
spouses if the transferee spouse is a nonresident alien?
    A-3: No. Gain or loss (if any) is recognized (assuming no other 
nonrecognition provision applies) at the time of a transfer of property 
if the property is transferred to a spouse who is a nonresident alien.
    Q-4: What kinds of transfers are governed by section 1041?
    A-4: Only transfers of property (whether real or personal, tangible 
or intangible) are governed by section 1041. Transfers of services are 
not subject to the rules of section 1041.
    Q-5: Must the property transferred to a former spouse have been 
owned by the transferor spouse during the marriage?
    A-5: No. A transfer of property acquired after the marriage ceases 
may be governed by section 1041.
    (b) Transfer incident to the divorce.
    Q-6: When is a transfer of property incident to the divorce?
    A-6: A transfer of property is incident to the divorce in either of 
the following 2 circumstances--
    (1) The transfer occurs not more than one year after the date on 
which the marriage ceases, or
    (2) The transfer is related to the cessation of the marriage.

Thus, a transfer of property occurring not more than one year after the 
date on which the marriage ceases need not be related to the cessation 
of the marriage to qualify for section 1041 treatment. (See A-7 for 
transfers occurring more than one year after the cessation of the 
marriage.)
    Q-7: When is a transfer of property related to the cessation of the 
marriage?
    A-7: A transfer of property is treated as related to the cessation 
of the marriage if the transfer is pursuant to a divorce or separation 
instrument, as defined in section 71(b)(2), and the transfer occurs not 
more than 6 years after the date on which the marriage ceases. A divorce 
or separation instrument includes a modification or amendment to such 
decree or instrument. Any transfer not pursuant to a divorce or 
separation instrument and any transfer occurring more than 6 years after 
the cessation of the marriage is presumed to be not related to the 
cessation of the marriage. This presumption may be rebutted only by 
showing that the transfer was made to effect the division of property 
owned by the former spouses at the time of the cessation of the 
marriage. For example, the presumption may be rebutted by showing that 
(a) the transfer was not made within the one- and six-year periods 
described above because of factors which hampered an earlier transfer of 
the property, such as legal or business impediments to transfer or 
disputes concerning the value of the property owned at the time of the 
cessation of the marriage, and (b) the transfer is effected promptly 
after the impediment to transfer is removed.
    Q-8: Do annulments and the cessations of marriages that are void ab

[[Page 164]]

initio due to violations of state law constitute divorces for purposes 
of section 1041?
    A-8: Yes.
    (c) Transfers on behalf of a spouse.
    Q-9: May transfers of property to third parties on behalf of a 
spouse (or former spouse) qualify under section 1041?
    A-9: Yes. There are three situations in which a transfer of property 
to a third party on behalf of a spouse (or former spouse) will qualify 
under section 1041, provided all other requirements of the section are 
satisfied. The first situation is where the transfer to the third party 
is required by a divorce or separation instrument. The second situation 
is where the transfer to the third party is pursuant to the written 
request of the other spouse (or former spouse). The third situation is 
where the transferor receives from the other spouse (or former spouse) a 
written consent or ratification of the transfer to the third party. Such 
consent or ratification must state that the parties intend the transfer 
to be treated as a transfer to the nontransferring spouse (or former 
spouse) subject to the rules of section 1041 and must be received by the 
transferor prior to the date of filing of the transferor's first return 
of tax for the taxable year in which the transfer was made. In the three 
situations described above, the transfer of property will be treated as 
made directly to the nontransferring spouse (or former spouse) and the 
nontransferring spouse will be treated as immediately transferring the 
property to the third party. The deemed transfer from the 
nontransferring spouse (or former spouse) to the third party is not a 
transaction that qualifies for nonrecognition of gain under section 
1041. This A-9 shall not apply to transfers to which Sec. 1.1041-2 
applies.
    (d) Tax consequences of transfers subject to section 1041.
    Q-10: How is the transferor of property under section 1041 treated 
for income tax purposes?
    A-10: The transferor of property under section 1041 recognizes no 
gain or loss on the transfer even if the transfer was in exchange for 
the release of marital rights or other consideration. This rule applies 
regardless of whether the transfer is of property separately owned by 
the transferor or is a division (equal or unequal) of community 
property. Thus, the result under section 1041 differs from the result in 
United States v. Davis, 370 U.S. 65 (1962).
    Q-11: How is the transferee of property under section 1041 treated 
for income tax purposes?
    A-11: The transferee of property under section 1041 recognizes no 
gain or loss upon receipt of the transferred property. In all cases, the 
basis of the transferred property in the hands of the transferee is the 
adjusted basis of such property in the hands of the transferor 
immediately before the transfer. Even if the transfer is a bona fide 
sale, the transferee does not acquire a basis in the transferred 
property equal to the transferee's cost (the fair market value). This 
carryover basis rule applies whether the adjusted basis of the 
transferred property is less than, equal to, or greater than its fair 
market value at the time of transfer (or the value of any consideration 
provided by the transferee) and applies for purposes of determining loss 
as well as gain upon the subsequent disposition of the property by the 
transferee. Thus, this rule is different from the rule applied in 
section 1015(a) for determining the basis of property acquired by gift.
    Q-12: Do the rules described in A-10 and A-11 apply even if the 
transferred property is subject to liabilities which exceed the adjusted 
basis of the property?
    A-12: Yes. For example, assume A owns property having a fair market 
value of $10,000 and an adjusted basis of $1,000. In contemplation of 
making a transfer of this property incident to a divorce from B, A 
borrows $5,000 from a bank, using the property as security for the 
borrowing. A then transfers the property to B and B assumes, or takes 
the property subject to, the liability to pay the $5,000 debt. Under 
section 1041, A recognizes no gain or loss upon the transfer of the 
property, and the adjusted basis of the property in the hands of B is 
$1,000.
    Q-13: Will a transfer under section 1041 result in a recapture of 
investment tax credits with respect to the property transferred?

[[Page 165]]

    A-13: In general, no. Property transferred under section 1041 will 
not be treated as being disposed of by, or ceasing to be section 38 
property with respect to, the transferor. However, the transferee will 
be subject to investment tax credit recapture if, upon or after the 
transfer, the property is disposed of by, or ceases to be section 38 
property with respect to, the transferee. For example, as part of a 
divorce property settlement, B receives a car from A that has been used 
in A's business for two years and for which an investment tax credit was 
taken by A. No part of A's business is transferred to B and B's use of 
the car is solely personal. B is subject to recapture of the investment 
tax credit previously taken by A.
    (e) Notice and recordkeeping requirement with respect to 
transactions under section 1041.
    Q-14: Does the trasnsferor of property in a transaction described in 
section 1041 have to supply, at the time of the transfer, the transferee 
with records sufficient to determine the adjusted basis and holding 
period of the property at the time of the transfer and (if applicable) 
with notice that the property transferred under section 1041 is 
potentially subject to recapture of the investment tax credit?
    A-14: Yes. A transferor of property under section 1041 must, at the 
time of the transfer, supply the transferee with records sufficient to 
determine the adjusted basis and holding period of the property as of 
the date of the transfer. In addition, in the case of a transfer of 
property which carries with it a potential liability for investment tax 
credit recapture, the transferor must, at the time of the transfer, 
supply the transferee with records sufficient to determine the amount 
and period of such potential liability. Such records must be preserved 
and kept accessible by the transferee.
    (f) Property settlements--effective dates, transitional periods and 
elections.
    Q-15: When does section 1041 become effective?
    A-15: Generally, section 1041 applies to all transfers after July 
18, 1984. However, it does not apply to transfers after July 18, 1984 
pursuant to instruments in effect on or before July 18, 1984. (See A-16 
with respect to exceptions to the general rule.)
    Q-16: Are there any exceptions to the general rule stated in A-15 
above?
    A-16: Yes. Two transitional rules provide exceptions to the general 
rule stated in A-15. First, section 1041 will apply to transfers after 
July 18, 1984 under instruments that were in effect on or before July 
18, 1984 if both spouses (or former spouses) elect to have section 1041 
apply to such transfers. Second, section 1041 will apply to all 
transfers after December 31, 1983 (including transfers under instruments 
in effect on or before July 18, 1984) if both spouses (or former 
spouses) elect to have section 1041 apply. (See A-18 relating to the 
time and manner of making the elections under the first or second 
transitional rule.)
    Q-17: Can an election be made to have section 1041 apply to some, 
but not all, transfers made after December 31, 1983, or some but not 
all, transfers made after July 18, 1984 under instruments in effect on 
or before July 18, 1984?
    A-17: No. Partial elections are not allowed. An election under 
either of the two elective transitional rules applies to all transfers 
governed by that election whether before or after the election is made, 
and is irrevocable.
    (g) Property settlements--time and manner of making the elections 
under section 1041.
    Q-18: How do spouses (or former spouses) elect to have section 1041 
apply to transfers after December 31, 1983, or to transfers after July 
18, 1984 under instruments in effect on or before July 18, 1984?
    A-18: In order to make an election under section 1041 for property 
transfers after December 31, 1983, or property transfers under 
instruments that were in effect on or before July 18, 1984, both spouses 
(or former spouses) must elect the application of the rules of section 
1041 by attaching to the transferor's first filed income tax return for 
the taxable year in which the first transfer occurs, a statement signed 
by both spouses (or former spouses) which includes each spouse's social 
security number and is in substantially the form set forth at the end of 
this answer.

[[Page 166]]

    In addition, the transferor must attach a copy of such statement to 
his or her return for each subsequent taxable year in which a transfer 
is made that is governed by the transitional election. A copy of the 
signed statment must be kept by both parties.
    The election statements shall be in substantially the following 
form:
    In the case of an election regarding transfers after 1983:

                          Section 1041 Election

    The undersigned hereby elect to have the provisions of section 1041 
of the Internal Revenue Code apply to all qualifying transfers of 
property after December 31, 1983. The undersigned understand that 
section 1041 applies to all property transferred between spouses, or 
former spouses incident to divorce. The parties further understand that 
the effects for Federal income tax purposes of having section 1041 apply 
are that (1) no gain or loss is recognized by the transferor spouse or 
former spouse as a result of this transfer; and (2) the basis of the 
transferred property in the hands of the transferee is the adjusted 
basis of the property in the hands of the transferor immediately before 
the transfer, whether or not the adjusted basis of the transferred 
property is less than, equal to, or greater than its fair market value 
at the time of the transfer. The undersigned understand that if the 
transferee spouse or former spouse disposes of the property in a 
transaction in which gain is recognized, the amount of gain which is 
taxable may be larger than it would have been if this election had not 
been made.

    In the case of an election regarding preexisting decrees:

                          Section 1041 Election

    The undersigned hereby elect to have the provisions of section 1041 
of the Internal Revenue Code apply to all qualifying transfers of 
property after July 18, 1984 under any instrument in effect on or before 
July 18, 1984. The undersigned understand that section 1041 applies to 
all property transferred between spouses, or former spouses incident to 
the divorce. The parties further understand that the effects for Federal 
income tax purposes of having section 1041 apply are that (1) no gain or 
loss is recognized by the transferor spouse or former spouse as a result 
of this transfer; and (2) the basis of the transferred property in the 
hands of the transferee is the adjusted basis of the property in the 
hands of the transferor immediately before the transfer, whether or not 
the adjusted basis of the transferred property is less than, equal to, 
or greater than its fair market value at the time of the transfer. The 
undersigned understand that if the transferee spouse or former spouse 
disposes of the property in a transaction in which gain is recognized, 
the amount of gain which is taxable may be larger than it would have 
been if this election had not been made.

(Secs. 1041(d)(4), (98 Stat. 798, 26 U.S.C. 1041(d)(4)), 152(e)(2)(A) 
(98 Stat. 802, 26 U.S.C. 152(e)(2)(A)), 215(c) (98 Stat. 800, 26 U.S.C. 
215(c)) and 7805 (68A Stat. 917, 26 U.S.C. 7805) of the Internal Revenue 
Code of 1954))

[T.D. 7973, 49 FR 34452, Aug. 31, 1984; T.D. 9035, 68 FR 1536, Jan. 13, 
2003]



Sec. 1.1041-2  Redemptions of stock.

    (a) In general--(1) Redemptions of stock not resulting in 
constructive distributions. Notwithstanding Q&A-9 of Sec. 1.1041-1T(c), 
if a corporation redeems stock owned by a spouse or former spouse 
(transferor spouse), and the transferor spouse's receipt of property in 
respect of such redeemed stock is not treated, under applicable tax law, 
as resulting in a constructive distribution to the other spouse or 
former spouse (nontransferor spouse), then the form of the stock 
redemption shall be respected for Federal income tax purposes. 
Therefore, the transferor spouse will be treated as having received a 
distribution from the corporation in redemption of stock.
    (2) Redemptions of stock resulting in constructive distributions. 
Notwithstanding Q&A-9 of Sec. 1.1041-1T(c), if a corporation redeems 
stock owned by a transferor spouse, and the transferor spouse's receipt 
of property in respect of such redeemed stock is treated, under 
applicable tax law, as resulting in a constructive distribution to the 
nontransferor spouse, then the redeemed stock shall be deemed first to 
be transferred by the transferor spouse to the nontransferor spouse and 
then to be transferred by the nontransferor spouse to the redeeming 
corporation. Any property actually received by the transferor spouse 
from the redeeming corporation in respect of the redeemed stock shall be 
deemed first to be transferred by the corporation to the nontransferor 
spouse in redemption of such spouse's stock and then to be transferred 
by the nontransferor spouse to the transferor spouse.
    (b) Tax consequences--(1) Transfers described in paragraph (a)(1) of 
this section. Section 1041 will not apply to any of

[[Page 167]]

the transfers described in paragraph (a)(1) of this section. See section 
302 for rules relating to the tax consequences of certain redemptions; 
redemptions characterized as distributions under section 302(d) will be 
subject to section 301 if received from a Subchapter C corporation or 
section 1368 if received from a Subchapter S corporation.
    (2) Transfers described in paragraph (a)(2) of this section. The tax 
consequences of each deemed transfer described in paragraph (a)(2) of 
this section are determined under applicable provisions of the Internal 
Revenue Code as if the spouses had actually made such transfers. 
Accordingly, section 1041 applies to any deemed transfer of the stock 
and redemption proceeds between the transferor spouse and the 
nontransferor spouse, provided the requirements of section 1041 are 
otherwise satisfied with respect to such deemed transfer. Section 1041, 
however, will not apply to any deemed transfer of stock by the 
nontransferor spouse to the redeeming corporation in exchange for the 
redemption proceeds. See section 302 for rules relating to the tax 
consequences of certain redemptions; redemptions characterized as 
distributions under section 302(d) will be subject to section 301 if 
received from a Subchapter C corporation or section 1368 if received 
from a Subchapter S corporation.
    (c) Special rules in case of agreements between spouses or former 
spouses--(1) Transferor spouse taxable. Notwithstanding applicable tax 
law, a transferor spouse's receipt of property in respect of the 
redeemed stock shall be treated as a distribution to the transferor 
spouse in redemption of such stock for purposes of paragraph (a)(1) of 
this section, and shall not be treated as resulting in a constructive 
distribution to the nontransferor spouse for purposes of paragraph 
(a)(2) of this section, if a divorce or separation instrument, or a 
valid written agreement between the transferor spouse and the 
nontransferor spouse, expressly provides that--
    (i) Both spouses or former spouses intend for the redemption to be 
treated, for Federal income tax purposes, as a redemption distribution 
to the transferor spouse; and
    (ii) Such instrument or agreement supersedes any other instrument or 
agreement concerning the purchase, sale, redemption, or other 
disposition of the stock that is the subject of the redemption.
    (2) Nontransferor spouse taxable. Notwithstanding applicable tax 
law, a transferor spouse's receipt of property in respect of the 
redeemed stock shall be treated as resulting in a constructive 
distribution to the nontransferor spouse for purposes of paragraph 
(a)(2) of this section, and shall not be treated as a distribution to 
the transferor spouse in redemption of such stock for purposes of 
paragraph (a)(1) of this section, if a divorce or separation instrument, 
or a valid written agreement between the transferor spouse and the 
nontransferor spouse, expressly provides that--
    (i) Both spouses or former spouses intend for the redemption to be 
treated, for Federal income tax purposes, as resulting in a constructive 
distribution to the nontransferor spouse; and
    (ii) Such instrument or agreement supersedes any other instrument or 
agreement concerning the purchase, sale, redemption, or other 
disposition of the stock that is the subject of the redemption.
    (3) Execution of agreements. For purposes of this paragraph (c), a 
divorce or separation instrument must be effective, or a valid written 
agreement must be executed by both spouses or former spouses, prior to 
the date on which the transferor spouse (in the case of paragraph (c)(1) 
of this section) or the nontransferor spouse (in the case of paragraph 
(c)(2) of this section) files such spouse's first timely filed Federal 
income tax return for the year that includes the date of the stock 
redemption, but no later than the date such return is due (including 
extensions).
    (d) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. Corporation X has 100 shares outstanding. A and B each 
own 50 shares. A and B divorce. The divorce instrument requires B to 
purchase A's shares, and A to sell A's shares to B, in exchange for 
$100x. Corporation X redeems A's shares for $100x. Assume that, under 
applicable tax law, B has a

[[Page 168]]

primary and unconditional obligation to purchase A's stock, and 
therefore the stock redemption results in a constructive distribution to 
B. Also assume that the special rule of paragraph (c)(1) of this section 
does not apply. Accordingly, under paragraphs (a)(2) and (b)(2) of this 
section, A shall be treated as transferring A's stock of Corporation X 
to B in a transfer to which section 1041 applies (assuming the 
requirements of section 1041 are otherwise satisfied), B shall be 
treated as transferring the Corporation X stock B is deemed to have 
received from A to Corporation X in exchange for $100x in an exchange to 
which section 1041 does not apply and sections 302(d) and 301 apply, and 
B shall be treated as transferring the $100x to A in a transfer to which 
section 1041 applies.
    Example 2. Assume the same facts as Example 1, except that the 
divorce instrument provides as follows: ``A and B agree that the 
redemption will be treated for Federal income tax purposes as a 
redemption distribution to A.'' The divorce instrument further provides 
that it ``supersedes all other instruments or agreements concerning the 
purchase, sale, redemption, or other disposition of the stock that is 
the subject of the redemption.'' By virtue of the special rule of 
paragraph (c)(1) of this section and under paragraphs (a)(1) and (b)(1) 
of this section, the tax consequences of the redemption shall be 
determined in accordance with its form as a redemption of A's shares by 
Corporation X and shall not be treated as resulting in a constructive 
distribution to B. See section 302.
    Example 3. Assume the same facts as Example 1, except that the 
divorce instrument requires A to sell A's shares to Corporation X in 
exchange for a note. B guarantees Corporation X's payment of the note. 
Assume that, under applicable tax law, B does not have a primary and 
unconditional obligation to purchase A's stock, and therefore the stock 
redemption does not result in a constructive distribution to B. Also 
assume that the special rule of paragraph (c)(2) of this section does 
not apply. Accordingly, under paragraphs (a)(1) and (b)(1) of this 
section, the tax consequences of the redemption shall be determined in 
accordance with its form as a redemption of A's shares by Corporation X. 
See section 302.
    Example 4. Assume the same facts as Example 3, except that the 
divorce instrument provides as follows: ``A and B agree the redemption 
shall be treated, for Federal income tax purposes, as resulting in a 
constructive distribution to B.'' The divorce instrument further 
provides that it ``supersedes any other instrument or agreement 
concerning the purchase, sale, redemption, or other disposition of the 
stock that is the subject of the redemption.'' By virtue of the special 
rule of paragraph (c)(2) of this section, the redemption is treated as 
resulting in a constructive distribution to B for purposes of paragraph 
(a)(2) of this section. Accordingly, under paragraphs (a)(2) and (b)(2) 
of this section, A shall be treated as transferring A's stock of 
Corporation X to B in a transfer to which section 1041 applies (assuming 
the requirements of section 1041 are otherwise satisfied), B shall be 
treated as transferring the Corporation X stock B is deemed to have 
received from A to Corporation X in exchange for a note in an exchange 
to which section 1041 does not apply and sections 302(d) and 301 apply, 
and B shall be treated as transferring the note to A in a transfer to 
which section 1041 applies.

    (e) Effective date. Except as otherwise provided in this paragraph, 
this section is applicable to redemptions of stock on or after January 
13, 2003, except for redemptions of stock that are pursuant to 
instruments in effect before January 13, 2003. For redemptions of stock 
before January 13, 2003 and redemptions of stock that are pursuant to 
instruments in effect before January 13, 2003, see Sec. 1.1041-1T(c), 
A-9. However, these regulations will be applicable to redemptions 
described in the preceding sentence of this paragraph (e) if the spouses 
or former spouses execute a written agreement on or after August 3, 2001 
that satisfies the requirements of one of the special rules in paragraph 
(c) of this section with respect to such redemption. A divorce or 
separation instrument or valid written agreement executed on or after 
August 3, 2001, and before May 13, 2003 that meets the requirements of 
the special rule in Regulations Project REG-107151-00 published in 2001-
2 C.B. 370 (see Sec. 601.601(d)(2) of this chapter) will be treated as 
also meeting the requirements of the special rule in paragraph (c)(2) of 
this section.

[T.D. 9035, 68 FR 1536, Jan. 13, 2003]



Sec. 1.1042-1T  Questions and answers relating to the sales of stock 
to employee stock ownership plans or certain cooperatives (temporary).

    Q-1: What does section 1042 provide?
    A-1: (a) Section 1042 provides rules under which a taxpayer may 
elect not to recognize gain in certain cases where qualified securities 
are sold to a qualifying employee stock ownership plan or worker-owned 
cooperative in taxable years of the seller beginning

[[Page 169]]

after July 18, 1984, and qualified replacement property is purchased by 
the taxpayer within the replacement period. If the requirements of Q&A-2 
of this section are met, and if the taxpayer makes an election under 
section 1042(a) in accordance with Q&A-3 of this section, the gain 
realized by the taxpayer on the sale of the qualified securities is 
recognized only to the extent that the amount realized on such sale 
exceeds the cost to the taxpayer of the qualified replacement property.
    (b) Under section 1042, the term qualified securities means employer 
securities (as defined in section 409(l)) with respect to which each of 
the following requirements is satisfied: (1) The employer securities 
were issued by a domestic corporation; (2) for at least one year before 
and immediately after the sale, the domestic corporation that issued the 
employer securities (and each corporation that is a member of a 
controlled group of corporations with such corporation for purposes of 
section 409(l)) has no stock outstanding that is readily tradeable on an 
established market; (3) as of the time of the sale, the employer 
securities have been held by the taxpayer for more than 1 year; and (4) 
the employer securities were not received by the taxpayer in a 
distribution from a plan described in section 401(a) or in a transfer 
pursuant to an option or other right to acquire stock to which section 
83, 422, 422A, 423, or 424 applies.
    (c) The term replacement period means the period which begins 3 
months before the date on which the sale of qualified securities occurs 
and which ends 12 months after the date of such sale. A replacement 
period may include any period which occurs prior to July 19, 1984.
    (d) The term qualified replacement property means any securities (as 
defined in section 165(g)(2)) issued by a domestic corporation which 
does not, for the taxable year of such corporation in which the 
securities are purchased by the taxpayer, have passive investment income 
(as defined in section 1362(d)(3)(D)) that exceeds 25 percent of the 
gross receipts of such corporation for the taxable year preceding the 
taxable year of purchase. In addition, securities of the domestic 
corporation that issued the employer securities qualifying under section 
1042 (and of any corporation that is a member of a controlled group of 
corporations with such corporation for purposes of section 409(l)) will 
not qualify as qualified replacement property.
    (e) For purposes of section 1042(a), there is a purchase of 
qualified replacement property only if the basis of such property is 
determined by reference to its cost to the taxpayer. If the basis of the 
qualified replacement property is determined by reference to its basis 
in the hands of the transferor thereof or another person, or by 
reference to the basis of property (other than cash or its equivalent) 
exchanged for such property, then the basis of such property is not 
determined solely by reference to its cost to the taxpayer.
    Q-2: What is a sale of qualified securities for purposes of section 
1042(b)?
    A-2: (a) Under section 1042(b), a sale of qualified securities is 
one under which all of the following requirements are met:
    (1) The qualified securities are sold to an employee stock ownership 
plan (as defined in section 4975(e)(7)) maintained by the corporation 
that issued the qualified securities (or by a member of the controlled 
group of corporations with such corporation for purposes of section 
409(l)) or to an eligible worker-owned cooperative (as defined in 
section 1042(c)(2));
    (2) The employee stock ownership plan or eligible worker-owned 
cooperative owns, immediately after the sale, 30 percent or more of the 
total value of the employer securities (within the meaning of section 
409(l) outstanding as of such time;
    (3) No portion of the assets of the employee stock ownership plan or 
eligible worker-owned cooperative attributable to qualified securities 
that are sold to the plan or cooperative by the taxpayer or by any other 
person in a sale with respect to which an election under section 1042(a) 
is made accrue under the plan or are allocated by the cooperative, 
either directly or indirectly and either concurrently with or at any 
time thereafter, for the benefit of (i) the taxpayer; (ii) any person 
who is a member of the family of the taxpayer (within the meaning of 
section

[[Page 170]]

267(c)(4)); or (iii) any person who owns (after the application of 
section 318(a)), at any time after July 18, 1984, and until immediately 
after the sale, more than 25 percent of in value of the outstanding 
portion of any class of stock of the corporation that issued the 
qualified securities (or of any member of the controlled group of 
corporations with such corporation for purposes of section 409(l)). For 
purposes of this calculation, stock that is owned, directly or 
indirectly, by or for a qualified plan shall not be treated as 
outstanding.
    (4) The taxpayer files with the Secretary (as part of the required 
election described in Q&A-3 of this section) a verified written 
statement of the domestic corporation (or corporations) whose employees 
are covered by the plan acquiring the qualified securities or of any 
authorized officer of the eligible workerowned cooperative, consenting 
to the application of section 4978(a) with respect to such corporation 
or cooperative.
    (b) For purposes of determining whether paragraph (a)(2) of this 
section is satisfied, sales of qualified securities by two or more 
taxpayers may be treated as a single sale if such sales are made as part 
of a single, integrated transaction under a prearranged agreement 
between the taxpayers.
    (c) For purposes of determining whether paragraph (a)(3) of this 
section is satisfied with respect to the prohibition against an accrual 
or allocation of qualified securities, the accrual or allocation of any 
benefits or contributions or other assets that are not attributable to 
qualified securities sold to the employee stock ownership plan or 
eligible worker-owned cooperative in a sale with respect to which an 
election under section 1042(a) is made (including any accrual or 
allocation under any other plan or arrangement maintained by the 
corporation or any member of the controlled group of corporations with 
such corporation for purposes of section 409(l)) must be made without 
regard to the allocation of such qualified securities. Paragraph (a)(3) 
of this section above may be illustrated in part by the following 
example: Individuals A, B, and C own 50, 25, and 25, respectively, of 
the 100 outstanding shares of common stock of Corporation X. Such shares 
constitute qualified securities as defined in Q&A-1 of this section. A 
and B, but not C, are employees of Corporation X. For the benefit of all 
its employees, Corporation X establishes an employee stock ownership 
plan that obtains a loan meeting the exemption requirements of section 
4975(d)(3). The loan proceeds are used by the plan to purchase the 100 
shares of qualified securities from A, B, and C, all of whom elect 
nonrecognition treatment under section 1042(a) with respect to the gain 
realized on their sale of such securities. Under the requirements of 
paragraph (a)(3) of this section, no part of the assets of the plan 
attributable to the 100 shares of qualified securities may accrue under 
the plan (or under any other plan or arrangement maintained by 
Corporation X) for the benefit of A or B or any person who is a member 
of the family of A or B (as determined under section 267(c)(4)). 
Furthermore, no other assets of the plan or assets of the employer may 
accrue for the benefit of such individuals in lieu of the receipt of 
assets attributable to such qualified securities.
    (d) A sale under section 1042(a) shall not include any sale of 
securities by a dealer or underwriter in the ordinary course of its 
trade or business as a dealer or underwriter, whether or not guaranteed.
    Q-3: What is the time and manner for making the election under 
section 1042(a)?
    A-3: (a) The election not to recognize the gain realized upon the 
sale of qualified securities to the extent provided under section 
1042(a) shall be made in a statement of election attached to the 
taxpayer's income tax return filed on or before the due date (including 
extensions of time) for the taxable year in which the sale occurs. If a 
taxpayer does not make a timely election under this section to obtain 
section 1042(a) nonrecognition treatment with respect to the sale of 
qualified securities, it may not subsequently make an election on an 
amended return or otherwise. Also, an election once made is irrevocable.
    (b) The statement of election shall provide that the taxpayer elects 
to treat the sale of securities as a sale of qualified securities under 
section

[[Page 171]]

1042(a), and shall contain the following information:
    (1) A description of the qualified securities sold, including the 
type and number of shares;
    (2) The date of the sale of the qualified securities;
    (3) The adjusted basis of the qualified securities;
    (4) The amount realized upon the sale of the qualified securities;
    (5) The identity of the employee stock ownership plan or eligible 
worker-owned cooperative to which the qualified securities were sold; 
and
    (6) If the sale was part of a single, interrelated transaction under 
a prearranged agreement between taxpayers involving other sales of 
qualified securities, the names and taxpayer identification numbers of 
the other taxpayers under the agreement and the number of shares sold by 
the other taxpayers. See Q&A-2 of this section.

If the taxpayer has purchased qualified replacement property at the time 
of the election, the taxpayer must attach as part of the statement of 
election a statement of purchase describing the qualified replacement 
property, the date of the purchase, and the cost of the property, and 
declaring such property to be the qualified replacement property with 
respect to the sale of qualified securities. Such statement of purchase 
must be notarized by the later of thirty days after the purchase or 
March 6, 1986. In addition, the statement of election must be 
accompanied by the verified written statement of consent required under 
Q&A-2 of this section with respect to the qualified securities sold.
    (c) If the taxpayer has not purchased qualified replacement property 
at the time of the filing of the statement of election, a timely 
election under this Q&A shall not be considered to have been made unless 
the taxpayer attaches the notarized statement of purchase described 
above to the taxpayer's income tax return filed for the taxable year 
following the year for which the election under section 1042(a) was 
made. Such notarized statement of purchase shall be filed with the 
district director or the director of the regional service center with 
whom such election was originally filed, if the return is not filed with 
such director.
    Q-4: What is the basis of qualified replacement property?
    A-4: If a taxpayer makes an election under section 1042(a), the 
basis of the qualified replacement property purchased by the taxpayer 
during the replacement period shall be reduced by an amount equal to the 
amount of gain which was not recognized. If more than one item of 
qualified replacement property is purchased, the basis of each of such 
items shall be reduced by an amount determined by multiplying the total 
gain not recognized by reason of the application of section 1042(a) by a 
fraction, the numerator of which is the cost of such item of property 
and the denominator of which is the total cost of all such items of 
property. For the rule regarding the holding period of qualified 
replacement property, see section 1223(13).
    Q-5: What is the statute of limitations for the assessment of a 
deficiency relating to the gain on the sale of qualified securities?
    A-5: (a) If any gain is realized by the taxpayer on the sale of any 
qualified securities and such gain has not been recognized under section 
1042(a) in accordance with the requirements of this section, the 
statutory period provided in section 6501(a) for the assessment of any 
deficiency with respect to such gain shall not expire prior to the 
expiration of 3 years from the date of receipt, by the district director 
or director of regional service center with whom the statement of 
election under 1042(a) was originally filed, of:
    (1) A notarized statement of purchase as described in Q&A-3
    (2) A written statement of the taxpayer's intention not to purchase 
qualified replacement property within the replacement period; or
    (3) A written statement of the taxpayer's failure to purchase 
qualified replacement property within the replacement period.

In those situations when a taxpayer is providing a written statement of 
an intention not to purchase or of a failure to purchase qualified 
replacement property, the statement shall be accompanied, where 
appropriate, by an amended return for the taxable year in

[[Page 172]]

which the gain from the sale of the qualified securities was realized, 
in order to reflect the inclusion in gross income for that year of gain 
required to be recognized in connection with such sale.
    (b) Any gain from the sale of qualified securities which is required 
to be recognized due to a failure to meet the requirements under section 
1042 shall be included in the gross income for the taxable year in which 
the gain was realized. If any gain from the sale of qualified securities 
is not recognized under section 1042(a) in accordance with the 
requirements of this section, any deficiency attributable to any portion 
of such gain may be assessed at any time before the expiration of the 3-
year period described in this Q&A, notwithstanding the provision of any 
law or rule of law which would otherwise prevent such assessment.
    Q-6: When does section 1042 become effective?
    A-6: Section 1042 applies to sales of qualified securities in 
taxable years of sellers beginning after July 18, 1984.

[T.D. 8073, 51 FR 4333, Feb. 4, 1986]



Sec. 1.1044(a)-1  Time and manner for making election under the Omnibus 
Budget Reconciliation Act of 1993.

    (a) Description. Section 1044(a), as added by section 13114 of the 
Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66, 107 Stat. 
430), generally allows individuals and C corporations that sell publicly 
traded securities after August 9, 1993, to elect not to recognize 
certain gain from the sale if the taxpayer purchases common stock or a 
partnership interest in a specialized small business investment company 
(SSBIC) within the 60-day period beginning on the date the publicly 
traded securities are sold.
    (b) Time and manner for making the election. The election under 
section 1044(a) must be made on or before the due date (including 
extensions) for the income tax return for the year in which the publicly 
traded securities are sold. The election is to be made by reporting the 
entire gain from the sale of publicly traded securities on Schedule D of 
the income tax return in accordance with instructions for Schedule D, 
and by attaching a statement to Schedule D showing--
    (1) How the nonrecognized gain was calculated;
    (2) The SSBIC in which common stock or a partnership interest was 
purchased;
    (3) The date the SSBIC stock or partnership interest was purchased; 
and
    (4) The basis of the SSBIC stock or partnership interest.
    (c) Revocability of election. The election described in this section 
is revocable with the consent of the Commissioner.
    (d) Effective date. The rules set forth in this section are 
effective December 12, 1996.

[T.D. 8688, 61 FR 65322, Dec. 12, 1996]

                              Special Rules



Sec. 1.1051-1  Basis of property acquired during affiliation.

    (a)(1) The basis of property acquired by a corporation during a 
period of affiliation from a corporation with which it was affiliated 
shall be the same as it would be in the hands of the corporation from 
which acquired. This rule is applicable if the basis of the property is 
material in determining tax liability for any year, whether a separate 
return or a consolidated return is made in respect of such year. For the 
purpose of this section, the term period of affiliation means the period 
during which such corporations were affiliated (determined in accordance 
with the law applicable thereto), but does not include any taxable year 
beginning on or after January 1, 1922, unless a consolidated return was 
made, nor any taxable year after the taxable year 1928.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example: The X Corporation, the Y Corporation, and the Z Corporation 
were affiliated for the taxable year 1920. During that year the X 
Corporation transferred assets to the Y Corporation for $120,000 cash, 
and the Y Corporation in turn transferred the assets during the same 
year to the Z Corporation for $130,000 cash. The assets were acquired by 
the X Corporation in 1916 at a cost of $100,000. The basis of the assets 
in the hands of the Z Corporation is $100,000.


[[Page 173]]


    (b) The basis of property acquired by a corporation during any 
period, in the taxable year 1929 or any subsequent taxable year, in 
respect of which a consolidated return was made or was required under 
the regulations governing the making of consolidated returns, shall be 
determined in accordance with such regulations. The basis in the case of 
property held by a corporation during any period, in the taxable year 
1929 or any subsequent taxable year, in respect of which a consolidated 
return is made or is required under the regulations governing the making 
of consolidated returns, shall be adjusted in respect of any items 
relating to such period in accordance with such regulations.
    (c) Except as otherwise provided in the regulations promulgated 
under section 1502 of the Internal Revenue Code of 1954 or the 
regulations under section 141 of the Internal Revenue Code of 1939 or 
the Revenue Act of 1938 (52 Stat. 447), 1936 (49 Stat. 1652), 1934 (48 
Stat. 683), 1932 (47 Stat. 169), or 1928 (45 Stat. 791), the basis of 
property after a consolidated return period shall be the same as the 
basis immediately prior to the close of such period.



Sec. 1.1052-1  Basis of property established by Revenue Act of 1932.

    Section 1052(a) provides that if property was acquired after 
February 28, 1913, in any taxable year beginning before January 1, 1934, 
and the basis of the property, for the purposes of the Revenue Act of 
1932 (47 Stat. 169), was prescribed by section 113(a) (6), (7), or (9) 
of that act, then for purposes of subtitle A of the Code, the basis 
shall be the same as the basis prescribed in the Revenue Act of 1932. 
For the rules applicable in determining the basis of stocks or 
securities under section 113(a)(9) of the Revenue Act of 1932 in case of 
certain distributions after December 31, 1923, and in any taxable year 
beginning before January 1, 1934, see 26 CFR (1939) 39.113 (a)(12)-1 
(Regulations 118).



Sec. 1.1052-2  Basis of property established by Revenue Act of 1934.

    Section 1052(b) provides that if property was acquired after 
February 28, 1913, in any taxable year beginning before January 1, 1936, 
and the basis of the property for the purposes of the Revenue Act of 
1934 (48 Stat. 683) was prescribed by section 113(a) (6), (7), or (8) of 
that act, then for purposes of subtitle A of the Code, the basis shall 
be the same as the basis prescribed in the Revenue Act of 1934. For 
example, if after December 31, 1920, and in any taxable year beginning 
before January 1, 1936, property was acquired by a corporation by the 
issuance of its stock or securities in connection with a transaction 
which is not described in section 112(b)(5) of the Internal Revenue Code 
of 1939 but which is described in section 112(b)(5) of the Revenue Act 
of 1934, the basis of the property so acquired shall be the same as it 
would be in the hands of the transferor, with proper adjustments to the 
date of the exchange.



Sec. 1.1052-3  Basis of property established by the Internal Revenue 
Code of 1939.

    Section 1052(c) provides that if property was acquired after 
February 28, 1913, in a transaction to which the Internal Revenue Code 
of 1939 applied and the basis thereof was prescribed by section 113(a) 
(6), (7), (8), (13), (15), (18), (19) or (23) of such Code, then for 
purposes of subtitle A of the Internal Revenue Code of 1954, the basis 
shall be the same as the basis prescribed in the Internal Revenue Code 
of 1939. In such cases, see section 113(a) of the Internal Revenue Code 
of 1939 and the regulations thereunder.



Sec. 1.1053-1  Property acquired before March 1, 1913.

    (a) Basis for determining gain. In the case of property acquired 
before March 1, 1913, the basis as of March 1, 1913, for determining 
gain is the cost or other basis, adjusted as provided in section 1016 
and other applicable provisions of chapter 1 of the Code, or its fair 
market value as of March 1, 1913, whichever is greater.
    (b) Basis for determining loss. In the case of property acquired 
before March 1, 1913, the basis as of March 1, 1913, for determining 
loss is the basis determined in accordance with part II (section 1011 
and following), subchapter O, chapter 1 of the Code, or other applicable 
provisions of chapter 1 of the Code,

[[Page 174]]

without reference to the fair market value as of March 1, 1913.
    (c) Example. The application of paragraphs (a) and (b) of this 
section may be illustrated by the following example:

    Example: (i) On March 1, 1908, a taxpayer purchased for $100,000, 
property having a useful life of 50 years. Assuming that there were no 
capital improvements to the property, the depreciation sustained on the 
property before March 1, 1913, was $10,000 (5 years @ $2,000), so that 
the original cost adjusted, as of March 1, 1913, for depreciation 
sustained prior to that date is $90,000. On that date the property had a 
fair market value of $94,500 with a remaining life of 45 years.
    (ii) For the purpose of determining gain from the sale or other 
disposition of the property on March 1, 1954, the basis of the property 
is the fair market value of $94,500 as of March 1, 1913, adjusted for 
depreciation allowed or allowable after February 28, 1913, computed on 
$94,500. Thus, the substituted basis, $94,500, is reduced by the 
depreciation adjustment from March 1, 1913, to February 28, 1954, in the 
aggregate of $86,100 (41 years @ $2,100), leaving an adjusted basis for 
determining gain of $8,400 ($94,500 less $86,100).
    (iii) For the purpose of determining loss from the sale or other 
disposition of such property on March 1, 1954, the basis of the property 
is its cost, adjusted for depreciation sustained before March 1, 1913, 
computed on cost, and the amount of depreciation allowed or allowable 
after February 28, 1913, computed on the fair market value of $94,500 as 
of March 1, 1913. In this example, the amount of depreciation sustained 
before March 1, 1913, is $10,000 and the amount of depreciation 
determined for the period after February 28, 1913, is $86,100. 
Therefore, the aggregate amount of depreciation for which the cost 
($100,000) should be adjusted is $96,100 ($10,000 plus $86,100), and the 
adjusted basis for determining loss on March 1, 1954, is $3,900 
($100,000 less $96,100).

    (d) Fair market value. The determination of the fair market value of 
property on March 1, 1913, is generally a question of fact and shall be 
established by competent evidence. In determining the fair market value 
of stock or other securities, due regard shall be given to the fair 
market value of the corporate assets as of such date, and other 
pertinent factors. In the case of property traded in on public 
exchanges, actual sales on or near the basic date afford evidence of 
value. In general, the fair market value of a block or aggregate of a 
particular kind of property is not to be determined by a forced-sale 
price, or by an estimate of what a whole block or aggregate would bring 
if placed upon the market at one and the same time. In such a case the 
value should be determined by ascertaining as the basis the fair market 
value of each unit of the property. All relevant facts and elements of 
value as of the basic date should be considered in each case.



Sec. 1.1054-1  Certain stock of Federal National Mortgage Association.

    (a) In general. The basis in the hands of the initial holder of a 
share of stock which is issued pursuant to section 303(c) of the Federal 
National Mortgage Association Charter Act (12 U.S.C., section 1718) in a 
taxable year beginning after December 31, 1959, shall be an amount equal 
to the issuance price of the stock reduced by the amount, if any, 
required by section 162(d) to be treated (with respect to such share) as 
an ordinary and necessary business expense. See section 162(d) and Sec. 
1.162-19. For purposes of this section the initial holder is the 
original purchaser who is issued stock of the Federal National Mortgage 
Association (FNMA) pursuant to section 303(c) of the Act and who appears 
on the books of FNMA as the initial holder. See Sec. 1.162-19.
    (b) Example. The provisions of this section may be illustrated by 
the following example:

    Example: Pursuant to section 303(c) of the Federal National Mortgage 
Association Charter Act a certificate of FNMA stock is issued to A as of 
January 1, 1961. The issuance price of the stock was $100 and the fair 
market value of the stock on the date of issue was $69. A was required 
by section 162(d) to treat $31 as a business expense for the year 1961. 
The basis of the share of stock in the hands of A, the initial holder, 
shall be $69, the amount paid for the stock ($100) reduced by $31.

[T.D. 6690, 28 FR 12254, Nov. 19, 1963]



Sec. 1.1055-1  General rule with respect to redeemable ground rents.

    (a) Character of a redeemable ground rent. For purposes of subtitle 
A of the Code (1) a redeemable ground rent (as defined in section 
1055(c) and paragraph (b) of this section) shall be treated as being in 
the nature of a mortgage, and (2) real property held subject to 
liabilities under such a redeemable ground

[[Page 175]]

rent shall be treated as held subject to liabilities under a mortgage. 
Thus, under section 1055(a) and this paragraph, the transfer of property 
subject to a redeemable ground rent has the same effect as the transfer 
of property subject to a mortgage, the acquisition of property subject 
to a redeemable ground rent is to be treated the same as the acquisition 
of property subject to a mortgage, and the holding of property subject 
to a redeemable ground rent is to be treated in the same manner as the 
holding of property subject to a mortgage. See section 163(c) for the 
treatment of any annual or periodic rental payment under a redeemable 
ground rent as interest.
    (b) Definition of redeemable ground rent. For purposes of subtitle A 
of the Code, the term redeemable ground rent means only a ground rent 
with respect to which all the following conditions are met:
    (1) There is a lease of land which is assignable by the lessee 
without the consent of the lessor.
    (2) The term of the lease is for a period in excess of 15 years, 
taking into account all periods for which the lease may be renewed at 
the option of the lessee.
    (3) The lessee has a present or future right to terminate the lease 
and to acquire the lessor's interest in the land (i.e., to redeem the 
ground rent) by the payment of a determined or determinable amount, 
which amount is referred to in Sec. Sec. 1.1055-2, 1.1055-3, and 
1.1055-4 as a redemption price. Such right must exist by virtue of State 
or local law. If the lessee's right to terminate the lease and to 
acquire the lessor's interest is not granted by State or local law but 
exists solely by virtue of a private agreement or privately created 
condition, the ground rent is not a redeemable ground rent.
    (4) The lessor's interest in the land subject to the lease is 
primarily a security interest to protect the payment to him of the 
annual or periodic rental payments due under the lease.
    (c) Effective date. In general, the provisions of section 1055 and 
paragraph (a) of this section take effect on April 11, 1963, and apply 
with respect to taxable years ending on or after such date. See Sec. 
1.1055-3 for rules for determining the basis of real property acquired 
subject to liabilities under a redeemable ground rent regardless of when 
such property was acquired. See also Sec. 1.1055-4 for rules for 
determining the basis of a redeemable ground rent in the hands of a 
holder who reserved or created such ground rent in connection with a 
transfer, occurring before April 11, 1963, of the right to hold real 
property subject to liabilities under such ground rent.

[T.D. 6821, 30 FR 6216, May 4, 1965]



Sec. 1.1055-2  Determination of amount realized on the transfer of the 
right to hold real property subject to liabilities under a redeemable 
ground rent.

    In determining the amount realized from a transfer, occurring on or 
after April 11, 1963, of the right to hold real property subject to 
liabilities under a redeemable ground rent, such ground rent shall be 
accounted for in the same manner as a mortgage for an amount of money 
equal to the redemption price of the ground rent. The provisions of this 
section apply in respect of any such transfer even though such ground 
rent was created prior to April 11, 1963. For provisions relating to the 
determination of the amount of and recognition of gain or loss from the 
sale or other disposition of property, see section 1001 and the 
regulations thereunder.

[T.D. 6821, 30 FR 6217, May 4, 1965]



Sec. 1.1055-3  Basis of real property held subject to liabilities under 
a redeemable ground rent.

    (a) In general. The provisions of section 1055(a) and paragraph (a) 
of Sec. 1.1055-1 are applicable in determining the basis of real 
property held on or after April 11, 1963, in any case where the property 
at the time of acquisition was subject to liabilities under a redeemable 
ground rent. (See section 1055(b)(2).) Thus, if on or after April 11, 
1963, a taxpayer holds real property which was subject to liabilities 
under a redeemable ground rent at the time he acquired it, the basis of 
such property in the hands of such taxpayer, regardless of when the 
property was acquired, will include the redeemable ground rent in the 
same manner as if it were a

[[Page 176]]

mortgage in an amount equal to the redemption price of such ground rent. 
Likewise, if on or after April 11, 1963, a taxpayer holds real property 
which was subject to liabilities under a redeemable ground rent at the 
time he acquired it and which has a substituted basis in his hands, the 
basis of the property in the hands of the taxpayer's predecessor in 
interest is to be determined by treating the redeemable ground rent in 
the same manner as a mortgage in an amount equal to the redemption price 
of such ground rent.
    (b) Illustrations. The provisions of this section may be illustrated 
by the following examples:

    Example 1. On April 11, 1963, taxpayer A held residential property 
which he acquired on January 15, 1963, for a purchase price of $10,000 
and which, at the time he acquired it, was subject to a ground rent 
redeemable for a redemption price of $1,600. A's basis for the property 
includes the purchase price ($10,000) plus the redeemable ground rent in 
the same manner as if it were a mortgage for $1,600.
    Example 2. In 1962, taxpayer X, a corporation, acquired real 
property subject to a redeemable ground rent in a transfer to which 
section 351 (relating to transfer of property to corporation controlled 
by transferor) applied and in which the basis of the property to X was 
the transferor's basis. X still held the property on April 11, 1963. The 
transferor's basis in the property is to be determined by treating the 
redeemable ground rent to which it was subject in the transferor's hands 
as if it were a mortgage.

[T.D. 6821, 30 FR 6217, May 4, 1965]



Sec. 1.1055-4  Basis of redeemable ground rent reserved or created in 
connection with transfers of real property before April 11, 1963.

    (a) In general. In the case of a redeemable ground rent created or 
reserved in connection with a transfer, occurring before April 11, 1963, 
of the right to hold real property subject to liabilities under such 
ground rent, the basis of such ground rent on or after April 11, 1963, 
in the hands of the person who reserved or created the ground rent is 
the amount which was taken into account in respect of such ground rent 
in computing the amount realized from the transfer of such real 
property. Thus, if no such amount was taken into account, such basis 
shall be determined without regard to section 1055. (See section 
1055(b)(3).)
    (b) The provisions of this section may be illustrated by the 
following examples:

    Example 1. The taxpayer, who was in the business of building houses, 
purchased an undeveloped lot of land for $500 and built a house thereon 
at a cost of $10,000. Subsequently, he transferred the right to hold the 
lot improved by the house for a consideration of $12,000, and an annual 
ground rent for such property of $120 which was redeemable for a 
redemption price of $2,000. The taxpayer reported a $2,000 gain on the 
transfer, treating the amount realized as $12,000 and his cost allocable 
to the interest transferred as $10,000. Since the builder did not take 
the redeemable ground rent into account in computing gain on the 
transfer, his basis for such ground rent is $500 (the cost of the land 
not offset against the consideration received for the transfer). Thus, 
if he subsequently sells the redeemable ground rent (or if it is 
redeemed from him) for $2,000, he has no gain of $1,500 in the year of 
sale (or redemption).
    Example 2. Assume the same facts as in Example 1 except that the 
builder reported a gain of $3,500 on the transfer, treating the amount 
realized as $14,000 ($12,000 cash plus $2,000 for the redeemable ground 
rent) and his costs as $10,500 ($10,000 for the house and $500 for the 
lot). Since the taxpayer took the entire amount of the redeemable ground 
rent into account in computing his gain, his basis for such ground rent 
is $2,000. Thus, if he subsequently sells the redeemable ground rent (or 
if it is redeemed from him) for $2,000, he has no gain or loss on the 
transaction.
    Example 3. Assume the same facts as in Example 1 except that the 
builder reported a gain of $3,000 on the transfer. He computed this gain 
by treating the amount realized as $12,000 but treating his cost 
allocable to the interest transferred as $12,000/$14,000ths of his total 
$10,500 cost, or $9,000. Since the builder still has remaining $1,500 of 
unallocated cost, his basis for the redeemable ground rent is $1,500. 
Thus, if he subsequently sells the redeemable ground rent (or if it is 
redeemed from him) for $2,000, he has a gain of $500 in the year of sale 
(or redemption).

[T.D. 6821, 30 FR 6217, May 4, 1965]



Sec. 1.1059(e)-1  Non-pro rata redemptions.

    (a) In general. Section 1059(d)(6) (exception where stock held 
during entire existence of corporation) and section 1059(e)(2) 
(qualifying dividends) do not apply to any distribution treated as an 
extraordinary dividend under section 1059(e)(1). For example, if a 
redemption

[[Page 177]]

of stock is not pro rata as to all shareholders, any amount treated as a 
dividend under section 301 is treated as an extraordinary dividend 
regardless of whether the dividend is a qualifying dividend.
    (b) Reorganizations. For purposes of section 1059(e)(1), any 
exchange under section 356 is treated as a redemption and, to the extent 
any amount is treated as a dividend under section 356(a)(2), it is 
treated as a dividend under section 301.
    (c) Effective date. This section applies to distributions announced 
(within the meaning of section 1059(d)(5)) on or after June 17, 1996.

[T.D. 8724, 62 FR 38028, July 16, 1997]



Sec. 1.1059A-1  Limitation on taxpayer's basis or inventory cost in 
property imported from related persons.

    (a) General rule. In the case of property imported into the United 
States in a transaction (directly or indirectly) by a controlled 
taxpayer from another member of a controlled group of taxpayers, except 
for the adjustments permitted by paragraph (c) (2) of this section, the 
amount of any costs taken into account in computing the basis or 
inventory cost of the property by the purchasing U.S. taxpayer and which 
costs are also taken into account in computing the valuation of the 
property for customs purposes may not, for purposes of the basis or 
inventory cost, be greater than the amount of the costs used in 
computing the customs value. For purposes of this section, the terms 
controlled taxpayer and group of controlled taxpayers shall have the 
meaning set forth in Sec. 1.482-1(a).
    (b) Definitions--(1) Import. For purposes of section 1059A and this 
section only, the term import means the filing of the entry 
documentation required by the U.S. Customs Service to secure the release 
of imported merchandise from custody of the U.S. Customs Service.
    (2) Indirectly. For purposes of this section, indirectly refers to a 
transaction between a controlled taxpayer and another member of the 
controlled group whereby property is imported through a person acting as 
an agent of, or otherwise on behalf of, either or both related persons, 
or as a middleman or conduit for transfer of the property between a 
controlled taxpayer and another member of the controlled group. In the 
case of the importation of property indirectly, an adjustment shall be 
permitted under paragraph (c)(2) of this section for a commission or 
markup paid to the person acting as agent, middleman, or conduit, only 
to the extent that the commission or markup: is otherwise properly 
included in cost basis or inventory cost; was actually incurred by the 
taxpayer and not remitted, directly or indirectly, to the taxpayer or 
related party; and there is a substantial business reason for the use of 
a middleman, agent, or conduit.
    (c) Customs value--(1) Definition. For purposes of this section 
only, the term customs value means the value required to be taken into 
account for purposes of determining the amount of any customs duties or 
any other duties which may be imposed on the importation of any 
property. Where an item or a portion of an item is not subject to any 
customs duty or is subject to a free rate of duty, such item or portion 
of such item shall not be subject to the provisions of section 1059A or 
this section. Thus, for example, the portion of an item that is an 
American good returned and not subject to duty (items 806.20 and 806.30, 
Tariff Schedules of the United States, 19 U.S.C. 1202); imports on which 
no duty is imposed that are valued by customs for statistical purposes 
only; and items subject to a zero rate of duty (19 U.S.C. 1202, General 
Headnote 3) are not subject to section 1059A or this section. Also, 
items subject only to the user fee under 19 U.S.C. 58(c), or the harbor 
maintenance tax imposed by 26 U.S.C. 4461, or only to both, are not 
subject to section 1059A or this section. This section imposes no 
limitation on a claimed basis or inventory cost in property which is 
less than the value used to compute the customs duty with respect to the 
same property. Section 1059A and this section have no application to 
imported property not subject to any customs duty based on value, 
including property subject only to a per item duty or a duty based on 
volume, because there is no customs value, within the meaning of this 
paragraph, with respect to such property.

[[Page 178]]

    (2) Adjustments to customs value. To the extent not otherwise 
included in customs value, a taxpayer, for purposes of determining the 
limitation on claimed basis or inventory cost of property under this 
section, may increase the customs value of imported property by the 
amounts incurred by it and properly included in inventory cost for--
    (i) Freight charges,
    (ii) Insurance charges,
    (iii) The construction, erection, assembly, or technical assistance 
provided with respect to, the property after its importation into the 
United States, and
    (iv) Any other amounts which are not taken into account in 
determining the customs value, which are not properly includible in 
customs value, and which are appropriately included in the cost basis or 
inventory cost for income tax purposes. See Sec. 1.471-11 and section 
263A.

Appropriate adjustments may also be made to customs values when the 
taxpayer has not allocated the value of assists to individual articles 
but rather has reported the value of assists on a periodic basis in 
accordance with 19 CFR 152.103(e). When 19 CFR 152.103(e) has been 
utilized for customs purposes, the taxpayer may adjust his customs 
values by allocating the value of the assists to all imported articles 
to which the assists relate. To the extent that an amount attributable 
to an adjustment permitted by this section is paid by a controlled 
taxpayer to another member of the group of controlled taxpayers, an 
adjustment is permitted under this section only to the extent that the 
amount incurred represents an arm's length charge within the meaning of 
Sec. 1.482-1(d)(3).
    (3) Offsets to adjustments. To the extent that a customs value is 
adjusted under paragraph (c)(2) of this section for purposes of 
calculating the limitation on claimed cost basis or inventory cost under 
this section, the amount of the adjustments must be offset (reduced) by 
amounts that properly reduce the cost basis of inventory and that are 
not taken into account in determining customs value, such as rebates and 
other reductions in the price actually incurred, effected between the 
purchaser and related seller after the date of importation of the 
property.
    (4) Application of section 1059A to property having dutiable and 
nondutiable portions. When an item of imported property is subiect to a 
duty upon the full value of the imported article, less the cost or value 
of American goods returned, and the taxpayer claims a basis or inventory 
cost greater than the customs value reported for the item, the claimed 
tax basis or inventory cost in the dutiable portion of the item is 
limited under section 1059A and this section to the customs value of the 
dutiable portion under paragraph (c)(1). The claimed tax basis or 
inventory cost in the nondutiable portion of the item is determined by 
multiplying the customs value of the nondutiable portion by a fraction 
the numerator of which is the amount by which the claimed basis or 
inventory cost of the item exceeds the customs value of the item and the 
denominator of which is the customs value of the item and adding this 
amount to the customs value of the nondutiable portion of the item. The 
claimed tax basis or inventory cost in the dutiable portion is 
determined by multiplying the customs value of the dutiable portion by a 
fraction the numerator of which is the amount by which the claimed basis 
or inventory cost of the item exceeds the customs value of the item and 
the denominator of which is the customs value of the item and adding 
this amount to the customs value of the dutiable portion of the item. 
However, the taxpayer may not claim a tax basis or inventory cost in the 
dutiable portion greater than the customs value of this portion of the 
item.
    (5) Allocation of adjustments to property having dutiable and 
nondutiable portions. When an item of imported property is subject to a 
duty upon the full value of the imported article, less the cost or value 
of American goods returned, and the taxpayer establishes that the 
customs value may be increased by adjustments permitted under paragraph 
(c)(2) of this section for purposes of the section 1059A limitation, the 
taxpayer's basis or inventory cost of the dutiable portion of the item 
is determined by multiplying the customs value of the dutiable portion

[[Page 179]]

times the percentage that the adjustments represent of the total customs 
value of the item and adding this amount to the customs value of the 
dutiable portion of the item. The taxpayer's basis or inventory cost of 
the nondutiable portion of the item is determined in the same manner. 
The amount so determined for the dutiable portion of the item is the 
section 1059A limitation for this portion of the item.
    (6) Alternative method of demonstrating compliance. In lieu of 
calculating all adjustments and offsets to adjustments to customs value 
for an item of property pursuant to paragraph (c) (2) and (3) of this 
section, a taxpayer may demonstrate compliance with this section and 
section 1059A by comparing costs taken into account in computing basis 
or inventory costs of the property and the costs taken into account in 
computing customs value at any time after importation, provided that in 
any such comparison the same costs are included both in basis or 
inventory costs and in customs value. If, on the basis of such 
comparison, the basis or inventory cost is equal to or less than the 
customs value, the taxpayer shall be deemed to have met the requirements 
of this section and section 1059A.
    (7) Relationship of section 1059A to section 482. Neither this 
section nor section 1059A limits in any way the authority of the 
Commissioner to increase or decrease the claimed basis or inventory cost 
under section 482 or any other appropriate provision of law. Neither 
does this section or section 1059A permit a taxpayer to adjust upward 
its cost basis or inventory cost for property appropriately determined 
under section 482 because such basis or inventory cost is less than the 
customs value with respect to such property.
    (8) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays 
$2,000 to Y for merchandise imported into the United States and an 
additional $150 for ocean freight and insurance. The customs value of 
the shipment is determined to be the amount actually paid by X ($2,000) 
and does not include the charges for ocean freight and insurance. For 
purposes of computing the limitation on its inventory cost for the 
merchandise under section 1059A and this section, X is permitted, under 
paragraph (c)(2) of this section, to increase the customs value ($2,000) 
by amounts it paid for ocean freight and insurance charges ($150). Thus, 
the inventory cost claimed by X in the merchandise may not exceed 
$2,150.
    Example 2. Assume the same facts as in Example 1 except that, 
subsequent to the date of importation of the merchandise, Y grants to X 
a rebate of $200 of the purchase price. At the time of sale, the rebate 
was contingent upon the volume of merchandise ultimately bought by X 
from Y. The value of the merchandise, for customs purposes, is not 
decreased by the rebate paid to X by Y. Therefore, the customs value, 
for customs purposes, of the merchandise remains the same ($2,000). For 
purposes of computing its inventory cost, X was permitted, under 
paragraph (c)(2) of this section, to increase the customs value for 
purposes of section 1059A of $2,000 by the amounts it paid for ocean 
freight and insurance charges ($150). However, under paragraph (c)(3) of 
this section, X is required to reduce the amount of the customs value by 
the lesser of the amount of the rebate or the amount of any positive 
adjustments to the original customs value. The inventory price claimed 
by X may not exceed $2,000 ($2,000 customs value, plus $150 
transportation adjustment, less $150 offsetting rebate adjustment). 
While X's limitation under section 1059A is $2,000, X may not claim a 
basis or inventory cost in the merchandise in excess of $1,950. See 
I.R.C. section 1012; and section 1.471-2.
    Example 3. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays 
$10,000 to Y for merchandise imported into the United States. The 
merchandise is composed, in part, of American goods returned. The 
customs value of the merchandise, on which a customs duty is imposed, is 
determined to be $8,000 ($10,000, the amount declared by X, less $2,000, 
the value of the American goods returned). For income tax purposes, X 
claims a cost basis in the merchandise of $11,000. None of the 
adjustments permitted by paragraph (c)(2) of this section is applicable. 
The portion of the merchandise constituting American goods returned 
represented 20 percent of the total customs value of the merchandise. 
Since the cost basis claimed by X for income tax purposes represents a 
10 percent increase over the customs valuation (before reduction for 
American goods returned), the claimed tax basis in the dutiable content 
is considered to be $8,800 and in the portion constituting American 
goods returned is $2,200. Since a customs duty was imposed only on the 
dutiable content of the merchandise, the limitation in section 1059A and 
this section is applicable only to the claimed tax basis in this portion 
of the merchandise. Accordingly, under

[[Page 180]]

paragraph (a) of this section, X is limited to a cost basis of $10,200 
in the merchandise. This amount represents a cost basis of $8,000 in the 
dutiable content and of $2,200 in the portion of the merchandise 
constituting American goods returned.
    Example 4. Assume the same facts as in Example 3 except that X 
establishes that it is entitled to increase its customs value by $1,000 
in adjustments permitted by paragraph (c)(2) of this section. Since the 
adjustments to customs value that X is entitled to under paragraph 
(c)(2) of this section are 10 percent of the customs value, for purposes 
of determining the limitation under section 1059A and this section, both 
the dutiable content and the portion of the merchandise constituting 
American goods returned shall be increased to an amount 10 percent 
greater than the respective values determined for customs purposes, or 
$8,800 for the dutiable content and $2,200 for the portion of the 
merchandise constituting American goods returned. Accordingly, under 
paragraph (a) of this section, X is limited to a cost basis of $11,000 
in the merchandise.
    Example 5. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays 
$10,000 to Y for merchandise imported into the United States. The 
customs value of the merchandise, on which a customs duty is imposed, is 
determined to be $10,000. Subsequent to the date of importation of the 
merchandise, Y grants to X a rebate of $1,000 of the purchase price. The 
value of the merchandise, for customs purposes, is not decreased by the 
rebate paid to X by Y. Notwithstanding the fact that X correctly 
reported and paid customs duty on a value of $10,000 and that its 
limitation on basis or inventory cost under this section is $10,000, X 
may not claim a basis or inventory cost in the merchandise in excess of 
$9,000. See I.R.C. section 1012; and section 1.471-2.
    Example 6. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays 
$5,000 to Y for merchandise imported into the United States. The 
merchandise is not subject to a customs duty or is subject to a free 
rate of duty and is valued by customs solely for statistical purposes. 
Accordingly, pursuant to paragraph (c)(1) of this section, the 
merchandise is not subject to the provisions of section 1059A or this 
section.
    Example 7. Assume the same facts as in Example 6, except that the 
merchandise is subject to a customs duty based on value and that the 
customs value (taking into account no costs other than the value of the 
goods) is determined to be $5,000. Assume further that the $5,000 
payment is only for the value of the goods, no other cost is reflected 
in that payment, and only the $5,000 payment to Y is reflected in X's 
inventory cost or basis prior to inclusion of any other amounts properly 
included in inventory or cost basis. Pursuant to paragraph (c)(6) of 
this section, X, by demonstrating these facts is deemed to meet the 
requirements of this section and section 1059A.
    Example 8. Corporation X, a United States taxpayer, and Y 
Corporation are members of a group of controlled corporations. X pays $9 
to Y for merchandise imported into the United States and an additional 
$1 for ocean freight. The customs value of the article does not include 
the $l paid for ocean freight. Furthermore, for customs purposes the 
value is calculated pursuant to computed value and is determined to be 
$8. For purposes of computing the limitation on its inventory cost for 
the article under section 1059A and this section, X is permitted, under 
paragraph (c)(2) of this section, to increase the customs value ($8) by 
the amount it paid for ocean freight ($1). Thus, the inventory cost 
claimed by X in the article may not exceed $9.

    (9) Averaged customs values. In cases of transactions in which (i) 
an appropriate transfer price is properly determined for tax purposes by 
reference to events occurring after importation, (ii) the value for 
customs purposes of one article is higher and of a second article is 
lower than the actual transaction values, (iii) the relevant articles 
have been appraised on the basis of a value estimated at the time of 
importation in accordance with customs regulations, and (iv) the entries 
have been liquidated upon importation, the section 1059A limitation on 
the undervalued article may be increased up to the amount of actual 
transaction value by the amount of the duty overpaid on the overvalued 
article times a fraction the numerator of which is ``1'' and the 
denominator of which is the rate of duty on the undervalued article. 
This paragraph (c)(9) applies exclusively to cases of property imported 
in transactions that are open for tax purposes in which the actual 
transaction value cannot be determined and the entry has been liquidated 
for customs purposes on the basis of a value estimated at the time of 
importation in accordance with customs regulations; in these cases, the 
property is appropriately valued for tax purposes by reference to a 
formula, in existence at the time of importation, based on subsequent 
events and valued for customs purposes by a different formula. This 
paragraph (c)(9) does not apply where customs value is correctly 
determined

[[Page 181]]

for purposes of liquidating the entry and where the customs value is 
subsequently adjusted for tax purposes, for example by a rebate, under 
paragraph (c)(2) of this section. The application of paragraph (c)(9) 
may be illustrated by the following example:

    Example: Corporation X, a United States taxpayer, and Y Corporation 
are members of a group of controlled corporations. X purchases Articles 
A and B from Y on consignment and imports the Articles into the United 
States. The purchase price paid by X will be determined as a percentage 
of the sale prices that X realizes. Rather than deferring liquidation, 
customs liquidates the entry on the basis of estimated values and the 
customs duties are paid by X. Ultimately, it is determined that Article 
A was undervalued and Article B was overvalued by X for customs 
purposes. The section 1059A limitation for Article A is computed as 
follows:

------------------------------------------------------------------------
                                                   Article A   Article B
------------------------------------------------------------------------
Finally-determined customs value................          $9          $9
Transaction value...............................         $10          $5
Duty rate.......................................         10%          5%
Customs duty paid...............................        $.90        $.45
Duty overpaid or (underpaid)....................      ($.10)        $.20
------------------------------------------------------------------------

    The section 1059A limitation on Article A may be increased by the 
amount of the duty over-paid on Article B, $.20, times 1/.10, up to the 
amount of the transaction value. Therefore, the section 1059A limitation 
on Article A is $9.00 plus $1.00, or a total of $10.00. The section 
1059A limitation on Article B is reduced (but never below transaction 
value) by $2.00 to $7.00.

    (d) Finality of customs value and of other determinations of the 
U.S. Customs Service. For purposes of section 1059A and this section, a 
taxpayer is bound by the finally-determined customs value and by every 
final determination made by the U.S. Customs Service, including, but not 
limited to, dutiable value, the value attributable to the cost or value 
of products of the United States, and classification of the product for 
purposes of imposing any duty. The customs value is considered to be 
finally determined, and all U.S. Customs Service determinations are 
considered final, when liquidation of the entry becomes final. For this 
purpose, the term liquidation means the ascertainment of the customs 
duties occurring on the entry of the property, and liquidation of the 
entry is considered to become final after 90 days following notice of 
liquidation to the importer, unless a protest is filed. If the importer 
files a protest, the customs value will be considered finally determined 
and all other U.S. Customs Service determinations will be considered 
final either when a decision by the Customs Service on the protest is 
not contested after expiration of the period allowed to contest the 
decision or when a judgment of the Court of International Trade becomes 
final. For purposes of this section, any adjustments to the customs 
value resulting from a petition under 19 U.S.C. section 1516 (requests 
by interested parties unrelated to the importer for redetermination of 
the appraised value, classification, or the rate of duty imposed on 
imported merchandise) or reliquidation under 19 U.S.C. section 1521 
(reliquidation by the Customs Service upon a finding that fraud was 
involved in the original liquidation) will not be taken into account. 
However, reliquidation under 19 U.S.C. section 1501 (voluntary 
reliquidation by the Customs Service within 90 days of the original 
liquidation to correct errors in appraisement, classification, or any 
element entering into a liquidation or reliquidation) or reliquidation 
under 19 U.S.C. section 1520(c)(1) (to correct a clerical error, mistake 
of fact, or other inadvertance within one year of a liquidation or 
reliquidation) will be taken into account in the same manner as, and 
take the place of, the original liquidation in determining customs 
value.
    (e) Drawbacks. For purposes of this section, a drawback, that is, a 
refund or remission (in whole or in part) of a customs duty because of a 
particular use made (or to be made) of the property on which the duty 
was assessed or collected, shall not affect the determination of the 
customs value of the property.
    (f) Effective date. Property imported by a taxpayer is subject to 
section 1059A and this section if the entry documentation required to be 
filed to obtain the release of the property from the custody of the 
United States Customs Service was filed after March 18, 1986. Section 
1059A and this section will not apply to imported property where (1) the 
entry documentation is filed prior to September 3, 1987; and (2) the

[[Page 182]]

importation was liquidated under the circumstances described in 
paragraph (c)(9) of this section.

[T.D. 8260, 54 FR 37311, Sept. 8, 1989]



Sec. 1.1060-1  Special allocation rules for certain asset acquisitions.

    (a) Scope--(1) In general. This section prescribes rules relating to 
the requirements of section 1060, which, in the case of an applicable 
asset acquisition, requires the transferor (the seller) and the 
transferee (the purchaser) each to allocate the consideration paid or 
received in the transaction among the assets transferred in the same 
manner as amounts are allocated under section 338(b)(5) (relating to the 
allocation of adjusted grossed-up basis among the assets of the target 
corporation when a section 338 election is made). In the case of an 
applicable asset acquisition described in paragraph (b)(1) of this 
section, sellers and purchasers must allocate the consideration under 
the residual method as described in Sec. Sec. 1.338-6 and 1.338-7 in 
order to determine, respectively, the amount realized from, and the 
basis in, each of the transferred assets. For rules relating to 
distributions of partnership property or transfers of partnership 
interests which are subject to section 1060(d), see Sec. 1.755-2T.
    (2) Effective date. The provisions of this section apply to any 
asset acquisition occurring after March 15, 2001. For rules applicable 
to asset acquisitions on or before March 15, 2001, see Sec. 1.1060-1T 
in effect prior to March 16, 2001 (see 26 CFR part 1 revised April 1, 
2000).
    (3) Outline of topics. In order to facilitate the use of this 
section, this paragraph (a)(3) lists the major paragraphs in this 
section as follows:

(a) Scope.
(1) In general.
(2) Effective date.
(3) Outline of topics.
(b) Applicable asset acquisition.
(1) In general.
(2) Assets constituting a trade or business.
(i) In general.
(ii) Goodwill or going concern value.
(iii) Factors indicating goodwill or going concern value.
(3) Examples.
(4) Asymmetrical transfers of assets.
(5) Related transactions.
(6) More than a single trade or business.
(7) Covenant entered into by the seller.
(8) Partial non-recognition exchanges.
(c) Allocation of consideration among assets under the residual method.
(1) Consideration.
(2) Allocation of consideration among assets.
(3) Certain costs.
(4) Effect of agreement between parties.
(d) Examples.
(e) Reporting requirements.
(1) Applicable asset acquisitions.
(i) In general.
(ii) Time and manner of reporting.
(A) In general.
(B) Additional reporting requirement.
(C) Election described in Sec. 1.338-6T(c)(5).
(2) Transfers of interests in partnerships.

    (b) Applicable asset acquisition--(1) In general. An applicable 
asset acquisition is any transfer, whether direct or indirect, of a 
group of assets if the assets transferred constitute a trade or business 
in the hands of either the seller or the purchaser and, except as 
provided in paragraph (b)(8) of this section, the purchaser's basis in 
the transferred assets is determined wholly by reference to the 
purchaser's consideration.
    (2) Assets constituting a trade or business--(i) In general. For 
purposes of this section, a group of assets constitutes a trade or 
business if--
    (A) The use of such assets would constitute an active trade or 
business under section 355; or
    (B) Its character is such that goodwill or going concern value could 
under any circumstances attach to such group.
    (ii) Goodwill or going concern value. Goodwill is the value of a 
trade or business attributable to the expectancy of continued customer 
patronage. This expectancy may be due to the name or reputation of a 
trade or business or any other factor. Going concern value is the 
additional value that attaches to property because of its existence as 
an integral part of an ongoing business activity. Going concern value 
includes the value attributable to the ability of a trade or business 
(or a part of a trade or business) to continue functioning or generating 
income without interruption notwithstanding a change in ownership. It 
also includes the value that is attributable to the immediate use or 
availability of an acquired trade or business, such as, for example, the 
use of the revenues or net earnings that otherwise would not be received 
during

[[Page 183]]

any period if the acquired trade or business were not available or 
operational.
    (iii) Factors indicating goodwill or going concern value. In making 
the determination in this paragraph (b)(2), all the facts and 
circumstances surrounding the transaction are taken into account. 
Whether sufficient consideration is available to allocate to goodwill or 
going concern value after the residual method is applied is not relevant 
in determining whether goodwill or going concern value could attach to a 
group of assets. Factors to be considered include--
    (A) The presence of any intangible assets (whether or not those 
assets are section 197 intangibles), provided, however, that the 
transfer of such an asset in the absence of other assets will not be a 
trade or business for purposes of section 1060;
    (B) The existence of an excess of the total consideration over the 
aggregate book value of the tangible and intangible assets purchased 
(other than goodwill and going concern value) as shown in the financial 
accounting books and records of the purchaser; and
    (C) Related transactions, including lease agreements, licenses, or 
other similar agreements between the purchaser and seller (or managers, 
directors, owners, or employees of the seller) in connection with the 
transfer.
    (3) Examples. The following examples illustrate paragraphs (b)(1) 
and (2) of this section:

    Example 1. S is a high grade machine shop that manufactures 
microwave connectors in limited quantities. It is a successful company 
with a reputation within the industry and among its customers for 
manufacturing unique, high quality products. Its tangible assets consist 
primarily of ordinary machinery for working metal and plating. It has no 
secret formulas or patented drawings of value. P is a company that 
designs, manufactures, and markets electronic components. It wants to 
establish an immediate presence in the microwave industry, an area in 
which it previously has not been engaged. P is acquiring assets of a 
number of smaller companies and hopes that these assets will 
collectively allow it to offer a broad product mix. P acquires the 
assets of S in order to augment its product mix and to promote its 
presence in the microwave industry. P will not use the assets acquired 
from S to manufacture microwave connectors. The assets transferred are 
assets that constitute a trade or business in the hands of the seller. 
Thus, P's purchase of S's assets is an applicable asset acquisition. The 
fact that P will not use the assets acquired from S to continue the 
business of S does not affect this conclusion.
    Example 2. S, a sole proprietor who operates a car wash, both leases 
the building housing the car wash and sells all of the car wash 
equipment to P. S's use of the building and the car wash equipment 
constitute a trade or business. P begins operating a car wash in the 
building it leases from S. Because the assets transferred together with 
the asset leased are assets which constitute a trade or business, P's 
purchase of S's assets is an applicable asset acquisition.
    Example 3. S, a corporation, owns a retail store business in State X 
and conducts activities in connection with that business enterprise that 
meet the active trade or business requirement of section 355. P is a 
minority shareholder of S. S distributes to P all the assets of S used 
in S's retail business in State X in complete redemption of P's stock in 
S held by P. The distribution of S's assets in redemption of P's stock 
is treated as a sale or exchange under sections 302(a) and 302(b)(3), 
and P's basis in the assets distributed to it is determined wholly by 
reference to the consideration paid, the S stock. Thus, S's distribution 
of assets constituting a trade or business to P is an applicable asset 
acquisition.
    Example 4. S is a manufacturing company with an internal financial 
bookkeeping department. P is in the business of providing a financial 
bookkeeping service on a contract basis. As part of an agreement for P 
to begin providing financial bookkeeping services to S, P agrees to buy 
all of the assets associated with S's internal bookkeeping operations 
and provide employment to any of S's bookkeeping department employees 
who choose to accept a position with P. In addition to selling P the 
assets associated with its bookkeeping operation, S will enter into a 
long term contract with P for bookkeeping services. Because assets 
transferred from S to P, along with the related contract for bookkeeping 
services, are a trade or business in the hands of P, the sale of the 
bookkeeping assets from S to P is an applicable asset acquisition.

    (4) Asymmetrical transfers of assets. A purchaser is subject to 
section 1060 if--
    (i) Under general principles of tax law, the seller is not treated 
as transferring the same assets as the purchaser is treated as 
acquiring;
    (ii) The assets acquired by the purchaser constitute a trade or 
business; and
    (iii) Except as provided in paragraph (b)(8) of this section, the 
purchaser's

[[Page 184]]

basis in the transferred assets is determined wholly by reference to the 
purchaser's consideration.
    (5) Related transactions. Whether the assets transferred constitute 
a trade or business is determined by aggregating all transfers from the 
seller to the purchaser in a series of related transactions. Except as 
provided in paragraph (b)(8) of this section, all assets transferred 
from the seller to the purchaser in a series of related transactions are 
included in the group of assets among which the consideration paid or 
received in such series is allocated under the residual method. The 
principles of Sec. 1.338-1(c) are also applied in determining which 
assets are included in the group of assets among which the consideration 
paid or received is allocated under the residual method.
    (6) More than a single trade or business. If the assets transferred 
from a seller to a purchaser include more than one trade or business, 
then, in applying this section, all of the assets transferred (whether 
or not transferred in one transaction or a series of related 
transactions and whether or not part of a trade or business) are treated 
as a single trade or business.
    (7) Covenant entered into by the seller. If, in connection with an 
applicable asset acquisition, the seller enters into a covenant (e.g., a 
covenant not to compete) with the purchaser, that covenant is treated as 
an asset transferred as part of a trade or business.
    (8) Partial non-recognition exchanges. A transfer may constitute an 
applicable asset acquisition notwithstanding the fact that no gain or 
loss is recognized with respect to a portion of the group of assets 
transferred. All of the assets transferred, including the non-
recognition assets, are taken into account in determining whether the 
group of assets constitutes a trade or business. The allocation of 
consideration under paragraph (c) of this section is done without taking 
into account either the non-recognition assets or the amount of money or 
other property that is treated as transferred in exchange for the non-
recognition assets (together, the non-recognition exchange property). 
The basis in and gain or loss recognized with respect to the non-
recognition exchange property are determined under such rules as would 
otherwise apply to an exchange of such property. The amount of the money 
and other property treated as exchanged for non-recognition assets is 
the amount by which the fair market value of the non-recognition assets 
transferred by one party exceeds the fair market value of the non-
recognition assets transferred by the other (to the extent of the money 
and the fair market value of property transferred in the exchange). The 
money and other property that are treated as transferred in exchange for 
the non-recognition assets (and which are not included among the assets 
to which section 1060 applies) are considered to come from the following 
assets in the following order: first from Class I assets, then from 
Class II assets, then from Class III assets, then from Class IV assets, 
then from Class V assets, then from Class VI assets, and then from Class 
VII assets. For this purpose, liabilities assumed (or to which a non-
recognition exchange property is subject) are treated as Class I assets. 
See Example 1 in paragraph (d) of this section for an example of the 
application of section 1060 to a single transaction which is, in part, a 
non-recognition exchange.
    (c) Allocation of consideration among assets under the residual 
method--(1) Consideration. The seller's consideration is the amount, in 
the aggregate, realized from selling the assets in the applicable asset 
acquisition under section 1001(b). The purchaser's consideration is the 
amount, in the aggregate, of its cost of purchasing the assets in the 
applicable asset acquisition that is properly taken into account in 
basis.
    (2) Allocation of consideration among assets. For purposes of 
determining the seller's amount realized for each of the assets sold in 
an applicable asset acquisition, the seller allocates consideration to 
all the assets sold by using the residual method under Sec. Sec. 1.338-
6 and 1.338-7, substituting consideration for ADSP. For purposes of 
determining the purchaser's basis in each of the assets purchased in an 
applicable asset acquisition, the purchaser allocates consideration to 
all the assets purchased by using the residual method under

[[Page 185]]

Sec. Sec. 1.338-6 and 1.338-7, substituting consideration for AGUB. In 
allocating consideration, the rules set forth in paragraphs (c)(3) and 
(4) of this section apply in addition to the rules in Sec. Sec. 1.338-6 
and 1.338-7.
    (3) Certain costs. The seller and purchaser each adjusts the amount 
allocated to an individual asset to take into account the specific 
identifiable costs incurred in transferring that asset in connection 
with the applicable asset acquisition (e.g., real estate transfer costs 
or security interest perfection costs). Costs so allocated increase, or 
decrease, as appropriate, the total consideration that is allocated 
under the residual method. No adjustment is made to the amount allocated 
to an individual asset for general costs associated with the applicable 
asset acquisition as a whole or with groups of assets included therein 
(e.g., non-specific appraisal fees or accounting fees). These latter 
amounts are taken into account only indirectly through their effect on 
the total consideration to be allocated. For further guidance, see Sec. 
1.1060-1T.
    (4) Effect of agreement between parties. If, in connection with an 
applicable asset acquisition, the seller and purchaser agree in writing 
as to the allocation of any amount of consideration to, or as to the 
fair market value of, any of the assets, such agreement is binding on 
them to the extent provided in this paragraph (c)(4). Nothing in this 
paragraph (c)(4) restricts the Commissioner's authority to challenge the 
allocations or values arrived at in an allocation agreement. This 
paragraph (c)(4) does not apply if the parties are able to refute the 
allocation or valuation under the standards set forth in Commissioner v. 
Danielson, 378 F.2d 771 (3d Cir.), cert. denied, 389 U.S. 858 (1967) (a 
party wishing to challenge the tax consequences of an agreement as 
construed by the Commissioner must offer proof that, in an action 
between the parties to the agreement, would be admissible to alter that 
construction or show its unenforceability because of mistake, undue 
influence, fraud, duress, etc.).
    (d) Examples. The following examples illustrate this section:

    Example 1. (i) On January 1, 2001, A transfers assets X, Y, and Z to 
B in exchange for assets D, E, and F plus $1,000 cash.
    (ii) Assume the exchange of assets constitutes an exchange of like-
kind property to which section 1031 applies. Assume also that goodwill 
or going concern value could under any circumstances attach to each of 
the DEF and XYZ groups of assets and, therefore, each group constitutes 
a trade or business under section 1060.
    (iii) Assume the fair market values of the assets and the amount of 
money transferred are as follows:

------------------------------------------------------------------------
                                                                  Fair
                             Asset                               market
                                                                  value
------------------------------------------------------------------------
By A:
  X...........................................................     $ 400
  Y...........................................................       400
  Z...........................................................       200
                                                               ---------
    Total.....................................................     1,000
                                                               =========
By B:
  D...........................................................        40
  E...........................................................        30
  F...........................................................        30
  Cash (amount)...............................................     1,000
                                                               ---------
    Total.....................................................     1,100
------------------------------------------------------------------------

    (iv) Under paragraph (b)(8) of this section, for purposes of 
allocating consideration under paragraph (c) of this section, the like-
kind assets exchanged and any money or other property that are treated 
as transferred in exchange for the like-kind property are excluded from 
the application of section 1060.
    (v) Since assets X, Y, and Z are like-kind property, they are 
excluded from the application of the section 1060 allocation rules.
    (vi) Since assets D, E, and F are like-kind property, they are 
excluded from the application of the section 1060 allocation rules. 
Thus, the allocation rules of section 1060 do not apply in determining 
B's gain or loss with respect to the disposition of assets D, E, and F, 
and the allocation rules of section 1060 and paragraph (c) of this 
section are not applied to determine A's bases of assets D, E, and F. In 
addition, $900 of the $1,000 cash B gave to A for A's like-kind assets 
(X, Y, and Z) is treated as transferred in exchange for the like-kind 
property in order to equalize the fair market values of the like-kind 
assets. Therefore, $900 of the cash is excluded from the application of 
the section 1060 allocation rules.
    (vii) $100 of the cash is allocated under section 1060 and paragraph 
(c) of this section.
    (viii) A received $100 that must be allocated under section 1060 and 
paragraph (c) of this section. Since A transferred no Class I, II, III, 
IV, V, or VI assets to which section 1060 applies, in determining its 
amount realized for the part of the exchange to which

[[Page 186]]

section 1031 does not apply, the $100 is allocated to Class VII assets 
(goodwill and going concern value).
    (ix) B gave A $100 that must be allocated under section 1060 and 
paragraph (c) of this section. Since B received from A no Class I, II, 
III, IV, V, or VI assets to which section 1060 applies, the $100 
consideration is allocated by B to Class VII assets (goodwill and going 
concern value).
    Example 2. (i) On January 1, 2001, S, a sole proprietor, sells to P, 
a corporation, a group of assets that constitutes a trade or business 
under paragraph (b)(2) of this section. S, who plans to retire 
immediately, also executes in P's favor a covenant not to compete. P 
pays S $3,000 in cash and assumes $1,000 in liabilities. Thus, the total 
consideration is $4,000.
    (ii) On the purchase date, P and S also execute a separate agreement 
that states that the fair market values of the Class II, Class III, 
Class V, and Class VI assets S sold to P are as follows:

------------------------------------------------------------------------
                                                                  Fair
        Asset  class                       Asset                 market
                                                                  value
------------------------------------------------------------------------
II.........................  Actively traded securities.......      $500
                                                               ---------
                                Total Class II................       500
                                                               =========
III........................  Accounts receivable..............       200
                                                               ---------
                                Total Class III...............       200
                                                               =========
V..........................  Furniture and fixtures...........       800
                             Building.........................       800
                             Land.............................       200
                             Equipment........................       400
                                                               ---------
                                Total Class V.................     2,200
                                                               =========
VI.........................  Covenant not to compete..........       900
                                                               ---------
                                Total Class VI................       900
------------------------------------------------------------------------

    (iii) P and S each allocate the consideration in the transaction 
among the assets transferred under paragraph (c) of this section in 
accordance with the agreed upon fair market values of the assets, so 
that $500 is allocated to Class II assets, $200 is allocated to the 
Class III asset, $2,200 is allocated to Class V assets, $900 is 
allocated to Class VI assets, and $200 ($4,000 total consideration less 
$3,800 allocated to assets in Classes II, III, V, and VI) is allocated 
to the Class VII assets (goodwill and going concern value).
    (iv) In connection with the examination of P's return, the 
Commissioner, in determining the fair market values of the assets 
transferred, may disregard the parties' agreement. Assume that the 
Commissioner correctly determines that the fair market value of the 
covenant not to compete was $500. Since the allocation of consideration 
among Class II, III, V, and VI assets results in allocation up to the 
fair market value limitation, the $600 of unallocated consideration 
resulting from the Commissioner's redetermination of the value of the 
covenant not to compete is allocated to Class VII assets (goodwill and 
going concern value).

    (e) Reporting requirements--(1) Applicable asset acquisitions--(i) 
In general. Unless otherwise excluded from this requirement by the 
Commissioner, the seller and the purchaser in an applicable asset 
acquisition each must report information concerning the amount of 
consideration in the transaction and its allocation among the assets 
transferred. They also must report information concerning subsequent 
adjustments to consideration.
    (ii) Time and manner of reporting--(A) In general. The seller and 
the purchaser each must file asset acquisition statements on Form 8594, 
``Asset Allocation Statement,'' with their income tax returns or returns 
of income for the taxable year that includes the first date assets are 
sold pursuant to an applicable asset acquisition. This reporting 
requirement applies to all asset acquisitions described in this section. 
For reporting requirements relating to asset acquisitions occurring 
before March 16, 2001, as described in paragraph (a)(2) of this section, 
see the temporary regulations under section 1060 in effect prior to 
March 16, 2001 (see 26 CFR part 1 revised April 1, 2000).
    (B) Additional reporting requirement. When an increase or decrease 
in consideration is taken into account after the close of the first 
taxable year that includes the first date assets are sold in an 
applicable asset acquisition, the seller and the purchaser each must 
file a supplemental asset acquisition statement on Form 8594 with the 
income tax return or return of income for the taxable year in which the 
increase (or decrease) is properly taken into account.
    (C) Allocation to certain nuclear decommissioning funds. [Reserved] 
For further guidance, see Sec. 1.338-6T.
    (2) Transfers of interests in partnerships. For reporting 
requirements relating to the transfer of a partnership interest, see 
Sec. 1.755-1(d).

[T.D. 8940, 66 FR 9954, Feb. 13, 2001, as amended by T.D. 9059, 68 FR 
34299, June 9, 2003; T.D. 9158, 69 FR 55742, Sept. 16, 2004]

[[Page 187]]



Sec. 1.1060-1T  Special allocation rules for certain asset acquisitions 
(temporary).

    (a) through (c)(2) [Reserved] For further guidance, see Sec. 
1.1060-1(a) through (c)(2).
    (c)(3) Certain costs. The seller and purchaser each adjusts the 
amount allocated to an individual asset to take into account the 
specific identifiable costs incurred in transferring that asset in 
connection with the applicable asset acquisition (e.g., real estate 
transfer costs or security interest perfection costs). Costs so 
allocated increase, or decrease, as appropriate, the total consideration 
that is allocated under the residual method. No adjustment is made to 
the amount allocated to an individual asset for general costs associated 
with the applicable asset acquisition as a whole or with groups of 
assets included therein (e.g., non-specific appraisal fees or accounting 
fees). These latter amounts are taken into account only indirectly 
through their effect on the total consideration to be allocated. If an 
election described in Sec. 1.338-6T(c)(5) is made with respect to an 
applicable asset acquisition, any allocation of costs pursuant to this 
paragraph (c)(3) shall be made as if such election had not been made. 
The preceding sentence applies to applicable asset acquisitions 
occurring on or after September 15, 2004.
    (c)(4) through (e)(1)(ii)(B) [Reserved] For further guidance, see 
Sec. 1.1060-1(c)(4) through (e)(1)(ii)(B).
    (e)(1)(ii)(C) Election described in Sec. 1.338-6T(c)(5)--(1) 
Availability. The election described in Sec. 1.338-6T(c)(5) is 
available in respect of an applicable asset acquisition provided that 
the requirements of that section are satisfied. Such election may be 
made by the seller, regardless of whether the purchaser also makes the 
election, and may be made by the purchaser, regardless of whether the 
seller also makes the election.
    (2) Time and manner of making election. The election described in 
Sec. 1.338-6T(c)(5) is made by taking a position on a timely filed 
original tax return for the taxable year of the applicable asset 
acquisition that is consistent with having made the election.
    (3) Irrevocability of election. The election described in Sec. 
1.338-6T(c)(5) is irrevocable.
    (4) Effective date. This paragraph (e)(1)(ii)(C) applies to 
applicable asset acquisitions occurring on or after September 15, 2004.
    (e)(2) [Reserved] For further guidance, see Sec. 1.1060-1(e)(2).

[T.D. 9158, 69 FR 55742, Sept. 16, 2004]

                   Changes To Effectuate F.C.C. Policy



Sec. 1.1071-1  Gain from sale or exchange to effectuate policies of 
Federal Communications Commission.

    (a)(1) At the election of the taxpayer, section 1071 postpones the 
recognition of the gain upon the sale or exchange of property if the 
Federal Communications Commission grants the taxpayer a certificate with 
respect to the ownership and control of radio broadcasting stations 
which is in accordance with subparagraph (2) of this paragraph. Any 
taxpayer desiring to obtain the benefits of section 1071 shall file such 
certificate with the Commissioner of Internal Revenue, or the district 
director for the internal revenue district in which the income tax 
return of the taxpayer is required to be filed.
    (2)(i) In the case of a sale or exchange before January 1, 1958, the 
certificate from the Federal Communications Commission must clearly 
identify the property and show that the sale or exchange is necessary or 
appropriate to effectuate the policies of such Commission with respect 
to the ownership and control of radio broadcasting stations.
    (ii) In the case of a sale or exchange after December 31, 1957, the 
certificate from the Federal Communications Commission must clearly 
identify the property and show that the sale or exchange is necessary or 
appropriate to effectuate a change in a policy of, or the adoption of a 
new policy by, such Commission with respect to the ownership and control 
of radio broadcasting stations.
    (3) The certificate shall be accompanied by a detailed statement 
showing the kind of property, the date of acquisition, the cost or other 
basis of the property, the date of sale or exchange, the name and 
address of the transferee, and the amount of money and the fair

[[Page 188]]

market value of the property other than money received upon such sale or 
exchange.
    (b) Section 1071 applies only in the case of a sale or exchange made 
necessary by reason of the Federal Communications Commission's policies 
as to ownership or control of radio facilities. Section 1071 does not 
apply in the case of a sale or exchange made necessary as a result of 
other matters, such as the operation of a broadcasting station in a 
manner determined by the Commission to be not in the public interest or 
in violation of Federal or State law.
    (c) An election to have the benefits of section 1071 shall be made 
in the manner prescribed in Sec. 1.1071-4.
    (d) For purposes of section 1071, the term radio broadcasting 
includes telecasting.



Sec. 1.1071-2  Nature and effect of election.

    (a) Alternative elections. (1) A taxpayer entitled to the benefits 
of section 1071 in respect of a sale or exchange of property may elect--
    (i) To treat such sale or exchange as an involuntary conversion 
under the provisions of section 1033; or
    (ii) To treat such sale or exchange as an involuntary conversion 
under the provisions of section 1033, and in addition elect to reduce 
the basis of property, in accordance with the regulations prescribed in 
Sec. 1.1071-3, by all or part of the gain that would otherwise be 
recognized under section 1033; or
    (iii) To reduce the basis of property, in accordance with the 
regulations prescribed in Sec. 1.1071-3, by all or part of the gain 
realized upon the sale or exchange.
    (2) The effect of the provisions of subparagraph (1) of this 
paragraph is, in general, to grant the taxpayer an election to treat the 
proceeds of the sale or exchange as the proceeds of an involuntary 
conversion subject to the provisions of section 1033, and a further 
election to reduce the basis of certain property owned by the taxpayer 
by the amount of the gain realized upon the sale or exchange to the 
extent of that portion of the proceeds which is not treated as the 
proceeds of an involuntary conversion.
    (3) An election in respect to a sale or exchange under section 1071 
shall be irrevocable and binding for the taxable year in which the sale 
or exchange takes place and for all subsequent taxable years.
    (b) Application of section 1033. (1) If the taxpayer elects, under 
either paragraph (a)(1) (i) or (ii) of this section, to treat the sale 
or exchange as an involuntary conversion, the provisions of section 
1033, as modified by section 1071, together with the regulations 
prescribed under such sections, shall be applicable in determining the 
amount of recognized gain and the basis of property required as a result 
of such sale or exchange. For the purposes of section 1071 and the 
regulations thereunder, stock of a corporation operating a radio 
broadcasting station shall be treated as property similar or related in 
service or use to the property sold or exchanged. Securities of such a 
corporation other than stock, or securities of a corporation not 
operating a radio broadcasting station, do not constitute property 
similar or related in service or use to the property sold or exchanged. 
If the taxpayer exercises the election referred to in paragraph 
(a)(1)(i) of this section, the gain realized upon such sale or exchange 
shall be recognized to the extent of that part of the money received 
upon the sale or exchange which is not expended in the manner prescribed 
in section 1033 and the regulations thereunder. If, however, the 
taxpayer exercises the elections referred to in paragraph (a)(1)(ii) of 
this section, the amount of the gain which would be recognized, 
determined in the same manner as in the case of an election under 
paragraph (a)(1)(i) of this section, shall not be recognized but shall 
be applied to reduce the basis of property, remaining in the hands of 
the taxpayer after such sale or exchange or acquired by him during the 
same taxable year, which is of a character subject to the allowance for 
depreciation under section 167. Such reduction of basis shall be made in 
accordance with and under the conditions prescribed by Sec. 1.1071-3.
    (2) In the application of section 1033 to determine the recognized 
gain and the basis of property acquired as a result of a sale or 
exchange pursuant to

[[Page 189]]

an election under paragraph (a)(1) (i) or (ii) of this section, the 
entire amount of the proceeds of such sale or exchange shall be taken 
into account.
    (c) Example. The application of the provisions of section 1071 may 
be illustrated by the following example:

    Example: A, who makes his return on a calendar year basis, sold in 
1954, for $100,000 cash, stock of X Corporation, which operates a radio 
broadcasting station. A's basis of this stock was $75,000. The sale was 
certified by the Federal Communications Commission as provided in 
section 1071. Soon after, in the same taxable year, A used $50,000 of 
the proceeds of the sale to purchase stock in Y Corporation, which 
operates a radio broadcasting station. A elected in his 1954 return to 
treat such sale and purchase as an involuntary conversion subject to the 
provisions of section 1033. He also elected at the same time to reduce 
the basis of depreciable property by the amount of the gain that 
otherwise would be recognized under the provisions of section 1033, as 
made applicable by section 1071. The sale results in a recognized gain 
of $25,000 under section 1033. However, this gain is not recognized in 
this case because the taxpayer elected to reduce the basis of other 
property by the amount of the gain. This may be shown as follows:

(1) Sale price of X Corporation stock..............             $100,000
Basis for gain or loss.............................               75,000
                                                    --------------------
  Gain realized....................................               25,000
                                                    ====================
Proceeds of sale...................................              100,000
Amount expended to replace property sold...........               50,000
                                                    --------------------
  Amount not expended in manner prescribed in                     50,000
   section 1033....................................
                                                    ====================
Realized gain, recognized under section 1033 (not                 25,000
 to exceed the unexpended portion of proceeds of
 sale).............................................
Less: Amount applied as a reduction of basis of                   25,000
 depreciable property..............................
                                                    --------------------
  Recognized gain for tax purposes.................                 None
 

    (2) The basis of Y Corporation stock in the hands of A is $50,000, 
computed in accordance with section 1033 and the regulations prescribed 
under that section. The $50,000 basis is computed as follows:

Basis of property sold (converted).................              $75,000
Less: Amount of proceeds not expended..............               50,000
                                                    --------------------
  Balance..........................................               25,000
Plus amount of gain recognized under section 1033..               25,000
                                                    --------------------
  Basis of Y Corporation stock in A's hands........               50,000
 



Sec. 1.1071-3  Reduction of basis of property pursuant to election under 
section 1071.

    (a) General rule. (1) In addition to the adjustments provided in 
section 1016 and other applicable provisions of chapter 1 of the Code 
which adjustments are required to be made with respect to the cost or 
other basis of property, a further adjustment shall be made in the 
amount of the unrecognized gain under section 1071, if the taxpayer so 
elects. Such further adjustment shall be made only with respect to the 
cost or other basis of property which is of a character subject to the 
allowance for depreciation under section 167 (whether or not used in 
connection with a broadcasting business), and which remains in the hands 
of the taxpayer immediately after the sale or exchange in respect of 
which the election is made, or which is acquired by the taxpayer in the 
same taxable year in which such sale or exchange occurs. If the property 
is in the hands of the taxpayer immediately after the sale or exchange, 
the time of reduction of the basis is the date of the sale or exchange; 
in all other cases the time of reduction of the basis is the date of 
acquisition.
    (2) The reduction of basis under section 1071 in the amount of the 
unrecognized gain shall be made in respect of the cost or other basis, 
as of the time prescribed, of all units of property of the specified 
character. The cost or other basis of each unit shall be decreased in an 
amount equal to such proportion of the unrecognized gain as the adjusted 
basis (for determining gain, determined without regard to this section) 
of such unit bears to the aggregate of such adjusted bases of all units 
of such property, but the amount of the decrease shall not be more than 
the amount of such adjusted basis. If in the application of such rule 
the adjusted basis of any unit is reduced to zero, the process shall be 
repeated to reduce the adjusted basis of the remaining units of property 
by the portion of the unrecognized gain which is not absorbed in the 
first application of the rule. For such purpose the adjusted basis of 
the remaining units shall be the adjusted basis for determining gain

[[Page 190]]

reduced by the amount of the adjustment previously made under this 
section. The process shall be repeated until the entire amount of the 
unrecognized gain has been absorbed.
    (3) The application of the provisions of this section may be 
illustrated by the following example:

    Example: Using the facts given in the example set forth in Sec. 
1.1071-2(c), except that the taxpayer elects to reduce the basis of 
depreciable property in accordance with paragraph (a)(1)(iii) of Sec. 
1.1071-2, the computation may be illustrated as follows:

Sale price of X Corporation stock..................             $100,000
Basis for gain or loss.............................               75,000
                                                    --------------------
Realized gain (recognized except for the election                $25,000
 under Sec.  1.1071-1)............................
                                                    ====================
Adjusted basis of other depreciable property in
 hands of A immediately after sale:
   Building........................................               80,000
   Transmitter.....................................               16,000
   Fixtures........................................                4,000
                                                    --------------------
     Total.........................................              100,000
                                                    ====================
Computation of reduction:
  Building (80,000/100,000)x$25,000 (gain).........               20,000
  Transmitter (16,000/100,000)x$25,000.............                4,000
  Fixtures (4,000/100,000)x$25,000.................                1,000
                                                    --------------------
    Total reduction................................               25,000
                                                    ====================
New basis of assets:
  Building ($80,000 minus $20,000).................               60,000
  Transmitter ($16,000 minus $4,000)...............               12,000
  Fixtures ($4,000 minus $1,000)...................                3,000
                                                    --------------------
    Total adjusted basis after reduction under                    75,000
     section 1071..................................
                                                    ====================
Realized gain upon sale of X Corporation stock.....               25,000
Less: Amount applied as a reduction to basis of                   25,000
 depreciable property..............................
                                                    --------------------
    Recognized gain for tax purposes...............                 None
 


    (b) Special cases. With the consent of the Commissioner, the 
taxpayer may, however, have the basis of the various units of property 
of the class specified in section 1071 and this section adjusted in a 
manner different from the general rule set forth in paragraph (a) of 
this section. Variations from such general rule may, for example, 
involve adjusting the basis of only certain units of such property. The 
request for variations from such general rule should be filed by the 
taxpayer with his return for the taxable year in which he elects to have 
the basis of property reduced under section 1071. Agreement between the 
taxpayer and the Commissioner as to any variations from such general 
rule shall be effective only if incorporated in a closing agreement 
entered into under the provisions of section 7121.



Sec. 1.1071-4  Manner of election.

    (a) An election under the provisions of section 1071 shall be in the 
form of a written statement and shall be executed and filed in 
duplicate. Such statement shall be signed by the taxpayer or his 
authorized representative. In the case of a corporation, the statement 
shall be signed with the corporate name, followed by the signature and 
title of an officer of the corporation empowered to sign for the 
corporation, and the corporate seal must be affixed. An election under 
section 1071 to reduce the basis of property and an election under such 
section to treat the sale or exchange as an involuntary conversion under 
section 1033 may be exercised independently of each other. An election 
under section 1071 must be filed with the return for the taxable year in 
which the sale or exchange occurs. Where practicable, the certificate of 
the Federal Communications Commission required by Sec. 1.1071-1 should 
be filed with the election.
    (b) If, in pursuance of an election to have the basis of its 
property adjusted under section 1071, the taxpayer desires to have such 
basis adjusted in any manner different from the general rule set forth 
in paragraph (a) of Sec. 1.1071-3, the precise method (including 
allocation of amounts) should be set forth in detail on separate sheets 
accompanying the election. Consent by the Commissioner to any departure 
from such general rule shall be effected only by a closing agreement 
entered into under the provisions of section 7121.

                 Exchanges in Obedience to S.E.C. Orders



Sec. 1.1081-1  Terms used.

    The following terms, when used in this section and Sec. Sec. 
1.1081-2 to 1.1083-1, inclusive, shall have the meanings assigned to 
them in section 1083: Order of the Securities and Exchange Commission;

[[Page 191]]

registered holding company; holding company system; associate company; 
majority-owned subsidiary company; system group; nonexempt property; and 
stock or securities. Any other term used in this section and Sec. Sec. 
1.1081-2 to 1.1083-1, inclusive, which is defined in the Internal 
Revenue Code of 1954, shall be given the respective definition contained 
in such Code.



Sec. 1.1081-2  Purpose and scope of exception.

    (a) The general rule is that the entire amount of gain or loss from 
the sale or exchange of property is to be recognized (see section 1002) 
and that the entire amount received as a dividend is to be included in 
gross income. (See sections 61 and 301.) Exceptions to the general rule 
are provided elsewhere in subchapters C and O, chapter 1 of the Code, 
one of which is that made by section 1081 with respect to exchanges, 
sales, and distributions specifically described in section 1081. Section 
1081 provides the extent to which gain or loss is not to be recognized 
on (1) the receipt of a distribution described in section 1081(c)(2), or 
(2) an exchange or sale, or the receipt of a distribution, made in 
obedience to an order of the Securities and Exchange Commission, which 
is issued to effectuate the provisions of section 11 (b) of the Public 
Utility Holding Company Act of 1935 (15 U.S.C. 79k (b)). Section 331 
provides that a distribution in liquidation of a corporation shall be 
treated as an exchange. Such distribution is to be treated as an 
exchange under the provisions of sections 1081 to 1083, inclusive. The 
order of the Securities and Exchange Commission must be one requiring or 
approving action which the Commission finds to be necessary or 
appropriate to effect a simplification or geographical integration of a 
particular public utility holding company system. For specific 
requirements with respect to an order of the Securities and Exchange 
Commission, see section 1081 (f).
    (b) The requirements for nonrecognition of gain or loss as provided 
in section 1081 are precisely stated with respect to the following 
general types of transactions:
    (1) The exchange that is provided for in section 1081 (a), in which 
stock or securities in a registered holding company or a majority-owned 
subsidiary company are exchanged for stock or securities.
    (2) The exchange that is provided for in section 1081 (b), in which 
a registered holding company or an associate company of a registered 
holding company exchanges property for property.
    (3) The distribution that is provided for in section 1081 (c)(1), in 
which stock or securities are distributed to a shareholder in a 
corporation which is a registered holding company or a majority-owned 
subsidiary company, or the distribution that is provided for in section 
1081 (c)(2), in which a corporation distributes to a shareholder, rights 
to acquire common stock in a second corporation.
    (4) The transfer that is provided for in section 1081 (d), in which 
a corporation which is a member of a system group transfers property to 
another member of the same system group.

Certain rules with respect to the receipt of nonexempt property on an 
exchange described in section 1081 (a) are prescribed in section 1081 
(e).
    (c) These exceptions to the general rule are to be strictly 
construed. Unless both the purpose and the specific requirements of 
sections 1081 to 1083, inclusive, are clearly met, the recognition of 
gain or loss upon the exchange, sale, or distribution will not be 
postponed under those sections. Moreover, even though a taxable 
transaction occurs in connection or simultaneously with a realization of 
gain or loss to which nonrecognition is accorded, nevertheless, 
nonrecognition will not be accorded to such taxable transaction. In 
other words, the provisions of section 1081 do not extend in any case to 
gain or loss other than that realized from and directly attributable to 
a disposition of property as such, or the receipt of a corporate 
distribution as such, in an exchange, sale, or distribution specifically 
described in section 1081.
    (d) The application of the provisions of part VI (section 1081 and 
following), subchapter O, chapter 1 of the Code, is intended to result 
only in postponing

[[Page 192]]

the recognition of gain or loss until a disposition of property is made 
which is not covered by such provisions, and, in the case of an exchange 
or sale subject to the provisions of section 1081 (b), in the reduction 
of basis of certain property. The provisions of section 1082 with 
respect to the continuation of basis and the reduction in basis are 
designed to effect these results. Although the time of recognition may 
be shifted, there must be a true reflection of income in all cases, and 
it is intended that the provisions of such part VI, shall not be 
construed or applied in such a way as to defeat this purpose.



Sec. 1.1081-3  Exchanges of stock or securities solely for stock or 
securities.

    The exchange, without the recognition of gain or loss, that is 
provided for in section 1081 (a) must be one in which stock or 
securities in a corporation which is a registered holding company or a 
majority-owned subsidiary company are exchanged solely for stock or 
securities other than stock or securities which constitute nonexempt 
property. An exchange is not within the provisions of section 1081 (a) 
unless the stock or securities transferred and those received are stock 
or securities as defined by section 1083 (f). The stock or securities 
which may be received without the recognition of gain or loss are not 
limited to stock or securities in the corporation from which they are 
received. An exchange within the provisions of section 1081 (a) may be a 
transaction between the holder of stock or securities and the 
corporation which issued the stock or securities. Also the exchange may 
be made by a holder of stock or securities with an associate company 
(i.e., a corporation in the same holding company system with the issuing 
corporation) which is a registered holding company or a majority-owned 
subsidiary company. In either case, the nonrecognition provisions of 
section 1081 (a) apply only to the holder of the stock or securities. 
However, the transferee corporation must be acting in obedience to an 
order of the Securities and Exchange Commission directed to such 
corporation, if no gain or loss is to be recognized to the holder of the 
stock or securities who makes the exchange with such corporation. See 
also section 1081(b), in case the holder of the stock or securities is a 
registered holding company or an associate company of a registered 
holding company. An exchange is not within the provisions of section 
1081(a) if it is within the provisions of section 1081(d), relating to 
transfers within a system group. For treatment when nonexempt property 
is received, see section 1081(e); for further limitations, see section 
1081(f).



Sec. 1.1081-4  Exchanges of property for property by corporations.

    (a) Application of section 1081(b). Section 1081(b) applies only to 
the transfers specified therein with respect to which section 1081(d) is 
inapplicable, and deals only with such transfers if gain is realized 
upon the sale or other disposition effected by such transfers. If loss 
is realized section 1081(b) is inapplicable and the application of other 
provisions of subtitle A of the Code must be determined. See section 
1081(g). If section 1081(b) is applicable, the other provisions of 
subchapters C and O, chapter 1 of the Code, relating to the 
nonrecognition of gain are inapplicable, and the conditions under which, 
and the extent to which, the realized gain is not recognized are set 
forth in paragraphs (b), (c), (d), (e), and (f) of this section.
    (b) Nonrecognition of gain; no nonexempt proceeds. No gain is 
recognized to a transferor corporation upon the sale or other 
disposition of property transferred by such transferor corporation in 
exchange solely for property other than nonexempt property, as defined 
in section 1083(e), but only if all of the following requirements are 
satisfied:
    (1) The transferor corporation is, under the definition in section 
1083 (b), a registered holding company or an associate company of a 
registered holding company;
    (2) Such transfer is in obedience to an order of the Securities and 
Exchange Commission (as defined in section 1083 (a)) and such order 
satisfies the requirements of section 1081 (f);
    (3) The transferor corporation has filed the required consent to the 
regulations under section 1082(a)(2) (see paragraph (g) of this 
section); and

[[Page 193]]

    (4) The entire amount of the gain, as determined under section 1001, 
can be applied in reduction of basis under section 1082(a)(2).
    (c) Nonrecognition of gain; nonexempt proceeds. If the transaction 
would be within the provisions of paragraph (b) of this section if it 
were not for the fact that the property received in exchange consists in 
whole or in part of nonexempt property (as defined in section 1083 (e)), 
then no gain is recognized if such nonexempt property, or an amount 
equal to the fair market value of such nonexempt property at the time of 
the transfer.
    (1) Is expended within the required 24-month period for property 
other than nonexempt property; or
    (2) Is invested within the required 24-month period as a 
contribution to the capital, or as paid-in surplus, of another 
corporation;

but only if the expenditure or investment is made
    (3) In accordance with an order of the Securities and Exchange 
Commission (as defined in section 1083 (a)) which satisfies the 
requirements of section 1081 (f) and which recites that such expenditure 
or investment by the transferor corporation is necessary or appropriate 
to the integration or simplification of the holding company system of 
which the transferor corporation is a member; and
    (4) The required consent, waiver, and bond have been executed and 
filed. See paragraphs (g) and (h) of this section.
    (d) Recognition of gain in part; insufficient expenditure or 
investment in case of nonexempt proceeds. If the transaction would be 
within the provisions of paragraph (c) of this section if it were not 
for the fact that the amount expended or invested is less than the fair 
market value of the nonexempt property received in exchange, then the 
gain, if any, is recognized, but in an amount not in excess of the 
amount by which the fair market value of such nonexempt property at the 
time of the transfer exceeds the amount so expended and invested.
    (e) Items treated as expenditures for the purpose of paragraphs (c) 
and (d) of this section. For the purposes of paragraphs (c) and (d) of 
this section, the following are treated as expenditures for property 
other than nonexempt property:
    (1) A distribution in cancellation or redemption (except a 
distribution having the effect of a dividend) of the whole or a part of 
the transferor's own stock (not acquired on the transfer);
    (2) A payment in complete or partial retirement or cancellation of 
securities representing indebtedness of the transferor or a complete or 
partial retirement or cancellation of such securities which is a part of 
the consideration for the transfer; and
    (3) If, on the transfer, a liability of the transferor is assumed, 
or property of the transferor is transferred subject to a liability, the 
amount of such liability.
    (f) Recognition of gain in part; inability to reduce basis. If the 
transaction would be within the provisions of paragraph (b) or (c) of 
this section, if it were not for the fact that an amount of gain cannot 
be applied in reduction of basis under section 1082(a)(2), then the 
gain, if any, is recognized, but in an amount not in excess of the 
amount which cannot be so applied in reduction of basis. If the 
transaction would be within the provisions of paragraph (d) of this 
section, if it were not for the fact that an amount of gain cannot be 
applied in reduction of basis under section 1082(a)(2), then the gain, 
if any, is recognized, but in an amount not in excess of the aggregate 
of--
    (1) The amount of gain which would be recognized under paragraph (d) 
of this section if there were no inability to reduce basis under section 
1082(a)(2); and
    (2) The amount of gain which cannot be applied in reduction of basis 
under section 1082(a)(2).
    (g) Consent to regulations under section 1082(a)(2). To be entitled 
to the benefits of the provisions of section 1081(b), a corporation must 
file with its return for the taxable year in which the transfer occurs a 
consent to have the basis of its property adjusted under section 
1082(a)(2) (see Sec. 1.1082-3), in accordance with the provisions of 
the regulations in effect at the time of filing of the return for the 
taxable year in which the transfer occurs. Such consent shall be made on 
Form 982 in accordance with

[[Page 194]]

these regulations and instructions on the form or issued therewith.
    (h) Requirements with respect to expenditure or investment. If the 
full amount of the expenditure or investment required for the 
application of paragraph (c) of this section has not been made by the 
close of the taxable year in which such transfer occurred, the taxpayer 
shall file with the return for such year an application for the benefit 
of the 24-month period for expenditure and investment, reciting the 
nature and time of the proposed expenditure or investment. When 
requested by the district director, the taxpayer shall execute and file 
(at such time and in such form) such waiver of the statute of 
limitations with respect to the assessment of deficiencies (for the 
taxable year of the transfer and for all succeeding taxable years in any 
of which falls any part of the period beginning with the date of the 
transfer and ending 24 months thereafter) as the district director may 
specify, and such bond with such surety as the district director may 
require, in an amount not in excess of double the estimated maximum 
income tax which would be payable if the corporation does not make the 
required expenditure or investment within the required 24-month period.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6751, 29 FR 
11356, Aug. 6, 1964; T.D. 7517, 42 FR 58935, Nov. 14, 1977]



Sec. 1.1081-5  Distribution solely of stock or securities.

    (a) In general. If, without any surrender of his stock or securities 
as defined in section 1083(f), a shareholder in a corporation which is a 
registered holding company or a majority-owned subsidiary company 
receives stock or securities in such corporation or owned by such 
corporation, no gain to the shareholder will be recognized with respect 
to the stock or securities received by such shareholder which do not 
constitute nonexempt property, if the distribution to such shareholder 
is made by the distributing corporation in obedience to an order of the 
Securities and Exchange Commission directed to such corporation. A 
distribution is not within the provisions of section 1081(c)(1) if it is 
within the provisions of section 1081(d), relating to transfers within a 
system group. A distribution is also not within the provisions of 
section 1081(c)(1) if it involves a surrender by the shareholder of 
stock or securities or a transfer by the shareholder of property in 
exchange for the stock or securities received by the shareholder. For 
further limitations, see section 1081(f).
    (b) Special rule. (1) If there is distributed to a shareholder in a 
corporation rights to acquire common stock in a second corporation, no 
gain to the shareholder from the receipt of the rights shall be 
recognized, but only if all the following requirements are met:
    (i) The rights are received by the shareholder without the surrender 
by the shareholder of any stock in the distributing corporation,
    (ii) Such distribution is in accordance with an arrangement forming 
a ground for an order of the Securities and Exchange Commission issued 
pursuant to section 3 of the Public Utility Holding Company Act of 1935 
(15 U. S. C. 79c) that the distributing corporation is exempt from any 
provision or provisions of such act, and
    (iii) Before January 1, 1958, the distributing corporation disposes 
of all the common stock in the second corporation which it owns.
    (2) The distributing corporation shall, as soon as practicable, 
notify the district director in whose district the corporation's income 
tax return and supporting data was filed (see paragraph (g) of Sec. 
1.1081-11), as to whether or not the requirement of subparagraph 
(1)(iii) of this paragraph has been met. If such requirement has not 
been met, the periods of limitation (sections 6501 and 6502) with 
respect to any deficiency, including interest and additions to the tax, 
resulting solely from the receipt of such rights to acquire stock, shall 
include one year immediately following the date of such notification; 
and assessment and collection shall be made notwithstanding any 
provisions of law or rule of law which would otherwise prevent such 
assessment and collection.

[[Page 195]]



Sec. 1.1081-6  Transfers within system group.

    (a) The nonrecognition of gain or loss provided for in section 
1081(d)(1) is applicable to an exchange of property for other property 
(including money and other nonexempt property) between corporations 
which are all members of the same system group. The term system group is 
defined in section 1083 (d).
    (b) Section 1081 (d)(1) also provides for nonrecognition of gain to 
a corporation which is a member of a system group if property (including 
money or other nonexempt property) is distributed to such corporation as 
a shareholder in a corporation which is a member of the same system 
group, without the surrender by such shareholder of stock or securities 
in the distributing corporation.
    (c) As stated in Sec. 1.1081-2, nonrecognition of gain or loss will 
not be accorded to a transaction not clearly provided for in part VI 
(section 1081 and following), subchapter O, chapter 1 of the Code, even 
though such transaction occurs simultaneously or in connection with an 
exchange, sale, or distribution to which nonrecognition is specifically 
accorded. Therefore, nonrecognition will not be accorded to any gain or 
loss realized from the discharge, or the removal of the burden, of the 
pecuniary obligations of a member of a system group, even though such 
obligations are acquired upon a transfer or distribution specifically 
described in section 1081 (d)(1); but the fact that the acquisition of 
such obligations was upon a transfer or distribution specifically 
described in section 1081 (d)(1) will, because of the basis provisions 
of section 1082 (d), affect the cost to the member of such discharge or 
its equivalent. Thus, section 1081 (d)(1) does not provide for the 
nonrecognition of any gain or loss realized from the discharge of the 
indebtedness of a member of a system group as the result of the 
acquisition in exchange, sale, or distribution of its own bonds, notes, 
or other evidences of indebtedness which were acquired by another member 
of the same system group for a consideration less or more than the 
issuing price thereof (with proper adjustments for amortization of 
premiums or discounts).
    (d) The provisions of paragraph (c) of this section may be 
illustrated by the following example:

    Example: Suppose that the A Corporation and the B Corporation are 
both members of the same system group; that the A Corporation holds at a 
cost of $900 a bond issued by the B Corporation at par, $1,000; and that 
the A Corporation and the B Corporation enter into an exchange subject 
to the provisions of section 1081 (d)(1) in which the $1,000 bond of the 
B Corporation is transferred from the A Corporation to the B 
Corporation. The $900 basis reflecting the cost to the A Corporation 
which would have been the basis available to the B Corporation if the 
property transferred to it had been something other than its own 
securities (see Sec. 1.1082-6) will, in this type of transaction, 
reflect the cost to the B Corporation of effecting a retirement of its 
own $1,000 bond. The $100 gain of the B Corporation reflected in the 
retirement will therefore be recognized.

    (e) No exchange or distribution may be made without the recognition 
of gain or loss as provided for in section 1081 (d)(1), unless all the 
corporations which are parties to such exchange or distribution are 
acting in obedience to an order of the Securities and Exchange 
Commission. If an exchange or distribution is within the provisions of 
section 1081 (d)(1) and also may be considered to be within some other 
provisions of section 1081, it shall be considered that only the 
provisions of section 1081 (d)(1) apply and that the nonrecognition of 
gain or loss upon such exchange or distribution is by virtue of that 
section.



Sec. 1.1081-7  Sale of stock or securities received upon exchange by 
members of system group.

    (a) Section 1081(d)(2) provides that to the extent that property 
received upon an exchange by corporations which are members of the same 
system group consists of stock or securities issued by the corporation 
from which such property was received, such stock or securities may, 
under certain specifically described circumstances, be sold to a party 
not a member of the system group, without the recognition of gain or 
loss to the selling corporation. The nonrecognition of gain or loss is 
limited, in the case of stock, to a sale of stock which is preferred as 
to both dividends and assets. The stock or securities must have been 
received upon

[[Page 196]]

an exchange with respect to which section 1081(d)(1) operated to prevent 
recognition of gain or loss to any party to the exchange. Nonrecognition 
of gain or loss upon the sale of such stock or securities is permitted 
only if the proceeds derived from the sale are applied in retirement or 
cancellation of stock or securities of the selling corporation which 
were outstanding at the time the exchange was made. It is also essential 
to nonrecognition of gain or loss upon the sale that both the sale of 
the stock or securities and the application of the proceeds derived 
therefrom be made in obedience to an order of the Securities and 
Exchange Commission. If any part of the proceeds derived from the sale 
is not applied in making the required retirement or cancellation of 
stock or securities and if the sale is otherwise within the provisions 
of section 1081 (d)(2), the gain resulting from the sale shall be 
recognized, but in an amount not in excess of the proceeds which are not 
so applied. In any event, if the proceeds derived from the sale of the 
stock or securities exceed the fair market value of such stock or 
securities at the time of the exchange through which they were acquired 
by the selling corporation, the gain resulting from the sale is to be 
recognized to the extent of such excess. Section 1081 (d)(2) does not 
provide for the nonrecognition of any gain resulting from the retirement 
of bonds, notes, or other evidences of indebtedness for a consideration 
less than the issuing price thereof. Also, that section does not provide 
for the nonrecognition of gain or loss upon the sale of any stock or 
securities received upon a distribution or otherwise than upon an 
exchange.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following example:

    Example: The X Corporation and the Y Corporation, both of which make 
their income tax returns on a calendar year basis, are members of the 
same system group. As part of an exchange to which section 1081 (d)(1) 
is applicable the Y Corporation on June 1, 1954, issued to the X 
Corporation 1,000 shares of class A stock, preferred as to both 
dividends and assets. The fair market value of such stock at the time of 
issuance was $90,000 and its basis to the X Corporation was $75,000. On 
December 1, 1954, in obedience to an appropriate order of the Securities 
and Exchange Commission, the X Corporation sells all of such stock to 
the public for $100,000 and applies $95,000 of this amount to the 
retirement of its own bonds, which were outstanding on June 1, 1954. The 
remaining $5,000 is not used to retire any of the X Corporation's stock 
or securities. Of the total gain of $25,000 realized on the disposition 
of the Y Corporation stock, only $10,000 is recognized (the difference 
between the fair market value of the stock when acquired and the amount 
for which it was sold), since such amount is greater than the portion 
($5,000) of the proceeds not applied to the retirement of the X 
Corporation's stock or securities. If in this example the stock acquired 
by the X Corporation had not been stock of the Y Corporation issued to 
the X Corporation or if it had been stock not preferred as to both 
dividends and assets, the full amount of the gain ($25,000) realized 
upon its disposition would have been recognized, regardless of what was 
done with the proceeds.



Sec. 1.1081-8  Exchanges in which money or other nonexempt property is 
received.

    (a) Under section 1081(e)(1), if in any exchange (not within any of 
the provisions of section 1081(d)) in which stock or securities in a 
corporation which is a registered holding company or a majority-owned 
subsidiary are exchanged for stock or securities as provided for in 
section 1081 (a), there is received by the taxpayer money or other 
nonexempt property (in addition to property permitted to be received 
without recognition of gain), then--
    (1) The gain, if any, to the taxpayer is to be recognized in an 
amount not in excess of the sum of the money and the fair market value 
of the other nonexempt property, but
    (2) The loss, if any, to the taxpayer from such an exchange is not 
to be recognized to any extent.
    (b) If money or other nonexempt property is received from a 
corporation in an exchange described in paragraph (a) of this section 
and if the distribution of such money or other nonexempt property by or 
on behalf of such corporation has the effect of the distribution of a 
taxable dividend, then, as provided in section 1081 (e)(2), there shall 
be taxed to each distributee (1) as a dividend, such an amount of the 
gain recognized on the exchange as is not in excess of the distributee's 
ratable share of the undistributed earnings and profits of the 
corporation accumulated

[[Page 197]]

after February 28, 1913, and (2) the remainder of the gain so recognized 
shall be taxed as a gain from the exchange of property.



Sec. 1.1081-9  Requirements with respect to order of Securities and 
Exchange Commission.

    The term order of the Securities and Exchange Commission is defined 
in section 1083(a). In addition to the requirements specified in that 
definition, section 1081(f) provides that, except in the case of a 
distribution described in section 1081(c)(2), the provisions of section 
1081 shall not apply to an exchange, expenditure, investment, 
distribution, or sale unless each of the following requirements is met:
    (a) The order of the Securities and Exchange Commission must recite 
that the exchange, expenditure, investment, distribution, or sale is 
necessary or appropriate to effectuate the provisions of section 11(b) 
of the Public Utility Holding Company Act of 1935 (15 U. S. C. 79k (b)).
    (b) The order shall specify and itemize the stocks and securities 
and other property (including money) which are ordered to be acquired, 
transferred, received, or sold upon such exchange, acquisition, 
expenditure, distribution, or sale and, in the case of an investment, 
the investment to be made, so as clearly to identify such property.
    (c) The exchange, acquisition, expenditure, investment, 
distribution, or sale shall be made in obedience to such order and shall 
be completed within the time prescribed in such order.

These requirements were not designed merely to simplify the 
administration of the provisions of section 1081, and they are not to be 
considered as pertaining only to administrative matters. Each one of the 
three requirements is essential and must be met if gain or loss is not 
to be recognized upon the transaction.



Sec. 1.1081-10  Nonapplication of other provisions of the Internal 
Revenue Code of 1954.

    The effect of section 1081(g) is that an exchange, sale, or 
distribution which is within section 1081 shall, with respect to the 
nonrecognition of gain or loss and the determination of basis, be 
governed only by the provisions of part VI (section 1081 and following), 
subchapter O, chapter 1 of the Code, the purpose being to prevent 
overlapping of those provisions and other provisions of subtitle A of 
the Code. In other words, if by virtue of section 1081 any portion of a 
person's gain or loss on any particular exchange, sale, or distribution 
is not to be recognized, then the gain or loss of such person shall be 
nonrecognized only to the extent provided in section 1081, regardless of 
what the result might have been if part VI (section 1081 and following), 
subchapter O, chapter 1 of the Code, had not been enacted; and 
similarly, the basis in the hands of such person of the property 
received by him in such transaction shall be the basis provided by 
section 1082, regardless of what the basis of such property might have 
been under section 1011 if such part VI had not been enacted. On the 
other hand, if section 1081 does not provide for the nonrecognition of 
any portion of a person's gain or loss (whether or not such person is 
another party to the same transaction referred to above), then the gain 
or loss of such person shall be recognized or nonrecognized to the 
extent provided for by other provisions of subtitle A of the Code as if 
such part VI had not been enacted; and similarly, the basis in his hands 
of the property received by him in such transaction shall be the basis 
provided by other provisions of subtitle A of the Code as if such part 
VI had not been enacted.



Sec. 1.1081-11  Records to be kept and information to be filed with 
returns.

    (a) Exchanges; holders of stock or securities. Every holder of stock 
or securities who receives stock or securities and other property 
(including money) upon an exchange shall, if the exchange is made with a 
corporation acting in obedience to an order of the Securities and 
Exchange Commission, file as a part of his income tax return for the 
taxable year in which the exchange takes place a complete statement of 
all facts pertinent to the nonrecognition of gain or loss upon such 
exchange, including--
    (1) A clear description of the stock or securities transferred in 
the exchange,

[[Page 198]]

together with a statement of the cost or other basis of such stock or 
securities.
    (2) The name and address of the corporation from which the stock or 
securities were received in the exchange.
    (3) A statement of the amount of stock or securities and other 
property (including money) received from the exchange. The amount of 
each kind of stock or securities and other property received shall be 
set forth upon the basis of the fair market value thereof at the date of 
the exchange.
    (b) Exchanges; corporations subject to S.E.C. orders. Each 
corporation which is a party to an exchange made in obedience to an 
order of the Securities and Exchange Commission directed to such 
corporation shall file as a part of its income tax return for its 
taxable year in which the exchange takes place a complete statement of 
all facts pertinent to the nonrecognition of gain or loss upon such 
exchange, including--
    (1) A copy of the order of the Securities and Exchange Commission 
directed to such corporation, in obedience to which the exchange was 
made.
    (2) A certified copy of the corporate resolution authorizing the 
exchange.
    (3) A clear description of all property, including all stock or 
securities, transferred in the exchange, together with a complete 
statement of the cost or other basis of each class of property.
    (4) The date of acquisition of any stock or securities transferred 
in the exchange, and, if any of such stock or securities were acquired 
by the corporation in obedience to an order of the Securities and 
Exchange Commission, a copy of such order.
    (5) The name and address of all persons to whom any property was 
transferred in the exchange.
    (6) If any property transferred in the exchange was transferred to 
another corporation, a copy of any order of the Securities and Exchange 
Commission directed to the other corporation, in obedience to which the 
exchange was made by such other corporation.
    (7) If the corporation transfers any nonexempt property, the amount 
of the undistributed earnings and profits of the corporation accumulated 
after February 28, 1913, to the time of the exchange, computed in 
accordance with the last sentence in paragraph (b) of Sec. 1.316-2.
    (8) A statement of the amount of stock or securities and other 
property (including money) received upon the exchange, including a 
statement of all distributions or other dispositions made thereof. The 
amount of each kind of stock or securities and other property received 
shall be stated on the basis of the fair market value thereof at the 
date of the exchange.
    (9) A statement showing as to each class of its stock the number of 
shares and percentage owned by any other corporation, the voting rights 
and voting power, and the preference (if any) as to both dividends and 
assets.
    (10) The term exchange shall, whenever occurring in this paragraph, 
be read as exchange, expenditure, or investment.
    (c) Distributions; shareholders. Each shareholder who receives stock 
or securities or other property (including money) upon a distribution 
made by a corporation in obedience to an order of the Securities and 
Exchange Commission shall file as a part of his income tax return for 
the taxable year in which such distribution is received a complete 
statement of all facts pertinent to the nonrecognition of gain upon such 
distribution, including--
    (1) The name and address of the corporation from which the 
distribution is received.
    (2) A statement of the amount of stock or securities or other 
property received upon the distribution, including (in case the 
shareholder is a corporation) a statement of all distributions or other 
disposition made of such stock or securities or other property by the 
shareholder. The amount of each class of stock or securities and each 
kind of property shall be stated on the basis of the fair market value 
thereof at the date of the distribution.
    (3) If the shareholder is a corporation, a statement showing as to 
each class of its stock the number of shares and percentage owned by a 
registered holding company or a majority-owned subsidiary company of a 
registered holding company, the voting rights and voting power, and the 
preference (if any) as to both dividends and assets.

[[Page 199]]

    (d) Distributions; distributing corporations subject to S.E.C. 
orders. Every corporation making a distribution in obedience to an order 
of the Securities and Exchange Commission shall file as a part of its 
income tax return for its taxable year in which the distribution is made 
a complete statement of all facts pertinent to the nonrecognition of 
gain to the distributee upon such distribution including--
    (1) A copy of the order of the Securities and Exchange Commission, 
in obedience to which the distribution was made.
    (2) A certified copy of the corporate resolution authorizing the 
distribution.
    (3) A statement of the amount of stock or securities or other 
property (including money) distributed to each shareholder. The amount 
of each kind of stock or securities or other property shall be stated on 
the basis of the fair market value thereof at the date of the 
distribution.
    (4) The date of acquisition of the stock or securities distributed, 
and, if any of such stock or securities were acquired by the 
distributing corporation in obedience to an order of the Securities and 
Exchange Commission, a copy of such order.
    (5) The amount of the undistributed earnings and profits of the 
corporation accumulated after February 28, 1913, to the time of the 
distribution, computed in accordance with the last sentence in paragraph 
(b) of Sec. 1.316-2.
    (6) A statement showing as to each class of its stock the number of 
shares and percentage owned by any other corporation, the voting rights 
and voting power, and the preference (if any) as to both dividends and 
assets.
    (e) Sales by members of system groups. Each corporation which is a 
member of a system group and which in obedience to an order of the 
Securities and Exchange Commission sells stock or securities received 
upon an exchange (made in obedience to an order of the Securities and 
Exchange Commission) and applies the proceeds derived therefrom in 
retirement or cancellation of its own stock or securities shall file as 
a part of its income tax return for the taxable year in which the sale 
is made a complete statement of all facts pertaining to the 
nonrecognition of gain or loss upon such sale, including--
    (1) A copy of the order of the Securities and Exchange Commission in 
obedience to which the sale was made.
    (2) A copy of the order of the Securities and Exchange Commission in 
obedience to which the proceeds derived from the sale were applied in 
whole or in part in the retirement or cancellation of its stock or 
securities.
    (3) A certified copy of the corporate resolutions authorizing the 
sale of the stock or securities and the application of the proceeds 
derived therefrom.
    (4) A clear description of the stock or securities sold, including 
the name and address of the corporation by which they were issued.
    (5) The date of acquisition of the stock or securities sold, 
together with a statement of the fair market value of such stock or 
securities at the date of acquisition, and a copy of all orders of the 
Securities and Exchange Commission in obedience to which such stock or 
securities were acquired.
    (6) The amount of the proceeds derived from such sale.
    (7) The portion of the proceeds of such sale which was applied in 
retirement or cancellation of its stock or securities, together with a 
statement showing how long such stock or securities were outstanding 
prior to retirement or cancellation.
    (8) The issuing price of its stock or securities which were retired 
or canceled.
    (f) Section 1081 (c)(2) distributions; shareholders. Each 
shareholder who receives a distribution described in section 1081 (c)(2) 
(concerning rights to acquire common stock) shall file as a part of his 
income tax return for the taxable year in which such distribution is 
received a complete statement of all the facts pertinent to the 
nonrecognition of gain upon such distribution, including--
    (1) The name and address of the corporation from which the 
distribution is received.
    (2) A statement of the amount of the rights received upon the 
distribution, stated on the basis of their fair market value at the date 
of the distribution.

[[Page 200]]

    (g) Section 1081 (c)(2) distributions; distributing corporations. 
Every corporation making a distribution described in section 1081(c)(2) 
(concerning rights to acquire common stock) shall file as a part of its 
income tax return for its taxable year in which the distribution is made 
a complete statement of all facts pertinent to the nonrecognition of 
gain to the distributees upon such distribution including--
    (1) A copy of the arrangement forming the basis for the issuance of 
the order by the Securities and Exchange Commission.
    (2) A copy of the order issued by the Securities and Exchange 
Commission pursuant to section 3 of the Public Utility Holding Company 
Act of 1935 (15 U.S.C. 79c).
    (3) A certified copy of the corporate resolution authorizing the 
arrangement and the distribution.
    (4) A statement of the amount of the rights distributed to each 
shareholder, stated on the basis of their fair market value at the date 
of the distribution.
    (5) The date of acquisition of the stock with respect to which such 
rights are distributed, and if any were acquired by the distributing 
corporation in obedience to an order of the Securities and Exchange 
Commission, a copy of such order.
    (6) The amount of the undistributed earnings and profits of the 
distributing corporation accumulated after February 28, 1913, to the 
time of the distribution computed in accordance with the last sentence 
in paragraph (b) of Sec. 1.316-2.
    (h) General requirements. Permanent records in substantial form 
shall be kept by every taxpayer who participates in an exchange or 
distribution to which sections 1081 to 1083, inclusive, are applicable, 
showing the cost or other basis of the property transferred and the 
amount of stock or securities and other property (including money) 
received, in order to facilitate the determination of gain or loss from 
a subsequent disposition of such stock or securities and other property 
received on the exchange or distribution.



Sec. 1.1082-1  Basis for determining gain or loss.

    (a) For determining the basis of property acquired in a taxable year 
beginning before January 1, 1942, in any manner described in section 372 
of the Internal Revenue Code of 1939 prior to its amendment by the 
Revenue Act of 1942 (56 Stat. 798), see such section (before its 
amendment by such Act).
    (b) If the property was acquired in a taxable year beginning after 
December 31, 1941, in any manner described in section 1082 (other than 
subsection (a)(2)), or section 372 (other than subsection (a)(2)) of the 
Internal Revenue Code of 1939 after its amendments, the basis shall be 
that prescribed in section 1082 with respect to such property. However, 
in the case of property acquired in a transaction described in section 
1081(c)(2), this paragraph is applicable only if the property was 
acquired in a distribution made in a taxable year subject to the 
Internal Revenue Code of 1954.
    (c) Section 1082 makes provisions with respect to the basis of 
property acquired in a transfer in connection with which the recognition 
of gain or loss is prohibited by the provisions of section 1081 with 
respect to the whole or any part of the property received. In general, 
and except as provided in Sec. 1.1082-3, it is intended that the basis 
for determining gain or loss pertaining to the property prior to its 
transfer, as well as the basis for determining the amount of 
depreciation or depletion deductible and the amount of earnings or 
profits available for distribution, shall continue notwithstanding the 
nontaxable conversion of the asset in form or its change in ownership. 
The continuance of the basis may be reflected in a shift thereof from 
one asset to another in the hands of the same owner, or in its transfer 
with the property from one owner into the hands of another. See also 
Sec. 1.1081-2.



Sec. 1.1082-2  Basis of property acquired upon exchanges under section 
1081 (a) or (e).

    (a) In the case of an exchange of stock or securities for stock or 
securities as described in section 1081 (a), if no part of the gain or 
loss upon such exchange was recognized under section

[[Page 201]]

1081, the basis of the property acquired is the same as the basis of the 
property transferred by the taxpayer with proper adjustments to the date 
of the exchange.
    (b) If, in an exchange of stock or securities as described in 
section 1081 (a), gain to the taxpayer was recognized under section 1081 
(e) on account of the receipt of money, the basis of the property 
acquired is the basis of the property transferred (adjusted to the date 
of the exchange), decreased by the amount of money received and 
increased by the amount of gain recognized upon the exchange. If, upon 
such exchange, there were received by the taxpayer money and other 
nonexempt property (not permitted to be received without the recognition 
of gain), and gain from the transaction was recognized under section 
1081 (e), the basis (adjusted to the date of the exchange) of the 
property transferred by the taxpayer, decreased by the amount of money 
received and increased by the amount of gain recognized, must be 
apportioned to and is the basis of the properties (other than money) 
received on the exchange. For the purpose of the allocation of such 
basis to the properties received, there must be assigned to the 
nonexempt property (other than money) an amount equivalent to its fair 
market value at the date of the exchange.
    (c) Section 1081(e) provides that no loss may be recognized on an 
exchange of stock or securities for stock or securities as described in 
section 1081(a), although the taxpayer receives money or other nonexempt 
property from the transaction. However, the basis of the property (other 
than money) received by the taxpayer is the basis (adjusted to the date 
of the exchange) of the property transferred, decreased by the amount of 
money received. This basis must be apportioned to the properties 
received, and for this purpose there must be allocated to the nonexempt 
property (other than money) an amount of such basis equivalent to the 
fair market value of such nonexempt property at the date of the 
exchange.
    (d) Section 1082 (a) does not apply in ascertaining the basis of 
property acquired by a corporation by the issuance of its stock or 
securities as the consideration in whole or in part for the transfer of 
the property to it. For the rule in such cases, see section 1082 (b).
    (e) For purposes of this section, any reference to section 1081 
shall be deemed to include a reference to corresponding provisions of 
prior internal revenue laws.



Sec. 1.1082-3  Reduction of basis of property by reason of gain not 
recognized under section 1081(b).

    (a) Introductory. In addition to the adjustments provided in section 
1016 and other applicable provisions of chapter 1 of the Code, and the 
regulations relating thereto, which are required to be made with respect 
to the cost or other basis of property, section 1082(a)(2) provides that 
a further adjustment shall be made in any case in which there shall have 
been a nonrecognition of gain under section 1081(b). Such further 
adjustment shall be made with respect to the basis of the property in 
the hands of the transferor immediately after the transfer and of the 
property acquired within 24 months after such transfer by an expenditure 
or investment to which section 1081(b) relates, and on account of which 
expenditure or investment gain is not recognized. If the property is in 
the hands of the transferor immediately after the transfer, the time of 
reduction is the day of the transfer; in all other cases the time of 
reduction is the date of acquisition. The effect of applying an amount 
in reduction of basis of property under section 1081 (b) is to reduce by 
such amount the basis for determining gain upon sale or other 
disposition, the basis for determining loss upon sale or other 
disposition, the basis for depreciation and for depletion, and any other 
amount which the Code prescribes shall be the same as any of such bases. 
For the purposes of the application of an amount in reduction of basis 
under section 1081(b), property is not considered as having a basis 
capable of reduction if--
    (1) It is money, or
    (2) If its adjusted basis for determining gain at the time the 
reduction is to be made is zero, or becomes zero at any time in the 
application of section 1081 (b).

[[Page 202]]

    (b) General rule. (1) Section 1082 (a)(2) sets forth seven 
categories of property, the basis of which for determining gain or loss 
shall be reduced in the order stated.
    (2) If any of the property in the first category has a basis capable 
of reduction, the reduction must first be made before applying an amount 
in reduction of the basis of any property in the second or in a 
succeeding category, to each of which in turn a similar rule is applied.
    (3) In the application of the rule to each category, the amount of 
the gain not recognized shall be applied to reduce the cost or other 
basis of all the property in the category as follows: The cost or other 
basis (at the time immediately after the transfer or, if the property is 
not then held but is thereafter acquired, at the time of such 
acquisition) of each unit of property in the first category shall be 
decreased (but the amount of the decrease shall not be more than the 
amount of the adjusted basis at such time for determining gain, 
determined without regard to this section) in an amount equal to such 
proportion of the unrecognized gain as the adjusted basis (for 
determining gain, determined without regard to this section) at such 
time of each unit of property of the taxpayer in that category bears to 
the aggregate of the adjusted basis (for determining gain, computed 
without regard to this section) at such time of all the property of the 
taxpayer in that category. When such adjusted basis of the property in 
the first category has been thus reduced to zero, a similar rule shall 
be applied, with respect to the portion of such gain which is unabsorbed 
in such reduction of the basis of the property in such category, in 
reducing the basis of the property in the second category. A similar 
rule with respect to the remaining unabsorbed gain shall be applied in 
reducing the basis of the property in the next succeeding category.
    (c) Special cases. (1) With the consent of the Commissioner, the 
taxpayer may, however, have the basis of the various units of property 
within a particular category specified in section 1082(a)(2) adjusted in 
a manner different from the general rule set forth in paragraph (b) of 
this section. Variations from such general rule may, for example, 
involve adjusting the basis of only certain units of the taxpayer's 
property within a given category. A request for variations from the 
general rule should be filed by the taxpayer with its income tax return 
for the taxable year in which the transfer of property has occurred.
    (2) Agreement between the taxpayer and the Commissioner as to any 
variations from such general rule shall be effective only if 
incorporated in a closing agreement entered into under the provisions of 
section 7121. If no such agreement is entered into by the taxpayer and 
the Commissioner, then the consent filed on Form 982 shall (except as 
otherwise provided in this subparagraph) be deemed to be a consent to 
the application of such general rule, and such general rule shall apply 
in the determination of the basis of the taxpayer's property. If, 
however, the taxpayer specifically states on such form that it does not 
consent to the application of the general rule, then, in the absence of 
a closing agreement, the document filed shall not be deemed a consent 
within the meaning of section 1081(b)(4).

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 7517, 42 FR 
58935, Nov. 14, 1977]



Sec. 1.1082-4  Basis of property acquired by corporation under section 
1081(a), 1081(b), or 1081(e) as contribution of capital or surplus, or 
in consideration for its own stock or securities.

    If, in connection with an exchange of stock or securities for stock 
or securities as described in section 1081(a), or an exchange of 
property for property as described in section 1081(b), or an exchange as 
described in section 1081(e), property is acquired by a corporation by 
the issuance of its stock or securities, the basis of such property 
shall be determined under section 1082(b). If the corporation issued its 
stock or securities as part or sole consideration for the property 
acquired, the basis of the property in the hands of the acquiring 
corporation is the basis (adjusted to the date of the exchange) which 
the property would have had in the hands of the transferor if the 
transfer had not

[[Page 203]]

been made, increased in the amount of gain or decreased in the amount of 
loss recognized under section 1081 to the transferor upon the transfer. 
If any property is acquired by a corporation from a shareholder as paid-
in surplus, or from any person as a contribution to capital, the basis 
of the property to the corporation is the basis (adjusted to the date of 
acquisition) of the property in the hands of the transferor.



Sec. 1.1082-5  Basis of property acquired by shareholder upon tax-free 
distribution under section 1081(c) (1) or (2).

    (a) Stock or securities. If there was distributed to a shareholder 
in a corporation which is a registered holding company or a majority-
owned subsidiary company, stock or securities (other than stock or 
securities which are nonexempt property), and if by virtue of section 
1081 (c)(1) no gain was recognized to the shareholder upon such 
distribution, then the basis of the stock in respect of which the 
distribution was made must be apportioned between such stock and the 
stock or securities so distributed to the shareholder. The basis of the 
old shares and the stock or securities received upon the distribution 
shall be determined in accordance with the following rules:
    (1) If the stock or securities received upon the distribution 
consist solely of stock in the distributing corporation and the stock 
received is all of substantially the same character and preference as 
the stock in respect of which the distribution is made, the basis of 
each share will be the quotient of the cost or other basis of the old 
shares of stock divided by the total number of the old and the new 
shares.
    (2) If the stock or securities received upon the distribution are in 
whole or in part stock in a corporation other than the distributing 
corporation, or are in whole or in part stock of a character or 
preference materially different from the stock in respect of which the 
distribution is made, or if the distribution consists in whole or in 
part of securities other than stock, the cost or other basis of the 
stock in respect of which the distribution is made shall be apportioned 
between such stock and the stock or securities distributed in 
proportion, as nearly as may be, to the respective values of each class 
of stock or security, old and new, at the time of such distribution, and 
the basis of each share of stock or unit of security will be the 
quotient of the cost or other basis of the class of stock or security to 
which such share or unit belongs, divided by the number of shares or 
units in the class. Within the meaning of this subparagraph, stocks or 
securities in one corporation are different in class from stocks or 
securities in another corporation, and, in general, any material 
difference in character or preference or terms sufficient to distinguish 
one stock or security from another stock or security, so that different 
values may properly be assigned thereto, will constitute a difference in 
class.
    (b) Stock rights. If there was distributed to a shareholder in a 
corporation rights to acquire common stock in a second corporation, and 
if by virtue of section 1081 (c)(2) no gain was recognized to the 
shareholder upon such distribution, then the basis of the stock in 
respect of which the distribution was made must be apportioned between 
such stock and the stock rights so distributed to the shareholder. The 
basis of such stock and the stock rights received upon the distribution 
shall be determined in accordance with the following:
    (1) The cost or other basis of the stock in respect of which the 
distribution is made shall be apportioned between such stock and the 
stock rights distributed, in proportion to the respective values thereof 
at the time the rights are issued.
    (2) The basis for determining gain or loss from the sale of a right, 
or from the sale of a share of stock in respect of which the 
distribution is made, will be the quotient of the cost or other basis, 
properly adjusted, assigned to the rights or the stock, divided, as the 
case may be, by the number of rights acquired or by the number of shares 
of such stock held.
    (c) Cross reference. As to the basis of stock or securities 
distributed by one member of a system group to another member of the 
same system group, see Sec. 1.1082-6.

[[Page 204]]



Sec. 1.1082-6  Basis of property acquired under section 1081(d) in 
transactions between corporations of the same system group.

    (a) If property was acquired by a corporation which is a member of a 
system group, from a corporation which is a member of the same system 
group, upon a transfer or distribution described in section 1081 (d)(1), 
then as a general rule the basis of such property in the hands of the 
acquiring corporation is the basis which such property would have had in 
the hands of the transferor if the transfer or distribution had not been 
made. Except as otherwise indicated in this section, this rule will 
apply equally to cases in which the consideration for the property 
acquired consists of stock or securities, money, and other property, or 
any of them, but it is contemplated that an ultimate true reflection of 
income will be obtained in all cases, notwithstanding any peculiarities 
in form which the various transactions may assume. See the example in 
Sec. 1.1081-6.
    (b) An exception to the general rule is provided for in case the 
property acquired consists of stock or securities issued by the 
corporation from which such stock or securities were received. If such 
stock or securities were the sole consideration for the property 
transferred to the corporation issuing such stock or securities, then 
the basis of the stock or securities shall be (1) the same as the basis 
(adjusted to the time of the transfer) of the property transferred for 
such stock or securities, or (2) the fair market value of such stock or 
securities at the time of their receipt, whichever is the lower. If such 
stock or securities constituted only part consideration for the property 
transferred to the corporation issuing such stock or securities, then 
the basis shall be an amount which bears the same ratio to the basis of 
the property transferred as the fair market value of such stock or 
securities on their receipt bears to the total fair market value of the 
entire consideration received, except that the fair market value of such 
stock or securities at the time of their receipt shall be the basis 
therefor, if such value is lower than such amount.
    (c) The application of paragraph (b) of this section may be 
illustrated by the following examples:

    Example 1. Suppose the A Corporation has property with an adjusted 
basis of $600,000 and, in an exchange in which section 1081 (d)(1) is 
applicable, transfers such property to the B Corporation in exchange for 
a total consideration of $1,000,000, consisting of (1) cash in the 
amount of $100,000, (2) tangible property having a fair market value of 
$400,000 and an adjusted basis in the hands of the B Corporation of 
$300,000, and (3) stock or securities issued by the B Corporation with a 
par value and a fair market value as of the date of their receipt in the 
amount of $500,000. The basis to the B Corporation of the property 
received by it is $600,000, which is the adjusted basis of such property 
in the hands of the A Corporation. The basis to the A Corporation of the 
assets (other than cash) received by it is as follows: Tangible 
property, $300,000, the adjusted basis of such property to the B 
Corporation, the former owner; stock or securities issued by the B 
Corporation, $300,000, an amount equal to 550,000/ 1,000,000ths of 
$600,000.
    Example 2. Suppose that in example (1) the property of the A 
Corporation transferred to the B Corporation had an adjusted basis of 
$1,100,000 instead of $600,000, and that all other factors in the 
example remain the same. In such case, the basis to the A Corporation of 
the stock or securities in the B Corporation is $500,000, which was the 
fair market value of such stock or securities at the time of their 
receipt by the A Corporation, because this amount is less than the 
amount established as 500,000/1,000,000ths of $1,100,000 or $550,000.



Sec. 1.1083-1  Definitions.

    (a) Order of the Securities and Exchange Commission. (1) An order of 
the Securities and Exchange Commission as defined in section 1083(a) 
must be issued after May 28, 1938 (the date of the enactment of the 
Revenue Act of 1938 (52 Stat. 447)), and must be issued under the 
authority of section 11(b) or 11(e) of the Public Utility Holding 
Company Act of 1935 (15 U.S.C. 79k (b), (e)), to effectuate the 
provisions of section 11(b) of such Act. In all cases the order must 
become or have become final in accordance with law; i.e., it must be 
valid, outstanding, and not subject to further appeal. See further 
sections 1083(a) and 1081(f).
    (2) Section 11 (b) of the Public Utility Holding Company Act of 1935 
provides:


[[Page 205]]


    Sec. 11. Simplification of holding company systems.* * *
    (b) It shall be the duty of the Commission, as soon as practicable 
after January 1, 1938:
    (1) To require by order, after notice and opportunity for hearing, 
that each registered holding company, and each subsidiary company 
thereof, shall take such action as the Commission shall find necessary 
to limit the operations of the holding-company system of which such 
company is a part to a single integrated public-utility system, and to 
such other businesses as are reasonably incidental, or economically 
necessary or appropriate to the operations of such integrated public-
utility system: Provided, however, That the Commission shall permit a 
registered holding company to continue to control one or more additional 
integrated public-utility systems, if, after notice and opportunity for 
hearing, it finds that--
    (A) Each of such additional systems cannot be operated as an 
independent system without the loss of substantial economies which can 
be secured by the retention of control by such holding company of such 
system;
    (B) All of such additional systems are located in one State, or in 
adjoining States, or in a contiguous foreign country; and
    (C) The continued combination of such systems under the control of 
such holding company is not so large (considering the state of the art 
and the area or region affected) as to impair the advantages of 
localized management, efficient operation, or the effectiveness of 
regulation.

The Commission may permit as reasonably incidental, or economically 
necessary or appropriate to the operations of one or more integrated 
public-utility systems the retention of an interest in any business 
(other than the business of a public-utility company as such) which the 
Commission shall find necessary or appropriate in the public interest or 
for the protection of investors or consumers and not detrimental to the 
proper functioning of such system or systems.
    (2) To require by order, after notice and opportunity for hearing, 
that each registered holding company, and each subsidiary company 
thereof, shall take such steps as the Commission shall find necessary to 
ensure that the corporate structure or continued existence of any 
company in the holding-company system does not unduly or unnecessarily 
complicate the structure, or unfairly or inequitably distribute voting 
power among security holders, of such holding-company system. In 
carrying out the provisions of this paragraph the Commission shall 
require each registered holding company (and any company in the same 
holding-company system with such holding company) to take such action as 
the Commission shall find necessary in order that such holding company 
shall cease to be a holding company with respect to each of its 
subsidiary companies which itself has a subsidiary company which is a 
holding company. Except for the purpose of fairly and equitably 
distributing voting power among the security holders of such company, 
nothing in this paragraph shall authorize the Commission to require any 
change in the corporate structure or existence of any company which is 
not a holding company, or of any company whose principal business is 
that of a public-utility company. The Commission may by order revoke or 
modify any order previously made under this subsection, if, after notice 
and opportunity for hearing, it finds that the conditions upon which the 
order was predicated do not exist. Any order made under this subsection 
shall be subject to judicial review as provided in section 24.

    (3) Section 11(e) of the Public Utility Holding Company Act of 1935 
provides:

    Sec. 11. Simplification of holding company systems. * * *
    (e) In accordance with such rules and regulations or order as the 
Commission may deem necessary or appropriate in the public interest or 
for the protection of investors or consumers, any registered holding 
company or any subsidiary company of a registered holding company may, 
at any time after January 1, 1936, submit a plan to the Commission for 
the divestment of control, securities, or other assets, or for other 
action by such company or any subsidiary company thereof for the purpose 
of enabling such company or any subsidiary company thereof to comply 
with the provisions of subsection (b). If, after notice and opportunity 
for hearing, the Commission shall find such plan, as submitted or as 
modified, necessary to effectuate the provisions of subsection (b) and 
fair and equitable to the persons affected by such plan, the Commission 
shall make an order approving such plan; and the Commission, at the 
request of the company, may apply to a court, in accordance with the 
provisions of subsection (f) of section 18, to enforce and carry out the 
terms and provisions of such plan. If, upon any such application, the 
court, after notice and opportunity for hearing, shall approve such plan 
as fair and equitable and as appropriate to effectuate the provisions of 
section 11, the court as a court of equity may, to such extent as it 
deems necessary for the purpose of carrying out the terms and provisions 
of such plan, take exclusive jurisdiction and possession of the company 
or companies and the assets thereof, wherever located; and the court 
shall have jurisdiction to appoint a trustee, and the court may 
constitute and appoint the Commission as sole trustee, to hold or 
administer, under the direction of the court and in accordance with the 
plan theretofore approved by the court and the Commission, the assets so 
possessed.


[[Page 206]]


    (b) Registered holding company, holding-company system, and 
associate company. (1) Under section 5 of the Public Utility Holding 
Company Act of 1935 (15 U.S.C. 79e), any holding company may register by 
filing with the Securities and Exchange Commission a notification of 
registration, in such form as the Commission may by rules and 
regulations prescribe as necessary or appropriate in the public interest 
or for the protection of investors or consumers. A holding company shall 
be deemed to be registered upon receipt by the Securities and Exchange 
Commission of such notification of registration. As used in this part, 
the term registered holding company means a holding company whose 
notification of registration has been so received and whose registration 
is still in effect under section 5 of the Public Utility Holding Company 
Act of 1935. Under section 2 (a)(7) of the Public Utility Holding 
Company Act of 1935 (15 U.S.C. 79b (a)(7)), a corporation is a holding 
company (unless it is declared not to be such by the Securities and 
Exchange Commission), if such corporation directly or indirectly owns, 
controls, or holds with power to vote 10 percent or more of the 
outstanding voting securities of a public-utility company (i.e., an 
electric utility company or a gas utility company as defined by such 
act) or of any other holding company. A corporation is also a holding 
company if the Securities and Exchange Commission determines, after 
notice and opportunity for hearing, that such corporation directly or 
indirectly exercises (either alone or pursuant to an arrangement or 
understanding with one or more other persons) such a controlling 
influence over the management or policies of any public-utility company 
(i.e., an electric utility company or a gas utility company as defined 
by such act) or holding company as to make it necessary or appropriate 
in the public interest or for the protection of investors or consumers 
that such corporation be subject to the obligations, duties, and 
liabilities imposed upon holding companies by the Public Utility Holding 
Company Act of 1935 (15 U.S.C. ch. 2C). An electric utility company is 
defined by section 2 (a)(3) of the Public Utility Holding Company Act of 
1935 (15 U.S.C. 79b (a)(3)) to mean a company which owns or operates 
facilities used for the generation, transmission, or distribution of 
electrical energy for sale, other than sale to tenants or employees of 
the company operating such facilities for their own use and not for 
resale; and a gas utility company is defined by section 2 (a)(4) of such 
act (15 U.S.C. 79b (a)(4)), to mean a company which owns or operates 
facilities used for the distribution at retail (other than distribution 
only in enclosed portable containers, or distribution to tenants or 
employees of the company operating such facilities for their own use and 
not for resale) of natural or manufactured gas for heat, light, or 
power. However, under certain conditions the Securities and Exchange 
Commission may declare a company not to be an electric utility company 
or a gas utility company, as the case may be, in which event the company 
shall not be considered an electric utility company or a gas utility 
company.
    (2) The term holding company system has the meaning assigned to it 
by section 2 (a)(9) of the Public Utility Holding Company Act of 1935 
(15 U.S.C. 79b (a)(9)), and hence means any holding company, together 
with all its subsidiary companies (i.e., subsidiary companies within the 
meaning of section 2(a)(8) of such act (15 U.S.C. 79b (a)(8)), which in 
general include all companies 10 percent of whose outstanding voting 
securities is owned directly or indirectly by such holding company) and 
all mutual service companies of which such holding company or any 
subsidiary company thereof is a member company. The term mutual service 
company means a company approved as a mutual service company under 
section 13 of the Public Utility Holding Company Act of 1935 (15 U.S.C. 
79m). The term member company is defined by action 2 (a)(14) of such act 
(15 U.S.C. 79b (a)(14)), to mean a company which is a member of an 
association or group of companies mutually served by a mutual service 
company.
    (3) The term associate company has the meaning assigned to it by 
section 2 (a)(10) of the Public Utility Holding Company Act of 1935 (15 
U.S.C. 79b (a)(10)), and hence an associate company of a company is any 
company in

[[Page 207]]

the same holding-company system with such company.
    (c) Majority-owned subsidiary company. The term majority-owned 
subsidiary company is defined in section 1083 (c). Direct ownership by a 
registered holding company of more than 50 percent of the specified 
stock of another corporation is not necessary to constitute such 
corporation a majority-owned subsidiary company. To illustrate, if the H 
Corporation, a registered holding company, owns 51 percent of the common 
stock of the A Corporation and 31 percent of the common stock of the B 
Corporation, and the A Corporation owns 20 percent of the common stock 
of the B Corporation (the common stock in each case being the only stock 
entitled to vote), both the A Corporation and the B Corporation are 
majority-owned subsidiary companies.
    (d) System group. The term system group is defined in section 1083 
(d) to mean one or more chains of corporations connected through stock 
ownership with a common parent corporation, if at least 90 percent of 
each class of stock (other than (1) stock which is preferred as to both 
dividends and assets, and (2) stock which is limited and preferred as to 
dividends but which is not preferred as to assets but only if the total 
value of such stock is less than 1 percent of the aggregate value of all 
classes of stock which are not preferred as to both dividends and 
assets) of each of the corporations (except the common parent 
corporation) is owned directly by one or more of the other corporations, 
and if the common parent corporation owns directly at least 90 percent 
of each class of stock (other than stock preferred as to both dividends 
and assets) of at least one of the other corporations; but no 
corporation is a member of a system group unless it is either a 
registered holding company or a majority-owned subsidiary company. While 
the type of stock which must, for the purpose of this definition, be at 
least 90 percent owned may be different from the voting stock which must 
be more than 50 percent owned for the purpose of the definition of a 
majority-owned subsidiary company under section 1083(c), as a general 
rule both types of ownership tests must be met under section 1083(d), 
since a corporation, in order to be a member of a system group, must 
also be a registered holding company or a majority-owned subsidiary 
company.
    (e) Nonexempt property. The term nonexempt property is defined by 
section 1083(e) to include--
    (1) The amount of any consideration in the form of a cancellation or 
assumption of debts or other liabilities of the transferor (including a 
continuance of encumbrances subject to which the property was 
transferred). To illustrate, if in obedience to an order of the 
Securities and Exchange Commission the X Corporation, a registered 
holding company, transfers property to the Y Corporation in exchange for 
property (not nonexempt property) with a fair market value of $500,000, 
the X Corporation receives $100,000 of nonexempt property, if for 
example--
    (i) The Y Corporation cancels $100,000 of indebtedness owed to it by 
the X Corporation;
    (ii) The Y Corporation assumes an indebtedness of $100,000 owed by 
the X Corporation to another company, the A Corporation; or
    (iii) The Y Corporation takes over the property conveyed to it by 
the X Corporation subject to a mortgage of $100,000.
    (2) Short-term obligations (including notes, drafts, bills of 
exchange, and bankers' acceptances) having a maturity at the time of 
issuance of not exceeding 24 months, exclusive of days of grace.
    (3) Securities issued or guaranteed as to principal or interest by a 
government or subdivision thereof (including those issued by a 
corporation which is an instrumentality of a government or subdivision 
thereof).
    (4) Stock or securities which were acquired from a registered 
holding company which acquired such stock or securities after February 
28, 1938, or an associate company of a registered holding company which 
acquired such stock or securities after February 28, 1938, unless such 
stock or securities were acquired in obedience to an order of the 
Securities and Exchange Commission (as defined in section 1083 (a))

[[Page 208]]

or were acquired with the authorization or approval of the Securities 
and Exchange Commission under any section of the Public Utility Holding 
Company Act of 1935, and are not nonexempt property within the meaning 
of section 1083(e) (1), (2), or (3).
    (5) Money, and the right to receive money not evidenced by a 
security other than an obligation described as nonexempt property in 
section 1083 (e) (2) or (3). The term the right to receive money 
includes, among other items, accounts receivable, claims for damages, 
and rights to refunds of taxes.
    (f) Stock or securities. The term stock or securities is defined in 
section 1083(f) for the purposes of part VI (section 1081 and 
following), subchapter O, chapter 1 of the Code. As therein defined, the 
term includes voting trust certificates and stock rights or warrants.

                    Wash Sales of Stock or Securities



Sec. 1.1091-1  Losses from wash sales of stock or securities.

    (a) A taxpayer cannot deduct any loss claimed to have been sustained 
from the sale or other disposition of stock or securities if, within a 
period beginning 30 days before the date of such sale or disposition and 
ending 30 days after such date (referred to in this section as the 61-
day period), he has acquired (by purchase or by an exchange upon which 
the entire amount of gain or loss was recognized by law), or has entered 
into a contract or option so to acquire, substantially identical stock 
or securities. However, this prohibition does not apply (1) in the case 
of a taxpayer, not a corporation, if the sale or other disposition of 
stock or securities is made in connection with the taxpayer's trade or 
business, or (2) in the case of a corporation, a dealer in stock or 
securities, if the sale or other disposition of stock or securities is 
made in the ordinary course of its business as such dealer.
    (b) Where more than one loss is claimed to have been sustained 
within the taxable year from the sale or other disposition of stock or 
securities, the provisions of this section shall be applied to the 
losses in the order in which the stock or securities the disposition of 
which resulted in the respective losses were disposed of (beginning with 
the earliest disposition). If the order of disposition of stock or 
securities disposed of at a loss on the same day cannot be determined, 
the stock or securities will be considered to have been disposed of in 
the order in which they were originally acquired (beginning with the 
earliest acquisition).
    (c) Where the amount of stock or securities acquired within the 61-
day period is less than the amount of stock or securities sold or 
otherwise disposed of, then the particular shares of stock or securities 
the loss from the sale or other disposition of which is not deductible 
shall be those with which the stock or securities acquired are matched 
in accordance with the following rule: The stock or securities acquired 
will be matched in accordance with the order of their acquisition 
(beginning with the earliest acquisition) with an equal number of the 
shares of stock or securities sold or otherwise disposed of.
    (d) Where the amount of stock or securities acquired within the 61-
day period is not less than the amount of stock or securities sold or 
otherwise disposed of, then the particular shares of stock or securities 
the acquisition of which resulted in the nondeductibility of the loss 
shall be those with which the stock or securities disposed of are 
matched in accordance with the following rule: The stock or securities 
sold or otherwise disposed of will be matched with an equal number of 
the shares of stock or securities acquired in accordance with the order 
of acquisition (beginning with the earliest acquisition) of the stock or 
securities acquired.
    (e) The acquisition of any share of stock or any security which 
results in the nondeductibility of a loss under the provisions of this 
section shall be disregarded in determining the deductibility of any 
other loss.
    (f) The word acquired as used in this section means acquired by 
purchase or by an exchange upon which the entire amount of gain or loss 
was recognized by law, and comprehends cases where the taxpayer has 
entered into a contract or option within the 61-day period to acquire by 
purchase or by such an exchange.

[[Page 209]]

    (g) For purposes of determining under this section the 61-day period 
applicable to a short sale of stock or securities, the principles of 
paragraph (a) of Sec. 1.1233-1 for determining the consummation of a 
short sale shall generally apply except that the date of entering into 
the short sale shall be deemed to be the date of sale if, on the date of 
entering into the short sale, the taxpayer owns (or on or before such 
date has entered into a contract or option to acquire) stock or 
securities identical to those sold short and subsequently delivers such 
stock or securities to close the short sale.
    (h) The following examples illustrate the application of this 
section:

    Example 1. A, whose taxable year is the calendar year, on December 
1, 1954, purchased 100 shares of common stock in the M Company for 
$10,000 and on December 15, 1954, purchased 100 additional shares for 
$9,000. On January 3, 1955, he sold the 100 shares purchased on December 
1, 1954, for $9,000. Because of the provisions of section 1091, no loss 
from the sale is allowable as a deduction.
    Example 2. A, whose taxable year is the calendar year, on September 
21, 1954, purchased 100 shares of the common stock of the M Company for 
$5,000. On December 21, 1954, he purchased 50 shares of substantially 
identical stock for $2,750, and on December 27, 1954, he purchased 25 
additional shares of such stock for $1,125. On January 3, 1955, he sold 
for $4,000 the 100 shares purchased on September 21, 1954. There is an 
indicated loss of $1,000 on the sale of the 100 shares. Since, within 
the 61-day period, A purchased 75 shares of substantially identical 
stock, the loss on the sale of 75 of the shares ($3,750-$3,000, or $750) 
is not allowable as a deduction because of the provisions of section 
1091. The loss on the sale of the remaining 25 shares ($1,250-$1,000, or 
$250) is deductible subject to the limitations provided in sections 267 
and 1211. The basis of the 50 shares purchased December 21, 1954, the 
acquisition of which resulted in the nondeductibility of the loss ($500) 
sustained on 50 of the 100 shares sold on January 3, 1955, is $2,500 
(the cost of 50 of the shares sold on January 3, 1955) + $750 (the 
difference between the purchase price ($2,750) of the 50 shares acquired 
on December 21, 1954, and the selling price ($2,000) of 50 of the shares 
sold on January 3, 1955), or $3,250. Similarly, the basis of the 25 
shares purchased on December 27, 1954, the acquisition of which resulted 
in the nondeductibility of the loss ($250) sustained on 25 of the shares 
sold on January 3, 1955, is $1,250+$125, or $1,375. See Sec. 1.1091-2.
    Example 3. A, whose taxable year is the calendar year, on September 
15, 1954, purchased 100 shares of the stock of the M Company for $5,000. 
He sold these shares on February 1, 1956, for $4,000. On each of the 
four days from February 15, 1956, to February 18, 1956, inclusive, he 
purchased 50 shares of substantially identical stock for $2,000. There 
is an indicated loss of $1,000 from the sale of the 100 shares on 
February 1, 1956, but, since within the 61-day period A purchased not 
less than 100 shares of substantially identical stock, the loss is not 
deductible. The particular shares of stock the purchase of which 
resulted in the nondeductibility of the loss are the first 100 shares 
purchased within such period, that is, the 50 shares purchased on 
February 15, 1956, and the 50 shares purchased on February 16, 1956. In 
determining the period for which the 50 shares purchased on February 15, 
1956, and the 50 shares purchased on February 16, 1956, were held, there 
is to be included the period for which the 100 shares purchased on 
September 15, 1954, and sold on February 1, 1956, were held.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 6926, 32 FR 
11468, Aug. 9, 1967]



Sec. 1.1091-2  Basis of stock or securities acquired in ``wash sales''.

    (a) In general. The application of section 1091(d) may be 
illustrated by the following examples:

    Example 1. A purchased a share of common stock of the X Corporation 
for $100 in 1935, which he sold January 15, 1955, for $80. On February 
1, 1955, he purchased a share of common stock of the same corporation 
for $90. No loss from the sale is recognized under section 1091. The 
basis of the new share is $110; that is, the basis of the old share 
($100) increased by $10, the excess of the price at which the new share 
was acquired ($90) over the price at which the old share was sold ($80).
    Example 2. A purchased a share of common stock of the Y Corporation 
for $100 in 1935, which he sold January 15, 1955, for $80. On February 
1, 1955, he purchased a share of common stock of the same corporation 
for $70. No loss from the sale is recognized under section 1091. The 
basis of the new share is $90; that is, the basis of the old share 
($100) decreased by $10, the excess of the price at which the old share 
was sold ($80) over the price at which the new share was acquired ($70).

    (b) Special rule. For a special rule as to the adjustment to basis 
required under section 1091(d) in the case of wash sales involving 
certain regulated investment company stock for which

[[Page 210]]

there is an average basis, see paragraph (e)(3)(iii) (c) and (d) of 
Sec. 1.1012-1.

[T.D. 6500, 25 FR 11910, Nov. 26, 1960, as amended by T.D. 7129, 36 FR 
12738, July 7, 1971]



Sec. 1.1092(b)-1T  Coordination of loss deferral rules and wash sale 
rules (temporary).

    (a) In general. Except as otherwise provided, in the case of the 
disposition of a position or positions of a straddle, the rules of 
paragraph (a)(1) of this section apply before the application of the 
rules of paragraph (a)(2) of this section.
    (1) Any loss sustained from the disposition of shares of stock or 
securities that constitute positions of a straddle shall not be taken 
into account for purposes of this subtitle if, within a period beginning 
30 days before the date of such disposition and ending 30 days after 
such date, the taxpayer has acquired (by purchase or by an exchange on 
which the entire amount of gain or loss was recognized by law), or has 
entered into a contract or option so to acquire, substantially identical 
stock or securities.
    (2) Except as otherwise provided, if a taxpayer disposes of less 
than all of the positions of a straddle, any loss sustained with respect 
to the disposition of that position or positions (hereinafter referred 
to as loss position) shall not be taken into account for purposes of 
this subtitle to the extent that the amount of unrecognized gain as of 
the close of the taxable year in one or more of the following 
positions--
    (i) Successor positions,
    (ii) Offsetting positions to the loss position, or
    (iii) Offsetting positions to any successor position,

exceeds the amount of loss disallowed under paragraph (a)(1) of this 
section. See Sec. 1.1092(b)-5T relating to definitions.
    (b) Carryover of disallowed loss. Any loss that is disallowed under 
paragraph (a) of this section shall, subject to any further application 
of paragraph (a)(1) of this section and the limitations under paragraph 
(a)(2) of this section, be treated as sustained in the succeeding 
taxable year. However, a loss disallowed in Year 1, for example, under 
paragraph (a)(1) of this section will not be allowed in Year 2 unless 
the substantially identical stock or securities, the acquisition of 
which caused the loss to be disallowed in Year 1, are disposed of during 
Year 2 and paragraphs (a)(1) and (a)(2) of this section do not apply in 
Year 2 to disallow the loss.
    (c) Treatment of disallowed loss--(1) Character. If the disposition 
of a loss position would (but for the application of this section) 
result in a capital loss, the loss allowed under paragraph (b) of this 
section with respect to the disposition of the loss position shall be 
treated as a capital loss. In any other case, a loss allowed under 
paragraph (b) of this section shall be treated as an ordinary loss. For 
example, if the disposition of a loss position would, but for the 
application of paragraph (a) of this section, give rise to a capital 
loss, that loss when allowed pursuant to paragraph (b) of this section 
will be treated as a capital loss on the date the loss is allowed 
regardless of whether any gain or loss with respect to one or more 
successor positions would be treated as ordinary income or loss.
    (2) Section 1256 contracts. If the disposition of a loss position 
would (but for the application of this section) result in 60 percent 
long-term capital loss and 40 percent short-term capital loss, the loss 
allowed under paragraph (b) of this section with respect to the 
disposition of the loss position shall be treated as 60 percent long-
term capital loss and 40 percent short-term capital loss regardless of 
whether any gain or loss with respect to one or more successor positions 
would be treated as 100 percent long-term or short-term capital gain or 
loss.
    (d) Exceptions. (1) This section shall not apply to losses 
sustained--
    (i) With respect to the disposition of one or more positions that 
constitute part of a hedging transaction;
    (ii) With respect to the disposition of a loss position included in 
a mixed straddle account (as defined in paragraph (b) of Sec. 
1.1092(b)-4T); and
    (iii) With respect to the disposition of a position that is part of 
a straddle consisting only of section 1256 contracts.
    (2) Paragraph (a)(1) of this section shall not apply to losses 
sustained by a

[[Page 211]]

dealer in stock or securities if such losses are sustained in a 
transaction made in the ordinary course of such business.
    (e) Coordination with section 1091. Section 1092(b) applies in lieu 
of section 1091 to losses sustained from the disposition of positions in 
a straddle. See example (18) of paragraph (g) of this section.
    (f) Effective date. The provisions of this section apply to 
dispositions of loss positions on or after January 24, 1985.
    (g) Examples. This section may be illustrated by the following 
examples. It is assumed in each example that the following positions are 
the only positions held directly or indirectly (through a related person 
or flowthrough entity) by an individual calendar year taxpayer during 
the taxable year and none of the exceptions contained in paragraph (d) 
of this section apply.

    Example 1. On December 1, 1985, A enters into offsetting long and 
short positions. On December 10, 1985, A disposes of the short position 
at an $11 loss, at which time there is $5 of unrealized gain in the 
offsetting long position. At year-end there is still $5 of unrecognized 
gain in the offsetting long position. Under these circumstances, $5 of 
the $11 loss will be disallowed for 1985 because there is $5 of 
unrecognized gain in the offsetting long position; the remaining $6 of 
loss, however, will be taken into account in 1985.
    Example 2. Assume the facts are the same as in example (1), except 
that at year-end there is $11 of unrecognized gain in the offsetting 
long position. Under these circumstances, the entire $11 loss will be 
disallowed for 1985 because there is $11 of unrecognized gain at year-
end in the offsetting long position.
    Example 3. Assume the facts are the same as in example (1), except 
that at year-end there is no unrecognized gain in the offsetting long 
position. Under these circumstances, the entire $11 loss will be allowed 
for 1985.
    Example 4. On November 1, 1985, A enters into offsetting long and 
short positions. On November 10, 1985, A disposes of the long position 
at a $10 loss, at which time there is $10 of unrealized gain in the 
short position. On November 11, 1985, A enters into a new long position 
(successor position) that is offsetting with respect to the retained 
short position but is not substantially identical to the long position 
disposed of on November 10, 1985. A holds both positions through year-
end, at which time there is $10 of unrecognized gain in the successor 
long position and no unrecognized gain in the offsetting short position. 
Under these circumstances, the entire $10 loss will be disallowed for 
1985 because there is $10 of unrecognized gain in the successor long 
position.
    Example 5. Assume the facts are the same as in example (4), except 
that at year-end there is $4 of unrecognized gain in the successor long 
position and $6 of unrecognized gain in the offsetting short position. 
Under these circumstances, the entire $10 loss will be disallowed for 
1985 because there is a total of $10 of unrecognized gain in both the 
successor long position and offsetting short position.
    Example 6. Assume the facts are the same as in example (4), except 
that at year-end A disposes of the offsetting short position at a $2 
loss. Under these circumstances, $10 of the total $12 loss will be 
disallowed because there is $10 of unrecognized gain in the successor 
long position.
    Example 7. Assume the facts are the same as in example (4), and on 
January 10, 1986, A disposes of the successor long position at no gain 
or loss. A holds the offsetting short position until year-end, at which 
time there is $10 of unrecognized gain. Under these circumstances, the 
$10 loss will be disallowed for 1986 because there is $10 of 
unrecognized gain in an offsetting position at year-end.
    Example 8. Assume the facts are the same as in example (4), except 
at year-end there is $8 of unrecognized gain in the successor long 
position and $8 of unrecognized loss in the offsetting short position. 
Under these circumstances, $8 of the total $10 realized loss will be 
disallowed because there is $8 of unrecognized gain in the successor 
long position.
    Example 9. On October 1, 1985, A enters into offsetting long and 
short positions. Neither the long nor the short position is stock or 
securities. On October 2, 1985, A disposes of the short position at a 
$10 loss and the long position at a $10 gain. On October 3, 1985, A 
enters into a long position identical to the original long position. At 
year-end there is $10 of unrecognized gain in the second long position. 
Under these circumstances, the $10 loss is allowed because the second 
long position is not a successor position or offsetting position to the 
short loss position.
    Example 10. On November 1, 1985, A enters into offsetting long and 
short positions. On November 10, 1985, there is $20 of unrealized gain 
in the long position and A disposes of the short position at a $20 loss. 
By November 15, 1985, the value of the long position has declined 
eliminating all unrealized gain in the position. On November 15, 1985, A 
establishes a second short position (successor position) that is 
offsetting with respect to the long position but is not substantially 
identical to the short position disposed of on November 10, 1985. At 
year-end there is no unrecognized

[[Page 212]]

gain in the offsetting long position or in the successor short position. 
Under these circumstances, the $20 loss sustained with respect to the 
short loss position will be allowed for 1985 because at year-end there 
is no unrecognized gain in the successor short position or the 
offsetting long position.
    Example 11. Assume the facts are the same as in example (10), except 
that the second short position was established on November 8, 1985, and 
there is $20 of unrecognized gain in the second short position at year-
end. Since the second short position was entered into within 30 days 
before the disposition of the loss position, the second short position 
is considered a successor position to the loss position. Under these 
circumstances, the $20 loss will be disallowed because there is $20 of 
unrecognized gain in a successor position.
    Example 12. Assume the facts are the same as in example (10), except 
that at year-end there is $18 of unrecognized gain in the offsetting 
long position and $18 of unrecognized gain in the successor short 
position. Under these circumstances, the entire loss will be disallowed 
because there is more than $20 of unrecognized gain in both the 
successor short position and offsetting long position.
    Example 13. Assume the facts are the same as in example (10), except 
that there is $20 of unrecognized gain in the successor short position 
and no unrecognized gain in the offsetting long position at year-end. 
Under these circumstances, the entire $20 loss will be disallowed 
because there is $20 of unrecognized gain in the successor short 
position.
    Example 14. On January 2, 1986, A enters into offsetting long and 
short positions. Neither the long nor the short position is stock or 
securities. On March 3, 1986, A disposes of the long position at a $10 
gain. On March 10, 1986, A disposes of the short position at a $10 loss. 
On March 14, 1986, A enters into a new short position. On April 10, 
1986, A enters into an offsetting long position. A holds both positions 
to year-end, at which time there is $10 of unrecognized gain in the 
offsetting long position and no unrecognized gain or loss in the short 
position. Under these circumstances, the $10 loss will be allowed 
because (1) the rules of paragraph (a)(1) of this section are not 
applicable; and (2) the rules of paragraph (a)(2) of this section do not 
apply, since all positions of the straddle that contained the loss 
position were disposed of.
    Example 15. On December 1, 1985, A enters into offsetting long and 
short positions. On December 4, 1985, A disposes of the short position 
at a $10 loss. On December 5, 1985, A establishes a new short position 
that is offsetting to the long position, but is not substantially 
identical to the short position disposed of on December 4, 1985. On 
December 6, 1985, A disposes of the long position at a $10 gain. On 
December 7, 1985, A enters into a second long position that is 
offsetting to the new short position, but is not substantially identical 
to the long position disposed of on December 6, 1985. A holds both 
positions to year-end at which time there is no unrecognized gain in the 
second short position and $10 of unrecognized gain in the offsetting 
long position. Under these circumstances, the entire $10 loss will be 
disallowed for the 1985 taxable year because the second long position is 
an offsetting position with respect to the second short position which 
is a successor position.
    Example 16. On September 1, 1985, A enters into offsetting positions 
consisting of a long section 1256 contract and short non-section 1256 
position. No elections under sections 1256(d)(1) or 1092(b)(2)(A), 
relating to mixed straddles, are made. On November 1, 1985, at which 
time there is $20 of unrecognized gain in the short non-section 1256 
position, A disposes of the long section 1256 contract at a $20 loss and 
on the same day acquires a long non-section 1256 position (successor 
position) that is offsetting with respect to the short non-section 1256 
position. But for the application of this section, A's disposition of 
the section 1256 contract would give rise to a capital loss. At year-end 
there is a $20 of unrecognized gain in the offsetting short non-section 
1256 position and no unrecognized gain in the successor long position. 
Under these circumstances, the entire $20 loss will be disallowed for 
1985 because there is $20 unrecognized gain in the offsetting short 
position. In 1986, A disposes of the successor long non-section 1256 
position and there is no unrecognized gain at year-end in the offsetting 
short position. Under these circumstances, the $20 loss disallowed in 
1985 with respect to the section 1256 contract will be treated in 1986 
as 60 percent long-term capital loss and 40 percent short-term capital 
loss.
    Example 17. On January 2, 1986, A, not a dealer in stock or 
securities, acquires stock in X Corporation (X stock) and an offsetting 
put option. On March 3, 1986, A disposes of the X stock at a $10 loss. 
On March 10, 1986, A disposes of the put option at a $10 gain. On March 
14, 1986, A acquires new X stock that is substantially identical to the 
X stock disposed of on March 3, 1986. A holds the X stock to year-end. 
Under these circumstances, the $10 loss will be disallowed for 1986 
under paragraph (a)(1) of this section because A, within a period 
beginning 30 days before March 3, 1986 and ending 30 days after such 
date, acquired stock substantially identical to the X stock disposed of.
    Example 18. On June 2, 1986, A, not a dealer in stock or securities, 
acquires stock in X Corporation (X stock). On September 2, 1986, A 
disposes of the X stock at a $100 loss. On September 15, 1986, A 
acquires new X stock that is substantially identical to the X stock 
disposed of on September 2, 1986, and an offsetting put option. A holds 
these straddle positions to year-end. Under these circumstances, section 
1091, rather than section

[[Page 213]]

1092(b), will apply to disallow the $100 loss for 1986 because the loss 
was not sustained from the disposition of a position that was part of a 
straddle. See paragraph (e) of this section.
    Example 19. On November 1, 1985, A, not a dealer in stock or 
securities, acquires stock in Y Corporation (Y stock) and an offsetting 
put option. On November 12, 1985, there is $20 of unrealized gain in the 
put option and A disposes of the Y stock at a $20 loss. By November 15, 
1985, the value of the put option has declined eliminating all 
unrealized gain in the position. On November 15, 1985, A acquires a 
second Y stock position that is substantially identical to the Y stock 
disposed of on November 12, 1985. At year-end there is no unrecognized 
gain in the put option or the Y stock. Under these circumstances, the 
$20 loss will be disallowed for 1985 under paragraph (a)(1) of this 
section because A, within a period beginning 30 days before November 12, 
1985 and ending 30 days after such date, acquired stock substantially 
identical to the Y stock disposed of.
    Example 20. Assume the facts are the same as in Example 19 and that 
on December 31, 1986, A disposes of the put option at a $40 gain and 
there is $20 of unrecognized loss in the Y stock. Under these 
circumstances, the $20 loss which was disallowed in 1985 also will be 
disallowed for 1986 under the rules of paragraph (a)(1) of this section 
because A has not disposed of the stock substantially identical to the Y 
stock disposed of on November 12, 1985.
    Example 21. Assume the facts are the same as in example (19), except 
that on December 31, 1986, A disposes of the Y stock at a $20 loss and 
there is $40 of unrecognized gain in the put option. Under these 
circumstances, A will not recognize in 1986 either the $20 loss 
disallowed in 1985 or the $20 loss sustained with respect to the 
December 31, 1986 disposition of Y stock. Paragraph (a)(1) of this 
section does not apply to disallow the losses in 1986 since the 
substantially identical Y stock was disposed of during the year (and no 
substantially identical stock or securities was acquired by A within the 
61 day period). However, paragraph (a)(2) of this section applies to 
disallow for 1986 the $40 of losses sustained with respect to the 
dispositions of positions in the straddle because there is $40 of 
unrecognized gain in the put option, an offsetting position to the loss 
positions.
    Example 22. On January 2, 1986, A, not a dealer in stock or 
securities, acquires stock in X Corporation (X stock) and an offsetting 
put option. On March 3, 1986, A disposes of the X stock at a $10 loss. 
On March 17, 1986, A acquires new X stock that is substantially 
identical to the X stock disposed of on March 3, 1986. On December 31, 
1986, A disposes of the X stock at a $5 gain, at which time there is $5 
of unrecognized gain in the put option. Under these circumstances, the 
$10 loss sustained with respect to the March 3, 1986, disposition of X 
stock will be allowed under paragraph (a) (1) of this section since the 
substantially identical X stock acquired on March 17, 1986, was disposed 
of by year-end (and no substantially identical stock or securities were 
acquired by A within the 61 day period). However, $5 of the $10 loss 
will be disallowed under paragraph (a)(2) of this section because there 
is $5 of unrecognized gain in the put option, an offsetting position to 
the loss position.
    Example 23. Assume the facts are the same as in example (22), except 
that on December 31, 1986, A disposes of the offsetting put option at a 
$5 loss and there is $5 of unrecognized gain in the X stock acquired on 
March 17, 1986. Under these circumstances, the $10 loss sustained with 
respect to the X stock disposed of on March 3, 1986, will be disallowed 
for 1986 under paragraph (a)(1) of this section. The $5 loss sustained 
upon the disposition of the put option will be allowed because (1) the 
rules of paragraph (a)(1) of this section are not applicable; and (2) 
the rules of paragraph (a)(2) of this section allow the loss, since the 
unrecognized gain in the X stock ($5) is not in excess of the loss ($10) 
disallowed under paragraph (a)(1) of this section.
    Example 24. On January 2, 1986, A, not a dealer in stock or 
securities, acquires 200 shares of Z Corporation stock (Z stock) and 2 
put options on Z stock (giving A the right to sell 200 shares of Z 
stock). On September 2, 1986, there is $200 of unrealized gain in the 
put option positions and A disposes of the 200 shares of Z stock at a 
$200 loss. On September 10, 1986, A acquires 100 shares of Z stock 
(substantially identical to the Z stock disposed of on September 2, 
1986), and a call option that is offsetting to the put options on Z 
stock and that is not an option to acquire property substantially 
identical to the Z stock disposed of on September 2, 1986. At year-end, 
there is $80 of unrecognized gain in the Z stock position, $80 of 
unrecognized gain in the call option position, and no unrecognized gain 
or loss in the offsetting put option positions. Under these 
circumstances, $40 of the $200 loss sustained with respect to the 
September 2, 1986 disposition of Z stock will be recognized by A in 1986 
under paragraph (a) of this section, as set forth below. Paragraph 
(a)(1) of this section applies first to disallow $100 of the loss (\1/2\ 
of the loss), since 100 shares of substantially identical Z stock (\1/2\ 
of the stock) were acquired within the 61 day period. Paragraph (a)(2) 
of this section then applies to disallow that portion of the loss 
allowed under paragraph (a)(1) of this section ($200-$100=$100) equal to 
the excess of the total unrecognized gain in the Z stock and call option 
positions (successor positions to the loss position) ($80+$80=$160) over 
the $100 loss disallowed under paragraph

[[Page 214]]

(a)(1) of this section ($160-$100=$60; $100-$60=$40).
    Example 25. Assume the facts are the same as in example (24), except 
that at year-end there is $110 of unrecognized gain in the Z stock 
position, $78 of unrecognized gain in the call option position, and $10 
of unrecognized gain in the offsetting put option positions. Under these 
circumstances, $2 of the $200 loss sustained with respect to the 
September 2, 1986 disposition of Z stock will be allowed in 1986 under 
paragraph (a) of this section, as set forth below. Paragraph (a)(1) of 
this section applies first to disallow $100 of the loss (\1/2\ of the 
loss) since 100 shares of substantially identical Z stock (\1/2\ of the 
stock) were acquired within the 61 day period. Paragraph (a)(2) of this 
section then applies to disallow that portion of the loss allowed under 
paragraph (a)(1) of this section ($200-$100=$100) equal to the excess of 
the total unrecognized gain in the Z stock and call option positions 
(successor positions to the loss position) and the put option positions 
(offsetting positions to the loss position) ($110+$78+$10=$198) over the 
$100 loss disallowed under paragraph (a)(1) of this section ($198-
$100=$98; $100-$98=$2).
    Example 26. Assume the facts are the same as in example (24), except 
that at year-end there is $120 of unrecognized gain in the Z stock 
position, $88 of unrecognized gain in the call option position, and $10 
of unrecognized loss in one of the offsetting put option positions. At 
year-end A disposes of the other put option position at a $10 loss. 
Under these circumstances, $2 of the $210 loss sustained with respect to 
the September 2, 1986 disposition of Z stock ($200) and the year-end 
disposition of a put option ($10) will be allowed in 1986 under 
paragraph (a) of this section, as set forth below. Paragraph (a)(1) of 
this section applies first to disallow $100 of the loss from the 
disposition of Z stock (\1/2\ of the loss), since 100 shares of 
substantially identical Z stock (\1/2\ of the stock) were acquired 
within the 61 day period. Paragraph (a)(2) of this section then applies 
to disallow that portion of the loss allowed under paragraph (a)(1) of 
this section ($210-$100=$110) equal to the excess of the total 
unrecognized gain in the Z stock and call option positions (successor 
positions to the Z stock loss position, and offsetting positions to the 
put option loss position) ($120+$88=$208) over the $100 loss disallowed 
under paragraph (a)(1) of this section ($208-$100=$108; $110-$108=$2).
    Example 27. On January 27, 1986, A enters into offsetting long (L1) 
and short (S1) positions. Neither L1 nor S1 nor any other positions 
entered into by A in 1986 are stock or securities. On February 3, 1986, 
A disposes of L1 at a $10 loss. On February 5, 1986, A enters into a new 
long position (L2) that is offsetting to S1. On October 15, 1986, A 
disposes of S1 at an $11 loss. On October 17, 1986, A enters into a new 
short position (S2) that is offsetting to L2. On December 30, 1986, A 
disposes of L2 at a $12 loss. On December 31, 1986, A enters into a new 
long position (L3) that is offsetting to S2. At year-end, S2 has an 
unrecognized gain of $33. Paragraph (a)(1) of this section does not 
apply since none of the positions were shares of stock or securities. 
However, all $33 ($10+$11+$12) of the losses sustained with respect to 
L1, S1 and L2 will be disallowed under paragraph (a)(2) because there is 
$33 of unrecognized gain in S2 at year-end. The $10 loss from the 
disposition of L1 is disallowed because S2 is or was an offsetting 
position to a successor long position (L2 or L3). The $11 loss from the 
disposition of S1 is disallowed because S2 is a successor position to 
S1. The $12 loss from the disposition of L2 is disallowed because S2 was 
an offsetting position to L2.

(Secs. 1092(b) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
917, 95 Stat. 324, 26 U.S.C. 1092(b), 7805) and sec. 102(h) of the Tax 
Reform Act of 1984 (98 Stat. 625))

[T.D. 8007, 50 FR 3319, Jan. 24, 1985, as amended by T.D. 8070, 51 FR 
1786, Jan. 15, 1986; 51 FR 3773, Jan. 30, 1986; 51 FR 5516, Feb. 14, 
1986]



Sec. 1.1092(b)-2T  Treatment of holding periods and losses with respect 
to straddle positions (temporary).

    (a) Holding period--(1) In general. Except as otherwise provided in 
this section, the holding period of any position that is part of a 
straddle shall not begin earlier than the date the taxpayer no longer 
holds directly or indirectly (through a related person or flowthrough 
entity) an offsetting position with respect to that position. See Sec. 
1.1092(b)-5T relating to definitions.
    (2) Positions held for the long-term capital gain holding period (or 
longer) prior to establishment of the straddle. Paragraph (a)(1) of this 
section shall not apply to a position held by a taxpayer for the long-
term capital gain holding period (or longer) before a straddle that 
includes such position is established. The determination of whether a 
position has been held by a taxpayer for the long-term capital gain 
holding period (or longer) shall be made by taking into account the 
application of paragraph (a)(1) of this section. See section 1222(3) 
relating to the holding period for long-term capital gains.
    (b) Treatment of loss--(1) In general. Except as provided in 
paragraph (b)(2) of this section, loss on the disposition of one or more 
positions (loss position)

[[Page 215]]

of a straddle shall be treated as a long-term capital loss if--
    (i) On the date the taxpayer entered into the loss position the 
taxpayer held directly or indirectly (through a related person or 
flowthrough entity) one or more offsetting positions with respect to the 
loss position; and
    (ii) All gain or loss with respect to one or more positions in the 
straddle would be treated as long-term capital gain or loss if such 
positions were disposed of on the day the loss position was entered 
into.
    (2) Special rules for non-section 1256 positions in a mixed 
straddle. Loss on the disposition of one or more positions (loss 
position) that are part of a mixed straddle and that are non-section 
1256 positions shall be treated as 60 percent long-term capital loss and 
40 percent short-term capital loss if--
    (i) Gain or loss from the disposition of one or more of the 
positions of the straddle that are section 1256 contracts would be 
considered gain or loss from the sale or exchange of a capital asset;
    (ii) The disposition of no position in the straddle (other than a 
section 1256 contract) would result in a long-term capital gain or loss; 
and
    (iii) An election under section 1092(b)(2)(A)(i)(I) (relating to 
straddle-by-straddle identification) or 1092(b)(2)(A)(i)(II) (relating 
to mixed straddle accounts) has not been made.
    (c) Exceptions--(1) In general. This section shall not apply to 
positions that--
    (i) Constitute part of a hedging transaction;
    (ii) Are included in a straddle consisting only of section 1256 
contracts; or
    (iii) Are included in a mixed straddle account (as defined in 
paragraph (b) of Sec. 1.1092(b)-4T).
    (2) Straddle-by-straddle identification. Paragraphs (a)(2) and (b) 
of this section shall not apply to positions in a section 1092(b)(2) 
identified mixed straddle. See Sec. 1.1092(b)-3T.
    (d) Special rule for positions held by regulated investment 
companies. For purposes of section 851(b)(3) (relating to the definition 
of a regulated investment company), the holding period rule of paragraph 
(a) of this section shall not apply to positions of a straddle. However, 
if section 1233(b) (without regard to sections 1233(e)(2)(A) and 
1092(b)) would have applied to such positions, then for purposes of 
section 851(b)(3) the rules of section 1233(b) shall apply. Similarly, 
the effect of daily marking-to-market provided under Sec. 1.1092(b)-
4T(c) will be disregarded for purposes of section 851(b)(3).
    (e) Effective date--(1) In general. Except as provided in paragraph 
(e)(2) of this section, the provisions of this section apply to 
positions in a straddle established after June 23, 1981, in taxable 
years ending after such date.
    (2) Special effective date for mixed straddle positions. The 
provisions of paragraph (b)(2) of this section shall apply to positions 
in a mixed straddle established on or after January 1, 1984.
    (f) Examples. Paragraphs (a) through (e) may be illustrated by the 
following examples. It is assumed in each example that the following 
positions are the only positions held directly or indirectly (through a 
related person or flowthrough entity) by an individual calendar year 
taxpayer during the taxable year and none of the exceptions in paragraph 
(c) of this section apply.

    Example 1. On October 1, 1984, A acquires gold. On January 1, 1985, 
A enters into an offsetting short gold forward contract. On April 1, 
1985, A disposes of the short gold forward contract at no gain or loss. 
On April 10, 1985, A sells the gold at a gain. Since the gold had not 
been held for more than 6 months before the offsetting short position 
was entered into, the holding period for the gold begins no earlier than 
the time the straddle is terminated. Thus, the holding period of the 
original gold purchased on October 1, 1984, and sold on April 10, 1985, 
begins on April 1, 1985, the date the straddle was terminated. 
Consequently, gain recognized with respect to the gold will be treated 
as short-term capital gain.
    Example 2. On January 1, 1985, A enters into a long gold forward 
contract. On May 1, 1985, A enters into an offsetting short gold 
regulated futures contract. A does not make an election under section 
1256(d) or 1092(b)(2)(A). On August 1, 1985, A disposes of the gold 
forward contract at a gain. Since the forward contract had not been held 
by A for more than 6 months prior to the establishment of the straddle, 
the holding period for the forward contract begins no earlier than the 
time the straddle is terminated. Thus, the gain recognized on the 
closing of the gold

[[Page 216]]

forward contract will be treated as short-term capital gain.
    Example 3. Assume the facts are the same as in example (2), except 
that A disposes of the short gold regulated futures contract on July 1, 
1985, at no gain or loss and the forward contract on November 1, 1985. 
Since the forward contract had not been held for more than 6 months 
before the mixed straddle was established, the holding period for the 
forward contract begins July 1, 1985, the date the straddle terminated. 
Thus, the gain recognized on the closing of the forward contract will be 
treated as short-term capital gain.
    Example 4. On January 1, 1985, A enters into a long gold forward 
contract and on August 4, 1985, A enters into an offsetting short gold 
forward contract. On September 1, 1985, A disposes of the short position 
at a loss. Since an offsetting long position had been held by A for more 
than 6 months prior to the acquisition of the offsetting short position, 
the loss with respect to the closing of the short position will be 
treated as long-term capital loss.
    Example 5. On March 1, 1985, A enters into a long gold forward 
contract and on July 17, 1985, A enters into an offsetting short gold 
regulated futures contract. A does not make an election under section 
1256(d) or 1092(b)(2)(A). On August 10, 1985, A disposes of the long 
gold forward contract at a loss. Since the gold forward contract was 
part of a mixed straddle, and the disposition of no position in the 
straddle (other than the regulated futures contract) would give rise to 
a long-term capital loss, the loss recognized on the termination of the 
gold forward contract will be treated as 40 percent short-term capital 
loss and 60 percent long-term capital loss.
    Example 6. Assume the facts are the same as in example (5), except 
that on August 11, 1985, A disposes of the short gold regulated futures 
contract at a gain. Under these circumstances, the gain will be treated 
as 60 percent long-term capital gain and 40 percent short-term capital 
gain since the holding period rules of paragraph (a) of this section are 
not applicable to section 1256 contracts.
    Example 7. Assume the facts are the same as in example (5), except 
that A enters into the long gold forward contract on January 1, 1985, 
and does not dispose of the long gold forward contract but instead on 
August 10, 1985, disposes of the short gold regulated futures contract 
at a loss. Under these circumstances, the loss will be treated as a 
long-term capital loss since A held an offsetting non-section 1256 
position for more than 6 months prior to the establishment of the 
straddle. However, such loss may be subject to the rules of Sec. 
1.1092(b)-1T.

(Secs. 1092(b) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
917, 95 Stat. 324, 26 U.S.C. 1092(b), 7805) and sec. 102(h) of the Tax 
Reform Act of 1984 (98 Stat. 625))

[T.D. 8007, 50 FR 3320, Jan. 24, 1985, as amended by T.D. 8070, 51 FR 
1788, Jan. 15, 1986]



Sec. 1.1092(b)-3T  Mixed straddles; straddle-by-straddle identification 
under section 1092(b)(2)(A)(i)(I) (temporary).

    (a) In general. Except as otherwise provided, a taxpayer shall treat 
in accordance with paragraph (b) of this section gains and losses on 
positions that are part of a mixed straddle for which the taxpayer has 
made an election under paragraph (d) of this section (hereinafter 
referred to as a section 1092(b)(2) identified mixed straddle). No 
election may be made under this section for any straddle composed of one 
or more positions that are includible in a mixed straddle account (as 
defined in paragraph (b) of Sec. 1.1092(b)-4T) or for any straddle for 
which an election under section 1256(d) has been made. See Sec. 
1.1092(b)-5T relating to definitions.
    (b) Treatment of gains and losses from positions included in a 
section 1092(b)(2) identified mixed straddle--(1) In general. Gains and 
losses from positions that are part of a section 1092(b)(2) identified 
mixed straddle shall be determined and treated in accordance with the 
rules of paragraph (b) (2) through (7) of this section.
    (2) All positions of a section 1092(b)(2) identified mixed straddle 
are disposed of on the same day. If all positions of a section 
1092(b)(2) identified mixed straddle are disposed of (or deemed disposed 
of) on the same say, gains and losses from section 1256 contracts in the 
straddle shall be netted, and gains and losses from non-section 1256 
positions in the straddle shall be netted. Net gain or loss from the 
section 1256 contracts shall then be offset against net gain or loss 
from the non-section 1256 positions to determine the net gain or loss 
from the straddle. If net gain or loss from the straddle is attributable 
to the positions of the straddle that are section 1256 contracts, such

[[Page 217]]

gain or loss shall be treated as 60 percent long-term capital gain or 
loss and 40 percent short-term capital gain or loss. If net gain or loss 
from the straddle is attributable to the positions of the straddle that 
are non-section 1256 positions, such gain or loss shall be treated as 
short-term capital gain or loss. This paragraph (b)(2) may be 
illustrated by the following examples. It is assumed in each example 
that the positions are the only positions held directly or indirectly 
(through a related person or flowthrough entity) by an individual 
calendar year taxpayer during the taxable year.

    Example 1. On April 1, 1985, A enters into a non-section 1256 
position and an offsetting section 1256 contract and makes a valid 
election to treat such straddle as a section 1092(b)(2) identified mixed 
straddle. On April 10, 1985, A disposes of the non-section 1256 position 
at a $600 loss and the section 1256 contract at a $600 gain. Under these 
circumstances, the $600 loss on the non-section 1256 position will be 
offset against the $600 gain on the section 1256 contract and the net 
gain or loss from the straddle will be zero.
    Example 2. Assume the facts are the same as in example (1), except 
that the gain on the section 1256 contract is $800. Under these 
circumstances, the $600 loss on the non-section 1256 position will be 
offset against the $800 gain on the section 1256 contract. The net gain 
of $200 from the straddle will be treated as 60 percent long-term 
capital gain and 40 percent short-term capital gain because it is 
attributable to the section 1256 contract.
    Example 3. Assume the facts are the same as in example (1), except 
that the loss on the non-section 1256 position is $800. Under these 
circumstances, the $600 gain on the section 1256 contract will be offset 
against the $800 loss on the non-section 1256 position. The net loss of 
$200 from the straddle will be treated as short-term capital loss 
because it is attributable to the non-section 1256 position.
    Example 4. On May 1, 1985, A enters into a straddle consisting of 
two non-section 1256 positions and two section 1256 contracts and makes 
a valid election to treat the straddle as a section 1092(b)(2) 
identified mixed straddle. On May 10, 1985, A disposes of the non-
section 1256 positions, one at a $700 loss and the other at a $500 gain, 
and disposes of the section 1256 contracts, one at a $400 gain and the 
other at a $300 loss. Under these circumstances, the gain and losses 
from the section 1256 contracts and non-section 1256 positions will 
first be netted, resulting in a net gain of $100 ($400-$300) on the 
section 1256 contracts and a net loss of $200 ($700-$500) on the non-
section 1256 positions. The net gain of $100 from the section 1256 
contracts will then be offset against the $200 net loss on the non-
section 1256 positions. The net loss of $100 from the straddle will be 
treated as short-term capital loss because it is attributable to the 
non-section 1256 positions.
    Example 5. On December 30, 1985, A enters into a section 1256 
contract and an offsetting non-section 1256 position and makes a valid 
election to treat such straddle as a section 1092(b)(2) identified mixed 
straddle. On December 31, 1985, A disposes of the non-section 1256 
position at a $2,000 gain. A also realizes a $2,000 loss on the section 
1256 contract because it is deemed disposed of under section 1256(a)(1). 
Under these circumstances, the $2,000 gain on the non-section 1256 
position will be offset against the $2,000 loss on the section 1256 
contract, and the net gain or loss from the straddle will be zero.
    Example 6. Assume the facts are the same as in example (5), except 
that the section 1092(b)(2) identified mixed straddle was entered into 
on November 12, 1985, A realizes a $2,200 loss on the section 1256 
contract, and on December 15, 1985, A enters into a non-section 1256 
position that is offsetting to the non-section 1256 gain position of the 
section 1092(b)(2) identified mixed straddle. At year-end there is $200 
of unrecognized gain in the non-section 1256 position that was entered 
into on December 15. Under these circumstances, the $2,200 loss on the 
section 1256 contract will be offset against the $2,000 gain on the non-
section 1256 position. The net $200 loss from the straddle will be 
treated as 60 percent long-term capital loss and 40 percent short-term 
capital loss because it is attributable to the section 1256 contract. 
The net loss of $200 from the straddle will be disallowed in 1985 under 
the loss deferral rules of section 1092(a) because there is $200 of 
unrecognized gain in a successor position (as defined in paragraph (n) 
of Sec. 1.1092(b)-5T) at year-end. See paragraph (c) of this section.

    (3) All of the non-section 1256 positions of a section 1092(b)(2) 
identified mixed straddle disposed of on the same day. This paragraph 
(b)(3) applies if all of the non-section 1256 positions of a section 
1092(b)(2) identified mixed straddle are disposed of on the same day or 
if this paragraph (b)(3) is made applicable by paragraph (b)(5) of this 
section. In the case to which this paragraph (b)(3) applies, gain and 
loss realized from non-section 1256 positions shall be netted. Realized 
and unrealized gain and loss with respect to the section 1256 contracts 
of the straddle also shall be netted on that day. Realized net gain or 
loss from the non-section 1256 positions shall then be offset against 
net gain or loss from the section 1256 contracts to determine the net 
gain or loss

[[Page 218]]

from the straddle on that day. Net gain or loss from the straddle that 
is attributable to the non-section 1256 positions shall be realized and 
treated as short-term capital gain or loss on that day. Net gain or loss 
from the straddle that is attributable to realized gain or loss with 
respect to section 1256 contracts shall be realized and treated as 60 
percent long-term capital gain or loss and 40 percent short-term capital 
gain or loss. Any gain or loss subsequently realized on the section 1256 
contracts shall be adjusted (through an adjustment to basis or 
otherwise) to take into account the extent to which gain or loss was 
offset by unrealized gain or loss on the section 1256 contracts on that 
day. This paragraph (b)(3) may be illustrated by the following examples. 
It is assumed in each example that the positions are the only positions 
held directly or indirectly (through a related person or flowthrough 
entity) by an individual calendar year taxpayer during the taxable year.

    Example 1. On July 20, 1985, A enters into a section 1256 contract 
and an offsetting non-section 1256 position and makes a valid election 
to treat such straddle as a section 1092(b)(2) identified mixed 
straddle. On July 27, 1985, A disposes of the non-section 1256 position 
at a $1,500 loss, at which time there is $1,500 of unrealized gain in 
the section 1256 contract. A holds the section 1256 contract at year-end 
at which time there is $1,800 of gain. Under these circumstances, on 
July 27, 1985, A offsets the $1,500 loss on the non-section 1256 
position against the $1,500 gain on the section 1256 contract and 
realizes no gain or loss. On December 31, 1985, A realizes a $300 gain 
on the section 1256 contract because the position is deemed disposed of 
under section 1256(a)(1). The $300 gain is equal to $1,800 of gain less 
a $1,500 adjustment for unrealized gain offset against the loss realized 
on the non-section 1256 position on July 27, 1985, and the gain will be 
treated as 60 percent long-term capital gain and 40 percent short-term 
capital gain.
    Example 2. Assume the facts are the same as in example (1), except 
that on July 27, 1985, A realized a $1,700 loss on the non-section 1256 
position. Under these circumstances, on July 27, 1985, A offsets the 
$1,700 loss on the non-section 1256 position against the $1,500 gain on 
the section 1256 contract. A realizes a $200 loss from the straddle on 
July 27, 1985, which will be treated as short-term capital loss because 
it is attributable to the non-section 1256 position. On December 31, 
1985, A realizes a $300 gain on the section 1256 contract, computed as 
in example (1), which will be treated as 60 percent long-term capital 
gain and 40 percent short-term capital gain.
    Example 3. On March 1, 1985, A enters into a straddle consisting of 
two non-section 1256 positions and two section 1256 contracts and makes 
a valid election to treat such straddle as a section 1092(b)(2) 
identified mixed straddle. On March 11, 1985, A disposes of the non-
section 1256 positions, one at a $100 loss and the other at a $150 loss, 
and disposes of one section 1256 contract at a $100 loss. On that day 
there is $100 of unrealized gain on the section 1256 contract retained 
by A. A holds the remaining section 1256 contract at year-end, at which 
time there is $150 of gain. Under these circumstances, on March 11, 
1985, A will first net the gains and losses from the section 1256 
contracts and net the gains and losses from the non-section 1256 
positions resulting in no gain or loss on the section 1256 contracts and 
a net loss of $250 on the non-section 1256 positions. Since there is no 
gain or loss to offset against the non-section 1256 positions, the net 
loss of $250 will be treated as short-term capital loss because it is 
attributable to the non-section 1256 positions. On December 31, 1985, A 
realizes a $50 gain on the remaining section 1256 contract because the 
position is deemed disposed of under section 1256(a)(1). The $50 gain is 
equal to $150 gain less a $100 adjustment to take into account the $100 
unrealized gain that was offset against the $100 loss realized on the 
section 1256 contract on March 11, 1985.
    Example 4. Assume the facts are the same as in example (3), except 
that A disposes of the section 1256 contract at a $500 gain. As in 
example (3), A has a net loss of $250 on the non-section 1256 positions 
disposed of. In this example, however, A has net gain of $600 
($500+$100) on the section 1256 contracts on March 11, 1985. Therefore, 
of the net gain from the straddle of $350 ($600-$250), $250 ($500-$250) 
is treated as 60 percent long-term capital gain and 40 percent short-
term capital gain because only $250 is attributable to the realized gain 
from the section 1256 contract. In addition, because none of the $100 
unrealized gain from the remaining section 1256 contract was offset 
against gain or loss on the non-section 1256 positions, no adjustment is 
made under paragraph (b)(3) of this section and the entire $150 gain on 
December 31 with respect to that contract is realized on that date.

    (4) All of the section 1256 contracts of a section 1092(b)(2) 
identified mixed straddle disposed of on the same day. This paragraph 
(b)(4) applies if all of the section 1256 contracts of a section 
1092(b)(2) identified mixed straddle are disposed of (or deemed disposed 
of) on the same day or if this paragraph (b)(4) is made

[[Page 219]]

applicable by paragraph (b)(5) of this section. In the case to which 
this paragraph (b)(4) applies, gain and loss realized from section 1256 
contracts shall be netted. Realized and unrealized gain and loss with 
respect to the non-section 1256 positions of the straddle also shall be 
netted on that day. Realized net gain or loss from the section 1256 
contracts shall be treated as short-term capital gain or loss to the 
extent of net gain or loss on the non-section 1256 positions on that 
day. Net gain or loss with respect to the section 1256 contracts that 
exceeds the net gain or loss with respect to the non-section 1256 
positions of the straddle shall be treated as 60 percent long-term 
capital gain or loss and 40 percent short-term capital gain or loss. See 
paragraph (b)(7) of this section relating to the gain or loss on such 
non-section 1256 positions. This paragraph (b)(4) may be illustrated by 
the following examples. It is assumed in each example that the positions 
are the only positions held directly or indirectly (through a related 
person or flowthrough entity) by an individual calendar year taxpayer 
during the taxable year.

    Example 1. On December 30, 1985, A enters into a section 1256 
contract and an offsetting non-section 1256 position and makes a valid 
election to treat such straddle as a section 1092(b)(2) identified mixed 
straddle. On December 31, 1985, A disposes of the section 1256 contract 
at a $1,000 gain, at which time there is $1,000 of unrealized loss in 
the non-section 1256 position. Under these circumstances, the $1,000 
gain realized on the section 1256 contract will be treated as short-term 
capital gain because there is a $1,000 loss on the non-section 1256 
position.
    Example 2. Assume the facts are the same as in example (1), except 
that A realized a $1,500 gain on the disposition of the section 1256 
contract. Under these circumstances, $1,000 of the gain realized on the 
section 1256 contract will be treated as short-term capital gain because 
there is a $1,000 loss on the non-section 1256 position. The net gain of 
$500 from the straddle will be treated as 60 percent long-term capital 
gain and 40 percent short-term capital gain because it is attributable 
to the section 1256 contract.
    Example 3. Assume the facts are the same as in example (1), except 
that A realized a $1,000 loss on the section 1256 contract and there is 
$1,000 of unrecognized gain on the non-section 1256 position. Under 
these circumstances, the $1,000 loss on the section 1256 contract will 
be treated as short-term capital loss because there is a $1,000 gain on 
the non-section 1256 position. Such loss, however, will be disallowed in 
1985 under the loss deferral rules of section 1092(a) because there is 
$1,000 of unrecognized gain in an offsetting position at year-end. See 
paragraph (c) of this section.
    Example 4. Assume the facts are the same as in example (1), except 
that the section 1256 contract and non-section 1256 position were 
entered into on December 1, 1985, and the section 1256 contract is 
disposed of on December 19, 1985, for a $1,000 gain, at which time there 
is $1,000 of unrealized loss on the non-section 1256 position. At year-
end there is only $800 of unrealized loss in the non-section 1256 
position. Under these circumstances, the result is the same as in 
example (1) because there was $1,000 of unrealized loss on the non-
section 1256 position at the time of the disposition of the section 1256 
contract.
    Example 5. On July 15, 1985, A enters into a straddle consisting of 
two non-section 1256 positions and two section 1256 contracts and makes 
a valid election to treat such straddle as a section 1092(b)(2) 
identified mixed straddle. On July 20, 1985, A disposes of one non-
section 1256 position at a gain of $1,000 and both section 1256 
contracts at a net loss of $1,000. On the same day there is $200 of 
unrealized loss on the non-section 1256 position retained by A. Under 
these circumstances, realized and unrealized gain and loss with respect 
to the non-section 1256 positions is netted, resulting in a net gain of 
$800. Thus, $800 of the net loss on the section 1256 contracts disposed 
of will be treated as short-term capital loss because there is $800 of 
net gain on the non-section 1256 positions. In addition, the net loss of 
$200 from the straddle will be treated as 60 percent long-term capital 
loss and 40 percent short-term capital loss because it is attributable 
to the section 1256 contract.

    (5) Disposition of one or more, but not all, positions of a section 
1092(b)(2) identified mixed straddle on the same day. If one or more, 
but not all, of the positions of a section 1092(b)(2) identified mixed 
straddle are disposed of on the same day, and paragraphs (b) (3) and (4) 
of this section are not applicable (without regard to this paragraph 
(b)(5)), the gain and loss from the non-section 1256 positions that are 
disposed of on that day shall be netted, and the gain and loss from the 
section 1256 contracts that are disposed of on that day shall be netted. 
In order to determine whether the rules of paragraph (b)(3) or (b)(4) of 
this section apply, net gain or loss from the section 1256 contracts 
disposed of shall then be offset against net

[[Page 220]]

gain or loss from the non-section 1256 positions disposed of to 
determine net gain or loss from such positions of the straddle. If net 
gain or loss from the disposition of such positions of the straddle is 
attributable to the non-section 1256 positions disposed of, the rules 
prescribed in paragraph (b)(3) of this section apply. If net gain or 
loss from the disposition of such positions is attributable to the 
section 1256 contracts disposed of, the rules prescribed in paragraph 
(b)(4) of this section apply. If the net gain or loss from the netting 
of non-section 1256 positions disposed of and the netting of section 
1256 contracts disposed of are either both gains or losses, the rules 
prescribed in paragraph (b)(3) of this section shall apply to net gain 
or loss from such non-section 1256 positions, and the rules prescribed 
in paragraph (b)(4) of this section shall apply to net gain or loss from 
such section 1256 contracts. However, for purposes of determining the 
treatment of gain or loss subsequently realized on a position of such 
straddle, to the extent that unrealized gain or loss on other positions 
was used to offset realized gain or loss on a non-section 1256 position 
under paragraph (b)(3) of this section, or was used to treat realized 
gain or loss on a section 1256 contract as short-term capital gain or 
loss under paragraph (b)(4) of this section, such amount shall not be 
used for such purposes again. This paragraph (b)(5) may be illustrated 
by the following examples. It is assumed that the positions are the only 
positions held directly or indirectly (through a related person or 
flowthrough entity) by an individual calendar year taxpayer during the 
taxable year.

    Example 1. On July 15, 1985, A enters into a straddle consisting of 
four non-section 1256 positions and four section 1256 contracts and 
makes a valid election to treat such straddle as a section 1092(b)(2) 
identified mixed straddle. On July 20, 1985, A disposes of one non-
section 1256 position at a gain of $800 and one section 1256 contract at 
a loss of $300. On the same day there is $400 of unrealized net loss on 
the section 1256 contracts retained by A and $100 of unrealized net loss 
on the non-section 1256 positions retained by A. Under these 
circumstances, the loss of $300 on the section 1256 contract disposed of 
will be offset against the gain of $800 on the non-section 1256 position 
disposed of. The net gain of $500 is attributable to the non-section 
1256 position. Therefore, the rules of paragraph (b)(3) of this section 
apply. Under the rules of paragraph (b)(3) of this section, the net loss 
of $700 on the section 1256 contracts is offset against the net gain of 
$800 attributable to the non-section 1256 position disposed of. The net 
gain of $100 will be treated as short-term capital gain because it is 
attributable to the non-section 1256 position disposed of. Gain or loss 
subsequently realized on the section 1256 contracts will be adjusted to 
take into account the unrealized loss of $400 that was offset against 
the $800 gain attributable to the non-section 1256 position disposed of.
    Example 2. Assume the facts are the same as in Example 1, except 
that A disposes of the non-section 1256 position at a gain of $300 and 
the section 1256 contract at a loss of $800, and there is $200 of 
unrealized net gain in the non-section 1256 positions retained by A. 
Under these circumstances, the gain of $300 on the non-section 1256 
position disposed of will be offset against the loss of $800 on the 
section 1256 contract disposed of. The net loss of $500 is attributable 
to the section 1256 contract. Therefore, the rules of paragraph (b)(4) 
of this section apply. Under the rules of paragraph (b)(4) of this 
section, $500 of the net loss realized on the section 1256 contract will 
be treated as short-term capital loss because there is $500 of realized 
and unrealized gain in the non-section 1256 positions. The remaining net 
loss of $300 will be treated as 60 percent long-term capital loss and 40 
percent short-term capital loss because it is attributable to a section 
1256 contract disposed of. In addition, A realizes a $300 short-term 
capital gain attributable to the disposition of the non-section 1256 
position.
    Example 3. (i) Assume the facts are the same as in example (1), 
except that the section 1256 contract was disposed of at a $500 gain. 
Under these circumstances, there is gain of $500 attributable to the 
section 1256 contact disposed of and a gain of $800 attributable to the 
non-section 1256 position. Therefore, the rules of both paragraphs (b) 
(3) and (4) of this Sec. 1.1092(b)-3T apply.
    (ii) Under paragraph (b)(3) of this section, the realized and 
unrealized gains and losses on the section 1256 contracts are netted, 
resulting in a net gain of $100 ($500-$400). The section 1256 contract 
net gain does not offset the gain on the non-section 1256 position 
disposed of. Therefore, the gain of $800 on the non-section 1256 
position disposed of will be treated as a short-term capital gain 
because there is no net loss on the section 1256 contracts.
    (iii) Under paragraph (b)(4) of this section, the realized and 
unrealized gains and losses on the non-section 1256 positions are 
netted, resulting in a non-section 1256 position net gain of $700 ($800-
$100). Because there is no net loss on the non-section 1256 positions,

[[Page 221]]

the $500 gain realized on the section 1256 contract will be treated as 
60 percent long-term capital gain and 40 percent short-term capital 
gain.

    (6) Accrued gain and loss with respect to positions of a section 
1092(b)(2) identified mixed straddle. If one or more positions of a 
section 1092(b)(2) identified mixed straddle were held by the taxpayer 
on the day prior to the day the section 1092(b)(2) identified mixed 
straddle is established, such position or positions shall be deemed sold 
for their fair market value as of the close of the last business day 
preceding the day such straddle is established. See Sec. Sec. 
1.1092(b)-1T and 1.1092(b)-2T for application of the loss deferral and 
wash sale rules and for treatment of holding periods and losses with 
respect to such positions. An adjustment (through an adjustment to basis 
or otherwise) shall be made to any subsequent gain or loss realized with 
respect to such to such position or positions for any gain or loss 
recognized under this paragraph (b)(6). This paragraph (b)(6) may be 
illustrated by the following examples. It is assumed in each example 
that the positions are the only positions held directly or indirectly 
(through a related person or flowthrough entity) by an individual 
calendar year taxpayer during the taxable year.

    Example 1. On January 1, 1985, A enters into a non-section 1256 
position. As of the close of the day on July 9, 1985, there is $500 of 
unrealized long-term capital gain in the non-section 1256 position. On 
July 10, 1985, A enters into an offsetting section 1256 contract and 
makes a valid election to treat the straddle as a section 1092(b)(2) 
identified mixed straddle. Under these circumstances, on July 9, 1985, A 
will recognize $500 of long-term capital gain on the non-section 1256 
position.
    Example 2. On February 1, 1985, A enters into a section 1256 
contract. As of the close of the day on February 4, 1985, there is $500 
of unrealized gain on the section 1256 contract. On February 5, 1985, A 
enters into an offsetting non-section 1256 position and makes a valid 
election to treat the straddle as a section 1092(b)(2) identified mixed 
straddle. Under these circumstances, on February 4, 1985, A will 
recognize a $500 gain on the section 1256 contract, which will be 
treated as 60 percent long-term capital gain and 40 percent short-term 
capital gain.
    Example 3. Assume the facts are the same as in example (2) and that 
on February 10, 1985, there is $2,000 of unrealized gain in the section 
1256 contract. A disposes of the section 1256 contract at a $2,000 gain 
and disposes of the offsetting non-section 1256 position at a $1,000 
loss. Under these circumstances, the $2,000 gain on the section 1256 
contract will be reduced to $1,500 to take into account the $500 gain 
recognized when the section 1092(b)(2) identified mixed straddle was 
established. The $1,500 gain on the section 1256 contract will be offset 
against the $1,000 loss on the non-section 1256 position. The net $500 
gain from the straddle will be treated as 60 percent long-term capital 
gain and 40 percent short-term capital gain because it is attributable 
to the section 1256 contract.
    Example 4. On March 1, 1985, A enters into a non-section 1256 
position. As of the close of the day on March 2, 1985, there is $400 of 
unrealized short-term capital gain in the non-section 1256 position. On 
March 3, 1985, A enters into an offsetting section 1256 contract and 
makes a valid election to treat the straddle as a section 1092(b)(2) 
identified mixed straddle. On March 10, 1985, A disposes of the section 
1256 contract at a $500 loss and the non-section 1256 position at a $500 
gain. Under these circumstances, on March 2, 1985, A will recognize $400 
of short-term capital gain attributable to the gain accrued on the non-
section 1256 position prior to the day the section 1092(b)(2) identified 
mixed straddle was established. On March 10, 1985, the gain of $500 on 
the non-section 1256 position will be reduced to $100 to take into 
account the $400 of gain recognized when the section 1092(b)(2) 
identified mixed straddle was established. The $100 gain on the non-
section 1256 position will be offset against the $500 loss on the 
section 1256 contract. The net loss of $400 from the straddle will be 
treated as 60 percent long-term capital loss and 40 percent short-term 
capital loss because it is attributable to the section 1256 contract.

    (7) Treatment of gain and loss from non-section 1256 positions after 
disposition of all section 1256 contracts. Gain or loss on a non-section 
1256 position that is part of a section 1092(b)(2) identified mixed 
straddle and that is held after all section 1256 contracts in the 
straddle are disposed of shall be treated as short-term capital gain or 
loss to the extent attributable to the period when the positions were 
part of such straddle. See Sec. 1.1092(b)-2T for rules concerning the 
holding period of such positions. This paragraph (b)(7) may be 
illustrated by the following example. It is assumed that the positions 
are the only positions held directly or indirectly (through a related 
person or flowthrough entity) during the taxable years.


[[Page 222]]


    Example: On December 1, 1985, A, an individual calendar year 
taxpayer, enters into a section 1256 contract and an offsetting non-
section 1256 position and makes a valid election to treat such straddle 
as a section 1092(b)(2) identified mixed straddle. On December 31, 1985, 
A disposes of the section 1256 contract at a $1,000 loss. On the same 
day, there is $1,000 of unrecognized gain in the non-section 1256 
position. The $1,000 loss on the section 1256 contract is treated as 
short-term capital loss because there is a $1,000 gain on the non-
section 1256 position, but the $1,000 loss is disallowed in 1985 because 
there is $1,000 of unrecognized gain in the offsetting nonsection 1256 
position. See section 1092(a) and Sec. 1.1092(b)-1T. On July 10, 1986, 
A disposes of the non-section 1256 position at a $1,500 gain, $500 of 
which is attributable to the post-straddle period. Under these 
circumstances, $1,000 of the gain on the non-section 1256 position will 
be treated as short-term capital gain because that amount of the gain is 
attributable to the period when the position was part of a section 
1092(b)(2) identified mixed straddle. The remaining $500 of the gain 
will be treated as long-term capital gain because the position was held 
for more than six months after the straddle was terminated. In addition, 
the $1,000 short-term capital loss disallowed in 1985 will be taken into 
account at this time.

    (c) Coordination with loss deferral and wash sale rules of Sec. 
1.1092(b)-1T. This section shall apply prior to the application of the 
loss deferral and wash sale rules of Sec. 1.1092(b)-1T.
    (d) Identification required--(1) In general. To elect the provisions 
of this section, a taxpayer must clearly identify on a reasonable and 
consistently applied economic basis each position that is part of the 
section 1092(b)(2) identified mixed straddle before the close of the day 
on which the section 1092(b)(2) identified mixed straddle is 
established. If the taxpayer disposes of a position that is part of a 
section 1092(b)(2) identified mixed straddle before the close of the day 
on which the straddle is established, such identification must be made 
at or before the time that the taxpayer disposes of the position. In the 
case of a taxpayer who is an individual, the close of the day is 
midnight (local time) in the location of the taxpayer's principal 
residence. In the case of all other taxpayers, the close of the day is 
midnight (local time) in the location of the taxpayer's principal place 
of business. Only the person or entity that directly holds all positions 
of a straddle may make the election under this section.
    (2) Presumptions. A taxpayer is presumed to have identified a 
section 1092(b)(2) identified mixed straddle by the time prescribed in 
paragraph (d)(1) of this section if the taxpayer receives independent 
verification of the identification (within the meaning of paragraph 
(d)(4) of this section). The presumption referred to in this paragraph 
(d)(2) may be rebutted by clear and convincing evidence to the contrary.
    (3) Corroborating evidence. If the presumption of paragraph (d)(2) 
of this section does not apply, the burden shall be on the taxpayer to 
establish that an election under paragraph (d)(1) of this section was 
made by the time specified in paragraph (d)(1) of this section. If the 
taxpayer has no evidence of the time when the identification required by 
paragraph (d)(1) of this section is made, other than the taxpayer's own 
testimony, the election is invalid unless the taxpayer shows good cause 
for failure to have evidence other than the taxpayer's own testimony.
    (4) Independent verification. For purposes of this section, the 
following constitute independent verification:
    (i) Separate account. Placement of one or more positions of a 
section 1092(b)(2) identified mixed straddle in a separate account 
designated as a section 1092(b)(2) identified mixed straddle account 
that is maintained by a broker (as defined in Sec. 1.6045-1(a)(1)), 
futures commission merchant (as defined in 7 U.S.C. 2 and 17 CFR 
1.3(p)), or similar person and in which notations are made by such 
person identifying all positions of the section 1092(b)(2) identified 
mixed straddle and stating the date the straddle is established.
    (ii) Confirmation. A written confirmation from a person referred to 
in paragraph (d)(4)(i) of this section, or from the party from which one 
or more positions of the section 1092(b)(2) identified mixed straddle 
are acquired, stating the date the straddle is established and 
identifying the other positions of the straddle.
    (iii) Other methods. Such other methods of independent verification 
as the Commissioner may approve at the Commissioner's discretion.

[[Page 223]]

    (5) Section 1092 (b)(2) identified mixed straddles established 
before February 25, 1985. Notwithstanding the provisions of paragraph 
(d)(1) of this section, relating to the time of identification of a 
section 1092(b)(2) identified mixed straddle, a taxpayer may identify 
straddles that were established before February 25, 1985 as section 
1092(b)(2) identified mixed straddles after the time specified in 
paragraph (d)(1) of this section if the taxpayer adopts a reasonable and 
consistent economic basis for identifying the positions of such 
straddles.
    (e) Effective date--(1) In general. The provisions of this section 
shall apply to straddles established on or after January 1, 1984.
    (2) Pre-1984 accrued gain. If the last business day referred to in 
paragraph (b)(6) of this section is contained in a period to which 
paragraph (b)(6) does not apply, the gains and losses from the deemed 
sale shall be included in the first period to which paragraph (b)(6) 
applies.

(Secs. 1092(b)(1), 1092(b)(2) and 7805 of the Internal Revenue Code of 
1954 (68A Stat. 917, 98 Stat. 627; 26 U.S.C. 1092(b)(1), 1092(b)(2), 
7805))

[T.D. 8008, 50 FR 3325, Jan. 24, 1985; 50 FR 12243, Mar. 28, 1985; 50 FR 
19344, May 8, 1985]



Sec. 1.1092(b)-4T  Mixed straddles; mixed straddle account (temporary).

    (a) In general. A taxpayer may elect (in accordance with paragraph 
(f) of this section) to establish one or more mixed straddle accounts 
(as defined in paragraph (b) of this section). Gains and losses from 
positions includible in a mixed straddle account shall be determined and 
treated in accordance with the rules set forth in paragraph (c) of this 
section. A mixed straddle account is treated as established as of the 
first day of the taxable year for which the taxpayer makes the election 
or January 1, 1984, whichever is later. See Sec. 1.1092(b)-5T relating 
to definitions.
    (b) Mixed straddle account defined--(1) In general. The term mixed 
straddle account means an account for determining gains and losses from 
all positions held as capital assets in a designated class of activities 
by the taxpayer at the time the taxpayer elects to establish a mixed 
straddle account. A separate mixed straddle account must be established 
for each separate designated class of activities.
    (2) Permissible designations. Except as otherwise provided in this 
section, a taxpayer may designate as a class of activities the types of 
positions that a reasonable person, on the basis of all the facts and 
circumstances, would ordinarily expect to be offsetting positions. This 
paragraph (b)(2) may be illustrated by the following example. It is 
assumed in the example that the positions are the only positions held 
directly or indirectly (through a related person or flowthrough entity) 
during the taxable year, and that gain or loss from the positions is 
treated as gain or loss from a capital asset.

    Example: B engages in transactions in dealer equity options on XYZ 
Corporation stock, stock in XYZ Corporation, dealer equity options on 
UVW Corporation stock, and stock in UVW Corporation. A reasonable 
person, on the basis of all the facts and circumstances, would not 
expect dealer equity options on XYZ Corporation stock and stock in XYZ 
Corporation to offset any dealer equity options on UVW Corporation stock 
or any stock in UVW Corporation. If B makes the mixed straddle account 
election under this section for all such positions, B must designate two 
separate classes of activities, one consisting of transactions in dealer 
equity options on XYZ Corporation stock and stock in XYZ Corporation, 
and the other consisting of transactions in dealer equity options on UVW 
Corporation stock and stock in UVW Corporation, and maintain two 
separate mixed straddle accounts.

    (3) Positions that offset positions in more than one mixed straddle 
account. Gains and losses from positions that a reasonable person, on 
the basis of all the facts and circumstances, ordinarily would expect to 
be offsetting with respect to positions in more than one mixed straddle 
account shall be allocated among such accounts under a reasonable and 
consistent method that clearly reflects income. This paragraph (b)(2) 
may be illustrated by the following example. It is assumed that the 
positions are the only positions held directly or indirectly (through a 
related person or flowthrough entity) during the taxable year, and that 
gain or loss from the positions is treated as gain or loss from a 
capital asset.


[[Page 224]]


    Example: B holds stock in XYZ Corporation, UVW Corporation, and RST 
Corporation, and options on a broad based stock index future. A 
reasonable person, on the basis of all the facts and circumstances, 
would expect the stock in XYZ Corporation, UVW Corporation, and RST 
Corporation to be offsetting positions with respect to the options on 
the broad based stock index future. A reasonable person, on the basis of 
all the facts and circumstances, would not expect that stock in XYZ 
Corporation, UVW Corporation, or RST Corporation would be offsetting 
positions with respect to each other. If B makes the mixed straddle 
account election under this section for all such positions, B must 
designate three separate classes of activities: one consisting of stock 
in XYZ Corporation; one consisting of stock in UVW Corporation; and one 
consisting of stock in RST Corporation, and maintain three separate 
mixed straddle accounts. Options on the broad based stock index future 
must be designated as part of all three classes of activities and gains 
and losses from such options must be allocated among such accounts under 
a reasonable and consistent method that clearly reflects income, because 
such options are a type of position expected to be offsetting with 
respect to the positions in all three mixed straddle accounts.

    (4) Impermissible designations--(i) Types of positions that are not 
offsetting included in designated class of activities. If the 
Commissioner determines, on the basis of all the facts and 
circumstances, that a class of activities designated by a taxpayer 
includes types of positions that a reasonable person, on the basis of 
all the facts and circumstances, ordinarily would not expect to be 
offsetting positions with respect to other types of positions in the 
account, the Commissioner may--
    (A) Amend the class of activities designated by the taxpayer and 
remove positions from the account that are not within the amended 
designated class of activities; or
    (B) Amend the class of activities designated by the taxpayer to 
establish two or more mixed straddle accounts.
    (ii) Types of positions that are offsetting not included in 
designated class of activities. If the Commissioner determines, on the 
basis of all the facts and circumstances, that a designated class of 
activities does not include types of positions that are offsetting with 
respect to types of positions within the designated class, the 
Commissioner may--
    (A) Amend the class of activities designated by the taxpayer to 
include types of positions that are offsetting with respect to the types 
of positions within the designated class and place such positions in the 
account; or
    (B) Amend the class of activities designated by the taxpayer to 
exclude types of positions that are offsetting with respect to the types 
of positions that are not in the account.
    (iii) Treatment of positions removed from or included in the 
account. (A) Positions removed from a mixed straddle account will be 
subject to the rules of taxation generally applicable to such positions. 
Thus, for example, if the positions removed from the account are 
offsetting positions with respect to other positions outside the 
account, the rules of Sec. Sec. 1.1092(b)-1T and 1.1092(b)-2T apply.
    (B) If the taxpayer acted consistently and in good faith in 
designating the class of activities of the account and in placing 
positions in the account, the rules of Sec. 1.1092(b)-2T(b)(2) shall 
not apply to any mixed straddles resulting from the removal of such 
positions from the account and the Commissioner, at the Commissioner's 
discretion, may identify such mixed straddles as section 1092(b)(2) 
identified mixed straddles and apply the rules of Sec. 1.1092(b)-3T(b) 
to such straddles.
    (C) If positions are placed in a mixed straddle account, such 
positions shall be treated as if they were originally included in the 
mixed straddle account in which they are placed.
    (5) Positions included in a mixed straddle account that are not 
within the designated class of activities. The Commissioner may remove 
one or more positions from a mixed straddle account if, on the basis of 
all the facts and circumstances, the Commissioner determines that such 
positions are not within the designated class of activities of the 
account. See paragraph (b)(4)(iii) of this section for rules concerning 
the treatment of such positions.
    (6) Positions outside a mixed straddle account that are within the 
designated class of activities. If a taxpayer holds types of positions 
outside of a mixed straddle account (including positions in another 
mixed straddle account) that are within the designated class of

[[Page 225]]

activities of a mixed straddle account, the Commissioner may require the 
taxpayer to include such types of positions in the mixed straddle 
account, move positions from one account to another, or remove from the 
mixed straddle account types of positions that are offsetting with 
respect to the types of positions held outside the account. See 
paragraph (b)(4)(iii) of this section for the treatment of such 
positions.
    (c) Treatment of gains and losses from positions in a mixed straddle 
account--(1) Daily account net gain or loss. Except as provided in 
paragraphs (d) and (e) of this section (relating to positions in a mixed 
straddle account before January 1, 1985) as of the close of each 
business day of the taxable year, gain or loss shall be determined for 
each position in a mixed straddle account that is disposed of during the 
day. Positions in a mixed straddle account that have not been disposed 
of as of the close of the day shall be treated as if sold for their fair 
market value at the close of each business day. Gains and losses for 
each business day from non-section 1256 positions in each mixed straddle 
account shall be netted to determine net non-section 1256 position gain 
or loss for the account, and gains and losses for each business day from 
section 1256 contracts in each mixed straddle account shall be netted to 
determine net section 1256 contract gain or loss for the account. Net 
non-section 1256 position gain or loss from the account is then offset 
against net section 1256 contract gain or loss from the same mixed 
straddle account to determine the daily account net gain or loss for the 
account. If daily account net gain or loss is attributable to the net 
non-section 1256 position gain or loss, daily account net gain or loss 
for such account shall be treated as short-term capital gain or loss. If 
daily account net gain or loss is attributable to the net section 1256 
contract gain or loss, daily account net gain or loss for such account 
shall be treated as 60 percent long-term capital gain or loss and 40 
percent short-term capital gain or loss. If net non-section 1256 
position gain or loss and net section 1256 contract gain or loss are 
either both gains or both losses, that portion of the daily account net 
gain or loss attributable to net non-section 1256 position gain or loss 
shall be treated as short-term capital gain or loss and that portion of 
the daily account net gain or loss attributable to net section 1256 
contract gain or loss shall be treated as 60 percent long-term capital 
gain or loss and 40 percent short-term capital gain or loss. An 
adjustment (through an adjustment to basis or otherwise) shall be made 
to any subsequent gain or loss determined under this paragraph (c)(1) to 
take into account any gain or loss determined for prior business days 
under this paragraph (c)(1).
    (2) Annual account net gain or loss; total annual account net gain 
or loss. On the last business day of the taxable year, the annual 
account net gain or loss for each mixed straddle account established by 
the taxpayer shall be determined by netting the daily account net gain 
or loss for each business day in the taxable year for each account. 
Annual account net gain or loss for each mixed straddle account shall be 
adjusted pursuant to paragraph (c)(3) of this section. The total annual 
account net gain or loss shall be determined by netting the annual 
account net gain or loss for all mixed straddle accounts established by 
the taxpayer, as adjusted pursuant to paragraph (c)(3) of this section. 
Total annual account net gain or loss is subject to the limitations of 
paragraph (c)(4) of this section. See paragraphs (d) and (e) of this 
section for determining the annual account net gain or loss for mixed 
straddle accounts established for taxable years beginning before January 
1, 1985.
    (3) Application of section 263(g) to mixed straddle accounts. No 
deduction shall be allowed for interest and carrying charges (as defined 
in section 263(g)(2)) properly allocable to a mixed straddle account. 
Interest and carrying charges properly allocable to a mixed straddle 
account means the excess of--
    (i) The sum of--
    (A) Interest on indebtedness incurred or continued during the 
taxable year to purchase or carry any position in the account; and
    (B) All other amounts (including charges to insure, store or 
transport the personal property) paid or incurred to carry any position 
in the account; over

[[Page 226]]

    (ii) The sum of--
    (A) The amount of interest (including original issue discount) 
includible in gross income for the taxable year with respect to all 
positions in the account;
    (B) Any amount treated as ordinary income under section 
1271(a)(3)(A), 1278, or 1281(a) with respect to any position in the 
account for the taxable year; and
    (C) The excess of any dividends includible in gross income with 
respect to positions in the account for the taxable year over the amount 
of any deduction allowable with respect to such dividends under section 
243, 244, or 245.

For purposes of paragraph (c)(3)(i) of this section, the term interest 
includes any amount paid or incurred in connection with positions in the 
account used in a short sale. Any interest and carrying charges 
disallowed under this paragraph (c)(3) shall be capitalized by treating 
such charges as an adjustment to the annual account net gain or loss and 
shall be allocated pro rata between net short-term capital gain or loss 
and net long-term capital gain or loss.
    (4) Limitation on total annual account net gain or loss. No more 
than 50 percent of total annual account net gain for the taxable year 
shall be treated as long-term capital gain. Any long-term capital gain 
in excess of the 50 percent limit shall be treated as short-term capital 
gain. No more than 40 percent of total annual account net loss for the 
taxable year shall be treated as short-term capital loss. Any short-term 
capital loss in excess of the 40 percent limit shall be treated as long-
term capital loss.
    (5) Accrued gain and loss with respect to positions includible in a 
mixed straddle account. Positions includable in a mixed straddle account 
that are held by a taxpayer on the day prior to the day the mixed 
straddle account is established shall be deemed sold for their fair 
market value as of the close of the last business day preceding the day 
such mixed straddle account is established. See Sec. Sec. 1.1092(b)-1T 
and 1.1092(b)-2T for application of the loss deferral and wash sale 
rules and for treatment of holding periods and losses with respect to 
such positions. An adjustment (through an adjustment to basis or 
otherwise) shall be made to any subsequent gain or loss realized with 
respect to such positions for any gain or loss recognized under this 
paragraph (c)(5).
    (6) Examples. This paragraph (c) may be illustrated by the following 
examples. It is assumed in each example that the positions are the only 
positions held directly or indirectly (through a related person or 
flowthrough entity) by an individual calendar year taxpayer during the 
taxable year, and that gain or loss from the positions is treated as 
gain or loss from a capital asset.

    Example 1. A establishes a mixed straddle account for a class of 
activities consisting of transactions in stock of XYZ Corporation and 
dealer equity options on XYZ Corporation stock. Assume that A enters 
into no transactions in XYZ Corporation stock or dealer equity options 
on XYZ Corporation stock prior to December 26, 1985. Thus, the net non-
section 1256 position gain or loss and the net section 1256 contract 
gain or loss for the account are zero for each business day except the 
following days:

------------------------------------------------------------------------
                                                           Net section
                                        Net non-section   1256 contract
                                         1256 position     gain or loss
                                          gain or loss         (XYZ
                                              (XYZ         corporation
                                          corporation     dealer equity
                                             stock)          options)
------------------------------------------------------------------------
December 26, 1985.....................         $1,000          $20,000
December 27, 1985.....................         (9,000)           3,000
December 30, 1985.....................         (5,000)          15,000
December 31, 1985.....................          7,000           (2,000)
------------------------------------------------------------------------

    The daily account net gain or loss is as follows:

----------------------------------------------------------------------------------------------------------------
                                   Daily account    Treatment of daily account net gain or     Long-     Short-
                                 net gain or loss                    loss                      term       term
----------------------------------------------------------------------------------------------------------------
December 26, 1985..............         $21,000    $1,000 short-term capital gain, $20,000    $12,000   $9,000
                                                    60 percent long-term capital gain and
                                                    40 percent short-term capital gain.
December 27, 1985..............          (6,000)   Short-term capital loss.................  ........   (6,000)
December 30, 1985..............          10,000    60 percent long-term capital gain and 40     6,000    4,000
                                                    percent short-term capital gain.
December 31, 1985..............           5,000    Short-term capital gain.................  ........    5,000
----------------------------------------------------------------------------------------------------------------


[[Page 227]]


The annual account net gain or loss is $18,000 of long-term capital gain 
and $12,000 of short-term capital gain. Because A has no other mixed 
straddle accounts, total annual account net gain or loss is also $18,000 
long-term capital gain and $12,000 short-term capital gain. Because more 
than 50 percent of the total annual account net gain is long-term 
capital gain, $3,000 of the $18,000 long-term capital gain will be 
treated as short-term capital gain.
    Example 2. Assume the facts are the same as in example (1), except 
that interest and carrying charges in the amount of $6,000 are allocable 
to the mixed straddle account and are capitalized under paragraph (c)(3) 
of this section. Under these circumstances, $3,600 (($18,000/
$30,000)x$6,000) of the interest and carrying charges will reduce the 
$18,000 long-term capital gain to $14,400 long-term capital gain and 
$2,400 (($12,000/$30,000)x$6,000) of the interest and carrying charges 
will reduce the $12,000 short-term capital gain to $9,600 short-term 
capital gain. Because more than 50 percent of the total annual account 
net gain is long-term capital gain, $2,400 of the $14,400 long-term 
capital gain will be treated as short-term capital gain.
    Example 3. Assume the facts are the same as in example (1), except 
that A has a second mixed straddle account, which has an annual account 
net loss of $14,000 of long-term capital loss and $6,000 of short-term 
capital loss. Under these circumstances, the total annual account net 
gain is $4,000 ($18,000-$14,000) of long-term capital gain and $6,000 
($12,000-$6,000) of short-term capital gain. Because not more than 50 
percent of the total annual account net gain is long-term capital gain, 
none of the long-term capital gain will be treated as short-term capital 
gain.
    Example 4. Assume the facts are the same as in example (3), except 
that interest and carrying charges in the amount of $4,000 are allocable 
to the second mixed straddle account and are capitalized under paragraph 
(c)(3) of this section. Under these circumstances, $2,800 (($14,000/
$20,000)x$4,000)) of the interest and carrying charges will increase the 
$14,000 long-term capital loss to $16,800 of long-term capital loss and 
$1,200 (($6,000/$20,000)x$4,000)) of the interest and carrying charges 
will increase the $6,000 short-term capital loss to $7,200 short-term 
capital loss. The total annual account net gain is $1,200 of long-term 
capital gain ($18,000 $16,800) and $4,800 ($12,000-$7,200) of short-term 
capital gain. Because not more than 50 percent of the total annual 
account net gain is long-term capital gain, none of the $1,200 long-term 
capital gain will be treated as short-term capital gain.
    Example 5. Assume the facts are the same as in example (1), except 
that A has a second mixed straddle account, which has an annual account 
net loss of $20,000 of long-term capital loss and $15,000 of short-term 
capital loss. Under these circumstances, the total annual account net 
loss is $2,000 ($20,000-$18,000) of long-term capital loss and $3,000 
($15,000-$12,000) of short-term capital loss. Because more than 40 
percent of the total annual account net loss is short-term capital loss, 
$1,000 of the short-term capital loss will be treated as long-term 
capital loss.
    Example 6. A establishes two mixed straddle accounts. Account 1 has 
an annual account net gain of $5,000 short-term capital gain, which 
results from netting $5,000 of long-term capital loss and $10,000 of 
short-term capital gain. Account 2 has an annual account net loss of 
$2,000 long-term capital loss, which results from netting $3,000 of 
long-term capital loss against $1,000 of short-term capital gain. The 
total annual account net gain is $3,000 short-term capital gain, which 
results from netting the annual account net gain of $5,000 short-term 
capital gain from Account 1 against the annual account net loss of 
$2,000 long-term capital loss from Account 2.

    (d) Treatment of gains and losses from positions in a mixed straddle 
account established on or before December 31, 1984, in taxable years 
ending after December 31, 1984; pre-1985 account net gain or loss. For 
mixed straddle accounts established on or before December 31, 1984, in 
taxable years ending after December 31, 1984, the taxpayer on December 
31, 1984, shall determine gain or loss for each position in the mixed 
straddle account that has been disposed of on any day during the period 
beginning on the first day of the taxpayer's taxable year that includes 
December 31, 1984, and ending on December 31, 1984. Positions in the 
mixed straddle account that have not been disposed of as of the close of 
December 31, 1984, shall be treated as if sold for their fair market 
value as of the close of December 31, 1984. Gains and losses for such 
period from non-section 1256 positions in each mixed straddle account 
shall be netted to determine pre-1985 net non-section 1256 position gain 
or loss and gains and losses for such period from section 1256 contracts 
in each mixed straddle account shall be netted to determine pre-1985 net 
section 1256 contract gain or loss. Pre-1985 net non-section 1256 
position gain or loss is then offset against pre-1985 net section 1256 
contract gain or loss from the same mixed straddle account to determine 
the pre-1985 account net gain or loss for the period. If the

[[Page 228]]

pre-1985 account net gain or loss is attributable to pre-1985 net non-
section 1256 position gain or loss, the pre-1985 account net gain or 
loss from such account shall be treated as short-term capital gain or 
loss. If the pre-1985 account net gain or loss is attributable to pre-
1985 net section 1256 contract gain or loss, the pre-1985 account net 
gain or loss from such account shall be treated as 60 percent long-term 
capital gain or loss and 40 percent short-term capital gain or loss. If 
pre-1985 net non-section 1256 position gain or loss and pre-1985 net 
section 1256 contract gain or loss are either both gains or losses, that 
portion of the pre-1985 account net gain or loss attributable to pre-
1985 net non-section 1256 position gain or loss shall be treated as 
short-term capital gain or loss and that portion of the pre-1985 account 
net gain or loss attributable to pre-1985 net section 1256 contract gain 
or loss shall be treated as 60 percent long-term capital gain or loss 
and 40 percent short-term capital gain or loss. An adjustment (through 
an adjustment to basis or otherwise) shall be made to any subsequent 
gain or loss realized with respect to such positions for any gain or 
loss recognized under this paragraph (d). To determine the annual 
account net gain or loss for such account, the pre-1985 account net gain 
or loss shall be treated as daily account net gain or loss for purposes 
of paragraph (c)(2) of this section. See paragraph (c)(5) of this 
section for treatment of accrued gain or loss with respect to positions 
includible in a mixed straddle account.
    (e) Treatment of gains and losses from positions in a mixed straddle 
account for taxable years ending on or before December 31, 1984--(1) In 
general. For mixed straddle accounts established on or before December 
31, 1984, in taxable years ending on or before December 31, 1984, the 
taxpayer at the close of the taxable year shall determine gain or loss 
for each position in the mixed straddle account that has been disposed 
of on any day during the period beginning on the later of the first day 
of the taxable year or January 1, 1984, and ending on the last day of 
the taxable year. Positions in the mixed straddle account that have not 
been disposed of as of the close of the last business day of the taxable 
year shall be treated as if sold for their fair market value at the 
close of such day. Gains and losses from non-section 1256 positions in 
each mixed straddle account shall be netted to determine 1984 net non-
section 1256 position gain or loss for the account and gains and losses 
from section 1256 contracts shall be netted to determine 1984 net 
section 1256 contract gain or loss for the account. The 1984 net non-
section 1256 position gain or loss is then offset against 1984 net 
section 1256 contract gain or loss from the same mixed straddle account 
to determine annual account net gain or loss for the account. If annual 
account net gain or loss is attributable to 1984 net non-section 1256 
position gain or loss, annual account net gain or loss shall be treated 
as short-term capital gain or loss. If annual account net gain or loss 
is attributable to 1984 net section 1256 contract gain or loss, annual 
account net gain or loss shall be treated as 60 percent long-term 
capital gain or loss and 40 percent short-term capital gain or loss. If 
1984 net non-section 1256 position gain or loss and 1984 net section 
1256 contract gain or loss are either both gains or both losses, that 
portion of annual account net gain or loss attributable to 1984 net non-
section 1256 position gain or loss shall be treated as short-term 
capital gain or loss and that portion of annual account net gain or loss 
attributable to 1984 net section 1256 contract gain or loss shall be 
treated as 60 percent long-term capital gain or loss and 40 percent 
short-term capital gain or loss. An adjustment (through an adjustment to 
basis or otherwise) shall be made to any subsequent gain or loss 
realized with respect to such positions for any gain or loss recognized 
under this paragraph (e). See paragraph (c) (2) through (5) of this 
section relating to determining the total annual account net gain or 
loss, application of section 263(g) to mixed straddle accounts, the 
limitation on the total annual account net gain or loss, and treatment 
of accrued gain or loss with respect to positions includible in a mixed 
straddle account.
    (2) Pre-1984 accrued gain. If the last business day referred to in 
paragraph (c)(5) of this section is contained in a period to which such 
paragraph (c)(5)

[[Page 229]]

does not apply, the gains and losses from the deemed sale shall be 
included in the first period to which paragraph (c)(5) applies.
    (f) Election--(1) Time for making the election. Except as otherwise 
provided, the election under this section to establish one or more mixed 
straddle accounts for a taxable year must be made by the due date 
(without regard to automatic and discretionary extensions) of the 
taxpayer's income tax return for the immediately preceding taxable year 
(or part thereof). For example, an individual taxpayer on a calendar 
year basis must make the election by April 15, 1986, to establish one or 
more mixed straddle accounts for taxable year 1986. Similarly, a 
calendar year corporate taxpayer must make its election by March 15, 
1986, to establish one or more mixed straddle accounts for 1986. If a 
taxpayer begins trading or investing in positions in a new class of 
activities during a taxable year, the election under this section with 
respect to the new class of activities must be made by the taxpayer by 
the later of the due date of the taxpayer's income tax return for the 
immediately preceding taxable year (without regard to automatic and 
discretionary extensions), or 60 days after the first mixed straddle in 
the new class of activities is entered into. Similarly, if on or after 
the date the election is made with respect to an account, the taxpayer 
begins trading or investing in positions that are includible in such 
account but were not specified in the original election, the taxpayer 
must make an amended election as prescribed in paragraph (f)(2)(ii) of 
this section by the later of the due date of the taxpayer's income tax 
return for the immediately preceding taxable year (without regard to 
automatic and discretionary extensions), or 60 days after the 
acquisition of the first of the positions. If an election is made after 
the times specified in this paragraph (f)(1), the election will be 
permitted only if the Commissioner concludes that the taxpayer had 
reasonable cause for failing to make a timely election. For example, if 
a calendar year taxpayer holds few positions in one class of activities 
prior to April 15 of a taxable year, and the taxpayer greatly increases 
trading activity with respect to positions in the class of activities 
after April 15, then the Commissioner may conclude that the taxpayer had 
reasonable cause for failing to make a timely election and allow the 
taxpayer to make a mixed straddle account election for the taxable year. 
See paragraph (f)(2) of this section for rules relating to the manner 
for making these elections.
    (2) Manner for making the election--(i) In general. A taxpayer must 
make the election on Form 6781 in the manner prescribed by such Form, 
and by attaching the Form to the taxpayer's income tax return for the 
immediately preceding taxable year (or request for an automatic 
extension). In addition, the taxpayer must attach a statement to Form 
6781 designating with specificity the class of activities for which a 
mixed straddle account is established. The designation must describe the 
class of activities in sufficient detail so that the Commissioner may 
determine, on the basis of the designation, whether specific positions 
are includible in the mixed straddle account. In the case of a taxpayer 
who elects to establish more than one mixed straddle account, the 
Commissioner must be able to determine, on the basis of the 
designations, that specific positions are placed in the appropriate 
account. The election applies to all positions in the designated class 
of activities held by the taxpayer during the taxable year.
    (ii) Elections for new classes of activities and expanded elections. 
Amended elections and elections made with respect to a new class of 
activities that the taxpayer has begun trading or investing in during a 
taxable year, shall be made on Form 6781 within the times prescribed in 
paragraph (f)(1) of this section. A statement must be attached to the 
Form containing the information required in paragraph (f)(2)(i) of this 
section, with respect to the new or expanded designated class of 
activities.
    (iii) Special rule. The Commissioner may disregard a mixed straddle 
account election if the Commissioner determines, on the basis of all the 
facts and circumstances, that the principal purpose for making the mixed 
straddle account election with respect to a class of activities was to 
avoid the rules of

[[Page 230]]

Sec. 1.1092(b)-1T (a). For example, if a taxpayer holds stock that is 
not part of a straddle and that would generate a loss if sold or 
otherwise disposed of, and the taxpayer both acquires offsetting option 
positions with respect to the stock and makes a mixed straddle account 
election with respect to the stock and stock options near the end of a 
taxable year, the Commissioner may disregard the mixed straddle account 
election.
    (3) Special rule for taxable years ending after 1983 and before 
September 1, 1986. An election under this section to establish one or 
more mixed straddle accounts for any taxable year that includes July 17, 
1984, and any taxable year that ends before September 1, 1986 (or, in 
the case of a corporation, October 1, 1986), must be made by the later 
of--
    (i) December 31, 1985, or
    (ii) The due date (without regard to automatic and discretionary 
extensions) of the return for the taxpayer's taxable year that begins in 
1984 if the due date of the taxpayer's return for such year (without 
regard to automatic and discretionary extensions) is after December 31, 
1985.

The election shall be made by attaching Form 6781 together with a 
statement to the taxpayer's income tax return, amended return, or other 
appropriate form that is filed on or before the deadline determined in 
the preceding sentence. The attached statement must designate with 
specificity, in accordance with paragraph (f)(2)(i) of this section, the 
class of activities for which a mixed straddle account is established. 
For example, if a fiscal year taxpayer's return (for its taxable year 
ending September 30, 1985) is due (without regard to extensions) on 
January 15, 1986, and the taxpayer intends to obtain an automatic 
extension to file the return, the election under this section for any or 
all of the fiscal years ending in 1984, 1985 or 1986 must be made on or 
before January 15, 1986, with the request for an automatic extension. 
Similarly, a calendar year taxpayer (whether or not such taxpayer has 
obtained an automatic extension of time to file) who has filed its 1984 
income tax return before October 15, 1985, without making a mixed 
straddle account election for either 1984 or 1985, or both, may make the 
mixed straddle account election under this section for either or for 
both of such years with an amended return filed on or before December 
31, 1985. The mixed straddle account elected on this amended return will 
be effective for all positions in the designated class of activities 
even if the taxpayer had elected straddle-by-straddle identification as 
provided under Sec. 1.1092(b)-3T for purposes of the previously filed 
1984 income tax return. For taxable years beginning in 1984 and 1985, 
the election under this paragraph (f)(3) is effective for the entire 
taxable year. For taxable years beginning in 1983, an election shall be 
effective for that part of the year beginning after December 31, 1983, 
for which the election under Sec. 1.1256(h)-1T or 1.1256(h)-2T is made. 
See Sec. 1.6081-1T regarding an extension of time to file certain 
individual income tax returns.
    (4) Period for which election is effective. For taxable years 
beginning on or after January 1, 1984, an election under this section, 
including an amendment to the election pursuant to paragraph (f)(1) of 
this section, shall be effective only for the taxable year for which the 
election is made. This election may be revoked during the taxable year 
for the remainder of the taxable year only with the consent of the 
Commissioner. An application for consent to revoke the election shall be 
filed with the service center with which the election was filed and 
shall--
    (i) Contain the name, address, and taxpayer identification number of 
the taxpayer;
    (ii) Show that the volume or nature of the taxpayer's activities has 
changed substantially since the election was made, and that the 
taxpayer's activities no longer warrant the use of such mixed straddle 
account; and
    (iii) Any other relevant information.

If a taxpayer's election for a taxable year is revoked, the taxpayer may 
not make a new election for the same class of activities under paragraph 
(f)(1) of this section during the same taxable year.

[[Page 231]]

    (g) Effective date. The provisions of this section apply to 
positions held on or after January 1, 1984.

(Secs. 1092(b)(1), 1092(b)(2) and 7805 of the Internal Revenue Code of 
1954 (68A Stat. 917, 98 Stat. 627; 26 U.S.C. 1092(b)(1), 1092(b)(2), 
7805))

[T.D. 8008, 50 FR 3329, Jan. 24, 1985; 50 FR 12243, Mar. 28, 1985, as 
amended by T.D. 8058, 50 FR 42013, Oct. 17, 1985]



Sec. 1.1092(b)-5T  Definitions (temporary).

    The following definitions apply for purposes of Sec. Sec. 
1.1092(b)-1T through 1.1092(b)-4T.
    (a) Disposing, disposes, or disposed. The term disposing, disposes, 
or disposed includes the sale, exchange, cancellation, lapse, 
expiration, or other termination of a right or obligation with respect 
to personal property (as defined in section 1092(d)(1)).
    (b) Hedging transaction. The term hedging transaction means a 
hedging transaction as defined in section 1256(e).
    (c) Identified straddle. The term identified straddle means an 
identified straddle as defined in section 1092(a)(2)(B).
    (d) Loss. The term loss means a loss otherwise allowable under 
section 165(a) (without regard to the limitation contained in section 
165(f)) and includes a write-down in inventory.
    (e) Mixed straddle. The term mixed straddle means a straddle--
    (1) All of the positions of which are held as capital assets;
    (2) At least one (but not all) of the positions of which is a 
section 1256 contract;
    (3) For which an election under section 1256(d) has not been made; 
and
    (4) Which is not part of a larger straddle.
    (f) Non-section 1256 position. The term non-section 1256 position 
means a position that is not a section 1256 contract.
    (g) Offsetting position. The term offsetting position means an 
offsetting position as defined in section 1092(c)(2).
    (h) Position. The term position means a position as defined in 
section 1092(d)(2).
    (i) [Reserved]
    (j) Related person or flowthrough entity. The term related person or 
flowthrough entity means a related person or flowthrough entity as 
defined in sections 1092(d)(4) (B) and (C) respectively.
    (k) Section 1256 contract. The term section 1256 contract means a 
section 1256 contract as defined in section 1256(b).
    (l) [Reserved]
    (m) Straddle. The term straddle means a straddle as defined in 
section 1092(c)(1).
    (n) Successor position. The term successor position means a position 
(``P'') that is or was at any time offsetting to a second position if--
    (1) The second position was offsetting to any loss position disposed 
of; and
    (2) P is entered into during a period commencing 30 days prior to, 
and ending 30 days after, the disposition of the loss position referred 
to in paragraph (n)(1) of this section.
    (o) Unrecognized gain. The term unrecognized gain means unrecognized 
gain as defined in section 1092(a)(3)(A).
    (p) Substantially identical. The term substantially identical has 
the same meaning as substantially identical in section 1091(a).
    (q) Securities. The term security means a security as defined in 
section 1236(c).

(Secs. 1092(b) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
917, 95 Stat. 324, 26 U.S.C. 1092(b), 7805) and sec. 102(h) of the Tax 
Reform Act of 1984 (98 Stat. 625))

[T.D. 8007, 50 FR 3321, Jan. 24, 1985, as amended by T.D. 8070, 51 FR 
1788, Jan. 15, 1986]



Sec. 1.1092(c)-1  Qualified covered calls.

    (a) In general. Section 1092(c) defines a straddle as offsetting 
positions with respect to personal property. Under section 
1092(d)(3)(B)(i)(I), stock is personal property if the stock is part of 
a straddle that involves an option on that stock or substantially 
identical stock or securities. Under section 1092(c)(4), however, 
writing a qualified covered call option and owning the optioned stock is 
not treated as a straddle under section 1092 if certain conditions, 
described in section 1092(c)(4)(B), are satisfied. Section 1092(c)(4)(H) 
authorizes the Secretary to modify these conditions to carry out the 
purposes of section 1092(c)(4) in light of changes in the marketplace.
    (b) Term limitation--(1) General rule. Except as provided in 
paragraph (b)(2) of this section, an option is not a qualified covered 
call unless it is granted

[[Page 232]]

not more than 12 months before the day on which the option expires or 
satisfies term limitation and qualified benchmark requirements 
established by the Commissioner in guidance published in the Internal 
Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this chapter).
    (2) Special benchmark rule for an option granted not more than 33 
months before the day on which the option expires--(i) In general. The 
12-month limitation described in paragraph (b)(1) of this section is 
extended to 33 months provided the lowest qualified benchmark is 
determined using the adjusted applicable stock price, as defined in 
Sec. 1.1092(c)-4(e).
    (ii) Examples. The following examples illustrate the rules set out 
in paragraph (b)(2)(i) of this section:

    Example 1. Taxpayer owns stock in Corporation X. Taxpayer writes an 
equity option with standardized terms on Corporation X stock through a 
national securities exchange with a term of 21 months. The applicable 
stock price for Corporation X stock is $100. The bench marks for a 21-
month equity option with standardized terms with an applicable stock 
price of $100 will be based upon the adjusted applicable stock price. 
Using the table at Sec. 1.1092(c)-4(e), the applicable stock price of 
$100 is multiplied by the adjustment factor 1.12, resulting in an 
adjusted applicable stock price of $112. Using the bench marks for an 
equity option with standardized terms with an adjusted applicable stock 
price of $112, the highest available strike price less than the adjusted 
applicable stock price is $110, and the second highest strike price less 
than the adjusted applicable stock price is $105. Therefore, a 21-month 
equity call option with standardized terms on Corporation X stock will 
not be deep in the money if the strike price is not less than $105.
    Example 2. Taxpayer owns stock in Corporation Y. Taxpayer writes an 
equity option with standardized terms on Corporation Y stock through a 
national securities exchange with a term of 21 months. The applicable 
stock price for Corporation Y stock is $13.25. The bench marks for a 21-
month equity option with standardized terms with an applicable stock 
price of $13.25 will be based upon the adjusted applicable stock price. 
Using the table at Sec. 1.1092(c)-4(e), the applicable stock price of 
$13.25 is multiplied by the adjustment factor 1.12, resulting in an 
adjusted applicable stock price of $14.84. Using the bench marks for an 
equity option with standardized terms with an adjusted applicable stock 
price of $14.84, the highest available strike price less than the 
adjusted applicable stock price is $12.50. However, under section 
1092(c)(4)(D), the lowest qualified bench mark can be no lower than 85% 
of the applicable stock price, which for Corporation Y stock is $12.61 
(85% of the adjusted applicable stock price of $14.84). Thus, because 
the highest available strike price less than the adjusted applicable 
stock price for an equity option with standardized terms is lower than 
the lowest qualified bench mark under section 1092(c)(4)(D), the lowest 
strike price at which a qualified covered call option can be written is 
the next higher strike price, or $15.00. Therefore, a 21-month equity 
call option with standardized terms on Corporation Y stock will not be 
deep in the money if the strike price is not less than $15.

    (c) Effective date. This section applies to qualified covered call 
options entered into on or after July 29, 2002.

[67 FR 20899, Apr. 29, 2002]



Sec. 1.1092(c)-2  Equity options with flexible terms.

    (a) In general. Section 1092(c)(4) provides an exception to the 
general rule that a straddle exists if a taxpayer holds stock and writes 
a call option on that stock. Under section 1092(c)(4), the ownership of 
stock and the issuance of a call option meeting certain requirements 
result in a qualified covered call, which is exempted from the general 
straddle rules of section 1092. This section addresses the consequences 
of the availability of equity options with flexible terms under the 
qualified covered call rules.
    (b) No effect on lowest qualified bench mark for standardized 
options. The availability of strike prices for equity options with 
flexible terms does not affect the determination of the lowest qualified 
bench mark, as defined in section 1092(c)(4)(D), for an equity option 
with standardized terms.
    (c) Qualified covered call option status--(1) Requirements. An 
equity option with flexible terms is a qualified covered call option 
only if--
    (i) The option meets the requirements of section 1092(c)(4)(B) and 
Sec. 1.1092(c)-1 (taking into account paragraph (c)(2) of this 
section);
    (ii) The only payments permitted with respect to the option are a 
single fixed premium paid not later than 5 business days after the day 
on which the option is granted, and a single fixed strike price, as 
defined in Sec. 1.1092(c)-

[[Page 233]]

4(d), that is payable entirely at (or within 5 business days of) 
exercise;
    (iii) An equity option with standardized terms is outstanding for 
the underlying equity; and
    (iv) The underlying security is stock in a single corporation.
    (2) Lowest qualified bench mark--(i) In general. For purposes of 
determining whether an equity option with flexible terms is deep in the 
money within the meaning of section 1092(c)(4)(C), the lowest qualified 
bench mark under section 1092(c)(4)(D) is the same for an equity option 
with flexible terms as the lowest qualified bench mark for an equity 
option with standardized terms on the same stock having the same 
applicable stock price.
    (ii) Examples. The following examples illustrate the rules set out 
in paragraph (c)(2)(i) of this section:

    Example 1. Taxpayer owns stock in Corporation X. Taxpayer writes an 
equity call option with flexible terms on Corporation X stock through a 
national securities exchange for a term of not more than 12 months. The 
applicable stock price for Corporation X stock is $73.75. Using the 
bench marks for an equity option with standardized terms with an 
applicable stock price of $73.75, the highest available strike price 
less than the applicable stock price is $70, and the second highest 
strike price less than the applicable stock price is $65. Therefore, an 
equity call option with flexible terms on Corporation X stock with a 
term of 90 days or less will not be deep in the money if the strike 
price is not less than $70. If the term is greater than 90 days, an 
equity call option with flexible terms on Corporation X will not be deep 
in the money if the strike price is not less than $65.
    Example 2. Taxpayer owns stock in Corporation Y. Taxpayer writes a 
9-month equity call option with flexible terms on Corporation Y stock 
through a national securities exchange. The applicable stock price for 
Corporation Y stock is $14.75. Using the bench marks for an equity 
option with standardized terms with an applicable stock price of $14.75, 
the highest available strike price less than the applicable stock price 
is $12.50. However, under section 1092(c)(4)(D), the lowest qualified 
bench mark can be no lower than 85% of the applicable stock price, which 
for Corporation Y stock is $12.54. Thus, because the highest available 
strike price less than the applicable stock price for an equity option 
with standardized terms is lower than the lowest qualified bench mark 
under section 1092(c)(4)(D), the lowest strike price at which a 
qualified covered call option can be written is the next higher strike 
price, or $15.00. This $15.00 strike price requirement for a qualified 
covered call option applies to equity options with flexible terms, 
equity options with standardized terms, and qualifying over-the-counter 
options.
    Example 3. Taxpayer owns stock in Corporation Z. On May 8, 2003, 
Taxpayer writes a 21-month equity call option with flexible terms on 
Corporation Z stock through a national securities exchange. The 
applicable stock price for Corporation Z stock is $100. The bench marks 
for a 21-month equity option with standardized terms with an applicable 
stock price of $100 will be based upon the adjusted applicable stock 
price. Using the table at Sec. 1.1092(c)-4(e), the applicable stock 
price of $100 is multiplied by the adjustment factor 1.12, resulting in 
an adjusted applicable stock price of $112. The highest available strike 
price less than the adjusted applicable stock price is $110, and the 
second highest strike price less than the adjusted applicable stock 
price is $105. Therefore, a 21-month equity call option with flexible 
terms on Corporation Z stock will not be deep in the money if the strike 
price is not less than $105.

    (d) Effective date--(1) In general. Except as provided in paragraph 
(d)(2) of this section, this section applies to equity options with 
flexible terms entered into on or after January 25, 2000.
    (2) Effective date for paragraphs (b) and (c) of this section. 
Paragraphs (b) and (c) of this section apply to equity options with 
flexible terms entered into on or after July 29, 2002.

[T.D. 8866, 65 FR 3813, Jan. 25, 2000; Redesignated at 67 FR 20899, Apr. 
29, 2002]



Sec. 1.1092(c)-3  Qualifying over-the-counter options.

    (a) In general. Under section 1092(c)(4)(B)(i), an equity option is 
not a qualified covered call option unless it is traded on a national 
securities exchange that is registered with the Securities and Exchange 
Commission or other market that the Secretary determines has rules 
adequate to carry out the purposes of section 1092(c)(4). In accordance 
with section 1092(c)(4)(H), this requirement is modified as provided in 
paragraph (b) of this section.
    (b) Qualified covered call option status. A qualifying over-the-
counter option, as defined in Sec. 1.1092(c)-4(c), is a qualified 
covered call option if it meets the requirements of Sec. Sec. 
1.1092(c)-1 and 1.1092(c)-2(c) after using the language ``qualifying 
over-the-counter option''

[[Page 234]]

in place of ``equity option with flexible terms''. For purposes of this 
paragraph (b), a qualifying over-the-counter option is deemed to satisfy 
the requirements of section 1092(c)(4)(B)(i).
    (c) Effective date. This section applies to qualifying over-the-
counter options entered into on or after July 29, 2002.

[67 FR 20900, Apr. 29, 2002]



Sec. 1.1092(c)-4  Definitions.

    The following definitions apply for purposes of Sec. Sec. 
1.1092(c)-1 through 1.1092(c)-3:
    (a) Equity option with flexible terms means an equity option--
    (1) That is described in any of the following Securities Exchange 
Act Releases--
    (i) Self-Regulatory Organizations; Order Approving Proposed Rule 
Changes and Notice of Filing and Order Granting Accelerated Approval of 
Amendments by the Chicago Board Options Exchange, Inc. and the Pacific 
Stock Exchange, Inc., Relating to the Listing of Flexible Equity Options 
on Specified Equity Securities, Securities Exchange Act Release No. 34-
36841 (Feb. 21, 1996); or
    (ii) Self-Regulatory Organizations; Order Approving Proposed Rule 
Changes and Notice of Filing and Order Granting Accelerated Approval of 
Amendment Nos. 2 and 3 to the Proposed Rule Change by the American Stock 
Exchange, Inc., Relating to the Listing of Flexible Equity Options on 
Specified Equity Securities, Securities Exchange Act Release No. 34-
37336 (June 27, 1996); or
    (iii) Self-Regulatory Organizations; Order Approving Proposed Rule 
Change and Notice of Filing and Order Granting Accelerated Approval of 
Amendment Nos. 2, 4 and 5 to the Proposed Rule Change by the 
Philadelphia Stock Exchange, Inc., Relating to the Listing of Flexible 
Exchange Traded Equity and Index Options, Securities Exchange Act 
Release No. 34-39549 (Jan. 23, 1998); or
    (iv) Any changes to the Security Exchange Act Releases described in 
paragraphs (a)(1)(i) through (iii) of this section that are approved by 
the Securities and Exchange Commission; or
    (2) That is traded on any national securities exchange that is 
registered with the Securities and Exchange Commission (other than those 
described in the Security Exchange Act Releases set forth in paragraph 
(a)(1) of this section) and is--
    (i) Substantially identical to the equity options described in 
paragraph (a)(1) of this section; and
    (b) Equity option with standardized terms means an equity option--
    (1) That is traded on a national securities exchange registered with 
the Securities and Exchange Commission;
    (2) That, on the date the option is written, expires on the Saturday 
following the third Friday of the month of expiration;
    (3) That has a strike price that is set at a uniform minimum strike 
price interval, that is established by the applicable national 
securities exchange registered with the Securities and Exchange 
Commission, and that is not less than $1.00; and
    (4) That has stock in a single corporation as its underlying 
security.
    (c) Qualifying over-the-counter option means an equity option that--
    (1) Is not traded on a national securities exchange registered with 
the Securities and Exchange Commission; and
    (2) Is entered into with--
    (i) A broker-dealer, acting as principal or agent, who is registered 
with the Securities and Exchange Commission under section 15 of the 
Securities Act of 1934 (15 U.S.C. 78a through 78mm) and the regulations 
thereunder and who must comply with the recordkeeping requirements of 17 
CFR 240.17a-3; or
    (ii) An alternative trading system under 17 CFR 242.300 through 17 
CFR 242.303; or
    (iii) A person, acting as principal or agent, who must comply with 
the recordkeeping requirements for securities transactions described in 
12 CFR 12.3, 12 CFR 208.34, or 12 CFR 344.4.
    (d) Single fixed strike price means a strike price that is fixed, 
determinable, and stated as a dollar amount on the date the option is 
written. An option will not fail to have a single fixed strike price if, 
after the date the option is written, the strike price is adjusted to 
account for the effects of a dividend, stock dividend, stock 
distribution, stock split, reverse stock split, rights

[[Page 235]]

offering, distribution, reorganization, recapitalization, or 
reclassification with respect to the underlying security, or a merger, 
consolidation, dissolution, or liquidation of the issuer of the 
underlying security.
    (e) Adjusted applicable stock price means the applicable stock 
price, as defined in section 1092(c)(4)(G), adjusted for time. To 
determine the adjusted applicable stock price, the applicable stock 
price, which is determined in accordance with the rules in section 
1092(c)(4)(G), is multiplied by an adjustment factor. The adjustment 
factor table is as follows:

------------------------------------------------------------------------
                  Option term (in months)
------------------------------------------------------------  Adjustment
            Greater than                  Not more than         factor
------------------------------------------------------------------------
12.................................  15....................         1.08
15.................................  18....................         1.10
18.................................  21....................         1.12
21.................................  24....................         1.14
24.................................  27....................         1.16
27.................................  30....................         1.18
30.................................  33....................         1.20
------------------------------------------------------------------------

    (f) Securities Exchange Act Release means a release issued by the 
Securities and Exchange Commission. To determine identifying information 
for releases referenced in paragraph (d)(1) of this section, including 
release titles, identification numbers, and issue dates, contact the 
Office of the Secretary, Securities and Exchange Commission, 450 5th 
Street, NW., Washington, DC 20549. To obtain a copy of a Securities 
Exchange Act Release, submit a written request, including the specific 
release identification number, title, and issue date, to Securities and 
Exchange Commission, Attention Public Reference, 450 5th Street, NW., 
Washington, DC 20549.
    (g) Effective dates. (1) Except for paragraph (a)(2) of this 
section, paragraph (a) of this section applies to equity options with 
flexible terms entered into on or after January 25, 2000. Paragraph 
(a)(2) of this section applies to equity options with flexible terms 
entered into on or after July 29, 2002.
    (2) Paragraphs (b), (c), (d), and (e) of this section apply to 
equity options entered into on or after July 29, 2002.
    (3) Paragraph (f) of this section applies to equity options entered 
into on or after January 25, 2000.

[67 FR 20900, 20901, Apr. 29, 2002]



Sec. 1.1092(d)-1  Definitions and special rules.

    (a) Actively traded. Actively traded personal property includes any 
personal property for which there is an established financial market.
    (b) Established financial market--(1) In general. For purposes of 
this section, an established financial market includes--
    (i) A national securities exchange that is registered under section 
6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f);
    (ii) An interdealer quotation system sponsored by a national 
securities association registered under section 15A of the Securities 
Exchange Act of 1934;
    (iii) A domestic board of trade designated as a contract market by 
the Commodities Futures Trading Commission;
    (iv) A foreign securities exchange or board of trade that satisfies 
analogous regulatory requirements under the law of the jurisdiction in 
which it is organized (such as the London International Financial 
Futures Exchange, the Marche a Terme International de France, the 
International Stock Exchange of the United Kingdom and the Republic of 
Ireland, Limited, the Frankfurt Stock Exchange, and the Tokyo Stock 
Exchange);
    (v) An interbank market;
    (vi) An interdealer market (as defined in paragraph (b)(2)(i) of 
this section); and
    (vii) Solely with respect to a debt instrument, a debt market (as 
defined in paragraph (b)(2)(ii) of this section).
    (2) Definitions--(i) Interdealer market. An interdealer market is 
characterized by a system of general circulation (including a computer 
listing disseminated to subscribing brokers, dealers, or traders) that 
provides a reasonable basis to determine fair market value by 
disseminating either recent price quotations (including rates, yields, 
or other pricing information) of one or more identified brokers, 
dealers, or traders or actual prices (including rates, yields, or other 
pricing information) of recent transactions. An interdealer market does 
not include a directory or listing of brokers, dealers, or traders for 
specific contracts (such as yellow sheets) that provides neither

[[Page 236]]

price quotations nor actual prices of recent transactions.
    (ii) Debt market. A debt market exists with respect to a debt 
instrument if price quotations for the instrument are readily available 
from brokers, dealers, or traders. A debt market does not exist with 
respect to a debt instrument if--
    (A) No other outstanding debt instrument of the issuer (or of any 
person who guarantees the debt instrument) is traded on an established 
financial market described in paragraph (b)(1)(i), (ii), (iii), (iv), 
(v), or (vi) of this section (other traded debt);
    (B) The original stated principal amount of the issue that includes 
the debt instrument does not exceed $25 million;
    (C) The conditions and covenants relating to the issuer's 
performance with respect to the debt instrument are materially less 
restrictive than the conditions and covenants included in all of the 
issuer's other traded debt (e.g., the debt instrument is subject to an 
economically significant subordination provision whereas the issuer's 
other traded debt is senior); or
    (D) The maturity date of the debt instrument is more than 3 years 
after the latest maturity date of the issuer's other traded debt.
    (c) Notional principal contracts. For purposes of section 1092(d)--
    (1) A notional principal contract (as defined in Sec. 1.446-
3(c)(1)) constitutes personal property of a type that is actively traded 
if contracts based on the same or substantially similar specified 
indices are purchased, sold, or entered into on an established financial 
market within the meaning of paragraph (b) of this section; and
    (2) The rights and obligations of a party to a notional principal 
contract are rights and obligations with respect to personal property 
and constitute an interest in personal property.
    (d) Effective dates. Paragraph (b)(1)(vii) of this section applies 
to positions entered into on or after October 14, 1993. Paragraph (c) of 
this section applies to positions entered into on or after July 8, 1991.

[T.D. 8491, 58 FR 53135, Oct. 14, 1993]



Sec. 1.1092(d)-2  Personal property.

    (a) Special rules for stock. Under section 1092(d)(3)(B), personal 
property includes any stock that is part of a straddle, at least one of 
the offsetting positions of which is a position with respect to 
substantially similar or related property (other than stock). For 
purposes of this rule, the term substantially similar or related 
property is defined in Sec. 1.246-5 (other than Sec. 1.246-5(b)(3)). 
The rule in Sec. 1.246-5(c)(6) does not narrow the related party rule 
in section 1092(d)(4).
    (b) Effective date--(1) In general. This section applies to 
positions established on or after March 17, 1995.
    (2) Special rule for certain straddles. This section applies to 
positions established after March 1, 1984, if the taxpayer substantially 
diminished its risk of loss by holding substantially similar or related 
property involving the following types of transactions--
    (i) Holding offsetting positions consisting of stock and a 
convertible debenture of the same corporation where the price movements 
of the two positions are related; or
    (ii) Holding a short position in a stock index regulated futures 
contract (or alternatively an option on such a regulated futures 
contract or an option on the stock index) and stock in an investment 
company whose principal holdings mimic the performance of the stocks 
included in the stock index (or alternatively a portfolio of stocks 
whose performance mimics the performance of the stocks included in the 
stock index).

[T.D. 8590, 60 FR 14641, Mar. 20, 1995]

                        capital gains and losses

                       Treatment of Capital Gains



Sec. 1.1201-1  Alternative tax.

    (a) Corporations--(1) In general. (i) If for any taxable year a 
corporation has net capital gain (net section 1201 gain for taxable 
years beginning before January 1, 1977) (as defined in section 1222(11)) 
section 1201(a) imposes an alternative tax in lieu of the tax imposed by 
sections 11 and 511, but only if such alternative tax is less than the 
tax imposed by sections 11 and 511. The alternative tax is not in lieu 
of the personal

[[Page 237]]

holding company tax imposed by section 541 or of any other tax not 
specifically set forth in section 1201(a).
    (ii) In the case of an insurance company, the alternative tax 
imposed by section 1201(a) is also in lieu of the tax imposed by 
sections 821 (a) or (c) and 831 (a), except that for taxable years 
beginning before January 1, 1963, the reference to section 821 (a) or 
(c) is to be read as reference to section 821 (a)(1) or (b). For taxable 
years beginning after December 31, 1954, and before January 1, 1958, the 
alternative tax imposed by section 1201(a) shall also be in lieu of the 
tax imposed by section 802(a), as amended by the Life Insurance Company 
Tax Act for 1955 (70 Stat. 38), if such alternative tax is less than the 
tax imposed by such section. See section 802(e), as added by the Life 
Insurance Company Tax Act for 1955 (70 Stat. 39). However, for taxable 
years beginning after December 31, 1958, and before January 1, 1962, 
section 802(a)(2), as amended by the Life Insurance Company Income Tax 
Act of 1959 (73 Stat. 115), imposes a separate tax equal to 25 percent 
of the amount by which the net long-term capital gain of any life 
insurance company (as defined in section 801(a) and paragraph (b) of 
Sec. 1.801-3) exceeds its net short-term capital loss. See paragraph 
(f) of Sec. 1.802-3. For alternative tax for life insurance companies 
in the case of taxable years beginning after December 31, 1961, see 
section 802(a)(2) and the regulations thereunder.
    (iii) See section 56 and the regulations thereunder for provisions 
relating to the minimum tax for tax preferences.
    (2) Alternative tax. The alternative tax is the sum of:
    (i) A partial tax computed at the rates provided in sections 11, 
511, 821 (a) or (c), and 831(a), on the taxable income of the taxpayer 
reduced by the amount of the net capital gain (net section 1201 gain for 
taxable years beginning before January 1, 1977), and
    (ii) An amount equal to the tax determined under subparagraph (3) of 
this paragraph.

For taxable years beginning after December 31, 1954, and before January 
1, 1958, the partial tax under subdivision (i) of this subparagraph 
shall also be computed at the rates provided in section 802(a). For 
taxable years beginning before January 1, 1963, the reference in such 
subdivision to section 821 (a) or (c) is to be read as a reference to 
section 821 (a) or (b).
    (3) Tax on capital gains. For purposes of subparagraph (2)(ii) of 
this paragraph, the tax shall be:
    (i) In the case of a taxable year beginning after December 31, 1974, 
a tax of 30 percent of the net section 1201 gain (net capital gain for 
taxable years beginning after December 31, 1976),
    (ii) In the case of a taxable year beginning after December 31, 
1969, and before January 1, 1975:
    (a) A tax of 25 percent of the lesser of the amount of the 
subsection (d) gain (as defined in section 1201(d) and paragraph (f) of 
this section) or the amount of the net section 1201 gain (net capital 
gain for taxable years beginning after December 31, 1976), plus
    (b) A tax of 30 percent (28 percent in the case of a taxable year 
beginning after December 31, 1969, and before January 1, 1971) of the 
excess, if any, of the net section 1201 gain (net capital gain for 
taxable years beginning after December 31, 1976) over the subsection (d) 
gain,
    (iii) In the case of a taxable year beginning before January 1, 
1970, and after March 31, 1954, a tax of 25 percent of the net section 
1201 gain (net capital gain for taxable years beginning after December 
31, 1976), or
    (iv) In the case of a taxable year beginning before April 1, 1954, a 
tax of 26 percent of the net section 1201 gain (net capital gain for 
taxable years beginning after December 31, 1976).
    (4) Determination of special deductions. In the computation of the 
partial tax described in subparagraph (2)(i) of this paragraph the 
special deductions provided for in sections 243, 244, 245, 247, 922, and 
941 shall not be recomputed as the result of the reduction of taxable 
income by the net capital gain (net section 1201 gain for taxable years 
beginning before January 1, 1977).
    (b) Other taxpayers--(1) In general. If for any taxable year a 
taxpayer (other than a corporation) has net capital gain (net section 
1201 gain for taxable years beginning before January 1, 1977) (as 
defined in section 1222(11)) section

[[Page 238]]

1201(b) imposes an alternative tax in lieu of the tax imposed by 
sections 1 and 511, but only if such alternative tax is less than the 
tax imposed by sections 1 and 511. The alternative tax is not in lieu of 
any other tax not specifically set forth in section 1201(b). See section 
56 and the regulations thereunder for provisions relating to the minimum 
tax for tax preferences.
    (2) Alternative tax. The alternative tax is the sum of:
    (i) A partial tax computed at the rates provided by sections 1 and 
511 on the taxable income reduced by an amount equal to 50 percent of 
the net capital gain (net section 1201 gain for taxable years beginning 
before January 1, 1977), and
    (ii) In the case of a taxable year beginning after December 31, 
1969:
    (a) A tax of 25 percent of the lesser of the amount of the 
subsection (d) gain (as defined in section 1201(d) and paragraph (f) of 
this section) or the amount of the net capital gain (net section 1201 
gain for taxable years beginning before January 1, 1977), plus
    (b) A tax computed as provided in section 1201(c) and paragraph (e) 
of this section on the excess, if any, of the net capital gain (net 
section 1201 gain for taxable years beginning before January 1, 1977) 
over the subsection (d) gain, or
    (iii) In the case of a taxable year beginning before January 1, 
1970, a tax of 25 percent of the net section 1201 gain (net capital gain 
for taxable years beginning after December 31, 1976).
    (3) Cross references. See Sec. 1.1-2(a) for rule relating to the 
computation of the limitation on tax in cases where the alternative tax 
is imposed. See Sec. 1.34-2 (a) for rule relating to the computation of 
the dividend received credit under section 34 (for dividends received on 
or before December 31, 1964), and Sec. 1.35-1 (a) for rule relating to 
the computation of credit for partially tax-exempt interest under 
section 35 in cases where the alternative tax is imposed.
    (c) Tax-exempt trusts and organizations. In applying section 1201 in 
the case of tax-exempt trusts or organizations subject to the tax 
imposed by section 511, the only amount which is taken into account as 
capital gain or loss is that which is taken into account in computing 
unrelated business taxable income under section 512. Under section 512, 
the only amount taken into account as capital gain or loss is that 
resulting from the application of section 631(a), relating to the 
election to treat the cutting of timber as a sale or exchange.
    (d) Joint returns. In the case of a joint return, the excess of any 
net long-term capital gain over any net short-term capital loss is to be 
determined by combining the long-term capital gains and losses and the 
short-term capital gains and losses of the spouses.
    (e) Computation of tax on capital gain in excess of subsection (d) 
gain--(1) In general. The tax computed for purposes of section 
1201(b)(3) and paragraph (b) (2)(ii)(b) of this section shall be the 
amount by which a tax determined under section 1 or 511 on an amount 
equal to the taxable income (but not less than 50 percent of the net 
capital gain (net section 1201 gain for taxable years beginning before 
January 1, 1977)) for the taxable year exceeds a tax determined under 
section 1 or 511 on an amount equal to the sum of (i) the amount subject 
to tax under section 1201 (b)(1) and paragraph (b)(2)(i) of this section 
for such year plus (ii) an amount equal to 50 percent of the subsection 
(d) gain for such year.
    (2) Limitation. Notwithstanding subparagraph (1) of this paragraph, 
the tax computed for purposes of section 1201(b) (3) and paragraph 
(b)(2)(ii)(b) of this section shall not exceed an amount equal to the 
following percentage of the excess of the net capital gain (net section 
1201 gain for taxable years beginning before January 1, 1977) over the 
subsection (d) gain for the taxable year:
    (i) 29\1/2\ percent, in the case of a taxable year beginning after 
December 31, 1969, and before January 1, 1971, or
    (ii) 32\1/2\ percent, in the case of a taxable year beginning after 
December 31, 1970, and before January 1, 1972.
    (f) Definition of subsection (d) gain--(1) In general. For purposes 
of section 1201 and this section, the term subsection (d) gain means the 
sum of the long-term capital gains for the taxable year arising:
    (i) In the case of amounts received or accrued, as the case may be, 
before January 1, 1975 (other than any gain

[[Page 239]]

from a transaction described in section 631 or 1235), from:
    (a) Sales or other dispositions on or before October 9, 1969, 
including sales or other dispositions the income from which is returned 
as provided in section 453 (a)(1) or (b)(1), or
    (b) Sales or other dispostions after October 9, 1969, pursuant to 
binding contracts entered into on or before that date, including sales 
or other dispositions the income from which is returned as provided in 
section 453 (a)(1) or (b)(1),
    (ii) From liquidating distributions made by a corporation which are 
made (a) before October 10, 1970, and (b) pursuant to a plan of complete 
liquidation adopted on or before October 9, 1969, or
    (iii) In the case of a taxpayer (other than a corporation), from any 
other source not described in subdivision (i) or (ii) of this 
subparagraph, but the amount taken into account from such other sources 
shall be limited to the amount, if any, by which $50,000 ($25,000 in the 
case of a married individual filing a separate return) exceeds the sum 
of the gains to which subdivisions (i) and (ii) of this subparagraph 
apply.
    (2) Special rules. For purposes of subparagraph (1) of this 
paragraph:
    (i) A binding contract entered into on or before October 9, 1969, 
means a contract, whether written or unwritten, which on or before that 
date was legally enforceable against the taxpayer under applicable law. 
If on or before October 9, 1969, a taxpayer grants an irrevocable option 
or irrevocable contractual right to another party to buy certain 
property and such other party exercises that option or right after 
October 9, 1969, the sale of such property is a sale pursuant to a 
binding contract entered into on or before October 9, 1969. The 
application of this subdivision may be illustrated by the following 
example:

    Example: During 1964, A, B, and C formed a closely held corporation, 
and A was appointed as president of the organization. On July 1, 1964, A 
received for consideration 100 shares of common stock in the corporation 
subject to the agreement that, if A should retire from the management of 
the corporation or die, A or his estate would first offer his shares of 
stock to the corporation for purchase and that, if the corporation did 
not buy the stock within 60 days, the stock could be sold to any party 
other than the corporation. On September 1, 1970, A retired from the 
management of the corporation and offered his shares to the corporation 
for purchase. Pursuant to the agreement, the corporation purchased A's 
stock on September 30, 1970. A's sale of such stock was pursuant to a 
binding contract entered into on or before October 9, 1969.

    (ii) A contract which pursuant to subdivision (i) of this 
subparagraph constitutes a binding contract entered into on or before 
October 9, 1969, does not cease to qualify as such a contract by reason 
of the fact that after October 9, 1969, there is a modification of the 
terms of the contract such as a change in the time of performance, or in 
the amount of the debt or in the terms and mode of payment, or in the 
rate of interest, or there is a change in the form or nature of the 
obligation or the character of the security, so long as the taxpayer is 
at all times on and after October 9, 1969, legally bound by such 
contract. The application of this subdivision may be illustrated by the 
following examples:

    Example 1. On August 1, 1969, A sold certain capital assets to B on 
the installment plan and elected to return the gain therefrom under 
section 453, the agreement providing for payments over a period of 2 
years. At the time of the sale these assets had been held by A for more 
than 6 months. On July 31, 1970, A and B agreed to a modification of the 
terms of payment under the sales agreement, the only change in the 
contract being that the installment payments due after July 31, 1970, 
would be paid over a 3-year period. For purposes of this paragraph the 
payments received by A after July 31, 1970, are considered amounts 
received from the sale on August 1, 1969. (See section 483 for rules 
with respect to interest on deferred payments.)
    Example 2. On April 1, 1969, A sold certain capital assets to B on 
the installment plan and elected to return the gain therefrom under 
section 453, the agreement providing for payments over a period of 3 
years. At the time of the sale these assets had been held by A for more 
than 6 months. On March 31, 1970, C assumed B's obligation to pay the 
balance of the installments which were due after that date. For purposes 
of this paragraph any installment payments received by A after March 31, 
1970, from C are considered amounts received from a sale made on or 
before October 9, 1969.
    Example 3. On May 1, 1969, A offers to sell certain capital assets 
to B if B accepts the offer within 1 year, unless it is previously

[[Page 240]]

withdrawn by A. B accepts the offer on November 1, 1969, and the 
transaction is consummated shortly thereafter. For purposes of this 
paragraph, any payment received by A pursuant to the sale is not 
considered an amount received from a sale made on or before October 9, 
1969, or from a sale pursuant to a binding contract entered into on or 
before that date.

    (iii) An amount which is considered under section 402(a)(2) or 
403(a)(2) as gain of the taxpayer from the sale or exchange of a capital 
asset held for more than 6 months shall be treated as gain subject to 
the provisions of section 1201 (d)(1) and subdivision (i) of such 
subparagraph, but only if on or before October 9, 1969, (a) the employee 
with respect to whom such amount is distributed or paid, died or was 
otherwise separated from the service, and (b) the terms of the plan 
required, or the employee elected, that total distributions or amounts 
payable be paid to the taxpayer within 1 taxable year.
    (iv) Gain described in section 1201(d) (1) or (2) with respect to a 
partnership, estate, or trust, which is required to be included in the 
gross income of a partner in such partnership, or of a beneficiary of 
such estate or trust, shall be treated as such gain with respect to such 
partner or beneficiary. Thus, for example, if during 1974 a partnership 
which uses the calendar year as its taxable year receives amounts which 
give rise to section 1201(d)(1) gain, a partner who uses the fiscal year 
ending June 30 as his taxable year shall treat his distributive share of 
such gain as subsection (d) gain for his taxable year ending June 30, 
1975, even though such share is distributed to him after December 31, 
1974. See Sec. 1.706-1.
    (v) An individual shall be considered married for purposes of 
subdivision (iii) of such subparagraph if for the taxable year he may 
elect with his spouse to make a joint return under section 6013(a).
    (vi) In applying such subparagraph for purposes of section 21(a) (1) 
long-term capital gains arising from amounts received before January 1, 
1970, shall be taken into account if such amounts are received during 
the taxable year.
    (g) Illustrations. The application of this section may be 
illustrated by the following examples in which the assumption is made 
that section 56 (relating to minimum tax for tax preferences) does not 
apply:

    Example 1. A, a single individual, has for the calendar year 1954 
taxable income (exclusive of capital gains and losses) of $99,400. He 
realizes in 1954 a gain of $50,000 on the sale of a capital asset held 
for 19 months and sustains a loss of $20,000 on the sale of a capital 
asset held for 5 months. He had no other capital gains or losses. Since 
the alternative tax is less than the tax otherwise computed under 
section 1, the tax payable is the alternative tax, that is $74,298. The 
tax is computed as follows:

                           Tax Under Section 1
Taxable income exclusive of capital gains and losses.........    $99,400
Net long-term capital gain (100 percent of            $50,000
 $50,000).........................................
Net short-term capital loss (100 percent of            20,000
 $20,000).........................................
                                                   -----------
Excess of net long-term capital gain over the net short-term      30,000
 capital loss................................................
                                                   ------------
                                                                 129,400
Deduction of 50 percent of excess of net long-term capital        15,000
 gain over the net short-term capital loss (section 1202)....
                                                   ------------
Taxable income...............................................    114,400
                                                   ------------
Tax under section 1..........................................     80,136
                  Alternative Tax Under Section 1201(b)
Taxable income...............................................   $114,400
Less 50 percent of excess of net long-term capital gain over      15,000
 net short-term capital loss (section 1201(b)(1))............
                                                   ------------
Taxable income exclusive of capital gains and losses.........     99,400
                                                   ============
Partial tax (tax on $99,400).................................     66,798
Plus 25 percent of $30,000...................................      7,500
                                                   ------------
Alternative tax under section 1201(b)........................     74,298
 

    Example 2. A husband and wife, who file a joint return for the 
calendar year 1970, have taxable income (exclusive of capital gains and 
losses) of $100,000. In 1970 they realize $200,000 of net long-term 
capital gain in excess of net short-term capital loss, including long-
term capital gains of $100,000 arising from sales consummated in 1968 
the income from which is returned on the installment method under 
section 453, and long-term capital gains of $50,000, arising in respect 
of distributions from X corporation made before October 10, 1970, which 
were pursuant to a plan of complete liquidation adopted on October 9, 
1969. Since the alternative tax under section 1201(b) is less than the 
tax otherwise computed under section 1, the tax payable for 1970 is the 
alternative tax, that is, $97,430 plus the tax surcharge under section 
51. The tax (without regard to the tax surcharge) is computed as 
follows:

[[Page 241]]



                           Tax Under Section 1
Taxable income exclusive of capital gains and losses.........   $100,000
Net section 1201 gain (net capital gain for taxable years        200,000
 beginning after December 31, 1976) (excess of net long-term
 capital gain over the net short-term capital loss)..........
                                                   ------------
    Total....................................................    300,000
Deduction of 50 percent of net section 1201 (net capital gain    100,000
 for taxable years beginning after December 31, 1976) gain
 (section 1202)..............................................
                                                   ------------
    Taxable income...........................................    200,000
                                                   ============
Tax under section 1..........................................    110,980
                  Alternative Tax Under Section 1201(b)
(1) Net section 1201 gain (net capital gain for taxable years   $200,000
 beginning after December 31, 1976)..........................
                                                   ------------
(2) Subsection (d) gain:
  Section 1201(d)(1).........................................    100,000
  Section 1201(d)(2).........................................     50,000
                                                   ------------
    Total subsection (d) gain................................    150,000
                                                   ============
(3) Net section 1201 (net capital gain for taxable years          50,000
 beginning after December 31, 1976) gain in excess of
 subsection (d) gain ($200,000 less $150,000)................
                                                   ------------
(4) Tax under section 1201(b)(1):
  (i) Taxable income..............................   $200,000
  (ii) Less: 50% of item (1)......................    100,000
                                                   ------------
  (iii) Amount subject to tax under section           100,000
   1201(b)(1).....................................
                                                   ===========
    Partial tax (computed under section 1)...................     45,180
(5) Tax under section 1201(b)(2): (25% of item (1) or of item     37,500
 (2), whichever is lesser [25% of $150,000]).................
(6) Tax under section 1201(b)(3) on item (3):
  Tax under section 1 on taxable income ($200,000)   $110,980
  Less: Tax under section 1 on sum of item             93,780
   (4)(iii)(c) ($100,000) plus 50% of item (2)
   ($75,000) (Total $175,000).....................
                                                   -----------
    Tax under section 1201(c)(1)..................     17,200
                                                   -----------
  Limitation under section........................
    1201(c)(2)(A) (29\1/2\% of item (3))..........     14,750     14,750
(7) Alternative tax under section 1201(b)....................     97,430
 

    Example 3. A husband and wife, who file a joint return for the 
calender year 1971, have taxable income (exclusive of capital gains and 
losses) of $80,000. In 1971 they realize long-term capital gain of 
$30,000 arising from a sale consummated on July 1, 1969, the income from 
which is returned on the installment method under section 453. From 
securities transactions in 1971 they have long-term capital gains of 
60,000 and a short-term capital loss of $10,000. Since the alternative 
tax under section 1201(b) is less than the tax otherwise computed under 
section 1, the tax payable is the alternative tax, that is, $55,140. The 
tax is computed as follows:

                           Tax Under Section 1
Taxable income exclusive of capital gains and losses.........    $80,000
Net long-term capital gains (100% of $90,000).....    $90,000
  Net short-term capital loss (100% of $10,000)...     10,000
                                                   -----------
  Net section 1201 gain (net capital gain for taxable years       80,000
   beginning after December 31, 1976)........................
                                                   ------------
    Total....................................................    160,000
Deduction of 50% of net section 1201 gain (net capital gain       40,000
 for taxable years beginning after December 31, 1976)
 (section 1202)..............................................
                                                   ------------
    Taxable income...........................................    120,000
                                                   ============
Tax under section 1..........................................     57,580
                  Alternative Tax Under Section 1201(b)
(1) Net section 1201 gain (net capital gain for taxable years    $80,000
 beginning after December 31, 1976)..........................
                                                   ------------
(2) Subsection (d) gain:
  Section 1201(d)(1).........................................     30,000
  Section 1201(d)(2).........................................
  Section 1201(d)(3) ($50,000 less $30,000)..................     20,000
                                                   ------------
    Total subsection (d) gain................................     50,000
                                                   ============
(3) Net section 1201 (net capital gain for taxable years          30,000
 beginning after December 31, 1976) gain in excess of
 subsection (d) gain ($80,000 less $50,000)..................
                                                   ------------
(4) Tax under section 1201(b)(1):
  (i) Taxable income..............................   $120,000
  (ii) Less: 50% of item (1)......................     40,000
                                                   -----------
  (iii) Amount subject to tax under section            80,000
   1201(b)(1).....................................
                                                   ===========
    Partial tax (computed under section 1)...................     33,340
(5) Tax under section 1201(b)(2): (25% of item (1) or of item     12,500
 (2), whichever is lesser [25% of $50,000])..................
(6) Tax under section 1201 (b)(3) on item (3):
  Tax under section 1 on taxable income ($120,000)    $57,580
Less: Tax under sec. 1 on sum of item (4) (iii)       $48,280
 ($80,000) plus 50% of item (2) ($25,000) (Total
 $105,000)........................................
                                                   -----------
    Tax under section 1201(c)(1)..................      9,300
                                                   ===========
    Limitation under section 1201(c) (2)(B) (32\1/      9,750     $9,300
     2\% of item (3)).............................
                                                   ---------------------
(7) Alternative tax under section 1201(b)....................     55,140
 

    Example 4. A husband and wife, who file a joint return for the 
calendar year 1973, have taxable income (exclusive of capital gains and 
losses) of $250,000. In 1973 they realize long-term capital gains (not 
described in section 1201(d) (1) or (2)) of $140,000 and a short-term 
capital loss of $50,000. Since the alternative tax under section 1201(b) 
is less than the tax otherwise computed under section 1, the tax payable 
is the alternative tax, that is, $172,480. The tax is computed as 
follows:

[[Page 242]]



                           Tax Under Section 1
Taxable income exclusive of capital gains and losses.........   $250,000
Net long-term capital gains (100% of $140,000)....   $140,000
Net short-term capital loss (100% of $50,000).....     50,000
                                                   -----------
Net section 1201 gain (net capital gain for taxable years         90,000
 beginning after December 31, 1976)..........................
                                                   ------------
    Total....................................................    340,000
Deduction of 50% of net section 1201 gain (net capital gain       45,000
 for taxable years beginning after December 31, 1976)
 (section 1202)..............................................
                                                   ------------
    Taxable income...........................................    295,000
                                                   ============
Tax under section 1..........................................    177,480
                  Alternative Tax Under Section 1201(b)
(1) Net section 1201 gain (net capital gain for taxable years    $90,000
 beginning after December 31, 1976)..........................
                                                   ------------
(2) Subsection (d) gain:
  Section 1201(d)(1).........................................  .........
  Section 1201(d)(2).........................................  .........
  Section 1201(d)(3).........................................     50,000
                                                   ------------
    Total subsection (d) gain................................     50,000
                                                   ============
(3) Net section 1201 gain (net capital gain for taxable years     40,000
 beginning after December 31, 1976) in excess of subsection
 (d) gain ($90,000 less $50,000).............................
                                                   ------------
(4) Tax under section 1201(b)(1):
  (i) Taxable income..............................   $295,000
  (ii) Less: 50% of item (1)......................     45,000
                                                   -----------
  (iii) Amount subject to tax under section           250,000
   1201(b)(1).....................................
                                                   -----------
    Partial tax (computed under section 1)...................    145,980
(5) Tax under section 1201(b)(2): (25% of item (1) or of item    $12,500
 (2), whichever is lesser [25% of $50,000])..................
(6) Tax under section 1201(b)(3) on item (3):
  Tax under section 1 on taxable income ($295,000)   $177,480
  Less: Tax under section 1 on sum of item (4)        163,480     14,000
   (iii) ($250,000) plus 50% of item (2) ($25,000)
   (Total $275,000)...............................
(7) Alternative tax under section 1201(b)....................    172,480
 


[T.D. 7337, 39 FR 44975, Dec. 30, 1974, as amended by T.D. 7728, 45 FR 
72651, Nov. 3, 1980]



Sec. 1.1202-0  Table of contents.

    This section lists the major captions that appear in the regulations 
under Sec. 1.1202-2.

  Sec. 1.1202-2 Qualified small business stock; effect of redemptions.

    (a) Redemptions from taxpayer or related person.
    (1) In general.
    (2) De minimis amount.
    (b) Significant redemptions.
    (1) In general.
    (2) De minimis amount.
    (c) Transfers by shareholders in connection with the performance of 
services not treated as purchases.
    (d) Exceptions for termination of services, death, disability or 
mental incompetency, or divorce.
    (1) Termination of services.
    (2) Death.
    (3) Disability or mental incompetency.
    (4) Divorce.
    (e) Effective date.

[T.D. 8749, 62 FR 68166, Dec. 31, 1997]



Sec. 1.1202-1  Deduction for capital gains.

    (a) In computing gross income, adjusted gross income, taxable 
income, capital gain net income (net capital gain for taxable years 
beginning before January 1, 1977) and net capital loss, 100 percent of 
any gain or loss (computed under section 1001, recognized under section 
1002, and taken into account without regard to subchapter P (section 
1201 and following), chapter 1 of the Code) upon the sale or exchange of 
a capital asset shall be taken into account regardless of the period for 
which the capital asset has been held. Nevertheless, the net short-term 
capital gain or loss and the net long-term capital gain or loss must be 
separately computed. In computing the adjusted gross income or the 
taxable income of a taxpayer other than a corporation, if for any 
taxable year the net long-term capital gain exceeds the net short-term 
capital loss, 50 percent of the amount of the excess is allowable as a 
deduction from gross income under section 1202.
    (b) For the purpose of computing the deduction allowable under 
section 1202 in the case of an estate or trust, any long-term or short-
term capital gains which, under sections 652 and 662, are includible in 
the gross income of its income beneficiaries as gains derived from the 
sale or exchange of capital assets must be excluded in determining 
whether, for the taxable year of the estate or trust, its net long-term 
capital gain exceeds its net short-term capital loss. To determine the 
extent to which such gains are includible in the gross income of a 
beneficiary, see the regulations under sections 652 and 662. For 
example, during 1954 a trust realized a gain of $1,000 upon the sale of 
stock held for 10 months. Under the terms of the trust instrument all of 
such gain

[[Page 243]]

must be distributed during the taxable year to A, the sole income 
beneficiary. Assuming that under section 652 or 662 A must include all 
of such gain in his gross income, the trust is not entitled to any 
deduction with respect to such gain under section 1202. Assuming A had 
no other capital gains or losses for 1954, he would be entitled to a 
deduction of $500 under section 1202. For purposes of this section, an 
income beneficiary shall be any beneficiary to whom an amount is 
required to be distributed, or is paid or credited, which is includible 
in his gross income.
    (c) The provisions of this section may be illustrated by the 
following example:

    Example: A, an individual, had the following transactions in 1954:

Long-term capital gain............................     $6,000
Long-term capital loss............................      4,000
                                                   -----------
Net long-term capital gain........................  .........     $2,000
Short-term capital loss...........................      1,800
Short-term capital gain...........................        300
                                                   ===========
Net short-term capital loss..................................      1,500
                                                   ------------
Excess of net long-term capital gain over net short-term             500
 capital loss................................................
 


Since the net long-term capital gain exceeds the net short-term capital 
loss by $500, 50 percent of the excess, or $250, is allowable as a 
deduction under section 1202.

[T.D. 6500, 25 FR 12001, Nov. 26, 1960, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]



Sec. 1.1202-2  Qualified small business stock; effect of redemptions.

    (a) Redemptions from taxpayer or related person--(1) In general. 
Stock acquired by a taxpayer is not qualified small business stock if, 
in one or more purchases during the 4-year period beginning on the date 
2 years before the issuance of the stock, the issuing corporation 
purchases (directly or indirectly) more than a de minimis amount of its 
stock from the taxpayer or from a person related (within the meaning of 
section 267(b) or 707(b)) to the taxpayer.
    (2) De minimis amount. For purposes of this paragraph (a), stock 
acquired from the taxpayer or a related person exceeds a de minimis 
amount only if the aggregate amount paid for the stock exceeds $10,000 
and more than 2 percent of the stock held by the taxpayer and related 
persons is acquired. The following rules apply for purposes of 
determining whether the 2-percent limit is exceeded. The percentage of 
stock acquired in any single purchase is determined by dividing the 
stock's value (as of the time of purchase) by the value (as of the time 
of purchase) of all stock held (directly or indirectly) by the taxpayer 
and related persons immediately before the purchase. The percentage of 
stock acquired in multiple purchases is the sum of the percentages 
determined for each separate purchase.
    (b) Significant redemptions--(1) In general. Stock is not qualified 
small business stock if, in one or more purchases during the 2-year 
period beginning on the date 1 year before the issuance of the stock, 
the issuing corporation purchases more than a de minimis amount of its 
stock and the purchased stock has an aggregate value (as of the time of 
the respective purchases) exceeding 5 percent of the aggregate value of 
all of the issuing corporation's stock as of the beginning of such 2-
year period.
    (2) De minimis amount. For purposes of this paragraph (b), stock 
exceeds a de minimis amount only if the aggregate amount paid for the 
stock exceeds $10,000 and more than 2 percent of all outstanding stock 
is purchased. The following rules apply for purposes of determining 
whether the 2-percent limit is exceeded. The percentage of the stock 
acquired in any single purchase is determined by dividing the stock's 
value (as of the time of purchase) by the value (as of the time of 
purchase) of all stock outstanding immediately before the purchase. The 
percentage of stock acquired in multiple purchases is the sum of the 
percentages determined for each separate purchase.
    (c) Transfers by shareholders in connection with the performance of 
services not treated as purchases. A transfer of stock by a shareholder 
to an employee or independent contractor (or to a beneficiary of an 
employee or independent contractor) is not treated as a purchase of the 
stock by the issuing corporation for purposes of this section even if 
the stock is treated as having first been transferred to the corporation 
under Sec. 1.83-6(d)(1) (relating to transfers by

[[Page 244]]

shareholders to employees or independent contractors).
    (d) Exceptions for termination of services, death, disability or 
mental incompetency, or divorce. A stock purchase is disregarded if the 
stock is acquired in the following circumstances:
    (1) Termination of services--(i) Employees and directors. The stock 
was acquired by the seller in connection with the performance of 
services as an employee or director and the stock is purchased from the 
seller incident to the seller's retirement or other bona fide 
termination of such services;
    (ii) Independent contractors. [Reserved]
    (2) Death. Prior to a decedent's death, the stock (or an option to 
acquire the stock) was held by the decedent or the decedent's spouse (or 
by both), by the decedent and joint tenant, or by a trust revocable by 
the decedent or the decedent's spouse (or by both), and--
    (i) The stock is purchased from the decedent's estate, beneficiary 
(whether by bequest or lifetime gift), heir, surviving joint tenant, or 
surviving spouse, or from a trust established by the decedent or 
decedent's spouse; and
    (ii) The stock is purchased within 3 years and 9 months from the 
date of the decedent's death;
    (3) Disability or mental incompetency. The stock is purchased 
incident to the disability or mental incompetency of the selling 
shareholder; or
    (4) Divorce. The stock is purchased incident to the divorce (within 
the meaning of section 1041(c)) of the selling shareholder.
    (e) Effective date. This section applies to stock issued after 
August 10, 1993.

[T.D. 8749, 62 FR 68166, Dec. 31, 1997]

                       Treatment of Capital Losses



Sec. 1.1211-1  Limitation on capital losses.

    (a) Corporations--(1) General rule. In the case of a corporation, 
there shall be allowed as a deduction an amount equal to the sum of:
    (i) Losses sustained during the taxable year from sales or exchanges 
of capital assets, plus
    (ii) The aggregate of all losses sustained in other taxable years 
which are treated as a short-term capital loss in such taxable year 
pursuant to section 1212(a)(1),

but only to the extent of gains from such sales or exchanges of capital 
assets in such taxable year.
    (2) Banks. See section 582(c) for modification of the limitation 
under section 1211(a) in the case of a bank, as defined in section 581.
    (b) Taxpayers other than corporations--(1) General rule. In the case 
of a taxpayer other than a corporation, there shall be allowed as a 
deduction an amount equal to the sum of:
    (i) Losses sustained during the taxable year from sales or exchanges 
of capital assets, plus
    (ii) The aggregate of all losses sustained in other taxable years 
which are treated either as a short-term capital loss or as a long-term 
capital loss in such taxable year pursuant to section 1212(b), but only 
to the extent of gains from sales or exchanges of capital assets in such 
taxable year, plus (if such losses exceed such gains) the additional 
allowance or transitional additional allowance deductible under section 
1211(b) from ordinary income for such taxable year. The additional 
allowance deductible under section 1211(b) shall be determined by 
application of subparagraph (2) of this paragraph, and the transitional 
additional allowance by application of subparagraph (3) of this 
paragraph.
    (2) Additional allowance. Except as otherwise provided by 
subparagraph (3) of this paragraph, the additional allowance deductible 
under section 1211(b) for taxable years beginning after December 31, 
1969, shall be the least of:
    (i) The taxable income for the taxable year reduced, but not below 
zero, by the zero bracket amount (in the case of taxable years beginning 
before January 1, 1977, the taxable income for the taxable year);
    (ii) $3,000 ($2,000 for taxable years beginning in 1977; $1,000 for 
taxable years beginning before January 1, 1977); or
    (iii) The sum of the excess of the net short-term capital loss over 
the net long-term capital gain, plus one-half of the excess of the net 
long-term capital loss over the net short-term capital gain.

[[Page 245]]

    (3) Transitional additional allowance--(i) In general. If, pursuant 
to the provisions of Sec. 1.1212-1(b) and subdivision (iii) of this 
subparagraph, there is carried to the taxable year from a taxable year 
beginning before January 1, 1970, a long-term capital loss, and if for 
the taxable year there is an excess of net long-term capital loss over 
net short-term capital gain, then, in lieu of the additional allowance 
provided by subparagraph (2) of this paragraph, the transitional 
additional allowance deductible under section 1211(b) shall be the least 
of:
    (a) The taxable income for the taxable year reduced, but not below 
zero, by the zero bracket amount (in the case of taxable years beginning 
before January 1, 1977, the taxable income for the taxable year);
    (b) $3,000 ($2,000 for taxable years beginning in 1977; $1,000 for 
taxable years beginning before January 1, 1977); or
    (c) The sum of the excess of the net short-term capital loss over 
the net long-term capital gain; that portion of the excess of the net 
long-term capital loss over the net short-term capital gain computed as 
provided in subdivision (ii) of this subparagraph; plus one-half of the 
remaining portion of the excess of the net long-term capital loss over 
the net short-term capital gain.
    (ii) Computation of specially treated portion of excess long-term 
capital loss over net short-term capital gain. In determining the 
transitional additional allowance deductible as provided by this 
subparagraph, there shall be applied thereto in full on a dollar-for-
dollar basis the excess of net long-term capital loss over net short-
term capital gain (computed with regard to capital losses carried to the 
taxable year) to the extent that the long-term capital losses carried to 
the taxable year from taxable years beginning before January 1, 1970, as 
provided by Sec. 1.1212-1(b) and subdivision (iii) of this 
subparagraph, exceed the sum of (a) the portion of the capital gain net 
income (net capital gain for taxable years beginning before January 1, 
1977) actually realized in the taxable year (i.e., computed without 
regard to capital losses carried to the taxable year) which consists of 
net long-term capital gain actually realized in the taxable year, plus 
(b) the amount by which the portion of the capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) 
actually realized in the taxable year (i.e., computed without regard to 
capital losses carried to the taxable year) which consists of net short-
term capital gain actually realized in the taxable year exceeds the 
total of short-term capital losses carried to the taxable year from 
taxable years beginning before January 1, 1970, as provided by Sec. 
1.1212-1(b) and subdivision (iv) of this subparagraph.

The amount by which the net long-term capital losses carried to the 
taxable year from taxable years beginning before January 1, 1970, 
exceeds the sum of (a) plus (b) shall constitute the transitional net 
long-term capital loss component for the taxable year for the purpose of 
this subparagraph.
    (iii) Carryover of certain long-term capital losses not utilized in 
computation of transitional additional allowance. If for a taxable year 
beginning after December 31, 1969, the transitional net long-term 
capital loss component determined as provided in subdivision (ii) of 
this subparagraph exceeds the amount of such component applied to the 
transitional additional allowance for the taxable year as provided by 
subdivision (i) of this subparagraph and subparagraph (4)(ii) of this 
paragraph, then such excess shall for the purposes of this subparagraph 
be carried to the succeeding taxable year as long-term capital losses 
from taxable years beginning before January 1, 1970, for utilization in 
the computation of the transitional additional allowance in the 
succeeding taxable year as provided in subdivisions (i) and (ii) of this 
subparagraph. In no event, however, shall the amount of such component 
carried to the following taxable year as otherwise provided by this 
subdivision exceed the total of net long-term capital losses actually 
carried to such succeeding taxable year pursuant to section 1212(b) and 
Sec. 1.1212-1(b).
    (iv) Carryover of certain short-term capital losses not utilized in 
computation of additional allowance or transitional additional 
allowance. If for a taxable year beginning after December 31, 1969, the 
total short-term capital losses carried to such year from taxable years

[[Page 246]]

beginning before January 1, 1970, as provided by Sec. 1.1212-1(b) and 
this subdivision exceed the sum of:
    (a) The portion of the capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) actually realized in the 
taxable year (i.e., computed without regard to capital losses carried to 
the taxable year) which consists of net short-term capital gain actually 
realized in the taxable year, plus
    (b) The amount by which the portion of the capital gain net income 
(net capital gain for taxable years beginning before January 1, 1977) 
actually realized in the taxable year (i.e., computed without regard to 
capital losses carried to the taxable year) which consists of net long-
term capital gain actually realized in the taxable year exceeds the 
total long-term capital losses carried to the taxable year from taxable 
years beginning before January 1, 1970, as provided in Sec. 1.1212-1(b) 
and subdivision (iii) of this subparagraph,

then such excess shall constitute the transitional net short-term 
capital loss component for the taxable year, and to the extent such 
component also exceeds the net short-term capital loss applied to the 
additional allowance (as provided in subparagraphs (2) and (4)(i) of 
this paragraph) or the transitional additional allowance (as provided by 
subdivision (i) of this subparagraph and subparagraph (4)(i) of this 
paragraph) for the taxable year shall be carried to the succeeding 
taxable year as short-term capital losses from taxable years beginning 
before January 1, 1970, for utilization in such succeeding taxable year 
in the computation of the additional allowance (as provided by 
subparagraph (2) of this paragraph) or the transitional additional 
allowance (as provided by subdivision (i) and (ii) of this 
subparagraph). In no event, however, shall the amount of such component 
so carried to the following taxable year as otherwise provided by this 
subdivision exceed the total of net short-term capital losses actually 
carried to such succeeding taxable year pursuant to section 1212(b) and 
Sec. 1.1212-1(b).
    (v) Scope of rules. The rules provided by this subparagraph are for 
the purpose of computing the amount of the transitional additional 
allowance deductible for the taxable year pursuant to the provisions of 
section 1212(b)(3) and this subparagraph. More specifically, their 
operation permits the limited use of a long-term capital loss carried to 
the taxable year from a taxable year beginning before December 31, 1969, 
in full on a dollar-for-dollar basis in computing the transitional 
additional allowance deductible for the taxable year. These rules have 
no application to, or effect upon, a determination of the character or 
amount of capital gain net income (net capital gain for taxable years 
beginning before January 1, 1977) reportable in the taxable year. See 
paragraph (b)(1) of this section and Sec. 1.1212-1 for the 
determination of the amount and character of capital gains and losses 
reportable in the taxable year. Further, except to the extent that their 
application may affect the amount of the transitional additional 
allowance deductible for the taxable year and thus the amount to be 
treated as short-term capital loss for carryover purposes under section 
1212(b) and Sec. 1.1212-1(b)(2), these rules have no effect upon a 
determination of the character or amount of capital losses carried to or 
from the taxable year pursuant to section 1212(b) and Sec. 1.1212-1(b).
    (4) Order of application of capital losses to additional allowance 
or transitional additional allowance. In applying the excess of the net 
short-term capital loss over the net long-term capital gain and the 
excess of the net long-term capital loss over the net short-term capital 
gain to the additional allowance or transitional additional allowance 
deductible under section 1211(b) and this paragraph, such excesses 
shall, subject to the limitations of subparagraph (2) or (3) of this 
paragraph, be used in the following order:
    (i) First, there shall be applied to the additional allowance or 
transitional additional allowance the excess, if any, of the net short-
term capital loss over the net long-term capital gain.
    (ii) Second, if such transitional additional allowance exceeds the 
amount so applied thereto as provided in subdivision (i) of this 
subparagraph, there shall next be applied thereto as provided in 
subparagraph (3) of this paragraph the excess, if any, of the net long-
term capital loss over the net

[[Page 247]]

short-term capital gain to the extent of the transitional net long-term 
capital loss component for the taxable year computed as provided by 
subdivision (ii) of subparagraph (3) of this paragraph.
    (iii) Third, if such additional allowance or transitional additional 
allowance exceeds the sum of the amounts so applied thereto as provided 
in subdivisions (i) and (ii) of this subparagraph, there shall be 
applied thereto one-half of the balance, if any, of the excess net long-
term capital loss not applied pursuant to the provisions of subdivision 
(ii) of this subparagraph.
    (5) Taxable years beginning prior to January 1, 1970. For any 
taxable year beginning prior to January 1, 1970, subparagraphs (2) and 
(3) of this paragraph shall not apply and losses from sales or exchanges 
of capital assets shall be allowed as a deduction only to the extent of 
gains from such sales or exchanges, plus (if such losses exceed such 
gains) the taxable income of the taxpayer or $1,000, whichever is 
smaller.
    (6) Special rules. (i) For purposes of section 1211(b) and this 
paragraph, taxable income is to be computed without regard to gains or 
losses from sales or exchanges of capital assets and without regard to 
the deductions provided in section 151 (relating to personal exemptions) 
or any deduction in lieu thereof. For example, the deductions available 
to estates and trusts under section 642(b) are in lieu of the deductions 
allowed under section 151, and, in the case of estates and trusts, are 
to be added back to taxable income for the purposes of section 1211(b) 
and this paragraph.
    (ii) For taxable years beginning before January 1, 1976, in case the 
tax is computed under section 3 and the regulations thereunder (relating 
to optional tax tables for individuals), the term taxable income as used 
in section 1211(b) and this paragraph shall be read as adjusted gross 
income.
    (iii) In the case of a joint return, the limitation under section 
1211(b) and this paragraph, relating to the allowance of losses from 
sales or exchanges of capital assets, is to be computed and the net 
capital loss determined with respect to the combined taxable income and 
the combined capital gains and losses of the spouses.
    (7) Married taxpayers filing separate returns--(i) In general. In 
the case of a husband or a wife who files a separate return for a 
taxable year beginning after December 31, 1969, the $3,000, $2,000, and 
$1,000 amounts specified in subparagraphs (2)(ii) and (3)(i)(b) of this 
paragraph shall instead be $1,500, $1,000, and $500, respectively.
    (ii) Special rule. If, pursuant to the provisions of Sec. 1.1212-
1(b) and subparagraph (3) (iii) or (iv) of this paragraph, there is 
carried to the taxable year from a taxable year beginning before January 
1, 1970, a short-term capital loss or a long-term capital loss, the 
$1,500, $1,000 and $500 amounts specified in subdivision (i) of this 
subparagraph shall instead be maximum amounts of $3,000, $2,000, and 
$1,000 respectively, equal to $1,500, $1,000, and $500, respectively, 
plus the total of the transitional net long-term capital loss component 
for the taxable year computed as provided by subparagraph (3)(ii) of 
this paragraph and the transitional net short-term capital loss 
component for the taxable year computed as provided by subparagraph 
(3)(iv) of this paragraph.
    (8) Examples. The provisions of section 1211(b) may be illustrated 
by the following examples:

    Example 1. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and losses.........     $4,400
Deduction provided by section 151............................        625
                                                   ------------
Taxable income for purposes of section 1211(b)...............      5,025
Long-term capital gain............................     $1,200
Long-term capital loss............................    (5,300)
                                                   -----------
Net long-term capital loss........................    (4,100)
Losses to the extent of gains.....................    (1,200)
Additional allowance deductible under section 1211(b)........      1,000
                                                              ==========
 


The net long-term capital loss of $4,100 is deductible in 1970 only to 
the extent of an additional allowance of $1,000 which is smaller than 
the taxable income of $5,025. Under section 1211(b) and subparagraph (2) 
of this paragraph, $2,000 of excess net long-term capital loss was 
required to produce the $1,000 additional allowance. Therefore, a net 
long-term capital loss of $2,100 ($4,100 minus $2,000) is carried over 
under section 1212(b) to the succeeding taxable year. If A had the

[[Page 248]]

same taxable income for purposes of section 1211(b) (after reduction by 
the zero bracket amount) and the same transactions in 1977, the 
additional allowance would be $2,000, and a net long-term capital loss 
of $100 would be carried over. For a taxable year beginning in 1978 or 
thereafter, these facts would give rise to a $2,050 additional allowance 
and no carryover.
    Example 2. B, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and             $90
 losses...........................................
Deduction provided by section 151.................        625
                                                   ------------
Taxable income for purposes of section 1211(b)....        715
Long-term capital gain............................     $1,200
Long-term capital loss............................    (5,200)
                                                   -----------
Net long-term capital loss........................    (4,000)
Losses to the extent of gains.....................    (1,200)
Additional allowance deductible under section 1211(b)........        715
                                                              ==========
 


The net long-term capital loss of $4,000 is deductible in 1970 only to 
the extent of an additional allowance of $715, since the $715 of taxable 
income for purposes of section 1211(b) is smaller than $1,000. Under 
section 1211(b) and subparagraph (2) of this paragraph, $1,430 of net 
long-term capital loss was required to produce the $715 additional 
allowance. Therefore, a net long-term capital loss of $2,570 ($4,000 
minus $1,430) is carried over under section 1212(b) to the succeeding 
taxable year. For illustration of the result if the net capital loss for 
the taxable year is smaller than both $1,000 and taxable income for the 
purposes of section 1211(b), see examples (3) and (4) of this 
subparagraph. For carryover of a net capital loss, see Sec. 1.1212-1. 
Assuming the same taxable income for purposes of section 1211(b) (after 
reduction by the zero bracket amount) and the same transations for 
taxable years beginning in 1977 or thereafter, the same result would be 
reached.
    Example 3. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1971:

Taxable income exclusive of capital gains and         $13,300
 losses...........................................
Deduction provided by section 151.................        675
                                                   ------------
Taxable income for purposes of section 1211(b)....     13,975
Long-term capital gain............................       $400
Long-term capital loss............................     ($600)
                                                   -----------
Net long-term capital loss........................      (200)
                                                   ===========
Short-term capital gain...........................        900
Short-term capital loss...........................    (1,400)
                                                   -----------
Net short-term capital loss.......................      (500)
                                                   ===========
Losses to extent of gains.........................    (1,300)
Additional allowance deductible under section 1211(b)........       $600
                                                              ==========
 


The $600 additional allowance deductible under section 1211(b) is the 
least of: (i) Taxable income of $13,975, (ii) $1,000, or (iii) the sum 
of the excess of the net short-term capital loss of $500 over the net 
long-term capital gain, plus one-half of the excess of the net long-term 
capital loss of $200 over the net short-term capital gain. The $600 
additional allowance, therefore, consists of the net short-term capital 
loss of $500, plus $100 (one-half of the net long-term capital loss of 
$200), the total of which is smaller than both $1,000 and taxable income 
for purposes of section 1211(b). No amount of net capital loss remains 
to be carried over under section 1212(b) to the succeeding taxable year 
since the entire amount of the net short-term capital loss of $500 plus 
the entire amount of the net long-term capital loss of $200 required to 
produce $100 of the deduction was absorbed by the additional allowance 
deductible under section 1211(b) for 1971. Assuming the same taxable 
income for purposes of section 1211(b) (after reduction by the zero 
bracket amount) and the same transactions for taxable years beginning in 
1977 or thereafter, the result would remain unchanged.
    Example 4. A, a married individual filing a separate return with one 
exemption allowable as a deduction under section 151, has the following 
transactions in 1971:

Taxable income exclusive of capital gains and         $12,000
 losses...........................................
Deduction provided by section 151.................        675
                                                   ------------
Taxable income for purposes of section 1211(b)....     12,675
Long-term capital loss............................     ($800)
Long-term capital gain............................        300
                                                   -----------
Net long-term capital loss........................      (500)
                                                   ===========
Short-term capital loss...........................      (500)
Short-term capital gain...........................        600
                                                   -----------
Net short-term capital gain.......................        100
                                                   ===========
Losses to the extent of gains................................      (900)
Additional allowance deductible under section 1211(b)........        200
                                                              ==========
 


The excess net long-term capital loss of $400 (net long-term capital 
loss of $500 minus net short-term capital gain of $100) is deductible in 
1971 only to the extent of an additional allowance of $200 (one-half of 
$400) which is smaller than both $500 (married taxpayer filing a 
separate return for a taxable year beginning after December 31, 1969) 
and taxable income for purposes of section 1211(b). Since there is no 
net short-term capital loss in excess of net long-term capital gains for 
the taxable year, the $200 additional allowance

[[Page 249]]

deductible under section 1211(b) consists entirely of excess net long-
term capital loss. No amount of net capital loss remains to be carried 
over under section 1212(b) to the succeeding taxable year. Assuming the 
same taxable income for purposes of section 1211(b) (after reduction by 
the zero bracket amount) and the same transactions for taxable years 
beginning in 1977 or thereafter, the result would remain unchanged.
    Example 5. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and         $13,300
 losses...........................................
Deduction provided by section 151.................        625
                                                   ------------
Taxable income for purposes of section 1211(b)....     13,925
Long-term capital loss............................   ($6,000)
Long-term capital gain............................      2,000
                                                   -----------
Net long-term capital loss........................    (4,000)
                                                   ===========
Short-term capital gain...........................      3,000
Short-term capital loss carried to 1970 from 1969     (3,000)
 under section 1212(b)(1).........................
                                                   -----------
Net short-term capital loss.......................          0
                                                   ===========
Losses to the extent of gains.....................    (5,000)
Additional allowance deductible under section           1,000
 1211(b)..........................................
                                                   ===========
 


The $1,000 additional allowance deductible under section 1211(b) is the 
least of (i) taxable income of $13,925, (ii) $1,000, or (iii) the sum of 
the net short-term capital loss ($0) plus one-half of the net long-term 
capital loss of $4,000. The $1,000 additional allowance, therefore, 
consists of net long-term capital loss. Since $2,000 of the net long-
term capital loss of $4,000 was required to produce the $1,000 
additional allowance, the $2,000 balance of the net long-term capital 
loss is carried over under section 1212(b) to 1971. Assuming the same 
taxable income for purposes of section 1211(b) (after reduction by the 
zero bracket amount) and the same transactions for taxable years 
beginning in 1977 or thereafter, the additional allowance would be 
$2,000, and there would be no carryover.
    Example 6. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and losses.........    $13,300
Deduction provided by section 151............................        625
                                                   ------------
Taxable income for purposes of section 1211(b)...............     13,925
Long-term capital gain............................     $5,000
Long-term capital loss............................    (7,000)
Long-term capital loss carried to 1970 from 1969        (500)
 under section 1212 (b)(1)........................
                                                   ===========
Net long-term capital Loss........................    (2,500)
Short-term capital gain...........................      1,100
Short-term capital loss...........................    (1,400)
                                                   -----------
Net short-term capital loss.......................      (300)
                                                   ===========
Losses to extent of gains.........................    (6,100)
Transitional additional allowance deductible under      1,000
 section 1211(b)..................................
                                                   ===========
 


Because a component of the net long-term capital loss for 1970 is a $500 
long-term capital loss carried to 1970 from 1969, the transitional 
additional allowance deductible under section 1211(b) and subparagraph 
(3) of this paragraph is the least of (i) taxable income of $13,925, 
(ii) $1,000 or (iii) the sum of the net short-term capital loss of $300, 
plus the net long-term capital loss for 1970, to the extent of the $500 
long-term capital loss carried to 1970 from 1969 and one-half of the 
$2,000 balance of the net long-term capital loss. The entire $500 long-
term capital loss carried to 1970 from 1969 is applicable in full to the 
transitional additional allowance because there was no net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) actually realized in 1970. The $1,000 transitional additional 
allowance, therefore, consists of the net short-term capital loss of 
$300, the $500 long-term capital loss carried to 1970 from 1969, plus 
one-half of enough of the balance of the 1970 net long-term capital loss 
($400) to make up the $200 balance of the $1,000 transitional additional 
allowance. A long-term capital loss of $1,600 ($2,500 minus $900), all 
of which is attributable to 1970, is carried over under section 1212(b) 
to 1971. Assuming the same taxable income for purposes of section 
1211(b) (after reduction by the zero bracket amount) and the same 
transactions for taxable years beginning in 1977 or thereafter, the 
transitional additional allowance would be $1,800. No amount would 
remain to be carried over to the succeeding taxable year.
    Example 7. A, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1970:

Taxable income exclusive of capital gains and losses.........    $13,300
Deduction provided by section 151............................        625
                                                   ------------
Taxable income for purposes of section 1211(b)...............     13,925
Long-term capital loss............................   ($2,000)
Long-term capital loss carried to 1970 from 1969        (500)
 under section 1212 (b)(1)........................
                                                   -----------
Net long-term capital loss........................    (2,500)
                                                   ===========
Short-term capital gain...........................      2,600
Short-term capital loss carried to 1970 from 1969     (3,000)
 under section 1212 (b)(1)........................
                                                   -----------
Net short-term capital loss.......................      (400)
                                                   ===========
Losses to the extent of gains.....................    (2,600)

[[Page 250]]

 
Transitional additional allowance deductible under      1,000
 section 1211(b)..................................
                                                   ===========
 


Because a component of the net long-term capital loss for 1970 is a $500 
long-term capital loss carried to 1970 from 1969, the transitional 
additional allowance deductible under section 1211(b) and subparagraph 
(3) of this paragraph is the least of (i) taxable income of $13,925, 
(ii) $1,000, or (iii) the sum of the net short-term capital loss of 
$400, plus the net long-term capital loss for 1970 to the extent of the 
$500 long-term capital loss carried to 1970 from 1969, and one-half of 
the $2,000 balance of the net long-term capital loss. The entire $500 
long-term capital loss carried to 1970 from 1969 is applicable in full 
to the transitional additional allowance because the net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) for the taxable year (computed without regard to capital losses 
carried to the taxable year) consisted entirely of net short-term 
capital gain not in excess of the short-term capital loss carried to 
1970 from 1969. The $1,000 transitional additional allowance, therefore, 
consists of the net short-term capital loss of $400, the $500 long-term 
capital loss carried to 1970 from 1969, plus one-half of enough of the 
balance of the 1970 net long-term capital loss ($200) to make up the 
$100 balance of the $1,000 transitional additional allowance. A long-
term capital loss of $1,800 ($2,500 minus $700), all of which is 
attributable to 1970, is carried over under section 1212(b) to 1971. 
Assuming the same taxable income for purposes of section 1211(b) (after 
reduction by the zero bracket amount) and the same transactions for 
taxable years beginning in 1977 or thereafter, the transitional 
additional allowance would be $1,900. No amount would remain to be 
carried over to the succeeding taxable year.
    Example 8. Assume the facts in Example (7) but assume that the 
individual with one exemption allowable as a deduction under section 151 
is married and files a separate return for 1970. The maximum 
transitional additional allowance to which the individual would be 
entitled for 1970 pursuant to subparagraph (7)(ii) of this paragraph 
would be the sum of $500 plus (i) $2,400 of the short-term capital loss 
of $3,000 carried to 1970 from 1969 (the amount by which such carryover 
exceeds the $600 net capital gain (capital gain net income for taxable 
years beginning after December 31, 1976) actually realized in 1970, all 
of which is net short-term capital gain) and (ii) the $500 long-term 
capital loss carried to 1970 from 1969. However, since this sum ($3,400) 
exceeds $1,000, the maximum transitional additional allowance to which 
the individual is entitled for 1970 is limited to $1,000. If for 1971, 
the same married individual had taxable income of $13,925 for purposes 
of section 1211(b) and no capital transactions, and filed a separate 
return, the additional allowance deductible under section 1211(b) for 
1971 would be limited to $500 by reason of subdivision (i) of 
subparagraph (7) of this paragraph, since, as illustrated in Example 7, 
no part of the capital loss carried over to 1971 under section 1212 (b) 
is attributable to 1969. Assuming the same taxable income for purposes 
of section 1211(b) (after reduction by the zero bracket amount) and the 
same transactions as in example (7) for a married individual filing a 
separate return for a taxable year beginning in 1977 or thereafter, the 
transitional additional allowance would be $1,900. No amount would 
remain to be carried over to the succeeding taxable year.
    Example 9. B, an unmarried individual with one exemption allowable 
as a deduction under section 151, has the following transactions in 
1971:

Taxable income exclusive of capital gains and losses.........    $10,000
Deductions provided by section 151...........................        675
                                                   ------------
Taxable income for purposes of section 1211(b)...............     10,675
Long-term capital gain............................     $2,500
Long-term capital loss treated under Sec.  1.1211-   (5,000)
 1 (b)(3)(iii) as carried over from 1969..........
                                                   -----------
Net long-term capital loss........................    (2,500)
                                                   ===========
Short-term capital gain...........................      2,700
Short-term capital loss carried to 1971 from 1970     (1,000)
 under section 1212 (b)(1)........................
Short-term capital loss treated under Sec.          ($2,000)
 1.1211-1 (b)(3)(iv) as carried over from 1969....
                                                   -----------
Net short-term capital loss.......................      (300)
                                                   ===========
Losses to extent of gain..........................    (5,200)
Transitional additional allowance deductible under      1,000
 section 1211(b)..................................
                                                   ===========
 


Because a component of the net long-term capital loss for 1971 is a 
long-term capital loss treated under subparagraph (3)(iii) of this 
paragraph as carried over from 1969, the rules for computation of the 
transitional additional allowance under subparagraph (3) (i) and (ii) of 
this paragraph apply. The transitional net long-term capital loss 
component for 1971 under subparagraph (3)(ii) of this paragraph is 
$1,800, that is, the amount by which the $5,000 long-term loss treated 
as carried over from 1969 to 1971 exceeds (a) the net long-term capital 
gain of $2,500 actually realized in 1971 plus (b) the $700 excess of the 
$2,700 net short-term capital gain actually realized in 1971 over the 
$2,000 short-term capital loss treated as carried over to 1971 from 
1969. The transitional additional allowance for 1971 consists of the 
$300 net short-term capital loss plus $700 of the net long-term capital 
loss attributable to 1969. A net long-term capital loss of $1,800 
($2,500 minus

[[Page 251]]

$700) is carried over to 1972 under section 1212(b). Only $1,100 of the 
$1,800 will be treated in 1972 as carried over from 1969 since under 
subparagraph (3)(iii) of this paragraph the transitional net long-term 
capital loss component of $1,800 is reduced by the amount ($700) applied 
to the transitional additional allowance for 1971. Assuming the same 
taxable income for purposes of section 1211(b) (after reduction by the 
zero bracket amount) and the same transactions for a taxable year 
beginning in 1977, the transitional additional allowance would be 
$2,000. A net long-term capital loss of $800 would remain to be carried 
over. Of this amount $100 would be treated as carried over from 1969. 
Assuming the original facts for a taxable year beginning in 1978, the 
transitional additional allowance would be $2,450. No amount would 
remain to be carried over to the succeeding taxable year.

[T.D. 7301, 39 FR 964, Jan. 4, 1974; 39 FR 2758, Jan. 24, 1974, as 
amended by T.D. 7597, 44 FR 12419, Mar. 7, 1979; T.D. 7728, 45 FR 72650, 
Nov. 3, 1980]



Sec. 1.1212-1  Capital loss carryovers and carrybacks.

    (a) Corporations; other taxpayers for taxable years beginning before 
January 1, 1964--(1) Regular net capital loss sustained for taxable 
years beginning before January 1, 1970. (i) A corporation sustaining a 
net capital loss for any taxable year beginning before January 1, 1970, 
and a taxpayer other than a corporation sustaining a net capital loss 
for any taxable year beginning before January 1, 1964, shall carry over 
such net loss to each of the 5 succeeding taxable years and treat it in 
each of such 5 succeeding taxable years as a short-term capital loss to 
the extent not allowed as a deduction against any net capital gains 
(capital gain net income for taxable years beginning after December 31, 
1976) of any taxable years intervening between the taxable year in which 
the net capital loss was sustained and the taxable year to which 
carried. The carryover is thus applied in each succeeding taxable year 
to offset any net capital gain in such succeeding taxable year. The 
amount of the capital loss carryover may not be included in computing a 
new net capital loss of a taxable year which can be carried over to the 
next 5 succeeding taxable years. For purposes of this subparagraph, a 
net capital gain (capital gain net income for taxable years beginning 
after December 31, 1976) shall be computed without regard to capital 
loss carryovers or carrybacks. In the case of nonresident alien 
individuals, see section 871 for special rules on capital loss 
carryovers. For the rules applicable to the portion of a net capital 
loss of a corporation which is attributable to a foreign expropriation 
capital loss sustained in taxable years beginning after December 31, 
1958, see subparagraph (2) of this paragraph. For the rules applicable 
to a taxpayer other than a corporation in the treatment of that amount 
of a net capital loss which may be carried over under section 1212 and 
this subparagraph as a short-term capital loss to the first taxable year 
beginning after December 31, 1963, see paragraph (b) of this section.
    (ii) The practical operation of the provisions of this subparagraph 
may be illustrated by the following example:

    Example: (a) For the taxable years 1952 to 1956, inclusive, an 
individual with one exemption allowable under section 151 (or 
corresponding provision of prior law) is assumed to have a net short-
term capital loss, net short-term capital gain, net long-term capital 
loss, net long-term capital gain, and taxable income (net income for 
1952 and 1953) as follows:

----------------------------------------------------------------------------------------------------------------
                                       1952            1953            1954            1955            1956
----------------------------------------------------------------------------------------------------------------
Carryover from prior years:
  From 1952.....................  ..............       ($50,000)       ($29,500)       ($29,500)  ..............
  From 1954.....................  ..............  ..............  ..............        (19,500)       ($13,000)
Net short-term loss (computed          ($30,000)         (5,000)        (10,000)  ..............  ..............
 without regard to the
 carryovers)....................
Net short-term gain (computed     ..............  ..............  ..............          40,000  ..............
 without regard to the
 carryovers)....................
Net long-term loss..............        (20,500)  ..............        (10,000)         (5,000)  ..............
Net long-term gain..............  ..............          25,000  ..............  ..............          15,000
Net income or taxable income,                500             500             500           1,000             500
 computed without regard to
 capital gains and losses, and,
 after 1953, without regard to
 the deduction provided by
 section 151....................

[[Page 252]]

 
Net capital gain (capital gain    ..............          20,500  ..............          36,000  ..............
 net income for taxable years
 beginning after December 31,
 1976) (computed without regard
 to the carryovers).............
Net capital loss................        (50,000)  ..............        (19,500)  ..............  ..............
Deduction allowable under         ..............  ..............  ..............  ..............           1,000
 section 1202...................
Taxable income (after deductions  ..............  ..............  ..............  ..............             900
 allowable under sections 151
 and 1202)......................
----------------------------------------------------------------------------------------------------------------

    (b) Net capital loss of 1952. The net capital loss is $50,000. This 
figure is the excess of the losses from sales or exchanges of capital 
assets over the sum of (1) gains (in this case, none) from sales or 
exchanges of capital assets, and (2) net income (computed without regard 
to capital gains and losses) of $500. This amount may be carried forward 
in full as a short-term loss to 1953. However, in 1953 there was a net 
capital gain (capital gain net income for taxable years beginning after 
December 31, 1976) of $20,500, as defined by section 117(a)(10)(B) of 
the Internal Revenue Code of 1939, and limited by section 117(e)(1) of 
the 1939 Code, against which this net capital loss of $50,000 is allowed 
in part. The remaining portion--$29,500--may be carried forward to 1954 
and 1955 since there was no net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) in 1954. In 1955 
this $29,500 is allowed in full against net capital gain of $36,000, as 
defined by paragraph (d) of Sec. 1.1222-1 and limited by subdivision 
(i) of this subparagraph.
    (c) Net capital loss of 1954. The net capital loss is $19,500. This 
figure is the excess of the losses from sales or exchanges of capital 
assets over the sum of (1) gains (in this case, none) from sales or 
exchanges of capital assets and (2) taxable income (computed without 
regard to capital gains and losses and the deductions provided in 
section 151) of $500. This amount may be carried forward in full as a 
short-term loss to 1955. The net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) in 1955, before 
deduction of any carryovers, is $36,000. (See sections 1222(9)(B) and 
1212 of the Internal Revenue Code of 1954, as it existed prior to the 
enactment of the Revenue Act of 1964.) The $29,500 balance of the 1952 
loss is first applied against the $36,000, leaving a balance of $6,500. 
Against this amount the $19,500 loss arising in 1954 is applied, leaving 
a loss of $13,000, which may be carried forward to 1956. Since this 
amount is treated as a short-term capital loss in 1956 under subdivision 
(i) of this subparagraph, the excess of the net long-term capital gain 
over the net short-term capital loss is $2,000 ($15,000 minus $13,000). 
Half of this excess is allowable as a deduction under section 1202. 
Thus, after also deducting the exemption allowed as a deduction under 
section 151 ($600), the taxpayer has a taxable income of $900 ($2,500 
minus $1,600) for 1956.

    (2) Corporations sustaining foreign expropriation capital losses for 
taxable years ending after December 31, 1958--(i) In general. A 
corporation sustaining a net capital loss for any taxable year ending 
after December 31, 1958, any portion of which is attributable to a 
foreign expropriation capital loss, shall carry over such portion of the 
loss to each of the ten succeeding taxable years and treat it in each of 
such succeeding taxable years as a short-term capital loss to the extent 
and consistent with the manner provided in subparagraph (1) of this 
paragraph. For such purposes, the portion of any net capital loss for 
any taxable year which is attributable to a foreign expropriation 
capital loss is the amount, not in excess of the net capital loss for 
such year, of the foreign expropriation capital loss for such year. The 
portion of a net capital loss for any taxable year which is attributable 
to a foreign expropriation capital loss shall be treated as a separate 
net capital loss for that year and shall be applied, after first 
applying the remaining portion of such net capital loss, to offset any 
capital gain net income (net capital gain for taxable years beginning 
before January 1, 1977) in a succeeding taxable year. In applying net 
capital losses of two or more taxable years to offset the capital gain 
net income (net capital gain(s) for taxable years beginning before 
January 1, 1977) of a subsequent taxable year, such net capital losses 
shall be offset against such capital gain net income (net capital 
gain(s) for taxable years beginning before January 1, 1977) in the order 
of the taxable years in which the losses were sustained, beginning with 
the loss for the earliest preceding taxable year, even though one or 
more of such net capital losses are attributable

[[Page 253]]

in whole or in part to a foreign expropriation capital loss.
    (ii) Foreign expropriation capital loss defined. For purposes of 
this subaparagraph the term foreign expropriation capital loss means, 
for any taxable year, the sum of the losses taken into account in 
computing the net capital loss for such year which are:
    (a) Losses sustained directly by reason of the expropriation, 
intervention, seizure, or similar taking of property by the government 
of any foreign country, any political subdivision thereof, or any agency 
or instrumentality of the foregoing, or
    (b) Losses (treated under section 165 (g)(1) as losses from the sale 
or exchange of capital assets) from securities which become worthless by 
reason of the expropriation, intervention, seizure, or similar taking of 
property by the government of any foreign country, any political 
subdivision thereof, or any agency or instrumentality of the foregoing.
    (iii) Illustrations. The application of this subparagraph may be 
illustrated by the following examples:

    Example 1. X, a domestic corporation which uses the calendar year as 
the taxable year, owns as a capital asset 75 percent of the outstanding 
stock of Y, a foreign corporation operating in a foreign country. In 
1961, the foreign country seizes all of the assets of Y, rendering X's 
stock in Y worthless and thus causing X to sustain a $40,000 foreign 
expropriation capital loss for such year. In 1961, X has $30,000 of 
other losses from the sale or exchange of capital assets and $50,000 of 
gains from the sale or exchange of capital assets. X's net capital loss 
for 1961 is $20,000 ($70,000-$50,000). Since the foreign expropriation 
capital loss exceeds this amount, the entire $20,000 is a foreign 
expropriation capital loss for 1961.
    Example 2. Z, a domestic corporation which uses the calendar year as 
the taxable year, has a net capital loss of $50,000 for 1961, $30,000 of 
which is attributable to a foreign expropriation capital loss. Pursuant 
to the provisions of this paragraph, $30,000 of such net capital loss 
shall be carried over as a short-term capital loss to each of the 10 
taxable years succeeding 1961, and the remaining $20,000 of the net 
capital loss shall be carried over as a short-term capital loss to each 
of the 5 taxable years succeeding 1961. Z has a $35,000 net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) (determined without regard to any capital loss carryover) for 
1962. In offsetting the $50,000 capital loss carryover from 1961 against 
the $35,000 net capital gain (capital gain net income for taxable years 
beginning after December 31, 1976) for 1962, the $30,000 portion of such 
carryover which is attributable to the foreign expropriation capital 
loss for 1961 is applied against the 1962 net capital gain (capital gain 
net income for taxable years beginning after December 31, 1976) after 
applying the $20,000 remaining portion of the carryover. Thus, there is 
a capital loss carryover of $15,000 to 1963, all of which is 
attributable to the foreign expropriation capital loss for 1961. Z has a 
net capital loss for 1963 of $10,000, no portion of which is 
attributable to a foreign expropriation capital loss. For 1964, Z has a 
net capital gain (capital gain net income for taxable years beginning 
after December 31, 1976) of $22,000 (determined without regard to the 
capital loss carryovers from 1961 and 1963). In offsetting the capital 
loss carryovers from 1961 and 1963 against Z's $22,000 net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) for 1964, the $15,000 carryover from 1961 is applied against the 
1964 net capital gain (capital gain net income for taxable years 
beginning after December 31, 1976) before the $10,000 capital loss 
carryover from 1963 is applied against such gain. Thus, $3,000 of the 
1963 net capital loss remains to be carried over to 1965.

    (3) Regular net capital loss sustained by a corporation for taxable 
years beginning after December 31, 1969--(i) General rule. A corporation 
sustaining a net capital loss for any taxable year beginning after 
December 31, 1969 (hereinafter in this paragraph referred to as the loss 
year), shall:
    (a) Carry back such net capital loss to each of the 3 taxable years 
preceding the loss year, but only to the extent that such net capital 
loss is not attributable to a foreign expropriation capital loss and the 
carryback of such net capital loss does not increase or produce a net 
operating loss (as defined in section 172(c)) for the taxable year to 
which it is carried back; and
    (b) Carry over such net capital loss to each of the 5 taxable years 
succeeding the loss year,

and, subject to subdivision (ii) of this subparagraph, treat such net 
capital loss in each of such 3 preceding and 5 succeeding taxable years 
as a short-term capital loss.
    (ii) Amount treated as a short-term capital loss in each year. The 
entire amount of the net capital loss for any loss year

[[Page 254]]

shall be carried to the earliest of the taxable years to which such net 
capital loss may be carried, and the portion of such net capital loss 
which shall be carried to each of the other taxable years to which such 
net capital loss may be carried shall be the excess, if any, of such net 
capital loss over the total of the capital gain net income (net capital 
gain for taxable years beginning before January 1, 1977) (computed 
without regard to the capital loss carryback from the loss year or any 
taxable year thereafter) for each of the prior taxable years to which 
such net capital loss may be carried.
    (iii) Special rules. (a) In the case of a net capital loss which is 
not a foreign expropriation capital loss and which cannot be carried 
back in full to a preceding taxable year by reason of section 
1212(a)(1)(A)(ii) and subdivision (i)(a) of this subparagraph because 
such loss would produce or increase a net operating loss in such 
preceding taxable year, the capital gain net income (net capital gain 
for taxable years beginning before January 1, 1977) for such preceding 
taxable year shall in no case be treated as greater than the amount of 
such net capital loss which can be carried back to such preceding 
taxable year upon the application of section 1212(a)(1)(A)(ii) and 
subdivision (i)(a) of this subparagraph.
    (b) For the rules applicable to the portion of a net capital loss of 
a corporation which is attributable to a foreign expropriation capital 
loss sustained in a taxable year beginning after December 31, 1958, see 
section 1212(a)(2) and subparagraph (2) of this paragraph.
    (c) Section 1212(a)(1)(A) and subdivision (i)(a) of this 
subparagraph shall not apply to (and no carryback shall be allowed with 
respect to) the net capital loss of a corporation for any taxable year 
for which such corporation is an electing small business corporation 
under subchapter S. See Sec. 1.1372-1.
    (d) A net capital loss of a corporation for a year for which it is 
not an electing small business corporation under subchapter S shall not 
be carried back under section 1212(a)(1)(A) and subdivision (i)(a) of 
this subparagraph to a taxable year for which such corporation is an 
electing small business corporation. See section 1212(a)(3).
    (e) A net capital loss of a corporation shall not be carried back 
under section 1212(a)(1)(A) and subdivision (i)(a) of this subparagraph 
to a taxable year for which the corporation was a foreign personal 
holding company, a regulated investment company, or a real estate 
investment trust, or for which an election made by the corporation under 
section 1247 is applicable. See section 1212(a)(4).
    (f) A taxable year to which a net capital loss of a corporation 
cannot, by reason of (d) or (e) of this subdivision, be carried back 
under section 1212(a) (1)(A) and subdivision (i)(a) of this subparagraph 
shall nevertheless be treated as 1 of the 3 taxable years preceding the 
loss year for purposes of section 1212(a)(1)(A) and such subdivision 
(i)(a); but any capital gain net income (net capital gain for taxable 
years beginning before January 1, 1977) for such taxable year to which 
such net capital loss cannot be carried back shall be disregarded for 
purposes of subdivision (ii) of this subparagraph.
    (g) A regulated investment company (as defined in section 851) 
sustaining a net capital loss shall carry over that loss to each of the 
8 taxable years succeeding the loss year. However, the 8-year period 
prescribed in the preceding sentence shall be reduced (but not to less 
than 5 years) by the sum of (1) the number of taxable years to which the 
net capital loss must be carried back pursuant to subdivision (i)(a) of 
this subparagraph (as limited by subdivision (iii)(e) of this 
subparagraph) and (2) the number of taxable years, of the 8 taxable year 
succeeding the loss year, that the corporation failed to qualify as a 
regulated investment company as defined in section 851. This subdivision 
shall not extend the carryover period prescribed in subdivision (i)(b) 
of this subparagraph to a year in which a corporation is not a regulated 
investment company as defined in section 851.
    (iv) The application of this subparagraph may be illustrated by the 
following examples, in each of which it is assumed that the corporation 
is not, and never has been, a corporation described in subdivision (iii) 
(c) or (d) of

[[Page 255]]

this subparagraph, that the corporation files its tax returns on a 
calendar year basis, and that no capital loss sustained is a foreign 
expropriation capital loss:

    Example 1. A corporation has a net capital loss for 1970 which 
section 1212(a)(1)(A) permits to be carried back. The entire net capital 
loss for 1970 may be carried back to 1967, but only to the extent that a 
net operating loss for 1967 would not be produced or increased. The 
amount of the carryback to 1968 is the excess of the net capital loss 
for 1970 over the net capital gain (capital gain net income for taxable 
years beginning after December 31, 1976) for 1967, computed without 
regard to a capital loss carryback from 1970 or any taxable year 
thereafter. The amount of the carryback to 1969 is the excess of the net 
capital loss for 1970 over the sum of the net capital gains (capital 
gain net income for taxable years beginning after December 31, 1976) for 
1967 and 1968, computed without regard to a capital loss carryback from 
1970 or any taxable year thereafter. The amount of the carryover to 1971 
is the excess of the net capital loss for 1970 over the sum of the net 
capital gains (capital gain net income for taxable years beginning after 
December 31, 1976) for 1967, 1968, and 1969, computed without regard to 
a capital loss carryback from 1970 or any taxable year thereafter. 
Similarly, the amount of the carryover to 1972, 1973, 1974, and 1975, 
respectively, is the excess of the net capital loss for 1970 over the 
sum of the net capital gains (capital gain net income for taxable years 
beginning after December 31, 1976) for taxable years prior to 1972, 
1973, 1974, or 1975, as the case may be, to which the net capital loss 
for 1970 may be carried, computed without regard to a capital loss 
carryback from 1970 or any year thereafter.
    Example 2. For the taxable years 1967 to 1975, inclusive, a 
corporation is assumed to have net capital loss, net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976), and taxable income (computed without regard to capital gains and 
losses) as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  1967      1968      1969      1970      1971      1972      1973      1974      1975
--------------------------------------------------------------------------------------------------------------------------------------------------------
Taxable income (computed without regard to capital gains or      $25,000   $25,000   $25,000   $25,000   $25,000   $25,000   $25,000   $25,000   $25,000
 losses)......................................................
Net capital loss..............................................  ........  ........   (1,000)  (29,500)  (16,000)     (500)  ........  ........  ........
Net capital gain (capital gain net income for taxable years       14,000    16,000  ........  ........  ........  ........     8,000     7,500     6,500
 beginning after December 31, 1976) (computed without regard
 to carrybacks or carryovers).................................
Carryback or carryover:
  From 1969...................................................  ........  ........  ........  ........  ........  ........   (1,000)  ........  ........
  From 1970...................................................  (14,000)  (15,500)  ........  ........  ........  ........  ........  ........  ........
  From 1971...................................................  ........     (500)  ........  ........  ........  ........   (7,000)   (7,500)   (1,000)
  From 1972...................................................  ........  ........  ........  ........  ........  ........  ........  ........     (500)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The net capital loss of 1969, under the rules of subparagraph (1) of 
this paragraph, may not be carried back. Thus, the net capital loss for 
1970 is carried back and partially absorbed by the net capital gain 
(capital gain net income for taxable years beginning after December 31, 
1976) for 1967, and a portion of the net capital losses of both 1970 and 
1971 are carried back to 1968. The net capital loss for 1969 is the 
oldest that may be carried to 1973, and thus, it is the first carried 
over and absorbed by the net capital gain for 1973. The net capital loss 
for 1972 (which is not carried back because of the net capital losses in 
the 3 years preceding 1972) may be carried over to 1973.
    Example 3. For the taxable years 1967 to 1970, inclusive, a 
corporation which was organized on January 1, 1967, realized operating 
income and net capital gains (capital gain net income for taxable years 
beginning after December 31, 1976) and sustained operating losses and 
net capital losses as follows:

------------------------------------------------------------------------
                                        Operating income
                                             or loss
                                          (exclusive of    Capital gain
                                         capital gain or      or loss
                                              loss)
------------------------------------------------------------------------
1967..................................           $20,000         $24,000
1968..................................            20,000               0
1969..................................            20,000               0
1970..................................          (25,000)        (20,000)
------------------------------------------------------------------------

    The net capital loss of $20,000 for 1970 is carried back to 1967 and 
applied against the $24,000 net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) realized in that 
year, reducing such net capital gain (capital gain net income for 
taxable years beginning after December 31, 1976) to $4,000. The net 
operating loss of $25,000 for 1970 is then carried back to 1967 and 
applied first to eliminate the $20,000

[[Page 256]]

of operating income for that year and then to eliminate the net capital 
gain (capital gain net income for taxable years beginning after December 
31, 1976) for that year of $4,000 (as reduced by the 1970 capital loss 
carryback).
    Example 4. Assume the same facts as in Example 3 but substitute the 
following figures:

------------------------------------------------------------------------
                                        Operating income
                                             or loss
                                          (exclusive of    Capital gain
                                         capital gain or      or loss
                                              loss)
------------------------------------------------------------------------
1967..................................         ($20,000)         $24,000
1968..................................            20,000               0
1969..................................            20,000               0
1970..................................          (25,000)        (20,000)
------------------------------------------------------------------------

    The net capital loss of $20,000 for 1970 is carried back to 1967 and 
applied against the $24,000 net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) realized in that 
year only to the extent of $4,000, the maximum amount to which the 1970 
capital loss carryback can be applied without producing a net operating 
loss for 1967. The unused $16,000 balance of the 1970 net long-term 
capital loss can be carried forward to 1971 and subsequent taxable years 
to the extent provided in subdivision (i)(b) of this subparagraph.
    Example 5. Assume the same facts as in Example 3 but substitute the 
following figures:

------------------------------------------------------------------------
                                        Operating income
                                             or loss
                                          (exclusive of    Capital gain
                                         capital gain or      or loss
                                              loss)
------------------------------------------------------------------------
1967..................................                 0               0
1968..................................         ($20,000)               0
1969..................................                 0         $24,000
1970..................................            20,000        (24,000)
------------------------------------------------------------------------

    The net capital loss of $24,000 for 1970 is carried back to 1969 and 
applied against the $24,000 net capital gain (capital gain net income 
for taxable years beginning after December 31, 1976) realized in that 
year to the extent of $24,000. The application of the capital loss 
carryback is not limited as it was in Example 4 because such carryback 
neither increases nor produces a net operating loss, as such, for 1969. 
The $20,000 net operating loss for 1968 is then carried forward to 1970 
to eliminate the $20,000 of operating income for that year.
    Example 6. Assume the same facts as in Example 3 but substitute the 
following figures:

------------------------------------------------------------------------
                                        Operating income
                                             or loss
                                          (exclusive of    Capital gain
                                         capital gain or      or loss
                                              loss)
------------------------------------------------------------------------
1967..................................                 0               0
1968..................................                 0               0
1969..................................         ($20,000)       ($24,000)
1970..................................            20,000          20,000
------------------------------------------------------------------------

    The net capital loss of $24,000 for 1969 is carried forward to 1970 
and applied against the $20,000 net capital gain (capital gain net 
income for taxable years beginning after December 31, 1976) realized in 
that year. The unused $4,000 balance of the 1969 net capital loss can be 
carried forward to 1971 and subsequent taxable years to the extent 
provided in subdivision (i)(b) of this subparagraph.

    (b) Taxpayers other than corporations for taxable years beginning 
after December 31, 1963--(1) In general. If a taxpayer other than a 
corporation sustains a net capital loss for any taxable year beginning 
after December 31, 1963, the portion thereof which is a short-term 
capital loss carryover shall be carried over to the succeeding taxable 
year and treated as a short-term capital loss sustained in such 
succeeding taxable year, and the portion thereof which constitutes a 
long-term capital loss carryover shall be carried over to the succeeding 
taxable year and treated as a long-term capital loss sustained in such 
succeeding taxable year. The carryovers are included in the succeeding 
taxable year in the determination of the amount of the short-term 
capital loss, the net short-term capital gain or loss, the long-term 
capital loss, and the net long-term capital gain or loss in such year, 
the net capital loss in such year, and the capital loss carryovers from 
such year. For purposes of this subparagraph:
    (i) A short-term capital loss carryover is the excess of the net 
short-term capital loss for the taxable year over the net long-term 
capital gain for such year, and
    (ii) A long-term capital loss carryover is the excess of the net 
long-term capital loss for the taxable year over the net short-term 
capital gain for such year.
    (2) Special rules for determining a net short-term capital gain or 
loss for purposes of carryover--(i) Taxable years beginning after 
December 31, 1963, and before January 1, 1970. In determining a net 
short-term capital gain or loss of a taxable year beginning after 
December 31, 1963, and before January 1, 1970, for purposes of computing 
a short-term or long-term capital loss carryover to the succeeding 
taxable year, an amount equal to the additional allowance deductible 
under section 1211(b) for the taxable year (determined as provided

[[Page 257]]

in section 1211(b), as in effect for taxable years beginning before 
January 1, 1970, and Sec. 1.1211-1(b)(5)) is treated as a short-term 
capital gain occurring in such year.
    (ii) Taxable years beginning after December 31, 1969. In determining 
a net short-term capital gain or loss of a taxable year beginning after 
December 31, 1969:
    (a) For purposes of computing a short-term capital loss carryover to 
the succeeding taxable year, an amount equal to the additional allowance 
for the taxable year (determined as provided in section 1211(b) and 
Sec. 1.1211-1(b)(2)) is treated as a short-term capital gain occurring 
in such year, and
    (b) For purposes of computing a long-term capital loss carryover to 
the succeeding taxable year, an amount equal to the sum of the 
additional allowance for the taxable year (determined as provided in 
section 1211(b) and Sec. 1.1211-1(b)(2)), plus the excess of such 
additional allowance over the net short-term capital loss (determined 
without regard to section 1212(b)(2) for such year) is treated as a 
short-term capital gain in such year.

The rules provided in this subdivision are for the purpose of taking 
into account the additional allowance deductible for the current taxable 
year under section 1211(b) and Sec. 1.1211-1(b)(2) in determining the 
amount and character of capital loss carryovers from the current taxable 
year to the succeeding taxable year. Their practical application to a 
determination of the amount and character of capital loss carryovers 
from the current taxable year to the succeeding taxable year involves 
identification of the net long-term and net short-term capital loss 
components of the additional allowance deductible in the current taxable 
year as provided by Sec. 1.1211-1(b)(2)(iii). To the extent that the 
additional allowance is composed of net short-term capital losses, such 
losses are treated as a short-term capital gain in the current taxable 
year in determining the capital loss carryovers to the succeeding year. 
To the extent that the additional allowance is composed of net long-term 
capital losses applied pursuant to the provisions of Sec. 1.1211-
1(b)(2)(iii), an amount equal to twice the amount of such component of 
the additional allowance is treated as a short-term capital gain in the 
current taxable year. See paragraph (4) of this section for transitional 
rules if any part of the additional allowance is composed of net long-
term capital losses carried to the current taxable year from a taxable 
year beginning before January 1, 1970.
    (3) Transitional rule for net capital losses sustained in a taxable 
year beginning before January 1, 1964. A taxpayer other than a 
corporation sustaining a net capital loss for any taxable year beginning 
before January 1, 1964, shall treat as a short-term capital loss in the 
first taxable year beginning after December 31, 1963, any amount which 
would be treated as a short-term capital loss in such year under 
subchapter P of chapter 1 of the Code as in effect immediately before 
the enactment of the Revenue Act of 1964.
    (4) Transitional rule for net long-term capital losses sustained in 
a taxable year beginning before January 1, 1970. In the case of a net 
long-term capital loss sustained by a taxpayer other than a corporation 
in a taxable year beginning prior to January 1, 1970 (referred to in 
this section as a pre-1970 taxable year) which is carried over and 
treated as a long-term capital loss in the first taxable year beginning 
after December 31, 1969 (referred to in this section as a post-1969 
taxable year), the transitional additional allowance deductible under 
section 1211(b) for the taxable year shall be determined by application 
of section 1211(b) as in effect for pre-1970 taxable years and Sec. 
1.1211-1(b)(3), and the amount of such long-term capital loss carried 
over and treated as a long-term capital loss in the succeeding taxable 
year shall be determined by application of section 1212(b)(1) as in 
effect for pre-1970 taxable years and subparagraph (2)(i) of this 
paragraph (instead of under sections 1211(b) and 1212(b)(1) as in effect 
for post-1969 taxable years and Sec. 1.1211-1(b)(2) and subparagraph 
(2)(ii) of this paragraph, respectively) but only to the extent that 
such pre-1970 long-term capital loss constitutes a transitional net 
long-term capital loss component (determined as provided in Sec. 
1.1211-1(b)(3)(ii)) in the taxable year to which such pre-1970 long-term 
capital

[[Page 258]]

loss is carried. Thus, for purposes of paragraph (2) of this section, to 
the extent that a component of the transitional additional allowance 
deductible for a post-1969 taxable year under section 1211(b) and Sec. 
1.1211-1(b)(3)(i) is a transitional net long-term capital loss component 
carried over to such post-1969 taxable year, such component shall be 
treated as a short-term capital gain in determining the amount and 
character of capital loss carryovers from such post-1969 taxable year to 
the succeeding taxable year. Such component shall be so treated as a 
short-term capital gain in full on a dollar-for-dollar basis and shall 
not be doubled for this purpose as is provided by subdivision (ii) of 
paragraph (2) of this section in the case of a component of the 
additional allowance made up of net long-term capital losses applied 
pursuant to the provisions of Sec. 1.1211-1(b)(2)(iii). The 
transitional rule provided in this paragraph does not apply to a 
determination of the character of capital losses (as long-term or short-
term) actually deductible for the current taxable year under section 
1211(b) and Sec. 1.1211-1(b).
    (5) Examples. The application of this paragraph can be illustrated 
by the following examples:

    Example 1. For the taxable year 1971, an unmarried individual has 
taxable income for purposes of section 1211(b) of $8,000, a long-term 
capital loss of $2,000, and no other capital gains or losses. $1,000 
(one-half) of the net long-term capital loss is deductible in 1971 as 
the additional allowance deductible under section 1211(b). No amount of 
capital loss remains to be carried over to the succeeding taxable year.
    Example 2. For the taxable year 1972, the same unmarried individual 
has taxable income for purposes of section 1211(b) of $8,000, a long-
term capital loss of $3,000 and no other capital gains or losses. $1,500 
(one-half of the excess net capital loss) is deductible in 1972, but 
limited to the $1,000 maximum additional allowance deductible under 
section 1211(b). By application of section 1212(b)(1), he will carry 
over to 1973 a long-term capital loss of $1,000 determined as follows:

Net long-term capital loss...................................   ($3,000)
Additional allowance deductible under section          $1,000
 1211(b)..........................................
Excess of additional allowance over net short-term      1,000
 capital loss (determined without regard to
 section 1212(b)(2)(B)(i))........................
                                                   -----------
Total amount treated as short-term capital gain under              2,000
 1212(b)(2)(B) for purposes of determining carryover.........
                                                   ============
Long-term capital loss carryover to 1973.....................    (1,000)
                                                   ============
 


If, in 1973, he had taxable income for purposes of section 1211(b) of 
$8,000, but no capital gains or losses, $500 (one-half) of the net long-
term capital loss carryover from 1972 would be deductible in 1973 as the 
additional allowance deductible under section 1211(b). No amount of 
capital loss would be carried over to 1974.
    Example 3. For the taxable year 1971, an unmarried individual has 
taxable income for purposes of section 1211(b) of $9,000, a $500 short-
term capital gain, a $700 short-term capital loss, a $1,000 long-term 
capital gain and a $1,700 long-term capital loss. He will offset $1,500 
of capital losses against capital gains. The excess net capital loss of 
$900 is deductible in 1971 to the extent of a $550 additional allowance 
deductible under 1211(b) which is smaller than both $1,000 and taxable 
income for purposes of section 1211(b), determined as follows:

Losses allowed to the extent of gains........................   ($1,500)
                                                   ============
Amount allowed under section 1211(b)(1)(C):
  (i) Excess of net short-term capital loss over net long-         (200)
   term capital gain.........................................
  (ii) One-half of the excess of net long-term capital loss        (350)
   over net short-term capital gain..........................
                                                   ------------
Additional allowance deductible under section 1211(b)........        550
                                                   ============
 


The total amount treated as short-term capital gain under section 
1212(b)(2)(B) for purposes of determining any carryover to the 
succeeding taxable year exceeds $900. No amount of net capital loss 
remains to be carried over to the succeeding taxable year.
    Example 4. If in example (3) above, the long-term capital loss had 
been $2,800, the taxpayer would carry over $200 of long-term capital 
loss to 1972, determined as follows:

Losses allowed to extent of gains............................   ($1,500)
Amount allowed under section 1211(b)(1) (B) and (C):
    (i) Excess of net short-term capital loss over net long-       (200)
     term capital gain.......................................
    (ii) One-half the excess of net long-term capital loss         (900)
     over net short-term capital gain........................
 


as limited by 1211(b)(1)(B) to an additional allowance of $1,000.

Carryover under section 1212(b)(1):
    Net long-term capital loss for 1971......................   ($1,800)
    Additional allowance under section 1211(b)(1)(B).........      1,000
    Excess of additional allowance deductible under section          800
     1211(b) over net short-term capital loss determined
     without regard to section 1212(b)(2)(B)(i) ($1,000 less
     $200)...................................................
                                                   ------------

[[Page 259]]

 
    Total amount treated as short-term capital gain under          1,800
     section 1212(b)(2)(B) for purposes of determining
     carryover...............................................
    Short-term capital gain for 1971.........................        500
                                                   ------------
    Total short-term capital gain............................      2,300
    Short-term capital loss for 1971.........................      (700)
                                                   ------------
    Net short-term capital gain..............................      1,600
                                                   ============
    Long-term capital loss carryover ($1,800 less $1,600)....        200
 

    Example 5. For 1969, an unmarried individual has taxable income for 
purposes of section 1211(b) of $8,000, a long-term capital loss of 
$3,000, and no other capital gains or losses. He is allowed to deduct in 
1969 $1,000 as the additional allowance deductible under section 1211(b) 
(as in effect for pre-1970 taxable years) and to carry over to 1970, a 
long-term capital loss of $2,000 under section 1212(b) (as in effect for 
pre-1970 taxable years).
    If, in 1970, the same unmarried individual with taxable income for 
purposes of section 1211(b) of $8,000, has no capital gains or losses, 
he would deduct $1,000 of his pre- 1970 capital loss carryover as the 
transitional additional allowance deductible under section 1211(b) (as 
in effect for pre-1970 years) and carry over under section 1212(b)(1) 
(as in effect for pre-1970 taxable years) to 1971 the remaining $1,000 
as a pre-1970 long-term capital loss.
    If, in 1970, the same individual instead has a long-term capital 
gain of $2,500, and a long-term capital loss of $1,500, he would net 
these two items with the $2,000 carried to 1970 as a long-term capital 
loss. Thus, he would have a net long-term capital loss for 1970 of 
$1,000 which is deductible in 1970 as the transitional additional 
allowance deductible under section 1211(b). He would have no amount to 
carry over under section 1212(b)(1) to 1971.
    If, in 1970, the same individual instead has a long-term capital 
loss of $1,200, and a long-term capital gain of $200, resulting in a net 
long-term capital loss of $3,000 when netted with the $2,000 carried to 
1970 as a long-term capital loss, he would deduct $1,000 in respect of 
his pre-1970 long-term capital loss carryover as the transitional 
additional allowance deductible under section 1211(b) (as in effect for 
pre-1970 taxable years) and carry over under section 1212(b)(1) (as in 
effect for pre-1970 taxable years) to 1971 the remaining $1,000 of the 
pre-1970 component of his long-term capital loss carryover, and the 
$1,000 net long-term capital loss actually sustained in 1970 as the 
second component of his long-term capital loss carryover.
    Example 6. For 1970 a married individual filing a separate return 
has taxable income of $8,000, a long-term capital loss of $3,500 and a 
short-term capital gain of $3,000. He also has a pre-1970 short-term 
capital loss of $2,000 which is carried to 1970. The $3,000 short-term 
capital gain realized in 1970 would first be reduced by the $2,000 
short-term capital loss carryover, and then the remaining $1,000 balance 
of the short-term capital gain would be offset against the $3,500 long-
term capital loss, producing a net long-term capital loss of $2,500, no 
part of which is a net long-term capital loss carried over from 1969. 
However, under the special rule of Sec. 1.1211-1(b)(7)(ii) in 1970, the 
taxpayer would deduct as the additional allowance deductible under 
section 1211(b), the $500 limitation in Sec. 1.1211-1(b)(2)(ii) in the 
case of a married taxpayer filing a separate return in a taxable year 
ending after December 31, 1969, plus the transitional net short-term 
capital loss component of $2,000 computed under Sec. 1.1211-
1(b)(3)(iv), but limited to a total deduction of $1,000. The $1,000 
additional allowance deductible under section 1211(b) would absorb 
$2,000 of the $2,500 net long-term capital loss, and he would carry the 
unused $500 balance of such loss to 1971 for use in that year.
    Example 7. For 1970, an unmarried individual filing a separate 
return has taxable income for purposes of section 1211(b) of $8,000, and 
a long-term capital loss of $2,000. He also has a pre-1970 long-term 
capital loss of $2,500 which is carried to 1970. In 1970, the taxpayer 
would deduct as the transitional additional allowance deductible under 
section 1211(b) $1,000, absorbing $1,000 of the pre-1970 long-term 
capital loss of $2,500. He would carry to 1971 the unused $1,500 balance 
of his pre-1970 long-term capital loss plus the 1970 long-term capital 
loss of $2,000, or a total of $3,500, for use in 1971.
    For 1971, the same taxpayer filing a separate return with taxable 
income for purposes of section 1211(b) of $8,000, has a $3,600 long-term 
capital gain and a $2,200 long-term capital loss. When these gains and 
losses are combined with the long-term capital loss carryover from 1970 
of $3,500, a net long-term capital loss of $2,100 results. He would 
deduct $1,000 as the transitional additional allowance deductible under 
section 1211(b). The $1,000 additional allowance would absorb $100 of 
the unused pre-1970 long-term capital loss carryover of $1,500 plus 
$1,800 of the unused post-1969 long-term capital loss carryover of 
$2,100 (the amount of the 1971 net long-term capital loss necessary to 
make up the remaining $900 balance of the additional allowance). 
Although a component of the 1971 net long-term capital loss is the 
unused pre-1970 long-term capital loss carryover of $1,500, only $100 of 
this carryover is available for use in full on a dollar-for-dollar basis 
in computing the transitional additional allowance for 1971 since it 
only exceeds by that amount the $1,400 net capital gain (capital gain 
net income for taxable years beginning after December 31, 1976) actually 
realized in 1971 all of which is net long-term capital gain (long-term 
capital gain of $3,600 reduced by long-term capital loss of $2,200). See 
Sec. 1.1221-1(b)(3)(ii). The taxpayer would carry

[[Page 260]]

over to 1972 as a long-term capital loss the remaining $200 of the 1971 
long-term capital loss.
    Example 8. For 1970, an unmarried individual has taxable income for 
purposes of section 1211(b) of $8,000 and a short-term capital loss of 
$700. He also has a pre-1970 long-term capital loss carryover of $1,200. 
He would deduct $1,000 as the transitional additional allowance 
deductible under section 1211(b). The $1,000 transitional additional 
allowance would be composed of the 1970 short-term capital loss of $700 
and $300 of the pre-1970 long-term capital loss carryover. He would 
carry over to 1971 the unused $900 balance of his $1,200 pre-1970 long-
term capital loss carryover for use in 1971.

    (c) Husband and wife. (1) The following rules shall be applied in 
computing capital loss carryovers by husband and wife:
    (i) If a husband and wife making a joint return for any taxable year 
made separate returns for the preceding year, any capital loss 
carryovers of each spouse from such preceding taxable year may be 
carried forward to the taxable year in accordance with paragraph (a) or 
(b) of this section.
    (ii) If a joint return was made for the preceding taxable year, any 
capital loss carryover from such preceding taxable year may be carried 
forward to the taxable year in accordance with paragraph (a) or (b) of 
this section.
    (iii) If a husband and wife make separate returns for the first 
taxable year beginning after December 31, 1963, or any prior taxable 
year, and they made a joint return for the preceding taxable year, any 
capital loss carryover from such preceding taxable year shall be 
allocated to the spouses on the basis of their individual net capital 
loss which gave rise to such capital loss carryover. The capital loss 
carryover so allocated to each spouse may be carried forward by such 
spouse to the taxable year in accordance with paragraph (a) or (b) of 
this section.
    (iv) If a husband and wife making separate returns for any taxable 
year following the first taxable year beginning after December 31, 1963, 
made a joint return for the preceding taxable year, any long-term or 
short-term capital loss carryovers shall be allocated to the spouses on 
the basis of their individual net long-term and net short-term capital 
losses for the preceding taxable year which gave rise to such capital 
loss carryovers, and the portions of the long-term or short-term capital 
loss carryovers so allocated to each spouse may be carried forward by 
such spouse to the taxable year in accordance with paragraph (b) of this 
section.
    (v) If separate returns are made both for the taxable year and the 
preceding taxable year, any capital loss carryover of each spouse may be 
carried forward by such spouse in accordance with paragraph (a) or (b) 
of this section.
    (2) The provisions of subparagraph (1) (i), (iii), and (iv) of this 
paragraph may be illustrated by the following examples:

    Example 1. If H and W, husband and wife, make a joint return for 
1955, having made separate returns for 1954 in which H had a net capital 
loss of $3,000 and W had a net capital loss of $2,000, in their joint 
return for 1955 they would have a short-term capital loss of $5,000 (the 
sum of their separate capital loss carryovers from 1954), allowable in 
accordance with paragraph (a) of this section. If, on the other hand, 
they make separate returns in 1955 following a joint return in 1954 in 
which their net capital loss was $5,000 allocable $3,000 to H and $2,000 
to W, the carryover of H as a short-term capital loss for the purpose of 
his 1955 separate return would be $3,000 and that of W for her separate 
return would be $2,000, each allowable in accordance with paragraph (a) 
of this section.
    Example 2. H and W, husband and wife, make separate returns for 1966 
following a joint return for 1965. The capital gains and losses incurred 
by H and W in 1965, including those carried over by them to 1965, were 
as follows:

------------------------------------------------------------------------
                                                       H           W
------------------------------------------------------------------------
Long-term capital gains.........................      $8,000      $9,000
Long-term capital losses........................    (15,000)     (6,000)
Short-term capital gains........................      10,000       4,000
Short-term capital losses.......................    (19,000)     (5,000)
------------------------------------------------------------------------


Thus, in 1965 H and W had a net capital loss of $14,000 on their joint 
return. Of this amount, $4,000 was a long-term capital loss carryover, 
and $10,000 was a short-term capital loss carryover, determined in 
accordance paragraph (b) of this section. H's net long-term capital loss 
was $7,000 for 1965. This amount was offset on the joint return by W's 
net long-term capital gain of $3,000. Thus, H may carry over to his 
separate return for 1966, a long-term capital loss carryover of $4,000. 
H and W may carry over to their separate returns for 1966, as short-term 
capital

[[Page 261]]

loss carryovers, the amounts of their respective net short-term losses 
from 1965, $9,000 and $1,000.

[T.D. 6828, 30 FR 7806, June 17, 1965, as amended by T.D. 6867, 30 FR 
15095, Dec. 7, 1965; T.D. 7301, 39 FR 968, Jan. 4, 1974; 39 FR 2758, 
Jan. 24, 1974; T.D. 7659, 44 FR 73019, Dec. 17, 1979; T.D. 7728, 45 FR 
72650, Nov. 3, 1980]

         General Rules for Determining Capital Gains and Losses



Sec. 1.1221-1  Meaning of terms.

    (a) The term capital assets includes all classes of property not 
specifically excluded by section 1221. In determining whether property 
is a capital asset, the period for which held is immaterial.
    (b) Property used in the trade or business of a taxpayer of a 
character which is subject to the allowance for depreciation provided in 
section 167 and real property used in the trade or business of a 
taxpayer is excluded from the term capital assets. Gains and losses from 
the sale or exchange of such property are not treated as gains and 
losses from the sale or exchange of capital assets, except to the extent 
provided in section 1231. See Sec. 1.1231-1. Property held for the 
production of income, but not used in a trade or business of the 
taxpayer, is not excluded from the term capital assets even though 
depreciation may have been allowed with respect to such property under 
section 23(l) of the Internal Revenue Code of 1939 before its amendment 
by section 121(c) of the Revenue Act of 1942 (56 Stat. 819). However, 
gain or loss upon the sale or exchange of land held by a taxpayer 
primarily for sale to customers in the ordinary course of his business, 
as in the case of a dealer in real estate, is not subject to the 
provisions of subchapter P (section 1201 and following), chapter 1 of 
the Code.
    (c)(1) A copyright, a literary, musical, or artistic composition, 
and similar property are excluded from the term capital assets if held 
by a taxpayer whose personal efforts created such property, or if held 
by a taxpayer in whose hands the basis of such property is determined, 
for purposes of determining gain from a sale or exchange, in whole or in 
part by reference to the basis of such property in the hands of a 
taxpayer whose personal efforts created such property. For purposes of 
this subparagraph, the phrase similar property includes for example, 
such property as a theatrical production, a radio program, a newspaper 
cartoon strip, or any other property eligible for copyright protection 
(whether under statute or common law), but does not include a patent or 
an invention, or a design which may be protected only under the patent 
law and not under the copyright law.
    (2) In the case of sales and other dispositions occurring after July 
25, 1969, a letter, a memorandum, or similar property is excluded from 
the term capital asset if held by (i) a taxpayer whose personal efforts 
created such property, (ii) a taxpayer for whom such property was 
prepared or produced, or (iii) a taxpayer in whose hands the basis of 
such property is determined, for purposes of determining gain from a 
sale or exchange, in whole or in part by reference to the basis of such 
property in the hands of a taxpayer described in subdivision (i) or (ii) 
of this subparagraph. In the case of a collection of letters, 
memorandums, or similar property held by a person who is a taxpayer 
described in subdivision (i), (ii), or (iii) of this subparagraph as to 
some of such letters, memorandums, or similar property but not as to 
others, this subparagraph shall apply only to those letters, 
memorandums, or similar property as to which such person is a taxpayer 
described in such subdivision. For purposes of this subparagraph, the 
phrase similar property includes, for example, such property as a draft 
of a speech, a manuscript, a research paper, an oral recording of any 
type, a transcript of an oral recording, a transcript of an oral 
interview or of dictation, a personal or business diary, a log or 
journal, a corporate archive, including a corporate charter, office 
correspondence, a financial record, a drawing, a photograph, or a 
dispatch. A letter, memorandum, or property similar to a letter or 
memorandum, addressed to a taxpayer shall be considered as prepared or 
produced for him. This subparagraph does not apply to property, such as 
a corporate archive, office correspondence, or a financial record, sold 
or disposed of as part of a going business if such property has no 
significant

[[Page 262]]

value separate and apart from its relation to and use in such business; 
it also does not apply to any property to which subparagraph (1) of this 
paragraph applies (i.e., property to which section 1221(3) applied 
before its amendment by section 514(a) of the Tax Reform Act of 1969 (83 
Stat. 643)).
    (3) For purposes of this paragraph, in general, property is created 
in whole or in part by the personal efforts of a taxpayer if such 
taxpayer performs literary, theatrical, musical, artistic, or other 
creative or productive work which affirmatively contributes to the 
creation of the property, or if such taxpayer directs and guides others 
in the performance of such work. A taxpayer, such as corporate 
executive, who merely has administrative control of writers, actors, 
artists, or personnel and who does not substantially engage in the 
direction and guidance of such persons in the performance of their work, 
does not create property by his personal efforts. However, for purposes 
of subparagraph (2) of this paragraph, a letter or memorandum, or 
property similar to a letter or memorandum, which is prepared by 
personnel who are under the administrative control of a taxpayer, such 
as a corporate executive, shall be deemed to have been prepared or 
produced for him whether or not such letter, memorandum, or similar 
property is reviewed by him.
    (4) For the application of section 1231 to the sale or exchange of 
property to which this paragraph applies, see Sec. 1.1231-1. For the 
application of section 170 to the charitable contribution of property to 
which this paragraph applies, see section 170(e) and the regulations 
thereunder.
    (d) Section 1221(4) excludes from the definition of capital asset 
accounts or notes receivable acquired in the ordinary course of trade or 
business for services rendered or from the sale of stock in trade or 
inventory or property held for sale to customers in the ordinary course 
of trade or business. Thus, if a taxpayer acquires a note receivable for 
services rendered, reports the fair market value of the note as income, 
and later sells the note for less than the amount previously reported, 
the loss is an ordinary loss. On the other hand, if the taxpayer later 
sells the note for more than the amount originally reported, the excess 
is treated as ordinary income.
    (e) Obligations of the United States or any of its possessions, or 
of a State or Territory, or any political subdivision thereof, or of the 
District of Columbia, issued on or after March 1, 1941, on a discount 
basis and payable without interest at a fixed maturity date not 
exceeding one year from the date of issue, are excluded from the term 
capital assets. An obligation may be issued on a discount basis even 
though the price paid exceeds the face amount. Thus, although the Second 
Liberty Bond Act (31 U.S.C. 754) provides that United States Treasury 
bills shall be issued on a discount basis, the issuing price paid for a 
particular bill may, by reason of competitive bidding, actually exceed 
the face amount of the bill. Since the obligations of the type described 
in this paragraph are excluded from the term capital assets, gains or 
losses from the sale or exchange of such obligations are not subject to 
the limitations provided in such subchapter P. It is, therefore, not 
necessary for a taxpayer (other than a life insurance company taxable 
under part I (section 801 and following), subchapter L, chapter 1 of the 
Code, as amended by the Life Insurance Company Tax Act of 1955 (70 Stat. 
36), and, in the case of taxable years beginning before January 1, 1955, 
subject to taxation only on interest, dividends, and rents) to segregate 
the original discount accrued and the gain or loss realized upon the 
sale or other disposition of any such obligation. See section 454(b) 
with respect to the original discount accrued. The provisions of this 
paragraph may be illustrated by the following examples:

    Example 1. A (not a life insurance company) buys a $100,000, 90-day 
Treasury bill upon issuance for $99,998. As of the close of the forty-
fifth day of the life of such bill, he sells it to B (not a life 
insurance company) for $99,999.50. The entire net gain to A of $1.50 may 
be taken into account as a single item of income, without allocating $1 
to interest and $0.50 to gain. If B holds the bill until maturity his 
net gain of $0.50 may similarly be taken into account as a single item 
of income, without allocating $1 to interest and $0.50 to loss.

[[Page 263]]

    Example 2. The facts in this example are the same as in example (1) 
except that the selling price to B is $99,998.50. The net gain to A of 
$0.50 may be taken into account without allocating $1 to interest and 
$0.50 to loss, and, similarly, if B holds the bill until maturity his 
entire net gain of $1.50 may be taken into account as a single item of 
income without allocating $1 to interest and $0.50 to gain.

[T.D. 6500, 25 FR 12003, Nov. 26, 1960, as amended by T.D. 7369, 40 FR 
29840, July 16, 1975]



Sec. 1.1221-2  Hedging transactions.

    (a) Treatment of hedging transactions--(1) In general. This section 
governs the treatment of hedging transactions under section 1221(a)(7). 
Except as provided in paragraph (g)(2) of this section, the term capital 
asset does not include property that is part of a hedging transaction 
(as defined in paragraph (b) of this section).
    (2) Short sales and options. This section also governs the character 
of gain or loss from a short sale or option that is part of a hedging 
transaction. Except as provided in paragraph (g)(2) of this section, 
gain or loss on a short sale or option that is part of a hedging 
transaction (as defined in paragraph (b) of this section) is ordinary 
income or loss.
    (3) Exclusivity. If a transaction is not a hedging transaction as 
defined in paragraph (b) of this section, gain or loss from the 
transaction is not made ordinary on the grounds that property involved 
in the transaction is a surrogate for a noncapital asset, that the 
transaction serves as insurance against a business risk, that the 
transaction serves a hedging function, or that the transaction serves a 
similar function or purpose.
    (4) Coordination with section 988. This section does not apply to 
determine the character of gain or loss realized on a section 988 
transaction as defined in section 988(c)(1) or realized with respect to 
any qualified fund as defined in section 988(c)(1)(E)(iii).
    (b) Hedging transaction defined. Section 1221(b)(2)(A) provides that 
a hedging transaction is any transaction that a taxpayer enters into in 
the normal course of the taxpayer's trade or business primarily--
    (1) To manage risk of price changes or currency fluctuations with 
respect to ordinary property (as defined in paragraph (c)(2) of this 
section) that is held or to be held by the taxpayer;
    (2) To manage risk of interest rate or price changes or currency 
fluctuations with respect to borrowings made or to be made, or ordinary 
obligations incurred or to be incurred, by the taxpayer; or
    (3) To manage such other risks as the Secretary may prescribe in 
regulations (see paragraph (d)(6) of this section).
    (c) General rules--(1) Normal course. Solely for purposes of 
paragraph (b) of this section, if a transaction is entered into in 
furtherance of a taxpayer's trade or business, the transaction is 
entered into in the normal course of the taxpayer's trade or business. 
This rule includes managing risks relating to the expansion of an 
existing business or the acquisition of a new trade or business.
    (2) Ordinary property and obligations. Property is ordinary property 
to a taxpayer only if a sale or exchange of the property by the taxpayer 
could not produce capital gain or loss under any circumstances. Thus, 
for example, property used in a trade or business within the meaning of 
section 1231(b) (determined without regard to the holding period 
specified in that section) is not ordinary property. An obligation is an 
ordinary obligation if performance or termination of the obligation by 
the taxpayer could not produce capital gain or loss. For purposes of 
this paragraph (c)(2), the term termination has the same meaning as it 
does in section 1234A.
    (3) Hedging an aggregate risk. The term hedging transaction includes 
a transaction that manages an aggregate risk of interest rate changes, 
price changes, and/or currency fluctuations only if all of the risk, or 
all but a de minimis amount of the risk, is with respect to ordinary 
property, ordinary obligations, or borrowings.
    (4) Managing risk--(i) In general. Whether a transaction manages a 
taxpayer's risk is determined based on all of the facts and 
circumstances surrounding the taxpayer's business and the transaction. 
Whether a transaction manages a taxpayer's risk may be determined on a 
business unit by business unit basis (for example by treating

[[Page 264]]

particular groups of activities, including the assets and liabilities 
attributable to those activities, as separate business units), provided 
that the business unit is within a single entity or consolidated return 
group that adopts the single-entity approach. A taxpayer's hedging 
strategies and policies as reflected in the taxpayer's minutes or other 
records are evidence of whether particular transactions were entered 
into primarily to manage the taxpayer's risk.
    (ii) Limitation of risk management transactions to those 
specifically described. Except as otherwise determined by published 
guidance or by private letter ruling, a transaction that is not treated 
as a hedging transaction under paragraph (d) does not manage risk. 
Moreover, a transaction undertaken for speculative purposes will not be 
treated as a hedging transaction.
    (d) Transactions that manage risk--(1) Risk reduction transactions--
(i) In general. A transaction that is entered into to reduce a 
taxpayer's risk, manages a taxpayer's risk.
    (ii) Micro and macro hedges--(A) In general. A taxpayer generally 
has risk of a particular type only if it is at risk when all of its 
operations are considered. Nonetheless, a hedge of a particular asset or 
liability generally will be respected as reducing risk if it reduces the 
risk attributable to the asset or liability and if it is reasonably 
expected to reduce the overall risk of the taxpayer's operations. If a 
taxpayer hedges particular assets or liabilities, or groups of assets or 
liabilities, and the hedges are undertaken as part of a program that, as 
a whole, is reasonably expected to reduce the overall risk of the 
taxpayer's operations, the taxpayer generally does not have to 
demonstrate that each hedge that was entered into pursuant to the 
program reduces its overall risk.
    (B) Example. The following example illustrates the rules stated in 
paragraph (d)(1)(ii)(A) of this section:

    Example. Corporation X manages its business operations by treating 
particular groups of activities, including the assets and liabilities 
attributable to those assets, as separate business units. A separate set 
of books and records is maintained with respect to the activities, 
assets and liabilities of separate business unit y. As part of a risk 
management program that Corporation X reasonably expects to reduce the 
overall risks of its business operations, Corporation X enters into 
hedges to reduce the risks of separate business unit y. Corporation X 
may demonstrate that the hedges reduce risk by taking into account only 
the activities, assets and liabilities of business unit y.

    (iii) Written options. A written option may reduce risk. For 
example, in appropriate circumstances, a written call option with 
respect to assets held by a taxpayer or a written put option with 
respect to assets to be acquired by a taxpayer may be a hedging 
transaction. See also paragraph (d)(3) of this section.
    (iv) Fixed-to-floating price hedges. Under the principles of 
paragraph (d)(1)(ii)(A) of this section, a transaction that economically 
converts a price from a fixed price to a floating price may reduce risk. 
For example, a taxpayer with a fixed cost for its inventory may be at 
risk if the price at which the inventory can be sold varies with a 
particular factor. Thus, for such a taxpayer a transaction that converts 
its fixed price to a floating price may be a hedging transaction.
    (2) Interest rate conversions. A transaction that economically 
converts an interest rate from a fixed rate to a floating rate or that 
converts an interest rate from a floating rate to a fixed rate manages 
risk.
    (3) Transactions that counteract hedging transactions. If a 
transaction is entered into primarily to offset all or any part of the 
risk management effected by one or more hedging transactions, the 
transaction is a hedging transaction. For example, if a written option 
is used to reduce or eliminate the risk reduction obtained from another 
position such as a purchased option, then it may be a hedging 
transaction.
    (4) Recycling. A taxpayer may enter into a hedging transaction by 
using a position that was a hedge of one asset or liability as a hedge 
of another asset or liability (recycling).
    (5) Transactions not entered into primarily to manage risk--(i) 
Rule. Except as otherwise determined in published guidance or private 
letter ruling, the purchase or sale of a debt instrument, an equity 
security, or an annuity contract is not a hedging transaction even if 
the transaction limits or reduces the

[[Page 265]]

taxpayer's risk with respect to ordinary property, borrowings, or 
ordinary obligations. In addition, the Commissioner may determine in 
published guidance that other transactions are not hedging transactions.
    (ii) Examples. The following examples illustrate the rule stated in 
paragraph (d)(5)(i) of this section:

    Example 1. Taxpayer borrows money and agrees to pay a floating rate 
of interest. Taxpayer purchases debt instruments that bear a comparable 
floating rate. Although taxpayer's interest rate risk from the floating 
rate borrowing may be reduced by the purchase of the debt instruments, 
the acquisition of the debt instruments is not a hedging transaction, 
because the transaction is not entered into primarily to manage the 
taxpayer's risk.
    Example 2. Taxpayer undertakes obligations to pay compensation in 
the future. The amount of the future compensation payments is adjusted 
as if amounts were invested in a specified mutual fund and were 
increased or decreased by the earnings, gains and losses that would 
result from such an investment. Taxpayer invests funds in the shares of 
the mutual fund. Although the investment in shares of the mutual fund 
reduces the taxpayer's risk of fluctuation in the amount of its 
obligation to employees, the investment was not made primarily to manage 
the taxpayer's risk. Accordingly, the transaction is not a hedging 
transaction.
    Example 3. Taxpayer provides a nonqualified retirement plan for 
employees that is structured like a defined contribution plan. Based on 
a schedule that takes into account an employee's monthly salary and 
years of service with the taxpayer, the taxpayer makes monthly credits 
to an account for each employee. Each employee may designate that the 
account will be treated as if it were used to pay premiums on a variable 
annuity contract issued by the M insurance company with a value that 
reflects a specified investment option. M offers a number of investment 
options for its variable annuity contracts. Taxpayer invests funds in M 
company variable annuity contracts that parallel the investment options 
selected by the employees. The investment is not made primarily to 
manage the taxpayer's risk and is not a hedging transaction.

    (6) Hedges of other risks. The Commissioner may, by published 
guidance, determine that hedging transactions include transactions 
entered into to manage risks other than interest rate or price changes, 
or currency fluctuations.
    (7) Miscellaneous provision--(i) Extent of risk management. A 
taxpayer may hedge all or any portion of its risk for all or any part of 
the period during which it is exposed to the risk.
    (ii) Number of transactions. The fact that a taxpayer frequently 
enters into and terminates positions (even if done on a daily or more 
frequent basis) is not relevant to whether these transactions are 
hedging transactions. Thus, for example, a taxpayer hedging the risk 
associated with an asset or liability may frequently establish and 
terminate positions that hedge that risk, depending on the extent the 
taxpayer wishes to be hedged. Similarly, if a taxpayer maintains its 
level of risk exposure by entering into and terminating a large number 
of transactions in a single day, its transactions may nonetheless 
qualify as hedging transactions.
    (e) Hedging by members of a consolidated group--(1) General rule: 
single-entity approach. For purposes of this section, the risk of one 
member of a consolidated group is treated as the risk of the other 
members as if all of the members of the group were divisions of a single 
corporation. For example, if any member of a consolidated group hedges 
the risk of another member of the group by entering into a transaction 
with a third party, that transaction may potentially qualify as a 
hedging transaction. Conversely, intercompany transactions are not 
hedging transactions because, when considered as transactions between 
divisions of a single corporation, they do not manage the risk of that 
single corporation.
    (2) Separate-entity election. In lieu of the single-entity approach 
specified in paragraph (e)(1) of this section, a consolidated group may 
elect separate-entity treatment of its hedging transactions. If a group 
makes this separate-entity election, the following rules apply:
    (i) Risk of one member not risk of other members. Notwithstanding 
paragraph (e)(1) of this section, the risk of one member is not treated 
as the risk of other members.
    (ii) Intercompany transactions. An intercompany transaction is a 
hedging transaction (an intercompany hedging transaction) with respect 
to a member

[[Page 266]]

of a consolidated group if and only if it meets the following 
requirements--
    (A) The position of the member in the intercompany transaction would 
qualify as a hedging transaction with respect to the member (taking into 
account paragraph (e)(2)(i) of this section) if the member had entered 
into the transaction with an unrelated party; and
    (B) The position of the other member (the marking member) in the 
transaction is marked to market under the marking member's method of 
accounting.
    (iii) Treatment of intercompany hedging transactions. An 
intercompany hedging transaction (that is, a transaction that meets the 
requirements of paragraphs (e)(2)(ii)(A) and (B) of this section) is 
subject to the following rules--
    (A) The character and timing rules of Sec. 1.1502-13 do not apply 
to the income, deduction, gain, or loss from the intercompany hedging 
transaction; and
    (B) Except as provided in paragraph (g)(3) of this section, the 
character of the marking member's gain or loss from the transaction is 
ordinary.
    (iv) Making and revoking the election. Unless the Commissioner 
otherwise prescribes, the election described in this paragraph (e)(2) 
must be made in a separate statement saying ``[Insert Name and Employer 
Identification Number of Common Parent] HEREBY ELECTS THE APPLICATION OF 
SECTION 1.1221-2(e)(2) (THE SEPARATE-ENTITY APPROACH).'' The statement 
must also indicate the date as of which the election is to be effective. 
The election must be signed by the common parent and filed with the 
group's Federal income tax return for the taxable year that includes the 
first date for which the election is to apply. The election applies to 
all transactions entered into on or after the date so indicated. The 
election may be revoked only with the consent of the Commissioner.
    (3) Definitions. For definitions of consolidated group, divisions of 
a single corporation, group, intercompany transactions, and member, see 
section 1502 and the regulations thereunder.

    (4) Examples. General Facts. In these examples, O and H are members 
of the same consolidated group. O's business operations give rise to 
interest rate risk ``A,'' which O wishes to hedge. O enters into an 
intercompany transaction with H that transfers the risk to H. O's 
position in the intercompany transaction is ``B,'' and H's position in 
the transaction is ``C.'' H enters into position ``D'' with a third 
party to reduce the interest rate risk it has with respect to its 
position C. D would be a hedging transaction with respect to risk A if 
O's risk A were H's risk. The following examples illustrate this 
paragraph (e):

    Example 1. Single-entity treatment--(i) General rule. Under 
paragraph (e)(1) of this section, O's risk A is treated as H's risk, and 
therefore D is a hedging transaction with respect to risk A. Thus, the 
character of D is determined under the rules of this section, and the 
income, deduction, gain, or loss from D must be accounted for under a 
method of accounting that satisfies Sec. 1.446-4. The intercompany 
transaction B-C is not a hedging transaction and is taken into account 
under Sec. 1.1502-13.
    (ii) Identification. D must be identified as a hedging transaction 
under paragraph (f)(1) of this section, and A must be identified as the 
hedged item under paragraph (f)(2) of this section. Under paragraph 
(f)(5) of this section, the identification of A as the hedged item can 
be accomplished by identifying the positions in the intercompany 
transaction as hedges or hedged items, as appropriate. Thus, 
substantially contemporaneous with entering into D, H may identify C as 
the hedged item and O may identify B as a hedge and A as the hedged 
item.
    Example 2. Separate-entity election; counterparty that does not mark 
to market. In addition to the General Facts stated above, assume that 
the group makes a separate-entity election under paragraph (e)(2) of 
this section. If H does not mark C to market under its method of 
accounting, then B is not a hedging transaction, and the B-C 
intercompany transaction is taken into account under the rules of 
section 1502. D is not a hedging transaction with respect to A, but D 
may be a hedging transaction with respect to C if C is ordinary property 
or an ordinary obligation and if the other requirements of paragraph (b) 
of this section are met. If D is not part of a hedging transaction, then 
D may be part of a straddle for purposes of section 1092.

[[Page 267]]

[GRAPHIC] [TIFF OMITTED] TR20MR02.002

    Example 3.  Separate-entity election; counterparty that marks to 
market. The facts are the same as in Example 2 above, except that H 
marks C to market under its method of accounting. Also assume that B 
would be a hedging transaction with respect to risk A if O had entered 
into that transaction with an unrelated party. Thus, for O, the B-C 
transaction is an intercompany hedging transaction with respect to O's 
risk A, the character and timing rules of Sec. 1.1502-13 do not apply 
to the B-C transaction, and H's income, deduction, gain, or loss from C 
is ordinary. However, other attributes of the items from the B-C 
transaction are determined under Sec. 1.1502-13. D is a hedging 
transaction with respect to C if it meets the requirements of paragraph 
(b) of this section.

    (f) Identification and recordkeeping--(1) Same-day identification of 
hedging transactions. Under section 1221(a)(7), a taxpayer that enters 
into a hedging transaction (including recycling an existing hedging 
transaction) must clearly identify it as a hedging transaction before 
the close of the day on which the taxpayer acquired, originated, or 
entered into the transaction (or recycled the existing hedging 
transaction).
    (2) Substantially contemporaneous identification of hedged item--(i) 
Content of the identification. A taxpayer that enters into a hedging 
transaction must identify the item, items, or aggregate risk being 
hedged. Identification of an item being hedged generally involves 
identifying a transaction that creates risk, and the type of risk that 
the transaction creates. For example, if a taxpayer is hedging the price 
risk with respect to its June purchases of corn inventory, the 
transaction being hedged is the June purchase of corn and the risk is 
price movements in the market where the taxpayer buys its corn. For 
additional rules concerning the content of this identification, see 
paragraph (f)(3) of this section.
    (ii) Timing of the identification. The identification required by 
this paragraph (f)(2) must be made substantially contemporaneously with 
entering into the hedging transaction. An identification is not 
substantially contemporaneous if it is made more than 35 days after 
entering into the hedging transaction.
    (3) Identification requirements for certain hedging transactions. In 
the case of the hedging transactions described in this paragraph (f)(3), 
the identification under paragraph (f)(2) of this section must include 
the information specified.
    (i) Anticipatory asset hedges. If the hedging transaction relates to 
the anticipated acquisition of assets by the taxpayer, the 
identification must include the expected date or dates of acquisition 
and the amounts expected to be acquired.
    (ii) Inventory hedges. If the hedging transaction relates to the 
purchase or sale of inventory by the taxpayer, the identification is 
made by specifying the type or class of inventory to which the 
transaction relates. If the hedging transaction relates to specific 
purchases or sales, the identification must also include the expected 
dates of the purchases or sales and the amounts to be purchased or sold.
    (iii) Hedges of debt of the taxpayer--(A) Existing debt. If the 
hedging transaction relates to accruals or payments under an issue of 
existing debt of the taxpayer, the identification must specify the issue 
and, if the hedge is for less than the full issue price or the full term 
of the debt, the amount of the issue price and the term covered by the 
hedge.
    (B) Debt to be issued. If the hedging transaction relates to the 
expected issuance of debt by the taxpayer or to accruals or payments 
under debt that

[[Page 268]]

is expected to be issued by the taxpayer, the identification must 
specify the following information: the expected date of issuance of the 
debt; the expected maturity or maturities; the total expected issue 
price; and the expected interest provisions. If the hedge is for less 
than the entire expected issue price of the debt or the full expected 
term of the debt, the identification must also include the amount or the 
term being hedged. The identification may indicate a range of dates, 
terms, and amounts, rather than specific dates, terms, or amounts. For 
example, a taxpayer might identify a transaction as hedging the yield on 
an anticipated issuance of fixed rate debt during the second half of its 
fiscal year, with the anticipated amount of the debt between $75 million 
and $125 million, and an anticipated term of approximately 20 to 30 
years.
    (iv) Hedges of aggregate risk--(A) Required identification. If a 
transaction hedges aggregate risk as described in paragraph (c)(3) of 
this section, the identification under paragraph (f)(2) of this section 
must include a description of the risk being hedged and of the hedging 
program under which the hedging transaction was entered. This 
requirement may be met by placing in the taxpayer's records a 
description of the hedging program and by establishing a system under 
which individual transactions can be identified as being entered into 
pursuant to the program.
    (B) Description of hedging program. A description of a hedging 
program must include an identification of the type of risk being hedged, 
a description of the type of items giving rise to the risk being 
aggregated, and sufficient additional information to demonstrate that 
the program is designed to reduce aggregate risk of the type identified. 
If the program contains controls on speculation (for example, position 
limits), the description of the hedging program must also explain how 
the controls are established, communicated, and implemented.
    (v) Transactions that counteract hedging transactions. If the 
hedging transaction is described in paragraph (d)(3) of this section, 
the description of the hedging transaction must include an 
identification of the risk management transaction that is being offset 
and the original underlying hedged item.
    (4) Manner of identification and records to be retained--(i) 
Inclusion of identification in tax records. The identification required 
by this paragraph (f) must be made on, and retained as part of, the 
taxpayer's books and records.
    (ii) Presence of identification must be unambiguous. The presence of 
an identification for purposes of this paragraph (f) must be 
unambiguous. The identification of a hedging transaction for financial 
accounting or regulatory purposes does not satisfy this requirement 
unless the taxpayer's books and records indicate that the identification 
is also being made for tax purposes. The taxpayer may indicate that 
individual hedging transactions, or a class or classes of hedging 
transactions, that are identified for financial accounting or regulatory 
purposes are also being identified as hedging transactions for purposes 
of this section.
    (iii) Manner of identification. The taxpayer may separately and 
explicitly make each identification, or, so long as paragraph (f)(4)(ii) 
of this section is satisfied, the taxpayer may establish a system 
pursuant to which the identification is indicated by the type of 
transaction or by the manner in which the transaction is consummated or 
recorded. An identification under this system is made at the later of 
the time that the system is established or the time that the transaction 
satisfies the terms of the system by being entered, or by being 
consummated or recorded, in the designated fashion.
    (iv) Principles of paragraph (f)(4)(iii) of this section 
illustrated. Paragraphs (f)(4)(iv)(A) through (C) of this section 
illustrate the principles of paragraph (f)(4)(iii) of this section and 
assume that the other requirements of this paragraph (f) are satisfied.
    (A) A taxpayer can make an identification by designating a hedging 
transaction for (or placing it in) an account that has been identified 
as containing only hedges of a specified item (or of specified items or 
specified aggregate risk).
    (B) A taxpayer can make an identification by including and retaining 
in its books and records a statement that

[[Page 269]]

designates all future transactions in a specified derivative product as 
hedges of a specified item, items, or aggregate risk.
    (C) A taxpayer can make an identification by designating a certain 
mark, a certain form, or a certain legend as meaning that a transaction 
is a hedge of a specified item (or of specified items or a specified 
aggregate risk). Identification can be made by placing the designated 
mark on a record of the transaction (for example, trading ticket, 
purchase order, or trade confirmation) or by using the designated form 
or a record that contains the designated legend.
    (5) Identification of hedges involving members of the same 
consolidated group--(i) General rule: single-entity approach. A member 
of a consolidated group must satisfy the requirements of this paragraph 
(f) as if all of the members of the group were divisions of a single 
corporation. Thus, the member entering into the hedging transaction with 
a third party must identify the hedging transaction under paragraph 
(f)(1) of this section. Under paragraph (f)(2) of this section, that 
member must also identify the item, items, or aggregate risk that is 
being hedged, even if the item, items, or aggregate risk relates 
primarily or entirely to other members of the group. If the members of a 
group use intercompany transactions to transfer risk within the group, 
the requirements of paragraph (f)(2) of this section may be met by 
identifying the intercompany transactions, and the risks hedged by the 
intercompany transactions, as hedges or hedged items, as appropriate. 
Because identification of the intercompany transaction as a hedge serves 
solely to identify the hedged item, the identification is timely if made 
within the period required by paragraph (f)(2) of this section. For 
example, if a member transfers risk in an intercompany transaction, it 
may identify under the rules of this paragraph (f) both its position in 
that transaction and the item, items, or aggregate risk being hedged. 
The member that hedges the risk outside the group may identify under the 
rules of this paragraph (f) both its position with the third party and 
its position in the intercompany transaction. Paragraph (e)(4) Example 1 
of this section illustrates this identification.
    (ii) Rule for consolidated groups making the separate-entity 
election. If a consolidated group makes the separate-entity election 
under paragraph (e)(2) of this section, each member of the group must 
satisfy the requirements of this paragraph (f) as though it were not a 
member of a consolidated group.
    (6) Consistency with section 1256(e)(2). Any identification for 
purposes of section 1256(e)(2) is also an identification for purposes of 
paragraph (f)(1) of this section.
    (g) Effect of identification and non-identification--(1) 
Transactions identified--(i) In general. If a taxpayer identifies a 
transaction as a hedging transaction for purposes of paragraph (f)(1) of 
this section, the identification is binding with respect to gain, 
whether or not all of the requirements of paragraph (f) of this section 
are satisfied. Thus, gain from that transaction is ordinary income. If 
the transaction is not in fact a hedging transaction described in 
paragraph (b) of this section, however, paragraphs (a)(1) and (2) of 
this section do not apply and the character of loss is determined 
without reference to whether the transaction is a surrogate for a 
noncapital asset, serves as insurance against a business risk, serves a 
hedging function, or serves a similar function or purpose. Thus, the 
taxpayer's identification of the transaction as a hedging transaction 
does not itself make loss from the transaction ordinary.
    (ii) Inadvertent identification. Notwithstanding paragraph (g)(1)(i) 
of this section, if the taxpayer identifies a transaction as a hedging 
transaction for purposes of paragraph (f) of this section, the character 
of the gain is determined as if the transaction had not been identified 
as a hedging transaction if--
    (A) The transaction is not a hedging transaction (as defined in 
paragraph (b) of this section);
    (B) The identification of the transaction as a hedging transaction 
was due to inadvertent error; and
    (C) All of the taxpayer's transactions in all open years are being 
treated on

[[Page 270]]

either original or, if necessary, amended returns in a manner consistent 
with the principles of this section.
    (2) Transactions not identified--(i) In general. Except as provided 
in paragraphs (g)(2)(ii) and (iii) of this section, the absence of an 
identification that satisfies the requirements of paragraph (f)(1) of 
this section is binding and establishes that a transaction is not a 
hedging transaction. Thus, subject to the exceptions, the rules of 
paragraphs (a)(1) and (2) of this section do not apply, and the 
character of gain or loss is determined without reference to whether the 
transaction is a surrogate for a noncapital asset, serves as insurance 
against a business risk, serves a hedging function, or serves a similar 
function or purpose.
    (ii) Inadvertent error. If a taxpayer does not make an 
identification that satisfies the requirements of paragraph (f) of this 
section, the taxpayer may treat gain or loss from the transaction as 
ordinary income or loss under paragraph (a)(1) or (2) of this section 
if--
    (A) The transaction is a hedging transaction (as defined in 
paragraph (b) of this section);
    (B) The failure to identify the transaction was due to inadvertent 
error; and
    (C) All of the taxpayer's hedging transactions in all open years are 
being treated on either original or, if necessary, amended returns as 
provided in paragraphs (a)(1) and (2) of this section.
    (iii) Anti-abuse rule. If a taxpayer does not make an identification 
that satisfies all the requirements of paragraph (f) of this section but 
the taxpayer has no reasonable grounds for treating the transaction as 
other than a hedging transaction, then gain from the transaction is 
ordinary. The reasonableness of the taxpayer's failure to identify a 
transaction is determined by taking into consideration not only the 
requirements of paragraph (b) of this section but also the taxpayer's 
treatment of the transaction for financial accounting or other purposes 
and the taxpayer's identification of similar transactions as hedging 
transactions.
    (3) Transactions by members of a consolidated group--(i) Single-
entity approach. If a consolidated group is under the general rule of 
paragraph (e)(1) of this section (the single-entity approach), the rules 
of this paragraph (g) apply only to transactions that are not 
intercompany transactions.
    (ii) Separate-entity election. If a consolidated group has made the 
election under paragraph (e)(2) of this section, then, in addition to 
the rules of paragraphs (g)(1) and (2) of this section, the following 
rules apply:
    (A) If an intercompany transaction is identified as a hedging 
transaction but does not meet the requirements of paragraphs 
(e)(2)(ii)(A) and (B) of this section, then, notwithstanding any 
contrary provision in Sec. 1.1502-13, each party to the transaction is 
subject to the rules of paragraph (g)(1) of this section with respect to 
the transaction as though it had incorrectly identified its position in 
the transaction as a hedging transaction.
    (B) If a transaction meets the requirements of paragraphs (e)(2)(ii) 
(A) and (B) of this section but the transaction is not identified as a 
hedging transaction, each party to the transaction is subject to the 
rules of paragraph (g)(2) of this section. (Because the transaction is 
an intercompany hedging transaction, the character and timing rules of 
Sec. 1.1502-13 do not apply. See paragraph (e)(2)(iii)(A) of this 
section.)
    (h) Effective date. The rules of this section apply to transactions 
entered into on or after March 20, 2002.

[T.D. 8985, 67 FR 12865, Mar. 20, 2002]



Sec. 1.1222-1  Other terms relating to capital gains and losses.

    (a) The phrase short-term applies to the category of gains and 
losses arising from the sale or exchange of capital assets held for 1 
year (6 months for taxable years beginning before 1977; 9 months for 
taxable years beginning in 1977) or less; the phrase long-term to the 
category of gains and losses arising from the sale or exchange of 
capital assets held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977). 
The fact that some part of a loss from the sale or exchange of a capital 
asset may be finally disallowed because of the operation of section 1211 
does not mean that such loss is not taken into account in computing

[[Page 271]]

taxable income within the meaning of that phrase as used in sections 
1222(2) and 1222(4).
    (b)(1) In the definition of net short-term capital gain, as provided 
in section 1222(5), the amounts brought forward to the taxable year 
under section 1212 (other than section 1212(b)(1)(B)) are short-term 
capital losses for such taxable year.
    (2) In the definition of net long-term capital gain, as provided in 
section 1222(7), the amounts brought forward to the taxable year under 
section 1212(b)(1)(B) are long-term capital losses for such taxable 
year.
    (c) Gains and losses from the sale or exchange of capital assets 
held for not more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977) (described as 
short-term capital gains and short-term capital losses) shall be 
segregated from gains and losses arising from the sale or exchange of 
such assets held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) 
(described as long-term capital gains and long-term capital losses).
    (d)(1) The term capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) means the excess of the 
gains from sales or exchanges of capital assets over the losses from 
sales or exchanges of capital assets, which losses include any amounts 
carried to the taxable year pursuant to section 1212(a) or section 
1212(b).
    (2) Notwithstanding subparagraph (1) of this paragraph, in the case 
of a taxpayer other than a corporation for taxable years beginning 
before January 1, 1964, the term net capital gain means the excess of 
(i) the sum of the gains from sales or exchanges of capital assets, plus 
the taxable income (computed without regard to gains and losses from 
sales or exchanges of capital assets and without regard to the 
deductions provided by section 151, relating to personal exemptions, or 
any deductions in lieu thereof) of the taxpayer or $1,000, whichever is 
smaller, over (ii) the losses from sales or exchanges of capital assets, 
which losses include amounts carried to the taxable year by such 
taxpayer under paragraph (a)(1) of Sec. 1.1212-1. Thus, in the case of 
estates and trusts for taxable years beginning before January 1, 1964, 
taxable income for the purposes of this paragraph shall be computed 
without regard to gains and losses from sales or exchanges of capital 
assets and without regard to the deductions allowed by section 642(b) to 
estates and trusts in lieu of personal exemptions. The term net capital 
gain is not applicable in the case of a taxpayer other than a 
corporation for taxable years beginning after December 31, 1963, and 
before January 1, 1970. In the case of a taxpayer whose tax liability is 
computed under section 3 for taxable years beginning before January 1, 
1964, the term taxable income, for purposes of this paragraph, shall be 
read as adjusted gross income.
    (e) The term net capital loss means the excess of the losses from 
sales or exchanges of capital assets over the sum allowed under section 
1211. However, in the case of a corporation, amounts which are short-
term capital losses under Sec. 1.1212-1(a) are excluded in determining 
such net capital loss.
    (f) See section 165(g) and section 166(e), under which losses from 
worthless stocks, bonds, and other securities (if they constitute 
capital assets) are required to be treated as losses under subchapter P 
(section 1201 and following), chapter 1 of the Code, from the sale or 
exchange of capital assets, even though such securities are not actually 
sold or exchanged. See also section 1231 and Sec. 1.1231-1 for the 
determination of whether or not gains and losses from the involuntary 
conversion of capital assets and from the sale, exchange, or involuntary 
conversion of certain property used in the trade or business shall be 
treated as gains and losses from the sale or exchange of capital assets. 
See also section 1236 and Sec. 1.1236-1 for the determination of 
whether or not gains from the sale or exchange of securities by a dealer 
in securities shall be treated as capital gains, or whether losses from 
such sales or exchanges shall be treated as ordinary losses.
    (g) In the case of nonresident alien individuals not engaged in 
trade or business within the United States, see

[[Page 272]]

section 871 and the regulations thereunder for the determination of the 
net amount of capital gains subject to tax.
    (h) The term net capital gain (net section 1201 gain for taxable 
years beginning before January 1, 1977) means the excess of the net 
long-term capital gain for the taxable year over the net short-term 
capital loss for such year.

[T.D. 6500, 25 FR 12004, Nov. 26, 1960, as amended by T.D. 6828, 30 FR 
7808, June 17, 1965; T.D. 6867, 30 FR 15096, Dec. 7, 1965; T.D. 7301, 39 
FR 971, Jan. 4, 1974; T.D. 7337, 39 FR 44978, Dec. 30, 1974; T.D. 7728, 
45 FR 72650, Nov. 3, 1980]



Sec. 1.1223-1  Determination of period for which capital assets are held.

    (a) The holding period of property received in an exchange by a 
taxpayer includes the period for which the property which he exchanged 
was held by him, if the property received has the same basis in whole or 
in part for determining gain or loss in the hands of the taxpayer as the 
property exchanged. However, this rule shall apply, in the case of 
exchanges after March 1, 1954, only if the property exchanged was at the 
time of the exchange a capital asset in the hands of the taxpayer or 
property used in his trade or business as defined in section 1231(b). 
For the purposes of this paragraph, the term exchange includes the 
following transactions:
    (1) An involuntary conversion described in section 1033, and
    (2) A distribution to which section 355 (or so much of section 356 
as relates to section 355) applies.

Thus, if property acquired as the result of a compulsory or involuntary 
conversion of other property of the taxpayer has under section 1033(c) 
the same basis in whole or in part in the hands of the taxpayer as the 
property so converted, its acquisition is treated as an exchange and the 
holding period of the newly acquired property shall include the period 
during which the converted property was held by the taxpayer. Thus, 
also, where stock of a controlled corporation is received by a taxpayer 
pursuant to a distribution to which section 355 (or so much of section 
356 as relates to section 355) applies, the distribution is treated as 
an exchange and the period for which the taxpayer has held the stock of 
the controlled corporation shall include the period for which he held 
the stock of the distributing corporation with respect to which such 
distribution was made.
    (b) The holding period of property in the hands of a taxpayer shall 
include the period during which the property was held by any other 
person, if such property has the same basis in whole or in part in the 
hands of the taxpayer for determining gain or loss from a sale or 
exchange as it would have in the hands of such other person. For 
example, the period for which property acquired by gift after December 
31, 1920, was held by the donor must be included in determining the 
period for which the property was held by the taxpayer if, under the 
provisions of section 1015, such property has, for the purpose of 
determining gain or loss from the sale or exchange, the same basis in 
the hands of the taxpayer as it would have in the hands of the donor.
    (c) In determining the period for which the taxpayer has held stock 
or securities received upon a distribution where no gain was recognized 
to the distributee under section 1081(c) (or under section 112(g) of the 
Revenue Act of 1928 (45 Stat. 818) or the Revenue Act of 1932 (47 Stat. 
197)), there shall be included the period for which he held the stock or 
securities in the distributing corporation before the receipt of the 
stock or securities on such distribution.
    (d) If the acquisition of stock or securities resulted in the 
nondeductibility (under section 1091, relating to wash sales) of the 
loss from the sale or other disposition of substantially identical stock 
or securities, the holding period of the newly acquired securities shall 
include the period for which the taxpayer held the securities with 
respect to which the loss was not allowable.
    (e) The period for which the taxpayer has held stock, or stock 
subscription rights, received on a distribution shall be determined as 
though the stock dividend, or stock right, as the case may be, were the 
stock in respect of which the dividend was issued if the basis for 
determining gain or loss upon the sale or other disposition of such 
stock dividend or stock right is determined under section 307. If the 
basis of stock

[[Page 273]]

received by a taxpayer pursuant to a spin-off is determined under so 
much of section 1052(c) as refers to section 113(a)(23) of the Internal 
Revenue Code of 1939, and such stock is sold or otherwise disposed of in 
a taxable year which is subject to the Internal Revenue Code of 1954, 
the period for which the taxpayer has held the stock received in such 
spin-off shall include the period for which he held the stock of the 
distributing corporation with respect to which such distribution was 
made.
    (f) The period for which the taxpayer has held stock or securities 
issued to him by a corporation pursuant to the exercise by him of rights 
to acquire such stock or securities from the corporation will, in every 
case and whether or not the receipt of taxable gain was recognized in 
connection with the distribution of the rights, begin with and include 
the day upon which the rights to acquire such stock or securities were 
exercised. A taxpayer will be deemed to have exercised rights received 
from a corporation to acquire stock or securities therein where there is 
an expression of assent to the terms of such rights made by the taxpayer 
in the manner requested or authorized by the corporation.
    (g) The period for which the taxpayer has held a residence, the 
acquisition of which resulted under the provisions of section 1034 in 
the nonrecognition of any part of the gain realized on the sale or 
exchange of another residence, shall include the period for which such 
other residence had been held as of the date of such sale or exchange. 
See Sec. 1.1034-1. For purposes of this paragraph, the term sale or 
exchange includes an involuntary conversion occurring after December 31, 
1950, and before January 1, 1954.
    (h) If a taxpayer accepts delivery of a commodity in satisfaction of 
a commodity futures contract, the holding period of the commodity shall 
include the period for which the taxpayer held the commodity futures 
contract, if such futures contract was a capital asset in his hands.
    (i) If shares of stock in a corporation are sold from lots purchased 
at different dates or at different prices and the identity of the lots 
cannot be determined, the rules prescribed by the regulations under 
section 1012 for determining the cost or other basis of such stocks so 
sold or transferred shall also apply for the purpose of determining the 
holding period of such stock.
    (j) In the case of a person acquiring property, or to whom property 
passed, from a decedent (within the meaning of section 1014(b)) dying 
after December 31, 1970, such person shall be considered to have held 
the property for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977) if the 
property:
    (1) Has a basis in the hands of such person which is determined in 
whole or in part under section 1014, and
    (2) Is sold or otherwise disposed of by such person within 6 months 
after the decedent's death.

The provisions of this paragraph apply to sales of such property 
included in the decedent's gross estate for the purposes of the estate 
tax by the executor or administrator of the estate and to sales of such 
property by other persons who have acquired property from the decedent. 
The provisions of this paragraph may also be applicable to cases 
involving joint tenancies, community property, and properties 
transferred in contemplation of death. Thus, if a surviving joint 
tenant, who acquired property by right of survivorship, sells or 
otherwise disposes of such property within 6 months after the date of 
the decedent's death, and the basis of the property in his hands is 
determined in whole or in part under section 1014, the property shall be 
considered to have been held by the surviving joint tenant for more than 
6 months. Similarly, a surviving spouse's share of community property 
shall be considered to have been held by her for more than 6 months if 
it is sold or otherwise disposed of within 6 months after the date of 
the decedent's death, regardless of when the property was actually 
acquired by the marital community. For the purposes of this paragraph, 
it is immaterial that the sale or other disposition produces gain or 
loss. If property is considered to have been held for more than 6 months 
by reason of this paragraph, it also is considered to have

[[Page 274]]

been held for that period for purposes of section 1231 (if that section 
is otherwise applicable).
    (k) Any reference in section 1223 or this section to another 
provision of the Internal Revenue Code of 1954 is, where applicable, to 
be deemed a reference to the corresponding provision of the Internal 
Revenue Code of 1939, or prior internal revenue laws. The provisions of 
prior internal revenue laws here intended are the sections referred to 
in the sections of the Internal Revenue Code of 1939 which correspond to 
the sections of the Internal Revenue Code of 1954 referred to in section 
1223. Thus, the sections corresponding to section 1081(c) are section 
371(c) of the Revenue Act of 1938 (52 Stat. 553) and section 371(c) of 
the Internal Revenue Code of 1939. The sections corresponding to section 
1091 are section 118 of each of the following: The Revenue Acts of 1928 
(45 Stat. 826), 1932 (47 Stat. 208), 1934 (48 Stat. 715), 1936 (49 Stat. 
1692), 1938 (52 Stat. 503), and the Internal Revenue Code of 1939.

[T.D. 6500, 25 FR 12005, Nov. 26, 1960, as amended by T.D. 7238, 37 FR 
28717, Dec. 29, 1972; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec. 1.1223-3  Rules relating to the holding periods of partnership 
interests.

    (a) In general. A partner shall not have a divided holding period in 
an interest in a partnership unless--
    (1) The partner acquired portions of an interest at different times; 
or
    (2) The partner acquired portions of the partnership interest in 
exchange for property transferred at the same time but resulting in 
different holding periods (e.g., section 1223).
    (b) Accounting for holding periods of an interest in a partnership--
(1) General rule. The portion of a partnership interest to which a 
holding period relates shall be determined by reference to a fraction, 
the numerator of which is the fair market value of the portion of the 
partnership interest received in the transaction to which the holding 
period relates, and the denominator of which is the fair market value of 
the entire partnership interest (determined immediately after the 
transaction).
    (2) Special rule. For purposes of applying paragraph (b)(1) of this 
section to determine the holding period of a partnership interest (or 
portion thereof) that is sold or exchanged (or with respect to which 
gain or loss is recognized upon a distribution under section 731), if a 
partner makes one or more contributions of cash to the partnership and 
receives one or more distributions of cash from the partnership during 
the one-year period ending on the date of the sale or exchange (or 
distribution with respect to which gain or loss is recognized under 
section 731), the partner may reduce the cash contributions made during 
the year by cash distributions received on a last-in-first-out basis, 
treating all cash distributions as if they were received immediately 
before the sale or exchange (or at the time of the distribution with 
respect to which gain or loss is recognized under section 731).
    (3) Deemed contributions and distributions. For purposes of 
paragraphs (b)(1) and (2) of this section, deemed contributions of cash 
under section 752(a) and deemed distributions of cash under section 
752(b) shall be disregarded to the same extent that such amounts are 
disregarded under Sec. 1.704-1(b)(2)(iv)(c).
    (4) Adjustment with respect to contributed section 751 assets. For 
purposes of applying paragraph (b)(1) of this section to determine the 
holding period of a partnership interest (or portion thereof) that is 
sold or exchanged, if a partner receives a portion of the partnership 
interest in exchange for property described in section 751(c) or (d) 
(section 751 assets) within the one-year period ending on the date of 
the sale or exchange of all or a portion of the partner's interest in 
the partnership, and the partner recognizes ordinary income or loss on 
account of such a section 751 asset in a fully taxable transaction 
(either as a result of the sale of all or part of the partner's interest 
in the partnership or the sale by the partnership of the section 751 
asset), the contribution of the section 751 asset during the one-year 
period shall be disregarded. However, if, in the absence of this 
paragraph, a partner would not be treated as having held any portion of 
the interest for more than one year (e.g., because the partner's only 
contributions to the partnership are contributions of section 751 assets 
or section 751 assets

[[Page 275]]

and cash within the prior one-year period), this adjustment is not 
available.
    (5) Exception. The Commissioner may prescribe by guidance published 
in the Internal Revenue Bulletin (see Sec. 601.601(d)(2) of this 
chapter) a rule disregarding certain cash contributions (including 
contributions of a de minimis amount of cash) in applying paragraph 
(b)(1) of this section to determine the holding period of a partnership 
interest (or portion thereof) that is sold or exchanged.
    (c) Sale or exchange of all or a portion of an interest in a 
partnership--(1) Sale or exchange of entire interest in a partnership. 
If a partner sells or exchanges the partner's entire interest in a 
partnership, any capital gain or loss recognized shall be divided 
between long-term and short-term capital gain or loss in the same 
proportions as the holding period of the interest in the partnership is 
divided between the portion of the interest held for more than one year 
and the portion of the interest held for one year or less.
    (2) Sale or exchange of a portion of an interest in a partnership--
(i) Certain publicly traded partnerships. A selling partner in a 
publicly traded partnership (as defined under section 7704(b)) may use 
the actual holding period of the portion of a partnership interest 
transferred if--
    (A) The ownership interest is divided into identifiable units with 
ascertainable holding periods;
    (B) The selling partner can identify the portion of the partnership 
interest transferred; and
    (C) The selling partner elects to use the identification method for 
all sales or exchanges of interests in the partnership after September 
21, 2000. The selling partner makes the election referred to in this 
paragraph (c)(2)(i)(C) by using the actual holding period of the portion 
of the partner's interest in the partnership first transferred after 
September 21, 2000 in reporting the transaction for Federal income tax 
purposes.
    (ii) Other partnerships. If a partner has a divided holding period 
in a partnership interest, and paragraph (c)(2)(i) of this section does 
not apply, then the holding period of the transferred interest shall be 
divided between long-term and short-term capital gain or loss in the 
same proportions as the long-term and short-term capital gain or loss 
that the transferor partner would realize if the entire interest in the 
partnership were transferred in a fully taxable transaction immediately 
before the actual transfer.
    (d) Distributions--(1) In general. Except as provided in paragraph 
(b)(2) of this section, a partner's holding period in a partnership 
interest is not affected by distributions from the partnership.
    (2) Character of capital gain or loss recognized as a result of a 
distribution from a partnership. If a partner is required to recognize 
capital gain or loss as a result of a distribution from a partnership, 
then the capital gain or loss recognized shall be divided between long-
term and short-term capital gain or loss in the same proportions as the 
long-term and short-term capital gain or loss that the distributee 
partner would realize if such partner's entire interest in the 
partnership were transferred in a fully taxable transaction immediately 
before the distribution.
    (e) Section 751(c) assets. For purposes of this section, properties 
and potential gain treated as unrealized receivables under section 
751(c) shall be treated as separate assets that are not capital assets 
as defined in section 1221 or property described in section 1231.
    (f) Examples. The provisions of this section are illustrated by the 
following examples:

    Example 1. Division of holding period--contribution of money and a 
capital asset. (i) A contributes $5,000 of cash and a nondepreciable 
capital asset A has held for two years to a partnership (PRS) for a 50 
percent interest in PRS. A's basis in the capital asset is $5,000, and 
the fair market value of the asset is $10,000. After the exchange, A's 
basis in A's interest in PRS is $10,000, and the fair market value of 
the interest is $15,000. A received one-third of the interest in PRS for 
a cash payment of $5,000 ($5,000/$15,000). Therefore, A's holding period 
in one-third of the interest received (attributable to the contribution 
of money to the partnership) begins on the day after the contribution. A 
received two-thirds of the interest in PRS in exchange for the capital 
asset ($10,000/$15,000). Accordingly, pursuant to section 1223(1), A has 
a two-year holding period in two-thirds of the interest received in PRS.

[[Page 276]]

    (ii) Six months later, when A's basis in PRS is $12,000 (due to a 
$2,000 allocation of partnership income to A), A sells the interest in 
PRS for $17,000. Assuming PRS holds no inventory or unrealized 
receivables (as defined under section 751(c)) and no collectibles or 
section 1250 property, A will realize $5,000 of capital gain. As 
determined above, one-third of A's interest in PRS has a holding period 
of one year or less, and two-thirds of A's interest in PRS has a holding 
period equal to two years and six months. Therefore, one-third of the 
capital gain will be short-term capital gain, and two-thirds of the 
capital gain will be long-term capital gain.
    Example 2. Division of holding period--contribution of section 751 
asset and a capital asset. A contributes inventory with a basis of 
$2,000 and a fair market value of $6,000 and a capital asset which A has 
held for more than one year with a basis of $4,000 and a fair market 
value of $6,000, and B contributes cash of $12,000 to form a partnership 
(AB). As a result of the contribution, one-half of A's interest in AB is 
treated as having been held for more than one year under section 
1223(1). Six months later, A transfers one-half of A's interest in AB to 
C for $6,000, realizing a gain of $3,000. If AB were to sell all of its 
section 751 property in a fully taxable transaction immediately before 
A's transfer of the partnership interest, A would be allocated $4,000 of 
ordinary income on account of the inventory. Accordingly, A will 
recognize $2,000 of ordinary income and $1,000 of capital gain ($3,000-
$2,000) on account of the transfer to C. Because A recognizes ordinary 
income on account of the inventory that was contributed to AB within the 
one year period ending on the date of the sale, the inventory will be 
disregarded in determining the holding period of A's interest in AB. All 
of the capital gain will be long-term.
    Example 3. Netting of cash contributions and distributions. (i) On 
January 1, 2000, A holds a 50 percent interest in the capital and 
profits of a partnership (PS). The value of A's PS interest is $900, and 
A's holding period in the entire interest is long-term. On January 2, 
2000, when the value of A's PS interest is still $900, A contributes 
$100 to PS. On June 1, 2000, A receives a distribution of $40 cash from 
the partnership. On September 1, 2000, when the value of A's interest in 
PS is $1,350, A contributes an additional $230 cash to PS, and on 
October 1, 2000, A receives another $40 cash distribution from PS. A 
sells A's entire partnership interest on November 1, 2000, for $1,600. 
A's adjusted basis in the PS interest at the time of the sale is $1,000.
    (ii) For purposes of netting cash contributions and distributions in 
determining the holding period of A's interest in PS, A is treated as 
having received a distribution of $80 on November 1, 2000. Applying that 
distribution on a last-in-first-out basis to reduce prior contributions 
during the year, the contribution made on September 1, 2000, is reduced 
to $150 ($230-$80). The holding period then is determined as follows: 
Immediately after the contribution of $100 on January 2, 2000, A's 
holding period in A's PS interest is 90 percent long-term ($900/($900 + 
$100)) and 10 percent short-term ($100/($900 + $100)). The contribution 
of $150 on September 1, 2000, causes 10 percent of A's partnership 
interest ($150/($1,350 + $150)) to have a short-term holding period. 
Accordingly, immediately after the contribution on September 1, 2000, 
A's holding period in A's PS interest is 81 percent long-term (.90 x 
.90) and 19 percent short-term ((.10 x .90) + .10). Accordingly, $486 
($600 x .81) of the gain from A's sale of the PS interest is long-term 
capital gain, and $114 ($600 x .19) is short-term capital gain.
    Example 4. Division of holding period when capital account is 
increased by contribution. A, B, C, and D are equal partners in a 
partnership (PRS), and the fair market value of a 25 percent interest in 
PRS is $100. A, B, C, and D each contribute an additional $100 to 
partnership capital, thereby increasing the fair market value of each 
partner's interest to $200. As a result of the contribution, each 
partner has a new holding period in the portion of the partner's 
interest in PRS that is attributable to the contribution. That portion 
equals 50 percent ($100/$200) of each partner's interest in PRS.
    Example 5. Sale or exchange of a portion of an interest in a 
partnership. (i) A, B, and C form an equal partnership (PRS). In 
connection with the formation, A contributes $5,000 in cash and a 
capital asset (capital asset 1) with a fair market value of $5,000 and a 
basis of $2,000; B contributes $7,000 in cash and a capital asset 
(capital asset 2) with a fair market value of $3,000 and a basis of 
$3,000; and C contributes $10,000 in cash. At the time of the 
contribution, A had held the contributed property for two years. Six 
months later, when A's basis in PRS is $7,000, A transfers one-half of 
A's interest in PRS to T for $7,000 at a time when PRS's balance sheet 
(reflecting a cash receipts and disbursements method of accounting) is 
as follows:

------------------------------------------------------------------------
                                                            ASSETS
                                                     -------------------
                                                      Adjusted   Market
                                                        basis     value
------------------------------------------------------------------------
Cash................................................   $22,000   $22,000
Unrealized Receivables..............................         0     6,000
  Capital Asset 1...................................     2,000     5,000
  Capital Asset 2...................................     3,000     9,000
Capital Assets......................................     5,000    14,000
                                                     -------------------
    Total...........................................    27,000    42,000
------------------------------------------------------------------------

    (ii) Although at the time of the transfer A has not held A's 
interest in PRS for more than one year, 50 percent of the fair market 
value of A's interest in PRS was received in exchange for a capital 
asset with a long-term holding period. Therefore, 50 percent of A's

[[Page 277]]

interest in PRS has a long-term holding period.
    (iii) If PRS were to sell all of its section 751 property in a fully 
taxable transaction immediately before A's transfer of the partnership 
interest, A would be allocated $2,000 of ordinary income. One-half of 
that amount ($1,000) is attributable to the portion of A's interest in 
PRS transferred to T. Accordingly, A will recognize $1,000 oridnary 
income and $2,500 ($3,500-$1,000) of capital gain on account of the 
transfer to T of one-half of A's interest in PRS. Fifty percent ($1,250) 
of that gain is long-term capital gain and 50 percent ($1,250) is short-
term capital gain.
    Example 6. Sale of units of interests in a partnership. A publicly 
traded partnership (PRS) has ownership interests that are segregated 
into identifiable units of interest. A owns 10 limited partnership units 
in PRS for which A paid $10,000 on January 1, 1999. On August 1, 2000, A 
purchases five additional units for $10,000. At the time of purchase, 
the fair market value of each unit has increased to $2,000. A's holding 
period for one-third ($10,000/$30,000) of the interest in PRS begins on 
the day after the purchase of the five additional units. Less than one 
year later, A sells five units of ownership in PRS for $11,000. At the 
time, A's basis in the 15 units of PRS is $20,000, and A's capital gain 
on the sale of 5 units is $4,333 (amount realized of $11,000-one-third 
of the adjusted basis or $6,667). For purposes of determining the 
holding period, A can designate the specific units of PRS sold. If A 
properly identifies the five units sold as five of the ten units for 
which A has a long-term holding period and elects to use the 
identification method for all subsequent sales or exchanges of interests 
in the partnership by using the actual holding period in reporting the 
transaction on A's Federal income tax return, the capital gain realized 
will be long-term capital gain.
    Example 7. Disproportionate distribution. In 1997, A and B each 
contribute cash of $50,000 to form and become equal partners in a 
partnership (PRS). More than one year later, A receives a distribution 
worth $22,000 from PRS, which reduces A's interest in PRS to 36 percent. 
After the distribution, B owns 64 percent of PRS. The holding periods of 
A and B in their interests in PRS are not affected by the distribution.
    Example 8. Gain or loss as a result of a distribution--(i) On 
January 1, 1996, A contributes property with a basis of $10 and a fair 
market value of $10,000 in exchange for an interest in a partnership 
(ABC). On September 30, 2000, when A's interest in ABC is worth $12,000 
(and the basis of A's partnership interest is still $10), A contributes 
$12,000 cash in exchange for an additional interest in ABC. A is 
allocated a loss equal to $10,000 by ABC for the taxable year ending 
December 31, 2000, thereby reducing the basis of A's partnership 
interest to $2,010. On February 1, 2001, ABC makes a cash distribution 
to A of $10,000. ABC holds no inventory or unrealized receivables. 
(assume that A is allocated no gain or loss for the taxable year ending 
December 31, 2001, so that the basis of A's partnership interest does 
not increase or decrease as a result of such allocations.)
    (ii) The netting rule contained in paragraph (b)(2) of this section 
provides that, in determining the holding period of A's interest in ABC, 
the cash contribution made on September 30, 2000, must be reduced by the 
distribution made on February 1, 2001. Accordingly, for purposes of 
determining the holding period of A's interest in ABC, A is treated as 
having made a cash contribution of $2,000 ($12,000-$10,000) to ABC on 
September 30, 2000. A's holding period in one-seventh of A's interest in 
ABC ($2,000 cash contributed over the $14,000 value of the entire 
interest (determined as if only $2,000 were contributed rather than 
$12,000)) begins on the day after the cash contribution. A recognizes 
$7,990 of capital gain as a result of the distribution. See section 
731(a)(1). One-seventh of the capital gain recognized as a result of the 
distribution is short-term capital gain, and six-sevenths of the capital 
gain is long-term capital gain. After the distribution, A's basis in the 
interest in PRS is $0, and the holding period for the interest in PRS 
continues to be divided in the same proportions as before the 
distribution.

    (g) Effective date. This section applies to transfers of partnership 
interests and distributions of property from a partnership that occur on 
or after September 21, 2000.

[T.D. 8902, 65 FR 57099, Sept. 21, 2000]

         Special Rules for Determining Capital Gains and Losses



Sec. 1.1231-1  Gains and losses from the sale or exchange of certain 
property used in the trade or business.

    (a) In general. Section 1231 provides that, subject to the 
provisions of paragraph (e) of this section, a taxpayer's gains and 
losses from the disposition (including involuntary conversion) of assets 
described in that section as property used in the trade or business and 
from the involuntary conversion of capital assets held for more than 6 
months shall be treated as long-term capital gains and losses if the 
total gains exceed the total losses. If the total gains do not exceed 
the total losses, all such gains and losses are treated as ordinary 
gains and losses. Therefore, if the taxpayer has no gains

[[Page 278]]

subject to section 1231, a recognized loss from the condemnation (or 
from a sale or exchange under threat of condemnation) of even a capital 
asset held for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977) is an 
ordinary loss. Capital assets subject to section 1231 treatment include 
only capital assets involuntarily converted. The noncapital assets 
subject to section 1231 treatment are (1) depreciable business property 
and business real property held for more than 1 year (6 months for 
taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977) other than stock in trade and certain copyrights and 
artistic property and, in the case of sales and other dispositions 
occurring after July 25, 1969, other than a letter, memorandum, or 
property similar to a letter or memorandum; (2) timber, coal, and iron 
ore which do not otherwise meet the requirements of section 1231 but 
with respect to which section 631 applies; and (3) certain livestock and 
unharvested crops. See paragraph (c) of this section.
    (b) Treatment of gains and losses. For the purpose of applying 
section 1231, a taxpayer must aggregate his recognized gains and losses 
from:
    (1) The sale, exchange, or involuntary conversion of property used 
in the trade or business (as defined in section 1231(b)), and
    (2) The involuntary conversion (but not sale or exchange) of capital 
assets held for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977).

If the gains to which section 1231 applies exceed the losses to which 
the section applies, the gains and losses are treated as long-term 
capital gains and losses and are subject to the provisions of parts I 
and II (section 1201 and following), subchapter P, chapter 1 of the 
Code, relating to capital gains and losses. If the gains to which 
section 1231 applies do not exceed the losses to which the section 
applies, the gains and losses are treated as ordinary gains and losses. 
Therefore, in the latter case, a loss from the involuntary conversion of 
a capital asset held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) is 
treated as an ordinary loss and is not subject to the limitation on 
capital losses in section 1211. The phrase involuntary conversion is 
defined in paragraph (e) of this section.
    (c) Transactions to which section applies. Section 1231 applies to 
recognized gains and losses from the following:
    (1) The sale, exchange, or involuntary conversion of property held 
for more than 1 year (6 months for taxable years beginning before 1977; 
9 months for taxable years beginning in 1977) and used in the taxpayer's 
trade or business, which is either real property or is of a character 
subject to the allowance for depreciation under section 167 (even though 
fully depreciated), and which is not:
    (i) Property of a kind which would properly be includible in the 
inventory of the taxpayer if on hand at the close of the taxable year, 
or property held by the taxpayer primarily for sale to customers in the 
ordinary course of business;
    (ii) A copyright, a literary, musical, or artistic composition, or 
similar property, or (in the case of sales and other dispositions 
occurring after July 25, 1969) a letter, memorandum, or property similar 
to a letter or memorandum, held by a taxpayer described in section 
1221(3); or
    (iii) Livestock held for draft, breeding, dairy, or sporting 
purposes, except to the extent included under paragraph (4) of this 
paragraph, or poultry.
    (2) The involuntary conversion of capital assets held for more than 
1 year (6 months for taxable years beginning before 1977; 9 months for 
taxable years beginning in 1977).
    (3) The cutting or disposal of timber, or the disposal of coal or 
iron ore, to the extent considered arising from a sale or exchange by 
reason of the provisions of section 631 and the regulations thereunder.
    (4) The sale, exchange, or involuntary conversion of livestock if 
the requirements of Sec. 1.1231-2 are met.
    (5) The sale, exchange, or involuntary conversion of unharvested 
crops on land which is (i) used in the taxpayer's trade or business and 
held for more than 1 year (6 months for taxable years

[[Page 279]]

beginning before 1977; 9 months for taxable years beginning in 1977), 
and (ii) sold or exchanged at the same time and to the same person. See 
paragraph (f) of this section.

For purposes of section 1231, the phrase property used in the trade or 
business means property described in this paragraph (other than property 
described in subparagraph (2) of this paragraph). Notwithstanding any of 
the provisions of this paragraph, section 1231(a) does not apply to 
gains and losses under the circumstances described in paragraph (e) (2) 
or (3) of this section.
    (d) Extent to which gains and losses are taken into account. All 
gains and losses to which section 1231 applies must be taken into 
account in determining whether and to what extent the gains exceed the 
losses. For the purpose of this computation, the provisions of section 
1211 limiting the deduction of capital losses do not apply, and no 
losses are excluded by that section. With that exception, gains are 
included in the computations under section 1231 only to the extent that 
they are taken into account in computing gross income, and losses are 
included only to the extent that they are taken into account in 
computing taxable income. The following are examples of gains and losses 
not included in the computations under section 1231:
    (1) Losses of a personal nature which are not deductible by reason 
of section 165 (c) or (d), such as losses from the sale of property held 
for personal use;
    (2) Losses which are not deductible under section 267 (relating to 
losses with respect to transactions between related taxpayers) or 
section 1091 (relating to losses from wash sales);
    (3) Gain on the sale of property (to which section 1231 applies) 
reported for any taxable year on the installment method under section 
453, except to the extent the gain is to be reported under section 453 
for the taxable year; and
    (4) Gains and losses which are not recognized under section 1002, 
such as those to which sections 1031 through 1036, relating to common 
nontaxable exchanges, apply.
    (e) Involuntary conversion--(1) General rule. For purposes of 
section 1231, the terms compulsory or involuntary conversion and 
involuntary conversion of property mean the conversion of proeprty into 
money or other property as a result of complete or partial destruction, 
theft or seizure, or an exercise of the power of requisition or 
condemnation, or the threat or imminence thereof. Losses upon the 
complete or partial destruction, theft, seizure, requisition, or 
condemnation of property are treated as losses upon an involuntary 
conversion whether or not there is a conversion of the property into 
other property or money and whether or not the property is uninsured, 
partially insured, or totally insured. For example, if a capital asset 
held for more than 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable years beginning in 1977), with an adjusted 
basis of $400, but not held for the production of income, is stolen, and 
the loss which is sustained in the taxable year 1956 is not compensated 
for by insurance or otherwise, section 1231 applies to the $400 loss. 
For certain exceptions to this subparagraph, see subparagraphs (2) and 
(3) of this paragraph.
    (2) Certain uninsured losses. Notwithstanding the provisions of 
subparagraph (1) of this paragraph, losses sustained during a taxable 
year beginning after December 31, 1957, and before January 1, 1970, with 
respect to both property used in the trade or business and any capital 
asset held for more than 6 months and held for the production of income, 
which losses arise from fire, storm, shipwreck, or other casualty, or 
from theft, and which are not compensated for by insurance in any 
amount, are not losses to which section 1231(a) applies. Such losses 
shall not be taken into account in applying the provisions of this 
section.
    (3) Exclusion of gains and losses from certain involuntary 
conversions. Notwithstanding the provisions of subparagraph (1) of this 
paragraph, if for any taxable year beginning after December 31, 1969, 
the recognized losses from the involuntary conversion as a result of 
fire, storm, shipwreck, or other casualty, or from theft, of any 
property used in the trade or business or of any capital asset held for 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years

[[Page 280]]

beginning in 1977) exceed the recognized gains from the involuntary 
conversion of any such property as a result of fire, storm, shipwreck, 
or other casualty, or from theft, such gains and losses are not gains 
and losses to which section 1231 applies and shall not be taken into 
account in applying the provisions of this section. The net loss, in 
effect, will be treated as an ordinary loss. This subparagraph shall 
apply whether such property is uninsured, partially insured, or totally 
insured and, in the case of a capital asset held for more than 1 year (6 
months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977), whether the property is property used in the 
trade or business, property held for the production of income, or a 
personal asset.
    (f) Unharvested crops. Section 1231 does not apply to a sale, 
exchange, or involuntary conversion of an unharvested crop if the 
taxpayer retains any right or option to reacquire the land the crop is 
on, directly or indirectly (other than a right customarily incident to a 
mortgage or other security transaction). The length of time for which 
the crop, as distinguished from the land, is held is immaterial. A 
leasehold or estate for years is not land for the purpose of section 
1231.
    (g) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. A, an individual, makes his income tax return on the 
calendar year basis. A's recognized gains and losses for 1957 of the 
kind described in section 1231 are as follows:

------------------------------------------------------------------------
                                                         Gains    Losses
------------------------------------------------------------------------
1. Gain on sale of machinery, used in the business and   $4,000
 subject to an allowance for depreciation, held for
 more than 6 months...................................
2. Gain reported in 1957 (under section 453) on           6,000
 installment sale in 1956 of factory premises used in
 the business (including building and land, each held
 for more than 6 months)..............................
3. Gain reported in 1957 (under section 453) on           2,000
 installment sale in 1957 of land held for more than 6
 months, used in the business as a storage lot for
 trucks...............................................
4. Gain on proceeds from requisition by Government of       500
 boat, held for more than 6 months, used in the
 business and subject to an allowance for depreciation
5. Loss upon the destruction by fire of warehouse,      .......   $3,000
 held for more than 6 months and used in the business
 (excess of adjusted basis of warehouse over
 compensation by insurance, etc.).....................
6. Loss upon theft of unregistered bearer bonds, held   .......    5,000
 for more than 6 months...............................
7. Loss in storm of pleasure yacht, purchased in 1950   .......    1,000
 for $1,800 and having a fair market value of $1,000
 at the time of the storm.............................
                                                       ---------
8. Total gains........................................   12,500   ------
9. Total losses.......................................  .......    9,000
10. Excess of gains over losses.......................    3,500
------------------------------------------------------------------------


Since the aggregate of the recognized gains ($12,500) exceeds the 
aggregate of the recognized losses ($9,000), such gains and losses are 
treated under section 1231 as gains and losses from the sale or exchange 
of capital assets held for more than 6 months. For any taxable year 
beginning after December 31, 1957, and before January 1, 1970, the 
$5,000 loss upon theft of bonds (item 6) would not be taken into account 
under section 1231. See paragraph (e)(2) of this section.
    Example 2. If in example (1), A also had a loss of $4,000 from the 
sale under threat of condemnation of a capital asset acquired for profit 
and held for more than six months, then the gains ($12,500) would not 
exceed the losses ($9,000 plus $4,000, or $13,000). Neither the loss on 
that sale nor any of the other items set forth in example (1) would then 
be treated as gains and losses from the sale or exchanges of capital 
assets, but all of such items would be treated as ordinary gains and 
losses. Likewise, if A had no other gain or loss, the $4,000 loss would 
be treated as an ordinary loss.
    Example 3. A's yacht, used for pleasure and acquired for that use in 
1945 at a cost of $25,000, was requisitioned by the Government in 1957 
for $15,000. A sustained no loss deductible under section 165(c) and 
since no loss with respect to the requisition is recognizable, the loss 
will not be included in the computations under section 1231.
    Example 4. A, an individual, makes his income tax return on a 
calendar year basis. During 1970 trees on A's residential property which 
were planted in 1950 after the purchase of such property were destroyed 
by fire. The loss, which was in the amount of $2,000 after applying 
section 165(c)(3), was not compensated for by insurance or otherwise. 
During the same year A also recognized a $1,500 gain from insurance 
proceeds compensating him for the theft sustained in 1970 of a diamond 
brooch purchased in 1960 for personal use. A has no other gains or 
losses for 1970 from the involuntary conversion of property. Since the 
recognized losses exceed the recognized gains from the involuntary 
conversion for 1970 as a result of fire, storm, shipwreck,

[[Page 281]]

or other casualty, or from theft, of any property used in the trade or 
business or of any capital asset held for more than 6 months, neither 
the gain nor the loss is included in making the computations under 
section 1231.
    Example 5. The facts are the same as in example (4), except that A 
also recognized a gain of $1,000 from insurance proceeds compensating 
him for the total destruction by fire of a truck, held for more than 6 
months, used in A's business and subject to an allowance for 
depreciation. A has no other gains or losses for 1970 from the 
involuntary conversion of property. Since the recognized losses ($2,000) 
do not exceed the recognized gains ($2,500) from the involuntary 
conversion for 1970 as a result of fire, storm, shipwreck, or other 
casualty, or from theft, of any property used in the trade or business 
or of any capital asset held for more than 6 months, such gains and 
losses are included in making the computations under section 1231. Thus, 
if A has no other gains or losses for 1970 to which section 1231 
applies, the gains and losses from these involuntary conversions are 
treated under section 1231 as gains and losses from the sale or exchange 
of capital assets held for more than 6 months.
    Example 6. The facts are the same as in example (5) except that A 
also has the following recognized gains and losses for 1970 to which 
section 1231 applies:

 
                                                     Gains      Losses
 
Gain on sale of machinery, used in the business       $4,000
 and subject to an allowance for depreciation,
 held for more than 6 months....................
Gain reported in 1970 (under section 453) on           6,000
 installment sale in 1969 of factory premises
 used in the business (including building and
 land, each held for more than 6 months)........
Gain reported in 1970 (under section 453) on          $2,000
 installment sale in 1970 of land held for more
 than 6 months, used in the business as a
 storage lot for trucks.........................
Loss upon the sale in 1970 of warehouse, used in  ..........      $5,000
 the business and subject to an allowance for
 depreciation, held for more than 6 months......
                                                 ------------
    Total gains.................................      12,000  ----------
    Total losses................................  ..........       5,000
 

    Since the aggregate of the recognized gains ($14,500) exceeds the 
aggregate of the recognized losses ($7,000), such gains and losses are 
treated under section 1231 as gains and losses from the sale or exchange 
of capital assets held for more than 6 months.
    Example 7. B, an individual, makes his income tax return on the 
calendar year basis. During 1970 furniture used in his business and held 
for more than 6 months was destroyed by fire. The recognized loss, after 
compensation by insurance, was $2,000. During the same year B recognized 
a $1,000 gain upon the sale of a parcel of real estate used in his 
business and held for more than 6 months, and a $6,000 loss upon the 
sale of stock held for more than 6 months. B has no other gains or 
losses for 1970 from the involuntary conversion, or the sale or exchange 
of, property. The $6,000 loss upon the sale of stock is not a loss to 
which section 1231 applies since the stock is not property used in the 
trade or business, as defined in section 1231(b). The $2,000 loss upon 
the destruction of the furniture is not a loss to which section 1231 
applies since the recognized losses ($2,000) exceed the recognized gains 
($0) from the involuntary conversion for 1970 as a result of fire, 
storm, shipwreck, or other casualty, or from theft, of any property used 
in the trade or business or of any capital asset held for more than 6 
months. Accordingly, the $1,000 gain upon the sale of real estate is 
considered to be gain from the sale or exchange of a capital asset held 
for more than 6 months since the gains ($1,000) to which section 1231 
applies exceed the losses ($0) to which such section applies.
    Example 8. The facts are the same as in example (7) except that B 
also recognized a gain of $4,000 from insurance proceeds compensating 
him for the total destruction by fire of a freighter, held for more than 
6 months, used in B's business and subject to an allowance for 
depreciation. Since the recognized losses ($2,000) do not exceed the 
recognized gains ($4,000) from the involuntary conversion for 1970 as a 
result of fire, storm, shipwreck, or other casualty, or from theft, of 
any property used in the trade or business or of any capital asset held 
for more than 6 months, such gains and losses are included in making the 
computations under section 1231. Since the aggregate of the recognized 
gains to which section 1231 applies ($5,000) exceeds the aggregate of 
the recognized losses to which such section applies ($2,000), such gains 
and losses are treated under section 1231 as gains and losses from the 
sale or exchange of capital assets held for more than 6 months. The 
$6,000 loss upon the sale of stock is not taken into account in making 
such computation since it is not a loss to which section 1231 applies.

[T.D. 6500, 25 FR 12006, Nov. 26, 1960, as amended by T.D. 6841, 30 FR 
9309, July 27, 1965; T.D. 7369, 40 FR 29841, July 16, 1975; T.D. 7728, 
45 FR 72650, Nov. 3, 1980; T.D. 7829, 47 FR 38515, Sept. 1, 1982]



Sec. 1.1231-2  Livestock held for draft, breeding, dairy, or sporting 
purposes.

    (a)(1) In the case of cattle, horses, or other livestock acquired by 
the taxpayer after December 31, 1969, section 1231 applies to the sale, 
exchange, or

[[Page 282]]

involuntary conversion of such cattle, horses, or other livestock, 
regardless of age, held by the taxpayer for draft, breeding, dairy, or 
sporting purposes, and held by him:
    (i) For 24 months or more from the date of acquisition in the case 
of cattle or horses, or
    (ii) For 12 months or more from the date of acquisition in the case 
of such other livestock.
    (2) In the case of livestock (including cattle or horses) acquired 
by the taxpayer on or before December 31, 1969, section 1231 applies to 
the sale, exchange, or involuntary conversion of such livestock, 
regardless of age, held by the taxpayer for draft, breeding, or dairy 
purposes, and held by him for 12 months or more from the date of 
acquisition.
    (3) For the purposes of section 1231, the term livestock is given a 
broad, rather than a narrow, interpretation and includes cattle, hogs, 
horses, mules, donkeys, sheep, goats, fur-bearing animals, and other 
mammals. However, it does not include poultry, chickens, turkeys, 
pigeons, geese, other birds, fish, frogs, reptiles, etc.
    (b)(1) Whether or not livestock is held by the taxpayer for draft, 
breeding, dairy, or sporting purposes depends upon all of the facts and 
circumstances in each case. The purpose for which the animal is held is 
ordinarily shown by the taxpayer's actual use of the animal. However, a 
draft, breeding, dairy, or sporting purpose may be present if an animal 
is disposed of within a reasonable time after its intended use for such 
purpose is prevented or made undesirable by reason of accident, disease, 
drought, unfitness of the animal for such purpose, or a similar factual 
circumstance. Under certain circumstances, an animal held for ultimate 
sale to customers in the ordinary course of the taxpayer's trade or 
business may be considered as held for draft, breeding, dairy, or 
sporting purposes. However, an animal is not held by the taxpayer for 
draft, breeding, dairy, or sporting purposes merely because it is 
suitable for such purposes or merely because it is held by the taxpayer 
for sale to other persons for use by them for such purposes. 
Furthermore, an animal held by the taxpayer for other purposes is not 
considered as held for draft, breeding, dairy, or sporting purposes 
merely because of a negligible use of the animal for such purposes or 
merely because of the use of the animal for such purposes as an ordinary 
or necessary incident to the other purposes for which the animal is 
held. See paragraph (c) of this section for the rules to be used in 
determining when horses are held for racing purposes and, therefore, are 
considered as held for sporting purposes.
    (2) The application of this paragraph is illustrated by the 
following examples:

    Example 1. An animal intended by the taxpayer for use by him for 
breeding purposes is discovered to be sterile or unfit for the breeding 
purposes for which it was held, and is disposed of within a reasonable 
time thereafter. This animal is considered as held for breeding 
purposes.
    Example 2. The taxpayer retires from the breeding or dairy business 
and sells his entire herd, including young animals which would have been 
used by him for breeding or dairy purposes if he had remained in 
business. These young animals are considered as held for breeding or 
dairy purposes. The same would be true with respect to young animals 
which would have been used by the taxpayer for breeding or dairy 
purposes but which are sold by him in reduction of his breeding or dairy 
herd, because of, for example, drought.
    Example 3. A taxpayer in the business of raising hogs for slaughter 
customarily breeds sows to obtain a single litter to be raised by him 
for sale, and sells these brood sows after obtaining the litter. Even 
though these brood sows are held for ultimate sale to customers in the 
ordinary course of the taxpayer's trade or business, they are considered 
as held for breeding purposes.
    Example 4. A taxpayer in the business of raising horses for sale to 
others for use by them as draft horses uses them for draft purposes on 
his own farm in order to train them. This use is an ordinary or 
necessary incident to the purpose of selling the animals, and, 
accordingly, these horses are not considered as held for draft purposes.
    Example 5. The taxpayer is in the business of raising registered 
cattle for sale to others for use by them as breeding cattle. It is the 
business practice of this particular taxpayer to breed the offspring of 
his herd which he is holding for sale to others prior to sale in order 
to establish their fitness for sale as registered breeding cattle. In 
such case, the taxpayer's breeding of such offspring is an ordinary and 
necessary incident to his holding them for the purpose of selling them 
as

[[Page 283]]

bred heifers or proven bulls and does not demonstrate that the taxpayer 
is holding them for breeding purposes. However, those cattle held by the 
taxpayer as additions or replacements to his own breeding herd to 
produce calves are considered to be held for breeding purposes, even 
though they may not actually have produced calves.
    Example 6. A taxpayer, engaged in the business of buying cattle and 
fattening them for slaughter, purchased cows with calf. The calves were 
born while the cows were held by the taxpayer. These cows are not 
considered as held for breeding purposes.

    (c)(1) For purposes of paragraph (b) of this section, a horse held 
for racing purposes shall be considered as held for sporting purposes. 
Whether a horse is held for racing purposes shall be determined in 
accordance with the following rules:
    (i) A horse which has actually been raced at a public race track 
shall, except in rare and unusual circumstances, be considered as held 
for racing purposes.
    (ii) A horse which has not been raced at a public track shall be 
considered as held for racing purposes if it has been trained to race 
and other facts and circumstances in the particular case also indicate 
that the horse was held for this purpose. For example, assume that the 
taxpayer maintains a written training record on all horses he keeps in 
training status, which shows that a particular horse does not meet 
objective standards (including, but not limited to, such considerations 
as failure to achieve predetermined standards of performance during 
training, or the existence of a physical or other defect) established by 
the taxpayer for determining the fitness and quality of horses to be 
retained in his racing stable. Under such circumstances, if the taxpayer 
disposes of the horse within a reasonable time after he determined that 
it did not meet his objective standards for retention, the horse shall 
be considered as held for racing purposes.
    (iii) A horse which has neither been raced at a public track nor 
trained for racing shall not, except in rare and unusual circumstances, 
be considered as held for racing purposes.
    (2) This paragraph may be illustrated by the following examples:

    Example 1. The taxpayer breeds, raises, and trains horses for the 
purpose of racing. Every year he culls some horses from his racing 
stable. In 1971, the taxpayer decided that in order to prevent his 
racing stable from getting too large to be effectively operated he must 
cull six horses from it. All six of the horses culled by the taxpayer 
had been raced at public tracks in 1970. Under subparagraph (1)(i) of 
this paragraph, all these horses are considered as held for racing 
purposes.
    Example 2. Assume the same facts as in example (1). Assume further 
that the taxpayer decided to cull four more horses from his racing 
stable in 1971. All these horses had been trained to race but had not 
been raced at public tracks. The taxpayer culled these four horses 
because the training log which the taxpayer maintains on all the horses 
he trains showed these horses to be unfit to remain in his racing 
stable. Horse A was culled because it developed shin splints during 
training. Horses B and C were culled because of poor temperament. B 
bolted every time a rider tried to mount it, and C became extremely 
nervous when it was placed in the starting gate. Horse D was culled 
because it did not qualify for retention under one of the objective 
standards the taxpayer had established for determining which horses to 
retain since it was unable to run a specified distance in a minimum 
time. These four horses were disposed of within a reasonable time after 
the taxpayer determined that they were unfit to remain in his stable. 
Under subparagraph (1)(ii) of this paragraph, all these horses are 
considered as held for racing purposes.

[T.D. 7141, 36 FR 18792, Sept. 22, 1971]



Sec. 1.1232-1  Bonds and other evidences of indebtedness; scope of 
section.

    (a) In general. Section 1232 applies to any bond, debenture, note, 
or certificate or other evidence of indebtedness (referred to in this 
section and Sec. Sec. 1.1232-2 through 1.1232-4 as an obligation) (1) 
which is a capital asset in the hands of the taxpayer, and (2) which is 
issued by any corporation, or by any government or political subdivision 
thereof. In general, section 1232(a)(1) provides that the retirement of 
an obligation, other than certain obligations issued before January 1, 
1955, is considered to be an exchange and, therefore, is usually subject 
to capital gain or loss treatment. In general, section 1232(a)(2)(B) 
provides that in the case of a gain realized on the sale or exchange of 
certain obligations issued at a discount after December 31, 1954, which 
are either corporate bonds issued on or before May

[[Page 284]]

27, 1969, or government bonds, the amount of gain equal to such discount 
or, under certain circumstances, the amount of gain equal to a specified 
portion of such discount, constitutes ordinary income. In the case of 
certain corporate obligations issued after May 27, 1969, in general, 
section 1232(a)(3) provides for the inclusion as interest in gross 
income of a ratable portion of original issue discount for each taxable 
year over the life of the obligation, section 1232(a)(3)(E) provides for 
an increase in basis equal to the original issue discount included in 
gross income, and section 1232(a)(2)(A) provides that any gain realized 
on such an obligation held more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) 
shall be considered gain from the sale or exchange of a capital asset 
held more than 1 year (6 months for taxable years beginning before 1977; 
9 months for taxable years beginning in 1977). For the requirements for 
reporting original issue discount on certain obligations issued after 
May 27, 1969, see section 6049(a) and the regulations thereunder. 
Section 1232(c) treats as ordinary income a portion of any gain realized 
upon the disposition of (i) coupon obligations which were acquired after 
August 16, 1954, and before January 1, 1958, without all coupons 
maturing more than 12 months after purchase attached, and (ii) coupon 
obligations which were acquired after December 31, 1957, without all 
coupons maturing after the date of purchase attached.
    (b) Requirement that obligations be capital assets. In order for 
section 1232 to be applicable, an obligation must be a capital asset in 
the hands of the taxpayer. See section 1221 and the regulations 
thereunder. Obligations held by a dealer in securities (except as 
provided in section 1236) or obligations arising from the sale of 
inventory or personal services by the holder are not capital assets. 
However, obligations held by a financial institution, as defined in 
section 582(c) (relating to treatment of losses and gains on bonds of 
certain financial institutions) for investment and not primarily for 
sale to customers in the ordinary course of the financial institution's 
trade or business, are capital assets. Thus, with respect ot obligations 
held as capital assets by such a financial institution which are 
corporate obligations to which section 1232(a)(3) applies, there is 
ratable inclusion of original issue discount as interest in gross income 
under paragraph (a) of Sec. 1.1232-3A, and gain on a sale or exchange 
(including retirement) may be subject to ordinary income treatment under 
section 582(c) and paragraph (a)(1) of Sec. 1.1232-3.
    (c) Face-amount certificates--(1) In general. For purposes of 
section 1232, this section and Sec. Sec. 1.1232-2 through 1.1232-4, the 
term other evidence of indebtedness includes face amount certificates as 
defined in section 2(a)(15) and 4 of the Investment Company Act of 1940 
(15 U.S.C. 80a-2 and 80a-4).
    (2) Amounts received in taxable years beginning prior to January 1, 
1964. Amounts received in taxable years beginning prior to January 1, 
1964 under face amount certificates which were issued after December 31, 
1954, are subject to the limitation on tax under section 72(e)(3). See 
paragraph (g) of Sec. 1.72-11 (relating to limit on tax attributable to 
receipt of a lump sum received as an annuity payment). However, section 
72(e)(3) does not apply to any such amounts received in taxable years 
beginning after December 31, 1963.
    (3) Certificates issued after December 31, 1975. In the case of a 
face-amount certificate issued after December 31, 1975 (other than such 
a certificate issued pursuant to a written commitment which was binding 
on such date and at all times thereafter), the provisions of section 
1232(a)(3) (relating to the ratable inclusion of original issue discount 
in gross income) shall apply. See section 1232-3A(f). For treatment of 
any increase in basis under section 1232(a)(3)(A) as consideration paid 
for purposes of computing the investment in the contract under section 
72, see Sec. 1.72-6(c)(4).
    (d) Certain deposits in financial institutions. For purposes of 
section 1232, this section and Sec. Sec. 1.1232-2 through 1.1232-4, the 
term other evidence of indebtedness includes certificates of deposit, 
time deposits, bonus plans, and other deposit arrangements with banks, 
domestic building and loan associations, and

[[Page 285]]

similar financial institutions. For application of section 1232 to such 
deposits, see paragraph (e) of Sec. 1.1232-3A. However, section 1232, 
this section, and Sec. Sec. 1.1232-2 through 1.1232-4 shall not apply 
to such deposits made prior to January 1, 1971. For treatment of 
renewable certificates of deposit, see paragraph (e)(4) of Sec. 1.1232-
3A.

[T.D. 7154, 36 FR 25000, Dec. 28, 1971, as amended by T.D. 7311, 39 FR 
11880, Apr. 1, 1974; T.D. 7365, 40 FR 27936, July 2, 1975; T.D. 7728, 45 
FR 72650, Nov. 3, 1980]



Sec. 1.1232-2  Retirement.

    Section 1232(a)(1) provides that any amount received by the holder 
upon the retirement of an obligation shall be considered as an amount 
received in exchange therefor. However, section 1232(a)(1) does not 
apply in the case of an obligation issued before January 1, 1955, which 
was not issued with interest coupons or in registered form on March 1, 
1954. For treatment of gain on an obligation held by certain financial 
institutions, see section 582(c) and paragraph (a)(1)(iii) of Sec. 
1.1232-3.

[T.D. 7154, 36 FR 25000, Dec. 28, 1971]



Sec. 1.1232-3  Gain upon sale or exchange of obligations issued at a 
discount after December 31, 1954.

    (a) General rule; sale or exchange--(1) Obligations issued by a 
corporation after May 27, 1969--(i) General rule. Under section 
1232(a)(2)(A), in the case of gain realized upon the sale or exchange of 
an obligation issued at a discount by a corporation after May 27, 1969 
(other than an obligation subject to the transitional rule of 
subparagraph (4) of this paragraph), and held by the taxpayer for more 
than 1 year (6 months for taxable years beginning before 1977; 9 months 
for taxable years beginning in 1977):
    (a) If at the time of original issue there was no intention to call 
the obligation before maturity, such gain shall be considered as long-
term capital gain, or
    (b) If at the time of original issue there was an intention to call 
the obligation before maturity, such gain shall be considered ordinary 
income to the extent it does not exceed the excess of:
    (1) An amount equal to the entire original issue discount, over
    (2) An amount equal to the entire original issue discount multiplied 
by a fraction the numerator of which is the sum of the number of 
complete months and any fractional part of a month elapsed since the 
date of original issue and the denominator of which is the number of 
complete months and any fractional part of a month from the date of 
original issue to the stated maturity date.

The balance, if any, of the gain shall be considered as long-term 
capital gain. The amount described in (2) of this subdivision (b) in 
effect reduces the amount of original issue discount to be treated as 
ordinary income under this subdivision (b) by the amounts previously 
includible (regardless of whether included) by all holders (computed, 
however, as to any holder without regard to any purchase allowance under 
paragraph (a)(2)(ii) of Sec. 1.1232-3A and without regard to whether 
any holder purchased at a premium as defined in paragraph (d)(2) of 
Sec. 1.1232-3).
    (ii) Cross references. For definition of the terms original issue 
discount and intention to call before maturity, see paragraphs (b) (1) 
and (4) respectively of this section. For definition of the term date of 
original issue, see paragraph (b)(3) of this section. For computation of 
the number of complete months and any fractional portion of a month, see 
paragraph (a)(3) of Sec. 1.1232-3A.
    (iii) Effect of section 582(c). Gain shall not be considered to be 
long-term capital gain under subdivision (i) of this subparagraph if 
section 582(c) (relating to treatment of losses and gains on bonds of 
certain financial institutions) applies.
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. On January 1, 1970, A, a calendar-year taxpayer, 
purchases at original issue for cash of $7,600, M Corporation's 10-year, 
5 percent bond which has a stated redemption price at maturity of 
$10,000. On January 1, 1972, A sells the bond to B, for $9,040. A has 
previously included $480 of the original issue discount in his gross 
income (see example (1) of paragraph (d) of Sec. 1.1232-3A) and 
increased his basis in the bond by that amount to $8,080 (see paragraph 
(c) of Sec. 1.1232-3A). Thus, if at the time of original issue there 
was no intention to call the bond

[[Page 286]]

before maturity, A's gain of $960 (amount realized, $9,040, less 
adjusted basis, $8,080) is considered long-term capital gain.
    Example 2. (i) Assume the same facts as in example (1), except that 
at the time of original issue there was an intention to call the bond 
before maturity. The amount of the entire gain includible by A as 
ordinary income under subparagraph (1)(i) of this paragraph is 
determined as follows:

(1) Entire original issue discount (stated redemption price       $2,400
 at maturity, $10,000, minus issue price, $7,600)...........
(2) Less: Line (1), $2,400, multiplied by months elapsed            $480
 since date of original issue, 24, divided by months from
 such date to stated maturity date, 120.....................
                                                             -----------
(3) Maximum amount includible by A as ordinary income.......      $1,920
 


Since the amount in line (3) is greater than A's gain, $960, A's entire 
gain is includible as ordinary income.
    (ii) On January 1, 1979, B, a calendar-year taxpayer, sells the bond 
to C for $10,150. Assume that B has included $120 of original issue 
discount in his gross income for each taxable year he held the bond (see 
example (2) of paragraph (d) of Sec. 1.1232-3A) and therefore increased 
his basis by $840 (i.e., $120 each yearx7 years) to $9,880. B's gain is 
therefore $270 (amount realized, $10,150, less basis, $9,880). The 
amount of such gain includible by B as ordinary income under 
subparagraph (1)(i) of this paragraph is determined as follows:

(1) Entire original issue discount (as determined in part         $2,400
 (i) of this example).......................................
(2) Less: Line (1), $2,400, multiplied by months elapsed          $2,160
 since date of original issue, 108, divided by months from
 such date to stated maturity date, 120.....................
                                                             -----------
(3) Maximum amount includible by B as ordinary income.......        $240
 

Since the amount in line (3) is less than B's gain, $270, only $240 of 
B's gain is includible as ordinary income. The remaining portion of B's 
gain, $30, is considered long-term capital gain.

    (3) Obligations issued by a corporation on or before May 27, 1969, 
and government obligations. Under section 1232(a)(2)(B), if gain is 
realized on the sale or exchange after December 31, 1957, of an 
obligation held by the taxpayer more than 6 months, and if the 
obligation either was issued at a discount after December 31, 1954, and 
on or before May 27, 1969, by a corporation or was issued at a discount 
after December 31, 1954, by or on behalf of the United States or a 
foreign country, or a political subdivision of either, then such gain 
shall be considered ordinary income to the extent it does not exceed:
    (i) An amount equal to the entire original issue discount, or
    (ii) If at the time of original issue there was no intention to call 
the obligation before maturity, a portion of the original issue discount 
determined in accordance with paragraph (c) of this section,

And the balance, if any, of the gain shall be considered as long-term 
capital gain. For the definition of the terms original issue discount 
and intention to call before maturity, see paragraphs (b) (1) and (4) 
respectively of this section. See section 1037(b) and paragraph (b) of 
Sec. 1.1037-1 for special rules which are applicable in applying 
section 1232(a)(2)(B) and this subparagraph to gain realized on the 
disposition or redemption of obligations of the United States which were 
received from the United States in an exchange upon which gain or loss 
is not recognized because of section 1037(a) (or so much of section 1031 
(b) or (c) as relates to section 1037(a)).
    (4) Transitional rule. Subparagraph (3) of this paragraph (in lieu 
of subparagraph (1) of this paragraph) shall apply to an obligation 
issued by a corporation pursuant to a written commitment which was 
binding on May 27, 1969, and at all times thereafter.
    (5) Obligations issued after December 31, 1954, and sold or 
exchanged before January 1, 1958. Gain realized upon the sale or 
exchange before January 1, 1958, of an obligation issued at a discount 
after December 31, 1954, and held by the taxpayer for more than 6 
months, shall be considered ordinary income to the extent it equals a 
specified portion of the original issue discount, and the balance, if 
any, of the gain shall be considered as long-term capital gain. The term 
original issue discount is defined in paragraph (b)(1) of this section. 
The computation of the amount of gain which constitutes ordinary income 
is illustrated in paragraph (c) of this section.
    (6) Obligations issued before January 1, 1955. Whether gain 
representing original issue discount realized upon the sale or exchange 
of obligations issued at a discount before January 1, 1955, is capital 
gain or ordinary income shall

[[Page 287]]

be determined without reference to section 1232.
    (b) Definitions--(1) Original issue discount--(i) In general. For 
purposes of section 1232, the term original issue discount means the 
difference between the issue price and the stated redemption price at 
maturity. The stated redemption price is determined without regard to 
optional call dates.
    (ii) De minimis rule. If the original issue discount is less than 
one-fourth of 1 percent of the stated redemption price at maturity 
multiplied by the number of full years from the date of original issue 
to maturity, then the discount shall be considered to be zero. For 
example, a 10-year bond with a stated redemption price at maturity of 
$100 issued at $98 would be regarded as having an original issue 
discount of zero. Thus, any gain realized by the holder would be a long-
term capital gain if the bond was a capital asset in the hands of the 
holder and held by him for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977). 
However, if the bond were issued at $97.50 or less, the original issue 
discount would not be considered zero.
    (iii) Stated redemption price at maturity--(a) Definition. Except as 
otherwise provided in this subdivision (iii), the term stated redemption 
price at maturity means the amount fixed by the last modification of the 
purchase agreement, including dividends, interest, and any other 
amounts, however designated, payable at that time. If any amount based 
on a fixed rate of simple or compound interest is actually payable or 
will be treated as constructively received under section 451 and the 
regulations thereunder either: (1) At fixed periodic intervals of one 
year or less during the entire term of an obligation, or (2) except as 
provided in subdivision (e) of this paragraph (b)(1)(iii), at maturity 
in the case of an obligation with a term of one year or less, any such 
amount payable at maturity shall not be included in determining the 
stated redemption price at maturity. For purposes of subdivision (a)(2) 
of this paragraph (b)(1)(iii), the term of an obligation shall include 
any renewal period with respect to which, under the terms of the 
obligation, the holder may either take action or refrain from taking 
action which would prevent the actual or constructive receipt of any 
interest on such obligation until the expiration of any such renewal 
period. To illustrate this paragraph (b)(1)(iii), assume that a note 
which promises to pay $1,000 at the end of three years provides for 
additional amounts labeled as interest to be paid at the rate of $50 at 
the end of the first year, $50 at the end of the second year, and $120 
at the end of the third year. The stated redemption price at maturity 
will be $1,070 since only $50 of the $120 payable at the end of the 
third year is based on a fixed rate of simple or compound interest. If, 
however, the $120 were payable at the end of the second year, so that 
only $50 in addition to principal would be payable at the end of the 
third year, then under the rule for serial obligations contained in 
subparagraph (2)(iv)(c) of this paragraph, the $1,000 note is treated as 
consisting of two series. The first series is treated as maturing at the 
end of the second year at a stated redemption price of $70. The second 
series is treated as maturing at the end of the third year at a stated 
redemption price of $1,000. For the calculation of issue price and the 
allocation of original issue discount with respect to each such series, 
see example (3) of subparagraph (2)(iv)(f) of this paragraph.
    (b) Special rules. In the case of face -amount certificates, the 
redemption price at maturity is the price as modified through changes 
such as extensions of the purchase agreement and includes any dividends 
which are payable at maturity. In the case of an obligation issued as 
part of an investment unit consisting of such obligation and an option 
(which is not excluded by (c) of this subdivision (iii)), security, or 
other property, the term stated redemption price at maturity means the 
amount payable on maturity in respect of the obligation, and does not 
include any amount payable in respect of the option, security, or other 
property under a repurchase agreement or option to buy or sell the 
option, security, or other property. For application of this subdivision 
to certain deposits in financial institutions, see paragraph (e) of 
Sec. 1.1232-3A.

[[Page 288]]

    (c) Excluded option. An option is excluded by this subdivision (c) 
if it is an option to which paragraph (a) of Sec. 1.61-15 applies or if 
it is an option, referred to in paragraph (a) of Sec. 1.83-7, granted 
in connection with performance of services to which section 421 does not 
apply.
    (d) Obligation issued in installments. If an obligation is issued by 
a corporation under terms whereby the holder makes installment payments, 
then the stated redemption price for each installment payment shall be 
computed in a manner consistent with the rules contained in subparagraph 
(2)(iv) of this paragraph for computing the issue price for each series 
of a serial obligation. For application of this subdivision (d) to 
certain open account deposit arrangements, see examples (1) and (2) of 
paragraph (e)(5)(ii) of Sec. 1.1232-3A.
    (e) Application of definition. Subdivision (a)(2) of this paragraph 
(b)(1)(iii) shall not apply:
    (1) For taxable years beginning before September 19, 1979, if for 
the issuer's last taxable year beginning before September 19, 1978, the 
rules of Sec. 1.163-4 were properly applied by the issuer, or
    (2) In the case of an obligation with a term of six months or less 
held by a nonresident alien individual or foreign corporation, but only 
for purposes of the appliction of sections 871 and 881.
    (iv) Carryover of original issue discount. If in pursuance of a plan 
of reorganization an obligation is received in an exchange for another 
obligation, and if gain or loss is not recognized in whole or in part on 
such exchange of obligations by reason, for example, of section 354 or 
356, then the obligation received shall be considered to have the same 
original issue discount as the obligation surrendered reduced by the 
amount of gain (if any) recognized as ordinary income upon such exchange 
of obligations, and by the amount of original issue discount with 
respect to the obligation surrendered which was included as interest 
income under the ratable inclusion rules of sections 1232(a)(3) and 
1.1232-3A. If inclusion as interest of the ratable monthly portion of 
original issue discount is required under section 1232(a)(3) with 
respect to the obligation received, see paragraph (a)(2)(iii) of Sec. 
1.1232-3A for computation of the ratable monthly portion of original 
issue discount. For special rules in connection with certain exchanges 
of U.S. obligations, see section 1037.
    (2) Issue price defined--(i) In general. The term issue price in the 
case of obligations registered with the Securities and Exchange 
Commission means the initial offering price to the public at which price 
a substantial amount of such obligations were sold. For this purpose, 
the term the public does not include bond houses and brokers, or similar 
persons or organizations acting in the capacity of underwriters or 
wholesalers. Ordinarily, the issue price will be the first price at 
which the obligations were sold to the public, and the issue price will 
not change if, due to market developments, part of the issue must be 
sold at a different price. When obligations are privately placed, the 
issue price of each obligation is the price paid by the first buyer of 
the particular obligation, irrespective of the issue price of the 
remainder of the issue. In the case of an obligation issued by a foreign 
obligor, the issue price shall be increased by the amount, if any, of 
interest equalization tax paid under section 4911 (and not credited, 
refunded, or reimbursed) on the acquisition of the obligation by the 
first buyer. In the case of an obligation which is convertible into 
stock or another obligation, the issue price includes any amount paid in 
respect of the conversion privilege. However, in the case of an 
obligation issued as part of an investment unit (as defined in 
subdivision (ii)(a) of this subparagraph), the issue price of the 
obligation includes only that portion of the initial offering price or 
price paid by the first buyer properly allocable to the obligation under 
the rules prescribed in subdivision (ii) of this subparagraph. The terms 
initial offering price and price paid by the first buyer include the 
aggregate payments made by the purchaser under the purchase agreement, 
including modifications thereof. Thus, all amounts paid by the purchaser 
under the purchase agreement or a modification of it are included in the 
issue price (but in the case of an obligation issued as part of an 
investment unit, only to the extent allocable to such obligation

[[Page 289]]

under subdivision (ii) of this subparagraph), such as amounts paid upon 
face-amount certificates or installment trust certificates in which the 
purchaser contracts to make a series of payments which will be 
returnable to the holder with an increment at a later date.
    (ii) Investment units consisting of obligations and property--(a) In 
general. An investment unit, within the meaning of this subdivision (ii) 
and for purposes of section 1232, consists of an obligation and an 
option, security, or other property. For purposes of this subparagraph, 
the initial offering price of an investment unit shall be allocated to 
the individual elements of the unit on the basis of their respective 
fair market values. However, if the fair market value of the option, 
security, or other property is not readily ascertainable (within the 
meaning of paragraph (c) of Sec. 1.421-6), then the portion of the 
initial offering price or price paid by the first buyer of the unit 
which is allocable to the obligation issued as part of such unit shall 
be ascertained as of the time of acquisition of such unit by reference 
to the assumed price at which such obligation would have been issued had 
it been issued apart from such unit. The assumed price of the obligation 
shall be ascertained by comparison to the yields at which obligations of 
a similar character which are not issued as part of an investment unit 
are sold in arm's length transactions, and by adjusting the price of the 
obligation in question to this yield. The adjustment may be made by 
subtracting from the face amount of the obligation the total present 
value of the interest foregone by the purchaser as a result of 
purchasing the obligation at a lower yield as part of an investment 
unit. In most cases, assumed price may also be determined in a similar 
manner through the use of standard bond tables. Any reasonable method 
may be used in selecting an obligation for comparative purposes. 
Obligations of the same grade and classification shall be used to the 
extent possible, and proper regard shall be given, with respect to both 
the obligation in question and the comparative obligation, to the 
solvency of the issuer, the nature of the issuer's trade or business, 
the presence and nature of security for the obligation, the geographic 
area in which the loan is made, and all other factors relevant to the 
circumstances. An obligation which is convertible into stock or another 
obligation must not be used as a comparative obligation (except where 
the investment unit contains an obligation convertible into stock or 
another obligation), since such an obligation would not reflect the 
yield attributable solely to the obligation element of the investment 
unit.
    (b) Agreement as to assumed price. In the case of an investment unit 
which is privately placed, the assumed price at which the obligation 
would have been issued had it been issued apart from such unit may be 
agreed to by the issuer and the original purchaser of the investment 
unit in writing on or before the date of purchase. Alternatively, an 
agreement between the issuer and original purchaser may specify the rate 
of interest which would have been paid on the obligation if the 
transaction were one not involving the issuance of options, and an 
assumed issue price may be determined (in the manner described in (a) of 
this subdivision) from such agreed assumed rate of interest. An assumed 
price based upon such an agreement between the parties will generally be 
presumed to be the issue price of the obligation with respect to the 
issuer, original purchaser, and all subsequent holders: Provided, That 
the agreement was made in arm's length negotiations between parties 
having adverse interests: And, provided further, That such price does 
not, under the rules stated in (a) of this subdivision, appear to be 
clearly erroneous. An assumed issue price agreed to by the parties as 
provided herein will not be considered clearly erroneous if it is not 
less than the face value adjusted (in the manner described in (a) of 
this subdivision) to a yield which is one percentage point greater than 
the actual rate of interest payable on the obligation. Similarly, if the 
agreement between the parties specifies an agreed assumed rate of 
interest (in lieu of an agreed assumed issue price) and such agreed rate 
is not more than 1 percentage point greater than the actual rate payable 
on the obligation, an adjusted

[[Page 290]]

issue price based upon such agreed assumed rate of interest will not be 
considered clearly erroneous.
    (c) Cross references. For rules relating to the deductibility by the 
issuing corporation of bond discount resulting from an allocation under 
the rule stated in (a) of this subdivision, see Sec. Sec. 1.163-3 and 
1.163-4. For rules relating to the basis of obligations and options, 
securities, or other property acquired in investment units, see Sec. 
1.1012-1(d). For rules relating to certain reporting requirements with 
respect to options acquired in connection with evidences of indebtedness 
and for the tax treatment of such options, see Sec. 1.61-15, and 
section 1234 and the regulations thereunder. With respect to the tax 
consequences to the issuing corporation upon the exercise of options 
issued in connection with evidences of indebtedness to which this 
section applies, see section 1032 and the regulations thereunder.
    (d) Examples. The application of the principles set forth in this 
subdivision (ii) may be illustrated by the following examples in each of 
which it is assumed that there was no intention to call the note before 
maturity:

    Example 1. M Corporation is a small manufacturer of electronic 
components located in the southwestern United States. On January 1, 
1969, in consideration for the payment of $41,500, M issues to X its 
unsecured note for $40,000 together with warrants to purchase 3,000 
shares of M stock at $10 per share at any time during the term of the 
note. The note is payable in 4 years and provides for interest at the 
rate of 5 percent per year, payable semiannually. The fair market values 
of the note and the warrants are not readily ascertainable. Assume that 
companies in the same industry as M Corporation, and similarly situated 
both financially and geographically, are generally able to borrow money 
on their unsecured notes at an annual interest rate of 6 percent. Using 
a present value table, the calculation of the issue price of a 5 
percent, 4 year, $40,000 note, discounted to yield 6 percent compounded 
semiannually is made as follows:

------------------------------------------------------------------------
             (1)                  (2)             (3)           (2)x(3)
------------------------------------------------------------------------
                                           Factor for present
                                Amount    value discounted at   Present
 Semiannual interest  period  payable at     3 percent per      value of
                               5 percent         period         payment
------------------------------------------------------------------------
1...........................      $1,000               0.9709    $970.90
2...........................       1,000                .9426     942.60
3...........................       1,000                .9151     915.10
4...........................       1,000                .8885     888.50
5...........................       1,000                .8626     862.60
6...........................       1,000                .8375     837.50
7...........................       1,000                .8131     813.10
8...........................       1,000                .7894     789.40
8...........................      40,000                .7804  31,576.00
------------------------------------------------------------------------
  Total present value of note discounted at 6 percent,         38,595.70
   compounded semiannually...................................
------------------------------------------------------------------------

    The same result may be reached through the use of a standard bond 
table or by the following present value calculation:

Present value of annuity of $1,000 payable over 8 periods at   $7,019.70
 3 percent per period=1000x7.0197=..........................
Add: Present value of principal (as calculated above).......   31,576.00
                                                             -----------
    Total...................................................  $38,595.70
 


Accordingly, the assumed price at which M's note would have been issued 
had it been issued without stock purchase warrants, i.e., that portion 
of the $41,500 price paid by X which is allocable to M's note, is 
$38,596 (rounded). Since the price payable on redemption of M's note at 
maturity is $40,000, the original issue discount on M's note is $1,404 
($40,000 minus $38,596). Under the rules stated in Sec. 1.163-3, M is 
entitled to a deduction, to be prorated or amortized over the life of 
the note, equal to this original issue discount on the note. The excess 
of the price for the unit over the portion of such price allocable to 
the note, $2,904 ($41,500 minus $38,596), is allocable to and is the 
basis of the stock purchase warrants acquired by X in connection with 
M's note. Upon the exercise of X's warrants, M will be allowed no 
deduction and will have no income. Upon maturity of the note X will 
receive $40,000 from M, of which $1,404, the amount of the original 
issue discount, will be taxable as ordinary income. If X were to 
transfer the note at its face amount to A 2 years after the issue date, 
X would realize, under section 1232(a)(2)(B), ordinary income of $702 
(one-half of $1,404).
    Example 2. (1) On January 1, 1969, N Corporation negotiates with Y, 
a small business investment company, for a loan in the amount of $51,500 
in consideration of which N Corporation issues to Y its unsecured 5-year 
note for $50,000, together with warrants to purchase 2,000 shares of N 
stock at $5 per share at any time during the term of the note. The note 
provides for interest of 6 percent, payable semiannually. The fair 
market values of the note and warrants are not readily ascertainable. 
The loan agreement between Y and N contains a provision, agreed to in 
arms-length bargaining between the parties, that a rate of 7 percent 
payable semiannually would have been applied to the loan if warrants 
were not issued as part of

[[Page 291]]

the consideration for the loan. The issue price of the note is $47,921 
(rounded), determined with the use of a standard bond table, or computed 
in the manner illustrated in Example 1 or in the following alternative 
manner:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                               (1)                                      (2)           (3)            (4)                   (5)                (4)x(5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Interest foregone     Factor for present     Present value
                         Interest period                           Interest rate   Principal   for period (\1/   value discounted at 3\1/   of interest
                                                                   differential                      2\%)         2\  percent per period     foregone
--------------------------------------------------------------------------------------------------------------------------------------------------------
1...............................................................       1%(7%-6%)     $50,000                250                   0.9662         $241.53
2...............................................................              1%      50,000                250                    .9335          233.38
3...............................................................              1%      50,000                250                    .9019          225.48
4...............................................................              1%      50,000                250                    .8714          217.85
5...............................................................              1%      50,000                250                    .8420          210.50
6...............................................................              1%      50,000                250                    .8135          203.38
7...............................................................              1%      50,000                250                    .7860          196.50
8...............................................................              1%      50,000                250                    .7594          189.85
9...............................................................              1%      50,000                250                    .7337          183.43
10..............................................................              1%      50,000                250                    .7089          177.25
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total present value of interest foregone............................................................................................       $2,079.15
                                                                                                                                         ===============
Principal...............................................................................................................................       50,000.00
Less: Total present value of interest foregone..........................................................................................        2,079.15
                                                                                                                                         ---------------
    Issue price.........................................................................................................................       47,920.85
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The calculation of present value of interest foregone may also be 
made as follows:
    Present value of annuity of $250 discounted for 10 periods at 3\1/2\ 
percent per period=$250x8.3166=$2,079.15.
    The total present value of interest foregone, $2,079, is also the 
original issue discount attributable to the note ($50,000 -$47,921). 
Under (b) of this subdivision, since the agreed assumed rate of interest 
of 7 percent is not more than 1 percentage point greater than the actual 
rate payable on the note, determination of the issue price of the note 
(and original issue discount) based upon such assumed rate will be 
presumed to be correct and will not be considered clearly erroneous, 
provided that both N and Y adhere to such determination. Under the rules 
in Sec. 1.163-3, N is entitled to a deduction, to be prorated or 
amortized over the life of the note, equal to the original issue 
discount on the note. The excess of the price paid for the unit over the 
portion of such price allocable to the note, $3,579 ($51,500-$47,921) is 
allocable to and is the basis of the stock purchase warrants acquired by 
Y in connection with N's note. Upon the exercise or sale of the warrants 
by Y, N will be allowed no deduction and will have no income. Upon 
maturity of the note Y will receive $50,000 from N, of which $2,079, the 
amount of the original issue discount, will be taxable as ordinary 
income. If Y were to transfer the note at its face value to B 2\1/2\ 
years after the issue date, Y would realize, under section 
1232(a)(2)(B), ordinary income of $1,039.50 (one-half of $2,079).
    (2) Assume that instead of the parties agreeing on an assumed 
interest rate at which the obligation would have been issued without the 
warrants, the parties agreed that the obligation at the actual 6 percent 
rate would have been issued without the warrants at a discounted price 
of $48,000. In this situation the agreed assumed issue price is presumed 
to be correct since it is not less than the face value adjusted (in the 
manner illustrated in part (1) of this example) to a yield which is one 
percentage point greater than the actual rate of interest payable on the 
obligation ($47,921).
    Example 3. O Corporation is a small advertising company located in 
the northeastern United States. Z is a tax-exempt organization. In 
consideration for the payment of $60,000, O issues to Z, in a 
transaction not within the scope of section 503(b), its unsecured 5-year 
note for $60,000, together with warrants to purchase 6,000 shares of O 
stock at $10 per share at any time during the term of the note. The note 
is subject to quarterly amortization at the rate of $3,000 per quarter, 
and provides for interest on the outstanding unpaid balance at an annual 
rate of 6 percent payable quarterly (1\1/2\ percent per quarter). The 
fair market values of the notes and warrants are not readily 
ascertainable. The loan agreement between O and Z contains a recital 
that if the $60,000 note had been issued without the warrants only 
$45,000 would have been paid for it. An examination of relevant facts 
indicates that companies in the same industry as O Corporation, and 
similarly situated both financially and geographically, are able to 
borrow money on their unsecured notes at an annual interest cost of 8\1/
2\ percent payable quarterly (2\1/8\ percent per quarter). By reference 
to a present value table, it is found that the present

[[Page 292]]

value of O's note discounted to yield 8\1/2\ percent compounded 
quarterly is $56,608 (rounded). The computation is as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                            (1)                                     (2)               (3)              (4)                 (5)                  (6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Present value
                                                                 Principal     Interest payable   Total amount      Factor for present       of total
                 Quarterly interest period                        payable      (1\1/2\ percent)      payable     value discounted at 2\1/     payment
                                                                                                     (2)+(3)     8\  percent per quarter      (4)x(5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1..........................................................            $3,000              $900          $3,900                   0.9792       $3,818.88
2..........................................................             3,000               855           3,855                    .9588        3,696.17
3..........................................................             3,000               810           3,810                    .9389        3,577.21
4..........................................................             3,000               765           3,765                    .9193        3,461.16
5..........................................................             3,000               720           3,720                    .9002        3,348.74
6..........................................................             3,000               675           3,675                    .8815        3,239.51
7..........................................................             3,000               630           3,630                    .8631        3,133.05
8..........................................................             3,000               585           3,585                    .8452        3,030.04
9..........................................................             3,000               540           3,540                    .8276        2,929.70
10.........................................................             3,000               495           3,495                    .8104        2,832.35
11.........................................................             3,000               450           3,450                    .7935        2,737.58
12.........................................................             3,000               405           3,405                    .7770        2,645.69
13.........................................................             3,000               360           3,360                    .7608        2,556.29
14.........................................................             3,000               315           3,315                    .7450        2,469.68
15.........................................................             3,000               270           3,270                    .7295        2,385.47
16.........................................................             3,000               225           3,225                    .7143        2,303.62
17.........................................................             3,000               180           3,180                    .6994        2,224.09
18.........................................................             3,000               135           3,135                    .6849        2,147.16
19.........................................................             3,000                90           3,090                    .6706        2,072.15
20.........................................................             3,000                45           3,045                    .6567        1,999.65
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total...............................................................................................................................       56,608.19
--------------------------------------------------------------------------------------------------------------------------------------------------------


This amount ($56,608) is the assumed price at which the note would have 
been issued had it been issued without stock purchase warrants. The 
assumed price of $45,000 agreed to by the parties is not presumed to be 
correct since it is less than the face value adjusted to a yield which 
is one percentage point greater than the actual rate of interest payable 
on the obligation. The parties did not have adverse interests in 
agreeing upon an assumed price (since an excessively large amount of 
original issue discount would benefit O, the borrower, without adversely 
affecting Z, an exempt organization which would pay no tax on original 
issue discount income), and the price agreed to appears to be clearly 
erroneous when compared to the $56,608 assumed issue price determined 
under the principles of (a) of this subdivision. Since the maturity 
value of O's note is $60,000, the original issue discount on O's note is 
$3,392 ($60,000 minus $56,608). Under the rules in Sec. 1.163-3, O is 
entitled to a deduction, to be prorated or amortized over the life of 
the note, equal to this original issue discount on the note. The excess 
of the price paid for the unit over the portion of such price allocable 
to the note, $3,392 ($60,000 minus $56,608), is allocable to and is the 
basis of the stock purchase warrants acquired by Z in connection with 
O's note. Upon the exercise or sale of the warrants by Z, O will be 
allowed no deduction and will have no income.

    (iii) Issuance for property after May 27, 1969--(a) In general. 
Except as provided in (b) of this subdivision, if an obligation or an 
investment unit is issued for property other than money, the issue price 
of such obligation shall be the stated redemption price at maturity and, 
therefore, no original issue discount is created as a result of the 
exchange. However, in such case, there may be an amount treated as 
interest under section 483. In the case of certain exchanges of 
obligations of the United States for other such obligations, see section 
1037 for the determination of the amount of original issue discount on 
the obligation acquired in the exchange. For carryover of original issue 
discount in the case of certain exchanges of obligations, see 
subparagraph (1)(iv) of this paragraph.
    (b) Exceptions for original issue discount. If an obligation or 
investment unit is issued for property in an exchange which is not 
pursuant to a plan of reorganization referred to in (d) of this 
subdivision, and if:
    (1) The obligation, investment unit, or an element of the investment 
unit is part of an issue a portion of which is traded on an established 
securities market, or
    (2) The property for which such obligation or investment unit is 
issued is

[[Page 293]]

stock or securities which are traded on an established securities 
market,

then the issue price of the obligation or investment unit shall be the 
fair market value of the property for which such obligation or 
investment unit is issued, as determined under (c) of this subdivision. 
Such issue price shall control for purposes of determining the amount 
realized by the person exchanging the property for the obligation or 
unit issued and the bases of the property acquired by the holder and 
issuer.

An obligation which is not traded on an established securities market 
and which is not part of an issue or investment unit a portion of which 
is so traded shall not be treated as property described in (1) of this 
(b) even though the obligation is convertible into property so traded. 
For purposes of this (b), an obligation, investment unit, or element of 
an investment unit shall be treated as traded on an established 
securities market if it is so traded on or within 10 trading days after 
the date it is issued. Trading days shall mean those days on which an 
established securities market is open. For purposes of this subdivision 
(iii), the term established securities market shall have the same 
meaning as in paragraph (d)(4) of Sec. 1.453-3 (relating to limitations 
on installment method for purchaser evidences of indebtedness payable on 
demand or readily tradable).
    (c) Determination of fair market value in cases to which (b) of this 
subdivision applies. In general, for purposes of (b) of this 
subdivision, the fair market value of property for which an obligation 
or investment unit is issued shall be deemed to be the same as the fair 
market value of such obligation or investment unit, determined by 
reference to the fair market value of that portion of the issue, of 
which such obligation or unit is a part, which is traded on an 
established securities market. The fair market value of such obligation 
or unit shall be determined as of the first date after the date of issue 
(within the meaning of section 1232(b)(3)) that such obligation or unit 
is traded on an established securities market. If, however, the 
obligation or investment unit is not part of an issue a portion of which 
is traded on an established securities market, but the property for 
which the obligation or investment unit is issued is stock or securities 
which are traded on an established securities market, the fair market 
value of such property shall be the fair market value of such stock or 
securities on the date such obligation or unit is issued for such 
property. The fair market value of property for purposes of this (c) 
shall be determined as provided in Sec. 20.2031-2 of this chapter 
(Estate Tax Regulations) but without applying the blockage and other 
special rules contained in paragraph (e) thereof.
    (d) Not in reorganization. An exchange which is not pursuant to a 
reorganization referred to in this subdivision (d) is an exchange in 
which the obligation or investment unit is not issued pursuant to a plan 
of reorganization within the meaning of section 368(a)(1) or pursuant to 
an insolvency reorganization within the meaning of section 371, 373, or 
374. Thus, for example, no original issue discount is created on an 
obligation issued in a recapitalization within the meaning of section 
368(a)(1)(E). Similarly, no original issue discount is created on an 
obligation issued in an exchange, pursuant to a plan of reorganization, 
to which section 361 applies regardless of the income tax consequences 
to any person who pursuant to such plan is the ultimate recipient of the 
obligation. The application of section 351 shall not preclude the 
creation of original issue discount. For carryover of original issue 
discount in the case of an exchange of obligations pursuant to a plan of 
reorganization, see subparagraph (1)(iv) of this paragraph.
    (e) Effective date. Determinations with respect to obligations 
issued on or before May 27, 1969, or pursuant to a written commitment 
which was binding on that date and at all times thereafter, shall be 
made without regard to this subdivision (iii).
    (iv) Serial obligations--(a) In general. If an issue of obligations 
which matures serially is issued by a corporation, and if on the basis 
of the facts and circumstances in such case an independent issue price 
for each particular maturity can be established, then the

[[Page 294]]

obligations with each particular maturity shall be considered a separate 
series, and the obligations of each such series shall be treated as a 
separate issue with a separate issue price, maturity date, and stated 
redemption price at maturity. The ratable monthly portion of original 
issue discount attributable to each obligation within a particular 
series shall be determined and ratably included as interest in gross 
income under the rules of Sec. 1.1232-3A.
    (b) Issue price not independently established. If a separate issue 
price cannot be established with respect to each series of an issue of 
obligations which matures serially, the issue price for each obligation 
of each series shall be its stated redemption price at maturity minus 
the amount of original issue discount allocated thereto in accordance 
with (d) of this subdivision. The amount of original issue discount so 
allocated shall be ratably included as interest in gross income under 
rules of Sec. 1.1232-3A.
    (c) Single obligation rule. If a single corporate obligation 
provides for payments (other than payments which would not be included 
in the stated redemption price at maturity under subparagraph (1)(iii) 
of this paragraph) in two or more installments, the provisions of (b) of 
this subdivision shall be applied by treating such obligation as an 
issue of obligations consisting of more than one series each of which 
matures on the due date of each such installment payment.
    (d) Allocation of discount. For purposes of (b) and (c) of this 
subdivision, the original issue discount with respect to each series of 
an issue shall be the total original issue discount for the issue 
multiplied by a fraction:
    (1) The numerator of which is the product of (i) the stated 
redemption price of such series and (ii) the number of complete years 
(and any fraction thereof) constituting the period for such series from 
the date of original issue (as defined in paragraph (b)(3) of this 
section) to its stated maturity date, and
    (2) The denominator of which is the sum of the products determined 
in (1) of this subdivision (d) with respect to each such series.

If a series consists of more than one obligation, the original issue 
discount allocated to such series shall be apportioned to such 
obligations in proportion to the stated redemption price of each. 
Computations under this subdivision (d) may be made using periods other 
than years, such as, for example, months or periods of 3 months.
    (e) Effective date. The provisions of this subdivision (iv) shall 
apply with respect to corporate obligations issued after July 22, 1971. 
However, no inference shall be drawn from the preceding sentence with 
respect to serial obligations issued prior to such date.
    (f) Examples. The provisions of this subdivision (iv) may be 
illustrated by the following examples:

    Example 1. On January 1, 1972, P Corporation issued a note with a 
total face value of $100,000 to B for cash of $94,000. The terms of the 
note provide that $50,000 is payable on December 31, 1973, and the other 
$50,000 on December 31, 1975. Each payment is treated as the stated 
redemption price of a series, and the total original issue discount with 
respect to the note, $6,000, is allocated to each such series as 
follows:

------------------------------------------------------------------------
            Year of maturity                1973       1975      Total
------------------------------------------------------------------------
(1) Stated redemption price............    $50,000    $50,000
(2) Multiply by years outstanding......          2          4
                                        --------------------------------
(3) Product of bond years..............   $100,000   $200,000
(4) Sum of products....................  .........  .........   $300,000
(5) Fractional portion of discount.....   $100,000   $200,000
                                        --------------------------------
                                          $300,000   $300,000
(6) Multiply line (5) by discount for       $6,000     $6,000
 entire issue..........................
                                        ----------------------
(7) Discount for each series...........     $2,000     $4,000
                                        ======================
(8) Issue price (line (1), minus line      $48,000    $46,000
 (7))..................................
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1) except that a 
separate note is issued for each payment. The result is the same as in 
example (1).
    Example 3. On January 1, 1971, Y Bank, a corporation, issues a note 
to C for $1,000 cash. The terms of the note provide that $50 will be 
paid at the end of the first year, $120 at the end of the second year, 
and $1,050 at the end of the third year. Under (c) of this subdivision 
(iv), the $1,000 note is treated as consisting of two series, the first 
of which matures at the end of the second year, and

[[Page 295]]

the second of which matures at the end of the third year. The issue 
price and the allocation of original issue discount with respect to each 
series is computed as follows:

------------------------------------------------------------------------
            Year of maturity                1972       1973      Total
------------------------------------------------------------------------
(1) Stated redemption price............        $70     $1,000
(2) Multiply by years outstanding......          2          3
                                        ----------------------
(3) Product of bond years..............       $140     $3,000
(4) Sum of products....................  .........  .........     $3,140
(5) Fractional portion of discount.....       $140     $3,000
                                        ----------------------
                                            $3,140     $3,140
(6) Multiply line (5) by discount for          $70        $70
 entire issue..........................
                                        ----------------------
(7) Discount for each series...........      $3.12     $66.88
                                        ======================
(8) Issue price (line 1 minus line (7))     $66.88    $933.12
------------------------------------------------------------------------

    (3) Date of original issue. In the case of issues of obligations 
which are registered with the Securities and Exchange Commission, the 
term date of original issue means the date on which the issue was first 
sold to the public at the issue price. In the case of issues which are 
privately placed, the term date of original issue means the date on 
which each obligation was sold to the original purchaser.
    (4) Intention to call before maturity--(i) Meaning of term. For 
purposes of section 1232, the term intention to call the bond or other 
evidence of indebtedness before maturity means an understanding between 
(a) the issuing corporation (such corporation is hereinafter referred to 
as the issuer), and (b) the original purchaser of such obligation (or, 
in the case of obligations constituting part of an issue, any of the 
original purchasers of such obligations) that the issuer will redeem the 
obligation before maturity. For purposes of this subparagraph, the term 
original purchaser does not include persons or organizations acting in 
the capacity of underwriters or dealers, who purchased the obligation 
for resale in the ordinary course of their trade or business. It is not 
necessary that the issuer's intention to call the obligation before 
maturity be communicated directly to the original purchaser by the 
issuer. The understanding to call before maturity need not be 
unconditional; it may, for example, be dependent upon the financial 
condition of the issuer on the proposed early call date.
    (ii) Proof of intent--(a) In general. Ordinarily, the existence or 
non-existance of an understanding at the time of original issue that the 
obligation will be redeemed before maturity shall be determined by an 
examination of all of the circumstances under which the obligation was 
issued and held. The fact that the obligation is issued with provisions 
on its face giving the issuer the privilege of redeeming the obligation 
before maturity is not determinative of an intention to call before 
maturity; likewise, the absence of such provision is not determinative 
of the absence of an intention to call before maturity. However, such 
provision, or the absence of such provision, is one of the circumstances 
to be given consideration along with other factors in determining 
whether an understanding existed. If the obligation was part of an issue 
registered with the Securities and Exchange Commission and was sold to 
the public (whether or not sold directly to the public by the obligor) 
without representation to the public that the obligor intends to call 
the obligation before maturity, there shall be a presumption that no 
intention to call the obligation before maturity was in existence at the 
time of original issue. The existence of a provision on the face of an 
obligation giving the issuer the privilege of redeeming the obligation 
before maturity shall not in and of itself overcome the presumption set 
forth in the preceding sentence.
    (b) Circumstances indicating absence of understanding. Examples of 
circumstances which would be evidence that there was no understanding at 
the time of original issue to redeem the obligation before maturity are:
    (1) The issue price and term of the obligation appear to be 
reasonable, taking into account the interest rate, if any, on the 
obligation, for a corporation in the financial condition of the issuer 
at the time of issue.
    (2) The original purchaser and the issuer are not related within the 
meaning of section 267(b) and have not engaged in transactions with each 
other (other than concerning the obligation).

[[Page 296]]

    (3) The original purchaser is not related within the meaning of 
section 267(b) to any of the officers or directors of the issuer, and he 
has not engaged in transactions with such officers or directors (other 
than concerning the obligation).
    (4) The officers and directors of the issuer at the time of issue of 
the obligation are different from those in control at the time the 
obligation is called or the taxpayer disposes of it.
    (c) Gain treated as ordinary income in certain cases; computation. 
The amount of gain treated as ordinary income under paragraph (a) 
(3)(ii) or (5) of this section is computed by multiplying the original 
issue discount by a fraction, the numerator of which is the number of 
full months the obligation was held by the holder and the denominator of 
which is the number of full months from the date of original issue to 
the date specified as the redemption date at maturity. (See paragraph 
(b)(3) of this section for definition of date of original issue.) The 
period that the obligation was held by the taxpayer shall include any 
period that it was held by another person if, under chapter 1 of the 
Code, for the purpose of determining gain or loss from a sale or 
exchange, the obligation has the same basis, in whole or in part, in the 
hands of the taxpayer as it would have in the hands of such other 
person. This computation is illustrated by the following examples:

    Example 1. An individual purchases a 10-year, 3-percent coupon bond 
for $900 on original issue on February 1, 1955, and sells it on February 
20, 1960, for $940. The redemption price is $1,000. At the time of 
original issue, there was no intention to call the bond before maturity. 
The bond has been held by the taxpayer for 60 full months. (The 
additional days amounting to less than a full month are not taken into 
account.) The number of complete months from date of issue to date of 
maturity is 120 (10 years). The fraction \60/120\ multiplied by the 
discount of $100 is equal to $50, which represents the proportionate 
part of the original issue discount attributable to the period of 
ownership by the taxpayer. Accordingly, any part of the gain up to $50 
will be treated as ordinary income. Therefore, in this case the entire 
gain of $40 is treated as ordinary income.
    Example 2. Assume the same facts in the preceding example, except 
that the selling price of the bond is $970. In this case $50 of the gain 
of $70 is treated as ordinary income and the balance of $20 is treated 
as long-term capital gain.
    Example 3. Assume the same facts as in example (1), except that the 
selling price of the bond is $800. In this case, the individual has a 
long-term capital loss of $100.
    Example 4. Assume the same facts as in example (1), except that the 
bond is purchased by the second holder February 1, 1960, for $800. The 
second holder keeps it to the maturity date (February 1, 1965) when it 
is redeemed for $1,000. Since that holder has held the bond for 60 full 
months, he will, upon redemption, have $50 in ordinary income and $150 
in long-term capital gain.

    (d) Exceptions to the general rule--(1) In general. Section 
1232(a)(2)(C) provides that section 1232(a)(2) does not apply (i) to 
obligations the interest on which is excluded from gross income under 
section 103 (relating to certain government obligations), or (ii) to any 
holder who purchases an obligation at a premium.
    (2) Premium. For purposes of section 1232, this section, and Sec. 
1.1232-3A, premium means a purchase price which exceeds the stated 
redemption price of an obligation at its maturity. For purposes of the 
preceding sentence, if an obligation is acquired as part of an 
investment unit consisting of an option, security, or other property and 
an obligation, the purchase price of the obligation is that portion of 
the price paid or payable for the unit which is allocable to the 
obligation. The price paid for the unit shall be allocated to the 
individual elements of the unit on the basis of their respective fair 
market values. However, if the fair market value of the option, 
security, or other property is not readily ascertainable (within the 
meaning of paragraph (c) of Sec. 1.421-6), then the price paid for the 
unit shall be allocated in accordance with the rules under paragraph 
(b)(2)(ii) of this section for allocating the initial offering price of 
an investment unit to its elements. If, under chapter 1 of the Code, the 
basis of an obligation in the hands of the holder is the same, in whole 
or in part, for the purposes of determining gain or loss from a sale or 
exchange, as the basis of the obligation in the hands of another person 
who purchased the obligation at a premium, then the holder shall be 
considered to have purchased the obligation at a premium. Thus, the 
donee

[[Page 297]]

of an obligation purchased at a premium by the doner will be considered 
a holder who purchased the obligation at a premium.
    (e) Amounts previously includible in income. Nothing in section 
1232(a)(2) shall require the inclusion of any amount previously 
includible in gross income. Thus, if an amount was previously includible 
in a taxpayer's income on account of obligations issued at a discount 
and redeemable for fixed amounts increasing at stated intervals, or, 
under section 818(b) (relating to accrual of discount on bonds and other 
evidences of indebtedness held by life insurance companies), such amount 
is not again includible in the taxpayer's gross income under section 
1232(a)(2). For example, amounts includible in gross income by a cash 
receipts and disbursements method taxpayer who has made an election 
under section 454 (a) or (c) (relating to accounting rules for certain 
obligations issued at a discount to which section 1232(a)(3) does not 
apply) are not includible in gross income under section 1232(a)(2). In 
the case of a gain which would include, under section 1232(a)(2), an 
amount considered to be ordinary income and a further amount considered 
long-term capital gain, any amount to which this paragraph applies is 
first used to offset the amount considered ordinary income. For example, 
on January 1, 1955, A purchases a 10-year bond which is redeemable for 
fixed amounts increasing at stated intervals. At the time of original 
issue, there was no intention to call the bond before maturity. The 
purchase price of the bond is $75, which is also the issue price. The 
stated redemption price at maturity of the bond is $100. A elects to 
treat the annual increase in the redemption price of the bond as income 
pursuant to section 454(a). On January 1, 1960, A sells the bond for 
$90. The total stated increase in the redemption price of the bond which 
A has reported annually as income for the taxable years 1955 through 
1959 is $7. The portion of the original issue discount of $25 
attributable to this period is $12.50, computed as follows:

60 (months bond is held by A)/120 (months from date of original issue to 
redemption date)x$25 (original issue discount)


However, $7, which represents the annual stated increase taken into 
income, is offset against the amount of $12.50, leaving $5.50 of the 
gain from the sale to be treated as ordinary income.
    (f) Recordkeeping requirements. In the case of any obligation held 
by a taxpayer which was issued at an original issue discount after 
December 31, 1954, the taxpayer shall keep a record of the issue price 
and issue date upon or with each obligation (if known to or reasonably 
ascertainable by him). If the obligation held by the taxpayer is an 
obligation of the United States received from the United States in an 
exchange upon which gain or loss is not recognized because of section 
1037 (a) (or so much of section 1031 (b) or (c) as relates to section 
1037(a)), the taxpayer shall keep sufficient records to determine the 
issue price of such obligation for purposes of applying section 1037(b) 
and paragraphs (a) and (b) of Sec. 1.1037-1 upon the disposition or 
redemption of such obligation. The issuer (or in the case of obligations 
first sold to the public through an underwriter or wholesaler, the 
underwriter or wholesaler) shall mark the issue price and issue date 
upon every obligation which is issued at an original issue discount 
after September 26, 1957, but only if the period between the date of 
original issue (as defined in paragraph (b)(3) of this section) and the 
stated maturity date is more than 6 months.

[T.D. 6500, 25 FR 12008, Nov. 26, 1960, as amended by T.D. 6984, 33 FR 
19176, Dec. 21, 1968; T.D. 7154, 36 FR 25000, Dec. 28, 1971; 37 FR 527, 
Jan. 13, 1972; T.D. 7213, 37 FR 21992, Oct. 18, 1972; 37 FR 22863, Oct. 
26, 1972; T.D. 7663, 44 FR 76782, Dec. 28, 1979; T.D. 7728, 45 FR 72650, 
Nov. 3, 1980]



Sec. 1.1232-3A  Inclusion as interest of original issue discount on 
certain obligations issued after May 27, 1969.

    (a) Ratable inclusion as interest--(1) General rule. Under section 
1232(a)(3), the holder of any obligation issued by a corporation after 
May 27, 1969 (other than an obligation issued by or on behalf of the 
United States or a foreign country, or a political subdivision of 
either) shall include as interest in his gross income an amount equal to 
the ratable monthly portion of original issue discount multiplied by the 
sum of

[[Page 298]]

the number of complete months and any fractional part of a month such 
holder held the obligation during the taxable year. For increase in 
basis for amounts included as interest in gross income pursuant to this 
paragraph, see paragraph (c) of this section. For requirements for 
reporting original issue discount, see section 6049(a) and the 
regulations thereunder.
    (2) Ratable monthly portion of original issue discount--(i) General 
rule. Except when subdivision (ii) of this subparagraph applies, the 
term ratable monthly portion of original issue discount means an amount 
equal to the original issue discount divided by the sum of the number of 
complete months (plus any fractional part of a month) beginning on the 
date of original issue and ending the day before the stated maturity 
date of such obligation.
    (ii) Reduction for purchase allowance. With respect to an obligation 
which has been acquired by purchase (within the meaning of subparagraph 
(4) of this paragraph), the term ratable monthly portion of original 
issue discount means the lesser of the amount determined under 
subdivision (i) of this subparagraph or an amount equal to:
    (a) The excess (if any) of the stated redemption price of the 
obligation at maturity over its cost to the purchaser divided by
    (b) The sum of the number of complete months (plus any fractional 
part of a month) beginning on the date of such purchase and ending the 
day before the stated maturity date of such obligation.

The amount of the ratable monthly portion within the meaning of this 
subdivision reflects a purchase allowance provided under section 
1232(a)(3)(B) where a purchase is made at a price in excess of the sum 
of the issue price plus the portion of original issue discount 
previously includible (regardless of whether included) in the gross 
income of all previous holders (computed, however, as to such previous 
holders without regard to any purchase allowance under this subdivision 
and without regard to whether any previous holder purchased at a 
premium).
    (iii) Ratable monthly portion upon carryover to new obligation. In 
any case in which there is a carryover of original issue discount under 
paragraph (b)(1)(iv) of Sec. 1.1232-3 from an obligation exchanged to 
an obligation received in such exchange, the ratable monthly portion of 
original issue discount in respect of the obligation received shall be 
computed by dividing the amount of original issue discount carried over 
by the sum of the number of complete months (plus any fractional part of 
a month) beginning on the date of the exchange and ending the day before 
the stated maturity date of the obligation received.
    (iv) Cross references. For definitions of the terms original issue 
discount and date of original issue, see subparagraphs (1) and (3) 
respectively, of Sec. 1.1232-3(b). For definition of the term premium, 
see paragraph (d)(2) of Sec. 1.1232-3.
    (3) Determination of number of complete months--(i) In general. For 
purposes of this section:
    (a) A complete month and a fractional part of a month commence with 
the date of original issue and the corresponding day of each succeeding 
calendar month (or the last day of a calendar month in which there is no 
corresponding day),
    (b) If an obligation is acquired on any day other than the date a 
complete month commences, the ratable monthly portion of original issue 
discount for the complete month in which the acquisition occurs shall be 
allocated between the transferor and the transferee in accordance with 
the number of days in such complete month each held the obligation,
    (c) In determining the allocation under (b) of this subdivision, any 
holder may treat each month as having 30 days,
    (d) The transferee, and not the transferor, shall be deemed to hold 
the obligation during the entire day on the date of acquisition, and
    (e) The obligor will be treated as the transferee on the date of 
redemption.
    (ii) Example. The provisions of this subparagraph may be illustrated 
by the following example:

    Example: On February 22, 1970, A acquires an obligation of X 
Corporation for which February 1, 1970, is the date of original issue. B 
acquires the obligation on June 16, 1970. A does not choose to treat 
each month as having 30 days. Thus, A held the obligation for

[[Page 299]]

3\3/4\ months during 1970, i.e., one-fourth of February (\7/28\ days), 
March, April, May, one-half of June (\15/30\ days). The ratable monthly 
portion of original issue discount for the obligation is multiplied by 
3\3/4\ months to determine the amount included in A's gross income for 
1970 pursuant to this paragraph.

    (4) Purchase. For purposes of this section, the term purchase means 
any acquisition (including an acquisition upon original issue) of an 
obligation to which this section applies, but only if the basis of such 
obligation is not determined in whole or in part by reference to the 
adjusted basis of such obligation in the hands of the person from whom 
it was acquired or under section 1014(a) (relating to property acquired 
from a decedent).
    (b) Exceptions--(1) Binding commitment. Section 1232(a)(3) shall not 
apply to any obligation issued pursuant to a written commitment which 
was binding on May 27, 1969, and at all times thereafter.
    (2) Exception for 1-year obligations. Section 1232(a)(3) shall not 
apply to any obligation in respect of which the period between the date 
of original issue (as defined in paragraph (b)(3) of Sec. 1.1232-3) and 
the stated maturity date is 1 year or less. In such case, gain on the 
sale or exchange of such obligation shall be included in gross income as 
interest to the extent the gain does not exceed an amount equal to the 
ratable monthly portion of original issue discount multiplied by the sum 
of the number of complete months and any fractional part of a month such 
taxpayer held such obligation.
    (3) Purchase at a premium. Section 1232(a)(3) shall not apply to any 
holder who purchased the obligation at a premium (within the meaning of 
paragraph (d)(2) of Sec. 1.1232-3).
    (4) Life insurance companies. Section 1232(a)(3) shall not apply to 
any holder which is a life insurance company to which section 818(b) 
applies. However, ratable inclusion of original issue discount as 
interest under section 1232(a)(3) is required by an insurance company 
which is subject to the tax imposed by section 821 or 831.
    (c) Basis adjustment. The basis of an obligation in the hands of the 
holder thereof shall be increased by any amount of original issue 
discount with respect thereto included as interest in his gross income 
pursuant to paragraph (a) of this section. See section 1232(a)(3)(E). 
However, the basis of an obligation shall not be increased by any amount 
that was includible as interest in gross income under paragraph (a) of 
this section, but was not actually included by the holder in his gross 
income.
    (d) Examples. The provisions of paragraphs (a) through (c) of this 
section may be illustrated by the following examples:

    Example 1. On January 1, 1970, A, a calendar-year taxpayer, 
purchases at original issue, for cash of $7,600, M Corporation's 10-
year, 5-percent bond which has a stated redemption price of $10,000. The 
ratable monthly portion of original issue discount, as determined under 
section 1232(a)(3) and this section, to be included as interest in A's 
gross income for each month he holds such bond is $20, computed as 
follows:

Original issue discount (stated redemption price,      $2,400
 $10,000, minus issue price, $7,600)..............
Divide by: Number of months from date of original         120     months
 issue to stated maturity date....................
                                                   -----------
Ratable monthly portion...........................        $20
 


Assume that A holds the bond for all of 1970 and 1971 and includes as 
interest in his gross income for each such year an amount equal to the 
ratable monthly portion, $20, multiplied by the number of months he held 
the bond each such year, 12 months, or $240. Accordingly, on January 1, 
1972, A's basis in the bond will have increased under paragraph (c) of 
this section by the amount so included, $480 (i.e., $240x2), from his 
cost, $7,600, to $8,080. For results if A sells the bond on that date, 
see examples (1) and (2) of paragraph (a)(2) of Sec. 1.1282-3.
    Example 2. Assume the same facts as in example (1). Assume further 
that on January 1, 1972, A sells the bond to B, a calendar-year taxpayer 
for $9,040.


Since B purchased the bond, he determines under paragraph (a)(2)(ii) of 
this section the amount of the ratable monthly portion he must include 
as interest in his gross income in order to reflect the amount of his 
purchase allowance (if any). B determines that his ratable monthly 
portion is $10, computed as follows:

(1) Stated redemption price at maturity...........    $10,000
(2) Minus: B's cost...............................     $9,040
                                                   -----------
(3) Excess........................................       $960
(4) Divide by: Number of months from date of               96     months
 purchase to stated maturity date.................

[[Page 300]]

 
(5) Tentative ratable monthly portion.............        $10
                                                   -----------
(6) Ratable monthly portion as computed in example        $20
 (1)..............................................
 

Since line (5) is lower than line (6), B's ratable monthly portion is 
$10. Accordingly, if B holds the bond for all of 1972, he must include 
$120 (i.e., ratable monthly portion, $10x12 months) as interest in his 
gross income.
    Example 3. (1) Assume the same facts as in example (1). Assume 
further that on January 1, 1975, A sells the bond to B for $10,150. 
Under the exception of paragraph (b)(3) of this section, B is not 
required to include any amount in respect of original issue discount as 
interest in his gross income since he has purchased the bond at a 
premium.
    (2) On January 1, 1979, B sells the bond to C, a calendar-year 
taxpayer, for $9,940. Since C is now the holder of the bond (and no 
exception applies to him), he must include as interest in his gross 
income the ratable monthly portion of original issue determined under 
section 1232(a)(3) and this section. Since C purchased the bond he 
determines under paragraph (a)(2)(ii) of this section the amount of the 
ratable monthly portion he must include as interest in his gross income 
in order to reflect the amount of his purchase allowance (if any). C 
determines that his ratable monthly portion is $5, computed as follows:

(1) Stated redemption price at maturity...........    $10,000
(2) Minus: C's cost...............................     $9,940
                                                   -----------
(3) Excess........................................        $60
(4) Divide by: Number of months from date of               12     months
 purchase to stated maturity date.................
                                                   -----------
(5) Tentative ratable monthly portion.............         $5
(6) Ratable monthly portion as computed in example        $20
 (1)..............................................
 


Since line (5) is lower than line (6), C's ratable monthly portion is 
$5. Accordingly, if C holds the bond for all of 1979, he must include 
$60 (i.e., ratable monthly portion, $5, x12 months) as interest in his 
gross income. Upon maturity of the bond on January 1, 1980, C will 
receive $10,000 from M, which under paragraph (c) of this section will 
equal his adjusted basis (the sum of his cost, $9,940, plus original 
issue discount included as interest in his gross income, $60).
    Example 4. On January 1, 1968, D, a calendar-year taxpayer, 
purchases at original issue, for cash of $8,000, P Corporation's 20-
year, 6 percent bond which has a stated redemption price of $10,000 and 
which will mature on January 1, 1988. The original issue discount with 
respect to such bond is $2,000. However, the ratable inclusion rules of 
section 1232(a)(3) do not apply to D, since the bond was issued by P 
before May 28, 1969. On January 1, 1973, pursuant to a plan of 
reorganization as defined in section 368(a)(1)(E), and in which no gain 
or loss is recognized by D under section 354, D's 20-year bond is 
exchanged for a 10-year, 6 percent bond which also has a stated 
redemption price of $10,000 but will mature on January 1, 1983. Under 
paragraph (b)(1)(iv) of Sec. 1.1232-3, the $2,000 of original issue 
discount is carried over to the new 10-year bond received in such 
exchange. Since the new bond is an obligation issued after May 27, 1969, 
D is required to begin ratable inclusion of the $2,000 of discount as 
interest in his gross income for 1973. The ratable monthly portion of 
original issue discount, as determined under section 1232(a)(3) to be 
included as interest in gross income is computed as follows:

Amount of original issue discount carried over....     $2,000
Divide by: Number of complete months beginning on         120     months
 January 1, 1973, and ending on December 31, 1982.
                                                   -----------
Ratable monthly portion...........................     $16.67
 

    (e) Application of section 1232 to certain deposits in financial 
institutions and similar arrangements--(1) In general. Under paragraph 
(d) of Sec. 1.1232-1, the term other evidence of indebtedness includes 
certificates of deposit, time deposits, bonus plans, and other deposit 
arrangements with banks, domestic building and loan associations, and 
similar financial institutions.
    (2) Adjustments where obligation redeemed before maturity--(i) In 
general. If an obligation described in subparagraph (1) of this 
paragraph is redeemed for a price less than the stated redemption price 
at maturity from a taxpayer who acquired the obligation upon original 
issue, such taxpayer shall be allowed as a deduction, in computing 
adjusted gross income, the amount of the original issue discount he 
included in gross income but did not receive (as determined under 
subdivision (ii) of this subparagraph). The taxpayer's basis of such 
obligation (determined after any increase in basis for the taxable year 
under section 1232(a)(3)(E) by the amount of original issue discount 
included in the holder's gross income under section 1232(a)(3)) shall be 
decreased by the amount of such adjustment.
    (ii) Computation. The amount of the adjustment under subdivision (i) 
of this subparagraph shall be an amount equal to the excess (if any) of 
(a) the ratable monthly portion of the original issue

[[Page 301]]

discount included in the holder's gross income under section 1232(a)(3) 
for the period he held the obligation, over (b) the excess (if any) of 
the amount received upon the redemption over the issue price. Under 
paragraph (b)(1)(iii)(a) of Sec. 1.1232-3, if any amount based on a 
fixed rate of simple or compound interest is actually payable or will be 
treated as constructively received under section 451 and the regulations 
thereunder at fixed periodic intervals of 1 year or less during the term 
of the obligation, any such amount payable upon redemption shall not be 
included in determining the amount received upon such redemption.
    (iii) Partial redemption. (a) In the case of an obligation (other 
than a single obligation having serial maturity dates), if a portion of 
the obligation is redeemed prior to the stated maturity date of the 
entire obligation, the provisions of this subdivision shall be applied 
and not the provisions of subdivision (ii) of this subparagraph. In such 
case, the adjusted basis of the unredeemed portion of the obligation on 
the date of the partial redemption shall be an amount equal to the 
adjusted basis of the entire obligation on that date minus the amount 
paid upon the redemption.
    (b) If the adjusted basis of the unredeemed portion (as computed 
under (a) of this subdivision) is equal to or in excess of the amount to 
be received for the unredeemed portion at maturity, no gain or loss 
shall be recognized at the time of the partial redemption but the holder 
shall be allowed a deduction, in computing adjusted gross income for the 
taxable year during which such partial redemption occurs, equal to the 
amount of such excess (if any), and no further original issue discount 
will be includible in the holder's gross income under section 1232(a)(3) 
over the remaining term of the unredeemed portion. In such case, the 
holder shall decrease his basis in the unredeemed portion (as computed 
under (a) of this subdivision) by the amount of such adjustment.
    (c) If the adjusted basis of the unredeemed portion (as computed 
under (a) of this subdivision) is less than the redemption price of the 
unredeemed portion at maturity, a new computation shall be made under 
paragraph (a) of this section (without regard to the exception for one-
year obligations in paragraph (b)(2) of this section) of the ratable 
monthly portion of original issue discount to be included as interest in 
the gross income of the holder over the remaining term of the unredeemed 
portion. For purposes of such computation, the adjusted basis of the 
unredeemed portion shall be treated as the issue price, the date of the 
partial redemption shall be treated as the issue date, and the amount to 
be paid for the unredeemed portion at maturity shall be treated as the 
stated redemption price.
    (3) Examples. The application of section 1232 to obligations to 
which this paragraph applies may be illustrated by the following 
examples:

    Example 1. A is a cash method taxpayer who uses the calendar year as 
his taxable year. On January 1, 1971, he purchases a certificate of 
deposit from X Bank, a corporation, for $10,000. The certificate of 
deposit is not redeemable until December 31, 1975, except in an 
emergency as defined in, and subject to the qualifications provided by, 
Regulation Q of the Board of Governors of the Federal Reserve. See 12 
CFR 217.4(d). The stated redemption price at maturity is $13,382.26. The 
terms of the certificate do not expressly refer to any amount as 
interest. A's certificate of deposit is an obligation to which section 
1232 and this paragraph apply. A shall include the ratable portion of 
original issue discount in gross income for 1971 as determined under 
section 1232(a)(3). Thus, if A holds the certificate of deposit for the 
full calendar year 1971, the amount to be included in A's gross income 
for 1971 is $676.45, that is, \12/60\ months, multiplied by the excess 
of the stated redemption price ($13,382.26) over the issue price 
($10,000).
    Example 2. Assume the same facts as in example (1), except that the 
certificate of deposit provides for payment upon redemption at December 
31, 1975, of an amount equal to ``$10,000, plus 6 percent compound 
interest from January 1, 1971, to December 31, 1975.'' Thus, the total 
amount payable upon redemption in both example (1) and this example is 
$13,382.26. The certificate of deposit is an obligation to which section 
1232 and this paragraph apply and, since the substance of the deposit 
arrangement is identical to that contained in example (1), A must 
include the same amount in gross income.
    Example 3. Assume the same facts as in example (1), except that the 
certificate provides for the payment of interest in the

[[Page 302]]

amount of $200 on December 31, of each year and $2,000 plus $10,000 (the 
original amount) payable upon redemption at December 31, 1975. Thus, if 
A holds the certificate of deposit for the full calendar year 1971, A 
must include in his gross income for 1971 the $200 interest payable on 
December 31, 1971, and $400 of original issue discount, that is, \12/60\ 
months multiplied by the excess of the stated redemption price ($12,000) 
over the issue price ($10,000).
    Example 4. B is a cash method taxpayer who uses the calendar year as 
his taxable year. On January 1, 1971, B purchases a 4-year savings 
certificate from the Y Building and Loan Corporation for $4,000, 
redeemable on December 31, 1974, for $5,000. On December 31, 1973, Y 
redeems the certificate for $4,660. Under section 1232(a)(3), B included 
$250 of original issue discount in his gross income for 1971, $250 for 
1972, and includes $250 in his gross income for 1973 for a total of 
$750. Since the excess of (i) the amount received upon the redemption, 
$4,660, over (ii) the issue price, $4,000, or $660, is lower than the 
total amount of original issue discount ($750) included in B's gross 
income for the period he held the certificate by $90, the $90 will be 
treated under subparagraph (2) of this paragraph as a deduction in 
computing adjusted gross income, and accordingly, will decrease the 
basis of his certificate by such amount. B has no gain or loss upon the 
redemption, as determined in accordance with the following computation:

Adjusted basis January 1, 1973..............................      $4,500
Increase under section 1232(a)(3)(E)........................         250
                                                             -----------
    Subtotal................................................       4,750
Decrease under subparagraph (b)(2) of this paragraph........          90
                                                             -----------
Basis upon redemption.......................................       4,660
Amount realized upon redemption.............................       4,660
                                                             -----------
    Gain or loss............................................           0
 

    Example 5. On January 1, 1971, C, a cash method taxpayer who uses 
the calendar year as his taxable year, opens a savings account in Z bank 
with a $10,000 deposit. Under the terms of the account, interest is made 
available semiannually at 6 percent annual interest, compounded 
semiannually. Since all of the interest on C's account in Z Bank is made 
available semiannually, the stated redemption price at maturity under 
paragraph (b)(1)(iii)(a) of Sec. 1.1232-3 equals the issue price, and, 
therefore, no original issue discount is reportable by C under section 
1232(a)(3). However, C must include the sum of $300 (i.e., \1/2\ x 6% x 
$10,000) plus $309 (i.e., \1/2\ x 6% x $10,300) or $609, of interest 
made available during 1971 in his gross income for 1971.
    Example 6. (i) D is a cash method taxpayer who uses the calendar 
year as his taxable year. On January 1, 1971, D purchases a $10,000 
deferred income certificate from M Bank. Under the terms of the 
certificate, interest accrues at 6 percent per annum, compounded 
quarterly. The period of the account is 10 years. In addition, the 
holder is permitted to withdraw the entire amount of the purchase price 
at any time (but not interest prior to the expiration of the 10 year 
term), and upon such a withdrawal of the purchase price, no further 
interest accrues. If the certificate is held to maturity, the issue 
price plus accrued interest will aggregate $18,140.18.
    (ii) In respect of the certificate, the original issue discount is 
$8,140.18, determined by subtracting the issue price of the certificate 
($10,000) from the stated redemption price at maturity ($18,140.18). 
Thus, under section 1232(a)(3) the ratable monthly portion of original 
issue discount is $67.835 (i.e., \1/20\ months, multiplied by 
$8,140.18). Under section 1232(a)(3), D includes $814.02 (i.e., 12 
months, multiplied by $67.835) in his gross income for each calendar 
year the certificate remains outstanding and under section 1232(a)(3)(E) 
increases his basis by that amount. Thus, on December 31, 1975, D's 
basis for the certificate is $14,070.10 (i.e., issue price, $10,000, 
increased by product of $814.02x5 years).
    (iii) On December 31, 1975, D withdraws the $10,000. Under the terms 
of the certificate $3,468.55 cannot be withdrawn until December 31, 
1980. Under the provisions of subparagraph (2)(iii) of this paragraph, 
the $10,000 partial redemption shall be treated as follows:

(1) Adjusted basis of obligation at time of partial           $14,070.10
 redemption.................................................
(2) Amount paid upon redemption.............................   10,000.00
                                                             -----------
(3) Adjusted basis of unredeemed portion (line (1) less line    4,070.10
 (2)).......................................................
(4) Amount to be paid for unredeemed portion at maturity        3,468.55
 (December 31, 1980)........................................
                                                             -----------
(5) Adjustment in computing adjusted gross income (excess of      601.55
 line (3) over line (4))....................................
 


Since the adjusted basis of the unredeemed portion exceeds the amount to 
be received for the unredeemed portion at maturity, D is allowed a 
deduction, in computing adjusted gross income, of $601.25 in 1975 and no 
further original issue discount is includible as interest in his gross 
income. In addition, D will decrease his basis in the unredeemed portion 
by $601.55, the amount of such adjustment, from $4,070.10 to $3,468.55.
    Example 7. E is a cash method taxpayer who uses the calendar year as 
his taxable year. On January 1, 1971, E purchases a $10,000 ``Bonus 
Savings Certificate'' from N Building and Loan Corporation. Under the 
terms of the certificate, interest is payable at 5 percent per annum, 
compounded quarterly, and the period of the account is 3 years. In 
addition, the certificate provides that if the holder makes no 
withdrawals of

[[Page 303]]

principal or interest during the term of the certificate, a bonus 
payment equal to 5 percent of the purchase price of the certificate will 
be paid to the holder of the certificate at maturity. Thus, the amount 
of the bonus payment is $500 (i.e., 5 percent multiplied by $10,000). 
Since the 5 percent annual interest is payable quarterly, the amount of 
such interest is not included in determining the stated redemption price 
at maturity under paragraph (b)(1)(iii) of Sec. 1.1232-3. However, 
since the bonus payment is only payable at maturity, the amount of such 
bonus is included as part of the stated redemption price at maturity. 
Thus, the stated redemption price at maturity equals $10,500 (purchase 
price, $10,000, plus bonus payment $500). Accordingly, the original 
issue discount attributable to such certificate equals $500 (stated 
redemption price at maturity. $10,500, minus issue price, $10,000). 
Therefore, E must include as interest $166.67 (i.e., \12/36\ months, 
multiplied by the original issue discount, $500) in his gross income for 
each taxable year he holds the certificate.

    (4) Renewable certificates of deposit--(i) In general. The renewal 
of a certificate of deposit shall be treated as a purchase of the 
certificate on the date the renewal period begins regardless of any 
requirement pursuant to the terms of the certificate that the holder 
give notice of an intention to renew or not to renew. Thus, for example, 
in the case of a certificate of deposit for which a renewal period 
begins after December 31, 1970, such renewal shall be treated as a 
purchase after such date whether or not the initial period began before 
such date.
    (ii) Computation. For purposes of computing the amount of original 
issue discount to be ratably included as interest in gross income under 
section 1232(a)(3) in respect of a renewable certificate of deposit for 
the initial period or any renewal period, the following rules apply:
    (a) The issue price on the date any renewal period begins is 
considered to be in the case of a certificate of deposit initially 
purchased:
    (1) After December 31, 1970, the adjusted basis of the certificate 
on the date such period begins,
    (2) Before January 1, 1971, the amount the adjusted basis would have 
been on the date such period begins had the holder included all amounts 
of original issue discount as interest in gross income that would have 
been includible if section 1232(a)(3) had applied to the certificate 
from the date of original purchase.

Thus, if under the terms of the certificate, no amount is forfeited upon 
a failure to renew, then the issue price on the date any renewal period 
begins is considered to be the amount which would have been received by 
the holder on such date had it not been renewed.
    (b) The date of original issue for any renewal period shall be 
considered to be the date it begins.
    (c) The date of maturity for the initial period or any renewal 
period shall be considered to be the date it ends.
    (d) The stated redemption price at maturity for the initial period 
or any renewal period shall be considered to be the maximum amount which 
would be received at the end of any such period, without regard to any 
reduction resulting from withdrawal prior to maturity or failure to 
renew at any renewal date.
    (iii) Application of 1-year rule. For purposes of paragraph (b)(2) 
of this section (relating to nonapplication of section 1232(a)(3) to any 
obligation having a term of 1 year or less), the period between the date 
of original issue (as defined in paragraph (b)(3) of Sec. 1.1232-3) of 
a renewable certificate of deposit and its stated maturity date shall 
include all renewal periods with respect to which, under the terms of 
the certificate, the holder may either take action or refrain from 
taking action which would prevent the actual or constructive receipt of 
any interest on such certificate until the expiration of any such 
renewal period whether or not the original date of issue is prior to 
January 1, 1971.
    (iv) Example. The provisions of this subparagraph may be illustrated 
by the following example:

    Example: (a) On May 1, 1969, A purchases a 2-year renewable 
certificate of deposit from M bank, a corporation, for $10,000. Interest 
will be compounded semiannually at 6 percent on May 1 and November 1. 
The terms of the certificate provide that such certificate will be 
automatically renewed on the anniversary date every 2 years if the 
holder does not notify M of an intention not to renew prior to 60 days 
before the particular anniversary date. Thus, on May 1, 1971, and May 1, 
1973, the certificate may be redeemed for $11,255.09 and $12,667.60, 
respectively. However, in no event shall the initial period and

[[Page 304]]

the renewal periods exceed 10 years. A does not notify M of an intention 
not to renew by March 1, 1971, and the certificate is automatically 
renewed for an additional 2-year period on May 1, 1971.
    (b) Under subdivision (i) of this subparagraph, the May 1, 1971, 
renewal shall be treated as the purchase of a certificate of deposit on 
that date, i.e., after December 31, 1970. Under subdivision (ii) of this 
subparagraph, the issue price is considered to be $11,255.09 and the 
date of maturity is considered to be May 1, 1973. Since the stated 
redemption price at maturity is $12,667.60. A must include $58.85 as 
interest in gross income for each month he holds the certificate during 
the renewal period beginning May 1, 1971, computed as follows:

Original issue discount (stated redemption price,              $1,412.51
 $12,667.60, minus issue price, $11,255.09).................
Divided by: Number of months from renewal to maturity date..   24 months
                                                             -----------
Ratable monthly portion.....................................      $58.85
 

    (5) Time deposit open account arrangements--(i) In general. The term 
time deposit open account arrangement means an arrangement with a fixed 
maturity date where deposits may be made from time to time and 
ordinarily no interest will be paid or constructively received until 
such fixed maturity date. All deposits pursuant to such an arrangement 
constitute parts of a single obligation. The amount of original issue 
discount to be ratably included as interest in the gross income of the 
depositor for any taxable year shall be the sum of the amounts 
separately computed for each deposit. For this purpose, the issue price 
for a deposit is the amount thereof and the stated redemption price at 
maturity is computed under paragraph (b)(1)(iii)(d) of Sec. 1.1232-3.
    (ii) Obligations redeemed before maturity. In the event of a partial 
redemption of a time deposit open account before maturity, the following 
rules, in addition to subparagraph (2) of this paragraph, shall apply:
    (a) If, pursuant to the terms of the withdrawal, the amount received 
by the depositor is determined with reference to the principal amount of 
a specific deposit and interest earned from the date of such deposit, 
then such terms shall control for the purpose of determining which 
deposit was withdrawn.
    (b) If (a) of this subdivision (ii) does not apply, then the 
withdrawal shall be deemed to be of specific deposits together with 
interest earned from the date of such deposits, on a first-in, first-out 
basis.
    (iii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. (i) F is a cash method taxpayer who uses the calendar 
year as his taxable year. On December 1, 1970, F enters into a 5-year 
deposit open account arrangement with M Savings and Loan Corp. The terms 
of the arrangement provide that F will deposit $100 each month for a 
period of 5 years, and that interest will be compounded semiannually (on 
June 1 and December 1) at 6 percent, but will be paid only at maturity. 
Thus, assuming F makes deposits of $100 on the first of each month 
beginning with December 1, 1970, the account will have a stated 
redemption price of $6,998.20 at maturity on December 1, 1975. Since, 
however, section 1232 applies only to deposits made after December 31, 
1970 (see paragraph (d) of Sec. 1.1232-1), the $34.39 of compound 
interest to be earned on the first deposit of $100 over the term of the 
arrangement will not be subject to the ratable inclusion rules of 
section 1232(a)(3). F must include such $34.39 of interest in his gross 
income on December 1, 1975, the date it is paid.
    (ii) For 1971, F must include $44.19 of original issue discount as 
interest in gross income, to be computed as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                             (1)                                   (2)           (3)             (4)              (5)             (6)           (7)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Redemption    Original issue   Ratable monthly    Months on   1971 original
                     Date of $100 deposit                       Months to     price at        discount      portion (Col.4/   deposit in  issue discount
                                                                maturity      maturity      (Col.3-$100)         Col.2)          1971      (Col.5xCol.6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-1-71.......................................................          59         $133.73          $33.73            $0.5717          12           $6.86
2-1-71.......................................................          58          133.07           33.07              .5702          11            6.27
3-1-71.......................................................          57          132.42           32.42              .5688          10            5.69
4-1-71.......................................................          56          131.77           31.77              .5673           9            5.11
5-1-71.......................................................          55          131.12           31.12              .5658           8            4.53
6-1-71.......................................................          54          130.48           30.48              .5644           7            3.95
7-1-71.......................................................          53          129.84           29.84              .5630           6            3.38
8-1-71.......................................................          52          129.20           29.20              .5615           5            2.81
9-1-71.......................................................          51          128.56           28.56              .5600           4            2.24
10-1-71......................................................          50          127.93           27.93              .5586           3            1.68
11-1-71......................................................          49          127.30           27.30              .5571           2            1.11

[[Page 305]]

 
12-1-71......................................................          48          126.68           26.68              .5558           1            0.56
                                                              -------------
    Total original issue discount to be included as interest in F's gross income for 1971...............................................           44.19
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 2. (i) G is a cash method taxpayer who uses the calendar 
year as his taxable year. On February 1, 1971, G enters into a 4-year 
deposit open account arrangement with T Bank, a corporation. The terms 
of the deposit arrangement provide that G may deposit any amount from 
time to time in multiples of $50 for a period of 4 years. The terms also 
provide that G may not redeem any amount until February 1, 1975, except 
in an emergency as defined in, and subject to the qualifications 
provided by, Regulation Q of the Board of Governors of the Federal 
Reserve System. See 12 CFR 217.4(d). Interest will be compounded 
semiannually (on February 1 and August 1) at 6 percent, providing there 
is no redemption prior to February 1, 1975. However, if there is a 
redemption prior to such date, interest will be compounded semiannually 
at 5\1/2\ percent.
    (ii) The schedule of deposits made by G pursuant to the arrangement, 
and computation of ratable monthly portion for each deposit, is set 
forth in the table below:

----------------------------------------------------------------------------------------------------------------
                   (1)                        (2)         (3)         (4)            (5)              (6)
----------------------------------------------------------------------------------------------------------------
                                                                   Redemption  Original issue   Ratable monthly
             Date of deposit               Months to   Amount of    price at      discount      portion (Col.5/
                                           maturity     deposit     maturity    (Col.4-Col.3)        Col.2)
----------------------------------------------------------------------------------------------------------------
2-1-71..................................          48         100      $126.68          $26.68             0.5558
6-1-71..................................          44         200       248.42           48.42             1.1005
12-1-71.................................          38         500       602.95          102.95             2.7092
2-1-72..................................          36         800       955.24          155.24             4.3122
3-1-72..................................          35         800       950.56          150.56             4.3017
7-1-72..................................          31         600       699.00           99.00             3.1935
8-1-72..................................          30         250       289.82           39.82             1.3273
----------------------------------------------------------------------------------------------------------------

    (iii) With respect to amounts on deposit pursuant to the 
arrangement, the amounts of original issue discount G must include as 
interest in his gross income for 1971 and 1972 are computed in the table 
below:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                              (1)                                    (2)             (3)                (4)                (5)                (6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Ratable                         1971 original                         1972 original
                        Date of deposit                            monthly    Months on deposit    issue discount   Months on deposit    issue discount
                                                                   portion         in 1971         (Col.2x Col.3)        in 1972         (Col.2x Col.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2-1-71.........................................................      $0.5558                 11              $6.11                 12              $6.67
6-1-71.........................................................       1.1005                  7               7.70                 12              13.21
12-1-71........................................................       2.7092                  1               2.71                 12              32.51
2-1-72.........................................................       4.3122  .................  .................                 11              47.43
3-1-72.........................................................       4.3017  .................  .................                 10              43.02
7-1-72.........................................................       3.1935  .................  .................                  6              19.16
8-1-72.........................................................       1.3273  .................  .................                  5               6.64
                                                                -------------                   --------------------
    Total original issue discount includible as interest in gross income for taxable year......              16.52  .................             168.64
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (6) Certain contingent interest arrangement--(i) In general. If 
under the terms of a deposit arrangement:
    (a) The holder cannot receive payment of any interest or 
constructively receive any interest prior to a fixed maturity date,
    (b) Interest is earned at a guaranteed minimum rate of compound 
interest,
    (c) Additional contingent interest may be earned for any year at a 
rate not to exceed one percentage point above such guaranteed minimum 
rate, and

[[Page 306]]

    (d) Any additional contingent interest is credited at least annually 
to the depositor's account,

Then any contingent interest credited to the depositor shall be treated 
as creating a separate obligation subject to the rules of subdivision 
(ii) of this subparagraph.
    (ii) Computation. For purposes of computing the original issue 
discount to be included as interest in the depositor's gross income 
under section 1232(a)(3) with respect to such separate obligation:
    (a) The issue price shall be zero,
    (b) The date of original issue shall be the date on which the 
contingent interest is credited to the depositor's account and begins to 
earn interest,
    (c) The date of maturity shall be the fixed maturity date of the 
deposit, and
    (d) The stated redemption price at maturity is the sum of the amount 
of such contingent interest plus any interest to be earned thereon at 
the guaranteed minimum rate of compound interest between such dates of 
original issue and maturity.
    (7) Contingent interest arrangements other than those described in 
subparagraph (6)--(i) In general. If under the terms of a deposit 
arrangement, contingent interest may be earned and credited to a 
depositor's account, but is neither actually or constructively received 
before a fixed maturity date nor treated under subparagraph (6)(i) of 
this paragraph as creating a separate obligation, then the redemption 
price shall include the amount which would be credited to such account 
assuming the issuer, during the term of such account, credits contingent 
interest at the greater of the rate:
    (a) Last credited on a similar account, or
    (b) Equal to the average rate credited for the preceding 5 calendar 
years on a similar account.
    (ii) Adjustments for additional interest. The rate taken into 
account under this subparagraph in computing the redemption price shall 
be treated as the guaranteed minimum rate for purposes of applying 
subparagraph (6) of this paragraph in the event the rate at which 
contingent interest is actually credited to the depositor's account 
exceeds such rate previously taken into account. If for any period the 
actual rate at which contingent interest is credited to the account 
exceeds by more than 1 percentage point the rate for the previous period 
taken into account under this subparagraph in computing the redemption 
price, a new computation shall be made to determine the ratable monthly 
portion of original issue discount to be included as interest in the 
gross income of the depositor over the remaining term of the account. 
For purposes of such computation, the date that interest is first so 
credited to the account shall be treated as the issue date, the adjusted 
basis of the account on such date shall be the issue price, and the 
redemption price shall equal the amount actually on deposit in the 
account on such date plus the amount which would be credited to such 
account assuming the issuer, during the remaining term of such account, 
continues to credit contingent interest at the new rate.
    (iii) Adjustment for reduced interest. If for any period the actual 
rate of interest at which contingent interest is credited to the 
depositor's account is less than the rate for the previous period taken 
into account under this subparagraph in computing the redemption price, 
the difference between the amount of interest which would have been 
credited to the account at the rate for such previous period and the 
amount actually credited shall be allowed as a deduction against the 
amount of original issue discount with respect to such account required 
to be included in the gross income of the depositor. If an account is 
redeemed for a price less than the adjusted basis of the account, the 
depositor shall be allowed as a deduction, in computing adjusted gross 
income, the amount of the original issue discount he included in gross 
income but did not receive.
    (f) Application of section 1232(a)(3) to face-amount certificates--
(1) In general. Under paragraph (c)(3) of Sec. 1.1232-1, the provisions 
of section 1232(a)(3) and this section apply in the case of a face-
amount certificate issued after December 31, 1975 (other than such a 
certificate issued pursuant to a written commitment which was binding on 
such date and at all times thereafter).

[[Page 307]]

    (2) Relationship with paragraph (e) of this section. Determinations 
with regard to the inclusion as interest of original issue discount on, 
and certain adjustments with respect to, face-amount certificates to 
which this section applies shall be made in a manner consistent with the 
rules of paragraph (e) of this section (relating to the application of 
section 1232 to certain deposits in financial institutions and similar 
arrangements). Thus, for example, if a face-amount certificate is 
redeemed before maturity, the holder shall be allowed a deduction in 
computing adjusted gross income computed in a manner consistent with the 
rules of paragraph (e)(2) of this section. For a further example, if 
under the terms of a face-amount certificate, the issuer may grant 
additional credits to be paid at a fixed maturity date, computations 
with respect to such additional credits shall be made in a manner 
consistent with the rules of paragraphs (e) (6) and (7) of this section 
(as applicable) relating to contingent interest arrangements.

[T.D. 7154, 36 FR 25005, Dec. 28, 1971; 37 FR 527, Jan. 13, 1972, as 
amended by T.D. 7213, 37 FR 21993, Oct. 18, 1972; 37 FR 22863, Oct. 26, 
1972; T.D. 7311, 39 FR 11880, Apr. 1, 1974; T.D. 7365, 40 FR 27936, July 
2, 1975]



Sec. 1.1232-4  Obligations with excess coupons detached.

    Section 1232(c) provides that if an obligation which is issued at 
any time with interest coupons:
    (a) Is purchased after August 16, 1954, and before January 1, 1958, 
and the purchaser does not receive all the coupons which first become 
payable more than 12 months after the date of the purchase, or
    (b) Is purchased after December 31, 1957, and the purchaser does not 
receive all the coupons which first become payable after the date of 
purchase,

Any gain on the later sale or other disposition of the obligation by the 
purchaser (or by a transferee of the purchaser whose basis is determined 
by reference to the basis of the obligation in the hands of the 
purchaser) shall be treated as ordinary income to the extent that the 
fair market value of the obligation (determined as of the time of the 
purchase) with coupons attached exceeds the purchase price. If both the 
preceding sentence and section 1232(a)(2) apply with respect to the gain 
realized on the retirement or other disposition of an obligation, then 
section 1232(a)(2) shall apply only with respect to that part of the 
gain to which the preceding sentence does not apply. For example, a $100 
bond which sells at $90 with all its coupons attached is purchased by A 
for $80 with 3 years' coupons detached. Three years later, A sells the 
bond for $92. The first $10 of the $12 profit is taxable as ordinary 
income. The remaining $2 gain is taxable either as ordinary income or as 
long-term capital gain, depending upon the application of section 
1232(a)(2). Pursuant to section 7851(a)(1)(C), the regulations 
prescribed in this section shall also apply to taxable years beginning 
before January 1, 1954, and ending after December 31, 1953, although 
such years are subject to the Internal Revenue Code of 1939.

[T.D. 7154, 36 FR 25009, Dec. 28, 1971]



Sec. 1.1233-1  Gains and losses from short sales.

    (a) General. (1) For income tax purposes, a short sale is not deemed 
to be consummated until delivery of property to close the short sale. 
Whether the recognized gain or loss from a short sale is capital gain or 
loss or ordinary gain or loss depends upon whether the property so 
delivered constitutes a capital asset in the hands of the taxpayer.
    (2) Thus, if a dealer in securities makes a short sale of X 
Corporation stock, ordinary gain or loss results on closing of the short 
sale if the stock used to close the short sale was stock which he held 
primarily for sale to customers in the ordinary course of his trade or 
business. If the stock used to close the short sale was a capital asset 
in his hands, or if the taxpayer in this example was not a dealer, a 
capital gain or loss would result.
    (3) Generally, the period for which a taxpayer holds property 
delivered to close a short sale determines whether long-term or short-
term capital gain or loss results.
    (4) Thus, if a taxpayer makes a short sale of shares of stock and 
covers the short sale by purchasing and delivering shares which he held 
for not more than

[[Page 308]]

1 year (6 months for taxable years beginning before 1977; 9 months for 
taxable years beginning in 1977), the recognized gain or loss would be 
considered short-term capital gain or loss. If the short sale is made 
through a broker and the broker borrows property to make a delivery, the 
short sale is not deemed to be consummated until the obligation of the 
seller created by the short sale is finally discharged by delivery of 
property to the broker to replace the property borrowed by the broker.
    (5) For rules for determining the date of sale for purposes of 
applying under section 1091 the 61-day period applicable to a short sale 
of stock or securities at a loss, see paragraph (g) of Sec. 1.1091-1.
    (b) Hedging transactions. Under section 1233(g), the provisions of 
section 1233 and this section shall not apply to any bona fide hedging 
transaction in commodity futures entered into by flour millers, 
producers of cloth, operators of grain elevators, etc., for the purpose 
of their business. Gain or loss from a short sale of commodity futures 
which does not qualify as a hedging transaction shall be considered gain 
or loss from the sale or exchange of a capital asset if the commodity 
future used to close the short sale constitutes a capital asset in the 
hands of the taxpayer as explained in paragraph (a) of this section.
    (c) Special short sales--(1) General. Section 1233 provides rules as 
to the tax consequences of a short sale of property if gain or loss from 
the short sale is considered as gain or loss from the sale or exchange 
of a capital asset under section 1233(a) and paragraph (a) of this 
section and if, at the time of the short sale or on or before the date 
of the closing of the short sale, the taxpayer holds property 
substantially identical to that sold short. The term property is defined 
for purposes of such rules to include only stocks and securities 
(including stocks and securities dealt with on a when issued basis) and 
commodity futures, which are capital assets in the hands of the 
taxpayer. Certain restrictions on the application of the section to 
commodity futures are provided in section 1233(e) and paragraph (d)(2) 
of this section. Section 1233(f) contains special provisions governing 
the operation of rule (2) in subparagraph (2) of this paragraph in the 
case of a purchase and short sale of stock (as defined in subparagraph 
(3) qualifying as an arbitrage operation. See paragraph (f) of this 
section for detailed rules relating to arbitrage operations in stocks 
and securities.
    (2) Treatment of special short sales. The first two rules, which are 
set forth in section 1233(b), are applicable whenever property 
substantially identical to that sold short has been held by the taxpayer 
on the date of the short sale for not more than 1 year (6 months for 
taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977) (determined without regard to rule (2), contained in 
this subparagraph, relating to the holding period) or is acquired by him 
after the short sale and on or before the date of the closing thereof. 
These rules are:

    Rule (1). Any gain upon the closing of such short sale shall be 
considered as a gain upon the sale or exchange of a capital asset held 
for not more than 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable years beginning in 1977) (notwithstanding the 
period of time any property used to close such short sale has been 
held); and
    Rule (2). The holding period of such substantially identical 
property shall be considered to begin (notwithstanding the provisions of 
section 1223) on the date of the closing of such short sale or on the 
date of a sale, gift, or other disposition of such property, whichever 
date occurs first.

    (3) Options to sell. For the purpose of rule (1) and rule (2) in 
subparagraph (2) of this paragraph, the acquisition of an option to sell 
property at a fixed price shall be considered a short sale, and the 
exercise or failure to exercise such option shall be considered as a 
closing of such short sale, except that any option to sell property at a 
fixed price acquired on or after August 17, 1954 (the day after 
enactment of the Internal Revenue Code of 1954), shall not be considered 
a short sale and the exercise or failure to exercise such option shall 
not be considered as the closing of a short sale provided that the 
option and property identified as intended to be used in its exercise 
are acquired on the same date. This exception shall not apply, if the 
option is exercised, unless

[[Page 309]]

it is exercised by the sale of the property so identified. In the case 
of any option not exercised which falls within this exception, the cost 
of such option shall be added to the basis of the property with which 
such option is identified. If the option itself does not specifically 
identify the property intended to be used in exercising the option, then 
the identification of such property shall be made by appropriate entries 
in the taxpayer's records within 15 days after the date such property is 
acquired or before November 17, 1956, whichever expiration date later 
occurs.
    (4) Treatment of losses. The third rule, which is set forth in 
section 1233(d), is applicable whenever property substantially identical 
to that sold short has been held by the taxpayer on the date of the 
short sale for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977). This rule 
is:

    Rule (3). Any loss upon the closing of such short sale shall be 
considered as a loss upon the sale or exchange of a capital asset held 
for more than 1 year (6 months for taxable years beginning before 1977; 
9 months for taxable years beginning in 1977), not withstanding the 
period of time any property used to close such short sale has been held. 
For the purpose of this rule, the acquisition of an option to sell 
property at a fixed price is not considered a short sale, and the 
exercise or failure to exercise such option is not considered as a 
closing of a short sale.

    (5) Application of rules. Rules (1) and (3) contained in 
subparagraphs (2) and (4) of this paragraph do not apply to the gain or 
loss attributable to so much of the property sold short as exceeds in 
quantity the substantially identical property referred to in section 
1233 (b) and (d), respectively. Except as otherwise provided in section 
1233(f), rule (2) in subparagraph (2) of this paragraph applies to the 
substantially identical property referred to in section 1233(b) in the 
order of the dates of the acquisition of such property, but only to so 
much of such property as does not exceed the quantity sold short. If 
property substantially identical to that sold short has been held by the 
taxpayer on the date of the short sale for not more than 1 year (6 
months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977), or is acquired by him after the short sale and 
on or before the date of the closing thereof, and if property 
substantially identical to that sold short has been held by the taxpayer 
on the date of the short sale for more than 1 year (6 months for taxable 
years beginning before 1977; 9 months for taxable years beginning in 
1977), all three rules are applicable.
    (6) Examples. The following examples illustrate the application of 
these rules to short sales of stock in the case of a taxpayer who makes 
his return on the basis of the calendar year:

    Example 1. A buys 100 shares of X stock at $10 per share on February 
1, 1955, sells short 100 shares of X stock at $16 per share on July 1, 
1955, and closes the short sale on August 2, 1955, by delivering the 100 
shares of X stock purchased on February 1, 1955, to the lender of the 
stock used to effect the short sale. Since 100 shares of X stock had 
been held by A on the date of the short sale for not more than 6 months, 
the gain of $600 realized upon the closing of the short sale is, by 
application of rule (1) in subparagraph (2) of this paragraph, a short-
term capital gain.
    Example 2. A buys 100 shares of X stock at $10 per share on February 
1, 1955, sells short 100 shares of X stock at $16 per share on July 1, 
1955, closes the short sale on August 1, 1955, with 100 shares of X 
stock purchased on that date at $18 per share, and on August 2, 1955, 
sells at $18 per share the 100 shares of X stock purchased on February 
1, 1955. The $200 loss sustained upon the closing of the short sale is a 
short-term capital loss to which section 1233(d) has no application. By 
application of rule (2) in subparagraph (2) of this paragraph, however, 
the holding period of the 100 shares of X stock purchased on February 1, 
1955, and sold on August 2, 1955 is considered to begin on August 1, 
1955, the date of the closing of the short sale. The $800 gain realized 
upon the sale of such stock is, therefore, a short-term capital gain.
    Example 3. A buys 100 shares of X stock at $10 per share on February 
1, 1955, sells short 100 shares of X stock at $16 per share on September 
1, 1955, sells on October 1, 1955, at $18 per share the 100 shares of X 
stock purchased on February 1, 1955, and closes the short sale on 
October 1, 1955, with 100 shares of X stock purchased on that date at 
$18 per share. The $800 gain realized upon the sale of the 100 shares of 
X stock purchased on February 1, 1955, is a long-term capital gain to 
which section 1233(b) has no application. Since A had held 100 shares of 
X stock on the date of the short sale for more than 6 months, the $200 
loss sustained upon the closing of the short sale is, by application of 
rule (3) in subparagraph (4) of this paragraph, a long-term capital 
loss. If, instead of purchasing 100 shares

[[Page 310]]

of X stock on October 1, 1955, A closed the short sale with the 100 
shares of stock purchased on February 1, 1955, the $600 gain realized on 
the closing of the short sale would be a long-term capital gain to which 
section 1233(b) has no application.
    Example 4. A sells short 100 shares of X stock at $16 per share on 
February 1, 1955. He buys 250 shares of X stock on March 1, 1955, at $10 
per share and holds the latter stock until September 2, 1955 (more than 
6 months), at which time, 100 shares of the 250 shares of X stock are 
delivered to close the short sale made on February 1, 1955. Since 
substantially identical property was acquired by A after the short sale 
and before it was closed, the $600 gain realized on the closing of the 
short sale is, by application of rule (1) in subparagraph (2) of this 
paragraph, a short-term capital gain. The holding period of the 
remaining 150 shares of X stock is not affected by section 1233 since 
this amount of the substantially identical property exceeds the quantity 
of the property sold short.
    Example 5. A buys 100 shares of X stock at $10 per share on February 
1, 1955, buys an additional 100 shares of X stock at $20 per share on 
July 1, 1955, sells short 100 shares of X stock at $30 per share on 
September 1, 1955, and closes the short sale on February 1, 1956, by 
delivering the 100 shares of X stock purchased on February 1, 1955, to 
the lender of the stock used to effect the short sale. Since 100 shares 
of X stock had been held by A on the date of the short sale for not more 
than 6 months, the gain of $2,000 realized upon the closing of the short 
sale is, by application of rule (1) in subparagraph (2) of this 
paragraph, a short-term capital gain and the holding period of the 100 
shares of X stock purchased on July 1, 1955, is considered, by 
application of rule (2) in subparagraph (2) of this paragraph to begin 
on February 1, 1956, the date of the closing of the short sale. If, 
however, the 100 shares of X stock purchased on July 1, 1955, had been 
used by A to close the short sale, then, since 100 shares of X stock had 
been held by A on the date of the short sale for not more than 6 months, 
the gain of $1,000 realized upon the closing of the short sale would be, 
by application of rule (1) in subparagraph (2) of this paragraph, a 
short-term capital gain, but the holding period of the 100 shares of X 
stock purchased on February 1, 1955, would not be affected by section 
1233. If, on the other hand, A purchased an additional 100 shares of X 
stock at $40 per share on February 1, 1956, and used such shares to 
close the short sale at that time, then, since 100 shares of X stock had 
been held by A on the date of the short sale for more than 6 months, the 
loss of $1,000 sustained upon the closing of the short sale would be, by 
application of rule (3) in subparagraph (4) of this paragraph, a long-
term capital loss, and since 100 shares of X stock had been held by A on 
the date of the short sale for not more than 6 months, the holding 
period of the 100 shares of X stock purchased on July 1, 1955, would be 
considered, by application of rule (2) in subparagraph (2) of this 
paragraph, to begin on February 1, 1956, but the holding period of the 
100 shares of X stock purchased on February 1, 1955, would not be 
affected by section 1233.
    Example 6. A buys 100 shares of X preferred stock at $10 per share 
on February 1, 1955. On July 1, 1955, he enters into a contract to sell 
100 shares of XY common stock at $16 per share when, as, and if issued 
pursuant to a particular plan of reorganization. On August 2, 1955, he 
receives 100 shares of XY common stock in exchange for the 100 shares of 
X preferred stock purchased on February 1, 1955, and delivers such 
common shares in performance of his July 1, 1955, contract. Assume that 
the exchange of the X preferred stock for the XY common stock is a tax-
free exchange pursuant to section 354(a)(1), and that on the basis of 
all of the facts and circumstances existing on July 1, 1955, the when 
issued XY common stock is substantially identical to the X preferred 
stock. Since 100 shares of substantially identical property had been 
held by A for not more than 6 months on the date of entering into the 
July 1, 1955, contract of sale, the gain of $600 realized upon the 
closing of the contract of sale is, by application of rule (1) in 
subparagraph (2) of this paragraph, a short-term capital gain.

    (d) Other rules for the application of section 1233--(1) 
Substantially identical property. The term substantially identical 
property is to be applied according to the facts and circumstances in 
each case. In general, as applied to stocks or securities, the term has 
the same meaning as the term substantially identical stock or securities 
used in section 1091, relating to wash sales of stocks or securities. 
For certain restrictions on the term as applied to commodity futures see 
subparagraph (2) of this paragraph. Ordinarily, stocks or securities of 
one corporation are not considered substantially identical to stocks or 
securities of another corporation. In certain situations they may be 
substantially identical; for example, in the case of a reorganization 
the facts and circumstances may be such that the stocks and securities 
of predecessor and successor corporations are substantially identical 
property. Similarly, bonds or preferred stock of a corporation are not 
ordinarily considered substantially identical to the common

[[Page 311]]

stock of the same corporation. However, in certain situations, as, for 
example, where the preferred stock or bonds are convertible into common 
stock of the same corporation, the relative values, price changes, and 
other circumstances may be such as to make such bonds or preferred stock 
and the common stock substantially identical property. Similarly, 
depending on the facts and circumstances, the term may apply to the 
stocks and securities to be received in a corporate reorganization or 
recapitalization, traded in on a when issued basis, as compared with the 
stocks or securities to be exchanged in such reorganization or 
recapitalization.
    (2) Commodity futures. (i) As provided in section 1233(e)(2)(B), in 
the case of futures transactions in any commodity on or subject to the 
rules of a board of trade or commodity exchange, a commodity future 
requiring delivery in one calendar month shall not be considered as 
property substantially identical to another commodity future requiring 
delivery in a different calendar month. For example, commodity futures 
in May wheat and July wheat are not considered, for the purpose of 
section 1233, substantially identical property. Similarly, futures in 
different commodities which are not generally through custom of the 
trade used as hedges for each other (such as corn and wheat, for 
example) are not considered substantially identical property. If 
commodity futures are otherwise substantially identical property, the 
mere fact that they were procured through different brokers will not 
remove them from the scope of the term substantially identical property. 
Commodity futures procured on different markets may come within the term 
substantially identical property depending upon the facts and 
circumstances in the case, with the historical similarity in the price 
movements in the two markets as the primary factor to be considered.
    (ii) Section 1233(e)(3), relating to so-called arbitrage 
transactions in commodity futures, provides that where a taxpayer enters 
into two commodity futures transactions on the same day, one requiring 
delivery by him in one market and the other requiring delivery to him of 
the same (or substantially identical) commodity in the same calendar 
month in a different market, and the taxpayer subsequently closes both 
such transactions on the same day, section 1233 shall have no 
application to so much of the commodity involved in either such 
transaction as does not exceed in quantity the commodity involved in the 
other. Section 1233(f), relating to arbitrage operations in stocks or 
securities, has no application to arbitrage transactions in commodity 
futures.
    (iii) The following example indicates the application of section 
1233 to a commodity futures transaction:

    Example: A, who makes his return on the basis of the calendar year, 
on February 1, 1955, enters into a contract through broker X to purchase 
10,000 bushels of December wheat on the Chicago market at $2 per bushel. 
On July 1, 1955, he enters into a contract through broker Y to sell 
10,000 bushels of December wheat on the Chicago market at $2.25 per 
bushel. On August 2, 1955, he closes both transactions at $2.50 per 
bushel. The $2,500 loss sustained on the closing of the short sale is a 
short-term capital loss to which section 1233(d) has no application. By 
application of rule (2) in paragraph (c)(2) of this section, however, 
the holding period of the futures contract entered into on February 1, 
1955, is considered to begin on August 2, 1955, the date of the closing 
of the short sale. The $5,000 gain realized upon the closing of such 
contract is, therefore, a short-term capital gain.

    (3) Husband and wife. Section 1233(e)(2)(C) provides that, in the 
case of a short sale of property by an individual, the term taxpayer in 
the application of subsections (b), (d), and (e) shall be read as 
taxpayer or his spouse. Thus, if the spouse of a taxpayer holds or 
acquires property substantially identical to that sold short by the 
taxpayer, and other conditions of subsections (b), (d), and (e) are met, 
then the rules set forth therein are applicable to the same extent as if 
the taxpayer held or acquired the substantially identical property. For 
this purpose, an individual who is legally separated from the taxpayer 
under a decree of divorce or of separate maintenance shall not be 
considered as the spouse of the taxpayer.
    (e) Special rule for short sales by dealers in securities under 
certain circumstances. In the case of a short sale of stock (as defined 
in subparagraph (3)

[[Page 312]]

of this paragraph) after December 31, 1957, by a dealer in securities, 
section 1233(e)(4)(A) provides that the holding period of substantially 
identical stock which he has held as an investment for not more than 1 
year (6 months for taxable years beginning before 1977; 9 months for 
taxable years beginning in 1977) shall be determined in accordance with 
section 1233(b)(2) unless such short sale is closed within 20 days of 
the date on which it was made. See rule (2) in paragraph (c)(2) of this 
section for the purpose of determining the holding period of such 
substantially identical stock. In addition, section 1233(e)(4)(B) 
provides that for the purpose of the special rule of section 
1233(e)(4)(A), the acquisition of an option to sell property at a fixed 
price shall be considered a short sale, and the exercise or failure to 
exercise such option shall be considered a closing of such short sale. 
For purposes of this paragraph:
    (1) Whether or not a taxpayer is a dealer in securities shall be 
determined in accordance with the meaning of the term for purposes of 
section 1236;
    (2) Whether or not stock is substantially identical with other 
property shall be determined in accordance with the provisions of 
paragraph (d)(1) of this section; and
    (3) The term stock means:
    (i) Any share or certificate of stock,
    (ii) Any bond or other evidence of indebtedness which is convertible 
into a share or certificate of stock, and
    (iii) Any evidence of an interest in, or right to subscribe to or 
purchase, any of the items described in subdivision (i) or (ii) of this 
subparagraph.
    (f) Arbitrage operations in stocks and securities and holding 
periods--(1) General rule. (i) In the case of a short sale entered into 
as part of an arbitrage operation, rule (2) of paragraph (c)(2) of this 
section shall apply first to substantially identical property acquired 
for arbitrage operations and held by the taxpayer at the close of 
business on the day of the short sale. The holding period of 
substantially identical property not acquired for arbitrage operations 
shall be affected only to the extent that the amount of property sold 
short exceeds the amount of substantially identical property acquired 
for arbitrage operations and held by the tapayer at the close of 
business on the day of the short sale.
    (ii) If the substantially identical property acquired for arbitrage 
operations is disposed of without closing the short sale so that a net 
short position in assets acquired for arbitrage operations is created, a 
short sale in the amount of such net short position will be deemed to 
have been made on the day such net short position is created. Rule (2) 
of paragraph (c)(2) of this section will then apply to substantially 
identical property not acquired for arbitrage operations to the same 
extent as if the taxpayer, on the day such net short position is 
created, sold short an amount equal to the amount of the net short 
position in a transaction not entered into as part of an arbitrage 
operation.
    (iii) The following examples illustrate the application of rule (2) 
of paragraph (c)(2) of this section to arbitrage operations:

    Example 1. On August 13, 1957, A buys 100 bonds of X Corporation for 
purposes other than arbitrage operations. The bonds are convertible at 
the option of the bondholders into common stock of X Corporation on the 
basis of one bond for one share of stock. On November 1, 1957, A sells 
short 100 shares of common stock of X Corporation in a transaction 
identified and intended to be part of an arbitrage operation and on the 
same day buys another 100 bonds of X Corporation in a transaction 
identified and intended to be part of the same arbitrage operation. The 
bonds acquired on both August 13, 1957, and November 1, 1957, are, on 
the basis of all the facts and circumstances, substantially identical to 
the common stock of X Corporation. On December 1, 1957, A closes the 
short sale with 100 shares of common stock of X Corporation acquired on 
that day. The holding period of the bonds acquired on November 1, by 
application of rule (2) of paragraph (c)(2) of this section, will be 
deemed to begin on December 1 and the holding period of the bonds 
acquired on August 13 will be unaffected. If, instead of purchasing the 
100 shares of common stock of X Corporation on December 1, 1957, A had 
converted the bonds acquired on November 1 into common stock and, on 
December 1, 1957, used the stock so acquired to close the short sale, 
rule (2) of paragraph (c)(2) of this section would similarly have no 
effect on the holding period of the bonds acquired on August 13.
    Example 2. Assume the same facts as in example (1), except that A, 
on December 1, sells

[[Page 313]]

the bonds acquired on November 1 (or converts such bonds into common 
stock and sells the stock), but does not close the short sale. The sale 
of the bonds (or stock) creates a net short position in assets acquired 
for arbitrage operations which is deemed to be a short sale made on 
December 1. Accordingly, the holding period of the bonds acquired on 
August 13 will, by application of rule (2) of paragraph (c)(2) of this 
section, begin on the date such short sale is closed or on the date of 
sale, gift, or other disposition of such bonds, whichever date occurs 
first.

    (2) Right to receive or acquire property. (i) For purposes of 
section 1233(f) (1) and (2) and subparagraph (1) of this paragraph, a 
taxpayer will be deemed to hold substantially identical property 
acquired for arbitrage operations at the close of any business day if, 
by virtue of the ownership of other property acquired for arbitrage 
operations (whether or not substantially identical) or because of any 
contract entered into by the taxpayer in an arbitrage operation, he then 
has the right to receive or acquire such substantially identical 
property.
    (ii) The application of section 1233(f)(3) and subdivision (i) of 
this subparagraph may be illustrated by the following example:

    Example: A acquires on August 13, 1957, 100 shares of common stock 
of X Corporation for purposes other than arbitrage operations. On 
November 1, A sells short, in a transaction identified and intended to 
be part of an arbitrage operation, 100 shares of X common stock. On the 
same day, in a transaction also identified and intended to be part of 
the same arbitrage operation, A contracts to purchase 100 shares of 
preferred stock of X. The preferred stock of X may be converted into 
common stock of X on the basis of one share of preferred stock for one 
share of common stock. The preferred stock is not actually delivered to 
A until November 3. Since A has contracted before the close of business 
on the date of the short sale, as part of an arbitrage operation, to 
purchase property by virtue of which he has the right to receive or 
acquire substantially identical property to that sold short, he will be 
deemed, for purposes of section 1233(f) (1) and (2), to hold such 
substantially identical property at the close of business on the date of 
the short sale. For purposes of this subparagraph, it is immaterial 
whether, on the basis of all the facts and circumstances, the preferred 
stock of X is substantially identical to the common stock of X. The 
short sale on November 1 does not affect the holding period of the 100 
shares of X Corporation common stock purchased on August 13, 1957. 
Because of the operation of rule (2) of paragraph (c)(2) of this 
section, the holding period of the preferred stock acquired as the 
result of A's contract to purchase it as part of an arbitrage operation 
(or the common stock which A acquires by conversion of such preferred 
stock into common stock) will not begin until the short sale entered 
into in the arbitrage operation is closed.

    (3) Definition of arbitrage operations. For the purpose of section 
1233(f), arbitrage operations are transactions involving the purchase 
and sale of property entered into for the purpose of profiting from a 
current difference between the price of the property purchased and the 
price of the property sold. Assets acquired for arbitrage operations 
include only stocks and securities and rights to acquire stocks and 
securities. The property purchased may be either identical to the 
property sold or, if not so identical, such that its acquisition will 
entitle the taxpayer to acquire property which is so identical. Thus, 
the purchase of bonds or preferred stock convertible, at the holder's 
option, into common stock and the short sale of the common stock which 
may be acquired therefor, or the purchase of stock rights and the short 
sale of the stock to be acquired on the exercise of such rights, may 
qualify as arbitrage operations. A transaction will qualify as an 
arbitrage operation under section 1233(f) only if the taxpayer properly 
identifies the transaction as an arbitrage operation on his records as 
soon as he is able to do so. Such identification must ordinarily be 
entered in the taxpayer's records on the day of the transaction. 
Property acquired in a transaction properly identified as part of an 
arbitrage operation is the only property which will be deemed acquired 
for an arbitrage operation. The provisions of section 1233(f) and this 
paragraph shall continue to apply to property acquired in a transaction 
properly identified as an arbitrage operation although, because of 
subsequent events, e.g., a change in the value of bonds so acquired or 
of stock into which such bonds may be converted, the taxpayer sells such 
property outright rather than using it to complete the arbitrage 
operation.

[[Page 314]]

    (4) Effective date of section 1233(f). Section 1233(f), relating to 
arbitrage operations involving short sales of property, is effective 
only with respect to taxable years ending after August 12, 1955, and 
only with respect to short sales made after such date.

[T.D. 6500, 25 FR 12011, Nov. 26, 1960, as amended by T.D. 6494, 25 FR 
9372, Sept. 30, 1960; T.D. 6926, 32 FR 11468, Aug. 9, 1967; T.D. 7728, 
45 FR 72650, Nov. 3, 1980]



Sec. 1.1233-2  Hedging transactions.

    The character of gain or loss on a short sale that is (or is 
identified as being) part of a hedging transaction is determined under 
the rules of Sec. 1.1221-2.

[T.D. 8555, 59 FR 36367, July 18, 1994]



Sec. 1.1234-1  Options to buy or sell.

    (a) Sale or exchange--(1) Capital assets. Gain or loss from the sale 
or exchange of an option (or privilege) to buy or sell property which is 
(or if acquired would be) a capital asset in the hands of the taxpayer 
holding the option is considered as gain or loss from the sale or 
exchange of a capital asset (unless, under the provisions of 
subparagraph (2) of this paragraph, the gain or loss is subject to the 
provisions of section 1231). The period for which the taxpayer has held 
the option determines whether the capital gain or loss is short-term or 
long-term.
    (2) Section 1231 transactions. Gain or loss from the sale or 
exchange of an option to buy or sell property is considered a gain or 
loss subject to the provisions of section 1231 if, had the sale or 
exchange been of the property subject to the option, held by the 
taxpayer for the length of time he held the option, the sale or exchange 
would have been subject to the provisions of section 1231.
    (3) Other property. Gain or loss from the sale or exchange of an 
option to buy or sell property which is not (or if acquired would not 
be) a capital asset in the hands of the taxpayer holding the option is 
considered ordinary income or loss (unless under the provisions of 
subparagraph (2) of this paragraph, the gain or loss is subject to the 
provisions of section 1231).
    (b) Failure to exercise option. If the holder of an option to buy or 
sell property incurs a loss on failure to exercise the option, the 
option is deemed to have been sold or exchanged on the date that it 
expired. Any such loss to the holder of an option is treated under the 
general rule provided in paragraph (a) of this section. In general, any 
gain to the grantor of an option arising from the failure of the holder 
to exercise it, and any gain or loss realized by the grantor of an 
option as a result of a closing transaction, such as repurchasing the 
option from the holder, is considered ordinary income or loss. However, 
for the treatment of gain or loss from a closing transaction with 
respect to or gain on the lapse of an option granted in stock, 
securities, commodities or commodity futures, see section 1234(b) and 
Sec. 1.1234-3. For special rules for grantors of straddles applicable 
to certain options granted on or before September 1, 1976, see Sec. 
1.1234-2.
    (c) Certain options to sell property at a fixed price. Section 1234 
does not apply to a loss on the failure to exercise an option to sell 
property at a fixed price which is acquired on the same day on which the 
property identified as intended to be used in exercising the option is 
acquired. Such a loss is not recognized, but the cost of the option is 
added to the basis of the property with which it is identified. See 
section 1233(c) and the regulations thereunder.
    (d) Dealers in options to buy or sell. Any gain or loss realized by 
a dealer in options from the sale or exchange or an option to buy or 
sell property is considered ordinary income or loss under paragraph 
(a)(3) of this section. A dealer in options to buy or sell property is 
considered a dealer in the property subject to the option.
    (e) Other exceptions. Section 1234 does not apply to gain resulting 
from the sale or exchange of an option:
    (1) To the extent that the gain is in the nature of compensation 
(see sections 61 and 421, and the regulations thereunder, relating to 
employee stock options);
    (2) If the option is treated as section 306 stock (see section 306 
and the regulations thereunder, relating to dispositions of certain 
stock); or

[[Page 315]]

    (3) To the extent that the gain is a distribution of earnings or 
profits taxable as a dividend (see section 301 and the regulations 
thereunder, relating to distributions of property).
    (4) Acquired by the taxpayer before March 1, 1954, if in the hands 
of the taxpayer such option is a capital asset (whether or not the 
property to which the option relates is, or would be if acquired by the 
taxpayer, a capital asset in the hands of the taxpayer).
    (f) Limitations on effect of section. Losses to which section 1234 
applies are subject to the limitations on losses under sections 165(c) 
and 1211 when applicable. Section 1234 does not permit the deduction of 
any loss which is disallowed under any other provision of law. In 
addition, section 1234 does not apply to an option to lease property, 
but does apply to an option to buy or sell a lease. Thus, an option to 
obtain all the right, title, and interest of a lessee in leased property 
is subject to the provisions of section 1234, but an option to obtain a 
sublease from the lessee is not. Furthermore, if section 1234 applies to 
an option to buy or sell a lease, it is the character the lease itself, 
if acquired, would have in the hands of the taxpayer, and not the 
character of the property leased, which determines the treatment of gain 
or loss experienced by the taxpayer with respect to such an option.
    (g) Examples. The rules set forth in this section may be illustrated 
by the following examples:

    Example 1. A taxpayer is considering buying a new house for his 
residence and acquires an option to buy a certain house at a fixed 
price. Although the property goes up in value, the taxpayer decides he 
does not want the house for his residence and sells the option for more 
than he paid for it. The gain which taxpayer realized is a capital gain 
since the property, if acquired, would have been a capital asset in his 
hands.
    Example 2. Assume the same facts as in example (1), except that the 
property goes down in value, and the taxpayer decides not to purchase 
the house. He sells the option at a loss. While this is a capital loss 
under section 1234, it is not a deductible loss because of the 
provisions of section 165(c).
    Example 3. A dealer in industrial property acquires an option to buy 
an industrial site and fails to exercise the option. The loss is an 
ordinary loss since he would have held the property for sale to 
customers in the ordinary course of his trade or business if he had 
acquired it.

[T.D. 6500, 25 FR 12013, Nov. 26, 1960, as amended by T.D. 7652, 44 FR 
62282, Oct. 30, 1979]



Sec. 1.1234-2  Special rule for grantors of straddles applicable to 
certain options granted on or before September 1, 1976.

    (a) In general. Section 1234(c)(1) provides a special rule 
applicable in the case of gain on the lapse of an option granted by the 
taxpayer as part of a straddle. In such a case, the gain shall be deemed 
to be gain from the sale or exchange of a capital asset held for not 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977) on the day that the option 
expired. Thus, such gain shall be treated as a short-term capital gain, 
as defined in section 1222(1). Section 1234(c)(1) does not apply to any 
person who holds securities (including options to acquire or sell 
securities) for sale to customers in the ordinary course of his trade or 
business.
    (b) Definitions. The following definitions apply for purposes of 
section 1234(c) and this section.
    (1) Straddle. The term straddle means a simultaneously granted 
combination of an option to buy (i.e., a call) and an option to sell 
(i.e., a put) the same quantity of a security at the same price during 
the same period of time.
    (2) Security. The term security has the meaning assigned to such 
term by section 1236(c) and the regulations thereunder. Thus, for 
example, the term security does not include commodity futures.
    (3) Grantor. The term grantor means the writer or issuer of the 
option contracts making up the straddle.
    (4) Multiple option. The term multiple option means a simultaneously 
granted combination of an option to buy plus an option to sell plus one 
or more additional options to buy or sell a security.
    (c) Special rules in the case of a multiple option. (1) If, in the 
case of a multiple option, the number of the options to sell and the 
number of the options to buy are the same and if the terms of all of the 
options are identical (as to the quantity of the security, price, and 
period of time), then each of the options contained in the multiple 
option

[[Page 316]]

shall be deemed to be a component of a straddle for purposes of section 
1234(c)(1) and paragraph (a) of this section.
    (2) If, in the case of a multiple option, the number of the options 
to sell and the number of the options to buy are not the same or if the 
terms of all of the options are not identical (as to the quantity of the 
security, price, and period of time), then section 1234(c)(1) applies to 
gain on the lapse of an option granted as part of the multiple option 
only if:
    (i) The grantor of the multiple option identifies the two options 
which comprise each straddle contained in the multiple option in the 
manner prescribed in subparagraph (3) of this paragraph; or
    (ii) It is clear from the facts and circumstances that the lapsed 
option was part of a straddle. See example (6) of paragraph (f) of this 
section. A multiple option to which this subdivision applies may not be 
regarded as consisting of a number of straddles which exceeds the lesser 
of the options to sell or the options to buy as the case may be. For 
example, if a multiple option of five puts and four calls is granted it 
may not be regarded as consisting of more than four straddles, although 
the particular facts and circumstances could dictate that the option 
consists of less than four straddles.
    (3) The identification required under subparagraph (2)(i) of this 
paragraph shall be made by the grantor indicating in his records, to the 
extent feasible, the individual serial number of, or other 
characteristic symbol imprinted upon, each of the two individual options 
which comprise the straddle, or by adopting any other method of 
identification satisfactory to the Commissioner. Such identification 
must be made before the expiration of the 15th day after the day on 
which the multiple option is granted. The preceding sentence shall apply 
only with respect to multiple options granted after January 24, 1972. In 
computing the 15-day period prescribed by this paragraph, the first day 
of such period is the day following the day on which the multiple option 
is granted.
    (d) Allocation of premium. The allocation of a premium received for 
a straddle or a multiple option between or among the component options 
thereof shall be made on the basis of the relative market value of such 
component options at the time of their issuance or on any other 
reasonable and consistently applied basis which is acceptable to the 
Commissioner.
    (e) Effective date--(1) In general. This section, relating to 
special rules for grantors of straddles, shall apply only with respect 
to straddle transactions entered into after January 25, 1965, and before 
September 2, 1976.
    (2) Special rule. For a special rule with respect to the 
identification of a straddle granted as part of a multiple option, see 
paragraph (c).
    (f) Illustrations. The application of section 1234(c) and this 
section may be illustrated by the following examples:

    Example 1. On February 1, 1971, taxpayer A, who files his income tax 
returns on a calendar year basis, issues a straddle for 100 shares of X 
Corporation stock and receives a premium of $1,000. The options 
comprising the straddle were to expire on August 10, 1971. A has 
allocated $450 (45 percent of $1,000) of the premium to the put and $550 
(55 percent of $1,000) to the call. On March 1, 1971, B, the holder of 
the put, exercises his option. C, the holder of the call, fails to 
exercise his option prior to its expiration. As a result of C's failure 
to exercise his option, A realizes a short-term capital gain of $550 
(that part of the premium allocated to the call) on August 10, 1971.
    Example 2. Assume the same facts as in example (1), except that C 
exercises his call on March 1, 1971, and B fails to exercise his put 
prior to its expiration. As a result of B's failure to exercise his 
option, A realizes a short-term capital gain of $450 (that part of the 
premium allocated to the put) on August 10, 1971.
    Example 3. Assume the same facts as in example (1), except that both 
B and C fail to exercise their respective options. As a result of the 
failure of B and C to exercise their options, A realizes short-term 
capital gains of $1,000 (the premium for granting the straddle) on 
August 10, 1971.
    Example 4. On March 1, 1971, taxpayer D issues a multiple option 
containing five puts and five calls. Each put and each call is for the 
same number of shares of Y Corporation stock, at the same price, and for 
the same period of time. Thus, each of the puts and calls is deemed to 
be a component part of a straddle. The puts and calls comprising the 
multiple option were to expire on September 10, 1971. All of the puts 
are exercised, and all of the calls lapse. As a result of the lapse of 
the calls, D realizes a short-term capital

[[Page 317]]

gain on September 10, 1971, in the amount of that part of the premium 
for the multiple option which is allocable to all of the calls.
    Example 5. Assume the same facts as in example (4) except that one 
of the puts and two of the calls lapse and the remaining puts and calls 
are exercised. As a result, on September 10, 1971, D realizes a short-
term capital gain in the amount of that part of the premium for the 
multiple option which is allocable to both of the lapsed calls and the 
lapsed put.
    Example 6. On March 1, 1971, taxpayer E issues a multiple option 
containing five puts and four calls. Each put and call is for the same 
number of shares of Y Corporation stock at the same price and for the 
same period of time, E does not identify the puts and calls as parts of 
straddles in the manner prescribed in paragraph (c)(3) of this section. 
However, because the terms of all of the puts and all of the calls are 
identical four of the puts and four of the calls are deemed to be a 
component part of a straddle. The puts and calls comprising the multiple 
option were to expire on September 10, 1971. Four of the puts are 
exercised and the four calls and one of the puts lapse. As a result, on 
September 10, 1971, E realizes short-term capital gain in the amount of 
that part of the premium for the multiple option which is allocable to 
the four lapsed calls and realizes ordinary income in the amount of that 
part of such premium which is allocable to the lapsed put. If E had 
identified four of the puts and four of the calls as constituting parts 
of straddles in the manner prescribed in paragraph (c)(3) of this 
section and the put that lapsed constituted part of a straddle, then the 
gain on the lapse of the put would also be short-term capital gain.
    Example 7. Assume the same facts as in example (6) except that two 
of the puts are for Y Corporation stock at a price which is greater than 
that of the other puts and the other calls and that two of the calls 
expire on October 10, 1971. Additionally, assume that the put which 
lapses is at the lower price. The two puts offering the Y Corporation 
stock at the greater price and the two calls with the later expiration 
date cannot be deemed to be component parts of a straddle. Thus, only 
two of the puts and two of the calls are deemed to be a component part 
of a straddle. As a result, E realizes income as follows:
    (i) On September 10, 1971, short-term capital gain in the amount of 
that part of the premium for the multiple option which is allocable to 
the two lapsed calls with the expiration date of September 10, 1971, and 
ordinary income in the amount of that part of such premium which is 
allocable to the lapsed put. If E had identified two of the puts at the 
lower price and the two calls with the expiration date of September 10, 
1971, as constituting parts of straddles in the manner prescribed in 
paragraph (c)(3) of this section and if the put that lapsed was one of 
those identified as constituting a part of a straddle, then the gain on 
the lapse of that put would also be short-term capital gain.
    (ii) On October 10, 1971, ordinary income in the amount of that part 
of the premium for the multiple option which is allocable to the lapsed 
calls with an expiration date of October 10, 1971.

[T.D. 7152, 36 FR 24801, Dec. 23, 1971, as amended by T.D. 7210, 37 FR 
20688, Oct. 3, 1972; T.D. 7652; 44 FR 62282, Oct. 30, 1979; 44 FR 67657, 
Nov. 27, 1979; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec. 1.1234-3  Special rules for the treatment of grantors of certain 
options granted after September 1, 1976.

    (a) In general. In the case of the grantor of an option (including 
an option granted as part of a straddle or multiple option), gain of 
loss from any closing transaction with respect to, and gain on the lapse 
of, an option in property shall be treated as a gain or loss from the 
sale or exchange of a capital asset held not more than 1 year. (6 months 
for taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977).
    (b) Definitions. The following definitions apply for purposes of 
this section.
    (1) The term closing transaction means any termination of a 
grantor's obligation under an option to buy property (a call) or an 
option to sell property (a put) other than through the exercise or lapse 
of the option. For example, the grantor of a call may effectively 
terminate his obligation under the option by either:
    (i) Repurchasing the option from the holder or
    (ii) Purchasing from an options exchange a call with terms identical 
to the original option granted and designating the purchase as a closing 
transaction.

A put or call purchased to make a closing transaction is identical as to 
striking price and expiration date. Such put or call need not match the 
granted option in time of creation, date of acquisition, cost of the 
entire option or units therein, or number of units subject to the 
option. If such put or call terminates only part of a grantor's 
obligation under the granted option, a closing transaction is made as to 
that part.

[[Page 318]]

    (2) The term property means stocks and securities (including stocks 
and securities dealt with on a when issued basis), commodities, and 
commodity futures.
    (3) The term grantor means the writer or issuer of an option.
    (4) The term straddle means a simultaneously granted combination of 
an option to buy and an option to sell the same quantity of property at 
the same price during the same period of time.
    (5) The term multiple option means a simultaneously granted 
combination of an option to buy plus an option to sell plus one or more 
additional options to buy or sell property.
    (c) Nonapplicability to broker-dealers. The provisions of this 
section do not apply to any option granted in the ordinary course of the 
taxpayer's trade or business of granting options. However, the 
provisions of this section do apply to:
    (1) Gain from any closing transaction with respect to an option and 
gain on lapse of an option if gain on the sale or exchange of the option 
would be considered capital gain by a dealer in securities under section 
1236(a) and the regulations thereunder, and
    (2) Loss from any closing transaction with respect to an option if 
loss on the sale or exchange of the option would not be considered 
ordinary loss by a dealer in securities under section 1236(b) and the 
regulations thereunder.

The preceding sentence shall be applied with respect to dealers in 
property (as defined in paragraph (b)(2) of this section) and without 
regard to the limitation of the applicability of section 1236 to dealers 
in securities.
    (d) Nonapplicability to compensatory options. Section 1234 does not 
apply to options to purchase stock or other property which are issued as 
compensation for services, as described in sections 61, 83, and 421 and 
the regulations thereunder.
    (e) Premium allocation for simultaneously granted options. The 
allocation of a premium received for a straddle or multiple option 
between or among the component options thereof shall be made on the 
basis of the relative market value of the component options at the time 
of their issuance or on any other reasonable and consistently applied 
basis which is acceptable to the Commissioner.
    (f) Effective date. This section, relating to special rules for the 
treatment of grantors of certain options, shall apply to options granted 
after September 1, 1976.

[T.D. 7652, 44 FR 62282, Oct. 30, 1979; 44 FR 67657, Nov. 27, 1979]



Sec. 1.1234-4  Hedging transactions.

    The character of gain or loss on an acquired or a written option 
that is (or is identified as being) part of a hedging transaction is 
determined under the rules of Sec. 1.1221-2.

[T.D. 8555, 59 FR 36367, July 18, 1994]



Sec. 1.1235-1  Sale or exchange of patents.

    (a) General rule. Section 1235 provides that a transfer (other than 
by gift, inheritance, or devise) of all substantial rights to a patent, 
or of an undivided interest in all such rights to a patent, by a holder 
to a person other than a related person constitutes the sale or exchange 
of a capital asset held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977), 
whether or not payments therefor are:
    (1) Payable periodically over a period generally coterminous with 
the transferee's use of the patent, or
    (2) Contingent on the productivity, use, or disposition of the 
property transferred.
    (b) Scope of section 1235. If a transfer is not one described in 
paragraph (a) of this section, section 1235 shall be disregarded in 
determining whether or not such transfer is the sale or exchange of a 
capital asset. For example, a transfer by a person other than a holder 
or a transfer by a holder to a related person is not governed by section 
1235. The tax consequences of such transfers shall be determined under 
other provisions of the internal revenue laws.
    (c) Special rules--(1) Payments for infringement. If section 1235 
applies to the transfer of all substantial rights to a patent (or an 
undivided interest therein), amounts received in settlement of, or as 
the award of damages in, a suit for compensatory damages for 
infringement of the patent shall be considered payments attributable to 
a transfer to

[[Page 319]]

which section 1235 applies to the extent that such amounts relate to the 
interest transferred. For taxable years beginning before January 1, 
1964, see section 1304, as in effect before such date, and Sec. 
1.1304A-1 for treatment of compensatory damages for patent infringement.
    (2) Payments to an employee. Payments received by an employee as 
compensation for services rendered as an employee under an employment 
contract requiring the employee to transfer to the employer the rights 
to any invention by such employee are not attributable to a transfer to 
which section 1235 applies. However, whether payments received by an 
employee from his employer (under an employment contract or otherwise) 
are attributable to the transfer by the employee of all substantial 
rights to a patent (or an undivided interest therein) or are 
compensation for services rendered the employer by the employee is a 
question of fact. In determining which is the case, consideration shall 
be given not only to all the facts and circumstances of the employment 
relationship but also to whether the amount of such payments depends 
upon the production, sale, or use by, or the value to, the employer of 
the patent rights transferred by the employee. If it is determined that 
payments are attributable to the transfer of patent rights, and all 
other requirements under section 1235 are met, such payments shall be 
treated as proceeds derived from the sale of a patent.
    (3) Successive transfers. The applicability of section 1235 to 
transfers of undivided interest in patents, or to successive transfers 
of such rights, shall be determined separately with respect to each 
transfer. For example, X, who is a holder, and Y, who is not a holder, 
transfer their respective two-thirds and one-third undivided interests 
in a patent to Z. Assume the transfer by X qualifies under section 1235 
and that X in a later transfer acquires all the rights with respect to 
Y's interest, including the rights to payments from Z. One-third of all 
the payments thereafter received by X from Z are not attributable to a 
transfer to which section 1235 applies.
    (d) Payor's treatment of payments in a transfer under section 1235. 
Payments made by the transferee of patent rights pursuant to a transfer 
satisfying the requirements of section 1235 are payments of the purchase 
price for the patent rights and are not the payment of royalties.
    (e) Effective date. Amounts received or accrued, and payments made 
or accrued, during any taxable year beginning after December 31, 1953 
and ending after August 16, 1954, pursuant to a transfer satisfying the 
requirements of section 1235, whether such transfer occurred in a 
taxable year to which the Internal Revenue Code of 1954 applies, or in a 
year prior thereto, are subject to the provisions of section 1235.
    (f) Nonresident aliens. For the special rule relating to nonresident 
aliens who have gains arising from a transfer to which section 1235 
applies, see section 871 and the regulations thereunder. For withholding 
of tax from income of nonresident aliens, see section 1441 and the 
regulations thereunder.

[T.D. 6500, 25 FR 12014, Nov. 26, 1960, as amended by T.D. 6885, 31 FR 
7803, June 2, 1966; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec. 1.1235-2  Definition of terms.

    For the purposes of section 1235 and Sec. 1.1235-1:
    (a) Patent. The term patent means a patent granted under the 
provisions of title 35 of the United States Code, or any foreign patent 
granting rights generally similar to those under a United States patent. 
It is not necessary that the patent or patent application for the 
invention be in existence if the requirements of section 1235 are 
otherwise met.
    (b) All substantial rights to a patent. (1) The term all substantial 
rights to a patent means all rights (whether or not then held by the 
grantor) which are of value at the time the rights to the patent (or an 
undivided interest therein) are transferred. The term all substantial 
rights to a patent does not include a grant of rights to a patent:
    (i) Which is limited geographically within the country of issuance;
    (ii) Which is limited in duration by the terms of the agreement to a 
period less than the remaining life of the patent;

[[Page 320]]

    (iii) Which grants rights to the grantee, in fields of use within 
trades or industries, which are less than all the rights covered by the 
patent, which exist and have value at the time of the grant; or
    (iv) Which grants to the grantee less than all the claims or 
inventions covered by the patent which exist and have value at the time 
of the grant.

The circumstances of the whole transaction, rather than the particular 
terminology used in the instrument of transfer, shall be considered in 
determining whether or not all substantial rights to a patent are 
transferred in a transaction.
    (2) Rights which are not considered substantial for purposes of 
section 1235 may be retained by the holder. Examples of such rights are:
    (i) The retention by the transferor of legal title for the purpose 
of securing performance or payment by the transferee in a transaction 
involving transfer of an exclusive license to manufacture, use, and sell 
for the life of the patent;
    (ii) The retention by the transferor of rights in the property which 
are not inconsistent with the passage of ownership, such as the 
retention of a security interest (such as a vendor's lien), or a 
reservation in the nature of a condition subsequent (such as a provision 
for forfeiture on account of nonperformance).
    (3) Examples of rights which may or may not be substantial, 
depending upon the circumstances of the whole transaction in which 
rights to a patent are transferred, are:
    (i) The retention by the transferor of an absolute right to prohibit 
sublicensing or subassignment by the transferee;
    (ii) The failure to convey to the transferee the right to use or to 
sell the patent property.
    (4) The retention of a right to terminate the transfer at will is 
the retention of a substantial right for the purposes of section 1235.
    (c) Undivided interest. A person owns an undivided interest in all 
substantial rights to a patent when he owns the same fractional share of 
each and every substantial right to the patent. It does not include, for 
example, a right to the income from a patent, or a license limited 
geographically, or a license which covers some, but not all, of the 
valuable claims or uses covered by the patent. A transfer limited in 
duration by the terms of the instrument to a period less than the 
remaining life of the patent is not a transfer of an undivided interest 
in all substantial rights to a patent.
    (d) Holder. (1) The term holder means any individual:
    (i) Whose efforts created the patent property and who would qualify 
as the original and first inventor, or joint inventor, within the 
meaning of title 35 U.S.C., or
    (ii) Who has acquired his interest in the patent property in 
exchange for a consideration paid to the inventor in money or money's 
worth prior to the actual reduction of the invention to practice (see 
paragraph (e) of this section), provided that such individual was 
neither the employer of the inventor nor related to him (see paragraph 
(f) of this section). The requirement that such individual is neither 
the employer of the inventor nor related to him must be satisfied at the 
time when the substantive rights as to the interest to be acquired are 
determined, and at the time when the consideration in money or money's 
worth to be paid is definitely fixed. For example, if prior to the 
actual reduction to practice of an invention an individual who is 
neither the employer of the inventor nor related to him agrees to pay 
the inventor a sum of money definitely fixed as to amount in return for 
an undivided one-half interest in rights to a patent and at a later 
date, when such individual has become the employer of the inventor, he 
pays the definitely fixed sum of money pursuant to the earlier 
agreement, such individual will not be denied the status of a holder 
because of such employment relationship.
    (2) Although a partnership cannot be a holder, each member of a 
partnership who is an individual may qualify as a holder as to his share 
of a patent owned by the partnership. For example, if an inventor who is 
a member of a partnership composed solely of individuals uses 
partnership property in the development of his invention with the 
understanding that the patent

[[Page 321]]

when issued will become partnership property, each of the inventor's 
partners during this period would qualify as a holder. If, in this 
example, the partnership were not composed solely of individuals, 
nevertheless, each of the individual partners' distributive shares of 
income attributable to the transfer of all substantial rights to the 
patent or an undivided interest therein, would be considered proceeds 
from the sale or exchange of a capital asset held for more than 1 year 
(6 months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977).
    (3) An individual may qualify as a holder whether or not he is in 
the business of making inventions or in the business of buying and 
selling patents.
    (e) Actual reduction to practice. For the purposes of determining 
whether an individual is a holder under paragraph (d) of this section, 
the term actual reduction to practice has the same meaning as it does 
under section 102(g) of title 35 of the United States Code. Generally, 
an invention is reduced to actual practice when it has been tested and 
operated successfully under operating conditions. This may occur either 
before or after application for a patent but cannot occur later than the 
earliest time that commercial exploitation of the invention occurs.
    (f) Related person. (1) The term related person means one whose 
relationship to another person at the time of the transfer is described 
in section 267(b), except that the term does not include a brother or 
sister, whether of the whole or the half blood. Thus, if a holder 
transfers all his substantial rights to a patent to his brother or 
sister, or both, such transfer is not to a related person.
    (2) If, prior to September 3, 1958, a holder transferred all his 
substantial rights to a patent to a corporation in which he owned more 
than 50 percent in value of the outstanding stock, he is considered as 
having transferred such rights to a related person for the purpose of 
section 1235. On the other hand, if a holder, prior to September 3, 
1958, transferred all his substantial rights to a patent to a 
corporation in which he owned 50 percent or less in value of the 
outstanding stock and his brother owned the remaining stock, he is not 
considered as having transferred such rights to a related person since 
the brother relationship is to be disregarded for purposes of section 
1235.
    (3) If, subsequent to September 2, 1958, a holder transfers all his 
substantial rights to a patent to a corporation in which he owns 25 
percent or more in value of the outstanding stock, he is considered as 
transferring such rights to a related person for the purpose of section 
1235. On the other hand if a holder, subsequent to September 2, 1958, 
transfers all his substantial rights to a patent to a corporation in 
which he owns less than 25 percent in value of the outstanding stock and 
his brother owns the remaining stock, he is not considered as 
transferring such rights to a related person since the brother 
relationship is to be disregarded for purposes of section 1235.
    (4) If a relationship described in section 267(b) exists 
independently of family status, the brother-sister exception, described 
in subparagraphs (1), (2), and (3) of this paragraph, does not apply. 
Thus, if a holder transfers all his substantial rights to a patent to 
the fiduciary of a trust of which the holder is the grantor, the holder 
and the fiduciary are related persons for purposes of section 1235(d). 
(See section 267(b)(4).) The transfer, therefore, would not qualify 
under section 1235(a). This result obtains whether or not the fiduciary 
is the brother or sister of the holder since the disqualifying 
relationship exists because of the grantor-fiduciary status and not 
because of family status.

[T.D. 6500, 25 FR 12014, Nov. 26, 1960, as amended by T.D. 6852, 30 FR 
12730, Oct. 6, 1965; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec. 1.1236-1  Dealers in securities.

    (a) Capital gains. Section 1236(a) provides that gain realized by a 
dealer in securities from the sale or exchange of a security (as defined 
in paragraph (c) of this section) shall not be considered as gain from 
the sale or exchange of a capital asset unless:
    (1) The security is, before the expiration of the thirtieth day 
after the date of its acquisition, clearly identified in the dealer's 
records as a security held for investment or, if acquired before October 
20, 1951, was so identified before November 20, 1951; and

[[Page 322]]

    (2) The security is not held by the dealer primarily for sale to 
customers in the ordinary course of his trade or business at any time 
after the identification referred to in subparagraph (1) of this 
paragraph has been made.

Unless both of these requirements are met, the gain is considered as 
gain from the sale of assets held by the dealer primarily for sale to 
customers in the course of his business.
    (b) Ordinary losses. Section 1236(b) provides that a loss sustained 
by a dealer in securities from the sale or exchange of a security shall 
not be considered a loss from the sale or exchange of property which is 
not a capital asset if at any time after November 19, 1951, the security 
has been clearly identified in the dealer's records as a security held 
for investment. Once a security has been identified after November 19, 
1951, as being held by the dealer for investment, it shall retain that 
character for purposes of determining loss on its ultimate disposition, 
even though at the time of its disposition the dealer holds it primarily 
for sale to his customers in the ordinary course of his business. 
However, section 1236 has no application to the extent that section 
582(c) applies to losses of banks.
    (c) Definitions--(1) Security. For the purposes of this section, the 
term security means any share of stock in any corporation, any 
certificate of stock or interest in any corporation, any note, bond, 
debenture, or other evidence of indebtedness, or any evidence of any 
interest in, or right to subscribe to or purchase, any of the foregoing.
    (2) Dealer in securities. For definition of a dealer in securities, 
see the regulations under section 471.
    (d) Identification of security in dealer's records. (1) A security 
is clearly identified in the dealer's records as a security held for 
investment when there is an accounting separation of the security from 
other securities, as by making appropriate entries in the dealer's books 
of account to distinguish the security from inventories and to designate 
it as an investment and by (i) indicating with such entries, to the 
extent feasible, the individual serial number of, or other 
characteristic symbol imprinted upon, the individual security, or (ii) 
adopting any other method of identification satisfactory to the 
Commissioner.
    (2) In computing the 30-day period prescribed by section 1236(a), 
the first day of the period is the day following the date of 
acquisition. Thus, in the case of a security acquired on March 18, 1957, 
the 30-day period expires at midnight on April 17, 1957.

[T.D. 6500, 25 FR 12015, Nov. 26, 1960, as amended by T.D. 6726, 29 FR 
5667, Apr. 29, 1964]



Sec. 1.1237-1  Real property subdivided for sale.

    (a) General rule--(1) Introductory. This section provides a special 
rule for determining whether the taxpayer holds real property primarily 
for sale to customers in the ordinary course of his business under 
section 1221(1). This rule is to permit taxpayers qualifying under it to 
sell real estate from a single tract held for investment without the 
income being treated as ordinary income merely because of subdividing 
the tract or of active efforts to sell it. The rule is not applicable to 
dealers in real estate or to corporations, except a corporation making 
such sales in a taxable year beginning after December 3l, 1954, if such 
corporation qualifies under the provisions of paragraph (c)(5)(iv) of 
this section.
    (2) When subdividing and selling activities are to be disregarded. 
When its conditions are met, section 1237 provides that if there is no 
other substantial evidence that a taxpayer holds real estate primarily 
for sale to customers in the ordinary course of his business, he shall 
not be considered a real estate dealer holding it primarily for sale 
merely because he has (i) subdivided the tract into lots (or parcels) 
and (ii) engaged in advertising, promotion, selling activities or the 
use of sales agents in connection with the sale of lots in such 
subdivision. Such subdividing and selling activities shall be 
disregarded in determining the purpose for which the taxpayer held real 
property sold from a subdivision whenever it is the only substantial 
evidence indicating that the taxpayer has ever held the real property 
sold primarily for sale to customers in the ordinary course of his 
business.

[[Page 323]]

    (3) When subdividing and selling activities are to be taken into 
account. When other substantial evidence tends to show that the taxpayer 
held real property for sale to customers in the ordinary course of his 
business, his activities in connection with the subdivision and sale of 
the property sold shall be taken into account in determining the purpose 
for which the taxpayer held both the subdivided property and any other 
real property. For example, such other evidence may consist of the 
taxpayer's selling activities in connection with other property in prior 
years during which he was engaged in subdividing or selling activities 
with respect to the subdivided tract, his intention in prior years (or 
at the time of acquiring the property subdivided) to hold the tract 
primarily for sale in his business, his subdivision of other tracts in 
the same year, his holding other real property for sale to customers in 
the same year, or his construction of a permanent real estate office 
which he could use in selling other real property. On the other hand, if 
the only evidence of the taxpayer's purpose in holding real property 
consisted of not more than one of the following, in the year in 
question, such fact would not be considered substantial other evidence:
    (i) Holding a real estate dealer's license;
    (ii) Selling other real property which was clearly investment 
property;
    (iii) Acting as a salesman for a real estate dealer, but without any 
financial interest in the business; or
    (iv) Mere ownership of other vacant real property without engaging 
in any selling activity whatsoever with respect to it.

If more than one of the above exists, the circumstances may or may not 
constitute substantial evidence that the taxpayer held real property for 
sale in his business, depending upon the particular facts in each case.
    (4) Section 1237 not exclusive. (i) The rule in section 1237 is not 
exclusive in its application. Section 1237 has no application in 
determining whether or not real property is held by a taxpayer primarily 
for sale in his business if any requirement under the section is not 
met. Also, even though the conditions of section 1237 are met, the rules 
of section 1237 are not applicable if without regard to section 1237 the 
real property sold would not have been considered real property held 
primarily for sale to customers in the ordinary course of his business. 
Thus, the district director may at all times conclude from convincing 
evidence that the taxpayer held the real property solely as an 
investment. Furthermore, whether or not the conditions of section 1237 
are met, the section has no application to losses realized upon the sale 
of realty from subdivided property.
    (ii) If, owing solely to the application of section 1237, the real 
property sold is deemed not to have been held primarily for sale in the 
ordinary course of business, any gain realized upon such sale shall be 
treated as ordinary income to the extent provided in section 1237(b) (1) 
and (2) and paragraph (e) of this section. Any additional gain realized 
upon the sale shall be treated as gain arising from the sale of a 
capital asset or, if the circumstances so indicate, as gain arising from 
the sale of real property used in the trade or business as defined in 
section 1231 (b)(1). For the relationship between sections 1237 and 
1231, see paragraph (f) of this section.
    (5) Principal conditions of qualification. Before section 1237 
applies, the taxpayer must meet three basic conditions, more fully 
explained later: He cannot have held any part of the tract at any time 
previously for sale in the ordinary course of his business, nor in the 
year of sale held any other real estate for sale to customers; he cannot 
make substantial improvements on the tract which increase the value of 
the lot sold substantially; and he must have owned the property 5 years, 
unless he inherited it. However, the taxpayer may make certain 
improvements if they are necessary to make the property marketable if he 
elects neither to add their cost to the basis of the property, or of any 
other property, nor to deduct the cost as an expense, and he has held 
the property at least 10 years. If the requirements of section 1237 are 
met, gain (but not more than 5 percent of the selling price of each lot) 
shall be treated as ordinary income in and after the year in which the 
sixth lot or parcel is sold.

[[Page 324]]

    (b) Disqualification arising from holding real property primarily 
for sale--(1) General rule. Section 1237 does not apply to any 
transaction if the taxpayer either:
    (i) Held the lot sold (or the tract of which it was a part) 
primarily for sale in the ordinary course of his business in a prior 
year, or
    (ii) Holds other real property primarily for sale in the ordinary 
course of his business in the same year in which such lot is sold.

Where either of these elements is present, section 1237 shall be 
disregarded in determining the proper treatment of any gain arising from 
such sale.
    (2) Method of applying general rule. For purposes of this paragraph, 
in determining whether the lot sold was held primarily for sale in the 
ordinary course of business in a prior year, the principles of section 
1237 shall be applied, whether or not section 1237 was effective for 
such prior year, if the sale of the lot occurs after December 31, 1953, 
or, in the case of a corporation meeting the requirements of paragraph 
(c)(5)(iv) of this section, if the sale of the lot occurs in a taxable 
year beginning after December 31, 1954. Whether, on the other hand, the 
taxpayer holds other real property for sale in the ordinary course of 
his business in the same year such lot was sold shall be determined 
without regard to the application of section 1237 to such other real 
property.
    (3) Attribution rules with respect to the holding of property. The 
taxpayer is considered as holding property which he owns individually, 
jointly, or as a member of a partnership. He is not generally considered 
as holding property owned by members of his family, an estate or trust, 
or a corporation. See, however, paragraph (c)(5) (iv)(c) of this section 
for an exception to this rule. The purpose for which a prior owner held 
the lot or tract, or his activities, are immaterial except to the extent 
they indicate the purpose for which the taxpayer has held the lot or 
tract. See paragraph (d) of this section for rules relating to the 
determination of the period for which the property is held. The 
principles of this subparagraph may be illustrated by the following 
example:

    Example: A dealer in real property held a tract of land for sale to 
customers in the ordinary course of his business for 5 years. He then 
made a gift of it to his son. As a result of the operation of section 
1223(2) the son will have held the property for the period of time 
required by section 1237. However, he will not qualify for the benefits 
of section 1237 because, there being no evidence to the contrary, the 
circumstances involved establish that the son holds the property for 
sale to customers, as did his father.

    (c) Disqualification arising from substantial improvements--(1) 
General rule. Section 1237 will not apply if the taxpayer or certain 
others make improvements on the tract which are substantial and which 
substantially increase the value of the lot sold. Certain improvements 
are not substantial within the meaning of section 1237(a)(2) if they are 
necessary to make the lot marketable at the prevailing local price and 
meet the other conditions of section 1237(b)(3). See subparagraph (5) of 
this paragraph.
    (2) Improvements made or deemed to be made by the taxpayer. Certain 
improvements made by the taxpayer or made under a contract of sale 
between the taxpayer and the buyer make section 1237 inapplicable.
    (i) For the purposes of section 1237 (a)(2) the taxpayer is deemed 
to have made any improvements on the tract while he held it which are 
made by:
    (a) The taxpayer's whole or half brothers and sisters, spouse, 
ancestors and lineal descendants.
    (b) A corporation controlled by the taxpayer. A corporation is 
controlled by the taxpayer if he controls, as the result of direct 
ownership, constructive ownership, or otherwise, more than 50 percent of 
the corporation's voting stock.
    (c) A partnership of which the taxpayer was a member at the time the 
improvements were made.
    (d) A lessee if the improvement takes the place of a payment of 
rental income. See section 109 and the regulations thereunder.
    (e) A Federal, State, or local government, or political subdivision 
thereof, if the improvement results in an increase in the taxpayer's 
basis for the property, as it would, for example, from a special tax 
assessment for paving streets.

[[Page 325]]

    (ii) The principles of subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example: A held a tract of land for 3 years during which he made 
substantial improvements thereon which substantially enhanced the value 
of every lot on the tract. A then made a gift of the tract to his son. 
The son made no further improvements on the tract but held it for 3 
years and then sold several lots therefrom. The son is not entitled to 
the benefits of section 1237 since under section 1237(a)(2) he is deemed 
to have made the substantial improvements made by his father, and under 
section 1223(2) he is treated as having held the property for the period 
during which his father held it. Thus, the disqualifying improvements 
are deemed to have been made by the son while the tract was held by him. 
See paragraph (d) of this section for rules relating to the 
determination of the period for which the property is held.

    (iii) The taxpayer is also charged with making any improvements made 
pursuant to a contract of sale entered into between the taxpayer and the 
buyer. Therefore, the buyer, as well as the taxpayer, may make 
improvements which prevent the application of section 1237.
    (a) If a contract of sale obligates either the taxpayer or the buyer 
to make a substantial improvement which would substantially increase the 
value of the lot, the taxpayer may not claim the application of section 
1237 unless the obligation to improve the lot ceases (for any reason 
other than that the improvement has been made) before or within the 
period, prescribed by section 6511, within which the taxpayer may file a 
claim for credit or refund of an overpayment of his tax on the gain from 
the sale of the lot. The following example illustrates this rule:

    Example: In 1956, A sells several lots from a tract he has 
subdivided for sale. Section 1237 would apply to the sales of these lots 
except that in the contract of sale, A agreed to install sewers, hard 
surface roads, and other utilities which would increase the value of the 
lots substantially. If in 1957, instead of requiring the improvements, 
the buyer releases A from this obligation, A may then claim the 
application of section 1237 to the sale of lots in 1956 in computing his 
income tax for 1956, since the period of limitations in which A may file 
a claim for credit or refund of an overpayment of his 1956 income tax 
has not expired.

    (b) An improvement is made pursuant to a contract if the contract 
imposes an obligation on either party to make the improvement, but not 
if the contract merely places restrictions on the improvements, if any, 
either party may make. The following example illustrates this rule:

    Example: B sells several lots from a tract which he has subdivided. 
Each contract of sale prohibits the purchaser from building any 
structure on his lot except a personal residence costing $15,000 or 
more. Even if the purchasers build such residences, that does not 
preclude B from applying section 1237 to the sales of such lots, since 
the contracts did not obligate the purchasers to make any improvements.

    (iv) Improvements made by a bona fide lessee (other than as rent) or 
by others not described in section 1237(a) (2) do not preclude the use 
of section 1237.
    (3) When improvements substantially enhance the value of the lot 
sold. Before a substantial improvement will preclude the use of section 
1237, it must substantially enhance the value of the lot sold.
    (i) The increase in value to be considered is only the increase 
attributable to the improvement or improvements. Other changes in the 
market price of the lot, not arising from improvements made by the 
taxpayer, shall be disregarded. The difference between the value of the 
lot, including improvements, when the improvement has been completed and 
an appraisal of its value if unimproved at that time, will disclose the 
value added by the improvements.
    (ii) Whether improvements have substantially increased the value of 
a lot depends upon the circumstances in each case. If improvements 
increase the value of a lot by 10 percent or less, such increase will 
not be considered as substantial, but if the value of the lot is 
increased by more than 10 percent, then all relevant factors must be 
considered to determine whether, under such circumstances, the increase 
is substantial.
    (iii) Improvement may increase the value of some lots in a tract 
without equally affecting other lots in the same tract. Only the lots 
whose value was substantially increased are ineligible

[[Page 326]]

for application of the rule established by section 1237.
    (4) When an improvement is substantial. To prevent the application 
of section 1237, the improvement itself must be substantial in 
character. Among the improvements considered substantial are shopping 
centers, other commercial or residential buildings, and the installation 
of hard surface roads or utilities such as sewers, water, gas, or 
electric lines. On the other hand a temporary structure used as a field 
office, surveying, filling, draining, leveling and clearing operations, 
and the construction of minimum all-weather access roads, including 
gravel roads where required by the climate, are not substantial 
improvements.
    (5) Special rules relating to substantial improvements. Under 
certain conditions a taxpayer, including a corporation to which 
subdivision (iv) of this subparagraph applies, may obtain the benefits 
of section 1237 whether or not substantial improvements have been made. 
In addition, an individual taxpayer may, under certain circumstances 
elect to have substantial improvements treated as necessary and not 
substantial.
    (i) When an improvement is not considered substantial. An 
improvement will not be considered substantial if all of the following 
conditions are met:
    (a) The taxpayer has held the property for 10 years. The full 10-
year period must elapse, whether or not the taxpayer inherited the 
property. Although the taxpayer must hold the property 10 years, he need 
not hold it for 10 years after subdividing it. See paragraph (d) of this 
section for rules relating to the determination of the period for which 
the property is held.
    (b) The improvement consists of the building or installation of 
water, sewer, or drainage facilities (either surface, sub-surface, or 
both) or roads, including hard surface roads, curbs, and gutters.
    (c) The district director with whom the taxpayer must file his 
return is satisfied that, without such improvement, the lot sold would 
not have brought the prevailing local price for similar building sites.
    (d) The taxpayer elects, as provided in subdivision (iii) of this 
subparagraph, not to adjust the basis of the lot sold or any other 
property held by him for any part of the cost of such improvement 
attributable to such lot and not to deduct any part of such cost as an 
expense.
    (ii) Meaning of similar building site. A similar building site is 
any real property in the immediate vicinity whose size, terrain, and 
other characteristics are comparable to the taxpayer's property. For the 
purpose of determining whether a tract is marketable at the prevailing 
local price for similar building sites, the taxpayer shall furnish the 
district director with sufficient evidence to enable him to compare (a) 
the value of the taxpayer's property in an unimproved state with (b) the 
amount for which similar building sites, improved by the installation of 
water, sewer, or drainage facilities or roads, have recently been sold, 
reduced by the present cost of such improvements. Such comparison may be 
made and expressed in terms of dollars per square foot, dollars per 
acre, or dollars per front foot, or in any other suitable terms 
depending upon the practice generally followed by real estate dealers in 
the taxpayer's locality. The taxpayer shall also furnish evidence, where 
possible, of the best bona fide offer received for the tract or a lot 
thereof just before making the improvement, to assist the district 
director in determining the value of the tract or lot if it had been 
sold in its unimproved state. The operation of this subdivision and 
subdivision (i) of this subparagraph may be illustrated by the following 
examples:

    Example 1. A has been offered $500 per acre for a tract without 
roads, water, or sewer facilities which he has owned for 15 years. The 
adjacent tract has been subdivided and improved with water facilities 
and hard surface roads, and has sold for $4,000 per acre. The estimated 
cost of roads and water facilities on the adjacent tract is $2,500 per 
acre. The prevailing local price for similar building sites in the 
vicinity would be $1,500 per acre (i.e., $4,000 less $2,500). If A 
installed roads and water facilities at a cost of $2,500 per acre, his 
tract would sell for approximately $4,000 per acre. Under section 
1237(b)(3) the installation of roads and water facilities does not 
constitute a substantial improvement if A elects to disregard the cost 
of such improvements ($2,500 per acre) in computing his cost or other 
basis for the lots sold from the

[[Page 327]]

tract, and in computing his basis for any other property owned by him.
    Example 2. Assume the same facts as in example (1) of this 
subdivision, except that A can obtain $1,600 per acre for his property 
without improvements. The installation of any substantial improvements 
would not constitute a necessary improvement under section 1237(b)(3), 
since the prevailing local price could have been obtained without any 
improvement.
    Example 3. Assume the same facts as in example (1) of this 
subdivision, except that the adjacent tract has also been improved with 
sewer facilities, the present cost of which is $1,200 per acre. The 
installation of the substantial improvements would not constitute a 
necessary improvement under section 1237(b)(3) on A's part, since the 
prevailing local price ($4,000 less the sum of $1,200 plus $2,500, or 
$300) could have been obtained by A without any improvement.

    (iii) Manner of making election. The election required by section 
1237(b) (3)(C) shall be made as follows:
    (a) The taxpayer shall submit:
    (1) A plat showing the subdivision and all improvements attributable 
to him.
    (2) A list of all improvements to the tract, showing:
    (i) The cost of such improvements.
    (ii) Which of the improvements, without regard to the election, he 
considers substantial and which he considers not substantial.
    (iii) Those improvements which are substantial to which the election 
is to apply, with a fair allocation of their cost to each lot they 
affect, and the amount by which they have increased the values of such 
lots.
    (iv) The date on which each lot was acquired and its basis for 
determining gain or loss, exclusive of the cost of any improvements 
listed in subdivision (iii) of this subdivision.
    (3) A statement that he will neither deduct as an expense nor add to 
the basis of any lot sold, or of any other property, any portion of the 
cost of any substantial improvement which substantially increased the 
value of any lot in the tract and which either he listed pursuant to 
(a)(2)(iii) of this subdivision or which the district director deems 
substantial.
    (b) The election and the information required under (a) of this 
subdivision shall be submitted to the district director:
    (1) With the taxpayer's income tax return for the taxable year in 
which the lots subject to the election were sold, or
    (2) In the case of a return filed prior to August 14, 1957, either 
with a timely claim for refund, where the benefits of section 1237 have 
not been claimed on such return, or, independently, before November 13, 
1957, where such benefits have been claimed, or
    (3) If there is an obligation to make disqualifying improvements 
outstanding when the taxpayer files his return, with a formal claim for 
refund at the time of the release of the obligation, if it is then still 
possible to file a timely claim.
    (c) Once made, the election as to the necessary improvement costs 
attributable to any lot sold shall be irrevocable and binding on the 
taxpayer unless the district director assesses an income tax as to such 
lot as if it were held for sale in the ordinary course of taxpayer's 
business. Under such circumstances, in computing gain, the cost or other 
basis shall be computed without regard to section 1237.
    (iv) Exceptions with respect to necessary improvements and certain 
corporations. For taxable years beginning after December 31, 1954, 
individual taxpayers and certain corporations may obtain the benefits of 
section 1237 without complying with the provisions of subdivisions (i) 
(c) and (d), (ii), and (iii) of this subparagraph if the requirements of 
section 1237 are otherwise met and if:
    (a) The property in question was acquired by the taxpayer through 
the foreclosure of a lien thereon,
    (b) The lien foreclosed secured the payment of an indebtedness to 
the taxpayer or (in the case of a corporation) secured the payment of an 
indebtedness to a creditor who has transferred the foreclosure bid to 
the taxpayer in exchange for all of the stock of the corporation and 
other consideration, and
    (c) In the case of a corporate taxpayer, no shareholder of the 
corporation holds real property for sale to customers in the ordinary 
course of his trade or business or holds a controlling interest in 
another corporation which actually so holds real property, or which, but 
for the application of this

[[Page 328]]

subdivision, would be considered to so hold real property.

Thus, in the case of such property, it is not necessary for the taxpayer 
to satisfy the district director that the property would not have 
brought the prevailing local price without improvements or to elect not 
to add the cost of the improvements to his basis. In addition, if 80 
percent or more of the real property owned by a taxpayer is property to 
which this subdivision applies, the requirements of (a) and (b) of this 
subdivision need not be met with respect to property adjacent to such 
property which is also owned by the taxpayer.
    (d) Holding period required--(1) General rules. To apply section 
1237, the taxpayer must either have inherited the lot sold or have held 
it for 5 years. Generally, the provisions of section 1223 are applicable 
in determining the period for which the taxpayer has held the property. 
The provisions of this subparagraph may be illustrated by the following 
examples:

    Example 1. A held a tract of land for 3 years under circumstances 
otherwise qualifying for section 1237 treatment. He made a gift of the 
tract to B at a time when the fair market value of the tract exceeded 
A's basis for the tract. B held the tract for 2 more years under similar 
circumstances. B then sold 4 lots from the tract. B is entitled to the 
benefits of section 1237 since under section 1223(2) he held the lots 
for 5 years and all the other requirements of section 1237 are met.
    Example 2. C purchased all the stock in a corporation in 1955. The 
corporation purchased an unimproved tract of land in 1957. In 1961 the 
corporation was liquidated under section 333 and C acquired the tract of 
land. For purposes of section 1237, C's holding period commenced on the 
date the corporation actually acquired the land in 1957 and not on the 
date C purchased the stock.

    (2) Rules relating to property acquired upon death. If the taxpayer 
inherited the property there is no 5-year holding period required under 
section 1237. However, any holding period required by any other 
provision of the Code, such as section 1222, is nevertheless applicable. 
For purposes of section 1237, neither the survivor's one-half of 
community property, nor property acquired by survivorship in a joint 
tenancy, is property acquired by devise or inheritance. The holding 
period for the surviving joint tenant begins on the date the property 
was originally acquired.
    (e) Tax consequences if section 1237 applies--(1) Introductory. 
Where there is no substantial evidence other than subdivision and 
related selling activities that real property is held for sale in the 
ordinary course of taxpayer's business and section 1237 applies, section 
1237(b)(1) provides a special rule for computing taxable gain. For the 
relationship between sections 1237 and 1231, see paragraph (f) of this 
section.
    (2) Characterization of gain and its relation to selling expenses. 
(i) When the taxpayer has sold less than 6 lots or parcels from the same 
tract up to the end of his taxable year, the entire gain will be capital 
gain. (Where the land is used in a trade or business, see paragraph (f) 
of this section.) In computing the number of lots or parcels sold, two 
or more contiguous lots sold to a single buyer in a single sale will be 
counted as only one parcel. The following example illustrates this rule:

    Example: A meets all the conditions of section 1237 in subdividing 
and selling a single tract. In 1956 he sells 4 lots to B, C, D, and E. 
In the same year F buys 3 adjacent lots. Since A has sold only 5 lots or 
parcels from the tract, any gain A realizes on the sales will be capital 
gain.

    (ii) If the taxpayer has sold the sixth lot or parcel from the same 
tract within the taxable year, then the amount, if any, by which 5 
percent of the selling price of each lot exceeds the expenses incurred 
in connection with its sale or exchange, shall, to the extent it 
represents gain, be ordinary income. Any part of the gain not treated as 
ordinary income will be treated as capital gain. (Where the land is used 
in a trade or business, see paragraph (f) of this section.) Five percent 
of the selling price of each lot sold from the tract in the taxable year 
the sixth lot is sold and thereafter is, to the extent it represents 
gain, considered ordinary income. However, all expenses of sale of the 
lot are to be deducted first from the 5 percent of the gain which would 
otherwise be considered ordinary income, and any remainder of such 
expenses shall reduce the gain upon the sale or exchange which would 
otherwise be considered capital gain. Such

[[Page 329]]

expenses cannot be deducted as ordinary business expenses from other 
income. The 5-percent rule applies to all lots sold from the tract in 
the year the sixth lot or parcel is sold. Thus, if the taxpayer sells 
the first 6 lots of a single tract in one year, 5 percent of the selling 
price of each lot sold shall be treated as ordinary income and reduced 
by the selling expenses. On the other hand, if the taxpayer sells the 
first 3 lots of a single tract in 1955, and the next 3 lots in 1956, 
only the gain realized from the sales made in 1956 shall be so treated. 
For the effect of a 5-year interval between sales, see paragraph (g)(2) 
of this section. The operation of this subdivision may be illustrated by 
the following examples:

    Example 1. Assume the selling price of the sixth lot of a tract is 
$10,000, the basis of the lot in the hands of the taxpayer is $5,000, 
and the expenses of sale are $750. The amount of gain realized by the 
taxpayer is $4,250, of which the amount of ordinary income attributable 
to the sale is zero, computed as follows:

Selling price................................................    $10,000
Basis........................................................      5,000
                                                   ------------
    Excess over basis........................................      5,000
5 percent of selling price........................        500
Expenses of sale..................................        750
                                                   -----------
Amount of gain realized treated as ordinary income...........          0
Excess over basis............................................      5,000
5 percent of selling price........................        500
Excess of expenses over 5 percent of selling price        250
                                                   -----------
                                                    .........        750
                                                              ----------
    Amount of gain realized from sale of property not held         4,250
     for sale in ordinary course of business.................
 

    Example 2. Assume the same facts as in Example 1, except that the 
expenses of sale of such sixth lot are $300. The amount of gain realized 
by the taxpayer is $4,700, of which the amount of ordinary income 
attributable to the sale is $200, computed as follows:

Selling price................................................    $10,000
Basis........................................................      5,000
                                                   ------------
    Excess over basis........................................      5,000
5 percent of selling price........................       $500
Expenses of sale..................................        300
                                                   -----------
Amount of gain realized treated as ordinary income...........        200
Excess over basis............................................      5,000
5 percent of selling price........................        500
Excess of expenses over 5 percent of selling price          0
                                                   -----------
                                                    .........        500
                                                              ----------
    Amount of gain realized from sale of property not held         4,500
     for sale in ordinary course of business.................
 

    (iii) In the case of an exchange, the term selling price shall mean 
the fair market value of property received plus any sum of money 
received in exchange for the lot. See section 1031 for those exchanges 
in which no gain is recognized. For the purpose of subsections (b) and 
(c) of section 1237 and paragraphs (e) and (g) of this section, an 
exchange shall be treated as a sale or exchange whether or not gain or 
loss is recognized with respect to such exchange.
    (f) Relationship of section 1237 and section 1231. Application of 
section 1237 to a sale of real property may, in some cases, result in 
the property being treated as real property used in the trade or 
business, as described in section 1231(b)(1). Thus, assuming section 
1237 is otherwise applicable, if the lot sold would be considered 
property described in section 1231(b)(1) except for the fact that the 
taxpayer subdivided the tract of which it was a part, then evidence of 
such subdivision and connected sales activities shall be disregarded and 
the lot sold shall be considered real property used in the trade or 
business. Under such circumstances, any gain or loss realized from the 
sale shall be treated as gain or loss arising from the sale of real 
property used in the trade or business.
    (g) Definition of tract--(1) Aggregation of properties. For the 
purposes of section 1237, the term tract means either (i) a single piece 
of real property or (ii) two or more pieces of real property if they 
were contiguous at any time while held by the taxpayer, or would have 
been contiguous but for the interposition of a road, street, railroad, 
stream, or similar property. Properties are contiguous if their 
boundaries meet at one or more points. The single piece of contiguous 
properties need not have been conveyed by a single deed. The taxpayer 
may have assembled them over a period of time and may hold them 
separately, jointly, or as a partner, or in any combination of such 
forms of ownership.
    (2) When a subdivision will be considered a new tract. If the 
taxpayer sells or exchanges no lots from the tract for a

[[Page 330]]

period of 5 years after the sale or exchange of at least 1 lot in the 
tract, then the remainder of the tract shall be deemed a new tract for 
the purpose of counting the number of lots sold from the same tract 
under section 1237(b)(1). The pieces in the new tract need not be 
contiguous. The 5-year period is measured between the dates of the sales 
or exchanges.
    (h) Effective date. This section shall apply only to gain realized 
on sales made after December 31, 1953, or, in the case of a person 
meeting the requirements of paragraph (c)(5)(iv) of this section, if the 
sale of the lot occurs in a taxable year beginning after December 31, 
1954. Pursuant to section 7851(a)(1)(C), the regulations prescribed in 
this section (other than subdivision (iv) of paragraph (c)(5)) shall 
also apply to taxable years beginning before January 1, 1954, and ending 
after December 31, 1953, and to taxable years beginning after December 
31, 1953, and ending before August 17, 1954, although such years are 
subject to the Internal Revenue Code of 1939. Irrespective of whether 
the taxable year involved is subject to the Internal Revenue Code of 
1939 or the Internal Revenue Code of 1954, sales or exchanges made 
before January 1, 1954, shall be taken into account to determine 
whether: (1) No sales or exchanges have been made for 5 years, under 
section 1237(c), and (2) more than 5 lots or parcels have been sold or 
exchanged from the same tract, under section 1237(b)(1). Thus, if the 
taxpayer sold 5 lots from a single tract in 1950, and another lot is 
sold in 1954, the lot sold in 1954 constitutes the sixth lot sold from 
the original tract. On the other hand, if the first 5 lots were sold in 
1948, the sale made in 1954 shall be deemed to have been made from a new 
tract.

[T.D. 6500, 25 FR 12016, Nov. 26, 1960]



Sec. 1.1238-1  Amortization in excess of depreciation.

    (a) In general. Section 1238 provides that if a taxpayer is entitled 
to a deduction for amortization of an emergency facility under section 
168, and if the facility is later sold or exchanged, any gain realized 
shall be considered as ordinary income to the extent that the 
amortization deduction exceeds normal depreciation. Thus, under section 
1238 gain from a sale or exchange of property shall be considered as 
ordinary income to the extent that its adjusted basis is less than its 
adjusted basis would be if it were determined without regard to section 
168. If an entire facility is certified under section 168(e), the 
taxpayer may use allowances for depreciation based on any rate and 
method which would have been proper if the basis of the facility were 
not subject to amortization under section 168, in determining what the 
adjusted basis of the facility would be if it were determined without 
regard to section 168. If only a portion of a facility is certified 
under section 168(e), allowances for depreciation based on the rate and 
method properly used with respect to the uncertified part of the 
facility are used in determining what the adjusted basis of the facility 
would be if it were determined without regard to section 168. The 
principles of this paragraph may be illustrated by the following 
examples:

    Example 1. On December 31, 1954, a taxpayer making his income tax 
returns on a calendar year basis acquires at a cost of $20,000 an 
emergency facility (used in his business) 50 percent of the adjusted 
basis of which has been certified under section 168(e). The facility 
would normally have a useful life of 20 years and a salvage value of 
$2,000 allocable equally between the certified and uncertified portions. 
Under section 168 the taxpayer elects to begin the 60-month amortization 
period on January 1, 1955. He takes amortization deductions with respect 
to the certified portion in the amount of $4,000 for the years 1955 and 
1956 (24 months). On December 31, 1956, he sells the facility for a 
price of $19,000 which is allocable equally between the certified and 
uncertified portions. The adjusted basis of the certified portion on 
that date is $6,000 ($10,000 cost, less $4,000 amortization). With 
respect to the uncertified portion, the straight line method of 
depreciation is used and a deduction for depreciation in the amount of 
$450 is claimed and allowed for the year 1955. The adjusted basis of the 
uncertified portion on January 1, 1956, is $9,550 ($10,000 cost, less 
$450 depreciation). The depreciation allowance for the uncertified 
portion for the year 1956 would be limited to $50, the amount by which 
the adjusted basis of such portion at the beginning of the year exceeded 
its aliquot portion of the sales price. Thus, on December 31, 1956, the 
adjusted basis of the uncertified portion would be $9,500. Without 
regard to section

[[Page 331]]

168, and using the rate and method the taxpayer properly applied to the 
uncertified portion of the facility, the adjusted basis of the certified 
portion on December 31, 1956, would be $9,500, computed in the same 
manner as the adjusted basis of the uncertified portion. The difference 
between the facility's actual adjusted basis ($15,500) and its adjusted 
basis determined without regard to section 168 ($19,000), is $3,500. 
Accordingly, the entire $3,500 gain on the sale of the facility ($19,000 
sale price, less $15,500 adjusted basis) is treated as ordinary income.
    Example 2. Assume that the entire facility in example (1) had been 
certified under section 168(e) and that, therefore, the adjusted basis 
of the facility on December 31, 1956, is $12,000. Assume further that 
the taxpayer adopts straight line depreciation as a proper method of 
depreciation for determining the adjusted basis of the facility without 
regard to section 168. Thus, the adjusted basis, without regard to 
section 168, would be $19,000. This amount is $7,000 more than the 
$12,000 adjusted basis under section 168. Hence, the entire $7,000 gain 
on the sale of the facility ($19,000 sale price less $12,000 adjusted 
basis) is treated as ordinary income.

    (b) Substituted basis. If a taxpayer acquires other property in an 
exchange for an emergency facility with respect to which amortization 
deductions have been allowed or allowable, and if the basis in his hands 
of the other property is determined by reference to the basis of the 
emergency facility, then the basis of the other property is determined 
with regard to section 168, and therefore the provisions of section 1238 
apply with respect to gain realized on a subsequent sale or exchange of 
the other property. The provisions of section 1238 also apply to gain 
realized on the sale or exchange of an emergency facility (or other 
property acquired, as described in the preceding sentence, in exchange 
for an emergency facility) by a taxpayer in whose hands the basis of the 
facility (or other property) is determined by reference to its basis in 
the hands of another person to whom deductions were allowable or allowed 
with respect to the facility under section 168.

[T.D. 6500, 25 FR 12020, Nov. 26, 1960, as amended by T.D. 6825, 30 FR 
7281, June 2, 1965]



Sec. 1.1239-1  Gain from sale or exchange of depreciable property 
between certain related taxpayers after October 4, 1976.

    (a) In general. In the case of a sale or exchange of property, 
directly or indirectly, between related persons after October 4, 1976 
(other than a sale or exchange made under a binding contract entered 
into on or before that date), any gain recognized by the transferor 
shall be treated as ordinary income if such property is, in the hands of 
the transferee, subject to the allowance for depreciation provided in 
section 167. This rule also applies to property which would be subject 
to the allowance for depreciation provided in section 167 except that 
the purchaser has elected a different form of deduction, such as those 
allowed under sections 169, 188, and 191.
    (b) Related persons. For purposes of paragraph (a) of this section, 
the term related persons means:
    (1) A husband and wife,
    (2) An individual and a corporation 80 percent or more in value of 
the outstanding stock of which is owned, directly or indirectly, by or 
for such individual, or
    (3) Two or more corporations 80 percent or more in value of the 
outstanding stock of each of which is owned, directly or indirectly, by 
or for the same individual.
    (c) Rules of construction--(1) Husband and wife. For purposes of 
paragraph (b)(1) of this section, if on the date of the sale or exchange 
a taxpayer is legally separated from his spouse under an interlocutory 
decree of divorce, the taxpayer and his spouse shall not be treated as 
husband and wife, provided the sale or exchange is made pursuant to the 
decree and the decree subsequently becomes final. Thus, if pursuant to 
an interlocutory decree of divorce, an individual transfers depreciable 
property to his spouse and, because of this section, the gain recognized 
on the transfer of the property is treated as ordinary income, the 
individual may, if the interlocutory decree becomes final after his tax 
return has been filed, file a claim for a refund.
    (2) Sales between commonly controlled corporations. In general, in 
the case of a

[[Page 332]]

sale or exchange of depreciable property between related corporations 
(within the meaning of paragraph (b)(3) of this section), gain which is 
treated as ordinary income by reason of this section shall be taxable to 
the transferor corporation rather than to a controlling shareholder. 
However, such gain shall be treated as ordinary income taxable to a 
controlling shareholder rather than the transferor corporation if the 
transferor corporation is used by a controlling shareholder as a mere 
conduit to make a sale to another controlled corporation, or the entity 
of the corporate transferor is otherwise properly disregarded for tax 
purposes. Sales between two or more corporations that are related within 
the meaning of paragraph (b)(3) of this section may also be subject to 
the rules of section 482 (relating to allocation of income between or 
among organizations, trades, or businesses which are commonly owned or 
controlled), and to rules requiring constructive dividend treatment to 
the controlling shareholder in appropriate circumstances.
    (3) Relationship determination for transfers made after January 6, 
1983--taxpayer and an 80-percent owned entity. For purposes of paragraph 
(b)(2) of this section with respect to transfers made after January 6, 
1983--
    (i) If the transferor is an entity, the transferee and such entity 
are related if the entity is an 80-percent owned entity with respect to 
such transferee either immediately before or immediately after the sale 
or exchange of depreciable property, and
    (ii) If the transferor is not an entity, the transferee and such 
transferor are related if the transferee is an 80-percent owned entity 
with respect to such transferor immediately after the sale or exchange 
of depreciable property.
    (4) Relationship determination for transfers made after January 6, 
1983--two 80-percent owned entities. For purposes of paragraph (b)(3) of 
this section, with respect to transfers made after January 6, 1983, two 
entities are related if the same shareholder both owns 80 percent or 
more in value of the stock of the transferor before the sale or exchange 
of depreciable property and owns 80 percent or more in value of the 
stock of the transferee immediately after the sale or exchange of 
depreciable property.
    (5) Ownership of stock. For purposes of determining the ownership of 
stock under this section, the constructive ownership rules of section 
318 shall be applied, except that section 318(a)(2)(C) (relating to 
attribution of stock ownership from a corporation) and section 
318(a)(3)(C) (relating to attribution of stock ownership to a 
corporation) shall be applied without regard to the 50-percent 
limitation contained therein. The application of the constructive 
ownership rules of section 318 to section 1239 is illustrated by the 
following examples:

    Example 1. A, an individual, owns 79 percent of the stock (by value) 
of Corporation X, and a trust for A's children owns the remaining 21 
percent of the stock. A's children are deemed to own the stock owned for 
their benefit by the trust in proportion to their actuarial interests in 
the trust (section 318(a)(2)(B)). A, in turn, constructively owns the 
stock so deemed to be owned by his children (section 318(a)(1)(A)(ii)). 
Thus, A is treated as owning all the stock of Corporation X, and any 
gain A recognizes from the sale of depreciable property to Corporation X 
is treated under section 1239 as ordinary income.
    Example 2. Y Corporation owns 100 percent in value of the stock of Z 
Corporation. Y Corporation sells depreciable property at a gain to Z 
Corporation. P and his daughter, D, own 80 percent in value of the Y 
Corporation stock. Under the constructive ownership rules of section 
318, as applied to section 1239, P and D are each considered to own the 
stock in Z Corporation owned by Y Corporation. Also, P and D are each 
considered to own the stock in Y Corporation owned by the other. As a 
result, both P and D constructively own 80 percent or more in value of 
the stock of both Y and Z Corporations. Thus, the sale between Y and Z 
is governed by section 1239 and produces ordinary income to Y.

[T.D. 7569, 43 FR 51388, Nov. 3, 1978, as amended by T.D. 8106, 51 FR 
42835, Nov. 26, 1986]



Sec. 1.1239-2  Gain from sale or exchange of depreciable property 
between certain related taxpayers on or before October 4, 1976.

    Section 1239 provides in general that any gain from the sale or 
exchange of depreciable property between a husband and wife or between 
an individual and a controlled corporation on or before October 4, 1976 
(and in the case of a sale or exchange occurring after that

[[Page 333]]

date if made under a binding contract entered into on or before that 
date), shall be treated as ordinary income. Thus, any gain recognized to 
the transferor from a sale or exchange after May 3, 1951, and on or 
before October 4, 1976 (or thereafter if pursuant to a binding contract 
entered into on or before that date), directly or indirectly, between a 
husband and wife or between an individual and a controlled corporation, 
of property which, in the hands of the transferee, is property of a 
character subject to an allowance for depreciation provided in section 
167 (including such property on which a deduction for amortization is 
allowable under sections 168 and 169) shall be considered as gain from 
the sale or exchange of property which is neither a capital asset nor 
property described in section 1231. For the purpose of section 1239, a 
corporation is controlled when more than 80 percent in value of all 
outstanding stock of the corporation is beneficially owned by the 
taxpayer, his spouse, and his minor children and minor grandchildren. 
For the purpose of this section, the terms children and grandchildren 
include legally adopted children and their children. The provisions of 
section 1239(a)(2) are applicable whether property is transferred from a 
corporation to a shareholder or from a shareholder to a corporation.

[T.D. 6500, 25 FR 12021, Nov. 26, 1960, as amended by T.D. 7569, 43 FR 
51388, Nov. 3, 1978]



Sec. 1.1240-1  Capital gains treatment of certain termination payments.

    Any amounts received by an employee for the assignment or release of 
all his rights to receive, after termination of his employment and for a 
period of not less than five years or for a period ending with his 
death, a percentage of the profits or receipts of his employer 
attributable to a time subsequent to such termination, are considered 
received from the sale or exchange of a capital asset held for more than 
six months if the following requirements are met:
    (a) The employee was employed by the employer, in whose future 
profits or receipts the employee had an interest, for a period of more 
than 20 years before the assignment or release by the employee of his 
rights in such future profits or receipts,
    (b) The full rights of the employee to the percentage of the future 
profits or receipts on such employer, which rights are the subject of 
the assignment or release, were incorporated in the terms of the 
contract of employment between the employee and the employer for a 
period of at least 12 years, and were so incorporated before August 16, 
1954,
    (c) The assignment or release was made after the termination of the 
employee's employment with such employer,
    (d) The assignment or release conveyed all the rights of the 
employee in the future profits or receipts of such employer and conveyed 
no other rights of the employee, and
    (e) The total amount to which the employee became entitled pursuant 
to the assignment or release was received by the employee after the 
termination of his employment with such employer and in one taxable year 
of the employee.

The requirement that the assignment or release be made after the 
termination of the employee's employment contemplates a complete and 
bona fide termination of the relationship of employer and employee. This 
requires more than a mere termination of such relationship under the 
particular contract or contracts of employment pursuant to which the 
employee acquired his rights in the future profits or receipts of the 
employer. The contract need not expressly provide that the employee 
shall share in the future profits or receipts of the employer for a 
minimum period of five years. However, if the contract does not 
expressly so provide and the assignment or release is made before the 
expiration of five years following the termination of employment, the 
terms of the contract considered in conjunction with the facts in the 
particular situation must establish that the rights of the employee to a 
percentage of future profits or receipts, in all probability, will 
extend to a period of not less than five years from the date of 
termination of employment or for a period ending with his death. Section 
1240 has application only to an assignment or release

[[Page 334]]

made by the employee who acquired the right to a percentage of future 
profits or receipts of the employer, and has no application to amounts 
received other than as payment for assignment or release of such right. 
Section 1240 has no effect upon the determination of the income tax of 
the employer making the payment to the employee.

[T.D. 6500, 25 FR 12021, Nov. 26, 1960]



Sec. 1.1241-1  Cancellation of lease or distributor's agreement.

    (a) In general. Section 1241 provides that proceeds received by 
lessees or distributors from the cancellation of leases or of certain 
distributorship agreements are considered as amounts received in 
exchange therefor. Section 1241 applies to leases of both real and 
personal property. Distributorship agreements to which section 1241 
applies are described in paragraph (c) of this section. Section 1241 has 
no application in determining whether or not a cancellation not 
qualifying under that section is a sale or exchange. Further, section 
1241 has no application in determining whether or not a lease or a 
distributorship agreement is a capital asset, even though its 
cancellation qualifies as an exchange under section 1241.
    (b) Definition of cancellation. The term cancellation of a lease or 
a distributor's agreement, as used in section 1241, means a termination 
of all the contractual rights of a lessee or distributor with respect to 
particular premises or a particular distributorship, other than by the 
expiration of the lease or agreement in accordance with its terms. A 
payment made in good faith for a partial cancellation of a lease or a 
distributorship agreement is recognized as an amount received for 
cancellation under section 1241 if the cancellation relates to a 
severable economic unit, such as a portion of the premises covered by a 
lease, a reduction in the unexpired term of a lease or distributorship 
agreement, or a distributorship in one of several areas or of one of 
several products. Payments made for other modifications of leases or 
distributorship agreements, however, are not recognized as amounts 
received for cancellation under section 1241.
    (c) Amounts received upon cancellation of a distributorship 
agreement. Section 1241 applies to distributorship agreements only if 
they are for marketing or marketing and servicing of goods. It does not 
apply to agreements for selling intangible property or for rendering 
personal services as, for example, agreements establishing insurance 
agencies or agencies for the brokerage of securities. Further, it 
applies to a distributorship agreement only if the distributor has made 
a substantial investment of capital in the distributorship. The 
substantial capital investment must be reflected in physical assets such 
as inventories of tangible goods, equipment, machinery, storage 
facilities, or similar property. An investment is not considered 
substantial for purposes of section 1241 unless it consists of a 
significant fraction or more of the facilities for storing, 
transporting, processing, or otherwise dealing with the goods 
distributed, or consists of a substantial inventory of such goods. The 
investment required in the maintenance of an office merely for clerical 
operations is not considered substantial for purposes of this section. 
Furthermore, section 1241 shall not apply unless a substantial amount of 
the capital or assets needed for carrying on the operations of a 
distributorship are acquired by the distributor and actually used in 
carrying on the distributorship at some time before the cancellation of 
the distributorship agreement. It is immaterial for the purposes of 
section 1241 whether the distributor acquired the assets used in 
performing the functions of the distributorship before or after 
beginning his operations under the distributorship agreement. It is also 
immaterial whether the distributor is a retailer, wholesaler, jobber, or 
other type of distributor. The application of this paragraph may be 
illustrated by the following examples:

    Example 1. Taxpayer is a distributor of various food products. He 
leases a warehouse including cold storage facilities and owns a number 
of motor trucks. In 1955 he obtains the exclusive rights to market 
certain frozen food products in his State. The marketing is accomplished 
by using the warehouse and trucks acquired before he entered into the 
agreement and entails no additional capital. Payments received upon the 
cancellation of

[[Page 335]]

the agreement are treated under section 1241 as though received upon the 
sale or exchange of the agreement.
    Example 2. Assume that the taxpayer in example (1) entered into an 
exclusive distributorship agreement with the producer under which the 
taxpayer merely solicits orders through his staff of salesmen, the goods 
being shipped direct to the purchasers. Payments received upon the 
cancellation of the agreement would not be treated under section 1241 as 
though received upon the sale or exchange of the agreement.
    Example 3. Taxpayer is an exclusive distributor for M city of 
certain frozen food products which he distributes to frozen-food freezer 
and locker customers. The terms of his distributorship do not make it 
necessary for him to have any substantial investment in inventory. 
Taxpayer rents a loading platform for a nominal amount, but has no 
warehouse space. Orders for goods from customers are consolidated by the 
taxpayer and forwarded to the producer from time to time. Upon receipt 
of these goods, taxpayer allocates them to the individual orders of 
customers and delivers them immediately by truck. Although it would 
require a fleet of fifteen or twenty trucks to carry out this operation, 
the distributor uses only one truck of his own and hires cartage 
companies to deliver the bulk of the merchandise to the customers. 
Payments received upon the cancellation of the distributorship agreement 
in such a case would not be considered received upon the sale or 
exchange of the agreement under section 1241 since the taxpayer does not 
have facilities for the physical handling of more than a small fraction 
of the goods involved in carrying on the distributorship and, therefore, 
does not have a substantial capital investment in the distributorship. 
On the other hand, if the taxpayer had acquired and used a substantial 
number of the trucks necessary for the deliveries to his customers, 
payments received upon the cancellation of the agreement would be 
considered received in exchange therefor under section 1241.

[T.D. 6500, 25 FR 12021, Nov. 26, 1960]



Sec. 1.1242-1  Losses on small business investment company stock.

    (a) In general. Any taxpayer who sustains a loss for a taxable year 
beginning after September 2, 1958, as a result of the worthlessness, or 
from the sale or exchange, of the stock of a small business investment 
company (whether or not such stock was originally issued to such 
taxpayer) shall treat such loss as a loss from the sale or exchange of 
property which is not a capital asset, if at the time of such loss:
    (1) The company which issued the stock is licensed to operate as a 
small business investment company pursuant to regulations promulgated by 
the Small Business Administration (13 CFR part 107), and
    (2) Such loss would, but for the provisions of section 1242, be a 
loss from the sale or exchange of a capital asset.
    (b) Treatment of losses for purposes of section 172. For the 
purposes of section 172 (relating to the net operating loss deduction), 
any amount of loss treated by reason of section 1242 as a loss from the 
sale or exchange of property which is not a capital asset shall be 
treated as attributable to the trade or business of the taxpayer. 
Accordingly, the limitation of section 172(d)(4) on the allowance of 
nonbusiness deductions in computing a net operating loss shall not apply 
to any loss with respect to the stock of a small business investment 
company as described in paragraph (a) of this section. See section 
172(d) and Sec. 1.172-3.
    (c) Statement to be filed with return. A taxpayer claiming a 
deduction for a loss on the stock of a small business investment company 
shall file with his income tax return a statement containing: The name 
and address of the small business investment company which issued the 
stock, the number of shares, basis, and selling price of the stock with 
respect to which the loss is claimed, the respective dates of purchase 
and sale of such stock, or the reason for its worthlessness and 
approximate date thereof. For the rules applicable in determining the 
worthlessness of securities, see section 165 and the regulations 
thereunder.

[T.D. 6500, 25 FR 12022, Nov. 26, 1960]



Sec. 1.1243-1  Loss of small business investment company.

    (a) In general--(1) Taxable years beginning after July 11, 1969. For 
taxable years beginning after July 11, 1969, a small business investment 
company to which section 582(c) applies, and which sustains a loss as a 
result of the worthlessness, or on the sale or exchange, of the stock of 
a small business concern (as defined in section 103(5) of the Small 
Business Investment Act of 1958, as amended (15 U.S.C. 662(5)) and in 13 
CFR 107.3), shall treat such loss as a

[[Page 336]]

loss from the sale or exchange of property which is not a capital asset 
if:
    (i) The stock was issued pursuant to the conversion privilege of the 
convertible debentures acquired in accordance with the provisions of 
section 304 of the Small Business Investment Act of 1958 (15 U.S.C. 684) 
and the regulations thereunder.
    (ii) Such loss would, but for the provisions of section 1243, be a 
loss from the sale or exchange of a capital asset, and
    (iii) At the time of the loss, the company is licensed to operate as 
a small business investment company pursuant to regulations promulgated 
by the Small Business Administration (13 CFR part 107).

If section 582(c) does not apply for the taxable year, see subparagraph 
(2) of this paragraph.
    (2) Taxable years beginning before July 11, 1974. For taxable years 
beginning after September 2, 1958, but before July 11, 1974, a small 
business investment company to which section 582(c) does not apply, and 
which sustains a loss as a result of the worthlessness, or on the sale 
or exchange, of the securities of a small business concern (as defined 
in section 103(5) of the Small Business Investment Act of 1958, as 
amended (15 U.S.C. 662(5)) and in 13 CFR 107.3), shall treat such loss 
as a loss from the sale or exchange of property which is not a capital 
asset if:
    (i) The securities are either the convertible debentures, or the 
stock issued pursuant to the conversion privilege thereof, acquired in 
accordance with the provisions of section 304 of the Small Business 
Investment Act of 1958 (15 U.S.C. 684) and the regulations thereunder.
    (ii) Such loss would, but for the provisions of this subparagraph, 
be a loss from the sale or exchange of a capital asset, and
    (iii) At the time of the loss, the company is licensed to operate as 
a small business investment company pursuant to regulations promulgated 
by the Small Business Administration (13 CFR part 107).

If section 582(c) applies for the taxable year, see subparagraph (1) of 
this paragraph.
    (b) Material to be filed with return. A small business investment 
company which claims a deduction for a loss on the convertible 
debentures (pursuant to paragraph (a)(2) of this section) or stock 
(pursuant to paragraph (a) (1) or (2) of this section) of a small 
business concern shall submit with its income tax return a statement 
that it is a Federal licensee under the Small Business Investment Act of 
1958 (15 U.S.C. chapter 14B). The statement shall also set forth: the 
name and address of the small business concern with respect to whose 
securities the loss was sustained, the number of shares of stock or the 
number and denomination of debentures with respect to which the loss is 
claimed, the basis and selling price thereof, and the respective dates 
of purchase and sale of the securities, or the reason for their 
worthlessness and the approximate date thereof. For the rules applicable 
in determining the worthlessness of securities, see section 165 and the 
regulations thereunder.

[T.D. 7171, 37 FR 5621, Mar. 17, 1972]



Sec. 1.1244(a)-1  Loss on small business stock treated as ordinary loss.

    (a) In general. Subject to certain conditions and limitations, 
section 1244 provides that a loss on the sale or exchange (including a 
transaction treated as a sale or exchange, such as worthlessness) of 
section 1244 stock which would otherwise be treated as a loss from the 
sale or exchange of a capital asset shall be treated as a loss from the 
sale or exchange of an asset which is not a capital asset (referred to 
in this section and Sec. Sec. 1.1244(b)-1 to 1.1244(e)-1, inclusive, as 
an ordinary loss). Such a loss shall be allowed as a deduction from 
gross income in arriving at adjusted gross income. The requirements that 
must be satisfied in order that stock may be considered section 1244 
stock are described in Sec. Sec. 1.1244(c)-1 and 1.1244(c)-2. These 
requirements relate to the stock itself and the corporation issuing such 
stock. In addition, the taxpayer who claims an ordinary loss deduction 
pursuant to section 1244 must satisfy the requirements of paragraph (b) 
of this section.
    (b) Taxpayers entitled to ordinary loss. The allowance of an 
ordinary loss deduction for a loss of section 1244 stock

[[Page 337]]

is permitted only to the following two classes of taxpayers:
    (1) An individual sustaining the loss to whom the stock was issued 
by a small business corporation, or
    (2) An individual who is a partner in a partnership at the time the 
partnership acquired the stock in an issuance from a small business 
corporation and whose distributive share of partnership items reflects 
the loss sustained by the partnership. The ordinary loss deduction is 
limited to the lesser of the partner's distributive share at the time of 
the issuance of the stock or the partner's distributive share at the 
time the loss is sustained. In order to claim a deduction under section 
1244 the individual, or the partnership, sustaining the loss must have 
continuously held the stock from the date of issuance. A corporation, 
trust, or estate is not entitled to ordinary loss treatment under 
section 1244 regardless of how the stock was acquired. An individual who 
acquires stock from a shareholder by purchase, gift, devise, or in any 
other manner is not entitled to an ordinary loss under section 1244 with 
respect to this stock.

Thus, ordinary loss treatment is not available to a partner to whom the 
stock is distributed by the partnership. Stock acquired through an 
investment banking firm, or other person, participating in the sale of 
an issue may qualify for ordinary loss treatment only if the stock is 
not first issued to the firm or person. Thus, for example, if the firm 
acts as a selling agent for the issuing corporation the stock may 
qualify. On the other hand, stock purchased by an investment firm and 
subsequently resold does not qualify as section 1244 stock in the hands 
of the person acquiring the stock from the firm.
    (c) Examples. The provisions of paragraph (b) of this section may be 
illustrated by the following examples:

    Example 1. A and B, both individuals, and C, a trust, are equal 
partners in a partnership to which a small business corporation issues 
section 1244 stock. The partnership sells the stock at a loss. A's and 
B's distributive share of the loss may be treated as an ordinary loss 
pursuant to section 1244, but C's distributive share of the loss may not 
be so treated.
    Example 2. The facts are the same as in example (1) except that the 
section 1244 stock is distributed by the partnership to partner A and he 
subsequently sells the stock at a loss. Section 1244 is not applicable 
to the loss since A did not acquire the stock by issuance from the small 
business corporation.

[T.D. 6495, 25 FR 9675, Oct. 8, 1960, as amended by T.D. 7779, 46 FR 
29467, June 2, 1981]



Sec. 1.1244(b)-1  Annual limitation.

    (a) In general. Subsection (b) of section 1244 imposes a limitation 
on the aggregate amount of loss that for any taxable year may be treated 
as an ordinary loss by a taxpayer by reason of that section. In the case 
of a partnership, the limitation is determined separately as to each 
partner. Any amount of loss in excess of the applicable limitation is 
treated as loss from the sale or exchange of a capital asset.
    (b) Amount of loss--(1) Taxable years beginning after December 31, 
1978. For any taxable year beginning after December 31, 1978, the 
maximum amount that may be treated as an ordinary loss under section 
1244 is:
    (i) $50,000, or
    (ii) $100,000, if a husband and wife file a joint return under 
section 6013.

These limitations on the maximum amount of ordinary loss apply whether 
the loss or losses are sustained on pre-November 1978 stock (as defined 
in Sec. 1.1244 (c)-1 (a)(1)), post-November 1978 stock (as defined in 
Sec. 1.1244 (c)-1 (a)(2)), or on any combination of pre-November 1978 
stock and post-November 1978 stock. The limitation referred to in (ii) 
applies to a joint return whether the loss or losses are sustained by 
one or both spouses.
    (2) Taxable years ending before November 6, 1978. For any taxable 
year ending before November 6, 1978, the maximum amount that may be 
treated as an ordinary loss under section 1244 is:
    (i) $25,000 or
    (ii) $50,000, if a husband and wife file a joint return under 
section 6013.

The limitation referred to in (ii) applies to a joint return whether the 
loss or losses are sustained by one or both spouses.
    (3) Taxable years including November 6, 1978. For a taxable year 
including November 6, 1978, the maximum amount

[[Page 338]]

that may be treated as ordinary loss under section 1244 is the sum of:
    (i) The amount calculated by applying the limitations described in 
subparagraph (1) of this paragraph (b) to the amount of loss, if any, 
sustained during the taxable year on post-November 1978 stock, plus
    (ii) The amount calculated by applying the limitations described in 
subparagraph (2) of this paragraph (b) to the amount of loss, if any, 
sustained during the taxable year on pre-November 1978 stock,


To the extent this sum does not exceed $50,000, or, if a husband and 
wife file a joint return under section 6013 for the taxable year, 
$100,000.
    (4) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. A, a married taxpayer who files a joint return for the 
taxable year ending December 31, 1977, sustains a $50,000 loss 
qualifying under section 1244 on pre-November 1978 stock in Corporation 
X and an equal amount of loss qualifying under section 1244 on pre-
November 1978 stock in Corporation Y. A is limited to $50,000 of 
ordinary loss under paragraph (b)(2)(ii). The remaining $50,000 of loss 
is treated as loss from the sale or exchange of a capital asset.
    Example 2. For the taxable year ending December 31, 1979, B, a 
married taxpayer who files a joint return, sustains a $90,000 loss on 
post-November 1978 stock in Corporation X. In the same taxable year, C, 
B's spouse, sustains a $25,000 loss on post-November 1978 stock in 
Corporation Y. Both losses qualify under section 1244. B and C's 
ordinary loss is limited to $100,000 under paragraph (b)(1)(ii). The 
remaining $15,000 of loss is treated as loss from the sale or exchange 
of a capital asset.
    Example 3. D, a married taxpayer who files a joint return and 
reports income on a fiscal year basis for the taxable year ending 
November 30, 1978, sustains a $60,000 loss qualifying under section 1244 
on pre-November 1978 stock and a $40,000 loss qualifying under section 
1244 on post-November 1978 stock. D's ordinary loss on pre-November 1978 
stock is limited to $50,000 under subparagraph (3)(ii) of this paragraph 
(b). D's $40,000 loss on post-November 1978 stock is within the limit of 
subparagraph (3)(i) of this paragraph (b). The total of these losses, 
$90,000, is the aggregate amount deductible by D as ordinary loss under 
section 1244. The remaining $10,000 of loss is treated as loss from the 
sale or exchange of a capital asset.
    Example 4. E, a married taxpayer who files a joint return for the 
taxable year ending December 31, 1980, sustains a $75,000 loss 
qualifying under section 1244 on pre-November 1978 stock and a $10,000 
loss qualifying under section 1244 on post-November 1978 stock. E may 
deduct the total of these losses, $85,000, as ordinary loss under 
paragraph (b)(1)(ii).
    Example 5. Assume the same facts as in the preceding example, except 
that the losses are sustained in the taxable year beginning January 1, 
1978, and ending December 31, 1978. E is limited to $60,000 of ordinary 
loss ($50,000 on pre-November 1978 stock plus $10,000 on post-November 
1978 stock) under paragraph (b)(3). The remaining $25,000 of loss is 
treated as loss from the sale or exchange of a capital asset.
    Example 6. F, a married taxpayer who files a joint return for the 
taxable year beginning January 1, 1978, and ending December 31, 1978, 
sustains a $75,000 loss qualifying under section 1244 on pre-November 
1978 stock and a $125,000 loss qualifying under section 1244 on post-
November 1978 stock. F's loss on pre-November 1978 stock is limited to 
$50,000 of ordinary loss under subparagraph (3)(ii) of this paragraph 
(b). F's loss on post-November 1978 stock is limited to $100,000 of 
ordinary loss under subparagraph (3)(i) of this paragraph (b). The total 
of these losses, $150,000, is limited to $100,000 of ordinary loss under 
paragraph (b)(3). F's aggregate amount of ordinary loss under section 
1244 is $100,000. The remaining $100,000 of loss is treated as loss from 
the sale or exchange of a capital asset.

[T.D. 7779, 46 FR 29467, June 2, 1981]



Sec. 1.1244(c)-1  Section 1244 stock defined.

    (a) In general. For purposes of Sec. Sec. 1.1244(a)-1 to 1.1244(e)-
1, inclusive:
    (1) The term pre-November 1978 stock means stock issued after June 
30, 1958, and on or before November 6, 1978.
    (2) The term post-November 1978 stock means stock issued after 
November 6, 1978.

    In order that stock may qualify as section 1244 stock, the 
requirements described in paragraphs (b) through (e) of this section 
must be satisfied. In addition, the requirements of paragraph (f) of 
this section must be satisfied in the case of pre-November 1978 stock. 
Whether these requirements have been met is determined at the time the 
stock is issued, except for the requirement in paragraph (e) of this 
section. Whether the requirement in paragraph (e) of this section, 
relating to gross receipts of the corporation, has been satisfied is 
determined at the time a loss is sustained. Therefore, at the time of 
issuance it cannot be said with certainty that stock will qualify for 
the benefits of section 1244.


[[Page 339]]


    (b) Common stock. Only common stock, either voting or nonvoting, in 
a domestic corporation may qualify as section 1244 stock. For purposes 
of section 1244, neither securities of the corporation convertible into 
common stock nor common stock convertible into other securities of the 
corporation are treated as common stock. An increase in the basis of 
outstanding stock as a result of a contribution to capital is not 
treated as an issuance of stock under section 1244. For definition of 
domestic corporation, see section 7701(a)(4) and the regulations under 
that section.
    (c) Small business corporation. At the time the stock is issued (or, 
in the case of pre-November 1978 stock, at the time of adoption of the 
plan described in paragraph (f)(1) of this section) the corporation must 
be a small business corporation. See Sec. 1.1244(c)-2 for the 
definition of a small business corporation.
    (d) Issued for money or other property. (1) The stock must be issued 
to the taxpayer for money or other property transferred by the taxpayer 
to the corporation. However, stock issued in exchange for stock or 
securities, including stock or securities of the issuing corporation, 
cannot qualify as section 1244 stock, except as provided in Sec. 
1.1244(d)-3, relating to certain cases where stock is issued in exchange 
for section 1244 stock. Stock issued for services rendered or to be 
rendered to, or for the benefit of, the issuing corporation does not 
qualify as section 1244 stock. Stock issued in consideration for 
cancellation of indebtedness of the corporation shall be considered 
issued in exchange for money or other property unless such indebtedness 
is evidenced by a security, or arises out of the performance of personal 
services.
    (2) The following examples illustrate situations where stock fails 
to qualify as section 1244 stock as a result of the rules in 
subparagraph (1) of this paragraph:

    Example 1. A taxpayer owns stock of Corporation X issued to him 
prior to July 1, 1958. Under a plan adopted in 1977, he exchanges his 
stock for a new issuance of stock of Corporation X. The stock received 
by the taxpayer in the exchange may not qualify as section 1244 stock 
even if the corporation has adopted a valid plan and is a small business 
corporation.
    Example 2. A taxpayer owns stock in Corporation X. Corporation X 
merges into Corporation Y. In exchange for his stock, Corporation Y 
issues shares of its stock to the taxpayer. The stock in Corporation Y 
does not qualify as section 1244 stock even if the stock exchanged by 
the taxpayer did qualify.
    Example 3. Corporation X transfers part of its business assets to 
Corporation Y, a new corporation, and all of the stock of Corporation Y 
is issued directly to the shareholders of Corporation X. Since the 
Corporation Y stock was not issued to the shareholders for a transfer by 
them of money or other property, none of the Corporation Y stock in the 
hands of the shareholders can qualify.

    (e) Gross receipts. (1)(i)(a) Except as provided in subparagraph (2) 
of this paragraph, stock will not qualify under section 1244, if 50 
percent or more of the gross receipts of the corporation, for the period 
consisting of the five most recent taxable years of the corporation 
ending before the date the loss on such stock is sustained by the 
shareholders, is derived from royalties, rents, dividends, interest, 
annuities, and sales or exchanges of stock or securities. If the 
corporation has not been in existence for five taxable years ending 
before such date, the percentage test referred to in the preceding 
sentence applies to the period of the taxable years ending before such 
date during which the corporation has been in existence; and if the loss 
is sustained during the first taxable year of the corporation such test 
applies to the period beginning with the first day of such taxable year 
and ending on the day before the loss is sustained. The test under this 
paragraph shall be made on the basis of total gross receipts, except 
that gross receipts from the sales or exchanges of stock or securities 
shall be taken into account only to the extent of gains therefrom. The 
term gross receipts as used in section 1244(c)(1)(C) is not synonymous 
with gross income. Gross receipts means the total amount received or 
accrued under the method of accounting used by the corporation in 
computing its taxable income. Thus, the total amount of receipts is not 
reduced by returns and allowances, cost,

[[Page 340]]

or deductions. For example, gross receipts will include the total amount 
received or accrued during the corporation's taxable year from the sale 
or exchange (including a sale or exchange to which section 337 applies) 
of any kind of property, from investments, and for services rendered by 
the corporation. However, gross receipts does not include amounts 
received in nontaxable sales or exchanges (other than those to which 
section 337 applies), except to the extent that gain is recognized by 
the corporation, nor does that term include amounts received as a loan, 
as a repayment of a loan, as a contribution to capital, or on the 
issuance by the corporation of its own stock.
    (b) The meaning of the term gross receipts as used in section 
1244(c)(1)(C) may be further illustrated by the following examples:

    Example 1. A corporation on the accrual method sells property (other 
than stock or securities) and receives payment partly in money and 
partly in the form of a note payable at a future time. The amount of the 
money and the face amount of the note would be considered gross receipts 
in the taxable year of the sale and would not be reduced by the adjusted 
basis of the property, the costs of sale, or any other amount.
    Example 2. A corporation has a long-term contract as defined in 
paragraph (a) of Sec. 1.451-3 with respect to which it reports income 
according to the percentage-of-completion method as described in 
paragraph (b)(1) of Sec. 1.451-3. The portion of the gross contract 
price which corresponds to the percentage of the entire contract which 
has been completed during the taxable year shall be included in gross 
receipts for such year.
    Example 3. A corporation which regularly sells personal property on 
the installment plan elects to report its taxable income from the sale 
of property (other than stock or securities) on the installment method 
in accordance with section 453. The installment payments actually 
received in a given taxable year of the corporation shall be included in 
gross receipts for such year.

    (ii) The term royalties as used in subdivision (i) of this 
subparagraph means all royalties, including mineral, oil, and gas 
royalties (whether or not the aggregate amount of such royalties 
constitutes 50 percent or more of the gross income of the corporation 
for the taxable year), and amounts received for the privilege of using 
patents, copyrights, secret processes and formulas, good will, 
trademarks, trade brands, franchises, and other like property. The term 
royalties does not include amounts received upon the disposal of timber, 
coal, or domestic iron ore with a retained economic interest to which 
the special rules of section 631 (b) and (c) apply or amounts received 
from the transfer of patent rights to which section 1235 applies. For 
the definition of mineral, oil, or gas royalties, see paragraph (b)(11) 
(ii) and (iii) of Sec. 1.543-1. For purposes of this subdivision, the 
gross amount of royalties shall not be reduced by any part of the cost 
of the rights under which they are received or by any amount allowable 
as a deduction in computing taxable income.
    (iii) The term rents as used in subdivision (i) of this subparagraph 
means amounts received for the use of, or right to use, property 
(whether real or personal) of the corporation, whether or not such 
amounts constitute 50 percent or more of the gross income of the 
corporation for the taxable year. The term rents does not include 
payments for the use or occupancy of rooms or other space where 
significant services are also rendered to the occupant, such as for the 
use or occupancy of rooms or other quarters in hotels, boarding houses, 
or apartment houses furnishing hotel services, or in tourist homes, 
motor courts, or motels. Generally, services are considered rendered to 
the occupant if they are primarily for his convenience and are other 
than those usually or customarily rendered in connection with the rental 
of rooms or other space for occupancy only. The supplying of maid 
service, for example, constitutes such services; whereas the furnishing 
of heat and light, the cleaning of public entrances, exits, stairways, 
and lobbies, the collection of trash, etc., are not considered as 
services rendered to the occupant. Payments for the use or occupancy of 
entire private residences or living quarters in duplex or multiple 
housing units, of offices in an office building, etc., are generally 
rents under section 1244(c)(1)(C). Payments for the parking of 
automobiles ordinarily do not constitute rents. Payments for the 
warehousing of goods or for the use of personal property do not 
constitute

[[Page 341]]

rents if significant services are rendered in connection with such 
payments.
    (iv) The term dividends as used in subdivision (i) of this 
subparagraph includes dividends as defined in section 316, amounts 
required to be included in gross income under section 551 (relating to 
foreign personal holding company income taxed to United States 
shareholders), and consent dividends determined as provided in section 
565.
    (v) The term interest as used in subdivision (i) of this 
subparagraph means any amounts received for the use of money (including 
tax-exempt interest).
    (vi) The term annuities as used in subdivision (i) of this 
subparagraph means the entire amount received as an annuity under an 
annuity, endowment, or life insurance contract, regardless of whether 
only part of such amount would be includible in gross income under 
section 72.
    (vii) For purposes of subdivision (i) of this subparagraph, gross 
receipts from the sales or exchanges of stock or securities are taken 
into account only to the extent of gains therefrom. Thus, the gross 
receipts from the sale of a particular share of stock will be the excess 
of the amount realized over the adjusted basis of such share. If the 
adjusted basis should equal or exceed the amount realized on the sale or 
exchange of a certain share of stock, bond, etc., there would be no 
gross receipts resulting from the sale of such security. Losses on sales 
or exchanges of stock or securities do not offset gains on the sales or 
exchanges of other stock or securities for purposes of computing gross 
receipts from such sales or exchanges. Gross receipts from the sale or 
exchange of stocks and securities include gains received from such sales 
or exchanges by a corporation even though such corporation is a regular 
dealer in stocks and securities. For the meaning of the term stocks or 
securities, see paragraph (b)(5)(i) of Sec. 1.543-1.
    (2) The requirement of subparagraph (1) of this paragraph need not 
be satisfied if for the applicable period the aggregate amount of 
deductions allowed to the corporation exceeds the aggregate amount of 
its gross income. But for this purpose the deductions allowed by section 
172, relating to the net operating loss deduction, and by sections 242, 
243, 244, and 245, relating to certain special deductions for 
corporations, shall not be taken into account. Notwithstanding the 
provisions of this subparagraph and of subparagraph (1) of this 
paragraph, pursuant to the specific delegation of authority granted in 
section 1244(e) to prescribe such regulations as may be necessary to 
carry out the purposes of section 1244, ordinary loss treatment will not 
be available with respect to stock of a corporation which is not largely 
an operating company within the five most recent taxable years (or such 
lesser period as the corporation is in existence) ending before the date 
of the loss. Thus, for example, assume that a person who is not a dealer 
in real estate forms a corporation which issues stock to him which meets 
all the formal requirements of section 1244 stock. The corporation then 
acquires a piece of unimproved real estate which it holds as an 
investment. The property declines in value and the stockholder sells his 
stock at a loss. The loss does not qualify for ordinary loss treatment 
under section 1244 but must be treated as a capital loss.
    (3) In applying subparagraphs (1) and (2) of this paragraph to a 
successor corporation in a reorganization described in section 
368(a)(1)(F), such corporation shall be treated as the same corporation 
as its predecessor. See paragraph (d)(2) of Sec. 1.1244(d)-3.
    (f) Special rules applicable to pre-November 1978 stock. (1)(i) Pre-
November 1978 common stock must have been issued under a written plan 
adopted by the corporation after June 30, 1958, and on or before 
November 6, 1978, to offer only this stock during a period specified in 
the plan ending not later than 2 years after the date the plan is 
adopted. The 2-year requirement referred to in the preceding sentence is 
met if the period specified in the plan is based upon the date when, 
under the rules or regulations of a Government agency relating to the 
issuance of the stock, the stock may lawfully be sold, and it is clear 
that this period will end, and in fact does end, within 2 years after 
the plan is adopted. The plan must specifically state, in terms of 
dollars, the maximum amount to be received by

[[Page 342]]

the corporation in consideration for the stock to be issued under the 
plan. See Sec. 1.1244(c)-2 for the limitation on the amount that may be 
received by the corporation under the plan.
    (ii) To qualify, the pre-November 1978 stock must be issued during 
the period of the offer, which period must end not later than two years 
after the date the plan is adopted. Pre-November 1978 stock which is 
subscribed for during the period of the plan but not issued during this 
period cannot qualify as section 1244 stock. Pre-November 1978 stock 
issued on the exercise of a stock right, stock warrant, or stock option 
(which right, warrant, or option was not outstanding at the time the 
plan was adopted) will be treated as issued under a plan only if the 
right, warrant, or option is applicable solely to unissued stock offered 
under the plan and is exercised during the period of the plan.
    (iii) Pre-November 1978 stock subscribed for prior to the adoption 
of the plan, including stock subscribed for prior to the date the 
corporation comes into existence, may be considered issued under a plan 
adopted by the corporation if the stock is not in fact issued prior to 
the adoption of the plan.
    (iv) Pre-November 1978 stock issued for a payment which, alone or 
together with prior payments, exceeds the maximum amount that may be 
received under the plan, is not considered issued under the plan, and 
none of the stock can qualify as section 1244 stock. See Sec. 
1.1244(c)-2(b) for a different rule with respect to post-November 1978 
stock.
    (2) Pre-November 1978 stock does not qualify as section 1244 stock 
if at the time of the adoption of the plan under which it is issued 
there remains unissued any portion of a prior offering of stock. Thus, 
if any portion of an outstanding offering of common or preferred stock 
is unissued at the time of the adoption of the plan, stock issued under 
the plan will not qualify as section 1244 stock. An offer is outstanding 
unless and until it is withdrawn by affirmative action before the plan 
is adopted. Stock rights, stock warrants, stock options, or securities 
convertible into stock, that are outstanding at the time the plan is 
adopted, are considered prior offerings. The authorization in the 
corporate charter to issue stock different from stock offered under the 
plan or in excess of stock offered under the plan is not of itself a 
prior offering.
    (3)(i) Even though the plan satisfies the requirements of 
subparagraph (1) of this paragraph (f), if another offering of pre-
November 1978 stock is made by the corporation subsequent to, or 
simultaneous with, the adoption of the plan, pre-November 1978 stock 
issued under the plan after the other offering does not qualify as 
section 1244 stock. The issuance of stock options, stock rights, or 
stock warrants at any time during the period of the plan, that are 
exercisable on stock other than stock offered under the plan, is 
considered a subsequent offering. Similarly, the issuance of pre-
November 1978 stock other than that offered under the plan is considered 
a subsequent offering. Because stock issued upon exercise of a converson 
privilege is stock issued for a security, and stock issued under a stock 
option granted in whole or in part for services is not issued for money 
or other property, the issuance of securities with a conversion 
privilege and the issuance of such a stock option are subsequent 
offerings, because the conversion privilege and the stock option are 
exercisable with respect to stock other than that which may properly be 
offered under the plan. Pre-November 1978 stock issued under the plan 
before a subsequent offering is not disqualified because of the 
subsequent offering. The rule of the subparagraph, together with the 
rule of subparagraph (2) of this paragraph (f), relating to offers prior 
to the adoption of the plan, limits pre-November 1978 section 1244 stock 
to stock issued by the corporation during a period when any stock issued 
by it must have been issued under the plan.
    (ii) Any modification of a plan that changes the offering to include 
preferred stock, or that increases the amount of pre-November 1978 stock 
that may be issued under the plan to such an extent that the 
requirements of paragraph (c) of this section would not have been 
satisfied if determined with reference to this amount as of the date the 
plan was initially adopted, or that extends the period of time during

[[Page 343]]

which stock may be issued under the plan to more than 2 years from the 
date the plan was initially adopted, is considered a subsequent 
offering, and no stock issued after this offering may qualify. However, 
a corporation may withdraw a plan and adopt a new plan to issue stock. 
To determine whether stock issued under this new plan may qualify, this 
paragraph (f) must be applied with respect to the new plan as of the 
date of its adoption. For example, amounts received for stock under the 
prior plan must be taken into account in determining whether the 
statutory requirements relating to definition of small business 
corporation are satisfied. In applying the requirements of paragraph (c) 
of this section, reference should be made to equity capital as of the 
date the new plan is adopted. The same principles apply if the period of 
the initial plan expires and the corporation adopts a new plan.

[T.D. 7779, 46 FR 29468, June 2, 1981]



Sec. 1.1244(c)-2  Small business corporation defined.

    (a) In general. A corporation is treated as a small business 
corporation if it is a domestic corporation that satisfies the 
requirements described in paragraph (b) or (c) of this section. The 
requirements of paragraph (b) of this section apply if a loss is 
sustained on post-November 1978 stock. The requirements of paragraph (c) 
of this section apply if a loss is sustained on pre-November 1978 stock. 
If losses are sustained on both pre-November 1978 stock and post-
November 1978 stock in the same taxable year, the requirements of 
paragraph (b) of this section are applied to the corporation at the time 
of the issuance of the stock (as required by paragraph (b) in the case 
of a loss on post-November 1978 stock) in order to determine whether the 
loss on post-November 1978 stock qualifies as a section 1244 loss, and 
the requirements of paragraph (c) of this section are applied to the 
corporation at the time of the adoption of the plan (as required by 
paragraph (c) in the case of a loss on pre-November 1978 stock) in order 
to determine whether the loss on pre-November 1978 stock qualifies as a 
section 1244 loss. For definition of domestic corporation, see section 
7701 (a)(4) and the regulations under that section.
    (b) Post-November 1978 stock--(1) Amount received by corporation for 
stock. Capital receipts of a small business corporation may not exceed 
$1,000,000. For purposes of this paragraph the term capital receipts 
means the aggregate dollar amount received by the corporation for its 
stock, as a contribution to capital, and as paid-in surplus. If the 
$1,000,000 limitation is exceeded, the rules of subparagraph (2) of this 
paragraph (b) apply. In making these determinations, (i) property is 
taken into account at its adjusted basis to the corporation (for 
determining gain) as of the date received by the corporation, and (ii) 
this aggregate amount is reduced by the amount of any liability to which 
the property was subject and by the amount of any liability assumed by 
the corporation at the time the property was received. Capital receipts 
are not reduced by distributions to shareholders, even though the 
distributions may be capital distributions.
    (2) Requirement of designation in event $1,000,000 limitation 
exceeded. (i) If capital receipts exceed $1,000,000, the corporation 
shall designate as section 1244 stock certain shares of post-November 
1978 common stock issued for money or other property in the transitional 
year. For purposes of this paragraph, the term transitional year means 
the first taxable year in which capital receipts exceed $1,000,000 and 
in which the corporation issues stock. This designation shall be made in 
accordance with the rules of subdivision (iii) of this paragraph (b)(2). 
The amount received for designated stock shall not exceed $1,000,000 
less amounts received--
    (A) In exchange for stock in years prior to the transitional year;
    (B) As contributions to capital in years prior to the transitional 
year; and
    (C) As paid-in surplus in years prior to the transitional year.
    (ii) Post-November 1978 common stock issued for money or other 
property before the transitional year qualifies as section 1244 stock 
without affirmative designation by the corporation. Post-November 1978 
common stock issued after the transitional year does not qualify as 
section 1244 stock.

[[Page 344]]

    (iii) The corporation shall make the designation required by 
subdivision (i) of this paragraph (b)(2) not later than the 15th day of 
the third month following the close of the transitional year. However, 
in the case of post-November 1978 common stock issued on or before June 
2, 1981 the corporation shall make the required designation by August 3, 
1981 or by the 15th day of the 3rd month following the close of the 
transitional year, whichever is later. The designation shall be made by 
entering the numbers of the qualifying share certificates on the 
corporation's records. If the shares do not bear serial numbers or other 
identifying numbers or letters, or are not represented by share 
certificates, the corporation shall make an alternative designation in 
writing at the time of issuance, or, in the case of post-November 1978 
common stock issued on or before June 2, 1981 by August 3, 1981. This 
alternative designation may be made in any manner sufficient to identify 
the shares qualifying for section 1244 treatment. If the corporation 
fails to make a designation by share certificate number or an 
alternative written designation as described, the rules of subparagraph 
(3) of this paragraph (b) apply.
    (3) Allocation of section 1244 benefit in event corporation fails to 
designate qualifying shares. If a corporation issues post-November 1978 
stock in the transitional year and fails to designate certain shares of 
post-November 1978 common stock as section 1244 stock in accordance with 
the rules of subparagraph (2) of this paragraph (b), the following rules 
apply:
    (i) Section 1244 treatment is extended to losses sustained on post-
November 1978 common stock issued for money or other property in taxable 
years before the transitional year and is withheld from losses sustained 
on post-November 1978 stock issued in taxable years after the 
transitional year.
    (ii) Post-1958 capital received before the transitional year is 
subtracted from $1,000,000.
    iii) Subject to the annual limitation described in Sec. 1.1244(b)-
1, an ordinary loss on post-November 1978 common stock issued for money 
or other property in the transitional year is allowed in an amount which 
bears the same ratio to the total loss sustained by the individual as:
    (A) The amount described in Sec. 1.1244(c)-2(b) (3) (ii) bears to
    (B) The total amount of money and other property received by the 
corporation in exchange for stock, as a contribution to capital, and as 
paid-in surplus in the transitional year.
    (4) Examples. The provisions of this paragraph (b) may be 
illustrated by the following examples:

    Example 1. On December 1, 1978, Corporation W, a newly-formed 
corporation, issues 10,000 shares of common stock at $125 a share for an 
amount (determined under subparagraph (1) of this paragraph (b)) of 
money and other property totaling $1,250,000. The board of directors 
specifies that 8,000 shares are section 1244 stock and records the 
certificate numbers of the qualifying shares in its minutes. Because 
Corporation W issued post-November 1978 common stock in exchange for 
money and other property exceeding $1,000,000, but has designated shares 
of stock as section 1244 stock and the designated shares were issued in 
exchange for money and other property not exceeding $1,000,000 (8,000 
shares x $125 price per share = $1,000,000), the 8,000 designated shares 
qualify as section 1244 stock.
    Example 2. Corporation X comes into existence on June 1, 1979. On 
June 10, 1979, Corporation X issues 2,500 shares of common stock at $250 
per share to shareholder A and 2,500 shares of common stock at $250 per 
share to shareholder B. By written agreement dated September 1, 1981, 
shareholder A and shareholder B determine that 1,500 of shareholder A's 
shares and all of shareholder B's shares will be treated as section 1244 
stock. Although shareholder A's 1,500 shares and shareholder B's 2,500 
shares were issued for money and other property not exceeding $1,000,000 
(4,000 shares x $250 price per share = $1,000,000, these 4,000 shares do 
not qualify as section 1244 stock under the rules of subparagraph (2) of 
this paragraph (b) for three reasons: The agreement of September 1, 
1979, (i) did not identify which 1,500 of shareholder A's 2,500 shares 
were intended to qualify for section 1244 treatment, (ii) was made by 
the shareholders and not by Corporation X, and (iii) was made later than 
the 15th day of the third month following the close of the transitional 
year. However, certain of the shares issued by Corporation X may qualify 
as section 1244 stock under the rules of subparagraph (3) of this 
paragraph (b). See example (4).
    Example 3. On December 1, 1980, Corporation Y issues common stock to 
shareholder A in exchange for $500,000 in cash. On August 1, 1981, 
Corporation Y issues common stock to

[[Page 345]]

shareholder B in exchange for property having an adjusted basis to 
Corporation Y of $500,000. On December 1, 1981, B transfers a tract of 
land having a basis in B's hands of $250,000 to Corporation Y as a 
contribution to capital. Under section 362(a)(2) of the Code, 
Corporation Y takes a basis of $250,000 in the tract of land. 
Corporation Y is a calendar year corporation. On February 15, 1982, it 
designates all of shareholder B's stock as section 1244 stock by 
entering the numbers of the qualifying certificates on the corporation's 
records. The designation made by Corporation Y is effective because it 
identifies which shares of its stock qualify for section 1244 treatment, 
was made in writing before the 15th day of the 3rd month following the 
close of the transitional year (1981), and because the amount received 
for designated stock does not exceed $1,000,000, less amounts received 
(i) in exchange for stock in years prior to the transitional year; (ii) 
as contributions to capital in years prior to the transitional year; and 
(iii) as paid-in surplus in years prior to the transitional year. 
Nevertheless, in the event of B's sale of his stock at a loss, the 
increase in basis attributable to his December, 1981, contribution to 
capital will be treated as allocable to stock that is not section 1244 
stock under Sec. 1.1244(d)-2.
    Example 4. Corporation Z, a newly-formed corporation, issues 10,000 
shares of common stock at $200 per share on July 1, 1979. In exchange 
for its stock Corporation Z receives property (other than stock or 
securities) having a basis to the corporation of $400,000, and 
$1,600,000 in cash, for a total of $2,000,000. Corporation Z fails to 
designate any of the issued shares as section 1244 stock. Shareholder C 
purchases 2,500 shares of the 10,000 shares of Corporation Z stock for 
$500,000 on July 1, 1979. Subsequently, shareholder C sells the 2,500 
shares for $400,000. Shareholder C may treat $50,000 of the $100,000 
loss as an ordinary loss under section 1244. The amount of that loss is 
computed under the rule of subparagraph (3) of this paragraph (b) as 
follows:

 
        X [C's section 1244 loss]              $1,000,000 [$1,000,000 -0
                                                     = $1,000,000]
                                           =
        $100,000 [C's total loss]              $2,000,000 [total amount
                                              received by Corporation Z]
 
 
                               X = $50,000
 


The remaining $50,000 is not treated as an ordinary loss under section 
1244.
    Example 5. (i) Corporation V, a newly-formed corporation, issues 
common stock to shareholder A and shareholder B on June 15, 1980, in 
exchange for $800,000 in cash ($400,000 from A and $400,000 from B). On 
September 15, 1981, the corporation issues common stock to shareholder C 
in exchange for $600,000 in cash. On January 1, 1982, common stock is 
issued to shareholder D in exchange for $100,000 in cash. Corporation V 
fails to designate any of the issued shares as section 1244 stock. A, B, 
C, and D subsequently sell their Corporation Y stock at a loss.
    (ii) Subject to the annual limitation discussed in Sec. 1.1244(b)-
1, A and B may treat their entire loss as an ordinary loss under section 
1244. D may not treat any part of his loss as an ordinary loss under 
section 1244. Subject to the annual limitation, one-third of the loss 
sustained by shareholder C is treated as an ordinary loss under section 
1244. These results are calculated under the rules of subparagraph (3) 
of this paragraph (b) as follows: First, section 1244 treatment is 
extended to post-November 1978 stock issued to A and B in 1980, a 
taxable year before the transitional year (1981); section 1244 treatment 
is withheld from the stock issued to D in 1982, a taxable year after the 
transitional year. Second $800,000 the amount of post-1958 capital 
received in taxable years before the transitional year, is subtracted 
from $1,000,000 to leave $200,000. Third, subject to the annual 
limitation, an ordinary loss is allowed to C in an amount which bears 
the same ratio to his total loss as the amount calculated in the 
preceding sentence ($200,000) bears to the total amount received by the 
corporation in the transitional year in exchange for stock, as a 
contribution to capital, or as paid-in surplus ($600,000).
    Example 6. Corporation V comes into existence on July 1, 1982. On 
that date it issues 10 shares of voting common stock to shareholder A in 
exchange for $500,000 and 5 shares of voting common stock to shareholder 
B in exchange for $250,000, designating the shares issued to both A and 
B as section 1244 stock. On September 15, 1982, Corporation V receives a 
contribution to capital from shareholders A and B having a basis in 
their hands of $225,000. On February 1, 1983, Corporation V issues one 
share of stock to shareholder C in exchange for $50,000. Corporation V 
may designate one-half of the share issued to shareholder C as section 
1244 stock under Sec. 1.1244(c)-2 (b)(2). In 1982 the corporation 
received $750,000 for stock ($500,000 from A and $250,000 from B) and 
$225,000 as a capital contribution, totaling $975,000 in capital 
receipts. The receipt of $50,000 from shareholder C in exchange for 
stock in 1983 causes capital receipts to exceed $1,000,000 and 1983 thus 
becomes Corporation V's transitional year. Corporation V may receive 
only $25,000 for designated stock in 1983 under the rule set forth in 
Sec. 1.1244 (c)-2 (b)(2)(i), which states that the amount received for 
designated stock shall not exceed $1,000,000, less amounts received (i) 
in exchange for stock in years prior to the transitional year ($750,000 
from A and B), (ii) as contributions to capital in years prior to the 
transitional year ($225,000), and (iii) as paid-in surplus in years 
prior to the transitional year ($0). Thus, one-half of C's share 
(representing the receipt of

[[Page 346]]

$25,000) may be designated as section 1244 stock by Corporation V. In 
the event of the sale of A's stock or B's stock at a loss, the increase 
in basis attributable to their contribution to capital will be treated 
as allocable to stock that is not section 1244 stock under Sec. 
1.1244(d)-2.

    (c) Pre-November 1978 stock--(1) Amount received by corporation for 
stock. At the time of the adoption of the plan, the sum of the aggregate 
dollar amount to be paid for pre-November 1978 stock that may be offered 
under the plan plus the aggregate amount of money and other property 
that has been received by the corporation after June 30, 1958, and on or 
before November 6, 1978, for its stock, as a contribution to capital by 
its shareholders, and as paid-in surplus must not exceed $500,000. In 
making these determinations (i) property is taken into account at its 
adjusted basis to the corporation (for determining gain) as of the date 
received by the corporation, and (ii) this aggregate amount is reduced 
by the amount of any liability to which the property was subject and by 
the amount of any liability assumed by the corporation at the time the 
property was received. For purposes of the $500,000 test, the total 
amount of money and other property received for stock, as a contribution 
to capital, and as paid-in surplus is not reduced by distributions to 
shareholders, even though the distributions may be capital 
distributions. Thus, once the total amount of money and other property 
received after June 30, 1958, reaches $500,000, the corporation is 
precluded from subsequently issuing pre-November 1978 stock. For a 
different rule that applies to post-November 1978 stock see Sec. 
1.1244(c)-2(b).
    (2) Equity capital. The sum of the aggregate dollar amount to be 
paid for pre-November 1978 stock that may be offered under the plan plus 
the equity capital of the corporation (determined on the date of the 
adoption of the plan) may not exceed $1,000,000. For this purpose, 
equity capital is the sum of the corporation's money and other property 
(in an amount equal to its adjusted basis for determining gain) less the 
amount of the corporation's indebtedness to persons other than its 
shareholders.
    (3) Examples. The provisions of this paragraph (c) may be 
illustrated by the following examples:

    Example 1. Corporation W comes into existence on December 1, 1958. 
On that date the corporation may adopt a plan to issue common stock for 
an amount (determined under subparagraph (1) of this paragraph (c)) not 
in excess of $500,000 during a period ending not later than November 30, 
1960. Such corporation will qualify as a small business corporation as 
of the date that the plan is adopted. However, if the corporation adopts 
a plan to issue stock for an amount in excess of $500,000 it is not a 
small business corporation at the time the plan is adopted and no stock 
issued under the plan may qualify as section 1244 stock. If the cost of 
organizing corporation W amounted to $1,000 and constituted paid-in 
surplus or a contribution to capital, such amount must be taken into 
account in determining the amount that may be received under the plan, 
with the result that only $499,000 may be so received.
    Example 2. On December 1, 1958, Corporation X, a newly formed 
corporation, adopts a plan to issue common stock for an amount 
(determined under subparagraph (1) of this paragraph (c)) not in excess 
of $500,000 during a period ending not later than November 30, 1960. By 
January 1, 1960, the corporation has, pursuant to the plan, issued at 
par, stock having an aggregate par value of $400,000, $200,000 of which 
was issued for $200,000 cash, and $200,000 of which was issued for 
property (other than stock or securities) having a basis to the 
corporation of $100,000 and a fair market value of $200,000. The 
corporation may, prior to November 30, 1960, issue stock for an amount 
not in excess of $200,000 cash or property having a basis to it not in 
excess of $200,000. Stock issued for any payment which, alone or 
together with any payments received after January 1, 1960, exceeds such 
$200,000 amount would not qualify as section 1244 stock because it would 
not be issued pursuant to the plan.
    Example 3. Assume that on December 1, 1958, Corporation Y, a newly 
formed corporation, adopts a plan to issue common stock for an amount 
(determined under subparagraph (1) of this paragraph (c)) not in excess 
of $500,000 during a period ending not later than November 30, 1960. By 
January 1960 the corporation has received $400,000 cash for stock issued 
pursuant to the plan, but due to business successes the equity capital 
of the corporation exceeds $1,000,000. Since the equity capital test is 
made as of the date that the plan is adopted, the corporation may still, 
prior to November 30, 1960, issue section 1244 stock pursuant to the 
plan until the full amount specified in the plan has been received.
    Example 4. Subsequent to June 30, 1958, Corporation Z receives a 
total of $600,000 cash on

[[Page 347]]

the issuance of its stock. In 1960 Corporation Z redeems shares of its 
stock for the total amount of $300,000 and the redemptions reduce 
Corporation Z's capital to substantially less than $500,000. 
Notwithstanding the redemptions, pre-November 1978 stock subsequently 
issued by Corporation Z will not qualify as section 1244 stock because 
the $500,000 limitation has been previously exceeded.

[T.D. 7779, 46 FR 29470, June 2, 1981, as amended by T.D. 7837, 47 FR 
42729, Sept. 29, 1982; 60 FR 16575, Mar. 31, 1995]



Sec. 1.1244(d)-1  Contributions of property having basis in excess of 
value.

    (a) In general. (1) Section 1244(d)(1) (A) provides a special rule 
which limits the amount of loss on section 1244 stock that may be 
treated as an ordinary loss. This rule applies only when section 1244 
stock is issued by a corporation in exchange for property that, 
immediately before the exchange, has an adjusted basis (for determining 
loss) in excess of its fair market value. If section 1244 stock is 
issued in exchange for such property and the basis of such stock in the 
hands of the taxpayer is determined by reference to the basis of such 
property, then for purposes of section 1244, the basis of such stock 
shall be reduced by an amount equal to the excess, at the time of the 
exchange, of the adjusted basis of the property over its fair market 
value.
    (2) The provisions of section 1244(d) (1)(A) do not affect the basis 
of stock for purposes other than section 1244. Such provisions are to be 
used only in determining the portion of the total loss sustained that 
may be treated as an ordinary loss pursuant to section 1244.
    (b) Transfer of more than one item. If a taxpayer exchanges several 
items of property for stock in a single transaction so that the basis of 
the property transferred is allocated evenly among the shares of stock 
received, the computation under this section should be made by reference 
to the aggregate fair market value and the aggregate basis of the 
property transferred.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. B transfers property with an adjusted basis of $1,000 and 
a fair market value of $250 to a corporation for 10 shares of section 
1244 stock in an exchange that qualifies under section 351. The basis of 
B's stock is $1,000 ($100 per share), but, solely for purposes of 
section 1244, the total basis of the stock must be reduced by $750, the 
excess of the adjusted basis of the property exchanged over its fair 
market value. Thus, the basis of such stock for purposes of section 1244 
is $250 and the basis of each share for such purposes is $25. If B sells 
his 10 shares for $250, he will recognize a loss of $750, all of which 
must be treated as a capital loss. If he sells the 10 shares for $200, 
then $50 of his total loss of $800 will be treated as an ordinary loss 
under section 1244, assuming the various requirements of such section 
are satisfied, and the remaining $750 will be a capital loss.
    Example 2. B owns property with a basis of $20,000. The fair market 
value of the property unencumbered is $15,000 but the property is 
subject to a $2,000 mortgage. B transfers the encumbered property to a 
corporation for 100 shares of section 1244 stock in an exchange that 
qualifies under section 351. The basis of the shares, determined in 
accordance with section 358, is $18,000 or $180 per share, but solely 
for purposes of section 1244 the basis is $13,000 ($130 per share), 
which is its basis for purposes other than section 1244, reduced by 
$5,000, the excess of the adjusted basis, immediately before the 
exchange, of the property transferred over its fair market value.
    Example 3. C transfers business assets to a corporation for 100 
shares of section 1244 stock in an exchange that qualifies under section 
351. The assets transferred are as follows:

------------------------------------------------------------------------
                                                                 Fair
                                                     Basis      market
                                                                 value
------------------------------------------------------------------------
Cash............................................     $10,000     $10,000
Inventory.......................................      15,000      30,000
Depreciable property............................      50,000      20,000
Land............................................      25,000      10,000
                                                 -----------------------
                                                     100,000      70,000
------------------------------------------------------------------------


The basis for the shares received by C is $100,000, which is applied 
$1,000 to each share. However, the basis of the shares for purposes of 
section 1244 is $70,000 ($700 per share), the basis for general purposes 
reduced by $30,000, the excess of the aggregate adjusted basis of the 
property transferred over the aggregate fair market value of such 
property.

[T.D. 6495, 25 FR 9679, Oct. 8, 1960]



Sec. 1.1244(d)-2  Increases in basis of section 1244 stock.

    (a) In general. If subsequent to the time of its issuance there is 
for any reason, including the operation of section 1376(a), an increase 
in the basis of section 1244 stock, such increase shall be treated as 
allocable to stock which

[[Page 348]]

is not section 1244 stock. Therefore, a loss on stock, the basis of 
which has been increased subsequent to its issuance, must be apportioned 
between the part that qualifies as section 1244 stock and the part that 
does not so qualify. Only the loss apportioned to the part that so 
qualifies may be treated as an ordinary loss pursuant to section 1244. 
The amount of loss apportioned to the part that qualifies is the amount 
which bears the same ratio to the total loss as the basis of the stock 
which is treated as allocated to section 1244 stock bears to the total 
basis of the stock.
    (b) Example. The provisions of paragraph (a) of this section may be 
illustrated by the following example:

    Example: For $10,000 a corporation issues 100 shares of section 1244 
stock to X. X later contributes $2,000 to the capital of the corporation 
and this increases the total basis of his 100 shares to $12,000. 
Subsequently, he sells the 100 shares for $9,000. Of the $3,000 loss, 
$2,500 is allocated to the portion of the stock that qualifies as 
section 1244 stock ($10,000/$12,000 of $3,000), and the remaining $500 
is allocated to the portion of the stock that does not so qualify. 
Therefore, to the extent of $2,500, the loss may be treated as an 
ordinary loss assuming the various requirements of section 1244 stock 
are satisfied. However, the remaining $500 loss must be treated as a 
capital loss.

[T.D. 6495, 25 FR 9680, Oct. 8, 1960]



Sec. 1.1244(d)-3  Stock dividend, recapitalizations, changes in name, 
etc.

    (a) In general. Section 1244(c)(1) provides that stock may not 
qualify for the benefits of section 1244 unless it is issued to the 
taxpayer for money or other property not including stock or securities. 
However, section 1244(d)(2) authorizes exceptions to this rule. The 
exceptions may apply in three situations: (1) The receipt of a stock 
dividend; (2) the exchange of stock for stock pursuant to a 
reorganization described in section 368(a)(1)(E); and (3) the exchange 
of stock for stock pursuant to a reorganization described in section 
368(a)(1)(F).
    (b) Stock dividends. (1) If common stock is received by an 
individual or partnership in a nontaxable distribution under section 
305(a) made solely with respect to stock owned by such individual or 
partnership which meets the requirements of section 1244 stock 
determinable at the time of the distribution, then the common stock so 
received will also be treated as meeting such requirements. For purposes 
of this paragraph and paragraphs (c) and (d) of this section, the 
requirements of section 1244 stock determinable at the time of the 
distribution or exchange are all of the requirements of section 
1244(c)(1) other than the one described in subparagraph (C) thereof, 
relating to the gross receipts test.
    (2) If, however, such stock dividend is received by such individual 
or partnership partly with respect to stock meeting the requirements of 
section 1244 stock determinable at the time of the distribution, and 
partly with respect to stock not meeting such requirements, then only 
part of the stock received as a stock dividend will be treated as 
meeting such requirements. Assuming all the shares with respect to which 
the dividend is received have equal rights to dividends, such part is 
the number of shares which bears the same ratio to the total number of 
shares received as the number of shares owned immediately before the 
stock dividend which meets such qualifications bears to the total number 
of shares with respect to which the stock dividend is received. In 
determining the basis of shares received in the stock dividend and of 
the shares held before the stock dividend, section 307 shall apply as if 
two separate nontaxable stock dividends were made, one with respect to 
the shares that meet the requirements and the other with respect to 
shares that do not meet the requirements.
    (3) The provisions of subparagraphs (1) and (2) of this paragraph 
may be illustrated by the following examples:

    Example 1. Corporation X issues 100 shares of its common stock to B 
for $1,000. Subsequently, in a nontaxable stock dividend B receives 5 
more shares of common stock of Corporation X. If the 100 shares meet all 
the requirements of section 1244 stock determinable at the time of the 
distribution of the stock dividend, the 5 additional shares shall also 
be treated as meeting such requirements.
    Example 2. In 1959, Corporation Y issues 100 shares of its common 
stock to C for $1,000 and these shares meet the requirements of section 
1244 stock determinable at the time

[[Page 349]]

of the issuance. In 1960, C purchases an additional 200 shares of such 
stock from another shareholder for $3,000; however, these shares do not 
meet the requirements of section 1244 stock because they were not 
originally issued to C by the corporation. In 1961, C receives 15 shares 
of Corporation Y common stock as a stock dividend. Of the shares 
received, 5 shares, the number received with respect to the 100 shares 
of stock which met the requirements of section 1244 at the time of the 
distribution, i.e., 100/300 x 15, shall also be treated as meeting such 
requirements. The remaining 10 shares do not meet such requirements as 
they are not received with respect to section 1244 stock. The basis of 
such 5 shares is determined by applying section 307 as if the 5 shares 
were received as a separate stock dividend made solely with respect to 
shares that meet the requirements of section 1244 stock at the time of 
the distribution. Thus, the basis of the 5 shares is $47.61 (\5/105\ of 
$1,000).

    (c) Recapitalizations. (1) If, pursuant to a recapitalization 
described in section 368(a)(1)(E), common stock of a corporation is 
received by an individual or partnership in exchange for stock of such 
corporation meeting the requirements of section 1244 stock determinable 
at the time of the exchange, such common stock shall be treated as 
meeting such requirements.
    (2) If common stock is received pursuant to such a recapitalization 
partly in exchange for stock meeting the requirements of section 1244 
stock determinable at the time of the exchange and partly in exchange 
for stock not meeting such requirements, then only part of such common 
stock will be treated as meeting such requirements. Such part is the 
number of shares which bears the same ratio to the total number of 
shares of common stock so received as the basis of the shares 
transferred which meet such requirements bears to the basis of all the 
shares transferred for such common stock. The basis allocable, pursuant 
to section 358, to the common stock which is treated as meeting such 
requirements is limited to the basis of stock that meets such 
requirements transferred in the exchange.
    (3) The provisions of subparagraphs (1) and (2) of this paragraph 
may be illustrated by the following examples:

    Example 3. A owns 500 shares of voting common stock of Corporation 
X. Corporation X revises its capital structure to provide for two 
classes of common stock: Class A voting and Class B nonvoting. In a 
recapitalization described in subparagraph (E) of section 368(a)(1). A 
exchanges his 500 shares for 750 shares of Class B nonvoting stock. If 
the 500 shares meet all the requirements of section 1244 stock 
determinable at the time of the exchange, the 750 shares received in the 
exchange are treated as meeting such requirements.
    Example 4. B owns 500 shares of common stock of Corporation X with a 
basis of $5,000, and 100 shares of preferred stock of that corporation 
with a basis of $2,500. Pursuant to a recapitalization described in 
section 368(a)(1)(E), B exchanges all of his shares for 900 shares of 
common stock of Corporation X. The 500 common shares meet the 
requirements of section 1244 stock determinable at the time of the 
exchange, but the 100 preferred shares do not meet such requirements 
since only common stock may qualify. Of the 900 common shares received, 
600 shares ($5,000/$7,500x900 shares) are treated as meeting the 
requirements of section 1244 stock at the time of the exchange, because 
they are deemed to be received in exchange for the 500 common shares 
which met such requirements. The remaining 300 shares do not meet such 
requirements as they are not deemed to be received in exchange for 
section 1244 stock. The basis of the 600 shares is $5,000, the basis of 
the relinquished shares meeting the requirements of section 1244.

    (d) Change of name, etc. (1) If, pursuant to a reorganization 
described in section 368(a)(1)(F), common stock of a successor 
corporation is received by an individual or partnership in exchange for 
stock of the predecessor corporation meeting the requirements of section 
1244 stock determinable at the time of the exchange, such common stock 
shall be treated as meeting such requirements. If common stock is 
received pursuant to such a reorganization partly in exchange for stock 
meeting the requirements of section 1244 stock determinable at the time 
of the exchange and partly in exchange for stock not meeting such 
requirements, the principles of paragraph (c)(2) of this section apply 
in determinating the number of shares received which are treated as 
meeting the requirements of section 1244 stock and the basis of those 
shares.
    (2) For purposes of paragraphs (1)(C) and (3)(A) of section 1244(c), 
a successor corporation in a reorganization described in section 
368(a)(1)(F) shall be

[[Page 350]]

treated as the same corporation as its predecessor.

[T.D. 7779, 46 FR 29472, June 2, 1981]



Sec. 1.1244(d)-4  Net operating loss deduction.

    (a) General rule. For purpose of section 172, relating to the net 
operating loss deduction, any amount of loss that is treated as an 
ordinary loss under section 1244 (taking into account the annual dollar 
limitation of that section) shall be treated as attributable to the 
trade or business of the taxpayer. Therefore, this loss is allowable in 
determining the taxpayer's net operating loss for a taxable year and is 
not subject to the application of section 172(d)(4), relating to 
nonbusiness deductions. A taxpayer may deduct the maximum of ordinary 
loss permitted under section 1244(b) even though all or a portion of the 
taxpayer's net operating loss carryback or carryover for the taxable 
year was, when incurred, a loss on section 1244 stock.
    (b) Example. The provisions of this section may be illustrated by 
the following example:

    Example: A, a single individual, computes a net operating loss of 
$15,000 for 1980 in accordance with the rules of Sec. 1.172-3, relating 
to net operating loss in case of a taxpayer other than a corporation. 
Included within A's computation of this net operating loss is a 
deduction arising under section 1244 for a loss on small business stock. 
A had no taxable income in 1977, 1978, or 1979. Assume that A can carry 
over the entire $15,000 loss under the rules of section 172. In 1981 A 
has gross income of $75,000 and again sustains a loss on section 1244 
stock. The amount of A's 1981 loss on section 1244 stock is $50,000. A 
may deduct the full $50,000 as an ordinary loss under section 1244 and 
the full $15,000 as a net operating loss carryover in 1981.

[T.D. 7779, 46 FR 29473, June 2, 1981]



Sec. 1.1244(e)-1  Records to be kept.

    (a) By the corporation--(1) Mandatory records. A plan to issue pre-
November 1978 stock must appear upon the records of the corporation. Any 
designation of post-November 1978 stock under Sec. 1.1244(c)-2(b)(2) 
also must appear upon the records of the corporation.
    (2) Discretionary records. In order to substantiate an ordinary loss 
deduction claimed by its shareholders, the corporation should maintain 
records showing the following:
    (i) The persons to whom stock was issued, the date of issuance to 
these persons, and a description of the amount and type of consideration 
received from each;
    (ii) If the consideration received is property, the basis in the 
hands of the shareholder and the fair market value of the property when 
received by the corporation;
    (iii) The amount of money and the basis in the hands of the 
corporation of other property received for its stock, as a contribution 
to capital, and as paid-in surplus;
    (iv) Financial statements of the corporation, such as its income tax 
returns, that identify the source of the gross receipt of the 
corporation for the period consisting of the five most recent taxable 
years of the corporation, or, if the corporation has not been in 
existence for 5 taxable years, for the period of the corporation's 
existence;
    (v) Information relating to any tax-free stock dividend made with 
respect to section 1244 stock and any reorganization in which stock is 
transferred by the corporation in exchange for section 1244 stock; and
    (vi) With respect to pre-November 1978 stock;
    (A) Which certificates represent stock issued under the plan;
    (B) The amount of money and the basis in the hands of the 
corporation of other property received after June 30, 1958, and before 
the adoption of the plan, for its stock, as a contribution to capital, 
and as paid-in surplus; and
    (C) The equity capital of the corporation on the date of adoption of 
the plan.
    (b) By the taxpayer. A person who claims an ordinary loss with 
respect to stock under section 1244 must have records sufficient to 
establish that the taxpayer is entitled to the loss and satisfies the 
requirements of section 1244. See also section 6001, requiring records 
to be maintained.

In addition, a person who owns section 1244 stock in a corporation shall 
maintain records sufficient to distinguish

[[Page 351]]

such stock from any other stock he may own in the corporation.

[T.D. 6495, 25 FR 9681, Oct. 8, 1960, as amended by T.D. 7779, 46 FR 
29473, June 2, 1981; 46 FR 31881, June 18, 1981; T.D. 8594, 60 FR 20898, 
Apr. 28, 1995]



Sec. 1.1245-1  General rule for treatment of gain from dispositions of 
certain depreciable property.

    (a) General. (1) In general, section 1245(a)(1) provides that, upon 
a disposition of an item of section 1245 property, the amount by which 
the lower of (i) the recomputed basis of the property, or (ii) the 
amount realized on a sale, exchange, or involuntary conversion (or the 
fair market value of the property on any other disposition), exceeds the 
adjusted basis of the property shall be treated as gain from the sale or 
exchange of property which is neither a capital asset nor property 
described in section 1231 (that is, shall be recognized as ordinary 
income). The amount of such gain shall be determined separately for each 
item of section 1245 property. In general, the term recomputed basis 
means the adjusted basis of property plus all adjustments reflected in 
such adjusted basis on account of depreciation allowed or allowable for 
all periods after December 31, 1961. See section 1245(a)(2) and Sec. 
1.1245-2. Generally, the ordinary income treatment applies even though 
in the absence of section 1245 no gain would be recognized under the 
Code. For example, if a corporation distributes section 1245 property as 
a dividend, gain may be recognized as ordinary income to the corporation 
even though, in the absence of section 1245, section 311(a) would 
preclude any recognition of gain to the corporation. For the definition 
of section 1245 property, see section 1245(a)(3) and Sec. 1.1245-3. For 
exceptions and limitations to the application of section 1245(a)(1), see 
section 1245(b) and Sec. 1.1245-4.
    (2) Section 1245(a)(1) applies to dispositions of section 1245 
property in taxable years beginning after December 31, 1962, except 
that:
    (i) In respect of section 1245 property which is an elevator or 
escalator, section 1245(a)(1) applies to dispositions after December 31, 
1963, and
    (ii) In respect of section 1245 property which is livestock 
(described in subparagraph (4) of Sec. 1.1245-3(a)), section 1245(a)(1) 
applies to dispositions made in taxable years beginning after December 
31, 1969, and
    (iii) [Reserved].
    (3) For purposes of this section and Sec. Sec. 1.1245-2 through 
1.1245-6, the term disposition includes a sale in a sale-and-leaseback 
transaction and a transfer upon the foreclosure of a security interest, 
but such term does not include a mere transfer of title to a creditor 
upon creation of a security interest or to a debtor upon termination of 
a security interest. Thus, for example, a disposition occurs upon a sale 
of property pursuant to a conditional sales contract even though the 
seller retains legal title to the property for purposes of security but 
a disposition does not occur when the seller ultimately gives up his 
security interest following payment by the purchaser.
    (4) For purposes of applying section 1245, the facts and 
circumstances of each disposition shall be considered in determining 
what is the appropriate item of section 1245 property. A taxpayer may 
treat any number of units of section 1245 property in any particular 
depreciation account (as defined in Sec. 1.167(a)-7) as one item of 
section 1245 property as long as it is reasonably clear, from the best 
estimates obtainable on the basis of all the facts and circumstances, 
that the amount of gain to which section 1245(a)(1) applies is not less 
than the total of the gain under section 1245(a)(1) which would be 
computed separately for each unit. Thus, for example, if 50 units of 
section 1245 property X, 25 units of section 1245 property Y, and other 
property are accounted for in one depreciation account, and if each such 
unit is sold at a gain in one transaction in which the total gain 
realized on the sale exceeds the sum of the adjustments reflected in the 
adjusted basis (as defined in paragraph (a)(2) of Sec. 1.1245-2) of 
each such unit on account of depreciation allowed or allowable for 
periods after December 31, 1961, all 75 units may be treated as one item 
of section 1245 property. If, however, 5 such units of section 1245 
property Y were sold at a loss, then only 70 of such units (50 of X plus 
the

[[Page 352]]

20 of Y sold at a gain) may be treated as one item of section 1245 
property.
    (5) In case of a sale, exchange, or involuntary conversion of 
section 1245 and non-section 1245 property in one transaction, the total 
amount realized upon the disposition shall be allocated between the 
section 1245 property and the non-section 1245 property in proportion to 
their respective fair market values. In general, if a buyer and seller 
have adverse interests as to the allocation of the amount realized 
between the section 1245 property and the non-section 1245 property, any 
arm's length agreement between the buyer and the seller will establish 
the allocation. In the absence of such an agreement, the allocation 
shall be made by taking into account the appropriate facts and 
circumstances. Some of the facts and circumstances which shall be taken 
into account to the extent appropriate include, but are not limited to, 
a comparison between the section 1245 property and all the property 
disposed of in such transaction of (i) the original cost and 
reproduction cost of construction, erection, or production, (ii) the 
remaining economic useful life, (iii) state of obsolescence, and (iv) 
anticipated expenditures to maintain, renovate, or to modernize.
    (b) Sale, exchange, or involuntary conversion. (1) In the case of a 
sale, exchange, or involuntary conversion of section 1245 property, the 
gain to which section 1245(a)(1) applies is the amount by which (i) the 
lower of the amount realized upon the disposition of the property or the 
recomputed basis of the property, exceeds (ii) the adjusted basis of the 
property.
    (2) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. On January 1, 1964, Brown purchases section 1245 property 
for use in his manufacturing business. The property has a basis for 
depreciation of $3,300. After taking depreciation deductions of $1,300 
(the amount allowable), Brown realizes after selling expenses the amount 
of $2,900 upon sale of the property on January 1, 1969. Brown's gain is 
$900 ($2,900 amount realized minus $2,000 adjusted basis). Since the 
amount realized upon disposition of the property ($2,900) is lower than 
its recomputed basis ($3,300, i.e., $2,000 adjusted basis plus $1,300 in 
depreciation deductions), the entire gain is treated as ordinary income 
under section 1245(a)(1) and not as gain from the sale or exchange of 
property described in section 1231.
    Example 2. Assume the same facts as in example (1) except that Brown 
exchanges the section 1245 property for land which has a fair market 
value of $3,700, thereby realizing a gain of $1,700 ($3,700 amount 
realized minus $2,000 adjusted basis). Since the recomputed basis of the 
property ($3,300) is lower than the amount realized upon its disposition 
($3,700), the excess of recomputed basis over adjusted basis, or $1,300, 
is treated as ordinary income under section 1245(a)(1). The remaining 
$400 of the gain may be treated as gain from the sale or exchange of 
property described in section 1231.

    (c) Other dispositions. (1) In the case of a disposition of section 
1245 property other than by way of a sale, exchange, or involuntary 
conversion, the gain to which section 1245(a)(1) applies is the amount 
by which (i) the lower of the fair market value of the property on the 
date of disposition or the recomputed basis of the property, exceeds 
(ii) the adjusted basis of the property. If property is transferred by a 
corporation to a shareholder for an amount less than its fair market 
value in a sale or exchange, for purposes of applying section 1245 such 
transfer shall be treated as a disposition other than by way of a sale, 
exchange, or involuntary conversion.
    (2) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. X Corporation distributes section 1245 property to its 
shareholders as a dividend. The property has an adjusted basis of $2,000 
to the corporation, a recomputed basis of $3,300, and a fair market 
value of $3,100. Since the fair market value of the property ($3,100) is 
lower than its recomputed basis ($3,300), the excess of fair market 
value over adjusted basis, or $1,100, is treated under section 
1245(a)(1) as ordinary income to the corporation even though, in the 
absence of section 1245, section 311(a) would preclude recognition of 
gain to the corporation.
    Example 2. Assume the same facts as in example (1) except that X 
Corporation distributes the section 1245 property to its shareholders in 
complete liquidation of the corporation. Assume further that section 
1245(b)(3) does not apply and that the fair market value of the property 
is $3,800 at the time of the distribution. Since the recomputed basis of 
the property ($3,300) is lower than its fair market value ($3,800), the 
excess of recomputed basis over adjusted basis, or

[[Page 353]]

$1,300, is treated under section 1245(a)(1) as ordinary income to the 
corporation even though, in the absence of section 1245, section 336 
would preclude recognition of gain to the corporation.

    (d) Losses. Section 1245(a)(1) does not apply to losses. Thus, 
section 1245(a)(1) does not apply if a loss is realized upon a sale, 
exchange, or involuntary conversion of property, all of which is 
considered section 1245 property, nor does the section apply to a 
disposition of such property other than by way of sale, exchange, or 
involuntary conversion if at the time of the disposition the fair market 
value of such property is not greater than its adjusted basis.
    (e) Treatment of partnership and partners. (1) The manner of 
determining the amount of gain recognized under section 1245(a)(1) to a 
partnership may be illustrated by the following example:

    Example: A partnership sells for $63 section 1245 property which has 
an adjusted basis to the partnership of $30 and a recomputed basis to 
the partnership of $60. The partnership recognizes under section 
1245(a)(1) gain of $30, i.e., the lower of the amount realized ($63) or 
recomputed basis ($60), minus adjusted basis ($30). This result would 
not be changed if one or more partners had, in respect of the property, 
a special basis adjustment described in section 743(b) or had taken 
depreciation deductions in respect of such special basis adjustment.

    (2)(i) Unless paragraph (e)(3) of this section applies, a partner's 
distributive share of gain recognized under section 1245(a)(1) by the 
partnership is equal to the lesser of the partner's share of total gain 
from the disposition of the property (gain limitation) or the partner's 
share of depreciation or amortization with respect to the property (as 
determined under paragraph (e)(2)(ii) of this section). Any gain 
recognized under section 1245(a)(1) by the partnership that is not 
allocated under the first sentence of this paragraph (e)(2)(i) (excess 
depreciation recapture) is allocated among the partners whose shares of 
total gain from the disposition of the property exceed their shares of 
depreciation or amortization with respect to the property. Excess 
depreciation recapture is allocated among those partners in proportion 
to their relative shares of the total gain (including gain recognized 
under section 1245(a)(1)) from the disposition of the property that is 
allocated to the partners who are not subject to the gain limitation. 
See Example 2 of paragraph (e)(2)(iii) of this section.
    (ii)(A) Subject to the adjustments described in paragraphs 
(e)(2)(ii)(B) and (e)(2)(ii)(C) of this section, a partner's share of 
depreciation or amortization with respect to property equals the total 
amount of allowed or allowable depreciation or amortization previously 
allocated to that partner with respect to the property.
    (B) If a partner transfers a partnership interest, a share of 
depreciation or amortization must be allocated to the transferee partner 
as it would have been allocated to the transferor partner. If the 
partner transfers a portion of the partnership interest, a share of 
depreciation or amortization proportionate to the interest transferred 
must be allocated to the transferee partner.
    (C)(1) A partner's share of depreciation or amortization with 
respect to property contributed by the partner includes the amount of 
depreciation or amortization allowed or allowable to the partner for the 
period before the property is contributed.
    (2) A partner's share of depreciation or amortization with respect 
to property contributed by a partner is adjusted to account for any 
curative allocations. (See Sec. 1.704-3(c) for a description of the 
traditional method with curative allocations.) The contributing 
partner's share of depreciation or amortization with respect to the 
contributed property is decreased (but not below zero) by the amount of 
any curative allocation of ordinary income to the contributing partner 
with respect to that property and by the amount of any curative 
allocation of deduction or loss (other than capital loss) to the 
noncontributing partners with respect to that property. A 
noncontributing partner's share of depreciation or amortization with 
respect to the contributed property is increased by the noncontributing 
partner's share of any curative allocation of ordinary income to the 
contributing partner with respect to that property and by the amount of 
any curative allocation of deduction or loss (other than capital loss) 
to the noncontributing partner with respect

[[Page 354]]

to that property. The partners' shares of depreciation or amortization 
with respect to property from which curative allocations of depreciation 
or amortization are taken is determined without regard to those curative 
allocations. See Example 3(iii) of paragraph (e)(2)(iii) of this 
section.
    (3) A partner's share of depreciation or amortization with respect 
to property contributed by a partner is adjusted to account for any 
remedial allocations. (See Sec. 1.704-3(d) for a description of the 
remedial allocation method.) The contributing partner's share of 
depreciation or amortization with respect to the contributed property is 
decreased (but not below zero) by the amount of any remedial allocation 
of income to the contributing partner with respect to that property. A 
noncontributing partner's share of depreciation or amortization with 
respect to the contributed property is increased by the amount of any 
remedial allocation of depreciation or amortization to the 
noncontributing partner with respect to that property. See Example 3(iv) 
of paragraph (e)(2)(iii) of this section.
    (4) If, under paragraphs (e)(2)(ii)(C)(2) and (e)(2)(ii)(C)(3) of 
this section, the partners' shares of depreciation or amortization with 
respect to a contributed property exceed the adjustments reflected in 
the adjusted basis of the property under Sec. 1.1245-2(a) at the 
partnership level, then the partnership's gain recognized under section 
1245(a)(1) with respect to that property is allocated among the partners 
in proportion to their relative shares of depreciation or amortization 
(subject to any gain limitation that might apply).
    (5) This paragraph (e)(2)(ii)(C) also applies in determining a 
partner's share of depreciation or amortization with respect to property 
for which differences between book value and adjusted tax basis are 
created when a partnership revalues partnership property pursuant to 
Sec. 1.704-1(b)(2)(iv)(f).
    (iii) Examples. The application of this paragraph (e)(2) may be 
illustrated by the following examples:

    Example 1. Recapture allocations. (i) Facts. A and B each contribute 
$5,000 cash to form AB, a general partnership. The partnership agreement 
provides that depreciation deductions will be allocated 90 percent to A 
and 10 percent to B, and, on the sale of depreciable property, A will 
first be allocated gain to the extent necessary to equalize A's and B's 
capital accounts. Any remaining gain will be allocated 50 percent to A 
and 50 percent to B. In its first year of operations, AB purchases 
depreciable equipment for $5,000. AB depreciates the equipment over its 
5-year recovery period and elects to use the straight-line method. In 
its first year of operations, AB's operating income equals its expenses 
(other than depreciation). (To simplify this example, AB's depreciation 
deductions are determined without regard to any first-year depreciation 
conventions.)
    (ii) Year 1. In its first year of operations, AB has $1,000 of 
depreciation from the partnership equipment. In accordance with the 
partnership agreement, AB allocates 90 percent ($900) of the 
depreciation to A and 10 percent ($100) of the depreciation to B. At the 
end of the year, AB sells the equipment for $5,200, recognizing $1,200 
of gain ($5,200 amount realized less $4,000 adjusted tax basis). In 
accordance with the partnership agreement, the first $800 of gain is 
allocated to A to equalize the partners' capital accounts, and the 
remaining $400 of gain is allocated $200 to A and $200 to B.
    (iii) Recapture allocations. $1,000 of the gain from the sale of the 
equipment is treated as section 1245(a)(1) gain. Under paragraph 
(e)(2)(i) of this section, each partner's share of the section 
1245(a)(1) gain is equal to the lesser of the partner's share of total 
gain recognized on the sale of the equipment or the partner's share of 
total depreciation with respect to the equipment. Thus, A's share of the 
section 1245(a)(1) gain is $900 (the lesser of A's share of the total 
gain ($1,000) and A's share of depreciation ($900)). B's share of the 
section 1245(a)(1) gain is $100 (the lesser of B's share of the total 
gain ($200) and B's share of depreciation ($100)). Accordingly, $900 of 
the $1,000 of total gain allocated to A is treated as ordinary income 
and $100 of the $200 of total gain allocated to B is treated as ordinary 
income.
    Example 2. Recapture allocation subject to gain limitation. (i) 
Facts. A, B, and C form general partnership ABC. The partnership 
agreement provides that depreciation deductions will be allocated 
equally among the partners, but that gain from the sale of depreciable 
property will be allocated 75 percent to A and 25 percent to B. ABC 
purchases depreciable personal property for $300 and subsequently 
allocates $100 of depreciation deductions each to A, B, and C, reducing 
the adjusted tax basis of the property to $0. ABC then sells the 
property for $440. ABC allocates $330 of the gain to A (75 percent of 
$440) and allocates $110 of the gain to B (25 percent of $440). No gain 
is allocated to C.
    (ii) Application of gain limitation. Each partner's share of 
depreciation with respect to

[[Page 355]]

the property is $100. C's share of the total gain from the disposition 
of the property, however, is $0. As a result, under the gain limitation 
provision in paragraph (e)(2)(i) of this section, C's share of section 
1245(a)(1) gain is limited to $0.
    (iii) Excess depreciation recapture. Under paragraph (e)(2)(i) of 
this section, the $100 of section 1245(a)(1) gain that cannot be 
allocated to C under the gain limitation provision (excess depreciation 
recapture) is allocated to A and B (the partners not subject to the gain 
limitation at the time of the allocation) in proportion to their 
relative shares of total gain from the disposition of the property. A's 
relative share of the total gain allocated to A and B is 75 percent 
($330 of $440 total gain). B's relative share of the total gain 
allocated to A and B is 25 percent ($110 of $440 total gain). However, 
under the gain limitation provision of paragraph (e)(2)(i) of this 
section, B cannot be allocated 25 percent of the excess depreciation 
recapture ($25) because that would result in a total allocation of $125 
of depreciation recapture to B (a $100 allocation equal to B's share of 
depreciation plus a $25 allocation of excess depreciation recapture), 
which is in excess of B's share of the total gain from the disposition 
of the property ($110). Therefore, only $10 of excess depreciation 
recapture is allocated to B and the remaining $90 of excess depreciation 
recapture is allocated to A. A is not subject to the gain limitation 
because A's share of the total gain ($330) still exceeds A's share of 
section 1245(a)(1) gain ($190). Accordingly, all $110 of the total gain 
allocated to B is treated as ordinary income ($100 share of depreciation 
allocated to B plus $10 of excess depreciation recapture) and $190 of 
the total gain allocated to A is treated as ordinary income ($100 share 
of depreciation allocated to A plus $90 of excess depreciation 
recapture).
    Example 3. Determination of partners' shares of depreciation with 
respect to contributed property. (i) Facts.C and D form partnership CD 
as equal partners. C contributes depreciable personal property C1 with 
an adjusted tax basis of $800 and a fair market value of $2,800. Prior 
to the contribution, C claimed $200 of depreciation from C1. At the time 
of the contribution, C1 is depreciable under the straight-line method 
and has four years remaining on its 5-year recovery period. D 
contributes $2,800 cash, which CD uses to purchase depreciable personal 
property D1, which is depreciable over seven years under the straight-
line method. (To simplify the example, all depreciation is determined 
without regard to any first-year depreciation conventions.)
    (ii) Traditional method. C1 generates $700 of book depreciation (\1/
4\ of $2,800 book value) and $200 of tax depreciation (\1/4\ of $800 
adjusted tax basis) each year. C and D will each be allocated $350 of 
book depreciation from C1 in year 1. Under the traditional method of 
making section 704(c) allocations, D will be allocated the entire $200 
of tax depreciation from C1 in year 1. D1 generates $400 of book and tax 
depreciation each year (\1/7\ of $2,800 book value and adjusted tax 
basis). C and D will each be allocated $200 of book and tax depreciation 
from D1 in year 1. As a result, after the first year of partnership 
operations, C's share of depreciation with respect to C1 is $200 (the 
depreciation taken by C prior to contribution) and D's share of 
depreciation with respect to C1 is $200 (the amount of tax depreciation 
allocated to D). C and D each have a $200 share of depreciation with 
respect to D1. At the end of four years, C's share of depreciation with 
respect to C1 will be $200 (the depreciation taken by C prior to 
contribution) and D's share of depreciation with respect to C1 will be 
$800 (four years of $200 depreciation per year). At the end of four 
years, C and D will each have an $800 share of depreciation with respect 
to D1 (four years of $200 depreciation per year).
    (iii) Effect of curative allocations. (A) Year 1. If the partnership 
elects to make curative allocations under Sec. 1.704-3(c) using 
depreciation from D1, the results will be the same as under the 
traditional method, except that $150 of the $200 of tax depreciation 
from D1 that would be allocated to C under the traditional method will 
be allocated to D as additional depreciation with respect to C1. As a 
result, after the first year of partnership operations, C's share of 
depreciation with respect to C1 will be reduced to $50 (the total 
depreciation taken by C prior to contribution ($200) decreased by the 
amount of the curative allocation to D ($150)). D's share of 
depreciation with respect to C1 will be $350 (the depreciation allocated 
to D under the traditional method ($200) increased by the amount of the 
curative allocation to D ($150)). C and D will each have a $200 share of 
depreciation with respect to D1.
    (B) Year 4. At the end of four years, C's share of depreciation with 
respect to C1 will be reduced to $0 (the total depreciation taken by C 
prior to contribution ($200) decreased, but not below zero, by the 
amount of the curative allocations to D ($600)), and D's share of 
depreciation with respect to C1 will be $1,400 (the total depreciation 
allocated to D under the traditional method ($800) increased by the 
amount of the curative allocations to D ($600)). However, CD's section 
1245(a)(1) gain with respect to C1 will not be more than $1,000 (CD's 
tax depreciation ($800) plus C's tax depreciation prior to contribution 
($200)). Under paragraph (e)(2)(ii)(C)(4) of this section, because the 
partners' shares of depreciation with respect to C1 exceed the 
adjustments reflected in the property's adjusted basis, CD's section 
1245(a)(1) gain will be allocated in proportion to the partners' 
relative shares of depreciation with respect to C1. Because C's share of 
depreciation with respect to C1 is $0, and D's

[[Page 356]]

share of depreciation with respect to C1 is $1,400, all of CD's $1,000 
of section 1245(a)(1) gain will be allocated to D. At the end of four 
years, C and D will each have an $800 share of depreciation with respect 
to D1 (four years of $200 depreciation per year).
    (iv) Effect of remedial allocations. (A) Year 1. If the partnership 
elects to make remedial allocations under Sec. 1.704-3(d), there will 
be $600 of book depreciation from C1 in year 1. (Under the remedial 
allocation method, the amount by which C1's book basis ($2,800) exceeds 
its tax basis ($800) is depreciated over a 5-year life, rather than a 4-
year life.) C and D will each be allocated one-half ($300) of the total 
book depreciation. As under the traditional method, D will be allocated 
all $200 of tax depreciation from C1. Because the ceiling rule would 
cause a disparity of $100 between D's book and tax allocations of 
depreciation, D will also receive a $100 remedial allocation of 
depreciation with respect to C1, and C will receive a $100 remedial 
allocation of income with respect to C1. As a result, after the first 
year of partnership operations, D's share of depreciation with respect 
to C1 is $300 (the depreciation allocated to D under the traditional 
method ($200) increased by the amount of the remedial allocation 
($100)). C's share of depreciation with respect to C1 is $100 (the total 
depreciation taken by C prior to contribution ($200) decreased by the 
amount of the remedial allocation of income ($100)). C and D will each 
have a $200 share of depreciation with respect to D1.
    (B) Year 5. At the end of five years, C's share of depreciation with 
respect to C1 will be $0 (the total depreciation taken by C prior to 
contribution ($200) decreased, but not below zero, by the total amount 
of the remedial allocations of income to C ($600)). D's share of 
depreciation with respect to C1 will be $1,400 (the total depreciation 
allocated to D under the traditional method ($800) increased by the 
total amount of the remedial allocations of depreciation to D ($600)). 
However, CD's section 1245(a)(1) gain with respect to C1 will not be 
more than $1,000 (CD's tax depreciation ($800) plus C's tax depreciation 
prior to contribution ($200)). Under paragraph (e)(2)(ii)(C)(4) of this 
section, because the partners' shares of depreciation with respect to C1 
exceed the adjustments reflected in the property's adjusted basis, CD's 
section 1245(a)(1) gain will be allocated in proportion to the partners' 
relative shares of depreciation with respect to C1. Because C's share of 
depreciation with respect to C1 is $0, and D's share of depreciation 
with respect to C1 is $1,400, all of CD's $1,000 of section 1245(a)(1) 
gain will be allocated to D. At the end of five years, C and D will each 
have a $1,000 share of depreciation with respect to D1 (five years of 
$200 depreciation per year).

    (iv) Effective date. This paragraph (e)(2) is effective for 
properties acquired by a partnership on or after August 20, 1997. 
However, partnerships may rely on this paragraph (e)(2) for properties 
acquired before August 20, 1997 and disposed of on or after August 20, 
1997.
    (3)(i) If (a) a partner had a special basis adjustment under section 
743(b) in respect of section 1245 property, or (b) on the date he 
acquired his partnership interest by way of a sale or exchange (or upon 
death of another partner) the partnership owned section 1245 property 
and an election under section 754 (relating to optional adjustment to 
basis of partnership property) was in effect with respect to the 
partnership, then the amount of gain recognized under section 1245(a)(1) 
by him upon a disposition by the partnership of such property shall be 
determined under this subparagraph.
    (ii) There shall be allocated to such partner, in the same 
proportion as the partnership's total gain is allocated to him as his 
distributive share under section 704, a portion of (a) the common 
partnership adjusted basis for the property, and (b) the amount realized 
by the partnership upon the disposition, or, if nothing is realized, the 
fair market value of the property. There shall also be allocated to him, 
in the same proportion as the partnership's gain recognized under 
section 1245(a)(1) is allocated under subparagraph (2) of this paragraph 
as his distributive share of such gain, a portion of the adjustments 
reflected in the adjusted basis (as defined in paragraph (a)(2) of Sec. 
1.1245-2) of such property. If on the date he acquired his partnership 
interest by way of a sale or exchange the partnership owned such 
property and an election under section 754 was in effect, then for 
purposes of the preceding sentence the amount of the adjustments 
reflected in the adjusted basis of such property on such date shall be 
deemed to be zero. For special rules relating to the amount of 
adjustments reflected in the adjusted basis of property after 
partnership transactions, see paragraph (c)(6) of Sec. 1.1245-2.
    (iii) The partner's adjusted basis in respect of the property shall 
be deemed to be (a) the portion of the partnership's adjusted basis for 
the property

[[Page 357]]

allocated to the partner under subdivision (ii) of this subparagraph, 
(b) increased by the amount of any special basis adjustment described in 
section 743(b)(1) (or decreased by the amount of any special basis 
adjustment described in section 743(b)(2) which the partner may have in 
respect of the property on the date the partnership disposed of the 
property.
    (iv) The partner's recomputed basis in respect of the property shall 
be deemed to be (a) the sum of the partner's adjusted basis for the 
property, as determined in subdivision (iii) of this subparagraph, plus 
the amount of the adjustments reflected in the adjusted basis (as 
defined in paragraph (a)(2) of Sec. 1.1245-2) for the property 
allocated to the partner under subdivision (ii) of this subparagraph, 
(b) increased by the amount by which any special basis adjustment 
described in section 743(b)(1) (or decreased by the amount by which any 
special basis adjustment described in section 743(b)(2)) in respect of 
the property was reduced, but only to the extent such amount was applied 
to adjust the amount of the deductions allowed or allowable to the 
partner for depreciation or amortization of section 1245 property 
attributable to periods referred to in paragraph (a)(2) of Sec. 1.1245-
2. The terms allowed or allowable, depreciation or amortization, and 
attributable to periods shall have the meanings assigned to these terms 
in paragraph (a) of Sec. 1.1245-2.
    (4) The application of subparagraph (3) of this paragraph may be 
illustrated by the following example:

    Example: A, B, and C each hold a one-third interest in calendar year 
partnership ABC. On December 31, 1962, the firm holds section 1245 
property which has an adjusted basis of $30,000 and a recomputed basis 
of $33,000. Depreciation deductions in respect of the property for 1962 
were $3,000. On January 1, 1963, when D purchases C's partnership 
interest, the election under section 754 is in effect and a $5,000 
special basis adjustment is made in respect of D to his one-third share 
of the common partnership adjusted basis for the property. For 1963 and 
1964 the partnership deducts $6,000 as depreciation in respect of the 
property, thereby reducing its adjusted basis to $24,000, and D deducts 
$2,800, i.e., his distributive share of partnership depreciation 
($2,000) plus depreciation in respect of his special basis adjustment 
($800). On March 15, 1965, the partnership sells the property for 
$48,000. Since the partnership's recomputed basis for the property 
($33,000, i.e., $24,000 adjusted basis plus $9,000 in depreciation 
deductions) is lower than the amount realized upon the sale ($48,000), 
the excess of recomputed basis over adjusted basis, or $9,000, is 
treated as partnership gain under section 1245(a)(1). D's distributive 
share of such gain is $3,000 (\1/3\ of $9,000). However, the amount of 
gain recognized by D under section 1245 (a)(1) is only $2,800, 
determined as follows:

(1) Adjusted basis:
  D's portion of partnership adjusted basis (\1/      $8,000
   3\ of $24,000)...............................
  D's special basis adjustment as of December          4,200
   31, 1964 ($5,000 minus $800).................
    D's adjusted basis..........................  ..........     $12,200
                                                 ------------
(2) Recomputed basis:
  D's adjusted basis............................      12,200
  D's portion of partnership depreciation for          2,000
   1963 and 1964, i.e., for periods after he
   acquired his partnership interest (\1/3\ of
   $6,000)......................................
  Depreciation for 1963 and 1964 in respect of           800
   D's special basis adjustment.................
      D's recomputed basis......................
                                                 ============
                                                  ..........      15,000
(3) D's portion of amount realized by partnership (\1/3\ of       16,000
 $48,000)...................................................
(4) Gain recognized to D under section 1245(a)(1), i.e., the       2,800
 lower of (2) or (3), minus (1).............................
 


[T.D. 6832, 30 FR 8576, July 7, 1965, as amended by T.D. 7084, 36 FR 
268, Jan. 8, 1971; T.D. 7141, 36 FR 18793, Sept. 22, 1971; T.D. 8730, 62 
FR 44216, Aug. 20, 1997]



Sec. 1.1245-2  Definition of recomputed basis.

    (a) General rule--(1) Recomputed basis defined. The term recomputed 
basis means, with respect to any property, an amount equal to the sum 
of:
    (i) The adjusted basis of the property, as defined in section 1011, 
plus
    (ii) The amount of the adjustments reflected in the adjusted basis.
    (2) Definition of adjustments reflected in adjusted basis. The term 
adjustments reflected in the adjusted basis means:
    (i) With respect to any property other than property described in 
subdivision (ii), (iii), or (iv) of this subparagraph, the amount of the 
adjustments attributable to periods after December 31, 1961,
    (ii) With respect to an elevator or escalator, the amount of the 
adjustments attributable to periods after June 30, 1963,

[[Page 358]]

    (iii) With respect to livestock (described in subparagraph (4) of 
Sec. 1.1245-3(a)), the amount of the adjustments attributable to 
periods after December 31, 1969, or
    (iv) [Reserved]

which are reflected in the adjusted basis of such property on account of 
deductions allowed or allowable for depreciation or amortization (within 
the meaning of subparagraph (3) of this paragraph). For cases where the 
taxpayer can establish that the amount allowed for any period was less 
than the amount allowable, see subparagraph (7) of this paragraph. For 
determination of adjusted basis of property in a multiple asset account, 
see paragraph (c)(3) of Sec. 1.167(a)-8.
    (3) Meaning of depreciation or amortization. (i) For purposes of 
subparagraph (2) of this paragraph, the term depreciation or 
amortization includes allowances (and amounts treated as allowances) for 
depreciation (or amortization in lieu thereof), and deductions for 
amortization of emergency facilities under section 168. Thus, for 
example, such term includes a reasonable allowance for exhaustion, wear 
and tear (including a reasonable allowance for obsolescence) under 
section 167, an expense allowance (additional first-year depreciation 
allowance for property placed in service before January 1, 1981), under 
section 179, an expenditure treated as an amount allowed under section 
167 by reason of the application of section 182(d)(2)(B) (relating to 
expenditures by farmers for clearing land), and a deduction for 
depreciation of improvements under section 611 (relating to depletion). 
For further examples, the term depreciation or amortization includes 
periodic deductions referred to in Sec. 1.162-11 in respect of a 
specified sum paid for the acquisition of a leasehold and in respect of 
the cost to a lessee of improvements on property of which he is the 
lessee. However, such term does not include deductions for the periodic 
payment of rent.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: On January 1, 1966, Smith purchases for $1,000, and places 
in service, an item of property described in section 1245(a) (3)(A). 
Smith deducts an additional first-year allowance for depreciation under 
section 179 of $200. Accordingly, the basis of the property for purposes 
of depreciation is $800 on January 1, 1966. Between that date and 
January 1, 1974, Smith deducts $640 in depreciation (the amount 
allowable) with respect to the property, thereby reducing its adjusted 
basis to $160. Since this adjusted basis reflects deductions for 
depreciation and amortization (within the meaning of this subparagraph) 
amounting to $840 ($200 plus $640), the recomputed basis of the property 
is $1,000 ($160 plus $840).

    (4) Adjustments of other taxpayers or in respect of other property. 
(i) For purposes of subparagraph (2) of this paragraph, the adjustments 
reflected in adjusted basis on account of depreciation or amortization 
which must be taken into account in determining recomputed basis are not 
limited to those adjustments on account of depreciation or amortization 
with respect to the property disposed of, nor are such adjustments 
limited to those on account of depreciation or amortization allowed or 
allowable to the taxpayer disposing of such property. Except as provided 
in subparagraph (7) of this paragraph, all such adjustments are taken 
into account, whether the deductions were allowed or allowable in 
respect of the same or other property and whether to the taxpayer or to 
any other person. For manner of determining the amount of adjustments 
reflected in the adjusted basis of property immediately after certain 
dispositions, see paragraph (c) of this section.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: On January 1, 1966, Jones purchases machine X for use in 
his trade or business. The machine, which is section 1245 property, has 
a basis for depreciation of $10,000. After taking depreciation 
deductions of $2,000 (the amount allowable), Jones transfers the machine 
to his son as a gift on January 1, 1968. Since the exception for gifts 
in section 1245(b)(1) applies, Jones does not recognize gain under 
section 1245(a)(1). The son's adjusted basis for the machine is $8,000. 
On January 1, 1969, after taking a depreciation deduction of $1,000 (the 
amount allowable), the son exchanges machine X for machine Y in a like 
kind exchange described in section 1031. Since the exception for like 
kind exchanges in section 1245(b)(4) applies, the son does not recognize 
gain under section

[[Page 359]]

1245(a)(1). The son's adjusted basis for machine Y is $7,000. In 1969, 
the son takes a depreciation deduction of $1,000 (the amount allowable) 
in respect of machine Y. The son sells machine Y on June 30, 1970. No 
depreciation was allowed or allowable for 1970, the year of the sale. 
The recomputed basis of machine Y on June 30, 1970, is determined in the 
following manner:

Adjusted basis..................................      $6,000
Adjustments reflected in the adjusted basis:
Depreciation deducted by Jones for 1966 and 1967       2,000
 on machine X...................................
Depreciation deducted by son for 1968 on machine       1,000
 X..............................................
Depreciation deducted by son for 1969 on machine       1,000
 Y..............................................
    Total adjustments reflected in the adjusted basis.......      $4,000
                                                 -------------
    Recomputed basis........................................      10,000
 

    (5) Adjustments reflected in adjusted basis of property described in 
section 1245(a)(3)(B). For purposes of subparagraph (2) of this 
paragraph, the adjustments reflected in the adjusted basis of property 
described in section 1245(a)(3)(B), on account of depreciation or 
amortization which must be taken into account in determining recomputed 
basis, may include deductions attributable to periods during which the 
property is not used as an integral part of an activity, or does not 
constitute a facility, specified in section 1245(a)(3)(B) (i) or (ii). 
Thus, for example, if depreciation deductions taken with respect to such 
property after December 31, 1961, amount to $10,000 (the amount 
allowable), of which $6,000 is attributable to periods during which the 
property is used as an integral part of a specified activity or 
constitutes a specified facility, then the entire $10,000 of 
depreciation deductions are adjustments reflected in the adjusted basis 
for purposes of determining recomputed basis. Moreover, if the property 
was never so used but was acquired in a transaction to which section 
1245(b)(4) (relating to like kind exchanges and involuntary conversions) 
applies, and if by reason of the application of paragraph (d)(3) of 
Sec. 1.1245-4 the property is considered as section 1245 property 
described in section 1245(a)(3)(B), then the entire $10,000 of 
depreciation deductions would also be adjustments reflected in the 
adjusted basis for purposes of determining recomputed basis.
    (6) Allocation of adjustments attributable to periods after certain 
dates. (i) For purposes of determining recomputed basis, the amount of 
adjustments reflected in the adjusted basis of property other than 
property described in subparagraph (2) (ii), (iii), or (iv) of this 
paragraph are limited to adjustments attributable to periods after 
December 31, 1961. Accordingly, if depreciation deducted with respect to 
such property of a calendar year taxpayer is $1,000 a year (the amount 
allowable) for each of 10 years beginning with 1956, only the 
depreciation deducted in 1962 and succeeding years shall be treated as 
reflected in the adjusted basis for purposes of determining recomputed 
basis. With respect to a taxable year beginning in 1961 and ending in 
1962, the deduction for depreciation or amortization shall be 
ascertained by applying the principles stated in paragraph (c)(3) of 
Sec. 1.167(a)-8 (relating to determination of adjusted basis of retired 
asset). The amount of the deduction, determined in such manner, shall be 
allocated on a daily basis in order to determine the portion thereof 
which is attributable to a period after December 31, 1961. Thus, for 
example, if a taxpayer, whose fiscal year ends on May 31, 1962, acquires 
section 1245 property on November 12, 1961, and the deduction for 
depreciation attributable to the property for such fiscal year is 
ascertained (under the principles of paragraph (c)(3) of Sec. 1.167(a)-
8) to be $400, then the portion thereof attributable to a period after 
December 31, 1961, is $302 (\151/200\ of $400). If, however, the 
property were acquired by such taxpayer after December 31, 1961, the 
entire deduction for depreciation attributable to the property for such 
fiscal year would be allocable to a period after December 31, 1961. For 
treatment of certain normal retirements described in paragraph (e)(2) of 
Sec. 1.167(a)-8, see paragraph (c) of Sec. 1.1245-6. For principles of 
determining the amount of adjustments for depreciation or amortization 
reflected in the adjusted basis of property upon an abnormal retirement 
of property in a multiple asset account, see paragraph (c)(3) of Sec. 
1.167(a)-8.

[[Page 360]]

    (ii) For purposes of determining recomputed basis, the amount of 
adjustments reflected in the adjusted basis of an elevator or escalator 
are limited to adjustments attributable to periods after June 30, 1963.
    (iii) For purposes of determining recomputed basis, the amount of 
adjustments reflected in the adjusted basis of livestock (described in 
subparagraph (2)(iii) of this paragraph) are limited to adjustments 
attributable to periods after December 31, 1969.
    (7) Depreciation or amortization allowed or allowable. For purposes 
of determin
    ing recomputed basis, generally all adjustments (for periods after 
Dec. 31, 1961, or, in the case of property described in subparagraph (2) 
(ii), (iii), or (iv) of this paragraph, for periods after the applicable 
date) attributable to allowed or allowable depreciation or amortization 
must be taken into account. See section 1016(a)(2) and the regulations 
thereunder for the meaning of allowed and allowable. However, if a 
taxpayer can establish by adequate records or other sufficient evidence 
that the amount allowed for depreciation or amortization for any period 
was less than the amount allowable for such period, the amount to be 
taken into account for such period shall be the amount allowed. No 
adjustment is to be made on account of the tax imposed by section 56 
(relating to the minimum tax for tax preferences). See paragraph (b) of 
this section (relating to records to be kept and information to be 
filed). For example, assume that in the year 1967 it becomes necessary 
to determine the recomputed basis of property, the $500 adjusted basis 
of which reflects adjustments of $1,000 with respect to depreciation 
deductions allowable for periods after December 31, 1961. If the 
taxpayer can establish by adequate records or other sufficient evidence 
that he had been allowed deductions amounting to only $800 for the 
period, then in determining recomputed basis the amount added to 
adjusted basis with respect to the $1,000 adjustments to basis for the 
period will be only $800.
    (8) Exempt organizations. In respect of property disposed of by an 
organization which is or was exempt from income taxes (within the 
meaning of section 501(a)), adjustments reflected in the adjusted basis 
(within the meaning of subparagraph (2) of this paragraph) shall include 
only depreciation or amortization allowed or allowable (i) in computing 
unrelated business taxable income (as defined in section 512(a), or (ii) 
in computing taxable income of the organization (or a predecessor 
organization) for a period during which it was not exempt or, by reason 
of the application of section 502, 503, or 504, was denied its 
exemption.
    (b) Records to be kept. In any case in which it is necessary to 
determine recomputed basis of an item of section 1245 property, the 
taxpayer shall have available permanent records of all the facts 
necessary to determine with reasonable accuracy the amount of such 
recomputed basis, including the following:
    (1) The date, and the manner in which, the property was acquired,
    (2) The taxpayer's basis on the date the property was acquired and 
the manner in which the basis was determined,
    (3) The amount and date of all adjustments to the basis of the 
property allowed or allowable to the taxpayer for depreciation or 
amortization and the amount and date of any other adjustments by the 
taxpayer to the basis of the property,
    (4) In the case of section 1245 property which has an adjusted basis 
reflecting adjustments for depreciation or amortization taken by the 
taxpayer with respect to other property, or by another taxpayer with 
respect to the same or other property, the information described in 
subparagraphs (1), (2), and (3) of this paragraph with respect to such 
other property or such other taxpayer.
    (c) Adjustments reflected in adjusted basis immediately after 
certain acquisitions--(1) Zero. (i) If on the date a person acquires 
property his basis for the property is determined solely by reference to 
its cost (within the meaning of section 1012), then on such date the 
amount of the adjustments reflected in his adjusted basis for the 
property is zero.
    (ii) If on the date a person acquires property his basis for the 
property is

[[Page 361]]

determined solely by reason of the application of section 301(d) 
(relating to basis of property received in corporate distribution) or 
section 334(a) (relating to basis of property received in a liquidation 
in which gain or loss is recognized), then on such date the amount of 
the adjustments reflected in his adjusted basis for the property is 
zero.
    (iii) If on the date a person acquires property his basis for the 
property is determined solely under the rules of section 334 (b)(2) or 
(c) relating to basis of property received in certain corporate 
liquidations), then on such date the amount of the adjustments reflected 
in his adjusted basis for the property is zero.
    (iv) If as of the date a person acquires property from a decedent 
such person's basis is determined, by reason of the application of 
section 1014(a), solely by reference to the fair market value of the 
property on the date of the decedent's death or on the applicable date 
provided in section 2032 (relating to alternate valuation date), then on 
such date the amount of the adjustments reflected in his adjusted basis 
for the property is zero.
    (2) Gifts and certain tax-free transactions. (i) If property is 
disposed of in a transaction described in subdivision (ii) of this 
subparagraph, then the amount of the adjustments reflected in the 
adjusted basis of the property in the hands of a transferee immediately 
after the disposition shall be an amount equal to:
    (a) The amount of the adjustments reflected in the adjusted basis of 
the property in the hands of the transferor immediately before the 
disposition, minus
    (b) The amount of any gain taken into account under section 
1245(a)(1) by the transferor upon the disposition.
    (ii) The transactions referred to in subdivision (i) of this 
subparagraph are:
    (a) A disposition which is in part a sale or exchange and in part a 
gift (see paragraph (a)(3) of Sec. 1.1245-4).
    (b) A disposition (other than a disposition to which section 
1245(b)(6)(A) applies) which is described in section 1245(b)(3) 
(relating to certain tax-free transactions), or
    (c) An exchange described in paragraph (e)(2) of Sec. 1.1245-4 
(relating to transfers described in section 1081(d)(1)(A)).
    (iii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: Jones transfers section 1245 property to a corporation in 
exchange for stock of the corporation and $1,000 cash in a transaction 
which qualifies under section 351 (relating to transfer to a corporation 
controlled by transferor). Before the exchange the amount of the 
adjustments reflected in the adjusted basis of the property is $3,000. 
Upon the exchange $1,000 gain is recognized under section 1245(a)(1). 
Immediately after the exchange, the amount of the adjustments reflected 
in the adjusted basis of the property in the hands of the corporation is 
$2,000 (that is, $3,000 minus $1,000).

    (3) Certain transfers at death. (i) If property is acquired in a 
transfer at death to which section 1245(b)(2) applies, the amount of the 
adjustments reflected in the adjusted basis of property in the hands of 
the transferee immediately after the transfer shall be the amount (if 
any) of depreciation or amortization deductions allowed the transferee 
before the decedent's death, to the extent that the basis of the 
property (determined under section 1014(a)) is required to be reduced 
under the second sentence of section 1014(b)(9) (relating to adjustments 
to basis where property is acquired from a decedent prior to his death).
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: H purchases section 1245 property in 1965 which he 
immediately conveys to himself and W, his wife, as tenants by the 
entirety. Under local law each spouse is entitled to one-half the income 
from the property. H and W file joint income tax returns for calendar 
years 1965, 1966, and 1967. Over the 3 years, depreciation deductions 
amounting to $4,000 (the amount allowable) are allowed in respect of the 
property of which one-half thereof, or $2,000, is allocable to W. On 
January 1, 1968, H dies and the entire value of the property at the date 
of death is included in H's gross estate. Since W's basis for the 
property (determined under section 1014(a)) is reduced (under the second 
sentence of section 1014(b)(9)) by the $2,000 depreciation deductions 
allowed W before H's death, the adjustments reflected in the adjusted 
basis of the property in the hands of W immediately after H's death 
amount to $2,000.


[[Page 362]]


    (4) Property received in a like kind exchange, involuntary 
conversion, or F.C.C. transaction. (i) If property is acquired in a 
transaction described in subdivision (ii) of this subparagraph then 
immediately after the acquisition (and before applying subparagraph (5) 
of this paragraph, if applicable) the amount of the adjustments 
reflected in the adjusted basis of the property acquired shall be an 
amount equal to:
    (a) The amount of the adjustments reflected in the adjusted basis of 
the property disposed of immediately before the disposition, minus
    (b) The sum of (1) the amount of any gain recognized under section 
1245(a)(1) upon the disposition, plus (2) the amount of gain (if any) 
referred to in subparagraph (5)(ii) of this paragraph.
    (ii) The transactions referred to in subdivision (i) of this 
subparagraph are:
    (a) A disposition which is a like kind exchange or an involuntary 
conversion to which section 1245(b)(4) applies, or
    (b) A disposition to which the provisions of section 1071 and 
paragraph (e)(1) of Sec. 1.1245-4 apply.
    (iii) The provisions of subdivisions (i) and (ii) of this 
subparagraph may be illustrated by the following examples:

    Example 1. Smith exchanges machine A for machine B and $1,000 cash 
in a like kind exchange. Gain of $1,000 is recognized under section 
1245(a)(1). If before the exchange the amount of the adjustments 
reflected in the adjusted basis of machine A was $5,000, the amount of 
adjustments reflected in the adjusted basis of machine B after the 
exchange is $4,000 (that is, $5,000 minus $1,000).
    Example 2. Assume the same facts as in example (1) except that 
machine A is destroyed by fire, that $5,000 in insurance proceeds are 
received of which $4,000 is used to purchase machine B, and that Smith 
properly elects under section 1033(a)(3)(A) to limit recognition of 
gain. The result is the same as in example (1), that is, the amount of 
adjustments reflected in the adjusted basis of machine B is $4,000 
($5,000 minus $1,000).

    (iv) If more than one item of section 1245 property is acquired in a 
transaction referred to in subdivision (i) of this subparagraph, the 
total amount of the adjustments reflected in the adjusted bases of the 
items acquired shall be allocated to such items in proportion to their 
respective adjusted bases.
    (5) Property after a reduction in basis pursuant to election under 
section 1071 or application of section 1082(a)(2). If the basis of 
section 1245 property is reduced pursuant to an election under section 
1071 (relating to gain from sale or exchange to effectuate policies of 
F.C.C.), or the application of section 1082(a)(2) (relating to sale or 
exchange in obedience to order of S.E.C.), then immediately after the 
basis reduction the amount of the adjustments reflected in the adjusted 
basis of the property shall be the sum of:
    (i) The amount of the adjustments reflected in the adjusted basis of 
the property immediately before the basis reduction (but after applying 
subparagraph (4) of this paragraph, if applicable), plus
    (ii) The amount of gain which was not recognized under section 
1245(a)(1) by reason of the reduction in the basis of the property. See 
paragraph (e)(1) of Sec. 1.1245-4.
    (6) Partnership property after certain transactions. (i) For the 
amount of adjustments reflected in the adjusted basis of property 
immediately after certain distributions of the property by a partnership 
to a partner, see section 1245(b)(6)(B).
    (ii) If under paragraph (b)(3) of Sec. 1.751-1 (relating to certain 
distributions of partnership property other than section 751 property 
treated as sales or exchanges) a partnership is treated as purchasing 
section 1245 property (or a portion thereof) from a distributee who 
relinquishes his interest in such property (or portion), then on the 
date of such purchase the amount of adjustments reflected in the 
adjusted basis of such purchased property (or portion) shall be zero.
    (iii) See paragraph (e)(3)(ii) of Sec. 1.1245-1 for the amount of 
adjustments reflected in the adjusted basis of partnership property in 
respect of a partner who acquired his partnership interest in certain 
transactions when an election under section 754 (relating to optional 
adjustments to basis of partnership property) was in effect.

[T.D. 6832, 30 FR 8578, July 7, 1965, as amended by T.D. 7084, 36 FR 
268, Jan. 8, 1971; T.D. 7141, 36 FR 18793, Sept. 22, 1971; 36 FR 19160, 
Sept. 30, 1971; T.D. 7564, 43 FR 40496, Sept. 12, 1978; T.D. 8121, 52 FR 
414, Jan. 6, 1987]

[[Page 363]]



Sec. 1.1245-3  Definition of section 1245 property.

    (a) In general. (1) The term section 1245 property means any 
property (other than livestock excluded by the effective date limitation 
in subparagraph (4) of this paragraph) which is or has been property of 
a character subject to the allowance for depreciation provided in 
section 167 and which is either:
    (i) Personal property (within the meaning of paragraph (b) of this 
section),
    (ii) Property described in section 1245(a)(3)(B) (see paragraph (c) 
of this section), or
    (iii) An elevator or an escalator within the meaning of subparagraph 
(C) of section 48(a)(1) (relating to the definition of section 38 
property for purposes of the investment credit), but without regard to 
the limitations in such subparagraph (C).
    (2) If property is section 1245 property under a subdivision of 
subparagraph (1) of this paragraph, a leasehold of such property is also 
section 1245 property under such subdivision. Thus, for example, if A 
owns personal property which is section 1245 property under subparagraph 
(1)(i) of this paragraph, and if A leases the personal property to B, 
B's leasehold is also section 1245 property under such provision. For a 
further example, if C owns and leases to D for a single lump-sum payment 
of $100,000 property consisting of land and a fully equipped factory 
building thereon, and if 40 percent of the fair market value of such 
property is properly allocable to section 1245 property, then 40 percent 
of D's leasehold is also section 1245 property. A leasehold of land is 
not section 1245 property.
    (3) Even though property may not be of a character subject to the 
allowance for depreciation in the hands of the taxpayer, such property 
may nevertheless be section 1245 property if the taxpayer's basis for 
the property is determined by reference to its basis in the hands of a 
prior owner of the property and such property was of a character subject 
to the allowance for depreciation in the hands of such prior owner, or 
if the taxpayer's basis for the property is determined by reference to 
the basis of other property which in the hands of the taxpayer was 
property of a character subject to the allowance for depreciation. Thus, 
for example, if a father uses an automobile in his trade or business 
during a period after December 31, 1961, and then gives the automobile 
to his son as a gift for the son's personal use, the automobile is 
section 1245 property in the hands of the son.
    (4) Section 1245 property includes livestock, but only with respect 
to taxable years beginning after December 31, 1969. For purposes of 
section 1245, the term livestock includes horses, cattle, hogs, sheep, 
goats, and mink and other furbearing animals, irrespective of the use to 
which they are put or the purpose for which they are held.
    (b) Personal property defined. The term personal property means:
    (1) Tangible personal property (as defined in paragraph (c) of Sec. 
1.48-1, relating to the definition of section 38 property for purposes 
of the investment credit), and
    (2) Intangible personal property.
    (c) Property described in section 1245(a)(3)(B). (1) The term 
property described in section 1245(a)(3)(B) means tangible property of 
the requisite depreciable character other than personal property (and 
other than a building and its structural components), but only if there 
are adjustments reflected in the adjusted basis of the property (within 
the meaning of paragraph (a)(2) of Sec. 1.1245-2) for a period during 
which such property (or other property):
    (i) Was used as an integral part of manufacturing, production, or 
extraction, or as an integral part of furnishing transportation, 
communications, electrical energy, gas, water, or sewage disposal 
services by a person engaged in a trade or business of furnishing any 
such service, or
    (ii) Constituted a research or storage facility used in connection 
with any of the foregoing activities.

Thus, even though during the period immediately preceding its 
disposition the property is not used as an integral part of an activity 
specified in subdivision (i) of this subparagraph and does not 
constitute a facility specified in subdivision (ii) of this 
subparagraph, such property is nevertheless property described in 
section 1245(a)(3)(B) if, for example, there are adjustments reflected 
in the adjusted basis of the

[[Page 364]]

property for a period during which the property was used as an integral 
part of manufacturing by the taxpayer or another taxpayer, or for a 
period during which other property (which was involuntarily converted 
into, or exchanged in a like kind exchange for, the property) was so 
used by the taxpayer or another taxpayer. For rules applicable to 
involuntary conversions and like kind exchanges, see paragraph (d)(3) of 
Sec. 1.1245-4.
    (2) The language used in subparagraph (1) (i) and (ii) of this 
paragraph shall have the same meaning as when used in paragraph (a) of 
Sec. 1.48-1, and the terms building and structural components shall 
have the meanings assigned to those terms in paragraph (e) of Sec. 
1.48-1.

[T.D. 6832, 30 FR 8580, July 7, 1965, as amended by T.D. 7141, 36 FR 
18794, Sept. 22, 1971]



Sec. 1.1245-4  Exceptions and limitations.

    (a) Exception for gifts--(1) General rule. Section 1245(b)(1) 
provides that no gain shall be recognized under section 1245(a)(1) upon 
a disposition by gift. For purposes of this paragraph, the term gift 
means, except to the extent that subparagraph (3) of this paragraph 
applies, a transfer of property which, in the hands of the transferee, 
has a basis determined under the provisions of section 1015 (a) or (d) 
(relating to basis of property acquired by gifts). For reduction in 
amount of charitable contribution in case of a gift of section 1245 
property, see section 170(e) and the regulations thereunder.
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. A places section 1245 property in trust to pay the income 
from the property to B for his life, and after B's death to distribute 
the property to C. If the basis of the property to the fiduciary and to 
C is determined under the uniform basis rules prescribed in paragraph 
(b) of Sec. 1.1015-1, and under paragraph (c) of Sec. 1.1015-1 the 
time the fiduciary and C acquire their interests in the property is the 
time the donor relinquished dominion over the property, then section 
1245(a)(1) does not apply to the transfer by A to the trust or to the 
distribution to C.
    Example 2. Assume the same facts as in example (1), except that the 
fiduciary sells the section 1245 property and reinvests the proceeds in 
other section 1245 property which is distributed to C upon B's death. 
Assume further that under paragraph (f) of Sec. 1.1015-1 C's basis for 
the distributed property is the cost or other basis to the fiduciary. 
Section 1245(a)(1) applies to the sale but not to the distribution.

    (3) Disposition in part a sale or exchange and in part a gift. Where 
a disposition of property is in part a sale or exchange and in part a 
gift, the gain to which section 1245(a)(1) applies is the amount by 
which (i) the lower of the amount realized upon the disposition of the 
property or the recomputed basis of the property, exceeds (ii) the 
adjusted basis of the property. For determination of the recomputed 
basis of the property in the hands of the transferee, see paragraph 
(c)(2) of Sec. 1.1245-2.
    (4) Example. The provisions of subparagraph (3) of this paragraph 
may be illustrated by the following example:

    Example: (i) Smith transfers section 1245 property, which he has 
held in excess of 1 year (6 months for taxable years beginning before 
1977; 9 months for taxable years beginning in 1977), to his son for 
$60,000. Immediately before the transfer the property in the hands of 
Smith has an adjusted basis of $30,000, a fair market value of $90,000, 
and a recomputed basis of $110,000. Since the amount realized upon 
disposition of the property ($60,000) is lower than its recomputed basis 
($110,000), the excess of the amount realized over adjusted basis, or 
$30,000, is treated as ordinary income under section 1245(a)(1) and not 
as gain from the sale or exchange of property described in section 1231. 
Smith has made a gift of $30,000 ($90,000 fair market value minus 
$60,000 amount realized) to which section 1245(a)(1) does not apply.
    (ii) Immediately before the transfer, the amount of adjustments 
reflected in the adjusted basis of the property was $80,000. Under 
paragraph (c)(2) of Sec. 1.1245-2, $50,000 of adjustments are reflected 
in the adjusted basis of the property immediately after the transfer, 
that is, $80,000 of such adjustments immediately before the transfer, 
minus $30,000 gain taken into account under section 1245(a)(1) upon the 
transfer. Thus, the recomputed basis of the property in the hands of the 
son is $110,000.

    (b) Exception for transfers at death--(1) General rule. Section 
1245(b)(2) provides that, except as provided in section 691 (relating to 
income in respect of a decedent), no gain shall be recognized under 
section 1245(a)(1) upon a transfer at death. For purposes of this 
paragraph, the term transfer at death means

[[Page 365]]

a transfer of property which, in the hands of the transferee, has a 
basis determined under the provisions of section 1014(a) (relating to 
basis of property acquired from a decedent) because of the death of the 
transferor. For recomputed basis of property acquired in a transfer at 
death, see paragraph (c)(1)(iv) of Sec. 1.1245-2.
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Smith owns section 1245 property which, upon Smith's 
death, is inherited by his son. Since the property is described in 
section 1014(b)(1), its basis in the hands of the son is determined 
under the provisions of section 1014(a). Therefore, section 1245(a)(1) 
does not apply to the transfer at Smith's death.
    Example 2. H purchases section 1245 property which he conveys to 
himself and W, his wife, as tenants by the entirety. Upon H's death in 
1970 the property (including W's share) is included in his gross estate. 
Since the entire property is described in section 1014(b) (1) and (9), 
its basis in the hands of W is determined under the provisions of 
section 1014(a). Therefore, section 1245(a)(1) does not apply to the 
transfer at H's death. For determination of the recomputed basis of the 
property in the hands of W, see paragraph (c)(3) of Sec. 1.1245-2.
    Example 3. Green's will provides for the bequest of section 1245 
property to trustees to pay the income from the property to his wife for 
her lifetime, and upon her death to distribute the property to his son. 
If under paragraph (a)(2) of Sec. 1.1014-4 the son's unadjusted basis 
for the property is its fair market value at the time the decedent died, 
section 1245(a)(1) does not apply to the distribution of the property to 
the son.
    Example 4. The trustee of a trust created by will transfers section 
1245 property to a beneficiary in satisfaction of a specific bequest of 
$10,000. If under the principles of paragraph (a)(3) of Sec. 1.1014-4 
the trust realizes a taxable gain upon the transfer, section 1245(a)(1) 
applies to the transfer.

    (c) Limitation for certain tax-free transactions--(1) Limitation on 
amount of gain. Section 1245(b)(3) provides that upon a transfer of 
property described in subparagraph (2) of this paragraph, the amount of 
gain taken into account by the transferor under section 1245(a)(1) shall 
not exceed the amount of gain recognized to the transferor on the 
transfer (determined without regard to section 1245). For purposes of 
this subparagraph, in case of a transfer of both section 1245 property 
and non-section 1245 property in one transaction, the amount realized 
from the disposition of the section 1245 property (as determined under 
paragraph (a)(5) of Sec. 1.1245-1) shall be deemed to consist of that 
portion of the fair market value of each property acquired which bears 
the same ratio to the fair market value of such acquired property as the 
amount realized from the disposition of the section 1245 property bears 
to the total amount realized. The preceding sentence shall be applied 
solely for purposes of computing the portion of the total gain 
(determined without regard to section 1245) which shall be recognized as 
ordinary income under section 1245(a)(1). For determination of the 
recomputed basis of the section 1245 property in the hands of the 
transferee, see paragraph (c)(2) of Sec. 1.1245-2. Section 1245(b)(3) 
does not apply to a disposition of property to an organization (other 
than a cooperative described in section 521) which is exempt from the 
tax imposed by chapter 1 of the Code.
    (2) Transfers covered. The transfers referred to in subparagraph (1) 
of this paragraph are transfers of property in which the basis of the 
property in the hands of the transferee is determined by reference to 
its basis in the hands of the transferor by reason of the application of 
any of the following provisions:
    (i) Section 332 (relating to distributions in complete liquidation 
of an 80-percent-or-more controlled subsidiary corporation). See 
subparagraph (3) of this paragraph.
    (ii) Section 351 (relating to transfer to a corporation controlled 
by transferor).
    (iii) Section 361 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 371(a) (relating to exchanges pursuant to certain 
receivership and bankruptcy proceedings).
    (v) Section 374(a) (relating to exchanges pursuant to certain 
railroad reorganizations).
    (vi) Section 721 (relating to transfers to a partnership in exchange 
for a partnership interest).
    (vii) Section 731 (relating to distributions by a partnership to a 
partner). For special carryover basis rule, see

[[Page 366]]

section 1245(b)(6)(A) and paragraph (f)(1) of this section.
    (3) Complete liquidation of subsidiary. In the case of a 
distribution in complete liquidation of an 80-percent-or-more controlled 
subsidiary to which section 332 applies, the limitation provided in 
section 1245(b)(3) is confined to instances in which the basis of the 
property in the hands of the transferee is determined, under section 
334(b)(1), by reference to its basis in the hands of the transferor. 
Thus, for example, the limitation of section 1245(b)(3) may apply in 
respect of a liquidating distribution of section 1245 property by an 80-
percent-or-more controlled corporation to the parent corporation, but 
does not apply in respect of a liquidating distribution of section 1245 
property to a minority shareholder. Section 1245(b)(3) does not apply to 
a liquidating distribution of property by an 80-percent-or-more 
controlled subsidiary to its parent if the parent's basis for the 
property is determined, under section 334(b)(2), by reference to its 
basis for the stock of the subsidiary.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Section 1245 property, which is owned by Smith, has a 
fair market value of $10,000, a recomputed basis of $8,000, and an 
adjusted basis of $4,000. Smith transfers the property to a corporation 
in exchange for stock in the corporation worth $9,000 plus $1,000 in 
cash in a transaction qualifying under section 351. Without regard to 
section 1245, Smith would recognize $1,000 gain under section 351(b), 
and the corporation's basis for the property would be determined under 
section 362(a) by reference to its basis in the hands of Smith. Since 
the recomputed basis of the property disposed of ($8,000) is lower than 
the amount realized ($10,000), the excess of recomputed basis over 
adjusted basis ($4,000), or $4,000, would be treated as ordinary income 
under section 1245(a)(1) if the provisions of section 1245(b)(3) did not 
apply. However, section 1245(b)(3) limits the gain taken into account by 
Smith under section 1245(a)(1) to $1,000. If, instead, Smith transferred 
the property to the corporation solely in exchange for stock of the 
corporation worth $10,000, then, because of the application of section 
1245(b)(3), Smith would not take any gain into account under section 
1245(a)(1). If, however, Smith transferred the property to the 
corporation for stock worth $5,000 and $5,000 cash, only $4,000 of the 
$5,000 gain under section 351(b) would be treated as ordinary income 
under section 1245(a)(1).
    Example 2. Assume the same facts as in example (1) except that Smith 
contributes the property to a new partnership in which he has a one-half 
interest. Since, without regard to section 1245, no gain would be 
recognized to Smith under section 721, and by reason of the application 
of section 721 the partnership's basis for the property would be 
determined under section 723 by reference to its basis in the hands of 
Smith, the application of section 1245(b)(3) results in no gain being 
taken into account by Smith under section 1245(a)(1).
    Example 3. Assume the same facts as in example (2) except that the 
property is subject to a $9,000 mortgage. Since under section 752(b) 
(relating to decrease in partner's liabilities) Smith is treated as 
receiving a distribution in money of $4,500 (one-half of liability 
assumed by partnership), and since the basis of Smith's partnership 
interest is $4,000 (the adjusted basis of the contributed property), the 
$4,500 distribution results in his realizing $500 gain under section 
731(a) (relating to distributions by a partnership), determined without 
regard to section 1245. Accordingly, the application of section 
1245(b)(3) limits the gain taken into account by Smith under section 
1245(a)(1) to $500.

    (d) Limitation for like kind exchanges and involuntary conversions--
(1) General rule. Section 1245(b)(4) provides that if property is 
disposed of and gain (determined without regard to section 1245) is not 
recognized in whole or in part under section 1031 (relating to like kind 
exchanges) or section 1033 (relating to involuntary conversions), then 
the amount of gain taken into account by the transferor under section 
1245(a)(1) shall not exceed the sum of:
    (i) The amount of gain recognized on such disposition (determined 
without regard to section 1245), plus
    (ii) The fair market value of property acquired which is not section 
1245 property and which is not taken into account under subdivision (i) 
of this subparagraph (that is, the fair market value of non-section 1245 
property acquired which is qualifying property under section 1031 or 
1033, as the case may be).
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. Smith exchanges machine A for machine B in a like kind 
exchange as to which no gain is recognized under section

[[Page 367]]

1031(a). Both machines are section 1245 property. No gain is recognized 
under section 1245(a)(1) because of the limitation contained in section 
1245(b)(4). The result would be the same if machine A were involuntarily 
converted into machine B in a transaction as to which no gain is 
recognized under section 1033(a)(1).
    Example 2. Jones owns property A, which is section 1245 property, 
with an adjusted basis of $100,000 and a recomputed basis of $116,000. 
The property is destroyed by fire and Jones receives $117,000 of 
insurance proceeds. Thus, the amount of gain under section 1245(a)(1), 
determined without regard to section 1245(b)(4), would be $16,000. He 
uses $105,000 of the proceeds to purchase section 1245 property similar 
or related in service or use to property A, and $9,000 of the proceeds 
to purchase stock in the acquisition of control of a corporation owning 
property similar or related in service or use to property A. Both 
acquisitions qualify under section 1033(a)(3)(A). Jones properly elects 
under section 1033(a)(3)(A) and the regulations thereunder to limit 
recognition of gain to the amount by which the amount realized from the 
conversion exceeds the cost of the stock and other property acquired to 
replace the converted property. Since $3,000 of the gain is recognized 
(without regard to section 1245) under section 1033(a)(3) (that is, 
$117,000 minus $114,000), and since the stock purchased for $9,000 is 
not section 1245 property and was not taken into account in determining 
the gain under section 1033, section 1245(b)(4) limits the amount of the 
gain taken into account under section 1245(a)(1) to $12,000 (that is, 
$3,000 plus $9,000). If, instead of purchasing $9,000 in stock, Jones 
purchases $9,000 worth of property which is section 1245 property 
similar or related in use to the destroyed property, section 1245(b)(4) 
would limit the amount of gain taken into account under section 
1245(a)(1) to $3,000.

    (3) Certain tangible property. If:
    (i) A person disposes of section 1245 property in a transaction to 
which section 1245(b)(4) applies,
    (ii) Adjustments are reflected in the adjusted basis (within the 
meaning of paragraph (a)(2) of Sec. 1.1245-2) of such property which 
are attributable to the use of such property (or other property) as an 
integral part of an activity, or as a facility, specified in section 
1245(a)(3)(B) (i) or (ii), and
    (iii) Property is acquired in the transaction which would be 
considered as section 1245 property described in section 1245(a)(3)(B) 
if such person used the acquired property as an integral part of such an 
activity, or as such a facility, then (regardless of the use of the 
acquired property) the acquired property shall be considered as section 
1245 property described in section 1245(a)(3)(B). For definition of 
property described in section 1245(a)(3)(B), see paragraph (c) of Sec. 
1.1245-3. Thus, for example, if a person's section 1245 property (which 
is personal property) is involuntarily converted into property A which 
would qualify as section 1245 property only if it were devoted to a 
specified use, and if the person had so devoted the section 1245 
property disposed of, then the acquired property is considered as 
section 1245 property described in section 1245(a)(3)(B) and therefore 
its fair market value is not taken into account under subparagraph 
(1)(ii) of this paragraph. For recomputed basis of property A, see 
paragraph (a)(5) of Sec. 1.1245-2. Moreover, if property A is not 
devoted to a specified use and is subsequently involuntarily converted 
into property B which would qualify as section 1245 property only if it 
were so devoted, then property B is also considered as section 1245 
property described in section 1245(a)(3)(B).
    (4) Application to disposition of section 1245 property and 
nonsection 1245 property in one transaction. For purposes of this 
paragraph, if both section 1245 property and nonsection 1245 property 
are acquired as the result of one disposition in which both section 1245 
property and nonsection 1245 property are disposed of, then except as 
provided in subparagraph (7) of this paragraph:
    (i) The total amount realized upon the disposition shall be 
allocated (in a manner consistent with the principles of paragraph 
(a)(5) of Sec. 1.1245-1) between the section 1245 property and the 
nonsection 1245 property disposed of in proportion to their respective 
fair market values.
    (ii) The amount realized upon the disposition of the section 1245 
property shall be deemed to consist of so much of the fair market value 
of the section 1245 property acquired as is not in excess of the amount 
realized from the section 1245 property disposed of, and the remaining 
portion (if any) of the amount realized upon the disposition of the 
section 1245 property shall be deemed to consist of so much of the fair 
market value of the non-section

[[Page 368]]

1245 property acquired as is not in excess of the amount of such 
remaining portion, and
    (iii) The amount realized upon the disposition of the non-section 
1245 property shall be deemed to consist of so much of the fair market 
value of all the property acquired which was not taken into account in 
subdivision (ii) of this subparagraph.
    (5) Example. The provisions of subparagraph (4) of this paragraph 
may be illustrated by the following example:

    Example: (i) Smith owns section 1245 property A with a fair market 
value of $30,000, and non-section 1245 property X with a fair market 
value of $20,000. Properties A and X are destroyed by fire and Smith 
receives insurance proceeds of $40,000. He uses all the proceeds, plus 
additional cash of $10,000, to purchase in a single transaction 
properties B and Y which qualify under section 1033(a)(3)(A), and he 
properly elects under section 1033(a)(3)(A) and the regulations 
thereunder to limit recognition of gain to the excess of the amount 
realized from the conversion over the costs of the qualifying properties 
acquired. Thus no gain would be recognized (without regard to section 
1245) under section 1033(a)(3)(A). Property B is section 1245 property 
with a fair market value of $15,000, and property Y is non-section 1245 
property with a fair market value of $35,000.
    (ii) The amount realized upon the disposition of A and X ($40,000) 
is allocated between A and X in proportion to their respective fair 
market values. Thus, the amount considered realized in respect of A is 
$24,000 (that is, \30/50\ of $40,000). (The amount considered realized 
in respect of X is $16,000 (that is, \20/50\ of $40,000).)
    (iii) The $24,000 realized upon the disposition of A is deemed to 
consist of the fair market value of B ($15,000) and $9,000 of the fair 
market value of Y. (The $16,000 realized upon the disposition of X is 
deemed to consist of $16,000 of the fair market value of Y. Also, 
$10,000 of the fair market value of Y is attributable to the additional 
cash of $10,000.)
    (iv) Assume that A has an adjusted basis of $5,000, and a recomputed 
basis of $40,000. Since the amount considered realized upon the 
disposition of A ($24,000) is lower than its recomputed basis ($40,000), 
the amount of gain which would be recognized under section 1245(a)(1), 
determined without regard to section 1245(b)(4), is $19,000, that is, 
the amount realized ($24,000) minus the adjusted basis ($5,000). Since 
no gain is recognized (without regard to section 1245) under section 
1033(a)(3), and since $9,000 of the property acquired in exchange for 
section 1245 property A is non-section 1245 property Y, section 
1245(b)(4) limits the amount of gain taken into account under section 
1245(a)(1) to $9,000.

    (6) Cross references. For the manner of determining the recomputed 
basis of property acquired in a transaction to which section 1245(b)(4) 
applies, see paragraph (c)(4) of Sec. 1.1245-2. For the manner of 
determining the basis of such property, see paragraph (a) of Sec. 
1.1245-5.
    (7) Coordination with section 1250. For purposes of this paragraph, 
if section 1245 property and section 1250 property are disposed of in 
one transaction in which the property acquired includes section 1250 
property, the allocation rules of paragraph (d)(6) of Sec. 1.1250-3 
shall apply.
    (e) Limitation for section 1071 and 1081 transactions--(1) Section 
1071 and 1081(b) transactions. If property is disposed of and gain 
(determined without regard to section 1245) is not recognized in whole 
or in part because of the application of section 1071 (relating to gain 
from sale or exchange to effectuate policies of F.C.C.) or section 
1081(b) (relating to gain from sale or exchange in obedience to order of 
S.E.C.), then the amount of gain taken into account by the transferor 
under section 1245(a)(1) shall not exceed the sum of:
    (i) The amount of gain recognized on such disposition (determined 
without regard to section 1245),
    (ii) In the case of a transaction to which section 1071 applies, the 
fair market value of property acquired which is not section 1245 
property and which is not taken into account under subdivision (i) of 
this subparagraph, plus
    (iii) The amount by which the basis of property, other than section 
1245 property, is reduced (pursuant to an election under section 1071 or 
pursuant to the application of section 1082(a)(2)), and which is not 
taken into account under subdivision (i) or (ii) of this subparagraph.
    (2) Section 1081(d)(1)(A) transaction. No gain shall be recognized 
under section 1245(a)(1) upon an exchange of property as to which gain 
would not be recognized (without regard to section 1245) because of the 
application of section 1081(d)(1)(A) (relating to transfers within 
system group). For recomputed basis of property acquired in a 
transaction

[[Page 369]]

referred to in this subparagraph, see paragraph (c)(2) of Sec. 1.1245-
2.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Corporation X elects under section 1071 to treat a sale 
of section 1245 property for $100,000 as an involuntary conversion 
subject to the provisions of section 1033, but does not elect to reduce 
the basis of depreciable property pursuant to an election under section 
1071. The corporation uses $35,000 of the proceeds to purchase section 
1245 property and $40,000 to purchase other property. Both properties 
qualify as replacement property under section 1033. Assuming that the 
amount of gain under section 1245(a)(1) (determined without regard to 
this paragraph) would be $70,000, and that $25,000 of gain would be 
recognized (without regard to section 1245) upon the application of 
section 1071, the amount of gain taken into account under section 
1245(a)(1) is $65,000 ($25,000 plus $40,000).
    Example 2. (i) Assume the same facts as in example (1) except that 
the corporation elects under section 1071 to reduce its basis for 
property of a character subject to the allowance for depreciation under 
section 167 by the amount of gain which would be recognized without 
regard to the application of section 1245, that is, by $25,000. Assume 
further that under section 1071 the corporation may reduce the basis of 
depreciable property consisting of property A, which is section 1245 
property with an adjusted basis of $30,000, and property B, which is 
property other than section 1245 property with an adjusted basis of 
$20,000. Under paragraph (a)(2) of Sec. 1.1071-3, the $25,000 of 
unrecognized gain is applied to reduce the basis of property A by 
$15,000 (30,000/50,000 of $25,000) and the basis of property B by 
$10,000 (20,000/50,000 of $25,000).
    (ii) The amount of gain which would be recognized (determined 
without regard to section 1245) under section 1071 is zero, i.e., the 
amount determined in example (1) ($25,000), minus the amount of the 
reduction in basis of depreciable property pursuant to the election 
($25,000). The amount of gain taken into account under section 
1245(a)(1) is $50,000, i.e., the sum of (a) the gain which would be 
recognized without regard to section 1245 (zero), (b) the cost of 
property acquired which is not section 1245 property ($40,000), plus (c) 
the amount by which the basis of property B is reduced ($10,000). For 
method of increasing basis of property B, see paragraph (b)(2) of Sec. 
1.1245-5, and for recomputed basis of property A, see paragraph (c)(5) 
of Sec. 1.1245-2.

    (f) Limitation for property distributed by a partnership--(1) In 
general. For purposes of section 1245(b)(3) (relating to certain tax-
free transactions), the basis of section 1245 property distributed by a 
partnership to a partner shall be deemed to be determined by reference 
to the adjusted basis of such property to the partnership.
    (2) Adjustments reflected in the adjusted basis. If section 1245 
property is distributed by a partnership to a partner, then, for 
purposes of determining the recomputed basis of the property in the 
hands of the distributee, the amount of the adjustments reflected in the 
adjusted basis of the property immediately after the distribution shall 
be an amount equal to:
    (i) The potential section 1245 income (as defined in paragraph 
(c)(4) of Sec. 1.751-1) of the partnership in respect of the property 
immediatley before the distribution, reduced by
    (ii) The portion of such potential section 1245 income which is 
recognized as ordinary income to the partnership under paragraph 
(b)(2)(ii) of Sec. 1.751-1.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) A machine, which is section 1245 property owned by 
partnership ABC, has an adjusted basis of $9,000, a recomputed basis of 
$18,000, and a fair market value of $15,000. Since the fair market value 
of the machine is lower than its recomputed basis, the potential section 
1245 income in respect of the machine is the excess of fair market value 
over adjusted basis, or $6,000. The partnership distributes the machine 
to C in a complete liquidation of his partnership interest to which 
section 736(a) does not apply. C, who had originally contributed the 
machine to the partnership, has a basis for his partnership interest of 
$10,000. Since section 751(b)(2)(A) provides that section 751(b)(1) does 
not apply to a distribution of property to the partner who contributed 
the property, no gain would be recognized to the partnership under 
section 731(b) (without regard to the application of section 1245). By 
reason of the application of section 731, C's basis for the property 
would, under section 732(b), be equal to his basis for his interest in 
the partnership, or $10,000.
    (ii) Since section 731 applies to the distribution, and since 
subparagraph (1) of this paragraph provides that, for purposes of 
section 1245(b)(3), C's basis for the property is deemed to be 
determined by reference to the adjusted basis of the property to the 
partnership, the gain taken into account under section 1245(a)(1) by the 
partnership is limited by section 1245(b)(3) so as not to exceed the 
amount of gain which would be recognized to

[[Page 370]]

the partnership if section 1245 did not apply. Accordingly, the 
partnership does not recognize any gain under section 1245(a)(1) upon 
the distribution.
    (iii) Immediately after the distribution, the amount of the 
adjustments reflected in the adjusted basis of the property is equal to 
$6,000 (that is, the potential section 1245 income of the partnership in 
respect of the property before the distribution, $6,000, minus the gain 
recognized by the partnership under section 751(b), zero). Accordingly, 
C's recomputed basis for the property is $16,000 (that is, adjusted 
basis, $10,000, plus adjustments reflected in the adjusted basis, 
$6,000).
    Example 2. Assume the same facts as in example (1) except that the 
machine had been purchased by the partnership. Assume further that upon 
the distribution, the partnership recognizes $4,000 gain as ordinary 
income under section 751(b). Under section 1245(b)(3), gain to be taken 
into account under section 1245(a)(1) by the partnership is limited to 
$4,000. Immediately after the distribution, the amount of adjustments 
reflected in the adjusted basis of the property is $2,000 (that is, 
potential section 1245 income of the partnership, $6,000, minus gain 
recognized to the partnership under section 751(b), $4,000). Thus, if 
the adjusted basis of the machine in the hands of C were $11,333 (see, 
for example, the computation in paragraph (d)(2) of example (6) of 
paragraph (g) of Sec. 1.751-1), the recomputed basis of the machine 
would be $13,333 ($11,333 plus $2,000).

    (g) [Reserved]
    (h) Timber property subject to amortization under section 194--(1) 
In general. For purposes of section 1245(a)(2), in determining the 
recomputed basis of property with respect to which a deduction under 
section 194 was allowed for any taxable year, a taxpayer shall not take 
into account amortization deductions claimed under section 194 to the 
extent such deductions are attributable to the amortizable basis (within 
the meaning of section 194(c)(2)) of the taxpayer acquired before the 
tenth taxable year preceding the taxable year in which gain with respect 
to the property is recognized.
    (2) Example. The principles of paragraph (h)(1) of this section are 
illustrated by the following example:

    Example: Assume A owns qualified timber property (as defined in 
section 194(c)(1)) with a basis of $30,000. In 1981, A incurs $12,000 of 
qualifying reforestation expenditures and elects to amortize the maximum 
$10,000 of such expenses under section 194. The $10,000 of deductions 
are taken during the 8-year period from 1981 to 1988. If A sells the 
property in 1990 for $60,000 a gain of $28,000 ($60,000--adjusted basis 
of $32,000) is recognized on the sale. Since the sale took place within 
10 years of the taxable year in which the reforestation expenditures 
were made, $10,000 of the gain is treated as ordinary income, and the 
remaining $18,000 of gain would be capital gain, if it otherwise 
qualifies for capital gain treatment. In order to avoid ordinary income 
treatment of the gain attributable to the reforestation expenditures 
incurred in 1981, A would have to wait until 1992 to dispose of the 
property.

[T.D. 6832, 30 FR 8581, July 7, 1965, as amended by T.D. 7084, 36 FR 
268, Jan. 8, 1971; T.D. 7207, 37 FR 20799, Oct. 14, 1972; T.D. 7728, 45 
FR 72650, Nov. 3, 1980; T.D. 7927, 48 FR 55851, Dec. 16, 1983]



Sec. 1.1245-5  Adjustments to basis.

    In order to reflect gain recognized under section 1245(a)(1), the 
following adjustments to the basis of property shall be made:
    (a) Property acquired in like kind exchange or involuntary 
conversion. (1) If property is acquired in a transaction to which 
section 1245(b)(4) applies, its basis shall be determined under the 
rules of section 1031(d) or 1033(c).
    (2) The provisions of this paragraph may be illustrated by the 
following example:

    Example: Jones exchanges property A, which is section 1245 property 
with an adjusted basis of $10,000, for property B, which has a fair 
market value of $9,000, and property C, which has a fair market value of 
$3,500, in a like kind exchange as to which no gain would be recognized 
under section 1031(a). Upon the exchange $2,500 gain is recognized under 
section 1245(a)(1), since property C is not section 1245 property. See 
section 1245(b)(4). Under the rules of section 1031(d), the basis of the 
properties received in the exchange is $12,500 (i.e., the basis of 
property transferred, $10,000, plus the amount of gain recognized, 
$2,500), of which the amount allocated to property C is $3,500 (the fair 
market value thereof), and the residue, $9,000, is allocated to property 
B.

    (b) Sections 1071 and 1081 transactions. (1) If property is acquired 
in a transaction to which section 1071 and paragraph (e)(1) of Sec. 
1.1245-4 (relating to limitation for section 1071 transactions, etc.) 
apply, its basis shall be determined in accordance with the principles 
of paragraph (a) of this section.
    (2) If the basis of property, other than section 1245 property, is 
reduced

[[Page 371]]

pursuant to either an election under section 1071 or the application of 
section 1082(a)(2), then the basis of the property shall be increased to 
the extent of the gain recognized under section 1245(a)(1) by reason of 
the application of paragraph (e)(1)(iii) of Sec. 1.1245-4.

[T.D. 6832, 30 FR 8584, July 7, 1965]



Sec. 1.1245-6  Relation of section 1245 to other sections.

    (a) General. The provisions of section 1245 apply notwithstanding 
any other provision of subtitle A of the Code. Thus, unless an exception 
or limitation under section 1245(b) applies, gain under section 
1245(a)(1) is recognized notwithstanding any contrary nonrecognition 
provision or income characterizing provision. For example, since section 
1245 overrides section 1231 (relating to property used in the trade or 
business), the gain recognized under section 1245(a)(1) upon a 
disposition will be treated as ordinary income and only the remaining 
gain, if any, from the disposition may be considered as gain from the 
sale or exchange of a capital asset if section 1231 is applicable. See 
example (2) of paragraph (b)(2) of Sec. 1.1245-1. For effect of section 
1245 on basis provisions of the Code, see Sec. 1.1245-5.
    (b) Nonrecognition sections overridden. The nonrecognition 
provisions of subtitle A of the Code which section 1245 overrides 
include, but are not limited to, sections 267(d), 311(a), 336, 337, 
501(a), 512(b)(5), and 1039. See section 1245(b) for the extent to which 
section 1245(a)(1) overrides sections 332, 351, 361, 371(a), 374(a), 
721, 731, 1031, 1033, 1071, and 1081 (b)(1) and (d)(1)(A). For 
limitation on amount of adjustments reflected in adjusted basis of 
property disposed of by an organization exempt from income taxes (within 
the meaning of section 501(a)), see paragraph (a)(8) of Sec. 1.1245-2.
    (c) Normal retirement of asset in multiple asset account. Section 
1245(a)(1) does not require recognition of gain upon normal retirements 
of section 1245 property in a multiple asset account as long as the 
taxpayer's method of accounting, as described in paragraph (e)(2) of 
Sec. 1.167(a)-8 (relating to accounting treatment of asset 
retirements), does not require recognition of such gain.
    (d) Installment method. (1) Gain from a disposition to which section 
1245(a)(1) applies may be reported under the installment method if such 
method is otherwise available under section 453 of the Code. In such 
case, the income (other than interest) on each installment payment shall 
be deemed to consist of gain to which section 1245(a)(1) applies until 
all such gain has been reported, and the remaining portion (if any) of 
such income shall be deemed to consist of gain to which section 
1245(a)(1) does not apply. For treatment of amounts as interest on 
certain deferred payments, see section 483.
    (2) The provisions of this paragraph may be illustrated by the 
following example:

    Example: Jones contracts to sell an item of section 1245 property 
for $10,000 to be paid in 10 equal payments of $1,000 each, plus a 
sufficient amount of interest so that section 483 does not apply. He 
properly elects under section 453 to report under the installment method 
gain of $2,000 to which section 1245(a)(1) applies and gain of $1,000 to 
which section 1231 applies. Accordingly, $300 of each of the first 6 
installment payments and $200 of the seventh installment payment is 
ordinary income under section 1245(a)(1), and $100 of the seventh 
installment payment and $300 of each of the last 3 installment payments 
is gain under section 1231.

    (e) Exempt income. The fact that section 1245 provides for 
recognition of gain as ordinary income does not change into taxable 
income any income which is exempt under section 115 (relating to income 
of states, etc.), 892 (relating to income of foreign governments), or 
894 (relating to income exempt under treaties).
    (f) Treatment of gain not recognized under section 1245. Section 
1245 does not prevent gain which is not recognized under section 1245 
from being considered as gain under another provision of the Code, such 
as, for example, section 311(c) (relating to liability in excess of 
basis), section 341(f) (relating to collapsible corporations), section 
357(c) (relating to liabilities in excess of basis), section 1238 
(relating to amortization in excess of depreciation), or section 1239 
(relating to gain from sale

[[Page 372]]

of depreciable property between certain related persons). Thus, for 
example, if section 1245 property, which has an adjusted basis of $1,000 
and a recomputed basis of $1,500, is sold for $1,750 in a transaction to 
which section 1239 applies, $500 of the gain would be recognized under 
section 1245(a)(1) and the remaining $250 of the gain would be treated 
as ordinary income under section 1239.

[T.D. 6832, 30 FR 8584, July 7, 1965, as amended by T.D. 7084, 36 FR 
269, Jan. 8, 1971; T.D. 7400, 41 FR 5101, Feb. 4, 1976]



Sec. 1.1247-1  Election by foreign investment companies to distribute 
income currently.

    (a) Election by foreign investment company--(1) In general. If a 
registered foreign investment company (as defined in paragraph (b) of 
this section) elects, on or before December 31, 1962, with respect to 
each of its taxable years beginning after December 31, 1962, to comply 
with the requirements of subparagraph (2) of this paragraph, then 
section 1246 (relating to gain on foreign investment company stock) 
shall not apply with respect to a qualified shareholder (as defined in 
paragraph (b) of Sec. 1.1247-3) of such company who disposes of his 
stock during any taxable year of the company to which such election 
applies. See section 1247(a)(1).
    (2) Requirements. A registered foreign investment company which 
makes an election under section 1247(a) shall, with respect to each of 
its taxable years beginning after December 31, 1962, comply with the 
following requirements:
    (i) Under section 1247(a)(1)(A), the company shall distribute to its 
shareholders, during the taxable year, 90 percent or more of what its 
taxable income would be for such taxable year if it were a domestic 
corporation. To the extent elected by the company under section 
1247(a)(2)(B), a distribution of taxable income made not later than 2 
months and 15 days after the close of the taxable year shall be treated 
as distributed during such taxable year. For rules relating to 
computation of taxable income for a taxable year and distributions of 
such taxable income, see Sec. 1.1247-2.
    (ii) Under section 1247(a)(1)(B), the company shall designate to 
each shareholder the amount of his pro rata share of the excess of the 
net long-term capital gain over the net short-term capital loss for the 
taxable year and the amount thereof which is being distributed. For the 
manner of designating and the computation of such amounts, see Sec. 
1.1247-3.
    (iii) Under section 1247(a)(1)(C), the company shall provide the 
information and maintain the records required by Sec. 1.1247-5.
    (b) Definition of registered foreign investment company. The term 
registered foreign investment company means a foreign corporation which 
is registered within the time specified in this paragraph under the 
Investment Company Act of 1940, as amended (15 U.S.C. 80a-1 to 80b-2), 
either as a management company or as a unit investment trust. Under such 
Act, a company is deemed registered upon receipt by the Securities and 
Exchange Commission of Form N-8A entitled Notification of Registration 
Filed Pursuant to Section 8(a) of the Investment Company Act of 1940. 
See section 8(a) of such Act (15 U.S.C. 80a-8(a)) and 17 CFR 274.10. A 
company which computes its income on the basis of a calendar year must 
have registered on or before December 31, 1962, and a company which 
computes its income on the basis of a fiscal year must have registered 
on or before the last day of its fiscal year beginning in 1962 and 
ending in 1963.
    (c) Time and manner of making election--(1) In general. The election 
provided by paragraph (a) of this section must have been made on or 
before December 31, 1962, by means of a letter addressed to the Director 
of Interna- Service, Washington, DC 20225, which clearly stated that the 
company elects to comply with the provisions of section 1247. The letter 
must have been signed by an officer of the foreign investment company 
who was a resident of the United States and who was duly authorized to 
act on behalf of the company.
    (2) Information furnished. The following information must have been 
submitted in connection with the election:

[[Page 373]]

    (i) The name, address, and employer identification number, if any, 
and the taxable year of the company;
    (ii) The principal place of business of the company;
    (iii) The date and the country under whose laws the company was 
incorporated;
    (iv) The date of filing with the Securities and Exchange Commission, 
and the file number, of Form N-8A;
    (v) The names and addresses of all of the company's directors and 
officers and of any custodian or agent of the company located in the 
United States; and
    (vi) The name and address of the person (or persons) in the United 
States having custody of the books of account, records, and other 
documents of the company, and the location of such books, records, and 
other documents if different from such address.
    (3) Time information furnished. (i) If a foreign investment company 
was registered with the Securities and Exchange Commission on the date 
of election, all the information required by subparagraph (2) of this 
paragraph must have been submitted with the election.
    (ii) If a foreign investment company made its election before it was 
so registered, the information required by subparagraph (2) (i), (ii), 
and (iii) of this paragraph must have been submitted with the election 
and the information required by subparagraph (2) (iv), (v), and (vi) of 
this paragraph must have been submitted within 60 days following receipt 
by the Securities and Exchange Commission of Form N-8A.
    (d) Termination of election--(1) General. Section 1247(b) provides 
that the election of a foreign investment company under section 1247(a) 
shall permanently terminate as of the close of the taxable year 
preceding its first taxable year in which any of the following occurs:
    (i) The company fails to comply with the provisions of section 
1247(a)(1) (A), (B), or (C), unless it is shown that such failure is due 
to reasonable cause and not due to willful neglect;
    (ii) The company is a foreign personal holding company as defined in 
section 552; or
    (iii) The company ceases to be a registered foreign investment 
company which is described in paragraph (b) of this section. A company 
ceases to be a registered company, for example, as of the time the 
Securities and Exchange Commission revokes its order permitting 
registration of the company.
    (2) Reasonable cause. Whether a failure by a foreign investment 
company to comply with the provisions of section 1247(a)(1) (A), (B), or 
(C) is due to reasonable cause and not due to willful neglect depends on 
whether the company exercised ordinary business care and prudence. For 
example, if in determining its taxable income under section 1247(a) the 
company relied in good faith upon estimates and opinions of independent 
certified public accountants or other experts which are also used for 
purposes of its financial statements filed with the Securities and 
Exchange Commission under the Investment Company Act of 1940, such 
reliance would constitute reasonable cause for purposes of this 
paragraph. In such a case, the company's election under section 1247(a) 
for the taxable year would not be terminated nor would the company be 
required to make an additional distribution for such taxable year in 
order to comply with the provisions of section 1247(a)(1)(A).

[T.D. 6798, 30 FR 1174, Feb. 4, 1965]



Sec. 1.1247-2  Computation and distribution of taxable income.

    (a) In general. Taxable income of a foreign investment company means 
taxable income as defined in section 63(a), computed without regard to 
subchapter N, chapter 1 of the Code, and in accordance with the 
following rules:
    (1) There shall be excluded the excess, if any, of the company's net 
long-term capital gain over the net short-term capital loss. See Sec. 
1.1247-3 for the manner of computing such excess.
    (2) The deduction provided in section 172 (relating to net operating 
losses) shall not be allowed.
    (3) Except for the deduction provided in section 248 (relating to 
organizational expenditures), the special deductions provided for 
corporations in part VIII (sections 241 and following), subchapter B, 
chapter 1 of the Code shall not be allowed.

[[Page 374]]

    (4) In computing the amount of the deduction allowed under section 
164 there shall be included taxes paid or accrued during the taxable 
year which are imposed by the United States or by the country under the 
laws of which the company is created or organized. See, however, Sec. 
1.1247-4.
    (b) Election to distribute taxable income after close of taxable 
year. A company may elect under section 1247(a)(2)(B), in respect of 
taxable income for a taxable year, to treat a distribution made not 
later than 2 months and 15 days after the close of such taxable year as 
a distribution made during such taxable year of such taxable income. The 
company shall make the election by attaching to the information return 
required by paragraph (c)(1) of Sec. 1.1247-5 for such taxable year a 
statement setting forth the amount of each distribution (or portion 
thereof) to which the election applies and the date of each such 
distribution. The election shall be irrevocable after the expiration of 
the time for filing such information return. The distribution (or 
portion thereof) to which the election applies shall be considered as 
paid out of the earnings and profits of the taxable year for which such 
election is made, and not out of the earnings and profits of the taxable 
year in which the distribution is actually made. A distribution to which 
this paragraph applies shall be includible in the gross income of a 
shareholder of the foreign investment company for his taxable year in 
which received or accrued.

[T.D. 6798, 30 FR 1175, Feb. 4, 1965]



Sec. 1.1247-3  Treatment of capital gains.

    (a) Treatment by the company--(1) In general. If an election to 
distribute income currently pursuant to section 1247(a) is in effect for 
a taxable year of a foreign investment company, the company shall 
designate (in the manner described in subparagraph (3) of this 
paragraph) to each shareholder his pro rata amount of the excess of the 
net long-term capital gain over the net short-term capital loss for the 
company's taxable year, and the portion thereof which is being 
distributed to each such shareholder. See section 1247(a)(1)(B). Except 
as provided in subparagraph (2) of this paragraph, the company shall 
compute such excess (hereinafter referred to as excess capital gains) as 
if such company were a domestic corporation, but without regard to 
subchapter N, chapter 1 of the Code. See paragraph (d) of Sec. 1.1247-1 
for rules relating to termination of election under section 1247(a) for 
failure to properly compute or to properly designate excess capital 
gains. A company may make an irrevocable election (by notifying its 
shareholders as provided in subparagraph (3) of this paragraph) to 
distribute, on or before the 45th day following the close of its taxable 
year, all or a portion of the excess capital gains and have any such 
distribution treated as if made during such taxable year.
    (2) Rules for computing capital gains and losses. Generally, the 
adjusted basis of property held by a foreign investment company shall be 
its cost adjusted in accordance with the applicable provisions of the 
Code. However, in respect of property held by a foreign investment 
company on the first day of the first taxable year for which the 
election under section 1247(a) applies, the amounts shown on such day in 
the permanent books of account, records, and other documents of the 
company shall, at the option of the company, be accepted as the adjusted 
basis of such property, if on such day such books, records, and other 
documents were being maintained in the manner prescribed by regulations 
under section 30 of the Investment Company Act of 1940 (15 U.S.C. 80a-
30). In computing capital gains and losses of a foreign investment 
company under section 1247, the provisions of section 1212 (relating to 
allowance of capital loss carryover) shall not apply to any capital loss 
incurred in or with respect to taxable years before the first taxable 
year for which the election under section 1247(a) applies. See section 
1247(a)(2)(C).
    (3) Notice to shareholders. The company shall designate by written 
notice, mailed on or before the 45th day following the close of its 
taxable year:
    (i) To each person who is a shareholder at the close of such taxable 
year, his pro rata amount of the portion of the excess capital gains for 
such year which was not distributed, and

[[Page 375]]

    (ii) To each person who received a distribution of excess capital 
gains with respect to such taxable year, the amount and the date of each 
such distribution.

Each notice shall show the name and address of the foreign investment 
company and the taxable year of the company for which the designation is 
made.
    (b) Treatment of capital gains by qualified shareholder--(1) 
Definition of qualified shareholder. (i) The term qualified shareholder 
means any shareholder of a registered foreign investment company who is 
a United States person (as defined in section 7701(a)(30)), other than a 
shareholder described in subdivision (ii) of this subparagraph.
    (ii) A United States person shall not be treated as a qualified 
shareholder for a taxable year if in his return for such taxable year 
(or for any prior taxable year) he did not include, in computing his 
long-term capital gains, his pro rata amount of the undistributed 
portion of the excess capital gains which the company designated for its 
taxable year ending within or with such taxable year of the shareholder. 
Thus, for example, if a shareholder fails to include as long-term 
capital gain in his return for his taxable year ending December 31, 
1966, the amount designated by the company as his pro rata amount of 
undistributed excess capital gains for the company's taxable year ending 
June 30, 1966, he would not be a qualified shareholder for his taxable 
year ending December 31, 1966, or for any subsequent taxable year. 
However, if the shareholder can show that his failure to include his pro 
rata amount of the undistributed portion of the excess capital gains in 
his return was due to reasonable cause and not due to willful neglect, 
he will continue to be a qualified shareholder. Such shareholder shall, 
for the year with respect to which such failure occurred, include in his 
taxable income his previously omitted pro rata amount of the 
undistributed portion of excess capital gains.
    (2) Treatment of excess capital gains. A qualified shareholder of a 
foreign investment company, for any taxable year of the company for 
which the election under section 1247(a) is in effect, shall include in 
his return in computing his long-term capital gains:
    (i) For his taxable year in which received, his pro rata amount of 
the distributed portion of the excess capital gains for such taxable 
year of the company, and
    (ii) For his taxable year in which or with which the taxable year of 
the company ends, his pro rata amount of the undistributed portion of 
the excess capital gains for such taxable year of the company.
    (3) Sales at end of company's taxable year. For purposes of 
determining whether the purchaser or seller of a share of foreign 
investment company stock is the shareholder at the close of such 
company's taxable year who is required to include an amount of 
undistributed excess capital gains in gross income, the amount of the 
undistributed excess capital gains shall be treated in the same manner 
as a cash dividend payable to shareholders of record at the close of the 
company's taxable year. Thus, if a cash dividend paid to shareholders of 
record as of the close of the foreign investment company's taxable year 
would be considered income to the purchaser, then the purchaser is also 
considered to be the shareholder of such company at the close of its 
taxable year for purposes of including an amount of undistributed excess 
capital gains in gross income. For rules for determining whether a 
dividend is income to the purchaser or seller of a share of stock, see 
paragraph (c) of Sec. 1.61-9.
    (4) Partners and partnerships. If the shareholder required to 
include an amount of undistributed excess capital gains in gross income 
under section 1247(d)(2) and subparagraph (2)(ii) of this paragraph is a 
partnership, such amount shall be taken into account by the partnership 
for the taxable year of the partnership in which occurs the last day of 
the taxable year of the foreign investment company in respect of which 
the undistributed portion of the excess capital gains were designated. 
The amount so includible by the partnership shall be taken into account 
by the partners as distributive shares of the partnership gains and 
losses from sales or exchanges of capital assets held for more than 1 
year (6 months for

[[Page 376]]

taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977) pursuant to section 702(a)(2) and paragraph (a)(2) of 
Sec. 1.702-1. The partners shall increase the basis of their 
partnership interests under section 705(a)(1) by their distributive 
shares of such gains.
    (5) Effect on earnings and profits of corporate shareholder. If a 
shareholder required to include an amount of undistributed excess 
capital gains in gross income under section 1247(d)(2) and subparagraph 
(2)(ii) of this paragraph is a corporation, such corporation, in 
computing its earnings and profits for the taxable year for which such 
amount is so includible, shall treat such amount as if it had actually 
been received in that year.
    (6) Example. The application of this paragraph may be illustrated by 
the following example:

    Example: Smith owns one share of stock in a foreign investment 
company which he purchased in 1964. In respect of the company's taxable 
year ending June 30, 1966, during which the election under section 
1247(a) was in effect, Smith receives from the company on July 15, 1966, 
a distribution in the amount of $8. He also receives a notice stating 
that for such taxable year $9 was being designated as his pro rata 
amount of the excess capital gains, $8 of which was distributed on July 
15, 1966, and $1 of which was being designated as the undistributed 
portion. In order for Smith to be a qualified shareholder for his 
taxable year ending December 31, 1966, he must include in computing his 
long-term capital gains in his return for 1966, his pro rata amount of 
the undistributed portion of the excess capital gains, that is, $1. 
Smith must also include in such return his pro rata amount of the 
distributed portion of excess capital gains, that is, $8. If, however, 
Smith does not include in income his pro rata amount of the 
undistributed portion of excess capital gains, he is not a qualified 
shareholder for 1966 (or for any subsequent year). In such a case, the 
$8 is not treated under the provisions of section 1247(d)(1) as a 
distribution of long-term capital gains for such year but as a corporate 
distribution taxable as ordinary income to the extent provided in 
subchapter C, chapter 1 of the Code.

    (c) Adjustments relating to undistributed capital gains--(1) 
Adjustments in earnings and profits of the company. If a foreign 
investment company, to which the election under section 1247(a) applies, 
designates an amount as the undistributed portion of excess capital 
gains for its taxable year, the earnings and profits of the company 
(within the meaning of subchapter C, chapter 1 of the Code) shall be 
reduced, and its capital account shall be increased, by such amount.
    (2) Increase in basis of qualified shareholder's stock. A qualified 
shareholder, who computes his long-term capital gains for a taxable year 
by including (in respect of each share of stock which he owns in a 
foreign investment company) the pro rata amount of the undistributed 
portion of the excess capital gains which was designated by the company 
for its taxable year ending with or within such taxable year of the 
shareholder, shall, as of the day following the close of such taxable 
year of the company, increase the adjusted basis of each share by such 
pro rata amount.
    (d) Loss on sale or exchange of certain stock held 1 year or less--
(1) In general. If:
    (i) A qualified shareholder of a foreign investment company to which 
the election under section 1247(a) applies treats any amount designated 
under section 1247(a)(1)(B) with respect to a share of stock as long-
term capital gain, and
    (ii) Such share is held by the taxpayer for 1 year (6 months for 
taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977) or less,

Then any loss on the sale or exchange of such share shall, to the extent 
of the amount described in subdivision (i) of this subparagraph, be 
treated under section 1247(i) as loss from the sale or exchange of a 
capital asset held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977).
    (2) Example. The application of this paragraph may be illustrated by 
the following example:

    Example: On October 1, 1966, B, a calendar year taxpayer, purchases 
for $100 a share of stock in a foreign investment company to which the 
election under section 1247(a) applies. On January 20, 1967, the 
company, in a notice to B, designates for its taxable year ending 
December 31, 1966, $8 per share as excess capital gains of which $6 was 
distributed on December 1, 1966, and $2 was designated as

[[Page 377]]

undistributed. B includes the $8 in computing his long-term capital 
gains in his return for 1966 and, under paragraph (c)(2) of this 
section, B's basis for the share is increased to $102 as of January 1, 
1967. On February 1, 1967, B sells the share for $93, incurring a $9 
loss of which $8 is treated as a long-term capital loss under section 
1247(i) and $1 is treated as a short-term capital loss.

[T.D. 6798, 30 FR 1175, Feb. 4, 1965, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]



Sec. 1.1247-4  Election by foreign investment company with respect to 
foreign tax credit.

    (a) In general--(1) Election. If an election to distribute income 
currently pursuant to section 1247(a) is in effect for a taxable year of 
a foreign investment company, and if at the close of such taxable year 
more than 50 percent of the value of the total assets of the company 
consists of stock or securities in foreign corporations, then the 
company may elect for such taxable year, in the manner provided in 
paragraph (d) of this section, the application of section 1247(f) in 
respect of foreign taxes referred to in subparagraph (2) of this 
paragraph which are paid during such taxable year. For purposes of this 
section, the term value shall have the same meaning as assigned to such 
term in section 851(c)(4) (relating to definition of regulated 
investment company). For definition of foreign corporation, see section 
7701(a).
    (2) Taxes affected. The election under section 1247(f) for a taxable 
year applies with respect to income, war profits, and excess profits 
taxes described in section 901(b)(1) which are paid by the company to 
foreign countries and possessions of the United States. A tax paid by a 
foreign investment company does not include a tax which is paid by the 
shareholders of the company. Whether a tax is paid by the company, and 
whether a tax is an income, war profits, or excess profits tax described 
in section 901(b)(1), shall be determined under the principles of 
chapter 1 of the Code without regard to the law of any foreign country 
and without regard to any income tax convention, including any income 
tax convention to which the United States is a party. Section 1247(f) 
does not apply with respect to foreign taxes which would be deemed to 
have been paid by the company under section 902 if the company were a 
domestic corporation. For purposes of this paragraph, taxes paid to the 
United States are not considered foreign taxes.
    (b) Effect of election--(1) Effect on company. If a valid election 
under section 1247(f) is made for a taxable year of a foreign investment 
company, then, for purposes of determining under section 1247(a)(1)(A) 
whether the company has distributed to its shareholders with respect to 
such taxable year 90 percent or more of what the company's taxable 
income would be for such year if the company were a domestic 
corporation, the following rules shall apply:
    (i) The company shall compute such taxable income without any 
deduction for the foreign taxes referred to in paragraph (a)(2) of this 
section which were paid or accrued during the taxable year.
    (ii) If the amount of taxable income (computed without regard to 
subdivision (i) of this subparagraph) is more than zero, the company 
shall treat the foreign taxes referred to in paragraph (a)(2) of this 
section which were paid during such taxable year of the company as 
distributed to its shareholders to the extent of the amount which bears 
the same ratio to the amount of such foreign taxes as (a) the amount 
actually distributed (or treated as distributed pursuant to an election 
under section 1247(a)(2)(B)) during such taxable year from such taxable 
income (determined without regard to subdivision (i) of this 
subparagraph), bears to (b) the amount of such taxable income (also 
determined without regard to such subdivision (i)). Thus, for example, 
if for a taxable year a foreign investment company has taxable income of 
$1,000 (determined after deducting foreign taxes paid of $100), and if 
$600 of such taxable income is distributed during the taxable year and 
$350 of such taxable income is distributed not later than 2 months and 
15 days after the close of the taxable year, then $950 is treated as 
distributed for purposes of satisfying the 90-percent distribution 
requirement of section 1247(a)(1)(A), and the amount of foreign taxes 
treated as distributed under this subdivision is $95 (that is, $100 
multiplied by $950/$1,000).

[[Page 378]]

    (iii) If the amount of taxable income (computed without regard to 
subdivision (i) of this subparagraph) is zero, then all foreign taxes 
referred to in paragraph (a)(2) of this section which were paid during 
the taxable year shall be treated as distributed by the company on the 
last day of such taxable year. Thus, for example, if for a taxable year 
a foreign investment company has taxable income of $500 (computed 
without deducting $800 of foreign taxes paid during such year), the 
amount of taxable income computed without regard to subdivision (i) of 
this paragraph is zero, and the $800 of foreign taxes is treated as 
distributed under this subdivision on the last day of the company's 
taxable year.
    (2) Effect on qualified shareholders. The following rules apply to a 
qualified shareholder of a foreign investment company which makes a 
valid election under section 1247(f) for a taxable year:
    (i) The qualified shareholder shall include in his gross income (in 
addition to taxable dividends actually received) his proportionate share 
of the foreign taxes referred to in paragraph (a)(2) of this section 
which were paid during such taxable year of the company, and shall treat 
such proportionate share as paid by him for purposes of the deduction 
under section 164(a) and the foreign tax credit under section 901. See, 
however, paragraph (c)(1) of this section for a limitation on the amount 
a shareholder may treat as his proportionate share of foreign taxes.
    (ii) In respect of any distribution made (or treated as made under 
section 1247(a)(2)(B)) during the taxable year of the company and which 
is received by a qualified shareholder, the term proportionate share of 
foreign taxes means, for purposes of this section, an amount which bears 
the same ratio to (a) the amount of the foreign taxes referred to in 
paragraph (a)(2) of this section which were paid during such taxable 
year of the company, as (b) the amount of such distribution to the 
shareholder out of the company's taxable income for such taxable year 
(determined without regard to subparagraph (1)(i) of this paragraph), 
bears to (c) the amount of such taxable income (also determined without 
regard to such subparagraph (1)(i)).
    (iii) In respect of any distribution of foreign taxes treated as 
made under subparagraph (1)(iii) of this paragraph on the last day of 
the taxable year of the company, the term proportionate share of foreign 
taxes means, for purposes of this section, an amount which bears the 
same ratio to (a) the amount of foreign taxes referred to in paragraph 
(a)(2) of this section which were paid during such taxable year of the 
company, as (b) the fair market value of all shares of stock of the 
company held by such qualified shareholder on the last day of such 
taxable year, bears to (c) the fair market value of all such shares 
outstanding on such last day.
    (iv) For purposes of the foreign tax credit, the qualified 
shareholder shall treat his proportionate share of foreign taxes as 
having been paid by him to the country in which the foreign investment 
company is created or organized.
    (v) For purposes of the foreign tax credit, the qualified 
shareholder shall treat as gross income from sources within the country 
in which the foreign investment company is created or organized the sum 
of (a) his proportionate share of foreign taxes, (b) any dividend paid 
to him by such foreign investment company, and (c) his pro rata amount 
of distributed and undistributed portions of excess capital gains 
referred to in paragraph (a) of Sec. 1.1247-3.
    (vi)(a) In respect of a distribution made (or treated as made under 
section 1247(a)(2)(B)) during a taxable year of the company, a qualified 
shareholder shall consider his proportionate share of foreign taxes as 
having been received, and as having been paid, by him during his taxable 
year in which the distribution is includible in his gross income.
    (b) In respect of an amount of foreign taxes treated as distributed 
under subparagraph (1)(iii) of this paragraph on the last day of a 
taxable year of the company, the qualified shareholder shall consider 
his proportionate share of foreign taxes as having been received, and as 
having been paid, by him during his taxable year in which such last day 
falls.
    (vii) If the qualified shareholder is a corporation, it shall not be 
deemed under section 902 to have paid any

[[Page 379]]

taxes paid by the foreign investment company to which the election under 
section 1247(f) applied.
    (3) Effect on nonqualified shareholders. A shareholder who is not a 
qualified shareholder shall not include his proportionate share of 
foreign taxes in gross income, and shall not be entitled to treat such 
proportionate share as having been paid by him to a foreign country for 
purposes of the deduction under section 164(a) or, except to the extent 
that section 902 is applicable, for purposes of the foreign tax credit 
under section 901.
    (4) Example. The application of paragraph (a) of this section and 
this paragraph may be illustrated by the following examples:

    Example 1. (i) X Corporation, a foreign investment company 
incorporated in country C with 100,000 shares of stock outstanding, uses 
the calendar year as its taxable year. For 1964, X Corporation has the 
following income and pays the following foreign taxes:

Dividend income, minus operating expenses...................    $675,000
Foreign income taxes paid:
  Withheld by country A.........................     $25,000
  Withheld by country B.........................      50,000
  Income tax of country C.......................      90,000
                                                 ------------
    Total foreign income tax paid...........................     165,000
                                                 -------------
  Taxable income for purposes of section 1247(a)(1)(A),          510,000
   determined without regard to section 1247(f).............
 


X Corporation distributes to its shareholders the amount of $459,000 
(i.e., 90 percent of $510,000).
    (ii) Assume that X Corporation validly elects the application of 
section 1247(f). Accordingly, X Corporation determines that its taxable 
income for purposes of section 1247(a)(1)(A) without any deduction for 
foreign income taxes paid or accrued is $675,000 ($510,000, plus 
$165,000).
    (iii) Assume that X Corporation intends to distribute the least 
amount which would satisfy the requirements of section 1247(a)(1)(A), as 
modified by the election under section 1247(f). Thus, the total amount X 
distributes is $607,500, which consists of the sum of (a) $459,000 
actually distributed, that is, 90 percent of $510,000 of taxable income 
(determined after the deduction for foreign taxes), plus (b) foreign 
taxes paid of $148,500 which are treated as distributed, that is, 90 
percent of $165,000 of foreign taxes paid by X Corporation.
    Example 2. Assume the same facts as in example (1) except that X 
Corporation distributes the entire $510,000 in the following manner: On 
December 15, 1964, X Corporation distributes $170,000 as a dividend of 
$1.70 per share. On February 25, 1965, X Corporation distributes the 
remaining $340,000 as a dividend of $3.40 per share pursuant to an 
election under section 1247(a)(2)(B) to treat such distribution as if 
made in 1964. Assume that Brown, a qualified shareholder, uses the 
calendar year as his taxable year. The amount of $0.55 per share (that 
is, $165,000, multiplied by $1.70/$510,000) must be treated by Brown as 
foreign taxes paid by him in 1964 to country C and the amount of $1.10 
per share (that is, $165,000 multiplied by $3.40/$510,000) must be 
similarly treated by Brown in 1965. The amount of $2.25 per share ($1.70 
of dividends actually received plus $0.55 representing foreign taxes 
paid) must be reported by Brown as income considered received in 1964 
from country C, and the amount of $4.50 per share ($3.40 of dividends 
actually received plus $1.10 representing foreign taxes paid) must be so 
reported by Brown in 1965.
    Example 3. A foreign investment company organized under the laws of 
country C receives a dividend of $1,000 from X Corporation, which is 
also organized under the laws of country C. Under the laws of country C, 
the foreign investment company would, if it so elects, be considered as 
having paid income tax in the amount of $150 which X Corporation paid to 
country C with respect to the earnings from which the dividend was paid. 
If the foreign investment company were a domestic corporation, however, 
it would not be considered for purposes of section 901(b)(1) as having 
paid the tax actually paid by X Corporation. Accordingly, the election 
under section 1247(f) does not apply in respect of the $150. The result 
would be the same if X Corporation was organized under the laws of any 
other foreign country to which it paid taxes and if the laws of country 
C permitted the foreign investment company to be considered as the payor 
of such taxes.

    (c) Notice to shareholders--(1) In general. If, in the manner 
provided in paragraph (d) of this section, a foreign investment company 
makes an election with respect to the foreign tax credit under section 
1247(f), the company shall furnish to each shareholder a written notice 
mailed not later than 45 days after the close of the taxable year of the 
company for which the election is made, designating the shareholder's 
proportionate share of the foreign taxes referred to in paragraph (a)(2) 
of this section which were paid by the company during such taxable year. 
This notice may be combined with the written notice to shareholders 
described in paragraph (a)(3) of Sec. 1.1247-3 relating to excess 
capital gains.

[[Page 380]]

    (2) Application to shareholder. For purposes of paragraph (b)(2) of 
this section, the amount which a shareholder may treat as his 
proportionate share of foreign taxes paid by the company shall not 
exceed the amounts so designated by the company in such written notice. 
If, however, an amount designated by the company in a notice exceeds the 
shareholder's proper proportionate share of such foreign taxes, the 
shareholder is limited to the amount correctly determined.
    (d) Manner of making election--(1) In general. The election of a 
foreign investment company to have section 1247(f) apply for a taxable 
year shall be made by filing as part of its information return required 
by paragraph (c)(1) of Sec. 1.1247-5 a Form 1118 modified so that it 
becomes a statement in support of the election made by the company under 
section 1247(f).
    (2) Irrevocability of election. An election under section 1247(f) 
for a taxable year of a foreign investment company shall be made with 
respect to all foreign taxes referred to in paragraph (a)(2) of this 
section which were paid during such taxable year, and must be made not 
later than the time prescribed for filing the information return under 
paragraph (c)(1) of Sec. 1.1247-5. Such election, if made, shall be 
irrevocable with respect to the distributions, and the foreign taxes 
with respect thereto, to which the election applies.

[T.D. 6798, 30 FR 1177, Feb. 4, 1965]



Sec. 1.1247-5  Information and recordkeeping requirements.

    (a) General. In order to carry out the purposes of section 1247, a 
foreign investment company shall keep the records and comply with the 
information requirements prescribed by this section for each taxable 
year of the company for which the election under section 1247(a) is in 
effect. See section 1247(a)(1)(C).
    (b) Recordkeeping requirements. The company shall maintain and 
preserve such permanent books of account, records, and other documents 
as are sufficient to establish in accordance with the provisions of 
Sec. 1.1247-2 what its taxable income would be if it were a domestic 
corporation. Generally, if the books and records of the company are 
maintained in the manner prescribed by regulations under section 30 of 
the Investment Company Act of 1940 (15 U.S.C. 80a-30), the requirements 
of the preceding sentence shall be considered satisfied. Such books, 
records, and other documents shall be available for inspection in the 
United States by authorized internal revenue officers or employees, and 
shall be maintained so long as the contents thereof may be material in 
the administration of section 1247.
    (c) Information returns. The company shall file, for each taxable 
year during which the election under section 1247(a) is in effect, on or 
before the 15th day of the third month following the close of its 
taxable year or on or before May 1, 1965, whichever is later, with the 
Director of International Operations, Internal Revenue Service, 
Washington, DC, 20225:
    (1) Form 1120, modified so as to be an annual information return, 
establishing the amount of its taxable income referred to in paragraph 
(b) of this section, and
    (2) Form 2438, modified so as to be an annual information return, 
establishing the amount of the company's excess capital gains (referred 
to in paragraph (a)(1) of Sec. 1.1247-3) for the taxable year, the 
distributed portion thereof, and the amount of the undistributed portion 
thereof.

[T.D. 6798, 30 FR 1178, Feb. 4, 1965]



Sec. 1.1248-1  Treatment of gain from certain sales or exchanges of 
stock in certain foreign corporations.

    (a) In general. (1) If a United States person (as defined in section 
7701(a)(30)) recognizes gain on a sale or exchange after December 31, 
1962, of stock in a foreign corporation, and if in respect of such 
person the conditions of subparagraph (2) of this paragraph are 
satisfied, then the gain shall be included in the gross income of such 
person as a dividend to the extent of the earnings and profits of such 
corporation attributable to such stock under Sec. 1.1248-2 or 1.1248-3, 
whichever is applicable, which were accumulated in taxable years of such 
foreign corporation beginning after December 31, 1962, during the period 
or periods such stock was held (or

[[Page 381]]

was considered as held by reason of the application of section 1223) by 
such person while such corporation was a controlled foreign corporation. 
See section 1248(a). For computation of earnings and profits 
attributable to such stock if there are any lower tier corporations, see 
paragraph (a) (3) and (4) of Sec. 1.1248-2 or paragraph (a) of Sec. 
1.1248-3, whichever is applicable. In general, the amount of gain to be 
included in a person's gross income as a dividend under section 1248(a) 
shall be determined separately for each share of stock sold or 
exchanged. However, such determination may be made in respect of a block 
of stock if earnings and profits attributable to the block are computed 
under Sec. 1.1248-2 or 1.1248-3. See paragraph (b) of Sec. 1.1248-2 
and paragraph (a)(5) of Sec. 1.1248-3. For the limitation on the tax 
attributable to an amount included in an individual's gross income as a 
dividend under section 1248(a), see section 1248(b) and Sec. 1.1248-4. 
For the treatment, under certain circumstances, of the sale or exchange 
of stock in a domestic corporation as the sale or exchange of stock held 
by the domestic corporation in a foreign corporation, see section 
1248(e) and Sec. 1.1248-6. For the nonapplication of section 1248 in 
certain circumstances, see section 1248(f) and paragraph (e) of this 
section. For the requirement that the person establish the amount of 
earnings and profits attributable to the stock sold or exchanged and, 
for purposes of section 1248(b), the amount of certain taxes, see 
section 1248(g) and Sec. 1.1248-7.
    (2) In respect of a United States person who sells or exchanges 
stock in a foreign corporation, the conditions referred to in 
subparagraph (1) of this paragraph are satisfied only if (i) such person 
owned, within the meaning of section 958(a), or was considered as owning 
by applying the rules of ownership of section 958(b), 10 percent or more 
of the total combined voting power of all classes of stock entitled to 
vote of such foreign corporation at any time during the 5-year period 
ending on the date of the sale or exchange, and (ii) at such time such 
foreign corporation was a controlled foreign corporation (as defined in 
section 957).
    (3) For purposes of subparagraph (2) of this paragraph, (i) a 
foreign corporation shall not be considered to be a controlled foreign 
corporation at any time before the first day of its first taxable year 
beginning after December 31, 1962, and (ii) the percentage of the total 
combined voting power of stock of a foreign corporation owned (or 
considered as owned) by a United States person shall be determined in 
accordance with the principles of section 951(b) and the regulations 
thereunder.
    (4) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. Corporation F is a foreign corporation which has 
outstanding 100 shares of one class of stock. F was a controlled foreign 
corporation for the period beginning on January 1, 1963, and ending on 
June 30, 1965, but was not a controlled foreign corporation at any time 
thereafter. On December 31, 1965, Brown, a United States person who has 
owned 15 shares of F stock since 1962, sells 7 of his 15 shares and 
recognizes gain with respect to each share sold. Since Brown owned stock 
representing at least 10 percent of the total combined voting power of F 
at a time during the 5-year period ending on December 31, 1965, while F 
was a controlled foreign corporation, the conditions of subparagraph (2) 
of this paragraph are satisfied. Therefore, section 1248(a) applies to 
the gain recognized by Brown to the extent of the earnings and profits 
attributable under Sec. 1.1248-3 to such shares.
    Example 2. Assume the same facts as in example (1). Assume further 
that on February 1, 1970, Brown sells the remainder of his shares in F 
Corporation and recognizes gain with respect to each share sold. Even 
though Brown did not own stock representing at least 10 percent of the 
total combined voting power of F on February 1, 1970, nevertheless, in 
respect of each of the 8 shares of F stock which he sold on such date, 
the conditions of subparagraph (2) of this paragraph are satisfied since 
Brown owned stock representing at least 10 percent of such voting power 
at a time during the 5-year period ending on February 1, 1970, while F 
was a controlled foreign corporation. Therefore, section 1248(a) applies 
to the gain recognized by Brown to the extent of the earnings and 
profits attributable under Sec. 1.1248-3 to such shares. If, however, 
Brown had sold the reminder of his shares in F on July 1, 1970, since 
the last date on which Brown owned stock representing at least 10 
percent of the total combined voting power of F while F was a controlled 
foreign corporation was June 30, 1965, a date which is not within the 5-
year period ending July 1, 1970, the conditions of subparagraph (2) of 
this paragraph would not

[[Page 382]]

be satisfied and section 1248(a) would not apply.
    Example 3. Corporation G, a foreign corporation created in 1950, has 
outstanding 100 shares of one class of stock and uses the calendar year 
as its taxable year. Corporation X, a United States person, owns 60 
shares of G stock and has owned such stock since G was created. 
Corporation Y, a United States person, owned 15 shares of the G stock 
from 1950 until December 1, 1962, on which date it sold 10 of such 
shares. On December 31, 1963, Y sells its remaining 5 shares of the G 
stock and recognizes gain on the sale. Since G is not considered to be a 
controlled foreign corporation at any time before January 1, 1963, and 
since Y did not own stock representing at least 10 percent of the total 
combined voting power of G at any time on or after such date, the 
conditions of subparagraph (2) of this paragraph are not satisfied and 
section 1248(a) does not apply.

    (b) Sale or exchange. For purposes of this section and Sec. Sec. 
1.1248-2 through 1.1248-7, the term sale or exchange includes the 
receipt of a distribution which is treated as in exchange for stock 
under section 302(a) (relating to distributions in redemption of stock), 
section 331(a)(1) (relating to distributions in complete liquidation of 
a corporation), or section 331(a)(2) (relating to distributions in 
partial liquidation of a corporation).
    (c) Gain recognized. Section 1248(a) applies to a sale or exchange 
of stock in a foreign corporation only if gain is recognized in whole or 
in part upon such sale or exchange. Thus, for example, if a United 
States person exchanges stock in a foreign corporation, and if under 
section 332, 351, 354, 355, or 361 no gain is recognized as a result of 
a determination by the Commissioner under section 367 that the exchange 
is not in pursuance of a plan having as one of its principal purposes 
the avoidance of Federal income taxes, then no amount is includible in 
the gross income of such person as a dividend under section 1248(a).
    (d) Credit for foreign taxes. (1) If a domestic corporation includes 
an amount in its gross income as a dividend under section 1248(a) upon a 
sale or exchange of stock in a foreign corporation (referred to as a 
first tier corporation), and if on the date of the sale or exchange the 
domestic corporation owns directly at least 10 percent of the voting 
stock of the first tier corporation:
    (i) The foreign tax credit provisions of sections 901 through 908 
shall apply in the same manner and subject to the same conditions and 
limitations as if the first tier corporation on such date distributed to 
the domestic corporation as a dividend that portion of the amount 
included in gross income under section 1248(a) which does not exceed the 
earnings and profits of the first tier corporation attributable to the 
stock under Sec. 1.1248-2 or Sec. 1.1248-3, as the case may be, and
    (ii) If on such date such first tier corporation owns directly 50 
percent or more of the voting stock of a lower tier corporation 
described in paragraph (a)(3) of Sec. 1.1248-2 or paragraph (a)(3) of 
Sec. 1.1248-3, as the case may be (referred to as a second tier 
corporation), then the foreign tax credit provisions of sections 901 
through 905 shall apply in the same manner and subject to the same 
conditions and limitations as if on such date (a) the domestic 
corporation owned directly that percentage of the stock in the second 
tier corporation which such domestic corporation is considered to own by 
reason of the application of section 958(a)(2), and (b) the second tier 
corporation had distributed to the domestic corporation as a dividend 
that portion of the amount included in gross income under section 
1248(a) which does not exceed the earnings and profits of the second 
tier corporation attributable to such stock under Sec. 1.1248-2 or 
Sec. 1.1248-3, as the case may be.
    (2) A credit shall not be allowed under subparagraph (1) of this 
paragraph in respect of taxes which are not actually paid or accrued. 
For the inclusion as a dividend in the gross income of a domestic 
corporation of an amount equal to the taxes deemed paid by such 
corporation under section 902(a)(1), see section 78.
    (3) If subparagraph (1)(ii) of this paragraph applies, and if the 
amount included in gross income under section 1248(a) upon the sale or 
exchange of the stock in a first tier corporation described in 
subparagraph (1)(ii) of this paragraph is less than the sum of the 
earnings and profits of the first tier corporation attributable to such 
stock under Sec. 1.1248-2 or Sec. 1.1248-3, as the case may be, plus 
the earnings and profits of

[[Page 383]]

the second tier corporation attributable to such stock under Sec. 
1.1248-2 or Sec. 1.1248-3, as the case may be, then the amount 
considered distributed to the domestic corporation as a dividend shall 
be determined by multiplying the amount included in gross income under 
section 1248(a) by:
    (i) For purposes of applying subparagraph (1)(i) of this paragraph, 
the percentage that (a) the earnings and profits of the first tier 
corporation attributable to such stock under Sec. 1.1248-2 or Sec. 
1.1248-3, as the case may be, bears to (b) the sum of the earnings and 
profits of the first tier corporation attributable to such stock under 
Sec. 1.1248-2 or Sec. 1.1248-3, as the case may be, plus the earnings 
and profits of the second tier corporation attributable to such stock 
under Sec. 1.1248-2 or Sec. 1.1248-3, as the case may be, and
    (ii) For purposes of applying subparagraph (1)(ii) of this 
paragraph, the percentage that (a) the earnings and profits of the 
second tier corporation attributable to such stock under Sec. 1.1248-2 
or Sec. 1.1248-3, as the case may be, bears to (b) the sum referred to 
in subdivision (i)(b) of this subparagraph.
    (4) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. On June 30, 1964, domestic corporation D owns 10 percent 
of the voting stock of controlled foreign corporation X. On such date, D 
sells a share of X stock and includes $200 of the gain on the sale in 
its gross income as a dividend under section 1248(a). X does not own any 
stock of a lower tier corporation referred to in paragraph (a)(3) of 
Sec. 1.1248-3. D uses the calendar year as its taxable year and instead 
of deducting foreign taxes under section 164, D chooses the benefits of 
the foreign tax credit provisions for 1964. If D had included $200 in 
its gross income as a dividend with respect to a distribution from X on 
June 30, 1964, the amount of the foreign income taxes paid by X which D 
would be deemed to have paid under section 902(a) in respect of such 
distribution would be $60. Thus, in respect of the $200 included in D's 
gross income as a dividend under section 1248(a), and subject to the 
applicable limitations and conditions of sections 901 through 905, D is 
entitled under this paragraph to a foreign tax credit of $60 for 1964.
    Example 2. On June 30, 1965, domestic corporation D owns all of the 
voting stock of foreign corporation Y, and Y (the first tier 
corporation) owns all of the voting stock of foreign corporation Z (a 
second tier corporation). On such date, D sells a block of Y stock and 
includes $400 of the gain on the sale in its gross income as a dividend 
under section 1248(a). The earnings and profits attributable under Sec. 
1.1248-3 to the block are $600 from Y and $1,800 from Z. D uses the 
calendar year as its taxable year and instead of deducting foreign taxes 
under section 164, D chooses the benefits of the foreign tax credit 
provisions for 1965. For purposes of applying the foreign tax credit 
provisions, Y is considered under subparagraph (3) of this paragraph to 
have distributed to D a dividend of $100 ($400x600/2400) and Z is 
considered to have so distributed to D a dividend of $300 ($400x1800/
2400). If D had included $100 in its gross income as a dividend with 
respect to a distribution from Y on June 30, 1965, the amount of foreign 
income taxes paid by Y which D would be deemed to have paid under 
section 902(a) in respect of such distribution is $80. If D had owned 
the stock in Z directly, and if D had included $300 in its gross income 
as a dividend with respect to a distribution from Z, the amount of 
foreign income taxes paid by Z which D would be deemed to have paid 
under section 902(a) in respect of such distribution is $120. Thus, in 
respect of the $400 included in D's gross income as a dividend under 
section 1248(a), and subject to the applicable limitations and 
conditions of sections 901 through 905, D is entitled under this 
paragraph to a foreign tax credit of $200 ($80 plus $120) for 1965.

    (e) Exceptions. Under section 1248(f), this section and Sec. Sec. 
1.1248-2 through 1.1248-7 shall not apply to:
    (1) Distributions to which section 303 (relating to distributions in 
redemption of stock to pay death taxes) applies;
    (2) Gain realized on exchanges to which section 356 (relating to 
receipt of additional consideration in certain reorganizations) applies; 
or
    (3) Any amount to the extent that such amount is, under any other 
provision of the Code, treated as (i) a dividend, (ii) gain from the 
sale of an asset which is not a capital asset, or (iii) gain from the 
sale of an asset held for not more than 1 year (6 months for taxable 
years beginning before 1977; 9 months for taxable years beginning in 
1977).
    (f) Installment method. (1) Gain from a sale or exchange to which 
section 1248 applies may be reported under the installment method if 
such method is otherwise available under section 453 of the Code. In 
such case, the income

[[Page 384]]

(other than interest) on each installment payment shall be deemed to 
consist of gain which is included in gross income under section 1248 as 
a dividend until all such gain has been reported, and the remaining 
portion (if any) of such income shall be deemed to consist of gain to 
which section 1248 does not apply. For treatment of amounts as interest 
on certain deferred payments, see section 483.
    (2) The application of this paragraph may be illustrated by the 
following example:

    Example: Jones contracts to sell stock in a controlled foreign 
corporation for $5,000 to be paid in 10 equal payments of $500 each, 
plus a sufficient amount of interest so that section 483 does not apply. 
He properly elects under section 453 to report under the installment 
method gain of $1,000 which is includible in gross income under section 
1248 as a dividend and gain of $500 which is a long-term capital gain. 
Accordingly, $150 of each of the first 6 installment payments and $100 
of the seventh installment payment are included in gross income under 
section 1248 as a dividend, and $50 of the seventh installment payment 
and $150 of each of the last 3 installment payments are long-term 
capital gain.

[T.D. 6779, 29 FR 18130, Dec. 22, 1964, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980; T.D. 7961, 49 FR 26225, June 27, 1984]



Sec. 1.1248-2  Earnings and profits attributable to a block of stock 
in simple cases.

    (a) General--(1) Manner of computation. For purposes of paragraph 
(a)(1) of Sec. 1.1248-1, if a United States person sells or exchanges a 
block of stock (as defined in paragraph (b) of this section) in a 
foreign corporation, and if the conditions of paragraph (c) of this 
section are satisfied in respect of the block, then the earnings and 
profits attributable to the block which were accumulated in taxable 
years of the corporation beginning after December 31, 1962, during the 
period such block was held (or was considered to be held by reason of 
the application of section 1223) by such person while such corporation 
was a controlled foreign corporation, shall be computed in accordance 
with the steps set forth in subparagraphs (2), (3), and (4) of this 
paragraph.
    (2) Step 1. (i) For each taxable year of the corporation beginning 
after December 31, 1962, the earnings and profits accumulated for each 
such taxable year by the corporation shall be computed in the manner 
prescribed in paragraph (d) of this section, and (ii) for the period the 
person held (or is considered to have held by reason of the application 
of section 1223) the block, the amount of earnings and profits 
attributable to the block shall be computed in the manner prescribed in 
paragraph (e) of this section.
    (3) Step 2. If the conditions of paragraph (c)(5)(ii) of this 
section must be satisfied in respect of stock in a lower tier foreign 
corporation which such person owns within the meaning of section 
958(a)(2), then (i) the earnings and profits accumulated for each such 
taxable year by such lower tier corporation shall be computed in the 
manner prescribed in paragraph (d) of this section, and (ii) for the 
period the person held (or is considered to have held by reason of the 
application of section 1223) the block, the amount of earnings and 
profits of the lower tier corporation attributable to the block shall be 
computed in the manner prescribed in paragraph (e) of this section 
applied as if such person owned directly the percentage of such stock in 
such lower tier corporation which such person owns within the meaning of 
section 958(a)(2).
    (4) Step 3. The amount of earnings and profits attributable to the 
block shall be the sum of the amounts computed under steps 1 and 2.
    (b) Block of stock. For purposes of this section, the term block of 
stock means a group of shares sold or exchanged in one transaction, but 
only if:
    (1) The amount realized, basis, and holding period are identical for 
each such share, and
    (2) In case, during the period the person held (or is considered to 
have held by reason of the application of section 1223) such shares, any 
amount was included under section 951 in the gross income of the person 
(or another person) in respect of the shares, the excess under paragraph 
(e)(3)(ii) of this section (computed as if each share were a block) is 
identical for each such share.
    (c) Conditions to application. This section shall apply only if the 
following conditions are satisfied:

[[Page 385]]

    (1)(i) On each day of the period during which the block of stock was 
held (or is considered as held by reason of the application of section 
1223) by the person during taxable years of the corporation beginning 
after December 31, 1962, the corporation is a controlled foreign 
corporation, and
    (ii) On no such day is the corporation a foreign personal holding 
company (as defined in section 552) or a foreign investment company (as 
defined in section 1246(b)).
    (2) The corporation had only one class of stock, and the same number 
of shares of such stock were outstanding, on each day of each taxable 
year of the corporation beginning after December 31, 1962, any day of 
which falls within the period referred to in subparagraph (1) of this 
paragraph.
    (3) For each taxable year referred to in subparagraph (2) of this 
paragraph, the corporation is not a less developed country corporation 
(as defined in section 902(d)).
    (4) For each taxable year referred to in subparagraph (2) of this 
paragraph, the corporation does not make any distributions out of its 
earnings and profits other than distributions which, under section 316 
(as modified by section 959), are considered to be out of earnings and 
profits accumulated in taxable years beginning after December 31, 1962, 
during the period such person held (or is considered to have held by 
reason of the application of section 1223) the block while such 
corporation was a controlled foreign corporation.
    (5)(i) If (a) on the date of the sale or exchange such person, by 
reason of his ownership of such block, owns within the meaning of 
section 958(a)(2) stock in another foreign corporation (referred to as a 
lower tier corporation), and (b) the conditions of paragraph (a)(2) of 
Sec. 1.1248-1 would be satisfied by such person in respect of such 
stock in the lower tier corporation if such person were deemed to have 
sold or exchanged such stock in the lower tier corporation on the date 
he actually sold or exchanged such block in the first tier corporation, 
then the conditions of subdivision (ii) of this subparagraph must be 
satisfied.
    (ii) In respect of stock in such lower tier corporation, (a) the 
conditions set forth in subparagraphs (1) through (4) of this paragraph 
(applied as if such person owned directly such stock in such lower tier 
corporation) must be met and (b) such person must own within the meaning 
of section 958(a)(2) the same percentage of the shares of such stock on 
each day which falls within the period referred to in subparagraph (1) 
of this paragraph.
    (d) Earnings and profits accumulated for a taxable year--(1) 
General. For purposes of this section, the earnings and profits 
accumulated for a taxable year of a foreign corporation shall be the 
earnings and profits for such year computed in accordance with the rules 
prescribed in Sec. 1.964-1 (relating to determination of earnings and 
profits for a taxable year of a controlled foreign corporation) and 
reduced by any distributions therefrom. If the stock in the corporation 
is sold or exchanged before any action is taken by or on behalf of the 
corporation under paragraph (c) of Sec. 1.964-1, the computation of 
earnings and profits under Sec. 1.964-1 for purposes of this section 
shall be made as if no elections had been made and no accounting method 
had been adopted.
    (2) Special rules. (i) The earnings and profits of the corporation 
accumulated:
    (a) For any taxable year beginning before January 1, 1967 (computed 
without any reduction for distributions), shall not include the excess 
of any item includible in gross income of the foreign corporation under 
section 882(b) as gross income derived from sources within the United 
States, and
    (b) For any taxable year beginning after December 31, 1966 (computed 
without any reduction for distributions), shall not include the excess 
of any item includible in gross income of the foreign corporation under 
section 882(b)(2) as income effectively connected for that year with the 
conduct by such corporation of a trade or business in the United States, 
whether derived from sources within or from sources without the United 
States,

Over any deductions allocable to such item under section 882(c). 
However, if the sale or exchange of stock in the foreign corporation by 
the United States person occurs before January 1,

[[Page 386]]

1967, the provisions of (a) of this subdivision apply with respect to 
such sale or exchange even though the taxable year begins after December 
31, 1966. See section 1248(d)(4). Any item which is required to be 
excluded from gross income, or which is taxed at a reduced rate, under 
an applicable treaty obligation of the United States shall not be 
excluded under this subdivision from earnings and profits accumulated 
for a taxable year (computed without any reduction for distributions).
    (ii) If a foreign corporation adopts a plan of complete liquidation 
in a taxable year of the corporation beginning after December 31, 1962, 
and if because of the application of section 337(a) gain or loss would 
not be recognized by the corporation from the sale or exchange of 
property if the corporation were a domestic corporation, then the 
earnings and profits of the corporation accumulated for the taxable year 
(computed without any reduction for distributions) shall be determined 
without regard to the amount of such gain or loss. See section 
1248(d)(2). For the nonapplication of section 337(a) to a liquidation by 
a collapsible corporation (as defined in section 341) and to certain 
other liquidations, see section 337(c).
    (e) Earnings and profits attributable to block--(1) General. Except 
as provided in subparagraph (3) of this paragraph, the earnings and 
profits attributable to a block of stock of a controlled foreign 
corporation for the period a United States person held (or is considered 
to have held by reason of the application of section 1223) the block are 
an amount equal to:
    (i) The sum of the earnings and profits accumulated for each taxable 
year of the corporation beginning after December 31, 1962 (computed 
under paragraph (d) of this section) during such period, multiplied by
    (ii) The percentage that (a) the number of shares in the block, 
bears to (b) the total number of shares of the corporation outstanding 
during such period.
    (2) Special rule. For purposes of computing the sum referred to in 
subparagraph (1)(i) of this paragraph, in case the block was held (or is 
considered as held by reason of the application of section 1223) during 
a taxable year beginning after December 31, 1962, but not on each day of 
such taxable year, there shall be included in such sum only that portion 
which bears the same ratio to (i) the total earnings and profits for 
such taxable year (computed under paragraph (d) of this section), as 
(ii) the number of days during such taxable year the block was held (or 
is considered as so held), bears to (iii) the total number of days in 
such taxable year.
    (3) Amounts included in gross income under section 951. (i) If, 
during the period the person held (or is considered to have held by 
reason of the application of section 1223) the block, any amount was 
included under section 951 in the gross income of such person (or of 
another person whose holding of the stock sold or exchanged is, by 
reason of the application of section 1223, attributed to such person) in 
respect of the block, then the earnings and profits attributable to the 
block for such period shall be an amount equal to (a) the earnings and 
profits attributable to the block which would have been computed under 
subparagraph (1) of this paragraph if this subparagraph did not apply, 
reduced by (b) the excess computed under subdivision (ii) of this 
subparagraph. See section 1248(d)(1).
    (ii) The excess computed under this subdivision is the excess (if 
any) of (a) amounts included under section 951 in the gross income of 
such person (or such other person) in respect of the block during such 
period, over (b) the portion of such amounts which, in any taxable year 
of such person (or such other person), resulted in an exclusion from the 
gross income of such person (or such other person) under section 
959(a)(1) (relating to exclusion from gross income of distributions of 
previously taxed earnings and profits).
    (iii) This subparagraph shall apply notwithstanding an election 
under section 962 by such person to be subject to tax at corporate 
rates.
    (4) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. On May 26, 1965, Green, a United States person, purchases 
at its fair market value a block of 25 of the 100 outstanding shares of 
the only class of stock of controlled

[[Page 387]]

foreign corporation F. He sells the block on January 1, 1968. In respect 
of the block, Green did not include any amount in his gross income under 
section 951. F uses the calendar year as its taxable year and does not 
own stock in any lower tier corporation referred to in paragraph 
(c)(5)(i) of this section. All of the conditions of paragraph (c) of 
this section are satisfied in respect of the block. The earnings and 
profits accumulated by F (computed under paragraph (d) of this section) 
are $10,000 for 1965, $13,000 for 1966, and $11,000 for 1967. The 
earnings and profits of F attributable to the block are $7,500, 
determined as follows:

Sum of earnings and profits accumulated by F during period
 block was held:
    For 1965 (219/365x$10,000)..............................      $6,000
    For 1966................................................     $13,000
    For 1967................................................     $11,000
                                                             -----------
      Sum...................................................     $30,000
Multiplied by:
    Number of shares in block (25), divided by total number          25%
     of shares outstanding (100)............................
                                                             ===========
      Earnings and profits attributable to block............      $7,500
 

    Example 2. Assume the same facts as in example (1) except that in 
respect of the block Green includes in his gross income under section 
951 the total amount of $2,800 for 1965 and 1966, and because of such 
inclusion the amount of $2,800 which was distributed to Green by F on 
January 15, 1967, is excluded from his gross income under section 
959(a)(1). Accordingly, the earnings and profits of F attributable to 
the block are $7,000, determined as follows:

Earnings and profits attributable to the block, as computed       $7,500
 in example (1).............................................
Minus:
  Excess of amount included in Green's gross income under            500
   section 951 ($2,800), over portion thereof which resulted
   in an exclusion under section 959(a)(1) ($2,300).........
                                                             -----------
      Earnings and profits attributable to block............       7,000
 

    Example 3. Assume the same facts as in example (1) except that on 
each day beginning on January 1, 1966 (the date controlled foreign 
corporation G was organized) through January 1, 1968, F owns 80 of the 
100 outstanding shares of the only class of G stock. Since, by reason of 
his ownership of 25 shares of F stock, Green owns within the meaning of 
section 958(a)(2) the equivalent of 20 shares of G stock (\25/100\ of 80 
shares), G is a lower tier corporation referred to in paragraph 
(c)(5)(i)(a) of this section. If Green had sold the 20 shares of G stock 
on January 1, 1968, the date he actually sold the block of F stock, the 
conditions of paragraph (a)(2) of Sec. 1.1248-1 would be satisfied in 
respect of the G stock, and, accordingly, the conditions of paragraph 
(c)(5)(ii) of this section must be satisfied. Assume further that such 
conditions are satisfied, that G uses the calendar year as its taxable 
year, and that the earnings and profits accumulated by G (computed under 
paragraph (d) of this section) are $19,000 for 1966 and $21,000 for 
1967. The earnings and profits of F and of G attributable to the block 
are $15,500, determined as follows:

Sum of earnings and profits accumulated by G for period          $40,000
 Green owned G stock within the meaning of section 958(a)(2)
 ($19,000 plus $21,000).....................................
Multiplied by:
  Number of G shares deemed owned within the meaning of              20%
   section 958(a)(2) by Green (20), divided by total number
   of G shares outstanding (100)............................
                                                             -----------
  Earnings and profits of G attributable to block...........      $8,000
  Earnings and profits of F attributable to block, as             $7,500
   determined in example (1)................................
                                                             -----------
      Total earnings and profits attributable to block......     $15,000
 


[T.D. 6779, 29 FR 18131, Dec. 22, 1964, as amended by T.D. 7293, 38 FR 
32803, Nov. 28, 1973]



Sec. 1.1248-3  Earnings and profits attributable to stock in complex 
cases.

    (a) General--(1) Manner of computation. For purposes of paragraph 
(a)(1) of Sec. 1.1248-1, if a United States person sells or exchanges 
stock in a foreign corporation, and if the provisions of Sec. 1.1248-2 
do not apply, then the earnings and profits attributable to the stock 
which were accumulated in taxable years of the corporation beginning 
after December 31, 1962, during the period or periods such stock was 
held (or was considered to be held by reason of the application of 
section 1223) by such person while such corporation was a controlled 
foreign corporation, shall be computed in accordance with the steps set 
forth in subparagraphs (2), (3), and (4) of this paragraph.
    (2) Step 1. For each taxable year of the corporation beginning after 
December 31, 1962, (i) the earnings and profits accumulated for such 
taxable year by the corporation shall be computed in the manner 
prescribed in paragraph (b) of this section, (ii) the person's tentative 
ratable share of such earnings and profits shall be computed in the 
manner prescribed in paragraph (c) or (d) (whichever is applicable) of 
this section, and (iii) the person's ratable share of such earnings and 
profits shall be computed by adjusting the tentative

[[Page 388]]

ratable share in the manner prescribed in paragraph (e) of this section.
    (3) Step 2. If the provisions of paragraph (f) of this section 
(relating to earnings and profits of lower tier foreign corporations) 
apply, the amount of the person's ratable share of the earnings and 
profits accumulated by each lower tier corporation attributable to any 
such taxable year (i) shall be computed in the manner prescribed by 
paragraph (f) of this section, and (ii) shall be added to such person's 
ratable share for such taxable year determined in step 1.
    (4) Step 3. The amount of earnings and profits attributable to the 
share shall be the sum of the ratable shares computed for each such 
taxable year in the manner prescribed in steps 1 and 2.
    (5) Share or block. In general, the computation under this paragraph 
shall be made separately for each share of stock sold or exchanged, 
except that if a group of shares constitute a block of stock the 
computation may be made in respect of the block. For purposes of this 
section, the term block of stock means a group of shares sold or 
exchanged in one transaction, but only if (i) the amount realized, 
basis, and holding period are identical for each such share, and (ii) 
the adjustments (if any) under paragraphs (e) and (f)(5) of this section 
of the tentative ratable shares would be identical for each such share 
if such adjustments were computed separately for each such share.
    (6) Deficit in earnings and profits. For purposes of this section 
and Sec. Sec. 1.1248-4 through 1.1248-7, in respect of a taxable year, 
the term earnings and profits accumulated for a taxable year (but only 
if computed under paragraph (b) of this section) includes a deficit in 
earnings and profits accumulated for such taxable year. Similarly, a 
tentative ratable share, or a ratable share, may be a deficit.
    (7) Examples. The application of the provisions of this paragraph 
may be illustrated by the following examples:

    Example 1. On December 31, 1967, Brown sells 10 shares of stock in 
foreign corporation X, which uses the calendar year as its taxable year. 
The 10 shares constitute a block of stock under subparagraph (5) of this 
paragraph. Under step 1, Brown's ratable shares of the earnings and 
profits of X attributable to the block are as follows:

------------------------------------------------------------------------
                                                                Ratable
                      Taxble year of X                          shares
------------------------------------------------------------------------
1963........................................................        $100
1964........................................................         150
1965........................................................      \1\ 50
1966........................................................          50
1967........................................................         100
                                                             -----------
    Sum.....................................................         350
------------------------------------------------------------------------
\1\ Deficit.


The amount of the earnings and profits attributable to such block under 
step 3 is $350.
    Example 2. Assume the same facts as in example (1), except that in 
respect of X there are lower tier corporations Y and Z to which the 
provisions of paragraph (f) of this section apply. Brown's ratable 
shares of the earnings and profits of X, Y, and Z attributable to the 
block under steps 1 and 2 for each taxable year of X are as follows:

------------------------------------------------------------------------
                                              Ratable shares
        Taxable year of X        ---------------------------------------
                                      X         Y         Z       Total
------------------------------------------------------------------------
1963............................      $100       $40       $20      $160
1964............................       150        40       -60       130
1965............................       -50        30        50        30
1966............................        50        50        30       130
1967............................       100       -40        40       100
                                 ---------------------------------------
    Sum.........................       350       120        80       550
------------------------------------------------------------------------


The amount of the earnings and profits attributable to such block under 
step 3 is $550.

    (b) Earnings and profits accumulated for a taxable year--(1) 
General. For purposes of this section, the earnings and profits 
accumulated for a taxable year of a foreign corporation shall be the 
earnings and profits for such year, computed in accordance with the 
rules prescribed in Sec. 1.964-1 (relating to determination of earnings 
and profits for a taxable year of a controlled foreign corporation), 
except that (i) the special rules of subparagraph (2) of this paragraph 
shall apply, and (ii) adjustments shall be made under subparagraph (3) 
of this paragraph for distributions made by the corporation during such 
taxable year. If the stock in the corporation is sold or exchanged 
before any action is taken by or on behalf of the corporation under 
paragraph (c) of Sec. 1.964-1, the computation of earnings and profits 
under Sec. 1.964-1 for purposes of this section shall be made as if no 
elections had been made and no accounting method had been adopted. The 
amount of earnings and profits accumulated for a taxable year of a 
foreign corporation, as computed under this paragraph, is

[[Page 389]]

not necessarily the same amount as the earnings and profits of the 
taxable year computed under section 316(a)(1) or paragraph (d) of Sec. 
1.1248-2. Thus, for example, if a distribution with respect to stock is 
in excess of the amount of earnings and profits of the taxable year 
computed under section 316(a)(2), such excess is treated under section 
316(a)(2), or paragraph (d) of Sec. 1.1248-2 as made out of any 
earnings and profits accumulated in prior taxable years, whereas the 
amount of such excess may create, or increase, a deficit in the earnings 
and profits accumulated for the taxable year as computed under this 
paragraph. See subparagraph (3) of this paragraph.
    (2) Special rules. (i) The earnings and profits of the corporation 
accumulated:
    (a) For any taxable year beginning before January 1, 1967, shall not 
include the excess of any item includible in gross income of the foreign 
corporation under section 882(b) as gross income derived from sources 
within the United States, and
    (b) For any taxable year beginning after December 31, 1966, shall 
not include the excess of any item includible in gross income of the 
foreign corporation under section 882(b)(2) as income effectively 
connected for that year with the conduct by such corporation of a trade 
or business in the United States, whether derived from sources within or 
from sources without the United States,

Over any deductions allocable to such item under section 882(c). 
However, if the sale or exchange of stock in the foreign corporation by 
the U.S. person occurs before January 1, 1967, the provisions of (a) of 
this subdivision apply with respect to such sale or exchange even though 
the taxable year begins after December 31, 1966. See section 1248(d)(4). 
Any item which is required to be excluded from gross income, or which is 
taxed at a reduced rate, under an applicable treaty obligation of the 
United States shall not be excluded under this subdivision from earnings 
and profits accumulated for a taxable year.
    (ii) If a foreign corporation adopts a plan of complete liquidation 
in a taxable year of the corporation beginning after December 31, 1962, 
and if because of the application of section 337(a) gain or loss would 
not be recognized by the corporation from the sale or exchange of 
property if the corporation were a domestic corporation, then the 
earnings and profits of the corporation accumulated for the taxable year 
shall be determined without regard to the amount of such gain or loss. 
See section 1248(d)(2). For the nonapplication of section 337(a) to a 
liquidation by a collapsible corporation (as defined in section 341) and 
to certain other liquidations, see section 337(c).
    (3) Adjustment for distributions. (i) The earnings and profits of a 
foreign corporation accumulated for a taxable year (computed without 
regard to this subparagraph) shall be reduced (if necessary below zero 
so as to create a deficit), or a deficit in such earnings and profits 
shall be increased, by the amount of the distributions (other than in 
redemption of stock under section 302(a) or 303) made by the corporation 
in respect of its stock during such taxable year (a) out of such 
earnings and profits, or (b) out of earnings and profits accumulated for 
prior taxable years beginning after December 31, 1962 (computed under 
this paragraph). Except for purposes of applying this subparagraph, the 
application of the preceding sentence shall not affect the amount of 
earnings and profits accumulated for any such prior taxable year.
    (ii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. X Corporation, which uses the calendar year as its 
taxable year, was organized on January 1, 1965, and was a controlled 
foreign corporation on each day of 1965. The amount of X's earnings and 
profits accumulated for 1965 (computed under this paragraph without 
regard to the adjustment for distributions under this subparagraph) is 
$400,000, of which $100,000 is distributed by X as dividends during 
1965. The amount of X's earnings and profits accumulated for 1965 
(computed under this paragraph) is $300,000 (that is, $400,000 minus 
$100,000). The result would be the same even if X was not a controlled 
foreign corporation on each day of 1965.
    Example 2. Assume the same facts as in example (1). Assume further 
that the amount of X's earnings and profits accumulated for 1966 
(computed under this paragraph without regard to the adjustment for 
distributions

[[Page 390]]

under this subparagraph) is $150,000, and that X distributes the amount 
of $260,000 as dividends during 1966. Since $150,000 of the distribution 
is from earnings and profits accumulated for 1966 (computed without 
regard to the adjustment for distributions under this subparagraph), and 
since $110,000 is from earnings and profits accumulated for 1965, the 
earnings and profits of X accumulated for 1966 are a deficit of $110,000 
(that is, $150,000 minus $260,000). However, the earnings and profits 
accumulated for 1965 are still $300,000 for purposes of computing in the 
manner prescribed in paragraph (c) of this section a person's tentative 
ratable share.

    (c) Tentative ratable share if earnings and profits accumulated for 
a taxable year not less than zero--(1) General rule. For purposes of 
paragraph (a)(2)(ii) of this section, in respect of a share (or block) 
of stock in a foreign corporation, if the amount of the earnings and 
profits accumulated for a taxable year of the corporation (computed 
under paragraph (b) of this section), beginning after December 31, 1962, 
is not less than zero, then the person's tentative ratable share for 
such taxable year shall be equal to:
    (i)(a) Such amount (if the computation is made in respect of a 
block, multiplied by the number of shares in the block), divided by (b) 
the number of shares in the corporation outstanding, or deemed under 
subparagraph (2) of this paragraph to be outstanding, on each day of 
such taxable year, multiplied by
    (ii) The percentage that (a) the number of days in such taxable year 
of the corporation during the period the person held (or was considered 
to have held by reason of the application of section 1223) the share (or 
block) while the corporation was a controlled foreign corporation, bears 
to (b) the total number of days in such taxable year.
    (2) Shares deemed outstanding for a taxable year. For purposes of 
this section and Sec. Sec. 1.1248-4 through 1.1248-7, if the number of 
shares of stock in a foreign corporation outstanding on each day of a 
taxable year of the corporation is not constant, then the number of such 
shares deemed outstanding on each such day shall be the sum of the 
fractional amounts in respect of each share outstanding on any day of 
the taxable year. The fractional amount in respect of a share shall be 
determined by dividing (i) the number of days in the taxable year during 
which such share was outstanding (excluding the day the share became 
outstanding, but including the day the share ceased to be outstanding), 
by (ii) the total number of days in such taxable year.
    (3) Examples. The application of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. On each day of 1964, S owns a block consisting of 30 of 
the 100 shares of the only class of stock outstanding in F Corporation, 
and on each such day F is a controlled foreign corporation. F uses the 
calendar year as its taxable year and F's earnings and profits 
accumulated for 1964 (computed under paragraph (b) of this section) are 
$10,000. S's tentative ratable share with respect to the block is 
$3,000, computed as follows:

Earnings and profits accumulated for taxable year...........     $10,000
Multiplied by:
  Number of shares in block (30), divided by number of               30%
   shares outstanding (100).................................
Multiplied by:
  Number of days in 1964 S held block while F was a                 100%
   controlled foreign corporation (365), divided by number
   of days in 1964 (365)....................................
                                                             -----------
    Tentative ratable share for block.......................      $3,000
 

    Example 2. On December 31, 1964, X Corporation, a controlled foreign 
corporation which uses the calendar year as its taxable year, had 100 
shares of one class of stock outstanding, 15 of which were owned by T. 
T's 15 shares were redeemed by X on March 14, 1965. On December 31, 
1965, in addition to the remaining 85 shares, 10 new shares of stock 
(which were issued on May 26, 1965) were outstanding. Thus, during 1965, 
15 shares were outstanding for 73 days, 10 for 219 days, and 85 for 365 
days. The earnings and profits (computed under paragraph (b) of this 
section) accumulated for X's taxable year ending on December 31, 1965, 
are $18,800. T's tentative ratable share with respect to one share of 
stock is $40, computed as follows:

Earnings and profits accumulated for taxable year...........     $18,800
Divided by:
  Number of shares deemed outstanding each day
   of 1965:.....................................
    15 for 73 days (15x73/365)..................           3
    10 for 219 days (10x219/365)................           6
    85 for 365 days (35x365/365)................          85
                                                 ============
  Total number of shares deemed outstanding each day of 1965          94
                                                 -------------
Earnings and profits accumulated per share..................        $200

[[Page 391]]

 
Multiplied by:
  Number of days in 1965 T held his share while X was a              20%
   controlled foreign corporation (73), divided by number of
   days in 1965 (365).......................................
                                                 -------------
    T's tentative ratable share per share of stock..........         $40
 

    Example 3. Assume the same facts as in example (2) except that X was 
not a controlled foreign corporation after January 31, 1965. T's 
tentative ratable share with respect to one share of stock for 1965 is 
$17, computed as follows:

Earnings and profits accumulated per share, determined in           $200
 example (2)................................................
Multiplied by:
  Number of days in 1965 T held X stock while X was a               8.5%
   controlled foreign corporation (31), divided by number of
   days in 1965 (365).......................................
                                                 -------------
    Tentative ratable share.................................         $17
 

    (4) More than one class of stock. If a foreign corporation for a 
taxable year has more than one class of stock outstanding, then before 
applying subparagraphs (1) and (2) of this paragraph the earnings and 
profits accumulated for the taxable year of the corporation (computed 
under paragraph (b) of this section) shall be allocated to each class of 
stock in accordance with the principles of paragraph (e) (2) and (3) of 
Sec. 1.951-1, applied as if the corporation were a controlled foreign 
corporation on each day of such taxable year.
    (d) Tentative ratable share if deficit in earnings and profits 
accumulated for taxable year--(1) General rule. For purposes of 
paragraph (a)(2)(ii) of this section, in respect of a share (or block) 
of stock in a foreign corporation, if there is a deficit in the earnings 
and profits accumulated for a taxable year of the corporation (computed 
under paragraph (b) of this section) beginning after December 31, 1962, 
the person's tentative ratable share for such taxable year shall be an 
amount equal to the sum of the partial tentative ratable shares computed 
under subparagraphs (2) and (3) of this paragraph.
    (2) Operating deficit. The partial tentative ratable share under 
this subparagraph is computed in 2 steps. First, compute (under 
paragraph (b) of this section without regard to the adjustment for 
distributions under subparagraph (3) thereof) the deficit (if any) in 
earnings and profits accumulated for such taxable year. Second, compute 
the partial tentative ratable share in the same manner as the tentative 
ratable share for such taxable year would be computed under paragraph 
(c) of this section if such deficit were the amount referred to in 
paragraph (c)(1)(i)(a) of this section.
    (3) Deficit from distributions. The partial tentative ratable share 
under this subparagraph is computed in 2 steps. First, compute and treat 
as a deficit only that portion of the adjustment for distributions under 
paragraph (b)(3) of this section for such taxable year which is 
attributable under subparagraph (4) of this paragraph to distributions 
out of earnings and profits accumulated during prior taxable years of 
the corporation beginning after December 31, 1962, during the period or 
periods the corporation was a controlled foreign corporation and the 
share (or block) of stock was owned by a United States shareholder (as 
defined in section 951(b) and the regulations thereunder). Second, 
compute the partial tentative ratable share for such taxable year in the 
same manner as the tentative ratable share for such taxable year would 
be computed under paragraph (c) of this section if (i) such deficit were 
the amount referred to in paragraph (c)(1)(i)(a) of this section, and 
(ii) the corporation were a controlled foreign corporation on each day 
of such taxable year.
    (4) Order of distributions. For purposes of applying subparagraph 
(3) of this paragraph only, the adjustment for distributions under 
paragraph (b)(3) of this section for a taxable year of a foreign 
corporation shall be treated as attributable first to distributions of 
earnings and profits for the taxable year (computed under paragraph (b) 
of this section without regard to such adjustment) to the extent 
thereof, and then to distributions out of the most recent of earnings 
and profits accumulated during prior taxable years beginning after 
December 31, 1962 (computed under paragraph (b) of this section). If the 
foreign corporation was a controlled foreign corporation during a prior 
taxable year for a period or periods which was only part of such prior 
taxable year, then for purposes of the preceding sentence (i) such 
taxable year shall be divided into periods the

[[Page 392]]

corporation was or was not a controlled foreign corporation, (ii) 
distributions of the earnings and profits accumulated during such prior 
taxable year shall be considered made from the most recent period first, 
and (iii) the earnings and profits accumulated during such prior taxable 
year shall be allocated to a period during such year in the same 
proportion as the number of days in the period bears to the number of 
days in such year. Except for purposes of applying subparagraph (3) of 
this paragraph, the application of this subparagraph shall not affect 
the amount of earnings and profits accumulated for any such prior 
taxable year (computed under paragraph (b) of this section).
    (5) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. On each day of 1965 X Corporation, which uses the 
calendar year as its taxable year, was a controlled foreign corporation 
having 100 shares of one class of stock outstanding, a block of 25 of 
which were owned by T, who acquired them in 1962 and sold them in 1967. 
The deficit in X's earnings and profits accumulated for 1965 (computed 
under paragraph (b) of this section without regard to the adjustment for 
distributions under subparagraph (3) thereof) is $100,000, and thus in 
respect of the block T's partial tentative ratable share computed under 
subparagraph (2) of this paragraph is a deficit of $25,000 (that is, 
$100,000x25/100). During 1965 X does not make any distributions in 
respect of its stock, and thus in respect of the block T's partial 
tentative ratable share computed under subparagraph (3) of this 
paragraph is zero. Accordingly, T's tentative ratable share in respect 
of the block of X stock for 1965 is a deficit of $25,000. If, however, X 
was a controlled foreign corporation for only 292 days during 1965, T's 
tentative ratable share in respect of the block for 1965 would be a 
deficit of $20,000 (that is, $25,000x292/365).
    Example 2. (i) Assume the same facts as in example (1) except that 
at no time during 1965 is X a controlled foreign corporation and that 
during 1965 X distributes $80,000 with respect to its stock. Assume 
further that X was a controlled foreign corporation on each day of 1964, 
but only for the first 146 days of 1963, and that X's earnings and 
profits accumulated for prior taxable years computed under paragraph (b) 
of this section are $70,000 for 1964 and $20,000 for 1963.
    (ii) Since X was not a controlled foreign corporation on any day of 
1965, in respect of the block T's partial tentative ratable share 
computed under subparagraph (2) of this paragraph is zero.
    (iii) The partial tentative ratable share under subparagraph (3) of 
this paragraph is computed in the following manner: For 1965 the 
adjustment for distributions under paragraph (b)(3) of this section is 
$80,000. Under subparagraph (4) of this paragraph $70,000 of such 
adjustment is attributable to the distribution of all of the earnings 
and profits accumulated during 1964, on every day of which X was a 
controlled foreign corporation, and $10,000 of the adjustment is 
attributable to the distribution of $10,000 of the earnings and profits 
accumulated for 1963. The portion of the earnings and profits 
accumulated by X in 1963 attributable to the first 146 days in 1963 
during which X was a controlled foreign corporation is $8,000 (that is, 
$20,000x146/365), and the portion attributable to the period in 1963 
during which X was not a controlled foreign corporation is $12,000 (that 
is, $20,000x219/365). Under subparagraph (4)(ii) of this paragraph, the 
distribution in 1965 of $10,000 of earnings and profits accumulated 
during 1963 is attributable to the more recent period in 1963, that is, 
the period X was not a controlled foreign corporation. Accordingly, the 
portion of the adjustment for distributions under paragraph (b)(3) of 
this section attributable to earnings and profits accumulated during 
periods X was a controlled foreign corporation is $70,000, and in 
respect of the block T's partial tentative ratable share under 
subparagraph (3) of this paragraph is a deficit of $17,500 (that is, 
$70,000x25/100).
    (iv) T's tentative ratable share in respect of the block of X stock 
for 1965 is a deficit of $17,500 (that is, the sum of the partial 
tentative ratable share for the block computed under subparagraph (2) of 
this paragraph, zero, plus the partial tentative ratable share for the 
block computed under subparagraph (3) of this paragraph, a deficit of 
$17,500).
    (v) Assume that X had 100 shares of one class of stock outstanding 
on each day of 1964 and 1963. Notwithstanding the distributions in 1965 
of earnings and profits accumulated during 1964 and 1963 (computed under 
paragraph (b) of this section), nevertheless, in respect of the block 
T's tentative ratable share for 1964 is $17,500 (that is, earnings and 
profits accumulated during 1964 so computed of $70,000, multiplied by 25 
shares/100 shares) and in respect of the block T's tentative ratable 
share for 1963 is $2,000 (that is, earnings and profits accumulated 
during 1963 so computed of $20,000, multiplied by 25 shares/100 shares, 
and multiplied by the percentage that the number of days in 1963 on 
which X was a controlled foreign corporation bears to the total number 
of days in 1963, 146/365).
    Example 3. Assume the same facts as in example (2) except that X was 
a controlled foreign corporation on each day of 1965. The tentative 
ratable share with respect to the

[[Page 393]]

block of stock for 1965 is a deficit of $42,500, that is, the sum of the 
partial tentative ratable share under subparagraph (2) of this paragraph 
(as determined in example (1)), a deficit of $25,000, plus the partial 
tentative ratable share under subparagraph (3) of this paragraph (as 
determined in example (2)), a deficit of $17,500.

    (6) More than one class of stock. If a foreign corporation for a 
taxable year has more than one class of stock outstanding, then before 
applying subparagraph (1) of this paragraph the earnings and profits 
accumulated for the taxable year of the corporation (computed under 
paragraph (b) of this section) shall be allocated to each class of stock 
in accordance with the principles of paragraph (e) (2) and (3) of Sec. 
1.951-1, applied as if the corporation were a controlled foreign 
corporation on each day of such taxable year.
    (e) Ratable share of earnings and profits accumulated for a taxable 
year--(1) In general. For purposes of paragraph (a)(2)(iii) of this 
section, in respect of a share (or block) of stock in a foreign 
corporation, the person's ratable share of the earnings and profits 
accumulated for a taxable year beginning after December 31, 1962, shall 
be an amount equal to the tentative ratable share computed under 
paragraph (c) or (d) (as the case may be) of this section, adjusted in 
the manner prescribed in subparagraphs (2) through (6) of this 
paragraph.
    (2) Amounts included in gross income under section 951. (i) In 
respect of a share (or block) of stock in a foreign corporation, a 
person's tentative ratable share for a taxable year of the corporation 
(computed under paragraph (c) of this section) shall be reduced (but not 
below zero) by the excess of (a) the amount, if any, included (in 
respect of such corporation for such taxable year) under section 951 in 
the gross income of such person or (during the period such share, or 
block, was considered to be held by such person by reason of the 
application of section 1223) in the gross income of any other person who 
held such share (or block), over (b) the portion of such amount which, 
in any taxable year of such person or such other person, resulted in an 
exclusion from the gross income of such person or such other person of 
an amount under section 959(a)(1) (relating to exclusion from gross 
income of distributions of previously taxed earnings and profits). See 
section 1248(d)(1). This subdivision shall apply notwithstanding an 
election under section 962 by such person to be subject to tax at 
corporate rates.
    (ii) The application of this subparagraph may be illustrated by the 
following example:

    Example: On December 31, 1975, Brown sells one share of stock in X 
Corporation, a controlled foreign corporation which has never been a 
less developed country corporation (as defined in section 902(d)). Both 
Brown and X use the calendar year as the taxable year. In respect of his 
share, Brown's tentative ratable share for 1971 (computed under 
paragraph (c) of this section) is $35. In respect of his share, Brown 
included $4 in his gross income for 1971 under section 951, and the 
amount of $3, which was distributed to him by X on January 15, 1972, is 
excluded from Brown's gross income under section 959(a)(1). In respect 
of the stock, Brown's ratable share for 1971 is $34, determined as 
follows:

Tentative ratable share.....................................         $35
Minus:
  Excess of amount of tentative ratable share included in              1
   Brown's gross income under section 951 ($4), over portion
   thereof which resulted in exclusion under section
   959(a)(1) ($3)...........................................
                                                             -----------
    Ratable share...........................................          34
 

    (3) Amounts included in gross income under section 551. In respect 
of a share (or block) of stock in a foreign corporation, a person's 
tentative ratable share for a taxable year of the corporation (computed 
under paragraph (c) of this section) shall be reduced (but not below 
zero) by the amount, if any, included (in respect of such corporation 
for such taxable year) under section 551 in the gross income of such 
person or (during the period such share, or block, was considered to be 
held by such person by reason of the application of section 1223) in the 
gross income of any other person who held such share (or block).
    (4) Less developed country corporations. (i) If the foreign 
corporation was a less developed country corporation as defined in 
section 902(d) for a taxable year of the corporation, and if the person 
who sold or exchanged a share (or block) of stock in such corporation 
satisfies the requirements of paragraph (a) of Sec. 1.1248-5 in respect 
of such stock, then his ratable share for such taxable year shall be 
zero. See section 1248(d)(3).

[[Page 394]]

    (ii) The application of this subparagraph may be illustrated by the 
following example:

    Example: Assume the same facts as in the example in subparagraph 
(2)(ii) of this paragraph except that X was a less developed country 
corporation for 1971. Assume further that Brown satisfies the 
requirements of paragraph (a) of Sec. 1.1248-5. Brown's ratable share 
in respect of the stock for 1971 is zero.

    (5) Qualified shareholder of foreign investment company. In respect 
of a share (or block) of stock in a foreign corporation which was a 
foreign investment company described in section 1246 (b)(1), if the 
election under section 1247(a) to distribute income currently was in 
effect for a taxable year of the company, and if the person who sold or 
exchanged the stock (or another person who actually owned the stock 
during such taxable year and whose holding of the stock is attributed by 
reason of the application of section 1223 to the person who sold or 
exchanged the stock) was a qualified shareholder (as defined in section 
1247(c)) for his taxable year in which or with which such taxable year 
of the company ends, then the ratable share in respect of the share (or 
block) for such taxable year of the company shall be zero. See section 
1248(d)(5). In case gain is recognized under section 1246 in respect of 
a share (or block), see section 1248(f)(3)(B).
    (6) Adjustment for certain distributions. If (i) the person who sold 
or exchanged the share or block (or another person who actually owned 
the share or block and whose holding of the share or block is attributed 
by reason of the application of section 1223 to such person) received a 
distribution during a taxable year of the corporation, and (ii) such 
distribution was not included in the gross income of such person (or 
such other person) by reason of the application of section 959(a)(1) to 
amounts which were included under section 951(a)(1) in the gross income 
of a United States shareholder whose holding of the share or block is 
not attributed by reason of the application of section 1223 to such 
person (or such other person), then the amount of such distribution 
shall be added to such person's tentative ratable share for such taxable 
year. Thus, for example, such tentative ratable share may be increased, 
or a deficit reduced, by the amount of such distribution.
    (f) Earnings and profits of subsidiaries of foreign corporations--
(1) Application of paragraph. (i) In respect of a person who sells or 
exchanges stock in a foreign corporation (referred to as a first tier 
corporation), the provisions of this paragraph shall apply if the 
following 3 conditions exist:
    (a) The conditions of paragraph (a)(2) of Sec. 1.1248-1 are 
satisfied by the person in respect of such stock;
    (b) By reason of his ownership of such stock, on the date of such 
sale or exchange such person owned, within the meaning of section 
958(a)(2), stock in another foreign corporation (referred to as a lower 
tier corporation); and
    (c) The conditions of paragraph (a)(2) of Sec. 1.1248-1 would be 
satisfied by such person in respect of such stock in the lower tier 
corporation if such person were deemed to have sold or exchanged such 
stock in the lower tier corporation on the date he actually sold or 
exchanged such stock in the first tier corporation.
    (ii) If the provisions of this paragraph apply, (a) the person's 
tentative ratable share (or shares) of the earnings and profits 
accumulated by the lower tier corporation attributable to a taxable year 
of the first tier corporation shall be computed under subparagraph (2) 
or (4) of this paragraph, whichever is applicable, and (b) such person's 
ratable share (or shares) for the lower tier corporation attributable to 
a taxable year of the first tier corporation shall be computed under 
subparagraph (5) of this paragraph. For the manner of taking into 
account the ratable share for a lower tier corporation, see paragraph 
(a)(3) of this section.
    (iii) The application of this subparagraph may be illustrated by the 
following example:

    Example: On each day of 1964 and 1965 corporations X and Y are 
controlled foreign corporations, and each has outstanding 100 shares of 
one class of stock. On January 15, 1965, T, a United States person, owns 
one share of stock in X and X directly owns 20 shares of stock in Y. 
Thus, T owns, within the meaning of section 958(a)(2), stock in Y. On 
that date, T sells his share in X and satisfies the conditions of 
paragraph (a)(2) of Sec. 1.1248-1 in respect of his stock in X. 
Assuming that the conditions of paragraph (a)(2) of

[[Page 395]]

Sec. 1.1248-1 would be satisfied by T in respect of the stock he 
indirectly owns in Y if, on January 15, 1965, he were deemed to have 
sold such stock in Y, the provisions of this paragraph apply.

    (2) Tentative ratable share (of lower tier corporation attributable 
to a taxable year of first tier corporation) not less than zero. If the 
provisions of this paragraph apply to a sale or exchange by a United 
States person of a share (or block) of stock in a first tier 
corporation, and if the amount of earnings and profits accumulated 
(computed under paragraph (b) of this section) for a taxable year 
(beginning after December 31, 1962) of the lower tier corporation is not 
less than zero, then in respect of the share (or block) such person's 
tentative ratable share of the earnings and profits accumulated for such 
taxable year of the lower tier corporation attributable to any taxable 
year (beginning after December 31, 1962) of such first tier corporation 
shall be an amount equal to:
    (i)(a) Such amount of earnings and profits accumulated for such 
taxable year of the lower tier corporation (if the computation is made 
in respect of a block in the first tier corporation, multiplied by the 
number of shares in the block), divided by (b) the number of shares in 
the first tier corporation outstanding, or deemed under paragraph (c)(2) 
of this section to be outstanding, on each day of such taxable year of 
the first tier corporation, multiplied by
    (ii) The percentage that (a) the number of days during the period or 
periods in such taxable year of the first tier corporation on which such 
person held (or was considered to have held by reason of the application 
of section 1223) the share (or block) in the first tier corporation 
while the first tier corporation owned (within the meaning of section 
958(a)) stock of such lower tier corporation at times while such lower 
tier corporation was a controlled foreign corporation, bears to (b) the 
total number of days in such taxable year of the first tier corporation, 
multiplied by
    (iii) The percentage that (a) the average number of shares in the 
lower tier corporation which were owned within the meaning of section 
958(a) by the first tier corporation during such period or periods 
(referred to in subdivision (ii)(a) of this subparagraph), bears to (b) 
the total number of such shares outstanding, or deemed under the 
principles of paragraph (c)(2) of this section to be outstanding, during 
such period or periods, multiplied by
    (iv) The percentage that (a) the number of days in such taxable year 
of the lower tier corporation which fall within the taxable year of the 
first tier corporation, bears to (b) the total number of days in such 
taxable year of the lower tier corporation.
    (3) Examples. The application of subparagraph (2) of this paragraph 
may be illustrated by the following examples:

    Example 1. In a year subsequent to 1969, Brown, a United States 
person, sells 5 of his shares of stock in X Corporation in a transaction 
as to which the provisions of this paragraph apply. Brown had purchased 
the 5 shares prior to 1969. On each day of 1969 X Corporation actually 
had 100 shares of one class of stock outstanding. On each such day X 
Corporation directly owned all of the shares of stock in Y Corporation, 
and Y Corporation directly owned all of the shares of stock in Z 
Corporation. Z Corporation on each such day was a controlled foreign 
corporation. Both X and Z use the calendar year as the taxable year. Z's 
earnings and profits accumulated for 1969 (computed under paragraph (b) 
of this section) are $2,000. Brown's tentative ratable share of the 
earnings and profits accumulated by Z attributable to the 1969 calendar 
year of X is $20 per share, computed as follows:

  (i) Z's earnings and profits for 1969 ($2,000), divided by         $20
   the number of shares in X deemed outstanding each day of
   1969 (100)...............................................
Multiplied by:
  (ii) Since on each day of 1969 Brown (by reason of owning         100%
   directly his shares in X) owned, within the meaning of
   section 958(a)(2), stock in Z while Z was a controlled
   foreign corporation, the percentage determined under
   subparagraph (2)(ii) of this paragraph equals............
Multiplied by:
  (iii) Since on each day of 1969 X owned 100 percent of the        100%
   stock of Y while Y owned 100 percent of the stock in Z,
   the percentage determined under subparagraph (2)(iii) of
   this paragraph equals....................................
Multiplied by:
  (iv) Since X and Z each use the same taxable year, the            100%
   percentage determined under subparagraph (2)(iv) of this
   paragraph equals.........................................
                                                 -------------
      Total.................................................         $20
 

    Example 2. Assume the same facts as in example (1), except that 
Brown sold his stock in X on October 19, 1969. Brown's tentative

[[Page 396]]

ratable share of the earnings and profits accumulated by Z attributable 
to the 1969 calendar year of X is $16 per share, computed as follows:

  (i) The amount determined in subdivision (i) of example            $20
   (1)......................................................
Multiplied by:
  (ii) The number of days in the period during 1969 Brown            80%
   (by reason of owning directly his stock in X) owned,
   within the meaning of section 958(a)(2), his stock in Z
   while Z was a controlled foreign corporation (292),
   divided by the number of days in 1969 (365), equals......
Multiplied by:
  (iii) The percentage determined in subdivision............
    (iii) of example (1)....................................        100%
Multiplied by:
  (iv) The percentage determined in subdivision.............
    (iv) of example (1).....................................        100%
                                                 -------------
      Total.................................................         $16
 

    Example 3. Assume the same facts as in examples (1) and (2), except 
that on each day during 1969 Y owned (within the meaning of section 
958(a)(2)) 81 of the 100 shares of Z's outstanding stock. Brown's 
tentative ratable share of the earnings and profits accumulated by Z 
attributable to the 1969 calendar year of X is $12.96 per share, 
computed as follows:

  (i) The amount determined in subdivision (i) of example            $20
   (1)......................................................
Multiplied by:
  (ii) The percentage determined in subdivision (ii) of              80%
   example (2)..............................................
Multiplied by:
  (iii) The average number of shares in Z which were owned           81%
   (within the meaning of section 958(a)) by X during the
   applicable period (81), divided by the total number of
   shares in Z during such period (100).....................
Multiplied by:
  (iv) The percentage determined in subdivision (iv) of             100%
   example (1)..............................................
                                                 =============
      Total.................................................      $12.96
 


The result would be the same if X owned (within the meaning of section 
958(a)(2)) 81 percent of the stock in Y while Y so owned 100 percent of 
the stock in X, or if X so owned 90 percent of the stock in Y while Y so 
owned 90 percent of the stock in Z.
    Example 4. Assume the same facts as in example (3), except that Z 
Corporation uses a fiscal year ending June 30 as its taxable year. 
Assume further that Z's earnings and profits accumulated for its fiscal 
year ending June 30, 1969, and for its fiscal year ending June 30, 1970, 
are $3,000 and $2,000, respectively. Brown's tentative ratable share of 
the earnings and profits accumulated by Z attributable to the 1969 
calendar year of X is $16.17 per share, computed as follows:

 
                                                     In respect of Z's
                                                    taxable year ending
 
                                                   June 30,    June 30,
                                                     1969        1970
 
  (i) Z's earnings and profits, divided by the
   number of shares in X deemed outstanding on
   each day of 1969:
      $3,000/100................................         $30
      $2,000/100................................  ..........         $20
Multiplied by:
  (ii) The percentage determined in subdivision          80%         80%
   (ii) of example (2)..........................
Multiplied by:
  (iii) The percentage determined in subdivision         81%         81%
   (iii) of example (3).........................
Multiplied by:
  (iv) Number of days in Z's taxable year which
   fall within 1969, divided by total number of
   days in Z's taxable year:
      181/365...................................       49.6%
      184/365...................................  ..........       50.4%
                                                 -----------------------
        Totals..................................       $9.64       $6.53
  (v) Sum of tentative ratable shares of Z
   attributable to X's 1969 calendar year:
    For Z's taxable year ending
      June 30, 1969.............................  ..........       $9.64
      June 30, 1970.............................  ..........       $6.53
                                                 -------------
        Sum.....................................  ..........      $16.17
 

    (4) Deficit in tentative ratable share of lower tier corporation 
attributable to a taxable year of first tier corporation. (i) If there 
is a deficit in the earnings and profits accumulated for a taxable year 
of a lower tier corporation beginning after December 31, 1962 (computed 
under paragraph (b) of this section), the person's tentative ratable 
share for such taxable year of such lower tier corporation attributable 
to a taxable year of a first tier corporation shall not be computed 
under subparagraph (2) of this paragraph but shall be an amount equal to 
the sum of the partial tentative ratable shares computed under 
subdivisions (ii) and (iii) of this subparagraph.
    (ii) The partial tentative ratable share under this subdivision is 
computed in 2 steps. First, compute (under paragraph (b) of this section 
without regard to the adjustments for distributions under subparagraph 
(3) thereof) the deficit (if any) in earnings and profits accumulated 
for such taxable year of such lower tier corporation. Second, compute 
the partial tentative ratable

[[Page 397]]

share in the same manner as such tentative ratable share would be 
computed under subparagraph (2) of this paragraph if such deficit were 
the amount referred to in subparagraph (2)(i)(a) of this paragraph.
    (iii) The partial tentative ratable share under this subdivision is 
computed in 2 steps. First, compute and treat as a deficit the portion 
of the adjustment for distributions under paragraph (b)(3) of this 
section for such taxable year which is attributable under paragraph 
(d)(4) of this section to distributions of earnings and profits 
accumulated during prior taxable years of the lower tier corporation 
beginning after December 31, 1962, during the period or periods such 
lower tier corporation was a controlled foreign corporation and the 
percentage of the stock of such lower tier corporation (which the person 
owns within the meaning of section 958(a)(2)) was owned within the 
meaning of section 958(a) by a United States shareholder (as defined in 
section 951(b) and the regulations thereunder). Second, compute the 
partial tentative ratable share in the same manner as such tentative 
ratable share would be computed under subparagraph (2) of this paragraph 
if (a) such deficit were the amount referred to in subparagraph 
(2)(i)(a) of this paragraph, and (b) such lower tier corporation were a 
controlled foreign corporation on each day of such taxable year.
    (5) Ratable share of lower tier corporation attributable to a first 
tier corporation. (i) If the provisions of this paragraph apply in 
respect of a share of stock in a first tier corporation, a person's 
ratable share of the earnings and profits accumulated by the lower tier 
corporation attributable to a taxable year of the first tier corporation 
shall be an amount equal to the tentative ratable share computed under 
subparagraph (2) or (4) of this paragraph, adjusted in the manner 
prescribed in this subparagraph.
    (ii) If the first tier corporation and the lower tier corporation 
use the same taxable year, then in respect of a share (or block) of 
stock in the first tier corporation the person's tentative ratable share 
of the accumulated earnings and profits of the lower tier corporation 
attributable to the taxable year of the first tier corporation (computed 
under subparagraph (2) of this paragraph) shall be reduced (but not 
below zero) by the excess of (a) the amount, if any, included (in 
respect of such lower tier corporation for its taxable year) under 
section 951 in the gross income of such person or (during the period 
such stock was considered to be held by such person by reason of the 
application of section 1223) in the gross income of any other person who 
held such stock, over (b) the portion of such amount which, in any 
taxable year of such person or such other person, resulted in an 
exclusion from the gross income of such person or such other person of 
an amount under section 959(a)(1). For an illustration of the principles 
in the preceding sentence, see the example in paragraph (e)(2)(ii) of 
this section.
    (iii) If the first tier corporation and the lower tier corporation 
do not use the same taxable year, and if there would be an excess 
computed under subdivision (ii) of this subparagraph in respect of a 
taxable year of the lower tier corporation (were the taxable years of 
such corporations the same), then such person's tentative ratable share 
of the accumulated earnings and profits for a taxable year of the lower 
tier corporation attributable to such taxable year of the first tier 
corporation shall be reduced (but not below zero) by an amount which 
bears the same ratio to (a) such excess, as (b) the number of days in 
the taxable year of the lower tier corporation which fall within the 
taxable year of the first tier corporation, bears to (c) the total 
number of days in the taxable year of the first tier corporation.
    (iv) If the first tier corporation and the lower tier corporation 
use the same taxable year, then in respect of a share (or block) of 
stock in the first tier corporation the person's tentative ratable share 
of the accumulated earnings and profits of the lower tier corporation 
attributable to the taxable year of the first tier corporation (computed 
under subparagraph (2) of this paragraph) shall be reduced (but not 
below zero) by the amount, if any, included (in respect of such 
corporation for such taxable year) under section 551, by reason of the 
application of section 555(b), in the gross income of such person or 
(during

[[Page 398]]

the period such share (or block) was considered to be held by such 
person by reason of the application of section 1223) in the gross income 
of any other person who held such share (or block).
    (v) If the first tier corporation and the lower tier corporation do 
not use the same taxable year, and if there would be a reduction in the 
person's tentative ratable share of the accumulated earnings and profits 
of the lower tier corporation attributable to the taxable year of the 
first tier corporation by an amount computed under subdivision (iv) of 
this subparagraph in respect of a taxable year of the lower tier 
corporation (were the taxable years of such corporations the same), then 
such person's tentative ratable share of the accumulated earnings and 
profits for a taxable year of the lower tier corporation attributable to 
such taxable year of the first tier corporation shall be reduced by an 
amount which bears the same ratio to (a) such amount, as (b) the number 
of days in the taxable year of the lower tier corporation which fall 
within the taxable year of the first tier corporation, bears to (c) the 
total number of days in the taxable year of the first tier corporation.
    (vi) If the lower tier corporation was a less developed country 
corporation as defined in section 902(d) for a taxable year of the 
corporation, see paragraph (g) of this section.
    (g) Lower tier corporation a less developed country corporation--(1) 
General. If the lower tier corporation was a less developed country 
corporation as defined in section 902(d) for a taxable year of such 
corporation, and if the person who sold or exchanged a share (or block) 
of stock in the first tier corporation satisfies on the date of such 
sale or exchange:
    (i) The requirements of paragraph (a)(1) of Sec. 1.1248-5 with 
respect to such stock, and
    (ii) The requirements of paragraph (d)(1) of Sec. 1.1248-5 with 
respect to any stock of the lower tier corporation which such person, by 
reason of his direct ownership of such stock in the first tier 
corporation, owned within the meaning of section 958(a)(2),

Then such person's ratable share (or a deficit in such ratable share) 
for such taxable year of the lower tier corporation attributable to a 
taxable year of the first tier corporation (determined without regard to 
this paragraph) shall be reduced by an amount computed by multiplying 
such ratable share (so determined without regard to this paragraph) by 
the percentage computed under either subparagraph (2) or (4) of this 
paragraph, whichever is applicable.
    (2) Percentage for second tier corporation. For purposes of 
subparagraph (1) of this paragraph, if stock of a lower tier corporation 
(hereinafter referred to as a second tier corporation) is owned directly 
by the first tier corporation on the date of the sale or exchange 
referred to in such subparagraph (1), the percentage under this 
subparagraph shall be computed by dividing (i) the number of shares of 
stock of the second tier corporation which the first tier corporation 
has owned directly for an uninterrupted 10-year period ending on such 
date, by (ii) the total number of shares of the stock of such second 
tier corporation owned directly by such first tier corporation on such 
date.
    (3) Examples. The provisions of subparagraph (2) of this paragraph 
may be illustrated by the following examples:

    Example 1. On January 1, 1966, Smith, a United States person, 
recognizes gain upon the sale of one share of the only class of stock of 
F Corporation, which he has owned continuously since 1955. He includes a 
portion of the gain in his gross income as a dividend under section 
1248(a). On January 1, 1966, F owns directly 60 shares of the 100 
outstanding shares of the only class of stock of G Corporation, which F 
acquired in 1955 and owned continuously until such sale. F uses a 
taxable year ending June 30, and G uses the calendar year as the taxable 
year. For 1964, G was a less developed country corporation, and on each 
day of 1964 G was a controlled foreign corporation. Smith's ratable 
share for G's taxable year ending December 31, 1964, attributable to F's 
taxable year ending June 30, 1965 (determined without regard to this 
paragraph) is $6.00. Since the percentage computed under subparagraph 
(2) of this paragraph is 100 percent (60 shares divided by 60 shares), 
Smith's ratable share for G's taxable year ending December 31, 1964, 
attributable to F's taxable year ending June 30, 1965 (after the 
application of subparagraph (2) of this paragraph) is zero (that is, 
$6.00 reduced by 100 percent of $6.00).
    Example 2. Assume the same facts as in example (1) except that of 
the 60 shares of G

[[Page 399]]

Corporation which F Corporation owned on January 1, 1966, 20 shares were 
acquired in 1961. The percentage computed under subparagraph (2) of this 
paragraph is 66\2/3\ percent (40 shares divided by 60 shares). 
Accordingly, Smith's ratable share for G's taxable year ending December 
31, 1964, attributable to F's taxable year ending June 30, 1965 (after 
the application of subparagraph (2) or this paragraph) is $2.00 (that 
is, $6.00 reduced by 66\2/3\ percent of $6.00).

    (4) Percentage for lower tier corporations other than second tier 
corporation. For purposes of subparagraph (1) of this paragraph, if 
stock of a lower tier corporation (other than a second tier corporation) 
is owned within the meaning of section 958(a)(2) by the first tier 
corporation on the date of the sale or exchange referred to in such 
subparagraph (1), the percentage under this subparagraph shall be 
computed in the following manner:
    (i) First, determine the percentage for the second tier corporation 
in accordance with subparagraph (2) of this paragraph.
    (ii) Second, determine a partial percentage for each other lower 
tier corporation in the same manner as the percentage for the second 
tier corporation is determined. Thus, for example, the partial 
percentage for a third tier corporation is determined by dividing (a) 
the number of shares of stock of the third tier corporation which the 
second tier corporation has owned directly for an uninterrupted 10-year 
period ending on the date of the sale or exchange referred to in 
subparagraph (1) of this paragraph, by (b) the total number of shares of 
stock of such third tier corporation owned directly by such second tier 
corporation on such date.
    (iii) Third, the percentage for a third tier corporation is the 
percentage for the second tier corporation multiplied by the partial 
percentage for the third tier corporation. The percentage for a fourth 
tier corporation is the percentage for the third tier corporation (as 
determined in the preceding sentence) multiplied by the partial 
percentage for the fourth tier corporation. In a similar manner, the 
percentage for any other lower tier corporation may be determined.
    (5) Example. The application of subparagraph (4) of this paragraph 
may be illustrated by the following example:

    Example: On January 1, 1967, Brown, a United States person 
recognizes gain upon the sale of one share of the only class of stock of 
W Corporation, which he has owned continuously since 1955. He includes a 
portion of the gain in his gross income as a dividend under section 
1248(a). W is the first tier corporation of a chain of foreign 
corporations W, X, Y, and Z. W and Z each use the calendar year as the 
taxable year. For 1964, Z was a less developed country corporation and 
on each day of 1964 Z was a controlled foreign corporation. Additional 
facts are set forth in the table below:

----------------------------------------------------------------------------------------------------------------
                                                                      Shares directly owned  by
                                                                          preceding tier--
                                                                   ------------------------------   Column (2)
                                                                          For                       divided by
                         Corporation--(1)                            uninterrupted                  column (3)
                                                                     10-year period   On Jan. 1,  (percent)--(4)
                                                                     ending Jan. 1,   1967--(3)
                                                                       1967--(2)
----------------------------------------------------------------------------------------------------------------
X.................................................................               40           60       66\2/3\
Y.................................................................               30           40            75
Z.................................................................               20           30       66\2/3\
----------------------------------------------------------------------------------------------------------------


For 1964, the percentage referred to in subparagraph (4) of this 
paragraph for Z is 33\1/3\ percent (66\2/3\%x75%x66\2/3\%).

    (6) Special rule. For purposes of applying the provisions of this 
paragraph, a lower tier corporation may be treated as a second tier 
corporation with respect to any of its stock which is owned directly by 
a first tier corporation whereas such lower tier corporation may be 
treated as a lower tier corporation other than a second tier corporation 
with respect to other stock in such lower tier corporation which is 
owned (within the meaning of section 958(a)(2)) by such first tier 
corporation. Thus, for example, if corporations X, Y, and Z are foreign 
corporations, X is a first tier corporation owning directly 100 percent 
of the stock of Y and 40 percent of the stock of Z, and in addition Y 
owns directly 60 percent of the stock of Z, then the 40 percent of the Z 
stock (which X owns directly) is considered to be stock in a second tier 
corporation and the 60 percent of the Z stock (which Y owns directly and 
which X is considered to own within the meaning of section 958(a)(2)) is 
considered to be stock in a third tier corporation.

[T.D. 6779, 29 FR 18133, Dec. 22, 1964, as amended by T.D. 7293, 38 FR 
32803, Nov. 28, 1973; T.D. 7545, 43 FR 19652, May 8, 1978]

[[Page 400]]



Sec. 1.1248-4  Limitation on tax applicable to individuals.

    (a) General rule--(1) Limitation on tax. Under section 1248(b), if 
during a taxable year an individual sells or exchanges stock in a 
foreign corporation, then in respect of the stock the increase in the 
individual's income tax liability for such taxable year which is 
attributable (under paragraph (b) of this section) to the amount 
included in his gross income as a dividend under section 1248(a) shall 
not be greater than an amount equal to the sum of:
    (i) The excess, computed under paragraph (c) of this section in 
respect of the stock of the United States taxes which would have been 
paid by the corporation over the taxes (including United States taxes) 
actually paid by the corporation, plus.
    (ii) An amount equal to the increase in the individual's income tax 
liability which would be attributable to the inclusion in his gross 
income for such taxable year, as long-term capital gain, of an amount 
equal to the excess of (a) the amount included in the individual's gross 
income as a dividend under section 1248(a) in respect of such stock, 
over (b) the excess referred to in subdivision (i) of this subparagraph.
    (2) Share or block. In general, the limitation on tax attributable 
(under paragraph (b) of this section) to the amount included in an 
individual's gross income as a dividend under section 1248(a) shall be 
determined separately for each share of stock sold or exchanged. 
However, such determination may be made in respect of a block of stock 
if earnings and profits attributable to the block are computed under 
Sec. 1.1248-2 or 1.1248-3. See paragraph (b) of Sec. 1.1248-2 and 
paragraph (a)(5) of Sec. 1.1248-3.
    (3) Application of limitation. The provisions of subparagraph (1) of 
this paragraph shall not apply unless the individual establishes:
    (i) In the manner prescribed in Sec. 1.1248-7, the amount of the 
earnings and profits of the corporation attributable under paragraph 
(a)(1) of Sec. 1.1248-2 or under paragraph (a)(1) of Sec. 1.1248-3, 
whichever is applicable, to the stock, and
    (ii) The amount equal to the sum described in subparagraph (1) of 
this paragraph, computed in accordance with the provisions of this 
section.
    (4) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example: On December 31, 1966, Smith, a United States person, sells 
a share of stock of X Corporation which he has owned continuously since 
December 31, 1965, and includes $100 of the gain on the sale in his 
gross income as a dividend under section 1248(a). Both X and Smith use 
the calendar year as the taxable year. The increase in Smith's income 
tax liability for 1966 which is attributable (under paragraph (b) of 
this section) to the inclusion of the $100 in his gross income as a 
dividend is $70. X was a controlled foreign corporation on each day of 
1966. The excess computed under paragraph (c) of this section in respect 
of the share, of the United States taxes which X would have paid over 
the taxes (including United States taxes) actually paid by X is $49. 
Under section 1248(b), the limitation on the tax attributable to the 
$100 included by Smith in his gross income as a dividend under section 
1248(a) is $61.75, computed as follows:

(i) Excess, computed under paragraph (c) of this  ..........      $49.00
 section, of United States taxes which X
 Corporation would have paid in 1966 over the
 taxes actually paid by X in 1966...............
(ii) The amount determined under subparagraph
 (1)(ii) of this paragraph:
  The amount Smith included in his gross income      $100.00
   as a dividend under section 1248(a)..........
  Less the excess referred to in subdivision (i)       49.00
   of this example..............................
                                                 ------------
  Difference....................................       51.00
Increase in Smith's tax liability attributable    ..........       12.75
 to including $51 in his gross income as long-
 term capital gain (25 percent of $51)..........
                                                             -----------
(iii) Limitation on tax.....................................       61.75
 

    (b) Tax attributable to amount treated as dividend--(1) General. For 
purposes of paragraph (a)(1) of this section, in respect of a share (or 
block) of stock in a foreign corporation sold or exchanged by an 
individual during a taxable year, the tax attributable to the amount 
included in his gross income as a dividend under section 1248(a) shall 
be the amount which bears the same ratio to (i) the excess of (a) his 
income tax liability for the taxable year determined without regard to 
section 1248(b) over (b) such tax liability determined as if the portion 
of the total gain recognized

[[Page 401]]

during the taxable year which is treated as a dividend under section 
1248(a) had not been recognized, as (ii) the amount included as a 
dividend under section 1248(a) in respect of the share (or block), bears 
to (iii) the total amount included as a dividend under section 1248(a) 
in the individual's gross income for such taxable year.
    (2) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. (i) During 1963, Brown, an unmarried United States 
person, sells a block of stock in a controlled foreign corporation. On 
the sale, he recognizes $22,000 gain, of which $18,000 is treated as a 
dividend under section 1248(a) and $4,000 as long-term capital gain. 
Brown computes his income tax liability for his taxable year ending 
December 31, 1963, under section 1201 (relating to alternative tax) in 
accordance with the additional facts assumed in the following table:

------------------------------------------------------------------------
                                                          Computation of
                                                            income tax
                                          Computation of   liability as
                                            income tax      if the gain
                                             liability     treated as a
                                          without regard   divided under
                                            to section        section
                                              1248(b)       1248(a) had
                                                             not been
                                                            recognized
------------------------------------------------------------------------
Income from salary......................        $300,000        $300,000
Long-term capital gain resulting from              2,000           2,000
 sale of stock, less deduction for
 capital gains under section 1202
 ($4,000 less $2,000)...................
Amount treated as a dividend under                18,000               0
 section 1248(a)........................
                                         -------------------------------
Adjusted gross income...................         320,000         302,000
Charitable contribution of $100,000 to          (96,000)        (90,600)
 church (limited under section 170(b) to
 30 percent of adjusted gross income)...
Other itemized deductions and personal           (7,700)         (7,700)
 exemption..............................
                                         -------------------------------
Taxable income..........................         216,300         203,700
Less 50 percent of $4,000...............           2,000           2,000
                                         ===============================
Amount subject to partial tax under              214,300         201,700
 section 1201(b)(1).....................
                                         ===============================
Partial tax.............................         169,833         158,367
25 percent of $4,000....................           1,000           1,000
                                         -------------------------------
Tax liability...........................         170,833         159,367
------------------------------------------------------------------------

    (ii) The tax attributable to the $18,000 treated as a dividend under 
section 1248(a) is $11,466 ($170,833 minus $159,367).
    Example 2. Assume the same facts as in example (1) except that the 
$18,000 treated as a dividend under section 1248(a) is attributable to 
the sale of a block of stock in X Corporation and a block of stock in Y 
Corporation. Assume further that $10,000 of the gain on the block of X 
stock was treated as a dividend and that $8,000 of the gain on the block 
of Y stock was treated as a dividend. Thus, the tax attributable to the 
amount treated as a dividend in respect of the block of X stock is 
$6,370 ($10,000/$18,000 of $11,466) and the amount in respect of the 
block of Y stock is $5,096 ($8,000/$18,000 of $11,466). The result would 
be the same if both blocks of stock were blocks of stock in the same 
corporation.

    (c) Excess (of United States taxes which would have been paid over 
taxes actually paid) attributable to a share (or block)--(1) General. 
For purposes of paragraph (a)(1)(i) of this section:
    (i) The term taxes means income, war profits, or excess profits 
taxes, and
    (ii) The excess (and the portion of such excess attributable to an 
individual's share or block of stock in a foreign corporation) of the 
United States taxes which would have been paid by the corporation over 
the taxes (including United States taxes) actually paid by the 
corporation, for the period or periods the stock was held (or was 
considered to be held by reason of the application of section 1223) by 
the individual in taxable years of the corporation beginning after 
December 31, 1962, while the corporation was a controlled foreign 
corporation, shall be computed in accordance with the steps set forth in 
subparagraphs (2), (3), and (4) of this paragraph.
    (2) Step 1. For each taxable year of the corporation beginning after 
December 31, 1962, in respect of the individual's share (or block) of 
such stock (i) the taxable income of the corporation shall be computed 
in the manner prescribed in paragraph (d) of this section, and (ii) the 
excess (and the portion of such excess attributable to the stock of the 
United States taxes which would have been paid by the corporation on 
such taxable income over the taxes (including United States taxes) 
actually paid by the corporation shall be computed in the manner 
prescribed in paragraph (e) of this section.

[[Page 402]]

    (3) Step 2. If during such taxable year the corporation is a first 
tier corporation to which paragraph (f) of this section applies, (i) the 
excess (and the portion of such excess attributable to the individual's 
share, or block, of stock in the first tier corporation) of the United 
States taxes which would have been paid by any lower tier corporation 
over the taxes (including United States taxes) actually paid by such 
lower tier corporation shall be computed under paragraph (f) of this 
section, and (ii) such portion shall be added to the portion of the 
excess attributable to the individual's share (or block) of such stock 
as determined in step 1 for such taxable year.
    (4) Step 3. The excess, in respect of the individual's share (or 
block), of the United States taxes which would have been paid by the 
corporation over the taxes actually paid by the corporation shall be the 
sum of the portions computed for each such taxable year in the manner 
prescribed in steps 1 and 2.
    (d) Taxable income. For purposes of paragraph (c)(2)(i) of this 
section, taxable income shall be computed in respect of an individual's 
share (or block) in accordance with the following rules:
    (1) Application of principles of Sec. 1.952-2. Except as otherwise 
provided in this paragraph, the principles of paragraphs (a)(1), (b)(1), 
and (c) of Sec. 1.952-2 (other than subparagraphs (2)(iii)(b), (2)(v), 
(5)(i), and (6) of such paragraph (c)) shall apply.
    (2) Effect of elections. In respect of a taxable year of a foreign 
corporation, no effect shall be given to an election or an adoption of 
accounting method unless for such taxable year effect is given to such 
election or adoption of accounting method under paragraph (d)(1) of 
Sec. 1.1248-2 or paragraph (b)(1) of Sec. 1.1248-3, whichever is 
applicable.
    (3) The deductions for certain dividends received provided in 
sections 243, 244, and 245 shall not be allowed.
    (4) Deduction for taxes. In computing the amount of the deduction 
allowed under section 164, there shall be excluded income, war profits, 
or excess profits taxes paid or accrued which are imposed by the 
authority of any foreign country or possession of the United States.
    (5) Capital loss carryover. In determining the amount of a net 
capital loss to be carried forward under section 1212 to the taxable 
year:
    (i) No net capital loss shall be carried forward from a taxable year 
beginning before January 1, 1963.
    (ii) The portion of a net capital loss or a capital gain net income 
(net capital gain for taxable years beginning before January 1, 1977) 
for a taxable year beginning after December 31, 1962, which shall be 
taken into account shall be the amount of such loss or gain (as the case 
may be), multiplied by the percentage which (a) the number of days in 
such taxable year during which the individual held (or was considered to 
have held by reason of the application of section 1223) the share (or 
block) of stock sold or exchanged while the corporation was a controlled 
foreign corporation, bears to (b) the total number of days in such 
taxable year.
    (iii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. Corporation X is a foreign corporation which was created 
on January 1, 1963, and which uses the calendar year as its taxable 
year. X was a controlled foreign corporation on each day of the period 
March 15, 1963, through December 31, 1965, but was not a controlled 
foreign corporation on any day during the period January 1, 1963, 
through March 14, 1963. On December 31, 1965, Smith, a United States 
person, sells a share of X stock which he has owned continuously since 
January 1, 1963. A portion of the gain recognized on the sale is 
includible in Smith's gross income as a dividend under section 1248(a). 
X had a net capital loss (determined without regard to subchapter N, 
chapter 1 of the Code) of $200 for 1963. Since, however, X was a 
controlled foreign corporation for only 292 days in 1963, for purposes 
of determining the net capital loss carryover to 1964 the portion of the 
net capital loss of $200 for 1963 which Smith takes into account under 
subdivision (ii) of this subparagraph is $160 (292/365 of $200), and, 
accordingly, the amount of the net capital loss carryover to 1964 is 
$160.
    Example 2. Assume the same facts as in example (1), except that X 
was not a controlled foreign corporation on any day of the period May 
26, 1964, through June 30, 1965. Assume further that X had a net capital 
gain (capital gain net income for taxable years beginning after December 
31, 1976) (determined without regard to subchapter N, chapter 1, of the 
Code) of $160 for 1964. In computing X's taxable income for 1964 under 
this paragraph, Smith applies the net capital loss carryover

[[Page 403]]

of $160 from 1963 to reduce the net capital gain of $160 for 1964 to 
zero. Since, however, X was a controlled foreign corporation for only 
146 days in 1964, for purposes of computing the portion of the 1963 
capital loss of $160 which is a net capital loss carryover to 1965, the 
portion of the 1964 capital gain which Smith takes into account under 
subdivision (ii) of this subparagraph is $63.83 (\146/366\ of $160). 
Thus, the net capital loss carryover to 1965 is $96.17 ($160 minus 
$63.83).

    (6) Net operating loss deduction. (i) The individual shall reduce 
the taxable income (computed under subparagraphs (1) through (5) of this 
paragraph) of the corporation for the taxable year by the amount of the 
net operating loss deduction of the corporation computed under section 
172, as modified in the manner prescribed in this subparagraph.
    (ii) The rules of subparagraphs (1) through (5) of this paragraph 
shall apply for purposes of determining the excess referred to in 
section 172(c) and the taxable income referred to in section 172(b)(2).
    (iii) A net operating loss shall not be carried forward from, or 
carried back to, a taxable year beginning before January 1, 1963.
    (iv) The portion of a net operating loss incurred, or of taxable 
income earned, in a taxable year beginning after December 31, 1962, 
which shall be taken into account under section 172(b)(2) shall be the 
amount of such loss or income (as the case may be), multiplied by the 
percentage which (a) the number of days in such taxable year during 
which the individual held (or was considered to have held by reason of 
the application of section 1223) the share (or block) of stock sold or 
exchanged while the corporation was a controlled foreign corporation, 
bears to (b) the total number of days in such taxable year.
    (v) For illustrations of the principles of this subparagraph, see 
the examples relating to net capital loss carryovers in subparagraph 
(5)(iii) of this paragraph.
    (7) Adjustment for amount previously included in gross income of 
United States shareholders. In respect of the individual's share (or 
block) of stock sold or exchanged, the taxable income of the corporation 
for the taxable year (determined without regard to this subparagraph and 
subparagraph (8) of this paragraph) shall be reduced (but not below 
zero) by an amount equal to the sum of the amounts included under 
section 951 in the gross income of United States shareholders (as 
defined in section 951(b)) of the corporation for the taxable year.
    (8) Adjustment for distributions. In respect of the individual's 
share (or block) of stock sold or exchanged, the taxable income of the 
corporation for the taxable year (determined without regard to this 
subparagraph) shall be reduced (but not below zero) by the amount of the 
distributions (other than in redemption of stock under section 302(a) or 
303) made by the corporation out of earnings and profits of such taxable 
year (within the meaning of section 316(a)(2)). For purposes of the 
preceding sentence, distributions shall be taken into account only to 
the extent not excluded from the gross income of the United States 
shareholders of the corporation under section 959.
    (e) Excess attributable to a share (or block) of stock--(1) Excess 
of United States taxes which would have been paid over taxes actually 
paid. For purposes of paragraph (c)(2)(ii) of this section, in respect 
of a taxable year of a foreign corporation, the portion of the excess 
under this subparagraph which is attributable to an individual's share 
(or block) of such stock shall be an amount equal to:
    (i) The excess (if any) of (a) the United States taxes which would 
have been paid by the corporation on its taxable income (computed under 
paragraph (d) of this section) for the taxable year had it been taxed as 
a domestic corporation under chapter 1 of the Code (but without regard 
to subchapters F, G, H, L, M, N, S, and T thereof) for such taxable 
year, over (b) the income, war profits, or excess profits taxes actually 
paid by the corporation during such taxable year (including such taxes 
paid to the United States),
    (ii) Multiplied by the percentage that (a) the number of days in 
such taxable year of the corporation during the period or periods the 
share (or block) was held (or was considered as held by reason of the 
application of section 1223) by the individual while the corporation

[[Page 404]]

was a controlled foreign corporation, bears to (b) the total number of 
days in such taxable year,
    (iii) If the computation is made in respect of a block, multiplied 
by the number of shares in the block, and
    (iv) Divided by the number of shares in the corporation outstanding, 
or deemed under paragraph (c)(2) of Sec. 1.1248-3 to be outstanding, on 
each day of such taxable year.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example: (i) Jones, a United States person, owns on each day of 1963 
10 shares of the 100 shares of the only class of outstanding stock of X 
corporation. He sells one of such shares on December 31, 1963. X 
corporation is a controlled foreign corporation on each day of 1963 and 
Jones and X each use the calendar year as the taxable year. For 1963, 
the excess of the United States taxes which would have been paid by X 
had it been taxable as a domestic corporation over the taxes (including 
United States taxes) actually paid by X is $23,500, computed as follows:

Amount subject to partial tax under section 1201(a)(1), as
 computed by Jones:
  Taxable income............................................    $300,000
  Less excess of net long-term capital gain over net short-      100,000
   term capital loss........................................
                                                 -------------
    Amount subject to partial tax...........................     200,000
                                                 -------------
Excess determined under subparagraph (1)(i) of
 this paragraph:
  30 percentx$25,000............................      $7,500
  52 percentx$175,000...........................      91,000
                                                 ------------
  Partial tax...............................................      98,500
  25 percentx$100,000.......................................      25,000
                                                 -------------
    United States taxes X would have paid (alternative tax       123,500
     computed under section 1201(a))........................
Less income taxes X actually paid to:
  United States.................................     $10,000
  Foreign countries.............................      90,000
                                                 ------------
    Total...................................................    $100,000
                                                 -------------
    Excess..................................................      23,500
Multiplied by:
  Percentage determined under subparagraph (1)(ii) of this
   paragraph:
    Since on each day of 1963, Jones held the share of X            100%
     stock while X was a controlled foreign corporation, the
     percentage equals......................................
                                                 -------------
    Total...................................................     $23,500
 

    (ii) The portion of the excess determined in subdivision (i) of this 
example which is attributable to the share held by Jones is $235, that 
is, the amount of such excess ($23,500), divided by the number of shares 
of X deemed to be outstanding on each day of 1963 (100).

    (3) More than one class of stock. If a foreign corporation for a 
taxable year has more than one class of stock outstanding, then before 
applying subparagraph (1) of this paragraph the excess (if any) which 
would be determined under subparagraph (1)(i) of this paragraph shall be 
allocated to each class of stock in accordance with the principles of 
paragraph (e) (2) and (3) of Sec. 1.951-1, applied as if the 
corporation were a controlled foreign corporation on each day of such 
taxable year.
    (f) Subsidiaries of foreign corporations--(1) Excess for lower tier 
corporation attributable to taxable year of first tier corporation. For 
purposes of paragraph (c)(3) of this section, if the provisions of 
paragraph (a)(3) of Sec. 1.1248-2 or paragraph (f) of Sec. 1.1248-3 
apply in the case of the sale or exchange by an individual of a share 
(or block) of stock in a first tier corporation, then in respect of a 
taxable year of a lower tier corporation (beginning after December 31, 
1962) which includes at least one day which falls within a taxable year 
of the first tier corporation (beginning after December 31, 1962), the 
portion of the excess under this subparagraph attributable to the share 
shall be an amount equal to:
    (i) The excess (if any) of (a) the United States taxes which would 
have been paid by the lower tier corporation on its taxable income 
(computed under paragraph (g) of this section) for such taxable year of 
the lower tier corporation had it been taxed as a domestic corporatin 
under chapter 1 of the Code (but without regard to subchapters F, G, H, 
L, M, N, and T thereof) for such taxable year of the lower tier 
corporation, over (b) the income, war profits, or excess profits taxes 
actually paid by the lower tier corporation during such taxable year 
(including such taxes paid to the United States),
    (ii) Multiplied by each of the percentages described under paragraph 
(f)(2)(ii), (iii), and (iv) of Sec. 1.1248-3 in respect of such taxable 
year of the first tier corporation,
    (iii) If the computation is made in respect of a block of stock, 
multiplied by the number of shares in the block, and
    (iv) Divided by the number of shares in the first tier corporation 
outstanding, or deemed under paragraph

[[Page 405]]

(c)(2) of Sec. 1.1248-3 to be outstanding, on each day of such taxable 
year of the first tier corporation.
    (2) More than one class of stock. If a foreign corporation for a 
taxable year has more than one class of stock outstanding, then before 
applying subparagraph (1) of this paragraph the principles of paragraph 
(e)(3) of this section shall apply.
    (g) Taxable income of lower tier corporations--(1) General. For 
purposes of paragraph (f)(1)(i) of this section, in respect of the 
individual's share (or block) the taxable income of a lower tier 
corporation shall be computed in the manner provided in paragraph (d) of 
this section, except as provided in this paragraph.
    (2) Capital loss carryover. For purposes of subparagraph (1) of this 
paragraph, the provisions of paragraph (d)(5)(ii) of this section shall 
not apply. In determining the amount of a net capital loss to be carried 
forward under section 1212 to the taxable year of a lower tier 
corporation, the portion of a net capital loss or a capital gain net 
income (net capital gain for taxable years beginning before January 1, 
1977) for a taxable year of the lower tier corporation beginning after 
December 31, 1962, which shall be taken into account shall be the amount 
of such loss or gain (as the case may be), multiplied by the percentage 
which (i) the number of days in such taxable year during the period or 
periods the individual held (or was considered to have held by reason of 
the application of section 1223) the share (or block) of stock in the 
first tier corporation sold or exchanged while the first tier 
corporation owned (within the meaning of section 958 (a)) stock in the 
lower tier corporation while the lower tier corporation was a controlled 
foreign corporation, bears to (ii) the total number of days in such 
taxable year.
    (3) Net operating loss deduction. For purposes of subparagraph (1) 
of this paragraph, the provisions of paragraph (d)(6)(iv) of this 
section shall not apply. In determining the amount of the net operating 
loss deduction for a taxable year of a lower tier corporation, the 
portion of a net operating loss incurred, or of taxable income earned, 
in a taxable year of the lower tier corporation beginning after December 
31, 1962, which shall be taken into account under section 172(b)(2) 
shall be the amount of such loss or income (as the case may be) 
multiplied by the percentage described in subparagraph (2) of this 
paragraph for such taxable year.

[T.D. 6779, 29 FR 18139, Dec. 22, 1964, as amended by T.D. 7545, 43 FR 
19653, May 8, 1978; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec. 1.1248-5  Stock ownership requirements for less developed country 
corporations.

    (a) General rule--(1) Requirements. For purposes of paragraph (e)(4) 
of Sec. 1.1248-3, a United States person shall be considered as 
satisfying the requirements of this paragraph with respect to a share 
(or block) of stock of a foreign corporation if on the date he sells or 
exchanges such share (or block):
    (i) The 10-year stock ownership requirement of paragraph (b) of this 
section is met with respect to such share (or block), and
    (ii) In the case of a United States person which is a domestic 
corporation, the requirement of paragraph (c) of this section, if 
applicable, is met.
    (2) Ownership of stock. For purposes of this section:
    (i) The rules for determining ownership of stock prescribed by 
section 958 (a) and (b) shall apply.
    (ii) Stock owned by a United States person who is an individual, 
estate, or trust which was acquired by reason of the death of the 
predecessor in interest of such United States person shall be considered 
as owned by such United States persons during the period such stock was 
owned by such predecessor in interest, and during the period such stock 
was owned by any other predecessor in interest if between such United 
States person and such other predecessor in interest there was no 
transfer other than by reason of the death of an individual.
    (b) 10-year stock ownership requirement--(1) General. A United 
States person meets the 10-year stock ownership requirement with respect 
to a share (or block) of stock in a foreign corporation which he sells 
or exchanges only if the share (or block) was owned (under the rules of 
paragraph (a)(2) of this section) by such person for a continuous period

[[Page 406]]

of at least 10 years ending on the date of the sale or exchange. See the 
first sentence of section 1248(d)(3). Thus, for example, if Jones, a 
United States person, sells a share of stock in a foreign corporation on 
January 1, 1965, the 10-year stock ownership requirement is met with 
respect to a share only if the share was owned (under the rules of 
paragraph (a)(2) of this section) by Jones continuously from January 1, 
1955, to January 1, 1965. If a foreign corporation has not been in 
existence for at least 10 years on the date of the sale or exchange of 
the share, the 10-year stock ownership requirement cannot be met.
    (2) Special rule. For purposes of this paragraph, a United States 
person shall be considered to have owned stock during the period he was 
considered to have held the stock by reason of the application of 
section 1223.
    (c) Disqualification of domestic corporation as a result of changes 
in ownership of its stock--(1) General. (i) For purposes of paragraph 
(a)(1)(ii) of this section, the requirement of this paragraph must be 
met only if, on at least one day during the 10-year period ending on the 
date of the sale or exchange by a domestic corporation of a share of 
stock in a foreign corporation, one or more noncorporate United States 
shareholders (as defined in subdivision (iii) of this subparagraph) own 
more than 50 percent of the total combined voting power of all classes 
of stock entitled to vote of the domestic corporation.
    (ii) The requirement of this paragraph is that if one or more 
persons are noncorporate United States shareholders on the first such 
day (referred to in subdivision (i) of this subparagraph), such person 
or persons continue after such first day, at all times during the 
remainder of such 10-year period, to own in the aggregate more than 50 
percent of the total combined voting power of all classes of stock 
entitled to vote of the domestic corporation. For purposes of 
determining whether a domestic corporation meets the requirement of this 
paragraph, the stock owned by a United States person who is a 
noncorporate United States shareholder of a domestic corporation on such 
first day shall not be counted at any time after he ceases during such 
10-year period to be a noncorporate United States shareholder of such 
corporation.
    (iii) For purposes of this paragraph, the term noncorporate United 
States shareholder means, with respect to a domestic corporation, a 
United States person who is an individual, estate, or trust and who owns 
10 percent or more of the total combined voting power of all classes of 
stock of such domestic corporation.
    (iv) For purposes of this paragraph, the percentage of the total 
combined voting power of stock of a foreign corporation owned by a 
United States person shall be determined in accordance with the 
principles of section 951(b) and the regulations thereunder.
    (2) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. During the entire period beginning December 31, 1954, and 
ending December 31, 1964, domestic corporation N owns all the stock of 
controlled foreign corporation X, a less developed country corporation. 
On December 31, 1964, N recognizes gain upon the sale of all its X 
stock. A, B, and C, who are unrelated individuals, were the only United 
States persons owning, or considered as owning, 10 percent or more of 
the total combined voting power of all classes of stock entitled to vote 
of N at any time during the 10-year period December 31, 1954, through 
December 31, 1964. The percentages of the total combined voting power in 
N, which A, B, and C owned during such 10-year period, are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                  Dec. 31, 1954-   Apr. 2, 1957-   Oct. 2, 1959-
                             Owner                                 Apr. 1, 1957    Oct. 1, 1959    Dec. 31, 1964
                                                                    (Percent)        (Percent)       (Percent)
----------------------------------------------------------------------------------------------------------------
A..............................................................               20              20              20
B..............................................................                9              30              30
C..............................................................               30              15               9
----------------------------------------------------------------------------------------------------------------


Domestic corporation N does not meet the requirement of this paragraph 
with respect to the stock of controlled foreign corporation X for the 
following reasons:
    (i) April 2, 1957, is the first day (during the 10-year period 
ending on December 31, 1964, the date N sells the X stock) on which 
noncorporate United States shareholders of N own more than 50 percent of 
the total combined voting power in N, and thus the requirement of this 
paragraph must be met. See subparagraph (1)(i) of this paragraph. 
Although A, B, and C did own, in the aggregate, more than 50 percent of 
such voting power before April 2, 1957, the voting power owned

[[Page 407]]

by B is not counted because B was not a noncorporate United States 
shareholder of N before such date.
    (ii) Although C is a noncorporate United States shareholder on April 
2, 1957, C ceases to own 10 percent or more of the total combined voting 
power in N on October 2, 1959. Thus, after October 1, 1959, the N stock 
which C owns is not counted for purposes of determining whether the 
more-than-50-percent stock ownership test is met. See subparagraph 
(1)(ii) of this paragraph. Accordingly, after October 1, 1959, the 
requirement of this paragraph is not met.
    Example 2. Assume the same facts as in example (1), except that B's 
wife owns directly 5 percent of the total combined voting power in N 
from December 31, 1954, to December 31, 1964. On the basis of the 
assumed facts, N meets the requirement of this paragraph with respect to 
the stock of controlled foreign corporation X for the following reasons:
    (i) December 31, 1954, is the first day (of the 10-year period 
ending on the date N sells the X stock) on which noncorporate United 
States shareholders of N own more than 50 percent of the total combined 
voting power in N. B is a noncorporate United States shareholder on such 
date because he owns, and is considered as owning, 14 percent of the 
total combined voting power in N (9 percent directly, and, under section 
958(b), 5 percent constructively). Thus, on December 31, 1954, 
noncorporate United States shareholders A, B, and C own, in the 
aggregate, more than 50 percent of the total combined voting power in N.
    (ii) A, B, and C, the noncorporate United States shareholders of N 
on December 31, 1954, own, and are considered as owning, more than 50 
percent of the total voting power of N from December 31, 1954, to 
October 1, 1959. Since beginning on October 2, 1959, A owns 20 percent 
and B owns, and is considered as owning, 35 percent of the total 
combined voting power in N, A and B owns, and are considered as owning, 
more than 50 percent of the total combined voting power in N from 
October 2, 1959, to December 31, 1964. Therefore, the requirement of 
this paragraph is met.

    (d) Application of section to lower tier corporation--(1) General. 
For purposes of paragraph (g)(1)(ii) of Sec. 1.1248-3, a United States 
person satisfies the requirements of this subparagraph in respect of 
stock of a lower tier corporation which such person, by reason of his 
direct ownership of the share (or block) of the first tier corporation 
sold or exchanged, owned within the meaning of section 958(a)(2) on the 
date he sold or exchanged such share (or block), if on such date:
    (i) The 10-year stock ownership requirement of paragraph (b) of this 
section is met by such person with respect to any stock in the lower 
tier corporation which such person so owned, and
    (ii) In the case of a United States person which is a domestic 
corporation, the requirement of paragraph (c) of this section, if 
applicable, is met.
    (2) Special rule. For purposes of this paragraph, in applying 
paragraphs (b) and (c) of this section, the sale or exchange of a share 
(or block) of stock in a first tier corporation by a United States 
person shall be deemed to be the sale or exchange of any stock in a 
lower tier corporation which the person, by reason of his direct 
ownership of such share (or block) of the first tier corporation, owned 
within the meaning of section 958(a)(2) on the date he actually sold or 
exchanged such share (or block) in the first tier corporation.

[T.D. 6779, 29 FR 18142, Dec. 22, 1964]



Sec. 1.1248-6  Sale or exchange of stock in certain domestic 
corporations.

    (a) General rule. If a United States person recognizes gain upon the 
sale or exchange of a share (or block) of stock of a domestic 
corporation which was formed or availed of principally for the holding, 
directly or indirectly, of stock of one or more foreign corporations, 
and if the conditions of paragraph (a)(2) of Sec. 1.1248-1 would be met 
by such person in respect of the share (or block) if the domestic 
corporation were a foreign corporation, then section 1248 shall apply in 
respect of such gain in accordance with the rules provided in paragraph 
(b) of this section.
    (b) Application. (1) The gain referred to in paragraph (a) of this 
section shall be included in the gross income of the United States 
person as a dividend under section 1248(a) to the extent of the earnings 
and profits attributable under Sec. 1.1248-2 or Sec. 1.1248-3, 
whichever is applicable, to the share (or block), computed, however, in 
accordance with the following rules:
    (i) The domestic corporation shall be treated as if it were a first 
tier foreign corporation;
    (ii) If, after the application of subdivision (i) of this 
subparagraph, the provisions of paragraph (a)(3) of Sec. 1.1248-2 or 
paragraph (f) of Sec. 1.1248-3

[[Page 408]]

(as the case may be) would apply in respect of a foreign corporation the 
stock of which is owned (within the meaning of section 958(a)) by the 
domestic corporation treated as the first tier corporation, such foreign 
corporation shall be considered a lower tier corporation;
    (iii) Except to the extent provided in subdivision (iv) of this 
subparagraph, the earnings and profits of the domestic corporation 
treated as the first tier corporation accumulated for a taxable year, as 
computed under paragraph (d) of Sec. 1.1248-2 or paragraph (b) of Sec. 
1.1248-3 (as the case may be), shall be considered to be zero; and
    (iv) If, during a taxable year, a domestic corporation treated as 
the first tier corporation realizes gain upon the sale or exchange of 
stock in a foreign corporation, and solely by reason of the application 
of section 337 (relating to certain liquidations) the gain was not 
recognized, then the earnings and profits of such domestic corporation 
accumulated for the taxable year, as computed under paragraph (d) of 
Sec. 1.1248-2 or paragraph (b) of Sec. 1.1248-3 (as the case may be), 
shall be considered to be an amount equal to the portion of such gain 
realized during the taxable year which, if section 337 had not applied, 
would have been treated as a dividend under section 1248(a).
    (2) If the person selling or exchanging the stock in the domestic 
corporation is an individual, the limitation on tax attributable to the 
amount included in his gross income as a dividend under subparagraph (1) 
of this paragraph shall be determined, in accordance with the principles 
of paragraph (f) of Sec. 1.1248-4, by treating the domestic corporation 
as a first tier corporation.
    (3)(i) If the earnings and profits of the foreign corporation or 
corporations (or of the domestic corporation treated as a first tier 
corporation) to be taken into account under subparagraph (1) of this 
paragraph are not established in the manner provided in paragraph (a)(1) 
of Sec. 1.1248-7, all of the gain from the sale or exchange of the 
share (or block) of the domestic corporation shall be treated as a 
dividend.
    (ii) To the extent that the person does not establish, in the manner 
provided in paragraph (c) of Sec. 1.1248-7, the foreign taxes paid by 
such foreign corporation or corporations to be taken into account for 
purposes of computing the limitation on tax attributable to a share, 
such foreign taxes shall not be taken into account for purposes of such 
computation.
    (c) Corporation formed or availed of principally for holding stock 
of foreign corporations. Whether or not a domestic corporation is formed 
or availed of principally for the holding, directly or indirectly, of 
stock of one or more foreign corporations shall be determined on the 
basis of all the facts and circumstances of each particular case.

[T.D. 6779, 29 FR 18143, Dec. 22, 1964]



Sec. 1.1248-7  Taxpayer to establish earnings and profits and foreign 
taxes.

    (a) In general. (1) If a taxpayer sells or exchanges stock in a 
foreign corporation which was a controlled foreign corporation and the 
Commissioner determines that the taxpayer has not established the amount 
of the earnings and profits of the corporation attributable to the stock 
under Sec. 1.1248-2 or Sec. 1.1248-3, whichever is applicable, all the 
gain from such sale or exchange shall be treated as a dividend under 
section 1248(a). See section 1248(g). A taxpayer shall be considered to 
have established such amount if:
    (i) He attaches to his income tax return, filed on or before the 
last day prescribed by law (including extensions thereof) for his 
taxable year in which he sold or exchanged the stock, the schedule 
prescribed by paragraph (b) of this section or, if such last day is 
before April 1, 1965, he files such schedule before such date with the 
district director with whom such return was filed, and
    (ii) He establishes in the manner prescribed by paragraph (d) of 
this section the correctness of each amount shown on such schedule.
    (2) Notwithstanding an omission of information from, or an error 
with respect to an amount shown on, the schedule referred to in 
subparagraph (1)(i) of this paragraph, a taxpayer shall be considered to 
have complied with such subparagraph (1)(i) if:

[[Page 409]]

    (i) He establishes that such omission or error was inadvertent, or 
due to reasonable cause and not due to willful neglect, and that he has 
substantially complied with the requirements of this section, and
    (ii) The taxpayer corrects such omission or error at the time when 
he complies with paragraph (d) of this section.
    (3) For the requirement to establish the amount of foreign taxes to 
be taken into account for purposes of section 1248(b), see paragraph (c) 
of this section.
    (b) Schedule attached to return. (1) The taxpayer shall attach to 
his income tax return for his taxable year in which he sold or exchanged 
the stock, a schedule showing his name, address, and identifying number. 
Except to the extent provided in paragraph (e) of this section, the 
schedule shall also show the amount of the earnings and profits 
attributable under paragraph (a) of Sec. 1.1248-2 or paragraph (a) of 
Sec. 1.1248-3 (as the case may be) to the stock, and, in order to 
support the computation of such amount, any additional information 
required by subparagraphs (2), (3), (4), and (5) of this paragraph.
    (2) The schedule shall also show for the first tier corporation, and 
for each lower tier corporation as to which information is required 
under subparagraph (4) of this paragraph, (i) the name of the 
corporation, (ii) the country under whose laws the corporation is 
created or organized, and (iii) the last day of the taxable year which 
the corporation regularly uses in computing its income.
    (3) If the amount of earnings and profits attributable to a block of 
stock sold or exchanged are computed under Sec. 1.1248-2, the schedule 
shall also show:
    (i) For each taxable year of the corporation, beginning after 
December 31, 1962, during the period the taxpayer held (or was 
considered to have held by reason of the application of section 1223) 
the block, (a) the earnings and profits accumulated for each such 
taxable year computed under paragraph (d) of Sec. 1.1248-2, and (b) the 
sum thereof computed under paragraph (e) (1)(i) and (2) of Sec. 1.1248-
2,
    (ii) The number of shares in the block and the total number of 
shares of the corporation outstanding during such period,
    (iii) If during the period the person held (or is considered to have 
held by reason of the application of section 1223) the block any amount 
was included under section 951 in the gross income of such person (or 
another person) in respect of the block, the computation of the excess 
referred to in paragraph (e)(3)(ii) of Sec. 1.1248-2, and
    (iv) If the amount of earnings and profits of a lower tier 
corporation attributable to the block are computed under paragraph 
(a)(3) of Sec. 1.1248-2, (a) the number of shares in the lower tier 
corporation which the taxpayer owns within the meaning of section 
958(a)(2)(b) the total number of shares of such lower tier corporation 
outstanding during such period, and (c) in respect of such lower tier 
corporation, the information prescribed in subdivisions (i) and (iii) of 
this subparagraph.
    (4) If the amount of earnings and profits attributable to a share 
(or block) sold or exchanged are computed under Sec. 1.1248-3, the 
schedule shall also show for each taxable year of the corporation 
beginning after December 31, 1962, any day of which falls in a period or 
periods the taxpayer held (or was considered to have held by reason of 
the application of section 1223) the stock while the corporation was a 
controlled foreign corporation:
    (i) The number of days in such period or periods, but only if such 
number is less than the total number of days in such taxable year,
    (ii) The earnings and profits accumulated for the taxable year 
computed under paragraph (b) of Sec. 1.1248-3,
    (iii) The number of shares in the corporation outstanding, or deemed 
under paragraph (c)(2) of Sec. 1.1248-3 to be outstanding, on each day 
of the taxable year,
    (iv) The taxpayer's tentative ratable share computed under paragraph 
(c) or (d) (as the case may be) of Sec. 1.1248-3,
    (v) The amount of, and a short description of each adjustment to, 
the tentative ratable share under paragraph (e) of Sec. 1.1248-3, and
    (vi) The amount of the ratable share referred to in paragraph (e)(1) 
of Sec. 1.1248-3.

[[Page 410]]

    (5) In respect of a taxable year referred to in subparagraph (4) of 
this paragraph of a first tier corporation, if the taxpayer is required 
to compute under paragraph (f)(5) of Sec. 1.1248-3 his ratable share of 
the earnings and profits for a taxable year of the lower tier 
corporation attributable to such taxable year of such first tier 
corporation, then for such taxable year of the lower tier corporation 
the schedule shall show:
    (i) The earnings and profits accumulated for the taxable year of the 
lower tier corporation, computed under paragraph (b) of Sec. 1.1248-3,
    (ii) Each percentage described in paragraph (f)(2) (ii), (iii), and 
(iv) of Sec. 1.1248-3,
    (iii) The amount of the taxpayer's tentative ratable share computed 
under paragraph (f) (2) or (4) (as the case may be) of Sec. 1.1248-3,
    (iv) The amount of, and a short description of each adjustment to, 
the tentative ratable share under paragraph (f)(5) of Sec. 1.1248-3, 
and
    (v) The amount of the ratable share referred to in paragraph 
(f)(5)(i) of Sec. 1.1248-3.
    (c) Foreign taxes. (1) If the taxpayer fails to establish any 
portion of the amount of any foreign taxes which he is required to 
establish by subparagraph (2) of this paragraph, then such portion shall 
not be taken into account under section 1248(b)(1)(B):
    (2) The taxpayer shall establish in respect of the stock he sells or 
exchanges the amount of the foreign taxes described in section 
1248(b)(1)(B) paid by the first tier corporation for each taxable year 
of such corporation for which the information is required under 
paragraph (b) (3) or (4) of this section, and the amount of such taxes 
paid by each lower tier corporation for each taxable year (as to which 
information is required under paragraph (b) (3)(iv) or (5) of this 
section) of each such lower tier corporation. A taxpayer shall be 
considered to have established the amount of such foreign taxes if:
    (i) He attaches to the schedule described in paragraph (b) of this 
section a supplementary schedule which, except to the extent provided in 
paragraph (e) of this section, sets forth the amount of such foreign 
taxes for each taxable year (of the first tier corporation and of each 
such lower tier corporation) as to which such amount must be established 
under this subparagraph, and
    (ii) He establishes in the manner prescribed by paragraph (d)(2) of 
this section the correctness of each amount shown on such supplementary 
schedule.
    (d) Establishing amounts on schedules. (1) A taxpayer shall be 
considered to have established, in respect of the stock he sold or 
exchanged, the correctness of an amount shown on a schedule described in 
paragraph (b) of this section only if he produces or provides within 180 
days after demand by the district director (or within such longer period 
to which such director consents):
    (i) The books of original entry, or similar systematic accounting 
records maintained by any person or persons on a current basis as 
supplements to such books, which establish to the satisfaction of the 
district director the correctness of each such amount, and
    (ii) In respect of any such books or records which are not in the 
English language, either an accurate English translation of any such 
records as are demanded, or the services of a qualified interpreter 
satisfactory to such director.
    (2) A shareholder shall be considered to have established in respect 
of such stock the correctness of an amount shown on a supplementary 
schedule described in paragraph (c) of this section only if he produces 
or provides within 180 days after demand by the district director (or 
within such longer period to which such director consents):
    (i) Evidence described in paragraph (a)(2) of Sec. 1.905-2 of such 
amount, or
    (ii) Secondary evidence of such amount, in the same manner and to 
the same extent as would be permissible under paragraph (b) of Sec. 
1.905-2 in the case of a taxpayer who claimed the benefits of the 
foreign tax credit in respect of such amount.
    (e) Insufficient information at time return is filed. If stock in a 
foreign corporation, which was a controlled foreign corporation, is sold 
or exchanged by a taxpayer during a taxable year of

[[Page 411]]

the corporation (or of a lower tier corporation) which ends after the 
last day of the taxpayer's taxable year in which the sale or exchange 
occurs, and if:
    (1) For the taxpayer's taxable year, the last day referred to in 
paragraph (a)(1) of this section for filing his income tax return with a 
schedule prescribed in paragraph (b) of this section, and, if 
applicable, with a supplemental schedule prescribed in paragraph (c) of 
this section, or
    (2) The last day referred to in paragraph (a)(1) of this section 
(that is, April 1, 1965) for filing any such schedule or schedules with 
the district director with whom such return was filed,

Is not later than 90 days after the close of such taxable year of any 
such corporation, then such return with such schedule or schedules may 
be filed, or any such schedule or schedules may be filed, on the basis 
of estimates of amounts or percentages (for any such taxable year of any 
such corporation) required to be shown on any such schedule or 
schedules. If any such estimate differs from the actual amount or 
percentage, the taxpayer shall, within 90 days after the close of any 
such taxable year of any such corporation, file (or attach to a claim 
for refund or amended return filed) at the office of the district 
director with whom he filed the return a new schedule or schedules 
showing the actual amounts or percentages.

[T.D. 6779, 29 FR 18143, Dec. 22, 1964]



Sec. 1.1249-1  Gain from certain sales or exchanges of patents, etc., 
to foreign corporations.

    (a) General rule. Section 1249 provides that if gain is recognized 
from the sale or exchange after December 31, 1962, of a patent, an 
invention, model, or design (whether or not patented), a copyright, a 
secret formula or process, or any other similar property right (not 
including property such as goodwill, a trademark, or a trade brand) to 
any foreign corporation by any United States person (as defined in 
section 7701(a)(30)) which controls such foreign corporation, and if 
such gain would (but for the provisions of section 1249) be gain from 
the sale or exchange of a capital asset or of property described in 
section 1231, then such gain shall be considered as gain from the sale 
or exchange of property which is neither a capital asset nor property 
described in section 1231. Section 1249 applies only to gain recognized 
in taxable years beginning after December 31, 1962.
    (b) Control. For purposes of paragraph (a) of this section, the term 
control means, with respect to any foreign corporation, the ownership, 
directly or indirectly, of stock possessing more than 50 percent of the 
total combined voting power of all classes of stock entitled to vote. 
For purposes of the preceding sentence, the rules for determining 
ownership of stock provided by section 958 (a) and (b), and the 
principles for determining percentage of total combined voting power 
owned by United States shareholders provided by paragraphs (b) and (c) 
of Sec. 1.957-1, shall apply.

[T.D. 6765, 29 FR 14879, Nov. 3, 1964]



Sec. 1.1250-1  Gain from dispositions of certain depreciable realty.

    (a) Dispositions after December 31, 1969--(1) Ordinary income. (i) 
In general, section 1250(a)(1) provides that, upon a disposition of an 
item of section 1250 property after December 31, 1969, the applicable 
percentage of the lower of:
    (a) The additional depreciation (as defined in Sec. 1.1250-2) 
attributable to periods after December 31, 1969 in respect of the 
property, or
    (b) The excess of the amount realized on a sale, exchange, or 
involuntary conversion (or the fair market value of the property on any 
other disposition) over the adjusted basis of the property,

Shall be treated as gain from the sale or exchange of property which is 
neither a capital asset nor property described in section 1231 (that is, 
shall be recognized as ordinary income). The amount of such gain shall 
be determined separately for each item (see subparagraph (2)(ii) of this 
paragraph) of section 1250 property. If the amount determined under (b) 
of this subdivision exceeds the amount determined under (a) of this 
subdivision, then such excess shall be treated as provided in 
subdivision (ii) of this subparagraph. For relation of section 1250 to 
other provisions, see paragraph (c) of this section.

[[Page 412]]

    (ii) If the amount determined under subdivision (i)(b) of this 
subparagraph exceeds the amount determined under subdivision (i)(a) of 
this subparagraph, then the applicable percentage of the lower of:
    (a) The additional depreciation attributable to periods before 
January 1, 1970, or
    (b) Such excess,

shall also be recognized as ordinary income.
    (iii) If gain would be recognized upon a disposition of an item of 
section 1250 property under subdivisions (i) and (ii) of this 
subparagraph, and if section 1250(d) applies, then the gain recognized 
shall be considered as recognized first under subdivision (i) of this 
subparagraph. (See example (3)(i) of paragraph (c)(4) of Sec. 1.1250-
3.)
    (2) Meaning of terms. (i) For purposes of section 1250, the term 
disposition shall have the same meaning as in paragraph (a)(3) of Sec. 
1.1245-1. Section 1250 property is, in general, depreciable real 
property other than section 1245 property. See paragraph (e) of this 
section. See paragraph (d)(1) of this section for meaning of the term 
applicable percentage. If, however, the property is considered to have 
two or more elements with separate periods (for example, because units 
thereof are placed in service on different dates, improvements are made 
to the property, or because of the application of paragraph (h) of Sec. 
1.1250-3), see the special rules of Sec. 1.1250-5.
    (ii) For purposes of applying section 1250, the facts and 
circumstances of each disposition shall be considered in determining 
what is the appropriate item of section 1250 property. In general, a 
building is an item of section 1250 property, but in an appropriate case 
more than one building may be treated as a single item. For example, if 
two or more buildings or structures on a single tract or parcel (or 
contiguous tracts or parcels) of land are operated as an integrated unit 
(as evidenced by their actual operation, management, financing, and 
accounting), they may be treated as a single item of section 1250 
property. For the manner of determining whether an expenditure shall be 
treated as an addition to capital account of an item of section 1250 
property or as a separate item of section 1250 property, see paragraph 
(d)(2)(iii) of Sec. 1.1250-5.
    (3) Sale, exchange, or involuntary conversion after December 31, 
1969. (i) In the case of a disposition of section 1250 property by a 
sale, exchange, or involuntary conversion after December 31, 1969, the 
gain to which section 1250(a)(1) applies is the applicable percentage 
for the property (determined under paragraph (d)(1) of this section) 
multiplied by the lower of (a) the additional depreciation in respect of 
the property attributable to periods after December 31, 1969, or (b) the 
excess (referred to as gain realized) of the amount realized over the 
adjusted basis of the property.
    (ii) In addition to gain recognized under section 1250(a)(1) and 
subdivision (i) of this subparagraph, gain may also be recognized under 
section 1250(a)(2) and this subdivision if the gain realized exceeds the 
additional depreciation attributable to periods after December 31, 1969. 
In such a case, the amount of gain recognized under section 1250(a)(2) 
and this subdivision is the applicable percentage for the property 
(determined under paragraph (d)(2) of this section) multiplied by the 
lower of (a) the additional depreciation attributable to periods before 
January 1, 1970, or (b) the excess (referred to as remaining gain) of 
the gain realized over the additional depreciation attributable to 
periods after December 31, 1969.
    (iii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. Section 1250 property which has an adjusted basis of 
$500,000 is sold for $650,000 after December 31, 1969, and thus the gain 
realized is $150,000. At the time of the sale the additional 
depreciation in respect of the property attributable to periods after 
December 31, 1969, is $190,000 and the applicable percentage is 100 
percent (paragraph (d)(1)(i)(e) of this section). Since the gain 
realized ($150,000), is lower than the additional depreciation 
($190,000), the amount of gain recognized as ordinary income under 
section 1250(a)(1) is $150,000 (that is, 100 percent of $150,000). No 
gain is recognized under section 1250(a)(2).
    Example 2. Section 1250 property which has an adjusted basis of 
$440,000 is sold for $500,000 on December 31, 1974, and thus the

[[Page 413]]

gain realized is $60,000. The property was acquired on March 31, 1966. 
At the time of the sale, the additional depreciation attributable to 
periods after December 31, 1969, is $20,000, and the additional 
depreciation attributable to periods before January 1, 1970, is $60,000. 
The property qualified as residential rental property for each taxable 
year ending after December 31, 1969, and the applicable percentage is 95 
percent (paragraph (d)(1)(i)(c) of this section). The applicable 
percentage under paragraph (d)(2) of this section is 15 percent. Since 
the additional depreciation attributable to periods after December 31, 
1969 ($20,000), is lower than the gain realized ($60,000), the amount of 
gain recognized as ordinary income under section 1250(a)(1) is $19,000 
(that is, 95 percent of $20,000). In addition, gain is recognized under 
section 1250(a)(2) since there is remaining gain of $40,000 (that is, 
the gain realized ($60,000) minus the additional depreciation 
attributable to periods after December 31, 1969 ($20,000)). Since the 
remaining gain of $40,000 is lower than the additional depreciation 
attributable to periods before January 1, 1970 ($60,000), the amount of 
gain recognized as ordinary income under section 1250(a)(2) is $6,000 
(that is, 15 percent of $40,000). The remaining $35,000 (that is, gain 
realized $60,000, minus gain recognized under section 1250(a), $25,000) 
of the gain may be treated as gain from the sale or exchange of property 
described in section 1231.

    (4) Other dispositions after December 31, 1969. (i) In the case of a 
disposition of section 1250 property after December 31, 1969, other than 
by way of a sale, exchange, or involuntary conversion, the gain to which 
section 1250(a)(1) applies is the applicable percentage for the property 
(determined under paragraph (d)(1) of this section) multiplied by the 
lower of (a) the additional depreciation in respect of the property 
attributable to periods after December 31, 1969, or (b) the excess 
(referred to as potential gain) of the fair market value of the property 
over its adjusted basis. In addition, if the potential gain exceeds the 
additional depreciation attributable to periods after December 31, 1969, 
then the gain to which section 1250(a)(2) applies is the applicable 
percentage for the property (determined under paragraph (d)(2) of this 
section) multiplied by the lower of (c) the additional depreciation 
attributable to periods before January 1, 1970, or (d) the excess 
(referred to as remaining potential gain) of the potential gain over the 
additional depreciation attributable to periods after December 31, 1969. 
If property is transferred by a corporation to a shareholder for an 
amount less than its fair market value in a sale or exchange, for 
purposes of applying section 1250 such transfer shall be treated as a 
disposition other than by way of a sale, exchange, or involuntary 
conversion.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. Section 1250 property having an adjusted basis of 
$500,000 and a fair market value of $550,000 is distributed by a 
corporation to a stockholder in complete liquidation of the corporation 
after December 31, 1969, and thus the potential gain is $50,000. At the 
time of the liquidation, the additional depreciation for the property 
attributable to periods after December 31, 1969, is $80,000 and the 
applicable percentage is 100 percent (paragraph (d)(1)(i)(e) of this 
section). Since the potential gain of $50,000 is lower than the 
additional depreciation attributable to periods after December 31, 1969 
($80,000), the amount of gain recognized as ordinary income under 
section 1250(a)(1) is $50,000 (that is, 100 percent of $50,000) even 
though in the absence of section 1250, section 336 would preclude 
recognition of gain to the corporation.
    Example 2. The facts are the same as in example (1) except that the 
fair market value of the property is $650,000, and thus the potential 
gain is $150,000. Since the additional depreciation attributable to 
periods after December 31, 1969 ($80,000), is lower than the potential 
gain of $150,000, the amount of gain recognized as ordinary income under 
section 1250(a)(1) is $80,000 (that is, 100 percent of $80,000). In 
addition, section 1250(a)(2) applies since there is remaining potential 
gain of $70,000, that is, potential gain ($150,000) minus additional 
depreciation attributable to periods after December 31, 1969 ($80,000). 
The additional depreciation attributable to periods before January 1, 
1970, is $90,000 and the applicable percentage under paragraph (d)(2) of 
this section is 50 percent. Since the remaining potential gain of 
$70,000 is lower than the additional depreciation attributable to 
periods before January 1, 1970 ($90,000), the amount of gain recognized 
as ordinary income under section 1250(a)(2) is $35,000 (that is, 50 
percent of $70,000). Thus under section 1250(a), $115,000 (that is, 
$80,000 under section 1250(a)(1), plus $35,000 under section 1250(a)(2)) 
is recognized as ordinary income, even though in the absence of section 
1250, section 336 would preclude recognition of gain to the corporation.

    (5) Instances of nonapplication. (i) Section 1250(a)(1) does not 
apply to losses. Thus, section 1250(a)(1) does not apply if a loss is 
realized upon a sale, exchange, or involuntary conversion of

[[Page 414]]

property, all of which is considered section 1250 property, nor does the 
section apply to a disposition of such property other than by way of 
sale, exchange, or involuntary conversion if at the time of the 
disposition the fair market value of such property is not greater than 
its adjusted basis.
    (ii) In general, in the case of section 1250 property with a holding 
period under section 1223 of more than 1 year, section 1250(a)(1) does 
not apply if for periods after December 31, 1969, there are no 
depreciation adjustments in excess of straight line (as computed under 
section 1250(b) and paragraph (b) of Sec. 1.1250-2).
    (6) Allocation rules. (i) In the case of a sale, exchange, or 
involuntary conversion of section 1250 property and nonsection 1250 
property in one transaction after December 31, 1969, the total amount 
realized upon the disposition shall be allocated between the section 
1250 property and the other property in proportion to their respective 
fair market values. Such allocation shall be made in accordance with the 
principles set forth in paragraph (a)(5) of Sec. 1.1245-1 (relating to 
allocation between section 1245 property and nonsection 1245 property).
    (ii) If an item of section 1250 property has two (or more) 
applicable percentages because one subdivision of paragraph (d)(1)(i) of 
this section applies to one portion of the taxpayer's holding period 
(determined under Sec. 1.1250-4) and another subdivision of such 
paragraph applies with respect to another such portion, then the gain 
realized on a sale, exchange, or involuntary conversion, or the 
potential gain in the case of any other disposition, shall be allocated 
to each such portion of the taxpayer's holding period after December 31, 
1969, in the same proportion as the additional depreciation with respect 
to such item for such portion bears to the additional depreciation with 
respect to such item for the entire holding period after December 31, 
1969.
    (b) Dispositions before January 1, 1970--(1) Ordinary income. In 
general, section 1250(a)(2) provides that, upon a disposition of an item 
of section 1250 property after December 31, 1963, and before January 1, 
1970, the applicable percentage of the lower of:
    (i) The additional depreciation (as defined in Sec. 1.1250-2) 
attributable to periods before January 1, 1970, in respect of the 
property, or
    (ii) The excess of the amount realized on a sale, exchange, or 
involuntary conversion (or the fair market value of the property on any 
other disposition) over the adjusted basis of the property,

shall be treated as gain from the sale or exchange of property which is 
neither a capital asset nor property described in section 1231 (that is, 
shall be recognized as ordinary income). The amount of such gain shall 
be determined separately for each item (see subparagraph (2)(ii) of this 
paragraph) of section 1250 property. For relation of section 1250 to 
other provisions, see paragraph (c) of this section.
    (2) Meaning of terms. (i) For purposes of section 1250, the term 
disposition shall have the same meaning as in paragraph (a)(3) of Sec. 
1.1245-1. Section 1250 property is, in general, depreciable real 
property other than section 1245 property. See paragraph (e) of this 
section. For purposes of this paragraph, the term applicable percentage 
means 100 percent minus 1 percentage point for each full month the 
property was held after the date on which the property was held 20 full 
months. See paragraph (d)(2) of this section. If, however, the property 
is considered to have two or more elements with separate holding periods 
(for example, because units thereof are placed in service on different 
dates, or improvements are made to the property), see the special rules 
of Sec. 1.1250-5.
    (ii) For purposes of applying section 1250, the facts and 
circumstances of each disposition shall be considered in determining 
what is the appropriate item of section 1250 property. In general, a 
building is an item of section 1250 property, but in an appropriate case 
more than one building may be treated as a single item. For manner of 
determining whether an expenditure shall be treated as an addition to 
the capital account of an item of section 1250 property or as a separate 
item of section 1250 property, see paragraph (d)(2)(iii) of Sec. 
1.1250-5.
    (3) Sale, exchange, or involuntary conversion before January 1, 
1970. (i) In the case of a disposition of section 1250

[[Page 415]]

property by a sale, exchange, or involuntary conversion before January 
1, 1970, the gain to which section 1250(a)(2) applies is the applicable 
percentage for the property multiplied by the lower of (a) the 
additional depreciation in respect of the property or (b) the excess 
(referred to as gain realized) of the amount realized over the adjusted 
basis of the property.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: Section 1250 property, which has an adjusted basis of 
$200,000, is sold for $290,000 before January 1, 1970. At the time of 
the sale the additional depreciation in respect of the property is 
$130,000 and the applicable percentage is 60 percent. Since the gain 
realized ($90,000, that is, amount realized, $290,000, minus adjusted 
basis, $200,000) is lower than the additional depreciation ($130,000), 
the amount of gain recognized as ordinary income under section 
1250(a)(2) is $54,000 (that is, 60 percent of $90,000). The remaining 
$36,000 ($90,000 minus $54,000) of the gain may be treated as gain from 
the sale or exchange of property described in section 1231.

    (4) Other dispositions before January 1, 1970. (i) In the case of a 
disposition of section 1250 property before January 1, 1970, other than 
by way of a sale, exchange, or involuntary conversion, the gain to which 
section 1250(a)(2) applies is the applicable percentage for the property 
multiplied by the lower of (a) the additional depreciation in respect of 
the property, or (b) the excess (referred to as potential gain) of the 
fair market value of the property on the date of disposition over its 
adjusted basis. If property is transferred by a corporation to a 
shareholder for an amount less than its fair market value in a sale or 
exchange, for purposes of applying section 1250 such transfer shall be 
treated as a disposition other than by way of a sale, exchange, or 
involuntary conversion.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: Assume the same facts as in the example in subparagraph 
(3)(ii) of this paragraph except that the property is distributed by a 
corporation to a stockholder before January 1, 1970, in complete 
liquidation of the corporation, and that at the time of the distribution 
the fair market value of the property is $370,000. Since the additional 
depreciation ($130,000) is lower than the potential gain of $170,000 
(that is, fair market value, $370,000, minus adjusted basis, $200,000), 
the amount of gain recognized as ordinary income under section 
1250(a)(2) is $78,000 (that is, 60 percent of $130,000) even though, in 
the absence of section 1250, section 336 would preclude recognition of 
gain to the corporation.

    (5) Instances of nonapplication. (i) Section 1250(a)(2) does not 
apply to losses. Thus, section 1250(a)(2) does not apply if a loss is 
realized upon a sale, exchange, or involuntary conversion of property, 
all of which is considered section 1250 property, nor does the section 
apply to a disposition of such property other than by way of sale, 
exchange, or involuntary conversion if at the time of the disposition 
the fair market value of such property is not greater than its adjusted 
basis.
    (ii) In general, in the case of section 1250 property with a holding 
period under section 1223 of more than one year, section 1250(a)(2) does 
not apply if for periods after December 1, 1963, there are no 
depreciation adjustments in excess of straight line (as computed under 
section 1250(b) and paragraph (b) of Sec. 1.1250-2).
    (iii) In a case in which section 1250 property (including each 
element thereof, if any) has a holding period under Sec. 1.1250-4 (or 
paragraph (a)(2)(ii) of Sec. 1.1250-5) of at least 10 years, section 
1250(a)(2) does not apply. If within the 10-year period preceding the 
date the property is disposed of, an element is added to the property by 
reason, for example, of an addition to capital account, see Sec. 
1.1250-5.
    (6) Allocation rule. In the case of a sale, exchange, or involuntary 
conversion of section 1250 property and nonsection 1250 property in one 
transaction before January 1, 1970, the total amount realized upon the 
disposition shall be allocated between the section 1250 property and the 
other property in proportion to their respective fair market values. 
Such allocation shall be made in accordance with the principles set 
forth in paragraph (a)(5) of Sec. 1.1245-1 (relating to allocation 
between section 1245 property and nonsection 1245 property).
    (c) Relation of section 1250 to other provisions--(1) General. The 
provisions of

[[Page 416]]

section 1250 apply notwithstanding any other provision of subtitle A of 
the Code. See section 1250(i). Thus, unless an exception or limitation 
under section 1250(d) and Sec. 1.1250-3 applies, gain under section 
1250(a) is recognized notwithstanding any contrary nonrecognition 
provision or income characterizing provision. For example, since section 
1250 overrides section 1231 (relating to property used in the trade or 
business), the gain recognized under section 1250(a) upon a disposition 
will be treated as ordinary income and only the remaining gain, if any, 
from the disposition may be considered as gain from the sale or exchange 
of a capital asset if section 1231 is applicable. See the example in 
paragraph (b)(3)(ii) of this section.
    (2) Nonrecognition sections overridden. The nonrecognition 
provisions of subtitle A of the Code which section 1250 overrides 
include, but are not limited to, sections 267(d), 311(a), 336, 337, 
501(a), and 512(b)(5). See section 1250(d) for the extent to which 
section 1250(a) overrides sections 332, 351, 361, 371(a), 374(a), 721, 
731, 1031, 1033, 1039, 1071, and 1081 (b)(1) and (d)(1)(A). For amount 
of additional depreciation in respect of property disposed of by an 
organization exempt from income taxes (within the meaning of section 
501(a)), see paragraph (d)(6) of Sec. 1.1250-2.
    (3) Exempt income. The fact that section 1250 provides for 
recognition of gain as ordinary income does not change into taxable 
income any income which is exempt under section 115 (relating to income 
of States, etc.), 892 (relating to income of foreign governments), or 
894 (relating to income exempt under treaties).
    (4) Treatment of gain not recognized under section 1250. Section 
1250 does not prevent gain which is not recognized under section 1250 
from being considered as gain under another provision of the Code, such 
as, for example, section 1239 (relating to gain from sale of depreciable 
property between certain related persons). Thus, for example, if section 
1250 property which has an adjusted basis of $10,000 is sold for $17,500 
in a transaction to which section 1239 applies, and if $5,000 of the 
gain would be recognized under section 1250(a) then the remaining $2,500 
of the gain would be treated as ordinary income under section 1239.
    (5) Normal retirement of asset in multiple asset account. Section 
1250(a) does not require recognition of gain upon normal retirements of 
section 1250 property in a multiple asset account as long as the 
taxpayer's method of accounting, as described in paragraph (e)(2) of 
Sec. 1.167(a)-8 (relating to accounting treatment of asset 
retirements), does not require recognition of such gain.
    (6) Installment method. Gain from a disposition to which section 
1250(a) applies may be reported under the installment method if such 
method is otherwise available under section 453 of the Code. In such 
case, the income (other than interest) on each installment payment shall 
be deemed to consist of gain to which section 1250(a) applies until all 
such gain has been reported, and the remaining portion (if any) of such 
income shall be deemed to consist of other gain. For treatment of 
amounts as interest on certain deferred payments, see section 483.
    (d) Applicable percentage--(1) Definition for purposes of section 
1250(a)(1). (i) For purposes of section 1250(a)(1), the term applicable 
percentage means:
    (a) In the case of property disposed of pursuant to a written 
contract which was, on July 24, 1969, and at all times thereafter 
binding on the owner of the property, 100 percent minus 1 percentage 
point for each full month the property was held after the date on which 
the property was held 20 full months;
    (b) In the case of property constructed, reconstructed, or acquired 
by the taxpayer before January 1, 1975, with respect to which a mortgage 
is insured under section 221(d)(3) or 236 of the National Housing Act, 
or housing is financed or assisted by direct loan or tax abatement under 
similar provisions of State or local laws, and with respect to which the 
owner is subject to the restrictions described in section 1039(b)(1)(B) 
(relating to approved dispositions of certain Government-assisted 
housing projects), 100 percent minus 1 percentage point for each full 
month of the taxpayer's holding period for the property (determined 
under Sec. 1.1250-4) during which the property

[[Page 417]]

qualified under this sentence, beginning after the date on which the 
property so qualified for 20 full months.
    (c) In the case of residential rental property (as defined in 
section 167(j)(2)(B)) other than that covered by (a) and (b) of this 
subdivision, 100 percent minus 1 percentage point for each full month of 
the taxpayer's holding period for the property (determined under Sec. 
1.1250-4) included within a taxable year for which the property 
qualified as residential rental property, beginning after the date on 
which the property so qualified for 100 full months.
    (d) In the case of property with respect to which a deduction was 
allowed under section 167(k) (relating to the depreciation of 
expenditures to rehabilitate low-income rental housing), 100 percent 
minus 1 percentage point for each full month of the taxpayer's holding 
period (determined under Sec. 1.1250-4) beginning 100 full months after 
the date on which the property was placed in service.
    (e) In the case of all other property, 100 percent.

The provisions of (a), (b), and (c) of this subdivision shall not apply 
with respect to additional depreciation described in section 1250(b)(4). 
If the taxpayer's holding period under Sec. 1.1250-4 includes a period 
before January 1, 1970, such period shall be taken into account in 
applying each provision of this subdivision.
    (ii) A single item of property may have two (or more) applicable 
percentages under the provisions of subdivision (i) of this 
subparagraph. For example, if the provision of subdivision (i) of this 
subparagraph which applies to an item of section 1250 property (or to an 
element of such property if the property is treated as consisting of 
more than one element under Sec. 1.1250-5) in the taxable year in which 
the item (or element) is disposed of did not apply to the item (or 
element) in a prior taxable year which is included within the taxpayer's 
holding period under Sec. 1.1250-4 and which ends after December 31, 
1969, then each provision of subdivision (i) of this subparagraph shall 
apply only for the period during which the property qualified under such 
provision.
    (iii) If the taxpayer makes rehabilitation expenditures and elects 
to compute depreciation under section 167(k) with respect to the 
property attributable to the rehabilitation expenditures, such property 
will generally constitute a separate improvement under paragraph (c) of 
Sec. 1.1250-5 and therefore will constitute an element of section 1250 
property. For computation of applicable percentage and gain recognized 
under section 1250(a) in such a case, see paragraph (a) of Sec. 1.1250-
5.
    (iv) The principles of this subparagraph may be illustrated by the 
following examples:

    Example 1. Section 1250 property is sold on December 31, 1970, 
pursuant to a written contract which was binding on the owner of the 
property on July 24, 1969, and at all times thereafter. The property was 
acquired on July 31, 1968. The applicable percentage for the property 
under subdivision (i)(a) of this subparagraph is 91 percent, since the 
property was held 29 full months.
    Example 2. Section 1250 property is sold on June 30, 1978. The 
property was acquired by a calendar year taxpayer on June 30, 1966. 
Subdivision (i)(e) of this subparagraph applies to the property in 1977 
and 1978. However, subdivision (i)(c) of this subparagraph applied to 
the property for the taxable years of 1970 through 1976. Thus, the 
property has two applicable percentages under this subparagraph. The 
period before January 1, 1970 (42 full months), and the period from 1970 
through 1976 (84 full months) are both taken into account in determining 
the applicable percentage under subdivision (i)(c) of this subparagraph. 
Thus, the applicable percentage is 74 percent (that is, 100 percent 
minus the excess of the holding period taken into account (126 full 
months) over 100 full months). The applicable percentage for the years 
1977 and 1978 is 100 percent under subdivision (i)(e) of this 
subparagraph.
    Example 3. Section 1250 property is sold on December 31, 1978. The 
property was acquired by a calendar year taxpayer on December 31, 1969. 
The taxpayer made rehabilitation expenditures in 1973 and properly 
elected to compute depreciation under section 167(k) on the property 
attributable to the expenditures for the 60-month period beginning on 
January 1, 1974, the date such property was placed in service. 
Subdivision (i)(c) applies to the property (other than the property with 
respect to which a deduction was allowed under section 167(k)) for the 
taxable years of 1970 through 1978 (108 full months) and the applicable 
percentage for such property is 92 percent. The applicable percentage 
for the property with respect to which a deduction

[[Page 418]]

under section 167(k) was allowed is 100 percent under subdivision (i)(d) 
of this subparagraph, since the holding period for purposes of such 
subdivision begins on the date such property is placed in service.
    Example 4. Section 1250 property is sold by a calendar year taxpayer 
on March 31, 1974. The property was transferred to the taxpayer by gift 
on December 31, 1970, and under section 1250(e)(2), the taxpayer's 
holding period for the property for purposes of computing the applicable 
percentage includes the transferor's holding period of 80 full months. 
Subdivision (i)(c) of this subparagraph applies to the property in the 
years 1970 through 1974. The applicable percentage under subdivision (i) 
(c) of this subparagraph is 81 percent, since the period before January 
1, 1970 (68 full months), and that portion of the period after December 
31, 1969, during which such subdivision applied (51 full months) are 
taken into account.

    (2) Definition for purposes of section 1250(a)(2). For purposes of 
section 1250(a)(2), the term applicable percentage means:
    (i) In case of property with a holding period of 20 full months or 
less, 100 percent;
    (ii) In case of property with a holding period of more than 20 full 
months but less than 10 years, 100 percent minus 1 percentage point for 
each full month the property is held after the date on which the 
property is held 20 full months; and
    (iii) In case of property with a holding period of at least 10 
years, zero.
    (3) Holding period. For purposes of this paragraph, the holding 
period of property shall be determined under the rules of Sec. 1.1250-
4, and not under the rules of section 1223, notwithstanding that the 
property was acquired on or before December 31, 1963. In the case of a 
disposition of section 1250 property which consists of 2 or more 
elements (within the meaning of paragraph (c) of Sec. 1.1250-5), the 
holding period for each element shall be determined under the rules of 
paragraph (a)(2)(ii) of Sec. 1.1250-5.
    (4) Full month. For purposes of this paragraph, the term full month 
(or full months) means the period beginning on a date in 1 month and 
terminating on the date before the corresponding date in the next 
succeeding month (or in another succeeding month), or, if a particular 
succeeding month does not have such a corresponding date, terminating on 
the last day of such particular succeeding month.
    (5) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Property is purchased on January 17, 1959. Under 
paragraph (b)(1) of Sec. 1.1250-4, its holding period begins on January 
18, 1959, and thus at any time during the period beginning on October 
17, 1960, and ending on November 16, 1960, the property is considered 
held 21 full months and has an applicable percentage under section 
1250(a)(2) of 99 percent. On and after January 17, 1969, the property 
has a holding period of at least 120 full months (10 years) and, 
therefore, the applicable percentage under section 1250(a)(2) for the 
property is zero. Accordingly, no gain would be recognized under section 
1250(a)(2) upon disposition of the property. If, however, the property 
consists of two or more elements, see the special rules of Sec. 1.1250-
5.
    Example 2. Property is purchased on January 31, 1968. Under 
paragraph (b)(1) of Sec. 1.1250-4 its holding period begins on February 
1, 1968, and thus at any time during the period beginning on February 
29, 1968, and ending on March 30, 1968, the property is considered held 
1 full month. At any time during the period beginning on March 31, 1970, 
and ending on April 29, 1970, the property is considered held 26 full 
months. At any time during the period beginning on April 30, 1970, and 
ending on May 30, 1970, the property is considered held 27 full months.

    (e) Section 1250 property--(1) Definition. The term section 1250 
property means any real property (other than section 1245 property, as 
defined in section 1245(a)(3) and Sec. 1.1245-3) which is or has been 
property of a character subject to the allowance for depreciation 
provided in section 167. See section 1250(c).
    (2) Character of property. For purposes of subparagraph (1) of this 
paragraph, the term is or has been property of a character subject to 
the allowance for depreciation provided in section 167 shall have the 
same meaning as when used in paragraph (a) (1) and (3) of Sec. 1.1245-
3. Thus, if a father uses a house in his trade or business during a 
period after December 31, 1963, and then gives the house to his son as a 
gift for the son's personal use, the house is section 1250 property in 
the hands of the son. For exception to the application of section 
1250(a) upon disposition of a principal residence, see section 
1250(d)(7).
    (3) Real property. (i) For purposes of subparagraph (1) of this 
paragraph, the

[[Page 419]]

term real property means any property which is not personal property 
within the meaning of paragraph (b) of Sec. 1.1245-3. The term section 
1250 property includes three types of depreciable real property. The 
first type is intangible real property. For purposes of this paragraph, 
a leasehold of land or of section 1250 property is intangible real 
property, and accordingly such a leasehold is section 1250 property. 
However, a fee simple interest in land is not depreciable, and therefore 
is not section 1250 property. The second type is a building or its 
structural components within the meaning of paragraph (c) of Sec. 
1.1245-3. The third type is all other tangible real property except (a) 
property described in section 1245(a)(3)(B) as defined in paragraph 
(c)(1) of Sec. 1.1245-3 (relating to property used as an integral part 
of a specified activity or as a specified facility), and (b) property 
described in section 1245(a)(3)(D). An elevator or escalator (within the 
meaning of section 1245(a)(3)(C)) is not section 1250 property.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: A owns and leases to B for a single lump-sum payment of 
$100,000 property consisting of land and a fully equipped factory 
building thereon. If 30 percent of the fair market value of such 
property is properly allocable to the land, 25 percent to section 1250 
property (the building and its structural components), and 45 percent to 
section 1245 property (the equipment), then 55 percent of B's leasehold 
is section 1250 property.

    (4) Coordination with definition of section 1245 property. (i) 
Property may lose its character as section 1250 property and become 
section 1245 property. Thus, for example, if section 1250 property of 
the third type described in subparagraph (3)(i)(a) of this paragraph is 
converted to use as an integral part of manufacturing, the property 
would lose its character as section 1250 property and would become 
section 1245 property. However, once property in the hands of a taxpayer 
is section 1245 property, it can never become section 1250 property in 
the hands of such taxpayer. See also paragraph (a) (4) and (5) of Sec. 
1.1245-2.
    (f) Treatment of partnerships and partners. If a partnership 
disposes of section 1250 property, the amount of gain recognized under 
section 1250(a) by the partnership and by a partner shall be determined 
in a manner consistent with the principles provided in paragraph (e) of 
Sec. 1.1245-1. Thus, for example, a partner's distributive share of 
gain recognized by the partnership under section 1250(a) shall be 
determined in the same manner as his distributive share of gain 
recognized by the partnership under section 1245(a)(1) is determined, 
and, if required, additional depreciation in respect of section 1250 
property shall be allocated to the partner in the same manner as the 
adjustments reflected in the adjusted basis of section 1245 property are 
allocated to the partner. For a further example, if on the date a 
partner acquires his partnership interest by way of a sale or exchange 
the partnership owns section 1250 property and an election under section 
754 (relating to optional adjustment to basis of partnership property) 
is in effect with respect to the partnership, then such partner's 
additional depreciation in respect of such property on such date is 
deemed to be zero. For limitation on the amount of gain recognized under 
section 1250(a) in respect of a partnership and for the amount of 
additional depreciation in respect of partnership property after certain 
transactions, see paragraph (f) of Sec. 1.1250-3. For treatment of 
section 1250 property as an unrealized receivable, see section 751(c).
    (g) Examples. The principles of this section may be illustrated by 
the following examples:

    Example 1. Section 1250 property which has an adjusted basis of 
$350,000 is sold for $630,000 on December 31, 1984. The property was 
acquired by a calendar year taxpayer on December 31, 1969. For the 
taxable years from 1970 through 1980, the property qualified as 
residential rental property and the applicable percentage for those 
years is 68 percent (paragraph (d)(1)(i)(c) of this section). For 
taxable years from 1981 through 1984, the property did not qualify as 
residential rental property and the applicable percentage for those 
years is 100 percent (paragraph (d)(1)(i)(e) of this section). The 
additional depreciation for the years from 1970 through 1980 is 
$120,000. The additional depreciation for the years from 1981 through 
1984 is $20,000. The gain realized is $280,000 (that is, amount 
realized, $630,000, minus adjusted

[[Page 420]]

basis $350,000). The gain recognized as ordinary income under section 
1250(a)(1) is computed in two steps. First, since the additional 
depreciation attributable to the years 1970 through 1980 ($120,000) is 
lower than the gain realized attributable to such years determined under 
paragraph (a)(6) of this section ($240,000, that is, gain realized, 
$280,000, multiplied by \12/14\), the gain recognized as ordinary income 
under section 1250(a)(1) in the first step is $81,600, that is, 68 
percent of $120,000. Second, since the additional depreciation 
attributable to the years 1981 through 1984 ($20,000) is lower than the 
gain realized attributable to those years ($40,000, that is, gain 
realized, $280,000, multiplied by \2/14\), the gain recognized as 
ordinary income under section 1250(a)(1) for the years from 1981 through 
1984 is $20,000 (that is, 100 percent of $20,000). The total gain 
recognized under section 1250(a)(1) is $101,600 (that is, $81,600 plus 
$20,000).
    Example 2. Section 1250 property which has an adjusted basis of 
$400,000 is sold for $472,000 on December 31, 1978. The property was 
acquired on December 31, 1966. The additional depreciation attributable 
to periods before January 1, 1970, is $40,000 and the applicable 
percentage under paragraph (d)(2) of this section is zero percent. The 
property qualifies as residential rental property for the years 1970 
through 1976, but fails to qualify for 1977 and 1978. Under paragraph 
(d)(1) of this section, the applicable percentage for the years 1970 
through 1976 is 80 percent (paragraph (d)(1)(i)(c) of this section), and 
the applicable percentage for the years 1977 and 1978 is 100 percent 
(paragraph (d)(1)(i)(e) of this section). The additional depreciation 
attributable to the years 1970 through 1976 is $50,000, and the 
additional depreciation attributable to the years 1977 and 1978 is 
$10,000. The gain recognized as ordinary income under section 1250(a)(1) 
is computed in two steps. First, since the additional depreciation 
attributable to the years 1970 through 1976 ($50,000) is lower than the 
gain realized attributable to such years ($60,000, that is, $72,000 
multiplied by \5/6\), the gain recognized under section 1250(a)(1) in 
the first step is $40,000 (that is, 80 percent of $50,000). Second, 
since the additional depreciation attributable to 1977 and 1978 
($10,000) is lower than the gain realized attributable to such years 
($12,000, that is, $72,000 multiplied by \1/6\), the gain recognized 
under section 1250(a)(1) in the second step is $10,000 (that is, 100 
percent of $10,000). In addition, section 1250(a)(2) applies. However, 
since the applicable percentage is zero percent, none of the gain is 
recognized as ordinary income under section 1250(a)(2). Thus, the 
remaining $22,000 (that is, gain realized, $72,000, minus gain 
recognized under section 1250(a), $50,000) of the gain may be treated as 
gain from the sale or exchange of property described in section 1231.
    Example 3. The facts are the same as in example (2) except that the 
property is disposed of on December 31, 1980. The property qualifies as 
residential rental property for the years 1979 and 1980. Thus, the 
applicable percentage for years 1970 through 1976, 1979, and 1980 is 56 
percent (paragraph (d)(1)(i)(c) of this section). The applicable 
percentage for the years 1977 and 1978 is 100 percent (paragraph 
(d)(1)(i)(e) of this section). The additional depreciation for the years 
1979 and 1980 is $8,000. The gain recognized under section 1250(a)(1) is 
computed in two steps. First, since the additional depreciation 
attributable to the years 1970 through 1976, 1979, and 1980 ($58,000) is 
lower than the gain realized attributable to such years ($61,412, that 
is, $72,000 multiplied by $58,000/$68,000), the gain recognized under 
section 1250(a)(1) in the first step is $32,480 (that is, 56 percent of 
$58,000). Second, since the additional depreciation attributable to 1977 
and 1978 ($10,000) is lower than the gain realized attributable to such 
years ($10,588, that is, $72,000 multiplied by $10,000/$68,000) the gain 
recognized under section 1250(a)(1) in the second step is $10,000 (that 
is, 100 percent of $10,000). In addition section 1250(a)(2) applies. 
However, since the applicable percentage is zero percent, none of the 
gain is recognized as ordinary income under section 1250(a)(2). Thus, 
the remaining $29,520 (that is, gain realized, $72,000, minus gain 
recognized under section 1250(a), $42,480) of the gain may be treated as 
gain from the sale or exchange of property described in section 1231.

[T.D. 7084, 36 FR 271, Jan. 8, 1971, as amended by T.D. 7193, 37 FR 
12953, June 30, 1972]



Sec. 1.1250-2  Additional depreciation defined.

    (a) In general--(1) Definition for purposes of section 1250(b)(1). 
Except as otherwise provided in paragraph (e) of this section, for 
purposes of section 1250(b)(1), the term additional depreciation means:
    (i) In the case of property which at the time of disposition has a 
holding period under section 1223 of not more than 1 year, the 
depreciation adjustments (as defined in paragraph (d) of this section) 
in respect of such property for periods after December 31, 1963, and
    (ii) In the case of property which at the time of disposition has a 
holding period under section 1223 of more than 1 year, the depreciation 
adjustments in excess of straight line for periods after December 31, 
1963, computed under paragraph (b)(1) of this section.

[[Page 421]]

    (2) Definition for purposes of section 1250(b)(4). Except as 
otherwise provided in paragraph (e) of this section, for purposes of 
section 1250(b)(4), the term additional depreciation means:
    (i) In the case of property with respect to which a deduction under 
section 167(k) (relating to depreciation of expenditures to rehabilitate 
low-income rental housing) was allowed, which at the time of disposition 
has a holding period under section 1223 of not more than 1 year from the 
time the rehabilitation expenditures were incurred, the depreciation 
adjustments (as defined in paragraph (d) of this section) in respect of 
the property, and
    (ii) In the case of property with respect to which a deduction under 
section 167(k) (relating to depreciation of expenditures to rehabilitate 
low-income rental housing) was allowed, which at the time of disposition 
has a holding period under section 1223 of more than 1 year from the 
time the rehabilitation expenditures were incurred, the depreciation 
adjustments in excess of straight line for the property, computed under 
paragraph (b)(2) of this section.

For purposes of this subparagraph, all rehabilitation expenditures which 
are incurred in connection with the rehabilitation of an element of 
section 1250 property shall be considered incurred on the date the last 
such expenditure is considered incurred under the accrual method of 
accounting, regardless of the method of accounting used by the taxpayer 
with regard to other items of income and expense. If the property 
consists of two or more elements (for example, if the property is placed 
in service at different times), then each element shall be treated as if 
it were a separate property and the expenditures attributable to each 
such element shall be considered incurred on the date the last such 
expenditure is considered incurred.
    (3) Allocation to certain periods. With respect to a taxable year 
beginning in 1963 and ending in 1964, or beginning in 1969 and ending in 
1970, the amount of depreciation adjustments or of depreciation 
adjustments in excess of straight line (as the case may be) shall be 
ascertained by applying the principles of paragraph (c)(3) of Sec. 
1.167(a)-8 (relating to determination of adjusted basis of retired 
asset), and the amount determined in such manner shall be allocated on a 
daily basis in order to determine the portion thereof which is 
attributable to a period after December 31, 1963, or after December 31, 
1969, as the case may be.
    (b) Computation of depreciation adjustments in excess of straight 
line--(1) General rule. For purposes of paragraph (a)(1) of this 
section, depreciation adjustments in excess of straight line shall be, 
in the case of any property, the excess of (i) the sum of the 
depreciation adjustments (as defined in paragraph (d) of this section) 
in respect of the property attributable to periods after December 31, 
1963, over (ii) the sum such adjustments would have been for such 
periods if such adjustments had been determined for the entire period 
the property was held under the straight line method of depreciation 
(or, if applicable, under the lease-renewal-period provision in 
paragraph (c) of this section). Depreciation in excess of straight line 
may arise, for example, if the declining balance method, the sum of the 
years-digits method, or the units of production method is used, or for 
another example, if the cost of a leasehold improvement or of a 
leasehold is depreciated over a period which does not take into account 
certain renewal periods referred to in paragraph (c) of this section. 
For computations of depreciation adjustments in excess of straight line 
(or a deficit therein) both on an annual basis and on the basis of the 
entire period the property was held, see subparagraph (6) of this 
paragraph.
    (2) Depreciation under section 167(k). For purposes of paragraph 
(a)(2) of this section, depreciation adjustments in excess of straight 
line shall be, in the case of any property with respect to which a 
deduction was allowed under section 167(k) (relating to depreciation of 
expenditures to rehabilitate low-income rental housing), the excess of 
(i) the sum of the depreciation adjustments (as defined in paragraph (d) 
of this section) allowed in respect of the property, over (ii) the sum 
such adjustments would have been if such adjustments had been determined 
for the entire period the property was held under

[[Page 422]]

the straight line method of depreciation permitted by section 167(b)(1).
    (3) General rule for computing useful life and salvage value. For 
purposes of computing under subparagraph (1)(ii) of this paragraph the 
sum of the depreciation adjustments would have been under the straight 
line method, if a useful life (or salvage value) was used in determining 
the amount allowed as a depreciation adjustment for any taxable year, 
such life (or value) shall be used in determining the amount such 
depreciation adjustment would have been for such taxable year under the 
straight line method. If, however, for any taxable year a method of 
depreciation was used as to which a useful life was not taken into 
account such as, for example, the units of production method, or as to 
which salvage value was not taken into account in determining the annual 
allowances, such as, for example, the declining balance method or the 
amortization of a leasehold improvement over the term of a lease, then, 
for the purpose of determining the amount such depreciation adjustment 
would have been under the straight line method for such taxable year:
    (i) There shall be used the useful life (or salvage value) which 
would have been proper if depreciation had actually been determined 
under the straight line method throughout the period the property was 
held, and
    (ii) Such useful life (or such salvage value) shall be determined by 
taking into account for each taxable year the same facts and 
circumstances as would have been taken into account if the taxpayer had 
used such method throughout the period the property was held.
    (4) Special rule for computing useful life and salvage value 
(section 167(k)). For purposes of computing under subparagraph (2)(ii) 
of this paragraph the sum the depreciation adjustments would have been 
under the straight line method, the useful life and salvage value 
permitted under section 167(k) shall not apply, the useful life of the 
property shall be determined under paragraph (b) of Sec. 1.167(a)-1 
(or, if applicable, under the lease-renewal-period provision of 
paragraph (c) of this section), and the salvage value of the property 
shall be determined under paragraph (c) of Sec. 1.167(a)-1. Such useful 
life or salvage value shall be determined by taking into account for 
each taxable year the same facts and circumstances as would have been 
taken into account if the taxpayer had used the straight line method 
permitted under section 167(b)(1) throughout the period the property was 
held.
    (5) Property held before January 1, 1964. In the case of property 
held before January 1, 1964:
    (i) For purposes of computing under subparagraph (1)(ii) of this 
paragraph the sum the depreciation adjustments would have been under the 
straight line method, the adjusted basis of the property on such date 
shall be the amount such adjusted basis would have been if depreciation 
deductions allowed or allowable before such date had been determined 
under the straight line method computed in accordance with subparagraph 
(3) of this paragraph, and
    (ii) The depreciation adjustments in excess of straight line in 
respect of the property computed under subparagraph (1) of this 
paragraph, but without regard to this subdivision, shall be reduced by 
the amount of depreciation adjustments less than straight line for 
periods before January 1, 1964, that is, by the excess (if any) of the 
sum the depreciation adjustments would have been for periods before 
January 1, 1964, under the straight line method, over the sum of the 
depreciation adjustments attributable to periods before such date.
    (6) Determination of additional depreciation in certain cases. If an 
item of section 1250 property is subject to two (or more) applicable 
percentages, a separate computation of additional depreciation shall be 
made for the portion of the taxpayer's holding period subject to each 
such percentage. That is, a separate computation shall be made to 
determine the excess of (i) the depreciation adjustments (as defined in 
paragraph (d) of this section) for each such portion of the taxpayer's 
holding period after December 31, 1963, over (ii) the amount such 
adjustments would have been for each such portion if such adjustments 
were determined under the straight line method of depreciation (or, if 
applicable, under the lease-

[[Page 423]]

renewal-period provision in paragraph (c) of this section). Thus, for 
example, in the case of an item of section 1250 property acquired on 
January 1, 1968, and disposed of on January 1, 1973, if the applicable 
percentage for the period before January 1, 1970, were determined under 
paragraph (d)(2) of Sec. 1.1250-1 and the applicable percentage for the 
period after December 31, 1969, were determined under paragraph 
(d)(1)(i)(e) of Sec. 1.1250-1, the additional depreciation would be 
computed separately for the period before January 1, 1970, and for the 
period after December 31, 1969. If the additional depreciation 
attributable to any such portion of the taxpayer's holding period is a 
deficit (that is, if the depreciation adjustments for that portion are 
less than the amount such adjustments would have been for that portion 
if depreciation adjustments were determined for the entire period the 
property was held under the straight line method of depreciation, or, if 
applicable, under the lease-renewal-period provision in paragraph (c) of 
this section), then such deficit will be applied to reduce the 
additional depreciation for other portion (or portions) of the 
taxpayer's holding period. (See examples (4) and (5) of subparagraph (7) 
of this paragraph.)
    (7) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A calendar year taxpayer sells section 1250 property on 
January 1, 1968, which he purchased for $10,000 on January 1, 1963. For 
the period of 1963 through 1967 he computed depreciation deductions in 
respect of the property under the declining balance method using a rate 
of 200 percent of the straight line rate and a proper useful life of 10 
years. Under such method salvage value is not taken into account in 
computing annual allowances. For purposes of applying subparagraph (3) 
of this paragraph, if the taxpayer had used the straight line method for 
such period, he would have used a salvage value of $1,000, and the 
depreciation under the straight line method would have been $900 each 
year, that is, one-tenth of $10,000 minus $1,000. As of January 1, 1968, 
the additional depreciation for the property is $1,123, as computed in 
the table below:

------------------------------------------------------------------------
                                                             Additional
              Year                   Actual      Straight   depreciation
                                  depreciation     line       (deficit)
------------------------------------------------------------------------
1963............................       $2,000         $900  ............
                                 =======================================
1964............................        1,600          900         $700
1965............................        1,280          900          380
1966............................        1,024          900          124
1967............................          819          900         (81)
------------------------------------------------------------------------
  Sum for periods after Dec. 31,        4,723        3,600        1,123
   1963.........................
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1) except that the 
taxpayer sells the section 1250 property on January 1, 1970. Assume 
further that as of January 1, 1968, the taxpayer elects under section 
167(e)(1) to change to the straight line method. On that date the 
adjusted basis of the property is $3,277 ($10,000 minus $6,723). He 
redetermines the remaining useful life of the property to be 8 years and 
its salvage value to be $77, and thus takes depreciation deductions for 
1968 and 1969 of $400 (the amount allowable) for each such year, that 
is, one-eighth of $3,200 (that is, $3,277 minus $77). For purposes of 
applying subparagraph (3) of this paragraph, if he had used the straight 
line method throughout the period he held the property, the adjusted 
basis of the property on January 1, 1968, would have been $5,500 
($10,000 minus $4,500), and the depreciation which would have resulted 
under such method for 1968 and 1969 would have been $678 for each such 
year, that is, one-eighth of $5,423 ($5,500 minus $77). As of January 1, 
1970, the additional depreciation for the property is $567, as computed 
in the table below:

------------------------------------------------------------------------
                                                             Additional
              Years               Depreciation   Straight   depreciation
                                                   line       (deficit)
------------------------------------------------------------------------
1964 through 1967...............       $4,723       $3,600       $1,123
1968............................          400          678        (278)
1969............................          400          678        (278)
------------------------------------------------------------------------
Sum for periods after Dec. 31,          5,523        4,956          567
 1963...........................
------------------------------------------------------------------------

    Example 3. On January 1, 1978, a calendar year taxpayer sells 
section 1250 property. The property, which is attributable to 
rehabilitation expenditures of $50,000 incurred in 1970, was placed in 
service on January 1, 1971. The taxpayer elected to compute depreciation 
for the period of 1971 through 1975 under section 167(k). Under such 
section salvage value is not taken into account in computing annual 
allowances, and the useful life of the property is deemed to be 5 years. 
For purposes of applying subparagraph (4) of this paragraph, if the 
taxpayer had used the straight line method permitted under section 
167(b)(1) for such period, he would have used a salvage value of $5,000 
and a useful life of

[[Page 424]]

15 years. Depreciation under the straight line method would thus have 
been $3,000 each year, \1/15\ of $45,000 (that is, $50,000 minus 
$5,000). As of January 1, 1978, the additional depreciation for the 
property is $29,000, as computed in the table below:

------------------------------------------------------------------------
                                                             Additional
              Year                    Actual     Straight   depreciation
                                  depreciation     line       (deficit)
------------------------------------------------------------------------
1971............................      $10,000       $3,000       $7,000
1972............................       10,000        3,000        7,000
1973............................       10,000        3,000        7,000
1974............................       10,000        3,000        7,000
1975............................       10,000        3,000        7,000
1976............................  ............       3,000      (3,000)
1977............................  ............       3,000      (3,000)
                                 ---------------------------------------
    Total.......................       50,000       21,000       29,000
------------------------------------------------------------------------

    Example 4. Section 1250 property which has an adjusted basis of 
$108,000 is sold for $146,000 on December 31, 1972, and thus the gain 
realized is $38,000. The property was acquired on December 31, 1963. The 
applicable percentage for the period before January 1, 1970, is 12 
percent (paragraph (d)(2) of Sec. 1.1250-1) and the applicable 
percentage for the period after December 31, 1969, is 100 percent 
(paragraph (d)(1)(i)(e) of Sec. 1.1250-1). The additional depreciation 
must be computed separately for the period before January 1, 1970, and 
for the period after December 31, 1969. Assume that the additional 
depreciation for the period before January 1, 1970, is $32,000 and that 
there is a deficit in additional depreciation of $2,000 for the period 
after December 31, 1969. Accordingly, the additional depreciation for 
the period before January 1, 1970 ($32,000) is reduced to $30,000 by the 
$2,000 deficit in additional depreciation for the period after December 
31, 1969. Although section 1250(a)(1) applies to the property, none of 
the gain is recognized as ordinary income under that section since there 
is a deficit in additional depreciation for the period after December 
31, 1969. Gain is recognized under section 1250(a)(2) since there is 
remaining gain of $38,000 (that is, gain realized, $38,000, minus the 
additional depreciation attributable to periods after December 31, 1969, 
zero). Since the additional depreciation attributable to the period 
before January 1, 1970 ($30,000), is lower than the gain realized 
($38,000), the amount of gain recognized under section 1250(a)(2) is 
$3,600 (that is, 12 percent of $30,000).
    Example 5. Section 1250 property which has an adjusted basis of 
$207,000 is sold for $267,000 on February 24, 1988, and thus the gain 
realized is $60,000. The property was acquired on April 30, 1970. The 
applicable percentage for the period from April 30, 1970, through 
December 31, 1981, is 60 percent (paragraph (d)(1)(i)(c) of Sec. 
1.1250-1) and the applicable percentage for the period from January 1, 
1982, through February 24, 1988, is 100 percent (paragraph (d)(1)(i)(e) 
of Sec. 1.1250-1). The additional depreciation must be computed 
separately for the period before January 1, 1982, and for the period 
after December 31, 1981. Assume that the additional depreciation for the 
period before January 1, 1982, is $43,000 and that there is a deficit in 
additional depreciation of $6,000 for the period after December 31, 
1981. Accordingly, the additional depreciation for the period before 
January 1, 1982 ($43,000), is reduced to $37,000 by the $6,000 deficit 
for the period after December 31, 1981. There is no gain recognized 
under section 1250(a)(1) for the period after December 31, 1981, since 
there is a deficit in additional depreciation for that period. The gain 
recognized under section 1250(a)(1) for the period before January 1, 
1982, is $22,200, that is, the lower of the gain realized attributable 
to that period ($60,000) or the additional depreciation attributable to 
that period ($37,000), or $37,000, multiplied by 60 percent, the 
applicable percentage.

    (c) Property held by lessee--(1) Amount depreciation would have 
been. For purposes of paragraph (b) of this section, in case of a 
leasehold which is section 1250 property, in determining the amount the 
depreciation adjustments would have been under the straight line method 
in respect of any building or other improvement (which is section 1250 
property) erected or made on the leased property, or in respect of any 
cost of acquiring the lease, the lease period shall be treated as 
including all renewal periods. See section 1250(b)(2). For determination 
of the extent to which a leasehold is section 1250 property, see 
paragraph (e)(3) of Sec. 1.1250-1.
    (2) Renewal period. (i) For purposes of this paragraph, the term 
renewal period means any period for which the lease may be renewed, 
extended, or continued pursuant to an option or options exercisable by 
the lessee (whether or not specifically provided for in the lease) 
except that the inclusion of one or more renewal periods shall not 
extend the period taken into account by more than two-thirds of the 
period on the basis of which the depreciation adjustments were allowed.
    (ii) In respect of the cost of any building erected (or other 
improvement made) on the leased property by the lessee, or in respect of 
the portion of the cost of acquiring a leasehold which is attributable 
to an existing building (or other improvement) on the leasehold at the 
time the lessee acquires the

[[Page 425]]

leasehold, the inclusion of one or more renewal periods shall not extend 
the period taken into account to a period which exceeds the useful life 
remaining, at the time the leasehold is disposed of, of such building 
(or such other improvement). Determinations under this subdivision shall 
be made without regard to the proper period under section 167 or 178 for 
depreciating or amortizing a leasehold acquisition cost or improvement.
    (iii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: Assume that a leasehold improvement with a useful life of 
30 years is properly amortized on the basis of a 10-year initial lease 
term. The lease is renewable for an additional 9 years. The period taken 
into account is 16\2/3\ years, that is, 10 years plus two-thirds of 10 
years. If, however, the leasehold improvement were disposed of at the 
end of 12 years, and if its remaining useful life were only 3 years, 
then the period taken into account would be 15 years.

    (d) Depreciation adjustments--(1) General. For purposes of this 
section, the term depreciation adjustments means, in respect of any 
property, all adjustments reflected in the adjusted basis of such 
property on account of deductions described in subparagraph (2) of this 
paragraph allowed or allowable (whether in respect of the same or other 
property) to the taxpayer or to any other person. For cases where the 
taxpayer can establish that the amount allowed for any period was less 
than the amount allowable, see subparagraph (4) of this paragraph. For 
determination of adjusted basis of property in a multiple asset account, 
see paragraph (c)(3) of Sec. 1.167(a)-8. The term depreciation 
adjustments as used in this section does not have the same meaning as 
the term adjustments reflected in the adjusted basis as defined in 
paragraph (a)(2) of Sec. 1.1245-2.
    (2) Deductions. The deductions described in this subparagraph are 
allowances (and amounts treated as allowances) for depreciation or 
amortization (other than amortization under section 168, 169 (as enacted 
by section 704(a), Tax Reform Act of 1969 (83 Stat. 667)), or 185). 
Thus, for example, such deductions include a reasonable allowance for 
exhaustion, wear, and tear (including a reasonable allowance for 
obsolesence) under section 167, the periodic deductions referred to in 
Sec. 1.162-11 in respect of a specified sum paid for the acquisition of 
a leasehold and in respect of the cost to a lessee of improvements on 
property of which he is the lessee. However, such deductions do not 
include deductions for the periodic payment of rent.
    (3) Depreciation of other taxpayers or in respect of other property. 
(i) The depreciation adjustments (reflected in the adjusted basis) 
referred to in subparagraph (1) of this paragraph (a) are not limited to 
adjustments with respect to the property disposed of, nor to those 
allowed or allowable to the taxpayer disposing of such property, and (b) 
except as provided in subparagraph (4) of this paragraph, are taken into 
account, whether allowed or allowable in respect of the same or other 
property and whether to the taxpayer or to any other person. For manner 
of determining the amount of additional depreciation after certain 
dispositions, see paragraph (e) of this section.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: On January 1, 1966, a calendar year taxpayer purchases for 
$100,000 a building for use in his trade or business. He takes 
depreciation deductions of $20,000 (the amount allowable), of which 
$3,000 is additional depreciation, and transfers the building to his son 
as a gift on January 1, 1968. Since the exception for gifts in section 
1250(d)(1) applies, the taxpayer does not recognize gain under section 
1250(a)(2). In the son's adjusted basis of $80,000 for the building 
there is reflected $3,000 of additional depreciation. On January 1, 
1969, after taking a depreciation deduction of $10,000 (the amount 
allowable), of which $1,000 is additional depreciation, the son sells 
the building. At the time of the sale the additional depreciation is 
$4,000 ($3,000 allowed the father plus $1,000 allowed the son).

    (4) Depreciation allowed or allowable. (i) For purposes of 
subparagraph (1) of this paragraph, generally all deductions (described 
in subparagraph (2) of this paragraph) allowed or allowable shall be 
taken into account. See section 1016(a)(2) and the regulations 
thereunder for the meaning of allowed and allowable. However, if a 
taxpayer can establish by adequate records or

[[Page 426]]

other sufficient evidence that the amount allowed for any period was 
less than the amount allowable for such period, the amount to be taken 
into account for such period shall be the amount allowed. The preceding 
sentence shall not apply for purposes of computing under paragraph 
(b)(1)(ii) of this section the amount such deductions would have been 
under the straight line method.
    (ii) The provisions of subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example: In the year 1969 it becomes necessary to determine the 
additional depreciation in respect of section 1250 property, the 
adjusted basis of which reflects a depreciation adjustment of $1,000 
with respect to depreciation deductions allowable for the calendar year 
1965 under the sum of the years-digits method. Under paragraph 
(b)(1)(ii) of this section, the depreciation which would have resulted 
under the straight line method for 1965 is $800. If the taxpayer can 
establish by adequate records or other sufficient evidence that he did 
not take, and was not allowed, any deduction for depreciation in respect 
of the property in 1965, then, for purposes of computing the 
depreciation adjustments in excess of straight line in respect of the 
property, the amount to be taken into account for 1965 as allowed or 
allowable is zero, and the amount to be taken into account in computing 
deductions which would have resulted under the straight line method in 
1965 is $800. Thus, in effect, there is a deficit in additional 
depreciation for 1965 of $800.

    (5) Retired or demolished property. Depreciation adjustments 
referred to in subparagraph (1) of this paragraph generally do not 
include adjustments in respect of retired or demolished portions of an 
item of section 1250 property. If a retired or demolished portion is 
replaced in a disposition described in section 1250(d)(4)(A) (relating 
to like kind exchanges and involuntary conversions), see paragraph 
(d)(7) of Sec. 1.1250-3.
    (6) Exempt organization. In respect of property disposed of by an 
organization which is or was exempt from income taxes (within the 
meaning of section 501(a), the depreciation adjustments (reflected in 
the adjusted basis) referred to in subparagraph (1) of this paragraph 
shall include only adjustments allowed or allowable (i) in computing 
unrelated business taxable income (as defined in section 512(a)), or 
(ii) in computing taxable income of the organization for a period during 
which it was not exempt or, by reason of the application of section 502, 
503, or 504, was denied its exemption.
    (e) Additional depreciation immediately after certain acquisitions--
(1) Zero. If on the date a person acquires property his basis for the 
property is determined solely (i) by reference to its cost (within the 
meaning of section 1012), (ii) by reason of the application of section 
301(d) (relating to basis of property received in corporate 
distribution) or section 334(a) (relating to basis of property received 
in a liquidation in which gain or loss is recognized), or (iii) under 
the rules of section 334 (b)(2) or (c) (relating to basis of property 
received in certain corporate liquidations), then on such date the 
additional depreciation for the property is zero.
    (2) Transactions referred to in section 1250(d). In the case of 
property acquired in a disposition described in section 1250(d) 
(relating to exceptions and limitations to application of section 1250), 
additional depreciation shall be computed in accordance with the rules 
prescribed in Sec. 1.1250-3.
    (f) Records to be kept and information to be filed--(1) Records to 
be kept. In any case in which it is necessary to determine the 
additional depreciation of an item of section 1250 property, the 
taxpayer shall have available permanent records of all the facts 
necessary to determine with reasonable accuracy the amount of such 
additional depreciation, including the following:
    (i) The date, and the manner in which, the property was acquired,
    (ii) The taxpayer's basis on the date the property was acquired and 
the manner in which the basis was determined,
    (iii) The amount and date of all adjustments to the basis of the 
property allowed or allowable to the taxpayer for depreciation 
adjustments referred to in paragraph (d)(1) of this section and the 
amount and date of any other adjustments by the taxpayer to the basis of 
the property, and

[[Page 427]]

    (iv) In the case of section 1250 property which has an adjusted 
basis reflecting depreciation adjustments referred to in paragraph 
(d)(1) of this section taken by the taxpayer with respect to other 
property, or by another taxpayer with respect to the same or other 
property, the information described in subdivisions (i), (ii), and (iii) 
of this subparagraph with respect to such other property or such other 
taxpayer.
    (2) Information to be filed. If a taxpayer acquires in a transaction 
(other than a like kind exchange or involuntary conversion described in 
section 1250(d)(4)) section 1250 property which has a basis reflecting 
depreciation adjustments referred to in paragraph (d)(1) of this section 
allowed or allowable to another taxpayer, then the taxpayer shall file 
with its income tax return or information return for the taxable year in 
which the property is acquired a statement showing all information 
described in subparagraph (1) of this paragraph. See section 6012 
(relating to persons required to make returns of income) and part III of 
subchapter A of chapter 61 of the Code (relating to information 
returns).

[T.D. 7084, 36 FR 273, Jan. 8, 1971, as amended by T.D. 7193, 37 FR 
12956, June 30, 1972]



Sec. 1.1250-3  Exceptions and limitations.

    (a) Exception for gifts--(1) General rule. Section 1250(d)(1) 
provides that no gain shall be recognized under section 1250(a) upon a 
disposition by gift. For purposes of this paragraph, the term gift shall 
have the same meaning as in paragraph (a) of Sec. 1.1245-4. For 
reduction in amount of charitable contribution in case of a gift of 
section 1250 property, see section 170(e) and paragraph (c)(3) of Sec. 
1.170-1.
    (2) Disposition in part a sale or exchange and in part a gift. Where 
a disposition of property is in part a sale or exchange and in part a 
gift, the disposition shall be subject to the provisions of Sec. 
1.1250-1 and the gain to which section 1250(a) applies, shall be 
computed under that section.
    (3) Treatment of property in hands of transferee. If property is 
disposed of in a transaction which is a gift:
    (i) The additional depreciation for the property in the hands of the 
transferee immediately after the disposition shall be an amount equal to 
(a) the amount of the additional depreciation for the property in the 
hands of the transferor immediately before the disposition, minus (b) 
the amount of any gain (in case the disposition is in part a sale or 
exchange and in part a gift) which would have been taken into account 
under section 1250(a) by the transferor upon the disposition if the 
applicable percentage had been 100 percent.
    (ii) For purposes of computing the applicable percentage, the 
holding period under section 1250(e)(2) of property received as a gift 
in the hands of the transferee includes the transferor's holding period,
    (iii) In case of a disposition which is in part a sale or exchange 
and in part a gift, if the adjusted basis of the property in the hands 
of the transferee exceeds its adjusted basis immediately before the 
transfer, the excess is an addition to capital account under paragraph 
(d)(2)(ii) of Sec. 1.1250-5 (relating to property with 2 or more 
elements), and
    (iv) If the property disposed of consists of two or more elements 
within the meaning of paragraph (c) of Sec. 1.1250-5, see paragraph 
(e)(1) of Sec. 1.1250-5 for the amount of additional depreciation and 
holding period for each element in the hands of the transferee.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) On May 15, 1967, Smith transfers section 1250 
property to his son for $45,000. In the hands of Smith the property had 
an adjusted basis of $40,000 and a fair market value of $70,000. Thus, 
the gain realized is $5,000 (amount realized, $45,000, minus adjusted 
basis, $40,000), and Smith has made a gift of $25,000 (fair market 
value, $70,000, minus amount realized, $45,000).
    (ii) Smith's holding period for the property is 80 full months and, 
thus, the applicable percentage under section 1250(a)(2) is 40 percent. 
The additional depreciation for the property is $10,000. Since the gain 
realized ($5,000) is lower than the additional depreciation ($10,000), 
Smith recognized as ordinary income under section 1250(a)(2) gain of 
$2,000 (that is, applicable percentage, 40 percent, multiplied by gain 
realized, $5,000) and the $3,000 remaining portion of the gain realized 
may be treated as gain from the sale of property described in section 
1231.

[[Page 428]]

    (iii) On the date the son receives the property, the additional 
depreciation for the property in his hands is $5,000, that is, the 
additional depreciation for the property in the hands of the father 
immediately before the transfer ($10,000), minus the gain which would 
have been recognized under section 1250(a)(2) upon the transfer if the 
applicable percentage had been 100 percent ($5,000); for purposes of 
computing applicable percentage his holding period is his father's 
holding period of 80 full months; and under Sec. 1.1015-4 his 
unadjusted basis for the property is $45,000, that is, the amount he 
paid ($45,000) plus the excess (zero) of his father's adjusted basis 
over such amount.
    (iv) The son sells the property for $80,000 on March 15, 1968, 10 
full months after he received it from his father. Thus, his holding 
period is 90 full months (his father's holding period of 80 full months 
plus the 10 full months the son actually owned the property) and the 
applicable percentage under section 1250(a)(2) is 30 percent. Assume 
that no depreciation was allowed or allowable to the son. Thus, the 
son's adjusted basis and additional depreciation for the property on the 
date of the sale is the same as on the date he received it. Accordingly, 
the gain realized is $35,000 (selling price of $80,000, minus adjusted 
basis of $45,000). Since the additional depreciation ($5,000) is lower 
than the gain realized ($35,000), the son recognizes as ordinary income 
under section 1250(a)(2) gain of $1,500, that is, applicable percentage 
(30 percent) multiplied by additional depreciation ($5,000).
    Example 2. Assume the same facts as in example (1), except that the 
son sells the property on June 15, 1969, 25 full months after he 
received it from his father. Thus, his holding period is 105 full months 
(his father's holding period of 80 full months plus the 25 full months 
the son actually owned the property) and the applicable percentage under 
section 1250(a)(2) is 15 percent. Assume further that on the date of the 
sale the adjusted basis of the property is $39,000, and that for the 
period the son actually owned the property there is a deficit in 
additional depreciation of $2,000. Accordingly, the gain realized is 
$41,000 (selling price of $80,000, minus adjusted basis of $39,000), and 
the additional depreciation for the property is $3,000 (that is, the 
additional depreciation for the property in the hands of the son on the 
date he received it, as determined in example (1), $5,000, minus the 
amount of the deficit in additional depreciation for the period the son 
actually owned the property, ($2,000). Since the additional depreciation 
($3,000) is lower than the gain realized ($41,000), the son recognizes 
as ordinary income under section 1250(a)(2) gain of $450, that is, 
applicable percentage (15 percent) multiplied by additional depreciation 
($3,000).

    (b) Exception for transfers at death--(1) General rule. Section 
1250(d)(2) provides that, except as provided in section 691 (relating to 
income in respect of a decedent), no gain shall be recognized under 
section 1250(a) upon a transfer at death. For purposes of this 
paragraph, the term transfer at death shall have the same meaning as in 
paragraph (b) of Sec. 1.1245-4.
    (2) Treatment of transferee. (i) If as of the date a person acquires 
property from a decedent such person's basis is determined, by reason of 
the application of section 1014(a), solely by reference to the fair 
market value of the property on the date of the decedent's death or on 
the applicable date provided in section 2032 (relating to alternate 
valuation date), then (a) on the date of death the additional 
depreciation for the property is zero, and (b) for purposes of computing 
applicable percentage the holding period of the property under section 
1250(e)(1)(A) is deemed to begin on the day after the date of death.
    (ii) If property is acquired in a transfer at death to which section 
1250(d)(2) applies, the amount of the additional depreciation for the 
property in the hands of the transferee immediately after the transfer 
shall be the amount (if any) of the additional depreciation in respect 
of the property allowed the transferee before the decedent's death, but 
only to the extent that the basis of the property (determined under 
section 1014(a)) is required to be reduced under the second sentence of 
section 1014(b)(9) (relating to adjustments to basis where property is 
acquired from a decedent prior to his death) by depreciation adjustments 
referred to in paragraph (d)(1) of Sec. 1.1250-2 which give rise to 
such additional depreciation. For treatment of such property as having a 
special element with additional depreciation so computed, see paragraph 
(c)(5)(i) of Sec. 1.1250-5 (relating to property with two or more 
elements). For purposes of determining applicable percentage, such 
special element shall have a holding period which includes the 
transferee's holding period for such property for the period before the 
decedent's death.

[[Page 429]]

    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On March 6, 1966, Smith dies owning an item of section 
1250 property. On March 7, 1968, the executor distributes the property 
to Smith's son pursuant to a specific bequest of the property in Smith's 
will. Under section 1014(a)(2) and paragraph (a)(2) of Sec. 1.1014-4, 
the unadjusted basis of the property in the hands of the son is its fair 
market value on March 6, 1966 (the date Smith died), and the son is 
considered to have acquired the property on such date. Under section 
1250(e)(1)(A), the son's holding period for the property begins on March 
7, 1966 (the day after the day he is considered to have acquired the 
property). Thus, on March 7, 1968 (the date the property was distributed 
to the son), the holding period for the property is 24 full months, and 
the applicable percentage under section 1250(a)(2) is 96 percent. On 
such date, the additional depreciation for the property includes any 
additional depreciation in respect of the property for the period the 
property was possessed by the estate.
    Example 2. H purchases section 1250 property in 1965 which he 
immediately conveys to himself and W, his wife, as tenants by the 
entirety. Under local law each spouse is entitled to one-half the income 
from the property. H and W file joint income tax returns for calendar 
years 1965, 1966, and 1967. Over the 3 years, depreciation allowed in 
respect of the property was $4,000 (the amount allowable) of which $500 
is additional depreciation. One-half of these amounts are allocable to 
W. Thus, depreciation deductions of $2,000, of which $250 is additional 
depreciation, are allowable to W. On January 1, 1968, H dies and the 
entire value of the property at the date of death is included in H's 
gross estate. Since W's basis for the property (determined under section 
1014(a)) is reduced (under the second sentence of section 1014(b)(9)) by 
the $2,000 depreciation deductions allowed W before H's death of which 
$250 is additional depreciation, the additional depreciation for the 
property in the hands of W immediately after H's death is $250.

    (c) Limitation for certain tax-free transactions--(1) General. 
Section 1250(d)(3) provides that upon a transfer of property described 
in subparagraph (2) of this paragraph, the amount of gain taken into 
account by the transferor under section 1250(a) shall not exceed the 
amount of gain recognized to the transferor on the transfer (determined 
without regard to section 1250). For purposes of this subparagraph, in 
case of a transfer of both section 1250 property and nonsection 1250 
property in one transaction, the amount realized from the disposition of 
the section 1250 property shall be deemed to consist of that portion of 
the fair market value of each property acquired which bears the same 
ratio to the fair market value of such acquired property as the amount 
realized from the disposition of the section 1250 property bears to the 
total amount realized. The preceding sentence shall be applied solely 
for purposes of computing the portion of the total gain (determined 
without regard to section 1250) which shall be recognized as ordinary 
income under section 1250(a). Section 1250(d)(3) does not apply to a 
disposition of property to an organization (other than a cooperative 
described in section 521) which is exempt from the tax imposed by 
chapter 1 of the Code.
    (2) Transfers covered. The transfers described in this subparagraph 
are transfers of property in which the basis of the property in the 
hands of the transferee is determined by reference to its basis in the 
hands of the transferor by reason of the application of any of the 
following provisions:
    (i) Section 332 (relating to distributions in complete liquidation 
of an 80 percent or more controlled subsidiary corporation). For 
application of section 1250(d)(3) to such a complete liquidation, the 
principles of paragraph (c)(3) of Sec. 1.1245-4 shall apply.
    (ii) Section 351 (relating to transfer to a corporation controlled 
by transferor).
    (iii) Section 361 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 371(a) (relating to exchanges pursuant to certain 
receivership and bankruptcy proceedings).
    (v) Section 374(a) (relating to exchanges pursuant to certain 
railroad reorganizations).
    (vi) Section 721 (relating to transfers to a partnership in exchange 
for a partnership interest).
    (vii) Section 731 (relating to distributions by a partnership to a 
partner). For special carryover basis rule, see section 1250(d)(6)(A) 
and paragraph (f)(1) of this section.
    (3) Treatment of property in hands of transferee. In the case of a 
transfer described in subparagraph (2) (other than

[[Page 430]]

subdivision (vii) thereof) of this paragraph:
    (i) The additional depreciation for the property in the hands of the 
transferee immediately after the disposition shall be an amount equal to 
(a) the amount of the additional depreciation for the property in the 
hands of the transferor immediately before the disposition, minus (b) 
the amount of additional depreciation necessary to produce an amount 
equal to the gain taken into account under section 1250(a) by the 
transferor upon the disposition (taking into account the applicable 
percentage for the property),
    (ii) For purposes of computing applicable percentage, the holding 
period under section 1250(e)(2) of the property in the hands of the 
transferee includes the transferor's holding period,
    (iii) If the adjusted basis of the property in the hands of the 
transferee exceeds its adjusted basis immediately before the transferee, 
the excess is an addition to capital account under paragraph (d)(2)(ii) 
of Sec. 1.1250-5 (relating to property with 2 or more elements), and
    (iv) If the property disposed of consists of 2 or more elements 
within the meaning of paragraph (c) of Sec. 1.1250-5, see paragraph 
(e)(1) of Sec. 1.1250-5 for the amount of additional depreciation and 
the holding period for each element in the hands of the transferee.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) Green transfers section 1250 property on March 1, 
1968, to a corporation, which is not exempt from taxation, in exchange 
for cash of $9,000 and stock in the corporation worth $91,000, in a 
transaction qualifying under section 351. Thus, the amount realized is 
$100,000 ($9,000 plus $91,000). The property has an applicable 
percentage under section 1250(a)(2) of 60 percent, an adjusted basis of 
$40,000, and additional depreciation of $20,000. The gain realized is 
$60,000, that is, amount realized ($100,000) minus adjusted basis 
($40,000). Since the additional depreciation ($20,000) is lower than the 
gain realized ($60,000), the amount of gain which would be treated as 
ordinary income under section 1250(a)(2) would be $12,000 (60 percent of 
$20,000) if the limitation provided in section 1250(d)(3) did not apply. 
Since under section 351(b) gain in the amount of $9,000 would be 
recognized to the transferor without regard to section 1250, the 
limitation provided in section 1250(d)(3) limits the gain taken into 
account by the transferor under section 1250(a)(2) to $9,000.
    (ii) The amount of additional depreciation for the property in the 
hands of the transferee immediately after the transfer is $5,000, that 
is, the amount of additional depreciation before the transfer ($20,000) 
minus the amount of additional depreciation necessary to produce an 
amount equal to the gain recognized under section 1250(a)(2) upon the 
transfer ($15,000, that is, $9,000 of gain recognized divided by 60 
percent, the applicable percentage). (If the property is subsequently 
disposed of, and for the period after the initial transfer there is 
additional depreciation in respect of the property, then at the time of 
the subsequent disposition the additional depreciation will exceed 
$5,000. If, however, for the period after the initial transfer there was 
a deficit in additional depreciation, then at the time of the subsequent 
disposition the additional depreciation would be less than $5,000.)
    Example 2. (i) Assume the same facts as in example (1) except that 
the additional depreciation is $10,000. Since additional depreciation 
($10,000) is lower than the gain realized ($60,000), the amount of gain 
which would be treated as ordinary income under section 1250(a)(2) would 
be $6,000 (60 percent of $10,000) if the limitation provided in section 
1250(d)(3) did not apply. Since under section 351(b) gain in the amount 
of $9,000 would be recognized to the transferor without regard to 
section 1250, the limitation under section 1250(d)(3) does not prevent 
treatment of the entire $6,000 as ordinary income under section 
1250(a)(2). The $3,000 remaining portion of the $9,000 gain may be 
treated as gain from the sale of property described in section 1231.
    (ii) Immediately after the transfer, the amount of additional 
depreciation is zero, that is, the amount of additional depreciation 
before the transfer ($10,000) minus the amount of additional 
depreciation necessary to produce an amount equal to the gain taken into 
account under section 1250(a)(2) upon the transfer ($10,000) that is, 
$6,000 divided by 60 percent.
    Example 3. (i) Miller transfers section 1250 property after December 
31, 1969, to a corporation, which is not exempt from taxation, in 
exchange for cash of $9,000 and stock in the corporation worth $31,000, 
in a transaction qualifying under section 351. Thus, the amount realized 
is $40,000 ($9,000 plus $31,000). The property has an applicable 
percentage under paragraph (d)(1)(i)(e) of this section of 100 percent 
and an applicable percentage under paragraph (d)(2) of this section of 
50 percent. The adjusted basis of the property on the date of the 
transfer is $24,000, and the gain realized is $16,000 (that is, amount 
realized, $40,000, minus adjusted basis, $24,000). The additional 
depreciation attributable to periods after December 31, 1969, is

[[Page 431]]

$8,000 and the additional depreciation attributable to periods before 
January 1, 1970, is $12,000. Since the additional depreciation 
attributable to periods after December 31, 1969 ($8,000), is lower than 
the gain realized ($16,000), the amount of gain which would be 
recognized as ordinary income under section 1250(a)(1) would be $8,000 
(100 percent of $8,000) if the limitation provided in section 1250(d)(3) 
did not apply. In addition, gain is recognized under section 1250(a)(2) 
since there is a remaining potential gain of $8,000 (that is, gain 
realized, $16,000, minus additional depreciation attributable to periods 
after December 31, 1969 ($8,000)). Since the remaining potential gain 
($8,000) is lower than the additional depreciation attributable to 
periods before January 1, 1970 ($12,000), the amount of gain which would 
be recognized under section 1250(a)(2) would be $4,000 (50 percent of 
$8,000) if the limitation in section 1250(d)(3) did not apply. Since 
under section 351(b) gain in the amount of $9,000 would be recognized to 
the transferor without regard to section 1250, the limitation in section 
1250(d)(3) limits the gain taken into account by the transferor under 
section 1250(a) to $9,000. Since the section 1250(a)(1) gain is 
considered as recognized first under paragraph (a)(1)(iii) of Sec. 
1.1250-1, of the $9,000 of gain recognized, $8,000 is recognized under 
section 1250(a)(1) and $1,000 is recognized under section 1250(a)(2).
    (ii) The amount of additional depreciation for the property in the 
hands of the transferee immediately after the transfer is $10,000, the 
amount of additional depreciation immediately before the transfer 
($20,000), minus the sum of (a) the amount of additional depreciation 
necessary to produce an amount equal to the gain recognized under 
section 1250(a)(1) upon the transfer, $8,000 (that is, gain recognized 
under section 1250(a)(1), $8,000, divided by 100 percent, the applicable 
percentage under section 1250(a)(1)), plus (b) the amount of additional 
depreciation necessary to produce an amount equal to the gain recognized 
under section 1250(a)(2) upon the transfer, $2,000 (that is, gain 
recognized under section 1250(a)(2), $1,000, divided by 50 percent, the 
applicable percentage under section 1250(a)(2)). Of this amount, zero 
(that is, $8,000 minus $8,000) is attributable to periods after December 
31, 1969, and $10,000 ($12,000 minus $2,000) is attributable to periods 
before January 1, 1970.

    (d) Limitation for like kind exchanges and involuntary conversions--
(1) Limitation on gain. (i) Under section 1250(d)(4)(A), if property is 
disposed of and gain (determined without regard to section 1250) is not 
recognized in whole or in part under section 1031 (relating to like kind 
exchanges) or section 1033 (relating to involuntary conversions), then 
the amount of gain taken into account by the transferor under section 
1250(a) shall not exceed the greater of the two limitations set forth in 
subdivisions (ii) and (iii) of this subparagraph. Immediately after the 
transfer the basis of the acquired property shall be determined under 
subparagraph (2), (3), or (4) (whichever is applicable) of this 
paragraph, and its additional depreciation shall be computed under 
subparagraph (5) of this paragraph. The holding period of the acquired 
property for purposes of computing applicable percentage, which is 
determined under section 1250(e)(1), does not include the holding period 
of the property disposed of. In the case of a disposition of section 
1250 property and other property in one transaction, see subparagraph 
(6) of this paragraph. In case of a disposition described in section 
1250(d)(4)(A) of a portion of this item of property, see subparagraph 
(7) of this paragraph.
    (ii) For purposes of this subparagraph, the first limitation is the 
sum of:
    (a) The amount of gain recognized on the disposition under section 
1031 or 1033 (determined without regard to section 1250), plus
    (b) An amount equal to the cost of any stock purchased in a 
corporation which (without regard to section 1250) would result in 
nonrecognition of gain under section 1033(a)(3)(A).
    (iii) For purposes of this subparagraph, the second limitation is 
the excess (if any) of:
    (a) The amount of gain which would (without regard to section 
1250(d)(4)) be taken into account under section 1250(a), over
    (b) The fair market value (or cost in the case of a transaction 
described in section 1033(a)(3)) of the section 1250 property acquired 
in the transaction.
    (iv) The provisions of this subparagraph may be illustrated by the 
following example:

    Example: A taxpayer receives $96,000 of insurance proceeds upon the 
destruction of section 1250 property by fire. If section 1250(d)(4)(A) 
did not apply to the disposition, $16,000 of gain would be recognized 
under section 1250(a). In acquisitions qualifying under section 
1033(a)(3)(A), he uses $90,000 of the

[[Page 432]]

proceeds to purchase property similar or related in service or use to 
the property destroyed, of which $42,000 is for one item of section 1250 
property and $48,000 is for one piece of land, and $5,000 of the 
proceeds to purchase stock in the acquisition of control of a 
corporation owning property similar or related in service or use to the 
property destroyed. The taxpayer properly elects under section 
1033(a)(3)(A) and the regulations thereunder to limit recognition of 
gain (determined without regard to section 1250) to $1,000, that is, the 
excess of the amount realized from the conversion ($96,000) over the 
cost of the property acquired in acquisitions qualifying under section 
1033(a)(3)(A) ($95,000, that is, $90,000 plus $5,000). The amount of 
gain recognized under section 1250(a) is $6,000, determined in the 
following manner:

The first limitation:
  (a) Amount of gain recognized under section 1033(a)(3),         $1,000
   determined without regard to section 1250(a).............
  (b) Fair market value of stock in a corporation which            5,000
   qualifies under section 1033(a)(3)(A)....................
                                                             -----------
  (c) Sum of (a) plus (b)...................................       6,000
The second limitation:
  (d) Amount of gain which would be recognized under section      16,000
   1250(a) if section 1250(d)(4) did not apply..............
  (e) Cost of section 1250 property acquired in transaction.      42,000
                                                             ===========
    (f) Excess of (d) over (e)..............................           0
 


Since the first limitation ($6,000) exceeds the second limitation 
(zero), the amount of gain recognized under section 1250(a) is $6,000. 
The balance ($10,000) of the gain realized ($16,000) is not recognized.

    (2) Basis of property purchased upon involuntary conversion into 
money. (i) If section 1250 property is purchased in a compulsory or 
involuntary conversion to which section 1033(a)(3) applies, and if by 
reason of the application of section 1250(d)(4)(A) all or part of the 
gain computed under section 1250(a) is not taken into account, then the 
basis of the section 1250 property and other purchased property shall be 
determined under the rules prescribed in this subparagraph. See section 
1250(d)(4)(D).
    (ii) The total basis of all purchased property, the acquisition of 
which results in the nonrecognition of any part of the gain realized 
upon the transaction, shall be (a) its cost, reduced by (b) the portion 
of the total gain realized which was not recognized. To the extent that 
section 1250(d)(4)(A)(i) prevents the purchase of stock from resulting 
in nonrecognition of gain, the basis of purchased stock is its cost.
    (iii) If purchased property consists of both section 1250 property 
and other property, the total basis computed under subdivision (ii) of 
this subparagraph shall be allocated between the section 1250 property 
(treated as a class) and the other property (treated as a class) in 
proportion to their respective costs, except that for purposes of this 
subdivision (but not subdivision (iv) of this subparagraph) the cost of 
the section 1250 property shall be deemed to be the excess of (a) its 
actual cost, over (b) the gain not taken into account under section 
1250(a) by reason of the application of section 1250(d)(4)(A).
    (iv) If the property acquired consists of more than one item of 
section 1250 property (or of more than one item of other property), the 
total basis of the section 1250 property (or of the other property), as 
computed under subdivisions (ii) and (iii) of this subparagraph, shall 
be allocated to each item of section 1250 property (or other property) 
in proportion to their respective actual costs.
    (v) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. Assume the same facts as in the example in subparagraph 
(1)(iv) of this paragraph. Assume further that the portion of the gain 
realized which was not recognized under section 1033(a)(3) or 1250(a) 
upon the transaction is $60,000, of which the gain computed under 
section 1250(a) which is not taken into account by reason of the 
application of section 1250(d)(4)(A) is $10,000, that is, the excess of 
the gain which would have been recognized under section 1250(a) if 
section 1250(d)(4)(A) did not apply ($16,000) over the gain recognized 
under section 1250(a) ($6,000). In such example $95,000 of proceeds were 
used to purchase property in acquisitions qualifying under section 
1033(a)(3)(A) of which $42,000 was for section 1250 property, $48,000 
for land, and $5,000 for stock in a corporation. The basis of each 
acquired property is determined in the following manner:
    (a) Under subdivision (ii) of this subparagraph, the total basis of 
the acquired properties (other than the stock) is $30,000, that is, 
their cost ($90,000, of which $42,000 is for section 1250 property and 
$48,000 is for land), reduced by the portion of the total gain realized 
which was not recognized ($60,000).
    (b) Under subdivision (iii) of this subparagraph, such total basis 
is allocated between

[[Page 433]]

the section 1250 property and the land in proportion to their respective 
costs, and for this purpose the cost of the section 1250 property is 
considered to be $32,000, that is, its actual cost ($42,000) minus the 
gain not recognized under section 1250(a) by reason of the application 
of section 1250(d)(4)(A) ($10,000). Thus, the basis of the section 1250 
property is $12,000 (32/80 of $30,000), and the basis of the land is 
$18,000 (48/80 of $30,000).
    (c) The basis of the purchased stock is its cost of $5,000. See last 
sentence of subdivision (ii) of this subparagraph.
    Example 2. Assume the same facts as in example (1) except that the 
section 1250 property purchased for $42,000 consists of 2 items of such 
property ($10,500 for C, and $31,500 for D), and that the land purchased 
for $48,000 consists of 2 pieces of land ($12,000 for X, and $36,000 for 
Y). Under subdivision (iv) of this subparagraph, the total basis for 
each class of property is allocated between the individual properties of 
such class in proportion to their respective actual costs. Thus, the 
total basis of $12,000, as determined in example (1), for the section 
1250 property is allocated as follows:

To C: $12,000x($10,500/$42,000).............................      $3,000
To D: $12,000x($31,500/$42,000).............................       9,000
                                                             -----------
    Total...................................................      12,000
 


The total basis of $18,000, as determined in example (1), for the land 
is allocated as follows:

To X: $18,000x($12,000/$48,000).............................      $4,500
To Y: $18,000x($36,000/$48,000).............................      13,500
                                                             -----------
    Total...................................................      18,000
 

    (3) Basis of property acquired upon involuntary conversion into 
similar property. If property is involuntarily converted into property 
similar or related in service or use in a transaction to which section 
1033(a)(1) applies, and if by reason of the application of section 
1250(d)(4)(A) all or part of the gain computed under section 1250(a) is 
not taken into account, then:
    (i) The total basis of the acquired property shall be determined 
under the first sentence of section 1033(c), and
    (ii) If more than one item of property is acquired, such total basis 
shall be allocated to the individual items of property acquired in 
accordance with the principles prescribed in subparagraph (2) (iii) and 
(iv) of this paragraph, except that an amount equivalent to the fair 
market value of each item of property on the date acquired shall be 
treated as its actual cost.
    (4) Basis of property acquired in like kind exchange. If section 
1250 property is transferred in an exchange described in section 1031 
(a) or (b), and if by reason of the application of section 1250(d)(4)(A) 
all or part of the gain computed under section 1250(a) is not taken into 
account, then:
    (i) The total basis of the property (including nonsection 1250 
property) acquired of the type permitted to be received under section 
1031 without recognition of gain or loss shall be determined under 
section 1031(d), and
    (ii) If more than one item of property of such type was received, 
such total basis shall be allocated to the individual items of property 
of such type in accordance with the principles prescribed in 
subparagraph (2) (iii) and (iv) of this paragraph, except that an amount 
equivalent to the fair market value of each such item of property on the 
date received shall be treated as its actual cost.
    (5) Additional depreciation for property acquired in like kind 
exchange or involuntary conversion. (i) If property is disposed of in a 
transaction described in section 1031 or 1033, and if by reason of the 
application of section 1250(d)(4)(A) all or part of the gain computed 
under section 1250(a) is not taken into account, then the additional 
depreciation for the acquired property immediately after the transaction 
(as computed under section 1250(d)(4)(E)) shall be an amount equal to 
the amount of gain computed under section 1250(a) which was not taken 
into account by reason of the application of section 1250(d)(4)(A).
    (ii) In case more than one item of section 1250 property is acquired 
in the transaction, the additional depreciation computed under 
subdivision (i) of this subparagraph shall be allocated to each such 
item of section 1250 property in proportion to their respective adjusted 
bases.
    (iii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. (a) On January 15, 1969, section 1250 property X is 
condemned and proceeds of $100,000 are received. On such date, X's 
adjusted basis is $25,000, the additional depreciation is $10,000, and 
the applicable percentage under section 1250(a)(2) is 70 percent. Since 
the additional depreciation ($10,000) is less than the gain realized 
($75,000, that is, $100,000 minus $25,000) the amount of gain

[[Page 434]]

computed under section 1250(a)(2) (without regard to section 
1250(d)(4)(A)) is $7,000, that is, 70 percent of $10,000.
    (b) On March 1, 1969, all the proceeds are used to purchase section 
1250 property Y in a transaction qualifying under section 1033(a)(3)(A) 
for nonrecognition of gain. Accordingly, the gain not recognized by 
reason of the application of section 1033(a)(3)(A) is $75,000, of which 
$7,000 is gain computed under section 1250(a)(2) which is not taken into 
account by reason of the application of section 1250(d)(4)(A). See 
subparagraph (1) of this paragraph.
    (c) Immediately after the transaction, Y's basis is $25,000, that 
is, its cost ($100,000) minus the total gain realized which was not 
recognized ($75,000), and the additional depreciation (as computed under 
section 1250(d)(4)(E)) is $7,000, that is, the amount of gain not taken 
into account under section 1250(a)(2) by reason of the application of 
section 1250(d)(4)(A).
    (d) On December 15, 1969, before any depreciation deductions were 
allowed or allowable in respect of Y, Y is sold for $90,000. Under 
section 1250(e)(1), the holding period of Y is 9 months, and thus, under 
section 1250(a)(2), the applicable percentage is 100 percent. Since the 
additional depreciation ($7,000) is less than the gain realized 
($65,000, that is $90,000 minus $25,000), the amount of gain recognized 
under section 1250(a)(2) as ordinary income is $7,000, that is, 100 
percent of $7,000.
    Example 2. Assume the same facts as in example (1), except that 
property Y was purchased on June 15, 1962, and that 90 full months 
thereafter, or December 15, 1969, it is sold for $35,000. Thus the 
applicable percentage under section 1250(a)(2) is 30 percent. Assume 
further that at the time of such sale Y's adjusted basis is $5,000 and 
additional depreciation in respect of Y for periods after it was 
acquired is $2,500. Thus, the additional depreciation at the time of the 
sale is $9,500, that is, the sum of the additional depreciation in 
respect of Y attributable to X as computed under section 1250(d)(4)(E) 
in (c) of example (1) ($7,000), plus the additional depreciation 
attributable to periods after Y was acquired ($2,500). Since the 
additional depreciation ($9,500) is less than the gain realized 
($30,000, that is, $35,000 minus $5,000), the gain recognized under 
section 1250(a)(2) as ordinary income is $2,850, that is, 30 percent of 
$9,500.

    (6) Single disposition of section 1250 property and property of 
different class. (i) For purposes of this subparagraph:
    (a) Section 1250 property, section 1245 property (as defined in 
section 1245(a)(3)), and other property shall each be treated as a 
separate class of property, and
    (b) The term qualifying property means property which may be 
acquired without recognition of gain under the applicable provision of 
section 1031 or 1033 (applied without regard to section 1250 or 1245) 
upon the disposition of property.
    (ii) If upon a sale of section 1250 property gain would be 
recognized under section 1250(a) and if such section 1250 property 
together with property of a different class or classes are disposed of 
in one transaction in which gain is not recognized in whole or in part 
under section 1031 or 1033 (without regard to sections 1245 and 1250), 
then:
    (a) The total amount realized shall be allocated between the 
different classes of property disposed of in proportion to their 
respective fair market values,
    (b) The amount realized upon the disposition of property of a class 
shall be deemed to consist of so much of the fair market value of 
qualifying property of the same class acquired as is not in excess of 
the amount realized from the property of such class disposed of,
    (c) The remaining portion (if any) of the amount realized upon the 
disposition of property of such class shall be deemed to consist of so 
much of the fair market value of any other property acquired as is not 
in excess of such remaining portion, and
    (d) For purposes of applying (c) of this subdivision, the fair 
market value of acquired property shall be taken into account only once 
and in such manner as the taxpayer determines.
    (iii) The amounts determined under this subparagraph in respect of 
property shall apply for all purposes of the Code.
    (iv) The application of this subparagraph may be illustrated by the 
following example:

    Example: (a) Green owns property consisting of land and a fully 
equipped factory building thereon. The property is condemned and 
proceeds of $100,000 are received. If the property were sold for 
$100,000, gain of $40,000 would be recognized of which $10,000 would be 
recognized as ordinary income under section 1250(a). Proceeds of $95,000 
are used to purchase property similar or related in service or use to 
the condemned property and under section 1033(a)(3)(A) (without regard 
to sections 1245 and 1250) recognition of gain is limited to $5,000. The 
fair market values by

[[Page 435]]

classes of the property disposed of, and of the property acquired, are 
summarized in the table below:

------------------------------------------------------------------------
                                           Fair market value of property
                                         -------------------------------
                                            Disposed of      Acquired
------------------------------------------------------------------------
Section 1245 property...................         $35,000         $55,000
Section 1250 property...................          45,000          28,000
Land....................................          20,000          12,000
Cash....................................  ..............           5,000
                                         -------------------------------
                                                 100,000         100,000
------------------------------------------------------------------------

    (b) The allocations under subdivision (ii) of this subparagraph are 
summarized in the table below:

----------------------------------------------------------------------------------------------------------------
                                                             Property acquired
         Property disposed of         ---------------------------------------------------------------    Cash
                                          Sec. 1245 Property       Sec. 1250 Property        Land      Remaining
----------------------------------------------------------------------------------------------------------------
$35,000 of section 1245 property.....                  $35,000  .......................  ...........  ..........
$45,000 of section 1250 property.....               \1\ 17,000                  $28,000  ...........  ..........
$20,000 of land......................                \1\ 3,000  .......................      $12,000  \1\ $5,000
                                      --------------------------------------------------------------------------
 Total...............................                   55,000                   28,000       12,000       5,000
----------------------------------------------------------------------------------------------------------------
\1\ Determined by taxpayer pursuant to subdivision (ii)(d) of this subparagraph.

    (c) Upon the disposition of the section 1245 property, only section 
1245 property is acquired, and thus gain (if any) would not be 
recognized under section 1245(a)(1). See section 1245(b)(4). Upon the 
disposition of the section 1250 property gain under section 1250(a) 
would not be recognized by reason of the application of section 
1250(d)(4)(A). See subparagraph (1) of this paragraph. If the gain 
realized on the disposition of the land is not less than $5,000, then 
under section 1033(a)(3)(A) the gain recognized would be $5,000, that 
is, an amount equal to the portion of the proceeds from the disposition 
of the land ($5,000) not invested in qualifying property.

    (7) Disposition of portion of property. A disposition described in 
section 1250(d)(4)(A) of a portion of an item of property gives rise to 
an addition to capital account described in the last sentence of 
paragraph (d)(2)(i) of Sec. 1.1250-5 (relating to property with 2 or 
more elements). If the addition to capital account is a separate 
improvement within the meaning of paragraph (d) of Sec. 1.1250-5, and 
thus an element, then immediately after the addition is made the amount 
of additional depreciation for such separate improvement shall be 
computed under subparagraph (5) of this paragraph by treating such 
portion and such addition as separate properties. If the addition is not 
a separate improvement, then immediately after the addition is made such 
property is considered under paragraph (c)(5)(ii) of Sec. 1.1250-5 as 
having a special element with the same amount of additional depreciation 
so computed. For purposes of computing applicable percentage, the 
holding period of the separate improvement or special element (as the 
case may be), which is determined under section 1250(e)(1), does not 
include the holding period of the property disposed of.
    (e) Sections 1071 and 1081 transactions--(1) General. This paragraph 
prescribes regulations under section 1250(d)(5) which apply in the case 
of a disposition of section 1250 property in a transaction in which gain 
(determined without regard to section 1250) is not recognized in whole 
or in part by reason of the application of section 1071 (relating to 
gain from sale or exchange to effectuate policies of FCC) or section 
1081 (relating to gain from sale or exchange in obedience to order of 
SEC).
    (2) Involuntary conversion treatment under section 1071. If section 
1250 property is disposed of and gain (determined without regard to 
section 1250) is not recognized in whole or in part solely by reason of 
an election under the first sentence of section 1071(a) to treat the 
transaction as an involuntary conversion, the consequences of the 
transaction shall be determined under the principles of paragraph (d) of 
this section.
    (3) Basis reduction under sections 1071 or 1082(a)(2). (i) If 
section 1250 property is disposed of and gain (determined without regard 
to section 1250) is not recognized in whole or in part by reason of a 
reduction in basis of property pursuant to an election under section 
1071(a) or the application of section

[[Page 436]]

1082(a)(2), then the amount of gain taken into account by the transferor 
under section 1250(a) shall not exceed the sum of:
    (a) The amount of gain recognized on such disposition (determined 
without regard to section 1250), plus
    (b) In case involuntary conversion treatment was also elected under 
section 1071(a), an amount equal to the cost of any stock purchased in a 
corporation which (without regard to section 1250) would result in 
nonrecognition of gain under section 1033(a)(3), as modified by section 
1071(a), plus
    (c) The portion of the gain computed under section 1250(a) (without 
regard to this paragraph) which is neither taken into account under (a) 
or (b) of this subdivision nor applied under subdivision (ii) of this 
subparagraph to reduce the basis of section 1250 property.
    (ii)(a) The amount of gain computed under section 1250(a) (without 
regard to this paragraph) which is not taken into account under 
subdivision (i) (a) or (b) of this subparagraph shall be applied to the 
amount by which the basis of the section 1250 property was reduced under 
section 1071(a) or 1082(a)(2), as the case may be, before other gain 
(which is not gain computed under section 1250(a)) is so applied.
    (b) If the basis of more than one item of section 1250 property was 
so reduced, the gain applied under (a) of this subdivision to all such 
section 1250 properties shall be applied to such items in proportion to 
the amounts of their respective basis reductions.
    (c) Any gain not applied under (a) of this subdivision shall be 
applied to the amount by which the basis of the nonsection 1250 property 
was reduced.
    (iii) If gain computed under section 1250 is applied under 
subdivision (ii) of this subparagraph to reduce the basis of section 
1250 property, the amount so applied shall be treated as additional 
depreciation in respect of such section 1250 property. For treatment of 
such section 1250 property as having a special element with additional 
depreciation consisting of such amount, see paragraph (c)(5)(i) of Sec. 
1.1250-5. For purposes of computing applicable percentage, such special 
element shall have a holding period beginning on the day after the date 
as of which the property's basis was so reduced.
    (4) Section 1081(d)(1)(A) transaction. No gain shall be recognized 
under section 1250(a) upon an exchange of property as to which gain is 
not recognized (without regard to section 1250) because of the 
application of section 1081(d)(1)(A) (relating to transfers within 
system group). For treatment of property in the hands of a transferee, 
the principles of paragraph (c)(3) of this section shall apply.
    (f) Property distributed by a partnership to a partner--(1) General. 
For purposes of section 1250 (d)(3) and (e)(2), the basis of section 
1250 property distributed by a partnership to a partner shall be 
determined by reference to the adjusted basis of such property to the 
partnership. Thus, if section 731 applies to a distribution of section 
1250 property by a partnership to a partner, then even though the 
partner's basis is not determined for other purposes by reference to the 
partnership's basis, (i) the amount of gain taken into account by the 
partnership under section 1250(a) is limited by section 1250(d)(3) to 
the amount of gain recognized to the partnership upon the distribution 
(determined without regard to section 1250), and (ii) the holding period 
of the property in the hands of the partner shall, under section 
1250(e)(2), include the holding period of the property in the hands of 
the partnership. For nonapplication of section 1250(d)(3) to a 
disposition to an organization (other than a cooperative described in 
section 521) which is exempt from the tax imposed by chapter 1 of the 
Code, see paragraph (c)(1) of this section.
    (2) Treatment of property distributed by partnership. (i) If section 
1250 property is distributed by a partnership to a partner in a 
distribution in which no part of the partnership's potential section 
1250 income in respect of the property was recognized as ordinary income 
to the partnership under paragraph (b)(2)(ii) of Sec. 1.751-1, the 
additional depreciation for the property in the hands of the distributee 
attributable to periods before the distribution shall be an amount equal 
to the total potential section 1250 income of the partnership in respect 
of the property immediately before the distribution, recomputed as

[[Page 437]]

if the applicable percentage for the property had been 100 percent. 
Under paragraph (c)(4) of Sec. 1.751-1, the potential section 1250 
income is, in effect, the gain to which section 1250(a) would have 
applied if the property had been sold by the partnership immediately 
before the distribution at its fair market value at such time.
    (ii) If upon the distribution any potential section 1250 income in 
respect of the property was recognized to the partnership under 
paragraph (b)(2)(ii) of Sec. 1.751-1, then after the distribution the 
additional depreciation shall be an amount equal to (a) the total 
potential section 1250 income in respect of the property, as recomputed 
in subdivision (i) of this subparagraph, minus (b) the amount of 
potential section 1250 income which would have been recognized to the 
partnership under paragraph (b)(2)(ii) of Sec. 1.751-1 if the 
applicable percentage for the property had been 100 percent.
    (iii) If the partner's basis for the property immediately after the 
transaction exceeds the partnership's adjusted basis for the property 
immediately before the transaction, the excess may be an addition to 
capital account under paragraph (d)(2)(ii) of Sec. 1.1250-5 (relating 
to property with two or more elements).
    (3) Examples. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. (i) A partnership distributes a building to Smith on 
January 1, 1969, in a complete liquidation of his partnership interest 
to which section 736(a) does not apply. On the date of the distribution, 
the partnership's holding period for the property is 40 full months and, 
accordingly, the applicable percentage under section 1250(a)(2) is 80 
percent. On such date, the partnership's additional depreciation for the 
building ($6,250) is lower than the excess ($40,000) of its fair market 
value ($140,000) over adjusted basis ($100,000). Thus, under paragraph 
(c)(4) of Sec. 1.751-1, the partnership's potential section 1250 income 
in respect of the building is $5,000 (80 percent of $6,250). Assume that 
section 751(b) does not apply to the distribution. Accordingly, no gain 
would be recognized to the partnership under section 731(b) (without 
regard to the application of section 1250). Smith's basis for his 
partnership interest was $150,000, and under section 732(b) Smith's 
basis for the building is equal to his basis for his partnership 
interest. Thus, Smith's basis for the building is not determined by 
reference to the partnership's basis for the building. Nevertheless, 
under subparagraph (1) of this paragraph, no gain is recognized to the 
partnership under section 1250(a)(2) and Smith's holding period for the 
property includes the partnership's holding period.
    (ii) Six full months after Smith received the building in the 
distribution, or July 1, 1969, he sells it for $153,000. Assume that no 
depreciation was allowed or allowable to Smith for the building, and 
that the special rules under Sec. 1.1250-5 for property with two or 
more elements do not apply. Since Smith's holding period for the 
building includes its holding period in the hands of the partnership, 
his holding period is 46 full months (40 full months for the partnership 
plus 6 full months for Smith) and the applicable percentage under 
section 1250(a)(2) is 74 percent.
    (iii) Since no potential section 1250 income was recognized to the 
partnership under paragraph (b)(2)(ii) of Sec. 1.751-1, the additional 
depreciation for the building attributable to periods before the 
distribution is determined under the provisions of subparagraph (2)(i) 
of this paragraph. Under such provisions, the potential section 1250 
income to the partnership, which was actually $5,000 (that is, 80 
percent of $6,250), is recomputed as if the applicable percentage were 
100 percent, and thus such additional depreciation is $6,250 (that is, 
100 percent of $6,250). Since no depreciation was allowed or allowable 
for the building in Smith's hands, the additional depreciation for the 
building attributable to Smith's total holding period (46 full months) 
is $6,250. Since the gain realized ($3,000, that is, amount realized, 
$153,000, minus adjusted basis, $150,000), is lower than the additional 
depreciation ($6,250), the gain recognized to Smith under section 
1250(a)(2) is $2,220 (that is, 74 percent of $3,000).
    Example 2. Assume the facts as in example (1) except that as a 
result of the distribution the partnership recognizes under paragraph 
(b)(2)(ii) of Sec. 1.751-1 potential section 1250 income of $1,000 
(that is, 80 percent of $1,250). The additional depreciation 
attributable to periods before the distribution, as determined under the 
provisions of subparagraph (2)(ii) of this paragraph, is $5,000, that 
is, (a) the total potential section 1250 income in respect of the 
property, recomputed in example (1) as if the applicable percentage were 
100 percent ($6,250), minus (b) the amount of potential section 1250 
income which would have been recognized to the partnership under 
paragraph (b)(2)(ii) of Sec. 1.751-1 if the applicable percentage for 
the property had been 100 percent ($1,250, that is, 100 percent of 
$1,250).


[[Page 438]]


    (4) Treatment of partnership property after certain transactions. If 
under paragraph (b)(3) of Sec. 1.751-1 (relating to certain 
distributions of partnership property other than section 751 property 
treated as sales or exchanges) a partnership is treated as purchasing 
section 1250 property (or a portion thereof) from a distributee who 
relinquishes his interest in such property (or portion), then after the 
date of such purchase the following rules shall apply:
    (i) If only a portion of the property is treated as purchased, there 
shall be excluded from the additional depreciation for the remaining 
portion any additional depreciation in respect of the purchased portion 
for periods before such purchase.
    (ii) In respect of the purchased property (or portion), (a) as of 
the date of purchase the amount of additional depreciation shall be 
zero, and (b) for purposes of computing applicable percentage the 
holding period shall begin on the day after the date of such purchase.
    (5) Cross reference. See paragraph (f) of Sec. 1.1250-1 for the 
amount of additional depreciation for partnership property in respect of 
a partner who acquired his partnership interest in certain transactions 
when an election under section 754 (relating to optional adjustments to 
basis of partnership property) was in effect.
    (g) Disposition of principal residence--(1) In general. (i) Section 
1250(d)(7)(A) provides that section 1250(a) shall not apply to a 
disposition of property by a taxpayer to the extent the property is used 
by the taxpayer as his principal residence (within the meaning of 
section 1034(a) and the regulations thereunder, relating to a sale or 
exchange of residence). Thus, for example, if a doctor sells a house, of 
which one portion was used as his principal residence within the meaning 
of section 1034(a) and the other portion was properly subject to the 
allowance for depreciation as property used in his trade or business, 
then, by reason of the application of section 1250(d)(7)(A), section 
1250(a) does not apply in respect of the disposition of the portion used 
as his principal residence. The provisions of this subparagraph shall 
apply regardless of whether section 1034 applies. Thus, for example, if 
section 1034 did not apply to the sale because the doctor did not invest 
in a new principal residence within the period specified in section 
1034, nevertheless section 1250(a) would not apply to the disposition of 
the portion used as a principal residence.
    (ii) Section 1250(d)(7)(B) provides that section 1250(a) shall not 
apply to a disposition of section 1250 property by a taxpayer who, in 
respect of the property, satisfies the age and ownership requirements of 
section 121 (relating to exclusion from gross income of gain on sale or 
exchange of residence of individual who has attained age 65), but only 
to the extent the taxpayer satisfies the use requirements of section 121 
in respect of such property. Thus, if a taxpayer has attained the age of 
65 before the date on which he disposes of section 1250 property, and if 
during the 8-year period ending on the date of the disposition the 
property has been owned and used by the taxpayer solely as his principal 
residence for periods aggregating 5 years or more, then section 1250(a) 
does not apply in respect to the disposition. This result would not be 
changed even if the taxpayer does not or cannot make the election 
provided for in section 121 and even if section 121 applies to only a 
portion of the gain because the adjusted sales price exceeds the $20,000 
limitation in section 121(b)(1). If, however, only a portion of the 
property has been used as his principal residence for such periods 
aggregating 5 years or more, then, by reason of the application of 
section 1250(d)(7)(B), section 1250(a) is inapplicable only to the 
portion so used. For special rules for determining whether the age, 
ownership, and use requirements of section 121 are treated as satisfied, 
and for the manner of applying such requirements, see section 121(d) and 
the regulations thereunder.
    (2) Concurrent operation of section 1250(d)(7) with other 
provisions. Upon the disposition of a principal residence, gain computed 
under section 1250(a) may not be recognized in whole or in part by 
reason of the application of both the provisions of section 1250(d)(7) 
and the provisions of one of the other exceptions or limitations 
enumerated in section 1250(d). Thus, for example, if an entire house is 
transferred as a gift, and if section 1250(d)(7) applies to only

[[Page 439]]

a portion of the house, then section 1250(d)(1) excepts the disposition 
of the entire house from the application of section 1250(a).
    (3) Special rule. If by reason of section 1250(d)(7) a disposition 
is partially excepted from the application of section 1250(a), and if no 
other paragraph of section 1250(d) excepts the disposition entirely from 
such application, then the gain to which section 1250(a) applies shall 
be an amount which bears the same ratio to (i) the gain computed under 
section 1250(a) (without regard to section 1250(d)(7)), as (ii) the fair 
market value of the portion of the property to which the exception in 
section 1250(d)(7) does not apply, bears to (iii) the total fair market 
value of the property. Thus, for example, if under paragraph (a)(2) of 
this section gain of $300 would be recognized as ordinary income under 
section 1250(a) (without regard to section 1250(d)(7)) upon a combined 
sale and gift of section 1250 property, and if the property has a fair 
market value of $25,000 of which $10,000 is properly allocable to a 
portion not used as a principal residence, then the amount of gain 
recognized as ordinary income under section 1250(a) would be $120 (10/25 
of $300).
    (4) Treatment of property in hands of transferee. If property is 
disposed of in a transaction to which section 1250(d)(7) applies, and if 
its basis in the hands of the transferee is determined by reference to 
its basis in the hands of the transferor by reason of the application of 
section 1250(d)(1) (relating to gifts) or section 1250(d)(3) (relating 
to certain tax-free transactions), then the treatment of the property in 
the hands of the transferee shall be determined under paragraph (a)(3) 
or (c)(3) (whichever is applicable) of this section
    (5) Treatment of property acquired in like kind exchange or 
involuntary conversion. If property is disposed of in a transaction to 
which section 1250(d)(7) (relating to principal residence) and section 
1250(d)(4) (relating to like kind exchanges and involuntary conversions) 
apply, then:
    (i) The basis of the property acquired shall be determined under the 
applicable provisions of paragraph (d) (2), (3), or (4) of this section, 
applied as if all gain computed under section 1250(a) (except any gain 
not recognized solely by reason of the application of section 
1250(d)(7)) were not taken into account by reason of section 
1250(d)(4)(A),
    (ii) The additional depreciation for the property acquired shall be 
determined in the manner prescribed in paragraph (d)(5) of this section, 
so applied, and
    (iii) For purposes of computing the applicable percentage, the 
holding period of the acquired property shall be determined under 
section 1250(e)(1).
    (6) Treatment of property acquired in section 1034 transaction. If a 
principal residence is disposed of in a transaction to which section 
1250(d)(7) applies, and if by reason of the application of section 1034 
(relating to sale or exchange of residence) the basis of property 
acquired in the transaction is determined by reference to the basis in 
the hands of the taxpayer of the property disposed of, then:
    (i) The additional depreciation for the acquired property 
immediately after the transaction shall be an amount equal to (a) the 
amount of the additional depreciation for the property disposed of, 
minus (b) the amount of any gain which would have been taken into 
account under section 1250(a) by the transferor upon the disposition if 
the applicable percentage for the property had been 100 percent,
    (ii) For purposes of computing the applicable percentage, the 
holding period of the acquired property includes the holding period of 
the disposed of property (see section 1250(e)(3)),
    (iii) If the adjusted basis of the acquired property exceeds the 
adjusted basis immediately before the transfer of the property disposed 
of, the excess is an addition to capital account under paragraph 
(d)(2)(ii) of Sec. 1.1250-5 (relating to property with more than one 
element), and
    (iv) If the property disposed of consisted of two or more elements 
within the meaning of paragraph (c) of Sec. 1.1250-5, see paragraph 
(e)(3) of Sec. 1.1250-5 for the amount of additional depreciation and 
the holding period for each element in the hands of the transferee.
    (h) Limitation for disposition of qualified low-income housing--(1) 
Limitation on gain. (i) Under section 1250(d)(8)(A), if section 1250 
property is disposed of

[[Page 440]]

and gain (determined without regard to section 1250) is not recognized 
in whole or in part under section 1039 (relating to certain sales of 
low-income housing projects), then the amount of gain recognized by the 
transferor under section 1250(a) shall not exceed the greater of:
    (a) The amount of gain recognized under section 1039 (determined 
without regard to section 1250), or
    (b) The excess, if any, of the amount of gain which would, but for 
section 1250(d)(8)(A), be taken into account under section 1250(a), over 
the cost of the section 1250 property acquired in the transaction.

For purposes of this paragraph the term qualified housing project, 
approved disposition, reinvestment period, and net amount realized shall 
have the same meaning as in section 1039 and Sec. 1.1039-1.
    (ii) The principles of this subparagraph may be illustrated by the 
following examples:

    Example 1. (i) Taxpayer A owns a qualified housing project and makes 
an approved disposition of the project on January 1, 1971. The net 
amount realized upon the disposition is $550,000, of which $475,000 is 
attributable to section 1250 property. The adjusted basis of the section 
1250 property is $250,000 and the gain realized on the disposition of 
section 1250 property is $225,000. The additional depreciation for the 
property is $100,000, the applicable percentage is 48 percent, and if 
section 1250(d)(8)(A) did not apply to the disposition, $48,000 of gain 
would be recognized under section 1250(a). Within the reinvestment 
period, A purchases a replacement qualified housing project at a cost of 
$525,000, of which $425,000 is attributable to section 1250 property. A 
properly elects under section 1039(a) and the regulations thereunder to 
limit the recognition of gain (determined without regard to section 
1250) to $25,000, that is, the excess of the net amount realized 
($550,000) over the cost of the replacement housing project ($525,000).
    (ii) The amount of gain recognized under section 1250(a) is limited 
to $25,000, that is, the greater of (a) the amount of gain recognized 
without regard to section 1250(a) ($25,000), or (b) the excess of (1) 
the amount of gain which would be taken into account under section 
1250(a) if section 1250(d)(8)(A) did not apply ($225,000), over (2) the 
cost of the replacement section 1250 property ($425,000), or zero.
    Example 2. The facts are the same as in example (1) except that only 
$180,000 of the cost of the replacement housing project is attributable 
to section 1250 property. Thus, the gain recognized under section 
1250(a) is limited to $45,000, the greater of (a) the excess of (1) the 
amount of gain which would be taken into account under section 1250(a) 
if section 1250(d)(8)(A) did not apply ($225,000), over (2) the cost of 
the replacement section 1250 property ($180,000), or (b) the amount of 
gain recognized without regard to section 1250 ($25,000).

    (2) Replacement project consisting of more than one element. (i) If 
(a) section 1250 property is disposed of, (b) any portion of the gain 
which would have been recognized under section 1250(a) is not recognized 
by reason of section 1250(d)(8)(A), and (c) the cost of the replacement 
section 1250 property constructed, reconstructed, or acquired during the 
reinvestment period exceeds the net amount realized attributable to the 
section 1250 property disposed of, then the section 1250 property shall 
consist of two elements. For purposes of this paragraph, the 
reinvestment element is that portion of the section 1250 property 
constructed, reconstructed, or acquired during the reinvestment period 
the cost of which does not exceed the net amount realized attributable 
to the section 1250 property disposed of, reduced by any gain recognized 
with respect to such property. The additional cost element is that 
portion of the section 1250 property constructed, reconstructed, or 
acquired during the reinvestment period whose cost exceeds the net 
amount realized attributable to the section 1250 property disposed of.
    (ii) The principles of this subparagraph may be illustrated by the 
following example:

    Example 1. (i) Taxpayer B disposes of a qualified housing project 
consisting of section 1250 property with an adjusted basis of $500,000 
and land with a basis of $100,000. The amount realized on the 
disposition is $750,000 of which $650,000 is attributable to the section 
1250 property. B constructs a replacement housing project at a cost of 
$1,000,000 of which $850,000 is attributable to section 1250 property. B 
elects in accordance with the provisions of section 1039(a) and the 
regulations there under not to recognize the $150,000 gain realized.
    (ii) Under section 1250(d)(8)(A) no gain is recognized under section 
1250(a). The replacement section 1250 property consists of the two 
elements. The reinvestment element has a cost of $650,000, i.e., that 
portion of the replacement section 1250 property the cost of which does 
not exceed the amount realized

[[Page 441]]

attributable to the section 1250 property disposed of ($650,000), 
reduced by any gain recognized with respect to such property (zero). The 
additional cost element has a cost of $200,000, that is, the excess of 
the cost of the replacement section 1250 property ($850,000) over the 
amount realized attributable to the section 1250 property disposed of 
($650,000).

    (3) Basis of property acquired. (i) If section 1250 property is 
disposed of and gain (determined without regard to section 1250) is not 
recognized in whole or in part under section 1039 (relating to certain 
sales of low-income housing projects), then the basis of the section 
1250 property and other property acquired in the transaction shall be 
determined in accordance with the rules of this subparagraph. Generally, 
the basis of the property acquired in a transaction to which section 
1039(a) applies is its cost reduced by the amount of any gain not 
recognized attributable to the property disposed of (see section 
1039(d)). In a case where the replacement section 1250 property 
constructed, reconstructed, or acquired within the reinvestment period 
is treated as consisting of more than one element under section 
1250(d)(8)(e), the aggregate basis of the property determined under 
section 1039(d) shall be allocated as follows: first, to the 
reinvestment element of the section 1250 property, in an amount equal to 
the amount determined under section 1250(d)(8)(E)(i) reduced by the 
amount of any gain not recognized attributable to the section 1250 
property disposed of; second, to the other replacement property (other 
than section 1250 property) in an amount equal to the amount of its cost 
reduced (but not below zero) by any remaining amount of gain not 
recognized; and finally, to the additional cost element of the section 
1250 property, in an amount equal to the amount determined under section 
1250(d)(8)(E)(ii) reduced by any amount of gain not recognized which has 
not been taken into account in determining the basis of the reinvestment 
element and the other replacement property that is not section 1250 
property. See paragraph (h)(2) of this section for definition of the 
terms reinvestment element and additional cost element.
    (ii) The principles of this subparagraph may be illustrated by the 
following examples:

    Example 1. The facts are the same as in example (1) of subparagraph 
(1)(ii) of this paragraph. The basis of the replacement section 1250 
property is $225,000, the amount of the reinvestment element ($425,000) 
minus the gain not recognized attributable to the section 1250 property 
disposed of ($200,000).
    Example 2. Taxpayer C disposes of a qualified housing project on 
January 1, 1971. The adjusted basis for the project is $3,800,000, of 
which $3,000,000 is attributable to section 1250 property and $800,000 
is attributable to land. The amount realized on the disposition is 
$5,000,000, of which $4,000,000 is attributable to the section 1250 
property and $1,000,000 is attributable to the land. The gain realized 
upon the disposition is $1,200,000, that is, amount realized 
($5,000,000) minus adjusted basis ($3,800,000), of which $1,000,000 is 
attributable to the section 1250 property disposed of. Within the 
reinvestment period, C purchases another qualified housing project at a 
cost of $5,500,000, of which $4,000,000 is attributable to section 1250 
property and $1,500,000 is attributable to other property. C makes an 
election under section 1039(a) and the regulations thereunder and none 
of the $1,200,000 gain realized on the disposition is recognized 
(determined without regard to section 1250). Under section 
1250(d)(8)(A), none of the gain realized is recognized under section 
1250(a). The basis of the replacement section 1250 property is 
$3,000,000, that is, the amount of the reinvestment element ($4,000,000) 
less the amount of gain not recognized attributable to section 1250 
property disposed of ($1,000,000). The basis of the other property 
acquired is $1,300,000, that is, its cost ($1,500,000) reduced by the 
remaining gain not recognized ($200,000).
    Example 3. The facts are the same as in example (2) except that the 
cost of the replacement section 1250 property is $4,500,000 and the cost 
of the other property is $1,000,000. Thus, the replacement section 1250 
property consists of two elements under section 1250(d)(8)(E). The 
reinvestment element (section 1250(d)(8)(E)(i)) has a basis of 
$3,000,000, that is $4,000,000 (that portion of the section 1250 
property acquired the cost of which does not exceed the net amount 
realized attributable to the section 1250 property disposed of), reduced 
by $1,000,000 (the gain not recognized attributable to the section 1250 
property disposed of). The basis of the other property is $800,000, that 
is, its cost ($1,000,000) reduced by the remaining gain not recognized 
($200,000). The additional cost element (section 1250(d)(8)(E)(ii)) has 
a basis of $500,000, that is, the portion of the section 1250 property 
acquired the cost of which exceeds the net amount realized attributable 
to the section 1250 property disposed of. This amount ($500,000) is not 
reduced by any amount of gain not recognized because all of the gain not 
recognized has already been taken into

[[Page 442]]

account in determining the basis of the reinvestment element and the 
other replacement property that is not section 1250 property.

    (4) Additional depreciation for property acquired. (i) If a 
qualified housing project is disposed of in a transaction to which 
section 1039(a) applies, the additional depreciation for the replacement 
property immediately after the transaction shall be an amount equal to 
(a) the amount of additional depreciation for the property disposed of, 
minus (b) the amount of additional depreciation necessary to produce the 
amount of gain recognized under section 1250(a). Thus, if no gain is 
recognized upon a disposition of a qualified housing project, the 
additional depreciation for the property acquired will be the same as 
for the property disposed of. On the other hand, if upon disposition of 
a project, gain of $40,000 was recognized under section 1250(a), and if 
the additional depreciation for the project and the applicable 
percentage were $100,000 and 80 percent, respectively, the additional 
depreciation for the replacement housing project would be $50,000, that 
is, $100,000 minus $50,000, the amount of additional depreciation 
necessary to produce $40,000 of recognized gain where the applicable 
percentage is 80 percent.
    (ii) If the property acquired in the transaction consists of more 
than one element of section 1250 property by reason of section 
1250(d)(8)(E), the additional depreciation under subdivision (i) of this 
subparagraph shall be allocated solely to the reinvestment element.
    (5) Additional limitation. If, in a transaction to which section 
1039(a) applies, gain is recognized by the taxpayer, the amount of gain 
recognized which is attributable to section 1250 property disposed of 
is, under section 1250(d)(8)(F)(i), limited to an amount equal to the 
net amount realized attributable to the section 1250 property disposed 
of reduced by the greater of (i) the adjusted basis of the section 1250 
property disposed of, or (ii) the cost of the section 1250 property 
acquired. The limitation of section 1250(d)(8)(F)(i) may be illustrated 
by the following example:

    Example: Taxpayer D owns property constituting a qualified housing 
project under section 1039(b)(1). In an approved disposition, the 
project is sold for $225,000. The net amount realized on the disposition 
is $225,000 of which $175,000 is attributable to the section 1250 
property disposed of. The adjusted basis of such property is $150,000 
and thus the gain realized upon the disposition of the section 1250 
property is $25,000. Assume that the total gain realized upon 
disposition of the project is $45,000. Within the reinvestment period, D 
purchases another qualified housing project at a cost of $200,000, of 
which $160,000 is attributable to section 1250 property. D elects, in 
accordance with section 1039(a) and the regulations thereunder, to limit 
the recognition of gain to $25,000, that is, the net amount realized 
($225,000), minus the cost of the replacement housing project 
($200,000). Under this subparagraph, $15,000 of the $25,000 gain 
recognized is attributable to the section 1250 property disposed of, 
that is, the net amount realized attributable to the section 1250 
property disposed of ($175,000), reduced by $160,000, the greater of the 
adjusted basis of the section 1250 property disposed of ($150,000) or 
the cost of the section 1250 property acquired ($160,000).

    (6) Allocation rule. (i) If, in a transaction to which paragraph 
(h)(1) of this section applies, the section 1250 property disposed of is 
treated as consisting of more than one element by reason of the 
application of section 1250(d)(8)(E) with respect to a prior 
transaction, then the amount of gain recognized, the net amount 
realized, and the additional depreciation with respect to each such 
element shall be allocated to the elements of the replacement section 
1250 property in accordance with the provisions of this subparagraph.
    (ii) The portion of the net amount realized upon such a disposition 
which shall be allocated to each element of the section 1250 property 
disposed of is that amount which bears the same ratio to the net amount 
realized attributable to all the section 1250 property disposed of in 
the transaction as the additional depreciation for that element bears to 
the total additional depreciation for all elements disposed of. If any 
gain is recognized upon disposition of the section 1250 property, such 
gain shall be allocated to each element in the same proportion as the 
gain realized for that element bears to the gain realized for all 
elements disposed of. The additional depreciation for each reinvestment 
element of the replacement section 1250 property shall be the same as 
for the corresponding element

[[Page 443]]

of the property disposed of, decreased by the amount of additional 
depreciation necessary to produce the amount of gain recognized for such 
element. The additional depreciation for any additional cost element 
shall be zero.
    (iii) The principles of this subparagraph may be illustrated by the 
following example:

    Example: Taxpayer E disposes of a qualified housing project in an 
approved disposition. The net amount realized is $1,090,000 of which 
$900,000 is attributable to section 1250 property. The section 1250 
property consists of (1) a reinvestment element with an adjusted basis 
of $300,000, additional depreciation of $100,000, and an applicable 
percentage of 50 percent, and (2) an additional cost element with an 
adjusted basis of $200,000, additional depreciation of $50,000, and an 
applicable percentage of 80 percent. Gain of $400,000 is realized on the 
disposition of the section 1250 property, that is, amount realized 
($900,000) minus adjusted basis ($500,000). Within the reinvestment 
period, E purchases another qualified housing project at a cost of 
$1,000,000 of which $840,000 is attributable to section 1250 property. E 
elects, in accordance with section 1039 and the regulations thereunder, 
to limit recognition of gain (determined without regard to section 1250) 
to $90,000, that is, the excess of the net amount realized ($1,090,000) 
over the cost of the replacement project ($1,000,000). Under section 
1250(d)(8)(A), the amount of gain recognized under section 1250(a) is 
limited to $90,000 (see subparagraph (1) of this paragraph). Under 
section 1250(d)(8)(F)(ii) and this subparagraph, $600,000 of the 
$900,000 net amount realized attributable to the section 1250 property 
is allocated to the reinvestment element, that is, additional 
depreciation for the element ($100,000) over total additional 
depreciation ($150,000) times the net amount realized ($900,000). The 
remaining $300,000 is allocated to the additional cost element. Thus, 
the gain realized attributable to the reinvestment element is $300,000, 
that is, net amount realized ($600,000) minus adjusted basis ($300,000). 
The gain realized attributable to the additional cost element is 
$100,000, that is, net amount realized ($300,000) minus adjusted basis 
($200,000). Under subparagraph (5) of this paragraph, the gain 
recognized attributable to the section 1250 property is limited to 
$60,000, that is, the net amount realized attributable to the section 
1250 property disposed of ($900,000) minus the greater of the adjusted 
basis of such property ($500,000) or the cost of the section 1250 
property acquired in the transaction ($840,000). Under section 
1250(d)(8)(F)(ii) and this subparagraph, $45,000 of the $60,000 gain 
recognized is attributable to the reinvestment element, that is, $60,000 
multiplied by a fraction whose numerator is the gain realized 
attributable to the reinvestment element ($300,000) and whose 
denominator is the total gain realized attributable to all the section 
1250 property ($400,000). The remaining $15,000 of the gain recognized 
is attributable to the additional cost element. The new property 
acquired has no additional cost element. The reinvestment element of the 
new property acquired consists of 2 subelements corresponding to the 
reinvestment element and additional cost element of the property 
disposed of. The subelement corresponding to the reinvestment element 
has additional depreciation of $10,000, that is, its additional 
depreciation immediately before the disposition ($100,000), minus 
$90,000, the amount of additional depreciation necessary to produce 
$45,000 of section 1250(a) gain where the applicable percentage is 50 
percent. The subelement corresponding to the additional cost element has 
additional depreciation of $31,250, that is, its additional depreciation 
immediately before the disposition ($50,000), minus $18,750, the amount 
of additional depreciation necessary to produce $15,000 of section 
1250(a) gain where the applicable percentage is 80 percent.

[T.D. 7084, 36 FR 275, Jan. 8, 1971, as amended by T.D. 7193, 37 FR 
12957, June 30, 1972; T.D. 7400, 41 FR 5101, Feb. 4, 1976; 41 FR 7095, 
Feb. 17, 1976]



Sec. 1.1250-4  Holding period.

    (a) General. In general, for purposes only of determining the 
applicable percentage (as defined in section 1250 (1)(C) and (2)(B)) of 
section 1250 property, the holding period of the property shall be 
determined under the rules of section 1250(e) and this section and not 
under the rules of section 1223. If the property is treated as 
consisting of two or more elements (within the meaning of paragraph 
(c)(1) of Sec. 1.1250-5), see paragraph (a)(2)(ii) of Sec. 1.1250-5 
for application of this section to determination of holding period of 
each element. Section 1250(e) does not affect the determination of the 
amount of additional depreciation in respect of section 1250 property.
    (b) Beginning of holding period. (1) For the purpose of determining 
the applicable percentage, in the case of property acquired by the 
taxpayer (other than by means of a transaction referred to in paragraph 
(c) or (d) of this section), the holding period of the property shall 
begin on the day after the date of its acquisition. See section 
1250(e)(1)(A).

[[Page 444]]

Thus, for example, if a taxpayer purchases section 1250 property on 
January 1, 1965, the holding period of the property begins on January 2, 
1965. If he sells the property on October 1, 1966, the holding period on 
the day of the sale is 21 full months, and, accordingly, the applicable 
percentage is 99 percent. This result would not be changed even if the 
property initially had been used solely as the taxpayer's residence for 
a portion of the 21-month period. If, however, the property were sold on 
September 30, 1966, the holding period would be only 20 full months.
    (2) For the purpose of determining the applicable percentage in the 
case of property constructed, reconstructed, or erected by the taxpayer, 
the holding period of the property shall begin on the first day of the 
month during which the property is placed in service. See section 
1250(e)(1)(B). Thus, for example, if a taxpayer constructs section 1250 
property and places it in service on January 15, 1965, its holding 
period begins on January 1, 1965. If the taxpayer sells the property on 
December 31, 1966, its holding period on the day of sale is 24 full 
months, and, accordingly, the applicable percentage is 96 percent. For 
purposes of this subparagraph, property is placed in service on the date 
on which it is first used, whether in a trade or business, in the 
production of income, or in a personal activity. Thus, for example, a 
residence constructed by a taxpayer for his personal use is placed in 
service on the date it is occupied as a residence. For purposes of 
determining the date property is placed in service, it is immaterial 
when the period begins for depreciation with respect to the property 
under any depreciation practice under which depreciation begins in any 
month other than the month in which the property is placed in service. 
If one or more units of a single property are placed in service on 
different dates before the completion of the property, see paragraph 
(c)(3) of Sec. 1.1250-5 (relating to treatment of each such unit as an 
element).
    (c) Property with transferred basis. Under section 1250(e)(2), if 
the basis of property acquired in a transaction described in this 
subparagraph is determined by reference to its basis in the hands of the 
transferor, then the holding period of the property in the hands of the 
transferee shall include the holding period of the property in the hands 
of the transferor. The transactions described in this subparagraph are:
    (1) A gift described in section 1250(d)(1).
    (2) Certain transfers at death to the extent provided in paragraph 
(b)(2)(ii) of Sec. 1.1250-3.
    (3) Certain tax-free transactions to which section 1250(d)(3) 
applies. For application of section 1250 (d)(3) and (e)(2) to a 
distribution by a partnership to a partner, see paragraph (f)(1) of 
Sec. 1.1250-3.
    (4) A transfer described in paragraph (e)(4) of Sec. 1.1250-3 
(relating to transaction under section 1081(d)(1)(A)).
    (d) Principal residence acquired in certain transactions. The 
holding period of a principal residence acquired in a transaction to 
which section 1034 and paragraph (g)(6) of Sec. 1.1250-3 apply includes 
the holding period of the principal residence disposed of in such 
transaction. See section 1250(e)(3). The holding period of a principal 
residence acquired does not include the period beginning on the day 
after the date of the disposition and ending on the date of the 
acquisition.
    (e) Application of transferred basis and principal residence rules. 
The determination of holding period under this section shall be made 
without regard to whether a transaction occurred prior to the effective 
date of section 1250 and without regard to whether there was any gain 
upon the transaction. Thus, for example, under paragraph (c) of this 
section a donee's holding period for property includes his donor's 
holding period notwithstanding that the gift occurred on or before 
December 31, 1963, or that there was no additional depreciation in 
respect of the property at the time of the gift.
    (f) Qualified low-income housing project acquired in certain 
transactions. The holding period of a reinvestment element (and of 
subelements thereof) of section 1250 property (as defined in paragraph 
(h) (2) of Sec. 1.1250-3) acquired in a transaction to which sections 
1039(a) and 1250(d)(8)(A) apply includes the holding period of the 
corresponding element of the section 1250 property disposed of.

[[Page 445]]

See section 1250(e)(4). The holding period of the additional cost 
element (as defined in paragraph (h)(2) of Sec. 1.1250-3) begins on the 
date the replacement project is acquired. The holding period of a 
reinvestment element of section 1250 property does not include the 
period beginning on the day after the date of the disposition and ending 
(1) on the date of the acquisition of the replacement housing project, 
or (2) on the date the replacement housing project constructed or 
reconstructed by the taxpayer is placed in service.
    (g) Cross reference. If the adjusted basis of the property in the 
hands of the transferee immediately after a transaction to which 
paragraph (c) or (d) of this section applies exceeds its adjusted basis 
in the hands of the transferor immediately before the transaction, the 
excess is an addition to capital account under paragraph (d)(2)(ii) of 
Sec. 1.1250-5 (relating to property with two or more elements).

[T.D. 7084, 36 FR 281, Jan. 8, 1971, as amended by T.D. 7400, 41 FR 
5103, Feb. 4, 1976]



Sec. 1.1250-5  Property with two or more elements.

    (a) Dispositions before January 1, 1970--(1) Amount treated as 
ordinary income. If section 1250 property consisting of two or more 
elements (described in paragraph (c) of this section) is disposed of 
before January 1, 1970, the amount of gain taken into account under 
section 1250(a)(2) shall be the sum, determined in three steps under 
subparagraphs (2), (3), and (4) of this paragraph, of the amounts of 
gain for each element.
    (2) Step 1. The first step is to make the following computations:
    (i) In respect of the property as a whole, compute the additional 
depreciation (as defined in section 1250(b)), and the gain realized. For 
purposes of this paragraph, in the case of a transaction other than a 
sale, exchange or involuntary conversion, the gain realized shall be 
considered to be the excess of the fair market value of the property 
over its adjusted basis.
    (ii) In respect of each element as if it were a separate property, 
compute the additional depreciation for the element, and the applicable 
percentage (as defined in section 1250(a)(2)) for the element. For 
additional depreciation in respect of an element of property acquired in 
certain transactions, see paragraph (e) of this section. For purposes of 
determining additional depreciation, the holding period of an element 
shall be determined under section 1223, applied by treating the element 
as a separate property. However, for the purpose of determining 
applicable percentage, the holding period for an element shall, except 
to the extent provided in paragraphs (c)(5), (e), and (f) of this 
section, be determined in accordance with the rules prescribed in Sec. 
1.1250-4.
    (3) Step 2. The second step is to determine the amount of gain for 
each element in the following manner:
    (i) If the amount of additional depreciation in respect of the 
property as a whole is equal to the sum of the additional depreciation 
in respect of each element having additional depreciation, and if such 
amount is not more than the gain realized, then the amount of gain to be 
taken into account for an element is the product of the additional 
depreciation for the element, multiplied by the applicable percentage 
for the element.
    (ii) If subdivision (i) of this subparagraph does not apply, the 
amount of gain to be taken into account for an element is the product 
of:
    (a) The additional depreciation for the element, multiplied by
    (b) The applicable percentage for the element, and multiplied by
    (c) A ratio, computed by dividing (1) the lower of the additional 
depreciation in respect of the property as a whole or the gain realized, 
by (2) the sum of the additional depreciation in respect of each element 
having additional depreciation.
    (4) Step 3. The third step is to compute the sum of the amounts of 
gain for each element, as determined in step 2.
    (5) Examples. The provisions of this subparagraph may be illustrated 
by the following examples:

    Example 1 Gain of $35,000 is realized upon a sale, before January 1, 
1970, of section 1250 property which consists of four elements (W, X, Y, 
and Z). Since on the date of the sale the amount of additional 
depreciation in respect of the property as a whole ($24,000) is

[[Page 446]]

equal to the sum of the additional depreciation in respect of each 
element having additional depreciation and is less than the gain 
realized, the additional depreciation for each element is determined 
under subparagraph (3)(i) of this paragraph. The amount of gain taken 
into account under section. 1250(a)(2) is $7,500, as determined in the 
following table in accordance with the additional facts assumed.

------------------------------------------------------------------------
                                 Additional     Applicable     Gain for
           Element              depreciationx   percentage=    element
------------------------------------------------------------------------
W............................        $12,000x            0=            0
X............................          6,000x           50=       $3,000
Y............................              0x           63=            0
Z............................          6,000x           75=        4,500
                              ------------------------------------------
  Totals.....................          24,000  ............        7,500
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1), except that in 
respect of the property as a whole the additional depreciation is 
$20,000 because with respect to element Y additional depreciation 
allowed was $4,000 less than straight line. Accordingly, the sum of the 
additional depreciation for each element having additional depreciation 
is $24,000, that is, $4,000 greater than the additional depreciation in 
respect of the property as a whole. Thus, the additional depreciation 
for each element is determined under subparagraph (3)(ii) of this 
paragraph. The ratio referred to in subparagraph (3)(ii)(c) of this 
paragraph is twenty twenty-fourths, that is, the lower of additional 
depreciation in respect of the property as a whole ($20,000) or the gain 
realized ($35,000), divided by the sum of the additional depreciation in 
respect of each element having additional depreciation ($24,000). The 
amount of gain taken into account under section 1250(a)(2) is $6,250, as 
determined in the following table:

----------------------------------------------------------------------------------------------------------------
                                                                     Additional    Applicable           Gain for
                             Element                               depreciationx  percentagex   Ratio=   element
----------------------------------------------------------------------------------------------------------------
W................................................................       $12,000x           0x   20:24=         0
X................................................................         6,000x          50x   20:24=    $2,500
Y................................................................             0x          63x   20:24=         0
Z................................................................         6,000x          75x   20:24=     3,750
                                                                  ----------------------------------------------
  Totals.........................................................         24,000  ...........  .......     6,250
----------------------------------------------------------------------------------------------------------------

    (b) Dispositions after December 31, 1969--(1) Amount treated as 
ordinary income. If section 1250 property consisting of two or more 
elements (described in paragraph (c) of this section) is disposed of 
after December 31, 1969, the amount of gain taken into account under 
section 1250(a) shall be the sum, determined in 5 steps under 
subparagraphs (2), (3), (4), (5), and (6) of this paragraph, of the 
amount of gain for each element. Steps 3 and 4 are used only if the gain 
realized exceeds the additional depreciation attributable to periods 
after December 31, 1969, in respect of the property as a whole.
    (2) Step 1. The first step is to make the following computations:
    (i) In respect of the property as a whole, compute the additional 
depreciation (as defined in section 1250(b)) attributable to periods 
after December 31, 1969, and the gain realized. For purposes of this 
paragraph, in the case of a transaction other than a sale, exchange, or 
involuntary conversion, the gain realized shall be considered to be the 
excess of the fair market value of the property over its adjusted basis.
    (ii) In respect of each element as if it were a separate property, 
compute the additional depreciation for the element attributable to 
periods after December 31, 1969, and the applicable percentage (as 
defined in section 1250(a)(1)) for the element. For additional 
depreciation in respect of an element of property acquired in certain 
transactions, see paragraph (e) of this section. For purposes of 
determining additional depreciation, the holding period of an element 
shall be determined under section 1223, applied by treating the element 
as a separate property. However, for the purpose of determining 
applicable percentage, the holding period for an element shall, except 
to the extent provided in paragraphs (c)(5), (e), and (f) of this 
section, be determined in accordance with the rules prescribed in Sec. 
1.1250-4.
    (3) Step 2. The second step is to determine the amount of gain 
recognized for each element under section 1250(a) (1) in the following 
manner:
    (i) If the amount of additional depreciation in respect of the 
property as a whole attributable to periods after December 31, 1969, is 
equal to the sum of the additional depreciation in respect of each 
element having such additional depreciation, and if such amount is not 
more than the gain realized, then the amount of gain to be taken into 
account for an element under section 1250(a)(1) is the product of the 
additional depreciation attributable to periods after December 31, 1960, 
for the element, multiplied by the applicable percentage for the element 
determined under section 1250(a)(1).

[[Page 447]]

    (ii) If subdivision (i) of this subparagraph does not apply, the 
amount of gain to be taken into account under section 1250(a)(1) for an 
element is the product of:
    (a) The additional depreciation attributable to periods after 
December 31, 1969, for the element multiplied by
    (b) The applicable percentage for the element determined under 
section 1250(a)(1) for the element, and multiplied by
    (c) A ratio, computed by dividing (1) the lower of the additional 
depreciation in respect of the property as a whole which is attributable 
to periods after December 31, 1969, or the gain realized, by (2) the sum 
of the additional depreciation attributable to periods after December 
31, 1969, in respect of each element having such additional 
depreciation.
    (4) Step (3). If the gain realized exceeds the additional 
depreciation in respect of the property as a whole attributable to 
periods after December 31, 1969.
    (i) Compute the additional depreciation attributable to periods 
before January 1, 1970, and the remaining gain (or remaining potential 
gain in the case of a transaction other than a sale, exchange, or 
involuntary conversion), in respect of the property as a whole.
    (ii) Compute the additional depreciation attributable to periods 
before January 1, 1970, and the applicable percentage determined under 
section 1250(a)(2) in respect of each element as if it were a separate 
property. For additional depreciation in respect of an element of 
property acquired in certain transactions, see paragraph (e) of this 
section. For purposes of determining additional depreciation, the 
holding period of an element shall be determined under section 1223, 
applied by treating the element as a separate property. However, for the 
purpose of determining applicable percentage, the holding period of an 
element shall, except to the extent provided in paragraphs (c)(5), (e), 
and (f) of this section, be determined in accordance with the rules 
prescribed in Sec. 1.1250-4.
    (5) Step (4). The fourth step is to compute the gain recognized 
under section 1250(a)(2) for each element (if computation was required 
under step (3)) in the following manner:
    (i) If the amount of additional depreciation in respect of the 
property as a whole attributable to periods before January 1, 1970, is 
equal to the sum of the additional depreciation in respect of each 
element having such additional depreciation, and if such amount is not 
more than the remaining gain (or remaining potential gain), then the 
amount of gain to be taken into account for an element under section 
1250(a)(2) is the product of the additional depreciation attributable to 
periods before January 1, 1970, for the element, multiplied by the 
applicable percentage determined under section 1250(a)(2) for the 
element.
    (ii) If subdivision (i) of this subparagraph does not apply, the 
amount of gain to be taken into account for an element under section 
1250(a)(2) is the product of:
    (a) The additional depreciation attributable to periods before 
January 1, 1970, for the element, multiplied by,
    (b) The applicable percentage for the element determined under 
section 1250(a)(2), and multiplied by,
    (c) A ratio, computed by dividing (1) the lower of the additional 
depreciation in respect of the property as a whole which is attributable 
to periods before January 1, 1970,

or the remaining gain (or remaining potential gain), by (2) the sum of 
the additional depreciation attributable to periods before January 1, 
1970, in respect of each element having additional depreciation.
    (6) Step (5). The fifth step is to compute the sum of the amount of 
gain for each element, as determined in steps (2) and (4).
    (7) Examples. The provisions of this subparagraph may be illustrated 
by the following examples:

    Example 1. Gain of $60,000 is realized upon a sale, after the 
December 31, 1969, of section 1250 property which was constructed by the 
taxpayer after such date. The property consists of four elements (W, X, 
Y, and Z). Since on the date of sale the amount of additional 
depreciation attributable to periods after December 31, 1969, in respect 
of the property as a whole ($32,000), is equal to the sum of the 
additional depreciation in respect of each element having such 
additional depreciation and is less than the gain realized, the

[[Page 448]]

gain recognized for each element is determined under subparagraph (3)(i) 
of this paragraph. The amount of gain taken into account under section 
1250(a)(1) is $28,500, as determined in the following table in 
accordance with the additional facts assumed:

------------------------------------------------------------------------
                                  Additional
                                 depreciation     Applicable    Gain for
           Element              after  Dec. 31,   percentage=   element
                                     1969x       (1250(a)(1))
------------------------------------------------------------------------
W............................          $14,000x           80=    $11,200
X............................            6,000x           90=      5,400
Y............................            2,000x           95=      1,900
Z............................           10,000x          100=     10,000
                              ------------------------------------------
  Total......................            32,000  ............     28,500
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1), except that the 
property was acquired by the taxpayer before January 1, 1970. Since the 
gain realized ($60,000) exceeds the additional depreciation attributable 
to periods after December 31, 1969 ($32,000), section 1250(a)(2) applies 
to the remaining gain of $28,000. Since the additional depreciation in 
respect of the property as a whole attributable to periods before 
January 1, 1970 ($21,000), is equal to the sum of the additional 
depreciation in respect of each element having such additional 
depreciation and is less than the remaining gain ($28,000), the amount 
of gain recognized for each element under section 1250(a)(2) is 
determined under subparagraph (5)(i) of this paragraph. The amount of 
gain taken into account under section 1250(a)(1) is $28,500 the same as 
in example (1). The amount of gain taken into account under section 
1250(a)(2) is $3,900, as determined in the following table in accordance 
with the additional facts assumed:

----------------------------------------------------------------------------------------------------------------
                                                                     Additional
                                                                    depreciation      Applicable      Gain for
                            Element                                before  Jan. 1,    percentage=     element
                                                                        1970x        (1250(a)(2))  (1250)(a)(2))
----------------------------------------------------------------------------------------------------------------
W..............................................................             $8,000x            0=           $0
X..............................................................              6,000x           10=          600
Y..............................................................              2,000x           15=          300
Z..............................................................              5,000x           60=        3,000
                                                                ------------------------------------------------
  Total........................................................              21,000  ............        3,900
----------------------------------------------------------------------------------------------------------------

    Example 3. (i) The facts are the same as in example (2) except that 
element Y has a deficit in additional depreciation attributable to 
periods after December 31, 1969, of $6,000 and thus the additional 
depreciation attributable to periods after December 31, 1969, in respect 
of the property as a whole is $24,000. The sum of the additional 
depreciation for each element having additional depreciation is $30,000, 
or $6,000 more than the additional depreciation in respect of the 
property as a whole. Thus, the gain recognized for each element under 
section 1250(a)(1) is determined under subparagraph (3)(ii) of this 
paragraph. The ratio referred to in subparagraph (3)(ii) (c) of this 
paragraph is 24:30, that is, the lower of the additional depreciation in 
respect of the property as a whole attributable to periods after 
December 31, 1969 ($24,000), or the gain realized ($60,000), divided by 
the sum of the additional depreciation in respect of each element having 
such additional depreciation ($30,000). The amount of gain taken into 
account under section 1250(a)(1) is $21,280, as determined in the 
following table:

----------------------------------------------------------------------------------------------------------------
                                                                                  Applicable
                             Element                                Additional    percentagex   Ratio=  Gain for
                                                                  depreciationx  (1250(a)(1))            element
----------------------------------------------------------------------------------------------------------------
W...............................................................       $14,000x           80x   24:30=    $8,960
X...............................................................         6,000x           90x   24:30=     4,320
Y...............................................................       (6,000)x           95x   24:30=         0
Z...............................................................        10,000x          100x   24:30=     8,000
                                                                 ---------------------------------------
  Total.........................................................         24,000  ............  .......    21,280
----------------------------------------------------------------------------------------------------------------

    (ii) In addition, gain is recognized under section 1250(a)(2) since 
there is a remaining potential gain of $36,000, that is, gain realized 
($60,000) minus the additional depreciation attributable to periods 
after December 31, 1969 ($24,000). The gain recognized in respect of 
each element and the gain recognized under section 1250(a)(2) ($3,900) 
are the same as in example (2), since the additional depreciation 
attributable to periods before January 1, 1970 ($21,000) is less than 
the remaining gain ($36,000).

    (c) Element--(1) General. For purposes of this section, in the case 
of section 1250 property there shall be treated as separate elements the 
separate improvements, units, remaining property, special elements, and 
low-income housing elements which are respectively referred to in 
paragraphs (c) (2), (3), (4), (5), and (6) of this section.
    (2) Separate improvements. There shall be treated as an element each 
separate improvement (as defined in paragraph (d)(1) of this section) to 
the property.
    (3) Units. If before completion of section 1250 property one or more 
units thereof are placed in service, each such unit of the section 1250 
property shall be treated as an element.
    (4) Remaining property. The remaining property which is not taken 
into account under subparagraph (2) or (3) of this paragraph shall be 
treated as an element.
    (5) Special elements. (i) If the basis of section 1250 property is 
reduced in the manner described in paragraph (b)(2)(ii) of Sec. 1.1250-
3 (relating to property acquired from a decedent prior to his death) or 
in paragraph (e)(3)(iii) of Sec. 1.1250-3 (relating to basis reduction

[[Page 449]]

under section 1071 or 1082(a)(2)), then such property shall be 
considered as having a special element with additional depreciation 
equal to the amount of additional depreciation included in the 
depreciation adjustments (referred to in paragraph (d)(1) of Sec. 
1.1250-2) to which the basis reduction is attributable. For purposes of 
computing applicable percentage, the holding period of a special element 
under this subdivision shall be determined under paragraph (b)(2)(ii) or 
(e)(3)(iii) (whichever is applicable) of Sec. 1.1250-3.
    (ii) If a disposition described in section 1250(d)(4)(A) (relating 
to like kind exchanges and involuntary conversions) of a portion of an 
item of property gives rise to an addition to capital account (described 
in the last sentence of paragraph (d)(2)(i) of this section) which is 
not a separate improvement, then such property shall be considered as 
having a special element with additional depreciation and, for purposes 
of computing applicable percentage, a holding period determined under 
paragraph (d)(7) of Sec. 1.1250-3.
    (6) Low-income housing elements. If, in an approved disposition of a 
qualified housing project, a replacement qualified housing project is 
treated as consisting of more than one element of section 1250 property 
by reason of section 1250(d)(8)(E) (see paragraph (h)(2) of Sec. 
1.1250-3), the elements determined under such section shall be treated 
as elements for purposes of this section. For definition of the terms 
qualified housing project and approved disposition, see section 1039(b) 
and the regulations thereunder.
    (7) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A taxpayer constructs an apartment house which he places 
in service in three stages. The total cost is $1 million, of which 
$350,000 is allocable to the first stage, $500,000 to the second stage, 
and $150,000 to the third stage. The first stage, which is placed in 
service on January 1, 1965, consists of 300 apartments and certain 
facilities including a central heating system and a common lobby. The 
second stage, which is placed in service on July 15, 1965, consists of 
550 apartments and certain facilities including the motor for a central 
air-conditioning system. The third stage, which is placed in service on 
January 19, 1966, consists of the residue of the apartment house. On 
December 31, 1968, the taxpayer disposes of the apartment house. On such 
date, the apartment house has three elements which are described in the 
table below:

------------------------------------------------------------------------
                                                 Full months
    Stage        Kind of  element        Cost     in holding  Applicable
                                                    period    percentage
------------------------------------------------------------------------
1             Unit..................   $350,000           48          72
2             Unit..................    500,000           42          78
3             Remaining property....    150,000           36          84
------------------------------------------------------------------------

    Example 2. Assume the same facts as in example (1) except that on 
January 1, 1969, two new floors, which were added after the apartment 
house was completed, are placed in service and that on July 1, 1972, the 
taxpayer disposes of the building. Assume further that the two new 
floors are one separate improvement (within the meaning of paragraph (d) 
of this section). On the date disposed of, the property consists of four 
elements, that is, the three elements described in example (1) and the 
separate improvement.

    (d) Separate improvement--(1) Definition. For purposes of this 
section, with respect to any section 1250 property, the term separate 
improvement means an addition to capital account described in 
subparagraph (2) of this paragraph which qualifies as an improvement 
under the 1-year test prescribed in subparagraph (3) of this paragraph 
and which satisfies the 36-month test prescribed in subparagraph (4) of 
this paragraph.
    (2) Addition to capital account. (i) In the case of any section 1250 
property, an addition to capital account described in this subparagraph 
is any addition to capital account in respect of such property after its 
initial acquisition or completion by the taxpayer or by any person who 
held the property during a period included in the taxpayer's holding 
period (see Sec. 1.1250-4) for the property. An addition to the capital 
account of section 1250 property may arise, for example, if there is an 
expenditure for section 1250 property which is an improvement, 
replacement, addition, or alteration to such property (regardless of 
whether the cost thereof is capitalized or charged against the 
depreciation reserve). In such a case, the addition to capital account 
is the gross addition, unreduced by amounts attributable to replaced 
property, to the net capital account and not the net addition to such 
account. Thus, if a roof has an adjusted basis of $20,000,

[[Page 450]]

and is replaced by constructing a new roof at a cost of $50,000, the 
gross addition of $50,000 is an addition to capital account. (The 
adjusted basis of the old roof is no longer included in the capital 
account for the property.) For purposes of this section, the status of 
an addition to capital account is not affected by whether or not it is 
treated as a separate property for purposes of determining depreciation 
adjustments. In case of an addition to the capital account of property 
arising after December 31, 1963, upon a disposition referred to in 
section 1250(d)(4) (relating to like kind exchanges and involuntary 
conversions) of a portion of an item of such property, the amount of 
such addition (and its basis for all purposes of the Code) shall be the 
basis thereof determined under paragraph (d) (2), (3), or (4) (whichever 
is applicable) of Sec. 1.1250-3, applied by treating such portion and 
such addition as separate properties.
    (ii) An addition to capital account may be attributable to an excess 
of the adjusted basis of section 1250 property in the hands of a 
transferee immediately after a transaction referred to in section 
1250(e)(2) (relating to holding period of property with transferred 
basis) over its adjusted basis in the hands of the transferor 
immediately before the transaction. Thus, for example, such excess may 
arise from a gift which is in part a sale or exchange (see paragraph 
(a)(2) of Sec. 1.1250-3), from an increase in basis due to gift tax 
paid (see section 1015(d)), from a transfer referred to in paragraph 
(c)(2) of Sec. 1.1250-3 (relating to certain tax-free transactions) in 
which gain is partially recognized, or from a distribution by a 
partnership to a partner in which no gain is recognized by reason of the 
application of section 731. Similarly, an addition to capital account 
may be attributable to an excess of the adjusted basis of a principal 
residence acquired in a transaction referred to in section 1250(e)(3) 
over the adjusted basis of the principal residence disposed of, as well 
as to any increase in the adjusted basis of section 1250 property of a 
partnership by reason of an optional basis adjustment under section 
734(b) or 743(b).
    (iii) Whether or not an expenditure shall be treated as an addition 
to capital account described in this subparagraph, as distinguished from 
a separate item of property, may depend on how the property or 
properties are disposed of. Thus, for example, if a taxpayer, who owns a 
motel consisting of 10 buildings with common heating and plumbing 
systems, adds to the motel three new buildings which are connected to 
the common systems, and if the taxpayer sells the motel to one person in 
one transaction, then for purposes of this subparagraph the cost of the 
three new buildings shall be treated as an addition to the capital 
account of the motel and, if the 1-year and 36-month tests of 
subparagraphs (3) and (4) of this paragraph are satisfied, the motel 
consists of at least two elements. If, however, the 10-building group 
and the three-building group were individually sold in separate 
transactions to two different people each of whom would operate his 
group as a separate business, the motel would consist of two items of 
property.
    (3) One-year test for improvement. (i) An addition to capital 
account of section 1250 property for any taxable year (including a short 
taxable year and the entire taxable year in which the disposition 
occurs) shall be treated as an improvement only if the sum of all 
additions to the capital account of such property for such taxable year 
exceeds the greater of:
    (a) $2,000, or
    (b) One percent of the unadjusted basis of the property, determined 
as of the beginning (1) of such taxable year, or (2) of the holding 
period (within the meaning of Sec. 1.1250-4) of the property, whichever 
is the later.
    (ii) For purposes of this section, the term unadjusted basis means 
the adjusted basis of the property, determined without regard to the 
adjustments provided in section 1016(a) (2) and (3) (relating to 
adjustments for depreciation, amortization, and depletion). For purposes 
of this paragraph, as of any particular date the unadjusted basis of 
section 1250 property (a) includes the cost of any addition to capital 
account for the property which arises prior to such date (regardless of 
whether such addition qualified under this subparagraph as an 
improvement), and (b) does not include the cost

[[Page 451]]

of a component retired before such date.
    (iii) In respect of a particular disposition of section 1250 
property by a person:
    (a) There shall not be taken into account under the 1-year test for 
improvements in this subparagraph any addition to capital account which 
arises by reason of (or after) such disposition or which arises before 
the beginning of the holding period under Sec. 1.1250-4 of such person 
for the property, and
    (b) Such test shall be made in respect of each taxable year of such 
person (and of any prior transferor) any day of which is included under 
Sec. 1.1250-4 in such person's holding period for the property, except 
that (1) such test shall be made for a taxable year of such person only 
if such person actually owned the property on at least 1 day of such 
taxable year, and (2) such test shall be made for a taxable year of such 
prior transferor only if such prior transferor actually owned the 
property on at least 1 day of such taxable year.
    (iv) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. The unadjusted basis of section 1250 property as of the 
beginning of January 1, 1960, is $300,000. During the taxable year 
ending on December 31, 1960, the only additions to the capital account 
for the property are addition A on January 1, 1960, costing $1,000, and 
addition B on July 1, 1960, costing $600. Since the sum of the amounts 
added to capital account for such taxable year is less than $2,000, A 
and B are not treated as improvements. This result would not be changed 
if addition C, costing $600, were added on December 15, 1960, since 
although the sum of the additions ($1,000 plus $600 plus $600, or 
$2,200) exceeds $2,000, such sum is less than 1 percent of the 
unadjusted basis of the property as of the beginning of 1960 ($3,000, 
that is, 1 percent of $300,000). If however, C cost $1,500, then A, B, 
and C would each be considered an improvement since the sum of the 
amounts added to capital account $3,100) would exceed $3,000.
    Example 2. Green and his son both use the calendar year as the 
taxable year. On February 1, 1965, Green makes addition A to a piece of 
section 1250 property. On June 15, 1965, Green transfers such property 
to his son as a gift which is in part a sale (see paragraph (a) of Sec. 
1.1250-3). Addition B arises by reason of the transfer. On August 1, 
1965, the son makes addition C to the property. For purposes of 
determining the amount of gain recognized under section 1250(a) to Green 
upon the transfer, the determination of whether addition A is an 
improvement is made without taking into account additions B and C. For 
purposes of determining the amount of gain recognized under section 
1250(a) upon a subsequent disposition of the property by the son, 
additions B and C would be taken into account in the determination of 
whether A is an improvement, and A would be taken into account in the 
determination of whether B and C are improvements.
    Example 3. Assume the same facts as in example (2). Assume further 
that on September 15, 1965, the son transfers the property to a 
corporation in exchange for cash and stock in the corporation in a 
transaction qualifying under section 351 (see paragraph (c) of Sec. 
1.1250-3), and that the corporation uses a fiscal year ending November 
30. For purposes of determining the amount of gain recognized under 
section 1250(a) upon a subsequent disposition by the corporation, the 
one-year test under subdivision (i) of this subparagraph is made for the 
entire taxable year of Green and of the son ending on December 31, 1965, 
and in respect of the corporation's taxable year ending November 30, 
1965. Accordingly, if on December 7, 1965, addition D is made by the 
corporation, then, upon a subsequent disposition by the corporation, D 
is taken into account for purposes of the determination in respect of 
the entire taxable year of Green and of the son ending on December 31, 
1965, and for the corporation's taxable year ending November 30, 1966, 
but not for purposes of the corporation's taxable year ending November 
30, 1965. If D were made on January 3, 1966, D would still be taken into 
account for purposes of the determination in respect of the 
corporation's taxable year ending November 30, 1966. However, since 
neither Green nor his son actually owned the property on any day of the 
taxable year ending December 31, 1966, no determination is made in 
respect of such taxable year of Green or of the son.

    (4) 36-month test for separate improvement. (i) If, during the 36-
month period ending on the last day of any taxable year (including a 
short taxable year and the entire taxable year in which the disposition 
occurs), the sum of the amounts treated under subparagraph (3) of this 
paragraph as improvements for such period exceeds the greatest of:
    (a) 25 percent of the adjusted basis of the property,
    (b) 10 percent of the unadjusted basis (determined under 
subparagraph (3)(ii) of this paragraph) of the property, or
    (c) $5,000,

[[Page 452]]


Then each such improvement during such period shall be treated as a 
separate improvement, and thus as an element. For purposes of (a) and 
(b) of this subdivision, the adjusted basis (or unadjusted basis) of 
section 1250 property shall be determined as of the beginning of the 36-
month period, or as of the beginning of the holding period of the 
property (within the meaning of Sec. 1.1250-4), whichever is the later.
    (ii) In respect of a particular disposition of section 1250 property 
by a person:
    (a) There shall not be taken into account under the 36-month test 
for separate improvements in this subparagraph any amount treated under 
subparagraph (3) of this paragraph as an improvement which arises by 
reason of (or after) the disposition or which arises before the 
beginning of the holding period under Sec. 1.1250-4 of such person for 
the property, and
    (b) Such test shall be made in respect of each 36-month period 
ending on the last day of each taxable year of such person (and of any 
prior transferor) if at least 1 day of such period is included under 
Sec. 1.1250-4 in such person's holding period for the property, except 
that (1) such test shall be made for a 36-month period ending on the 
last day of a taxable year of such person only if such person actually 
owned the property on at least 1 day of such period, and (2) such test 
shall be made for a 36-month period ending on the last day of a taxable 
year of such prior transferor only if such prior transferor actually 
owned the property on at least 1 day of such period.
    (iii) For illustration of the principles of subdivision (ii) of this 
subparagraph, see examples (2) and (3) in subparagraph (3)(iv) of this 
paragraph.
    (5) Example. The application of this paragraph may be illustrated by 
the following example:

    Example: (i) On December 31, 1967, X, a calendar year taxpayer, 
purchases an item of section 1250 property at a cost of $100,000. In the 
table below, the adjusted basis and unadjusted basis of the property are 
shown for the beginning of January 1 of each taxable year and it is 
assumed that each addition to capital was added on January 1 of the year 
shown.

----------------------------------------------------------------------------------------------------------------
                                                                                          1 percent
                                                                   Adjusted  Unadjusted       of
                               Year                                  basis      basis     unadjusted   Addition
                                                                                            basis
----------------------------------------------------------------------------------------------------------------
1969.............................................................   $94,000   $100,000        $1,000   A-$10,000
1970.............................................................    97,030    110,000         1,100     B-4,000
1971.............................................................    94,041    114,000         1,140     C-6,000
1972.............................................................    92,799    120,000         1,200  ..........
1973.............................................................    86,158    120,000         1,200    D-18,000
----------------------------------------------------------------------------------------------------------------

    (ii) Since each addition to capital account for the property exceeds 
the greater of $2,000 or one percent of unadjusted basis, determined as 
of the beginning of the taxable year in which made, each addition to 
capital account qualifies as an improvement under subparagraph (2) of 
this paragraph.
    (iii) Since the beginning of the holding period of the property 
under Sec. 1.1250-4 (Jan. 1, 1968) is later than the beginning of the 
36-month period ending on December 31, 1969, the determination as to 
whether there are any separate improvements on the property as of 
December 31, 1969, is made by examining the adjusted basis (or 
unadjusted basis) of the property as of the beginning of January 1, 
1968. As of December 31, 1969, there were no separate improvements on 
the property since the only amount treated as an improvement for the 
period beginning on January 1, 1968, and ending on December 31, 1969, in 
addition A (costing $10,000), which is less than $25,000, that is, 25 
percent of the adjusted basis ($100,000) of the property as of the 
beginning of January 1, 1968.
    (iv) As of December 31, 1970, there were no separate improvements on 
the property since the sum of the amounts treated as improvements for 
the 36-month period ending on December 31, 1970, is $14,000 (that is, 
$10,000 for A, plus $4,000 for B), and this sum is less than $25,000, 
that is, 25 percent of the adjusted basis ($100,000) of the property as 
of the beginning of January 1, 1968.
    (v) As of December 31, 1971, there were no separate improvements on 
the property since the sum of the amounts treated as improvements for 
the 36-month period ending on December 31, 1971, is $20,000 (that is, 
$10,000 for A, plus $4,000 for B, plus $6,000 for C), and this sum is 
less than $23,500, that is, 25 percent of the adjusted basis ($94,000) 
of the property as of the beginning of January 1, 1969.
    (vi) As of December 31, 1972, there were no separate improvements on 
the property since the sum of the amounts treated as improvements for 
the 36-month period ending on December 31, 1972, is $10,000 (that is, 
$4,000 for B plus $6,000 for C), and this sum is less than $24,258 that 
is, 25 percent of the adjusted basis ($97,030) of the property as of the 
beginning of January 1, 1970.
    (vii) As of December 31, 1973, C and D are separate improvements 
(notwithstanding that as of December 31, 1971 and 1972, C was not a 
separate improvement) since the sum

[[Page 453]]

of the amounts added for the 36-month period ending December 31, 1973, 
is $24,000 (that is, $6,000 for C plus $18,000 for D), and this sum 
exceeds the greatest of:
    (a) $23,510, that is, 25 percent of the adjusted basis ($94,041) of 
the section 1250 property as of the beginning of January 1, 1971,
    (b) $11,400, that is, 10 percent of the unadjusted basis ($114,000) 
of the property as of the beginning of such first day, or
    (c) $5,000.

    (e) Additional depreciation and holding period of property acquired 
in certain transactions--(1) Transferred basis. If property consisting 
of two or more elements is disposed of, and if the holding period of the 
property in the hands of the transferee for purposes of computing 
applicable percentage includes the holding period of the transferor by 
reason of the application of paragraph (c) (other than subparagraph (2) 
thereof) of Sec. 1.1250-4, then the additional depreciation for each 
element of the property in the hands of the transferee immediately after 
the transfer shall be computed in the manner set forth in this 
subparagraph. First, any element having a deficit in additional 
depreciation in the hands of the transferor immediately before such 
transfer shall be considered to have the same deficit in the hands of 
the transferee. Second, elements having additional depreciation in the 
hands of the transferor immediately before the transfer shall be 
considered to have additional depreciation in the hands of the 
transferee. The sum of the transferee's additional depreciation for all 
elements of the property having additional depreciation in the hands of 
the transferor shall be an amount equal to the additional depreciation 
in respect of the property as a whole immediately after the transfer 
increased by the sum of the deficits in addition depreciation for all 
elements having such deficits. In case there is more than one element 
having additional depreciation, the additional depreciation for any such 
element in the hands of the transferee shall be computed by multiplying 
(i) the amount computed under the preceding sentence by (ii) the 
additional depreciation for such element in the hands of the transferor 
divided by the sum of the additional depreciation for all such elements 
having additional depreciation in the hands of the transferor. For 
purposes of computing applicable percentage, the holding period for an 
element of such property in the hands of the transferee shall include 
the holding period of such element in the hands of the transferor.
    (2) Example. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following example:

    Example: Section 1250 property has additional depreciation of 
$16,000 of which $12,000 is additional depreciation for element X and 
$4,000 for element Y. The property is transferred to a corporation in 
exchange for cash of $6,000 and for stock in the corporation. Assume 
that recognition of gain under section 1250(a) is limited to $6,000 (the 
amount of cash received) by reason of the application of section 351(b) 
(relating to transfer to corporation controlled by transferor) and 
section 1250(d)(3) (relating to limitation on application of section 
1250 in certain tax-free transactions). Under paragraph (c)(3)(i) of 
Sec. 1.1250-3, the additional depreciation for the property in the 
hands of the corporation immediately after the transfer is $10,000, that 
is, the additional depreciation for the property in the hands of the 
transferor immediately before the transfer ($16,000) minus the gain 
under section 1250(a) recognized upon the transfer ($6,000). Under 
subparagraph (1) of this paragraph, in the hands of the corporation 
immediately after the transfer element X has additional depreciation of 
$7,500 (\12/16\ of $10,000) and element Y as additional depreciation of 
$2,500 (\4/16\ of $10,000). Under paragraph (d)(2)(ii) of this section 
there is an addition of $6,000 to the capital account for the property.

    (3) Principal residence. If a principal residence consisting of two 
or more elements is disposed of, and if for purposes of computing 
applicable percentage the holding period of the principal residence 
acquired includes the holding period of the principal residence disposed 
of by reason of the application of paragraph (d) of Sec. 1.1250-4, then 
the additional depreciation (or a deficit in additional depreciation) 
for an element of the principal residence acquired immediately after the 
transaction shall be determined in a manner consistent with the 
principles of subparagraph (1) of this paragraph. For purposes of 
computing applicable percentage, the holding period for an element of 
the principal residence acquired includes the holding period of such 
element of the principal residence disposed of, but not the period 
beginning on the day after

[[Page 454]]

the date of the disposition and ending on the date of the acquisition.
    (f) Holding period for small separate improvements--(1) General. 
This paragraph prescribes a special holding period solely for the 
purpose of computing the applicable percentage of a separate improvement 
(as defined in paragraph (d) of this section) which is treated as an 
element. See paragraph (a)(2)(ii) of this section for determination of 
holding period under section 1223 for purposes of computing additional 
depreciation. In respect of section 1250 property, if the amount of a 
separate improvement does not exceed the greater of:
    (i) $2,000, or
    (ii) One percent of the unadjusted basis (within the meaning of 
paragraph (d)(3)(ii) of this section) of such property, determined as of 
the beginning of the taxable year in which such separate improvement was 
made,

Then such separate improvement shall be treated for purposes of 
computing applicable percentage as placed in service on the first day, 
of a calendar month, which is the closest such first day to the middle 
of the taxable year. See the last sentence of section 1250(f)(4)(B). If 
two such first days are equally close to the middle of the taxable year, 
the earliest of such days is the applicable day.
    (2) Example. The application of this paragraph may be illustrated by 
the following example:

    Example: (i) The unadjusted basis of section 1250 property as of the 
beginning of January 1, 1960, is $100,000. During the taxable year 
ending on December 31, 1960, the only additions to the capital account 
for the property are addition A on March 10, 1960, costing $1,200 and 
addition B on September 16, 1960, costing $1,400. Since the sum of the 
additions ($2,600) exceeds the greater of $2,000 and 1 percent of 
unadjusted basis ($1,000, that is, 1 percent of $100,000), each addition 
is an improvement under the 1-year test of paragraph (d)(3) of this 
section. Assume that the 36-month test of paragraph (d)(4) of this 
section is satisfied and, therefore, each addition is a separate 
improvement treated as an element.
    (ii) Since each element is less than $2,000, the provisions of this 
paragraph apply. Since there are 366 days in 1960, the middle of the 
year is at the end of 183 days, or July 1. Thus, that first day of a 
calendar month in 1960, which is the closest first day (of a calendar 
month) to the middle of the taxable year, is July 1, 1960. Accordingly, 
for purposes of computing applicable percentage, elements A and B are 
each treated as placed in service on July 1, 1960.

[T.D. 7084, 36 FR 275, Jan. 8, 1971, as amended by T.D. 7193, 37 FR 
12957, June 30, 1972; T.D. 7400, 41 FR 5103, Feb. 4, 1976]



Sec. 1.1251-1  General rule for treatment of gain from disposition of 
property used in farming where farm losses offset nonfarm income.

    (a) Applicability. The provisions of section 1251, this section, and 
Sec. Sec. 1.1251-2 through 1.1251-4 shall apply with respect to any 
taxable year beginning after December 31, 1969, but only if (1) there is 
a farm net loss (as defined in section 1251(e)(2) and paragraph (b) of 
Sec. 1.1251-3) for the taxable year, or (2) there is a balance in the 
excess deductions account (as described in Sec. 1251-2) as of the close 
of the taxable year before subtracting any amount under paragraph 
(c)(1)(i) of Sec. 1251-2. See section 1251(a). In general, a taxpayer 
who has a farm net loss and certain other taxpayers are required to 
establish and maintain an excess deductions account as provided in 
section 1251(b). Certain additions and subtractions are made to the 
excess deductions account, and upon the disposition of farm recapture 
property any gain to the extent of the balance in the excess deductions 
account is recognized as ordinary income under section 1251(c)(1). See 
paragraph (b)(1) of this section. Farm recapture property is, in 
general, certain farming property (other than section 1250 property) 
described in paragraph (1), (3), or (4) of section 1231(b). See 
paragraph (a) of Sec. 1.1251-3.
    (b) Ordinary income--(1) General rule. In general, subject to the 
provisions of subparagraphs (2), (3), (4), and (5) of this paragraph, 
upon a disposition of an item of farm recapture property during a 
taxable year beginning after December 31, 1969, the amount of which:
    (i) In the case of a sale, exchange, or involuntary conversion, the 
amount realized, or
    (ii) In the case of any other disposition, the fair market value of 
such property

exceeds the adjusted basis of such property shall be recognized under 
section

[[Page 455]]

1251(c)(1) as gain from the sale or exchange of property which is 
neither a capital asset nor property described in section 1231 (that is, 
shall be recognized as ordinary income). The amount of gain recognized 
as ordinary income under section 1251(c)(1) shall be determined 
separately for each item of farm recapture property in a manner 
consistent with the principles of subparagraphs (4) and (5) of Sec. 
1.1245-1(a) (relating to gain from dispositions of certain depreciable 
property). Generally, such ordinary income treatment applies even though 
in the absence of section 1251(c)(1) no gain would be recognized under 
the Code. For example, if a corporation distributes farm recapture 
property as a dividend gain may be recognized as ordinary income to the 
corporation even though, in the absence of section 1251(c)(1), section 
311(a) would preclude any recognition of gain to the corporation. For 
purposes of section 1251, the term disposition shall have the same 
meaning as in paragraph (a)(3) of Sec. 1.1245-1. For the relation of 
section 1251 to other provisions of the Code, see paragraph (e) of this 
section.
    (2) Limitation as to dispositions of land--(i) In general. In the 
case of a disposition of land, gain shall be recognized as ordinary 
income under section 1251(c)(1) only to the extent of the land's 
potential gain. See section 1251(c)(2)(C).
    (ii) Potential gain. For purposes of section 1251, the term 
potential gain means in respect of land an amount equal to the excess of 
its fair market value over its adjusted basis, but limited to the extent 
of the deductions allowable in respect to such land pursuant to an 
election (if any) under sections 175 (relating to soil and water 
conservation expenditures) and 182 (relating to expenditures by farmers 
for clearing land) for the taxable year of disposition and the four 
immediately preceding taxable years regardless of whether any such 
preceding taxable year begins before December 31, 1969. See section 
(e)(5).
    (iii) Cross reference. For additional recapture of certain 
deductions allowed under sections 175 and 182 in respect of farm land, 
see section 1252.
    (3) Exceptions and special rules. The amount of gain to be 
recognized as ordinary income under section 1251(c)(1) after applying 
subparagraph (2) of this paragraph, if applicable, shall be subject to 
the exceptions and special rules of section 1251(d) and Sec. 1.1251-4.
    (4) Limitation as to amount in excess deductions account--(i) In 
general. The aggregate of the amount of gain recognized as ordinary 
income under section 1251(c)(1) (after applying subparagraphs (2) and 
(3) of this paragraph, if applicable) shall not exceed the amount in the 
excess deductions account at the close of the taxable year after 
subtracting from the account the amount specified in section 
1251(b)(3)(A) and paragraph (c)(1)(i) of Sec. 1.1251-2. See section 
1251(c)(2)(A). For transfer of amount in an excess deductions account, 
see section 1251(b)(5).
    (ii) Dispositions taken into account. If the aggregate of the amount 
to which section 1251(c)(1) applies is limited for any taxable year by 
the application of subdivision (i) of this subparagraph, section 
1251(c)(1) shall apply in respect of dispositions of items of farm 
recapture property in the order made. See section 1251(c)(2)(B).
    (5) Relationship to section 1245. If property is disposed of which 
qualifies as both section 1245 property (as defined in section 
1245(a)(3)) as well as farm recapture property, then gain shall be 
recognized as ordinary income under section 1251(c)(1) only to the 
extent that the amount of any gain realized (in the case of a sale, 
exchange, or involuntary conversion), or to the extent that the excess 
of the fair market value of the property over its adjusted basis (in the 
case of any other disposition), was not recognized as ordinary income 
under section 1245(a)(1). The amount of gain recognized as ordinary 
income under section 1245(a)(1) upon a disposition of farm recapture 
property (i) is taken into account under paragraph (b)(2) of Sec. 
1.1251-3 for purposes of computing farm net loss (or farm net income) 
and (ii) is not under paragraph (c)(1)(ii) of Sec. 1.1251-2 subtracted 
from the excess deductions account.
    (6) Examples. The principles of this paragraph may be illustrated by 
the following examples:

    Example 1. A, an unmarried individual who uses the calendar year as 
his taxable year, makes one disposition of farm recapture

[[Page 456]]

property during 1970. On June 30, 1970, he sells for $75,000 farm 
recapture property (other than land) with an adjusted basis of $43,000 
for a realized gain of $32,000 none of which is recognized under section 
1245. The balance in A's excess deductions account is $39,000 at the 
close of 1970 (after making the applicable additions and subtractions 
under section 1251(b) (2) and (3)(A)). Hence, the entire gain of $32,000 
is recognized as ordinary income under section 1251(c)(1), and the 
balance remaining in A's excess deductions account is $7,000. If, 
however, the original balance in the excess deductions account were only 
$15,000, then only $15,000 would be recognized as ordinary income under 
section 1251(c)(1) and A's excess deductions account balance would be 
reduced to zero. The remaining gain of $17,000 may be treated as gain 
from the sale or exchange of property described in section 1231.
    Example 2. M, a calendar year corporation makes one disposition of 
farm recapture property during 1975. On January 15, 1975, M distributes 
as a dividend to its shareholders land which it had acquired on March 3, 
1970. On that date, the excess of the fair market value ($67,500) over 
the adjusted basis of land ($45,000) is $22,500 and the sum of the 
deductions allowable in respect of such land under sections 175 and 182 
is $5,000 for 1970 and $13,000 for the taxable year of disposition and 
the four immediately preceding taxable years. Thus, the potential gain 
(as defined in subparagraph (2)(ii) of this paragraph) is limited to 
$13,000. At the end of M's taxable year (after making the applicable 
additions and subtractions under section 1251(b) (2) and (3)(A) there is 
a balance of $25,000 in the excess deductions account of M. Since such 
balance exceeds the potential gain, M recognizes $13,000 as ordinary 
income under section 1251(c)(1) even though, in the absence of that 
provision, section 311(a) would preclude recognition of gain to M. The 
balance in M's excess deductions account is reduced by $13,000, from 
$25,000 to $12,000. With respect to the treatment of the remaining gain 
($9,500) from the disposition of the land, see section 1252 and example 
(2) of paragraph (e) Sec. 1.1252-1.
    Example 3. Assume the same facts as in example (2), except that M 
makes a second disposition of farm recapture property during 1975. On 
June 5, 1975. M sells for $55,000 a breeding herd of cattle having an 
adjusted basis of $35,000 for a realized gain of $20,000. M had acquired 
the herd on April 1, 1971. Assume further that $6,000 of the $20,000 
gain realized is treated as ordinary income under section 1245(a)(1). 
Thus, the amount of gain M would recognize as ordinary income under 
section 1251(c)(1), computed before applying the excess deductions 
account limitation, is $14,000. In accordance with the computation in 
example (1) of paragraph (c)(2) of Sec. 1.1251-2, the excess deductions 
account limitations limit the maximum amount of gain which can be 
recognized as ordinary income under section 1251(c)(1) upon the 
disposition of the land and the breeding herd to $25,000. Under 
subparagraph (4)(ii) of this paragraph, the amount of such limitation, 
$25,000, is assigned to each property in the order of disposition. Thus, 
the amount of gain recognized as ordinary income under section 1251 is 
$13,000 (as in example (1) of this subparagraph) on the disposition of 
the land and $12,000 on the disposition of the breeding herd. The 
remaining gain of $2,000 (i.e., $14,000 minus $12,000) on the 
disposition of the breeding herd may be treated as gain from the sale or 
exchange of property described in section 1231.

    (c) Instances of nonapplication--(1) In general. Section 1251 does 
not apply with respect to dispositions of farm recapture property by a 
taxpayer during a taxable year if at the close of such year after making 
the necessary additions and subtractions under section 1251(b) (2) and 
(3)(A), there is no balance in the taxpayer's excess deductions account.
    (2) Losses. Section 1251(c)(1) does not apply to losses. Thus, 
section 1251(c)(1) does not apply if a loss is realized upon a sale, 
exchange or involuntary conversion of property, all of which is farm 
recapture property, nor does the section apply to a disposition of such 
property other than by way of sale, exchange, or involuntary conversion 
if at the time of the disposition the fair market value of such property 
is not greater than its adjusted basis.
    (3) Certain dispositions of interests in land. Section 1251(c)(1) 
does not apply to dispositions of interests in land with respect to 
which no deductions were allowable pursuant to an election under section 
175 (relating to soil and water conservation expenditures) and 182 
(relating to expenditures by farmers for clearing land) for the taxable 
year of disposition and the four immediately preceding taxable years. 
For possible application of section 1252 in such a case, see example (1) 
of paragraph (e) of Sec. 1.1252-1.
    (d) Partnerships. [Reserved]
    (e) Relation of section 1251 to other provisions--(1) General. The 
provisions of section 1251 apply (after applying paragraph (b)(5) of 
this section, relating to section 1245 property) notwithstanding any 
other provision of subtitle A of the

[[Page 457]]

Code. Thus, unless an exception or special rule under section 1251(d) 
and Sec. 1.1251-4 applies, gain under section 1251(c)(1) is recognized 
notwithstanding any contrary nonrecognition provision or income 
characterizing provision. For example, section 1251 overrides section 
1231 (relating to property used in a trade or business). Accordingly, 
gain recognized under section 1251(c)(1) upon a disposition of farm 
recapture property will be treated as ordinary income to the extent of 
the balance in the taxpayer's excess deductions account, and only the 
remaining gain, if any, from the disposition may be considered as gain 
from the sale or exchange of a capital asset if section 1231 is 
applicable. See example (3) of paragraph (d)(6) of this section.
    (2) Nonrecognition sections overridden. The nonrecognition of gain 
provisions of subtitle A of the Code which section 1251 overrides 
include, but are not limited to, sections 267(d), 311(a), 336, 337, and 
512(b)(5). See section 1251(d) and Sec. 1.1251-4 for the extent to 
which 1251(c)(1) overrides sections 332, 351, 361, 371(a), 374(a), 721, 
1031, and 1033.
    (3) Treatment of gain not recognized under section 1251(c)(1). For 
treatment of gain not recognized under section 1251(c)(1), the 
principles of paragraph (f) Sec. 1.1251-6 shall be applicable. Thus 
section 1251 does not prevent gain which is not recognized under section 
1251 from being considered as gain under another provision of the Code, 
such as for example, section 1252(a)(1) (relating to treatment of gain 
from disposition of farm land). See example (1) of paragraph (e) of 
Sec. 1.1252-1.
    (4) Exempt income. With regard to exempt income, the principles of 
paragraph (e) of Sec. 1.1245-6 shall be applicable.
    (5) Normal retirement of asset in multiple asset account. Section 
1251(c)(1) does not require recognition of gain upon normal retirements 
of farm recapture property in a multiple asset account as long as the 
taxpayer's method of accounting, as described in paragraph (e)(2) of 
Sec. 1.167(a)-8 (relating to accounting treatment of asset 
retirements), does not require recognition of such gain.
    (6) Installment method--(i) In general. Gain from a disposition to 
which section 1251(c)(1) applies may be reported under the installment 
method if such method is otherwise available under section 453 of the 
Code. In such case, the income (other than interest) on each installment 
payment shall be deemed to consist of gain to which section 1251(c)(1) 
applies until all such gain has been reported, and the remaining portion 
(if any) of such income shall be deemed to consist of gain to which 
section 1251(c)(1) does not apply. For treatment of amounts as interest 
on certain deferred payments, see section 483. For adjustments in the 
excess deductions account, see paragraph (c)(1)(ii) of Sec. 1.1251-2.
    (ii) Special rule. If a taxpayer disposes of property used in the 
trade or business of farming which qualifies as both section 1245 
property as well as farm recapture property and elects to report the 
gain from such disposition under the installment method, then the income 
(other than interest) on each installment payment shall (a) first be 
deemed to consist of gain to which section 1245(a)(1) applies until all 
such gain has been reported, (b) The remaining portion (if any) of such 
income shall be deemed to consist of gain to which section 1251(e)(1) 
applies until all such gain has been reported, and (c) finally the 
remaining portion (if any) of such income shall be deemed to consist of 
gain to which neither section 1245(a)(1) nor 1251 (c)(1) applies. See 
paragraph (d)(3) of Sec. 1.1252-1 with respect to the installment 
method in regard to the disposition of property which is both farm 
recapture property as well as farm land (as defined in section 
1252(a)(2) and paragraph (a)(3)(i) of Sec. 1.1252-1).

[T.D. 7418, 41 FR 18814, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec. 1.1251-2  Excess deductions account.

    (a) Establishment and maintenance of account--(1) General rule. With 
respect to any taxable year beginning after December 31, 1969, any 
taxpayer who:
    (i) Has a farm net loss (as defined in section 1251(e)(2) and in 
paragraph (b) of Sec. 1.1251-3) for such a taxable year, or
    (ii) Has an excess deductions account balance as of the close of 
such a taxable year

[[Page 458]]


shall establish (if not previously established) and maintain for 
purposes of section 1251 an excess deductions account. See section 
1251(b)(1). Once an excess deductions account is established (or 
succeeded to under paragraph (e) of this section in the case of certain 
corporate transactions and gifts) all entries (including the entries 
prescribed by paragraph (f) of this section with respect to married 
taxpayers who file joint returns) with respect to the account must be 
part of the taxpayer's permanent records for all taxable years for which 
the account must be maintained. For purposes of applying section 1251 
and this section, the term taxpayer in the case of a partnership means 
each partner of such partnership and in the case of an estate or trust 
means the estate or trust regardless of whether it is taxable under 
subpart A or E, subchapter J, chapter 1 of the Code.
    (2) Distributions from estate or trust. If farm recapture property 
is distributed from an estate or trust in a transaction to which section 
1251(d) (1) or (2) (relating to exceptions for gifts and transfers at 
death) applies, then the excess deductions account balance of the estate 
or trust shall be succeeded to by the distributee in the amount, if any, 
and manner prescribed in paragraph (e)(2) of this section. For purposes 
of the preceding sentence only, the rules of paragraph (e)(2) of this 
section shall be applied by treating each distribution as a gift at the 
time made. Thus; for example, if all of the farm recapture property of 
an estate or trust is distributed to a distributee on the date the 
estate or trust terminates, the distributee will succeed on that date to 
the excess deductions account balance of the estate or trust.
    (3) Exception. A taxpayer is not required to maintain an excess 
deductions account under subparagraph (1) of this paragraph for a 
taxable year if:
    (i) For such taxable year there would be no additions to the 
taxpayer's excess deductions account, and
    (ii) For the immediately preceding taxable year the balance in the 
taxpayer's excess deductions account was reduced to zero by reason of 
section 1251 (b)(3) (relating to subtractions from the account) or 
section 1251(b)(5) (relating to transfer of account).
    (b) Additions to account--(1) General rule. For each taxable year, 
there shall be added to the excess deductions account an amount equal to 
the taxpayer's farm net loss. See section 1251(b)(2)(A).
    (2) Exceptions. In the case of an individual and, in the case of an 
electing small business corporation (as defined in section 1371(b)), 
subparagraph (1) of this paragraph shall apply for a taxable year:
    (i) Only if the taxpayer's nonfarm adjusted gross income (as defined 
in paragraph (d) of Sec. 1.1251-3) for such year exceeds $50,000, and
    (ii) Only to the extent the taxpayer's farm net loss for such year 
exceeds $25,000.

The limitations of this subparagraph apply to a person (other than a 
trust) to whom the tax rates set forth in section 1 are applicable and 
as prescribed in subparagraph (3) of this paragraph in respect of an 
electing small business corporation.
    (3) Electing small business corporation--(i) Taxable years ending 
before December 11, 1971. For taxable years ending before December 11, 
1971, in the case of an electing small business corporation (as defined 
in section 1371(b):
    (a) For purposes of subparagraph (2) of this paragraph, the term the 
taxpayer means such corporation or any one of its shareholders, and the 
term such year, in the case of a shareholder, means his taxable year 
with which or within which the taxable year of the corporation ends (see 
paragraph (d)(2) of Sec. 1.1251-3 for special rules relating to the 
computation of nonfarm adjusted gross income of a shareholder of an 
electing small business corporation), and
    (b) The limitations in subparagraph (2) of this paragraph shall not 
apply to the corporation for a taxable year if on any day of such year 
there is a taxpayer who is a shareholder having, for his taxable year 
with which or within which the taxable year of such corporation ends, a 
farm net loss (as defined in paragraph (b) of Sec. 1.1251-3).

For purposes of determining whether a shareholder of such corporation 
has a farm net loss, there shall not be taken

[[Page 459]]

into account his pro rata share of farm net income or loss of any other 
electing small business corporation for such corporation's taxable year 
ending with or within his taxable year.
    (c) The provisions of this subdivision (i) do not apply for purposes 
of determining whether the shareholder must make an addition to his 
excess deductions account and the amount of such addition.
    (ii) Taxable years ending after December 10, 1971. [Reserved]
    (4) Married individuals--(i) Lower limitations for separate returns. 
If married taxpayers file separate returns, then for purposes of this 
paragraph each spouse shall be treated as a separate individual. 
However, in such case, (a) the amount specified in subparagraph (2)(i) 
of this paragraph shall be $25,000 in lieu of $50,000, and (b) the 
amount specified in subparagraph (2)(ii) of this paragraph shall be 
$12,500 in lieu of $25,000. The lower limitations in the preceding 
sentence shall not apply if the spouse of the taxpayer does not have any 
nonfarm adjusted gross income for the taxable year. See section 
1251(b)(2)(C).
    (ii) Joint return. If married taxpayers for a taxable year file a 
joint return under section 6013, then for purposes of this paragraph 
they shall for such taxable year be treated as a single taxpayer. For 
rules applicable to establishing, maintaining, and allocating a joint 
excess deductions account, see paragraph (f) of this section.
    (5) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. For 1971, the M Corporation which uses the claendar year 
as its taxable year and which is not an electing small business 
corporation has a farm net loss of $40,000 and nonfarm taxable income of 
$45,000. Since subparagraph (2) of this paragraph does not apply to M, 
it is required to make a $40,000 addition to its excess deductions 
account.
    Example 2. For 1971, A, an unmarried individual who uses the 
calendar year as his taxable year, has a farm net loss of $33,000 and 
nonfarm adjusted gross income of $65,000. Under subparagraph (2) of this 
paragraph, A is required to make an addition of $8,000 to his excess 
deductions account (that is, the excess of the farm net loss, $33,000, 
over the $25,000 amount referred to in subparagraph (2)(ii) of this 
paragraph). If, however, A were a trust, the limitation in subparagraph 
(2) of this paragraph would not apply and such trust would be required 
to add $33,000 (the amount of the entire farm net loss) to its excess 
deductions account.
    Example 3. H and W each use the calendar year as the taxable year. 
For 1971, H, a married taxpayer who files a separate return, has a farm 
net loss of $45,000 and nonfarm adjusted gross income of $60,000. H's 
spouse W does not have any nonfarm adjusted gross income for 1971. Thus, 
the lower limitations in subparagraph (4)(i) of this paragraph do not 
apply. Accordingly, H is required to make an addition of $20,000 to his 
excess deductions account (that is, the excess of the farm net loss, 
$45,000, over the $25,000 amount referred to in subparagraph (2)(ii) of 
this paragraph).
    Example 4. Assume the same facts as in example (3), except that for 
1971 W has a farm net loss of $10,000 and nonfarm adjusted gross income 
of $30,000. Thus, the lower limitations in subparagraph (4)(i) of this 
paragraph do apply and H is required to make an addition of $32,500 to 
his excess deductions account (that is, the excess of his farm net loss, 
$45,000, over the $12,500 amount referred to in subparagraph (4)(i)(b) 
of this paragraph). Since, however, W did not have a farm net loss in 
excess of $12,500, she would not be required to make an addition to her 
excess deductions account. For the result if H and W were to file a 
joint return, see example (1) of paragraph (f)(6) of this section.
    Example 5. For 1970, the M Corporation, which uses the calendar year 
as its taxable year and which is an electing small business corporation, 
has a farm net loss of $35,000 and nonfarm adjusted gross income of 
$60,000. A, B, and C, the sole equal shareholders of M, are cash method 
taxpayers and each uses a fiscal year ending on March 31. For the 
taxable year ending March 31, 1971, A has a farm net loss of $5,000. 
Thus, as M's taxable year ends within the taxable year of A during which 
A has a farm net loss, the limitations in subparagraph (2) of this 
paragraph do not apply with respect to M for 1970. See subparagraph (1) 
of this paragraph, to add $35,000 to its excess deductions account.
    Example 6. Assume the same facts as in example (5), except that A's 
farm net loss occurred in his fiscal year ending March 31, 1970, and no 
shareholder of M has a farm net loss for the fiscal year ending March 
31, 1971. Thus, the limitations in subparagraph (2) of this paragraph do 
apply with respect to M for 1970, and accordingly M is required to add 
$10,000 to its excess deductions account for 1970 (that is, the excess 
of M's farm net loss $35,000, over the $25,000 amount referred to in 
subparagraph (2)(ii) of this paragraph).
    Example 7. Assume the same facts as in example (6), except that M 
has $45,000 of nonfarm adjusted gross income for 1970 and A, for his 
taxable year ending March 31, 1971,

[[Page 460]]

has $40,000 of nonfarm adjusted gross income, computed without regard to 
his interest in M. Assume the M paid no dividends. Since, under 
paragraph (d)(2) of Sec. 1.1251-3, A's income from M under section 
1373(b) is computed on the basis of M's nonfarm adjusted gross income, 
A's gross income from M is $15,000 (\1/3\ of $45,000), and A's total 
nonfarm adjusted gross income is $55,000. Accordingly, M would be 
required to add $10,000 to its excess deductions account for 1970 for 
the reasons stated in example (6).
    Example 8. Assume the same facts as in example (7). Assume further 
that A is one of two equal shareholders in N, another electing small 
business corporation with a taxable year ending on January 31, and that 
N for its taxable year ending on January 31, 1971, has a $42,000 nonfarm 
loss and farm net income of $23,000. Assume that N paid no dividends. 
Thus, A for purposes of subparagraph (2)(i) of this paragraph, would 
only have a total of $34,000 of nonfarm adjusted gross income ($55,000) 
computed per example (7) minus $21,000 (A's share of N's nonfarm net 
operating loss (\1/2\ of $42,000) computed in accordance with paragraph 
(d)(2) of Sec. 1.1251-3)). Assuming that no other shareholder of M has 
nonfarm adjusted gross income in excess of $50,000, by reason of the 
$50,000 limitation in subparagraph (2)(i) of this paragraph, M makes no 
addition for 1971 to its excess deductions account. (N would make no 
addition to its excess deductions account as it does not have a farm net 
loss.) If, however, N were to have a nonfarm loss of only $8,000, A for 
purposes of subparagraph (2)(i) of this paragraph would have a total of 
$51,000 of nonfarm adjusted gross income ($51,000 of nonfarm adjusted 
gross income ($55,000, minus \1/2\ of N's nonfarm loss of $8,000)). 
Hence, with respect to M the result would be the same as in example (7) 
(and N would make no addition to its excess deductions account since it 
does not have a farm net loss).
    Example 9. D and E are equal individual shareholders in corporations 
X, Y, and Z, the stock of each corporation having recently been 
purchased from a different unrelated person. X, Y, and Z are electing 
small business corporations. D, E, and the corporations all use the 
calendar year as the taxable year. For 1970, the farm net income of D 
and E (determined without regard to their respective pro rata shares of 
the farm net income or loss of X, Y, and Z) are $100,000 and zero, 
respectively. For 1970, the farm net income or loss of the corporations 
are losses of $80,000 and $20,000 for X and Z, respectively, and income 
of $60,000 for Y. For 1970, the determinations under subparagraph 
(3)(ii) of this paragraph as to whether a shareholder of corporation X 
or Z (no determination is necessary with respect to Y since Y does not 
have a farm net loss) has a farm net loss are made as follows:

                             Determinations as to whether D or E has a farm net loss
----------------------------------------------------------------------------------------------------------------
                                                                       As to X                   As to Z
                                                             ---------------------------------------------------
                                                                   D            E            D            E
----------------------------------------------------------------------------------------------------------------
Farm net income (determined without regard to X, Y, and Z)..     $100,000           $0     $100,000           $0
Pro rata (\1/2\) share of corporation's farm net income (or
 loss):
  Of X......................................................  ...........  ...........     (40,000)     (40,000)
  Of Y......................................................       30,000       30,000       30,000       30,000
  Of Z......................................................     (10,000)     (10,000)  ...........  ...........
                                                             ---------------------------------------------------
    Farm net income (or loss) for purposes of determination.     $120,000      $20,000      $90,000    ($10,000)
----------------------------------------------------------------------------------------------------------------


Accordingly, since the determination as to X indicates that neither D 
nor E has a farm net loss, the limitations of subparagraph (2) of this 
paragraph apply to X. Thus, assuming that X, D, or E has nonfarm 
adjusted gross income in excess of $50,000, X will add $55,000 to its 
excess deductions account, i.e., the excess of the farm net loss, 
$80,000, over the $25,000 amount referred to in subparagraph (2)(ii) of 
this paragraph. Since, however, the determination as to Z indicates that 
E has a farm net loss, such limitations do not apply to Z. Thus, the 
addition for 1970 to Z's excess deductions account is the entire amount 
of its farm net loss, $20,000.

    (c) Subtractions from account--(1) General rule. Under section 
1251(b)(3), if there is any amount in the excess deductions account at 
the close of a taxable year (determined after making any addition 
required under paragraph (b) of this section for such year but before 
making any reduction under this paragraph for such year), then the 
excess deductions account shall be reduced (but not below zero) by 
subtracting:
    (i) An amount equal to (a) the farm net income (as defined in 
section 1251 (e)(3) and in paragraph (c) of Sec. 1.1251-3) for such 
year, plus (b) the amount (as determined in subparagraph (3) of this 
paragraph) necessary to adjust the account for deductions for any 
taxable

[[Page 461]]

year which did not result in a reduction of the taxpayer's tax under 
subtitle A of the Code for such taxable year or any preceding taxable 
year, and
    (ii) After making any addition to the excess deductions account 
under paragraph (b) of this section and any reduction under subdivision 
(i) of this subparagraph for the taxable year, an amount equal to the 
sum of the amounts recognized as ordinary income solely by reason of the 
application of section 1251(c)(1). See section 1251(b)(3)(B). Thus, no 
amount shall be subtracted under this subdivision for gain recognized by 
reason of the application of section 1245(a)(1) or 1252(a)(1). For 
effect on computation of farm net loss or income of gain recognized 
under section 1245(a)(1) upon a disposition of farm recapture property, 
see paragraph (b)(2) of Sec. 1.1251-3. In the case of an installment 
sale of farm recapture property, the taxpayer's excess deductions 
account shall be reduced under this subdivision in the year of such sale 
by an amount equal to the gain (computed in the year of sale) to be 
recognized as ordinary income under section 1251(c)(1).
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples in which it is assumed that 
there is no subtraction for lack of tax benefit under subparagraph (3) 
of this paragraph:

    Example 1. Assume the same facts as in example (3) of paragraph 
(b)(6) of Sec. 1.1251-1. M's excess deductions account balance as of 
the close of 1975 is computed, in accordance with the additional facts 
assumed, in the table below:

                      M's Excess Deductions Account
 
 (1) Balance January 1, 1975............................         $26,000
(2) Additions for 1975..................................               0
                                         -----------------
(3) Subtotal............................................          26,000
(4) Subtractions for 1975 (farm net income \1\).........           1,000
                                         -----------------
(5) Excess deductions account limitation on gain                  25,000
 recognized as ordinary income under section 1251(c)(1)
 for 1975...............................................
(6) Subtraction for disposition of farm recapture
 property:..............................................
    (a) Gain from disposition of land to         $13,000
     which section 1251(c)(1) applies
     (computed before applying
     limitation.........................
    (b) Gain from disposition of                  14,000
     breeding herd to which section
     1251(c)(1) applies (computed before
     applying limitation)...............
                                         ----------------
    (c) Sum of lines (a) and (b)........          27,000
    (d) Excess deductions account                 25,000
     limitation (amount in line (5))....
                                         ================
(e) Gain recognized as ordinary income    ..............          25,000
 under section 1251(c)(1) (lower of line
 (6)(c) or line (6)(d)..................
                                                         ---------------
(7) Balance December 31, 1975...........  ..............               0
------------------------------------------------------------------------
 
\1\ Computed by treating the section 1245 gain of $6,000 under paragraph
  (b)(1)(ii) of Sec.  1.1251-3 as gross income derived from the trade
  or business of farming.


For allocation of the $25,000 of gain recognized as ordinary income to 
the land and herd, and for treatment of the gain recognized in excess of 
$25,000 see example (3) of paragraph (b)(6) of Sec. 1.1251-1.
    Example 2. A is an unmarried individual who uses the calendar year 
as his taxable year. In 1971, A makes a single disposition of farm 
recapture property (other than land) realizing a gain of $46,000 of 
which $15,000 is recognized as ordinary income under section 1245(a)(1). 
The gain to which section 1251(c)(1) applies (computed before applying 
the excess deductions account limitation in section 1251(c)(2)(A) and 
paragraph (b)(4)(i) of Sec. 1.1251-1) is $31,000 (i.e., $46,000 minus 
$15,000). The treatment of the gain realized on the disposition in 
excess of the $15,000 recognized as ordinary income under section 
1245(a)(1) and the balance in A's excess deductions account as of the 
close of 1971 is computed, in accordance with the facts assumed, in the 
table below:

                      A's Excess Deductions Account
 
 (1) Balance January 1, 1971............................         $50,000

[[Page 462]]

 
(2) Additions for 1971:
    (a) Farm net loss for 1971 \1\......          $5,000
    (b) Less amount in paragraph                  25,000
     (b)(2)(ii) of this section.........
    (c) Total additions for 1971........  ..............               0
                                                         ---------------
(3) Subtotal............................  ..............          50,000
(4) Subtractions for 1971...............  ..............               0
                                                         ---------------
(5) Excess deductions account limitation on gain                  50,000
 recognized as ordinary income under section 1251(c)(1)
 for 1971...............................................
(6) Subtraction for dispositions of farm
 recapture property:
    (a) Gain to which section 1251(c)(1)          31,000
     applies (computed before applying
     limitation)........................
    (b) Limitation (amount in line (5)..          50,000
                                         ================
    (c) Gain recognized as ordinary       ..............          31,000
     income under section 1251(c)(1)
     lower of line 6(a) or line 6(b)....
                                                         ---------------
(7) Balance December 31, 1971...........          19,000
------------------------------------------------------------------------
 
\1\ Computed by treating the section 1245 gain of $15,000 under
  paragraph (b)(1)(ii) of Sec.  1.1251-3 as gross income derived from
  the trade or business of farming.

    (3) Amount necessary to adjust the excess deductions account with 
respect to deductions which did not result in a reduction of the 
taxpayer's tax--(i) In general. Under section 1251(b)(3)(A), a 
subtraction is made from the excess deductions account to adjust the 
account for deductions that did not result in a reduction of the 
taxpayer's tax for the taxable year or any preceding taxable year. The 
amounts to be subtracted are determined under subdivisions (ii) and 
(iii) of this subparagraph in accordance with the rules in subdivision 
(iv) of this subparagraph. This subtraction shall be made before 
determining the amount of gain to which section 1251(c) applies. The 
amount subtracted under subdivision (ii) of this subparagraph is a 
temporary subtraction made solely to determine the amount in the excess 
deductions account for purposes of the limitation in section 1251(c)(2).
    (ii) Temporary subtraction. The amount temporarily subtracted from 
the excess deductions account for a taxable year is the sum of the farm 
portion of (a) any net operating loss for such taxable year which does 
not reduce taxable income (computed without regard to the deduction 
under section 172(a)) in a prior year, and (b) any net operating loss 
from a prior taxable year which is carried to such taxable year but 
which does not reduce taxable income (computed without regard to the 
deduction under section 172(a)) in such taxable year.
    (iii) Permanent subtraction. The amount permanently subtracted from 
the excess deductions account for a taxable year is the excess of the 
farm portion of any net operating loss which may be carried to the 
preceding year (reducing by the portion of such loss which reduced 
taxable income (computed without regard to the deduction under section 
172(a)) for such preceding year) over the amount of such loss which may 
be carried to the taxable year, but the subtraction shall not be made 
earlier than the taxable year in which the excess deductions account is 
increased by reason of such loss.
    (iv) Rules of application. For purposes of this subparagraph, the 
following rules shall apply:
    (a) The farm portion of a net operating loss is that portion of such 
loss attributable to the trade or business of farming. Such portion and 
the remaining portion (hereinafter referred to as the nonfarm loss) 
shall be absorbed pro rata. If a farm net loss is not added to the 
excess deductions account in the year in which such loss occurs, the net 
operating loss (if any) for such year shall be treated as a nonfarm 
loss.
    (b) In the case of an individual (other than a trust), the farm 
portion of a net operating loss shall be decreased by an amount, if any, 
equal to the excess of $25,000 (or the amount determined under paragraph 
(b)(2)(ii) of this section) over the nonfarm adjusted gross income. Such 
amount shall be added to the nonfarm portion of such net operating loss.
    (c) The amounts considered as reducing taxable income under 
subdivision

[[Page 463]]

(ii) of this subparagraph in the taxable year shall be determined on the 
basis of a tentative computation of taxable income for such year in 
which the gain realized from the disposition of property to which 
section 1251(c)(1) applied shall be computed without regard to the 
excess deductions account limitation.
    (v) Example. The provisions of this subparagraph may be illustrated 
by the following example:

    Example: A is an unmarried individual who uses the calendar year as 
his taxable year. For the years 1970 through 1974, A's items of income 
and deductions are as shown in the table below. A's personal deductions 
are disregarded. A had no income or loss for any year prior to 1970. 
Based upon such amounts and the computations shown below, A must 
recognize as ordinary income under section 1251(c)(1), $35,325 for 1971, 
$10,000 for 1972, $3,925 for 1973, and $150,000 for 1974.

----------------------------------------------------------------------------------------------------------------
         Amounts assumed               1970            1971            1972            1973            1974
----------------------------------------------------------------------------------------------------------------
(a) Farm net income.............      ($250,000)         $20,000          $5,000       ($75,000)       ($10,000)
(b) Nonfarm income..............          55,000        (82,000)          30,000          10,000         200,000
(c) Gain which would be           ..............          88,000          10,000           2,000         150,000
 recognized as ordinary income
 under 1251(c) (computed without
 regard to the EDA limitation)
 (hereinafter referred to as
 farm property disposition).....
(d) Personal exemption..........             625             675             750             750             750
(e) Net operating loss (NOL)           (195,000)  ..............  ..............        (45,000)  ..............
 (computed per section 172(c))..
----------------------------------------------------------------------------------------------------------------
 
                                            I. COMPUTATIONS FOR 1971
 
1. Excess Deductions Account (EDA) Limitation for 1971:
  a. EDA on December 31, 1970:
    1970 Farm net loss..........................................................         250,000
      Less......................................................................        (25,000)
                                 ----------------
                                                                                         225,000         225,000
  b. Less farm net income for 1971..............................................  ..............        (20,000)
                                                 -----------------
  c. EDA before temporary subtraction...........................................  ..............         205,000
  d. Less temporary subtraction per subdivision (ii)(b):
    Aggregate farm NOL carryover to 1971........................................         195,000
      Less tentative farm NOL deduction for 1971:
        Farm net income.........................................          20,000
        Nonfarm income..........................................        (82,000)
        Farm property disposition...............................          88,000
        Exemption...............................................           (675)
                                 ----------------
        Tentative taxable income................................          25,325
        Tentative NOL reducing taxable income...................          25,325        (25,325)
                                 --------------------------------
                                                                  ..............         169,675       (169,675)
                                                                 -----------------
  e. EDA limitation for 1971....................................................................          35,325
                                 =================
2. 1971 Taxable Income:
  a. Farm net income............................................................................          20,000
  b. Nonfarm income.............................................................................       ($82,000)
  c. Farm property disposition..................................................................          88,000
  d. Exemption..................................................................................           (675)
  e. Section 1202 deduction:
    Farm property disposition...................................................         $88,000
    Less amount treated as ordinary income under section 1251(c) (lesser of               35,325
     amount of gain on line 1(e))...............................................
                                 ----------------
    Capital gain................................................................          52,675
    Less 50 percent deduction...................................................          26,337        (26,338)
                                 ---------------------------------
  f. 1971 Taxable income........................................................  ..............         (1,013)
                                                 =================
 
                                            II. COMPUTATIONS FOR 1972
 
1. Excess Deductions Account Limitation for 1972:
  a. EDA (line 1(c) above)......................................................................         205,000
  b. Less recapture in 1971.....................................................................        (35,325)
  c. Less farm net income for 1972..............................................................         (5,000)

[[Page 464]]

 
  d. Less permanent subtraction per subdivision (iii):
    1970 Farm NOL carryover to 1971.............................................         195,000  ..............
      Less 1970 farm NOL carryover to 1972 (computed per section 172(b)(2)):
        Farm NOL to 1971........................................        $195,000  ..............  ..............
        Less 1971 taxable income computed per
         section 172(b)(2):
          Farm net income.......................         $20,000
          Nonfarm income........................        (82,000)
          Farm property disposition.............          88,000
                                 ----------------
                                                          26,000        (26,000)
                                                 ----------------
        Farm NOL carryover to 1972..............         169,000      ($169,000)
                                 --------------------------------
                                                                  ..............          26,000       ($26,000)
                                 -------------------------------------------------------------------------------
  e. EDA before making temporary subtractions...................................................         138,675
  f. Less temporary subtraction per subdivision (ii)(b):
    Farm NOL carryover to 1972..................................................         169,000
      Farm net income...........................................           5,000
      Nonfarm income............................................          30,000
      Farm recapture disposition................................          10,000
      Exemption.................................................           (750)
                                 ----------------
      Tentative taxable income..................................          44,250
      Tentative NOL reducing taxable income.....................          44,250        (44,250)
                                 --------------------------------
                                                                  ..............         124,750       (124,750)
                                 -------------------------------------------------------------------------------
  g. EDA limitation for 1972....................................................................          13,925
                                 =================
2. Taxable Income for 1972:
  a. Farm net income............................................................................           5,000
  b. Nonfarm income.............................................................................          30,000
  c. Farm property disposition..................................................................          10,000
  d. Exemption..................................................................................           (750)
  e. Section 1202 deduction:
    Farm property disposition...................................................          10,000
    Less amount treated as ordinary income under section 1251(c) (lesser of               10,000               0
     amount of gain on line 1(g))...............................................
                                 ---------------------------------
  f. Taxable income before NOL deduction........................................................          44,250
  g. Net operating loss deduction...............................................................        (44,250)
 
  h. Taxable income for 1972....................................................................               0
                                 =================
 
                                           III. COMPUTATIONS FOR 1973
 
1. Excess Deductions Account Limitation for 1973:
  a. Line 1(e) above............................................................................         138,675
  b. Less recapture in 1972.....................................................................        (10,000)
  c. Less permanent subtraction per subdivision (iii):
    1970 Farm NOL carryover to 1972.............................         169,000
    Less 1970 Farm NOL reducing taxable income in 1972..........        (44,250)
                                 -----------------
                                                                         124,750         124,750
    Less 1970 Farm NOL carryover to 1973 computed per section
     172(b)(2):
      Farm NOL to 1972..........................................         169,000
      1972 Taxable income computed per section 172(b)(2):
        Farm net income                                   $5,000
        Nonfarm income                                    30,000
        Farm recapture disposition                        10,000
                                 -----------------
                                                          45,000       ($45,000)
                                                 -----------------
      Farm NOL carryover to 1973................................         124,000      ($124,000)
                                                 -----------------
                                                                  ..............             750          ($750)
                                 -----------------
  d. EDA before making temporary subtractions...................................................        $127,925
  e. Less temporary subtraction per subdivision   ..............  ..............  ..............               0
   (ii)(a)-zero (since 1973 farm loss treated as
   nonfarm addition to NOL per subdivision
   (iv)(a)).....................................

[[Page 465]]

 
  f. Less temporary subtraction per subdivision   ..............  ..............        $124,000
   (ii)(b): Aggregate farm NOL carryover to 1973
    Less tentative farm NOL deduction for 1973:
      Farm net income...........................................       ($75,000)
      Nonfarm income............................................          10,000
      Farm property disposition.................................          30,000
      Exemption.................................................           (750)
                                 ----------------
      Tentative taxable income..................................        (44,250)
      Tentative NOL reducing taxable income.....................               0               0
                                                 -----------------
                                                                                         124,000       (124,000)
                                                 -----------------
  g. EDA limitation for 1973....................................................................           3,925
                                 =================
2. Taxable Income 1973:
  a. Farm net income............................................................................        (75,000)
  b. Nonfarm income.............................................................................          10,000
  c. Farm property disposition..................................................................          20,000
  d. Exemption..................................................................................           (750)
  e. Section 1202 deduction:
    Farm property disposition...................................................          20,000
    Less amount treated as ordinary income under section 1251(c) (lesser of                3,925
     amount of gain on line 1(g))...............................................
                                 -----------------
    Capital gain................................................................          16,075
    Less 50 percent deduction...................................................           8,038         (8,037)
                                 ---------------------------------
  f. Taxable income for 1973....................................................................        (53,787)
                                 =================
 
                                            IV. COMPUTATIONS FOR 1974
 
1. Excess Deductions Account Limitation for 1974:
  a. Line 1(d) above............................................................................         127,925
  b. Less recapture in 1973.....................................................................        (13,925)
  c. Farm loss for 1974.........................................          10,000
    Plus farm NOL deduction (see Sec.  1.1251-3(b)(3)).........          45,000
                                 ----------------
                                                                          55,000          55,000
Less............................................................................          25,000
                                 ----------------
                                                                                          30,000          30,000
  d. Less permanent subtraction per subdivision (iii):
    1970 Farm NOL carryover to 1973.............................................         124,000
    Less 1970 farm NOL carryover to 1974 per section 172(b)(2)..................         124,000
                                 ----------------
                                                                                               0               0
                                                 -----------------
  e. EDA before making temporary subtractions...................................................         154,000
  f. Less temporary subtraction per subdivision (ii)(b):
    Aggregrate farm NOL carryover to 1974.......................................         124,000
    Less tentative farm NOL deduction in 1974:
      Farm net income...........................................        (10,000)
      Nonfarm income............................................         200,000
      Farm property disposition.................................         150,000
      Exemption.................................................           (750)
                                 ----------------
      Tentative taxable income..................................         339,250
      Tentative NOL deduction...................................         169,000
    Farm portion of tentative NOL deduction.....................................         124,000
                                 ----------------
                                                                                               0               0
                                 -----------------
  g. EDA limitation for 1974....................................................................        $154,000
                                 =================
2. Taxable Income 1974:
  a. Farm net income............................................................................        (10,000)
  b. Nonfarm income.............................................................................         200,000
  c. Farm property disposition..................................................................         150,000
  d. Exemption..................................................................................           (750)
  e. Section 1202 deduction:
      Farm property disposition.................................................        $150,000
      Less amount treated as ordinary income under section 1251(c) (lesser of            150,000               0
       amount of gain on line 1(g)).............................................
                                 ---------------------------------

[[Page 466]]

 
  f. Taxable income before NOL deduction........................................................         339,250
  g. Net operating loss deduction...............................................................       (169,000)
                                 -----------------
  h. Taxable income.............................................................................         170,250
----------------------------------------------------------------------------------------------------------------

    (vi) Electing small business corporation. (a) In the case of an 
electing small business corporation, the amounts to be subtracted under 
subdivisions (ii) and (iii) of this subparagraph, shall be the sum of 
the amounts under such subdivisions computed with respect to each 
shareholder of the corporation for the taxable year of the shareholder 
with which or within which the taxable year of the corporation ends, by 
applying (b) of this subdivision (vi), in lieu of subdivision (iv)(a) of 
this subparagraph.
    (b) For purposes of (a) of this subdivision, the farm portion of a 
shareholder's net operating loss is that portion of the net operating 
loss of such shareholder attributable to the corporation's farm net 
loss, and such portion and the remaining portion shall be considered to 
be absorbed pro rata. If a corporation's farm net loss is not added to 
its excess deduction account in the year in which such loss occurs, no 
portion of a shareholder's net operating loss for the taxable year of 
the shareholder with which or within which such taxable year of the 
corporation ends shall be attributable to such corporation's farm net 
loss.
    (d) Exception for taxpayers using certain accounting methods--(1) 
General rule. Under section 1251(b)(4), except to the extent that a 
taxpayer has succeeded to an excess deductions account as provided in 
paragraph (e) of this section (relating to receipt of farm recapture 
property in certain corporate and gift transactions), additions to the 
account shall not be required by a taxpayer who elects to compute 
taxable income from the trade or business of farming (as defined in 
paragraph (e)(1) of Sec. 1.1251-3:
    (i) By using inventories for all property which may be inventoried 
except as to property to which subdivision (ii) of this subparagraph 
applies, and
    (ii) In accordance with subparagraph (3) of this paragraph, by 
charging to capital account all expenditures paid or incurred which are 
properly chargeable to capital account including such expenditures which 
the taxpayer may, under chapter 1 of the Code or regulations prescribed 
thereunder, otherwise treat or elect to treat as expenditures which are 
not chargeable to capital account.

For rules as to procedure of making the election, effect of a change in 
method of accounting upon making the election, and conditions for 
revoking the election, see subparagraphs (4), (5), and (6), 
respectively, of this paragraph.
    (2) Inventories. The absence of property which may be inventories 
shall not preclude a taxpayer from making an election under section 
3251(b)(4). Any acceptable inventory method will satisfy the requirement 
of subparagraph (1)(i) of this paragraph.
    (3) Property chargeable to capital account--(i) In general. Property 
subject to the capitalization requirement prescribed in subparagraph 
(1)(ii) of this paragraph includes all property described in section 
1231(b) (1) and (3), without regard to any holding period therein 
provided, which is used in the trade or business of farming. Thus, for 
example, property subject to the capitalization requirement includes 
property used in the trade or business of farming of a character subject 
to the allowance for depreciation and real property so used regardless 
of the period held, and livestock used in the trade or business of 
farming which is held for draft, breeding, dairy, or sporting purposes 
regardless of the period held.
    (ii) Expenditures which must be capitalized. Expenditures subject to 
the requirement of subparagraph (1)(ii) of this paragraph are all 
expenditures, whether direct or indirect, paid or incurred, which are 
properly chargeable to capital account. For examples of the meaning of 
the term properly chargeable to capital account, see Sec. Sec. 1.61-4, 
1.162-12, 1.263(a)-1, and 1.263(a)-2, and paragraph

[[Page 467]]

(a)(4) (ii) and (iii) of Sec. 1.446-1. Other examples of expenditures 
referred to in subparagraph (1)(ii) of this paragraph are expenditures 
under sections 175 (relating to soil and water conservation), 180 
(relating to fertilizer, etc.), 182 (relating to land clearing), and 266 
(relating to certain carrying charges) which (without regard to section 
1251) a taxpayer may treat or elect to treat as expenditures which are 
not chargeable to capital account. Thus, for example, with respect to 
developing a farm, ranch, orchard, or grove, amounts properly chargeable 
to capital account include amounts paid or incurred for upkeep, taxes, 
interest, and other carrying charges, water for irrigation, fertilizing, 
controlling undergrowth, and the cultivating and spraying of trees. For 
a further example, with respect to a produced animal, amounts properly 
chargeable to capital account for the animal include all expenditures 
paid or incurred for producing the animal, such as for stud, breeding, 
and veterinary services, as well as all amounts paid or incurred with 
respect to the brood animal during the gestation period of the produced 
animal including all amounts paid or incurred for feed, maintenance, 
utilities, indirect overhead, depreciation, insurance, and carrying 
charges. Direct and indirect expenditures properly chargeable to capital 
account with respect to raising an animal may include, in addition to 
expenditures for feed, maintenance, etc., expenditures for training. 
Direct and indirect expenditures with respect to feed may include, in 
the case of a grazing operation, fees for the rental of grazing land, 
and the portion of all labor, taxes, interest, fencing costs, and 
carrying charges paid or incurred by the taxpayer allocable to grazing. 
For purposes of this subparagraph, reasonable allocations shall be made 
by the taxpayer of items between animals held for different purposes and 
as to each animal held. However, all amounts allocated to a brood animal 
during the period of gestation are, for purposes of this subparagraph, 
entirely chargeable to the capital of the produced animal.
    (iii) Unharvested crops. With respect to unharvested crops to which 
section 1231(b)(4) applies, see section 268 and paragraph (g) of Sec. 
1.1016-5 (relating, respectively, to disallowance of certain deductions 
and to adjustments to basis).
    (iv) Changes in character of property. If, in a taxable year 
subsequent to the first taxable year to which an election under section 
1251(b)(4) applies, property which was not subject to the requirements 
of subparagraph (1)(ii) of this paragraph becomes subject to such 
requirements, then the following rules shall apply:
    (a) The adjusted basis of such property at the beginning of the 
taxable year in which it becomes subject to the requirements of 
subparagraph (1)(ii) of this paragraph shall be equal to the amount its 
adjusted basis would have been on such date had it been accounted for in 
accordance with such requirements (taking into account, if applicable, 
the depreciation which would have been allowed as determined by the 
taxpayer using a period, salvage value, and methods that would have been 
proper).
    (b) At the beginning of the taxable year in which such property 
becomes subject to the requirements of subparagraph (1)(ii) of this 
paragraph:
    (1) If such property was not included in the opening inventory, the 
amount equal to the excess of its adjusted basis as computed in (a) of 
this subdivision over its adjusted basis as of the close of the 
preceding taxable year, or
    (2) If such property was included in the opening inventory, such 
opening inventory shall be reduced by the inventory value of such 
property included therein and the amount of the difference between the 
adjusted basis for the property computed in (a) of this subdivision and 
such inventory value,

Shall be added to gross income for such taxable year and shall be 
treated as gross income derived from the trade or business of farming 
under paragraph (b)(1)(ii) of Sec. 1.1251-3, except that if the 
difference in (b)(2) of this subdivision represents an excess of such 
inventory value over the adjusted basis for the property computed in (a) 
of this subdivision then such excess shall be subtracted from gross 
income for such taxable year and shall be treated as a deduction allowed 
which is directly connected with carrying on the trade or

[[Page 468]]

business of farming under paragraph (b)(1)(i) of Sec. 1.1251-3.
    (c) If any deductions for depreciation are treated as amounts which 
would have been allowed in a prior taxable year or years for purposes of 
(a) of this subdivision, such deduction shall be treated as having been 
allowed for purposes of applying sections 1245 and 1250 in the same 
taxable year or years and thus included in the amount of adjustments 
reflected in adjusted basis within the meaning of paragraph (a)(1)(ii) 
of Sec. 1.1245-2 or depreciation adjustments within the meaning of 
paragraph (d)(1) of Sec. 1.1250-2 (as the case may be).
    (d) For purposes of this subparagraph (3), if during a taxable year 
property becomes subject to the requirements of subparagraph (1)(ii) of 
this paragraph, it shall be considered subject to such requirements on 
each day it is held during such year.
    (e) The adjusted basis under (a) of this subdivision of property of 
a character subject to the allowance for depreciation shall be its basis 
for which deductions may be computed under section 167.
    (v) Example. The provisions of subdivision (iv) of this subparagraph 
may be illustrated by the following example:

    Example: On January 1, 1974, A, an individual taxpayer who in a 
previous year had elected under section 1251(b)(4) to compute income 
from the trade or business of farming by using inventories and by 
charging to capital account all items properly chargeable to capital 
under the rules of subdivision (ii) of this subparagraph, purchases a 
herd of six-month-old feeder calves for $13,000. During 1974, in 
connection with such herd, A incurred raising costs of $4,000 and 
carrying charges of $1,600 which would have been properly chargeable to 
capital account within the meaning of subparagraph (1)(ii) of this 
paragraph if the herd had not been included in inventory. A determines 
under his unit-livestock method that on December 31, 1974, the inventory 
value of the herd is $17,000. On March 1, 1975, A decides to use one-
half of the herd for breeding purposes with such part of the herd 
becoming subject to the capitalization requirements. On January 1, 1975, 
the adjusted basis for the animals held for breeding purposes, computed 
under the provisions of subdivision (iv)(a) of this subparagraph, is 
$9,300 (that is, the aggregate of one-half of the purchase price of 
$13,000 for the entire herd of feeder calves, $6,500, one-half of the 
carrying charges of $1,600 incurred during 1974 in connection with the 
entire herd, $800, and one-half of the $4,000 of raising costs incurred 
during 1974 for the entire herd, $2,000). There is no adjustment for the 
depreciation which would have been allowed since no animal in the herd 
had reached an acceptable breeding age. Therefore, A as of January 1, 
1975, must under the provisions of subdivision (iv)(b)(2) of this 
subparagraph subtract $8,500 from his opening inventory value of 
$17,000. However, A has not changed his method of accounting with 
respect to such animals. Under the provisions of subdivision (iv)(b)(2) 
of this subparagraph, A for 1975 will add $800 to his gross income (that 
is, the difference between the adjusted basis for the calves to be used 
for breeding purposes, $9,300, over the inventory value of such animals, 
$8,500). Such amount under the provisions of subdivision (iv)(b) shall 
be treated as gross income derived from the trade or business of farming 
under paragraph (b)(1) of Sec. 1.1251-3.

    (4) Time and manner of making election--(i) In general. The election 
under section 1251(b)(4) for any taxable year beginning after December 
31, 1969, shall be filed within the time prescribed by law (including 
extensions thereof) for filing the return for such taxable year. Such 
election shall be made and filed by attaching a statement of such 
election signed by the taxpayer to the return for the first taxable year 
for which the election is made. The statement shall contain a 
declaration that the taxpayer is making an election under section 
1251(b)(4) of the Code and that taxable income from the trade or 
business of farming is computed by using inventories for all property, 
which may be inventoried and by charging to capital account all 
expenditures paid or incurred which are properly chargeable to capital 
account (including such expenditures which the taxpayer may, under 
chapter 1 of the Code or regulations prescribed thereunder, otherwise 
treat or elect to treat as expenditures which are not properly 
chargeable to capital account). Additionally, the statement must contain 
the information prescribed by subparagraph (5) of this paragraph, if 
applicable.
    (ii) Joint return. If for a taxable year taxpayers file a joint 
return under section 6013, the election referred to in subparagraph (1) 
of this paragraph must be made by both such taxpayers in accordance with 
the provisions of

[[Page 469]]

subdivision (i) of this subparagraph. If, however, in such case either 
of such taxpayers has for a previous taxable year made such an election, 
then only the taxpayer who has not made such election is required to 
comply with the provisions of subdivision (i) of this subparagraph. The 
taxpayer who previously made such an election shall attach a statement 
to the return specifying the taxable year for which the election was 
made and with whom the election was filed.
    (5) Change in method of accounting, etc.--(i) In general. If, in 
order to comply with an election made under section 1251(b)(4), a 
taxpayer must change his method of accounting (in computing taxable 
income from the trade or business of farming) by placing in inventory a 
class of items not previously treated as in an inventory or by charging 
to capital account a class of items which had been consistently treated 
as an expense or as part of inventory (see paragraph (e)(2)(ii)(b) of 
Sec. 1.446-1), the taxpayer will be deemed to have obtained the consent 
of the Commissioner as to such change in method of accounting solely as 
to such items and there shall be taken into account in accordance with 
section 481 of the Code and the regulations thereunder those adjustments 
which are determined to be necessary by reason of such change solely as 
to such items in order to prevent amounts from being duplicated or 
omitted. For purposes of section 481(a)(2), such change in method of 
accounting with respect to only such items shall be treated as a change 
not initiated by the taxpayer and, thus, under paragraph (a)(2) of Sec. 
1.481-1, no part of the adjustments required under section 481 with 
respect to such items shall be based on amounts which are taken into 
account in computing income (or which should have been taken into 
account had the new method of accounting been used) for taxable years 
beginning before January 1, 1954, or ending before August 17, 1954.
    (ii) Additional information. If, in order to comply with an election 
made under subparagraph (1) of this paragraph a taxpayer (or in the case 
of a joint return one or both taxpayers) changes his method of 
accounting, then in addition to the information required to be filed 
under subparagraph (4) of this paragraph the taxpayer must file on Form 
3115 as part of such election all the information described in paragraph 
(e)(3) of Sec. 1.446-1 (relating to change in method of accounting), 
but the time prescribed in paragraph (e)(3) of Sec. 1.446-1 for filing 
Form 3115 shall not apply.
    (iii) Election made before May 7, 1976. If an election referred to 
in subparagraph (1) of this paragraph was made before May 7, 1976, the 
taxpayer shall file not later than August 5, 1976, such information 
referred to in subparagraph (4) of this paragraph not previously 
required by applicable regulations to be filed in order to make such 
election, and, in addition, if subdivision (ii) of this subparagraph 
applies, the taxpayer shall file not later than August 5, 1976, on Form 
3115 the information referred to in subdivision (ii) of this 
subparagraph with the district director, or the director of the internal 
revenue service center, with whom the election was filed. For this 
purpose, Form 3115 shall be attached to a statement clearly identifying 
the election referred to in subparagraph (1) of this paragraph and the 
first taxable year to which it applied.
    (6) Revocability of election--(i) In general. An election referred 
to in subparagraph (1) of this paragraph is binding on the taxpayer or 
in the case of a joint return both taxpayers) for the taxable year of 
such election and for all subsequent taxable years (regardless of 
whether they continue to file a joint return) and may not be revoked 
except with the consent of the Commissioner. Since revocation would 
constitute a change in method of accounting, in order to secure the 
Commissioner's consent to the revocation of such an election and to a 
change of the taxpayer's method of accounting, all the provisions of 
paragraph (e)(3) of Sec. 1.446-1 must be met including the requirement 
that Form 3115 must be filed within 180 days after the beginning of the 
taxable year in which it is desired to make the change. See section 481 
and the regulations thereunder (relating to certain adjustments required 
by such changes).
    (ii) Revocation of elections made prior to May 7, 1976. If on or 
before May 7, 1976, an election under section

[[Page 470]]

1251(b)(4) has been made, such election may be revoked without 
permission of the Commissioner by filing on or before August 5, 1976, 
with the district director or the director of the internal revenue 
service center with whom the election was filed a statement of 
revocation of an election under section 1251(b)(4). If such election to 
revoke is for a period which falls within one or more taxable years for 
which an income tax returns shall be filed for any such taxable years 
for which the computation of taxable income is affected by reason of 
such revocation.
    (e) Transfer of excess deductions account--(1) Certain corporate 
transactions--(i) In general. Under section 1251(b)(5)(A), in the case 
of a transfer described in section 1251(d)(3) and paragraph (c)(2) of 
Sec. 1.1251-4 to which section 371(a) (relating to exchanges pursuant 
to certain receivership and bankruptcy proceedings), 374(a) (relating to 
exchanges pursuant to certain railroad reorganizations), or 381 
(relating to carryovers in certain corporate acquisitions) applies, the 
acquiring corporation shall succeed to and take into account as of the 
close of the day of distribution or transfer the excess deductions 
account of the transferor. Determinations under this subdivision shall 
be made under subdivisions (ii), (iii), and (iv) of this subparagraph 
regardless of whether section 381 applies. For treatment as farm 
recapture property of stock or securities received in certain transfers 
to controlled corporations to which section 1251(d)(3) (but not section 
1251(b)(5)(A)) applies, see section 1251(d)(6) and paragraph (f) of 
Sec. 1.1251-4.
    (ii) Acquiring corporation. For purposes of subdivision (i) of this 
subparagraph, determinations as to which corporation is the acquiring 
corporation shall be made under paragraph (b)(2) of Sec. 1.381(a)-1.
    (iii) Certain operating rules. For purposes of subdivision (i) of 
this subparagraph, the operating rules of section 381(b) and Sec. 
1.381(b)-1 shall apply. Thus, for example, except in the case of a 
reorganization qualifying under section 368(a)(1)(F) (whether or not 
such reorganization also qualifies under any other provision of section 
368(a)(1)), the amount of the excess deductions account of the 
transferor shall be computed, as of the close of the date of 
distribution or transfer (as determined under paragraph (b) of Sec. 
1.381(b)-1), as if the taxable year of the transferor closed on such 
date (regardless of whether the taxable year actually closed). In the 
case of a reorganization qualifying under section 368(a)(1)(F) (whether 
or not such reorganization also qualifies under any other provision of 
section 368(a)(1)), the acquiring corporation's excess deductions 
account shall be treated for purposes of section 1251 just as the 
transferor corporation's excess deductions account would have been 
treated if there had been no reorganization.
    (iv) Excess deductions account balance. For purposes of subdivision 
(i) of this subparagraph, the amount in the transferor's excess 
deductions account as of the close of the date of distribution or 
transfer referred to in subdivision (iii) of this subparagraph shall be 
the amount in such account determined after making all the applicable 
additions and subtractions under section 1251(b) (other than 
subtractions under paragraph (5)(A) of section 1251(b) and this 
subparagraph) for the taxable year ending (or considered ending) on such 
date including a subtraction by reason of gain (if any) recognized under 
section 1251(c)(1) by reason of a disposition which is in part a sale or 
exchange and in part a gift transaction to which section 1251(d)(1) and 
paragraph (a)(2) of Sec. 1.1251-4 apply.
    (2) Certain gifts--(i) In general. If farm recapture property is 
disposed of by gift (including for purposes of this paragraph in a 
transaction which is in part a sale or exchange and in part a gift or a 
transaction treated under paragraph (a)(2) of this section as a gift), 
and if such gift is made during any 1-year period (described in 
subdivision (ii) of this subparagraph) for which the potential gain 
limitation percentage (as computed in subdivision (iii) of this 
subparagraph) exceeds 25 percent, then the provisions of subdivision 
(iv) of this subparagraph shall apply in respect of such gift.
    (ii) One-year period. For purposes of this subparagraph, a 1-year 
period is a period of 365 days beginning on the date a gift is made by 
the donor.

[[Page 471]]

    (iii) Potential gain limitation percentage. Under this subdivision, 
the potential gain limitation percentage for any such 1-year period is a 
percentage equal to (a) the sum of the potential gains (determined as of 
the first day of such period) on each item of farm recapture property 
held by such taxpayer on such first day disposed of by gift by the 
taxpayer during such period, divided by (b) the sum of the potential 
gains (determined as of the first day of such period) on all farm 
recapture property held by such taxpayer on such first day.
    (iv) Allocation ratio. With respect to each gift of property (to 
which the provisions of this subdivision apply) made during a taxable 
year, each donee shall succeed (at the time the first of such gifts is 
made during such taxable year) to the same proportion of (a) the donor's 
excess deductions account determined, as of the close of such taxable 
year of the donor, after making all the applicable additions and 
subtractions under section 1251(b) (other than subtractions under 
section 1251(b)(5) and this paragraph), as (b) the potential gain 
(determined immediately prior to the time the first of such gifts is 
made during such taxable year) on the property (held by the donor 
immediately prior to such time) received by such donee bears to (c) The 
aggregate potential gain (determined immediately prior to such time) on 
all farm recapture property held by the donor immediately prior to such 
time.
    (v) Definitions and certain special rules. For purposes of this 
subparagraph:
    (a) The term potential gain means an amount equal to the excess of 
the fair market value of property over its adjusted basis, but, in the 
case of land, limited under paragraph (b)(2)(ii) of Sec. 1.1251-1 to 
the extent of the deductions allowable in respect of such land pursuant 
to an election (if any) under sections 175 (relating to soil and water 
conservation expenditures) and 182 (relating to expenditures by farmers 
for clearing land) for the taxable year of disposition and the four 
immediately preceding taxable years regardless of whether any such 
preceding taxable year begins before December 31, 1969. See section 
1251(e)(5).
    (b) Property held on the first day of a one-year period shall 
include property received by gift during such one-year period and the 
potential gain with respect to such property, for purposes of making the 
computations under this subparagraph, shall be the potential gain in the 
hands of the donor reduced by the amount of gain (in the case of an 
exchange which is part a sale and part a gift) taken into account by the 
donor.
    (c) Property held by a taxpayer on the first day of a one-year 
period which property becomes farm recapture property in the hands of 
such taxpayer during such one-year period shall be considered to be farm 
recapture property on each day of such one-year period.
    (vi) Part-sale-part-gift transaction. If property is disposed of in 
a transaction which is in part a sale or exchange and in part a gift, 
then for purposes of subdivisions (iii)(a) and (iv)(b) of this 
subparagraph the potential gain with respect to the property transferred 
shall be reduced by the amount of gain taken into account by the 
transferor.
    (vii) Joint return. For application of the provisions of this 
subparagraph with respect to a taxable year for which a joint return is 
filed, see paragraph (f)(4) of this section.
    (3) Examples. The provisions of subparagraph (2) of this paragraph 
may be illustrated by the following examples in which it is assumed that 
all taxpayers are unmarried individuals.

    Example 1. The only farm recapture property A owns is a farm, 
consisting of farm land and certain farm equipment which is farm 
recapture property. During the period involved, there was no deduction 
allowable under section 175 or 182 to any person owning an interest in 
the farm. A, who uses the calendar year as his taxable year, makes a 
series of gifts of undivided interests in the farm. In these 
circumstances, computations may be made by reference to percentages of 
undivided interests in the farm. The potential gain limitation 
percentages for each applicable 1-year period are computed, in 
accordance with the additional facts assumed, in the table below:

[[Page 472]]



------------------------------------------------------------------------
                                 9/1/70    8/1/71     3/1/72     5/1/73
      Date Gift to donee      ------------------------------------------
                                   C          D         E          F
------------------------------------------------------------------------
(1) Percent of undivided             20%       10%        10%        60%
 interest in entire farm
 given as gift by A on date
 indicated...................
(2) Percent of undivided            100%       80%        70%        60%
 interest in entire farm held
 by A immediately before gift
(3) Potential gain:..........
    (a) On all property held    $100,000   $96,000   $140,000   $125,000
     by A on date of gift....
    (b) Limitation percentage        30%       25%     14.28%       100%
     (sum of amounts in line
     (1) during 1-year period
     beginning on date of
     gift divided by line
     (2))....................
------------------------------------------------------------------------

    (ii) Under subparagraph (2)(iv) of this paragraph, C, D, and F each 
succeed to the proportion of A's excess deductions account at each 
applicable time as computed in accordance with the additional facts 
assumed, in the table below:

----------------------------------------------------------------------------------------------------------------
                                                                       Taxable year ending--
                                                 ---------------------------------------------------------------
                                                   Dec. 31, 1970   Dec. 31, 1971   Dec. 32, 1972   Dec. 31, 1973
----------------------------------------------------------------------------------------------------------------
Gift to donee to which subparagraph (2)(iv) of                 C               D               E               F
 this paragraph applies during taxable year.....
(4) Potential gain (determined immediately prior
 to time first gift to which subparagraph
 (2)(iv) of this paragraph applies is made):
    (a) On property received by donee to which           $20,000         $12,000  ..............        $125,000
     such subparagraph (2)(iv) applies (line
     (3)(a) multiplied by line (1) divided by
     line (2))..................................
    (b) Aggregate potential gain on all farm            $100,000         $96,000  ..............        $125,000
     recapture property held by donor (line
     (3)(a))....................................
(5) Allocation ratio (line (4)(a), divided by                20%           12.5%  ..............            100%
 line (4)(b))...................................
(6) Excess deductions account of A:.............
    (a) At end of previous taxable year.........               0        $160,000        $210,000        $200,000
(b) Net increase (decrease) for taxable year            $200,000         $80,000       ($10,000)         $36,000
 (determined before making any subtractions
 under section 1251(b)(5) and this paragraph)...
    (c) At 12/31 (so determined)................        $200,000        $240,000        $200,000        $236,000
    (d) Less: Portion to which donee succeeds            $40,000         $30,000              $0        $236,000
     (line (5), multiplied by line (6)(c))......
    (e) At 12/31 (to line (6)(a) following              $160,000        $210,000        $200,000              $0
     taxable year)..............................
----------------------------------------------------------------------------------------------------------------

    Since the potential gain limitation percentage for the 1-year period 
beginning on September 1, 1970, exceeds 25 percent, a portion of A's 
excess deductions account, under the provisions of subparagraph (2)(iv) 
of this paragraph, is succeeded to by C and D. Similarly, since such 
percentage for the 1-year period beginning May 1, 1973, exceeds 25 
percent, such provisions apply to the gift made to F. Since, however, 
such percentage is 25 percent or less for all 1-year periods in which 
the gift to E falls (i.e., 25 percent and 14.28 percent for the 1-year 
periods beginning, respectively, on August 1, 1971, and March 1, 1972) 
such provisions do not apply to the gift to E.
    Example: 2. (i) G uses the calendar year as his taxable year and H 
uses a taxable year ending June 30. As of the close of 1972, G has 
$100,000 in his excess deductions account, determined before any 
subtractions under section 1251(b)(5) and this paragraph. G owns only 
three items of farm recapture property, none of which is land. On May 1, 
1972, G makes a gift of farm recapture property No. 1 to his son and on 
September 1, 1972, G sells to H for $80,000 farm recapture property No. 
2 in a transaction which is in part a sale and in part a gift. G owns 
throughout all relevant periods farm recapture property No. 3. The 
potential gain limitation percentage for G's one-year period beginning 
May 1, 1972, is computed in accordance with the additional facts assumed 
in the table below:

------------------------------------------------------------------------
                    Farm Recapture Property
---------------------------------------------------------------   Total
             No. 1                No. 2     No. 3
------------------------------------------------------------------------
(1) Fair market value 5/1/72..   $25,000   $100,000   $800,000
(2) Adjusted basis 5/1/72.....   $10,000    $60,000   $795,000
                               -----------------------------------------
(3) Potential gain (line (1),    $15,000    $40,000     $5,000   $60,000
 minus line (2))..............
                               =========================================

[[Page 473]]

 
(4) Sum of potential gains on    $15,000    $20,000  .........   $35,000
 properties disposed of by
 gift during period less gain
 taken into account by
 transferor on part-sale-part-
 gift.........................
(5) Potential gain limitation   ........  .........  .........  58\1/3\%
 percentage (total line (4),
 divided by total line (3))...
------------------------------------------------------------------------


Since the potential gain limitation percentage for the one-year period 
beginning on May 1, 1972, exceeds 25 percent, the provisions of 
subparagraph (2)(iv) of this paragraph apply to the gift to the son and 
that portion of the disposition to H which is a gift.
    (ii) The portion of G's excess deductions account determined, as of 
the close of 1972, before any subtraction under section 1251(b)(5) and 
this paragraph, allocated to the son and to H as of May 1, 1972, is 
computed in the table below:

------------------------------------------------------------------------
                                             Property
                                  -----------------------------   Total
                                     No. 1     No. 2    No. 3
------------------------------------------------------------------------
(1) Potential gain under part (i)   $15,000   $40,000   $5,000   $60,000
 of this example (since the first
 day of the one-year period is
 the same as the time as of which
 the first gift was made during
 the taxable year)...............
(2) Potential gain less amount       15,000    20,000  .......  ........
 taken into account by transfer
 on part-sale-part-gift..........
(3) Allocation percentage (line         25%  33\1/3\%  .......  ........
 (2), divided by $60,000)........
(4) Excess deductions account at   ........  ........  .......   100,000
 close of taxable year (determine
 before making any subtractions
 under section 1251(b)(5) and
 this paragraph).................
(5) Portion to which donee           25,000    33,333  .......    58,333
 succeeds on 5/1/72..............
(6) G's excess deductions account  ........  ........  .......   $41,667
 12/31/72........................
------------------------------------------------------------------------

Accordingly, the amount of G's excess deduction account succeeded to as 
of May 1, 1972, is $25,000 by the son and $33,333 by H.

    (f) Joint return--(1) Joint excess deductions account. If for a 
taxable year a taxpayer and his spouse file a joint return under section 
6013, then for such taxable year each taxpayer shall (if necessary) 
establish and maintain a joint excess deductions account. Such joint 
excess deductions account shall consist of the aggregate of the 
separately maintained excess deductions account of each spouse. A 
separately maintained excess deductions account shall be computed under 
the rules of paragraphs (b) and (c) of this section, except that for 
each taxable year a joint return is filed:
    (i) The $50,000 amount in the nonfarm adjusted gross income 
limitation in paragraph (b)(2)(i) of this section shall be considered 
satisfied if the combined nonfarm adjusted gross income of both spouses 
exceeds $50,000,
    (ii) The $25,000 amount in the farm net loss exclusion in paragraph 
(b)(2)(ii) of this section shall be allocated between the two spouses in 
proportion to the farm net loss of each spouse having a farm net loss, 
and
    (iii) The separately maintained excess deductions account of each 
spouse shall be reduced, if necessary, below zero, by the amount of such 
spouse's farm net income (computed as if a separate return were filed) 
plus the amount of gain (computed under subparagraph (3) of this 
paragraph) which is recognized as ordinary income under section 
1251(c)(1) in respect of a disposition of farm recapture property owned 
by the taxpayer.
    (2) Surviving spouse. For purposes of this paragraph, a joint return 
does not include a return of a surviving spouse (as defined in section 2 
relating to a spouse who died during either of his two taxable years 
immediate preceding the taxable year) which is treated as a joint return 
of a husband and wife under section 6013.
    (3) Application of excess deductions account limitation in joint 
return year. In the case of a taxable year for which a joint return is 
filed, the aggregate of the amount of gain recognized as ordinary income 
under section 1251(c)(1) (after applying paragraph (b) (2)(o) and (3) of 
Sec. 1.125-1, if applicable) shall not exceed the amount in the joint 
excess deductions account (that is, the aggregate of the separately 
maintained excess deductions account of each spouse) at the close of the 
taxable year after subtracting from each such separately

[[Page 474]]

maintained account the amount specified in section 1251(b) (3) (A) and 
paragraph (c) (1) (i) of this section as modified by the rules of this 
paragraph. For the amount of limitation for a taxable year for which a 
separate return is filed, see paragraph (b)(4) of this section. For 
determinations as to which dispositions are taken into account for any 
taxable year, see paragraph (b)(4) of Sec. 1.1251-1.
    (4) Certain gifts--(i) In general. If farm recapture property is 
transferred as a gift by a spouse to a person other than a spouse during 
a taxable year for which a joint return is filed, the spouses shall for 
purposes of applying the provisions of section 1251(b) (5) (B) and 
paragraph (e)(2) of this section be treated as a single taxpayer. Thus, 
under paragraph (e)(2) of Sec. 1.1251-2, the potential gain limitation 
percentage and the proportion for allocating the amount in the joint 
excess deductions account to one or more donees shall be determined by 
treating the spouses as a single taxpayer. However, with respect to each 
gift by a spouse, such spouse's separately maintained excess deductions 
account shall be reduced (below zero, if necessary) by the amount of the 
joint excess deductions account balance to which the donee of such gift 
succeeded under paragraph (e)(2)(iv) of this section.
    (ii) Gift between spouses. If farm recapture property is transferred 
by gift by one spouse to another spouse during a taxable year for which 
a joint return is filed, such gift shall not affect the balance in the 
joint excess deductions account but its effect on the separately 
maintained excess deductions account of each spouse shall be determined 
as if separate returns were filed, but only after applying subdivision 
(i) of this subparagraph.
    (5) Allocation of joint excess deductions account upon filing 
separate returns--(i) In general. If for any reason a taxpayer and his 
spouse cease to file a joint return, then except as provided in this 
subparagraph the amount of the separately maintained excess deductions 
account of each spouse as of the close of the last taxable year for 
which a joint return was filed shall be the amount of such spouse's 
excess deductions account as of the beginning of the first taxable year 
for which they cease filing a joint return.
    (ii) Deficit. If under subparagraph (4)(i) of this paragraph one of 
the spouses has a deficit in his separately maintained excess deductions 
account as of the close of the last taxable year for which a joint 
return was filed, then as of the beginning of the first taxable year for 
which they cease filing a joint return:
    (a) The spouse who had such deficit shall have an excess deductions 
account of zero, and
    (b) The other spouse shall have an excess deductions account equal 
to the amount prescribed in subdivision (i) of this subparagraph minus 
the amount of such deficit.
    (6) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 3. Assume the same facts as in example (4) of paragraph 
(b)(5) of this section, except that H and W file a joint return under 
section 6013 and that H has a farm net loss of only $40,000. Thus, since 
the nonfarm adjusted gross income for calendar year 1971 was $60,000 for 
H and $30,000 for W, their combined nonfarm adjusted gross income 
exceeds $50,000, thereby satisfying under subparagraph (1)(i) of this 
paragraph the $50,000 limitation of paragraph (b)(2)(i) of this section. 
Assume further that for 1971 only W makes a dispostion of farm recapture 
property (other than land and section 1245 property). As a result of 
such disposition, W realizes a gain of $14,000. Accordingly, for 1971, 
the separately maintained excess deductions accounts of H and W, their 
joint excess deductions account, and the treatment of the gain realized 
by W on the disposition of the farm recapture property are computed, in 
accordance with the facts assumed in the table below:

                                           Excess Deductions Accounts
----------------------------------------------------------------------------------------------------------------
                                                                   H's                 W's                Joint
----------------------------------------------------------------------------------------------------------------
(1) Balance Jan. 1, 1971............................  ........   $10,000  ........    $5,000  ........   $15,000
(2) Additions for 1971:
  (a) Farm net loss for 1971........................   $40,000  ........   $10,000  ........   $50,000  ........
  (b) Less amount in paragraph (b)(2)(ii) of this       20,000  ........     5,000  ........    25,000  ........
   section as allocated under subparagraph (1)(ii)
   of this paragraph................................
                                                     ----------          ----------          ----------

[[Page 475]]

 
  (c) Total additions for 1971......................  ........    20,000  ........     5,000  ........    25,000
                                                               ----------          ----------          ---------
(3) Subtotal........................................  ........    30,000  ........    10,000  ........    40,000
(4) Subtractions for 1971...........................  ........         0  ........         0  ........
                                                               ----------          ----------          ---------
(5) Excess deductions account limitation on gain      ........    30,000  ........    10,000  ........    40,000
 recognized as ordinary income under section
 1251(e)(1) for 1971................................
(6) Subtraction for dispositions of farm recapture
 property:
  (a) Gain to which section 1251(c)(1) applies               0  ........    14,000  ........    14,000  ........
   (computed before applying limitation)............
  (b) Limitation (amount in line (5))...............    30,000  ........    10,000  ........    40,000  ........
                                                     ==========          ==========          ==========
  (c) Gain recognized as ordinary income under        ........  ........  ........    14,000  ........    14,000
   section 1251(c)(1), computed for joint account
   (lower of line 6(a) or line 6(b) subject to
   provisions as to separately maintained accounts
   of subparagraph (1)(iii).........................
                                                               ----------          ----------          ---------
(7) Balance Dec. 31, 1971...........................  ........    30,000  ........   (4,000)  ........    26,000
----------------------------------------------------------------------------------------------------------------


If for 1972, H and W were to file separate returns, then the separately 
maintained excess deductions account balances as of January 1, 1972, 
would be $26,000 and zero respectively. See subparagraph (5)(ii) of this 
paragraph.

[T.D. 7418, 41 FR 18816, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec. 1.1251-3  Definitions relating to section 1251.

    (a) Farm recapture property--(1) In general. (i) The term farm 
recapture property means any property (other than section 1250 property 
as defined in section 1250(c)) which, in the hands of the taxpayer is or 
was property:
    (a) Which is described in section 1231(b)(1) (relating to business 
property held for more than 1 year (6 months for taxable years beginning 
before 1977; 9 months for taxable years beginning in 1977), section 
1231(b)(3) (relating to livestock), or section 1231(b)(4) (relating to 
an unharvested crop), and
    (b) Which, at the time the property qualifies under (a) of this 
subdivision, is used in the trade or business of farming (as defined in 
paragraph (e) of this section).
    (ii) The term farm recapture property also includes:
    (a) Property acquired by gift and property acquired in a transaction 
to which section 1251(b)(5)(A) applies, if such property was farm 
recapture property within the meaning of subdivision (i) of this 
subparagraph in the hands of the transferor, and
    (b) Property the basis of which in the hands of the taxpayer holding 
such property is determined by reference to the basis of other property 
which in the hands of such taxpayer was farm recapture property within 
the meaning of subdivision (i) of this paragraph. For purposes of (b) of 
this subdivison (ii) property whose basis is determined in accordance 
with the last sentence of section 1033(c) shall be considered as having 
as basis determined by reference to the property whose conversion gave 
rise to the application of such section.
    (iii) Leasehold of farm recapture property. If property is farm 
recapture property under this subparagraph, a leasehold of such property 
is also farm recapture property is also farm recapture property to the 
same extent as described in, and in accordance with the principles of 
paragraph (a)(2) of Sec. 1.1245-3.
    (iv) If property described in subdivision (ii) of this subparagraph 
is stock or securities received in certain corporate transactions 
described in section 1251(d)(6), see paragraph (f) of Sec. 1.1251-4 for 
determination as to extent such stock or securities is farm recapture 
property.
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following example:

    Example: On December 15, 1971, A, an individual calendar year 
taxpayer engaged in the trade or business of farming (as defined in 
paragraph (e) of this section) exchanges in a transaction which 
qualifies under section 1031(a) (relating to an exchange of property

[[Page 476]]

held for productive use or investment) tractor No. 1 which A acquired on 
March 1, 1971, for tractor No. 2. Under subparagraph (1)(i) of this 
paragraph, tractor No. 1 is farm recapture property as the tractor was 
used in the trade or business of farming and was held for a period in 
excess of 6 months. Under subparagraph (1)(ii) of this paragraph, 
tractor No. 2 is farm recapture property as the basis of tractor No. 2 
in the hands of A is determined with reference to the adjusted basis of 
tractor No. 1.

    (b) Farm net loss--(1) In general. The term farm net loss means the 
amount by which:
    (i) The deductions allowed or allowable for the taxable year by 
chapter 1 of subtitle A of the Code which are directly connected with 
the carrying on of the trade or business of farming, exceed
    (ii) The gross income derived from such trade or business.
    (2) Disposition of farm recapture property. For purposes of 
subparagraph (1) of this paragraph, no gain or loss (regardless of how 
treated) resulting from the disposition of farm recapture property shall 
be taken into account, except that under subparagraph (1)(ii) of this 
paragraph gain upon disposition of such property which is recognized as 
ordinary income by reason of section 1245(a)(1) shall be taken into 
account. Thus, for example, if land used in the trade or business of 
farming were disposed of and gain of $3,000 was realized, then none of 
such gain would be taken into account in computing farm net loss and 
farm net income even if all or a portion of such gain is recognized as 
ordinary income by reason of section 1251(c)(1), section 1252(a)(1), or 
both. If such land were disposed of at a loss, the result would be the 
same. See paragraph (d)(1)(ii) of this section with respect to the 
exclusion of gain or loss from the disposition of farm recapture 
property from the computation of nonfarm adjusted gross income.
    (3) Amount of deduction under section 172(a) attributable to farm 
net loss. (i) If all or a portion of a net operating loss (within the 
meaning of section 172(c)) for a taxable year is absorbed in another 
taxable year as a carryover or carry back, then for purposes of 
determining the amount of deductions referred to in subparagraph (1)(i) 
of this paragraph for such other taxable year the portion of the amount 
absorbed in such other taxable year which is attributable to amounts 
directly connected with the carrying on of the trade or business of 
farming shall be an amount equal to the amount absorbed, multiplied by a 
fraction the numerator of which is the amount of the farm net loss for 
the taxable year the net operating loss arose (but not in excess of the 
net operating loss for such year) and the denominator of which is the 
amount of the net operating loss for such year.
    (ii) No portion of a farm net loss added to the excess deductions 
account in the year a net operating loss arose (or which would have been 
added to such account but for the application of the $25,000 or $12,500 
farm net loss exclusion under paragraph (b) (2)(ii) or (4)(i)(b) of 
Sec. 1.1251-2) shall be taken into account under subparagraph (1)(i) of 
this paragraph in any other taxable year. Accordingly the same farm net 
loss shall not be added to the excess deductions account more than once 
and a farm net loss for any taxable year shall not be subject to the 
$25,000 or $12,500 exclusion more than once.
    (iii) If a net operating loss for a current taxable year 
attributable in whole or part to a farm net loss is carried back and 
absorbed in a preceding taxable year no redetermination shall be made 
with respect to (a) the amount of gain recognized as ordinary income 
under section 1251(c)(1) and paragraph (b) of Sec. 1.1251-1 in any 
taxable year preceding the current taxable year, and (b) the amount of 
the taxpayer's excess deductions account allocated under paragraph 
(e)(2) of Sec. 1.1251-2 to a donee as of the close of any taxable year 
preceding the current taxable year.
    (4) Special rules as to estates and trusts. In the case of an estate 
or trust, computations of amounts under this paragraph shall be made 
without regard to any deductions under section 651 or 661. If on the 
termination of an estate or trust the beneficiaries succeeding to its 
property are allowed a deduction under section 642(h) (relating to 
unused loss carryovers and excess deductions on termination available to 
beneficiaries), to the extent the carryover or excess deduction is 
attributable to a farm loss it shall have the same character in the

[[Page 477]]

hands of the beneficiary as in the hands of the estate or trust. The 
amount of a carryover or of excess deductions from a particular taxable 
year of an estate or trust succeeded to under section 642(h) shall be 
allocated between amounts attributable to a farm net loss and other 
amounts in the same proportion as the farm net loss for such year bears 
to the amount of such carryover or of excess deductions. If there is 
more than one beneficiary, the total farm net loss succeeded to by all 
the beneficiaries shall be allocated to each beneficiary in proportion 
to the deduction of each under section 642(h).
    (c) Farm net income. The term farm net income means the amount by 
which the amount referred to in paragraph (b)(1)(ii) of this section 
exceeds the amount referred to in paragraph (b)(1)(i) of this section.
    (d) Nonfarm adjusted gross income--(1) In general. The term nonfarm 
adjusted gross income means adjusted gross income (taxable income in the 
case of a taxpayer other than an individual) computed without regard to:
    (i) Income or deductions taken into account in computing farm net 
loss and farm net income,
    (ii) Gains and losses (regardless of how treated) resulting from the 
disposition of farm recapture property, and
    (iii) In the case of an estate or trust, the principles of paragraph 
(b)(4) of this section, to the extent applicable, shall apply.
    (2) Special rules. The following rules in addition to the rules of 
subparagraph (1) of this paragraph, shall apply in computing the 
adjusted gross income of a shareholder of an electing small business 
corporation:
    (i) The amount of any distribution described in section 1373 (c)(2) 
made by the corporation shall be disregarded,
    (ii) For purposes of computing the amount includible in the gross 
income of a shareholder under section 1373(b), the corporation's 
undistributable taxable income shall equal the corporation's nonfarm 
adjusted gross income (as defined in subparagraph (1) of this paragraph) 
minus the amount described in section 1373(c)(1), and
    (iii) For purposes of computing a shareholder's deduction under 
section 1374, the corporation's net operating loss shall be computed 
without regard to the items referred to in subparagraph (1) (i) and (ii) 
of this paragraph.
    (e) Trade or business of farming--(1) In general. For purposes of 
section 1251, the term trade or business of farming includes any trade 
or business with respect to which the taxpayer may compute gross income 
under Sec. 1.61-4, expenses under Sec. 1.162-12, make an election 
under section 175, 180, or 182, or use an inventory method referred to 
in Sec. 1.471-6. Such term does not include any activity not engaged in 
for profit within the meaning of section 183 and section 183-2.
    (2) Horse racing. If a taxpayer is engaged in the raising of horses, 
including horses which are bred or purchased, then for purposes of 
section 1251 the term trade or business of farming also includes the 
racing of such horses by the taxpayer. Thus, for example, if a taxpayer 
purchases a yearling and develops it to the racing stage, the term trade 
or business of farming includes the racing of such horse.
    (3) Several businesses of farming. If a taxpayer is engaged in more 
than one trade or business of farming, all such trades and businesses 
shall be treated as one trade or business.

[T.D. 7418, 41 FR 18826, May 7, 1976, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]



Sec. 1.1251-4  Exceptions and limitations.

    (a) Exception for gifts--(1) General rule. Section 1251(d)(1) 
provides that no gain shall be recognized under section 1251(c)(1) upon 
a disposition by gift. For purposes of this paragraph, the term gift 
shall have the same meaning as in paragraph (a) of Sec. 1.1245-4 and, 
with respect to the application of this paragraph, principles 
illustrated by the examples of paragraph (a)(2) of Sec. 1245-4 shall 
apply. For reduction in amount of charitable contribution in case of a 
gift of farm recapture property, see section 170(e) and Sec. 1.170A-4.
    (2) Disposition in part a sale or exchange and in part a gift. Where 
a disposition of farm recpature property is in part a sale or exchange 
and in part a gift, the amount of gain recognized as ordinary income 
under section 1251(c)(1) shall not exceed:

[[Page 478]]

    (i) In the case of farm recapture property other than land, the 
excess of the amount realized over adjusted basis, and
    (ii) In the case of land, the lower of the amount in subdivision (i) 
of this subparagraph or the potential gain (as defined in paragraph 
(b)(2)(ii) of Sec. 1.1251-1.
    (3) Treatment of land in hand of transferee. See paragraph (g) of 
this section for treatment of transferee in the case of a disposition of 
land to which this paragraph applies.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A, a calendar year taxpayer, makes one disposition of 
farm recapture property during 1976. On March 2, 1976, A makes a gift to 
B (also a calendar year taxpayer) of a parcel of land which he had on 
January 15, 1971. On the date of such disposition, the excess of the 
fair market value ($65,000) over the adjusted basis of the land 
($40,000) is $25,000 and the sum of the deductions allowable in respect 
of such land under sections 175 and 182 is $21,000 for 1971 and $3,000 
(attributable to 1975) for the taxable year of disposition and the four 
immediately preceding taxable years. Thus, the potential gain (as 
defined in paragraph (b)(2)(ii) of Sec. 1.1251-1) is limited to $3,000. 
At the end of 1976 (after making the applicable additions and 
subtractions under section 1251(b) (2) and (3)(A)), there is a balance 
in A's excess deductions account of $25,000. However, upon making the 
gift, A recognizes no gain under section 1251(c)(1) or section 
1252(a)(1). See subparagraph (a)(1) of this paragraph and paragraph 
(a)(1) of Sec. 1.1252-2. For treatment of the land in the hands of B, 
see example (1) of paragraph (g)(3) of this section. For effect of the 
gift on the excess deductions accounts of A and B, see paragraph (e)(2) 
of Sec. 1.1251-2.
    Example 2. Assume the same facts as in example (1), except that A 
transfers the land to B for $50,000. Thus, the gain realized is $10,000 
(amount realized, $50,000, minus adjusted basis $40,000), and A has made 
a gift of $15,000 (fair market value, $65,000, minus amount realized, 
$50,000). Since under subparagraph (2)(ii) of this paragraph, the 
potential gain ($3,000) is lower than the gain realized ($10,000), the 
gain to which section 1251(c)(1) could apply is limited by subparagraph 
(2)(ii) of this paragraph to $3,000. Thus, as A has $25,000 in his 
excess deductions account, $3,000 is recognized as ordinary income under 
section 1251(c)(1). See example (2) of paragraph (a)(4) of Sec. 1.1252-
2 for computation of gain of $7,000 which is recognized as ordinary 
income by A under section 1252(a)(1). For treatment of the land in the 
hands of B, see example (2) of paragraph (g)(3) of this section.

    (b) Exception for transfers at death--(1) General rule. Section 
1251(d)(2) provides that, except as provided in section 691 (relating to 
income in respect of a decedent), no gain shall be recognized under 
section 1251(c)(1) upon a transfer at death. For purposes of this 
paragraph, the term transfer at death shall have the same meaning as in 
paragraph (b) of Sec. 1.1245-4 and, with respect to the application of 
this paragraph, principles illustrated by the examples of paragraph 
(b)(2) of Sec. 1.1245-4 shall apply.
    (2) Treatment of land in hands of transferee. If as of the date a 
person acquires land which is farm recapture property from a decedent 
such person's basis is determined, by reason of the application of 
section 1014(a), solely by reference to the fair market value of the 
property on the date of the decedent's death or on the applicable date 
provided in section 2032 (relating to alternate valuation date), then on 
such date the potential gain in respect to such land is zero.
    (c) Certain corporate transactions--(1) Limitation on amount of 
gain. Under section 1251(d)(3), upon a transfer of property described in 
subparagraph (2) of this paragraph, the amount of gain recognized as 
ordinary income by the transferor under section 1251(c)(1) shall not 
exceed an amount equal to the excess (if any) of (i) the amount of gain 
recognized to the transferor on the transfer (determined without regard 
to section 1251) over (ii) the amount (if any) of gain recognized as 
ordinary income under section 1245(a)(1). For purposes of this 
subparagraph, the principles of paragraph (c)(1) of Sec. 1.1245-4 shall 
apply. Thus, in case of a transfer of both farm recapture property and 
property other than farm recapture property in a single transaction, the 
amount realized from the disposition of the farm recapture property (as 
determined in a manner consistent with the principles of paragraph 
(a)(5) of Sec. 1.1245-1) shall be deemed to consist of that portion of 
the fair market value of each property acquired which bears the same 
ratio to the fair market value of such acquired property as the amount 
realized from the disposition of farm recapture property bears to the 
total

[[Page 479]]

amount realized. The preceding sentence shall be applied solely for 
purposes of computing the portion of the total gain (determined without 
regard to section 1251) which is eligible to be recognized as ordinary 
income under section 1251(c)(1). Section 1251(d)(3) does not apply to a 
disposition of property to an organization (other than a cooperative 
described in section 521) which is exempt from the tax imposed by 
chapter 1 of the Code.
    (2) Transfers covered. The transfers referred to in subparagraphs 
(1) of this paragraph are transfers of farm recapture property in which 
the basis of such property in the hands of the transferee is determined 
by reference to its basis in the hands of the transferor by reason of 
the application of any of the following provisions:
    (i) Section 332 (relating to distributions in complete liquidation 
of an 80-percent-or-more controlled subsidiary corporation). For the 
application of section 1251(d)(3) to such a complete liquidation, the 
principles of paragraph (c)(3) of Sec. 1.1245-4 shall apply. Thus, for 
example, the provisions of subparagraph (1) of this paragraph do not 
apply to a liquidating distribution of farm recapture property by an 80-
percent-or-more controlled subsidiary to its parent if the parent's 
basis for the property is determined, under section 334(b)(2), by 
reference to its basis for the stock of the subsidiary.
    (ii) Section 351 (relating to transfer to corporation controlled by 
transferor).
    (iii) Section 351 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 371(a) (relating to exchanges pursuant to certain 
receivership and bankruptcy proceedings).
    (v) Section 374(a) (relating to exchanges pursuant to certain 
railroad reorganizations).
    (3) Partnerships. For the application of section 1251 to 
partnerships, see paragraph (e) of this section.
    (4) Treatment of land in hands of transferee. See paragraph (g) of 
this section for treatment of transferee in the case of a disposition of 
land to which this paragraph applies.
    (5) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) A, an individual calendar year taxpayer, makes one 
disposition of farm recapture property during 1971. On January 20, 1971. 
A transfers farm recapture property (other than land and section 1245 
property), having an adjusted basis of $22,000, to corporation M in 
exchange for stock in M worth $35,000 plus $15,000 in cash in a 
transaction qualifying under section 351. Thus, the amount realized is 
$50,000, and the gain realized is the excess of the amount realized, 
$50,000, over the adjusted basis, $22,000, or $28,000. Without regard to 
section 1251, A would recognize gain of $15,000 under section 351(b), 
and M's basis for the farm recapture property would be determined under 
section 362(a) by reference to its basis in the hands of A. Assume 
further that the balance in A's excess deductions account (after making 
the applicable additions and subtractions under section 1251(b) (2) and 
(3)(A)) at the close of 1971 is $20,000. Thus, since such balance in the 
excess deductions account ($20,000) is lower than the gain realized 
($28,000), is subparagraph (1) of this paragraph did not apply, gain of 
$20,000 would be recognized as ordinary income under section 1251(c)(1). 
However, subparagraph (1) of this paragraph limits the amount of gain to 
be recognized as ordinary income under section 1251(c)(1) to $15,000.
    (ii) If, however, A transferred the farm recapture property to M 
solely in exchange for stock worth $50,000, then, because of the 
application of subparagraph (1) of this paragraph he would not recognize 
any gain under section 1251(c)(1). If, instead, A transferred the farm 
recapture property to M in exchange for stock worth $25,000 and $25,000 
cash, only $20,000 (the amount of such balance in the excess deductions 
account) of the gain of $25,000 recognized under section 351(b) would be 
recognized as ordinary income under section 1251(c)(1). The remaining 
$5,000 of gain recognized under section 351(b) may be treated as gain 
from the sale or exchange of property described in section 1231. In the 
hands of M, the property received from A is farm recapture property 
under the provisions of paragraph (a)(11)(ii) of Sec. 1.1251-3. For 
treatment of the property received by A in such transaction; see section 
1251(d)(6) and paragraph (f) of this section.
    Example 2. Assume the same facts as in subdivision (i) of example 
(1), except that the farm recapture property is section 1245 property. 
Assume further than $5,000 is recognized as ordinary income under 
section 1245(a)(1), and that as of the close of 1971, A has a balance of 
$15,000 in his excess deductions account (after making the applicable 
additions and subtractions under section 1251(b) (2) and (3)(A) which, 
under paragraph

[[Page 480]]

(b) of Sec. 1.1251-3, is computed by treating the $5,000 of gain to 
which section 1245 applies as gross income derived from the trade or 
business of farming). The amount of gain recognized as ordinary income 
under section 1251(c)(1) is $10,000, computed as follows:

(1) Amount of gain under section 1251(c)(1) (determined
 without regard to subparagraph (1) of this paragraph):......
    (a) Portion of gain realized ($28,000) in excess of          $23,000
     amount recognized as ordinary income under section
     1245(a)(1) ($5,000).....................................
    (b) Excess deductions account balance....................     15,000
    (c) Lower of (a) or (b)..................................     15,000
                                                              ==========
(2) Limitation in subparagraph (1) of this paragraph:
    (a) Gain recognized (determined without regard to section     15,000
     1251)...................................................
    (b) Minus: Gain recognized as ordinary income under            5,000
     section 1245(a)(1)......................................
                                                              ----------
    (c) Difference...........................................     10,000
                                                              ==========
    (3) Lower of line (1)(c) or line (2)(c)..................     10,000
                                                              ==========
 

    (d) Limitation for like kind exchanges and involuntary conversions--
(1) General rule. Under section 1251(d)(4), if farm recapture property 
is disposed of and gain (determined without regard to section 1251) is 
not recognized in whole or in part under section 1031 (relating to like 
kind exchanges) or section 1033 (relating to involuntary conversions), 
then the amount of gain recognized as ordinary income by the transferor 
under section 1251(c)(1) shall not exceed an amount equal to the excess 
(if any) of (i) the amount of gain recognized on such disposition 
(determined without regard to section 1251) or (ii) the amount (if any) 
of gain recognized as ordinary income under section 1245(a)(1).
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. (i) A, an individual calendar year taxpayer, owns a herd 
of breeding cattle having an adjusted basis of $75,000 which he acquired 
on March 30, 1970, A receives insurance proceeds of $90,000. Thus, the 
gain realized is $15,000 (that is, the excess of the amount realized, 
$75,000), A makes no other disposition of farm recapture property during 
1970. Assume that had the herd been sold at its fair market value on 
March 15, 1970, no gain would have been recognized as ordinary income 
under section 1245(a)(1). As of the close of 1970, A has a balance of 
$12,000 in his excess deductions account (after making the applicable 
additions and subtractions under section 1251(b) (2) and (3)(A)). Thus, 
since the balance in the excess deductions account, $12,000, is lower 
than the gain realized, $15,000, the amount of gain which would be 
recognized under section 1251(c)(1) (determined without regard to 
subparagraph (1) of this paragraph) would be $12,000.
    (ii) Assume further that A spends $72,000 of the insurance proceeds 
to purchase another breeding herd, $10,000 to purchase stock in the 
acquisition of control of a corporation which owns property similar or 
related in service or use to the destroyed breeding herd, and retains 
cash of $8,000. Both of the acquisitions by A qualify under section 
1033(a)(3)(A), and A properly elects under section 1033(a)(3)(A) and the 
regulations thereunder to limit recognition of gain to $8,000 (that is, 
the amount by which the amount realized from the conversion, $90,000 
exceeds the cost of the stock and other property acquired to replace the 
converted property, $72,000 plus $10,000). Thus, since $8,000 is the 
amount of gain which would be recognized under section 1033(a)(3) 
(determined without regard to section 1251), and since that amount is 
lower than the gain of $12,000 which would be recognized under section 
1251(c)(1) (determined without regard to subparagraph (1) of this 
paragraph), under subparagraph (1) of this paragraph the amount of gain 
recognized under section 1251(c)(1) is limited to $8,000. The stock 
purchased for $10,000 qualifies under paragraph (a)(1)(ii)(b) of Sec. 
1.1251-3 as farm recapture property.
    Example 2. (i) A, an individual calendar year taxpayer, owns land 
which he had acquired on March 7, 1970, having an adjusted basis of 
$48,000, and a fair market value of $67,500. On January 15, 1975, A, as 
a result of a condemnation action, receives $67,500 (its fair market 
value) for the land. The aggregate of the deductions allowable in 
respect of such land under sections 175 and 182 is $18,000, with $5,000 
of such aggregate attributable to 1970 and $13,000 of such aggregate 
attributable to 1970 and $13,000 of such aggregate attributable to 1975 
and the four preceding taxable years. Thus, the potential gain (as 
defined in paragraph (b)(2)(ii) of Sec. 1.1251-1) is limited to 
$13,000, since that amount is lower than $19,500 (the excess of the fair 
market value of the land, $67,500, over its adjusted basis, $48,000). 
The gain realized by A is also $19,500. At the end of A's taxable year 
(after making the applicable additions and subtractions under section 
1251(b) (2) and (3)(A)) there is a balance of $21,000 in the excess 
deductions account of A. Since the potential gain, $13,000, is lower 
than both the excess deductions account balance, $21,000, and the gain 
realized, $19,500, A would recognize $13,000 as ordinary income under 
section 1251(c)(1) (determined without regard to subparagraph (1) of 
this paragraph).
    (ii) Assume further that A spends the entire amount received, 
$67,500, to purchase

[[Page 481]]

stock in the acquisition of control of a corporation which owns property 
similar or related in service or use to A's condemned land which 
qualifies under section 1033(a)(3)(A), and A properly elects under 
section 1033(a)(3)(A) and the regulations thereunder to limit 
recognition of gain to zero (that is, the amount by which the amount 
realized from the conversion, $67,500, exceeds the cost of the stock 
acquired to replace the converted land, $67,500). Thus, since no gain 
would be recognized under section 1033(a)(3) (determined without regard 
to section 1251), under subparagraph (1) of this paragraph, no gain is 
recognized under section 1251(c)(1). The stock purchased for $67,500 
qualifies under paragraph (a)(1)(ii)(b) of Sec. 1.1251-3 as farm 
recapture property. See example (1) of paragraph (d)(2) of Sec. 1.1252-
2 for a computation of gain recognized as ordinary income under section 
1252(a)(1).
    Example 3. B, an individual calendar year taxpayer, owns a herd of 
breeding cattle having an adjusted basis of $25,000 which he acquired on 
March 30, 1970. On March 15, 1976, the entire herd is destroyed by a 
blizzard and on March 20, 1976, B receives insurance proceeds of 
$90,000. Thus, the gain realized is $65,000 (that is, the excess of the 
amount realized, $90,000, over the adjusted basis, $25,000). B makes no 
other disposition of farm recapture property during 1976. B spends 
$60,000 of the insurance proceeds to purchase another breeding herd and 
retains cash of $30,000. The acquisition by B qualifies under section 
1033(a)(3)(A), and B properly elects under section 1033(a)(3)(A) and the 
regulations thereunder to limit recognition of gain to $30,000 (that is, 
the amount by which the amount realized from the conversion, $90,000, 
exceeds the cost of the property acquired to replace the converted 
property, $60,000). Assume that the amount of gain recognized under 
section 1245(a)(1) is $20,000, and that as of the close of 1976 B has a 
balance of $100,000 in his excess deductions account (after making the 
applicable additions and subtractions under section 1251(b) (2) and 
(3)(A) which, under paragraph (b) of Sec. 1.1251-3, is computed by 
treating the $20,000 of gain to which section 1245 applies as gross 
income derived from the trade or business of farming). The amount of 
gain recognized as ordinary income under section 1251(c)(1) is $10,000, 
computed as follows:

(1) Amount of gain under section 1251(c)(1) (determined
 without regard to subparagraph (1) of this paragraph):
    (a) Portion of gain realized ($65,000) in excess of          $45,000
     amount recognized as ordinary income under section
     1245(a)(1) ($20,000)....................................
    (b) Excess deductions account balance....................    100,000
    (c) Lower of (a) or (b)..................................     45,000
                                                              ==========
(2) Limitation in subparagraph (1) of this paragraph:
    (a) Gain recognized (determined without regard to section     30,000
     1251)...................................................
    (b) Minus: Gain recognized as ordinary income under          $20,000
     section 1245(a)(1)......................................
                                                              ----------
    (c) Difference...........................................     10,000
                                                              ==========
(3) Lower of line (1)(c) or line (2)(c)......................     10,000
                                                              ==========
 

    (3) Application to single disposition of farm recapture property of 
one class and property of different class. (i) If upon a sale of farm 
recapture property of one class gain would be recognized under section 
1251(c)(1), and if such farm recapture property together with property 
of a different class or classes is disposed of in a single transaction 
in which gain is not recognized in whole or in part under section 1031 
(without regard to section 1251(c)(1), then rules consistent with the 
principles of paragraph (d)(6) of Sec. 1.1250-3 (relating to gain from 
disposition of certain depreciable realty) shall apply for purposes of 
allocating the amount realized to each of the classes of property 
disposed of and for purposes of determining what property the amount 
realized for each class consists of.
    (ii) For purposes of this subparagraph, the classes of property 
other than farm recapture property are (a) section 1245 property, (b) 
section 1250 property, and (c) other property.
    (iii) For purposes of this subparagraph, the classes of farm 
recapture property are (a) hand, (b) farm recapture property other than 
land which is section 1245 property and (c) farm recapture property 
other than land which is not section 1245 property.
    (4) Treatment of land received in like kind exchange or involuntary 
conversion. The aggregate of the deductions allowed under sections 175 
and 182 in respect of land acquired in a transaction described in 
subparagraph (1) of this paragraph shall include the aggregate of the 
deductions allowable under sections 175 and 182 in respect of the land 
transferred or converted (as the case may be) in such transaction minus 
the amount of gain taken into account under sections 1251(c) and 1252(a) 
with respect to the land transferred or converted. Upon a subsequent 
disposition of such land, such deductions shall be treated as having 
been allowable in the

[[Page 482]]

same taxable year as they were allowable with respect to the land 
transferred or converted.
    (e) Partnerships. [Reserved]
    (f) Property transferred to controlled corporation. [Reserved]
    (g) Treatment of land received by a transferee in a disposition by 
gift and certain tax-free transactions--(1) General rule. If farm 
recapture property which is land is disposed of in a transaction which 
is either a gift to which paragraph (a)(1) of this section applies or a 
completely tax-free transfer to which section 1251(b)(5)(A) applies, 
then for purposes of section 1251:
    (i) The aggregate of the deductions allowable under sections 175 and 
182 in respect of the land in the hands of the transferee immediately 
after the disposition shall be an amount equal to the aggregate of such 
deductions for the taxable year and the four preceding taxable years in 
the hands of the transferor immediately before the disposition,
    (ii) Upon a subsequent disposition by the transferee (including a 
computation of potential gain as defined in paragraph (b)(2)(ii) of 
Sec. 1.1251-1), such deductions in the hands of the transferee shall be 
treated as having been allowable with respect to the transferee in the 
same taxable year they were allowable to the transferor, and
    (iii) If the taxable years of the transferor and transferee 
regularly end on different dates, then the aggregate of such deductions 
allowable for taxable year with respect to the transferor shall be 
treated in the hands of the transferee as allowable in the transferee's 
taxable year in which the taxable year of the transferor regularly ends.
    (2) Certain partially tax-free transfers. If farm recapture property 
which is land is disposed of in a transaction which either is in part a 
sale or exchange and in part a gift to which paragraph (a)(2) of this 
section applies, or is a partially tax-free transfer to which section 
1251(b)(5)(A) applies, then for purposes of section 1251:
    (i) The amount determined under subparagraph (1)(i) of this 
paragraph shall be reduced by the amount of gain taken into account 
under sections 1251(c) and 1252(a) to the extent such gain is 
attributable to the sections 175 and 182 deductions for the taxable year 
and the preceding four taxable years (determined by attributing gain 
under section 1252(a) to the oldest years first) by the transferor upon 
the disposition, and
    (ii) For purposes of subparagraph (1)(ii) of this paragraph, the 
amount of such gain recognized under sections 1251(c) and 1252(a) shall 
reduce the aggregate of deductions allowable under sections 175 and 182 
for the taxable year and each of the preceding four taxable years on a 
pro rata basis.
    (3) Examples. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. Assume the same facts as in example (1) of paragraph 
(a)(4) of this section. Therefore, on the date B receives the land in 
the gift transaction, under subparagraph (1) (i) and (ii) of this 
paragraph, the aggregate of the deductions allowable under sections 175 
and 182 in respect of the land in the hands of B is the amount in the 
hands of A, $24,000, and for purposes of applying section 1251 upon a 
subsequent disposition by B (including the computation of potential 
gain) such deductions in the hands of B shall be treated as allowable in 
the same year as they were allowable to A. Thus, in respect to the land 
in the hands of B, the allowable section 175 and 182 deductions of 
$3,000 shall be treated as allowable in 1975.
    Example 2. Assume the same facts as in example (2) of Paragraph 
(a)(4) of this section. Under paragraph (2) of this paragraph, the 
aggregate of the allowable sections 175 and 182 deductions with respect 
to the land which pass over to B for purposes of section 1251 is zero 
($3,000 deduction allowable under sections 175 and 182 for the taxable 
year and the four preceding taxable years minus $3,000 gain taken into 
account by A in accordance with example (2) of paragraph (a)(4) of this 
section).

[T.D. 7818, 41 FR 18828, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec. 1.1252-1  General rule for treatment of gain from disposition 
of farm land.

    (a) Ordinary income--(1) General rule. (i) Except as otherwise 
provided in this section and Sec. 1.1252-2, if farm land is disposed of 
during a taxable year beginning after December 31, 1969, then under 
section 1252(a)(1) there shall be treated as gain from the sale or 
exchange of property which is neither a

[[Page 483]]

capital asset nor property described in section 1231 (that is, shall be 
recognized as ordinary income) the lower of:
    (a) The applicable percentage of the amount computed in subdivision 
(ii) of this subparagraph, or
    (b) The amount computed in subdivision (iii) of this subparagraph.
    (ii) The amount computed in this subdivision is an amount equal to:
    (a) The aggregate of the deductions allowed, in any taxable year any 
day of which falls within the period the taxpayer held (or is considered 
to have held) the farm land, under sections 175 (relating to soil and 
water conservation expenditures) and 182 (relating to expenditures by 
farmers for clearing land) for expenditures paid or incurred after 
December 31, 1969, with respect to the farm land disposed of, minus
    (b) The amount of gain recognized as ordinary income under section 
1251(c)(1) (relating to gain from disposition of property used in 
farming where farm losses offset nonfarm income) upon such disposition 
of such land.
    (iii) The amount computed in this subdivision is an amount equal to:
    (a) The gain realized, that is, the excess of the amount realized 
(in the case of a sale, exchange, or involuntary conversion) or the fair 
market value of the farm land (in the case of any other disposition), 
over the adjusted basis of the farm land, minus
    (b) The amount of gain recognized as ordinary income under section 
1251(c)(1) upon such disposition of such land.
    (iv) If a deduction under section 175 is allowed in respect of the 
farm land disposed of for a taxable year every day of which falls within 
the period after the taxpayer held (or is considered to have held) the 
farm land, and if the deduction is attributable to expenditures paid or 
incurred after December 31, 1969, with respect to such land during the 
period the taxpayer held (or is considered to have held) the land, then 
the amount of such deduction shall be applied to increase the amount 
computed (without regard to this subdivision) under subdivision (ii)(a) 
of this subparagraph.
    (2) Application of section. Any gain treated as ordinary income 
under section 1252(a)(1) shall be recognized as ordinary income 
notwithstanding any other provision of subtitle A of the Code. For 
special rules with respect to the application of section 1252, see Sec. 
1.1252-2. For the relation of section 1252 to other provisions see 
paragraph (d) of this section.
    (3) Meaning of terms. For purposes of section 1252:
    (i) The term farm land means any land with respect to which 
deductions have been allowed under section 175 or 182. See section 
1252(a)(2).
    (ii) The period for which farm land shall be considered to be held 
shall be determined under section 1223.
    (iii) The term disposition shall have the same meaning as in 
paragraph (a)(3) of Sec. 1.1245-1.
    (iv) The applicable percentage shall be determined as follows:

If the farm land is disposed of--           The applicable percentage
                                             is--
Within 5 years after the date it was         100 percent.
 acquired
Within the sixth year after it was           80 percent.
 acquired
Within the seventh year after it was         60 percent.
 acquired
Within the eighth year after it was          40 percent.
 acquired.
Within the ninth year after it was           20 percent.
 acquired.
Within the 10th year after it was acquired   0 percent.
 and thereafter.
 

    (4) Portion of parcel. The amount of gain to be recognized as 
ordinary income under section 1252(a)(1) shall be determined separately 
for each parcel of farm land in a manner consistent with the principles 
of subparagraphs (4) and (5) of Sec. 1.1245-1(a) (relating to gain from 
disposition of certain depreciable property). If (i) only a portion of a 
parcel of farm land is disposed of in a transaction, or if two or more 
portions of a single parcel are disposed of in one transaction, and (ii) 
the aggregate of the deductions allowed under sections 175 and 182 with 
respect to any such portion cannot be established to the satisfaction of 
the Commissioner or his delegate, then the aggregate of the deductions 
in respect of the entire parcel shall be allocated to each portion in 
proportion to the fair market value of each at the time of the 
disposition.
    (b) Instances of non-application--(1) In general. Section 1252 does 
not apply if a taxpayer disposes of farm land for which the holding 
period is in excess of

[[Page 484]]

9 years or with respect to which no deductions have been allowed under 
sections 175 and 182.
    (2) Losses. Section 1252(a)(1) does not apply to losses. Thus, 
section 1252(a)(1) does not apply if a loss is realized upon a sale, 
exchange, or involuntary conversion of property, all of which is farm 
land, nor does the section apply to a disposition of such property other 
than by way of sale, exchange, or involuntary conversion if at the time 
of the disposition the fair market value of such property is not greater 
than its adjusted basis.
    (c) Treatment of partnerships and partners. [Reserved]
    (d) Relation of section 1252 to other provisions--(1) General. The 
provisions of section 1252 apply notwithstanding any other provisions of 
subtitle A of the Code. Thus, unless an exception or limitation under 
Sec. 1.1252-2 applies, gain under section 1252(a)(1) is recognized 
notwithstanding any contrary nonrecognition provision or income 
characterizing provision. For example, since section 1252 overrides 
section 1231 (relating to property used in the trade or business), the 
gain recognized under section 1252(a)(1) upon a disposition of farm land 
will be treated as ordinary income and only the remaining gain, if any, 
from the disposition may be considered as gain from the sale or exchange 
of a capital asset if section 1231 is applicable. See example (1) of 
paragraph (e) of this section.
    (2) Nonrecognition sections overridden. The nonrecognition of gain 
provisions of subtitle A of the Code which section 1252 overrides 
include, but are not limited to, sections 267(d), 311(a), 336, 337, and 
512(b)(5). See Sec. 1.1252-2 for the extent to which section 1252(a)(1) 
overrides sections 332, 351, 361, 371(a), 374(a), 721, 731, 1031, and 
1033.
    (3) Installment method. Gain from a disposition to which section 
1252(a)(1) applies may be reported under the installment method if such 
method is otherwise available under section 453 of the Code. In such 
case, the income (other than interest) on each installment payment shall 
(i) first be deemed to consist of gain to which section 1251(c)(1) 
applies (if applicable) until all such gain has been reported, (ii) the 
next portion (if any) of such income shall be deemed to consist of gain 
to which section 1252(a)(1) applies until all such gain has been 
reported, and (iii) finally the remaining portion (if any) of such 
income shall be deemed to consist of gain to which neither section 
1251(c)(1) nor 1252(a)(1) applies. For treatment of amounts as interest 
on certain deferred payments, see section 483.
    (4) Exempt income. With regard to exempt income, the principles of 
paragraph (e) of Sec. 1.1245-6 shall be applicable.
    (5) Treatment of gain not recognized under section 1252(a)(1). For 
treatment of gain not recognized under this section, the principles of 
paragraph (f) of Sec. 1.1245-6 shall be applicable.
    (e) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. Individual A uses the calendar year as his taxable year. 
On April 10, 1975, he sells for $75,000 a parcel of farm land which he 
had acquired on January 5, 1970, with an adjusted basis of $52,500 for a 
realized gain of $22,500. The aggregate of the deductions allowed under 
sections 175 and 182 with respect to such land is $18,000 and all of 
such amount was allowed for 1970. Under the stated facts, none of the 
$22,500 gain realized is recognized as ordinary income under section 
1251(c)(1) as there is no potential gain (as defined in section 
1251(e)(5)) with respect to the farm land. Since no gain is recognized 
as ordinary income under section 1251(c)(1), and since the applicable 
percentage, 80 percent, of the aggregate of the deductions allowed under 
sections 175 and 182, $18,000, or $14,400, is lower than the gain 
realized, $22,500, the amount of gain recognized as ordinary income 
under section 1252(a)(1) is $14,400. The remaining $8,100 of the gain 
may be treated as gain from the sale or exchange of property described 
in section 1231.
    Example 2. Assume the same facts as in example (2) of paragraph 
(b)(6) of Sec. 1.1251-1. Assume further that the aggregate of the 
amount of sections 175 and 182 deductions allowable to the M corporation 
is equal to the amount allowed. Under paragraph (a)(1) of the section, 
$5,000 is recognized as ordinary income under section 1252(a)(1) upon 
the disposition of the land as a dividend, computed as follows:

(1) Aggregate of deductions allowed under sections 175 and       $18,000
 182.........................................................
(2) Minus: Gain recognized as ordinary income under section      $13,000
 1251(c)(1)..................................................
                                                              ----------
(3) Difference...............................................     $5,000

[[Page 485]]

 
(4) Multiply: Applicable percentage for property disposed of        100%
 within the fifth year after it was acquired.................
                                                              ----------
(5) Amount in paragraph (a)(1)(i)(a) of this section.........     $5,000
                                                              ----------
(6) Gain realized (fair market value $67,500, less adjusted      $22,500
 basis, $45,000).............................................
(7) Minus: Amount in line (2)................................    $13,000
                                                              ----------
(8) Amount in paragraph (a)(1)(i)(b) of this section.........     $9,500
                                                              ==========
(9) Lower of line (5) or line (8)............................     $5,000
                                                              ==========
 


The gain realized, $22,500, minus the sum of the gain recognized as 
ordinary income under section 1251(c)(1), $13,000, and under section 
1252(a)(1), $5,000, equals $4,500. Assuming section 311(d) (relating to 
certain distributions of appreciated property to redeem stock) does not 
apply, under section 311(a) the corporation does not recognize gain on 
account of the $4,500.
    Example 3. Assume the same facts as in example (2) of this 
paragraph, except that M contracted to sell the land for $67,500 which 
would be paid in 10 equal payments of $6,750 each, plus a sufficient 
amount of interest so that section 483 does not apply. Assume further 
that the remaining gain of $4,500 is treated as gain from the sale or 
exchange of property described in section 1231. M properly elects under 
section 453 to report under the installment method gain of $13,000 to 
which section 1251(c)(1) applies, gain of $5,000 to which section 
1252(a)(1) applies, and gain of $4,500 to which section 1231 applies. 
Since the total gain realized on the sale was $22,500, the gross profit 
realized on each installment payment is $2,250, i.e., $6,750x($67,500). 
Accordingly, the treatment of the income to be reported on each 
installment payment is as follows:

------------------------------------------------------------------------
                                               Applicable sections
              Payment No.               --------------------------------
                                            1251       1252       1231
------------------------------------------------------------------------
1......................................     $2,250  .........  .........
2......................................      2,250  .........  .........
3......................................      2,250  .........  .........
4......................................      2,250  .........  .........
5......................................      2,250  .........  .........
6......................................      1,750       $500  .........
7......................................  .........      2,250  .........
8......................................  .........      2,250  .........
9......................................  .........  .........     $2,250
10.....................................  .........  .........      2,250
                                        --------------------------------
  Totals...............................     13,000      5,000      4,500
------------------------------------------------------------------------


[T.D. 7418, 41 FR 18831, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec. 1.1252-2  Special rules.

    (a) Exception for gifts--(1) General rule. In general, no gain shall 
be recognized under section 1252(a)(1) upon a disposition of farm land 
by gift. For purposes of section 1252 and this paragraph, the term gift 
shall have the same meaning as in paragraph (a) of Sec. 1.1245-4 and, 
with respect to the application of this paragraph, principles 
illustrated by the examples of paragraph (a)(2) of Sec. 1.1245-4 shall 
apply. For reduction in amount of charitable contribution in case of a 
gift of farm land, see section 170(e) and Sec. 1.170A-4.
    (2) Disposition in part a sale or exchange and in part a gift. Where 
a disposition of farm land is in part a sale or exchange and in part a 
gift, the amount of gain which shall be recognized as ordinary income 
under section 1252(a)(1) shall be computed under paragraph (a)(1) of 
Sec. 1.1252-1, applied by treating the gain realized (for purposes of 
paragraph (a)(1)(iii)(a) of Sec. 1.1252-1) as the excess of the amount 
realized over the adjusted basis of the farm land.
    (3) Treatment of farm land in hands of transferee. See paragraph (f) 
of this section for treatment of the transferee in the case of a 
disposition to which this paragraph applies.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On March 2, 1976, A, a calendar year taxpayer, makes a 
gift to B of a parcel of land having an adjusted basis of $40,000, a 
fair market value of $65,000, and a holding period of 6 years (A, having 
purchased the land on January 15, 1971). On the date of such gift, the 
aggregate of the deductions allowed to A under sections 175 and 182 with 
respect to the land is $24,000 with $21,000 of such amount attributable 
to 1971. Upon making the gift, A recognizes no gain under section 
1251(c)(1) or section 1252(a)(1). See paragraph (a)(1) of Sec. 1.1251-4 
and subparagraph 1 of this paragraph. For treatment of the farm land in 
the hands of B, see example (1) of paragraph (f)(3) of this section. For 
effect of the gift on the excess deductions accounts of A and of B, see 
paragraph (e)(2) of Sec. 1.1251-2.
    Example 2. (i) Assume the same facts as in example (1), except that 
A transfers the land to B for $50,000. Thus, the gain realized is 
$10,000 (amount realized, $50,000, minus adjusted basis, $40,000), and A 
has made a gift of $15,000 (fair market value, $65,000, minus amount 
realized, $50,000).
    (ii) Upon the transfer of the land to B, A recognizes $3,000 of gain 
under section 1251(c)(1). See example (2) of paragraph (a)(4)

[[Page 486]]

of Sec. 1.1251-4. Thus, A recognizes $7,000 as ordinary income under 
section 1252(a)(1), computed under subparagraph (2) of this paragraph as 
follows:

(1) Aggregate of deductions allowed under sections 175 and       $24,000
 182.........................................................
(2) Minus: Gain recognized as ordinary income under section       $3,000
 1251(c)(1)..................................................
                                                              ----------
(3) Difference...............................................    $21,000
(4) Multiply: Applicable percentage for land disposed of             80%
 within sixth year after it was acquired.....................
                                                              ----------
(5) Amount in paragraph (a)(1)(i)(a) of Sec.  1.1252-1......    $16,800
                                                              ==========
(6) Gain realized (see subdivision (i) of this example)......    $10,000
(7) Minus: Amount in line (2)................................     $3,000
                                                              ----------
(8) Amount in paragraph (a)(1)(i)(b) of Sec.  1.1252-1,          $7,000
 applied in accordance with subparagraph (2) of this
 paragraph...................................................
                                                              ==========
(9) Lower of line (5) or line (8)............................     $7,000
                                                              ==========
 


Thus, the entire gain realized on the transfer, $10,000, is recognized 
as ordinary income since that amount is equal to the sum of the gain 
recognized as ordinary income under section 1251(c)(1), $3,000, and 
under section 1252(a)(1), $7,000. For treatment of the farm land in the 
hands of B, see example (2) of paragraph (f)(3) of this section.

    (b) Exception for transfers at death--(1) In general. Except as 
provided in section 691 (relating to income in respect of a decedent), 
no gain shall be recognized under section 1252(a)(1) upon a transfer at 
death. For purposes of section 1252 and this paragraph, the term 
transfer at death shall have the same meaning as in paragraph (b) of 
Sec. 1.1245-4 and, with respect to the application of this paragraph, 
principles illustrated by the examples of paragraph (b)(2) of Sec. 
1.1245-4 shall apply.
    (2) Treatment of farm land in hands of transferee. If as of the date 
a person acquires farm land from a decedent such person's basis is 
determined, by reason of the application of section 1014(a), solely by 
reference to the fair market value of the property on the date of the 
decedent's death or on the applicable date provided in section 2032 
(relating to alternative valuation date), then on such date the 
aggregate of the sections 175 and 182 deductions allowed with respect to 
the farm land in the hands of such transferee is zero.
    (c) Limitation for certain tax-free transactions--(1) Limitation on 
amount of gain. Upon a transfer of farm land described in subparagraph 
(2) of this paragraph, the amount of gain recognized as ordinary income 
under section 1252(a)(1) shall not exceed an amount equal to the excess 
(if any) of (i) the amount of gain recognized to the transferor on the 
transfer (determined without regard to section 1252) over (ii) the 
amount (if any) of gain recognized as ordinary income under section 
1251(c)(1). For purposes of this subparagraph, the principles of 
paragraph (c)(1) of Sec. 1.1245-4 shall apply. Thus, in the case of a 
transfer of farm land and property other than farm land in one 
transaction, the amount realized from the disposition of the farm land 
(as determined in a manner consistent with the principles of paragraph 
(a)(5) of Sec. 1.1245-1) shall be deemed to consist of that portion of 
the fair market value of each property acquired which bears the same 
ratio to the fair market value of such acquired property as the amount 
realized from the disposition of the farm land bears to the total amount 
realized. The preceding sentence shall be applied solely for purposes of 
computing the portion of the total gain (determined without regard to 
section 1252) which is eligible to be recognized as ordinary income 
under section 1252(a)(1). The provisions of this paragraph do not apply 
to a disposition of property to an organization (other than a 
cooperative described in section 521) which is exempt from the tax 
imposed by Chapter 1 of the Code.
    (2) Transfers covered. The transfers referred to in subparagraph (1) 
of this paragraph are transfers of farm land in which the basis of such 
property in the hands of the transferee is determined by reference to 
its basis in the hands of the transferor by reason of the application of 
any of the following provisions:
    (i) Section 332 (relating to distributions in complete liquidation 
of an 80-percent-or-more controlled subsidiary corporation). For 
application of subparagraph (1) of this paragraph to such a complete 
liquidation, the principles of paragraph (c)(3) of Sec. 1.1245-4 shall 
apply. Thus, for example, the provisions of subparagraph (1) of this 
paragraph do not apply to a liquidating distribution of farm land by an 
80-percent-or-more controlled subsidiary to its parent if the parent's 
basis for the property is determined, under section

[[Page 487]]

334(b)(2), by reference to its basis for the stock of the subsidiary.
    (ii) Section 351 (relating to transfer to a corporation controlled 
by transferor).
    (iii) Section 361 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 371(a) (relating to exchanges pursuant to certain 
receivership and bankruptcy proceedings).
    (v) Section 374(a) (relating to exchanges pursuant to certain 
railroad reorganizations).
    (vi) Section 721 (relating to transfers to a partnership in exchange 
for a partnership interest). See paragraph (e) of this section.
    (vii) Section 731 (relating to distributions by a partnership to a 
partner). For special carryover of basis rule, see paragraph (e) of this 
section.
    (3) Treatment of farm land in the hands of tranferee. See paragraph 
(f) of this section for treatment of the transferee in the case of a 
disposition to which this paragraph applies.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On January 4, 1975, A, an individual calendar year 
taxpayer, owns a parcel of farm land, which he acquired on March 25, 
1970, having an adjusted basis of $15,000 and a fair market value of 
$40,000. On that date he transfers the parcel to corporation M in 
exchange for stock in the corporation worth $40,000 in a transaction 
qualifying under section 351. On the date of such transfer, the 
aggregate of the deductions allowed under sections 175 and 182 with 
respect to the land is $18,000. Without regard to section 1252, A would 
recognize no gain under section 351 upon the transfer and M's basis for 
the land would be determined under section 362(a) by reference to its 
basis in the hands of A. Thus, as a result of the disposition, no gain 
is recognized as ordinary income under section 1251(c)(1) or section 
1252(a)(1) by A since the amount of gain recognized under such sections 
is limited to the amount of gain which is recognized under section 351 
(determined without regard to sections 1251 and 1252). See paragraph 
(c)(1) of Sec. 1.1251-4 and subparagraph (1) of this paragraph. For 
treatment of the farm land in the hands of B, see paragraph (f)(1) of 
this section. For effect of the transfer on the excess deductions 
account of A and of B, see paragraph (e)(1) of Sec. 1.1251-2.
    Example 2. Assume the same facts in example (1), except that A 
transferred the land to M for stock in the corporation worth $32,000 and 
$8,000 cash. The gain realized is $25,000 (amount realized, $40,000, 
minus adjusted basis, $15,000). Without regard to section 1252, A would 
recognize $8,000 of gain under section 351(b). Assume further that no 
gain is recognized as ordinary income under section 1251(c)(1). 
Therefore, since the applicable percentage, 100 percent, of the 
aggregate of the deductions allowed under sections 175 and 182, $18,000, 
is lower than the gain realized, $25,000, the amount of gain to be 
recognized as ordinary income under section 1252(a)(1) would be $18,000 
if the provisions of subparagraph (1) of this paragraph do not apply. 
Since under section 351(b) gain in the amount of $8,000 would be 
recognized to the transferor without regard to section 1252, the 
limitation provided in subparagraph (1) of this paragraph limits the 
gain taken into account by A under section 1252(a)(1) to $8,000.
    Example 3. Assume the same facts as in example (2), except that 
$5,000 of gain is recognized as ordinary income under section 
1251(c)(1). The amount of gain recognized as ordinary income under 
section 1252(a)(1) is $3,000 computed as follows:

(1) Amount of gain under section 1252(a)(1) (determined
 without regard to subparagraph (1) of this paragraph):
    (a) Aggregate of deductions allowed under sections 175       $18,000
     and 182.................................................
    (b) Minus: Gain recognized as ordinary income under           $5,000
     section 1251(c)(1)......................................
                                                              ----------
    (c) Difference...........................................    $13,000
    (d) Multiply: Applicable percentage for property disposed       100%
     of within the fifth year after it was acquired..........
                                                              ----------
    (e) Amount in paragraph (a)(1)(i)(a) of Sec.  1.1252-1..    $13,000
    (f) Gain realized (amount realized $40,000, less adjusted    $25,000
     basis, $15,000).........................................
    (g) Minus: Amount in line (b)............................     $5,000
                                                              ----------
    (h) Amount in paragraph (a)(1)(i)(b) of Sec.  1.1252-1..    $20,000
                                                              ----------
    (i) Lower of line (e) or (h).............................    $13,000
                                                              ==========
(2) Limitation in subparagraph (1) of this paragraph:
    (a) Gain recognized (determined without regard to section     $8,000
     1252)...................................................
    (b) Minus: Gain recognized as ordinary income under           $5,000
     section 1251(c)(1)......................................
                                                              ----------
    (c) Difference...........................................     $3,000
                                                              ==========
(3) Lower of line (1)(i) or line (2)(c)......................     $3,000
                                                              ==========
 


Thus, the entire gain recognized under section 351(b) (determined 
without regard to sections 1251 and 1252), $8,000, is recognized as 
ordinary income since that amount is equal to the sum of the gain 
recognized as ordinary income under section 1251(c)(1), $5,000, and 
under section 1252(a)(1), $3,000.

    (d) Limitation for like kind exchanges and involuntary conversions--
(1) General

[[Page 488]]

rule. If farm land is disposed of and gain (determined without regard to 
section 1252) is not recognized in whole or in part under section 1031 
(relating to like kind exchanges) or section 1033 (relating to 
involuntary conversions), then the amount of gain recognized as ordinary 
income by the transferor under section 1252(a)(1) shall not exceed the 
sum of:
    (i) The excess (if any) of (a) the amount of gain recognized on such 
disposition (determined without regard to section 1252) over (b) the 
amount (if any) of gain recognized as ordinary income under section 
1251(c)(1), plus
    (ii) The fair market value of property acquired which is not farm 
land and which is not taken into account under subdivision (i) of this 
subparagraph (that is, the fair market value of property other than farm 
land acquired which is qualifying property under section 1031 or 1033, 
as the case may be).
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples:

    Example 1. (i) Assume the same facts as in example (2)(ii) of 
paragraph (d)(3) of Sec. 1.1251-4. Assume further that the aggregate of 
the amount of sections 175 and 182 deductions allowable is equal to the 
amount allowed. Under paragraph (a)(1) of Sec. 1.1252-1, $18,000 would 
be recognized as ordinary income under section 1252(a)(1) (determined 
without regard to subparagraph (1) of this paragraph), computed as 
follows:

(1) Aggregate of deductions allowed under sections 175 and       $18,000
 182.........................................................
(2) Minus: Gain recognized as ordinary income under section            0
 1251(c)(1)..................................................
                                                              ----------
(3) Difference...............................................    $18,000
(4) Multiply: Applicable percentage for property disposed of        100%
 within the fifth year after it was acquired.................
(5) Amount in paragraph (a)(1)(i)(a) of Sec.  1.1252-1......    $18,000
                                                              ==========
(6) Gain realized (amount realized, $67,500, less adjusted       $19,500
 basis, $48,000).............................................
(7) Minus: Amount in line (2)................................          0
                                                              ----------
(8) Amount in paragraph (a)(1)(i)(b) of Sec.  1.1252-1......    $19,500
                                                              ==========
(9) Lower of line (5) or line (8)............................    $18,000
                                                              ==========
 

    (ii) Although no gain was recognized under section 1251(c)(1) and 
the stock purchased by A for $67,500 is farm recapture property for 
purposes of section 1251, it is not farm land for purposes of section 
1252. Nevertheless, although no gain would be recognized under sections 
1033(a)(3) and 1251(c)(1) (determined without regard to section 1252), 
the limitation under subparagraph (1) of this paragraph is $67,500 (that 
is, the fair market value of property other than farm land acquired 
which is qualifying property under section 1033). Since the amount of 
gain which would be recognized as ordinary income under section 
1252(a)(1) (determined without regard to subparagraph (1) of this 
paragraph), $18,000 (as computed in subdivision (i) of this example), is 
lower than the amount of such limitation, $67,500, accordingly, only 
$18,000 is recognized as ordinary income under section 1252(a)(1). For 
determination of basis of the stock acquired, see subparagraph (5) of 
this paragraph.
    Example 2. (i) Assume the same facts as in example (1) of this 
subparagraph, except that the cost of the stock was $62,500 (its fair 
market value). Thus, the amount of gain recognized on the disposition 
under section 1033(a)(3) (determined without regard to sections 1251 and 
1252) is $5,000, that is, $67,500 minus $62,500. Assume further that 
$5,000 (the amount of gain recognized under section 1033(a)(3) (so 
determined)) was recognized as ordinary income under section 1251(c)(1). 
The amount of gain recognized as ordinary income under section 
1252(a)(1) is $13,000, computed as follows:

(1) Amount of gain under section 1252(a)(1) (determined
 without regard to subparagraph (1) of this paragraph):
    (a) Aggregate of deductions allowed under sections 175       $18,000
     and 182.................................................
    (b) Minus: Gain recognized as ordinary income under           $5,000
     section 1251(c)(1)......................................
                                                              ----------
    (c) Difference...........................................    $13,000
    (d) Multiply: Applicable percentage for property disposed       100%
     of within the fifth year after it was acquired..........
                                                              ----------
    (e) Amount in paragraph (a)(1)(i)(a) of Sec.  1.1252-1..    $13,000
                                                              ----------
    (f) Gain realized (amount realized, $67,500 (less            $19,500
     adjusted basis, $48,000))...............................
    (g) Minus: Amount in line (b)............................     $5,000
                                                              ----------
    (h) Amount in paragraph (a)(1)(i)(b) of Sec.  1.1252-1..    $14,500
                                                              ==========
    (i) Lower of line (e) or (h).............................    $13,000
                                                              ==========
(2) Limitation in subparagraph (1) of this paragraph:
    (a) Gain recognized (determined without regard to section     $5,000
     1252)...................................................
    (b) Minus: Gain recognized as ordinary income under           $5,000
     section 1251(c)(1)......................................
                                                              ----------
    (c) Difference...........................................          0
    (d) Plus; The fair market value of property other than       $62,500
     farm land acquired which is qualifying property under
     section 1033............................................
                                                              ----------
    (e) Sum of lines (c) and (d).............................    $62,500
                                                              ==========
(3) Lower of line (1)(i) or line (2)(e)......................    $13,000
                                                              ==========
 


[[Page 489]]

    (3) Application to single disposition of farm land and property of 
different class. (i) If upon a sale of farm land gain would be 
recognized under section 1252(a)(1), and if such land together with 
property of a different class or classes is disposed of in one 
transaction in which gain is not recognized in whole or in part under 
section 1031 or 1033 (without regard to section 1252(a)(1)), then rules 
consistent with the principles of paragraph (d)(6) of Sec. 1.1250-3 
(relating to gain from disposition of certain depreciable realty) shall 
apply for purposes of allocating the amount realized to each of the 
classes of property disposed of and for purposes of determining what 
property the amount realized for each class consists of.
    (ii) For purposes of this subparagraph, the classes of property 
other than farm recapture property (as defined in section 1251(e) and 
paragraph (a)(1) of Sec. 1.1251-3) are (a) section 1245 property, (b) 
section 1250 property, and (c) other property.
    (iii) For purposes of this subparagraph, the classes of farm 
recapture property are (a) land, (b) section 1245 property, and (c) 
other property.
    (4) Treatment of farm land received in like kind exchange or 
involuntary conversion. The aggregate of the deductions allowed under 
sections 175 and 182 in respect of land acquired in a transaction 
described in subparagraph (1) of this paragraph shall include the 
aggregate of the deductions allowed under sections 175 and 182 in 
respect of the land transferred or converted (as the cr sections 175 and 
182 in respect of land acquired in a transaction described in 
subparagraph (1) of this paragraph shall include the aggregate of the 
deductions allowed under sections 175 and 182 in respect of the land 
transferred or converted (as the case may be) in such transaction minus 
the amount of gain taken into account under sections 1251(c) and 1252(a) 
with respect to the land transferred or converted. Upon a subsequent 
disposition of such land, the holding period shall include the holding 
period with respect to the land transferred or converted.
    (5) Basis adjustment. In order to reflect gain recognized under 
section 1252(a)(1) if property is acquired in a transaction to which 
subparagraph (1) of this paragraph applies, its basis shall be 
determined under the rules of section 1031(d) or 1033(c).
    (e) Partnerships. [Reserved]
    (f) Treatment of farm land received by a transferee in a disposition 
by gift and certain tax-free transactions--(1) General rule. If farm 
land is disposed of in a transaction which is either a gift to which 
paragraph (a)(1) of this section applies, or a completely tax-free 
transfer to which paragraph (c)(1) of this section applies, then for 
purposes of section 1252:
    (i) The aggregate of the deductions allowed under sections 175 and 
182 in respect of the land in the hands of the tranferee immediately 
after the disposition shall be an amount equal to the amount of such 
aggregate in the hands of the transferor immediately before the 
disposition, and
    (ii) For purposes of applying section 1252 upon a subsequent 
disposition by the transferee (including a computation of the applicable 
percentage), the holding period of the transferee shall include the 
holding period of the transferor.
    (2) Certain partially tax-free transfers. If farm land is disposed 
of in a transaction which either is in part a sale or exchange and in 
part a gift to which paragraph (a)(2)of this section applies, or is a 
partially tax-free transfer to which paragraph (c)(1) of this section 
applies, then for purposes of section 1252 the amount determined under 
subparagraph (1)(i) of this paragraph shallbe reduced by the amount of 
gain taken into account under sections 1251(c) and 1252(a) by the 
transferor upon the disposition. Upon a subsequent disposition by the 
transferee, the holding period for purposes of computing the amount 
under section 1252(a)(1)(A), with respect to the 175 and 182 deductions 
taken by the transferor, shall include the holding period of the 
transferor. With respect to the 1975 and 182 deductions taken by the 
transferee, the holding period shall not include the holding period of 
the transferor.
    (3) Examples. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:


[[Page 490]]


    Example 1. Assume the same facts as in example (1) of paragraph 
(a)(4) of this section. Therefore, on the date B receives the farm land 
in the gift transaction, under subparagraph (1) of this paragraph the 
aggregate of the deductions allowed under sections 175 and 182 in 
respect of the farm land in the hands of B is the amount in the hands of 
A, $24,000, and for purposes of applying section 1252 upon a subsequent 
disposition by B (including a computation of the applicable percentage) 
the holding period of B includes the holding period of A.
    Example 2. Assume the same facts as in example (2) of paragraph 
(a)(4) of this section. Under subparagraph (2) of this paragraph, the 
aggregate of the sections 175 and 182 deductions which pass over to B 
for purposes of section 1252 is $14,000 ($24,000 deductions allowable 
under sections 175 and 182 minus $3,000 gain recognized under section 
1251(c) in accordance with example (2) of paragraph (a)(4) of Sec. 
1.1251-4, minus $7,000 gain recognized under section 1252(a) in 
acordance with example (2) of paragraph (a)(4) of this section), B's 
holding period includes the holding period of A (i.e., the period back 
to January 15, 1971) with respect to A's deductions.

    (g) Disposition of farm land not specifically covered. If farm land 
is disposed of in a transaction not specifically covered under Sec. 
1.1252-1 and this section, then the principles of section 1245 shall 
apply.

[T.D. 7418, 41 FR 18832, May 7, 1976; 41 FR 23669, June 11, 1976]



Sec. 1.1254-0  Table of contents for section 1254 recapture rules.

    This section lists the major captions contained in Sec. Sec. 
1.1254-1 through 1.1254-6.

 Sec. 1.1254-1 Treatment of gain from disposition of natural resource 
                           recapture property.

    (a) In general.
    (b) Definitions.
    (1) Section 1254 costs.
    (2) Natural resource recapture property.
    (3) Disposition.
    (c) Disposition of a portion of natural resource recapture property.
    (1) Disposition of a portion (other than an undivided interest) of 
natural resource recapture property.
    (2) Disposition of an undivided interest.
    (3) Alternative allocation rule.
    (d) Installment method.

               Sec. 1.1254-2 Exceptions and limitations.

    (a) Exception for gifts and section 1041 transfers.
    (1) General rule.
    (2) Part gift transactions.
    (b) Exception for transfers at death.
    (c) Limitation for certain tax-free transactions.
    (1) General rule.
    (2) Special rule for dispositions to certain tax exempt 
organizations.
    (3) Transfers described.
    (4) Special rules for section 332 transfers.
    (d) Limitation for like kind exchanges and involuntary conversions.
    (1) General rule.
    (2) Disposition and acquisition of both natural resource recapture 
property and other property.

      Sec. 1.1254-3 Section 1254 costs immediately after certain 
                              acquisitions.

    (a) Transactions in which basis is determined by reference to cost 
or fair market value of property transferred.
    (1) Basis determined under section 1012.
    (2) Basis determined under section 301(d), 334(a), or 358(a)(2).
    (3) Basis determined solely under former section 334(b)(2) or former 
section 334(c).
    (4) Basis determined by reason of the application of section 
1014(a).
    (b) Gifts and certain tax-free transactions.
    (1) General rule.
    (2) Transactions covered.
    (c) Certain transfers at death.
    (d) Property received in a like kind exchange or involuntary 
conversion.
    (1) General rule.
    (2) Allocation of section 1254 costs among multiple natural resource 
recapture property acquired.
    (e) Property transferred in cases to which section 1071 or 1081(b) 
applies.

 Sec. 1.1254-4 Special rules for S corporations and their shareholders.

    (a) In general.
    (b) Determination of gain treated as ordinary income under section 
1254 upon a disposition of natural resource recapture property by an S 
corporation.
    (1) General rule.
    (2) Examples.
    (c) Character of gain recognized by a shareholder upon a sale or 
exchange of S corporation stock.
    (1) General rule.
    (2) Exceptions.
    (3) Examples.
    (d) Section 1254 costs of a shareholder.
    (e) Section 1254 costs of an acquiring shareholder after certain 
acquisitions.
    (1) Basis determined under section 1012.
    (2) Basis determined under section 1014(a).
    (3) Basis determined under section 1014(b)(9).
    (4) Gifts and section 1041 transfers.
    (f) Special rules for a corporation that was formerly an S 
corporation or formerly a C corporation.
    (1) Section 1254 costs of an S corporation that was formerly a C 
corporation.

[[Page 491]]

    (2) Examples.
    (3) Section 1254 costs of a C corporation that was formerly an S 
corporation.
    (g) Determination of a shareholder's section 1254 costs upon certain 
stock transactions
    (1) Issuance of stock.
    (2) Natural resource recapture property acquired in exchange for 
stock.
    (3) Treatment of nonvested stock.
    (4) Exception.
    (5) Aggregate of S corporation shareholders' section 1254 costs with 
respect to natural resource recapture property held by the S corporation
    (6) Examples.

    Sec. 1.1254-5 Special rules for partnerships and their partners.

    (a) In general.
    (b) Determination of gain treated as ordinary income under section 
1254 upon the disposition of natural resource recapture property by a 
partnership.
    (1) General rule.
    (2) Exception to partner level recapture in the case of abusive 
allocations.
    (3) Examples.
    (c) Section 1254 costs of a partner.
    (1) General rule.
    (2) Section 1254 costs of a transferee partner after certain 
acquisitions.
    (d) Property distributed to a partner.
    (1) In general.
    (2) Aggregate of partners' section 1254 costs with respect to 
natural resource recapture property held by a partnership.

              Sec. 1.1254-6 Effective date of regulations.

[T.D. 8586, 60 FR 2501, Jan. 10, 1995, as amended by T.D. 8684, 61 FR 
53063, Oct. 10, 1996]



Sec. 1.1254-1  Treatment of gain from disposition of natural resource 
recapture property.

    (a) In general. Upon any disposition of section 1254 property or any 
disposition after December 31, 1975 of oil, gas, or geothermal property, 
gain is treated as ordinary income in an amount equal to the lesser of 
the amount of the section 1254 costs (as defined in paragraph (b)(1) of 
this section) with respect to the property, or the amount, if any, by 
which the amount realized on the sale, exchange, or involuntary 
conversion, or the fair market value of the property on any other 
disposition, exceeds the adjusted basis of the property. However, any 
amount treated as ordinary income under the preceding sentence is not 
included in the taxpayer's gross income from the property for purposes 
of section 613. Generally, the lesser of the amounts described in this 
paragraph (a) is treated as ordinary income even though, in the absence 
of section 1254(a), no gain would be recognized upon the disposition 
under any other provision of the Internal Revenue Code. For the 
definition of the term section 1254 costs, see paragraph (b)(1) of this 
section. For the definition of the terms section 1254 property, oil, 
gas, or geothermal property, and natural resource recapture property, 
see paragraph (b)(2) of this section. For rules relating to the 
disposition of natural resource recapture property, see paragraphs 
(b)(3), (c), and (d) of this section. For exceptions and limitations to 
the application of section 1254(a), see Sec. 1.1254-2.
    (b) Definitions--(1) Section 1254 costs--(i) Property placed in 
service after December 31, 1986. With respect to any property placed in 
service by the taxpayer after December 31, 1986, the term section 1254 
costs means--
    (A) The aggregate amount of expenditures that have been deducted by 
the taxpayer or any person under section 263, 616, or 617 with respect 
to such property and that, but for the deduction, would have been 
included in the adjusted basis of the property or in the adjusted basis 
of certain depreciable property associated with the property; and
    (B) The deductions for depletion under section 611 that reduced the 
adjusted basis of the property.
    (ii) Property placed in service before January 1, 1987. With respect 
to any property placed in service by the taxpayer before January 1, 
1987, the term section 1254 costs means--
    (A) The aggregate amount of costs paid or incurred after December 
31, 1975, with respect to such property, that have been deducted as 
intangible drilling and development costs under section 263(c) by the 
taxpayer or any other person (except that section 1254 costs do not 
include costs incurred with respect to geothermal wells commenced before 
October 1, 1978) and that, but for the deduction, would be reflected in 
the adjusted basis of the property or in the adjusted basis of certain 
depreciable property associated with the property; reduced by

[[Page 492]]

    (B) The amount (if any) by which the deduction for depletion allowed 
under section 611 that was computed either under section 612 or sections 
613 and 613A, with respect to the property, would have been increased if 
the costs (paid or incurred after December 31, 1975) had been charged to 
capital account rather than deducted.
    (iii) Deductions under section 59 and section 291. Amounts 
capitalized pursuant to an election under section 59(e) or pursuant to 
section 291(b) are treated as section 1254 costs in the year in which an 
amortization deduction is claimed under section 59(e)(1) or section 
291(b)(2).
    (iv) Suspended deductions. If a deduction of a section 1254 cost has 
been suspended as of the date of disposition of section 1254 property, 
the deduction is not treated as a section 1254 cost if it is included in 
basis for determining gain or loss on the disposition. On the other 
hand, if the deduction will eventually be claimed, it is a section 1254 
cost as of the date of disposition. For example, a deduction suspended 
pursuant to the 65 percent of taxable income limitation of section 
613A(d)(1) may either be included in basis upon disposition of the 
property or may be deducted in a year after the year of disposition. See 
Sec. 1.613A-4(a)(1). If it is included in the basis then it is not a 
section 1254 cost, but if it is deductible in a later year it is a 
section 1254 cost as of the date of the disposition.
    (v) Previously recaptured amounts. If an amount has been previously 
treated as ordinary income pursuant to section 1254, it is not a section 
1254 cost.
    (vi) Nonproductive wells. The aggregate amount of section 1254 costs 
paid or incurred on any property includes the amount of intangible 
drilling and development costs incurred on nonproductive wells, but only 
to the extent that the taxpayer recognizes income on the foreclosure of 
a nonrecourse debt the proceeds from which were used to finance the 
section 1254 costs with respect to the property. For this purpose, the 
term nonproductive well means a well that does not produce oil or gas in 
commercial quantities, including a well that is drilled for the purpose 
of ascertaining the existence, location, or extent of an oil or gas 
reservoir (e.g., a delineation well). The term nonproductive well does 
not include an injection well (other than an injection well drilled as 
part of a project that does not result in production in commercial 
quantities).
    (vii) Calculation of amount described in paragraph (b)(1)(ii)(B) of 
this section (hypothetical depletion offset)--(A) In general. In 
calculating the amount described in paragraph (b)(1)(ii)(B) of this 
section, the taxpayer shall apply the following rules. The taxpayer may 
use the 65-percent-of-taxable-income limitation of section 613A(d)(1). 
If the taxpayer uses that limitation, the taxpayer is not required to 
recalculate the effect of such limitation with respect to any property 
not disposed of. That is, the taxpayer may assume that the hypothetical 
capitalization of intangible drilling and development costs with respect 
to any property disposed of does not affect the allowable depletion with 
respect to property retained by the taxpayer. Any intangible drilling 
and development costs that, if they had not been treated as expenses 
under section 263(c), would have properly been capitalized under Sec. 
1.612-4(b)(2) (relating to items recoverable through depreciation under 
section 167 or cost recovery under section 168) are treated as costs 
described in Sec. 1.612-4(b)(1) (relating to items recoverable through 
depletion). The increase in depletion attributable to the capitalization 
of intangible drilling and development costs is computed by subtracting 
the amount of cost or percentage depletion actually claimed from the 
amount of cost or percentage depletion that would have been allowable if 
intangible drilling and development costs had been capitalized. If the 
remainder is zero or less than zero, the entire amount of intangible 
drilling and development costs attributable to the property is 
recapturable.
    (B) Example. The following example illustrates the principles of 
paragraph (b)(1)(vii)(A).

    Example: Hypothetical depletion offset. In 1976, A purchased 
undeveloped property for $10,000. During 1977, A incurred $200,000 of 
productive well intangible drilling and development costs with respect 
to the property. A deducted the intangible drilling and development 
costs as expenses under section 263(c).

[[Page 493]]

Estimated reserves of 150,000 barrels of recoverable oil were discovered 
in 1977 and production began in 1978. In 1978, A produced and sold 
30,000 barrels of oil at $8 per barrel, resulting in $240,000 of gross 
income. A had no other oil or gas production in 1978. A claimed a 
percentage depletion deduction of $52,800 (i.e., 22% of $240,000 gross 
income from the property). If A had capitalized the intangible drilling 
and development costs, assume that $200,000 of the costs would have been 
allocated to the depletable property and none to depreciable property. 
A's cost depletion deduction if the intangible drilling and development 
costs had been capitalized would have been $42,000 (i.e., (($200,000 
intangible drilling and development costs + $10,000 acquisition costs) x 
30,000 barrels of production)/ 150,000 barrels of estimated recoverable 
reserves). Since this amount is less than A's depletion deduction of 
$52,800 (percentage depletion), no reduction is made to the amount of 
intangible drilling and development costs ($200,000). On January 1, 
1979, A sold the oil property to B for $360,000 and calculated section 
1254 recapture without reference to the 65-percent-of-taxable-income 
limitation. A's gain on the sale is the entire $360,000, because A's 
basis in the property at the beginning of 1979 is zero (i.e., $10,000 
cost less $52,800 depletion deduction for 1978). Since the section 1254 
costs ($200,000) are less than A's gain on the sale, $200,000 is treated 
as ordinary income under section 1254(a). The remaining amount of A's 
gain ($160,000) is not subject to section 1254(a).

    (2) Natural resource recapture property--(i) In general. The term 
natural resource recapture property means section 1254 property or oil, 
gas, or geothermal property as those terms are defined in this section.
    (ii) Section 1254 property. The term section 1254 property means any 
property (within the meaning of section 614) that is placed in service 
by the taxpayer after December 31, 1986, if any expenditures described 
in paragraph (b)(1)(i)(A) of this section (relating to costs under 
section 263, 616, or 617) are properly chargeable to such property, or 
if the adjusted basis of such property includes adjustments for 
deductions for depletion under section 611.
    (iii) Oil, gas, or geothermal property. The term oil, gas, or 
geothermal property means any property (within the meaning of section 
614) that was placed in service by the taxpayer before January 1, 1987, 
if any expenditures described in paragraph (b)(1)(ii)(A) of this section 
are properly chargeable to such property.
    (iv) Property to which section 1254 costs are properly chargeable. 
(A) An expenditure is properly chargeable to property if--
    (1) The property is an operating mineral interest with respect to 
which the expenditure has been deducted;
    (2) The property is a nonoperating mineral interest (e.g., a net 
profits interest or an overriding royalty interest) burdening an 
operating mineral interest if the nonoperating mineral interest is 
carved out of an operating mineral interest described in paragraph 
(b)(2)(iv)(A)(1) of this section;
    (3) The property is a nonoperating mineral interest retained by a 
lessor or sublessor if such lessor or sublessor held, prior to the lease 
or sublease, an operating mineral interest described in paragraph 
(b)(2)(iv)(A)(1) of this section; or
    (4) The property is an operating or a nonoperating mineral interest 
held by a taxpayer if a party related to the taxpayer (within the 
meaning of section 267(b) or section 707(b)) held an operating mineral 
interest (described in paragraph (b)(2)(iv)(A)(1) of this section) in 
the same tract or parcel of land that terminated (in whole or in part) 
without being disposed of (e.g., a working interest which terminated 
after a specified period of time or a given amount of production), but 
only if there exists between the related parties an arrangement or plan 
to avoid recapture under section 1254. In such a case, the taxpayer's 
section 1254 costs with respect to the property include those of the 
related party.
    (B) Example. The following example illustrates the provisions of 
paragraph (2)(iv)(A)(4) of this section:

    Example: Arrangement or plan to avoid recapture. C, an individual, 
owns 100% of the stock of both X Co. and Y Co. On January 1, 1998, X Co. 
enters into a standard oil and gas lease. X Co. immediately assigns to Y 
Co. 1% of the working interest for one year, and 99% of the working 
interest thereafter. In 1998, X Co. and Y Co. expend $300 in intangible 
drilling and development costs developing the tract, of which $297 are 
deducted by X Co. under section 263(c). On January 1, 1999, Y Co. sells 
its 99% share of the working interest to an unrelated person. Based on 
all the facts and circumstances, the arrangement between X Co. and Y Co. 
is part of a plan or arrangement to avoid recapture under section 1254. 
Therefore, Y Co. must include in

[[Page 494]]

its section 1254 costs the $297 of intangible drilling and development 
costs deducted by X Co.

    (v) Property the basis of which includes adjustments for depletion 
deductions. The adjusted basis of property includes adjustments for 
depletion under section 611 if--
    (A) The basis of the property has been reduced by reason of 
depletion deductions; or
    (B) The property has been carved out of or is a portion of property 
the basis of which has been reduced by reason of depletion deductions.
    (vi) Property held by a transferee. Property held by a transferee is 
natural resource recapture property if the property was natural resource 
recapture property in the hands of the transferor and the transferee's 
basis in the property is determined with reference to the transferor's 
basis in the property (e.g., a gift) or is determined under section 732.
    (vii) Property held by a transferor. Property held by a transferor 
of natural resource recapture property is natural resource recapture 
property if the transferor's basis in the property received is 
determined with reference to the transferor's basis in the property 
transferred by the transferor (e.g., a like kind exchange). For purposes 
of this paragraph (b)(2), property described in this paragraph 
(b)(2)(vii) is treated as placed in service at the time the property 
transferred by the transferor was placed in service by the transferor.
    (3) Disposition--(i) General rule. The term disposition has the same 
meaning as in section 1245, relating to gain from dispositions of 
certain depreciable property.
    (ii) Exceptions. The term disposition does not include--
    (A) Any transaction that is merely a financing device, such as a 
mortgage or a production payment that is treated as a loan under section 
636 and the regulations thereunder;
    (B) Any abandonment (except that an abandonment is a disposition to 
the extent the taxpayer recognizes income on the foreclosure of a 
nonrecourse debt);
    (C) Any creation of a lease or sublease of natural resource 
recapture property;
    (D) Any termination or election of the status of an S corporation;
    (E) Any unitization or pooling arrangement;
    (F) Any expiration or reversion of an operating mineral interest 
that expires or reverts by its own terms, in whole or in part; or
    (G) Any conversion of an overriding royalty interest that, at the 
option of the grantor or successor in interest, converts to an operating 
mineral interest after a certain amount of production.
    (iii) Special rule for carrying arrangements. In a carrying 
arrangement, liability for section 1254 costs attributable to the entire 
operating mineral interest held by the carrying party prior to reversion 
or conversion remains attributable to the reduced operating mineral 
interest retained by the carrying party after a portion of the operating 
mineral interest has reverted to the carried party or after the 
conversion of an overriding royalty interest that, at the option of the 
grantor or successor in interest, converts to an operating mineral 
interest after a certain amount of production.
    (c) Disposition of a portion of natural resource recapture 
property--(1) Disposition of a portion (other than an undivided 
interest) of natural resource recapture property--(i) Natural resource 
recapture property subject to the general rules of Sec. 1.1254-1. For 
purposes of section 1254(a)(1) and paragraph (a) of this section, except 
as provided in paragraphs (c) (1)(ii) and (3) of this section, in the 
case of the disposition of a portion (that is not an undivided interest) 
of natural resource recapture property, the entire amount of the section 
1254 costs with respect to the natural resource recapture property is 
treated as allocable to that portion of the property to the extent of 
the amount of gain to which section 1254(a)(1) applies. If the amount of 
the gain to which section 1254(a)(1) applies is less than the amount of 
the section 1254 costs with respect to the natural resource recapture 
property, the balance of the section 1254 costs remaining after 
allocation to the portion of the property that was disposed of remains 
subject to recapture by the taxpayer under section

[[Page 495]]

1254(a)(1) upon disposition of the remaining portion of the property. 
For example, assume that A owns an 80-acre tract of land with respect to 
which A has deducted intangible drilling and development costs under 
section 263(c). If A sells the north 40 acres, the entire amount of the 
section 1254 costs with respect to the 80-acre tract is treated as 
allocable to the 40-acre portion sold (to the extent of the amount of 
gain to which section 1254(a)(1) applies).
    (ii) Natural resource recapture property subject to the exceptions 
and limitations of Sec. 1.1254-2. For purposes of section 1254(a)(1) 
and paragraph (a) of this section, except as provided in paragraph 
(b)(3) of this section, in the case of the disposition of a portion 
(that is not an undivided interest) of natural resource recapture 
property to which section 1254(a)(1) does not apply by reason of the 
application of Sec. 1.1254-2 (certain nonrecognition transactions), the 
following rule for allocation of costs applies. An amount of the section 
1254 costs that bears the same ratio to the entire amount of such costs 
with respect to the entire natural resource recapture property as the 
value of the property transferred bears to the value of the entire 
natural resource recapture property is treated as allocable to the 
portion of the natural resource recapture property transferred. The 
balance of the section 1254 costs remaining after allocation to that 
portion of the transferred property remains subject to recapture by the 
taxpayer under section 1254(a)(1) upon disposition of the remaining 
portion of the property. For example, assume that A owns an 80-acre 
tract of land with respect to which A has deducted intangible drilling 
and development costs under section 263(c). If A gives away the north 40 
acres, and if 60 percent of the value of the 80-acre tract were 
attributable to the north 40 acres given away, 60 percent of the section 
1254 costs with respect to the 80-acre tract is allocable to the north 
40 acres given away.
    (2) Disposition of an undivided interest--(i) Natural resource 
recapture property subject to the general rules of Sec. 1.1254-1. For 
purposes of section 1254(a)(1), except as provided in paragraphs 
(b)(2)(ii) and (b)(3) of this section, in the case of the disposition of 
an undivided interest in natural resource recapture property (or a 
portion thereof), a proportionate part of the section 1254 costs with 
respect to the natural resource recapture property is treated as 
allocable to the transferred undivided interest to the extent of the 
amount of gain to which section 1254(a)(1) applies. For example, assume 
that A owns an 80-acre tract of land with respect to which A has 
deducted intangible drilling and development costs under section 263(c). 
If A sells an undivided 40 percent interest in the 80-acre tract, 40 
percent of the section 1254 costs with respect to the 80-acre tract is 
allocable to the transferred 40 percent interest in the 80-acre tract. 
However, if the amount of gain recognized on the sale of the 40 percent 
undivided interest were equal to only 35 percent of the amount of 
section 1254 costs attributable to the 80-acre tract, only 35 percent of 
the section 1254 costs would be treated as attributable to the undivided 
40 percent interest. See paragraph (c)(3) of this section for an 
alternative allocation rule.
    (ii) Natural resource recapture property subject to the exceptions 
and limitations of Sec. 1.1254-2. For purposes of section 1254(a)(1) 
and paragraph (a) of this section, except as provided in paragraph 
(b)(3) of this section, in the case of a disposition of an undivided 
interest in natural resource recapture property (or a portion thereof) 
to which section 1254 (a)(1) does not apply by reason of Sec. 1.1254-2, 
a proportionate part of the section 1254 costs with respect to the 
natural resource recapture property is treated as allocable to the 
transferred undivided interest. See paragraph (c)(3) of this section for 
an alternative allocation rule.
    (3) Alternative allocation rule--(i) In general. The rules for the 
allocation of costs set forth in section 1254(a)(2) and paragraphs (c) 
(1) and (2) of this section do not apply with respect to section 1254 
costs that the taxpayer establishes to the satisfaction of the 
Commissioner do not relate to the transferred property. Except as 
provided in paragraphs (c)(3) (ii) and (iii) of this section, a taxpayer 
may satisfy this requirement only by receiving a private letter ruling 
from the Internal Revenue Service

[[Page 496]]

that the section 1254 costs do not relate to the transferred property.
    (ii) Portion of property. Upon the transfer of a portion of a 
natural resource recapture property (other than an undivided interest) 
with respect to which section 1254 costs have been incurred, a taxpayer 
may treat section 1254 costs as not relating to the transferred portion 
if the transferred portion does not include any part of any deposit with 
respect to which the costs were incurred.
    (iii) Undivided interest. Upon the transfer of an undivided interest 
in a natural resource recapture property with respect to which section 
1254 costs have been incurred, a taxpayer may treat costs as not 
relating to the transferred interest if the undivided interest is an 
undivided interest in a portion of the natural resource recapture 
property, and the portion would be eligible for the alternative 
allocation rule under paragraph (c)(3)(ii) of this section.
    (iv) Substantiation. If a taxpayer treats section 1254 costs 
incurred with respect to a natural resource recapture property as not 
relating to a transferred interest in a portion of the property, the 
taxpayer must indicate on his or her tax return that the costs do not 
relate to the transferred portion and maintain the records and 
supporting evidence that substantiate this position.
    (d) Installment method. Gain from a disposition to which section 
1254(a)(1) applies is reported on the installment method if that method 
otherwise applies under section 453 or 453A of the Internal Revenue Code 
and the regulations thereunder. The portion of each installment payment 
as reported that represents income (other than interest) is treated as 
gain to which section 1254(a)(1) applies until all of the gain (to which 
section 1254(a)(1) applies) has been reported, and the remaining portion 
(if any) of the income is then treated as gain to which section 
1254(a)(1) does not apply. For treatment of amounts as interest on 
certain deferred payments, see sections 483, 1274, and the regulations 
thereunder.

[T.D. 8586, 60 FR 2502, Jan. 10, 1995]



Sec. 1.1254-2  Exceptions and limitations.

    (a) Exception for gifts and section 1041 transfers--(1) General 
rule. No gain is recognized under section 1254(a)(1) upon a disposition 
of natural resource recapture property by a gift or by a transfer in 
which no gain or loss is recognized pursuant to section 1041 (relating 
to transfers between spouses). For purposes of this paragraph (a), the 
term gift means, except to the extent that paragraph (a)(2) of this 
section applies, a transfer of natural resource recapture property that, 
in the hands of the transferee, has a basis determined under the 
provisions of sections 1015 (a) or (d) (relating to basis of property 
acquired by gift). For rules concerning the potential reduction in the 
amount of the charitable contribution in the case of natural resource 
recapture property, see section 170(e) and Sec. 1.170A-4. See Sec. 
1.1254-3(b)(1) for determination of potential recapture of section 1254 
costs on property acquired by gift. See Sec. 1.1254-1 (c)(1)(ii) and 
(c)(2)(ii) for apportionment of section 1254 costs on a gift of a 
portion of natural resource recapture property.
    (2) Part gift transactions. If a disposition of natural resource 
recapture property is in part a sale or exchange and in part a gift, the 
gain that is treated as ordinary income pursuant to section 1254(a)(1) 
is the lower of the section 1254 costs with respect to the property or 
the excess of the amount realized upon the disposition of the property 
over the adjusted basis of the property. In the case of a transfer 
subject to section 1011(b) (relating to bargain sales to charitable 
organizations), the adjusted basis for purposes of the preceding 
sentence is the adjusted basis for determining gain or loss under 
section 1011(b).
    (b) Exception for transfers at death. Except as provided in section 
691 (relating to income in respect of a decedent), no gain is recognized 
under section 1254(a)(1) upon a transfer at death. For purposes of this 
paragraph, the term transfer at death means a transfer of natural 
resource recapture property that, in the hands of the transferee, has a 
basis determined under the provisions of section 1014(a) (relating to

[[Page 497]]

basis of property acquired from a decedent) because of the death of the 
transferor. See Sec. 1.1254-3 (a)(4) and (c) for the determination of 
potential recapture of section 1254 costs on property acquired in a 
transfer at death.
    (c) Limitation for certain tax-free transactions--(1) General rule. 
Upon a transfer of property described in paragraph (c)(3) of this 
section, the amount of gain treated as ordinary income by the transferor 
under section 1254(a)(1) may not exceed the amount of gain recognized to 
the transferor on the transfer (determined without regard to section 
1254). In the case of a transfer of both natural resource recapture 
property and property that is not natural resource recapture property in 
one transaction, the amount realized from the disposition of the natural 
resource recapture property is deemed to be equal to the amount that 
bears the same ratio to the total amount realized as the fair market 
value of the natural resource recapture property bears to the aggregate 
fair market value of all the property transferred. The preceding 
sentence is applied solely for purposes of computing the portion of the 
total gain (determined without regard to section 1254) that may be 
recognized as ordinary income under section 1254(a)(1).
    (2) Special rule for dispositions to certain tax-exempt 
organizations. Paragraph (c)(1) of this section does not apply to a 
disposition of natural resource recapture property to an organization 
(other than a cooperative described in section 521) that is exempt from 
the tax imposed by chapter I of the Internal Revenue Code. The preceding 
sentence does not apply to a disposition of natural resource recapture 
property to an organization described in section 511 (a)(2) or (b)(2) 
(relating to imposition of tax on unrelated business income of 
charitable, etc., organizations) if, immediately after the disposition, 
the organization uses the property in an unrelated trade or business as 
defined in section 513. If any property with respect to which gain is 
not recognized by reason of the exception of this paragraph (c)(2) 
ceases to be used in an unrelated trade or business of the organization 
acquiring the property, that organization is, for purposes of section 
1254, treated as having disposed of the property on the date of the 
cessation.
    (3) Transfers described. The transfers referred to in paragraph 
(c)(1) of this section are transfers of natural resource recapture 
property in which the basis of the natural resource recapture property 
in the hands of the transferee is determined by reference to its basis 
in the hands of the transferor by reason of the application of any of 
the following provisions:
    (i) Section 332 (relating to certain liquidations of subsidiaries). 
See paragraph (c)(4) of this section.
    (ii) Section 351 (relating to transfer to a corporation controlled 
by transferor).
    (iii) Section 361 (relating to exchanges pursuant to certain 
corporate reorganizations).
    (iv) Section 721 (relating to transfers to a partnership in exchange 
for a partnership interest).
    (v) Section 731 (relating to distributions by a partnership to a 
partner). For purposes of this paragraph, the basis of natural resource 
recapture property distributed by a partnership to a partner is deemed 
to be determined by reference to the adjusted basis of such property to 
the partnership.
    (4) Special rules for section 332 transfers. In the case of a 
distribution in complete liquidation of a subsidiary to which section 
332 applies, the limitation provided in this paragraph (c) is confined 
to instances in which the basis of the natural resource recapture 
property in the hands of the transferee is determined, under section 
334(b)(1), by reference to its basis in the hands of the transferor. 
Thus, for example, the limitation may apply in respect of a liquidating 
distribution of natural resource recapture property by a subsidiary 
corporation to the parent corporation, but does not apply in respect of 
a liquidating distribution of natural resource recapture property to a 
minority shareholder. This paragraph (c) does not apply to a liquidating 
distribution of natural resource recapture property by a subsidiary to 
its parent if the parent's basis for the property is determined under 
section 334(b)(2) (as in effect before enactment of the Tax Reform Act 
of 1986), by reference to its

[[Page 498]]

basis for the stock of the subsidiary. This paragraph (c) does not apply 
to a liquidating distribution under section 332 of natural resource 
recapture property by a subsidiary to its parent if gain is recognized 
and there is a corresponding increase in the parent's basis in the 
property (e.g., certain distributions to a tax-exempt or foreign 
corporation).
    (d) Limitation for like kind exchanges and involuntary conversions--
(1) General rule. If natural resource recapture property is disposed of 
and gain (determined without regard to section 1254) is not recognized 
in whole or in part under section 1031 (relating to like kind exchanges) 
or section 1033 (relating to involuntary conversions), the amount of 
gain taken into account by the transferor under section 1254(a)(1) may 
not exceed the sum of--
    (i) The amount of gain recognized on the disposition (determined 
without regard to section 1254); plus
    (ii) The fair market value of property acquired that is not natural 
resource recapture property (determined without regard to Sec. 1.1254-
1(b)(2)(vii)) and is not taken into account under paragraph (d)(1)(i) of 
this section (that is, qualifying property under section 1031 or 1033 
that is not natural resource recapture property).
    (2) Disposition and acquisition of both natural resource recapture 
property and other property. For purposes of this paragraph (d), if both 
natural resource recapture property and property that is not natural 
resource recapture property are acquired as the result of one 
disposition in which both natural resource recapture property and 
property that is not natural resource recapture property are disposed 
of--
    (i) The total amount realized upon the disposition is allocated 
between the natural resource recapture property and the property that is 
not natural resource recapture property disposed of in proportion to 
their respective fair market values;
    (ii) The amount realized upon the disposition of the natural 
resource recapture property is deemed to consist of so much of the fair 
market value of the natural resource recapture property acquired as is 
not in excess of the amount realized from the natural resource recapture 
property disposed of, and the remaining portion (if any) of the amount 
realized upon the disposition of such property is deemed to consist of 
so much of the fair market value of the property that is not natural 
resource recapture property acquired as is not in excess of the 
remaining portion; and
    (iii) The amount realized upon the disposition of the property that 
is not natural resource recapture property is deemed to consist of so 
much of the fair market value of all the property acquired which was not 
taken into account under paragraph (d)(2)(ii) of this section. Except as 
provided in section 1060 and the regulations thereunder, if a buyer and 
seller have adverse interests as to such allocation of the amount 
realized, any arm's-length agreement between the buyer and seller is 
used to establish the allocation. In the absence of such an agreement, 
the allocation is made by taking into account the appropriate facts and 
circumstances.

[T.D. 8586, 60 FR 2505, Jan. 10, 1995, as amended by T.D. 8684, 61 FR 
53063, Oct. 10, 1996]



Sec. 1.1254-3  Section 1254 costs immediately after certain acquisitions.

    (a) Transactions in which basis is determined by reference to cost 
or fair market value of property transferred--(1) Basis determined under 
section 1012. If, on the date a person acquires natural resource 
recapture property, the person's basis for the property is determined 
solely by reference to its cost (within the meaning of section 1012), 
the amount of section 1254 costs with respect to the natural resource 
recapture property in the person's hands is zero on the acquisition 
date.
    (2) Basis determined under section 301(d), 334(a), or 358(a)(2). If, 
on the date a person acquires natural resource recapture property, the 
person's basis for the property is determined solely by reason of the 
application of section 301(d) (relating to basis of property received in 
a corporate distribution), section 334(a) (relating to basis of property 
received in a liquidation in which gain or loss is recognized), or 
section 358(a)(2) (relating to basis of other property received in 
certain exchanges), the amount of the section 1254 costs with respect to 
the natural

[[Page 499]]

resource recapture property in the person's hands is zero on the 
acquisition date.
    (3) Basis determined solely under former section 334(b)(2) or former 
section 334(c). If, on the date a person acquires natural resource 
recapture property, the person's basis for the property is determined 
solely under the provisions of section 334(b)(2) (prior to amendment of 
that section by the Tax Equity and Fiscal Responsibility Act of 1982) or 
(c) (prior to repeal of that section by the Tax Reform Act of 1986) 
(relating to basis of property received in certain corporate 
liquidations), the amount of section 1254 costs with respect to the 
natural resource recapture property in the person's hands is zero on the 
acquisition date.
    (4) Basis determined by reason of the application of section 
1014(a). If, on the date a person acquires natural resource recapture 
property from a decedent, the person's basis is determined, by reason of 
the application of section 1014(a), solely by reference to the fair 
market value of the property on the date of the decedent's death or on 
the applicable date provided in section 2032 (relating to alternate 
valuation date), the amount of section 1254 costs with respect to the 
natural resource recapture property in the person's hands is zero on the 
acquisition date. See paragraph (c) of this section for the treatment of 
certain transfers at death.
    (b) Gifts and certain tax-free transactions--(1) General rule. If 
natural resource recapture property is transferred in a transaction 
described in paragraph (b)(2) of this section, the amount of section 
1254 costs with respect to the natural resource recapture property in 
the hands of the transferee immediately after the disposition is an 
amount equal to--
    (i) The amount of section 1254 costs with respect to the natural 
resource recapture property in the hands of the transferor immediately 
before the disposition (and in the case of an S corporation or 
partnership transferor, the section 1254 costs of the shareholders or 
partners with respect to the natural resource recapture property); minus
    (ii) The amount of any gain taken into account as ordinary income 
under section 1254(a)(1) by the transferor upon the disposition (and in 
the case of an S corporation or partnership transferor, any such gain 
taken into account as ordinary income by the shareholders or partners).
    (2) Transactions covered. The transactions to which paragraph (b)(1) 
of this section apply are--
    (i) A disposition that is a gift or in part a sale or exchange and 
in part a gift;
    (ii) A transaction described in section 1041(a); or
    (iii) A disposition described in Sec. 1.1254-2(c)(3) (relating to 
certain tax-free transactions).
    (c) Certain transfers at death. If natural resource recapture 
property is acquired in a transfer at death, the amount of section 1254 
costs with respect to the natural resource recapture property in the 
hands of the transferee immediately after the transfer includes the 
amount, if any, of the section 1254 costs deducted by the transferee 
before the decedent's death, to the extent that the basis of the natural 
resource recapture property (determined under section 1014(a)) is 
required to be reduced under the second sentence of section 1014(b)(9) 
(relating to adjustments to basis where the property is acquired from a 
decedent prior to death).
    (d) Property received in a like kind exchange or involuntary 
conversion--(1) General rule. If natural resource recapture property is 
disposed of in a like kind exchange under section 1031 or involuntary 
conversion under section 1033, then immediately after the disposition 
the amount of section 1254 costs with respect to any natural resource 
recapture property acquired for the property transferred is an amount 
equal to--
    (i) The amount of section 1254 costs with respect to the natural 
resource recapture property disposed of (including the section 1254 
costs of the shareholders of an S corporation or of the partners of a 
partnership with respect to the natural resource recapture property); 
minus
    (ii) The amount of any gain taken into account as ordinary income 
under section 1254(a)(1) by the transferor upon the disposition (and in 
the case of an S corporation or partnership transferor, any such gain 
taken into account

[[Page 500]]

as ordinary income by the shareholders or partners).
    (2) Allocation of section 1254 costs among multiple natural resource 
recapture properties acquired. If more than one parcel of natural 
resource recapture property is acquired at the same time from the same 
person in a transaction referred to in paragraph (d)(1) of this section, 
the total amount of section 1254 costs with respect to the parcels is 
allocated to the parcels in proportion to their respective adjusted 
bases.
    (e) Property transferred in cases to which section 1071 or 1081(b) 
applies. Rules similar to the rules of section 1245(b)(5) shall apply 
under section 1254.

[T.D. 8586, 60 FR 2506, Jan. 10, 1995, as amended by T.D. 8684, 61 FR 
53063, Oct. 10, 1996]



Sec. 1.1254-4  Special rules for S corporations and their shareholders.

    (a) In general. This section provides rules for applying the 
provisions of section 1254 to S corporations and their shareholders upon 
the disposition by an S corporation (and a corporation that was formerly 
an S corporation) of natural resource recapture property and upon the 
disposition by a shareholder of stock of an S corporation that holds 
natural resource recapture property.
    (b) Determination of gain treated as ordinary income under section 
1254 upon a disposition of natural resource recapture property by an S 
corporation--(1) General rule. Upon a disposition of natural resource 
recapture property by an S corporation, the amount of gain treated as 
ordinary income under section 1254 is determined at the shareholder 
level. Each shareholder must recognize as ordinary income under section 
1254 the lesser of--
    (i) The shareholder's section 1254 costs with respect to the 
property disposed of; or
    (ii) The shareholder's share of the amount, if any, by which the 
amount realized on the sale, exchange, or involuntary conversion, or the 
fair market value of the property upon any other disposition (including 
a distribution), exceeds the adjusted basis of the property.
    (2) Examples. The following examples illustrate the provisions of 
paragraph (b)(1) of this section:

    Example 1. Disposition of natural resource recapture property other 
than oil and gas property. A and B are equal shareholders in X, an S 
corporation. On January 1, 1997, X acquires for $90,000 an undeveloped 
mineral property, its sole property. During 1997, X expends and deducts 
$100,000 in developing the property. On January 15, 1998, X sells the 
property for $250,000 when X's basis in the property is $90,000. Thus, X 
recognizes gain of $160,000 on the sale. A and B's share of the $160,000 
gain recognized is $80,000 each. Each shareholder has $50,000 of section 
1254 costs with respect to the property. Under these circumstances, A 
and B each are required to recognize $50,000 of the $80,000 of gain on 
the sale of the property as ordinary income under section 1254.
    Example 2. Disposition of oil and gas property the adjusted basis of 
which is allocated to the shareholders under section 613A(c)(11). C and 
D are equal shareholders in Y, an S corporation. On January 1, 1997, Y 
acquires for $150,000 an undeveloped oil and gas property, its sole 
property. During 1997, Y expends in developing the property $40,000 in 
intangible drilling costs which it elects to expense under section 
263(c). On January 15, 1998, Y sells the property for $200,000. C and 
D's share of the $200,000 amount realized on the sale is $100,000 each. 
C and D each have a basis of $75,000 in the property and $20,000 of 
section 1254 costs with respect to the property. Under these 
circumstances, C and D each are required to recognize $20,000 of the 
$25,000 gain on the sale of the property as ordinary income under 
section 1254.

    (c) Character of gain recognized by a shareholder upon a sale or 
exchange of S corporation stock--(1) General rule. Except as provided in 
paragraph (c)(2) of this section, if an S corporation shareholder 
recognizes gain upon a sale or exchange of stock in the S corporation 
(determined without regard to section 1254), the gain is treated as 
ordinary income under section 1254 to the extent of the shareholder's 
section 1254 costs (with respect to the shares sold or exchanged).
    (2) Exceptions--(i) Gain not attributable to section 1254 costs--(A) 
General rule. Paragraph (c)(1) of this section does not apply to any 
portion of the gain recognized on the sale or exchange of the stock that 
the taxpayer establishes is not attributable to section 1254

[[Page 501]]

costs. The portion of the gain recognized that is not attributable to 
section 1254 costs is that portion of the gain recognized that exceeds 
the amount of ordinary income that the shareholder would have recognized 
under section 1254 (with respect to the shares sold or exchanged) if, 
immediately prior to the sale or exchange of the stock, the corporation 
had sold at fair market value all of the corporation's property the 
disposition of which would result in the recognition by the shareholder 
of ordinary income under section 1254.
    (B) Substantiation. To establish that a portion of the gain 
recognized is not attributable to a shareholder's section 1254 costs so 
as to qualify for the exception contained in paragraph (c)(2)(i)(A) of 
this section, the shareholder must attach to the shareholder's tax 
return a statement detailing the shareholder's share of the fair market 
value and basis, and the shareholder's section 1254 costs, for each of 
the S corporation's natural resource recapture properties held 
immediately before the sale or exchange of stock.
    (ii) Transactions entered into as part of a plan to avoid 
recognition of ordinary income under section 1254. In the case of a 
contribution of property prior to a sale or exchange of stock pursuant 
to a plan a principal purpose of which is to avoid recognition of 
ordinary income under section 1254, paragraph (c)(1) of this section 
does not apply. Instead, the amount recognized as ordinary income under 
section 1254 is the amount of ordinary income the selling or exchanging 
shareholder would have recognized under section 1254 (with respect to 
the shares sold or exchanged) had the S corporation sold its natural 
resource recapture property the disposition of which would have resulted 
in the recognition of ordinary income under section 1254. The amount 
recognized as ordinary income under the preceding sentence reduces the 
amount realized on the sale or exchange of the stock.
    This reduced amount realized is used in determining any gain or loss 
on the sale or exchange.
    (3) Examples. The following examples illustrate the provisions of 
this paragraph (c):

    Example 1. Application of general rule upon a sale of S corporation 
stock. C and D are equal shareholders in Y, an S corporation. As of 
January 1, 1997, Y holds two mining properties: Blackacre, with an 
adjusted basis of $5,000 and a fair market value of $35,000, and 
Whiteacre, with an adjusted basis of $20,000 and a fair market value of 
$15,000. Y also holds securities with a basis of $5,000 and a fair 
market value of $10,000. On January 1, 1997, D sells 50 percent of D's Y 
stock to E for $15,000. As of the date of the sale, D's adjusted basis 
in the Y stock sold is $7,500, and D has $18,000 of section 1254 costs 
with respect to Blackacre and $12,000 of section 1254 costs with respect 
to Whiteacre. Under this paragraph (c), the gain recognized by D upon 
the sale of Y stock is treated as ordinary income to the extent of D's 
section 1254 costs with respect to the stock sold, unless D establishes 
that a portion of such excess is not attributable to D's section 1254 
costs. However, because D would recognize $7,500 in ordinary income 
under section 1254 with respect to the stock sold if Y sold Blackacre 
(the only asset the disposition of which would result in ordinary income 
to D under section 1254), the $7,500 of gain recognized by D upon the 
sale of D's Y stock is attributable to D's section 1254 costs. 
Therefore, upon the sale of stock to E, D recognizes $7,500 of ordinary 
income under this paragraph (c).
    Example 2. Sale of S corporation stock where gain is not entirely 
attributable to section 1254 costs. Assume the same facts as in Example 
1, except that Blackacre has a fair market value of $25,000, and the 
securities have a fair market value of $20,000. Immediately prior to the 
sale of stock to E, if Y had sold Blackacre (its only asset the 
disposition of which would result in the recognition of ordinary income 
to D under section 1254), D would recognize $5,000 in ordinary income 
with respect to the stock sold under section 1254. D attaches a 
statement to D's tax return for 1997 detailing D's share of the fair 
market values and bases, and D's section 1254 costs with respect to 
Blackacre and Whiteacre. Therefore, upon the sale of stock to E, of the 
$7,500 gain recognized by D, $5,000 is ordinary income under this 
paragraph (c).
    Example 3. Contribution of property prior to sale of S corporation 
stock as part of a plan to avoid recognition of ordinary income under 
section 1254. H owns all of the stock of Z, an S corporation. As of 
January 1, 1997, H has $3,000 of section 1254 costs with respect to 
property P, which is natural resource recapture property and Z's only 
asset. Property P has an adjusted basis of $5,000 and a fair market 
value of $8,000. H has a basis of $5,000 in Z stock, which has a fair 
market value of $8,000. On January 1, 1997, H contributes securities to 
Z which have a basis of $7,000 and a fair market value of $4,000. On 
April 15, 1997, H sells all of the Z stock to J for $12,000. On that 
date, H's adjusted basis in the Z

[[Page 502]]

stock is also $12,000. Based on all the facts and circumstances, the 
sale of stock is part of a plan (along with the contribution by H of the 
securities to Z) that has a principal purpose to avoid recognition of 
ordinary income under section 1254. Consequently, under paragraph 
(c)(2)(ii) of this section, H must recognize $3,000 as ordinary income 
under section 1254, the amount of ordinary income that H would recognize 
as ordinary income under section 1254 if property P were sold at fair 
market value. In addition, H reduces the amount realized on the sale of 
the stock ($12,000) by $3,000. As a result, H also recognizes a $3,000 
capital loss on the sale of the stock ($9,000 amount realized less 
$12,000 adjusted basis).

    (d) Section 1254 costs of a shareholder. An S corporation 
shareholder's section 1254 costs with respect to any natural resource 
recapture property held by the corporation include all of the 
shareholder's section 1254 costs with respect to the property in the 
hands of the S corporation. See Sec. 1.1254-1(b)(1) for the definition 
of section 1254 costs.
    (e) Section 1254 costs of an acquiring shareholder after certain 
acquisitions--(1) Basis determined under section 1012. If stock in an S 
corporation that holds natural resource recapture property is acquired 
and the acquiring shareholder's basis for the stock is determined solely 
by reference to its cost (within the meaning of section 1012), the 
amount of section 1254 costs with respect to the property held by the 
corporation in the acquiring shareholder's hands is zero on the 
acquisition date.
    (2) Basis determined under section 1014(a). If stock in an S 
corporation that holds natural resource recapture property is acquired 
from a decedent and the acquiring shareholder's basis is determined, by 
reason of the application of section 1014(a), solely by reference to the 
fair market value of the stock on the date of the decedent's death or on 
the applicable date provided in section 2032 (relating to alternate 
valuation date), the amount of section 1254 costs with respect to the 
property held by the corporation in the acquiring shareholder's hands is 
zero on the acquisition date.
    (3) Basis determined under section 1014(b)(9). If stock in an S 
corporation that holds natural resource recapture property is acquired 
before the death of the decedent, the amount of section 1254 costs with 
respect to the property held by the corporation in the acquiring 
shareholder's hands includes the amount, if any, of the section 1254 
costs deducted by the acquiring shareholder before the decedent's death, 
to the extent that the basis of the stock (determined under section 
1014(a)) is required to be reduced under section 1014(b)(9) (relating to 
adjustments to basis when the property is acquired before the death of 
the decedent).
    (4) Gifts and section 1041 transfers. If stock is acquired in a 
transfer that is a gift, in a transfer that is a part sale or exchange 
and part gift, or in a transfer that is described in section 1041(a), 
the amount of section 1254 costs with respect to the property held by 
the corporation in the acquiring shareholder's hands immediately after 
the transfer is an amount equal to--
    (i) The amount of section 1254 costs with respect to the property 
held by the corporation in the hands of the transferor immediately 
before the transfer; minus
    (ii) The amount of any gain recognized as ordinary income under 
section 1254 by the transferor upon the transfer.
    (f) Special rules for a corporation that was formerly an S 
corporation or formerly a C corporation--(1) Section 1254 costs of an S 
corporation that was formerly a C corporation. In the case of a C 
corporation that holds natural resource recapture property and that 
elects to be an S corporation, each shareholder's section 1254 costs as 
of the beginning of the corporation's first taxable year as an S 
corporation include a pro rata share of the section 1254 costs of the 
corporation as of the close of the last taxable year that the 
corporation was a C corporation.
    (2) Examples. The following examples illustrate the application of 
the provisions of paragraph (f)(1) of this section:

    Example 1. Sale of natural resource recapture property held by an S 
corporation that was formerly a C corporation--(i) Y is a C corporation 
that elects to be an S corporation effective January 1, 1997. On that 
date, Y owns Oil Well, which is natural resource recapture property and 
a capital asset. Y has section 1254 costs of $20,000 as of the close of 
the last taxable year that it was a C corporation. On January 1, 1997, 
Oil Well has a value of $200,000 and a basis of $100,000. Thus, under 
section 1374, Y's net unrealized built-in gain

[[Page 503]]

is $100,000. Also on that date, Y's basis in Oil Well is allocated to A, 
Y's sole shareholder, under section 613A(c)(11) and the section 1254 
costs are allocated to A under paragraph (f)(1) of this section. In 
addition, A has a basis in A's Y stock of $100,000.
    (ii) On November 1, 1997, Y sells Oil Well for $250,000. During 
1997, Y has taxable income greater than $100,000, and no other 
transactions or items treated as recognized built-in gain or loss. Under 
section 1374, Y has net recognized built-in gain of $100,000. Assuming a 
tax rate of 35 percent on capital gain, Y has a tax of $35,000 under 
section 1374. The tax of $35,000 is treated as a capital loss under 
section 1366(f)(2). A has a realized gain on the sale of $150,000 
($250,000 minus $100,000) of which $20,000 is recognized as ordinary 
income under section 1254, and $130,000 is recognized as capital gain. 
Consequently, A recognizes ordinary income of $20,000 and net capital 
gain of $95,000 ($130,000 minus $35,000) on the sale.
    Example 2. Sale of stock followed by sale of natural resource 
recapture property held by an S corporation that was formerly a C 
corporation--(i) Assume the same facts as in Example 1(i). On November 
1, 1997, A sells all of A's Y stock to P for $250,000. A has a realized 
gain on the sale of $150,000 ($250,000 minus $100,000) of which $20,000 
is recognized as ordinary income under section 1254, and $130,000 is 
recognized as capital gain.
    (ii) On November 2, 1997, Y sells Oil Well for $250,000. During 
1997, Y has taxable income greater than $100,000, and no other 
transactions or items treated as recognized built-in gain or loss. Under 
section 1374, Y has net recognized built-in gain of $100,000. Assuming a 
tax rate of 35 percent on capital gain, Y has a tax of $35,000 under 
section 1374. The tax of $35,000 is treated as a capital loss under 
section 1366(f)(2). P has a realized gain on the sale of $150,000 
($250,000 minus $100,000), which is recognized as capital gain. 
Consequently, P recognizes net capital gain of $115,000 ($150,000 minus 
$35,000) on the sale.

    (3) Section 1254 costs of a C corporation that was formerly an S 
corporation. In the case of an S corporation that becomes a C 
corporation, the C corporation's section 1254 costs with respect to any 
natural resource recapture property held by the corporation as of the 
beginning of the corporation's first taxable year as a C corporation 
include the sum of its shareholders' section 1254 costs with respect to 
the property as of the close of the last taxable year that the 
corporation was an S corporation. In the case of an S termination year 
as defined in section 1362(e)(4), the shareholders' section 1254 costs 
are determined as of the close of the S short year as defined in section 
1362(e)(1)(A). See paragraph (g)(5) of this section for rules on 
determining the aggregate amount of the shareholders' section 1254 
costs.
    (g) Determination of a shareholder's section 1254 costs upon certain 
stock transactions--(1) Issuance of stock. Upon an issuance of stock 
(whether such stock is newly-issued or had been held as treasury stock) 
by an S corporation in a reorganization described in section 368 or 
otherwise--
    (i) Each recipient of shares must be allocated a pro rata share 
(determined solely with respect to the shares issued in the transaction) 
of the aggregate of the S corporation shareholders' section 1254 costs 
with respect to natural resource recapture property held by the S 
corporation immediately before the issuance (as determined pursuant to 
paragraph (g)(5) of this section); and
    (ii) Each pre-existing shareholder must reduce his or her section 
1254 costs with respect to natural resource recapture property held by 
the S corporation immediately before the issuance by an amount equal to 
the pre-existing shareholder's section 1254 costs immediately before the 
issuance multiplied by the percentage of stock of the corporation issued 
in the transaction.
    (2) Natural resource recapture property acquired in exchange for 
stock. If natural resource recapture property is transferred to an S 
corporation in exchange for stock of the S corporation (for example, in 
a section 351 transaction, or in a reorganization described in section 
368), the S corporation must allocate to its shareholders a pro rata 
share of the S corporation's section 1254 costs with respect to the 
property immediately after the transaction (as determined under Sec. 
1.1254-3(b)(1)).
    (3) Treatment of nonvested stock. Stock issued in connection with 
the performance of services that is substantially nonvested (within the 
meaning of Sec. 1.83-3(b)) is treated as issued for purposes of this 
section at the first time it is treated as outstanding stock of the S 
corporation for purposes of section 1361.
    (4) Exception. Paragraph (g)(1) of this section does not apply to 
stock issued in exchange for stock of the same S

[[Page 504]]

corporation (as for example, in a recapitalization described in section 
368(a)(1)(E)).
    (5) Aggregate of S corporation shareholders' section 1254 costs with 
respect to natural resource recapture property held by the S 
corporation--(i) In general. The aggregate of S corporation 
shareholders' section 1254 costs is equal to the sum of each 
shareholder's section 1254 costs. The S corporation must determine each 
shareholder's section 1254 costs under either paragraph (g)(5)(ii) 
(written data) or paragraph (g)(5)(iii) (assumptions) of this section. 
The S corporation may determine the section 1254 costs of some 
shareholders under paragraph (g)(5)(ii) of this section and of others 
under paragraph (g)(5)(iii) of this section.
    (ii) Written data. An S corporation may determine a shareholder's 
section 1254 costs by using written data provided by a shareholder 
showing the shareholder's section 1254 costs with respect to natural 
resource recapture property held by the S corporation unless the S 
corporation knows or has reason to know that the written data is 
inaccurate. If an S corporation does not receive written data upon which 
it may rely, the S corporation must use the assumptions provided in 
paragraph (g)(5)(iii) of this section in determining a shareholder's 
section 1254 costs.
    (iii) Assumptions. An S corporation that does not use written data 
pursuant to paragraph (g)(5)(ii) of this section to determine a 
shareholder's section 1254 costs must use the following assumptions to 
determine the shareholder's section 1254 costs--
    (A) The shareholder deducted his or her share of the amount of 
deductions under sections 263(c), 616, and 617 in the first year in 
which the shareholder could claim a deduction for such amounts, unless 
in the case of expenditures under sections 263(c) or 616 the S 
corporation elected to capitalize such amounts;
    (B) The shareholder was not subject to the following limitations 
with respect to the shareholder's depletion allowance under section 611, 
except to the extent a limitation applied at the corporate level: the 
taxable income limitation of section 613(a); the depletable quantity 
limitations of section 613A(c); or the limitations of sections 
613A(d)(2), (3), and (4) (exclusion of retailers and refiners).
    (6) Examples. The following examples illustrate the provisions of 
this paragraph (g):

    Example 1. Transfer of natural resource recapture property to an S 
corporation in a section 351 transaction. As of January 1, 1997, A owns 
all the stock (20 shares) in X, an S corporation. X holds property that 
is not natural resource recapture property that has a fair market value 
of $2,000 and an adjusted basis of $2,000. On January 1, 1997, B 
transfers natural resource recapture property, Property P, to X in 
exchange for 80 shares of X stock in a transaction that qualifies under 
section 351. Property P has a fair market value of $8,000 and an 
adjusted basis of $5,000. Pursuant to section 351, B does not recognize 
gain on the transaction. Immediately prior to the transaction, B's 
section 1254 costs with respect to Property P equaled $6,000. Under 
Sec. 1.1254-2(c)(1), B does not recognize any gain under section 1254 
on the section 351 transaction and, under Sec. 1.1254-3(b)(1), X's 
section 1254 costs with respect to Property P immediately after the 
contribution equal $6,000. Under paragraph (g)(2) of this section, each 
shareholder is allocated a pro rata share of X's section 1254 costs. The 
pro rata share of X's section 1254 costs that is allocated to A equals 
$1,200 (20 percent interest in X multiplied by X's $6,000 of section 
1254 costs). The pro rata share of X's section 1254 costs that is 
allocated to B equals $4,800 (80 percent interest in X multiplied by X's 
$6,000 of section 1254 costs).
    Example 2. Contribution of money in exchange for stock of an S 
corporation holding natural resource recapture property. As of January 
1, 1997, A and B each own 50 percent of the stock (50 shares each) in X, 
an S corporation. X holds natural resource recapture property, Property 
P, which has a fair market value of $20,000 and an adjusted basis of 
$14,000. A's and B's section 1254 costs with respect to Property P are 
$4,000 and $1,500, respectively. On January 1, 1997, C contributes 
$20,000 to X in exchange for 100 shares of X's stock. Under paragraph 
(g)(1)(i) of this section, X must allocate to C a pro rata share of its 
shareholders' section 1254 costs. Using the assumptions set forth in 
paragraph (g)(5)(iii) of this section, X determines that A's section 
1254 costs with respect to natural resource recapture property held by X 
equal $4,500. Using written data provided by B, X determines that B's 
section 1254 costs with respect to Property P equal $1,500. Thus, the 
aggregate of X's shareholders' section 1254 costs equals $6,000. C's pro 
rata share of the $6,000 of section 1254 costs equals $3,000 (C's 50 
percent interest in X multiplied by $6,000). Under paragraph (g)(1)(ii) 
of this section, A's

[[Page 505]]

section 1254 costs are reduced by $2,000 (A's actual section 1254 costs 
($4,000) multiplied by 50 percent). B's section 1254 costs are reduced 
by $750 (B's actual section 1254 costs ($1,500) multiplied by 50 
percent).
    Example 3. Merger involving an S corporation that holds natural 
resource recapture property. X, an S corporation with one shareholder, 
A, holds as its sole asset natural resource recapture property that has 
a fair market value of $120,000 and an adjusted basis of $40,000. A has 
section 1254 costs with respect to the property of $60,000. For valid 
business reasons, X merges into Y, an S corporation with one 
shareholder, B, in a reorganization described in section 368(a)(1)(A). Y 
holds property that is not natural resource recapture property that has 
a fair market value of $120,000 and basis of $120,000. Under paragraph 
(c) of this section, A does not recognize ordinary income under section 
1254 upon the exchange of stock in the merger because A did not 
otherwise recognize gain on the merger. Under paragraph (g)(2) of this 
section, Y must allocate to A and B a pro rata share of its $60,000 of 
section 1254 costs. Thus, A and B are each allocated $30,000 of section 
1254 costs (50 percent interest in X, each, multiplied by $60,000).

[T.D. 8684, 61 FR 53063, Oct. 10, 1996]



Sec. 1.1254-5  Special rules for partnerships and their partners.

    (a) In general. This section provides rules for applying the 
provisions of section 1254 to partnerships and their partners upon the 
disposition of natural resource recapture property by the partnership 
and certain distributions of property by a partnership. See section 751 
and the regulations thereunder for rules concerning the treatment of 
gain upon the transfer of a partnership interest.
    (b) Determination of gain treated as ordinary income under section 
1254 upon the disposition of natural resource recapture property by a 
partnership--(1) General rule. Upon a disposition of natural resource 
recapture property by a partnership, the amount treated as ordinary 
income under section 1254 is determined at the partner level. Each 
partner must recognize as ordinary income under section 1254 the lesser 
of--
    (i) The partner's section 1254 costs with respect to the property 
disposed of; or
    (ii) The partner's share of the amount, if any, by which the amount 
realized upon the sale, exchange, or involuntary conversion, or the fair 
market value of the property upon any other disposition, exceeds the 
adjusted basis of the property.
    (2) Exception to partner level recapture in the case of abusive 
allocations. Paragraph (b)(1) of this section does not apply in 
determining the amount treated as ordinary income under section 1254 
upon a disposition of section 1254 property by a partnership if the 
partnership has allocated the amount realized or gain recognized from 
the disposition with a principal purpose of avoiding the recognition of 
ordinary income under section 1254. In such case, the amount of gain on 
the disposition recaptured as ordinary income under section 1254 is 
determined at the partnership level.
    (3) Examples. The provisions of paragraphs (a) and (b) of this 
section are illustrated by the following examples which assume that 
capital accounts are maintained in accordance with section 704(b) and 
the regulations thereunder:

    Example 1. Partner level recapture--In general. A, B, and C, have 
equal interests in capital in Partnership ABC that was formed on January 
1, 1985. The partnership acquired an undeveloped domestic oil property 
on January 1, 1985, for $120,000. The partnership allocated the 
property's basis to each partner in proportion to the partner's interest 
in partnership capital, so each partner was allocated $40,000 of basis. 
In 1985, the partnership incurred $60,000 of productive well intangible 
drilling and development costs with respect to the property. The 
partnership elected to deduct the intangible drilling and development 
costs as expenses under section 263(c). Each partner deducted $20,000 of 
the intangible drilling and development costs. Assume that depletion 
allowable under section 613A(c)(7)(D) for each partner for 1985 was 
$10,000. On January 1, 1986, the partnership sold the oil property to an 
unrelated third party for $210,000. Each partner's allocable share of 
the amount realized is $70,000. Each partner's basis in the oil property 
at the end of 1985 is $30,000 ($40,000 cost--$10,000 depletion 
deductions claimed). Each partner has a gain of $40,000 on the sale of 
the oil property ($70,000 amount realized--$30,000 adjusted basis in the 
oil property). Assume that each partner's depletion allowance would not 
have been increased if the intangible drilling and development costs had 
been capitalized. Each partner's section 1254 costs with respect to the 
property are $20,000. Thus, A, B, and C each must treat $20,000 of gain 
recognized as ordinary income under section 1254(a).

[[Page 506]]

    Example 2. Special allocation of intangible drilling and development 
costs. K and L form a partnership on January 1, 1997, to acquire and 
develop a geothermal property as defined under section 613(e)(2). The 
partnership agreement provides that all intangible drilling and 
development costs will be allocated to partner K, and that all other 
items of income, gain, or loss will be allocated equally between the two 
partners. Assume these allocations have substantial economic effect 
under section 704(b) and the regulations thereunder. The partnership 
acquires a lease covering undeveloped acreage located in the United 
States for $50,000. In 1997, the partnership incurs $50,000 of 
intangible drilling and development costs that are allocated to partner 
K. The partnership also has $30,000 of depletion deductions, which are 
allocated equally between K and L. On January 1, 1998, the partnership 
sells the geothermal property to an unrelated third party for $160,000 
and recognizes a gain of $140,000 ($160,000 amount realized less $20,000 
adjusted basis ($50,000 unadjusted basis less $30,000 depletion 
deductions)). This gain is allocated equally between K and L. Because 
K's section 1254 costs are $65,000 and L's section 1254 costs are 
$15,000, K recognizes $65,000 as ordinary income under section 1254(a) 
and L recognizes $15,000 as ordinary income under section 1254(a). The 
remaining $5,000 of gain allocated to K and $55,000 of gain allocated to 
L is characterized without regard to section 1254.
    Example 3. Section 59(e) election to capitalize intangible drilling 
and development costs. Partnership DK has 50 equal partners. On January 
1, 1995, the partnership purchases an undeveloped oil and gas property 
for $100,000. The partnership allocates the property's basis equally 
among the partners, so each partner is allocated $2,000 of basis. In 
January 1995, the partnership incurs $240,000 of intangible drilling and 
development costs with respect to the property. The partnership elects 
to deduct the intangible drilling and development costs as expenses 
under section 263(c). Each partner is allocated $4,800 of intangible 
drilling and development costs. One of the partners, H, elects under 
section 59(e) to capitalize his $4,800 share of intangible drilling and 
development costs. Therefore, H is permitted to amortize his $4,800 
share of intangible drilling and development costs over 60 months. H 
takes a $960 amortization deduction in 1995. Each of the remaining 49 
partners deducts his $4,800 share of intangible drilling and development 
costs in 1995. Assume that depletion allowable for each partner under 
section 613A(c)(7)(D) for 1995 is $1,000. On December 31, 1995, the 
partnership sells the property for $300,000. Each partner is allocated 
$6,000 of amount realized. Each partner that deducted the intangible 
drilling and development costs has a basis in the oil property at the 
end of 1995 of $1,000 ($2,000 cost - $1,000 depletion deductions 
claimed). Each of these partners has a gain of $5,000 on the sale of the 
oil property ($6,000 amount realized - $1,000 adjusted basis in the 
property). The section 1254 costs of each partner that deducted 
intangible drilling and development costs are $5,800 ($4,800 intangible 
drilling and development costs deducted + $1,000 depletion deductions 
claimed). Because each partner's section 1254 costs ($5,800) exceed each 
partner's share of amount realized less each partner's adjusted basis 
($5,000), each partner must treat his $5,000 gain recognized on the sale 
of the oil property as ordinary income under section 1254(a). Because H 
elected under section 59(e) to capitalize the $4,800 of intangible 
drilling and development costs and amortized only $960 of the costs in 
1995, the $3,840 of unamortized intangible drilling and development 
costs are included in H's basis in the oil property. Therefore, at the 
end of 1995 H's basis in the oil property is $4,840 (($2,000 cost + 
$4,800 capitalized intangible drilling and development costs) - ($960 
intangible drilling and development costs amortized + $1,000 depletion 
deduction claimed)). H's gain on the sale of the oil property is $1,160 
($6,000 amount realized - $4,840 adjusted basis). H's section 1254 costs 
are $1,960 ($960 intangible drilling and development costs amortized + 
$1,000 depletion deductions claimed). Because H's section 1254 costs 
($1,960) exceed H's share of amount realized less H's adjusted basis 
($1,160), H must treat the $1,160 of gain recognized as ordinary income 
under section 1254(a).

    (c) Section 1254 costs of a partner--(1) General rule. A partner's 
section 1254 costs with respect to property held by a partnership 
include all of the partner's section 1254 costs with respect to the 
property in the hands of the partnership. In the case of property 
contributed to a partnership in a transaction described in section 721, 
a partner's section 1254 costs include all of the partner's section 1254 
costs with respect to the property prior to contribution. Section 
1.1254-1(b)(1)(iv), which provides rules concerning the treatment of 
suspended deductions, applies to amounts not deductible pursuant to 
section 704(d).
    (2) Section 1254 costs of a transferee partner after certain 
acquisitions--(i) Basis determined under section 1012. If a person 
acquires an interest in a partnership that holds natural resource 
recapture property (transferee partner) and the transferee partner's 
basis for the interest is determined by reference to its cost (within 
the meaning of section 1012), the amount of the transferee

[[Page 507]]

partner's section 1254 costs with respect to the property held by the 
partnership is zero on the acquisition date.
    (ii) Basis determined by reason of the application of section 
1014(a). If a transferee partner acquires an interest in a partnership 
that holds natural resource recapture property from a decedent and the 
transferee partner's basis is determined, by reason of the application 
of section 1014(a), solely by reference to the fair market value of the 
partnership interest on the date of the decedent's death or on the 
applicable date provided in section 2032 (relating to alternate 
valuation date), the amount of the transferee partner's section 1254 
costs with respect to property held by the partnership is zero on the 
acquisition date.
    (iii) Basis determined by reason of the application of section 
1014(b)(9). If an interest in a partnership that holds natural resource 
recapture property is acquired before the death of the decedent, the 
amount of the transferee partner's section 1254 costs with respect to 
property held by the partnership shall include the amount, if any, of 
the section 1254 costs deducted by the transferee partner before the 
decedent's death, to the extent that the basis of the partner's interest 
(determined under section 1014(a)) is required to be reduced under 
section 1014(b)(9) (relating to adjustments to basis when the property 
is acquired before the death of the decedent).
    (iv) Gifts and section 1041 transfers. If an interest in a 
partnership is transferred in a transfer that is a gift, a part sale or 
exchange and part gift, or a transfer that is described in section 
1041(a), the amount of the transferee partner's section 1254 costs with 
respect to property held by the partnership immediately after the 
transfer is an amount equal to--
    (A) The amount of the transferor partner's section 1254 costs with 
respect to the property immediately before the transfer; minus
    (B) The amount of any gain recognized as ordinary income under 
section 1254 by the transferor partner upon the transfer.
    (d) Property distributed to a partner--(1) In general. The section 
1254 costs for any natural resource recapture property received by a 
partner in a distribution with respect to part or all of an interest in 
a partnership include--
    (i) The aggregate of the partners' section 1254 costs with respect 
to the natural resource recapture property immediately prior to the 
distribution; reduced by
    (ii) The amount of any gain taken into account as ordinary income 
under section 751 by the partnership or the partners (as constituted 
after the distribution) on the distribution of the natural resource 
recapture property.
    (2) Aggregate of partners' section 1254 costs with respect to 
natural resource recapture property held by a partnership--(i) In 
general. The aggregate of partners' section 1254 costs is equal to the 
sum of each partner's section 1254 costs. The partnership must determine 
each partner's section 1254 costs under either paragraph (d)(2)(i)(A) 
(written data) or paragraph (d)(2)(i)(B) (assumptions) of this section. 
The partnership may determine the section 1254 costs of some of the 
partners under paragraph (d)(2)(i)(A) of this section and of others 
under paragraph (d)(2)(i)(B) of this section.
    (A) Written data. A partnership may determine a partner's section 
1254 costs by using written data provided by a partner showing the 
partner's section 1254 costs with respect to natural resource recapture 
property held by the partnership unless the partnership knows or has 
reason to know that the written data is inaccurate. If a partnership 
does not receive written data upon which it may rely, the partnership 
must use the assumptions provided in paragraph (d)(2)(i)(B) of this 
section in determining a partner's section 1254 costs.
    (B) Assumptions. A partnership that does not use written data 
pursuant to paragraph (d)(2)(i)(A) of this section to determine a 
partner's section 1254 costs must use the following assumptions to 
determine the partner's section 1254 costs:
    (1) The partner deducted his or her share of deductions under 
section 263(c), 616, or 617 for the first year in which the partner 
could claim a deduction for such amounts, unless in the case of 
expenditures under section

[[Page 508]]

263(c) or 616, the partnership elected to capitalize such amounts;
    (2) The partner was not subject to the following limitations with 
respect to the partner's depletion allowance under section 611, except 
to the extent a limitation applied at the partnership level: the taxable 
income limitation of section 613(a); the depletable quantity limitations 
of section 613A(c); or the limitations of section 613A(d)(2), (3), and 
(4) (exclusion of retailers and refiners).

[T.D. 8586, 60 FR 2507, Jan. 10, 1995]



Sec. 1.1254-6  Effective date of regulations.

    Sections 1.1254-1 through 1.1254-3 and Sec. 1.1254-5 are effective 
with respect to any disposition of natural resource recapture property 
occurring after March 13, 1995. The rule in Sec. 1.1254-
1(b)(2)(iv)(A)(2), relating to a nonoperating mineral interest carved 
out of an operating mineral interest with respect to which an 
expenditure has been deducted, is effective with respect to any 
disposition occurring after March 13, 1995 of property (within the 
meaning of section 614) that is placed in service by the taxpayer after 
December 31, 1986. Section 1.1254-4 applies to dispositions of natural 
resource recapture property by an S corporation (and a corporation that 
was formerly an S corporation) and dispositions of S corporation stock 
occurring on or after October 10, 1996. Sections 1.1254-2(d)(1)(ii) and 
1.1254-3 (b)(1) (i) and (ii) and (d)(1) (i) and (ii) are effective for 
dispositions of property occurring on or after October 10, 1996.

[T.D. 8586, 60 FR 2508, Jan. 10, 1995, as amended by T.D. 8684, 61 FR 
53066, Oct. 10, 1996]



Sec. 1.1256(e)-1  Identification of hedging transactions.

    (a) Identification and recordkeeping requirements. Under section 
1256(e)(2), a taxpayer that enters into a hedging transaction must 
identify the transaction as a hedging transaction before the close of 
the day on which the taxpayer enters into the transaction.
    (b) Requirements for identification. The identification of a hedging 
transaction for purposes of section 1256(e)(2) must satisfy the 
requirements of Sec. 1.1221-2(f)(1). Solely for purposes of section 
1256(f)(1), however, an identification that does not satisfy all of the 
requirements of Sec. 1.1221-2(f)(1) is nevertheless treated as an 
identification under section 1256(e)(2).
    (c) Consistency with Sec. 1.1221-2. Any identification for purposes 
of Sec. 1.1221-2(f)(1) is also an identification for purposes of this 
section. If a taxpayer satisfies the requirements of Sec. 1.1221-
2(g)(1)(ii), the transaction is treated as if it were not identified as 
a hedging transaction for purposes of section 1256(e)(2).
    (d) Effective date. The rules of this section apply to transactions 
entered into on or after March 20, 2002.

[T.D. 8985, 67 FR 12870, Mar. 20, 2002; 67 FR 31955, May 13, 2002]



Sec. 1.1258-1  Netting rule for certain conversion transactions.

    (a) Purpose. The purpose of this section is to provide taxpayers 
with a method to net certain gains and losses from positions of the same 
conversion transaction before determining the amount of gain treated as 
ordinary income under section 1258(a).
    (b) Netting of gain and loss for identified transactions--(1) In 
general. If a taxpayer disposes of or terminates all the positions of an 
identified netting transaction (as defined in paragraph (b)(2) of this 
section) within a 14-day period in a single taxable year, all gains and 
losses on those positions taken into account for Federal tax purposes 
within that period (other than built-in losses as defined in paragraph 
(c) of this section) are netted solely for purposes of determining the 
amount of gain treated as ordinary income under section 1258(a). For 
purposes of the preceding sentence, a taxpayer is treated as disposing 
of any position that is treated as sold under any provision of the Code 
or regulations thereunder (for example, under section 1256(a)(1)).
    (2) Identified netting transaction. For purposes of this section, an 
identified netting transaction is a conversion transaction (as defined 
in section 1258(c)) that the taxpayer identifies as an identified 
netting transaction on its books and records. Identification of each 
position of the conversion transaction must be made before the close of

[[Page 509]]

the day on which the position becomes part of the conversion 
transaction. No particular form of identification is necessary, but all 
the positions of a single conversion transaction must be identified as 
part of the same transaction and must be distinguished from all other 
positions.
    (c) Definition of built-in loss. For purposes of this section, 
built-in loss means--
    (1) Built-in loss as defined in section 1258(d)(3)(B); and
    (2) If a taxpayer realizes gain or loss on any one position of a 
conversion transaction (for example, under section 1256), as of the date 
that gain or loss is realized, any unrecognized loss in any other 
position of the conversion transaction that is not disposed of, 
terminated, or treated as sold under any provision of the Code or 
regulations thereunder within 14 days of and within the same taxable 
year as the realization event.
    (d) Examples. These examples illustrate this section:

    Example 1. Identified netting transaction with simultaneous actual 
dispositions. (i) On December 1, 1995, A purchases 1,000 shares of XYZ 
stock for $100,000 and enters into a forward contract to sell 1,000 
shares of XYZ stock on November 30, 1997, for $110,000. The XYZ stock is 
actively traded as defined in Sec. 1.1092(d)-1(a) and is a capital 
asset in A's hands. A maintains books and records on which, on December 
1, 1995, it identifies the two positions as all the positions of a 
single conversion transaction. A owns no other XYZ stock. On December 1, 
1996, when the applicable imputed income amount for the transaction is 
$7,000, A sells the 1,000 shares of XYZ stock for $95,000. On the same 
day, A terminates its forward contract with its counterparty, receiving 
$10,200. No dividends were received on the stock during the time it was 
part of the conversion transaction.
    (ii) The XYZ stock and forward contract are positions of a 
conversion transaction. Under section 1258(c)(1), substantially all of 
A's expected return from the overall transaction is attributable to the 
time value of the net investment in the transaction. Under section 
1258(c)(2)(B), the transaction is an applicable straddle as defined in 
section 1258(d)(1).
    (iii) A disposed of or terminated all the positions of the 
conversion transaction within 14 days and within the same taxable year 
as required by paragraph (b)(1) of this section. The transaction is an 
identified netting transaction because it meets the identification 
requirement of paragraph (b)(2) of this section. Solely for purposes of 
section 1258(a), the $5,000 loss realized ($100,000 basis less $95,000 
amount realized) on the disposition of the XYZ stock is netted against 
the $10,200 gain recognized on the disposition of the forward contract. 
Thus, the net gain from the conversion transaction for purposes of 
section 1258(a) is $5,200 ($10,200 gain less $5,000 loss). Only the 
$5,200 net gain is recharacterized as ordinary income under section 
1258(a) even though the applicable imputed income amount is $7,000. For 
Federal tax purposes other than section 1258(a), A has recognized a 
$10,200 gain on the disposition of the forward contract ($5,200 of which 
is treated as ordinary income) and realized a separate $5,000 loss on 
the sale of the XYZ stock.
    Example 2. Identified netting transaction with built-in loss. (i) 
The facts are the same as in Example 1, except that A had purchased the 
XYZ stock for $104,000 on May 15, 1995. The XYZ stock had a fair market 
value of $100,000 on December 1, 1995, the date it became part of a 
conversion transaction.
    (ii) The results are the same as in Example 1, except that A has 
built-in loss (in addition to the $5,000 loss that arose economically 
during the period of the conversion transaction), as defined in section 
1258(d)(3)(B), of $4,000 on the XYZ stock. That $4,000 built-in loss is 
not netted against the $10,200 gain on the forward contract for purposes 
of section 1258(a). Thus, the net gain from the conversion transaction 
for purposes of section 1258(a) is $5,200, the same as in Example 1. The 
$4,000 built-in loss is recognized and has a character determined 
without regard to section 1258.

    (e) Effective date and transition rule--(1) In general. These 
regulations are effective for conversion transactions that are 
outstanding on or after December 21, 1995.
    (2) Transition rule for identification requirements. In the case of 
a conversion transaction entered into before February 20, 1996, 
paragraph (b)(2) of this section is treated as satisfied if the 
identification is made before the close of business on February 20, 
1996.

[T.D. 8649, 60 FR 66084, Dec. 21, 1995]



Sec. 1.1271-0  Original issue discount; effective date; table of 
contents.

    (a) Effective date. Except as otherwise provided, Sec. Sec. 1.1271-
1 through 1.1275-5 apply to debt instruments issued on or after April 4, 
1994. Taxpayers, however, may rely on these sections (as contained in 26 
CFR part 1 revised April 1, 1996) for debt instruments issued after

[[Page 510]]

December 21, 1992, and before April 4, 1994.
    (b) Table of contents. This section lists captioned paragraphs 
contained in Sec. Sec. 1.1271-1 through 1.1275-7T.

     Sec. 1.1271-1 Special rules applicable to amounts received on 
           retirement, sale, or exchange of debt instruments.

    (a) Intention to call before maturity.
    (1) In general.
    (2) Exceptions.
    (b) Short-term obligations.
    (1) In general.
    (2) Method of making elections.
    (3) Counting conventions.

           Sec. 1.1272-1 Current inclusion of OID in income.

    (a) Overview.
    (1) In general.
    (2) Debt instruments not subject to OID inclusion rules.
    (b) Accrual of OID.
    (1) Constant yield method.
    (2) Exceptions.
    (3) Modifications.
    (4) Special rules for determining the OID allocable to an accrual 
period.
    (c) Yield and maturity of certain debt instruments subject to 
contingencies.
    (1) Applicability.
    (2) Payment schedule that is significantly more likely than not to 
occur.
    (3) Mandatory sinking fund provision.
    (4) Consistency rule. [Reserved]
    (5) Treatment of certain options.
    (6) Subsequent adjustments.
    (7) Effective date.
    (d) Certain debt instruments that provide for a fixed yield.
    (e) Convertible debt instruments.
    (f) Special rules to determine whether a debt instrument is a short-
term obligation.
    (1) Counting of either the issue date or maturity date.
    (2) Coordination with paragraph (c) of this section for certain 
sections of the Internal Revenue Code.
    (g) Basis adjustment.
    (h) Debt instruments denominated in a currency other than the U.S. 
dollar.
    (i) [Reserved]
    (j) Examples.

  Sec. 1.1272-2 Treatment of debt instruments purchased at a premium.

    (a) In general.
    (b) Definitions and special rules.
    (1) Purchase.
    (2) Premium.
    (3) Acquisition premium.
    (4) Acquisition premium fraction.
    (5) Election to accrue discount on a constant yield basis.
    (6) Special rules for determining basis.
    (c) Examples.

  Sec. 1.1272-3 Election by a holder to treat all interest on a debt 
                           instrument as OID.

    (a) Election.
    (b) Scope of election.
    (1) In general.
    (2) Exceptions, limitations, and special rules.
    (c) Mechanics of the constant yield method.
    (1) In general.
    (2) Special rules to determine adjusted basis.
    (d) Time and manner of making the election.
    (e) Revocation of election.
    (f) Effective date.

                    Sec. 1.1273-1 Definition of OID.

    (a) In general.
    (b) Stated redemption price at maturity.
    (c) Qualified stated interest.
    (1) Definition.
    (2) Debt instruments subject to contingencies.
    (3) Variable rate debt instrument.
    (4) Stated interest in excess of qualified stated interest.
    (5) Short-term obligations.
    (d) De minimis OID.
    (1) In general.
    (2) De minimis amount.
    (3) Installment obligations.
    (4) Special rule for interest holidays, teaser rates, and other 
interest shortfalls.
    (5) Treatment of de minimis OID by holders.
    (e) Definitions.
    (1) Installment obligation.
    (2) Self-amortizing installment obligation.
    (3) Weighted average maturity.
    (f) Examples.

       Sec. 1.1273-2 Determination of issue price and issue date.

    (a) Debt instruments issued for money.
    (1) Issue price.
    (2) Issue date.
    (b) Publicly traded debt instruments issued for property.
    (1) Issue price.
    (2) Issue date.
    (c) Debt instruments issued for publicly traded property.
    (1) Issue price.
    (2) Issue date.
    (d) Other debt instruments.
    (1) Issue price.
    (2) Issue date.
    (e) Special rule for certain sales to bond houses, brokers, or 
similar persons.
    (f) Traded on an established market (publicly traded).
    (1) In general.
    (2) Exchange listed property.

[[Page 511]]

    (3) Market traded property.
    (4) Property appearing on a quotation medium.
    (5) Readily quotable debt instruments.
    (6) Effect of certain temporary restrictions on trading.
    (7) Convertible debt instruments.
    (g) Treatment of certain cash payments incident to lending 
transactions.
    (1) Applicability.
    (2) Payments from borrower to lender.
    (3) Payments from lender to borrower.
    (4) Payments between lender and third party.
    (5) Examples.
    (h) Investment units.
    (1) In general.
    (2) Consistent allocation by holders and issuer.
    (i) [Reserved]
    (j) Convertible debt instruments.
    (k) Below-market loans subject to section 7872(b).
    (l) [Reserved]
    (m) Treatment of amounts representing pre-issuance accrued interest.
    (1) Applicability.
    (2) Exclusion of pre-issuance accrued interest from issue price.
    (3) Example.

     Sec. 1.1274-1 Debt instruments to which section 1274 applies.

    (a) In general.
    (b) Exceptions.
    (1) Debt instrument with adequate stated interest and no OID .
    (2) Exceptions under sections 1274(c)(1)(B), 1274(c)(3), 1274A(c), 
and 1275(b)(1).
    (3) Other exceptions to section 1274.
    (c) Examples.

  Sec. 1.1274-2 Issue price of debt instruments to which section 1274 
                                applies.

    (a) In general.
    (b) Issue price.
    (1) Debt instruments that provide for adequate stated interest; 
stated principal amount.
    (2) Debt instruments that do not provide for adequate stated 
interest; imputed principal amount.
    (3) Debt instruments issued in a potentially abusive situation; fair 
market value.
    (c) Determination of whether a debt instrument provides for adequate 
stated interest.
    (1) In general.
    (2) Determination of present value.
    (d) Treatment of certain options.
    (e) Mandatory sinking funds.
    (f) Treatment of variable rate debt instruments.
    (1) Stated interest at a qualified floating rate.
    (2) Stated interest at a single objective rate.
    (g) Treatment of contingent payment debt instruments.
    (h) Examples.
    (i) [Reserved]
    (j) Special rules for tax-exempt obligations.
    (1) Certain variable rate debt instruments.
    (2) Contingent payment debt instruments.
    (3) Effective date.

         Sec. 1.1274-3 Potentially abusive situations defined.

    (a) In general.
    (b) Operating rules.
    (1) Debt instrument exchanged for nonrecourse financing.
    (2) Nonrecourse debt with substantial down payment.
    (3) Clearly excessive interest.
    (c) Other situations to be specified by Commissioner.
    (d) Consistency rule.

                        Sec. 1.1274-4 Test rate.

    (a) Determination of test rate of interest.
    (1) In general.
    (2) Test rate for certain debt instruments.
    (b) Applicable Federal rate.
    (c) Special rules to determine the term of a debt instrument for 
purposes of determining the applicable Federal rate.
    (1) Installment obligations.
    (2) Certain variable rate debt instruments.
    (3) Counting of either the issue date or the maturity date.
    (4) Certain debt instruments that provide for principal payments 
uncertain as to time.
    (d) Foreign currency loans.
    (e) Examples.

                       Sec. 1.1274-5 Assumptions.

    (a) In general.
    (b) Modifications of debt instruments.
    (1) In general.
    (2) Election to treat buyer as modifying the debt instrument.
    (c) Wraparound indebtedness.
    (d) Consideration attributable to assumed debt.

  Sec. 1.1274A-1 Special rules for certain transactions where stated 
              principal amount does not exceed $2,800,000.

    (a) In general.
    (b) Rules for both qualified and cash method debt instruments.
    (1) Sale-leaseback transactions.
    (2) Debt instruments calling for contingent payments.
    (3) Aggregation of transactions.
    (4) Inflation adjustment of dollar amounts.
    (c) Rules for cash method debt instruments.
    (1) Time and manner of making cash method election.
    (2) Successors of electing parties.
    (3) Modified debt instrument.

[[Page 512]]

    (4) Debt incurred or continued to purchase or carry a cash method 
debt instrument.

                       Sec. 1.1275-1 Definitions.

    (a) Applicability.
    (b) Adjusted issue price.
    (1) In general.
    (2) Adjusted issue price for subsequent holders.
    (c) OID.
    (d) Debt instrument.
    (e) Tax-exempt obligations.
    (f) Issue.
    (1) Debt instruments issued on or after March 13, 2001.
    (2) Debt instruments issued before March 13, 2001.
    (3) Transition rule.
    (4) Cross-references for reopening and aggregation rules.
    (g) Debt instruments issued by a natural person.
    (h) Publicly offered debt instrument.
    (i) [Reserved]
    (j) Life annuity exception under section 1275(a)(1)(B)(i).
    (k) Exception under section 1275(a)(1)(B)(ii) for annuities issued 
by an insurance company subject to tax under subchapter L of the 
Internal Revenue Code.
    (1) Rule.
    (2) Examples.
    (3) Effective date.
    (1) Purpose.
    (2) General rule.
    (3) Availability of a cash surrender option.
    (4) Availability of a loan secured by the contract.
    (5) Minimum payout provision.
    (6) Maximum payout provision.
    (7) Decreasing payout provision.
    (8) Effective dates.

       Sec. 1.1275-2 Special rules relating to debt instruments.

    (a) Payment ordering rule.
    (1) In general.
    (2) Exceptions.
    (b) Debt instruments distributed by corporations with respect to 
stock.
    (1) Treatment of distribution.
    (2) Issue date.
    (c) Aggregation of debt instruments.
    (1) General rule.
    (2) Exception if separate issue price established.
    (3) Special rule for debt instruments that provide for the issuance 
of additional debt instruments.
    (4) Examples.
    (d) Special rules for Treasury securities.
    (1) Issue price and issue date.
    (2) Reopenings of Treasury securities.
    (e) Disclosure of certain information to holders.
    (f) Treatment of pro rata prepayments.
    (1) Treatment as retirement of separate debt instrument.
    (2) Definition of pro rata prepayment.
    (g) Anti-abuse rule.
    (1) In general.
    (2) Unreasonable result.
    (3) Examples.
    (4) Effective date.
    (h) Remote and incidental contingencies.
    (1) In general.
    (2) Remote contingencies.
    (3) Incidental contingencies.
    (4) Aggregation rule.
    (5) Consistency rule.
    (6) Subsequent adjustments.
    (7) Effective date.
    (i) [Reserved]
    (j) Treatment of certain modifications.
    (k) Reopenings.
    (1) In general.
    (2) Definitions.
    (3) Qualified reopening.
    (4) Issuer's treatment of a qualified reopening.
    (5) Effective date.

         Sec. 1.1275-3 OID information reporting requirements.

    (a) In general.
    (b) Information required to be set forth on face of debt instruments 
that are not publicly offered.
    (1) In general.
    (2) Time for legending.
    (3) Legend must survive reissuance upon transfer.
    (4) Exceptions.
    (c) Information required to be reported to Secretary upon issuance 
of publicly offered debt instruments.
    (1) In general.
    (2) Time for filing information return.
    (3) Exceptions.
    (d) Application to foreign issuers and U.S. issuers of 
foreigntargeted debt instruments.
    (e) Penalties.
    (f) Effective date.

           Sec. 1.1275-4 Contingent payment debt instruments.

    (a) Applicability.
    (1) In general.
    (2) Exceptions.
    (3) Insolvency and default.
    (4) Convertible debt instruments.
    (5) Remote and incidental contingencies.
    (b) Noncontingent bond method.
    (1) Applicability.
    (2) In general.
    (3) Description of method.
    (4) Comparable yield and projected payment schedule.
    (5) Qualified stated interest.
    (6) Adjustments.
    (7) Adjusted issue price, adjusted basis, and retirement.
    (8) Character on sale, exchange, or retirement.

[[Page 513]]

    (9) Operating rules.
    (c) Method for debt instruments not subject to the noncontingent 
bond method.
    (1) Applicability.
    (2) Separation into components.
    (3) Treatment of noncontingent payments.
    (4) Treatment of contingent payments.
    (5) Basis different from adjusted issue price.
    (6) Treatment of a holder on sale, exchange, or retirement.
    (7) Examples.
    (d) Rules for tax-exempt obligations.
    (1) In general.
    (2) Certain tax-exempt obligations with interest-based or revenue-
based payments
    (3) All other tax-exempt obligations.
    (4) Basis different from adjusted issue price.
    (e) Amounts treated as interest under this section.
    (f) Effective date.

             Sec. 1.1275-5 Variable rate debt instruments.

    (a) Applicability.
    (1) In general.
    (2) Principal payments.
    (3) Stated interest.
    (4) Current value.
    (5) No contingent principal payments.
    (6) Special rule for debt instruments issued for nonpublicly traded 
property.
    (b) Qualified floating rate.
    (1) In general.
    (2) Certain rates based on a qualified floating rate.
    (3) Restrictions on the stated rate of interest.
    (c) Objective rate.
    (1) Definition.
    (2) Other objective rates to be specified by Commissioner.
    (3) Qualified inverse floating rate.
    (4) Significant front-loading or back-loading of interest.
    (5) Tax-exempt obligations.
    (d) Examples.
    (e) Qualified stated interest and OID with respect to a variable 
rate debt instrument.
    (1) In general.
    (2) Variable rate debt instrument that provides for annual payments 
of interest at a single variable rate.
    (3) All other variable rate debt instruments except for those that 
provide for a fixed rate.
    (4) Variable rate debt instrument that provides for a single fixed 
rate.
    (f) Special rule for certain reset bonds.

       Sec. 1.1275-6 Integration of qualifying debt instruments.

    (a) In general.
    (b) Definitions.
    (1) Qualifying debt instrument.
    (2) Section 1.1275-6 hedge.
    (3) Financial instrument.
    (4) Synthetic debt instrument.
    (c) Integrated transaction.
    (1) Integration by taxpayer.
    (2) Integration by Commissioner.
    (d) Special rules for legging into and legging out of an integrated 
transaction.
    (1) Legging into.
    (2) Legging out.
    (e) Identification requirements.
    (f) Taxation of integrated transactions.
    (1) General rule.
    (2) Issue date.
    (3) Term.
    (4) Issue price.
    (5) Adjusted issue price.
    (6) Qualified stated interest.
    (7) Stated redemption price at maturity.
    (8) Source of interest income and allocation of expense.
    (9) Effectively connected income.
    (10) Not a short-term obligation.
    (11) Special rules in the event of integration by the Commissioner.
    (12) Retention of separate transaction rules for certain purposes.
    (13) Coordination with consolidated return rules.
    (g) Predecessors and successors.
    (h) Examples.
    (i) [Reserved]
    (j) Effective date.

           Sec. 1.1275-7 Inflation-indexed debt instruments.

    (a) Overview.
    (b) Applicability.
    (1) In general.
    (2) Exceptions.
    (c) Definitions.
    (1) Inflation-indexed debt instrument.
    (2) Reference index.
    (3) Qualified inflation index.
    (4) Inflation-adjusted principal amount.
    (5) Minimum guarantee payment.
    (d) Coupon bond method.
    (1) In general.
    (2) Applicability.
    (3) Qualified stated interest.
    (4) Inflation adjustments.
    (5) Example.
    (e) Discount bond method.
    (1) In general.
    (2) No qualified stated interest.
    (3) OID.
    (4) Example.
    (f) Special rules.
    (1) Deflation adjustments.
    (2) Adjusted basis.
    (3) Subsequent holders.
    (4) Minimum guarantee.
    (5) Temporary unavailability of a qualified inflation index.
    (g) Reopenings.

[[Page 514]]

    (h) Effective date.

[T.D. 8517, 59 FR 4808, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30139, June 14, 1996; T.D. 8709, 62 FR 617, Jan. 6, 1997; T.D. 8754, 63 
FR 1057, Jan. 8, 1998; T.D. 8838, 64 FR 48547, Sept. 7, 1999; T.D. 8840, 
64 FR 60343, Nov. 5, 1999; T.D. 8934, 66 FR 2815, Jan. 12, 2001; T.D. 
8993, 67 FR 30548, May 7, 2002]



Sec. 1.1271-1  Special rules applicable to amounts received on 
retirement, sale, or exchange of debt instruments.

    (a) Intention to call before maturity--(1) In general. For purposes 
of section 1271(a)(2), all or a portion of gain realized on a sale or 
exchange of a debt instrument to which section 1271 applies is treated 
as interest income if there was an intention to call the debt instrument 
before maturity. An intention to call a debt instrument before maturity 
means a written or oral agreement or understanding not provided for in 
the debt instrument between the issuer and the original holder of the 
debt instrument that the issuer will redeem the debt instrument before 
maturity. In the case of debt instruments that are part of an issue, the 
agreement or understanding must be between the issuer and the original 
holders of a substantial amount of the debt instruments in the issue. An 
intention to call before maturity can exist even if the intention is 
conditional (e.g., the issuer's decision to call depends on the 
financial condition of the issuer on the potential call date) or is not 
legally binding. For purposes of this section, original holder means the 
first holder (other than an underwriter or dealer that purchased the 
debt instrument for resale in the ordinary course of its trade or 
business).
    (2) Exceptions. In addition to the exceptions provided in sections 
1271(a)(2)(B) and 1271(b), section 1271(a)(2) does not apply to--
    (i) A debt instrument that is publicly offered (as defined in Sec. 
1.1275-1(h));
    (ii) A debt instrument to which section 1272(a)(6) applies (relating 
to certain interests in or mortgages held by a REMIC, and certain other 
debt instruments with payments subject to acceleration); or
    (iii) A debt instrument sold pursuant to a private placement 
memorandum that is distributed to more than ten offerees and that is 
subject to the sanctions of section 12(2) of the Securities Act of 1933 
(15 U.S.C. 77l) or the prohibitions of section 10(b) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78j).
    (b) Short-term obligations--(1) In general. Under sections 1271 
(a)(3) and (a)(4), all or a portion of the gain realized on the sale or 
exchange of a short-term government or nongovernment obligation is 
treated as interest income. Sections 1271 (a)(3) and (a)(4), however, do 
not apply to any short-term obligation subject to section 1281. See 
Sec. 1.1272-1(f) for rules to determine if an obligation is a short-
term obligation.
    (2) Method of making elections. Elections to accrue on a constant 
yield basis under sections 1271 (a)(3)(E) and (a)(4)(D) are made on an 
obligation-by-obligation basis by reporting the transaction on the basis 
of daily compounding on the taxpayer's timely filed Federal income tax 
return for the year of the sale or exchange. These elections are 
irrevocable.
    (3) Counting conventions. In computing the ratable share of 
acquisition discount under section 1271(a)(3) or OID under section 
1271(a)(4), any reasonable counting convention may be used (e.g., 30 
days per month/360 days per year).

[T.D. 8517, 59 FR 4809, Feb. 2, 1994]



Sec. 1.1272-1  Current inclusion of OID in income.

    (a) Overview--(1) In general. Under section 1272(a)(1), a holder of 
a debt instrument includes accrued OID in gross income (as interest), 
regardless of the holder's regular method of accounting. A holder 
includes qualified stated interest (as defined in Sec. 1.1273-1(c)) in 
income under the holder's regular method of accounting. See Sec. Sec. 
1.446-2 and 1.451-1.
    (2) Debt instruments not subject to OID inclusion rules. Sections 
1272(a)(2) and 1272(c) list exceptions to the general inclusion rule of 
section 1272(a)(1). For purposes of section 1272(a)(2)(E) (relating to 
certain loans between natural persons), a loan does not include a 
stripped bond or stripped coupon within the meaning of section 1286(e), 
and the rule in section 1272(a)(2)(E)(iii), which treats a husband and 
wife as 1

[[Page 515]]

person, does not apply to loans made between a husband and wife.
    (b) Accrual of OID--(1) Constant yield method. Except as provided in 
paragraphs (b)(2) and (b)(3) of this section, the amount of OID 
includible in the income of a holder of a debt instrument for any 
taxable year is determined using the constant yield method as described 
under this paragraph (b)(1).
    (i) Step one: Determine the debt instrument's yield to maturity. The 
yield to maturity or yield of a debt instrument is the discount rate 
that, when used in computing the present value of all principal and 
interest payments to be made under the debt instrument, produces an 
amount equal to the issue price of the debt instrument. The yield must 
be constant over the term of the debt instrument and, when expressed as 
a percentage, must be calculated to at least two decimal places. See 
paragraph (c) of this section for rules relating to the yield of certain 
debt instruments subject to contingencies.
    (ii) Step two: Determine the accrual periods. An accrual period is 
an interval of time over which the accrual of OID is measured. Accrual 
periods may be of any length and may vary in length over the term of the 
debt instrument, provided that each accrual period is no longer than 1 
year and each scheduled payment of principal or interest occurs either 
on the final day of an accrual period or on the first day of an accrual 
period. In general, the computation of OID is simplest if accrual 
periods correspond to the intervals between payment dates provided by 
the terms of the debt instrument. In computing the length of accrual 
periods, any reasonable counting convention may be used (e.g., 30 days 
per month/360 days per year).
    (iii) Step three: Determine the OID allocable to each accrual 
period. Except as provided in paragraph (b)(4) of this section, the OID 
allocable to an accrual period equals the product of the adjusted issue 
price of the debt instrument (as defined in Sec. 1.1275-1(b)) at the 
beginning of the accrual period and the yield of the debt instrument, 
less the amount of any qualified stated interest allocable to the 
accrual period. In performing this calculation, the yield must be stated 
appropriately taking into account the length of the particular accrual 
period. Example 1 in paragraph (j) of this section provides a formula 
for converting a yield based upon an accrual period of one length to an 
equivalent yield based upon an accrual period of a different length.
    (iv) Step four: Determine the daily portions of OID. The daily 
portions of OID are determined by allocating to each day in an accrual 
period the ratable portion of the OID allocable to the accrual period. 
The holder of the debt instrument includes in income the daily portions 
of OID for each day during the taxable year on which the holder held the 
debt instrument.
    (2) Exceptions. Paragraph (b)(1) of this section does not apply to--
    (i) A debt instrument to which section 1272(a)(6) applies (certain 
interests in or mortgages held by a REMIC, and certain other debt 
instruments with payments subject to acceleration);
    (ii) A debt instrument that provides for contingent payments, other 
than a debt instrument described in paragraph (c) or (d) of this section 
or except as provided in Sec. 1.1275-4; or
    (iii) A variable rate debt instrument to which Sec. 1.1275-5 
applies, except as provided in Sec. 1.1275-5.
    (3) Modifications. The amount of OID includible in income by a 
holder under paragraph (b)(1) of this section is adjusted if--
    (i) The holder purchased the debt instrument at a premium or an 
acquisition premium (within the meaning of Sec. 1.1272-2); or
    (ii) The holder made an election for the debt instrument under Sec. 
1.1272-3 to treat all interest as OID.
    (4) Special rules for determining the OID allocable to an accrual 
period. The following rules apply to determine the OID allocable to an 
accrual period under paragraph (b)(1)(iii) of this section.
    (i) Unpaid qualified stated interest allocable to an accrual period. 
In determining the OID allocable to an accrual period, if an interval 
between payments of qualified stated interest contains more than 1 
accrual period--
    (A) The amount of qualified stated interest payable at the end of 
the interval (including any qualified stated interest that is payable on 
the first day

[[Page 516]]

of the accrual period immediately following the interval) is allocated 
on a pro rata basis to each accrual period in the interval; and
    (B) The adjusted issue price at the beginning of each accrual period 
in the interval must be increased by the amount of any qualified stated 
interest that has accrued prior to the first day of the accrual period 
but that is not payable until the end of the interval. See Example 2 of 
paragraph (j) of this section for an example illustrating the rules in 
this paragraph (b)(4)(i).
    (ii) Final accrual period. The OID allocable to the final accrual 
period is the difference between the amount payable at maturity (other 
than a payment of qualified stated interest) and the adjusted issue 
price at the beginning of the final accrual period.
    (iii) Initial short accrual period. If all accrual periods are of 
equal length, except for either an initial shorter accrual period or an 
initial and a final shorter accrual period, the amount of OID allocable 
to the initial accrual period may be computed using any reasonable 
method. See Example 3 in paragraph (j) of this section.
    (iv) Payment on first day of an accrual period. The adjusted issue 
price at the beginning of an accrual period is reduced by the amount of 
any payment (other than a payment of qualified stated interest) that is 
made on the first day of the accrual period.
    (c) Yield and maturity of certain debt instruments subject to 
contingencies--(1) Applicability. This paragraph (c) provides rules to 
determine the yield and maturity of certain debt instruments that 
provide for an alternative payment schedule (or schedules) applicable 
upon the occurrence of a contingency (or contingencies). This paragraph 
(c) applies, however, only if the timing and amounts of the payments 
that comprise each payment schedule are known as of the issue date and 
the debt instrument is subject to paragraph (c)(2), (3), or (5) of this 
section. A debt instrument does not provide for an alternative payment 
schedule merely because there is a possibility of impairment of a 
payment (or payments) by insolvency, default, or similar circumstances. 
See Sec. 1.1275-4 for the treatment of a debt instrument that provides 
for a contingency that is not described in this paragraph (c). See Sec. 
1.1273-1(c) to determine whether stated interest on a debt instrument 
subject to this paragraph (c) is qualified stated interest.
    (2) Payment schedule that is significantly more likely than not to 
occur. If, based on all the facts and circumstances as of the issue 
date, a single payment schedule for a debt instrument, including the 
stated payment schedule, is significantly more likely than not to occur, 
the yield and maturity of the debt instrument are computed based on this 
payment schedule.
    (3) Mandatory sinking fund provision. Notwithstanding paragraph 
(c)(2) of this section, if a debt instrument is subject to a mandatory 
sinking fund provision, the provision is ignored for purposes of 
computing the yield and maturity of the debt instrument if the use and 
terms of the provision meet reasonable commercial standards. For 
purposes of the preceding sentence, a mandatory sinking fund provision 
is a provision that meets the following requirements:
    (i) The provision requires the issuer to redeem a certain amount of 
debt instruments in an issue prior to maturity.
    (ii) The debt instruments actually redeemed are chosen by lot or 
purchased by the issuer either in the open market or pursuant to an 
offer made to all holders (with any proration determined by lot).
    (iii) On the issue date, the specific debt instruments that will be 
redeemed on any date prior to maturity cannot be identified.
    (4) Consistency rule. [Reserved]
    (5) Treatment of certain options. Notwithstanding paragraphs (c) (2) 
and (3) of this section, the rules of this paragraph (c)(5) determine 
the yield and maturity of a debt instrument that provides the holder or 
issuer with an unconditional option or options, exercisable on one or 
more dates during the term of the debt instrument, that, if exercised, 
require payments to be made on the debt instrument under an alternative 
payment schedule or schedules (e.g., an option to extend or an option to 
call a debt instrument at a fixed premium). Under this paragraph (c)(5), 
an

[[Page 517]]

issuer is deemed to exercise or not exercise an option or combination of 
options in a manner that minimizes the yield on the debt instrument, and 
a holder is deemed to exercise or not exercise an option or combination 
of options in a manner that maximizes the yield on the debt instrument. 
If both the issuer and the holder have options, the rules of this 
paragraph (c)(5) are applied to the options in the order that they may 
be exercised. See paragraph (j) Example 5 through Example 8 of this 
section.
    (6) Subsequent adjustments. If a contingency described in this 
paragraph (c) (including the exercise of an option described in 
paragraph (c)(5) of this section) actually occurs or does not occur, 
contrary to the assumption made pursuant to this paragraph (c) (a change 
in circumstances), then, solely for purposes of sections 1272 and 1273, 
the debt instrument is treated as retired and then reissued on the date 
of the change in circumstances for an amount equal to its adjusted issue 
price on that date. See paragraph (j) Example 5 and Example 7 of this 
section. If, however, the change in circumstances results in a 
substantially contemporaneous pro-rata prepayment as defined in Sec. 
1.1275-2(f)(2), the pro-rata prepayment is treated as a payment in 
retirement of a portion of the debt instrument, which may result in gain 
or loss to the holder. See paragraph (j) Example 6 and Example 8 of this 
section.
    (7) Effective date. This paragraph (c) applies to debt instruments 
issued on or after August 13, 1996.
    (d) Certain debt instruments that provide for a fixed yield. If a 
debt instrument provides for one or more contingent payments but all 
possible payment schedules under the terms of the instrument result in 
the same fixed yield, the yield of the debt instrument is the fixed 
yield. For example, the yield of a debt instrument with principal 
payments that are fixed in total amount but that are uncertain as to 
time (such as a demand loan) is the stated interest rate if the issue 
price of the instrument is equal to the stated principal amount and 
interest is paid or compounded at a fixed rate over the entire term of 
the instrument. This paragraph (d) applies to debt instruments issued on 
or after August 13, 1996.
    (e) Convertible debt instruments. For purposes of section 1272, an 
option is ignored if it is an option to convert a debt instrument into 
the stock of the issuer, into the stock or debt of a related party 
(within the meaning of section 267(b) or 707(b)(1)), or into cash or 
other property in an amount equal to the approximate value of such stock 
or debt.
    (f) Special rules to determine whether a debt instrument is a short-
term obligation--(1) Counting of either the issue date or maturity date. 
For purposes of determining whether a debt instrument is a short-term 
obligation (i.e., a debt instrument with a fixed maturity date that is 
not more than 1 year from the date of issue), the term of the debt 
instrument includes either the issue date or the maturity date, but not 
both dates.
    (2) Coordination with paragraph (c) of this section for certain 
sections of the Internal Revenue Code. Notwithstanding paragraph (c) of 
this section, solely for purposes of determining whether a debt 
instrument is a short-term obligation under sections 871(g)(1)(B)(i), 
881, 1271(a)(3), 1271(a)(4), 1272(a)(2)(C), and 1283(a)(1), the maturity 
date of a debt instrument is the last possible date that the instrument 
could be outstanding under the terms of the instrument. For purposes of 
the preceding sentence, the last possible date that the debt instrument 
could be outstanding is determined without regard to Sec. 1.1275-2(h) 
(relating to payments subject to remote or incidental contingencies).
    (g) Basis adjustment. The basis of a debt instrument in the hands of 
the holder is increased by the amount of OID included in the holder's 
gross income and decreased by the amount of any payment from the issuer 
to the holder under the debt instrument other than a payment of 
qualified stated interest. See, however, Sec. 1.1275-2(f) for rules 
regarding basis adjustments on a pro rata prepayment.
    (h) Debt instruments denominated in a currency other than the U.S. 
dollar. Section 1272 and this section apply to a debt instrument that 
provides for all

[[Page 518]]

payments denominated in, or determined by reference to, the functional 
currency of the taxpayer or qualified business unit of the taxpayer 
(even if that currency is other than the U.S. dollar). See Sec. 1.988-
2(b) to determine interest income or expense for debt instruments that 
provide for payments denominated in, or determined by reference to, a 
nonfunctional currency.
    (i) [Reserved]
    (j) Examples. The following examples illustrate the rules of this 
section. Each example assumes that all taxpayers use the calendar year 
as the taxable year. In addition, each example assumes a 30-day month, 
360-day year, and that the initial accrual period begins on the issue 
date and the final accrual period ends on the day before the stated 
maturity date. Although, for purposes of simplicity, the yield as stated 
is rounded to two decimal places, the computations do not reflect any 
such rounding convention.

    Example 1. Accrual of OID on zero coupon debt instrument; choice of 
accrual periods--(i) Facts. On July 1, 1994, A purchases at original 
issue, for $675,564.17, a debt instrument that matures on July 1, 1999, 
and provides for a single payment of $1,000,000 at maturity.
    (ii) Determination of yield. Under paragraph (b)(1)(i) of this 
section, the yield of the debt instrument is 8 percent, compounded 
semiannually.
    (iii) Determination of accrual period. Under paragraph (b)(1)(ii) of 
this section, accrual periods may be of any length, provided that each 
accrual period is no longer than 1 year and each scheduled payment of 
principal or interest occurs either on the first or final day of an 
accrual period. The yield to maturity to be used in computing OID 
accruals in any accrual period, however, must reflect the length of the 
accrual period chosen. A yield based on compounding b times per year is 
equivalent to a yield based on compounding c times per year as indicated 
by the following formula:

r = c{(1+i/b)\b/c\-1{time} 


In which:

i = The yield based on compounding b times per year expressed as a 
decimal
r = The equivalent yield based on compounding c times per year expressed 
as a decimal
b = The number of compounding periods in a year on which i is based (for 
example, 12, if i is based on monthly compounding)
c = The number of compounding periods in a year on which r is based

    (iv) Determination of OID allocable to each accrual period. Assume 
that A decides to compute OID on the debt instrument using semiannual 
accrual periods. Under paragraph (b)(1)(iii) of this section, the OID 
allocable to the first semiannual accrual period is $27,022.56: the 
product of the issue price ($675,564.17) and the yield properly adjusted 
for the length of the accrual period (8 percent/2), less qualified 
stated interest allocable to the accrual period ($0). The daily portion 
of OID for the first semiannual accrual period is $150.13 ($27,022.56/
180).
    (v) Determination of OID if monthly accrual periods are used. 
Alternatively, assume that A decides to compute OID on the debt 
instrument using monthly accrual periods. Using the above formula, the 
yield on the debt instrument reflecting monthly compounding is 7.87 
percent, compounded monthly (12{(1+.08/2)\2/12\-1{time} ). Under 
paragraph (b)(1)(iii) of this section, the OID allocable to the first 
monthly accrual period is $4,430.48: the product of the issue price 
($675,564.17) and the yield properly adjusted for the length of the 
accrual period (7.87 percent/12), less qualified stated interest 
allocable to the accrual period ($0). The daily portion of OID for the 
first monthly accrual period is $147.68 ($4,430.48/30).
    Example 2. Accrual of OID on debt instrument with qualified stated 
interest--(i) Facts. On September 1, 1994, A purchases at original 
issue, for $90,000, B corporation's debt instrument that matures on 
September 1, 2004, and has a stated principal amount of $100,000, 
payable on that date. The debt instrument provides for semiannual 
payments of interest of $3,000, payable on September 1 and March 1 of 
each year, beginning on March 1, 1995.
    (ii) Determination of yield. The debt instrument is a 10-year debt 
instrument with an issue price of $90,000 and a stated redemption price 
at maturity of $100,000. The semiannual payments of $3,000 are qualified 
stated interest payments. Under paragraph (b)(1)(i) of this section, the 
yield is 7.44 percent, compounded semiannually.
    (iii) Accrual of OID if semiannual accrual periods are used. Assume 
that A decides to compute OID on the debt instrument using semiannual 
accrual periods. Under paragraph (b)(1)(iii) of this section, the OID 
allocable to the first semiannual accrual period equals the product of 
the issue price ($90,000) and the yield properly adjusted for the length 
of the accrual period (7.44 percent/2), less qualified stated interest 
allocable to the accrual period ($3,000). Therefore, the amount of OID 
for the first semiannual accrual period is $345.78 ($3,345.78-$3,000).
    (iv) Adjustment for accrued but unpaid qualified stated interest if 
monthly accrual periods are used. Assume, alternatively, that A decides 
to compute OID on the debt instrument using monthly accrual periods. The 
yield, compounded monthly, is 7.32 percent. Under

[[Page 519]]

paragraph (b)(1)(iii) of this section, the OID allocable to the first 
monthly accrual period is the product of the issue price ($90,000) and 
the yield properly adjusted for the length of the accrual period (7.32 
percent/12), less qualified stated interest allocable to the accrual 
period. Under paragraph (b)(4)(i)(A) of this section, the qualified 
stated interest allocable to the first monthly accrual period is the pro 
rata amount of qualified stated interest allocable to the interval 
between payment dates ($3,000x\1/6\, or $500). Therefore, the amount of 
OID for the first monthly accrual period is $49.18 ($549.18-$500). Under 
paragraph (b)(4)(i)(B) of this section, the adjusted issue price of the 
debt instrument for purposes of determining the amount of OID for the 
second monthly accrual period is $90,549.18 ($90,000 + $49.18 + $500). 
Although the adjusted issue price of the debt instrument for this 
purpose includes the amount of qualified stated interest allocable to 
the first monthly accrual period, A includes the qualified stated 
interest in income based on A's regular method of accounting (e.g., an 
accrual method or the cash receipts and disbursements method).
    Example 3. Accrual of OID for debt instrument with initial short 
accrual period--(i) Facts. On May 1, 1994, G purchases at original 
issue, for $80,000, H corporation's debt instrument maturing on July 1, 
2004. The debt instrument provides for a single payment at maturity of 
$250,000. G computes its OID using 6-month accrual periods ending on 
January 1 and July 1 of each year and an initial short 2-month accrual 
period from May 1, 1994, through June 30, 1994.
    (ii) Determination of yield. The yield on the debt instrument is 
11.53 percent, compounded semiannually.
    (iii) Determination of OID allocable to initial short accrual 
period. Under paragraph (b)(4)(iii) of this section, G may use any 
reasonable method to compute OID for the initial short accrual period. 
One reasonable method is to calculate the amount of OID pursuant to the 
following formula:

OIDshort = IPx(i/k)xf


In which:

OIDshort = The amount of OID allocable to the initial short 
accrual period
IP = The issue price of the debt instrument
i = The yield to maturity expressed as a decimal
k = The number of accrual periods in a year
f = A fraction whose numerator is the number of days in the initial 
short accrual period, and whose denominator is the number of days in a 
full accrual period

    (iv) Amount of OID for the initial short accrual period. Under this 
method, the amount of OID for the initial short accrual period is $1,537 
($80,000x(11.53 percent/2) x (60/180)).
    (v) Alternative method. Another reasonable method is to calculate 
the amount of OID for the initial short accrual period using the yield 
based on bi-monthly compounding, computed pursuant to the formula set 
forth in Example 1 of paragraph (j) of this section. Under this method, 
the amount of OID for the initial short accrual period is $1,508.38 
($80,000x(11.31 percent/6)).
    Example 4. Impermissible accrual of OID using a method other than 
constant yield method--(i) Facts. On July 1, 1994, B purchases at 
original issue, for $100,000, C corporation's debt instrument that 
matures on July 1, 1999, and has a stated principal amount of $100,000. 
The debt instrument provides for a single payment at maturity of 
$148,024.43. The yield of the debt instrument is 8 percent, compounded 
semiannually.
    (ii) Determination of yield. Assume that C uses 6 monthly accrual 
periods to compute its OID for 1994. The yield must reflect monthly 
compounding (as determined using the formula described in Example 1 of 
paragraph (j) of this section). As a result, the monthly yield of the 
debt instrument is 7.87 percent, divided by 12. C may not compute its 
monthly yield for the last 6 months in 1994 by dividing 8 percent by 12.
    Example 5. Debt instrument subject to put option--(i) Facts. On 
January 1, 1995, G purchases at original issue, for $70,000, H 
corporation's debt instrument maturing on January 1, 2010, with a stated 
principal amount of $100,000, payable at maturity. The debt instrument 
provides for semiannual payments of interest of $4,000, payable on 
January 1 and July 1 of each year, beginning on July 1, 1995. The debt 
instrument gives G an unconditional right to put the bond back to H, 
exercisable on January 1, 2005, in return for $85,000 (exclusive of the 
$4,000 of stated interest payable on that date).
    (ii) Determination of yield and maturity. Yield determined without 
regard to the put option is 12.47 percent, compounded semiannually. 
Yield determined by assuming that the put option is exercised (i.e., by 
using January 1, 2005, as the maturity date and $85,000 as the stated 
principal amount payable on that date) is 12.56 percent, compounded 
semiannually. Thus, under paragraph (c)(5) of this section, it is 
assumed that G will exercise the put option, because exercise of the 
option would increase the yield of the debt instrument. Thus, for 
purposes of calculating OID, the debt instrument is assumed to be a 10-
year debt instrument with an issue price of $70,000, a stated redemption 
price at maturity of $85,000, and a yield of 12.56 percent, compounded 
semiannually.
    (iii) Consequences if put option is, in fact, not exercised. If the 
put option is, in fact, not exercised, then, under paragraph (c)(6) of 
this section, the debt instrument is treated, solely for purposes of 
sections 1272 and 1273, as if

[[Page 520]]

it were reissued on January 1, 2005, for an amount equal to its adjusted 
issue price on that date, $85,000. The new debt instrument matures on 
January 1, 2010, with a stated principal amount of $100,000 payable on 
that date and provides for semiannual payments of interest of $4,000. 
The yield of the new debt instrument is 12.08 percent, compounded 
semiannually.
    Example 6. Debt instrument subject to partial call option--(i) 
Facts. On January 1, 1995, H purchases at original issue, for $95,000, J 
corporation's debt instrument that matures on January 1, 2000, and has a 
stated principal amount of $100,000, payable on that date. The debt 
instrument provides for semiannual payments of interest of $4,000, 
payable on January 1 and July 1 of each year, beginning on July 1, 1995. 
On January 1, 1998, J has an unconditional right to call 50 percent of 
the principal amount of the debt instrument for $55,000 (exclusive of 
the $4,000 of stated interest payable on that date). If the call is 
exercised, the semiannual payments of interest made after the call date 
will be reduced to $2,000.
    (ii) Determination of yield and maturity. Yield determined without 
regard to the call option is 9.27 percent, compounded semiannually. 
Yield determined by assuming J exercises its call option is 10.75 
percent, compounded semiannually. Thus, under paragraph (c)(5) of this 
section, it is assumed that J will not exercise the call option because 
exercise of the option would increase the yield of the debt instrument. 
Thus, for purposes of calculating OID, the debt instrument is assumed to 
be a 5-year debt instrument with a single principal payment at maturity 
of $100,000, and a yield of 9.27 percent, compounded semiannually.
    (iii) Consequences if the call option is, in fact, exercised. If the 
call option is, in fact, exercised, then under paragraph (c)(6) of this 
section, the debt instrument is treated as if the issuer made a pro rata 
prepayment of $55,000 that is subject to Sec. 1.1275-2(f). 
Consequently, under Sec. 1.1275-2(f)(1), the instrument is treated as 
consisting of two debt instruments, one that is retired on the call date 
and one that remains outstanding after the call date. The adjusted issue 
price, adjusted basis in the hands of the holder, and accrued OID of the 
original debt instrument is allocated between the two instruments based 
on the portion of the original instrument treated as retired. Since each 
payment remaining to be made after the call date is reduced by one-half, 
one-half of the adjusted issue price, adjusted basis, and accrued OID is 
allocated to the debt instrument that is treated as retired. The 
adjusted issue price of the original debt instrument immediately prior 
to the call date is $97,725.12, which equals the issue price of the 
original debt instrument ($95,000) increased by the OID previously 
includible in gross income ($2,725.12). One-half of this adjusted issue 
price is allocated to the debt instrument treated as retired, and the 
other half is allocated to the debt instrument that is treated as 
remaining outstanding. Thus, the debt instrument treated as remaining 
outstanding has an adjusted issue price immediately after the call date 
of $97,725.12/2, or $48,862.56. The yield of this debt instrument 
continues to be 9.27 percent, compounded semiannually. In addition, the 
portion of H's adjusted basis allocated to the debt instrument treated 
as retired is $97,725.12/2 or $48,862.56. Accordingly, under section 
1271, H realizes a gain on the deemed retirement equal to $6,137.44 
($55,000 - $48,862.56).
    Example 7. Debt instrument issued at par that provides for payment 
of interest in kind--(i) Facts. On January 1, 1995, A purchases at 
original issue, for $100,000, X corporation's debt instrument maturing 
on January 1, 2000, at a stated principal amount of $100,000, payable on 
that date. The debt instrument provides for annual payments of interest 
of $6,000 on January 1 of each year, beginning on January 1, 1996. The 
debt instrument gives X the unconditional right to issue, in lieu of the 
first interest payment, a second debt instrument (PIK instrument) 
maturing on January 1, 2000, with a stated principal amount of $6,000. 
The PIK instrument, if issued, would provide for annual payments of 
interest of $360 on January 1 of each year, beginning on January 1, 
1997.
    (ii) Aggregation of PIK instrument with original debt instrument. 
Under Sec. 1.1275-2(c)(3), the issuance of the PIK instrument is not 
considered a payment made on the original debt instrument, and the PIK 
instrument is aggregated with the original debt instrument. The issue 
date of the PIK instrument is the same as the original debt instrument.
    (iii) Determination of yield and maturity. The right to issue the 
PIK instrument is treated as an option to defer the initial interest 
payment until maturity. Yield determined without regard to the option is 
6 percent, compounded annually, Yield determined by assuming X exercises 
the option is 6 percent, compounded annually. Thus, under paragraph 
(c)(5) of this section, it is assumed that X will not exercise the 
option by issuing the PIK instrument because exercise of the option 
would not decrease the yield of the debt instrument. For purposes of 
calculating OID, the debt instrument is assumed to be a 5-year debt 
instrument with a single principal payment at maturity of $100,000 and 
ten semiannual interest payments of $6,000, beginning on January 1, 
1996. As a result, the debt instrument's yield is 6 percent, compounded 
annually.
    (iv) Determination of OID. Under the payment schedule that would 
result if the option was exercised, none of the interest on the debt 
instrument would be qualified stated interest. Accordingly, under Sec. 
1.1273-

[[Page 521]]

1(c)(2), no payments on the debt instrument are qualified stated 
interest payments. Thus, $6,000 of OID accrues during the first annual 
accrual period. If the PIK instrument is not issued, $6,000 of OID 
accrues during each annual accrual period.
    (v) Consequences if the PIK instrument is issued. Under paragraph 
(c)(6) of this section, if X issues the PIK instrument on January 1, 
1996, the issuance of the PIK instrument is not a payment on the debt 
instrument. Solely for purposes of sections 1272 and 1273, the debt 
instrument is deemed reissued on January 1, 1996, for an issue price of 
$106,000. The recomputed yield is 6 percent, compounded annually. The 
OID for the first annual accrual period after the deemed reissuance is 
$6,360. The adjusted issue price of the debt instrument at the beginning 
of the next annual accrual period is $106,000 ($106,000 + $6,360 - 
$6,360). The OID for each of the four remaining annual accrual periods 
is $6,360.
    Example 8. Debt instrument issued at a discount that provides for 
payment of interest in kind--(i) Facts. On January 1, 1995, T purchases 
at original issue, for $75,500, U corporation's debt instrument maturing 
on January 1, 2000, at a stated principal amount of $100,000, payable on 
that date. The debt instrument provides for annual payments of interest 
of $4,000 on January 1 of each year, beginning on January 1, 1996. The 
debt instrument gives U the unconditional right to issue, in lieu of the 
first interest payment, a second debt instrument (PIK instrument) 
maturing on January 1, 2000, with a stated principal amount of $4,000. 
The PIK instrument, if issued, would provide for annual payments of 
interest of $160 on January 1 of each year, beginning on January 1, 
1997.
    (ii) Aggregation of PIK instrument with original debt instrument. 
Under Sec. 1.1275-2(c)(3), the issuance of the PIK instrument is not 
considered a payment made on the original debt instrument, and the PIK 
instrument is aggregated with the original debt instrument. The issue 
date of the PIK instrument is the same as the original debt instrument.
    (iii) Determination of yield and maturity. The right to issue the 
PIK instrument is treated as an option to defer the initial interest 
payment until maturity. Yield determined without regard to the option is 
10.55 percent, compounded annually. Yield determined by assuming U 
exercises the option is 10.32 percent, compounded annually. Thus, under 
paragraph (c)(5) of this section, it is assumed that U will exercise the 
option by issuing the PIK instrument because exercise of the option 
would decrease the yield of the debt instrument. For purposes of 
calculating OID, the debt instrument is assumed to be a 5-year debt 
instrument with a single principal payment at maturity of $104,000 and 
four annual interest payments of $4,160, beginning on January 1, 1997. 
As a result, the yield is 10.32 percent, compounded annually.
    (iv) Consequences if the PIK instrument is not issued. Assume that T 
chooses to compute OID accruals on the basis of an annual accrual 
period. On January 1, 1996, the adjusted issue price of the debt 
instrument, and T's adjusted basis in the instrument, is $83,295.15. 
Under paragraph (c)(6) of this section, if U actually makes the $4,000 
interest payment on January 1, 1996, the debt instrument is treated as 
if U made a pro rata prepayment (within the meaning of Sec. 1.1275-
2(f)(2)) of $4,000, which reduces the amount of each payment remaining 
on the instrument by a factor of 4/104, or 1/26. Thus, under Sec. 
1.1275-2(f)(1) and section 1271, T realizes a gain of $796.34 ($4,000 -
($83,295.15/26)). The adjusted issue price of the debt instrument and 
T's adjusted basis immediately after the payment is $80,091.49 
($83,295.15 x 25/26) and the yield continues to be 10.32 percent, 
compounded annually.
    Example 9. Debt instrument with stepped interest rate--(i) Facts. On 
July 1, 1994, G purchases at original issue, for $85,000, H 
corporation's debt instrument maturing on July 1, 2004. The debt 
instrument has a stated principal amount of $100,000, payable on the 
maturity date and provides for semiannual interest payments on January 1 
and July 1 of each year, beginning on January 1, 1995. The amount of 
each payment is $2,000 for the first 5 years and $5,000 for the final 5 
years.
    (ii) Determination of OID. Assume that G computes its OID using 6-
month accrual periods ending on January 1 and July 1 of each year. The 
yield of the debt instrument, determined under paragraph (b)(1)(i) of 
this section, is 8.65 percent, compounded semiannually. Interest is 
unconditionally payable at a fixed rate of at least 4 percent, 
compounded semiannually, for the entire term of the debt instrument. 
Consequently, under Sec. 1.1273-1(c)(1), the semiannual payments are 
qualified stated interest payments to the extent of $2,000. The amount 
of OID for the first 6-month accrual period is $1,674.34 (the issue 
price of the debt instrument ($85,000) times the yield of the debt 
instrument for that accrual period (.0865/2) less the amount of any 
qualified stated interest allocable to that accrual period ($2,000)).
    Example 10. Debt instrument payable on demand that provides for 
interest at a constant rate--(i) Facts. On January 1, 1995, V purchases 
at original issue, for $100,000, W corporation's debt instrument. The 
debt instrument calls for interest to accrue at a rate of 9 percent, 
compounded annually. The debt instrument is redeemable at any time at 
the option of V for an amount equal to $100,000, plus accrued interest. 
V uses annual accrual periods to accrue OID on the debt instrument.
    (ii) Amount of OID. Pursuant to paragraph (d) of this section, the 
yield of the debt instrument is 9 percent, compounded annually.

[[Page 522]]

If the debt instrument is not redeemed during 1995, the amount of OID 
allocable to the year is $9,000.

[T.D. 8517, 59 FR 4810, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30140, June 14, 1996]



Sec. 1.1272-2  Treatment of debt instruments purchased at a premium.

    (a) In general. Under section 1272(c)(1), if a holder purchases a 
debt instrument at a premium, the holder does not include any OID in 
gross income. Under section 1272(a)(7), if a holder purchases a debt 
instrument at an acquisition premium, the holder reduces the amount of 
OID includible in gross income by the fraction determined under 
paragraph (b)(4) of this section.
    (b) Definitions and special rules--(1) Purchase. For purposes of 
section 1272 and this section, purchase means any acquisition of a debt 
instrument, including the acquisition of a newly issued debt instrument 
in a debt-for-debt exchange or the acquisition of a debt instrument from 
a donor.
    (2) Premium. A debt instrument is purchased at a premium if its 
adjusted basis, immediately after its purchase by the holder (including 
a purchase at original issue), exceeds the sum of all amounts payable on 
the instrument after the purchase date other than payments of qualified 
stated interest (as defined in Sec. 1.1273-1(c)).
    (3) Acquisition premium. A debt instrument is purchased at an 
acquisition premium if its adjusted basis, immediately after its 
purchase (including a purchase at original issue), is--
    (i) Less than or equal to the sum of all amounts payable on the 
instrument after the purchase date other than payments of qualified 
stated interest (as defined in Sec. 1.1273-1(c)); and
    (ii) Greater than the instrument's adjusted issue price (as defined 
in Sec. 1.1275-1(b)).
    (4) Acquisition premium fraction. In applying section 1272(a)(7), 
the cost of a debt instrument is its adjusted basis immediately after 
its acquisition by the purchaser. Thus, the numerator of the fraction 
determined under section 1272(a)(7)(B) is the excess of the adjusted 
basis of the debt instrument immediately after its acquisition by the 
purchaser over the adjusted issue price of the debt instrument. The 
denominator of the fraction determined under section 1272(a)(7)(B) is 
the excess of the sum of all amounts payable on the debt instrument 
after the purchase date, other than payments of qualified stated 
interest, over the instrument's adjusted issue price.
    (5) Election to accrue discount on a constant yield basis. Rather 
than applying the acquisition premium fraction, a holder of a debt 
instrument purchased at an acquisition premium may elect under Sec. 
1.1272-3 to compute OID accruals by treating the purchase as a purchase 
at original issuance and applying the mechanics of the constant yield 
method.
    (6) Special rules for determining basis--(i) Debt instruments 
acquired in exchange for other property. For purposes of section 
1272(a)(7), section 1272(c)(1), and this section, if a debt instrument 
is acquired in an exchange for other property (other than in a 
reorganization defined in section 368) and the basis of the debt 
instrument is determined, in whole or in part, by reference to the basis 
of the other property, the basis of the debt instrument may not exceed 
its fair market value immediately after the exchange. For example, if a 
debt instrument is distributed by a partnership to a partner in a 
liquidating distribution and the partner's basis in the debt instrument 
would otherwise be determined under section 732, the partner's basis in 
the debt instrument may not exceed its fair market value for purposes of 
this section.
    (ii) Acquisition by gift. For purposes of this section, a donee's 
adjusted basis in a debt instrument is the donee's basis for determining 
gain under section 1015(a).
    (c) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Debt instrument purchased at an acquisition premium--(i) 
Facts. On July 1, 1994, A purchased at original issue, for $500, a debt 
instrument issued by Corporation X. The debt instrument matures on July 
1, 1999, and calls for a single payment at maturity of $1,000. Under 
section 1273(a), the debt instrument has a stated redemption price at 
maturity of $1,000 and, thus, OID of $500. On July 1, 1996, when the 
debt instrument's adjusted issue price is $659.75, A sells the debt 
instrument to B for $750 in cash.

[[Page 523]]

    (ii) Acquisition premium fraction. Because the cost to B of the debt 
instrument is less than the amount payable on the debt instrument after 
the purchase date, but is greater than the debt instrument's adjusted 
issue price, B has paid an acquisition premium for the debt instrument. 
Accordingly, the daily portion of OID for any day that B holds the debt 
instrument is reduced by a fraction, the numerator of which is $90.25 
(the excess of the cost of the debt instrument over its adjusted issue 
price) and the denominator of which is $340.25 (the excess of the sum of 
all payments after the purchase date over its adjusted issue price).
    Example 2. Debt-for-debt exchange where holder is considered to 
purchase new debt instrument at a premium--(i) Facts. On January 1, 
1995, H purchases at original issue, for $1,000, a debt instrument 
issued by Corporation X. On July 1, 1997, when H's adjusted basis in the 
debt instrument is $1,000, Corporation X issues a new debt instrument 
with a stated redemption price at maturity of $750 to H in exchange for 
the old debt instrument. Assume that the issue price of the new debt 
instrument is $600. Thus, under section 1273(a), the debt instrument has 
OID of $150. The exchange qualifies as a recapitalization under section 
368(a)(1)(E), with the consequence that, under sections 354 and 358, H 
recognizes no loss on the exchange and has an adjusted basis in the new 
debt instrument of $1,000.
    (ii) Application of section 1272(c)(1). Under paragraphs (b)(1) and 
(b)(2) of this section, H purchases the new debt instrument at a premium 
of $250. Accordingly, under section 1272(c)(1), H is not required to 
include OID in income with respect to the new debt instrument.
    Example 3. Debt-for-debt exchange where holder is considered to 
purchase new debt instrument at an acquisition premium--(i) Facts. The 
facts are the same as in Example 2 of paragraph (c) of this section, 
except that H purchases the old debt instrument from another holder on 
July 1, 1995, and on July 1, 1997, H's adjusted basis in the old debt 
instrument is $700. Under section 1273(a), the new debt instrument is 
issued with OID of $150.
    (ii) Application of section 1272(a)(7). Under paragraphs (b)(1) and 
(b)(3) of this section, H purchases the new debt instrument at an 
acquisition premium of $100. Accordingly, the daily portion of OID that 
is includible in H's income is reduced by the fraction determined under 
section 1272(a)(7).
    Example 4. Treatment of acquisition premium for debt instrument 
acquired by gift--(i) Facts. On July 1, 1994, D receives as a gift a 
debt instrument with a stated redemption price at maturity of $1,000 and 
an adjusted issue price of $800. On that date, the fair market value of 
the debt instrument is $900 and the donor's adjusted basis in the debt 
instrument is $950.
    (ii) Application of section 1272(a)(7). Under paragraphs (b)(1), 
(b)(3), and (b)(6)(ii) of this section, D is considered to have 
purchased the debt instrument at an acquisition premium of $150. 
Accordingly, the daily portion of OID that is includible in D's income 
is reduced by the fraction determined under section 1272(a)(7).

[T.D. 8517, 59 FR 4814, Feb. 2, 1994]



Sec. 1.1272-3  Election by a holder to treat all interest on a debt 
instrument as OID.

    (a) Election. A holder of a debt instrument may elect to include in 
gross income all interest that accrues on the instrument by using the 
constant yield method described in paragraph (c) of this section. For 
purposes of this election, interest includes stated interest, 
acquisition discount, OID, de minimis OID, market discount, de minimis 
market discount, and unstated interest, as adjusted by any amortizable 
bond premium or acquisition premium.
    (b) Scope of election--(1) In general. Except as provided in 
paragraph (b)(2) of this section, a holder may make the election for any 
debt instrument.
    (2) Exceptions, limitations, and special rules--(i) Debt instrument 
with amortizable bond premium (as determined under section 171). (A) A 
holder may make the election for a debt instrument with amortizable bond 
premium only if the instrument qualifies as a bond under section 171(d).
    (B) If a holder makes the election under this section for a debt 
instrument with amortizable bond premium, the holder is deemed to have 
made the election under section 171(c)(2) for the taxable year in which 
the instrument was acquired. If the holder has previously made the 
election under section 171(c)(2), the requirements of that election with 
respect to any debt instrument are satisfied by electing to amortize the 
bond premium under the rules provided by this section.
    (ii) Debt instrument with market discount. (A) A holder may make the 
election under this section for a debt instrument with market discount 
only if the holder is eligible to make an election under section 
1278(b).
    (B) If a holder makes the election under this section for a debt 
instrument with market discount, the holder

[[Page 524]]

is deemed to have made both the election under section 1276(b)(2) for 
that instrument and the election under section 1278(b) for the taxable 
year in which the instrument was acquired. If the holder has previously 
made the election under section 1278(b), the requirements of that 
election with respect to any debt instrument are satisfied by electing 
to include the market discount in income in accordance with the rules 
provided by this section.
    (iii) Tax-exempt debt instrument. A holder may not make the election 
for a tax-exempt obligation as defined in section 1275(a)(3).
    (c) Mechanics of the constant yield method--(1) In general. For 
purposes of this section, the amount of interest that accrues during an 
accrual period is determined under rules similar to those under section 
1272 (the constant yield method). In applying the constant yield method, 
however, a debt instrument subject to the election is treated as if--
    (i) The instrument is issued for the holder's adjusted basis 
immediately after its acquisition by the holder;
    (ii) The instrument is issued on the holder's acquisition date; and
    (iii) None of the interest payments provided for in the instrument 
are qualified stated interest payments.
    (2) Special rules to determine adjusted basis. For purposes of 
paragraph (c)(1)(i) of this section--
    (i) If the debt instrument is acquired in an exchange for other 
property (other than in a reorganization defined in section 368) and the 
basis of the debt instrument is determined, in whole or in part, by 
reference to the basis of the other property, the adjusted basis of the 
debt instrument may not exceed its fair market value immediately after 
the exchange; and
    (ii) If the debt instrument was acquired with amortizable bond 
premium (as determined under section 171), the adjusted basis of the 
debt instrument is reduced by an amount equal to the value attributable 
to any conversion feature.
    (d) Time and manner of making the election. The election must be 
made for the taxable year in which the holder acquires the debt 
instrument. A holder makes the election by attaching to the holder's 
timely filed Federal income tax return a statement that the holder is 
making an election under this section and that identifies the debt 
instruments subject to the election. A holder may make the election for 
a class or group of debt instruments by attaching a statement describing 
the type or types of debt instruments being designated for the election.
    (e) Revocation of election. The election may not be revoked unless 
approved by the Commissioner.
    (f) Effective date. This section applies to debt instruments 
acquired on or after April 4, 1994.

[T.D. 8517, 59 FR 4815, Feb. 2, 1994]



Sec. 1.1273-1  Definition of OID.

    (a) In general. Section 1273(a)(1) defines OID as the excess of a 
debt instrument's stated redemption price at maturity over its issue 
price. Section 1.1273-2 defines issue price, and paragraph (b) of this 
section defines stated redemption price at maturity. Paragraph (d) of 
this section provides rules for de minimis amounts of OID. Although the 
total amount of OID for a debt instrument may be indeterminate, Sec. 
1.1272-1(d) provides a rule to determine OID accruals on certain debt 
instruments that provide for a fixed yield. See Example 10 in Sec. 
1.1272-1(j).
    (b) Stated redemption price at maturity. A debt instrument's stated 
redemption price at maturity is the sum of all payments provided by the 
debt instrument other than qualified stated interest payments. If the 
payment schedule of a debt instrument is determined under Sec. 1.1272-
1(c) (relating to certain debt instruments subject to contingencies), 
that payment schedule is used to determine the instrument's stated 
redemption price at maturity.
    (c) Qualified stated interest--(1) Definition--(i) In general. 
Qualified stated interest is stated interest that is unconditionally 
payable in cash or in property (other than debt instruments of the 
issuer), or that will be constructively received under section 451, at 
least annually at a single fixed rate (within the meaning of paragraph 
(c)(1)(iii) of this section).
    (ii) Unconditionally payable. Interest is unconditionally payable 
only if reasonable legal remedies exist to compel

[[Page 525]]

timely payment or the debt instrument otherwise provides terms and 
conditions that make the likelihood of late payment (other than a late 
payment that occurs within a reasonable grace period) or nonpayment a 
remote contingency (within the meaning of Sec. 1.1275-2(h)). For 
purposes of the preceding sentence, remedies or other terms and 
conditions are not taken into account if the lending transaction does 
not reflect arm's length dealing and the holder does not intend to 
enforce the remedies or other terms and conditions. For purposes of 
determining whether interest is unconditionally payable, the possibility 
of nonpayment due to default, insolvency, or similar circumstances, or 
due to the exercise of a conversion option described in Sec. 1.1272-
1(e) is ignored. This paragraph (c)(1)(ii) applies to debt instruments 
issued on or after August 13, 1996.
    (iii) Single fixed rate--(A) In general. Interest is payable at a 
single fixed rate only if the rate appropriately takes into account the 
length of the interval between payments. Thus, if the interval between 
payments varies during the term of the debt instrument, the value of the 
fixed rate on which a payment is based generally must be adjusted to 
reflect a compounding assumption that is consistent with the length of 
the interval preceding the payment. See Example 1 in paragraph (f) of 
this section.
    (B) Special rule for certain first and final payment intervals. 
Notwithstanding paragraph (c)(1)(iii)(A) of this section, if a debt 
instrument provides for payment intervals that are equal in length 
throughout the term of the instrument, except that the first or final 
payment interval differs in length from the other payment intervals, the 
first or final interest payment is considered to be made at a fixed rate 
if the value of the rate on which the payment is based is adjusted in 
any reasonable manner to take into account the length of the interval. 
See Example 2 of paragraph (f) of this section. The rule in this 
paragraph (c)(1)(iii)(B) also applies if the lengths of both the first 
and final payment intervals differ from the length of the other payment 
intervals.
    (2) Debt instruments subject to contingencies. The determination of 
whether a debt instrument described in Sec. 1.1272-1(c) (a debt 
instrument providing for an alternative payment schedule (or schedules) 
upon the occurrence of one or more contingencies) provides for qualified 
stated interest is made by analyzing each alternative payment schedule 
(including the stated payment schedule) as if it were the debt 
instrument's sole payment schedule. Under this analysis, the debt 
instrument provides for qualified stated interest to the extent of the 
lowest fixed rate at which qualified stated interest would be payable 
under any payment schedule. See Example (4) of paragraph (f) of this 
section.
    (3) Variable rate debt instrument. In the case of a variable rate 
debt instrument, qualified stated interest is determined under Sec. 
1.1275-5(e).
    (4) Stated interest in excess of qualified stated interest. To the 
extent that stated interest payable under a debt instrument exceeds 
qualified stated interest, the excess is included in the debt 
instrument's stated redemption price at maturity.
    (5) Short-term obligations. In the case of a debt instrument with a 
term that is not more than 1 year from the date of issue, no payments of 
interest are treated as qualified stated interest payments.
    (d) De minimis OID--(1) In general. If the amount of OID with 
respect to a debt instrument is less than the de minimis amount, the 
amount of OID is treated as zero, and all stated interest (including 
stated interest that would otherwise be characterized as OID) is treated 
as qualified stated interest.
    (2) De minimis amount. The de minimis amount is an amount equal to 
0.0025 multiplied by the product of the stated redemption price at 
maturity and the number of complete years to maturity from the issue 
date.
    (3) Installment obligations. In the case of an installment 
obligation (as defined in paragraph (e)(1) of this section), paragraph 
(d)(2) of this section is applied by substituting for the number of 
complete years to maturity the weighted average maturity (as defined in

[[Page 526]]

paragraph (e)(3) of this section). Alternatively, in the case of a debt 
instrument that provides for payments of principal no more rapidly than 
a self-amortizing installment obligation (as defined in paragraph (e)(2) 
of this section), the de minimis amount defined in paragraph (d)(2) of 
this section may be calculated by substituting 0.00167 for 0.0025.
    (4) Special rule for interest holidays, teaser rates, and other 
interest shortfalls--(i) In general. This paragraph (d)(4) provides a 
special rule to determine whether a debt instrument with a teaser rate 
(or rates), an interest holiday, or any other interest shortfall has de 
minimis OID. This rule applies if--
    (A) The amount of OID on the debt instrument is more than the de 
minimis amount as otherwise determined under paragraph (d) of this 
section; and
    (B) All stated interest provided for in the debt instrument would be 
qualified stated interest under paragraph (c) of this section except 
that for 1 or more accrual periods the interest rate is below the rate 
applicable for the remainder of the instrument's term (e.g., if as a 
result of an interest holiday, none of the stated interest is qualified 
stated interest).
    (ii) Redetermination of OID for purposes of the de minimis test. For 
purposes of determining whether a debt instrument described in paragraph 
(d)(4)(i) of this section has de minimis OID, the instrument's stated 
redemption price at maturity is treated as equal to the instrument's 
issue price plus the greater of the amount of foregone interest or the 
excess (if any) of the instrument's stated principal amount over its 
issue price. The amount of foregone interest is the amount of additional 
stated interest that would be required to be payable on the debt 
instrument during the period of the teaser rate, holiday, or shortfall 
so that all stated interest would be qualified stated interest under 
paragraph (c) of this section. See Example 5 and Example 6 of paragraph 
(f) of this section. In addition, for purposes of computing the de 
minimis amount of OID, the weighted average maturity of the debt 
instrument is determined by treating all stated interest payments as 
qualified stated interest payments.
    (5) Treatment of de minimis OID by holders--(i) Allocation of de 
minimis OID to principal payments. The holder of a debt instrument 
includes any de minimis OID (other than de minimis OID treated as 
qualified stated interest under paragraph (d)(1) of this section, such 
as de minimis OID attributable to a teaser rate or interest holiday) in 
income as stated principal payments are made. The amount includible in 
income with respect to each principal payment equals the product of the 
total amount of de minimis OID on the debt instrument and a fraction, 
the numerator of which is the amount of the principal payment made and 
the denominator of which is the stated principal amount of the 
instrument.
    (ii) Character of de minimis OID--(A) De minimis OID treated as gain 
recognized on retirement. Any amount of de minimis OID includible in 
income under this paragraph (d)(5) is treated as gain recognized on 
retirement of the debt instrument. See section 1271 to determine whether 
a retirement is treated as an exchange of the debt instrument.
    (B) Treatment of de minimis OID on sale or exchange. Any gain 
attributable to de minimis OID that is recognized on the sale or 
exchange of a debt instrument is capital gain if the debt instrument is 
a capital asset in the hands of the seller.
    (iii) Treatment of subsequent holders. If a subsequent holder 
purchases a debt instrument issued with de minimis OID at a premium (as 
defined in Sec. 1.1272-2(b)(2)), the subsequent holder does not include 
the de minimis OID in income. Otherwise, a subsequent holder includes 
any discount in income under the market discount rules (sections 1276 
through 1278) rather than under the rules of this paragraph (d)(5).
    (iv) Cross-reference. See Sec. 1.1272-3 for an election by a holder 
to treat de minimis OID as OID.
    (e) Definitions--(1) Installment obligation. An installment 
obligation is a debt instrument that provides for the payment of any 
amount other than qualified stated interest before maturity.
    (2) Self-amortizing installment obligation. A self-amortizing 
installment obligation is an obligation that provides

[[Page 527]]

for equal payments composed of principal and qualified stated interest 
that are unconditionally payable at least annually during the entire 
term of the debt instrument with no significant additional payment 
required at maturity.
    (3) Weighted average maturity. The weighted average maturity of a 
debt instrument is the sum of the following amounts determined for each 
payment under the instrument (other than a payment of qualified stated 
interest)--
    (i) The number of complete years from the issue date until the 
payment is made; multiplied by
    (ii) A fraction, the numerator of which is the amount of the payment 
and the denominator of which is the debt instrument's stated redemption 
price at maturity.
    (f) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Qualified stated interest--(i) Facts. On January 1, 1995, 
A purchases at original issue, for $100,000, a debt instrument that 
matures on January 1, 1999, and has a stated principal amount of 
$100,000, payable at maturity. The debt instrument provides for interest 
payments of $8,000 on January 1, 1996, and January 1, 1997, and 
quarterly interest payments of $1,942.65, beginning on April 1, 1997.
    (ii) Amount of qualified stated interest. The annual payments of 
$8,000 and the quarterly payments of $1,942.65 are payable at a single 
fixed rate because 8 percent, compounded annually, is equivalent to 7.77 
percent, compounded quarterly. Consequently, all stated interest 
payments under the debt instrument are qualified stated interest 
payments.
    Example 2. Qualified stated interest with short initial payment 
interval. On October 1, 1994, A purchases at original issue, for 
$100,000, a debt instrument that matures on January 1, 1998, and has a 
stated principal amount of $100,000, payable at maturity. The debt 
instrument provides for an interest payment of $2,000 on January 1, 
1995, and interest payments of $8,000 on January 1, 1996, January 1, 
1997, and January 1, 1998. Under paragraph (c)(1)(iii)(B) of this 
section, all stated interest payments on the debt instrument are 
computed at a single fixed rate and are qualified stated interest 
payments.
    Example 3. Stated interest in excess of qualified stated interest--
(i) Facts. On January 1, 1995, B purchases at original issue, for 
$100,000, C corporation's 5-year debt instrument. The debt instrument 
provides for a principal payment of $100,000, payable at maturity, and 
calls for annual interest payments of $10,000 for the first 3 years and 
annual interest payments of $10,600 for the last 2 years.
    (ii) Payments in excess of qualified stated interest. All of the 
first three interest payments and $10,000 of each of the last two 
interest payments are qualified stated interest payments within the 
meaning of paragraph (c)(1) of this section. Under paragraph (c)(4) of 
this section, the remaining $600 of each of the last two interest 
payments is included in the stated redemption price at maturity, so that 
the stated redemption price at maturity is $101,200. Pursuant to 
paragraph (e)(3) of this section, the weighted average maturity of the 
debt instrument is 4.994 years [(4 yearsx$600/$101,200)+(5 
yearsx$100,600/$101,200)]. The de minimis amount, or one-fourth of 1 
percent of the stated redemption price at maturity multiplied by the 
weighted average maturity, is $1,263.50. Because the actual amount of 
discount, $1,200, is less than the de minimis amount, the instrument is 
treated as having no OID, and, under paragraph (d)(1) of this section, 
all of the interest payments are treated as qualified stated interest 
payments.
    Example 4. Qualified stated interest on a debt instrument that is 
subject to an option--(i) Facts. On January 1, 1997, A issues, for 
$100,000, a 10-year debt instrument that provides for a $100,000 
principal payment at maturity and for annual interest payments of 
$10,000. Under the terms of the debt instrument, A has the option, 
exercisable on January 1, 2002, to lower the annual interest payments to 
$8,000. In addition, the debt instrument gives the holder an 
unconditional right to put the debt instrument back to A, exercisable on 
January 1, 2002, in return for $100,000.
    (ii) Amount of qualified stated interest. Under paragraph (c)(2) of 
this section, the debt instrument provides for qualified stated interest 
to the extent of the lowest fixed rate at which qualified stated 
interest would be payable under any payment schedule. If the payment 
schedule determined by assuming that the issuer's option will be 
exercised and the put option will not be exercised were treated as the 
debt instrument's sole payment schedule, only $8,000 of each annual 
interest payment would be qualified stated interest. Under any other 
payment schedule, the debt instrument would provide for annual qualified 
stated interest payments of $10,000. Accordingly, only $8,000 of each 
annual interest payment is qualified stated interest. Any excess of each 
annual interest payment over $8,000 is included in the debt instrument's 
stated redemption price at maturity.
    Example 5. De minimis OID; interest holiday--(i) Facts. On January 
1, 1995, C purchases at original issue, for $97,561, a debt instrument 
that matures on January 1, 2007, and has a stated principal amount of 
$100,000, payable at maturity. The debt instrument provides for an 
initial interest holiday of 1 quarter

[[Page 528]]

and quarterly interest payments of $2,500 thereafter (beginning on July 
1, 1995). The issue price of the debt instrument is $97,561. C chooses 
to accrue OID based on quarterly accrual periods.
    (ii) De minimis amount of OID. But for the interest holiday, all 
stated interest on the debt instrument would be qualified stated 
interest. Under paragraph (d)(4) of this section, for purposes of 
determining whether the debt instrument has de minimis OID, the stated 
redemption price at maturity of the instrument is $100,061 ($97,561 
(issue price) plus $2,500 (the greater of the amount of foregone 
interest ($2,500) and the amount equal to the excess of the instrument's 
stated principal amount over its issue price ($2,439)). Thus, the debt 
instrument is treated as having OID of $2,500 ($100,061 minus $97,561). 
Because this amount is less than the de minimis amount of $3,001.83 
(0.0025 multiplied by $100,061 multiplied by 12 complete years to 
maturity), the debt instrument is treated as having no OID, and all 
stated interest is treated as qualified stated interest.
    Example 6. De minimis OID; teaser rate--(i) Facts. The facts are the 
same as in Example 5 of this paragraph (f) except that C uses an initial 
semiannual accrual period rather than an initial quarterly accrual 
period.
    (ii) De minimis amount of OID. The debt instrument provides for an 
initial teaser rate because the interest rate for the semiannual accrual 
period is less than the interest rate applicable to the subsequent 
quarterly accrual periods. But for the initial teaser rate, all stated 
interest on the debt instrument would be qualified stated interest. 
Under paragraph (d)(4) of this section, for purposes of determining 
whether the debt instrument has de minimis OID, the stated redemption 
price at maturity of the instrument is $100,123.50 ($97,561 (issue 
price) plus $2,562.50 (the greater of the amount of foregone interest 
($2,562.50) and the amount equal to the excess of the instrument's 
stated principal amount over its issue price ($2,439)). Thus, the debt 
instrument is treated as having OID of $2,562.50 ($100,123.50 minus 
$97,561). Because this amount is less than the de minimis amount of 
$3,003.71 (0.0025 multiplied by $100,123.50 multiplied by 12 complete 
years to maturity), the debt instrument is treated as having no OID, and 
all stated interest is treated as qualified stated interest.

[T.D. 8517, 59 FR 4815, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30141, June 14, 1996]



Sec. 1.1273-2  Determination of issue price and issue date.

    (a) Debt instruments issued for money--(1) Issue price. If a 
substantial amount of the debt instruments in an issue is issued for 
money, the issue price of each debt instrument in the issue is the first 
price at which a substantial amount of the debt instruments is sold for 
money. Thus, if an issue consists of a single debt instrument that is 
issued for money, the issue price of the debt instrument is the amount 
paid for the instrument. For example, in the case of a debt instrument 
evidencing a loan to a natural person, the issue price of the instrument 
is the amount loaned. See Sec. 1.1275-2(d) for rules regarding Treasury 
securities. For purposes of this paragraph (a), money includes 
functional currency and, in certain circumstances, nonfunctional 
currency. See Sec. 1.988-2(b)(2) for circumstances when nonfunctional 
currency is treated as money rather than as property.
    (2) Issue date. The issue date of an issue described in paragraph 
(a)(1) of this section is the first settlement date or closing date, 
whichever is applicable, on which a substantial amount of the debt 
instruments in the issue is sold for money.
    (b) Publicly traded debt instruments issued for property--(1) Issue 
price. If a substantial amount of the debt instruments in an issue is 
traded on an established market (within the meaning of paragraph (f) of 
this section) and the issue is not described in paragraph (a)(1) of this 
section, the issue price of each debt instrument in the issue is the 
fair market value of the debt instrument, determined as of the issue 
date (as defined in paragraph (b)(2) of this section).
    (2) Issue date. The issue date of an issue described in paragraph 
(b)(1) of this section is the first date on which a substantial amount 
of the traded debt instruments in the issue is issued.
    (c) Debt instruments issued for publicly traded property--(1) Issue 
price. If a substantial amount of the debt instruments in an issue is 
issued for property that is traded on an established market (within the 
meaning of paragraph (f) of this section) and the issue is not described 
in paragraph (a)(1) or (b)(1) of this section, the issue price of each 
debt instrument in the issue is the fair market value of the property, 
determined as of the issue date (as defined in paragraph (c)(2) of this 
section). For purposes of the preceding sentence, property means a debt 
instrument, stock, security, contract, commodity,

[[Page 529]]

or nonfunctional currency. But see Sec. 1.988-2(b)(2) for circumstances 
when nonfunctional currency is treated as money rather than as property.
    (2) Issue date. The issue date of an issue described in paragraph 
(c)(1) of this section is the first date on which a substantial amount 
of the debt instruments in the issue is issued for traded property.
    (d) Other debt instruments--(1) Issue price. If an issue of debt 
instruments is not described in paragraph (a)(1), (b)(1), or (c)(1) of 
this section, the issue price of each debt instrument in the issue is 
determined as if the debt instrument were a separate issue. If the issue 
price of a debt instrument that is treated as a separate issue under the 
preceding sentence is not determined under paragraph (a)(1), (b)(1), or 
(c)(1) of this section, and if section 1274 applies to the debt 
instrument, the issue price of the instrument is determined under 
section 1274. Otherwise, the issue price of the debt instrument is its 
stated redemption price at maturity under section 1273(b)(4). See 
section 1274(c) and Sec. 1.1274-1 to determine if section 1274 applies 
to a debt instrument.
    (2) Issue date. The issue date of an issue described in paragraph 
(d)(1) of this section is the date on which the debt instrument is 
issued for money or in a sale or exchange.
    (e) Special rule for certain sales to bond houses, brokers, or 
similar persons. For purposes of determining the issue price and issue 
date of a debt instrument under this section, sales to bond houses, 
brokers, or similar persons or organizations acting in the capacity of 
underwriters, placement agents, or wholesalers are ignored.
    (f) Traded on an established market (publicly traded)--(1) In 
general. Property (including a debt instrument described in paragraph 
(b)(1) of this section) is traded on an established market for purposes 
of this section if, at any time during the 60-day period ending 30 days 
after the issue date, the property is described in paragraph (f)(2), 
(f)(3), (f)(4), or (f)(5) of this section.
    (2) Exchange listed property. Property is described in this 
paragraph (f)(2) if it is listed on--
    (i) A national securities exchange registered under section 6 of the 
Securities Exchange Act of 1934 (15 U.S.C. 78f);
    (ii) An interdealer quotation system sponsored by a national 
securities association registered under section 15A of the Securities 
Exchange Act of 1934 (15 U.S.C. 78o-3); or
    (iii) The International Stock Exchange of the United Kingdom and the 
Republic of Ireland, Limited, the Frankfurt Stock Exchange, the Tokyo 
Stock Exchange, or any other foreign exchange or board of trade that is 
designated by the Commissioner in the Internal Revenue Bulletin (see 
Sec. 601.601(d)(2)(ii) of this chapter).
    (3) Market traded property. Property is described in this paragraph 
(f)(3) if it is property of a kind that is traded either on a board of 
trade designated as a contract market by the Commodities Futures Trading 
Commission or on an interbank market.
    (4) Property appearing on a quotation medium. Property is described 
in this paragraph (f)(4) if it appears on a system of general 
circulation (including a computer listing disseminated to subscribing 
brokers, dealers, or traders) that provides a reasonable basis to 
determine fair market value by disseminating either recent price 
quotations (including rates, yields, or other pricing information) of 
one or more identified brokers, dealers, or traders or actual prices 
(including rates, yields, or other pricing information) of recent sales 
transactions (a quotation medium). A quotation medium does not include a 
directory or listing of brokers, dealers, or traders for specific 
securities, such as yellow sheets, that provides neither price 
quotations nor actual prices of recent sales transactions.
    (5) Readily quotable debt instruments--(i) In general. A debt 
instrument is described in this paragraph (f)(5) if price quotations are 
readily available from dealers, brokers, or traders.
    (ii) Safe harbors. A debt instrument is not considered to be 
described in paragraph (f)(5)(i) of this section if--
    (A) No other outstanding debt instrument of the issuer (or of any 
person who guarantees the debt instrument) is described in paragraph 
(f)(2), (f)(3), or

[[Page 530]]

(f)(4) of this section (other traded debt);
    (B) The original stated principal amount of the issue that includes 
the debt instrument does not exceed $25 million;
    (C) The conditions and covenants relating to the issuer's 
performance with respect to the debt instrument are materially less 
restrictive than the conditions and covenants included in all of the 
issuer's other traded debt (e.g., the debt instrument is subject to an 
economically significant subordination provision whereas the issuer's 
other traded debt is senior); or
    (D) The maturity date of the debt instrument is more than 3 years 
after the latest maturity date of the issuer's other traded debt.
    (6) Effect of certain temporary restrictions on trading. If there is 
any temporary restriction on trading a purpose of which is to avoid the 
characterization of the property as one that is traded on an established 
market for Federal income tax purposes, then the property is treated as 
traded on an established market. For purposes of the preceding sentence, 
a temporary restriction on trading need not be imposed by the issuer.
    (7) Convertible debt instruments. A debt instrument is not treated 
as traded on an established market solely because the debt instrument is 
convertible into property that is so traded.
    (g) Treatment of certain cash payments incident to lending 
transactions--(1) Applicability. The provisions of this paragraph (g) 
apply to cash payments made incident to private lending transactions 
(including seller financing).
    (2) Payments from borrower to lender--(i) Money lending transaction. 
In a lending transaction to which section 1273(b)(2) applies, a payment 
from the borrower to the lender (other than a payment for property or 
for services provided by the lender, such as commitment fees or loan 
processing costs) reduces the issue price of the debt instrument 
evidencing the loan. However, solely for purposes of determining the tax 
consequences to the borrower, the issue price is not reduced if the 
payment is deductible under section 461(g)(2).
    (ii) Section 1274 transaction. In a lending transaction to which 
section 1274 applies, a payment from the buyer-borrower to the seller-
lender that is designated as interest or points reduces the stated 
principal amount of the debt instrument evidencing the loan, but is 
included in the purchase price of the property. If the payment is 
deductible under section 461(g)(2), however, the issue price of the debt 
instrument (as otherwise determined under section 1274 and the rule in 
the preceding sentence) is increased by the amount of the payment to 
compute the buyer-borrower's interest deductions under section 163.
    (3) Payments from lender to borrower. A payment from the lender to 
the borrower in a lending transaction is treated as an amount loaned.
    (4) Payments between lender and third party. If, as part of a 
lending transaction, a party other than the borrower (the third party) 
makes a payment to the lender, that payment is treated in appropriate 
circumstances as made from the third party to the borrower followed by a 
payment in the same amount from the borrower to the lender and governed 
by the provisions of paragraph (g)(2) of this section. If, as part of a 
lending transaction, the lender makes a payment to a third party, that 
payment is treated in appropriate circumstances as an additional amount 
loaned to the borrower and then paid by the borrower to the third party. 
The character of the deemed payment between the borrower and the third 
party depends on the substance of the transaction.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (g).

    Example 1. Payments from borrower to lender in a cash transaction--
(i) Facts. A lends $100,000 to B for a term of 10 years. At the time the 
loan is made, B pays $4,000 in points to A. Assume that the points are 
not deductible by B under section 461(g)(2) and that the stated 
redemption price at maturity of the debt instrument is $100,000.
    (ii) Payment results in OID. Under paragraph (g)(2)(i) of this 
section, the issue price of B's debt instrument evidencing the loan is 
$96,000. Because the amount of OID on the debt instrument ($4,000) is 
more than a de minimis amount of OID, A accounts for the

[[Page 531]]

OID under Sec. 1.1272-1. B accounts for the OID under Sec. 1.163-7.
    Example 2. Payments from borrower to lender in a section 1274 
transaction--(i) Facts. A sells property to B for $1,000,000 in a 
transaction that is not a potentially abusive situation (within the 
meaning of Sec. 1.1274-3). In consideration for the property, B gives A 
$300,000 and issues a 5-year debt instrument that has a stated principal 
amount of $700,000, payable at maturity, and that calls for semiannual 
payments of interest at a rate of 8.5 percent. In addition to the cash 
downpayment, B pays A $14,000 designated as points on the loan. Assume 
that the points are not deductible under section 461(g)(2).
    (ii) Issue price. Under paragraph (g)(2)(ii) of this section, the 
stated principal amount of B's debt instrument is -$686,000 ($700,000 
minus $14,000). Assuming a test rate of 9 percent, compounded 
semiannually, the imputed principal amount of B's debt instrument under 
Sec. 1.1274-2(c)(1) is $686,153. Under Sec. 1.1274-2(b)(1), the issue 
price of B's debt instrument is the stated principal amount of $686,000. 
Because the amount of OID on the debt instrument ($700,000-$686,000, or 
$14,000) is more than a de minimis amount of OID, A accounts for the OID 
under Sec. 1.1272-1 and B accounts for the OID under Sec. 1.163-7. B's 
basis in the property purchased is $1,000,000 ($686,000 debt instrument 
plus $314,000 cash payments).
    Example 3. Payments between lender and third party (seller-paid 
points)--(i) Facts. A sells real property to B for $500,000 in a 
transaction that is not a potentially abusive situation (within the 
meaning of Sec. 1.1274-3). B makes a cash down payment of $100,000 and 
borrows $400,000 of the purchase price from a lender, L, repayable in 
annual installments over a term of 15 years calling for interest at a 
rate of 9 percent, compounded annually. As part of the transaction, A 
makes a payment of $8,000 to L to facilitate the loan to B.
    (ii) Payment results in a de minimis amount of OID. Under the 
provisions of paragraphs (g)(2)(i) and (g)(4) of this section, B is 
treated as having made an $8,000 payment directly to L and a payment of 
only $492,000 to A for the property. Thus, B's basis in the property is 
$492,000. The payment to L reduces the issue price of B's debt 
instrument to $392,000, resulting in $8,000 of OID ($400,000-$392,000). 
Because the amount of OID is de minimis under Sec. 1.1273-1(d), L 
accounts for the de minimis OID under Sec. 1.1273-1(d)(5). But see 
Sec. 1.1272-3 (election to treat de minimis OID as OID). B accounts for 
the de minimis OID under Sec. 1.163-7.

    (h) Investment units--(1) In general. Under section 1273(c)(2), an 
investment unit is treated as if the investment unit were a debt 
instrument. The issue price of the investment unit is determined under 
paragraph (a)(1), (b)(1), or (c)(1) of this section, if applicable. The 
issue price of the investment unit is then allocated between the debt 
instrument and the property right (or rights) that comprise the unit 
based on their relative fair market values. If paragraphs (a)(1), 
(b)(1), and (c)(1) of this section are not applicable, however, the 
issue price of the debt instrument that is part of the investment unit 
is determined under section 1273(b)(4) or 1274, whichever is applicable.
    (2) Consistent allocation by holders and issuer. The issuer's 
allocation of the issue price of the investment unit is binding on all 
holders of the investment unit. However, the issuer's determination is 
not binding on a holder that explicitly discloses that its allocation is 
different from the issuer's allocation. Unless otherwise provided by the 
Commissioner, the disclosure must be made on a statement attached to the 
holder's timely filed Federal income tax return for the taxable year 
that includes the acquisition date of the investment unit. See Sec. 
1.1275-2(e) for rules relating to the issuer's obligation to disclose 
certain information to holders.
    (i) [Reserved]
    (j) Convertible debt instruments. The issue price of a debt 
instrument includes any amount paid for an option to convert the 
instrument into stock (or another debt instrument) of either the issuer 
or a related party (within the meaning of section 267(b) or 707(b)(1)) 
or into cash or other property in an amount equal to the approximate 
value of such stock (or debt instrument).
    (k) Below-market loans subject to section 7872(b). The issue price 
of a below-market loan subject to section 7872(b) (a term loan other 
than a gift loan) is the issue price determined under this section, 
reduced by the excess amount determined under section 7872(b)(1).
    (l) [Reserved]
    (m) Treatment of amounts representing pre-issuance accrued 
interest--(1) Applicability. Paragraph (m)(2) of this section provides 
an alternative to the general rule of this section for determining the 
issue price of a debt instrument if--
    (i) A portion of the initial purchase price of the instrument is 
allocable to

[[Page 532]]

interest that has accrued prior to the issue date (pre-issuance accrued 
interest); and
    (ii) The instrument provides for a payment of stated interest on the 
first payment date within 1 year of the issue date that equals or 
exceeds the amount of the pre-issuance accrued interest.
    (2) Exclusion of pre-issuance accrued interest from issue price. If 
a debt instrument meets the requirements of paragraph (m)(1) of this 
section, the instrument's issue price may be computed by subtracting 
from the issue price (as otherwise computed under this section) the 
amount of pre-issuance accrued interest. If the issue price of the debt 
instrument is computed in this manner, a portion of the stated interest 
payable on the first payment date must be treated as a return of the 
excluded pre-issuance accrued interest, rather than as an amount payable 
on the instrument.
    (3) Example. The following example illustrates the rule of paragraph 
(m) of this section.

    Example: (i) Facts. On January 15, 1995, A purchases at original 
issue, for $1,005, B corporation's debt instrument. The debt instrument 
provides for a payment of principal of $1,000 on January 1, 2005, and 
provides for semiannual interest payments of $60 on January 1 and July 1 
of each year, beginning on July 1, 1995.
    (ii) Determination of pre-issuance accrued interest. Under 
paragraphs (m)(1) and (m)(2) of this section, $5 of the $1,005 initial 
purchase price of the debt instrument is allocable to pre-issuance 
accrued interest. Accordingly, the debt instrument's issue price may be 
computed by subtracting the amount of pre-issuance accrued interest ($5) 
from the issue price otherwise computed under this section ($1,005), 
resulting in an issue price of $1,000. If the issue price is computed in 
this manner, $5 of the $60 payment made on July 1, 1995, must be treated 
as a repayment by B of the pre-issuance accrued interest.

[T.D. 8517, 59 FR 4817, Feb. 2, 1994]



Sec. 1.1274-1  Debt instruments to which section 1274 applies.

    (a) In general. Subject to the exceptions and limitations in 
paragraph (b) of this section, section 1274 and this section apply to 
any debt instrument issued in consideration for the sale or exchange of 
property. For purposes of section 1274, property includes debt 
instruments and investment units, but does not include money, services, 
or the right to use property. For the treatment of certain obligations 
given in exchange for services or the use of property, see sections 404 
and 467. For purposes of this paragraph (a), money includes functional 
currency and, in certain circumstances, nonfunctional currency. See 
Sec. 1.988-2(b)(2) for circumstances when nonfunctional currency is 
treated as money rather than as property.
    (b) Exceptions--(1) Debt instrument with adequate stated interest 
and no OID. Section 1274 does not apply to a debt instrument if--
    (i) All interest payable on the instrument is qualified stated 
interest;
    (ii) The stated rate of interest is at least equal to the test rate 
of interest (as defined in Sec. 1.1274-4);
    (iii) The debt instrument is not issued in a potentially abusive 
situation (as defined in Sec. 1.1274-3); and
    (iv) No payment from the buyer-borrower to the seller-lender 
designated as points or interest is made at the time of issuance of the 
debt instrument.
    (2) Exceptions under sections 1274(c)(1)(B), 1274(c)(3), 1274A(c), 
and 1275(b)(1)--(i) In general. Sections 1274(c)(1)(B), 1274(c)(3), 
1274A(c), and 1275(b)(1) describe certain transactions to which section 
1274 does not apply. This paragraph (b)(2) provides certain rules to be 
used in applying those exceptions.
    (ii) Special rules for certain exceptions under section 1274(c)(3)--
(A) Determination of sales price for certain sales of farms. For 
purposes of section 1274(c)(3)(A), the determination as to whether the 
sales price cannot exceed $1,000,000 is made without regard to any other 
exception to, or limitation on, the applicability of section 1274 (e.g., 
without regard to the special rules regarding sales of principal 
residences and land transfers between related persons). In addition, the 
sales price is determined without regard to section 1274 and without 
regard to any stated interest. The sales price includes the amount of 
any liability included in the amount realized from the sale or exchange. 
See Sec. 1.1001-2.
    (B) Sales involving total payments of $250,000 or less. Under 
section 1274(c)(3)(C), the determination of the

[[Page 533]]

amount of payments due under all debt instruments and the amount of 
other consideration to be received is made as of the date of the sale or 
exchange or, if earlier, the contract date. If the precise amount due 
under any debt instrument or the precise amount of any other 
consideration to be received cannot be determined as of that date, 
section 1274(c)(3)(C) applies only if it can be determined that the 
maximum of the aggregate amount of payments due under the debt 
instruments and other consideration to be received cannot exceed 
$250,000. For purposes of section 1274(c)(3)(C), if a liability is 
assumed or property is taken subject to a liability, the aggregate 
amount of payments due includes the outstanding principal balance or 
adjusted issue price (in the case of an obligation originally issued at 
a discount) of the obligation.
    (C) Coordination with section 1273 and Sec. 1.1273-2. In accordance 
with section 1274(c)(3)(D), section 1274 and this section do not apply 
if the issue price of a debt instrument issued in consideration for the 
sale or exchange of property is determined under paragraph (a)(1), 
(b)(1), or (c)(1) of Sec. 1.1273-2.
    (3) Other exceptions to section 1274--(i) Holders of certain below-
market instruments. Section 1274 does not apply to any holder of a debt 
instrument that is issued in consideration for the sale or exchange of 
personal use property (within the meaning of section 1275(b)(3)) in the 
hands of the issuer and that evidences a below-market loan described in 
section 7872(c)(1).
    (ii) Transactions involving certain demand loans. Section 1274 does 
not apply to any debt instrument that evidences a demand loan that is a 
below-market loan described in section 7872(c)(1).
    (iii) Certain transfers subject to section 1041. Section 1274 does 
not apply to any debt instrument issued in consideration for a transfer 
of property subject to section 1041 (relating to transfers of property 
between spouses or incident to divorce).
    (c) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Single stated rate paid semiannually. A debt instrument 
issued in consideration for the sale of nonpublicly traded property in a 
transaction that is not a potentially abusive situation calls for the 
payment of a principal amount of $1,000,000 at the end of a 10-year term 
and 20 semiannual interest payments of $60,000. Assume that the test 
rate of interest is 12 percent, compounded semiannually. The debt 
instrument is not subject to section 1274 because it provides for 
interest equal to the test rate and all interest payable on the 
instrument is qualified stated interest.
    Example 2. Sale of farm for debt instrument with contingent 
interest--(i) Facts. On July 1, 1995, A, an individual, sells to B land 
used as a farm within the meaning of section 6420(c)(2). As partial 
consideration for the sale, B issues a debt instrument calling for a 
single $500,000 payment due in 10 years unless profits from the land in 
each of the 10 years preceding maturity of the debt instrument exceed a 
specified amount, in which case B is to make a payment of $1,200,000. 
The debt instrument does not provide for interest.
    (ii) Total payments may exceed $1,000,000. Even though the total 
payments ultimately payable under the contract may be less than 
$1,000,000, at the time of the sale or exchange it cannot be determined 
that the sales price cannot exceed $1,000,000. Thus, the sale of the 
land used as a farm is not an excepted transaction described in section 
1274(c)(3)(A).
    Example 3. Sale between related parties subject to section 483(e)--
(i) Facts. On July 1, 1995, A, an individual, sells land (not used as a 
farm within the meaning of section 6420(c)(2)) to A's child B for 
$650,000. In consideration for the sale, B issues a 10-year debt 
instrument to A that calls for a payment of $650,000. No other 
consideration is given. The debt instrument does not provide for 
interest.
    (ii) Treatment of debt instrument. For purposes of section 483(e), 
the $650,000 debt instrument is treated as two separate debt 
instruments: a $500,000 debt instrument and a $150,000 debt instrument. 
The $500,000 debt instrument is subject to section 483(e), and 
accordingly is covered by the exception from section 1274 described in 
section 1274(c)(3)(F). Because the amount of the payments due as 
consideration for the sale exceeds $250,000, however, the $150,000 debt 
instrument is subject to section 1274.

[T.D. 8517, 59 FR 4820, Feb. 2, 1994]



Sec. 1.1274-2  Issue price of debt instruments to which section 1274 
applies.

    (a) In general. If section 1274 applies to a debt instrument, 
section 1274 and this section determine the issue price of the debt 
instrument. For rules relating to the determination of the amount and 
timing of OID to be included in income, see section 1272 and the 
regulations thereunder.

[[Page 534]]

    (b) Issue price--(1) Debt instruments that provide for adequate 
stated interest; stated principal amount. The issue price of a debt 
instrument that provides for adequate stated interest is the stated 
principal amount of the debt instrument. For purposes of section 1274, 
the stated principal amount of a debt instrument is the aggregate amount 
of all payments due under the debt instrument, excluding any amount of 
stated interest. Under Sec. 1.1273-2(g)(2)(ii), however, the stated 
principal amount of a debt instrument is reduced by any payment from the 
buyer- borrower to the seller-lender that is designated as interest or 
points. See Example 2 of Sec. 1.1273-2(g)(5).
    (2) Debt instruments that do not provide for adequate stated 
interest; imputed principal amount. The issue price of a debt instrument 
that does not provide for adequate stated interest is the imputed 
principal amount of the debt instrument.
    (3) Debt instruments issued in a potentially abusive situation; fair 
market value. Notwithstanding paragraphs (b)(1) and (b)(2) of this 
section, in the case of a debt instrument issued in a potentially 
abusive situation (as defined in Sec. 1.1274-3), the issue price of the 
debt instrument is the fair market value of the property received in 
exchange for the debt instrument, reduced by the fair market value of 
any consideration other than the debt instrument issued in consideration 
for the sale or exchange.
    (c) Determination of whether a debt instrument provides for adequate 
stated interest--(1) In general. A debt instrument provides for adequate 
stated interest if its stated principal amount is less than or equal to 
its imputed principal amount. Imputed principal amount means the sum of 
the present values, as of the issue date, of all payments, including 
payments of stated interest, due under the debt instrument (determined 
by using a discount rate equal to the test rate of interest as 
determined under Sec. 1.1274-4). If a debt instrument has a single 
fixed rate of interest that is paid or compounded at least annually, and 
that rate is equal to or greater than the test rate, the debt instrument 
has adequate stated interest.
    (2) Determination of present value. The present value of a payment 
is determined by discounting the payment from the date it becomes due to 
the date of the sale or exchange at the test rate of interest. To 
determine present value, a compounding period must be selected, and the 
test rate must be based on the same compounding period.
    (d) Treatment of certain options. This paragraph (d) provides rules 
for determining the issue price of a debt instrument to which section 
1274 applies (other than a debt instrument issued in a potentially 
abusive situation) that is subject to one or more options described in 
both paragraphs (c)(1) and (c)(5) of Sec. 1.1272-1. Under this 
paragraph (d), an issuer will be deemed to exercise or not exercise an 
option or combination of options in a manner that minimizes the 
instrument's imputed principal amount, and a holder will be deemed to 
exercise or not exercise an option or combination of options in a manner 
that maximizes the instrument's imputed principal amount. If both the 
issuer and the holder have options, the rules of this paragraph (d) are 
applied to the options in the order that they may be exercised. Thus, 
the deemed exercise of one option may eliminate other options that are 
later in time. See Sec. 1.1272-1(c)(5) to determine the debt 
instrument's yield and maturity for purposes of determining the accrual 
of OID with respect to the instrument.
    (e) Mandatory sinking funds. In determining the issue price of a 
debt instrument to which section 1274 applies (other than a debt 
instrument issued in a potentially abusive situation) and that is 
subject to a mandatory sinking fund provision described in Sec. 1.1272-
1(c)(3), the mandatory sinking fund provision is ignored.
    (f) Treatment of variable rate debt instruments--(1) Stated interest 
at a qualified floating rate--(i) In general. For purposes of paragraph 
(c) of this section, the imputed principal amount of a variable rate 
debt instrument (within the meaning of Sec. 1.1275-5(a)) that provides 
for stated interest at a qualified floating rate (or rates) is 
determined by assuming that the instrument provides for a fixed rate of 
interest for

[[Page 535]]

each accrual period to which a qualified floating rate applies. For 
purposes of the preceding sentence, the assumed fixed rate in each 
accrual period is the greater of--
    (A) The value of the applicable qualified floating rate as of the 
first date on which there is a binding written contract that 
substantially sets forth the terms under which the sale or exchange is 
ultimately consummated; or
    (B) The value of the applicable qualified floating rate as of the 
date on which the sale or exchange occurs.
    (ii) Interest rate restrictions. Notwithstanding paragraph (f)(1)(i) 
of this section, if, as a result of interest rate restrictions (such as 
an interest rate cap), the expected yield of the debt instrument taking 
the restrictions into account is significantly less than the expected 
yield of the debt instrument without regard to the restrictions, the 
interest payments on the debt instrument (other than any fixed interest 
payments) are treated as contingent payments. Reasonably symmetric 
interest rate caps and floors, or reasonably symmetric governors, that 
are fixed throughout the term of the debt instrument do not result in 
the debt instrument being subject to this rule.
    (2) Stated interest at a single objective rate. For purposes of 
paragraph (c) of this section, the imputed principal amount of a 
variable rate debt instrument (within the meaning of Sec. 1.1275-5(a)) 
that provides for stated interest at a single objective rate is 
determined by treating the interest payments as contingent payments.
    (g) Treatment of contingent payment debt instruments. 
Notwithstanding paragraph (b) of this section, if a debt instrument 
subject to section 1274 provides for one or more contingent payments, 
the issue price of the debt instrument is the lesser of the instrument's 
noncontingent principal payments and the sum of the present values of 
the noncontingent payments (as determined under paragraph (c) of this 
section). However, if the debt instrument is issued in a potentially 
abusive situation, the issue price of the debt instrument is the fair 
market value of the noncontingent payments. For additional rules 
relating to a debt instrument that provides for one or more contingent 
payments, see Sec. 1.1275-4. This paragraph (g) applies to debt 
instruments issued on or after August 13, 1996.
    (h) Examples. The following examples illustrate the rules of this 
section. Each example assumes a 30-day month, 360-day year. In addition, 
each example assumes that the debt instrument is not a qualified debt 
instrument (as defined in section 1274A(b)) and is not issued in a 
potentially abusive situation.

    Example 1. Debt instrument without a fixed rate over its entire 
term--(i) Facts. On January 1, 1995, A sells nonpublicly traded property 
to B for a stated purchase price of $3,500,000. In consideration for the 
sale, B makes a down payment of $500,000 and issues a 10-year debt 
instrument with a stated principal amount of $3,000,000, payable at 
maturity. The debt instrument calls for no interest in the first 2 years 
and interest at a rate of 15 percent payable annually over the remaining 
8 years of the debt instrument. The first interest payment of $450,000 
is due on December 31, 1997, and the last interest payment is due on 
December 31, 2004, together with the $3,000,000 payment of principal. 
Assume that the test rate of interest applicable to the debt instrument 
is 10.5 percent, compounded annually.
    (ii) Applicability of section 1274. Because the debt instrument does 
not provide for any interest during the first 2 years, none of the 
interest on the debt instrument is qualified stated interest. Therefore, 
the issue price of the debt instrument is determined under section 1274. 
See Sec. 1.1274-1(b)(1). If the debt instrument has adequate stated 
interest, the issue price of the instrument is its stated principal 
amount. Otherwise, the issue price of the debt instrument is its imputed 
principal amount. The debt instrument has adequate stated interest only 
if the stated principal amount is less than or equal to the imputed 
principal amount.
    (iii) Determination of imputed principal amount. To compute the 
imputed principal amount of the debt instrument, all payments due under 
the debt instrument are discounted back to the issue date at 10.5 
percent, compounded annually, as follows:
    (A) The present value of the $3,000,000 principal payment payable on 
December 31, 2004, is $1,105,346.59, determined as follows:
[GRAPHIC] [TIFF OMITTED] TR02FE94.000

    (B) The present value of the eight interest payments of $450,000 as 
of January 1, 1997, is $2,357,634.55, determined as follows:

[[Page 536]]

[GRAPHIC] [TIFF OMITTED] TR02FE94.001

    (C) The present value of this interim amount as of January 1, 1995, 
is $1,930,865.09, determined as follows:
[GRAPHIC] [TIFF OMITTED] TR02FE94.002

    (iv) Determination of issue price. The debt instrument's imputed 
principal amount (that is, the present value of all payments due under 
the debt instrument) is $3,036,211.68 ($1,105,346.59+$1,930,865.09). 
Because the stated principal amount ($3,000,000) is less than the 
imputed principal amount, the debt instrument provides for adequate 
stated interest. Therefore, the issue price of the debt instrument is 
its stated principal amount ($3,000,000).
    Example 2. Debt instrument subject to issuer call option--(i) Facts. 
On January 1, 1995, in partial consideration for the sale of nonpublicly 
traded property, H corporation issues to G a 10-year debt instrument, 
maturing on January 1, 2005, with a stated principal amount of 
$10,000,000, payable on that date. The debt instrument provides for 
annual payments of interest of 8 percent for the first 5 years and 14 
percent for the final 5 years, payable on January 1 of each year, 
beginning on January 1, 1996. In addition the debt instrument provides H 
with the unconditional option to call (prepay) the debt instrument at 
the end of 5 years for its stated principal amount of $10,000,000. 
Assume that the Federal mid-term and long-term rates applicable to the 
sale based on annual compounding are 9 percent and 10 percent, 
respectively.
    (ii) Option presumed exercised. Assuming exercise of the call 
option, the imputed principal amount as determined under paragraph (d) 
of this section is $9,611,034.87 (the present value of all of the 
payments due within a 5-year term discounted at a test rate of 9 
percent, compounded annually). Assuming nonexercise of the call option, 
the imputed principal amount is $10,183,354.78 (the present value of all 
of the payments due within a 10-year term discounted at a test rate of 
10 percent, compounded annually). For purposes of determining the 
imputed principal amount, the option is presumed exercised because the 
imputed principal amount, assuming exercise of the option, is less than 
the imputed principal amount, assuming the option is not exercised. 
Because the option is presumed exercised, the debt instrument fails to 
provide for adequate stated interest because the imputed principal 
amount ($9,611,034.87) is less than the stated principal amount 
($10,000,000). Thus, the issue price of the debt instrument is 
$9,611,034.87.
    Example 3. Variable rate debt instrument with a single rate over its 
entire term--(i) Facts. On January 1, 1995, A sells B nonpublicly traded 
property. In partial consideration for the sale, B issues a debt 
instrument in the principal amount of $1,000,000, payable in 5 years. 
The debt instrument calls for interest payable monthly at a rate of 1 
percentage point above the average prime lending rate of a major bank 
for the month preceding the month of the interest payment. Assume that 
the test rate of interest applicable to the debt instrument is 10.5 
percent, compounded monthly. Assume also that 1 percentage point above 
the prime lending rate of the designated bank on the date of the sale is 
12.5 percent, compounded monthly, which is greater than 1 percentage 
point above the prime lending rate of the designated bank on the first 
date on which there is a binding written contract that substantially 
sets forth the terms under which the sale is consummated.
    (ii) Debt instrument has adequate stated interest. The debt 
instrument is a variable rate debt instrument (within the meaning of 
Sec. 1.1275-5) that provides for stated interest at a qualified 
floating rate. Under paragraph (f)(1)(i) of this section, the debt 
instrument is treated as if it provided for a fixed rate of interest 
equal to 12.5 percent, compounded monthly. Because the test rate of 
interest is 10.5 percent, compounded monthly, the debt instrument 
provides for adequate stated interest.
    Example 4. Debt instrument with a capped variable rate. On July 1, 
1995, A sells nonpublicly traded property to B in return for a debt 
instrument with a stated principal amount of $10,000,000, payable on 
July 1, 2005. Interest is payable on July 1 of each year, beginning on 
July 1, 1996, at the Federal short-term rate for June of the same year. 
The debt instrument provides, however, that the interest rate cannot 
rise above 8.5 percent, compounded annually. Assume that, as of the date 
the test rate of interest for the debt instrument is determined, the 
Federal short-term rate is 8 percent, compounded annually. Assume 
further that, as a result of the interest rate cap of 8.5 percent, 
compounded annually, the expected yield of the debt instrument is 
significantly less than the expected yield of the debt instrument if it 
did not include the interest rate cap. Under paragraph (f)(1)(ii) of 
this section, the variable payments are treated as contingent payments 
for purposes of this section.

    (i) [Reserved]
    (j) Special rules for tax-exempt obligations--(1) Certain variable 
rate debt instruments. Notwithstanding paragraph (b) of this section, if 
a tax-exempt obligation (as defined in section 1275(a)(3)) is a variable 
rate debt instrument

[[Page 537]]

(within the meaning of Sec. 1.1275-5) that pays interest at an 
objective rate and is subject to section 1274, the issue price of the 
obligation is the greater of the obligation's fair market value and its 
stated principal amount.
    (2) Contingent payment debt instruments. Notwithstanding paragraphs 
(b) and (g) of this section, if a tax-exempt obligation (as defined in 
section 1275(a)(3)) is subject to section 1274 and Sec. 1.1275-4, the 
issue price of the obligation is the fair market value of the 
obligation. However, in the case of a tax-exempt obligation that is 
subject to Sec. 1.1275-4(d)(2) (an obligation that provides for 
interest-based or revenue-based payments), the issue price of the 
obligation is the greater of the obligation's fair market value and its 
stated principal amount.
    (3) Effective date. This paragraph (j) applies to debt instruments 
issued on or after August 13, 1996.

[T.D. 8517, 59 FR 4821, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30141, June 14, 1996]



Sec. 1.1274-3  Potentially abusive situations defined.

    (a) In general. For purposes of section 1274, a potentially abusive 
situation means---
    (1) A tax shelter (as defined in section 6662(d)(2)(C)(ii)); or
    (2) Any other situation involving--
    (i) A recent sales transaction;
    (ii) Nonrecourse financing;
    (iii) Financing with a term in excess of the useful life of the 
property; or
    (iv) A debt instrument with clearly excessive interest.
    (b) Operating rules--(1) Debt instrument exchanged for nonrecourse 
financing. Nonrecourse financing does not include an exchange of a 
nonrecourse debt instrument for an outstanding recourse or nonrecourse 
debt instrument.
    (2) Nonrecourse debt with substantial down payment. Nonrecourse 
financing does not include a sale or exchange of a real property 
interest financed by a nonrecourse debt instrument if, in addition to 
the nonrecourse debt instrument, the purchaser makes a down payment in 
money that equals or exceeds 20 percent of the total stated purchase 
price of the real property interest. For purposes of the preceding 
sentence, a real property interest means any interest, other than an 
interest solely as a creditor, in real property.
    (3) Clearly excessive interest. Interest on a debt instrument is 
clearly excessive if the interest, in light of the terms of the debt 
instrument and the creditworthiness of the borrower, is clearly greater 
than the arm's length amount of interest that would have been charged in 
a cash lending transaction between the same two parties.
    (c) Other situations to be specified by Commissioner. The 
Commissioner may designate in the Internal Revenue Bulletin situations 
that, although described in paragraph (a)(2) of this section, will not 
be treated as potentially abusive because they do not have the effect of 
significantly misstating basis or amount realized (see Sec. 
601.601(d)(2)(ii) of this chapter).
    (d) Consistency rule. The issuer's determination that the debt 
instrument is or is not issued in a potentially abusive situation is 
binding on all holders of the debt instrument. However, the issuer's 
determination is not binding on a holder who explicitly discloses a 
position that is inconsistent with the issuer's determination. Unless 
otherwise prescribed by the Commissioner, the disclosure must be made on 
a statement attached to the holder's timely filed Federal income tax 
return for the taxable year that includes the acquisition date of the 
debt instrument. See Sec. 1.1275-2(e) for rules relating to the 
issuer's obligation to disclose certain information to holders.

[T.D. 8517, 59 FR 4822, Feb. 2, 1994]



Sec. 1.1274-4  Test rate.

    (a) Determination of test rate of interest--(1) In general--(i) Test 
rate is the 3-month rate. Except as provided in paragraph (a)(2) of this 
section, the test rate of interest for a debt instrument issued in 
consideration for the sale or exchange of property is the 3-month rate.
    (ii) The 3-month rate. Except as provided in paragraph (a)(1)(iii) 
of this section, the 3-month rate is the lower of--
    (A) The lowest applicable Federal rate (based on the appropriate 
compounding period) in effect during the 3-month period ending with the 
first month in which there is a binding written contract that 
substantially

[[Page 538]]

sets forth the terms under which the sale or exchange is ultimately 
consummated; or
    (B) The lowest applicable Federal rate (based on the appropriate 
compounding period) in effect during the 3-month period ending with the 
month in which the sale or exchange occurs.
    (iii) Special rule if there is no binding written contract. If there 
is no binding written contract that substantially sets forth the terms 
under which the sale or exchange is ultimately consummated, the 3-month 
rate is the lowest applicable Federal rate (based on the appropriate 
compounding period) in effect during the 3-month period ending with the 
month in which the sale or exchange occurs.
    (2) Test rate for certain debt instruments--(i) Sale-leaseback 
transactions. Under section 1274(e) (relating to certain sale-leaseback 
transactions), the test rate is 110 percent of the 3-month rate 
determined under paragraph (a)(1) of this section. For purposes of 
section 1274(e)(3), related party means a person related to the 
transferor within the meaning of section 267(b) or 707(b)(1).
    (ii) Qualified debt instrument. Under section 1274A(a), the test 
rate for a qualified debt instrument is no greater than 9 percent, 
compounded semiannually, or an equivalent rate based on an appropriate 
compounding period.
    (iii) Alternative test rate for short-term obligations--(A) 
Requirements. This paragraph (a)(2)(iii)(A) provides an alternative test 
rate under section 1274(d)(1)(D) for a debt instrument with a maturity 
of 1 year or less. This alternative test rate applies, however, only if 
the debt instrument provides for adequate stated interest using the 
alternative test rate, the issuer provides on the face of the debt 
instrument that the instrument qualifies as having adequate stated 
interest under section 1274(d)(1)(D), and the issuer and holder treat or 
agree to treat the instrument as having adequate stated interest.
    (B) Alternative test rate. For purposes of paragraph (a)(2)(iii)(A), 
the alternative test rate is the market yield on U.S. Treasury bills 
with the same maturity date as the debt instrument. If the same maturity 
date is not available, the market yield on U.S. Treasury bills that 
mature in the same week or month as the debt instrument is used. The 
alternative test rate is determined as of the date on which there is a 
binding written contract that substantially sets forth the terms under 
which the sale or exchange is ultimately consummated or as of the date 
of the sale or exchange, whichever date results in a lower rate. If 
there is no binding written contract, however, the alternative test rate 
is determined as of the date of the sale or exchange.
    (b) Applicable Federal rate. Except as otherwise provided in this 
section, the applicable Federal rate for a debt instrument is based on 
the term of the instrument (i.e., short-term, mid-term, or long-term). 
See section 1274(d)(1). The Internal Revenue Service publishes the 
applicable Federal rates for each month in the Internal Revenue Bulletin 
(see Sec. 601.601(d)(2)(ii) of this chapter). The applicable Federal 
rates are based on the yield to maturity of outstanding marketable 
obligations of the United States of similar maturities during the one 
month period ending on the 14th day of the month preceding the month for 
which the rates are applicable.
    (c) Special rules to determine the term of a debt instrument for 
purposes of determining the applicable Federal rate--(1) Installment 
obligation. If a debt instrument is an installment obligation (as 
defined in Sec. 1.1273-1(e)(1)), the term of the instrument is the 
instrument's weighted average maturity (as defined in Sec. 1.1273-
1(e)(3)).
    (2) Certain variable rate debt instruments--(i) In general. Except 
as otherwise provided in paragraph (c)(2)(ii) of this section, if a 
variable rate debt instrument (as defined in Sec. 1.1275-5(a)) provides 
for stated interest at a qualified floating rate (or rates), the term of 
the instrument is determined by reference to the longest interval 
between interest adjustment dates, or, if the variable rate debt 
instrument provides for a fixed rate, the interval between the issue 
date and the last day on which the fixed rate applies, if this interval 
is longer.
    (ii) Restrictions on adjustments. If, due to significant 
restrictions on variations in a qualified floating rate or the use of 
certain formulae pursuant to

[[Page 539]]

Sec. 1.1275-5(b)(2) (e.g., 15 percent of 1-year LIBOR, plus 800 basis 
points), the rate in substance resembles a fixed rate, the applicable 
Federal rate is determined by reference to the term of the debt 
instrument.
    (3) Counting of either the issue date or the maturity date. The term 
of a debt instrument includes either the issue date or the maturity 
date, but not both dates.
    (4) Certain debt instruments that provide for principal payments 
uncertain as to time. If a debt instrument provides for principal 
payments that are fixed in total amount but uncertain as to time, the 
term of the instrument is determined by reference to the latest possible 
date on which a principal payment can be made or, in the case of an 
installment obligation, by reference to the longest weighted average 
maturity under any possible payment schedule.
    (d) Foreign currency loans. If all of the payments of a debt 
instrument are denominated in, or determined by reference to, a currency 
other than the U.S. dollar, the applicable Federal rate for the debt 
instrument is a foreign currency rate of interest that is analogous to 
the applicable Federal rate described in this section. For this purpose, 
an analogous rate of interest is a rate based on yields (with the 
appropriate compounding period) of the highest grade of outstanding 
marketable obligations denominated in such currency (excluding any 
obligations that benefit from special tax exemptions or preferential tax 
rates not available to debt instruments generally) with due 
consideration given to the maturities of the obligations.
    (e) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Variable rate debt instrument that limits the amount of 
increase and decrease in the rate--(i) Facts. On July 1, 1996, A sells 
nonpublicly traded property to B in return for a 5-year debt instrument 
that provides for interest to be paid on July 1 of each year, beginning 
on July 1, 1997, based on the prime rate of a local bank on that date. 
However, the interest rate cannot increase or decrease from one year to 
the next by more than .25 percentage points (25 basis points).
    (ii) Significant restriction. The debt instrument is a variable rate 
debt instrument (as defined in Sec. 1.1275-5) that provides for stated 
interest at a qualified floating rate. Assume that based on all the 
facts and circumstances, the restriction is a significant restriction on 
the variations in the rate of interest. Under paragraph (c)(2)(ii) of 
this section, the applicable Federal rate is determined by reference to 
the term of the debt instrument, and the applicable Federal rate is the 
Federal mid-term rate.
    Example 2. Installment obligation--(i) Facts. On January 1, 1996, A 
sells nonpublicly traded property to B in exchange for a debt instrument 
that calls for a payment of $500,000 on January 1, 2001, and a payment 
of $1,000,000 on January 1, 2006. The debt instrument does not provide 
for any stated interest.
    (ii) Determination of term. The debt instrument is an installment 
obligation. Under paragraph (c)(1) of this section, the term of the debt 
instrument is its weighted average maturity (as defined in Sec. 1.1273-
1(e)(3)). The debt instrument's weighted average maturity is 8.33 years, 
which is the sum of (A) the ratio of the first payment to total payments 
(500,000/1,500,000), multiplied by the number of complete years from the 
issue date until the payment is due (5 years), and (B) the ratio of the 
second payment to total payments (1,000,000/1,500,000), multiplied by 
the number of complete years from the issue date until the second 
payment is due (10 years).
    (iii) Applicable Federal rate. Based on the calculation in paragraph 
(ii) of this example, the term of the debt instrument is treated as 8.33 
years. Consequently, the applicable Federal rate is the Federal mid-term 
rate.

[T.D. 8517, 59 FR 4823, Feb. 2, 1994]



Sec. 1.1274-5  Assumptions.

    (a) In general. Section 1274 does not apply to a debt instrument if 
the debt instrument is assumed, or property is taken subject to the debt 
instrument, in connection with a sale or exchange of property, unless 
the terms of the debt instrument, as part of the sale or exchange, are 
modified in a manner that would constitute an exchange under section 
1001.
    (b) Modifications of debt instruments--(1) In general. Except as 
provided in paragraph (b)(2) of this section, if a debt instrument is 
assumed, or property is taken subject to a debt instrument, in 
connection with a sale or exchange of property, the terms of the debt 
instrument are modified as part of the sale or exchange, and the 
modification triggers an exchange under section 1001, the modification 
is treated as a separate transaction taking place immediately before the 
sale or exchange

[[Page 540]]

and is attributed to the seller of the property. For purposes of this 
paragraph (b), a debt instrument is not considered to be modified as 
part of the sale or exchange unless the seller knew or had reason to 
know about the modification.
    (2) Election to treat buyer as modifying the debt instrument--(i) In 
general. Rather than having the rules in paragraph (b)(1) of this 
section apply, the seller and buyer may jointly elect to treat the 
transaction as one in which the buyer first assumed the original 
(unmodified) debt instrument and then subsequently modified the debt 
instrument. For this purpose, the modification is treated as a separate 
transaction taking place immediately after the sale or exchange.
    (ii) Time and manner of making the election. The buyer and seller 
make the election under paragraph (b)(2)(i) of this section by jointly 
signing a statement that includes the names, addresses, and taxpayer 
identification numbers of the seller and buyer, and a clear indication 
that the election is being made under paragraph (b)(2)(i) of this 
section. Both the buyer and the seller must sign this statement not 
later than the earlier of the last day (including extensions) for filing 
the Federal income tax return of the buyer or seller for the taxable 
year in which the sale or exchange of the property occurs. The buyer and 
seller should attach this signed statement (or a copy thereof) to their 
timely filed Federal income tax returns.
    (c) Wraparound indebtedness. For purposes of paragraph (a) of this 
section, the issuance of wraparound indebtedness is not considered an 
assumption.
    (d) Consideration attributable to assumed debt. If, as part of the 
consideration for the sale or exchange of property, the buyer assumes, 
or takes the property subject to, an indebtedness that was issued with 
OID (including a debt instrument issued in a prior sale or exchange to 
which section 1274 applied), the portion of the buyer's basis in the 
property and the seller's amount realized attributable to the debt 
instrument equals the adjusted issue price of the debt instrument as of 
the date of the sale or exchange.

[T.D. 8517, 59 FR 4824, Feb. 2, 1994]



Sec. 1.1274A-1  Special rules for certain transactions where stated 
principal amount does not exceed $2,800,000.

    (a) In general. Section 1274A allows the use of a lower test rate 
for purposes of sections 483 and 1274 in the case of a qualified debt 
instrument (as defined in section 1274A(b)) and, if elected by the 
borrower and the lender, the use of the cash receipts and disbursements 
method of accounting for interest on a cash method debt instrument (as 
defined in section 1274A(c)(2)). This section provides special rules for 
qualified debt instruments and cash method debt instruments.
    (b) Rules for both qualified and cash method debt instruments--(1) 
Sale-leaseback transactions. A debt instrument issued in a sale-
leaseback transaction (within the meaning of section 1274(e)) cannot be 
either a qualified debt instrument or a cash method debt instrument.
    (2) Debt instruments calling for contingent payments. A debt 
instrument that provides for contingent payments cannot be a qualified 
debt instrument unless it can be determined at the time of the sale or 
exchange that the maximum stated principal amount due under the debt 
instrument cannot exceed the amount specified in section 1274A(b). 
Similarly, a debt instrument that provides for contingent payments 
cannot be a cash method debt instrument unless it can be determined at 
the time of the sale or exchange that the maximum stated principal 
amount due under the debt instrument cannot exceed the amount specified 
in section 1274A(c)(2)(A).
    (3) Aggregation of transactions--(i) General rule. The aggregation 
rules of section 1274A(d)(1) are applied using a facts and circumstances 
test.
    (ii) Examples. The following examples illustrate the application of 
section 1274A(d)(1) and paragraph (b)(3)(i) of this section.

    Example 1. Aggregation of two sales to a single person. In two 
transactions evidenced by separate sales agreements, A sells undivided 
half interests in Blackacre to B. The sales are pursuant to a plan for 
the sale of a 100 percent interest in Blackacre to B. These sales or 
exchanges are part of a series of related transactions and, thus, are 
treated as a single sale for purposes of section 1274A.

[[Page 541]]

    Example 2. Aggregation of two purchases by unrelated individuals. 
Pursuant to a plan, unrelated individuals X and Y purchase undivided 
half interests in Blackacre from A and subsequently contribute these 
interests to a partnership in exchange for equal interests in the 
partnership. These purchases are treated as part of the same transaction 
and, thus, are treated as a single sale for purposes of section 1274A.
    Example 3. Aggregation of sales made pursuant to a tender offer. 
Fifteen unrelated individuals own all of the stock of X Corporation. Y 
Corporation makes a tender offer to these 15 shareholders. The terms 
offered to each shareholder are identical. Shareholders holding a 
majority of the shares of X Corporation elect to tender their shares 
pursuant to Y Corporation's offer. These sales are part of the same 
transaction and, thus, are treated as a single sale for purposes of 
section 1274A.
    Example 4. No aggregation for separate sales of similar property to 
unrelated persons. Pursuant to a newspaper advertisement, X Corporation 
offers for sale similar condominiums in a single building. The prices of 
the units vary due to a variety of factors, but the financing terms 
offered by X Corporation to all buyers are identical. The units are 
purchased by unrelated buyers who decided whether to purchase units in 
the building at the price and on the terms offered by X Corporation, 
without regard to the actions of other buyers. Because each buyer acts 
individually, the sales are not part of the same transaction or a series 
of related transactions and, thus, are treated as separate sales.

    (4) Inflation adjustment of dollar amounts. Under section 
1274A(d)(2), the dollar amounts specified in sections 1274A(b) and 
1274A(c)(2)(A) are adjusted for inflation. The dollar amounts, adjusted 
for inflation, are published in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii) of this chapter).
    (c) Rules for cash method debt instruments--(1) Time and manner of 
making cash method election. The borrower and lender make the election 
described in section 1274A(c)(2)(D) by jointly signing a statement that 
includes the names, addresses, and taxpayer identification numbers of 
the borrower and lender, a clear indication that an election is being 
made under section 1274A(c)(2), and a declaration that the debt 
instrument with respect to which the election is being made fulfills the 
requirements of a cash method debt instrument. Both the borrower and the 
lender must sign this statement not later than the earlier of the last 
day (including extensions) for filing the Federal income tax return of 
the borrower or lender for the taxable year in which the debt instrument 
is issued. The borrower and lender should attach this signed statement 
(or a copy thereof) to their timely filed Federal income tax returns.
    (2) Successors of electing parties. Except as otherwise provided in 
this paragraph (c)(2), the cash method election under section 1274A(c) 
applies to any successor of the electing lender or borrower. Thus, for 
any period after the transfer of a cash method debt instrument, the 
successor takes into account the interest (including unstated interest) 
on the instrument under the cash receipts and disbursements method of 
accounting. Nevertheless, if the lender (or any successor thereof) 
transfers the cash method debt instrument to a taxpayer who uses an 
accrual method of accounting, section 1272 rather than section 1274A(c) 
applies to the successor of the lender with respect to the debt 
instrument for any period after the date of the transfer. The borrower 
(or any successor thereof), however, remains on the cash receipts and 
disbursements method of accounting with respect to the cash method debt 
instrument.
    (3) Modified debt instrument. In the case of a debt instrument 
issued in a debt-for-debt exchange that qualifies as an exchange under 
section 1001, the debt instrument is eligible for the election to be a 
cash method debt instrument if the other prerequisites to making the 
election in section 1274A(c) are met. However, if a principal purpose of 
the modification is to defer interest income or deductions through the 
use of the election, then the debt instrument is not eligible for the 
election.
    (4) Debt incurred or continued to purchase or carry a cash method 
debt instrument. If a debt instrument is incurred or continued to 
purchase or carry a cash method debt instrument, rules similar to those 
under section 1277 apply to determine the timing of the interest 
deductions for the debt instrument. For purposes of the preceding 
sentence, rules similar to those under section 265(a)(2) apply to 
determine whether a debt instrument is incurred

[[Page 542]]

or continued to purchase or carry a cash method debt instrument.

[T.D. 8517, 59 FR 4824, Feb. 2, 1994]



Sec. 1.1275-1  Definitions.

    (a) Applicability. The definitions contained in this section apply 
for purposes of sections 163(e) and 1271 through 1275 and the 
regulations thereunder.
    (b) Adjusted issue price--(1) In general. The adjusted issue price 
of a debt instrument at the beginning of the first accrual period is the 
issue price. Thereafter, the adjusted issue price of the debt instrument 
is the issue price of the debt instrument--
    (i) Increased by the amount of OID previously includible in the 
gross income of any holder (determined without regard to section 
1272(a)(7) and section 1272(c)(1)); and
    (ii) Decreased by the amount of any payment previously made on the 
debt instrument other than a payment of qualified stated interest. See 
Sec. 1.1275-2(f) for rules regarding adjustments to adjusted issue 
price on a pro rata prepayment.
    (2) Bond issuance premium. If a debt instrument is issued with bond 
issuance premium (as defined in Sec. 1.163-13(c)), for purposes of 
determining the issuer's adjusted issue price, the adjusted issue price 
determined under paragraph (b)(1) of this section is also decreased by 
the amount of bond issuance premium previously allocable under Sec. 
1.163-13(d)(3).
    (3) Adjusted issue price for subsequent holders. For purposes of 
calculating OID accruals, acquisition premium, or market discount, a 
holder (other than a purchaser at original issuance) determines adjusted 
issue price in any manner consistent with the regulations under sections 
1271 through 1275.
    (c) OID. OID means original issue discount (as defined in section 
1273(a) and Sec. 1.1273-1).
    (d) Debt instrument. Except as provided in section 1275(a)(1)(B) 
(relating to certain annuity contracts; see paragraph (j) of this 
section), debt instrument means any instrument or contractual 
arrangement that constitutes indebtedness under general principles of 
Federal income tax law (including, for example, a certificate of deposit 
or a loan). Nothing in the regulations under sections 163(e), 483, and 
1271 through 1275, however, shall influence whether an instrument 
constitutes indebtedness for Federal income tax purposes.
    (e) Tax-exempt obligations. For purposes of section 1275(a)(3)(B), 
exempt from tax means exempt from Federal income tax.
    (f) Issue. (1) Debt instruments issued on or after March 13, 2001.
    (2) Debt instruments issued before March 13, 2001.
    (3) Transition rule.
    (4) Cross-references for reopening and aggregation rules.
    (g) Debt instruments issued by a natural person. If an entity is a 
primary obligor under a debt instrument, the debt instrument is 
considered to be issued by the entity and not by a natural person even 
if a natural person is a co-maker and is jointly liable for the debt 
instrument's repayment. A debt instrument issued by a partnership is 
considered to be issued by the partnership as an entity even if the 
partnership is composed entirely of natural persons.
    (h) Publicly offered debt instrument. A debt instrument is publicly 
offered if it is part of an issue of debt instruments the initial 
offering of which--
    (1) Is registered with the Securities and Exchange Commission; or
    (2) Would be required to be registered under the Securities Act of 
1933 (15 U.S.C. 77a et seq.) but for an exemption from registration--
    (i) Under section 3 of the Securities Act of 1933 (relating to 
exempted securities);
    (ii) Under any law (other than the Securities Act of 1933) because 
of the identity of the issuer or the nature of the security; or
    (iii) Because the issue is intended for distribution to persons who 
are not United States persons.
    (i) [Reserved]
    (j) Life annuity exception under section 1275(a)(1)(B)(i)--(1) 
Purpose. Section 1275(a)(1)(B)(i) excepts an annuity contract from the 
definition of debt instrument if section 72 applies to the contract and 
the contract depends (in whole or in substantial part) on the life 
expectancy of one or more individuals.

[[Page 543]]

This paragraph (j) provides rules to ensure that an annuity contract 
qualifies for the exception in section 1275(a)(1)(B)(i) only in cases 
where the life contingency under the contract is real and significant.
    (2) General rule--(i) Rule. For purposes of section 
1275(a)(1)(B)(i), an annuity contract depends (in whole or in 
substantial part) on the life expectancy of one or more individuals only 
if--
    (A) The contract provides for periodic distributions made not less 
frequently than annually for the life (or joint lives) of an individual 
(or a reasonable number of individuals); and
    (B) The contract does not contain any terms or provisions that can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants).
    (ii) Terminology. For purposes of this paragraph (j):
    (A) Contract. The term contract includes all written or unwritten 
understandings among the parties as well as any person or persons acting 
in concert with one or more of the parties.
    (B) Annuitant. The term annuitant refers to the individual (or 
reasonable number of individuals) referred to in paragraph (j)(2)(i)(A) 
of this section.
    (C) Terminating death. The phrase terminating death refers to the 
annuitant death that can terminate periodic distributions under the 
contract. (See paragraph (j)(2)(i)(A) of this section.) For example, if 
a contract provides for periodic distributions until the later of the 
death of the last-surviving annuitant or the end of a term certain, the 
terminating death is the death of the last-surviving annuitant.
    (iii) Coordination with specific rules. Paragraphs (j) (3) through 
(7) of this section describe certain terms and conditions that can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants). If a term or provision is not specifically 
described in paragraphs (j) (3) through (7) of this section, the annuity 
contract must be tested under the general rule of paragraph (j)(2)(i) of 
this section to determine whether it depends (in whole or in substantial 
part) on the life expectancy of one or more individuals.
    (3) Availability of a cash surrender option--(i) Impact on life 
contingency. The availability of a cash surrender option can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants). Thus, the availability of any cash surrender 
option causes the contract to fail to be described in section 
1275(a)(1)(B)(i). A cash surrender option is available if there is 
reason to believe that the issuer (or a person acting in concert with 
the issuer) will be willing to terminate or purchase all or a part of 
the annuity contract by making one or more payments of cash or property 
(other than an annuity contract described in this paragraph (j)).
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (j)(3):

    Example 1. (i) Facts. On March 1, 1998, X issues a contract to A for 
cash. The contract provides that, effective on any date chosen by A (the 
annuity starting date), X will begin equal monthly distributions for A's 
life. The amount of each monthly distribution will be no less than an 
amount based on the contract's account value as of the annuity starting 
date, A's age on that date, and permanent purchase rate guarantees 
contained in the contract. The contract also provides that, at any time 
before the annuity starting date, A may surrender the contract to X for 
the account value less a surrender charge equal to a declining 
percentage of the account value. For this purpose, the initial account 
value is equal to the cash invested. Thereafter, the account value 
increases annually by at least a minimum guaranteed rate.
    (ii) Analysis. The ability to obtain the account value less the 
surrender charge, if any, is a cash surrender option. This ability can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with A's longevity. Thus, the 
contract fails to be described in section 1275(a)(1)(B)(i).
    Example 2. (i) Facts. On March 1, 1998, X issues a contract to B for 
cash. The contract provides that beginning on March 1, 1999, X will 
distribute to B a fixed amount of cash each month for B's life. Based on 
X's advertisements, marketing literature, or illustrations or on oral 
representations by X's sales personnel, there is reason to believe that 
an affiliate of X stands ready to purchase B's contract for its commuted 
value.

[[Page 544]]

    (ii) Analysis. Because there is reason to believe that an affiliate 
of X stands ready to purchase B's contract for its commuted value, a 
cash surrender option is available within the meaning of paragraph 
(j)(3)(i) of this section. This availability can significantly reduce 
the probability that total distributions under the contract will 
increase commensurately with B's longevity. Thus, the contract fails to 
be described in section 1275(a)(1)(B)(i).

    (4) Availability of a loan secured by the contract--(i) Impact on 
life contingency. The availability of a loan secured by the contract can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants). Thus, the availability of any such loan 
causes the contract to fail to be described in section 1275(a)(1)(B)(i). 
A loan secured by the contract is available if there is reason to 
believe that the issuer (or a person acting in concert with the issuer) 
will be willing to make a loan that is directly or indirectly secured by 
the annuity contract.
    (ii) Example. The following example illustrates the rules of this 
paragraph (j)(4):

    Example: (i) Facts. On March 1, 1998, X issues a contract to C for 
$100,000. The contract provides that, effective on any date chosen by C 
(the annuity starting date), X will begin equal monthly distributions 
for C's life. The amount of each monthly distribution will be no less 
than an amount based on the contract's account value as of the annuity 
starting date, C's age on that date, and permanent purchase rate 
guarantees contained in the contract. From marketing literature 
circulated by Y, there is reason to believe that, at any time before the 
annuity starting date, C may pledge the contract to borrow up to $75,000 
from Y. Y is acting in concert with X.
    (ii) Analysis. Because there is reason to believe that Y, a person 
acting in concert with X, is willing to lend money against C's contract, 
a loan secured by the contract is available within the meaning of 
paragraph (j)(4)(i) of this section. This availability can significantly 
reduce the probability that total distributions under the contract will 
increase commensurately with C's longevity. Thus, the contract fails to 
be described in section 1275(a)(1)(B)(i).

    (5) Minimum payout provision--(i) Impact on life contingency. The 
existence of a minimum payout provision can significantly reduce the 
probability that total distributions under the contract will increase 
commensurately with the longevity of the annuitant (or annuitants). 
Thus, the existence of any minimum payout provision causes the contract 
to fail to be described in section 1275(a)(1)(B)(i).
    (ii) Definition of minimum payout provision. A minimum payout 
provision is a contractual provision (for example, an agreement to make 
distributions over a term certain) that provides for one or more 
distributions made--
    (A) After the terminating death under the contract; or
    (B) By reason of the death of any individual (including 
distributions triggered by or increased by terminal or chronic illness, 
as defined in section 101(g)(1) (A) and (B)).
    (iii) Exceptions for certain minimum payouts--(A) Recovery of 
consideration paid for the contract. Notwithstanding paragraphs 
(j)(2)(i)(A) and (j)(5)(i) of this section, a contract does not fail to 
be described in section 1275(a)(1)(B)(i) merely because it provides 
that, after the terminating death, there will be one or more 
distributions that, in the aggregate, do not exceed the consideration 
paid for the contract less total distributions previously made under the 
contract.
    (B) Payout for one-half of life expectancy. Notwithstanding 
paragraphs (j)(2)(i)(A) and (j)(5)(i) of this section, a contract does 
not fail to be described in section 1275(a)(1)(B)(i) merely because it 
provides that, if the terminating death occurs after the annuity 
starting date, distributions under the contract will continue to be made 
after the terminating death until a date that is no later than the 
halfway date. This exception does not apply unless the amounts 
distributed in each contract year will not exceed the amounts that would 
have been distributed in that year if the terminating death had not 
occurred until the expected date of the terminating death, determined 
under paragraph (j)(5)(iii)(C) of this section.
    (C) Definition of halfway date. For purposes of this paragraph 
(j)(5)(iii), the halfway date is the date halfway between the annuity 
starting date and the expected date of the terminating death, determined 
as of the annuity starting date, with respect to all then-

[[Page 545]]

surviving annuitants. The expected date of the terminating death must be 
determined by reference to the applicable mortality table prescribed 
under section 417(e)(3)(A)(ii)(I).
    (iv) Examples. The following examples illustrate the rules of this 
paragraph (j)(5):

    Example 1. (i) Facts. On March 1, 1998, X issues a contract to D for 
cash. The contract provides that, effective on any date D chooses (the 
annuity starting date), X will begin equal monthly distributions for the 
greater of D's life or 10 years, regardless of D's age as of the annuity 
starting date. The amount of each monthly distribution will be no less 
than an amount based on the contract's account value as of the annuity 
starting date, D's age on that date, and permanent purchase rate 
guarantees contained in the contract.
    (ii) Analysis. A minimum payout provision exists because, if D dies 
within 10 years of the annuity starting date, one or more distributions 
will be made after D's death. The minimum payout provision does not 
qualify for the exception in paragraph (j)(5)(iii)(B) of this section 
because D may defer the annuity starting date until his remaining life 
expectancy is less than 20 years. If, on the annuity starting date, D's 
life expectancy is less than 20 years, the minimum payout period (10 
years) will last beyond the halfway date. The minimum payout provision, 
therefore, can significantly reduce the probability that total 
distributions under the contract will increase commensurately with D's 
longevity. Thus, the contract fails to be described in section 
1275(a)(1)(B)(i).
    Example 2. (i) Facts. The facts are the same as in Example 1 of this 
paragraph (j)(5)(iv) except that the monthly distributions will last for 
the greater of D's life or a term certain. D may choose the length of 
the term certain subject to the restriction that, on the annuity 
starting date, the term certain must not exceed one-half of D's life 
expectancy as of the annuity starting date. The contract also does not 
provide for any adjustment in the amount of distributions by reason of 
the death of D or any other individual, except for a refund of D's 
aggregate premium payments less the sum of all prior distributions under 
the contract.
    (ii) Analysis. The minimum payout provision qualifies for the 
exception in paragraph (j)(5)(iii)(B) of this section because 
distributions under the minimum payout provision will not continue past 
the halfway date and the contract does not provide for any adjustments 
in the amount of distributions by reason of the death of D or any other 
individual, other than a guaranteed death benefit described in paragraph 
(j)(5)(iii)(A) of this section. Accordingly, the existence of this 
minimum payout provision does not prevent the contract from being 
described in section 1275(a)(1)(B)(i).

    (6) Maximum payout provision--(i) Impact on life contingency. The 
existence of a maximum payout provision can significantly reduce the 
probability that total distributions under the contract will increase 
commensurately with the longevity of the annuitant (or annuitants). 
Thus, the existence of any maximum payout provision causes the contract 
to fail to be described in section 1275(a)(1)(B)(i).
    (ii) Definition of maximum payout provision. A maximum payout 
provision is a contractual provision that provides that no distributions 
under the contract may be made after some date (the termination date), 
even if the terminating death has not yet occurred.
    (iii) Exception. Notwithstanding paragraphs (j)(2)(i)(A) and 
(j)(6)(i) of this section, an annuity contract does not fail to be 
described in section 1275(a)(1)(B)(i) merely because the contract 
contains a maximum payout provision, provided that the period of time 
from the annuity starting date to the termination date is at least twice 
as long as the period of time from the annuity starting date to the 
expected date of the terminating death, determined as of the annuity 
starting date, with respect to all then-surviving annuitants. The 
expected date of the terminating death must be determined by reference 
to the applicable mortality table prescribed under section 
417(e)(3)(A)(ii)(I).
    (iv) Example. The following example illustrates the rules of this 
paragraph (j)(6):

    Example: (i) Facts. On March 1, 1998, X issues a contract to E for 
cash. The contract provides that beginning on April 1, 1998, X will 
distribute to E a fixed amount of cash each month for E's life but that 
no distributions will be made after April 1, 2018. On April 1, 1998, E's 
life expectancy is 9 years.
    (ii) Analysis. A maximum payout provision exists because if E 
survives beyond April 1, 2018, E will receive no further distributions 
under the contract. The period of time from the annuity starting date 
(April 1, 1998) to the termination date (April 1, 2018) is 20 years. 
Because this 20-year period is more than twice as long as E's life 
expectancy on April 1, 1998, the maximum payout provision qualifies for 
the exception in paragraph

[[Page 546]]

(j)(6)(iii) of this section. Accordingly, the existence of this maximum 
payout provision does not prevent the contract from being described in 
section 1275(a)(1)(B)(i).

    (7) Decreasing payout provision--(i) General rule. If the amount of 
distributions during any contract year (other than the last year during 
which distributions are made) may be less than the amount of 
distributions during the preceding year, this possibility can 
significantly reduce the probability that total distributions under the 
contract will increase commensurately with the longevity of the 
annuitant (or annuitants). Thus, the existence of this possibility 
causes the contract to fail to be described in section 1275(a)(1)(B)(i).
    (ii) Exception for certain variable distributions. Notwithstanding 
paragraph (j)(7)(i) of this section, if an annuity contract provides 
that the amount of each distribution must increase and decrease in 
accordance with investment experience, cost of living indices, or 
similar fluctuating criteria, then the possibility that the amount of a 
distribution may decrease for this reason does not significantly reduce 
the probability that the distributions under the contract will increase 
commensurately with the longevity of the annuitant (or annuitants).
    (iii) Examples. The following examples illustrate the rules of this 
paragraph (j)(7):

    Example 1. (i) Facts. On March 1, 1998, X issues a contract to F for 
$100,000. The contract provides that beginning on March 1, 1999, X will 
make distributions to F each year until F's death. Prior to March 1, 
2009, distributions are to be made at a rate of $12,000 per year. 
Beginning on March 1, 2009, distributions are to be made at a rate of 
$3,000 per year.
    (ii) Analysis. If F is alive in 2009, the amount distributed in 2009 
($3,000) will be less than the amount distributed in 2008 ($12,000). The 
exception in paragraph (j)(7)(ii) of this section does not apply. The 
decrease in the amount of any distributions made on or after March 1, 
2009, can significantly reduce the probability that total distributions 
under the contract will increase commensurately with F's longevity. 
Thus, the contract fails to be described in section 1275(a)(1)(B)(i).
    Example 2. (i) Facts. On March 1, 1998, X issues a contract to G for 
cash. The contract provides that, effective on any date G chooses (the 
annuity starting date), X will begin monthly distributions to G for G's 
life. Prior to the annuity starting date, the account value of the 
contract reflects the investment return, including changes in the market 
value, of an identifiable pool of assets. When G chooses the annuity 
starting date, G must also choose whether the distributions are to be 
fixed or variable. If fixed, the amount of each monthly distribution 
will remain constant at an amount that is no less than an amount based 
on the contract's account value as of the annuity starting date, G's age 
on that date, and permanent purchase rate guarantees contained in the 
contract. If variable, the monthly distributions will fluctuate to 
reflect the investment return, including changes in the market value, of 
the pool of assets. The monthly distributions under the contract will 
not otherwise decline from year to year.
    (ii) Analysis. Because the only possible year-to-year declines in 
annuity distributions are described in paragraph (j)(7)(ii) of this 
section, the possibility that the amount of distributions may decline 
from the previous year does not reduce the probability that total 
distributions under the contract will increase commensurately with G's 
longevity. Thus, the potential fluctuation in the annuity distributions 
does not cause the contract to fail to be described in section 
1275(a)(1)(B)(i).

    (8) Effective dates--(i) In general. Except as provided in paragraph 
(j)(8) (ii) and (iii) of this section, this paragraph (j) is applicable 
for interest accruals on or after February 9, 1998 on annuity contracts 
held on or after February 9, 1998.
    (ii) Grandfathered contracts. This paragraph (j) does not apply to 
an annuity contract that was purchased before April 7, 1995. For 
purposes of this paragraph (j)(8), if any additional investment in such 
a contract is made on or after April 7, 1995, and the additional 
investment is not required to be made under a binding contractual 
obligation that was entered into before April 7, 1995, then the 
additional investment is treated as the purchase of a contract after 
April 7, 1995.
    (iii) Contracts consistent with the provisions of FI-33-94, 
published at 1995-1 C.B. 920. See Sec. 601.601(d)(2)(ii)(b) of this 
chapter. This paragraph (j) does not apply to a contract purchased on or 
after April 7, 1995, and before February 9, 1998, if all payments under 
the contract are periodic payments that are made at least annually for 
the life (or lives) of one or more individuals, do not increase at any 
time during the

[[Page 547]]

term of the contract, and are part of a series of distributions that 
begins within one year of the date of the initial investment in the 
contract. An annuity contract that is otherwise described in the 
preceding sentence does not fail to be described therein merely because 
it also provides for a payment (or payments) made by reason of the death 
of one or more individuals.
    (k) Exception under section 1275(a)(1)(B)(ii) for annuities issued 
by an insurance company subject to tax under subchapter L of the 
Internal Revenue Code--(1) Rule. For purposes of section 
1275(a)(1)(B)(ii), an annuity contract issued by a foreign insurance 
company is considered as issued by an insurance company subject to tax 
under subchapter L if the insurance company is subject to tax under 
subchapter L with respect to income earned on the annuity contract.
    (2) Examples. The following examples illustrate the rule of 
paragraph (k)(1) of this section. Each example assumes that the annuity 
contract is a contract to which section 72 applies and was issued in a 
transaction where there is no consideration other than cash or another 
qualifying annuity contract, pursuant to the exercise of an election 
under an insurance contract by a beneficiary thereof on the death of the 
insured party, or in a transaction involving a qualified pension or 
employee benefit plan. The examples are as follows:

    Example 1. Company X is an insurance company that is organized, 
licensed and doing business in Country Y. Company X does not have a U.S. 
trade or business and is not, under section 842, subject to U.S. income 
tax under subchapter L with respect to income earned on annuity 
contracts. A, a U.S. taxpayer, purchases an annuity contract from 
Company X in Country Y. The annuity contract is not excepted from the 
definition of a debt instrument by section 1275(a)(1)(B)(ii).
    Example 2. The facts are the same as in Example 1, except that 
Company X has a U.S. trade or business. A purchased the annuity from 
Company X's U.S. trade or business. Under section 842(a), Company X is 
subject to tax under subchapter L with respect to income earned on the 
annuity contract. Under these facts, the annuity contract is excepted 
from the definition of a debt instrument by section 1275(a)(1)(B)(ii).
    Example 3. The facts are the same as in Example 2, except that there 
is a tax treaty between Country Y and the United States. Company X is a 
resident of Country Y for purposes of the U.S.-Country Y tax treaty. 
Company X's activities in the U.S. do not constitute a permanent 
establishment under the U.S.-Country Y tax treaty. Because Company X 
does not have a U.S. permanent establishment, Company X is not subject 
to tax under subchapter L with respect to income earned on the annuity 
contract. Thus, the annuity contract is not excepted from the definition 
of a debt instrument by section 1275(a)(1)(B)(ii).
    Example 4. The facts are the same as in Example 1, except that 
Company X is a foreign insurance corporation controlled by a U.S. 
shareholder. Company X does not make an election 1 under section 953(d) 
to be treated as a domestic corporation. The controlling U.S. 
shareholder is required under sections 953 and 954 to include income 
earned on the annuity contract in its taxable income under subpart F. 
However, Company X is not subject to tax under subchapter L with respect 
to income earned on the annuity contract. Thus, the annuity contract is 
not excepted from the definition of a debt instrument by section 
1275(a)(1)(B)(ii).
    Example 5. The facts are the same as in Example 4, except that 
Company X properly elects under section 953(d) to be treated as a 
domestic corporation. By reason of its election, Company X is subject to 
tax under subchapter L with respect to income earned on the annuity 
contract. Thus, the annuity contract is excepted from the definition of 
a debt instrument by section 1275(a)(1)(B)(ii).

    (3) Effective date. This paragraph (k) is applicable for interest 
accruals on or after June 6, 2002. This paragraph (k) does not apply to 
an annuity contract that was purchased before January 12, 2001. For 
purposes of this paragraph (k), if any additional investment in a 
contract purchased before January 12, 2001, is made on or after January 
12, 2001, and the additional investment is not required to be made under 
a binding written contractual obligation that was entered into before 
that date, then the additional investment is treated as the purchase of 
a contract after January 12, 2001.

[T.D. 8517, 59 FR 4825, Feb. 2, 1994, as amended by T.D. 8746, 62 FR 
68183, Dec. 31, 1997; T.D. 8754, 63 FR 1057, Jan. 8, 1998; T.D. 8934, 66 
FR 2815, Jan. 12, 2001; T.D. 8993, 67 FR 30548, May 7, 2002]



Sec. 1.1275-2  Special rules relating to debt instruments.

    (a) Payment ordering rule--(1) In general. Except as provided in 
paragraph

[[Page 548]]

(a)(2) of this section, each payment under a debt instrument is treated 
first as a payment of OID to the extent of the OID that has accrued as 
of the date the payment is due and has not been allocated to prior 
payments, and second as a payment of principal. Thus, no portion of any 
payment is treated as prepaid interest.
    (2) Exceptions. The rule in paragraph (a)(1) of this section does 
not apply to--
    (i) A payment of qualified stated interest;
    (ii) A payment of points deductible under section 461(g)(2), in the 
case of the issuer;
    (iii) A pro rata prepayment described in paragraph (f)(2) of this 
section; or
    (iv) A payment of additional interest or a similar charge provided 
with respect to amounts that are not paid when due.
    (b) Debt instruments distributed by corporations with respect to 
stock--(1) Treatment of distribution. For purposes of determining the 
issue price of a debt instrument distributed by a corporation with 
respect to its stock, the instrument is treated as issued by the 
corporation for property. See section 1275(a)(4). Thus, under section 
1273(b)(3), the issue price of a distributed debt instrument that is 
traded on an established market is its fair market value. The issue 
price of a distributed debt instrument that is not traded on an 
established market is determined under section 1274 or section 
1273(b)(4).
    (2) Issue date. The issue date of a debt instrument distributed by a 
corporation with respect to its stock is the date of the distribution.
    (c) Aggregation of debt instruments--(1) General rule. Except as 
provided in paragraph (c)(2) of this section, debt instruments issued in 
connection with the same transaction or related transactions (determined 
based on all the facts and circumstances) are treated as a single debt 
instrument for purposes of sections 1271 through 1275 and the 
regulations thereunder. This rule ordinarily applies only to debt 
instruments of a single issuer that are issued to a single holder. The 
Commissioner may, however, aggregate debt instruments that are issued by 
more than one issuer or that are issued to more than one holder if the 
debt instruments are issued in an arrangement that is designed to avoid 
the aggregation rule (e.g., debt instruments issued by or to related 
parties or debt instruments originally issued to different holders with 
the understanding that the debt instruments will be transferred to a 
single holder).
    (2) Exception if separate issue price established. Paragraph (c)(1) 
of this section does not apply to a debt instrument if--
    (i) The debt instrument is part of an issue a substantial portion of 
which is traded on an established market within the meaning of Sec. 
1.1273-2(f); or
    (ii) The debt instrument is part of an issue a substantial portion 
of which is issued for money (or for property traded on an established 
market within the meaning of Sec. 1.1273-2(f)) to parties who are not 
related to the issuer or holder and who do not purchase other debt 
instruments of the same issuer in connection with the same transaction 
or related transactions.
    (3) Special rule for debt instruments that provide for the issuance 
of additional debt instruments. If, under the terms of a debt instrument 
(the original debt instrument), the holder may receive one or more 
additional debt instruments of the issuer, the additional debt 
instrument or instruments are aggregated with the original debt 
instrument. Thus, the payments made pursuant to an additional debt 
instrument are treated as made on the original debt instrument, and the 
distribution by the issuer of the additional debt instrument is not 
considered to be a payment made on the original debt instrument. This 
paragraph (c)(3) applies regardless of whether the right to receive an 
additional debt instrument is fixed as of the issue date or is 
contingent upon subsequent events. See Sec. 1.1272-1(c) for the 
treatment of certain rights to issue additional debt instruments in lieu 
of cash payments.
    (4) Examples. The following examples illustrate the rules set forth 
in paragraphs (c)(1) and (c)(2) of this section.

    Example 1. Exception for debt instruments issued separately to other 
purchasers. On January 1, 1995, Corporation M issues two series of 
bonds, Series A and Series B. The two series are sold for cash and have 
different terms. Although some holders purchase

[[Page 549]]

bonds from both series, a substantial portion of the bonds is issued to 
different holders. H purchases bonds from both series. Under the 
exception in paragraph (c)(2)(ii) of this section, the Series A and 
Series B bonds purchased by H are not aggregated.
    Example 2. Tiered REMICs. Z forms a dual tier real estate mortgage 
investment conduit (REMIC). In the dual tier structure, Z forms REMIC A 
to acquire a pool of real estate mortgages and to issue a residual 
interest and several classes of regular interests. Contemporaneously, Z 
forms REMIC B to acquire as qualified mortgages all of the regular 
interests in REMIC A. REMIC B issues several classes of regular 
interests and a residual interest, and Z sells all of those interests to 
unrelated parties in a public offering. Under the general rule set out 
in paragraph (c)(1) of this section, all of the regular interests issued 
by REMIC A and held by REMIC B are treated as a single debt instrument 
for purposes of sections 1271 through 1275.

    (d) Special rules for Treasury securities--(1) Issue price and issue 
date. The issue price of an issue of Treasury securities is the average 
price of the securities sold. The issue date of an issue of Treasury 
securities is the first settlement date on which a substantial amount of 
the securities in the issue is sold. For an issue of Treasury securities 
sold from November 1, 1998, to March 13, 2001, the issue price of the 
issue is the price of the securities sold at auction.
    (2) Reopenings of Treasury securities--(i) Treatment of additional 
Treasury securities. Notwithstanding Sec. 1.1275-1(f), additional 
Treasury securities issued in a qualified reopening are part of the same 
issue as the original Treasury securities. As a result, the additional 
Treasury securities have the same issue price, issue date, and (with 
respect to holders) the same adjusted issue price as the original 
Treasury securities. This paragraph (d)(2) applies to qualified 
reopenings that occur on or after March 25, 1992.
    (ii) Definitions--(A) Additional Treasury securities. Additional 
Treasury securities are Treasury securities with terms that are in all 
respects identical to the terms of the original Treasury securities.
    (B) Original Treasury securities. Original Treasury securities are 
securities comprising any issue of outstanding Treasury securities.
    (C) Qualified reopening--reopenings on or after March 13, 2001. For 
a reopening of Treasury securities that occurs on or after March 13, 
2001, a qualified reopening is a reopening that occurs not more than one 
year after the original Treasury securities were first issued to the 
public or, under paragraph (k)(3)(iii) of this section, a reopening in 
which the additional Treasury securities are issued with no more than a 
de minimis amount of OID.
    (D) Qualified reopening--reopenings before March 13, 2001. For a 
reopening of Treasury securities that occurs before March 13, 2001, a 
qualified reopening is a reopening that occurs not more than one year 
after the original Treasury securities were first issued to the public. 
However, for a reopening of Treasury securities (other than Treasury 
Inflation-Indexed Securities) that occurred prior to November 5, 1999, a 
qualified reopening is a reopening of Treasury securities that satisfied 
the preceding sentence and that was intended to alleviate an acute, 
protracted shortage of the original Treasury securities.
    (e) Disclosure of certain information to holders. Certain provisions 
of the regulations under section 163(e) and sections 1271 through 1275 
provide that the issuer's determination of an item controls the holder's 
treatment of the item. In such a case, the issuer must provide the 
relevant information to the holder in a reasonable manner. For example, 
the issuer may provide the name or title and either the address or 
telephone number of a representative of the issuer who will make 
available to holders upon request the information required for holders 
to comply with these provisions of the regulations.
    (f) Treatment of pro rata prepayments--(1) Treatment as retirement 
of separate debt instrument. A pro rata prepayment is treated as a 
payment in retirement of a portion of a debt instrument, which may 
result in a gain or loss to the holder. Generally, the gain or loss is 
calculated by assuming that the original debt instrument consists of two 
instruments, one that is retired and one that remains outstanding. The 
adjusted issue price, holder's adjusted basis, and accrued but unpaid 
OID of

[[Page 550]]

the original debt instrument, determined immediately before the pro rata 
prepayment, are allocated between these two instruments based on the 
portion of the instrument that is treated as retired by the pro rata 
prepayment.
    (2) Definition of pro rata prepayment. For purposes of paragraph 
(f)(1) of this section, a pro rata prepayment is a payment on a debt 
instrument made prior to maturity that--
    (i) Is not made pursuant to the instrument's payment schedule 
(including a payment schedule determined under Sec. 1.1272-1(c)); and
    (ii) Results in a substantially pro rata reduction of each payment 
remaining to be paid on the instrument.
    (g) Anti-abuse rule--(1) In general. If a principal purpose in 
structuring a debt instrument or engaging in a transaction is to achieve 
a result that is unreasonable in light of the purposes of section 
163(e), sections 1271 through 1275, or any related section of the Code, 
the Commissioner can apply or depart from the regulations under the 
applicable sections as necessary or appropriate to achieve a reasonable 
result. For example, if this paragraph (g) applies to a debt instrument 
that provides for a contingent payment, the Commissioner can treat the 
contingency as if it were a separate position. See also Sec. 1.988-
2(b)(18) for debt instruments with payments denominated in (or 
determined by reference to) a currency other than the taxpayer's 
functional currency.
    (2) Unreasonable result. Whether a result is unreasonable is 
determined based on all the facts and circumstances. In making this 
determination, a significant fact is whether the treatment of the debt 
instrument is expected to have a substantial effect on the issuer's or a 
holder's U.S. tax liability. In the case of a contingent payment debt 
instrument, another significant fact is whether the result is obtainable 
without the application of Sec. 1.1275-4 and any related provisions 
(e.g., if the debt instrument and the contingency were entered into 
separately). A result will not be considered unreasonable, however, in 
the absence of an expected substantial effect on the present value of a 
taxpayer's tax liability.
    (3) Examples. The following examples illustrate the provisions of 
this paragraph (g):

    Example 1. A issues a current-pay, increasing-rate note that 
provides for an early call option. Although the option is deemed 
exercised on the call date under Sec. 1.1272-1(c)(5), the option is not 
expected to be exercised by A. In addition, a principal purpose of 
including the option in the terms of the note is to limit the amount of 
interest income includible by the holder in the period prior to the call 
date by virtue of the option rules in Sec. 1.1272-1(c)(5). Moreover, 
the application of the option rules is expected to substantially reduce 
the present value of the holder's tax liability. Based on these facts, 
the application of Sec. 1.1272-1(c)(5) produces an unreasonable result. 
Therefore, under this paragraph (g), the Commissioner can apply the 
regulations (in whole or in part) to the note without regard to Sec. 
1.1272-1(c)(5).
    Example 2. C, a foreign corporation not subject to U.S. taxation, 
issues to a U.S. holder a debt instrument that provides for a contingent 
payment. The debt instrument is issued for cash and is subject to the 
noncontingent bond method in Sec. 1.1275-4(b). Six months after 
issuance, C and the holder modify the debt instrument so that there is a 
deemed reissuance of the instrument under section 1001. The new debt 
instrument is subject to the rules of Sec. 1.1275-4(c) rather than 
Sec. 1.1275-4(b). The application of Sec. 1.1275-4(c) is expected to 
substantially reduce the present value of the holder's tax liability as 
compared to the application of Sec. 1.1275-4(b). In addition, a 
principal purpose of the modification is to substantially reduce the 
present value of the holder's tax liability through the application of 
Sec. 1.1275-4(c). Based on these facts, the application of Sec. 
1.1275-4(c) produces an unreasonable result. Therefore, under this 
paragraph (g), the Commissioner can apply the noncontingent bond method 
to the modified debt instrument.
    Example 3. D issues a convertible debt instrument rather than an 
economically equivalent investment unit consisting of a debt instrument 
and a warrant. The convertible debt instrument is issued at par and 
provides for annual payments of interest. D issues the convertible debt 
instrument rather than the investment unit so that the debt instrument 
would not have OID. See Sec. 1.1273-2(j). In general, this is a 
reasonable result in light of the purposes of the applicable statutes. 
Therefore, the Commissioner generally will not use the authority under 
this paragraph (g) to depart from the application of Sec. 1.1273-2(j) in 
this case.


[[Page 551]]


    (4) Effective date. This paragraph (g) applies to debt instruments 
issued on or after August 13, 1996.
    (h) Remote and incidental contingencies--(1) In general. This 
paragraph (h) applies to a debt instrument if one or more payments on 
the instrument are subject to either a remote or incidental contingency. 
Whether a contingency is remote or incidental is determined as of the 
issue date of the debt instrument, including any date there is a deemed 
reissuance of the debt instrument under paragraph (h)(6) (ii) or (j) of 
this section or Sec. 1.1272-1(c)(6). Except as otherwise provided, the 
treatment of the contingency under this paragraph (h) applies for all 
purposes of sections 163(e) (other than sections 163(e)(5)) and 1271 
through 1275 and the regulations thereunder. For purposes of this 
paragraph (h), the possibility of impairment of a payment by insolvency, 
default, or similar circumstances is not a contingency.
    (2) Remote contingencies. A contingency is remote if there is a 
remote likelihood either that the contingency will occur or that the 
contingency will not occur. If there is a remote likelihood that the 
contingency will occur, it is assumed that the contingency will not 
occur. If there is a remote likelihood that the contingency will not 
occur, it is assumed that the contingency will occur.
    (3) Incidental contingencies--(i) Contingency relating to amount. A 
contingency relating to the amount of a payment is incidental if, under 
all reasonably expected market conditions, the potential amount of the 
payment is insignificant relative to the total expected amount of the 
remaining payments on the debt instrument. If a payment on a debt 
instrument is subject to an incidental contingency described in this 
paragraph (h)(3)(i), the payment is ignored until the payment is made. 
However, see paragraph (h)(6)(i)(B) of this section for the treatment of 
the debt instrument if a change in circumstances occurs prior to the 
date the payment is made.
    (ii) Contingency relating to time. A contingency relating to the 
timing of a payment is incidental if, under all reasonably expected 
market conditions, the potential difference in the timing of the payment 
(from the earliest date to the latest date) is insignificant. If a 
payment on a debt instrument is subject to an incidental contingency 
described in this paragraph (h)(3)(ii), the payment is treated as made 
on the earliest date that the payment could be made pursuant to the 
contingency. If the payment is not made on this date, a taxpayer makes 
appropriate adjustments to take into account the delay in payment. 
However, see paragraph (h)(6)(i)(C) of this section for the treatment of 
the debt instrument if the delay is not insignificant.
    (4) Aggregation rule. For purposes of paragraph (h)(2) of this 
section, if a debt instrument provides for multiple contingencies each 
of which has a remote likelihood of occurring but, when all of the 
contingencies are considered together, there is a greater than remote 
likelihood that at least one of the contingencies will occur, none of 
the contingencies is treated as a remote contingency. For purposes of 
paragraph (h)(3)(i) of this section, if a debt instrument provides for 
multiple contingencies each of which is incidental but the potential 
total amount of all of the payments subject to the contingencies is not, 
under reasonably expected market conditions, insignificant relative to 
the total expected amount of the remaining payments on the debt 
instrument, none of the contingencies is treated as incidental.
    (5) Consistency rule. For purposes of paragraphs (h) (2) and (3) of 
this section, the issuer's determination that a contingency is either 
remote or incidental is binding on all holders. However, the issuer's 
determination is not binding on a holder that explicitly discloses that 
its determination is different from the issuer's determination. Unless 
otherwise prescribed by the Commissioner, the disclosure must be made on 
a statement attached to the holder's timely filed Federal income tax 
return for the taxable year that includes the acquisition date of the 
debt instrument. See Sec. 1.1275-2(e) for rules relating to the 
issuer's obligation to disclose certain information to holders.
    (6) Subsequent adjustments--(i) Applicability. This paragraph (h)(6) 
applies to a debt instrument when there is a change in circumstances. 
For purposes

[[Page 552]]

of the preceding sentence, there is a change in circumstances if--
    (A) A remote contingency actually occurs or does not occur, contrary 
to the assumption made in paragraph (h)(2) of this section;
    (B) A payment subject to an incidental contingency described in 
paragraph (h)(3)(i) of this section becomes fixed in an amount that is 
not insignificant relative to the total expected amount of the remaining 
payments on the debt instrument; or
    (C) A payment subject to an incidental contingency described in 
paragraph (h)(3)(ii) of this section becomes fixed such that the 
difference between the assumed payment date and the due date of the 
payment is not insignificant.
    (ii) In general. If a change in circumstances occurs, solely for 
purposes of sections 1272 and 1273, the debt instrument is treated as 
retired and then reissued on the date of the change in circumstances for 
an amount equal to the instrument's adjusted issue price on that date.
    (iii) Contingent payment debt instruments. Notwithstanding paragraph 
(h)(6)(ii) of this section, in the case of a contingent payment debt 
instrument subject to Sec. 1.1275-4, if a change in circumstances 
occurs, no retirement or reissuance is treated as occurring, but any 
payment that is fixed as a result of the change in circumstances is 
governed by the rules in Sec. 1.1275-4 that apply when the amount of a 
contingent payment becomes fixed.
    (7) Effective date. This paragraph (h) applies to debt instruments 
issued on or after August 13, 1996.
    (i) [Reserved]
    (j) Treatment of certain modifications. If the terms of a debt 
instrument are modified to defer one or more payments, and the 
modification does not cause an exchange under section 1001, then, solely 
for purposes of sections 1272 and 1273, the debt instrument is treated 
as retired and then reissued on the date of the modification for an 
amount equal to the instrument's adjusted issue price on that date. This 
paragraph (j) applies to debt instruments issued on or after August 13, 
1996.
    (k) Reopenings--(1) In general. Notwithstanding Sec. 1.1275-1(f), 
additional debt instruments issued in a qualified reopening are part of 
the same issue as the original debt instruments. As a result, the 
additional debt instruments have the same issue date, the same issue 
price, and (with respect to holders) the same adjusted issue price as 
the original debt instruments.
    (2) Definitions--(i) Original debt instruments. Original debt 
instruments are debt instruments comprising any single issue of 
outstanding debt instruments. For purposes of determining whether a 
particular reopening is a qualified reopening, debt instruments issued 
in prior qualified reopenings are treated as original debt instruments 
and debt instruments issued in the particular reopening are not so 
treated.
    (ii) Additional debt instruments. Additional debt instruments are 
debt instruments that, without the application of this paragraph (k)--
    (A) Are part of a single issue of debt instruments;
    (B) Are not part of the same issue as the original debt instruments; 
and
    (C) Have terms that are in all respects identical to the terms of 
the original debt instruments as of the reopening date.
    (iii) Reopening date. The reopening date is the issue date of the 
additional debt instruments (determined without the application of this 
paragraph (k)).
    (iv) Announcement date. The announcement date is the later of seven 
days before the date on which the price of the additional debt 
instruments is established or the date on which the issuer's intent to 
reopen a security is publicly announced through one or more media, 
including an announcement reported on the standard electronic news 
services used by security broker-dealers (for example, Reuters, 
Telerate, or Bloomberg).
    (3) Qualified reopening--(i) Definition. A qualified reopening is a 
reopening of original debt instruments that is described in paragraph 
(k)(3)(ii) or (iii) of this section. In addition, see paragraph (d)(2) 
of this section to determine if a reopening of Treasury securities is a 
qualified reopening.

[[Page 553]]

    (ii) Reopening within six months. A reopening is described in this 
paragraph (k)(3)(ii) if--
    (A) The original debt instruments are publicly traded (within the 
meaning of Sec. 1.1273-2(f));
    (B) The reopening date of the additional debt instruments is not 
more than six months after the issue date of the original debt 
instruments; and
    (C) On the date on which the price of the additional debt 
instruments is established (or, if earlier, the announcement date), the 
yield of the original debt instruments (based on their fair market 
value) is not more than 110 percent of the yield of the original debt 
instruments on their issue date (or, if the original debt instruments 
were issued with no more than a de minimis amount of OID, the coupon 
rate).
    (iii) Reopening with de minimis OID. A reopening (including a 
reopening of Treasury securities) is described in this paragraph 
(k)(3)(iii) if--
    (A) The original debt instruments are publicly traded (within the 
meaning of Sec. 1.1273-2(f)); and
    (B) The additional debt instruments are issued with no more than a 
de minimis amount of OID (determined without the application of this 
paragraph (k)).
    (iv) Exceptions. This paragraph (k)(3) does not apply to a reopening 
of tax-exempt obligations (as defined in section 1275(a)(3)) or 
contingent payment debt instruments (within the meaning of Sec. 1.1275-
4).
    (4) Issuer's treatment of a qualified reopening. See Sec. 1.163-
7(e) for the issuer's treatment of the debt instruments that are part of 
a qualified reopening.
    (5) Effective date. This paragraph (k) applies to debt instruments 
that are part of a reopening where the reopening date is on or after 
March 13, 2001.

[T.D. 8517, 59 FR 4826, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30142, June 14, 1996; T.D. 8840, 64 FR 60343, Nov. 5, 1999; T.D. 8934, 
66 FR 2816, Jan 12, 2001; T.D. 9157, 69 FR 52829, Aug. 30, 2004]



Sec. 1.1275-3  OID information reporting requirements.

    (a) In general. This section provides legending and information 
reporting requirements intended to facilitate the reporting of OID.
    (b) Information required to be set forth on face of debt instruments 
that are not publicly offered--(1) In general. Except as provided in 
paragraph (b)(4) or paragraph (d) of this section, this paragraph (b) 
applies to any debt instrument that is not publicly offered (within the 
meaning of Sec. 1.1275-1(h)), is issued in physical form, and has OID. 
The issuer of any such debt instrument must legend the instrument by 
stating on the face of the instrument that the debt instrument was 
issued with OID. In addition, the issuer must either--
    (i) Set forth on the face of the debt instrument the issue price, 
the amount of OID, the issue date, the yield to maturity, and, in the 
case of a debt instrument subject to the rules of Sec. 1.1275-4(b), the 
comparable yield and projected payment schedule; or
    (ii) Provide the name or title and either the address or telephone 
number of a representative of the issuer who will, beginning no later 
than 10 days after the issue date, promptly make available to holders 
upon request the information described in paragraph (b)(1)(i) of this 
section.
    (2) Time for legending. An issuer may satisfy the requirements of 
this paragraph (b) by legending the debt instrument when it is first 
issued in physical form. Legending is not required, however, before the 
first holder of the debt instrument disposes of the instrument.
    (3) Legend must survive reissuance upon transfer. Any new physical 
security that is issued (for example, upon registration of transfer of 
ownership) must contain any required legend.
    (4) Exceptions. Paragraph (b)(1) of this section does not apply to 
debt instruments described in section 1272(a)(2) (relating to debt 
instruments not subject to the periodic OID inclusion rules), debt 
instruments issued by natural persons (as defined in Sec. 1.6049-
4(f)(2)), REMIC regular interests or other debt instruments subject to 
section 1272(a)(6), or stripped bonds and coupons within the meaning of 
section 1286.
    (c) Information required to be reported to Secretary upon issuance 
of publicly offered debt instruments--(1) In general. Except as provided 
in paragraph (c)(3) or paragraph (d) of this section, the information 
reporting requirements of

[[Page 554]]

this paragraph (c) apply to any debt instrument that is publicly offered 
and has original issue discount. The issuer of any such debt instrument 
must make an information return on the form prescribed by the 
Commissioner (Form 8281, as of September 2, 1992). The prescribed form 
must be filed with the Internal Revenue Service in the manner specified 
on the form. The taxpayer must use the prescribed form even if other 
information returns are filed using other methods (e.g., electronic 
media), unless the Commissioner announces otherwise in a revenue 
procedure.
    (2) Time for filing information return. The prescribed form must be 
filed for each issue of publicly offered debt instruments within 30 days 
after the issue date of the issue.
    (3) Exceptions. The rules of paragraph (c)(1) of this section do not 
apply to debt instruments described in section 1272(a)(2), debt 
instruments issued by natural persons (as defined in Sec. 1.6049-
4(f)(2)), certificates of deposit, REMIC regular interests or other debt 
instruments subject to section 1272(a)(6), or (unless otherwise required 
by the Commissioner pursuant to a revenue ruling or revenue procedure) 
stripped bonds and coupons (within the meaning of section 1286).
    (d) Application to foreign issuers and U.S. issuers of foreign-
targeted debt instruments. A foreign or domestic issuer is subject to 
the rules of this section with respect to an issue of debt instruments 
unless the issue is not offered for sale or resale in the United States 
in connection with its original issuance.
    (e) Penalties. See section 6706 for rules relating to the penalty 
imposed for failure to meet the information reporting requirements 
imposed by this section.
    (f) Effective date. Paragraphs (c), (d), and (e) of this section are 
effective for an issue of debt instruments issued after September 2, 
1992.

[T.D. 8431, 57 FR 40322, Sept. 3, 1992; 57 FR 46243, Oct. 7, 1992, as 
amended by T.D. 8517, 59 FR 4827, Feb. 2, 1994; T.D. 8674, 61 FR 30143, 
June 14, 1996]



Sec. 1.1275-4  Contingent payment debt instruments.

    (a) Applicability--(1) In general. Except as provided in paragraph 
(a)(2) of this section, this section applies to any debt instrument that 
provides for one or more contingent payments. In general, paragraph (b) 
of this section applies to a contingent payment debt instrument that is 
issued for money or publicly traded property and paragraph (c) of this 
section applies to a contingent payment debt instrument that is issued 
for nonpublicly traded property. Paragraph (d) of this section provides 
special rules for tax-exempt obligations. See Sec. 1.1275-6 for a 
taxpayer's treatment of a contingent payment debt instrument and a 
hedge.
    (2) Exceptions. This section does not apply to--
    (i) A debt instrument that has an issue price determined under 
section 1273(b)(4) (e.g., a debt instrument subject to section 483);
    (ii) A variable rate debt instrument (as defined in Sec. 1.1275-5);
    (iii) A debt instrument subject to Sec. 1.1272-1(c) (a debt 
instrument that provides for certain contingencies) or Sec. 1.1272-1(d) 
(a debt instrument that provides for a fixed yield);
    (iv) A debt instrument subject to section 988 (except as provided in 
Sec. 1.988-6);
    (v) A debt instrument to which section 1272(a)(6) applies (certain 
interests in or mortgages held by a REMIC, and certain other debt 
instruments with payments subject to acceleration);
    (vi) A debt instrument (other than a tax-exempt obligation) 
described in section 1272(a)(2) (e.g., U.S. savings bonds, certain loans 
between natural persons, and short-term taxable obligations);
    (vii) An inflation-indexed debt instrument (as defined in Sec. 
1.1275-7); or
    (viii) A debt instrument issued pursuant to a plan or arrangement 
if--
    (A) The plan or arrangement is created by a state statute;
    (B) A primary objective of the plan or arrangement is to enable the 
participants to pay for the costs of post-secondary education for 
themselves or their designated beneficiaries; and
    (C) Contingent payments on the debt instrument are related to such 
objective.

[[Page 555]]

    (3) Insolvency and default. A payment is not contingent merely 
because of the possibility of impairment by insolvency, default, or 
similar circumstances.
    (4) Convertible debt instruments. A debt instrument does not provide 
for contingent payments merely because it provides for an option to 
convert the debt instrument into the stock of the issuer, into the stock 
or debt of a related party (within the meaning of section 267(b) or 
707(b)(1)), or into cash or other property in an amount equal to the 
approximate value of such stock or debt.
    (5) Remote and incidental contingencies. A payment is not a 
contingent payment merely because of a contingency that, as of the issue 
date, is either remote or incidental. See Sec. 1.1275-2(h) for the 
treatment of remote and incidental contingencies.
    (b) Noncontingent bond method--(1) Applicability. The noncontingent 
bond method described in this paragraph (b) applies to a contingent 
payment debt instrument that has an issue price determined under Sec. 
1.1273-2 (e.g., a contingent payment debt instrument that is issued for 
money or publicly traded property).
    (2) In general. Under the noncontingent bond method, interest on a 
debt instrument must be taken into account whether or not the amount of 
any payment is fixed or determinable in the taxable year. The amount of 
interest that is taken into account for each accrual period is 
determined by constructing a projected payment schedule for the debt 
instrument and applying rules similar to those for accruing OID on a 
noncontingent debt instrument. If the actual amount of a contingent 
payment is not equal to the projected amount, appropriate adjustments 
are made to reflect the difference.
    (3) Description of method. The following steps describe how to 
compute the amount of income, deductions, gain, and loss under the 
noncontingent bond method:
    (i) Step one: Determine the comparable yield. Determine the 
comparable yield for the debt instrument under the rules of paragraph 
(b)(4) of this section. The comparable yield is determined as of the 
debt instrument's issue date.
    (ii) Step two: Determine the projected payment schedule. Determine 
the projected payment schedule for the debt instrument under the rules 
of paragraph (b)(4) of this section. The projected payment schedule is 
determined as of the issue date and remains fixed throughout the term of 
the debt instrument (except under paragraph (b)(9)(ii) of this section, 
which applies to a payment that is fixed more than 6 months before it is 
due).
    (iii) Step three: Determine the daily portions of interest. 
Determine the daily portions of interest on the debt instrument for a 
taxable year as follows. The amount of interest that accrues in each 
accrual period is the product of the comparable yield of the debt 
instrument (properly adjusted for the length of the accrual period) and 
the debt instrument's adjusted issue price at the beginning of the 
accrual period. See paragraph (b)(7)(ii) of this section to determine 
the adjusted issue price of the debt instrument. The daily portions of 
interest are determined by allocating to each day in the accrual period 
the ratable portion of the interest that accrues in the accrual period. 
Except as modified by paragraph (b)(3)(iv) of this section, the daily 
portions of interest are includible in income by a holder for each day 
in the holder's taxable year on which the holder held the debt 
instrument and are deductible by the issuer for each day during the 
issuer's taxable year on which the issuer was primarily liable on the 
debt instrument.
    (iv) Step four: Adjust the amount of income or deductions for 
differences between projected and actual contingent payments. Make 
appropriate adjustments to the amount of income or deductions 
attributable to the debt instrument in a taxable year for any 
differences between projected and actual contingent payments. See 
paragraph (b)(6) of this section to determine the amount of an 
adjustment and the treatment of the adjustment.
    (4) Comparable yield and projected payment schedule. This paragraph 
(b)(4) provides rules for determining the comparable yield and projected 
payment schedule for a debt instrument. The comparable yield and 
projected payment schedule must be supported

[[Page 556]]

by contemporaneous documentation showing that both are reasonable, are 
based on reliable, complete, and accurate data, and are made in good 
faith.
    (i) Comparable yield--(A) In general. Except as provided in 
paragraph (b)(4)(i)(B) of this section, the comparable yield for a debt 
instrument is the yield at which the issuer would issue a fixed rate 
debt instrument with terms and conditions similar to those of the 
contingent payment debt instrument (the comparable fixed rate debt 
instrument), including the level of subordination, term, timing of 
payments, and general market conditions. For example, if a Sec. 1.1275-
6 hedge (or the substantial equivalent) is available, the comparable 
yield is the yield on the synthetic fixed rate debt instrument that 
would result if the issuer entered into the Sec. 1.1275-6 hedge. If a 
Sec. 1.1275-6 hedge (or the substantial equivalent) is not available, 
but similar fixed rate debt instruments of the issuer trade at a price 
that reflects a spread above a benchmark rate, the comparable yield is 
the sum of the value of the benchmark rate on the issue date and the 
spread. In determining the comparable yield, no adjustments are made for 
the riskiness of the contingencies or the liquidity of the debt 
instrument. The comparable yield must be a reasonable yield for the 
issuer and must not be less than the applicable Federal rate (based on 
the overall maturity of the debt instrument).
    (B) Presumption for certain debt instruments. This paragraph 
(b)(4)(i)(B) applies to a debt instrument if the instrument provides for 
one or more contingent payments not based on market information and the 
instrument is part of an issue that is marketed or sold in substantial 
part to persons for whom the inclusion of interest under this paragraph 
(b) is not expected to have a substantial effect on their U.S. tax 
liability. If this paragraph (b)(4)(i)(B) applies to a debt instrument, 
the instrument's comparable yield is presumed to be the applicable 
Federal rate (based on the overall maturity of the debt instrument). A 
taxpayer may overcome this presumption only with clear and convincing 
evidence that the comparable yield for the debt instrument should be a 
specific yield (determined using the principles in paragraph 
(b)(4)(i)(A) of this section) that is higher than the applicable Federal 
rate. The presumption may not be overcome with appraisals or other 
valuations of nonpublicly traded property. Evidence used to overcome the 
presumption must be specific to the issuer and must not be based on 
comparable issuers or general market conditions.
    (ii) Projected payment schedule. The projected payment schedule for 
a debt instrument includes each noncontingent payment and an amount for 
each contingent payment determined as follows:
    (A) Market-based payments. If a contingent payment is based on 
market information (a market-based payment), the amount of the projected 
payment is the forward price of the contingent payment. The forward 
price of a contingent payment is the amount one party would agree, as of 
the issue date, to pay an unrelated party for the right to the 
contingent payment on the settlement date (e.g., the date the contingent 
payment is made). For example, if the right to a contingent payment is 
substantially similar to an exchange-traded option, the forward price is 
the spot price of the option (the option premium) compounded at the 
applicable Federal rate from the issue date to the date the contingent 
payment is due.
    (B) Other payments. If a contingent payment is not based on market 
information (a non-market-based payment), the amount of the projected 
payment is the expected value of the contingent payment as of the issue 
date.
    (C) Adjustments to the projected payment schedule. The projected 
payment schedule must produce the comparable yield. If the projected 
payment schedule does not produce the comparable yield, the schedule 
must be adjusted consistent with the principles of this paragraph (b)(4) 
to produce the comparable yield. For example, the adjusted amounts of 
non-market-based payments must reasonably reflect the relative expected 
values of the payments and must not be set to accelerate or defer income 
or deductions. If the debt instrument contains both market-based and 
non-market-based payments, adjustments are generally made first to the 
non-market-based

[[Page 557]]

payments because more objective information is available for the market-
based payments.
    (iii) Market information. For purposes of this paragraph (b), market 
information is any information on which an objective rate can be based 
under Sec. 1.1275-5(c) (1) or (2).
    (iv) Issuer/holder consistency. The issuer's projected payment 
schedule is used to determine the holder's interest accruals and 
adjustments. The issuer must provide the projected payment schedule to 
the holder in a manner consistent with the issuer disclosure rules of 
Sec. 1.1275-2(e). If the issuer does not create a projected payment 
schedule for a debt instrument or the issuer's projected payment 
schedule is unreasonable, the holder of the debt instrument must 
determine the comparable yield and projected payment schedule for the 
debt instrument under the rules of this paragraph (b)(4). A holder that 
determines its own projected payment schedule must explicitly disclose 
this fact and the reason why the holder set its own schedule (e.g., why 
the issuer's projected payment schedule is unreasonable). Unless 
otherwise prescribed by the Commissioner, the disclosure must be made on 
a statement attached to the holder's timely filed Federal income tax 
return for the taxable year that includes the acquisition date of the 
debt instrument.
    (v) Issuer's determination respected--(A) In general. If the issuer 
maintains the contemporaneous documentation required by this paragraph 
(b)(4), the issuer's determination of the comparable yield and projected 
payment schedule will be respected unless either is unreasonable.
    (B) Unreasonable determination. For purposes of paragraph 
(b)(4)(v)(A) of this section, a comparable yield or projected payment 
schedule generally will be considered unreasonable if it is set with a 
purpose to overstate, understate, accelerate, or defer interest accruals 
on the debt instrument. In a determination of whether a comparable yield 
or projected payment schedule is unreasonable, consideration will be 
given to whether the treatment of the debt instrument under this section 
is expected to have a substantial effect on the issuer's or holder's 
U.S. tax liability. For example, if a taxable issuer markets a debt 
instrument to a holder not subject to U.S. taxation, the comparable 
yield will be given close scrutiny and will not be respected unless 
contemporaneous documentation shows that the yield is not too high.
    (C) Exception. Paragraph (b)(4)(v)(A) of this section does not apply 
to a debt instrument subject to paragraph (b)(4)(i)(B) of this section 
(concerning a yield presumption for certain debt instruments that 
provide for non-market-based payments).
    (vi) Examples. The following examples illustrate the provisions of 
this paragraph (b)(4). In each example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes.

    Example 1. Market-based payment--(i) Facts. On December 31, 1996, X 
corporation issues for $1,000,000 a debt instrument that matures on 
December 31, 2006. The debt instrument provides for annual payments of 
interest, beginning in 1997, at the rate of 6 percent and for a payment 
at maturity equal to $1,000,000 plus the excess, if any, of the price of 
10,000 shares of publicly traded stock in an unrelated corporation on 
the maturity date over $350,000, or less the excess, if any, of $350,000 
over the price of 10,000 shares of the stock on the maturity date. On 
the issue date, the forward price to purchase 10,000 shares of the stock 
on December 31, 2006, is $350,000.
    (ii) Comparable yield. Under paragraph (b)(4)(i) of this section, 
the debt instrument's comparable yield is the yield on the synthetic 
debt instrument that would result if X corporation entered into a Sec. 
1.1275-6 hedge. A Sec. 1.1275-6 hedge in this case is a forward 
contract to purchase 10,000 shares of the stock on December 31, 2006. If 
X corporation entered into this hedge, the resulting synthetic debt 
instrument would yield 6 percent, compounded annually. Thus, the 
comparable yield on the debt instrument is 6 percent, compounded 
annually.
    (iii) Projected payment schedule. Under paragraph (b)(4)(ii) of this 
section, the projected payment schedule for the debt instrument consists 
of 10 annual payments of $60,000 and a projected amount for the 
contingent payment at maturity. Because the right to the contingent 
payment is based on market information, the projected amount of the 
contingent payment is the forward price of the payment. The right to the 
contingent payment is substantially similar to a right to a payment of 
$1,000,000 combined with a cash-

[[Page 558]]

settled forward contract for the purchase of 10,000 shares of the stock 
for $350,000 on December 31, 2006. Because the forward price to purchase 
10,000 shares of the stock on December 31, 2006, is $350,000, the amount 
to be received or paid under the forward contract is projected to be 
zero. As a result, the projected amount of the contingent payment at 
maturity is $1,000,000, consisting of the $1,000,000 base amount and no 
additional amount to be received or paid under the forward contract.
    (A) Assume, alternatively, that on the issue date the forward price 
to purchase 10,000 shares of the stock on December 31, 2006, is 
$370,000. If X corporation entered into a Sec. 1.1275-6 hedge (a 
forward contract to purchase the shares for $370,000), the resulting 
synthetic debt instrument would yield 6.15 percent, compounded annually. 
Thus, the comparable yield on the debt instrument is 6.15 percent, 
compounded annually. The projected payment schedule for the debt 
instrument consists of 10 annual payments of $60,000 and a projected 
amount for the contingent payment at maturity. The projected amount of 
the contingent payment is $1,020,000, consisting of the $1,000,000 base 
amount plus the excess $20,000 of the forward price of the stock over 
the purchase price of the stock under the forward contract.
    (B) Assume, alternatively, that on the issue date the forward price 
to purchase 10,000 shares of the stock on December 31, 2006, is 
$330,000. If X corporation entered into a Sec. 1.1275-6 hedge, the 
resulting synthetic debt instrument would yield 5.85 percent, compounded 
annually. Thus, the comparable yield on the debt instrument is 5.85 
percent, compounded annually. The projected payment schedule for the 
debt instrument consists of 10 annual payments of $60,000 and a 
projected amount for the contingent payment at maturity. The projected 
amount of the contingent payment is $980,000, consisting of the 
$1,000,000 base amount minus the excess $20,000 of the purchase price of 
the stock under the forward contract over the forward price of the 
stock.
    Example 2. Non-market-based payments--(i) Facts. On December 31, 
1996, Y issues to Z for $1,000,000 a debt instrument that matures on 
December 31, 2000. The debt instrument has a stated principal amount of 
$1,000,000, payable at maturity, and provides for payments on December 
31 of each year, beginning in 1997, of $20,000 plus 1 percent of Y's 
gross receipts, if any, for the year. On the issue date, Y has 
outstanding fixed rate debt instruments with maturities of 2 to 10 years 
that trade at a price that reflects an average of 100 basis points over 
Treasury bonds. These debt instruments have terms and conditions similar 
to those of the debt instrument. Assume that on December 31, 1996, 4-
year Treasury bonds have a yield of 6.5 percent, compounded annually, 
and that no Sec. 1.1275-6 hedge is available for the debt instrument. 
In addition, assume that the interest inclusions attributable to the 
debt instrument are expected to have a substantial effect on Z's U.S. 
tax liability.
    (ii) Comparable yield. The comparable yield for the debt instrument 
is equal to the value of the benchmark rate (i.e., the yield on 4-year 
Treasury bonds) on the issue date plus the spread. Thus, the debt 
instrument's comparable yield is 7.5 percent, compounded annually.
    (iii) Projected payment schedule. Y anticipates that it will have no 
gross receipts in 1997, but that it will have gross receipts in later 
years, and those gross receipts will grow each year for the next three 
years. Based on its business projections, Y believes that it is not 
unreasonable to expect that its gross receipts in 1999 and each year 
thereafter will grow by between 6 percent and 13 percent over the prior 
year. Thus, Y must take these expectations into account in establishing 
a projected payment schedule for the debt instrument that results in a 
yield of 7.5 percent, compounded annually. Accordingly, Y could 
reasonably set the following projected payment schedule for the debt 
instrument:

------------------------------------------------------------------------
                                            Noncontingent    Contingent
                   Date                        payment         payment
------------------------------------------------------------------------
12/31/1997...............................          $20,000            $0
12/31/1998...............................           20,000        70,000
12/31/1999...............................           20,000        75,600
12/31/2000...............................        1,020,000        83,850
------------------------------------------------------------------------

    (5) Qualified stated interest. No amounts payable on a debt 
instrument to which this paragraph (b) applies are qualified stated 
interest within the meaning of Sec. 1.1273-1(c).
    (6) Adjustments. This paragraph (b)(6) provides rules for the 
treatment of positive and negative adjustments under the noncontingent 
bond method. A taxpayer takes into account only those adjustments that 
occur during a taxable year while the debt instrument is held by the 
taxpayer or while the taxpayer is primarily liable on the debt 
instrument.
    (i) Determination of positive and negative adjustments. If the 
amount of a contingent payment is more than the projected amount of the 
contingent payment, the difference is a positive adjustment on the date 
of the payment. If the amount of a contingent payment is less than the 
projected amount of the contingent payment, the difference is a negative 
adjustment on the date of the payment (or on the scheduled date of

[[Page 559]]

the payment if the amount of the payment is zero).
    (ii) Treatment of net positive adjustments. The amount, if any, by 
which total positive adjustments on a debt instrument in a taxable year 
exceed the total negative adjustments on the debt instrument in the 
taxable year is a net positive adjustment. A net positive adjustment is 
treated as additional interest for the taxable year.
    (iii) Treatment of net negative adjustments. The amount, if any, by 
which total negative adjustments on a debt instrument in a taxable year 
exceed the total positive adjustments on the debt instrument in the 
taxable year is a net negative adjustment. A taxpayer's net negative 
adjustment on a debt instrument for a taxable year is treated as 
follows:
    (A) Reduction of interest accruals. A net negative adjustment first 
reduces interest for the taxable year that the taxpayer would otherwise 
account for on the debt instrument under paragraph (b)(3)(iii) of this 
section.
    (B) Ordinary income or loss. If the net negative adjustment exceeds 
the interest for the taxable year that the taxpayer would otherwise 
account for on the debt instrument under paragraph (b)(3)(iii) of this 
section, the excess is treated as ordinary loss by a holder and ordinary 
income by an issuer. However, the amount treated as ordinary loss by a 
holder is limited to the amount by which the holder's total interest 
inclusions on the debt instrument exceed the total amount of the 
holder's net negative adjustments treated as ordinary loss on the debt 
instrument in prior taxable years. The amount treated as ordinary income 
by an issuer is limited to the amount by which the issuer's total 
interest deductions on the debt instrument exceed the total amount of 
the issuer's net negative adjustments treated as ordinary income on the 
debt instrument in prior taxable years.
    (C) Carryforward. If the net negative adjustment exceeds the sum of 
the amounts treated by the taxpayer as a reduction of interest and as 
ordinary income or loss (as the case may be) on the debt instrument for 
the taxable year, the excess is a negative adjustment carryforward for 
the taxable year. In general, a taxpayer treats a negative adjustment 
carryforward for a taxable year as a negative adjustment on the debt 
instrument on the first day of the succeeding taxable year. However, if 
a holder of a debt instrument has a negative adjustment carryforward on 
the debt instrument in a taxable year in which the debt instrument is 
sold, exchanged, or retired, the negative adjustment carryforward 
reduces the holder's amount realized on the sale, exchange, or 
retirement. If an issuer of a debt instrument has a negative adjustment 
carryforward on the debt instrument for a taxable year in which the debt 
instrument is retired, the issuer takes the negative adjustment 
carryforward into account as ordinary income.
    (D) Treatment under section 67. A net negative adjustment is not 
subject to section 67 (the 2-percent floor on miscellaneous itemized 
deductions).
    (iv) Cross-references. If a holder has a basis in a debt instrument 
that is different from the debt instrument's adjusted issue price, the 
holder may have additional positive or negative adjustments under 
paragraph (b)(9)(i) of this section. If the amount of a contingent 
payment is fixed more than 6 months before the date it is due, the 
amount and timing of the adjustment are determined under paragraph 
(b)(9)(ii) of this section.
    (7) Adjusted issue price, adjusted basis, and retirement--(i) In 
general. If a debt instrument is subject to the noncontingent bond 
method, this paragraph (b)(7) provides rules to determine the adjusted 
issue price of the debt instrument, the holder's basis in the debt 
instrument, and the treatment of any scheduled or unscheduled 
retirements. In general, because any difference between the actual 
amount of a contingent payment and the projected amount of the payment 
is taken into account as an adjustment to income or deduction, the 
projected payments are treated as the actual payments for purposes of 
making adjustments to issue price and basis and determining the amount 
of any contingent payment made on a scheduled retirement.

[[Page 560]]

    (ii) Definition of adjusted issue price. The adjusted issue price of 
a debt instrument is equal to the debt instrument's issue price, 
increased by the interest previously accrued on the debt instrument 
under paragraph (b)(3)(iii) of this section (determined without regard 
to any adjustments taken into account under paragraph (b)(3)(iv) of this 
section), and decreased by the amount of any noncontingent payment and 
the projected amount of any contingent payment previously made on the 
debt instrument. See paragraph (b)(9)(ii) of this section for special 
rules that apply when a contingent payment is fixed more than 6 months 
before it is due.
    (iii) Adjustments to basis. A holder's basis in a debt instrument is 
increased by the interest previously accrued by the holder on the debt 
instrument under paragraph (b)(3)(iii) of this section (determined 
without regard to any adjustments taken into account under paragraph 
(b)(3)(iv) of this section), and decreased by the amount of any 
noncontingent payment and the projected amount of any contingent payment 
previously made on the debt instrument to the holder. See paragraph 
(b)(9)(i) of this section for special rules that apply when basis is 
different from adjusted issue price and paragraph (b)(9)(ii) of this 
section for special rules that apply when a contingent payment is fixed 
more than 6 months before it is due.
    (iv) Scheduled retirements. For purposes of determining the amount 
realized by a holder and the repurchase price paid by the issuer on the 
scheduled retirement of a debt instrument, a holder is treated as 
receiving, and the issuer is treated as paying, the projected amount of 
any contingent payment due at maturity. If the amount paid or received 
is different from the projected amount, see paragraph (b)(6) of this 
section for the treatment of the difference by the taxpayer. Under 
paragraph (b)(6)(iii)(C) of this section, the amount realized by a 
holder on the retirement of a debt instrument is reduced by any negative 
adjustment carryforward determined in the taxable year of the 
retirement.
    (v) Unscheduled retirements. An unscheduled retirement of a debt 
instrument (or the receipt of a pro-rata prepayment that is treated as a 
retirement of a portion of a debt instrument under Sec. 1.1275-2(f)) is 
treated as a repurchase of the debt instrument (or a pro-rata portion of 
the debt instrument) by the issuer from the holder for the amount paid 
by the issuer to the holder.
    (vi) Examples. The following examples illustrate the provisions of 
paragraphs (b) (6) and (7) of this section. In each example, assume that 
the instrument described is a debt instrument for Federal income tax 
purposes. No inference is intended, however, as to whether the 
instrument is a debt instrument for Federal income tax purposes.

    Example 1. Treatment of positive and negative adjustments--(i) 
Facts. On December 31, 1996, Z, a calendar year taxpayer, purchases a 
debt instrument subject to this paragraph (b) at original issue for 
$1,000. The debt instrument's comparable yield is 10 percent, compounded 
annually, and the projected payment schedule provides for payments of 
$500 on December 31, 1997 (consisting of a noncontingent payment of $375 
and a projected amount of $125) and $660 on December 31, 1998 
(consisting of a noncontingent payment of $600 and a projected amount of 
$60). The debt instrument is a capital asset in the hands of Z.
    (ii) Adjustment in 1997. Based on the projected payment schedule, 
Z's total daily portions of interest on the debt instrument are $100 for 
1997 (issue price of $1,000 x 10 percent). Assume that the payment 
actually made on December 31, 1997, is $375, rather than the projected 
$500. Under paragraph (b)(6)(i) of this section, Z has a negative 
adjustment of $125 on December 31, 1997, attributable to the difference 
between the amount of the actual payment and the amount of the projected 
payment. Because Z has no positive adjustments for 1997, Z has a net 
negative adjustment of $125 on the debt instrument for 1997. This net 
negative adjustment reduces to zero the $100 total daily portions of 
interest Z would otherwise include in income in 1997. Accordingly, Z has 
no interest income on the debt instrument for 1997. Because Z had no 
interest inclusions on the debt instrument for prior taxable years, the 
remaining $25 of the net negative adjustment is a negative adjustment 
carryforward for 1997 that results in a negative adjustment of $25 on 
January 1, 1998.
    (iii) Adjustment to issue price and basis. Z's total daily portions 
of interest on the debt instrument are $100 for 1997. The adjusted issue 
price of the debt instrument and Z's adjusted basis in the debt 
instrument are increased by this amount, despite the fact that

[[Page 561]]

Z does not include this amount in income because of the net negative 
adjustment for 1997. In addition, the adjusted issue price of the debt 
instrument and Z's adjusted basis in the debt instrument are decreased 
on December 31, 1997, by the projected amount of the payment on that 
date ($500). Thus, on January 1, 1998, Z's adjusted basis in the debt 
instrument and the adjusted issue price of the debt instrument are $600.
    (iv) Adjustments in 1998. Based on the projected payment schedule, 
Z's total daily portions of interest are $60 for 1998 (adjusted issue 
price of $600 x 10 percent). Assume that the payment actually made on 
December 31, 1998, is $700, rather than the projected $660. Under 
paragraph (b)(6)(i) of this section, Z has a positive adjustment of $40 
on December 31, 1998, attributable to the difference between the amount 
of the actual payment and the amount of the projected payment. Because Z 
also has a negative adjustment of $25 on January 1, 1998, Z has a net 
positive adjustment of $15 on the debt instrument for 1998 (the excess 
of the $40 positive adjustment over the $25 negative adjustment). As a 
result, Z has $75 of interest income on the debt instrument for 1998 
(the $15 net positive adjustment plus the $60 total daily portions of 
interest that are taken into account by Z in that year).
    (v) Retirement. Based on the projected payment schedule, Z's 
adjusted basis in the debt instrument immediately before the payment at 
maturity is $660 ($600 plus $60 total daily portions of interest for 
1998). Even though Z receives $700 at maturity, for purposes of 
determining the amount realized by Z on retirement of the debt 
instrument, Z is treated as receiving the projected amount of the 
contingent payment on December 31, 1998. Therefore, Z is treated as 
receiving $660 on December 31, 1998. Because Z's adjusted basis in the 
debt instrument immediately before its retirement is $660, Z recognizes 
no gain or loss on the retirement.
    Example 2. Negative adjustment carryforward for year of sale--(i) 
Facts. Assume the same facts as in Example 1 of this paragraph 
(b)(7)(vi), except that Z sells the debt instrument on January 1, 1998, 
for $630.
    (ii) Gain on sale. On the date the debt instrument is sold, Z's 
adjusted basis in the debt instrument is $600. Because Z has a negative 
adjustment of $25 on the debt instrument on January 1, 1998, and has no 
positive adjustments on the debt instrument in 1998, Z has a net 
negative adjustment for 1998 of $25. Because Z has not included in 
income any interest on the debt instrument, the entire $25 net negative 
adjustment is a negative adjustment carryforward for the taxable year of 
the sale. Under paragraph (b)(6)(iii)(C) of this section, the $25 
negative adjustment carryforward reduces the amount realized by Z on the 
sale of the debt instrument from $630 to $605. Thus, Z has a gain on the 
sale of $5 ($605-$600). Under paragraph (b)(8)(i) of this section, the 
gain is treated as interest income.
    Example 3. Negative adjustment carryforward for year of retirement--
(i) Facts. Assume the same facts as in Example 1 of this paragraph 
(b)(7)(vi), except that the payment actually made on December 31, 1998, 
is $615, rather than the projected $660.
    (ii) Adjustments in 1998. Under paragraph (b)(6)(i) of this section, 
Z has a negative adjustment of $45 on December 31, 1998, attributable to 
the difference between the amount of the actual payment and the amount 
of the projected payment. In addition, Z has a negative adjustment of 
$25 on January 1, 1998. See Example 1(ii) of this paragraph (b)(7)(vi). 
Because Z has no positive adjustments in 1998, Z has a net negative 
adjustment of $70 for 1998. This net negative adjustment reduces to zero 
the $60 total daily portions of interest Z would otherwise include in 
income for 1998. Therefore, Z has no interest income on the debt 
instrument for 1998. Because Z had no interest inclusions on the debt 
instrument for 1997, the remaining $10 of the net negative adjustment is 
a negative adjustment carryforward for 1998 that reduces the amount 
realized by Z on retirement of the debt instrument.
    (iii) Loss on retirement. Immediately before the payment at 
maturity, Z's adjusted basis in the debt instrument is $660. Under 
paragraph (b)(7)(iv) of this section, Z is treated as receiving the 
projected amount of the contingent payment, or $660, as the payment at 
maturity. Under paragraph (b)(6)(iii)(C) of this section, however, this 
amount is reduced by any negative adjustment carryforward determined for 
the taxable year of retirement to calculate the amount Z realizes on 
retirement of the debt instrument. Thus, Z has a loss of $10 on the 
retirement of the debt instrument, equal to the amount by which Z's 
adjusted basis in the debt instrument ($660) exceeds the amount Z 
realizes on the retirement of the debt instrument ($660 minus the $10 
negative adjustment carryforward). Under paragraph (b)(8)(ii) of this 
section, the loss is a capital loss.

    (8) Character on sale, exchange, or retirement--(i) Gain. Any gain 
recognized by a holder on the sale, exchange, or retirement of a debt 
instrument subject to this paragraph (b) is interest income.
    (ii) Loss. Any loss recognized by a holder on the sale, exchange, or 
retirement of a debt instrument subject to this paragraph (b) is 
ordinary loss to the extent that the holder's total interest inclusions 
on the debt instrument

[[Page 562]]

exceed the total net negative adjustments on the debt instrument the 
holder took into account as ordinary loss. Any additional loss is 
treated as loss from the sale, exchange, or retirement of the debt 
instrument. However, any loss that would otherwise be ordinary under 
this paragraph (b)(8)(ii) and that is attributable to the holder's basis 
that could not be amortized under section 171(b)(4) is loss from the 
sale, exchange, or retirement of the debt instrument.
    (iii) Special rule if there are no remaining contingent payments on 
the debt instrument--(A) In general. Notwithstanding paragraphs (b)(8) 
(i) and (ii) of this section, if, at the time of the sale, exchange, or 
retirement of the debt instrument, there are no remaining contingent 
payments due on the debt instrument under the projected payment 
schedule, any gain or loss recognized by the holder is gain or loss from 
the sale, exchange, or retirement of the debt instrument. See paragraph 
(b)(9)(ii) of this section to determine whether there are no remaining 
contingent payments on a debt instrument that provides for fixed but 
deferred contingent payments.
    (B) Exception for certain positive adjustments. Notwithstanding 
paragraph (b)(8)(iii)(A) of this section, if a positive adjustment on a 
debt instrument is spread under paragraph (b)(9)(ii) (F) or (G) of this 
section, any gain recognized by the holder on the sale, exchange, or 
retirement of the instrument is treated as interest income to the extent 
of the positive adjustment that has not yet been accrued and included in 
income by the holder.
    (iv) Examples. The following examples illustrate the provisions of 
this paragraph (b)(8). In each example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes.

    Example 1. Gain on sale--(i) Facts. On January 1, 1998, D, a 
calendar year taxpayer, sells a debt instrument that is subject to 
paragraph (b) of this section for $1,350. The projected payment schedule 
for the debt instrument provides for contingent payments after January 
1, 1998. On January 1, 1998, D has an adjusted basis in the debt 
instrument of $1,200. In addition, D has a negative adjustment 
carryforward of $50 for 1997 that, under paragraph (b)(6)(iii)(C) of 
this section, results in a negative adjustment of $50 on January 1, 
1998. D has no positive adjustments on the debt instrument on January 1, 
1998.
    (ii) Character of gain. Under paragraph (b)(6) of this section, the 
$50 negative adjustment on January 1, 1998, results in a negative 
adjustment carryforward for 1998, the taxable year of the sale of the 
debt instrument. Under paragraph (b)(6)(iii)(C) of this section, the 
negative adjustment carryforward reduces the amount realized by D on the 
sale of the debt instrument from $1,350 to $1,300. As a result, D 
realizes a $100 gain on the sale of the debt instrument, equal to the 
$1,300 amount realized minus D's $1,200 adjusted basis in the debt 
instrument. Under paragraph (b)(8)(i) of this section, the gain is 
interest income to D.
    Example 2. Loss on sale--(i) Facts. On December 31, 1996, E, a 
calendar year taxpayer, purchases a debt instrument at original issue 
for $1,000. The debt instrument is a capital asset in the hands of E. 
The debt instrument provides for a single payment on December 31, 1998 
(the maturity date of the instrument), of $1,000 plus an amount based on 
the increase, if any, in the price of a specified commodity over the 
term of the instrument. The comparable yield for the debt instrument is 
9.54 percent, compounded annually, and the projected payment schedule 
provides for a payment of $1,200 on December 31, 1998. Based on the 
projected payment schedule, the total daily portions of interest are $95 
for 1997 and $105 for 1998.
    (ii) Ordinary loss. Assume that E sells the debt instrument for 
$1,050 on December 31, 1997. On that date, E has an adjusted basis in 
the debt instrument of $1,095 ($1,000 original basis, plus total daily 
portions of $95 for 1997). Therefore, E realizes a $45 loss on the sale 
of the debt instrument ($1,050-$1,095). The loss is ordinary to the 
extent E's total interest inclusions on the debt instrument ($95) exceed 
the total net negative adjustments on the instrument that E took into 
account as an ordinary loss. Because E has not had any net negative 
adjustments on the debt instrument, the $45 loss is an ordinary loss.
    (iii) Capital loss. Alternatively, assume that E sells the debt 
instrument for $990 on December 31, 1997. E realizes a $105 loss on the 
sale of the debt instrument ($990 - $1,095). The loss is ordinary to the 
extent E's total interest inclusions on the debt instrument ($95) exceed 
the total net negative adjustments on the instrument that E took into 
account as an ordinary loss. Because E has not had any net negative 
adjustments on the debt instrument, $95 of the $105 loss is an ordinary 
loss. The remaining $10 of the $105 loss is a capital loss.


[[Page 563]]


    (9) Operating rules. The rules of this paragraph (b)(9) apply to a 
debt instrument subject to the noncontingent bond method notwithstanding 
any other rule of this paragraph (b).
    (i) Basis different from adjusted issue price. This paragraph 
(b)(9)(i) provides rules for a holder whose basis in a debt instrument 
is different from the adjusted issue price of the debt instrument (e.g., 
a subsequent holder that purchases the debt instrument for more or less 
than the instrument's adjusted issue price).
    (A) General rule. The holder accrues interest under paragraph 
(b)(3)(iii) of this section and makes adjustments under paragraph 
(b)(3)(iv) of this section based on the projected payment schedule 
determined as of the issue date of the debt instrument. However, upon 
acquiring the debt instrument, the holder must reasonably allocate any 
difference between the adjusted issue price and the basis to daily 
portions of interest or projected payments over the remaining term of 
the debt instrument. Allocations are taken into account under paragraphs 
(b)(9)(i) (B) and (C) of this section.
    (B) Basis greater than adjusted issue price. If the holder's basis 
in the debt instrument exceeds the debt instrument's adjusted issue 
price, the amount of the difference allocated to a daily portion of 
interest or to a projected payment is treated as a negative adjustment 
on the date the daily portion accrues or the payment is made. On the 
date of the adjustment, the holder's adjusted basis in the debt 
instrument is reduced by the amount the holder treats as a negative 
adjustment under this paragraph (b)(9)(i)(B). See paragraph 
(b)(9)(ii)(E) of this section for a special rule that applies when a 
contingent payment is fixed more than 6 months before it is due.
    (C) Basis less than adjusted issue price. If the holder's basis in 
the debt instrument is less than the debt instrument's adjusted issue 
price, the amount of the difference allocated to a daily portion of 
interest or to a projected payment is treated as a positive adjustment 
on the date the daily portion accrues or the payment is made. On the 
date of the adjustment, the holder's adjusted basis in the debt 
instrument is increased by the amount the holder treats as a positive 
adjustment under this paragraph (b)(9)(i)(C). See paragraph 
(b)(9)(ii)(E) of this section for a special rule that applies when a 
contingent payment is fixed more than 6 months before it is due.
    (D) Premium and discount rules do not apply. The rules for accruing 
premium and discount in sections 171, 1272(a)(7), 1276, and 1281 do not 
apply. Other rules of those sections, such as section 171(b)(4), 
continue to apply to the extent relevant.
    (E) Safe harbor for exchange listed debt instruments. If the debt 
instrument is exchange listed property (within the meaning of Sec. 
1.1273-2(f)(2)), it is reasonable for the holder to allocate any 
difference between the holder's basis and the adjusted issue price of 
the debt instrument pro-rata to daily portions of interest (as 
determined under paragraph (b)(3)(iii) of this section) over the 
remaining term of the debt instrument. A pro-rata allocation is not 
reasonable, however, to the extent the holder's yield on the debt 
instrument, determined after taking into account the amounts allocated 
under this paragraph (b)(9)(i)(E), is less than the applicable Federal 
rate for the instrument. For purposes of the preceding sentence, the 
applicable Federal rate for the debt instrument is determined as if the 
purchase date were the issue date and the remaining term of the 
instrument were the term of the instrument.
    (F) Examples. The following examples illustrate the provisions of 
this paragraph (b)(9)(i). In each example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes. In addition, assume that 
each instrument is not exchange listed property.

    Example 1. Basis greater than adjusted issue price--(i) Facts. On 
July 1, 1998, Z purchases for $1,405 a debt instrument that matures on 
December 31, 1999, and promises to pay on the maturity date $1,000 plus 
the increase, if any, in the price of a specified amount of a commodity 
from the issue date to the maturity date. The debt instrument was 
originally issued on December 31, 1996, for an issue price of $1,000. 
The comparable yield for

[[Page 564]]

the debt instrument is 10.25 percent, compounded semiannually, and the 
projected payment schedule for the debt instrument (determined as of the 
issue date) provides for a single payment at maturity of $1,350. At the 
time of the purchase, the debt instrument has an adjusted issue price of 
$1,162, assuming semiannual accrual periods ending on December 31 and 
June 30 of each year. The increase in the value of the debt instrument 
over its adjusted issue price is due to an increase in the expected 
amount of the contingent payment and not to a decrease in market 
interest rates. The debt instrument is a capital asset in the hands of 
Z. Z is a calendar year taxpayer.
    (ii) Allocation of the difference between basis and adjusted issue 
price. Z's basis in the debt instrument on July 1, 1998, is $1,405. 
Under paragraph (b)(9)(i)(A) of this section, Z allocates the $243 
difference between basis ($1,405) and adjusted issue price ($1,162) to 
the contingent payment at maturity. Z's allocation of the difference 
between basis and adjusted issue price is reasonable because the 
increase in the value of the debt instrument over its adjusted issue 
price is due to an increase in the expected amount of the contingent 
payment.
    (iii) Treatment of debt instrument for 1998. Based on the projected 
payment schedule, $60 of interest accrues on the debt instrument from 
July 1, 1998 to December 31, 1998 (the product of the debt instrument's 
adjusted issue price on July 1, 1998 ($1,162) and the comparable yield 
properly adjusted for the length of the accrual period (10.25 percent/
2)). Z has no net negative or positive adjustments for 1998. Thus, Z 
includes in income $60 of total daily portions of interest for 1998. On 
December 31, 1998, Z's adjusted basis in the debt instrument is $1,465 
($1,405 original basis, plus total daily portions of $60 for 1998).
    (iv) Effect of allocation to contingent payment at maturity. Assume 
that the payment actually made on December 31, 1999, is $1,400, rather 
than the projected $1,350. Thus, under paragraph (b)(6)(i) of this 
section, Z has a positive adjustment of $50 on December 31, 1999. In 
addition, under paragraph (b)(9)(i)(B) of this section, Z has a negative 
adjustment of $243 on December 31, 1999, which is attributable to the 
difference between Z's basis in the debt instrument on July 1, 1998, and 
the instrument's adjusted issue price on that date. As a result, Z has a 
net negative adjustment of $193 for 1999. This net negative adjustment 
reduces to zero the $128 total daily portions of interest Z would 
otherwise include in income in 1999. Accordingly, Z has no interest 
income on the debt instrument for 1999. Because Z had $60 of interest 
inclusions for 1998, $60 of the remaining $65 net negative adjustment is 
treated by Z as an ordinary loss for 1999. The remaining $5 of the net 
negative adjustment is a negative adjustment carryforward for 1999 that 
reduces the amount realized by Z on the retirement of the debt 
instrument from $1,350 to $1,345.
    (v) Loss at maturity. On December 31, 1999, Z's basis in the debt 
instrument is $1,350 ($1,405 original basis, plus total daily portions 
of $60 for 1998 and $128 for 1999, minus the negative adjustment of 
$243). As a result, Z realizes a loss of $5 on the retirement of the 
debt instrument (the difference between the amount realized on the 
retirement ($1,345) and Z's adjusted basis in the debt instrument 
($1,350)). Under paragraph (b)(8)(ii) of this section, the $5 loss is 
treated as loss from the retirement of the debt instrument. 
Consequently, Z realizes a total loss of $65 on the debt instrument for 
1999 (a $60 ordinary loss and a $5 capital loss).
    Example 2. Basis less than adjusted issue price--(i) Facts. On 
January 1, 1999, Y purchases for $910 a debt instrument that pays 7 
percent interest semiannually on June 30 and December 31 of each year, 
and that promises to pay on December 31, 2001, $1,000 plus or minus $10 
times the positive or negative difference, if any, between a specified 
amount and the value of an index on December 31, 2001. However, the 
payment on December 31, 2001, may not be less than $650. The debt 
instrument was originally issued on December 31, 1996, for an issue 
price of $1,000. The comparable yield for the debt instrument is 9.80 
percent, compounded semiannually, and the projected payment schedule for 
the debt instrument (determined as of the issue date) provides for 
semiannual payments of $35 and a contingent payment at maturity of 
$1,175. On January 1, 1999, the debt instrument has an adjusted issue 
price of $1,060, assuming semiannual accrual periods ending on December 
31 and June 30 of each year. Y is a calendar year taxpayer.
    (ii) Allocation of the difference between basis and adjusted issue 
price. Y's basis in the debt instrument on January 1, 1999, is $910. 
Under paragraph (b)(9)(i)(A) of this section, Y must allocate the $150 
difference between basis ($910) and adjusted issue price ($1,060) to 
daily portions of interest or to projected payments. These amounts will 
be positive adjustments taken into account at the time the daily 
portions accrue or the payments are made.
    (A) Assume that, because of a decrease in the relevant index, the 
expected value of the payment at maturity has declined by about 9 
percent. Based on forward prices on January 1, 1999, Y determines that 
approximately $105 of the difference between basis and adjusted issue 
price is allocable to the contingent payment. Y allocates the remaining 
$45 to daily portions of interest on a pro-rata basis (i.e., the amount 
allocated to an accrual period equals the product of $45 and a fraction, 
the numerator of which is the total daily portions for the accrual 
period and the

[[Page 565]]

denominator of which is the total daily portions remaining on the debt 
instrument on January 1, 1999). This allocation is reasonable.
    (B) Assume alternatively that, based on yields of comparable debt 
instruments and its purchase price for the debt instrument, Y determines 
that an appropriate yield for the debt instrument is 13 percent, 
compounded semiannually. Based on this determination, Y allocates $55.75 
of the difference between basis and adjusted issue price to daily 
portions of interest as follows: $15.19 to the daily portions of 
interest for the taxable year ending December 31, 1999; $18.40 to the 
daily portions of interest for the taxable year ending December 31, 
2000; and $22.16 to the daily portions of interest for the taxable year 
ending December 31, 2001. Y allocates the remaining $94.25 to the 
contingent payment at maturity. This allocation is reasonable.

    (ii) Fixed but deferred contingent payments. This paragraph 
(b)(9)(ii) provides rules that apply when the amount of a contingent 
payment becomes fixed before the payment is due. For purposes of 
paragraph (b) of this section, if a contingent payment becomes fixed 
within the 6-month period ending on the due date of the payment, the 
payment is treated as a contingent payment even after the payment is 
fixed. If a contingent payment becomes fixed more than 6 months before 
the payment is due, the following rules apply to the debt instrument.
    (A) Determining adjustments. The amount of the adjustment 
attributable to the contingent payment is equal to the difference 
between the present value of the amount that is fixed and the present 
value of the projected amount of the contingent payment. The present 
value of each amount is determined by discounting the amount from the 
date the payment is due to the date the payment becomes fixed, using a 
discount rate equal to the comparable yield on the debt instrument. The 
adjustment is treated as a positive or negative adjustment, as 
appropriate, on the date the contingent payment becomes fixed. See 
paragraph (b)(9)(ii)(G) of this section to determine the timing of the 
adjustment if all remaining contingent payments on the debt instrument 
become fixed substantially contemporaneously.
    (B) Payment schedule. The contingent payment is no longer treated as 
a contingent payment after the date the amount of the payment becomes 
fixed. On the date the contingent payment becomes fixed, the projected 
payment schedule for the debt instrument is modified prospectively to 
reflect the fixed amount of the payment. Therefore, no adjustment is 
made under paragraph (b)(3)(iv) of this section when the contingent 
payment is actually made.
    (C) Accrual period. Notwithstanding the determination under Sec. 
1.1272-1(b)(1)(ii) of accrual periods for the debt instrument, an 
accrual period ends on the day the contingent payment becomes fixed, and 
a new accrual period begins on the day after the day the contingent 
payment becomes fixed.
    (D) Adjustments to basis and adjusted issue price. The amount of any 
positive adjustment on a debt instrument determined under paragraph 
(b)(9)(ii)(A) of this section increases the adjusted issue price of the 
instrument and the holder's adjusted basis in the instrument. Similarly, 
the amount of any negative adjustment on a debt instrument determined 
under paragraph (b)(9)(ii)(A) of this section decreases the adjusted 
issue price of the instrument and the holder's adjusted basis in the 
instrument.
    (E) Basis different from adjusted issue price. If a holder's basis 
in a debt instrument exceeds the debt instrument's adjusted issue price, 
the amount allocated to a projected payment under paragraph (b)(9)(i) of 
this section is treated as a negative adjustment on the date the payment 
becomes fixed. If a holder's basis in a debt instrument is less than the 
debt instrument's adjusted issue price, the amount allocated to a 
projected payment under paragraph (b)(9)(i) of this section is treated 
as a positive adjustment on the date the payment becomes fixed.
    (F) Special rule for certain contingent interest payments. 
Notwithstanding paragraph (b)(9)(ii)(A) of this section, this paragraph 
(b)(9)(ii)(F) applies to contingent stated interest payments that are 
adjusted to compensate for contingencies regarding the reasonableness of 
the debt instrument's stated rate of interest. For example, this 
paragraph (b)(9)(ii)(F) applies to a debt

[[Page 566]]

instrument that provides for an increase in the stated rate of interest 
if the credit quality of the issuer or liquidity of the debt instrument 
deteriorates. Contingent stated interest payments of this type are 
recognized over the period to which they relate in a reasonable manner.
    (G) Special rule when all contingent payments become fixed. 
Notwithstanding paragraph (b)(9)(ii)(A) of this section, if all the 
remaining contingent payments on a debt instrument become fixed 
substantially contemporaneously, any positive or negative adjustments on 
the instrument are taken into account in a reasonable manner over the 
period to which they relate. For purposes of the preceding sentence, a 
payment is treated as a fixed payment if all remaining contingencies 
with respect to the payment are remote or incidental (within the meaning 
of Sec. 1.1275-2(h)).
    (H) Example. The following example illustrates the provisions of 
this paragraph (b)(9)(ii). In this example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes.

    Example: Fixed but deferred payments--(i) Facts. On December 31, 
1996, B, a calendar year taxpayer, purchases a debt instrument at 
original issue for $1,000. The debt instrument matures on December 31, 
2002, and provides for a payment of $1,000 at maturity. In addition, on 
December 31, 1999, and December 31, 2002, the debt instrument provides 
for payments equal to the excess of the average daily value of an index 
for the 6-month period ending on September 30 of the preceding year over 
a specified amount. The debt instrument's comparable yield is 10 
percent, compounded annually, and the instrument's projected payment 
schedule consists of a payment of $250 on December 31, 1999, and a 
payment of $1,439 on December 31, 2002. B uses annual accrual periods.
    (ii) Interest accrual for 1997. Based on the projected payment 
schedule, B includes a total of $100 of daily portions of interest in 
income in 1997. B's adjusted basis in the debt instrument and the debt 
instrument's adjusted issue price on December 31, 1997, is $1,100.
    (iii) Interest accrual for 1998--(A) Adjustment. Based on the 
projected payment schedule, B would include $110 of total daily portions 
of interest in income in 1998. However, assume that on September 30, 
1998, the payment due on December 31, 1999, fixes at $300, rather than 
the projected $250. Thus, on September 30, 1998, B has an adjustment 
equal to the difference between the present value of the $300 fixed 
amount and the present value of the $250 projected amount of the 
contingent payment. The present values of the two payments are 
determined by discounting each payment from the date the payment is due 
(December 31, 1999) to the date the payment becomes fixed (September 30, 
1998), using a discount rate equal to 10 percent, compounded annually. 
The present value of the fixed payment is $266.30 and the present value 
of the projected amount of the contingent payment is $221.91. Thus, on 
September 30, 1998, B has a positive adjustment of $44.39 ($266.30-
$221.91).
    (B) Effect of adjustment. Under paragraph (b)(9)(ii)(C) of this 
section, B's accrual period ends on September 30, 1998. The daily 
portions of interest on the debt instrument for the period from January 
1, 1998 to September 30, 1998 total $81.51. The adjusted issue price of 
the debt instrument and B's adjusted basis in the debt instrument are 
thus increased over this period by $125.90 (the sum of the daily 
portions of interest of $81.51 and the positive adjustment of $44.39 
made at the end of the period) to $1,225.90. For purposes of all future 
accrual periods, including the new accrual period from October 1, 1998, 
to December 31, 1998, the debt instrument's projected payment schedule 
is modified to reflect a fixed payment of $300 on December 31, 1999. 
Based on the new adjusted issue price of the debt instrument and the new 
projected payment schedule, the yield on the debt instrument does not 
change.
    (C) Interest accrual for 1998. Based on the modified projected 
payment schedule, $29.56 of interest accrues during the accrual period 
that ends on December 31, 1998. Because B has no other adjustments 
during 1998, the $44.39 positive adjustment on September 30, 1998, 
results in a net positive adjustment for 1998, which is additional 
interest for that year. Thus, B includes $155.46 ($81.51+$29.56+$44.39) 
of interest in income in 1998. B's adjusted basis in the debt instrument 
and the debt instrument's adjusted issue price on December 31, 1998, is 
$1,255.46 ($1,225.90 from the end of the prior accrual period plus 
$29.56 total daily portions for the current accrual period).

    (iii) Timing contingencies. This paragraph (b)(9)(iii) provides 
rules for debt instruments that have payments that are contingent as to 
time.
    (A) Treatment of certain options. If a taxpayer has an unconditional 
option to put or call the debt instrument, to exchange the debt 
instrument for other property, or to extend the maturity

[[Page 567]]

date of the debt instrument, the projected payment schedule is 
determined by using the principles of Sec. 1.1272-1(c)(5).
    (B) Other timing contingencies. [Reserved]
    (iv) Cross-border transactions--(A) Allocation of deductions. For 
purposes of Sec. 1.861-8, the holder of a debt instrument shall treat 
any deduction or loss treated as an ordinary loss under paragraph 
(b)(6)(iii)(B) or (b)(8)(ii) of this section as a deduction that is 
definitely related to the class of gross income to which income from 
such debt instrument belongs. Accordingly, if a U.S. person holds a debt 
instrument issued by a related controlled foreign corporation and, 
pursuant to section 904(d)(3) and the regulations thereunder, any 
interest accrued by such U.S. person with respect to such debt 
instrument would be treated as foreign source general limitation income, 
any deductions relating to a net negative adjustment will reduce the 
U.S. person's foreign source general limitation income. The holder shall 
apply the general rules relating to allocation and apportionment of 
deductions to any other deduction or loss realized by the holder with 
respect to the debt instrument.
    (B) Investments in United States real property. Notwithstanding 
paragraph (b)(8)(i) of this section, gain on the sale, exchange, or 
retirement of a debt instrument that is a United States real property 
interest is treated as gain for purposes of sections 897, 1445, and 
6039C.
    (v) Coordination with subchapter M and related provisions. For 
purposes of sections 852(c)(2) and 4982 and Sec. 1.852-11, any positive 
adjustment, negative adjustment, income, or loss on a debt instrument 
that occurs after October 31 of a taxable year is treated in the same 
manner as foreign currency gain or loss that is attributable to a 
section 988 transaction.
    (vi) Coordination with section 1092. A holder treats a negative 
adjustment and an issuer treats a positive adjustment as a loss with 
respect to a position in a straddle if the debt instrument is a position 
in a straddle and the contingency (or any portion of the contingency) to 
which the adjustment relates would be part of the straddle if entered 
into as a separate position.
    (c) Method for debt instruments not subject to the noncontingent 
bond method--(1) Applicability. This paragraph (c) applies to a 
contingent payment debt instrument (other than a tax-exempt obligation) 
that has an issue price determined under Sec. 1.1274-2. For example, 
this paragraph (c) generally applies to a contingent payment debt 
instrument that is issued for nonpublicly traded property.
    (2) Separation into components. If paragraph (c) of this section 
applies to a debt instrument (the overall debt instrument), the 
noncontingent payments are subject to the rules in paragraph (c)(3) of 
this section, and the contingent payments are accounted for separately 
under the rules in paragraph (c)(4) of this section.
    (3) Treatment of noncontingent payments. The noncontingent payments 
are treated as a separate debt instrument. The issue price of the 
separate debt instrument is the issue price of the overall debt 
instrument, determined under Sec. 1.1274-2(g). No interest payments on 
the separate debt instrument are qualified stated interest payments 
(within the meaning of Sec. 1.1273-1(c)) and the de minimis rules of 
section 1273(a)(3) and Sec. 1.1273-1(d) do not apply to the separate 
debt instrument.
    (4) Treatment of contingent payments--(i) In general. Except as 
provided in paragraph (c)(4)(iii) of this section, the portion of a 
contingent payment treated as interest under paragraph (c)(4)(ii) of 
this section is includible in gross income by the holder and deductible 
from gross income by the issuer in their respective taxable years in 
which the payment is made.
    (ii) Characterization of contingent payments as principal and 
interest--(A) General rule. A contingent payment is treated as a payment 
of principal in an amount equal to the present value of the payment, 
determined by discounting the payment at the test rate from the date the 
payment is made to the issue date. The amount of the payment in excess 
of the amount treated as principal under the preceding sentence is 
treated as a payment of interest.
    (B) Test rate. The test rate used for purposes of paragraph 
(c)(4)(ii)(A) of this section is the rate that would be

[[Page 568]]

the test rate for the overall debt instrument under Sec. 1.1274-4 if 
the term of the overall debt instrument began on the issue date of the 
overall debt instrument and ended on the date the contingent payment is 
made. However, in the case of a contingent payment that consists of a 
payment of stated principal accompanied by a payment of stated interest 
at a rate that exceeds the test rate determined under the preceding 
sentence, the test rate is the stated interest rate.
    (iii) Certain delayed contingent payments--(A) General rule. 
Notwithstanding paragraph (c)(4)(ii) of this section, if a contingent 
payment becomes fixed more than 6 months before the payment is due, the 
issuer and holder are treated as if the issuer had issued a separate 
debt instrument on the date the payment becomes fixed, maturing on the 
date the payment is due. This separate debt instrument is treated as a 
debt instrument to which section 1274 applies. The stated principal 
amount of this separate debt instrument is the amount of the payment 
that becomes fixed. An amount equal to the issue price of this debt 
instrument is characterized as interest or principal under the rules of 
paragraph (c)(4)(ii) of this section and accounted for as if this amount 
had been paid by the issuer to the holder on the date that the amount of 
the payment becomes fixed. To determine the issue price of the separate 
debt instrument, the payment is discounted at the test rate from the 
maturity date of the separate debt instrument to the date that the 
amount of the payment becomes fixed.
    (B) Test rate. The test rate used for purposes of paragraph 
(c)(4)(iii)(A) of this section is determined in the same manner as the 
test rate under paragraph (c)(4)(ii)(B) of this section is determined 
except that the date the contingent payment is due is used rather than 
the date the contingent payment is made.
    (5) Basis different from adjusted issue price. This paragraph (c)(5) 
provides rules for a holder whose basis in a debt instrument is 
different from the instrument's adjusted issue price (e.g., a subsequent 
holder). This paragraph (c)(5), however, does not apply if the holder is 
reporting income under the installment method of section 453.
    (i) Allocation of basis. The holder must allocate basis to the 
noncontingent component (i.e., the right to the noncontingent payments) 
and to any separate debt instruments described in paragraph (c)(4)(iii) 
of this section in an amount up to the total of the adjusted issue price 
of the noncontingent component and the adjusted issue prices of the 
separate debt instruments. The holder must allocate the remaining basis, 
if any, to the contingent component (i.e., the right to the contingent 
payments).
    (ii) Noncontingent component. Any difference between the holder's 
basis in the noncontingent component and the adjusted issue price of the 
noncontingent component, and any difference between the holder's basis 
in a separate debt instrument and the adjusted issue price of the 
separate debt instrument, is taken into account under the rules for 
market discount, premium, and acquisition premium that apply to a 
noncontingent debt instrument.
    (iii) Contingent component. Amounts received by the holder that are 
treated as principal payments under paragraph (c)(4)(ii) of this section 
reduce the holder's basis in the contingent component. If the holder's 
basis in the contingent component is reduced to zero, any additional 
principal payments on the contingent component are treated as gain from 
the sale or exchange of the debt instrument. Any basis remaining on the 
contingent component on the date the final contingent payment is made 
increases the holder's adjusted basis in the noncontingent component 
(or, if there are no remaining noncontingent payments, is treated as 
loss from the sale or exchange of the debt instrument).
    (6) Treatment of a holder on sale, exchange, or retirement. This 
paragraph (c)(6) provides rules for the treatment of a holder on the 
sale, exchange, or retirement of a debt instrument subject to this 
paragraph (c). Under this paragraph (c)(6), the holder must allocate the 
amount received from the sale, exchange, or retirement of a debt 
instrument first to the noncontingent component and to any separate debt 
instruments described in paragraph (c)(4)(iii)

[[Page 569]]

of this section in an amount up to the total of the adjusted issue price 
of the noncontingent component and the adjusted issue prices of the 
separate debt instruments. The holder must allocate the remaining amount 
received, if any, to the contingent component.
    (i) Amount allocated to the noncontingent component. The amount 
allocated to the noncontingent component and any separate debt 
instruments is treated as an amount realized from the sale, exchange, or 
retirement of the noncontingent component or separate debt instrument.
    (ii) Amount allocated to the contingent component. The amount 
allocated to the contingent component is treated as a contingent payment 
that is made on the date of the sale, exchange, or retirement and is 
characterized as interest and principal under the rules of paragraph 
(c)(4)(ii) of this section.
    (7) Examples. The following examples illustrate the provisions of 
this paragraph (c). In each example, assume that the instrument 
described is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the instrument is a debt 
instrument for Federal income tax purposes.

    Example 1. Contingent interest payments--(i) Facts. A owns 
Blackacre, unencumbered depreciable real estate. On January 1, 1997, A 
sells Blackacre to B. As consideration for the sale, B makes a 
downpayment of $1,000,000 and issues to A a debt instrument that matures 
on December 31, 2001. The debt instrument provides for a payment of 
principal at maturity of $5,000,000 and a contingent payment of interest 
on December 31 of each year equal to a fixed percentage of the gross 
rents B receives from Blackacre in that year. Assume that the debt 
instrument is not issued in a potentially abusive situation. Assume also 
that on January 1, 1997, the short-term applicable Federal rate is 5 
percent, compounded annually, and the mid-term applicable Federal rate 
is 6 percent, compounded annually.
    (ii) Determination of issue price. Under Sec. 1.1274-2(g), the 
issue price of the debt instrument is $3,736,291, which is the present 
value, as of the issue date, of the $5,000,000 noncontingent payment due 
at maturity, calculated using a discount rate equal to the mid-term 
applicable Federal rate. Under Sec. 1.1012-1(g)(1), B's basis in 
Blackacre on January 1, 1997, is $4,736,291 ($1,000,000 down payment 
plus the $3,736,291 issue price of the debt instrument).
    (iii) Noncontingent payment treated as separate debt instrument. 
Under paragraph (c)(3) of this section, the right to the noncontingent 
payment of principal at maturity is treated as a separate debt 
instrument. The issue price of this separate debt instrument is 
$3,736,291 (the issue price of the overall debt instrument). The 
separate debt instrument has a stated redemption price at maturity of 
$5,000,000 and, therefore, OID of $1,263,709.
    (iv) Treatment of contingent payments. Assume that the amount of 
contingent interest that is fixed and paid on December 31, 1997, is 
$200,000. Under paragraph (c)(4)(ii) of this section, this payment is 
treated as consisting of a payment of principal of $190,476, which is 
the present value of the payment, determined by discounting the payment 
at the test rate of 5 percent, compounded annually, from the date the 
payment is made to the issue date. The remainder of the $200,000 payment 
($9,524) is treated as interest. The additional amount treated as 
principal gives B additional basis in Blackacre on December 31, 1997. 
The portion of the payment treated as interest is includible in gross 
income by A and deductible by B in their respective taxable years in 
which December 31, 1997 occurs. The remaining contingent payments on the 
debt instrument are accounted for similarly, using a test rate of 5 
percent, compounded annually, for the contingent payments due on 
December 31, 1998, and December 31, 1999, and a test rate of 6 percent, 
compounded annually, for the contingent payments due on December 31, 
2000, and December 31, 2001.
    Example 2. Fixed but deferred payment--(i) Facts. The facts are the 
same as in paragraph (c)(7) Example 1 of this section, except that the 
contingent payment of interest that is fixed on December 31, 1997, is 
not payable until December 31, 2001, the maturity date.
    (ii) Treatment of deferred contingent payment. Assume that the 
amount of the payment that becomes fixed on December 31, 1997, is 
$200,000. Because this amount is not payable until December 31, 2001, 
under paragraph (c)(4)(iii) of this section, a separate debt instrument 
to which section 1274 applies is treated as issued by B on December 31, 
1997 (the date the payment is fixed). The maturity date of this separate 
debt instrument is December 31, 2001 (the date on which the payment is 
due). The stated principal amount of this separate debt instrument is 
$200,000, the amount of the payment that becomes fixed. The imputed 
principal amount of the separate debt instrument is $158,419, which is 
the present value, as of December 31, 1997, of the $200,000 payment, 
computed using a discount rate equal to the test rate of the overall 
debt instrument (6 percent, compounded annually). An amount equal to the 
issue price of the separate debt instrument is treated as an amount paid 
on December 31, 1997, and characterized as interest and principal under 
the rules of paragraph

[[Page 570]]

(c)(4)(ii) of this section. The amount of the deemed payment 
characterized as principal is equal to $150,875, which is the present 
value, as of January 1, 1997 (the issue date of the overall debt 
instrument), of the deemed payment, computed using a discount rate of 5 
percent, compounded annually. The amount of the deemed payment 
characterized as interest is $7,544 ($158,419 -$150,875), which is 
includible in gross income by A and deductible by B in their respective 
taxable years in which December 31, 1997 occurs.

    (d) Rules for tax-exempt obligations--(1) In general. Except as 
modified by this paragraph (d), the noncontingent bond method described 
in paragraph (b) of this section applies to a tax-exempt obligation (as 
defined in section 1275(a)(3)) to which this section applies. Paragraph 
(d)(2) of this section applies to certain tax-exempt obligations that 
provide for interest-based payments or revenue-based payments and 
paragraph (d)(3) of this section applies to all other obligations. 
Paragraph (d)(4) of this section provides rules for a holder whose basis 
in a tax-exempt obligation is different from the adjusted issue price of 
the obligation.
    (2) Certain tax-exempt obligations with interest-based or revenue-
based payments--(i) Applicability. This paragraph (d)(2) applies to a 
tax-exempt obligation that provides for interest-based payments or 
revenue-based payments.
    (ii) Interest-based payments. A tax-exempt obligation provides for 
interest-based payments if the obligation would otherwise qualify as a 
variable rate debt instrument under Sec. 1.1275-5 except that--
    (A) The obligation provides for more than one fixed rate;
    (B) The obligation provides for one or more caps, floors, or 
governors (or similar restrictions) that are fixed as of the issue date;
    (C) The interest on the obligation is not compounded or paid at 
least annually; or
    (D) The obligation provides for interest at one or more rates equal 
to the product of a qualified floating rate and a fixed multiple greater 
than zero and less than .65, or at one or more rates equal to the 
product of a qualified floating rate and a fixed multiple greater than 
zero and less than .65, increased or decreased by a fixed rate.
    (iii) Revenue-based payments. A tax-exempt obligation provides for 
revenue-based payments if the obligation--
    (A) Is issued to refinance (including a series of refinancings) an 
obligation (in a series of refinancings, the original obligation), the 
proceeds of which were used to finance a project or enterprise; and
    (B) Would otherwise qualify as a variable rate debt instrument under 
Sec. 1.1275-5 except that it provides for stated interest payments at 
least annually based on a single fixed percentage of the revenue, value, 
change in value, or other similar measure of the performance of the 
refinanced project or enterprise.
    (iv) Modifications to the noncontingent bond method. If a tax-exempt 
obligation is subject to this paragraph (d)(2), the following 
modifications to the noncontingent bond method described in paragraph 
(b) of this section apply to the obligation.
    (A) Daily portions and net positive adjustments. The daily portions 
of interest determined under paragraph (b)(3)(iii) of this section and 
any net positive adjustment on the obligation are interest for purposes 
of section 103.
    (B) Net negative adjustments. A net negative adjustment for a 
taxable year reduces the amount of tax-exempt interest the holder would 
otherwise account for on the obligation for the taxable year under 
paragraph (b)(3)(iii) of this section. If the net negative adjustment 
exceeds this amount, the excess is a nondeductible, noncapitalizable 
loss. If a regulated investment company (RIC) within the meaning of 
section 851 has a net negative adjustment in a taxable year that would 
be a nondeductible, noncapitalizable loss under the prior sentence, the 
RIC must use this loss to reduce its tax-exempt interest income on other 
tax-exempt obligations held during the taxable year.
    (C) Gains. Any gain recognized on the sale, exchange, or retirement 
of the obligation is gain from the sale or exchange of the obligation.
    (D) Losses. Any loss recognized on the sale, exchange, or retirement 
of the obligation is treated the same as a net negative adjustment under 
paragraph (d)(2)(iv)(B) of this section.

[[Page 571]]

    (E) Special rule for losses and net negative adjustments. 
Notwithstanding paragraphs (d)(2)(iv) (B) and (D) of this section, on 
the sale, exchange, or retirement of the obligation, the holder may 
claim a loss from the sale or exchange of the obligation to the extent 
the holder has not received in cash or property the sum of its original 
investment in the obligation and any amounts included in income under 
paragraph (d)(4)(ii) of this section.
    (3) All other tax-exempt obligations--(i) Applicability. This 
paragraph (d)(3) applies to a tax-exempt obligation that is not subject 
to paragraph (d)(2) of this section.
    (ii) Modifications to the noncontingent bond method. If a tax-exempt 
obligation is subject to this paragraph (d)(3), the following 
modifications to the noncontingent bond method described in paragraph 
(b) of this section apply to the obligation.
    (A) Modification to projected payment schedule. The comparable yield 
for the obligation is the greater of the obligation's yield, determined 
without regard to the contingent payments, and the tax-exempt applicable 
Federal rate that applies to the obligation. The Internal Revenue 
Service publishes the tax-exempt applicable Federal rate for each month 
in the Internal Revenue Bulletin (see Sec. 601.601(d)(2)(ii) of this 
chapter).
    (B) Daily portions. The daily portions of interest determined under 
paragraph (b)(3)(iii) of this section are interest for purposes of 
section 103.
    (C) Adjustments. A net positive adjustment on the obligation is 
treated as gain to the holder from the sale or exchange of the 
obligation in the taxable year of the adjustment. A net negative 
adjustment on the obligation is treated as a loss to the holder from the 
sale or exchange of the obligation in the taxable year of the 
adjustment.
    (D) Gains and losses. Any gain or loss recognized on the sale, 
exchange, or retirement of the obligation is gain or loss from the sale 
or exchange of the obligation.
    (4) Basis different from adjusted issue price. This paragraph (d)(4) 
provides rules for a holder whose basis in a tax-exempt obligation is 
different from the adjusted issue price of the obligation. The rules of 
paragraph (b)(9)(i) of this section do not apply to tax-exempt 
obligations.
    (i) Basis greater than adjusted issue price. If the holder's basis 
in the obligation exceeds the obligation's adjusted issue price, the 
holder, upon acquiring the obligation, must allocate this difference to 
daily portions of interest on a yield to maturity basis over the 
remaining term of the obligation. The amount allocated to a daily 
portion of interest is not deductible by the holder. However, the 
holder's basis in the obligation is reduced by the amount allocated to a 
daily portion of interest on the date the daily portion accrues.
    (ii) Basis less than adjusted issue price. If the holder's basis in 
the obligation is less than the obligation's adjusted issue price, the 
holder, upon acquiring the obligation, must allocate this difference to 
daily portions of interest on a yield to maturity basis over the 
remaining term of the obligation. The amount allocated to a daily 
portion of interest is includible in income by the holder as ordinary 
income on the date the daily portion accrues. The holder's adjusted 
basis in the obligation is increased by the amount includible in income 
by the holder under this paragraph (d)(4)(ii) on the date the daily 
portion accrues.
    (iii) Premium and discount rules do not apply. The rules for 
accruing premium and discount in sections 171, 1276, and 1288 do not 
apply. Other rules of those sections continue to apply to the extent 
relevant.
    (e) Amounts treated as interest under this section. Amounts treated 
as interest under this section are treated as OID for all purposes of 
the Internal Revenue Code.
    (f) Effective date. This section applies to debt instruments issued 
on or after August 13, 1996.

[T.D. 8674, 61 FR 30143, June 14, 1996, as amended by T.D. 8709, 62 FR 
618, Jan. 6, 1997; T.D. 8838, 64 FR 48547, Sept. 7, 1999; T.D. 9157, 69 
FR 52829, Aug. 30, 2004]



Sec. 1.1275-5  Variable rate debt instruments.

    (a) Applicability--(1) In general. This section provides rules for 
variable rate debt instruments. Except as provided in paragraph (a)(6) 
of this section, a

[[Page 572]]

variable rate debt instrument is a debt instrument that meets the 
conditions described in paragraphs (a)(2), (3), (4), and (5) of this 
section. If a debt instrument that provides for a variable rate of 
interest does not qualify as a variable rate debt instrument, the debt 
instrument is a contingent payment debt instrument. See Sec. 1.1275-4 
for the treatment of a contingent payment debt instrument. See Sec. 
1.1275-6 for a taxpayer's treatment of a variable rate debt instrument 
and a hedge.
    (2) Principal payments. The issue price of the debt instrument must 
not exceed the total noncontingent principal payments by more than an 
amount equal to the lesser of--
    (i) .015 multiplied by the product of the total noncontingent 
principal payments and the number of complete years to maturity from the 
issue date (or, in the case of an installment obligation, the weighted 
average maturity as defined in Sec. 1.1273-1(e)(3)); or
    (ii) 15 percent of the total noncontingent principal payments.
    (3) Stated interest--(i) General rule. The debt instrument must not 
provide for any stated interest other than stated interest (compounded 
or paid at least annually) at--
    (A) One or more qualified floating rates;
    (B) A single fixed rate and one or more qualified floating rates;
    (C) A single objective rate; or
    (D) A single fixed rate and a single objective rate that is a 
qualified inverse floating rate.
    (ii) Certain debt instruments bearing interest at a fixed rate for 
an initial period. If interest on a debt instrument is stated at a fixed 
rate for an initial period of 1 year or less followed by a variable rate 
that is either a qualified floating rate or an objective rate for a 
subsequent period, and the value of the variable rate on the issue date 
is intended to approximate the fixed rate, the fixed rate and the 
variable rate together constitute a single qualified floating rate or 
objective rate. A fixed rate and a variable rate will be conclusively 
presumed to meet the requirements of the preceding sentence if the value 
of the variable rate on the issue date does not differ from the value of 
the fixed rate by more than .25 percentage points (25 basis points).
    (4) Current value. The debt instrument must provide that a qualified 
floating rate or objective rate in effect at any time during the term of 
the instrument is set at a current value of that rate. A current value 
is the value of the rate on any day that is no earlier than 3 months 
prior to the first day on which that value is in effect and no later 
than 1 year following that first day.
    (5) No contingent principal payments. Except as provided in 
paragraph (a)(2) of this section, the debt instrument must not provide 
for any principal payments that are contingent (within the meaning of 
Sec. 1.1275-4(a)).
    (6) Special rule for debt instruments issued for nonpublicly traded 
property. A debt instrument (other than a tax-exempt obligation) that 
would otherwise qualify as a variable rate debt instrument under this 
section is not a variable rate debt instrument if section 1274 applies 
to the instrument and any stated interest payments on the instrument are 
treated as contingent payments under Sec. 1.1274-2. This paragraph 
(a)(6) applies to debt instruments issued on or after August 13, 1996.
    (b) Qualified floating rate--(1) In general. A variable rate is a 
qualified floating rate if variations in the value of the rate can 
reasonably be expected to measure contemporaneous variations in the cost 
of newly borrowed funds in the currency in which the debt instrument is 
denominated. The rate may measure contemporaneous variations in 
borrowing costs for the issuer of the debt instrument or for issuers in 
general. Except as provided in paragraph (b)(2) of this section, a 
multiple of a qualified floating rate is not a qualified floating rate. 
If a debt instrument provides for two or more qualified floating rates 
that can reasonably be expected to have approximately the same values 
throughout the term of the instrument, the qualified floating rates 
together constitute a single qualified floating rate. Two or more 
qualified floating rates will be conclusively presumed to meet the 
requirements of the preceding sentence if the values of all rates on the 
issue date are within .25

[[Page 573]]

percentage points (25 basis points) of each other.
    (2) Certain rates based on a qualified floating rate. For a debt 
instrument issued on or after August 13, 1996, a variable rate is a 
qualified floating rate if it is equal to either--
    (i) The product of a qualified floating rate described in paragraph 
(b)(1) of this section and a fixed multiple that is greater than .65 but 
not more than 1.35; or
    (ii) The product of a qualified floating rate described in paragraph 
(b)(1) of this section and a fixed multiple that is greater than .65 but 
not more than 1.35, increased or decreased by a fixed rate.
    (3) Restrictions on the stated rate of interest. A variable rate is 
not a qualified floating rate if it is subject to a restriction or 
restrictions on the maximum stated interest rate (cap), a restriction or 
restrictions on the minimum stated interest rate (floor), a restriction 
or restrictions on the amount of increase or decrease in the stated 
interest rate (governor), or other similar restrictions. Notwithstanding 
the preceding sentence, the following restrictions will not cause a 
variable rate to fail to be a qualified floating rate--
    (i) A cap, floor, or governor that is fixed throughout the term of 
the debt instrument;
    (ii) A cap or similar restriction that is not reasonably expected as 
of the issue date to cause the yield on the debt instrument to be 
significantly less than the expected yield determined without the cap;
    (iii) A floor or similar restriction that is not reasonably expected 
as of the issue date to cause the yield on the debt instrument to be 
significantly more than the expected yield determined without the floor; 
or
    (iv) A governor or similar restriction that is not reasonably 
expected as of the issue date to cause the yield on the debt instrument 
to be significantly more or significantly less than the expected yield 
determined without the governor.
    (c) Objective rate--(1) Definition--(i) In general. For debt 
instruments issued on or after August 13, 1996, an objective rate is a 
rate (other than a qualified floating rate) that is determined using a 
single fixed formula and that is based on objective financial or 
economic information. For example, an objective rate generally includes 
a rate that is based on one or more qualified floating rates or on the 
yield of actively traded personal property (within the meaning of 
section 1092(d)(1)).
    (ii) Exception. For purposes of paragraph (c)(1)(i) of this section, 
an objective rate does not include a rate based on information that is 
within the control of the issuer (or a related party within the meaning 
of section 267(b) or 707(b)(1)) or that is unique to the circumstances 
of the issuer (or a related party within the meaning of section 267(b) 
or 707(b)(1)), such as dividends, profits, or the value of the issuer's 
stock. However, a rate does not fail to be an objective rate merely 
because it is based on the credit quality of the issuer.
    (2) Other objective rates to be specified by Commissioner. The 
Commissioner may designate in the Internal Revenue Bulletin variable 
rates other than those described in paragraph (c)(1) of this section 
that will be treated as objective rates (see Sec. 601.601(d)(2)(ii) of 
this chapter).
    (3) Qualified inverse floating rate. An objective rate described in 
paragraph (c)(1) of this section is a qualified inverse floating rate 
if--
    (i) The rate is equal to a fixed rate minus a qualified floating 
rate; and
    (ii) The variations in the rate can reasonably be expected to 
inversely reflect contemporaneous variations in the qualified floating 
rate (disregarding any restrictions on the rate that are described in 
paragraphs (b)(3)(i), (b)(3)(ii), (b)(3)(iii), and (b)(3)(iv) of this 
section).
    (4) Significant front-loading or back-loading of interest. 
Notwithstanding paragraph (c)(1) of this section, a variable rate of 
interest on a debt instrument is not an objective rate if it is 
reasonably expected that the average value of the rate during the first 
half of the instrument's term will be either significantly less than or 
significantly greater than the average value of the rate during the 
final half of the instrument's term.

[[Page 574]]

    (5) Tax-exempt obligations. Notwithstanding paragraph (c)(1) of this 
section, in the case of a tax-exempt obligation (within the meaning of 
section 1275(a)(3)), a variable rate is an objective rate only if it is 
a qualified inverse floating rate or a qualified inflation rate. A rate 
is a qualified inflation rate if the rate measures contemporaneous 
changes in inflation based on a general inflation index.
    (d) Examples. The following examples illustrate the rules of 
paragraphs (b) and (c) of this section. For purposes of these examples, 
assume that the debt instrument is not a tax-exempt obligation. In 
addition, unless otherwise provided, assume that the rate is not 
reasonably expected to result in a significant front-loading or back-
loading of interest and that the rate is not based on objective 
financial or economic information that is within the control of the 
issuer (or a related party) or that is unique to the circumstances of 
the issuer (or a related party).

    Example 1. Rate based on LIBOR. X issues a debt instrument that 
provides for annual payments of interest at a rate equal to the value of 
the 1-year London Interbank Offered Rate (LIBOR) at the end of each 
year. Variations in the value of 1-year LIBOR over the term of the debt 
instrument can reasonably be expected to measure contemporaneous 
variations in the cost of newly borrowed funds over that term. 
Accordingly, the rate is a qualified floating rate.
    Example 2. Rate increased by a fixed amount. X issues a debt 
instrument that provides for annual payments of interest at a rate equal 
to 200 basis points (2 percent) plus the current value, at the end of 
each year, of the average yield on 1-year Treasury securities as 
published in Federal Reserve bulletins. Variations in the value of this 
interest rate can reasonably be expected to measure contemporaneous 
variations in the cost of newly borrowed funds. Accordingly, the rate is 
a qualified floating rate.
    Example 3. Rate based on commercial paper rate. X issues a debt 
instrument that provides for a rate of interest that is periodically 
adjusted to equal the current interest rate of Bank's commercial paper. 
Variations in the value of this interest rate can reasonably be expected 
to measure contemporaneous variations in the cost of newly borrowed 
funds. Accordingly, the rate is a qualified floating rate.
    Example 4. Rate based on changes in the value of a commodity index. 
On January 1, 1997, X issues a debt instrument that provides for annual 
interest payments at the end of each year at a rate equal to the 
percentage increase, if any, in the value of an index for the year 
immediately preceding the payment. The index is based on the prices of 
several actively traded commodities. Variations in the value of this 
interest rate cannot reasonably be expected to measure contemporaneous 
variations in the cost of newly borrowed funds. Accordingly, the rate is 
not a qualified floating rate. However, because the rate is based on 
objective financial information using a single fixed formula, the rate 
is an objective rate.
    Example 5. Rate based on a percentage of S&P 500 Index. On January 
1, 1997, X issues a debt instrument that provides for annual interest 
payments at the end of each year based on a fixed percentage of the 
value of the S&P 500 Index. Variations in the value of this interest 
rate cannot reasonably be expected to measure contemporaneous variations 
in the cost of newly borrowed funds and, therefore, the rate is not a 
qualified floating rate. Although the rate is described in paragraph 
(c)(1)(i) of this section, the rate is not an objective rate because, 
based on historical data, it is reasonably expected that the average 
value of the rate during the first half of the instrument's term will be 
significantly less than the average value of the rate during the final 
half of the instrument's term.
    Example 6. Rate based on issuer's profits. On January 1, 1997, Z 
issues a debt instrument that provides for annual interest payments 
equal to 1 percent of Z's gross profits earned during the year 
immediately preceding the payment. Variations in the value of this 
interest rate cannot reasonably be expected to measure contemporaneous 
variations in the cost of newly borrowed funds. Accordingly, the rate is 
not a qualified floating rate. In addition, because the rate is based on 
information that is unique to the issuer's circumstances, the rate is 
not an objective rate.
    Example 7. Rate based on a multiple of an interest index. On January 
1, 1997, Z issues a debt instrument with annual interest payments at a 
rate equal to two times the value of 1-year LIBOR as of the payment 
date. Because the rate is a multiple greater than 1.35 times a qualified 
floating rate, the rate is not a qualified floating rate. However, 
because the rate is based on objective financial information using a 
single fixed formula, the rate is an objective rate.
    Example 8. Variable rate based on the cost of borrowed funds in a 
foreign currency. On January 1, 1997, Y issues a 5-year dollar 
denominated debt instrument that provides for annual interest payments 
at a rate equal to the value of 1-year French franc LIBOR as of the 
payment date. Variations in the value of French franc LIBOR do not 
measure contemporaneous changes in the cost of newly borrowed funds in 
dollars. As a result, the rate

[[Page 575]]

is not a qualified floating rate for an instrument denominated in 
dollars. However, because the rate is based on objective financial 
information using a single fixed formula, the rate is an objective rate.
    Example 9. Qualified inverse floating rate. On January 1, 1997, X 
issues a debt instrument that provides for annual interest payments at 
the end of each year at a rate equal to 12 percent minus the value of 1-
year LIBOR as of the payment date. On the issue date, the value of 1-
year LIBOR is 6 percent. Because the rate can reasonably be expected to 
inversely reflect contemporaneous variations in 1-year LIBOR, it is a 
qualified inverse floating rate. However, if the value of 1-year LIBOR 
on the issue date were 11 percent rather than 6 percent, the rate would 
not be a qualified inverse floating rate because the rate could not 
reasonably be expected to inversely reflect contemporaneous variations 
in 1-year LIBOR.
    Example 10. Rate based on an inflation index. On January 1, 1997, X 
issues a debt instrument that provides for annual interest payments at 
the end of each year at a rate equal to 400 basis points (4 percent) 
plus the annual percentage change in a general inflation index (e.g., 
the Consumer Price Index, U.S. City Average, All Items, for all Urban 
Consumers, seasonally unadjusted). The rate, however, may not be less 
than zero. Variations in the value of this interest rate cannot 
reasonably be expected to measure contemporaneous variations in the cost 
of newly borrowed funds. Accordingly, the rate is not a qualified 
floating rate. However, because the rate is based on objective economic 
information using a single fixed formula, the rate is an objective rate.

    (e) Qualified stated interest and OID with respect to a variable 
rate debt instrument--(1) In general. This paragraph (e) provides rules 
to determine the amount and accrual of OID and qualified stated interest 
on a variable rate debt instrument. In general, the rules convert the 
debt instrument into a fixed rate debt instrument and then apply the 
general OID rules to the debt instrument. The issue price of a variable 
rate debt instrument, however, is not determined under this paragraph 
(e). See Sec. Sec. 1.1273-2 and 1.1274-2 to determine the issue price 
of a variable rate debt instrument.
    (2) Variable rate debt instrument that provides for annual payments 
of interest at a single variable rate. If a variable rate debt 
instrument provides for stated interest at a single qualified floating 
rate or objective rate and the interest is unconditionally payable in 
cash or in property (other than debt instruments of the issuer), or will 
be constructively received under section 451, at least annually, the 
following rules apply to the instrument:
    (i) All stated interest with respect to the debt instrument is 
qualified stated interest.
    (ii) The amount of qualified stated interest and the amount of OID, 
if any, that accrues during an accrual period is determined under the 
rules applicable to fixed rate debt instruments by assuming that the 
variable rate is a fixed rate equal to--
    (A) In the case of a qualified floating rate or qualified inverse 
floating rate, the value, as of the issue date, of the qualified 
floating rate or qualified inverse floating rate; or
    (B) In the case of an objective rate (other than a qualified inverse 
floating rate), a fixed rate that reflects the yield that is reasonably 
expected for the debt instrument.
    (iii) The qualified stated interest allocable to an accrual period 
is increased (or decreased) if the interest actually paid during an 
accrual period exceeds (or is less than) the interest assumed to be paid 
during the accrual period under paragraph (e)(2)(ii) of this section.
    (3) All other variable rate debt instruments except for those that 
provide for a fixed rate. If a variable rate debt instrument is not 
described in paragraph (e)(2) of this section and does not provide for 
interest payable at a fixed rate (other than an initial fixed rate 
described in paragraph (a)(3)(ii) of this section), the amount of 
interest and OID accruals for the instrument are determined under this 
paragraph (e)(3).
    (i) Step one: Determine the fixed rate substitute for each variable 
rate provided under the debt instrument--(A) Qualified floating rate. 
The fixed rate substitute for each qualified floating rate provided for 
in the debt instrument is the value of each rate as of the issue date. 
If, however, a variable rate debt instrument provides for two or more 
qualified floating rates with different intervals between interest 
adjustment dates, the fixed rate substitutes for the rates must be based 
on intervals that are equal in length. For example, if a 4-year debt 
instrument provides for 24

[[Page 576]]

monthly interest payments based on the value of the 30-day commercial 
paper rate on each payment date followed by 8 quarterly interest 
payments based on the value of quarterly LIBOR on each payment date, the 
fixed rate substitutes may be based on the values, as of the issue date, 
of the 90-day commercial paper rate and quarterly LIBOR. Alternatively, 
the fixed rate substitutes may be based on the values, as of the issue 
date, of the 30-day commercial paper rate and monthly LIBOR.
    (B) Qualified inverse floating rate. The fixed rate substitute for a 
qualified inverse floating rate is the value of the qualified inverse 
floating rate as of the issue date.
    (C) Objective rate. The fixed rate substitute for an objective rate 
(other than a qualified inverse floating rate) is a fixed rate that 
reflects the yield that is reasonably expected for the debt instrument.
    (ii) Step two: Construct the equivalent fixed rate debt instrument. 
The equivalent fixed rate debt instrument has terms that are identical 
to those provided under the variable rate debt instrument, except that 
the equivalent fixed rate debt instrument provides for the fixed rate 
substitutes (determined in paragraph (e)(3)(i) of this section) in lieu 
of the qualified floating rates or objective rate provided under the 
variable rate debt instrument.
    (iii) Step three: Determine the amount of qualified stated interest 
and OID with respect to the equivalent fixed rate debt instrument. The 
amount of qualified stated interest and OID, if any, are determined for 
the equivalent fixed rate debt instrument under the rules applicable to 
fixed rate debt instruments and are taken into account as if the holder 
held the equivalent fixed rate debt instrument.
    (iv) Step four: Make appropriate adjustments for actual variable 
rates. Qualified stated interest or OID allocable to an accrual period 
must be increased (or decreased) if the interest actually accrued or 
paid during an accrual period exceeds (or is less than) the interest 
assumed to be accrued or paid during the accrual period under the 
equivalent fixed rate debt instrument. This increase or decrease is an 
adjustment to qualified stated interest for the accrual period if the 
equivalent fixed rate debt instrument (as determined under paragraph 
(e)(3)(ii) of this section) provides for qualified stated interest and 
the increase or decrease is reflected in the amount actually paid during 
the accrual period. Otherwise, this increase or decrease is an 
adjustment to OID for the accrual period.
    (v) Examples. The following examples illustrate the rules in 
paragraphs (e) (2) and (3) of this section:

    Example 1. Equivalent fixed rate debt instrument--(i) Facts. X 
purchases at original issue a 6-year variable rate debt instrument that 
provides for semiannual payments of interest. For the first 3 years, the 
rate of interest is the value of 6-month LIBOR on the payment date. For 
the final 3 years, the rate is the value of the 6-month T-bill rate on 
the payment date. On the issue date, the value of 6-month LIBOR is 3 
percent, compounded semiannually, and the 6-month T-bill rate is 2 
percent, compounded semiannually.
    (ii) Determination of equivalent fixed rate debt instrument. Under 
paragraph (e)(3)(i) of this section, the fixed rate substitute for 6-
month LIBOR is 3 percent, compounded semiannually, and the fixed rate 
substitute for the 6-month T-bill rate is 2 percent, compounded 
semiannually. Under paragraph (e)(3)(ii) of this section, the equivalent 
fixed rate debt instrument is a 6-year debt instrument that provides for 
semiannual payments of interest at 3 percent, compounded semiannually, 
for the first 3 years followed by 2 percent, compounded semiannually, 
for the final 3 years.
    Example 2. Equivalent fixed rate debt instrument with de minimis 
OID--(i) Facts. Y purchases at original issue, for $100,000, a 4-year 
variable rate debt instrument that has a stated principal amount of 
$100,000, payable at maturity. The debt instrument provides for monthly 
payments of interest at the end of each month. For the first year, the 
interest rate is the monthly commercial paper rate and for the last 3 
years, the interest rate is the monthly commercial paper rate plus 100 
basis points. On the issue date, the monthly commercial paper rate is 3 
percent, compounded monthly.
    (ii) Equivalent fixed rate debt instrument. Under paragraph 
(e)(3)(ii) of this section, the equivalent fixed rate debt instrument 
for the variable rate debt instrument is a 4-year debt instrument that 
has an issue price and stated principal amount of $100,000. The 
equivalent fixed rate debt instrument provides for monthly payments of 
interest at 3 percent, compounded monthly, for the first year ($250 per 
month) and monthly payments

[[Page 577]]

of interest at 4 percent, compounded monthly, for the last 3 years 
($333.33 per month).
    (iii) De minimis OID. Under Sec. 1.1273-1(a), because a portion 
(100 basis points) of each interest payment in the final 3 years is not 
a qualified stated interest payment, the equivalent fixed rate debt 
instrument has OID of $2,999.88 ($102,999.88 -$100,000). However, under 
Sec. 1.1273-1(d)(4) (the de minimis rule relating to teaser rates and 
interest holidays), the stated redemption price at maturity of the 
equivalent fixed rate debt instrument is $100,999.96 ($100,000 (issue 
price) plus $999.96 (the greater of the amount of foregone interest 
($999.96) and the amount equal to the excess of the instrument's stated 
principal amount over its issue price ($0)). Thus, the equivalent fixed 
rate debt instrument is treated as having OID of $999.96 ($100,999.96 -
$100,000). Because this amount is less than the de minimis amount of 
$1,010 (0.0025 multiplied by $100,999.96 multiplied by 4 complete years 
to maturity), the equivalent fixed rate debt instrument has de minimis 
OID. Therefore, the variable rate debt instrument has zero OID and all 
stated interest payments are qualified stated interest payments.
    Example 3. Adjustment to qualified stated interest for actual 
payment of interest--(i) Facts. On January 1, 1995, Z purchases at 
original issue, for $90,000, a variable rate debt instrument that 
matures on January 1, 1997, and has a stated principal amount of 
$100,000, payable at maturity. The debt instrument provides for annual 
payments of interest on January 1 of each year, beginning on January 1, 
1996. The amount of interest payable is the value of annual LIBOR on the 
payment date. The value of annual LIBOR on January 1, 1995, and January 
1, 1996, is 5 percent, compounded annually. The value of annual LIBOR on 
January 1, 1997, is 7 percent, compounded annually.
    (ii) Accrual of OID and qualified stated interest. Under paragraph 
(e)(2) of this section, the variable rate debt instrument is treated as 
a 2-year debt instrument that has an issue price of $90,000, a stated 
principal amount of $100,000, and interest payments of $5,000 at the end 
of each year. The debt instrument has $10,000 of OID and the annual 
interest payments of $5,000 are qualified stated interest payments. 
Under Sec. 1.1272-1, the debt instrument has a yield of 10.82 percent, 
compounded annually. The amount of OID allocable to the first annual 
accrual period (assuming Z uses annual accrual periods) is $4,743.25 
(($90,000x.1082)- $5,000), and the amount of OID allocable to the second 
annual accrual period is $5,256.75 ($100,000-$94,743.25). Under 
paragraph (e)(2)(iii) of this section, the $2,000 difference between the 
$7,000 interest payment actually made at maturity and the $5,000 
interest payment assumed to be made at maturity under the equivalent 
fixed rate debt instrument is treated as additional qualified stated 
interest for the period.

    (4) Variable rate debt instrument that provides for a single fixed 
rate--(i) General rule. If a variable rate debt instrument provides for 
stated interest either at one or more qualified floating rates or at a 
qualified inverse floating rate and in addition provides for stated 
interest at a single fixed rate (other than an initial fixed rate 
described in paragraph (a)(3)(ii) of this section), the amount of 
interest and OID are determined using the method of paragraph (e)(3) of 
this section, as modified by this paragraph (e)(4). For purposes of 
paragraphs (e)(3)(i) through (e)(3)(iii) of this section, the variable 
rate debt instrument is treated as if it provided for a qualified 
floating rate (or a qualified inverse floating rate, if the debt 
instrument provides for a qualified inverse floating rate), rather than 
the fixed rate. The qualified floating rate (or qualified inverse 
floating rate) replacing the fixed rate must be such that the fair 
market value of the variable rate debt instrument as of the issue date 
would be approximately the same as the fair market value of an otherwise 
identical debt instrument that provides for the qualified floating rate 
(or qualified inverse floating rate) rather than the fixed rate.
    (ii) Example. The following example illustrates the rule in 
paragraph (e)(4)(i) of this section.

    Example: Variable rate debt instrument that provides for a single 
fixed rate--(i) Facts. On January 1, 1995, X purchases at original 
issue, for $100,000, a variable rate debt instrument that matures on 
January 1, 2001, and that has a stated principal amount of $100,000. The 
debt instrument provides for payments of interest on January 1 of each 
year, beginning on January 1, 1996. For the first 4 years, the interest 
rate is 4 percent, compounded annually, and for the last 2 years the 
interest rate is the value of 1-year LIBOR, as of the payment date, plus 
200 basis points. On January 1, 1995, the value of 1-year LIBOR is 2 
percent, compounded annually. In addition, assume that on January 1, 
1995, the variable rate debt instrument has approximately the same fair 
market value as an otherwise identical debt instrument that provides for 
an interest rate equal to the value of 1-year LIBOR, as of the payment 
date, for the first 4 years.
    (ii) Equivalent fixed rate debt instrument. Under paragraph 
(e)(4)(i) of this section, for

[[Page 578]]

purposes of paragraphs (e)(3)(i) through (e)(3)(iii) of this section, 
the variable rate debt instrument is treated as if it provided for an 
interest rate equal to the value of 1-year LIBOR, as of the payment 
date, for the first 4 years. Under paragraph (e)(3)(ii) of this section, 
the equivalent fixed rate debt instrument for the variable rate debt 
instrument is a 6-year debt instrument that has an issue price and 
stated principal amount of $100,000. The equivalent fixed rate debt 
instrument provides for interest payments of $2,000 for the first 4 
years and $4,000 for the last 2 years.
    (iii) Accrual of OID and qualified stated interest. Under Sec. 
1.1273-1, the equivalent fixed rate debt instrument has OID of $4,000 
because a portion (200 basis points) of each interest payment in the 
last 2 years is not a qualified stated interest payment. The $4,000 of 
OID is allocable over the 6-year term of the debt instrument under Sec. 
1.1272-1. Under paragraph (e)(3)(iv) of this section, the difference 
between the $4,000 payment made in the first 4 years and the $2,000 
payment assumed to be made on the equivalent fixed rate debt instrument 
in those years is an adjustment to qualified stated interest. In 
addition, any difference between the amount actually paid in each of the 
last 2 years and the $4,000 payment assumed to be made on the equivalent 
fixed rate debt instrument is an adjustment to qualified stated 
interest.

    (f) Special rule for certain reset bonds. Notwithstanding paragraph 
(e) of this section, this paragraph (f) provides a special rule for a 
variable rate debt instrument that provides for stated interest at a 
fixed rate for an initial interval, and provides that on the date 
immediately following the end of the initial interval (the effective 
date) the stated interest rate will be a rate determined under a 
procedure (such as an auction procedure) so that the fair market value 
of the instrument on the effective date will be a fixed amount (the 
reset value). Solely for purposes of calculating the accrual of OID, the 
variable rate debt instrument is treated as--
    (1) Maturing on the date immediately preceding the effective date 
for an amount equal to the reset value; and
    (2) Reissued on the effective date for an amount equal to the reset 
value.

[T.D. 8517, 59 FR 4827, Feb. 2, 1994, as amended by T.D. 8674, 61 FR 
30153, June 14, 1996]



Sec. 1.1275-6  Integration of qualifying debt instruments.

    (a) In general. This section generally provides for the integration 
of a qualifying debt instrument with a hedge or combination of hedges if 
the combined cash flows of the components are substantially equivalent 
to the cash flows on a fixed or variable rate debt instrument. The 
integrated transaction is generally subject to the rules of this section 
rather than the rules to which each component of the transaction would 
be subject on a separate basis. The purpose of this section is to permit 
a more appropriate determination of the character and timing of income, 
deductions, gains, or losses than would be permitted by separate 
treatment of the components. The rules of this section affect only the 
taxpayer who holds (or issues) the qualifying debt instrument and enters 
into the hedge.
    (b) Definitions--(1) Qualifying debt instrument. A qualifying debt 
instrument is any debt instrument (including an integrated transaction 
as defined in paragraph (c) of this section) other than--
    (i) A tax-exempt obligation as defined in section 1275(a)(3);
    (ii) A debt instrument to which section 1272(a)(6) applies (certain 
interests in or mortgages held by a REMIC, and certain other debt 
instruments with payments subject to acceleration); or
    (iii) A debt instrument that is subject to Sec. 1.483-4 or Sec. 
1.1275-4(c) (certain contingent payment debt instruments issued for 
nonpublicly traded property).
    (2) Section 1.1275-6 hedge--(i) In general. A Sec. 1.1275-6 hedge 
is any financial instrument (as defined in paragraph (b)(3) of this 
section) if the combined cash flows of the financial instrument and the 
qualifying debt instrument permit the calculation of a yield to maturity 
(under the principles of section 1272), or the right to the combined 
cash flows would qualify under Sec. 1.1275-5 as a variable rate debt 
instrument that pays interest at a qualified floating rate or rates 
(except for the requirement that the interest payments be stated as 
interest). A financial instrument is not a Sec. 1.1275-6 hedge, 
however, if the resulting synthetic debt instrument does not have the 
same term

[[Page 579]]

as the remaining term of the qualifying debt instrument. A financial 
instrument that hedges currency risk is not a Sec. 1.1275-6 hedge.
    (ii) Limitations--(A) A debt instrument issued by a taxpayer and a 
debt instrument held by the taxpayer cannot be part of the same 
integrated transaction.
    (B) A debt instrument can be a Sec. 1.1275-6 hedge only if it is 
issued substantially contemporaneously with, and has the same maturity 
(including rights to accelerate or delay payments) as, the qualifying 
debt instrument.
    (3) Financial instrument. For purposes of this section, a financial 
instrument is a spot, forward, or futures contract, an option, a 
notional principal contract, a debt instrument, or a similar instrument, 
or combination or series of financial instruments. Stock is not a 
financial instrument for purposes of this section.
    (4) Synthetic debt instrument. The synthetic debt instrument is the 
hypothetical debt instrument with the same cash flows as the combined 
cash flows of the qualifying debt instrument and the Sec. 1.1275-6 
hedge.
    (c) Integrated transaction--(1) Integration by taxpayer. Except as 
otherwise provided in this section, a qualifying debt instrument and a 
Sec. 1.1275-6 hedge are an integrated transaction if all of the 
following requirements are satisfied:
    (i) The taxpayer satisfies the identification requirements of 
paragraph (e) of this section on or before the date the taxpayer enters 
into the Sec. 1.1275-6 hedge.
    (ii) None of the parties to the Sec. 1.1275-6 hedge are related 
within the meaning of section 267(b) or 707(b)(1), or, if the parties 
are related, the party providing the hedge uses, for Federal income tax 
purposes, a mark-to-market method of accounting for the hedge and all 
similar or related transactions.
    (iii) Both the qualifying debt instrument and the Sec. 1.1275-6 
hedge are entered into by the same individual, partnership, trust, 
estate, or corporation (regardless of whether the corporation is a 
member of an affiliated group of corporations that files a consolidated 
return).
    (iv) If the taxpayer is a foreign person engaged in a U.S. trade or 
business and the taxpayer issues or acquires a qualifying debt 
instrument, or enters into a Sec. 1.1275-6 hedge, through the trade or 
business, all items of income and expense associated with the qualifying 
debt instrument and the Sec. 1.1275-6 hedge (other than interest 
expense that is subject to Sec. 1.882-5) would have been effectively 
connected with the U.S. trade or business throughout the term of the 
qualifying debt instrument had this section not applied.
    (v) Neither the qualifying debt instrument, nor any other debt 
instrument that is part of the same issue as the qualifying debt 
instrument, nor the Sec. 1.1275-6 hedge was, with respect to the 
taxpayer, part of an integrated transaction that was terminated or 
otherwise legged out of within the 30 days immediately preceding the 
date that would be the issue date of the synthetic debt instrument.
    (vi) The qualifying debt instrument is issued or acquired by the 
taxpayer on or before the date of the first payment on the Sec. 1.1275-
6 hedge, whether made or received by the taxpayer (including a payment 
made to purchase the hedge). If the qualifying debt instrument is issued 
or acquired by the taxpayer after, but substantially contemporaneously 
with, the date of the first payment on the Sec. 1.1275-6 hedge, the 
qualifying debt instrument is treated, solely for purposes of this 
paragraph (c)(1)(vi), as meeting the requirements of the preceding 
sentence.
    (vii) Neither the Sec. 1.1275-6 hedge nor the qualifying debt 
instrument was, with respect to the taxpayer, part of a straddle (as 
defined in section 1092(c)) prior to the issue date of the synthetic 
debt instrument.
    (2) Integration by Commissioner. The Commissioner may treat a 
qualifying debt instrument and a financial instrument (whether entered 
into by the taxpayer or by a related party) as an integrated transaction 
if the combined cash flows on the qualifying debt instrument and 
financial instrument are substantially the same as the combined cash 
flows required for the financial instrument to be a Sec. 1.1275-6 
hedge. The

[[Page 580]]

Commissioner, however, may not integrate a transaction unless the 
qualifying debt instrument either is subject to Sec. 1.1275-4 or is 
subject to Sec. 1.1275-5 and pays interest at an objective rate. The 
circumstances under which the Commissioner may require integration 
include, but are not limited to, the following:
    (i) A taxpayer fails to identify a qualifying debt instrument and 
the Sec. 1.1275-6 hedge under paragraph (e) of this section.
    (ii) A taxpayer issues or acquires a qualifying debt instrument and 
a related party (within the meaning of section 267(b) or 707(b)(1)) 
enters into the Sec. 1.1275-6 hedge.
    (iii) A taxpayer issues or acquires a qualifying debt instrument and 
enters into the Sec. 1.1275-6 hedge with a related party (within the 
meaning of section 267(b) or 707(b)(1)).
    (iv) The taxpayer legs out of an integrated transaction and within 
30 days enters into a new Sec. 1.1275-6 hedge with respect to the same 
qualifying debt instrument or another debt instrument that is part of 
the same issue.
    (d) Special rules for legging into and legging out of an integrated 
transaction--(1) Legging into--(i) Definition. Legging into an 
integrated transaction under this section means that a Sec. 1.1275-6 
hedge is entered into after the date the qualifying debt instrument is 
issued or acquired by the taxpayer, and the requirements of paragraph 
(c)(1) of this section are satisfied on the date the Sec. 1.1275-6 
hedge is entered into (the leg-in date).
    (ii) Treatment. If a taxpayer legs into an integrated transaction, 
the taxpayer treats the qualifying debt instrument under the applicable 
rules for taking interest and OID into account up to the leg-in date, 
except that the day before the leg-in date is treated as the end of an 
accrual period. As of the leg-in date, the qualifying debt instrument is 
subject to the rules of paragraph (f) of this section.
    (iii) Anti-abuse rule. If a taxpayer legs into an integrated 
transaction with a principal purpose of deferring or accelerating income 
or deductions on the qualifying debt instrument, the Commissioner may--
    (A) Treat the qualifying debt instrument as sold for its fair market 
value on the leg-in date; or
    (B) Refuse to allow the taxpayer to integrate the qualifying debt 
instrument and the Sec. 1.1275-6 hedge.
    (2) Legging out--(i) Definition--(A) Legging out if the taxpayer has 
integrated. If a taxpayer has integrated a qualifying debt instrument 
and a Sec. 1.1275-6 hedge under paragraph (c)(1) of this section, 
legging out means that, prior to the maturity of the synthetic debt 
instrument, the Sec. 1.1275-6 hedge ceases to meet the requirements for 
a Sec. 1.1275-6 hedge, the taxpayer fails to meet any requirement of 
paragraph (c)(1) of this section, or the taxpayer disposes of or 
otherwise terminates all or a part of the qualifying debt instrument or 
Sec. 1.1275-6 hedge. If the taxpayer fails to meet the requirements of 
paragraph (c)(1) of this section but meets the requirements of paragraph 
(c)(2) of this section, the Commissioner may treat the taxpayer as not 
legging out.
    (B) Legging out if the Commissioner has integrated. If the 
Commissioner has integrated a qualifying debt instrument and a financial 
instrument under paragraph (c)(2) of this section, legging out means 
that, prior to the maturity of the synthetic debt instrument, the 
requirements for Commissioner integration under paragraph (c)(2) of this 
section are not met or the taxpayer fails to meet the requirements for 
taxpayer integration under paragraph (c)(1) of this section and the 
Commissioner agrees to allow the taxpayer to be treated as legging out.
    (C) Exception for certain nonrecognition transactions. If, in a 
single nonrecognition transaction, a taxpayer disposes of, or ceases to 
be primarily liable on, the qualifying debt instrument and the Sec. 
1.1275-6 hedge, the taxpayer is not treated as legging out. Instead, the 
integrated transaction is treated under the rules governing the 
nonrecognition transaction. For example, if a holder of an integrated 
transaction is acquired in a reorganization under section 368(a)(1)(A), 
the holder is treated as disposing of the synthetic debt instrument in 
the reorganization rather than legging out. If the successor holder is 
not eligible for integrated treatment, the successor is treated as 
legging out.

[[Page 581]]

    (ii) Operating rules. If a taxpayer legs out (or is treated as 
legging out) of an integrated transaction, the following rules apply:
    (A) The transaction is treated as an integrated transaction during 
the time the requirements of paragraph (c) (1) or (2) of this section, 
as appropriate, are satisfied.
    (B) Immediately before the taxpayer legs out, the taxpayer is 
treated as selling or otherwise terminating the synthetic debt 
instrument for its fair market value and, except as provided in 
paragraph (d)(2)(ii)(D) of this section, any income, deduction, gain, or 
loss is realized and recognized at that time.
    (C) If, immediately after the taxpayer legs out, the taxpayer holds 
or remains primarily liable on the qualifying debt instrument, 
adjustments are made to reflect any difference between the fair market 
value of the qualifying debt instrument and the adjusted issue price of 
the qualifying debt instrument. If, immediately after the taxpayer legs 
out, the taxpayer is a party to a Sec. 1.1275-6 hedge, the Sec. 
1.1275-6 hedge is treated as entered into at its fair market value.
    (D) If a taxpayer legs out of an integrated transaction by disposing 
of or otherwise terminating a Sec. 1.1275-6 hedge within 30 days of 
legging into the integrated transaction, then any loss or deduction 
determined under paragraph (d)(2)(ii)(B) of this section is not allowed. 
Appropriate adjustments are made to the qualifying debt instrument for 
any disallowed loss. The adjustments are taken into account on a yield 
to maturity basis over the remaining term of the qualifying debt 
instrument.
    (E) If a holder of a debt instrument subject to Sec. 1.1275-4 legs 
into an integrated transaction with respect to the instrument and 
subsequently legs out of the integrated transaction, any gain recognized 
under paragraph (d)(2)(ii) (B) or (C) of this section is treated as 
interest income to the extent determined under the principles of Sec. 
1.1275-4(b)(8)(iii)(B) (rules for determining the character of gain on 
the sale of a debt instrument all of the payments on which have been 
fixed). If the synthetic debt instrument would qualify as a variable 
rate debt instrument, the equivalent fixed rate debt instrument 
determined under Sec. 1.1275-5(e) is used for this purpose.
    (e) Identification requirements. For each integrated transaction, a 
taxpayer must enter and retain as part of its books and records the 
following information--
    (1) The date the qualifying debt instrument was issued or acquired 
(or is expected to be issued or acquired) by the taxpayer and the date 
the Sec. 1.1275-6 hedge was entered into by the taxpayer;
    (2) A description of the qualifying debt instrument and the Sec. 
1.1275-6 hedge; and
    (3) A summary of the cash flows and accruals resulting from treating 
the qualifying debt instrument and the Sec. 1.1275-6 hedge as an 
integrated transaction (i.e., the cash flows and accruals on the 
synthetic debt instrument).
    (f) Taxation of integrated transactions--(1) General rule. An 
integrated transaction is generally treated as a single transaction by 
the taxpayer during the period that the transaction qualifies as an 
integrated transaction. Except as provided in paragraph (f)(12) of this 
section, while a qualifying debt instrument and a Sec. 1.1275-6 hedge 
are part of an integrated transaction, neither the qualifying debt 
instrument nor the Sec. 1.1275-6 hedge is subject to the rules that 
would apply on a separate basis to the debt instrument and the Sec. 
1.1275-6 hedge, including section 1092 or Sec. 1.446-4. The rules that 
would govern the treatment of the synthetic debt instrument generally 
govern the treatment of the integrated transaction. For example, the 
integrated transaction may be subject to section 263(g) or, if the 
synthetic debt instrument would be part of a straddle, section 1092. 
Generally, the synthetic debt instrument is subject to sections 163(e) 
and 1271 through 1275, with terms as set forth in paragraphs (f) (2) 
through (13) of this section.
    (2) Issue date. The issue date of the synthetic debt instrument is 
the first date on which the taxpayer entered into all of the components 
of the synthetic debt instrument.

[[Page 582]]

    (3) Term. The term of the synthetic debt instrument is the period 
beginning on the issue date of the synthetic debt instrument and ending 
on the maturity date of the qualifying debt instrument.
    (4) Issue price. The issue price of the synthetic debt instrument is 
the adjusted issue price of the qualifying debt instrument on the issue 
date of the synthetic debt instrument. If, as a result of entering into 
the Sec. 1.1275-6 hedge, the taxpayer pays or receives one or more 
payments that are substantially contemporaneous with the issue date of 
the synthetic debt instrument, the payments reduce or increase the issue 
price as appropriate.
    (5) Adjusted issue price. In general, the adjusted issue price of 
the synthetic debt instrument is determined under the principles of 
Sec. 1.1275-1(b).
    (6) Qualified stated interest. No amounts payable on the synthetic 
debt instrument are qualified stated interest within the meaning of 
Sec. 1.1273-1(c).
    (7) Stated redemption price at maturity--(i) Synthetic debt 
instruments that are borrowings. In general, if the synthetic debt 
instrument is a borrowing, the instrument's stated redemption price at 
maturity is the sum of all amounts paid or to be paid on the qualifying 
debt instrument and the Sec. 1.1275-6 hedge, reduced by any amounts 
received or to be received on the Sec. 1.1275-6 hedge.
    (ii) Synthetic debt instruments that are held by the taxpayer. In 
general, if the synthetic debt instrument is held by the taxpayer, the 
instrument's stated redemption price at maturity is the sum of all 
amounts received or to be received by the taxpayer on the qualifying 
debt instrument and the Sec. 1.1275-6 hedge, reduced by any amounts 
paid or to be paid by the taxpayer on the Sec. 1.1275-6 hedge.
    (iii) Certain amounts ignored. For purposes of this paragraph 
(f)(7), if an amount paid or received on the Sec. 1.1275-6 hedge is 
taken into account under paragraph (f)(4) of this section to determine 
the issue price of the synthetic debt instrument, the amount is not 
taken into account to determine the synthetic debt instrument's stated 
redemption price at maturity.
    (8) Source of interest income and allocation of expense. The source 
of interest income from the synthetic debt instrument is determined by 
reference to the source of income of the qualifying debt instrument 
under sections 861(a)(1) and 862(a)(1). For purposes of section 904, the 
character of interest from the synthetic debt instrument is determined 
by reference to the character of the interest income from the qualifying 
debt instrument. Interest expense is allocated and apportioned under 
regulations under section 861 or under Sec. 1.882-5.
    (9) Effectively connected income. If the requirements of paragraph 
(c)(1)(iv) of this section are satisfied, any interest income resulting 
from the synthetic debt instrument entered into by the foreign person is 
treated as effectively connected with a U.S. trade or business, and any 
interest expense resulting from the synthetic debt instrument entered 
into by the foreign person is allocated and apportioned under Sec. 
1.882-5.
    (10) Not a short-term obligation. For purposes of section 
1272(a)(2)(C), a synthetic debt instrument is not treated as a short-
term obligation.
    (11) Special rules in the event of integration by the Commissioner. 
If the Commissioner requires integration, appropriate adjustments are 
made to the treatment of the synthetic debt instrument, and, if 
necessary, the qualifying debt instrument and financial instrument. For 
example, the Commissioner may treat a financial instrument that is not a 
Sec. 1.1275-6 hedge as a Sec. 1.1275-6 hedge when applying the rules 
of this section. The issue date of the synthetic debt instrument is the 
date determined appropriate by the Commissioner to require integration.
    (12) Retention of separate transaction rules for certain purposes. 
This paragraph (f)(12) provides for the retention of separate 
transaction rules for certain purposes. In addition, by publication in 
the Internal Revenue Bulletin (see Sec. 601.601(d)(2)(ii) of this 
chapter), the Commissioner may require use of separate transaction rules 
for any aspect of an integrated transaction.
    (i) Foreign persons that enter into integrated transactions giving 
rise to U.S. source income not effectively connected with a U.S. trade 
or business. If a foreign

[[Page 583]]

person enters into an integrated transaction that gives rise to U.S. 
source interest income (determined under the source rules for the 
synthetic debt instrument) not effectively connected with a U.S. trade 
or business of the foreign person, paragraph (f) of this section does 
not apply for purposes of sections 871(a), 881, 1441, 1442, and 6049. 
These sections of the Internal Revenue Code are applied to the 
qualifying debt instrument and the Sec. 1.1275-6 hedge on a separate 
basis.
    (ii) Relationship between taxpayer and other persons. Because the 
rules of this section affect only the taxpayer that enters into an 
integrated transaction (i.e., either the issuer or a particular holder 
of a qualifying debt instrument), any provisions of the Internal Revenue 
Code or regulations that govern the relationship between the taxpayer 
and any other person are applied on a separate basis. For example, 
taxpayers must comply with any reporting or disclosure requirements on 
any qualifying debt instrument as if it were not part of an integrated 
transaction. Thus, if required under Sec. 1.1275-4(b)(4), an issuer of 
a contingent payment debt instrument subject to integrated treatment 
must provide the projected payment schedule to holders. Similarly, if a 
U.S. corporation enters into an integrated transaction that includes a 
notional principal contract, the source of any payment received by the 
counterparty on the notional principal contract is determined under 
Sec. 1.863-7 as if the contract were not part of an integrated 
transaction, and, if received by a foreign person who is not engaged in 
a U.S. trade or business, the payment is non-U.S. source income that is 
not subject to U.S. withholding tax.
    (13) Coordination with consolidated return rules. If a taxpayer 
enters into a Sec. 1.1275-6 hedge with a member of the same 
consolidated group (the counterparty) and the Sec. 1.1275-6 hedge is 
part of an integrated transaction for the taxpayer, the Sec. 1.1275-6 
hedge is not treated as an intercompany transaction for purposes of 
Sec. 1.1502-13. If the taxpayer legs out of integrated treatment, the 
taxpayer and the counterparty are each treated as disposing of its 
position in the Sec. 1.1275-6 hedge under the principles of paragraph 
(d)(2) of this section. If the Sec. 1.1275-6 hedge remains in existence 
after the leg-out date, the Sec. 1.1275-6 hedge is treated under the 
rules that would otherwise apply to the transaction (including Sec. 
1.1502-13 if the transaction is between members).
    (g) Predecessors and successors. For purposes of this section, any 
reference to a taxpayer, holder, issuer, or person includes, where 
appropriate, a reference to a predecessor or successor. For purposes of 
the preceding sentence, a predecessor is a transferor of an asset or 
liability (including an integrated transaction) to a transferee (the 
successor) in a nonrecognition transaction. Appropriate adjustments, if 
necessary, are made in the application of this section to predecessors 
and successors.
    (h) Examples. The following examples illustrate the provisions of 
this section. In each example, assume that the qualifying debt 
instrument is a debt instrument for Federal income tax purposes. No 
inference is intended, however, as to whether the debt instrument is a 
debt instrument for Federal income tax purposes.

    Example 1. Issuer hedge--(i) Facts. On January 1, 1997, V, a 
domestic corporation, issues a 5-year debt instrument for $1,000. The 
debt instrument provides for annual payments of interest at a rate equal 
to the value of 1-year LIBOR and a principal payment of $1,000 at 
maturity. On the same day, V enters into a 5-year interest rate swap 
agreement with an unrelated party. Under the swap, V pays 6 percent and 
receives 1-year LIBOR on a notional principal amount of $1,000. The 
payments on the swap are fixed and made on the same days as the payments 
on the debt instrument. On January 1, 1997, V identifies the debt 
instrument and the swap as an integrated transaction in accordance with 
the requirements of paragraph (e) of this section.
    (ii) Eligibility for integration. The debt instrument is a 
qualifying debt instrument. The swap is a Sec. 1.1275-6 hedge because 
it is a financial instrument and a yield to maturity on the combined 
cash flows of the swap and the debt instrument can be calculated. V has 
met the identification requirements, and the other requirements of 
paragraph (c)(1) of this section are satisfied. Therefore, the 
transaction is an integrated transaction under this section.
    (iii) Treatment of the synthetic debt instrument. The synthetic debt 
instrument is a 5-year debt instrument that has an issue price of $1,000 
and provides for annual interest

[[Page 584]]

payments of $60 and a principal payment of $1,000 at maturity. Under 
paragraph (f)(6) of this section, no amounts payable on the synthetic 
debt instrument are qualified stated interest. Thus, under paragraph 
(f)(7)(i) of this section, the synthetic debt instrument has a stated 
redemption price at maturity of $1,300 (the sum of all amounts to be 
paid on the qualifying debt instrument and the swap, reduced by amounts 
to be received on the swap). The synthetic debt instrument, therefore, 
has $300 of OID.
    Example 2. Issuer hedge with an option--(i) Facts. On December 31, 
1996, W, a domestic corporation, issues for $1,000 a debt instrument 
that matures on December 31, 1999. The debt instrument has a stated 
principal amount of $1,000 payable at maturity. The debt instrument also 
provides for a payment at maturity equal to $10 times the increase, if 
any, in the value of a nationally known composite index of stocks from 
December 31, 1996, to the maturity date. On December 31, 1996, W 
purchases from an unrelated party an option that pays $10 times the 
increase, if any, in the stock index from December 31, 1996, to December 
31, 1999. W pays $250 for the option. On December 31, 1996, W identifies 
the debt instrument and option as an integrated transaction in 
accordance with the requirements of paragraph (e) of this section.
    (ii) Eligibility for integration. The debt instrument is a 
qualifying debt instrument. The option is a Sec. 1.1275-6 hedge because 
it is a financial instrument and a yield to maturity on the combined 
cash flows of the option and the debt instrument can be calculated. W 
has met the identification requirements, and the other requirements of 
paragraph (c)(1) of this section are satisfied. Therefore, the 
transaction is an integrated transaction under this section.
    (iii) Treatment of the synthetic debt instrument. Under paragraph 
(f)(4) of this section, the issue price of the synthetic debt instrument 
is equal to the issue price of the debt instrument ($1,000) reduced by 
the payment for the option ($250). As a result, the synthetic debt 
instrument is a 3-year debt instrument with an issue price of $750. 
Under paragraph (f)(7) of this section, the synthetic debt instrument 
has a stated redemption price at maturity of $1,000 (the $250 payment 
for the option is not taken into account). The synthetic debt 
instrument, therefore, has $250 of OID.
    Example 3. Hedge with prepaid swap--(i) Facts. On January 1, 1997, H 
purchases for [pound]1,000 a 5-year debt instrument that provides for 
semiannual payments based on 6-month pound LIBOR and a payment of the 
[pound]1,000 principal at maturity. On the same day, H enters into a 
swap with an unrelated third party under which H receives semiannual 
payments, in pounds, of 10 percent, compounded semiannually, and makes 
semiannual payments, in pounds, of 6-month pound LIBOR on a notional 
principal amount of [pound]1,000. Payments on the swap are fixed and 
made on the same dates as the payments on the debt instrument. H also 
makes a [pound]162 prepayment on the swap. On January 1, 1997, H 
identifies the swap and the debt instrument as an integrated transaction 
in accordance with the requirements of paragraph (e) of this section.
    (ii) Eligibility for integration. The debt instrument is a 
qualifying debt instrument. The swap is a Sec. 1.1275-6 hedge because 
it is a financial instrument and a yield to maturity on the combined 
cash flows of the swap and the debt instrument can be calculated. 
Although the debt instrument is denominated in pounds, the swap hedges 
only interest rate risk, not currency risk. Therefore, the transaction 
is an integrated transaction under this section. See Sec. 1.988-5(a) 
for the treatment of a debt instrument and a swap if the swap hedges 
currency risk.
    (iii) Treatment of the synthetic debt instrument. Under paragraph 
(f)(4) of this section, the issue price of the synthetic debt instrument 
is equal to the issue price of the debt instrument ([pound]1,000) 
increased by the prepayment on the swap ([pound]162). As a result, the 
synthetic debt instrument is a 5-year debt instrument that has an issue 
price of [pound]1,162 and provides for semiannual interest payments of 
[pound]50 and a principal payment of [pound]1,000 at maturity. Under 
paragraph (f)(6) of this section, no amounts payable on the synthetic 
debt instrument are qualified stated interest. Thus, under paragraph 
(f)(7)(ii) of this section, the synthetic debt instrument's stated 
redemption price at maturity is [pound]1,500 (the sum of all amounts to 
be received on the qualifying debt instrument and the Sec. 1.1275-6 
hedge, reduced by all amounts to be paid on the Sec. 1.1275-6 hedge 
other than the [pound]162 prepayment for the swap). The synthetic debt 
instrument, therefore, has [pound]338 of OID.
    Example 4. Legging into an integrated transaction by a holder--(i) 
Facts. On December 31, 1996, X corporation purchases for $1,000,000 a 
debt instrument that matures on December 31, 2006. The debt instrument 
provides for annual payments of interest at the rate of 6 percent and 
for a payment at maturity equal to $1,000,000, increased by the excess, 
if any, of the price of 1,000 units of a commodity on December 31, 2006, 
over $350,000, and decreased by the excess, if any, of $350,000 over the 
price of 1,000 units of the commodity on that date. The projected amount 
of the payment at maturity determined under Sec. 1.1275-4(b)(4) is 
$1,020,000. On December 31, 1999, X enters into a cash-settled forward 
contract with an unrelated party to sell 1,000 units of the commodity on 
December 31, 2006, for $450,000. On December 31, 1999, X also identifies 
the debt instrument and the forward contract as an integrated 
transaction in accordance with the requirements of paragraph (e) of this 
section.

[[Page 585]]

    (ii) Eligibility for integration. X meets the requirements for 
integration as of December 31, 1999. Therefore, X legged into an 
integrated transaction on that date. Prior to that date, X treats the 
debt instrument under the applicable rules of Sec. 1.1275-4.
    (iii) Treatment of the synthetic debt instrument. As of December 31, 
1999, the debt instrument and the forward contract are treated as an 
integrated transaction. The issue price of the synthetic debt instrument 
is equal to the adjusted issue price of the qualifying debt instrument 
on the leg-in date, $1,004,804 (assuming one year accrual periods). The 
term of the synthetic debt instrument is from December 31, 1999, to 
December 31, 2006. The synthetic debt instrument provides for annual 
interest payments of $60,000 and a principal payment at maturity of 
$1,100,000 ($1,000,000 + $450,000 - $350,000). Under paragraph (f)(6) of 
this section, no amounts payable on the synthetic debt instrument are 
qualified stated interest. Thus, under paragraph (f)(7)(ii) of this 
section, the synthetic debt instrument's stated redemption price at 
maturity is $1,520,000 (the sum of all amounts to be received by X on 
the qualifying debt instrument and the Sec. 1.1275-6 hedge, reduced by 
all amounts to be paid by X on the Sec. 1.1275-6 hedge). The synthetic 
debt instrument, therefore, has $515,196 of OID.
    Example 5. Abusive leg-in--(i) Facts. On January 1, 1997, Y 
corporation purchases for $1,000,000 a debt instrument that matures on 
December 31, 2001. The debt instrument provides for annual payments of 
interest at the rate of 6 percent, a payment on December 31, 1999, of 
the increase, if any, in the price of a commodity from January 1, 1997, 
to December 31, 1999, and a payment at maturity of $1,000,000 and the 
increase, if any, in the price of the commodity from December 31, 1999 
to maturity. Because the debt instrument is a contingent payment debt 
instrument subject to Sec. 1.1275-4, Y accrues interest based on the 
projected payment schedule.
    (ii) Leg-in. By late 1999, the price of the commodity has 
substantially increased, and Y expects a positive adjustment on December 
31, 1999. In late 1999, Y enters into an agreement to exchange the two 
commodity based payments on the debt instrument for two payments on the 
same dates of $100,000 each. Y identifies the transaction as an 
integrated transaction in accordance with the requirements of paragraph 
(e) of this section. Y disposes of the hedge in early 2000.
    (iii) Treatment. The legging into an integrated transaction has the 
effect of deferring the positive adjustment from 1999 to 2000. Because Y 
legged into the integrated transaction with a principal purpose to defer 
the positive adjustment, the Commissioner may treat the debt instrument 
as sold for its fair market value on the leg-in date or refuse to allow 
integration.
    Example 6. Integration of offsetting debt instruments--(i) Facts. On 
January 1, 1997, Z issues two 10-year debt instruments. The first, Issue 
1, has an issue price of $1,000, pays interest annually at 6 percent, 
and, at maturity, pays $1,000, increased by $1 times the increase, if 
any, in the value of the S&P 100 Index over the term of the instrument 
and reduced by $1 times the decrease, if any, in the value of the S&P 
100 Index over the term of the instrument. However, the amount paid at 
maturity may not be less than $500 or more than $1,500. The second, 
Issue 2, has an issue price of $1,000, pays interest annually at 8 
percent, and, at maturity, pays $1,000, reduced by $1 times the 
increase, if any, in the value of the S&P 100 Index over the term of the 
instrument and increased by $1 times the decrease, if any, in the value 
of the S&P 100 Index over the term of the instrument. The amount paid at 
maturity may not be less than $500 or more than $1,500. On January 1, 
1997, Z identifies Issue 1 as the qualifying debt instrument, Issue 2 as 
a Sec. 1.1275-6 hedge, and otherwise meets the identification 
requirements of paragraph (e) of this section.
    (ii) Eligibility for integration. Both Issue 1 and Issue 2 are 
qualifying debt instruments. Z has met the identification requirements 
by identifying Issue 1 as the qualifying debt instrument and Issue 2 as 
the Sec. 1.1275-6 hedge. The other requirements of paragraph (c)(1) of 
this section are satisfied. Therefore, the transaction is an integrated 
transaction under this section.
    (iii) Treatment of the synthetic debt instrument. The synthetic debt 
instrument has an issue price of $2,000, provides for a payment at 
maturity of $2,000, and, in addition, provides for annual payments of 
$140. Under paragraph (f)(6) of this section, no amounts payable on the 
synthetic debt instrument are qualified stated interest. Thus, under 
paragraph (f)(7)(i) of this section, the synthetic debt instrument's 
stated redemption price at maturity is $3,400 (the sum of all amounts to 
be paid on the qualifying debt instrument and the Sec. 1.1275-6 hedge, 
reduced by amounts to be received on the Sec. 1.1275-6 hedge other than 
the $1,000 payment received on the issue date). The synthetic debt 
instrument, therefore, has $1,400 of OID.
    Example 7. Integrated transaction entered into by a foreign person--
(i) Facts. X, a foreign person, enters into an integrated transaction by 
purchasing a qualifying debt instrument that pays U.S. source interest 
and entering into a notional principal contract with a U.S. corporation. 
Neither the income from the qualifying debt instrument nor the income 
from the notional principal contract is effectively connected with a 
U.S. trade or business. The notional principal contract is a Sec. 
1.1275-6 hedge.
    (ii) Treatment of integrated transaction. Under paragraph (f)(8) of 
this section, X will

[[Page 586]]

receive U.S. source income from the integrated transaction. However, 
under paragraph (f)(12)(i) of this section, the qualifying debt 
instrument and the notional principal contract are treated as if they 
are not part of an integrated transaction for purposes of determining 
whether tax is due and must be withheld on income. Accordingly, because 
the Sec. 1.1275-6 hedge would produce foreign source income under Sec. 
1.863-7 to X if it were not part of an integrated transaction, any 
income on the Sec. 1.1275-6 hedge generally will not be subject to tax 
under sections 871(a) and 881, and the U.S. corporation that is the 
counterparty will not be required to withhold tax on payments under the 
Sec. 1.1275-6 hedge under sections 1441 and 1442.

    (i) [Reserved]
    (j) Effective date. This section applies to a qualifying debt 
instrument issued on or after August 13, 1996. This section also applies 
to a qualifying debt instrument acquired by the taxpayer on or after 
August 13, 1996, if--
    (1) The qualifying debt instrument is a fixed rate debt instrument 
or a variable rate debt instrument; or
    (2) The qualifying debt instrument and the Sec. 1.1275-6 hedge are 
acquired by the taxpayer substantially contemporaneously.

[T.D. 8674, 61 FR 30155, June 14, 1996]



Sec. 1.1275-7  Inflation-indexed debt instruments.

    (a) Overview. This section provides rules for the Federal income tax 
treatment of an inflation-indexed debt instrument. If a debt instrument 
is an inflation-indexed debt instrument, one of two methods will apply 
to the instrument: the coupon bond method (as described in paragraph (d) 
of this section) or the discount bond method (as described in paragraph 
(e) of this section). Both methods determine the amount of OID that is 
taken into account each year by a holder or an issuer of an inflation-
indexed debt instrument.
    (b) Applicability--(1) In general. Except as provided in paragraph 
(b)(2) of this section, this section applies to an inflation-indexed 
debt instrument as defined in paragraph (c)(1) of this section. For 
example, this section applies to Treasury Inflation-Indexed Securities.
    (2) Exceptions. This section does not apply to an inflation-indexed 
debt instrument that is also--
    (i) A debt instrument (other than a tax-exempt obligation) described 
in section 1272(a)(2) (for example, U.S. savings bonds, certain loans 
between natural persons, and short-term taxable obligations); or
    (ii) A debt instrument subject to section 529 (certain debt 
instruments issued by qualified state tuition programs).
    (c) Definitions. The following definitions apply for purposes of 
this section:
    (1) Inflation-indexed debt instrument. An inflation-indexed debt 
instrument is a debt instrument that satisfies the following conditions:
    (i) Issued for cash. The debt instrument is issued for U.S. dollars 
and all payments on the instrument are denominated in U.S. dollars.
    (ii) Indexed for inflation and deflation. Except for a minimum 
guarantee payment (as defined in paragraph (c)(5) of this section), each 
payment on the debt instrument is indexed for inflation and deflation. A 
payment is indexed for inflation and deflation if the amount of the 
payment is equal to--
    (A) The amount that would be payable if there were no inflation or 
deflation over the term of the debt instrument, multiplied by
    (B) A ratio, the numerator of which is the value of the reference 
index for the date of the payment and the denominator of which is the 
value of the reference index for the issue date.
    (iii) No other contingencies. No payment on the debt instrument is 
subject to a contingency other than the inflation contingency or the 
contingencies described in this paragraph (c)(1)(iii). A debt instrument 
may provide for--
    (A) A minimum guarantee payment as defined in paragraph (c)(5) of 
this section; or
    (B) Payments under one or more alternate payment schedules if the 
payments under each payment schedule are indexed for inflation and 
deflation and a payment schedule for the debt instrument can be 
determined under

[[Page 587]]

Sec. 1.1272-1(c). (For purposes of this section, the rules of Sec. 
1.1272-1(c) are applied to the debt instrument by assuming that no 
inflation or deflation will occur over the term of the instrument.)
    (2) Reference index. The reference index is an index used to measure 
inflation and deflation over the term of a debt instrument. To qualify 
as a reference index, an index must satisfy the following conditions:
    (i) The value of the index is reset once a month to a current value 
of a single qualified inflation index (as defined in paragraph (c)(3) of 
this section). For this purpose, a value of a qualified inflation index 
is current if the value has been updated and published within the 
preceding six month period.
    (ii) The reset occurs on the same day of each month (the reset 
date).
    (iii) The value of the index for any date between reset dates is 
determined through straight-line interpolation.
    (3) Qualified inflation index. A qualified inflation index is a 
general price or wage index that is updated and published at least 
monthly by an agency of the United States Government (for example, the 
non-seasonally adjusted U.S. City Average All Items Consumer Price Index 
for All Urban Consumers (CPI-U), which is published by the Bureau of 
Labor Statistics of the Department of Labor).
    (4) Inflation-adjusted principal amount. For any date, the 
inflation-adjusted principal amount of an inflation-indexed debt 
instrument is an amount equal to--
    (i) The outstanding principal amount of the debt instrument 
(determined as if there were no inflation or deflation over the term of 
the instrument), multiplied by
    (ii) A ratio, the numerator of which is the value of the reference 
index for the date and the denominator of which is the value of the 
reference index for the issue date.
    (5) Minimum guarantee payment. In general, a minimum guarantee 
payment is an additional payment made at maturity on a debt instrument 
if the total amount of inflation-adjusted principal paid on the 
instrument is less than the instrument's stated principal amount. The 
amount of the additional payment must be no more than the excess, if 
any, of the debt instrument's stated principal amount over the total 
amount of inflation-adjusted principal paid on the instrument. An 
additional payment is not a minimum guarantee payment unless the 
qualified inflation index used to determine the reference index is 
either the CPI-U or an index designated for this purpose by the 
Commissioner in the Federal Register or the Internal Revenue Bulletin 
(see Sec. 601.601(d)(2)(ii) of this chapter). See paragraph (f)(4) of 
this section for the treatment of a minimum guarantee payment.
    (d) Coupon bond method--(1) In general. This paragraph (d) describes 
the method (coupon bond method) to be used to account for qualified 
stated interest and inflation adjustments (OID) on an inflation-indexed 
debt instrument described in paragraph (d)(2) of this section.
    (2) Applicability. The coupon bond method applies to an inflation-
indexed debt instrument that satisfies the following conditions:
    (i) Issued at par. The debt instrument is issued at par. A debt 
instrument is issued at par if the difference between its issue price 
and principal amount for the issue date is less than the de minimis 
amount. For this purpose, the de minimis amount is determined using the 
principles of Sec. 1.1273-1(d).
    (ii) All stated interest is qualified stated interest. All stated 
interest on the debt instrument is qualified stated interest. For 
purposes of this paragraph (d), stated interest is qualified stated 
interest if the interest is unconditionally payable in cash, or is 
constructively received under section 451, at least annually at a single 
fixed rate. Stated interest is payable at a single fixed rate if the 
amount of each interest payment is determined by multiplying the 
inflation adjusted principal amount for the payment date by the single 
fixed rate.
    (3) Qualified stated interest. Under the coupon bond method, 
qualified stated interest is taken into account under the taxpayer's 
regular method of accounting. The amount of accrued but unpaid qualified 
stated interest as of any date is determined by using the principles of 
Sec. 1.446-3(e)(2)(ii) (relating to notional principal contracts). For

[[Page 588]]

example, if the interval between interest payment dates spans two 
taxable years, a taxpayer using an accrual method of accounting 
determines the amount of accrued qualified stated interest for the first 
taxable year by reference to the inflation-adjusted principal amount at 
the end of the first taxable year.
    (4) Inflation adjustments--(i) Current accrual. Under the coupon 
bond method, an inflation adjustment is taken into account for each 
taxable year in which the debt instrument is outstanding.
    (ii) Amount of inflation adjustment. For any relevant period (such 
as the taxable year or the portion of the taxable year during which a 
taxpayer holds an inflation-indexed debt instrument), the amount of the 
inflation adjustment is equal to--
    (A) The sum of the inflation-adjusted principal amount at the end of 
the period and the principal payments made during the period, minus
    (B) The inflation-adjusted principal amount at the beginning of the 
period.
    (iii) Positive inflation adjustments. A positive inflation 
adjustment is OID.
    (iv) Negative inflation adjustments. A negative inflation adjustment 
is a deflation adjustment that is taken into account under the rules of 
paragraph (f)(1) of this section.
    (5) Example. The following example illustrates the coupon bond 
method:

    Example: (i) Facts. On October 15, 1997, X purchases at original 
issue, for $100,000, a debt instrument that is indexed for inflation and 
deflation. The debt instrument matures on October 15, 1999, has a stated 
principal amount of $100,000, and has a stated interest rate of 5 
percent, compounded semiannually. The debt instrument provides that the 
principal amount is indexed to the CPI-U. Interest is payable on April 
15 and October 15 of each year. The amount of each interest payment is 
determined by multiplying the inflation-adjusted principal amount for 
each interest payment date by the stated interest rate, adjusted for the 
length of the accrual period. The debt instrument provides for a single 
payment of the inflation-adjusted principal amount at maturity. In 
addition, the debt instrument provides for an additional payment at 
maturity equal to the excess, if any, of $100,000 over the inflation-
adjusted principal amount at maturity. X uses the cash receipts and 
disbursements method of accounting and the calendar year as its taxable 
year.
    (ii) Indexing methodology. The debt instrument provides that the 
inflation-adjusted principal amount for any day is determined by 
multiplying the principal amount of the instrument for the issue date by 
a ratio, the numerator of which is the value of the reference index for 
the day the inflation-adjusted principal amount is to be determined and 
the denominator of which is the value of the reference index for the 
issue date. The value of the reference index for the first day of a 
month is the value of the CPI-U for the third preceding month. The value 
of the reference index for any day other than the first day of a month 
is determined based on a straight-line interpolation between the value 
of the reference index for the first day of the month and the value of 
the reference index for the first day of the next month.
    (iii) Inflation-indexed debt instrument subject to the coupon bond 
method. Under paragraph (c)(1) of this section, the debt instrument is 
an inflation-indexed debt instrument. Because there is no difference 
between the debt instrument's issue price ($100,000) and its principal 
amount for the issue date ($100,000) and because all stated interest is 
qualified stated interest, the coupon bond method applies to the 
instrument.
    (iv) Reference index values. Assume the following table lists the 
relevant reference index values for 1997 through 1999:

------------------------------------------------------------------------
                                                       Reference index
                       Date                                 value
------------------------------------------------------------------------
Oct. 15, 1997.....................................                   100
Jan. 1, 1998......................................                   101
Apr. 15, 1998.....................................                   103
Oct. 15, 1998.....................................                   105
Jan. 1, 1999......................................                    99
------------------------------------------------------------------------

    (v) Treatment of X in 1997. X does not receive any payments of 
interest on the debt instrument in 1997. Therefore, X has no qualified 
stated interest income for 1997. X, however, must take into account the 
inflation adjustment for 1997. The inflation-adjusted principal amount 
for January 1, 1998, is $101,000 ($100,000 x 101/100). Therefore, the 
inflation adjustment for 1997 is $1,000, the inflation-adjusted 
principal amount for January 1, 1998 ($101,000) minus the principal 
amount for the issue date ($100,000). X includes the $1,000 inflation 
adjustment in income as OID in 1997.
    (vi) Treatment of X in 1998. In 1998, X receives two payments of 
interest: On April 15, 1998, X receives a payment of $2,575 ($100,000 x 
103/100 x .05/2), and on October 15, 1998, X receives a payment of 
$2,625 ($100,000 x 105/100 x .05/2). Therefore, X's qualified stated 
interest income for 1998 is $5,200 ($2,575 + $2,625). X also must take 
into account the inflation adjustment for 1998. The inflation-adjusted 
principal amount for January 1, 1999, is

[[Page 589]]

$99,000 ($100,000 x 99/100). Therefore, the inflation adjustment for 
1998 is negative $2,000, the inflation-adjusted principal amount for 
January 1, 1999 ($99,000) minus the inflation-adjusted principal amount 
for January 1, 1998 ($101,000). Because the amount of the inflation 
adjustment is negative, it is a deflation adjustment. Under paragraph 
(f)(1)(i) of this section, X uses this $2,000 deflation adjustment to 
reduce the interest otherwise includible in income by X with respect to 
the debt instrument in 1998. Therefore, X includes $3,200 in income for 
1998, the qualified stated interest income for 1998 ($5,200) minus the 
deflation adjustment ($2,000).

    (e) Discount bond method--(1) In general. This paragraph (e) 
describes the method (discount bond method) to be used to account for 
OID on an inflation-indexed debt instrument that does not qualify for 
the coupon bond method.
    (2) No qualified stated interest. Under the discount bond method, no 
interest on an inflation-indexed debt instrument is qualified stated 
interest.
    (3) OID. Under the discount bond method, the amount of OID that 
accrues on an inflation-indexed debt instrument is determined as 
follows:
    (i) Step one: Determine the debt instrument's yield to maturity. The 
yield of the debt instrument is determined under the rules of Sec. 
1.1272-1(b)(1)(i). In calculating the yield under those rules for 
purposes of this paragraph (e)(3)(i), the payment schedule of the debt 
instrument is determined as if there were no inflation or deflation over 
the term of the instrument.
    (ii) Step two: Determine the accrual periods. The accrual periods 
are determined under the rules of Sec. 1.1272-1(b)(1)(ii). However, no 
accrual period can be longer than 1 month.
    (iii) Step three: Determine the percentage change in the reference 
index during the accrual period. The percentage change in the reference 
index during the accrual period is equal to--
    (A) The ratio of the value of the reference index at the end of the 
period to the value of the reference index at the beginning of the 
period,
    (B) Minus one.
    (iv) Step four: Determine the OID allocable to each accrual period. 
The OID allocable to an accrual period (n) is determined by using the 
following formula:

OID((n) = AIP(n) x [r + inf(n) + (r x 
    inf(n))]


in which,

r = yield of the debt instrument as determined under paragraph (e)(3)(i) 
    of this section (adjusted for the length of the accrual period);
inf(n) = percentage change in the value of the reference 
    index for period (n) as determined under paragraph (e)(3)(iii) of 
    this section; and
AIP(n) = adjusted issue price at the beginning of period (n).

    (v) Step five: Determine the daily portions of OID. The daily 
portions of OID are determined and taken into account under the rules of 
Sec. 1.1272-1(b)(1)(iv). If the daily portions determined under this 
paragraph (e)(3)(v) are negative amounts, however, these amounts 
(deflation adjustments) are taken into account under the rules for 
deflation adjustments described in paragraph (f)(1) of this section.
    (4) Example. The following example illustrates the discount bond 
method:

    Example: (i) Facts. On November 15, 1997, X purchases at original 
issue, for $91,403, a zero-coupon debt instrument that is indexed for 
inflation and deflation. The principal amount of the debt instrument for 
the issue date is $100,000. The debt instrument provides for a single 
payment on November 15, 2000. The amount of the payment will be 
determined by multiplying $100,000 by a fraction, the numerator of which 
is the CPI-U for September 2000, and the denominator of which is the 
CPI-U for September 1997. The debt instrument also provides that in no 
event will the payment on November 15, 2000, be less than $100,000. X 
uses the cash receipts and disbursements method of accounting and the 
calendar year as its taxable year.
    (ii) Inflation-indexed debt instrument. Under paragraph (c)(1) of 
this section, the instrument is an inflation-indexed debt instrument. 
The debt instrument's principal amount for the issue date ($100,000) 
exceeds its issue price ($91,403) by $8,597, which is more than the de 
minimis amount for the debt instrument ($750). Therefore, the coupon 
bond method does not apply to the debt instrument. As a result, the 
discount bond method applies to the debt instrument.
    (iii) Yield and accrual period. Assume X chooses monthly accrual 
periods ending on the 15th day of each month. The yield of the debt 
instrument is determined as if there were no inflation or deflation over 
the term of the instrument. Therefore, based on the issue price of 
$91,403 and an assumed payment at maturity of $100,000, the yield of the

[[Page 590]]

debt instrument is 3 percent, compounded monthly.
    (iv) Percentage change in reference index. Assume that the CPI-U for 
September 1997 is 160; for October 1997 is 161.2; and for November 1997 
is 161.7. The value of the reference index for November 15, 1997, is 
160, the value of the CPI-U for September 1997. Similarly, the value of 
the reference index for December 15, 1997, is 161.2, and for January 15, 
1998, is 161.7. The percentage change in the reference index from 
November 15, 1997, to December 15, 1997, (inf1) is 0.0075 
(161.2/160-1); the percentage change in the reference index from 
December 15, 1997, to January 15, 1998, (inf2) is 0.0031 
(161.7/161.2-1).
    (v) Treatment of X in 1997. For the accrual period ending on 
December 15, 1997, r is .0025 (.03/12), inf1 is .0075, and 
the product of r and inf1 is .00001875. Under paragraph 
(e)(3) of this section, the amount of OID allocable to the accrual 
period ending on December 15, 1997, is $916. This amount is determined 
by multiplying the issue price of the debt instrument ($91,403) by 
.01001875 (the sum of r, inf1, and the product of r and 
inf1). The adjusted issue price of the debt instrument on 
December 15, 1997, is $92,319 ($91,403+$916). For the accrual period 
ending on January 15, 1998, r is .0025 (.03/12), inf2 is 
.0031, and the product of r and inf2 is .00000775. Under 
paragraph (e)(3) of this section, the amount of OID allocable to the 
accrual period ending on January 15, 1998, is $518. This amount is 
determined by multiplying the adjusted issue price of the debt 
instrument ($92,319) by .00560775 (the sum of r, inf2, and 
the product of r and inf2). Because the accrual period ending 
on January 15, 1998, spans two taxable years, only $259 of this amount 
($518/30 daysx15 days) is allocable to 1997. Therefore, X includes 
$1,175 of OID in income for 1997 ($916+$259).

    (f) Special rules. The following rules apply to an inflation-indexed 
debt instrument:
    (1) Deflation adjustments--(i) Holder. A deflation adjustment 
reduces the amount of interest otherwise includible in income by a 
holder with respect to the debt instrument for the taxable year. For 
purposes of this paragraph (f)(1)(i), interest includes OID, qualified 
stated interest, and market discount. If the amount of the deflation 
adjustment exceeds the interest otherwise includible in income by the 
holder with respect to the debt instrument for the taxable year, the 
excess is treated as an ordinary loss by the holder for the taxable 
year. However, the amount treated as an ordinary loss is limited to the 
amount by which the holder's total interest inclusions on the debt 
instrument in prior taxable years exceed the total amount treated by the 
holder as an ordinary loss on the debt instrument in prior taxable 
years. If the deflation adjustment exceeds the interest otherwise 
includible in income by the holder with respect to the debt instrument 
for the taxable year and the amount treated as an ordinary loss for the 
taxable year, this excess is carried forward to reduce the amount of 
interest otherwise includible in income by the holder with respect to 
the debt instrument for subsequent taxable years.
    (ii) Issuer. A deflation adjustment reduces the interest otherwise 
deductible by the issuer with respect to the debt instrument for the 
taxable year. For purposes of this paragraph (f)(1)(ii), interest 
includes OID and qualified stated interest. If the amount of the 
deflation adjustment exceeds the interest otherwise deductible by the 
issuer with respect to the debt instrument for the taxable year, the 
excess is treated as ordinary income by the issuer for the taxable year. 
However, the amount treated as ordinary income is limited to the amount 
by which the issuer's total interest deductions on the debt instrument 
in prior taxable years exceed the total amount treated by the issuer as 
ordinary income on the debt instrument in prior taxable years. If the 
deflation adjustment exceeds the interest otherwise deductible by the 
issuer with respect to the debt instrument for the taxable year and the 
amount treated as ordinary income for the taxable year, this excess is 
carried forward to reduce the interest otherwise deductible by the 
issuer with respect to the debt instrument for subsequent taxable years. 
If there is any excess remaining upon the retirement of the debt 
instrument, the issuer takes the excess amount into account as ordinary 
income.
    (2) Adjusted basis. A holder's adjusted basis in an inflation-
indexed debt instrument is determined under Sec. 1.1272-1(g). However, 
a holder's adjusted basis in the debt instrument is decreased by the 
amount of any deflation adjustment the holder takes into account to 
reduce the amount of interest otherwise includible in income or treats 
as an ordinary loss with respect to the instrument during the taxable 
year. The

[[Page 591]]

decrease occurs when the deflation adjustment is taken into account 
under paragraph (f)(1) of this section.
    (3) Subsequent holders. A holder determines the amount of 
acquisition premium or market discount on an inflation-indexed debt 
instrument by reference to the adjusted issue price of the instrument on 
the date the holder acquires the instrument. A holder determines the 
amount of bond premium on an inflation-indexed debt instrument by 
assuming that the amount payable at maturity on the instrument is equal 
to the instrument's inflation-adjusted principal amount for the day the 
holder acquires the instrument. Any premium or market discount is taken 
into account over the remaining term of the debt instrument as if there 
were no further inflation or deflation. See section 171 for additional 
rules relating to the amortization of bond premium and sections 1276 
through 1278 for additional rules relating to market discount.
    (4) Minimum guarantee. Under both the coupon bond method and the 
discount bond method, a minimum guarantee payment is ignored until the 
payment is made. If there is a minimum guarantee payment, the payment is 
treated as interest on the date it is paid.
    (5) Temporary unavailability of a qualified inflation index. 
Notwithstanding any other rule of this section, an inflation-indexed 
debt instrument may provide for a substitute value of the qualified 
inflation index if and when the publication of the value of the 
qualified inflation index is temporarily delayed. The substitute value 
may be determined by the issuer under any reasonable method. For 
example, if the CPI-U is not reported for a particular month, the debt 
instrument may provide that a substitute value may be determined by 
increasing the last reported value by the average monthly percentage 
increase in the qualified inflation index over the preceding twelve 
months. The use of a substitute value does not result in a reissuance of 
the debt instrument.
    (g) Reopenings. For rules concerning a reopening of Treasury 
Inflation-Indexed Securities, see paragraphs (d)(2) and (k)(3)(iii) of 
Sec. 1.1275-2.
    (h) Effective date. This section applies to an inflation-indexed 
debt instrument issued on or after January 6, 1997.

[T.D. 8709, 62 FR 618, Jan. 6, 1997. Redesignated by T.D. 8838, 64 FR 
48547, Sept. 7, 1999, as amended by T.D. 8840, 64 FR 60343, Nov. 5, 
1999; T.D. 8934, 66 FR 2817, Jan. 12, 2001]



Sec. 1.1286-1  Tax treatment of certain stripped bonds and stripped 
coupons.

    (a) De minimis OID. If the original issue discount determined under 
section 1286(a) with respect to the purchase of a stripped bond or 
stripped coupon is less than the amount computed under subparagraphs (A) 
and (B) of section 1273(a)(3) and the regulations thereunder, then the 
amount of original issue discount with respect to that purchase (other 
than any tax-exempt portion thereof, determined under section 
1286(d)(2)) shall be considered to be zero. For purposes of this 
computation, the number of complete years to maturity is measured from 
the date the stripped bond or stripped coupon is purchased.
    (b) Treatment of certain stripped bonds as market discount bonds--
(1) In general. By publication in the Internal Revenue Bulletin (see 
Sec. 601.601(d)(2)(ii)(b) of the Statement of Procedural Rules), the 
Internal Revenue Service may (subject to the limitation of paragraph 
(b)(2) of this section) provide that certain mortgage loans that are 
stripped bonds are to be treated as market discount bonds under section 
1278. Thus, any purchaser of such a bond is to account for any discount 
on the bond as market discount rather than original issue discount.
    (2) Limitation. This treatment may be provided for a stripped bond 
only if, immediately after the most recent disposition referred to in 
section 1286(b)--
    (i) The amount of original issue discount with respect to the 
stripped bond is determined under paragraph (a) of this section 
(concerning de minimis OID); or
    (ii) The annual stated rate of interest payable on the stripped bond 
is no more than 100 basis points lower than the annual stated rate of 
interest payable on the original bond from which it and any other 
stripped bond or bonds

[[Page 592]]

and any stripped coupon or coupons were stripped.
    (c) Effective date. This section is effective on and after August 8, 
1991.

[T.D. 8463, 57 FR 61812, Dec. 29, 1992]



Sec. 1.1286-2  Stripped inflation-indexed debt instruments.

    Stripped inflation-indexed debt instruments. If a Treasury 
Inflation-Indexed Security is stripped under the Department of the 
Treasury's Separate Trading of Registered Interest and Principal of 
Securities (STRIPS) program, the holders of the principal and coupon 
components must use the discount bond method (as described in Sec. 
1.1275-7(e)) to account for the original issue discount on the 
components.

[T.D. 8709, 62 FR 621, Jan. 6, 1997. Redesignated by T.D. 8838, 64 FR 
48547, Sept. 7, 1999]



Sec. 1.1287-1  Denial of capital gains treatment for gains on 
registration-required obligations not in registered form.

    (a) In general. Except as provided in paragraph (c) of this section, 
any gain on the sale or other disposition of a registration-required 
obligation held after December 31, 1982, that is not in registered form 
shall be treated as ordinary income unless the issuance of the 
obligation was subject to tax under section 4701. The term registration-
required obligation has the meaning given to that term in section 
163(f)(2), except that clause (iv) of subparagraph (A) thereof shall not 
apply. Therefore, although an obligation that is not in registered form 
is described in Sec. 1.163-5(c)(1), the holder of such an obligation 
shall be required to treat the gain on the sale or other disposition of 
such obligation as ordinary income. The term holder means the person 
that would be denied a loss deduction under section 165(j)(1) or denied 
capital gain treatment under section 1287(a).
    (b) Registered form--(1) Obligations issued after September 21, 
1984. With respect to any obligation originally issued after September 
21, 1984, the term registered form has the meaning given that term in 
section 103(j)(3) and the regulations thereunder. Therefore, an 
obligation that would otherwise be in registered form is not considered 
to be in registered form if it can be transferred at that time or at any 
time until its maturity by any means not described in Sec. 5f.103-1(c). 
An obligation that, as of a particular time, is not considered to be in 
registered form because it can be transferred by any means not described 
in Sec. 5f.103-1(c) is considered to be in registered form at all times 
during the period beginning with a later time and ending with the 
maturity of the obligation in which the obligation can be transferred 
only by a means described in Sec. 5f.103-1(c).
    (2) Obligations issued after December 31, 1982, and on or before 
September 21, 1984. With respect to any obligation originally issued 
after December 31, 1982, and on or before September 21, 1984, or an 
obligation originally issued after September 21, 1984, pursuant to the 
exercise of a warrant or the conversion of a convertible obligation, 
which warrant or obligation (including conversion privilege) was issued 
after December 31, 1982, and on or before September 21, 1984, that 
obligation will be considered to be in registered form if it satisfied 
Sec. 5f.163-1 or the proposed regulations provided in Sec. 1.163.-5(c) 
and published in the Federal Register on September 2, 1983 (48 FR 
39953).
    (c) Registration-required obligations not in registered form which 
are not subject to section 1287(c). Notwithstanding the fact than an 
obligation is a registration-required obligation that is not in 
registered form, the holder will not be subject to section 1287(a) if 
the holder meets the conditions of Sec. 1.165-12(c).
    (d) Effective date. These regulations apply generally to obligations 
issued after January 20, 1987. However, a taxpayer may choose to apply 
the rules of Sec. 1.1287-1 with respect to an obligation issued after 
December 31, 1982, and on or before January 20, 1987, which obligation 
is held after January 20, 1987.

[T.D. 8110, 51 FR 45461, Dec. 19, 1986]



Sec. 1.1291-0  Treatment of shareholders of certain passive foreign 
investment companies; table of contents.

    This section contains a listing of the headings for Sec. Sec. 
1.1291-1, 1.1291-9, and 1.1291-10.

[[Page 593]]

 Sec. 1.1291-1 Taxation of U.S. persons that are shareholders of PFICs 
                      that are not pedigreed QEFs.

    (a) through (b) [Reserved]
    (c) Coordination with other PFIC rules.
    (1) and (2) [Reserved]
    (3) Coordination with section 1296: distributions and dispositions.
    (4) Coordination with mark to market rules under chapter 1 of the 
Internal Revenue Code other than section 1296.
    (i) In general.
    (ii) Coordination rule.
    (d) [Reserved]
    (e) Exempt organization as shareholder.
    (1) In general.
    (2) Effective date.
    (f) through (i) [Reserved]
    (j) Effective date.

                Sec. 1.1291-9 Deemed dividend election.

    (a) Deemed dividend election.
    (1) In general.
    (2) Post-1986 earnings and profits defined.
    (i) In general.
    (ii) Pro rata share of post-1986 earnings and profits attributable 
to shareholder's stock.
    (A) In general.
    (B) Reduction for previously taxed amounts.
    (b) Who may make the election.
    (c) Time for making the election.
    (d) Manner of making the election.
    (1) In general.
    (2) Attachment to Form 8621.
    (e) Qualification date.
    (1) In general.
    (2) Elections made after March 31, 1995, and before January 27, 
1997.
    (i) In general.
    (ii) Exception.
    (3) Examples.
    (f) Adjustment to basis.
    (g) Treatment of holding period.
    (h) Coordination with section 959(e).
    (i) Election inapplicable to shareholder of former PFIC.
    (1) [Reserved]
    (2) Former PFIC.
    (j) Definitions.
    (1) Passive foreign investment company (PFIC).
    (2) Types of PFICs.
    (i) Qualified electing fund (QEF).
    (ii) Pedigreed QEF.
    (iii) Unpedigreed QEF.
    (iv) Former PFIC.
    (3) Shareholder.
    (k) Effective date.

                  Sec. 1.1291-10 Deemed sale election.

    (a) Deemed sale election.
    (b) Who may make the election.
    (c) Time for making the election.
    (d) Manner of making the election.
    (e) Qualification date.
    (1) In general.
    (2) Elections made after March 31, 1995, and before January 27, 
1997.
    (i) In general.
    (ii) Exception.
    (f) Adjustments to basis.
    (1) In general.
    (2) Adjustment to basis for section 1293 inclusion with respect to 
deemed sale election made after March 31, 1995, and before January 27, 
1997.
    (g) Treatment of holding period.
    (h) Election inapplicable to shareholder of former PFIC.
    (i) Effective date.

[T.D. 8701, 61 FR 68151, Dec. 27, 1996, as amended by T.D. 8750, 63 FR 
13, Jan. 2, 1998; T.D. 9123, 69 FR 24073, May 3, 2004]



Sec. 1.1291-1  Taxation of U.S. persons that are shareholders of PFICs 
that are not pedigreed QEFs.

    (a)-(b) [Reserved]
    (c) Coordination with other PFIC rules.
    (1)-(2) [Reserved]
    (3) Coordination with section 1296: distributions and dispositions. 
If PFIC stock is marked to market under section 1296 for any taxable 
year, then, except as provided in Sec. 1.1296-1(i), section 1291 and 
the regulations thereunder shall not apply to any distribution with 
respect to section 1296 stock (as defined in Sec. 1.1296-1(a)(2)), or 
to any disposition of such stock, for such taxable year.
    (4) Coordination with mark to market rules under chapter 1 of the 
Internal Revenue Code other than section 1296--(i) In general. If PFIC 
stock is marked to market for any taxable year under section 475 or any 
other provision of chapter 1 of the Internal Revenue Code, other than 
section 1296, regardless of whether the application of such provision is 
mandatory or results from an election by the taxpayer or another person, 
then, except as provided in paragraph (c)(4)(ii) of this section, 
section 1291 and the regulations thereunder shall not apply to any 
distribution with respect to such PFIC stock or to any disposition of 
such PFIC stock for such taxable year. See Sec. Sec. 1.1295-1(i)(3) and 
1.1296-1(h)(3)(i) for rules regarding the automatic termination of an 
existing election under section 1295 or section 1296 when a taxpayer 
marks to market PFIC stock under section 475 or any other provision of 
chapter 1 of the Internal Revenue Code.

[[Page 594]]

    (ii) Coordination rule--(A) Notwithstanding any provision in this 
section to the contrary, the rule of paragraph (c)(4)(ii)(B) of this 
section shall apply to the first taxable year in which a United States 
person marks to market its PFIC stock under a provision of chapter 1 of 
the Internal Revenue Code, other than section 1296, if such foreign 
corporation was a PFIC for any taxable year, prior to such first taxable 
year, during the United States person's holding period (as defined in 
section 1291(a)(3)(A) and Sec. 1.1296-1(f)) in such stock, and for 
which such corporation was not treated as a QEF with respect to such 
United States person.
    (B) For the first taxable year of a United States person that marks 
to market its PFIC stock under any provision of chapter 1 of the 
Internal Revenue Code, other than section 1296, such United States 
person shall, in lieu of the rules under which the United States person 
marks to market, apply the rules of Sec. 1.1296-1(i)(2) and (3) as if 
the United States person had made an election under section 1296 for 
such first taxable year.
    (d) [Reserved]
    (e) Exempt organization as shareholder--(1) In general. If the 
shareholder of a PFIC is an organization exempt from tax under this 
chapter, section 1291 and these regulations apply to such shareholder 
only if a dividend from the PFIC would be taxable to the organization 
under subchapter F.
    (2) Effective date. Paragraph (e)(1) of this section is applicable 
on and after April 1, 1992.
    (f)-(i) [Reserved]
    (j) Effective dates. This section applies for taxable years 
beginning on or after May 3, 2004, except as otherwise provided in 
paragraph (e)(2) of this section.

[T.D. 8750, 63 FR 13, Jan. 2, 1998. Redesignated by T.D. 8870, 65 FR 
5779, Feb. 7, 2000, as amended by T.D. 9123, 69 FR 24073, May 3, 2004]



Sec. 1.1291-9  Deemed dividend election.

    (a) Deemed dividend election--(1) In general. This section provides 
rules for making the election under section 1291(d)(2)(B) (deemed 
dividend election). Under that section, a shareholder (as defined in 
paragraph (j)(3) of this section) of a PFIC that is an unpedigreed QEF 
may elect to include in income as a dividend the shareholder's pro rata 
share of the post-1986 earnings and profits of the PFIC attributable to 
the stock held on the qualification date (as defined in paragraph (e) of 
this section), provided the PFIC is a controlled foreign corporation 
(CFC) within the meaning of section 957(a) for the taxable year for 
which the shareholder elects under section 1295 to treat the PFIC as a 
QEF (section 1295 election). If the shareholder makes the deemed 
dividend election, the PFIC will become a pedigreed QEF with respect to 
the shareholder. The deemed dividend is taxed under section 1291 as an 
excess distribution received on the qualification date. The excess 
distribution determined under this paragraph (a) is allocated under 
section 1291(a)(1)(A) only to those days in the shareholder's holding 
period during which the foreign corporation qualified as a PFIC. For 
purposes of the preceding sentence, the holding period of the PFIC stock 
with respect to which the election is made ends on the day before the 
qualification date. For the definitions of PFIC, QEF, unpedigreed QEF, 
and pedigreed QEF, see paragraph (j) (1) and (2) of this section.
    (2) Post-1986 earnings and profits defined--(i) In general. For 
purposes of this section, the term post-1986 earnings and profits means 
the undistributed earnings and profits, within the meaning of section 
902(c)(1), as of the day before the qualification date, that were 
accumulated and not distributed in taxable years of the PFIC beginning 
after 1986 and during which it was a PFIC, but without regard to whether 
the earnings relate to a period during which the PFIC was a CFC.
    (ii) Pro rata share of post-1986 earnings and profits attributable 
to shareholder's stock--(A) In general. A shareholder's pro rata share 
of the post-1986 earnings and profits of the PFIC attributable to the 
stock held by the shareholder on the qualification date is the amount of 
post-1986 earnings and profits of the PFIC accumulated during any 
portion of the shareholder's holding period ending at the close of the 
day before the qualification date and attributable, under the principles 
of section 1248 and

[[Page 595]]

the regulations under that section, to the PFIC stock held on the 
qualification date.
    (B) Reduction for previously taxed amounts. A shareholder's pro rata 
share of the post-1986 earnings and profits of the PFIC does not include 
any amount that the shareholder demonstrates to the satisfaction of the 
Commissioner (in the manner provided in paragraph (d)(2) of this 
section) was, pursuant to another provision of the law, previously 
included in the income of the shareholder, or of another U.S. person if 
the shareholder's holding period of the PFIC stock includes the period 
during which the stock was held by that other U.S. person.
    (b) Who may make the election. A shareholder of an unpedigreed QEF 
that is a CFC for the taxable year of the PFIC for which the shareholder 
makes the section 1295 election may make the deemed dividend election 
provided the shareholder held stock of that PFIC on the qualification 
date. A shareholder is treated as holding stock of the PFIC on the 
qualification date if its holding period with respect to that stock 
under section 1223 includes the qualification date. A shareholder may 
make the deemed dividend election without regard to whether the 
shareholder is a United States shareholder within the meaning of section 
951(b). A deemed dividend election may be made by a shareholder whose 
pro rata share of the post-1986 earnings and profits of the PFIC 
attributable to the PFIC stock held on the qualification date is zero.
    (c) Time for making the election. The shareholder makes the deemed 
dividend election in the shareholder's return for the taxable year that 
includes the qualification date. If the shareholder and the PFIC have 
the same taxable year, the shareholder makes the deemed dividend 
election in either the original return for the taxable year for which 
the shareholder makes the section 1295 election, or in an amended return 
for that year. If the shareholder and the PFIC have different taxable 
years, the deemed dividend election must be made in an amended return 
for the taxable year that includes the qualification date. If the deemed 
dividend election is made in an amended return, the amended return must 
be filed by a date that is within three years of the due date, as 
extended under section 6081, of the original return for the taxable year 
that includes the qualification date.
    (d) Manner of making the election--(1) In general. A shareholder 
makes the deemed dividend election by filing Form 8621 and the 
attachment to Form 8621 described in paragraph (d)(2) of this section 
with the return for the taxable year of the shareholder that includes 
the qualification date, reporting the deemed dividend as an excess 
distribution pursuant to section 1291(a)(1), and paying the tax and 
interest due on the excess distribution. A shareholder that makes the 
deemed dividend election after the due date of the return (determined 
without regard to extensions) for the taxable year that includes the 
qualification date must pay additional interest, pursuant to section 
6601, on the amount of the underpayment of tax for that year.
    (2) Attachment to Form 8621. The shareholder must attach a schedule 
to Form 8621 that demonstrates the calculation of the shareholder's pro 
rata share of the post-1986 earnings and profits of the PFIC that is 
treated as distributed to the shareholder on the qualification date 
pursuant to this section. If the shareholder is claiming an exclusion 
from its pro rata share of the post-1986 earnings and profits for an 
amount previously included in its income or the income of another U.S. 
person, the shareholder must include the following information:
    (i) The name, address, and taxpayer identification number of each 
U.S. person that previously included an amount in income, the amount 
previously included in income by each such U.S. person, the provision of 
the law pursuant to which the amount was previously included in income, 
and the taxable year or years of inclusion of each amount; and
    (ii) A description of the transaction pursuant to which the 
shareholder acquired, directly or indirectly, the stock of the PFIC from 
another U.S. person, and the provisions of law pursuant to which the 
shareholder's holding period includes the period the other U.S. person 
held the CFC stock.

[[Page 596]]

    (e) Qualification date--(1) In general. Except as otherwise provided 
in this paragraph (e), the qualification date is the first day of the 
PFIC's first taxable year as a QEF (first QEF year).
    (2) Elections made after March 31, 1995, and before January 27, 
1997--(i) In general. The qualification date for deemed dividend 
elections made after March 31, 1995, and before January 27, 1997, is the 
first day of the shareholder's election year. The shareholder's election 
year is the taxable year of the shareholder for which it made the 
section 1295 election.
    (ii) Exception. A shareholder who made the deemed dividend election 
after May 1, 1992, and before January 27, 1997, may elect to change its 
qualification date to the first day of the first QEF year, provided the 
periods of limitations on assessment for the taxable year that includes 
that date and for the shareholder's election year have not expired. A 
shareholder changes the qualification date by filing amended returns, 
with revised Forms 8621 and the attachments described in paragraph 
(d)(2) of this section, for the shareholder's election year and the 
shareholder's taxable year that includes the first day of the first QEF 
year, and making all appropriate adjustments and payments.
    (3) Examples. The rules of this paragraph (e) are illustrated by the 
following examples:

    Example 1. (i) Eligibility to make deemed dividend election. A is a 
U.S. person who files its income tax return on a calendar year basis. On 
January 2, 1994, A purchased one percent of the stock of M, a PFIC with 
a taxable year ending November 30. M was both a CFC and a PFIC, but not 
a QEF, for all of its taxable years. On December 3, 1996, M made a 
distribution to its shareholders. A received $100, all of which A 
reported in its 1996 return as an excess distribution as provided in 
section 1291(a)(1). A decides to make the section 1295 election in A's 
1997 taxable year to treat M as a QEF effective for M's taxable year 
beginning December 1, 1996. Because A did not make the section 1295 
election in 1994, the first year in its holding period of M stock that M 
qualified as a PFIC, M would be an unpedigreed QEF and A would be 
subject to both sections 1291 and 1293. A, however, may elect under 
section 1291(d)(2) to purge the years M was not a QEF from A's holding 
period. If A makes the section 1291(d)(2) election, the December 3 
distribution will not be taxable under section 1291(a). Because M is a 
CFC, even though A is not a U.S. shareholder within the meaning of 
section 951(b), A may make the deemed dividend election under section 
1291(d)(2)(B).
    (ii) Making the election. Under paragraph (e)(1) of this section, 
the qualification date, and therefore the date of the deemed dividend, 
is December 1, 1996. Accordingly, to make the deemed dividend election, 
A must file an amended return for 1996, and include the deemed dividend 
in income in that year. As a result, M will be a pedigreed QEF as of 
December 1, 1996, and the December 3, 1996, distribution will not be 
taxable as an excess distribution. Therefore, in its amended return, A 
may report the December 3, 1996, distribution consistent with section 
1293 and the general rules applicable to corporate distributions.
    Example 2. X, a U.S. person, owned a five percent interest in the 
stock of FC, a PFIC with a taxable year ending June 30. X never made the 
section 1295 election with respect to FC. X transferred her interest in 
FC to her granddaughter, Y, a U.S. person, on February 14, 1996. The 
transfer qualified as a gift for Federal income tax purposes, and no 
gain was recognized on the transfer (see Regulation Project INTL-656-87, 
published in 1992-1 C.B. 1124; see Sec. 601.601(d)(2)(ii)(b) of this 
chapter). As provided in section 1223(2), Y's holding period includes 
the period that X held the FC stock. Y decides to make the section 1295 
election in her 1996 return to treat FC as a QEF for its taxable year 
beginning July 1, 1995. However, because Y's holding period includes the 
period that X held the FC stock, and FC was a PFIC but not a QEF during 
that period, FC will be an unpedigreed QEF with respect to Y unless Y 
makes a section 1291(d)(2) election. Although Y did not actually own the 
stock of FC on the qualification date (July 1, 1995), Y's holding period 
includes that date. Therefore, provided FC is a CFC for its taxable year 
beginning July 1, 1995, Y may make a section 1291(d)(2)(B) election to 
treat FC as a pedigreed QEF.

    (f) Adjustment to basis. A shareholder that makes the deemed 
dividend election increases its adjusted basis of the stock of the PFIC 
owned directly by the shareholder by the amount of the deemed dividend. 
If the shareholder makes the deemed dividend election with respect to a 
PFIC of which it is an indirect shareholder, the shareholder's adjusted 
basis of the stock or other property owned directly by the shareholder, 
through which ownership of the PFIC is attributed to the shareholder, is 
increased by the amount of the deemed dividend. In addition, solely for 
purposes of determining the subsequent treatment under the Code and 
regulations of a shareholder of the stock of

[[Page 597]]

the PFIC, the adjusted basis of the direct owner of the stock of the 
PFIC is increased by the amount of the deemed dividend.
    (g) Treatment of holding period. For purposes of applying sections 
1291 through 1297 to the shareholder after the deemed dividend, the 
shareholder's holding period of the stock of the PFIC begins on the 
qualification date. For other purposes of the Code and regulations, this 
holding period rule does not apply.
    (h) Coordination with section 959(e). For purposes of section 
959(e), the entire deemed dividend is treated as included in gross 
income under section 1248(a).
    (i) A shareholder may not make the section 1295 and deemed dividend 
elections if the foreign corporation is a former PFIC (as defined in 
paragraph (j)(2)(iv) of this section) with respect to the shareholder. 
For the rules regarding the election by a shareholder of a former PFIC, 
see Sec. 1.1297-3T.
    (j) Definitions--(1) Passive foreign investment company (PFIC). A 
passive foreign investment company (PFIC) is a foreign corporation that 
satisfies either the income test of section 1296(a)(1) or the asset test 
of section 1296(a)(2). A corporation will not be treated as a PFIC with 
respect to a shareholder for those days included in the shareholder's 
holding period when the shareholder, or a person whose holding period of 
the stock is included in the shareholder's holding period, was not a 
United States person within the meaning of section 7701(a)(30).
    (2) Types of PFICs--(i) Qualified electing fund (QEF). A PFIC is a 
qualified electing fund (QEF) with respect to a shareholder that has 
elected, under section 1295, to be taxed currently on its share of the 
PFIC's earnings and profits pursuant to section 1293.
    (ii) Pedigreed QEF. A PFIC is a pedigreed QEF with respect to a 
shareholder if the PFIC has been a QEF with respect to the shareholder 
for all taxable years during which the corporation was a PFIC that are 
included wholly or partly in the shareholder's holding period of the 
PFIC stock.
    (iii) Unpedigreed QEF. A PFIC is an unpedigreed QEF for a taxable 
year if--
    (A) An election under section 1295 is in effect for that year;
    (B) The PFIC has been a QEF with respect to the shareholder for at 
least one, but not all, of the taxable years during which the 
corporation was a PFIC that are included wholly or partly in the 
shareholder's holding period of the PFIC stock; and
    (C) The shareholder has not made an election under section 
1291(d)(2) and this section or Sec. 1.1291-10 with respect to the PFIC 
to purge the nonQEF years from the shareholder's holding period.
    (iv) Former PFIC. A foreign corporation is a former PFIC with 
respect to a shareholder if the corporation satisfies neither the income 
test of section 1297(a)(1) nor the asset test of section 1297(a)(2), but 
its stock, held by that shareholder, is treated as stock of a PFIC, 
pursuant to section 1298(b)(1), because the corporation was a PFIC that 
was not a QEF at some time during the shareholder's holding period of 
the stock.
    (v) Section 1297(e) PFIC. [Reserved] For further guidance, see Sec. 
1.1291-9T(j)(2)(v).
    (3) Shareholder. A shareholder is a U.S. person that is a direct or 
indirect shareholder as defined in Regulation Project INTL-656-87 
published in 1992-1 C.B. 1124; see Sec. 601.601(d)(2)(ii)(b) of this 
chapter.
    (k) Effective date. The rules of this section are applicable as of 
April 1, 1995.

[T.D. 8701, 61 FR 68151, Dec. 27, 1996; 62 FR 7155, Feb. 18, 1997, as 
amended by T.D. 8750, 63 FR 13, Jan. 2, 1998; T.D. 9231, 70 FR 72915, 
Dec. 8, 2005]



Sec. 1.1291-9T  Deemed dividend election (temporary).

    (a) through (j)(2)(iv) [Reserved] For further guidance, see Sec. 
1.1291-9(a) through (j)(2)(iv).
    (j)(2)(v) Section 1297(e) PFIC. A foreign corporation is a section 
1297(e) PFIC with respect to a shareholder (as defined in Sec. 1.1291-
9(j)(3)) if:
    (A) The foreign corporation qualifies as a PFIC under section 
1297(a) on the first day on which the qualified portion of the 
shareholder's holding period in the foreign corporation begins, as 
determined under section 1297(e)(2); and

[[Page 598]]

    (B) The stock of the foreign corporation held by the shareholder is 
treated as stock of a PFIC, pursuant to section 1298(b)(1), because, at 
any time during the shareholder's holding period of the stock, other 
than the qualified portion, the corporation was a PFIC that was not a 
QEF.
    (3) [Reserved] For further guidance, see Sec. 1.1291-9(j)(3).
    (k) Effective date. (1) The rules of this section are applicable as 
of December 8, 2005.
    (2) The applicability of this section will expire on or before 
December 8, 2008.

[T.D. 9232, 70 FR 72910, Dec. 8, 2005]



Sec. 1.1291-10  Deemed sale election.

    (a) Deemed sale election. This section provides rules for making the 
election under section 1291(d)(2)(A) (deemed sale election). Under that 
section, a shareholder (as defined in Sec. 1.1291-9(j)(3)) of a PFIC 
that is an unpedigreed QEF may elect to recognize gain with respect to 
the stock of the unpedigreed QEF held on the qualification date (as 
defined in paragraph (e) of this section). If the shareholder makes the 
deemed sale election, the PFIC will become a pedigreed QEF with respect 
to the shareholder. A shareholder that makes the deemed sale election is 
treated as having sold, for its fair market value, the stock of the PFIC 
that the shareholder held on the qualification date. The gain recognized 
on the deemed sale is taxed under section 1291 as an excess distribution 
received on the qualification date. In the case of an election made by 
an indirect shareholder, the amount of gain to be recognized and taxed 
as an excess distribution is the amount of gain that the direct owner of 
the stock of the PFIC would have realized on an actual sale or other 
disposition of the stock of the PFIC indirectly owned by the 
shareholder. Any loss realized on the deemed sale is not recognized. For 
the definitions of PFIC, QEF, unpedigreed QEF, and pedigreed QEF, see 
Sec. 1.1291-9(j) (1) and (2).
    (b) Who may make the election. A shareholder of an unpedigreed QEF 
may make the deemed sale election provided the shareholder held stock of 
that PFIC on the qualification date. A shareholder is treated as holding 
stock of the PFIC on the qualification date if its holding period with 
respect to that stock under section 1223 includes the qualification 
date. A deemed sale election may be made by a shareholder that would 
realize a loss on the deemed sale.
    (c) Time for making the election. The shareholder makes the deemed 
sale election in the shareholder's return for the taxable year that 
includes the qualification date. If the shareholder and the PFIC have 
the same taxable year, the shareholder makes the deemed sale election in 
either the original return for the taxable year for which the 
shareholder makes the section 1295 election, or in an amended return for 
that year. If the shareholder and the PFIC have different taxable years, 
the deemed sale election must be made in an amended return for the 
taxable year that includes the qualification date. If the deemed sale 
election is made in an amended return, the amended return must be filed 
by a date that is within three years of the due date, as extended under 
section 6081, of the original return for the taxable year that includes 
the qualification date.
    (d) Manner of making the election. A shareholder makes the deemed 
sale election by filing Form 8621 with the return for the taxable year 
of the shareholder that includes the qualification date, reporting the 
gain as an excess distribution pursuant to section 1291(a), and paying 
the tax and interest due on the excess distribution. A shareholder that 
makes the deemed sale election after the due date of the return 
(determined without regard to extensions) for the taxable year that 
includes the qualification date must pay additional interest, pursuant 
to section 6601, on the amount of the underpayment of tax for that year. 
A shareholder that realizes a loss on the deemed sale reports the loss 
on Form 8621, but does not recognize the loss.
    (e) Qualification date--(1) In general. Except as otherwise provided 
in this paragraph (e), the qualification date is the first day of the 
PFIC's first taxable year as a QEF (first QEF year).
    (2) Elections made after March 31, 1995, and before January 27, 
1997--(i) In general. The qualification date for deemed sale elections 
made after March 31,

[[Page 599]]

1995, and before January 27, 1997, is the first day of the shareholder's 
election year. The shareholder's election year is the taxable year of 
the shareholder for which it made the section 1295 election.
    (ii) Exception. A shareholder who made the deemed sale election 
after May 1, 1992, and before January 27, 1997, may elect to change its 
qualification date to the first day of the first QEF year, provided the 
periods of limitations on assessment for the taxable year that includes 
that date and for the shareholder's election year have not expired. A 
shareholder changes the qualification date by filing amended returns, 
with revised Forms 8621, for the shareholder's election year and the 
shareholder's taxable year that includes the first day of the first QEF 
year, and making all appropriate adjustments and payments.
    (f) Adjustments to basis--(1) In general. A shareholder that makes 
the deemed sale election increases its adjusted basis of the PFIC stock 
owned directly by the amount of gain recognized on the deemed sale. If 
the shareholder makes the deemed sale election with respect to a PFIC of 
which it is an indirect shareholder, the shareholder's adjusted basis of 
the stock or other property owned directly by the shareholder, through 
which ownership of the PFIC is attributed to the shareholder, is 
increased by the amount of gain recognized by the shareholder. In 
addition, solely for purposes of determining the subsequent treatment 
under the Code and regulations of a shareholder of the stock of the 
PFIC, the adjusted basis of the direct owner of the stock of the PFIC is 
increased by the amount of gain recognized on the deemed sale. A 
shareholder shall not adjust the basis of any stock with respect to 
which the shareholder realized a loss on the deemed sale.
    (2) Adjustment of basis for section 1293 inclusion with respect to 
deemed sale election made after March 31, 1995, and before January 27, 
1997. For purposes of determining the amount of gain recognized with 
respect to a deemed sale election made after March 31, 1995, and before 
January 27, 1997, by a shareholder that treats the first day of the 
shareholder's election year as the qualification date, the adjusted 
basis of the stock deemed sold includes the shareholder's section 
1293(a) inclusion attributable to the period beginning with the first 
day of the PFIC's first QEF year and ending on the day before the 
qualification date.
    (g) Treatment of holding period. For purposes of applying sections 
1291 through 1297 to the shareholder after the deemed sale, the 
shareholder's holding period of the stock of the PFIC begins on the 
qualification date, without regard to whether the shareholder recognized 
gain on the deemed sale. For other purposes of the Code and regulations, 
this holding period rule does not apply.
    (h) Election inapplicable to shareholder of former PFIC. A 
shareholder may not make the section 1295 and deemed sale elections if 
the foreign corporation is a former PFIC (as defined in Sec. 1.1291-
9(j)(2)(iv)) with respect to the shareholder. For the rules regarding 
the election by a shareholder of a former PFIC, see Sec. 1.1297-3T.
    (i) Effective date. The rules of this section are applicable as of 
April 1, 1995.

[T.D. 8701, 61 FR 68153, Dec. 27, 1996]



Sec. 1.1293-0  Table of contents.

    This section contains a listing of the headings for Sec. 1.1293-1.

 Sec. 1.1293-1 Current inclusion of income of qualified electing funds.

    (a) In general. [Reserved]
    (1) Other rules. [Reserved]
    (2) Net capital gain defined.
    (i) In general.
    (ii) Effective date.
    (b) Other rules. [Reserved]
    (c) Application of rules of inclusion with respect to stock held by 
a pass through entity.
    (1) In general.
    (2) QEF stock transferred to a pass through entity.
    (i) Pass through entity makes a section 1295 election.
    (ii) Pass through entity does not make a section 1295 election.
    (3) Effective date.

[T.D. 8750, 63 FR 13, Jan. 2, 1998; as amended by T.D. 8870, 65 FR 
16319, Mar. 28, 2000]



Sec. 1.1293-1  Current taxation of income from qualified electing funds.

    (a) In general. [Reserved]
    (1) Other rules. [Reserved]
    (2) Net capital gain defined--(i) In general. This paragraph (a)(2) 
defines the

[[Page 600]]

term net capital gain for purposes of sections 1293 and 1295 and the 
regulations under those sections. The QEF, as defined in Sec. 1.1291-
9(j)(2)(i), in determining its net capital gain for a taxable year, may 
either--
    (A) Calculate and report the amount of each category of long-term 
capital gain provided in section 1(h) that was recognized by the PFIC in 
the taxable year;
    (B) Calculate and report the amount of net capital gain recognized 
by the PFIC in the taxable year, stating that that amount is subject to 
the highest capital gain rate of tax applicable to the shareholder; or
    (C) Calculate its earnings and profits for the taxable year and 
report the entire amount as ordinary earnings.
    (ii) Effective date. Paragraph (a)(2)(i) of this section is 
applicable to sales by QEFs during their taxable years ending on or 
after May 7, 1997.
    (b) Other rules. [Reserved]
    (c) Application of rules of inclusion with respect to stock held by 
a pass through entity--(1) In general. If a domestic pass through entity 
makes a section 1295 election, as provided in paragraph (d)(2) of this 
section, with respect to the PFIC shares that it owns, directly or 
indirectly, the domestic pass through entity takes into account its pro 
rata share of the ordinary earnings and net capital gain attributable to 
the QEF shares held by the pass through entity. A U.S. person that 
indirectly owns QEF shares through the domestic pass through entity 
accounts for its pro rata shares of ordinary earnings and net capital 
gain attributable to the QEF shares according to the general rules 
applicable to inclusions of income from the domestic pass through 
entity. For the definition of pass through entity, see Sec. 1.1295-
1(j).
    (2) QEF stock transferred to a pass through entity--(i) Pass through 
entity makes a section 1295 election. If a shareholder transfers stock 
subject to a section 1295 election to a domestic pass through entity of 
which it is an interest holder and the pass through entity makes a 
section 1295 election with respect to that stock, as provided in Sec. 
1.1295-1(d)(2), the shareholder takes into account its pro rata shares 
of the ordinary earnings and net capital gain attributable to the QEF 
shares under the rules applicable to inclusions of income from the pass 
through entity.
    (ii) Pass through entity does not make a section 1295 election. If 
the pass through entity does not make a section 1295 election with 
respect to the PFIC, the shares of which were transferred to the pass 
through entity subject to the 1295 election of the shareholder, the 
shareholder continues to be subject, in its capacity as an indirect 
shareholder, to the income inclusion rules of section 1293 and reporting 
rules required of shareholders of QEFs. Proper adjustments to reflect an 
inclusion in income under section 1293 by the indirect shareholder must 
be made, under the principles of Sec. 1.1291-9(f), to the basis of the 
indirect shareholder's interest in the pass through entity.
    (3) Effective date. Paragraph (c) of this section is applicable to 
taxable years of shareholders beginning after December 31, 1997.

[T.D. 8750, 63 FR 14, Jan. 2, 1998. Redesignated and amended by T.D. 
8870, 65 FR 5779, 5781, Feb. 7, 2000]



Sec. 1.1294-0  Table of contents.

    This section contains a listing of the headings for Sec. 1.1294-1T.

   Sec. 1.1294-1T Election to extend the time for payment of tax on 
          undistributed earnings of a qualified electing fund.

    (a) Purpose and scope.
    (b) Election to extend time for payment of tax.
    (1) In general.
    (2) Exception.
    (3) Undistributed earnings.
    (i) In general.
    (ii) Effect of loan, pledge or guarantee.
    (c) Time for making the election.
    (1) In general.
    (2) Exception.
    (d) Manner of making the election.
    (1) In general.
    (2) Information to be included in the election.
    (e) Termination of the extension.
    (f) Undistributed PFIC earnings tax liability.
    (g) Authority to require a bond.
    (h) Annual reporting requirement.

[T.D. 8750, 63 FR 13, Jan. 2, 1998]

[[Page 601]]



Sec. 1.1294-1T  Election to extend the time for payment of tax on 
undistributed earnings of a qualified electing fund (temporary).

    (a) Purpose and scope. This section provides rules for making the 
annual election under section 1294. Under that section, a U.S. person 
that is a shareholder in a qualified electing fund (QEF) may elect to 
extend the time for payment of its tax liability which is attributable 
to its share of the undistributed earnings of the QEF. In general, a QEF 
is a passive foreign investment company (PFIC), as defined in section 
1296, that makes the election under section 1295. Under section 1293, a 
U.S. person that owns, or is treated as owning, stock of a QEF at any 
time during the taxable year of the QEF shall include in gross income, 
as ordinary income, its pro rata share of the ordinary earnings of the 
QEF for the taxable year and, as long-term capital gain, its pro rata 
share of the net capital gain of the QEF for the taxable year. The 
shareholder's share of the earnings shall be included in the 
shareholder's taxable year in which or with which the taxable year of 
the QEF ends.
    (b) Election to extend time for payment--(1) In general. A U.S. 
person that is a shareholder of a QEF on the last day of the QEF's 
taxable year may elect under section 1294 to extend the time for payment 
of that portion of its tax liability which is attributable to the 
inclusion in income pursuant to section 1293 of the shareholder's share 
of the QEF's undistributed earnings. The election under section 1294 may 
be made only with respect to undistributed earnings, and interest is 
imposed under section 6601 on the amount of the tax liability which is 
subject to the extension. This interest must be paid on the termination 
of the election.
    (2) Exception. An election under this Sec. 1.1294-1T cannot be made 
for a taxable year of the shareholder if any portion of the QEF's 
earning is includible in the gross income of the shareholder for such 
year under either section 551 (relating to foreign personal holding 
companies) or section 951 (relating to controlled foreign corporations).
    (3) Undistributed earnings--(i) In general. For purposes of this 
Sec. 1.1294-1T the term undistributed earnings means the excess, if 
any, of the amount includible in gross income by reason of section 
1293(a) for the shareholder's taxable year (the includible amount) over 
the sum of (A) the amount of any distribution to the shareholder during 
the QEF's taxable year and (B) the portion of the includible amount that 
is attributable to stock in the QEF that the shareholder transferred or 
otherwise disposed of before the end of the QEF's year. For purposes of 
this paragraph, a distribution will be treated as made from the most 
recently accumulated earnings and profits.
    (ii) Effect of a loan, pledge or guarantee. A loan, pledge, or 
guarantee described in Sec. 1.1294-1T(e) (2) or (4) will be treated as 
a distribution of earnings for purposes of paragraph (b)(3)(i)(A). If 
earnings are treated as distributed in a taxable year by reason of a 
loan, pledge or guarantee described in Sec. 1.1294-1T(e) (2) or (4), 
but the amount of the deemed distribution resulting therefrom was less 
than the amount of the actual loan by the QEF (or the amount of the loan 
secured by the pledge or guarantee), earnings derived by the QEF in a 
subsequent taxable year will be treated as distributed in such 
subsequent year to the shareholder for purposes of paragraph 
(b)(3)(i)(A) by virtue of such loan, but only to the extent of the 
difference between the outstanding principal balance on the loan in such 
subsequent year and the prior years' deemed distributions resulting from 
the loan. For this purpose, the outstanding principal balance on a loan 
in a taxable year shall be treated as equal to the greatest amount of 
the outstanding balance at any time during such year.

    Example 1. (i) Facts. FC is a PFIC that made the election under 
section 1295 to be a QEF for its taxable year beginning January 1, 1987. 
S owned 500 shares, or 50 percent, of FC throughout the first six months 
of 1987, but on June 30, 1987 sold 10 percent, or 50 shares, of the FC 
stock that it held. FC had $100,000x of ordinary earnings but no net 
capital gain in 1987. No part of FC's earnings is includible in S's 
income under either section 551 or 951. FC made no distributions to its 
shareholders in 1987. S's pro rata share of income is determined by 
attributing FC's income ratably to each day in FC's year. Accordingly, 
FC's daily earnings are $274x ($100,000x/365). S's share of the earnings 
of FC is $47,484x, determined as follows.


[[Page 602]]


FC's daily earnings x number of days percentage held by S x percentage 
of ownership in FC.


Accordingly, S's pro rata share of FC's earnings for the first six 
months of FC's year deemed earned while S held 50 percent of FC's stock 
is $24,797x ($274x x 181 days x 50%). S's pro rata share of FC's 
earnings for remainder of FC's year deemed earned while S held 45 
percent of FC's stock is $22,687x ($274x x 184 days x 45%). Therefore, 
S's total share of FC's earnings to be included in income under section 
1293 is $47,484x ($24,797x + $22,687x).
    (ii) Election. S intends to make the election under section 1294 to 
defer the payment of its tax liability that is attributable to the 
undistributed earnings of FC. The amount of current year undistributed 
earnings as defined in Sec. 1.1294-1T(b)(3) with respect to which S can 
make the election is the excess of S's inclusion in gross income under 
section 1293(a) for the taxable year over the sum of (1) the cash and 
other property distributed to S during FC's tax year out of earnings 
included in income pursuant to section 1293(a), and (2) the earnings 
attributable to stock disposed of during FC's tax year. Because S sold 
10 percent, or 50 shares, of the FC stock that it held during the first 
six months of the year, 10 percent of its share of the earnings for that 
part of the year, which is $2,480x ($24,797x x 10%), is attributable to 
the shares sold. S therefore cannot make the election under section 1294 
to extend the time for payment of its tax liability on that amount. 
Accordingly, S can make the election under section 1294 with respect to 
its tax on $45,004x ($47,484x less $2,480x), which is its pro rata share 
of FC's earnings, reduced by the earnings attributable to the stock 
disposed of during the year.
    Example 2. (i) Facts. The facts are the same as in Example 1 with 
the following exceptions. S did not sell any FC stock during 1987. 
Therefore, because S held 50 percent of the FC stock throughout 1987, 
S's pro rata share of FC's ordinary earnings was $50,000x, no part of 
which was includible in S's income under either section 551 or 951. 
There were no actual distributions of earnings to S in 1988. On December 
31, 1987, S pledged the FC stock as security for a bank loan of 
$75,000x. The pledge is treated as a disposition of the FC stock and 
therefore a distribution of S's share of the undistributed earnings of 
FC up to the amount of the loan principal. S's entire share of the 
undistributed earnings of FC are deemed distributed as a result of the 
pledge of the FC stock. S therefore cannot make the election under 
section 1294 to extend the time for payment of its tax liability on its 
share of FC's earnings for 1987.
    (ii) Deemed distribution. In 1988, FC has ordinary earnings of 
$100,000x but no net capital gain. S's pro rata share of FC's 1988 
ordinary earnings was $50,000x. S's loan remained outstanding throughout 
1988; the highest loan balance during 1988 was $74,000x. Of S's share of 
the ordinary earnings of FC of $50,000x, $24,000x is deemed distributed 
to S. This is the amount by which the highest loan balance for the year 
($74,000x) exceeds the portion of the undistributed earnings of FC 
deemed distributed to S in 1987 by reason of the pledge ($50,000x). S 
may make the election under section 1294 to extend the time for payment 
of its tax liability on $26,000x, which is the amount by which S's 
includible amount for 1988 exceeds the amount deemed distributed to S 
during 1988.

    (c) Time for making the election--(1) In general. An election under 
this Sec. 1.1294-1T may be made for any taxable year in which a 
shareholder reports income pursuant to section 1293. Except as provided 
in paragraph (c)(2), the election shall be made by the due date, as 
extended, of the tax return for the shareholder's taxable year for which 
the election is made.
    (2) Exception. An election under this section may be made within 60 
days of receipt of notification from the QEF of the shareholder's pro 
rata share of the ordinary earnings and net capital gain if notification 
is received after the time for filing the election provided in paragraph 
(c)(1) (and requires the filing of an amended return to report income 
pursuant to section 1293). If the notification reports an increase in 
the shareholder's pro rata share of the earnings previously reported to 
the shareholder by the QEF, the shareholder may make the election under 
this paragraph (c)(2) only with respect to the amount of such increase.
    (d) Manner of making the election--(1) In general. A shareholder 
shall make the election by (i) attaching to its return for the year of 
the election Form 8621 or a statement containing the information and 
representations required by this section and (ii) filing a copy of Form 
8621 or the statement with the Internal Revenue Service Center, P.O. Box 
21086, Philadelphia, Pennsylvania 19114.
    (2) Information to be included in the election statement. If a 
statement is used in lieu of Form 8621, the statement should be 
identified, in a heading, as an election under section 1294 of the Code.

[[Page 603]]

The statement must include the following information and 
representations:
    (i) The name, address, and taxpayer identification number of the 
electing shareholder and the taxable year of the shareholder for which 
the election is being made;
    (ii) The name, address and taxpayer identification number of the QEF 
if provided to the shareholder;
    (iii) A statement that the shareholder is making the election under 
section 1294 of the Code;
    (iv) A schedule containing the following information:
    (A) The ordinary earnings and net capital gain for the current year 
included in the shareholder's income under section 1293;
    (B) The amount of cash and other property distributed by the QEF 
during its taxable year with respect to stock held directly or 
indirectly by the shareholder during that year, identifying the amount 
of such distributions that is paid out of current earnings and profits 
and the amount paid out of each prior year's earnings and profits; and
    (C) The undistributed PFIC earnings tax liability (as defined in 
paragraph (f) of this section) for the taxable year, payment of which is 
being deferred by reason of the election under section 1294;
    (v) The number of shares of stock held in the QEF during the QEF's 
taxable year which gave rise to the section 1293 inclusion and the 
number of such shares transferred, deemed transferred or otherwise 
disposed of by the electing shareholder before the end of the QEF's 
taxable year, and the data of transfer; and
    (vi) The representations of the electing shareholder that--
    (A) No part of the QEF's earnings for the taxable year is includible 
in the electing shareholder's gross income under either section 551 or 
951 of the Code;
    (B) The election is made only with respect to the shareholder's pro 
rata share of the undistributed earnings of the QEF; and
    (C) The electing shareholder, upon termination of the election to 
extend the date for payment, shall pay the undistributed PFIC earnings 
tax liability attributable to those earnings to which the termination 
applies as well as interest on such tax liability pursuant to section 
6601. Payment of this tax and interest must be made by the due date 
(determined without extensions) of the tax return for the taxable year 
in which the termination occurs.
    (e) Termination of the extension. The election to extend the date 
for payment of tax will be terminated in whole or in part upon the 
occurrence of any of the following events:
    (1) The QEF's distribution of earnings to which the section 1294 
extension to pay tax is attributable; the extension will terminate only 
with respect to the tax attributable to the earnings that were 
distributed.
    (2) The electing shareholder's transfer of stock in the QEF (or use 
thereof as security for a loan) with respect to which an election under 
this Sec. 1.1294-1T was made. The election will be terminated with 
respect to the undistributed earnings attributable to the shares of the 
stock transferred. In the case of a pledge of the stock, the election 
will be terminated with respect to undistributed earnings equal to the 
amount of the loan for which the stock is pledged.
    (3) Revocation of the QEF's election as a QEF or cessation of the 
QEF's status as a PFIC. A revocation of the QEF election or cessation of 
PFIC status will result in the complete termination of the extension.
    (4) A loan of property by the QEF directly or indirectly to the 
electing shareholder or related person, or a pledge or guarantee by the 
QEF with respect to a loan made by another party to the electing 
shareholder or related person. The election will be terminated with 
respect to undistributed earnings in an amount equal to the amount of 
the loan, pledge, or guarantee.
    (5) A determination by the District Director pursuant to section 
1294(c)(3) that collection of the tax is in jeopardy. The amount of 
undistributed earnings with respect to which the extension is terminated 
under this paragraph (d)(5) will be left to the discretion of the 
District Director.
    (f) Undistributed PFIC earnings tax liability. The electing 
shareholder's tax liability attributable to the ordinary

[[Page 604]]

earnings and net capital gain included in gross income under section 
1293 shall be the excess of the tax imposed under chapter 1 of the Code 
for the taxable year over the tax that would be imposed for the taxable 
year without regard to the inclusion in income under section 1293 of the 
undistributed earnings as defined in paragraph (b)(3) of this section.

    Example: The facts are the same as in Sec. 1.1294-1T (b)(3), 
Example 1, with the following exceptions. S, a domestic corporation, did 
not dispose of any FC stock in 1987. Therefore, because S held 50 
percent of the FC stock throughout 1987, S's pro rata share of FC's 
ordinary earnings was $50,000x. In addition to $50,000x of ordinary 
earnings from FC, S had $12,500x of domestic source income and $6,000x 
of expenses (other than interest expense) not definitely related to any 
gross income. These expenses are apportioned, pursuant to Sec. 1.861-
8(c)(2), on a pro rata basis between the domestic and foreign source 
income--$1,200x of expenses, or one-fifth, to domestic source income, 
and $4,800x of expenses, or four-fifths, to the section 1293 inclusion. 
FC paid foreign taxes of $25,000x in 1987. Accordingly, S is entitled to 
claim as an indirect foreign tax credit pursuant to section 1293(f) a 
proportionate amount of the foreign taxes paid by FC, which is $12,500x 
($25,000x x $50,000x/$100,000x). S is taxed in the U.S. at the rate of 
34 percent. The amount of tax liability for which S may extend the time 
for payment is determined as follows:

            1987 Tax Liability (With Section 1293 Inclusion)
------------------------------------------------------------------------
                 Source                        U.S.           Foreign
------------------------------------------------------------------------
Income..................................         12,500x               0
Section 1293............................               0         50,000x
Expenses................................         -1,200x         -4,800x
                                         -------------------------------
Taxable income..........................         11,300x         45,200x
                                         ===============================
  Total taxable income..................         56,500x
  U.S. income tax rate..................            x34%
                                         ----------------
  Pre-credit U.S. tax...................         19,210x
  Foreign tax credit....................        -12,500x
                                         ----------------
  1987 Tax Liability....................          6,710x
------------------------------------------------------------------------


           1987 Tax Liability (Without Section 1293 Inclusion)
------------------------------------------------------------------------
                 Source                        U.S.           Foreign
------------------------------------------------------------------------
Income..................................         12,500x               0
Expenses................................         -6,000x
                                         ----------------
Taxable income..........................          6,500x
U.S. tax rate...........................            x34%
                                         ----------------
U.S. Tax................................          2,210x
Foreign tax credit......................               0
                                         ----------------
Hypothetical 1987 Tax Liability.........          2,210x
------------------------------------------------------------------------

    The amount of tax, payment of which S may defer pursuant to section 
1294, is $4,500x ($6,710x less $2,210x).

    (g) Authority to require a bond. Pursuant to the authority granted 
in section 6165 and in the manner provided therein, and subject to 
notification, the District Director may require the electing shareholder 
to furnish a bond to secure payment of the tax, the time for payment of 
which is extended under this section. If the electing shareholder does 
not furnish the bond within 60 days after receiving a request from the 
District Director, the election will be revoked.
    (h) Annual reporting requirement. The electing shareholder must 
attach Form 8621 or a statement to its income tax return for each year 
during which an election under this section is outstanding. The 
statement must contain the following information:
    (1) The total amount of undistributed earnings as of the end of the 
taxable year to which the outstanding elections apply;
    (2) The total amount of the undistributed PFIC earnings tax 
liability and accrued interest charge as of the end of the year;
    (3) The total amount of distributions received during the taxable 
year; and
    (4) A description of the occurrence of any other termination event 
described in paragraph (e) of this section that occurred during the 
taxable year.

The electing shareholder also shall file by the due date, as extended, 
for its return a copy of Form 8621 or the statement with the 
Philadelphia Service Center, P.O. Box 21086, Philadelphia, Pennsylvania 
19114.

[T.D. 8178, 53 FR 6773, Mar. 2, 1988; 53 FR 11731, Apr. 8, 1988]



Sec. 1.1295-0  Table of contents.

    This section contains a listing of the headings for Sec. Sec. 
1.1295-1 and 1.1295-3.

[[Page 605]]

                Sec. 1.1295-1 Qualified electing funds.

    (a) In general. [Reserved]
    (b) Application of section 1295 election. [Reserved]
    (1) Election personal to shareholder. [Reserved]
    (2) Election applicable to specific corporation only.
    (i) In general. [Reserved]
    (ii) Stock of QEF received in a nonrecognition transfer. [Reserved]
    (iii) Exception for options.
    (3) Application of general rules to stock held by a pass through 
entity.
    (i) Stock subject to a section 1295 election transferred to a pass 
through entity.
    (ii) Limitation on application of pass through entity's section 1295 
election.
    (iii) Effect of partnership termination on section 1295 election.
    (iv) Characterization of stock held through a pass through entity.
    (4) Application of general rules to a taxpayer filing a joint return 
under section 6013.
    (c) Effect of section 1295 election.
    (1) In general.
    (2) Years to which section 1295 election applies.
    (i) In general.
    (ii) Effect of PFIC status on election.
    (iii) Effect on election of complete termination of a shareholder's 
interest in the PFIC.
    (iv) Effect on section 1295 election of transfer of stock to a 
domestic pass through entity.
    (v) Examples.
    (d) Who may make a section 1295 election.
    (1) General rule.
    (2) Application of general rule to pass through entities.
    (i) Partnerships.
    (A) Domestic partnership.
    (B) Foreign partnership.
    (ii) S corporation.
    (iii) Trust or estate.
    (A) Domestic trust or estate.
    (1) Nongrantor trust or estate.
    (2) Grantor trust.
    (B) Foreign trust or estate.
    (1) Nongrantor trust or estate.
    (2) Grantor trust.
    (iv) Indirect ownership of the pass through entity or the PFIC.
    (3) Indirect ownership of a PFIC through other PFICs.
    (4) Member of consolidated return group as shareholder.
    (5) Option holder.
    (6) Exempt organization.
    (e) Time for making a section 1295 election.
    (1) General rule.
    (2) Examples.
    (f) Manner of making a section 1295 election and the annual election 
requirements of the shareholder.
    (1) Manner of making the election.
    (2) Annual election requirements.
    (i) In general.
    (ii) Retention of documents.
    (g) Annual election requirements of the PFIC or intermediary.
    (1) PFIC Annual Information Statement.
    (2) Alternative documentation.
    (3) Annual Intermediary Statement.
    (4) Combined statements.
    (i) PFIC Annual Information Statement.
    (ii) Annual Intermediary Statement.
    (h) Transition rules.
    (i) Invalidation, termination or revocation of section 1295 
election.
    (1) Invalidation or termination of election at the discretion of the 
Commissioner.
    (i) In general.
    (ii) Deferral of section 1293 inclusion.
    (iii) When effective.
    (2) Shareholder revocation.
    (i) In general.
    (ii) Time for and manner of requesting consent to revoke.
    (A) Time.
    (B) Manner of making request.
    (iii) When effective.
    (3) Automatic termination.
    (4) Effect of invalidation, termination or revocation.
    (5) Election after invalidation, termination or revocation.
    (i) In general.
    (ii) Special rule.
    (j) Definitions.
    (k) Effective dates.

                  Sec. 1.1295-3 Retroactive elections.

    (a) In general.
    (b) General rule.
    (c) Protective Statement.
    (1) In general.
    (2) Reasonable belief statement.
    (3) Who executes and files the Protective Statement.
    (4) Waiver of the periods of limitations.
    (i) Time for and manner of extending periods of limitations.
    (A) In general.
    (B) Application of general rule to domestic partnerships.
    (1) In general
    (2) Special rules.
    (i) Addition of partner to non-TEFRA partnership.
    (ii) Change in status from non-TEFRA partnership to TEFRA 
partnership.
    (C) Application of general rule to domestic nongrantor trusts and 
domestic estates.
    (D) Application of general rule to S corporations.
    (E) Effect on waiver of complete termination of a pass through 
entity or pass through entity's business.
    (F) Application of general rule to foreign partnerships, foreign 
trusts, domestic or foreign grantor trusts, and foreign estates.

[[Page 606]]

    (ii) Terms of waiver.
    (A) Scope of waiver.
    (B) Period of waiver.
    (5) Time for and manner of filing a Protective Statement.
    (i) In general.
    (ii) Special rule for taxable years ended before January 2, 1998
    (6) Applicability of the Protective Statement.
    (i) In general.
    (ii) Invalidity of the Protective Statement.
    (7) Retention of Protective Statement and information demonstrating 
reasonable belief.
    (d) Reasonable belief.
    (1) In general.
    (2) Knowledge of law required.
    (e) Special rules for qualified shareholders.
    (1) In general.
    (2) Qualified shareholder.
    (3) Exceptions.
    (f) Special consent.
    (1) In general.
    (2) Reasonable reliance on a qualified tax professional.
    (i) In general.
    (ii) Shareholder deemed to have not reasonably relied on a qualified 
tax professional.
    (3) Prejudice to the interests of the United States government.
    (i) General rule.
    (ii) Elimination of prejudice to the interests of the United States 
government.
    (4) Procedural requirements.
    (i) Filing instructions.
    (ii) Affidavit from shareholder.
    (iii) Affidavits from other persons.
    (iv) Other information.
    (v) Notification of Internal Revenue Service.
    (vi) Who requests special consent under this paragraph (f) and who 
enters into a closing agreement.
    (g) Time for and manner of making a retroactive election.
    (1) Time for making a retroactive election.
    (i) In general.
    (ii) Transition rule.
    (iii) Ownership not required at time retroactive election is made.
    (2) Manner of making a retroactive election.
    (3) Who makes the retroactive election.
    (4) Other elections.
    (i) Section 1291(d)(2) election.
    (ii) Section 1294 election.
    (h) Effective date.

[T.D. 8750, 63 FR 14, Jan. 2, 1998, as amended by T.D. 8870, 65 FR 5779, 
Feb. 7, 2000; 65 FR 16319, Mar. 28, 2000; T.D. 9123, 69 FR 24073, May 3, 
2004]



Sec. 1.1295-1  Qualified electing funds.

    (a) In general. [Reserved]
    (b) Application of section 1295 election. [Reserved]
    (1) Election personal to shareholder. [Reserved]
    (2) Election applicable to specific corporation only--
    (i) In general. [Reserved]
    (ii) Stock of QEF received in a nonrecognition transfer. [Reserved]
    (iii) Exception for options. A shareholder's section 1295 election 
does not apply to any option to buy stock of the PFIC.
    (3) Application of general rules to stock held by a pass through 
entity--(i) Stock subject to a section 1295 election transferred to a 
pass through entity. A shareholder's section 1295 election will not 
apply to a domestic pass through entity to which the shareholder 
transfers stock subject to section 1295 election, or to any other U.S. 
person that is an interest holder or beneficiary of the domestic pass 
through entity. However, as provided in paragraph (c)(2)(iv) of this 
section (relating to a transfer to a domestic pass through entity of 
stock subject to a section 1295 election), a shareholder that transfers 
stock subject to a section 1295 election to a pass through entity will 
continue to be subject to the section 1295 election with respect to the 
stock indirectly owned through the pass through entity and any other 
stock of that PFIC owned by the shareholder.
    (ii) Limitation on application of pass through entity's section 1295 
election. Except as provided in paragraph (c)(2)(iv) of this section, a 
section 1295 election made by a domestic pass through entity does not 
apply to other stock of the PFIC held directly or indirectly by the 
interest holder or beneficiary.
    (iii) Effect of partnership termination on section 1295 election. 
Termination of a section 1295 election made by a domestic partnership by 
reason of the termination of the partnership under section 708(b) will 
not terminate the section 1295 election with respect to partners of the 
terminated partnership that are partners of the new partnership. Except 
as otherwise provided, the stock of the PFIC of which the new partners 
are indirect shareholders will be treated as stock of a QEF only if the

[[Page 607]]

new domestic partnership makes a section 1295 election with respect to 
that stock.
    (iv) Characterization of stock held through a pass through entity. 
Stock of a PFIC held through a pass through entity will be treated as 
stock of a pedigreed QEF with respect to an interest holder or 
beneficiary only if--
    (A) In the case of PFIC stock acquired (other than in a transaction 
in which gain is not recognized pursuant to regulations under section 
1291(f) with respect to that stock) and held by a domestic pass through 
entity, the pass through entity makes the section 1295 election and the 
PFIC has been a QEF with respect to the pass through entity for all 
taxable years that are included wholly or partly in the pass through 
entity's holding period of the PFIC stock and during which the foreign 
corporation was a PFIC within the meaning of Sec. 1.1291-9(j)(1); or
    (B) In the case of PFIC stock transferred by an interest holder or 
beneficiary to a pass through entity in a transaction in which gain is 
not fully recognized (including pursuant to regulations under section 
1291(f)), the pass through entity makes the section 1295 election with 
respect to the PFIC stock transferred for the taxable year in which the 
transfer was made. The PFIC stock transferred will be treated as stock 
of a pedigreed QEF by the pass through entity, however, only if that 
stock was treated as stock of a pedigreed QEF with respect to the 
interest holder or beneficiary at the time of the transfer, and the PFIC 
has been a QEF with respect to the pass through entity for all taxable 
years of the PFIC that are included wholly or partly in the pass through 
entity's holding period of the PFIC stock during which the foreign 
corporation was a PFIC within the meaning of Sec. 1.1291-9(j).
    (v) Characterization of stock distributed by a partnership. In the 
case of PFIC stock distributed by a partnership to a partner in a 
transaction in which gain is not fully recognized, the PFIC stock will 
be treated as stock of a pedigreed QEF by the partners only if that 
stock was treated as stock of a pedigreed QEF with respect to the 
partnership for all taxable years of the PFIC that are included wholly 
or partly in the partnership's holding period of the PFIC stock during 
which the foreign corporation was a PFIC within the meaning of Sec. 
1.1291-9(j), and the partner has a section 1295 election in effect with 
respect to the distributed PFIC stock for the partner's taxable year in 
which the distribution was made. If the partner does not have a section 
1295 election in effect, the stock shall be treated as stock in a 
section 1291 fund. See paragraph (k) of this section for special 
applicability date of paragraph (b)(3)(v) of this section.
    (4) Application of general rules to a taxpayer filing a joint return 
under section 6013. A section 1295 election made by a taxpayer in a 
joint return, within the meaning of section 6013, will be treated as 
also made by the spouse that joins in the filing of that return. See 
paragraph (k) of this section for special applicability date of 
paragraph (b)(4) of this section.
    (c) Effect of section 1295 election--(1) In general. Except as 
otherwise provided in this paragraph (c), the effect of a shareholder's 
section 1295 election is to treat the foreign corporation as a QEF with 
respect to the shareholder for each taxable year of the foreign 
corporation ending with or within a taxable year of the shareholder for 
which the election is effective. A section 1295 election is effective 
for the shareholder's election year and all subsequent taxable years of 
the shareholder unless invalidated, terminated or revoked as provided in 
paragraph (i) of this section. The terms shareholder and shareholder's 
election year are defined in paragraph (j) of this section.
    (2) Years to which section 1295 election applies--(i) In general. 
Except as otherwise provided in this paragraph (c), a foreign 
corporation with respect to which a section 1295 election is made will 
be treated as a QEF for its taxable year ending with or within the 
shareholder's election year and all subsequent taxable years of the 
foreign corporation that are included wholly or partly in the 
shareholder's holding period (or periods) of stock of the foreign 
corporation.
    (ii) Effect of PFIC status on election. A foreign corporation will 
not be treated as a QEF for any taxable year of the foreign corporation 
that the foreign

[[Page 608]]

corporation is not a PFIC under section 1297(a) and is not treated as a 
PFIC under section 1298(b)(1). Therefore, a shareholder shall not be 
required to include pursuant to section 1293 the shareholder's pro rata 
share of ordinary earnings and net capital gain for such year and shall 
not be required to satisfy the section 1295 annual reporting requirement 
of paragraph (f)(2) of this section for such year. Cessation of a 
foreign corporation's status as a PFIC will not, however, terminate a 
section 1295 election. Thus, if the foreign corporation is a PFIC in any 
taxable year after a year in which it is not treated as a PFIC, the 
shareholder's original election under section 1295 continues to apply 
and the shareholder must take into account its pro rata share of 
ordinary earnings and net capital gain for such year and comply with the 
section 1295 annual reporting requirement.
    (iii) Effect on election of complete termination of a shareholder's 
interest in the PFIC. Complete termination of a shareholder's direct and 
indirect interest in stock of a foreign corporation will not terminate a 
shareholder's section 1295 election with respect to the foreign 
corporation. Therefore, if a shareholder reacquires a direct or indirect 
interest in any stock of the foreign corporation, that stock is 
considered to be stock for which an election under section 1295 has been 
made and the shareholder is subject to the income inclusion and 
reporting rules required of a shareholder of a QEF.
    (iv) Effect on section 1295 election of transfer of stock to a 
domestic pass through entity. The transfer of a shareholder's direct or 
indirect interest in stock of a foreign corporation to a domestic pass 
through entity (as defined in paragraph (j) of this section) will not 
terminate the shareholder's section 1295 election with respect to the 
foreign corporation, whether or not the pass through entity makes a 
section 1295 election. For the rules concerning the application of 
section 1293 to stock transferred to a domestic pass through entity, see 
Sec. 1.1293-1(c).
    (v) Examples. The following examples illustrate the rules of this 
paragraph (c)(2).

    Example 1. In 1998, C, a U.S. person, purchased stock of FC, a 
foreign corporation that is a PFIC. Both FC and C are calendar year 
taxpayers. C made a timely section 1295 election to treat FC as a QEF in 
C's 1998 return, and FC was therefore a pedigreed QEF. C included its 
shares of FC's 1998 ordinary earnings and net capital gain in C's 1998 
Income and did not make a section 1294 election to defer the time for 
payment of tax on that income. In 1999, 2000, and 2001, FC did not 
satisfy either the income or asset test of section 1296(a), and 
therefore was neither a PFIC nor a QEF. C therefore did not have to 
include its pro rata shares of the ordinary earnings and net capital 
gain of FC pursuant to section 1293, or satisfy the section 1295 annual 
reporting requirements for any of those years. FC qualified as a PFIC 
again in 2002. Because C had made a section 1295 election in 1998, and 
the election had not been invalidated, terminated, or revoked, within 
the meaning of paragraph (i) of this section, C's section 1295 election 
remains in effect for 2002. C therefore is subject in 2002 to the income 
inclusion and reporting rules required of shareholders of QEFs.
    Example 2. The facts are the same as in Example (1) except that FC 
did not lose PFIC status in any year and C sold all the FC stock in 1999 
and repurchased stock of FC in 2002. Because C had made a section 1295 
election in 1998 with respect to stock of FC, and the election had not 
been invalidated, terminated, or revoked, within the meaning of 
paragraph (i) of this section, C's section 1295 election remained in 
effect and therefore applies to the stock of FC purchased by C in 2002. 
C therefore is subject in 2002 to the income inclusion and reporting 
rules required of shareholders of QEFs.
    Example 3. The facts are the same as in Example (2) except that C is 
a partner in domestic partnership P and C transferred its FC stock to P 
in 1999. Because C had made a section 1295 election in 1998 with respect 
to stock of FC, and the election had not been invalidated, terminated, 
or revoked, within the meaning of paragraph (i) of this section, C's 
section 1295 election remains in effect with respect to its indirect 
interest in the stock of FC. If P does not make the section 1295 
election with respect to the FC stock, C will continue to be subject, in 
C's capacity as an indirect shareholder of FC, to the income inclusion 
and reporting rules required of shareholders of QEFs in 1999 and 
subsequent years for that portion of the FC stock C is treated as owning 
indirectly through the partnership. If P makes the section 1295 
election, C will take into account its pro rata shares of the ordinary 
earnings and net capital gain of the FC under the rules applicable to 
inclusions of income from P.


[[Page 609]]


    (d) Who may make a section 1295 election--(1) General rule. Except 
as otherwise provided in this paragraph (d), any U.S. person that is a 
shareholder (as defined in paragraph (j) of this section) of a PFIC, 
including a shareholder that holds stock of a PFIC in bearer form, may 
make a section 1295 election with respect to that PFIC. The shareholder 
need not own directly or indirectly any stock of the PFIC at the time 
the shareholder makes the section 1295 election provided the shareholder 
is a shareholder of the PFIC during the taxable year of the PFIC that 
ends with or within the taxable year of the shareholder for which the 
section 1295 election is made. Except in the case of a shareholder that 
is an exempt organization that may not make a section 1295 election, as 
provided in paragraph (d)(6) of this section, in a chain of ownership 
only the first U.S. person that is a shareholder of the PFIC may make 
the section 1295 election.
    (2) Application of general rule to pass through entities--(i) 
Partnerships--(A) Domestic partnership. A domestic partnership that 
holds an interest in stock of a PFIC makes the section 1295 election 
with request to that PFIC. The partnership election applies only to the 
stock of the PFIC held directly or indirectly by the partnership and not 
to any other stock held directly or indirectly by any partner. As 
provided in Sec. 1.1293-1(c)(1), shareholders owning stock of a QEF by 
reason of an interest in the partnership take into account the section 
1293 inclusions with respect to the QEF shares owned by the partnership 
under the rules applicable to inclusions of income from the partnership.
    (B) Foreign partnership. A U.S. person that holds an interest in a 
foreign partnership that, in turn, holds an interest in stock of a PFIC 
makes the section 1295 election with respect to that PFIC. A partner's 
election applies to the stock of the PFIC owned directly or indirectly 
by the foreign partnership and to any other stock of the PFIC owned by 
that partner. A section 1295 election by a partner applies only to that 
partner.
    (ii) S corporation. An S corporation that holds an interest in stock 
of a PFIC makes the section 1295 election with respect to that PFIC. The 
S corporation election applies only to the stock of the PFIC held 
directly or indirectly by the S corporation and not to any other stock 
held directly or indirectly by any S corporation shareholder. As 
provided in Sec. 1.1293-1(c)(1), shareholders owning stock of a QEF by 
reason of an interest in the S corporation take into account the section 
1293 inclusions with respect to the QEF shares under the rules 
applicable to inclusions of income from the S corporation.
    (iii) Trust or estate--(A) Domestic trust or estate--(1) Nongrantor 
trust or estate. A domestic nongrantor trust or a domestic estate that 
holds an interest in stock of a PFIC makes the section 1295 election 
with respect to that PFIC. The trust or estate's election applies only 
to the stock of the PFIC held directly or indirectly by the trust or 
estate and not to any other stock held directly or indirectly by any 
beneficiary. As provided in Sec. 1.1293-1(c)(1), shareholders owning 
stock of a QEF by reason of an interest in a domestic trust or estate 
take into account the section 1293 inclusions with respect to the QEF 
shares under the rules applicable to inclusions of income from the trust 
or estate.
    (2) Grantor trust. A U.S. person that is treated under sections 671 
through 678 as the owner of the portion of a domestic trust that owns an 
interest in stock of a PFIC makes the section 1295 election with respect 
to that PFIC. If that person ceases to be treated as the owner of the 
portion of the trust that owns an interest in the PFIC stock and is a 
beneficiary of the trust, that person's section 1295 election will 
continue to apply to the PFIC stock indirectly owned by that person 
under the rules of paragraph (c)(2)(iv) of this section as if the person 
had transferred its interest in the PFIC stock to the trust. However, 
the stock will be treated as stock of a PFIC that is not a QEF with 
respect to other beneficiaries of the trust, unless the trust makes the 
section 1295 election as provided in paragraph (d)(2)(iii)(A)(1) of this 
section.
    (B) Foreign trust or estate--(1) Nongrantor trust or estate. A U.S. 
person that is a beneficiary of a foreign nongrantor trust or estate 
that holds an

[[Page 610]]

interest in stock of a PFIC makes the section 1295 election with respect 
to that PFIC. A beneficiary's section 1295 election applies to all the 
PFIC stock owned directly and indirectly by the trust or estate and to 
the other PFIC stock owned directly or indirectly by the beneficiary. A 
section 1295 election by a beneficiary applies only to that beneficiary.
    (2) Grantor trust. A U.S. person that is treated under sections 671 
through 679 as the owner of the portion of a foreign trust that owns an 
interest in stock of a PFIC stock makes the section 1295 election with 
respect to that PFIC. If that person ceases to be treated as the owner 
of the portion of the trust that owns an interest in the PFIC stock and 
is a beneficiary of the trust, that person's section 1295 election will 
continue to apply to the PFIC stock indirectly owned by that person 
under the rules of paragraph (c)(2)(iv) of this section. However, as 
provided in paragraph (d)(2)(iii)(B)(1) of this section, any other 
shareholder that is a beneficiary of the trust and that wishes to treat 
the PFIC as a QEF must make the section 1295 election.
    (iv) Indirect ownership of the pass through entity or the PFIC. The 
rules of this paragraph (d)(2) apply whether or not the shareholder 
holds its interest in the pass through entity directly or indirectly and 
whether or not the pass through entity holds its interest in the PFIC 
directly or indirectly.
    (3) Indirect ownership of a PFIC through other PFICs--(i) In 
general. An election under section 1295 shall apply only to the foreign 
corporation for which an election is made. Therefore, if a shareholder 
makes an election under section 1295 to treat a PFIC as a QEF, that 
election applies only to stock in that foreign corporation and not to 
the stock in any other corporation which the shareholder is treated as 
owning by virtue of its ownership of stock in the QEF.
    (ii) Example. The following example illustrates the rules of 
paragraph (d)(3)(i) of this section:

    Example. In 1988, T, a U.S. person, purchased stock of FC, a foreign 
corporation that is a PFIC. FC also owns the stock of SC, a foreign 
corporation that is a PFIC. T makes an election under section 1295 to 
treat FC as a QEF. T's section 1295 election applies only to the stock T 
owns in FC, and does not apply to the stock T indirectly owns in SC.

    (4) Member of consolidated return group as shareholder. Pursuant to 
Sec. 1.1502-77(a), the common parent of an affiliated group of 
corporations that join in filing a consolidated income tax return makes 
a section 1295 election for all members of the affiliated group. An 
election by a common parent will be effective for all members of the 
affiliated group with respect to interests in PFIC stock held at the 
time the election is made or at any time thereafter. A separate election 
must be made by the common parent for each PFIC of which a member of the 
affiliated group is a shareholder.
    (5) Option holder. A holder of an option to acquire stock of a PFIC 
may not make a section 1295 election that will apply to the option or to 
the stock subject to the option.
    (6) Exempt organization. A tax-exempt organization that is not 
taxable under section 1291, pursuant to Sec. 1.1291-1(e), with respect 
to a PFIC may not make a section 1295 election with respect to that 
PFIC. In addition, such an exempt organization will not be subject to 
any section 1295 election made by a domestic pass through entity.
    (e) Time for making a section 1295 election--(1) In general. Except 
as provided in Sec. 1.1295-3, a shareholder making the section 1295 
election must make the election on or before the due date, as extended 
under section 6081 (election due date), for filing the shareholder's 
income tax return for the first taxable year to which the election will 
apply. The section 1295 election must be made in the original return for 
that year, or in an amended return, provided the amended return is filed 
on or before the election due date.
    (2) Examples. The following examples illustrate the rules of 
paragraph (e)(1) of this section:

    Example 1. In 1998, C, a domestic corporation, purchased stock of 
FC, a foreign corporation that is a PFIC. Both C and FC are calendar 
year taxpayers. C wishes to make the section 1295 election for its 
taxable year ended December 31, 1998. The section 1295 election must be 
made on or before March 15, 1999, the due date of C's 1998 income tax 
return as provided by section 6072(b). On March 14, 1999, C files a 
request for a three-month

[[Page 611]]

extension of time to file its 1998 income tax return under section 
6081(b). C's time to file its 1998 income tax return and to make the 
section 1295 election is thereby extended to June 15, 1999.
    Example 2. The facts are the same as in Example 1 except that on May 
1, 1999, C filed its 1998 income tax return and failed to include the 
section 1295 election. C may file an amended income tax return for 1998 
to make the section 1295 election provided the amended return is filed 
on or before the extended due date of June 15, 1999.

    (f) Manner of making a section 1295 election and the annual election 
requirements of the shareholder--(1) Manner of making the election. A 
shareholder must make a section 1295 election by--
    (i) Completing Form 8621 in the manner required by that form and 
this section for making the section 1295 election;
    (ii) Attaching Form 8621 to its Federal income tax return filed by 
the election due date for the shareholder's election year; and
    (iii) Receiving and reflecting in Form 8621 the information provided 
in the PFIC Annual Information Statement described in paragraph (g)(1) 
of this section, the Annual Intermediary Statement described in 
paragraph (g)(3) of this section, or the applicable combined statement 
described in paragraph (g)(4) of this section, for the taxable year of 
the PFIC ending with or within the taxable year for which Form 8621 is 
being filed. If the PFIC Annual Information Statement contains a 
statement described in paragraph (g)(1)(ii)(C) of this section, the 
shareholder must attach a statement to Form 8621 that indicates that the 
shareholder rather than the PFIC calculated the PFIC's ordinary earnings 
and net capital gain.
    (2) Annual election requirements--(i) In general. A shareholder that 
makes a section 1295 election with respect to a PFIC held directly or 
indirectly, for each taxable year to which the section 1295 election 
applies, must--
    (A) Complete Form 8621 in the manner required by that form and this 
section;
    (B) Attach Form 8621 to its Federal income tax return filed by the 
due date of the return, as extended; and
    (C) Receive and reflect in Form 8621 the PFIC Annual Information 
Statement described in paragraph (g)(1) of this section, the Annual 
Intermediary Statement described in paragraph (g)(3) of this section, or 
the applicable combined statement described in paragraph (g)(4) of this 
section, for the MTtaxable year of the PFIC ending with or within the 
taxable year for which Form 8621 is being filed. If the PFIC Annual 
Information Statement contains a statement described in paragraph 
(g)(1)(ii)(C) of this section, the shareholder must attach a statement 
to its Form 8621 that the shareholder rather than the PFIC provided the 
calculations of the PFIC's ordinary earnings and net capital gain.
    (ii) Retention of documents. For all taxable years subject to the 
section 1295 election, the shareholder must retain copies of all Forms 
8621, with their attachments, and PFIC Annual Information Statements or 
Annual Intermediary Statements. Failure to produce those documents at 
the request of the Commissioner in connection with an examination may 
result in invalidation or termination of the shareholder's section 1295 
election.
    (3) Effective date. See paragraph (k) of this section for special 
applicability date of paragraph (f) of this section.
    (g) Annual election requirements of the PFIC or intermediary--(1) 
PFIC Annual Information Statement. For each year of the PFIC ending in a 
taxable year of a shareholder to which the shareholder's section 1295 
election applies, the PFIC must provide the shareholder with a PFIC 
Annual Information Statement. The PFIC Annual Information Statement is a 
statement of the PFIC, signed by the PFIC or an authorized 
representative of the PFIC, that contains the following information and 
representations--
    (i) The first and last days of the taxable year of the PFIC to which 
the PFIC Annual Information Statement applies;
    (ii) Either--
    (A) The shareholder's pro rata shares of the ordinary earnings and 
net capital gain (as defined in Sec. 1.1295-1(a)(2)) of the PFIC for 
the taxable year indicated in paragraph (g)(1)(i) of this section; or
    (B) Sufficient information to enable the shareholder to calculate 
its pro

[[Page 612]]

rata shares of the PFIC's ordinary earnings and net capital gain, for 
that taxable year; or
    (C) A statement that the foreign corporation has permitted the 
shareholder to examine the books of account, records, and other 
documents of the foreign corporation for the shareholder to calculate 
the amounts of the PFIC's ordinary earnings and the net capital gain 
according to Federal income tax accounting principles and to calculate 
the shareholder's pro rata shares of the PFIC's ordinary earnings and 
net capital gain;
    (iii) The amount of cash and the fair market value of other property 
distributed or deemed distributed to the shareholder during the taxable 
year of the PFIC to which the PFIC Annual Information Statement 
pertains; and
    (iv) Either--
    (A) A statement that the PFIC will permit the shareholder to inspect 
and copy the PFIC's permanent books of account, records, and such other 
documents as may be maintained by the PFIC to establish that the PFIC's 
ordinary earnings and net capital gain are computed in accordance with 
U.S. income tax principles, and to verify these amounts and the 
shareholder's pro rata shares thereof; or
    (B) In lieu of the statement required in paragraph (g)(1)(iv)(A) of 
this section, a description of the alternative documentation 
requirements approved by the Commissioner, with a copy of the private 
letter ruling and the closing agreement entered into by the Commissioner 
and the PFIC pursuant to paragraph (g)(2) of this section.
    (2) Alternative documentation. In rare and unusual circumstances, 
the Commissioner will consider alternative documentation requirements 
necessary to verify the ordinary earnings and net capital gain of a PFIC 
other than the documentation requirements described in paragraph 
(g)(1)(iv)(A) of this section. Alternative documentation requirements 
will be allowed only pursuant to a private letter ruling and a closing 
agreement entered into by the Commissioner and the PFIC describing an 
alternative method of verifying the PFIC's ordinary earnings and net 
capital gain. If the PFIC has not obtained a private letter ruling from 
the Commissioner approving an alternative method of verifying the PFIC's 
ordinary earnings and net capital gain by the time a shareholder is 
required to make a section 1295 election, the shareholder may not use an 
alternative method for that taxable year.
    (3) Annual Intermediary Statement. In the case of a U.S. person that 
is an indirect shareholder of a PFIC that is owned through an 
intermediary, as defined in paragraph (j) of this section, an Annual 
Intermediary Statement issued by an intermediary containing the 
information described in paragraph (g)(1) of this section and reporting 
the indirect shareholder's pro rata share of the ordinary earnings and 
net capital gain of the QEF as described in paragraph (g)(1)(ii)(A) of 
this section, may be provided to the indirect shareholder in lieu of the 
PFIC Annual Information Statement if the following conditions are 
satisfied--
    (i) The intermediary receives a copy of the PFIC Annual Information 
Statement or the intermediary receives an annual intermediary statement 
from another intermediary which contains a statement that the other 
intermediary has received a copy of the PFIC Annual Information 
Statement and represents that the conditions of paragraphs (g)(3)(ii) 
and (g)(3)(iii) of this section are met;
    (ii) The representations and information contained in the Annual 
Intermediary Statement reflect the representations and information 
contained in the PFIC Annual Information Statement; and
    (iii) The PFIC Annual Information Statement issued to the 
intermediary contains either the representation set forth in paragraph 
(g)(1)(iv)(A) of this section, or, if alternative documentation 
requirements were approved by the Commissioner pursuant to paragraph 
(g)(2) of this section, a copy of the private letter ruling and closing 
agreement between the Commissioner and the PFIC, agreeing to an 
alternative method of verifying PFIC ordinary earnings and net capital 
gain as described in paragraph (g)(2) of this section;
    (4) Combined statements--(i) PFIC Annual Information Statement. A 
PFIC that owns directly or indirectly any stock

[[Page 613]]

of one or more PFICs with respect to which a shareholder may make the 
section 1295 election may prepare a PFIC Annual Information Statement 
that combines with its own information and representations the 
information and representations of all the PFICs. The PFIC may use any 
format for a combined PFIC Annual Information Statement provided the 
required information and representations are separately stated and 
identified with the respective corporations.
    (ii) Annual Intermediary Statement. An intermediary described in 
paragraph (g)(3) of this section that owns directly or indirectly stock 
of one or more PFICs with respect to which an indirect shareholder may 
make the section 1295 election may prepare an Annual Intermediary 
Statement that combines with its own information and representations the 
information and representations with respect to all the PFICs. The 
intermediary may use any format for a combined Annual Intermediary 
Statement provided the required information and representations are 
separately stated and identified with the intermediary and the 
respective corporations.
    (5) Effective date. See paragraph (k) of this section for special 
applicability date of paragraph (g) of this section.
    (h) Transition rules. Taxpayers may rely on Notice 88-125 (1988-2 
C.B. 535) (see Sec. 601.601(d)(2) of this chapter), for rules on making 
and maintaining elections for shareholder election years (as defined in 
paragraph (j) of this section) beginning after December 31, 1986, and 
before January 1, 1998. Elections made under Notice 88-125 must be 
maintained as provided in Sec. 1.1295-1 for taxable years beginning 
after December 31, 1997. A section 1295 election made prior to February 
2, 1998 that was intended to be effective for the taxable year of the 
PFIC that began during the shareholder's election year will be effective 
for that taxable year of the foreign corporation provided that it is 
clear from all the facts and circumstances that the shareholder intended 
the election to be effective for that taxable year of the foreign 
corporation.
    (i) Invalidation, termination, or revocation of section 1295 
election--(1) Invalidation or termination of election at the discretion 
of the Commissioner--(i) In general. The Commissioner, in the 
Commissioner's discretion, may invalidate or terminate a section 1295 
election applicable to a shareholder if the shareholder, the PFIC, or 
any intermediary fails to satisfy the requirements for making a section 
1295 election or the annual election requirements of this section to 
which the shareholder, PFIC, or intermediary is subject, including the 
requirement to provide, on request, copies of the books and records of 
the PFIC or other documentation substantiating the ordinary earnings and 
net capital gain of the PFIC.
    (ii) Deferral of section 1293 inclusion. The Commissioner may 
invalidate any pass through entity section 1295 election with respect to 
an interest holder or beneficiary if the section 1293 inclusion with 
respect to that interest holder or beneficiary is not included in the 
gross income of either the pass through entity, an intermediate pass 
through entity, or the interest holder or beneficiary within two years 
of the end of the PFIC's taxable year due to nonconforming taxable years 
of the interest holder and the pass through entity or any intermediate 
pass through entity.
    (iii) When effective. Termination of a shareholder's section 1295 
election will be effective for the taxable year of the PFIC determined 
by the Commissioner in the Commissioner's discretion. An invalidation of 
a shareholder's section 1295 election will be effective for the first 
taxable year to which the section 1295 election applied, and the 
shareholder whose election is invalidated will be treated as if the 
section 1295 election was never made.
    (2) Shareholder revocation--(i) In general. In the Commissioner's 
discretion, upon a finding of a substantial change in circumstances, the 
Commissioner may consent to a shareholder's request to revoke a section 
1295 election. Request for revocation must be made by the shareholder 
that made the election and at the time and in the manner provided in 
paragraph (i)(2)(ii) of this section.
    (ii) Time for and manner of requesting consent to revoke--(A) Time. 
The shareholder must request consent to revoke the section 1295 election 
no later than

[[Page 614]]

12 calendar months after the discovery of the substantial change of 
circumstances that forms the basis for the shareholder's request to 
revoke the section 1295 election.
    (B) Manner of making request. A shareholder requests consent to 
revoke a section 1295 election by filing a ruling request with the 
Office of the Associate Chief Counsel (International). The ruling 
request must satisfy the requirements, including payment of the user 
fee, for filing ruling requests with that office.
    (iii) When effective. Unless otherwise determined by the 
Commissioner, revocation of a section 1295 election will be effective 
for the first taxable year of the PFIC beginning after the date the 
Commissioner consents to the revocation.
    (3) Automatic termination. If a United States person, or the United 
States shareholder on behalf of a controlled foreign corporation, makes 
an election pursuant to section 1296 and the regulations thereunder with 
respect to PFIC stock for which a QEF election is in effect, or marks to 
market such stock under another provision of chapter 1 of the Internal 
Revenue Code, the QEF election is automatically terminated with respect 
to such stock that is marked to market under section 1296 or another 
provision of chapter 1 of the Internal Revenue Code. Such termination 
shall be effective on the last day of the shareholder's taxable year 
preceding the first taxable year for which the section 1296 election is 
in effect or such stock is marked to market under another provision of 
chapter 1 of the Internal Revenue Code.

    Example. Corp Y, a domestic corporation, owns directly 100 shares of 
marketable stock in foreign corporation FX, a PFIC. Corp Y also owns a 
50 percent interest in FP, a foreign partnership that owns 200 shares of 
FX stock. Accordingly, under section 1298(a)(3) and Sec. 1.1296-
1(e)(1), Corp Y is treated as indirectly owning 100 shares of FX stock. 
Corp Y also owns 100 percent of the stock of FZ, a foreign corporation 
that is not a PFIC. FZ owns 100 shares of FX stock, and therefore under 
section 1298(a)(2)(A), Corp Y is treated as owning the 100 shares of FX 
stock owned by FZ. For taxable year 2005, Corp Y has a QEF election in 
effect with respect to all 300 shares of FX stock that it owns directly 
or indirectly. See generally Sec. 1.1295-1(c)(1). For taxable year 
2006, Corp Y makes a timely election pursuant to section 1296 and the 
regulations thereunder. For purposes of section 1296, Corp Y is treated 
as owning stock held indirectly through a partnership, but not through a 
foreign corporation. Section 1296(g); Sec. 1.1296-1(e)(1). Accordingly, 
Corp Y's section 1296 election covers the 100 shares it owns directly 
and the 100 shares it owns indirectly through FP, but not the 100 shares 
owned by FZ. With respect to the first 200 shares, Corp Y's QEF election 
is automatically terminated effective December 31, 2005. With respect to 
the 100 shares Corp Y owns through foreign FZ, Corp Y's QEF election 
remains in effect unless invalidated, terminated, or revoked pursuant to 
this paragraph (i).
    (4) Effect of invalidation, termination, or revocation. An 
invalidation, termination, or revocation of a section 1295 election--
    (i) Terminates all section 1294 elections, as provided in Sec. 
1.1294-1T(e), and the undistributed PFIC earnings tax liability and 
interest thereon are due by the due date, without regard to extensions, 
for the return for the last taxable year of the shareholder to which the 
section 1295 election applies;
    (ii) In the Commissioner's discretion, results in a deemed sale of 
the QEF stock on the last day of the PFIC's last taxable year as a QEF, 
in which gain, but not loss, will be recognized and with respect to 
which appropriate basis and holding period adjustments will be made; and
    (iii) Subjects the shareholder to any other terms and conditions 
that the Commissioner determines are necessary to ensure the 
shareholder's compliance with sections 1291 through 1298 or any other 
provisions of the Code.
    (5) Effect after invalidation, termination, or revocation--(i) In 
general. Without the Commissioner's consent, a shareholder whose section 
1295 election was invalidated, terminated, or revoked under this 
paragraph (i) may not make the section 1295 election with respect to the 
PFIC before the sixth taxable year in which the invalidation, 
termination, or revocation became effective.
    (ii) Special rule. Notwithstanding paragraph (i)(5)(i) of this 
section, a shareholder whose section 1295 election was terminated 
pursuant to paragraph (i)(3) of this section, and either whose section 
1296 election has subsequently been terminated because its PFIC

[[Page 615]]

stock ceased to be marketable or who no longer marks to market such 
stock under another provision of chapter 1 of the Internal Revenue Code, 
may make a section 1295 election with respect to its PFIC stock before 
the sixth taxable year in which its prior section 1295 election was 
terminated.
    (j) Definitions. For purposes of this section--
    Intermediary is a nominee or shareholder of record that holds stock 
on behalf of the shareholder or on behalf of another person in a chain 
of ownership between the shareholder and the PFIC, and any direct or 
indirect beneficial owner of PFIC stock (including a beneficial owner 
that is a pass through entity) in the chain of ownership between the 
shareholder and the PFIC.
    Pass through entity is a partnership, S corporation, trust, or 
estate.
    Shareholder has the same meaning as the term shareholder in Sec. 
1.1291-9(j)(3), except that for purposes of this section, a partnership 
and an S corporation also are treated as shareholders. Furthermore, 
unless otherwise provided, an interest holder of a pass through entity, 
which is treated as a shareholder of a PFIC, also will be treated as a 
shareholder of the PFIC.
    Shareholder's election year is the taxable year of the shareholder 
for which it made the section 1295 election.
    (k) Effective dates. Except as otherwise provided, paragraphs 
(b)(2)(iii), (b)(3), (b)(4), and (c) through (j) of this section are 
applicable to taxable years of shareholders beginning after December 31, 
1997. However, taxpayers may apply the rules under paragraphs (b)(4), 
(f) and (g) of this section to a taxable year beginning before January 
1, 1998, provided the statute of limitations on the assessment of tax 
has not expired as of April 27, 1998, and, in the case of paragraph 
(b)(4) of this section, the taxpayers who filed the joint return have 
consistently applied the rules of that section to all taxable years 
following the year the election was made. Paragraph (b)(3)(v) of this 
section is applicable as of February 7, 2000, however, a taxpayer may 
apply the rules to a taxable year prior to the applicable date provided 
the statute of limitations on the assessment of tax for that taxable 
year has not expired. Paragraphs (i)(3) and (i)(5)(ii) of this section 
are applicable for taxable years beginning on or after May 3, 2004.

[T.D. 8750, 63 FR 15, Jan. 2, 1998. Redesignated and amended by T.D. 
8870, 65 FR 5779, 5781, Feb. 7, 2000; T.D. 9123, 69 FR 24073, May 3, 
2004]



Sec. 1.1295-3  Retroactive elections.

    (a) In general. This section prescribes the exclusive rules under 
which a shareholder, as defined in Sec. 1.1295-1(j), may make a section 
1295 election for a taxable year after the election due date, as defined 
in Sec. 1.1295-1(e) (retroactive election). Therefore, a shareholder 
may not seek such relief under any other provision of the law, including 
Sec. 301.9100 of this chapter. Paragraph (b) of this section describes 
the general rules for a shareholder to preserve the ability to make a 
retroactive election. These rules require that the shareholder possess 
reasonable belief as of the election due date that the foreign 
corporation was not a PFIC for its taxable year that ended in the 
shareholder's taxable year to which the election due date pertains, and 
that the shareholder file a Protective Statement to preserve its ability 
to make a retroactive election. Paragraph (c) of this section 
establishes the terms, conditions and other requirements with respect to 
a Protective Statement required to be filed under the general rules. 
Paragraph (d) of this section sets forth factors that establishes a 
shareholder's reasonable belief that a foreign corporation was not a 
PFIC. Paragraph (e) of this section prescribes special rules for certain 
shareholders that are deemed to satisfy the reasonable belief 
requirement and therefore are not required to file a Protective 
Statement. Paragraph (f) of this section describes the limited 
circumstances under which the Commissioner may permit a shareholder that 
lacked the requisite reasonable belief or failed to satisfy the 
requirements of paragraph (b) or (e) of this section to make a 
retroactive election. Paragraph (g) of this section provides the time 
for and manner of making a retroactive election. Paragraph (h) of this 
section provides the effective date of this section.
    (b) General rule. Except as provided in paragraphs (e) and (f) of 
this section, a

[[Page 616]]

shareholder may make a retroactive election for a taxable year of the 
shareholder (retroactive election year) only if the shareholder--
    (1) Reasonably believed, within the meaning of paragraph (d) of this 
section, that as of the election due date, as defined in Sec. 1.1295-
1(e), the foreign corporation was not a PFIC for its taxable year that 
ended during the retroactive election year;
    (2) Filed a Protective Statement with respect to the foreign 
corporation, applicable to the retroactive election year, in which the 
shareholder described the basis for its reasonable belief and extended, 
in the manner provided in paragraph (c)(4) of this section, the periods 
of limitations on the assessment of taxes determined under sections 1291 
and 1298 with respect to the foreign corporation (PFIC related taxes) 
for all taxable years of the shareholder to which the Protective 
Statement applies; and
    (3) Complied with the other terms and conditions of the Protective 
Statement.
    (c) Protective Statement--(1) In general. A Protective Statement is 
a statement executed under penalties of perjury by the shareholder, or a 
person authorized to sign a Federal income tax return on behalf of the 
shareholder, that preserves the shareholder's ability to make a 
retroactive election. To file a Protective Statement that applies to a 
taxable year of the shareholder, the shareholder must reasonably believe 
as of the election due date that the foreign corporation was not a PFIC 
for the foreign corporation's taxable year that ended during the 
retroactive election year. The Protective Statement must contain--
    (i) The shareholder's reasonable belief statement, as described in 
paragraph (c)(2) of this section;
    (ii) The shareholder's agreement extending the periods of 
limitations on the assessment of PFIC related taxes for all taxable 
years to which the Protective Statement applies, as provided in 
paragraph (c)(4) of this section; and
    (iii) The following information and representations--
    (A) The shareholder's name, address, taxpayer identification number, 
and the shareholder's first taxable year to which the Protective 
Statement applies;
    (B) The foreign corporation's name, address, and taxpayer 
identification number, if any; and
    (C) The highest percentage of shares of each class of stock of the 
foreign corporation held directly or indirectly by the shareholder 
during the shareholder's first taxable year to which the Protective 
Statement applies.
    (2) Reasonable belief statement. The Protective Statement must 
contain a reasonable belief statement, as described in paragraph (c)(1) 
of this section. The reasonable belief statement is a description of the 
shareholder's basis for its reasonable belief that the foreign 
corporation was not a PFIC for its taxable year that ended with or 
within the shareholder's first taxable year to which the Protective 
Statement applies. If the Protective Statement applies to a taxable year 
or years described in paragraph (c)(5)(ii) of this section, the 
reasonable belief statement must describe the shareholder's basis for 
its reasonable belief that the foreign corporation was not a PFIC for 
the foreign corporation's taxable year or years that ended in such 
taxable year or years of the shareholder. The reasonable belief 
statement must discuss the application of the income and asset tests to 
the foreign corporation and the factors, including those stated in 
paragraph (d) of this section, that affect the results of those tests.
    (3) Who executes and files the Protective Statement. The person that 
executes and files and Protective Statement is the person that makes the 
section 1295 election, as provided in Sec. 1.1295-1(d).
    (4) Waiver of the periods of limitations--(i) Time for and manner of 
extending periods of limitations. (A) In general. A shareholder that 
files the Protective Statement with the Commissioner must extend the 
periods of limitations on the assessment of all PFIC related taxes for 
all of the shareholder's taxable years to which the Protective Statement 
applies, as provided in this paragraph (c)(4). The shareholder is 
required to execute the waiver on such form as the Commission may 
prescribe for purposes of this paragraph (c)(4). Until that form is 
published, the shareholder must execute a statement in

[[Page 617]]

which the shareholder agrees to extend the periods of limitations on the 
assessment of all PFIC related taxes for all the shareholder's taxable 
years to which the Protective Statement applies, as provided in this 
paragraph (c)(4), and agrees to the restrictions in paragraph 
(c)(4)(ii)(A) of this section. The shareholder or a person authorized to 
sign the shareholder's Federal income tax return must sign the form or 
statement. A properly executed form or statement authorized by this 
paragraph (c)(4) will be deemed consented to and signed by a Service 
Center Director or the Assistant Commissioner (International) for 
purposes of Sec. 301.6501(c)-1(d) of this chapter.
    (B) Application of general rule to domestic partnerships-- (1) In 
general. A domestic partnership that holds an interest in stock of a 
PFIC satisfies the waiver requirement of paragraph (c)(4) of this 
section pursuant to the rules of this paragraph (c)(4)(i)(B)(1). The 
partnership must file one or more waivers obtained or arranged under 
this paragraph (c)(4)(i)(B) as part of the Protective Statement, as 
provided in paragraph (c)(1) of this section. The partnership must 
either--
    (i) Obtain from each partner the partner's waiver of the periods of 
limitations;
    (ii) Obtain from each partner a duly executed power of attorney 
under Sec. 601.501 of this chapter authorizing the partnership to 
extend that partner's periods of limitations, and execute a waiver on 
behalf of the partners; or
    (iii) In the case of a domestic partnership governed by the unified 
audit and litigation procedures of sections 6221 through 6233 (TEFRA 
partnership), arrange for the tax matters partner (or any other person 
authorized to enter into an agreement to extend the periods of 
limitations), as provided in section 6229(b), to execute a waiver on 
behalf of all the partners.
    (2) Special rules--(i) Addition of partner to non-TEFRA partnership. 
In the case of any individual who becomes a partner in a domestic 
partnership other than a TEFRA partnership (non-TEFRA partnership) in a 
taxable year subsequent to the year in which the partnership filed a 
Protective Statement, the partner and the partnership must comply with 
the rules applicable to non-TEFRA partnerships, as provided in paragraph 
(c)(4)(i)(B)(1) of this section, by the due date, as extended, for the 
Federal income tax return of the partnership for the taxable year during 
which the individual became a partner. Failure to so comply will render 
the Protective Statement invalid with respect to the partnership and 
partners.
    (ii) Change in status from non-TEFRA partnership to TEFRA 
partnership. If a partnership is a non-TEFRA partnership in one taxable 
year but becomes a TEFRA partnership in a subsequent taxable year, the 
partnership must file one or more waivers obtained or arranged under 
this paragraph (c)(4)(i)(B)(2)(ii), as part of the Protective Statement, 
as provided in paragraph (c)(1) of this section. The partnership must 
either--obtain from any new partner the partner's waiver described in 
this paragraph (c)(4); obtain from the new partner a duly executed power 
of attorney under Sec. 601.501 of this chapter authorizing the 
partnership to extend the partner's periods of limitations, and execute 
a waiver on behalf of the new partner; or arrange for the tax matters 
partner (or any other person authorized to enter into an agreement to 
extend the periods of limitations) to execute a waiver on behalf of all 
the partners. In each case, the partnership must attach any new waiver 
of a partner's periods of limitations, and a copy of the Protective 
Statement to its Federal income tax return for that taxable year.
    (C) Application of general rule to domestic nongrantor trusts and 
domestic estates. A domestic nongrantor trust or a domestic estate that 
holds an interest in stock of a PFIC satisfies the waiver requirement of 
this paragraph (c)(4) at the entity level. For this purpose, such entity 
must comply with rules similar to those applicable to non-TEFRA 
partnerships, as provided in paragraph (c)(4)(i)(B)(1) of this section.
    (D) Application of general rule to S corporations. An S corporation 
that holds an interest in stock of a PFIC satisfies the waiver 
requirement of this paragraph (c)(4) at the S corporation level. For 
this purpose, the S corporation must comply with rules similar to

[[Page 618]]

those applicable to non-TEFRA partnerships, as provided in paragraph 
(c)(4)(i)(B)(1) of this section. However, in the case of an S 
corporation that was governed by the unified audit corporate proceedings 
of sections 6241 through 6245 for any taxable year to which a Protective 
Statement applies (former TEFRA S corporation), the tax matters person 
(or any other person authorized to enter into such an agreement), as was 
provided in sections 6241 through 6245, may execute a waiver described 
in this paragraph (c)(4) that applies to such taxable year; for any 
other taxable year, the former TEFRA S corporation must comply with 
rules similar to those applicable to non-TEFRA partnerships.
    (E) Effect on waiver of complete termination of a pass through 
entity or pass through entity's business. The complete termination of a 
pass through entity described in paragraphs (c)(4)(i) (B) through (D) of 
this section, or a pass through entity's trade or business, will not 
terminate a waiver that applies to a partner, shareholder, or 
beneficiary.
    (F) Application of general rule to foreign partnerships, foreign 
trusts, domestic or foreign grantor trusts, and foreign estates. A U.S. 
person that is a partner or beneficiary of a foreign partnership, 
foreign trust, or foreign estate that holds an interest in stock of a 
PFIC satisfies the waiver requirement of this paragraph (c)(4) at the 
partner or beneficiary level. A U.S. person that is treated under 
sections 671 through 679 as the owner of the portion of a domestic or 
foreign trust that owns an interest in PFIC stock also satisfies the 
waiver requirement at the owner level. A waiver by a partner or 
beneficiary applies only to that partner or beneficiary, and is not 
affected by a complete termination of the entity or the entity's trade 
or business.
    (ii) Terms of waiver--(A) Scope of waiver. The waiver of the periods 
of limitations is limited to the assessment of PFIC related taxes. If 
the period of limitations for a taxable year affected by a retroactive 
election has expired with respect to the assessment of other non-PFIC 
related taxes, no adjustments, other than consequential changes, may be 
made by the Internal Revenue Service or by the shareholder to any other 
item of income, deduction, or credit for that year. If the period of 
limitations for refunds or credits for a taxable year affected by a 
retroactive election is open only by virtue of the assessment period 
extension and section 6511(c), no refund or credit is allowable on 
grounds other than adjustments to PFIC related taxes and consequential 
changes.
    (B) Period of Waiver. The extension of the periods of limitations on 
the assessment of PFIC related taxes will be effective for all of the 
shareholder's taxable years to which the Protective Statement applies. 
In addition, the waiver, to the extent it applies to the period of 
limitations for a particular year, will terminate with respect to that 
year no sooner than three years from the date on which the shareholder 
files an amended return, as provided in paragraph (g) of this section, 
for that year. For the suspension of the running of the period of 
limitations for the collection of taxes for which a shareholder has 
elected under section 1294 to extend the time for payment, as provided 
in paragraph (g)(3)(ii) of this section, see sections 6503(i) and 
6229(h).
    (5) Time of and manner for filing a Protective Statement--(i) In 
general. Except as provided in paragraph (c)(5)(ii) of this section, a 
Protective Statement must be attached to the shareholder's federal 
income tax return for the shareholder's first taxable year to which the 
Protective Statement will apply. The shareholder must file its return 
and the copy of the Protective Statement by the due date, as extended 
under section 6081, for the return.
    (ii) Special rule for taxable years ended before January 2, 1998. A 
shareholder may file a Protective Statement that applies to the 
shareholder's taxable year or years that ended before January 2, 1998, 
provided the period of limitations on the assessment of taxes for any 
such year has not expired (open year). The shareholder must file the 
Protective Statement applicable to such open year or years, as provided 
in paragraph (c)(5)(i) of this section, by the due date, as extended, 
for the shareholder's return for the first taxable year ending after 
January 2, 1998.

[[Page 619]]

    (6) Applicability of the Protective Statement--(i) In general. 
Except as otherwise provided in this paragraph (c)(6), a Protective 
Statement applies to the shareholder's first taxable year for which the 
Protective Statement was filed and to each subsequent taxable year. The 
Protective Statement will not apply to any taxable year of the 
shareholder during which the shareholder does not own any stock of the 
foreign corporation or to any taxable year thereafter. Accordingly, if 
the shareholder has not made a retroactive election with respect to the 
previously owned stock by the time the shareholder reacquires stock of 
the foreign corporation, the shareholder must file another Protective 
Statement to preserve its right to make a retroactive election with 
respect to the later acquired stock. For the rule that provides that a 
section 1295 election made with respect to a foreign corporation applies 
to stock of that corporation acquired after a lapse in ownership, see 
Sec. 1.1295-1(c)(2)(iii).
    (ii) Invalidity of the Protective Statement. A shareholder will be 
treated as if it never filed a Protective Statement if--
    (A) The shareholder failed to make a retroactive election by the 
date prescribed for making the retroactive election in paragraph (g)(1) 
of this section; or
    (B) The waiver of the periods of limitations terminates (by reason 
of a court decision or other determination) with respect to any taxable 
year before the expiration of three years from the date of filing of an 
amended return for that year pursuant to paragraph (g) of this section.
    (7) Retention of Protective Statement and information demonstrating 
reasonable belief. A shareholder that files a Protective Statement must 
retain a copy of the Protective Statement and its attachments and must, 
for each taxable year of the shareholder to which the Protective 
Statement applies, retain information sufficient to demonstrate the 
shareholder's reasonable belief that the foreign corporation was not a 
PFIC for the taxable year of the foreign corporation ending during each 
such taxable year of the shareholder.
    (d) Reasonable belief--(1) In general. A foreign corporation is a 
PFIC for a taxable year if the foreign corporation satisfies either the 
income or asset test of section 1297(a). To determine whether a 
shareholder had reasonable belief that the foreign corporation is not a 
PFIC under section 1297(a), the shareholder must consider all relevant 
facts and circumstances. Reasonable belief may be based on a variety of 
factors, including reasonable asset valuations as well as reasonable 
interpretations of the applicable provisions of the Code, regulations, 
and administrative guidance regarding the direct and indirect ownership 
of the income or assets of the foreign corporation, the proper character 
of that income or those assets, and similar issues. Reasonable belief 
may be based on reasonable predictions regarding income to be earned and 
assets to be owned in subsequent years where qualifications of the 
foreign corporation as a PFIC for the current taxable year will depend 
on the qualification of the corporation as a PFIC in a subsequent year. 
Reasonable belief may be based on an analysis of generally available 
financial information of the foreign corporation. To determine whether a 
shareholder had reasonable belief that the foreign corporation was not a 
PFIC, the Commissioner may consider the size of the shareholder's 
interest in the foreign corporation.
    (2) Knowledge of law required. Reasonable belief must be based on a 
good faith effort to apply the Code, regulations, and related 
administrative guidance. Any person's failure to know or apply these 
provisions will not form the basis of reasonable belief.
    (e) Special rules for qualified shareholders--(1) In general. A 
shareholder that is a qualified shareholder, as defined in paragraph 
(e)(2) of this section, for a taxable year of the shareholder is not 
required to satisfy the reasonable belief requirement of paragraph 
(b)(1) of this section or file a Protective Statement to preserve its 
ability to make a retroactive election with respect to such taxable 
year. Accordingly, a qualified shareholder may make a retroactive 
election for any open taxable year in the shareholder's

[[Page 620]]

holding period. The retroactive election will be treated as made in the 
earliest taxable year of the shareholder during which the foreign 
corporation qualified as a PFIC (including a taxable year ending prior 
to January 2, 1998) and the shareholder will be treated as a shareholder 
of a pedigreed QEF, as defined in Sec. 1.1291-9(j)(2)(ii), provided the 
shareholder--
    (i) Has been a qualified shareholder with respect to the foreign 
corporation for all taxable years of the shareholder included in the 
shareholder's holding period during which the foreign corporation was a 
PFIC, or in the case of taxable years ending before January 2, 1998, the 
shareholder satisfies the criteria of a qualified shareholder, for all 
such years; or
    (ii) Has been a qualified shareholder, or in the case of taxable 
years ending before January 2, 1998 satisfies the criteria of a 
qualified shareholder, for all taxable years in its holding period 
before it filed a Protective Statement, which Protective Statement is 
applicable to all subsequent years, beginning with the first taxable 
year in which the shareholder is not a qualified shareholder.
    (2) Qualified shareholder. A shareholder will be treated as a 
qualified shareholder for a taxable year if the shareholder did not file 
a Protective Statement applicable to an earlier taxable year included in 
the shareholder's holding period of the stock of the foreign corporation 
currently held and--
    (i) At all times during the taxable year the shareholder owned, 
within the meaning of section 958, directly, indirectly, or 
constructively, less than two percent of the vote and value of each 
class of stock of the foreign corporation; and
    (ii) With respect to the taxable year of the foreign corporation 
ending within the shareholder's taxable year, the foreign corporation or 
U.S. counsel for the foreign corporation indicated in a public filing, 
disclosure statement or other notice provided to U.S. persons that are 
shareholders of the foreign corporation (corporate filing) that the 
foreign corporation--
    (A) Reasonably believes that it is not or should not constitute a 
PFIC for the corporation's taxable year; or
    (B) Is unable to conclude that it is not or should not be a PFIC 
(due to certain asset valuation or interpretation issues, or because 
PFIC status will depend on the income or assets of the foreign 
corporation in the corporation's subsequent taxable years) but 
reasonably believes that, more likely than not, it ultimately will not 
be a PFIC.
    (3) Exceptions. Notwithstanding paragraph (e)(2)(ii) of this 
section, a shareholder will not be treated as a qualified shareholder 
for a taxable year of the shareholder if the shareholder knew or had 
reason to know that a corporate filing regarding the foreign 
corporation's PFIC status was inaccurate, or knew that the foreign 
corporation was a PFIC for the taxable year of the foreign corporation 
ending with or within such taxable year of the shareholder. For purposes 
of this paragraph, a shareholder will be treated as knowing that a 
foreign corporation was a PFIC if the principal activity of the foreign 
corporation, directly or indirectly, is owning or trading a diversified 
portfolio of stock, securities, or other financial contracts.
    (f) Special consent--(1) In general. A shareholder that has not 
satisfied the requirements of paragraph (b) or (e) of this section may 
request the consent of the Commissioner to make a retroactive election 
for a taxable year of the shareholder provided the shareholder satisfies 
the requirements set forth in this paragraph (f). The Commissioner will 
grant relief under this paragraph (f) only if--
    (i) The shareholder reasonably relied on a qualified tax 
professional, within the meaning of paragraph (f)(2) of this section;
    (ii) Granting consent will not prejudice the interests of the United 
States government, as provided in paragraph (f)(3) of this section;
    (iii) The shareholder requests consent under paragraph (f) of this 
section before a representative of the Internal Revenue Service raises 
upon audit the PFIC status of the corporation for any taxable year of 
the shareholder; and
    (iv) The shareholder satisfies the procedural requirements set forth 
in paragraph (f)(4) of this section.

[[Page 621]]

    (2) Reasonable reliance on a qualified tax professional--(i) In 
general. Except as provided in paragraph (f)(2)(ii) of this section, a 
shareholder is deemed to have reasonably relied on a qualified tax 
professional only if the shareholder reasonably relied on a qualified 
tax professional (including a tax professional employed by the 
shareholder) who failed to identify the foreign corporation as a PFIC or 
failed to advise the shareholder of the consequences of making, or 
failing to make, the section 1295 election. A shareholder will not be 
considered to have reasonably relied on a qualified tax professional if 
the shareholder knew, or reasonably should have known, that the foreign 
corporation was a PFIC and of the availability of a section 1295 
election, or knew or reasonably should have known that the qualified tax 
professional--
    (A) Was not competent to render tax advice with respect to the 
ownership of shares of a foreign corporation; or
    (B) Did not have access to all relevant facts and circumstances.
    (ii) Shareholder deemed to have not reasonably relied on a qualified 
tax professional. For purposes of this paragraph (f)(2), a shareholder 
is deemed to have not reasonably relied on a qualified tax professional 
if the shareholder was informed by the qualified tax professional that 
the foreign corporation was a PFIC and of the availability of the 
section 1295 election and related tax consequences, but either chose not 
to make the section 1295 election or was unable to make a valid section 
1295 election.
    (3) Prejudice to the interests of the United States government--(1) 
General rule. Except as otherwise provided in paragraph (f)(3)(ii) of 
this section, the Commissioner will not grant consent under paragraph 
(f) of this section if doing so would prejudice the interests of the 
United States government. The interests of the United States government 
are prejudiced if granting relief would result in the shareholder having 
a lower tax liability, taking into account applicable interest charges, 
in the aggregate for all years affected by the retroactive election 
(other than by a de minimis amount) than the shareholder would have had 
if the shareholder had made the section 1295 election by the election 
due date. The time value of money is taken into account for purposes of 
this computation.
    (ii) Elimination of prejudice to the interests of the United States 
government. Notwithstanding the general rule of paragraph (f)(3)(i) of 
this section, if granting relief would prejudice the interests of the 
United States government, the Commissioner may, in the Commissioner's 
sole discretion, grant consent to make the election provided the 
shareholder enters into a closing agreement with the Commissioner that 
requires the shareholder to pay an amount sufficient to eliminate any 
prejudice to the United States government as a consequence of the 
shareholder's inability to file amended returns for closed taxable 
years.
    (4) Procedural requirements--(i) Filing instructions. A shareholder 
requests consent under paragraph (f) of this section to make a 
retroactive election by filing with the Office of the Associate Chief 
Counsel (International) a ruling request that includes the affidavits 
required by this paragraph (f)(4). The ruling request must satisfy the 
requirements, including payment of the user fee, for ruling requests 
filed with that office.
    (ii) Affidavit from shareholder. The shareholder, or a person 
authorized to sign a Federal income tax return on behalf of the 
shareholder, must submit a detailed affidavit describing the events that 
led to the failure to make a section 1295 election by the election due 
date, and to the discovery thereof. The shareholder's affidavit must 
describe the engagement and responsibilities of the qualified tax 
professional as well as the extent to which the shareholder relied on 
the tax professional. The shareholder must sign the affidavit under 
penalties of perjury. An individual who signs for an entity must have 
personal knowledge of the facts and circumstances at issue.
    (iii) Affidavits from other persons. The shareholder must submit 
detailed affidavits from individuals having knowledge or information 
about the events that led to the failure to make a section 1295 election 
by the election due date, and to the discovery thereof. These 
individuals must include the qualified tax professional upon whose

[[Page 622]]

advice the shareholder relied, as well as any individual (including an 
employee of the shareholder) who made a substantial contribution to the 
return's preparation, and any accountant or attorney, knowledgeable in 
tax matters, who advised the shareholder with regard to its ownership of 
the stock of the foreign corporation. Each affidavit must describe the 
individual's engagement and responsibilities as well as the advice 
concerning the tax treatment of the foreign corporation that that 
individual provided to the shareholder. Each affidavit also must include 
the individual's name, address, and taxpayer identification number, and 
must be signed by the individual under penalties of perjury.
    (iv) Other information. In connection with a request for consent 
under this paragraph (f), a shareholder must provide any additional 
information requested by the Commissioner.
    (v) Notification of Internal Revenue Service. The shareholder must 
notify the branch of the Associate Chief Counsel (International) 
considering the request for relief under this paragraph (f) if, while 
the shareholder's request for consent is pending, the Internal Revenue 
Service begins an examination of the shareholder's return for the 
retroactive election year or for any subsequent taxable year during 
which the shareholder holds stock of the foreign corporation.
    (vi) Who requests special consent under this paragraph (f) and who 
enters into a closing agreement. The person that requests consent under 
this paragraph (f) is the person that makes the section 1295 election, 
as provided in Sec. 1.1295-1(d). If a shareholder is required to enter 
into a closing agreement with the Commissioner, as described in 
paragraph (f)(3)(ii) of this section, rules similar to those under 
paragraphs (c)(4)(i) (B) through (E) of this section apply for purposes 
of determining the person that enters into the closing agreement.
    (g) Time for and manner of making a retroactive election--(1) Time 
for making a retroactive election--(i) In general. Except as otherwise 
provided in paragraph (g)(1)(ii) of this section, a shareholder must 
make a retroactive election, in the manner provided in paragraph (g)(2) 
of this section, on or before the due date, as extended, for the 
shareholder's return--
    (A) In the case of a shareholder that makes a retroactive election 
pursuant to paragraph (b) or (e) of this section, for the taxable year 
in which the shareholder determines or reasonably should have determined 
that the foreign corporation was a PFIC; or
    (B) In the case of a shareholder that obtains the consent of the 
Commissioner pursuant to paragraph (f) of this section for the taxable 
year in which such consent is granted.
    (ii) Transition rule. A shareholder that files a Protective 
Statement for a taxable year described in paragraph (c)(5)(ii) of this 
section may make a retroactive election by the due date, as extended, 
for the return for the first taxable year ended after January 2, 1998 
even if the shareholder determined or should have determined that the 
foreign corporation was a PFIC for a year described in paragraph 
(c)(5)(ii) of this section at any time on or before January 2, 1998.
    (iii) Ownership not required at time retroactive election is made. 
The shareholder need not own shares of the foreign corporation at the 
time the shareholder makes a retroactive election with respect to the 
foreign corporation.
    (2) Manner of making a retroactive election. A shareholder that has 
satisfied the requirements of paragraph (b) or (e) of this section, or a 
shareholder that has been granted consent under paragraph (f) of this 
section, must make a retroactive election in the manner provided in Form 
8621 for making a section 1295 election, and must attach Form 8621 to an 
amended return for the later of the retroactive election year or the 
earliest open taxable year of the shareholder. The shareholder also must 
file an amended return for each of its subsequent taxable years affected 
by the retroactive election. In each amended return the shareholder must 
redetermine its income tax liability for that year to take into account 
the assessment of PFIC related taxes. If the period of limitations for 
the assessment of taxes for a taxable year affected by the retroactive 
election has expired except to the extent the waiver of limitations, 
described in paragraph

[[Page 623]]

(c)(4) of this section, has extended such period, no adjustments, other 
than consequential changes, may be made to any other items of income, 
deduction, or credit in that year. In addition, the shareholder must pay 
all taxes and interest owing by reason of the PFIC and QEF status of the 
foreign corporation in those years (except to the extent a section 1294 
election extends the time to pay the taxes and interest). A shareholder 
that filed a Protective Statement must attach to Form 8621 filed with 
each amended return a representation that the shareholder, until the 
taxable year in which it determined or reasonably should have determined 
that the foreign corporation was a PFIC, reasonably believed, within the 
meaning of paragraph (d) of this section, that the foreign corporation 
was not a PFIC in the taxable year for which the amended return is 
filed, and in all other taxable years to which the Protective Statement 
applies. A shareholder that entered into a closing agreement must comply 
with the terms of that agreement, as provided in paragraph (f)(3)(ii) of 
this section, to eliminate any prejudice to the United States 
government's interests, as described in paragraph (f)(3) of this 
section.
    (3) Who makes the retroactive election. The person that makes the 
retroactive election is the person that makes the section 1295 election, 
as provided in Sec. 1.1295-1(d). A partner, shareholder, or beneficiary 
for which a pass through entity, as described in paragraphs (c)(4)(i) 
(B) through (D) of this section, filed a Protective Statement may make a 
retroactive election, if the pass through entity completely terminates 
its business or otherwise ceases to exist.
    (4) Other elections--(i) Section 1291(d)(2) election. If the foreign 
corporation for which the shareholder makes a retroactive election will 
be treated as an unpedigreed QEF, as defined in Sec. 1.1291-
9(j)(2)(iii), with respect to the shareholder, the shareholder may make 
an election under section 1291(d)(2) to purge its holding period of the 
years or parts of years before the effective date of the retroactive 
election. If the qualification date, within the meaning of Sec. 1.1291-
9(e) or 1.1291-10(e), falls in a taxable year for which the period of 
limitations has expired, the shareholder may treat the first day of the 
retroactive election year as the qualification date. The shareholder may 
make a section 1291(d)(2) election at the time that it makes the 
retroactive election, but no later than two years after the date that 
the amended return in which the retroactive election is made is filed. 
For the requirements for making a section 1291(d)(2) election, see 
Sec. Sec. 1.1291-9 and 1.1291-10.
    (ii) Section 1294 election. A shareholder may make an election under 
section 1294 to extend the time for payment of tax on the shareholder's 
pro rata shares of the ordinary earnings and net capital gain of the 
foreign corporation reported in the shareholder's amended return, and 
section 6621 interest attributable to such tax, but only to the extent 
the tax and interest are attributable to earnings that have not been 
distributed to the shareholder. The shareholder must make a section 1294 
election for a taxable year at the time that it files its amended return 
for that year, as provided in paragraph (g)(1) of this section. For the 
requirements for making a section 1294 election, see Sec. 1.1294-1T.
    (h) Effective date. The rules of this section are effective as of 
January 2, 1998.

[T.D. 8750, 63 FR 19, Jan. 2, 1998. Redesignated and amended by T.D. 
8870, 65 FR 5781, Feb. 7, 2000]



Sec. 1.1296-1  Mark to market election for marketable stock.

    (a) Definitions--(1) Eligible RIC. An eligible RIC is a regulated 
investment company that offers for sale, or has outstanding, any stock 
of which it is the issuer and which is redeemable at net asset value, or 
that publishes net asset valuations at least annually.
    (2) Section 1296 stock. The term section 1296 stock means marketable 
stock in a passive foreign investment company (PFIC), including any PFIC 
stock owned directly or indirectly by an eligible RIC, for which there 
is a valid section 1296 election. Section 1296 stock does not include 
stock of a foreign corporation that previously had been a PFIC, and for 
which a section 1296 election remains in effect.

[[Page 624]]

    (3) Unreversed inclusions--(i) General rule. The term unreversed 
inclusions means with respect to any section 1296 stock, the excess, if 
any, of--
    (A) The amount of mark to market gain included in gross income of 
the United States person under paragraph (c)(1) of this section with 
respect to such stock for prior taxable years; over
    (B) The amount allowed as a deduction to the United States person 
under paragraph (c)(3) of this section with respect to such stock for 
prior taxable years.
    (ii) Section 1291 adjustment. The amount referred to in paragraph 
(a)(3)(i)(A) of this section shall include any amount subject to section 
1291 under the coordination rule of paragraph (i)(2)(ii) of this 
section.
    (iii) Example. An example of the computation of unreversed 
inclusions is as follows:

    Example. A, a United States person, acquired stock in Corp X, a 
foreign corporation, on January 1, 2005 for $150. At such time and at 
all times thereafter, Corp X was a PFIC and A's stock in Corp X was 
marketable. For taxable years 2005 and 2006, Corp X was a nonqualified 
fund subject to taxation under section 1291. A made a timely section 
1296 election with respect to the X stock, effective for taxable year 
2007. The fair market value of the X stock was $200 as of December 31, 
2006, and $240 as of December 31, 2007. Additionally, Corp X made no 
distribution with respect to its stock for the taxable years at issue. 
In 2007, pursuant to paragraph (i)(2)(ii) of this section, A must 
include the $90 gain in the X stock in accordance with the rules of 
section 1291 for purposes of determining the deferred tax amount and any 
applicable interest. Nonetheless, for purposes of determining the amount 
of the unreversed inclusions pursuant to paragraph (a)(3)(ii) of this 
section, A will include the $90 of gain that was taxed under section 
1291 and not the interest thereon.

    (iv) Special rule for regulated investment companies. In the case of 
a regulated investment company which had elected to mark to market the 
PFIC stock held by such company as of the last day of the taxable year 
preceding such company's first taxable year for which such company makes 
a section 1296 election, the amount referred to in paragraph 
(a)(3)(i)(A) of this section shall include amounts previously included 
in gross income by the company pursuant to such mark to market election 
with respect to such stock for prior taxable years. For further 
guidance, see Notice 92-53 (1992-2 C.B. 384) (see also 601.601(d)(2) of 
this chapter).
    (b) Application of section 1296 election--(1) In general. Any United 
States person and any controlled foreign corporation (CFC) that owns 
directly, or is treated as owning under this section, marketable stock, 
as defined in Sec. 1.1296-2, in a PFIC may make an election to mark to 
market such stock in accordance with the provisions of section 1296 and 
this section.
    (2) Election applicable to specific United States person. A section 
1296 election applies only to the United States person (or CFC that is 
treated as a U.S. person under paragraph (g)(2) of this section) that 
makes the election. Accordingly, a United States person's section 1296 
election will not apply to a transferee of section 1296 stock.
    (3) Election applicable to specific corporation only. A section 1296 
election is made with respect to a single foreign corporation, and thus 
a separate section 1296 election must be made for each foreign 
corporation that otherwise meets the requirements of this section. A 
United States person's section 1296 election with respect to stock in a 
foreign corporation applies to all marketable stock of the corporation 
that the person owns directly, or is treated as owning under paragraph 
(e) of this section, at the time of the election or that is subsequently 
acquired.
    (c) Effect of election--(1) Recognition of gain. If the fair market 
value of section 1296 stock on the last day of the United States 
person's taxable year exceeds its adjusted basis, the United States 
person shall include in gross income for its taxable year the excess of 
the fair market value of such stock over its adjusted basis (mark to 
market gain).
    (2) Character of gain. Mark to market gain, and any gain on the sale 
or other disposition of section 1296 stock, shall be treated as ordinary 
income.
    (3) Recognition of loss. If the adjusted basis of section 1296 stock 
exceeds its fair market value on the last day of the United States 
person's taxable year, such person shall be allowed a deduction for such 
taxable year equal to the lesser of the amount of such excess or

[[Page 625]]

the unreversed inclusions with respect to such stock (mark to market 
loss).
    (4) Character of loss--(i) Losses not in excess of unreversed 
inclusions. Any mark to market loss allowed as a deduction under 
paragraph (c)(3) of this section, and any loss on the sale or other 
disposition of section 1296 stock, to the extent that such loss does not 
exceed the unreversed inclusions attributable to such stock, shall be 
treated as an ordinary loss, deductible in computing adjusted gross 
income.
    (ii) Losses in excess of unreversed inclusions. Any loss recognized 
on the sale or other disposition of section 1296 stock in excess of any 
prior unreversed inclusions will be subject to the rules generally 
applicable to losses provided elsewhere in the Internal Revenue Code and 
the regulations thereunder.
    (5) Application of election to separate lots of stock. In the case 
in which a United States person purchased or acquired shares of stock in 
a PFIC at different prices, the rules of this section shall be applied 
in a manner consistent with the rules of Sec. 1.1012-1.
    (6) Source rules. The source of any amount included in gross income 
under paragraph (c)(1) of this section, or the allocation and 
apportionment of any amount allowed as a deduction under paragraph 
(c)(3) of this section, shall be determined in the same manner as if 
such amounts were gain or loss (as the case may be) from the sale of 
stock in the PFIC.
    (7) Examples. The following examples illustrate this paragraph (c):

    Example 1. Treatment of gain as ordinary income. A, a United States 
individual, purchases stock in FX, a foreign corporation that is not a 
PFIC, in 1990 for $1,000. On January 1, 2005, when the fair market value 
of the FX stock is $1,100, FX becomes a PFIC. A makes a timely section 
1296 election for taxable year 2005. On December 31, 2005, the fair 
market value of the FX stock is $1,200. For taxable year 2005, A 
includes $200 of mark to market gain (the excess of the fair market 
value of FX stock ($1,200) over A's adjusted basis ($1,000)) in gross 
income as ordinary income and pursuant to paragraph (d)(1) of this 
section increases his basis in the FX stock by that amount.
    Example 2. Treatment of gain as capital gain. The facts are the same 
as in Example 1. For taxable year 2006, FX does not satisfy either the 
asset test or the income test of section 1297(a). A does not revoke the 
section 1296 election it made with respect to the FX stock. On December 
1, 2006, A sells the FX stock when the fair market value of the stock is 
$1,500. For taxable year 2006, A includes $300 of gain (the excess of 
the fair market value of FX stock ($1,500) over A's adjusted basis 
($1,200)) in gross income as long-term capital gain because at the time 
of sale of the FX stock by A, FX did not qualify as a PFIC, and, 
therefore, the FX stock was not section 1296 stock at the time of the 
disposition. Further, A's holding period for non-PFIC purposes was more 
than one year.
    Example 3. Treatment of losses as ordinary where they do not exceed 
unreversed inclusions. The facts are the same as in Example 1. On 
December 1, 2006, A sells the stock in FX for $1,100. At that time, A's 
unreversed inclusions (the amount A included in income as mark to market 
gain) with respect to the stock in FX are $200. Accordingly, for taxable 
year 2006, A recognizes a loss on the sale of the FX stock of $100, (the 
fair market value of the FX stock ($1,100) minus A's adjusted basis 
($1,200) in the stock) that is treated as an ordinary loss because the 
loss does not exceed the unreversed inclusions attributable to the stock 
of FX.
    Example 4. Treatment of losses as long-term capital losses. The 
facts are the same as in Example 3, except that FX does not satisfy 
either the asset test or the income test of section 1297(a) for taxable 
year 2006. For taxable year 2006, A's $100 loss from the sale of the FX 
stock is treated as long-term capital loss because at the time of the 
sale of the FX stock by A FX did not qualify as a PFIC, and, therefore, 
the FX stock was not section 1296 stock at the time of the disposition. 
Further, A's holding period in the FX stock for non-PFIC purposes was 
more than one year.
    Example 5. Long-term capital loss treatment of losses in excess of 
unreversed inclusions. The facts are the same as in Example 3, except 
that A sells his FX stock for $900. At the time of A's sale of the FX 
stock on December 1, 2006, A's unreversed inclusions with respect to the 
FX stock are $200. Accordingly, the $300 loss recognized by A on the 
disposition is treated as an ordinary loss to the extent of his 
unreversed inclusions ($200). The amount of the loss in excess of A's 
unreversed inclusions ($100) will be treated as a long-term capital loss 
because A's holding period in the FC stock for non-PFIC purposes was 
more than one year.
    Example 6. Application of section 1296 election to separate lots of 
stock. On January 1, 2005, Corp A, a domestic corporation, purchased 100 
shares (first lot) of stock in FX, a PFIC, for $500 ($5 per share). On 
June 1, 2005, Corp A purchased 100 shares (second lot) of FX stock for 
$1,000 ($10 per share). Corp A made a timely section 1296 election with 
respect to its FX stock for taxable year 2005. On December 31, 2005, the 
fair market value of FX

[[Page 626]]

stock was $8 per share. For taxable year 2005, Corp A includes $300 of 
gain in gross income as ordinary income under paragraph (c)(1) of this 
section with respect to the first lot, and adjusts its basis in that lot 
to $800 pursuant to paragraph (d)(1) of this section. With respect to 
the second lot, Corp A is not permitted to recognize a loss under 
paragraph (c)(3) of this section for taxable year 2005. Although Corp 
A's adjusted basis in that stock exceeds its fair market value by $200, 
Corp A has no unreversed inclusions with respect to that particular lot 
of stock. On July 1, 2006, Corp A sells 100 shares of FX stock for $900. 
Assuming that Corp A adequately identifies (in accordance with the rules 
of Sec. 1.1012-1(c)) the shares of FX stock sold as being from the 
second lot, Corp A recognizes $100 of long term capital loss pursuant to 
paragraph (c)(4)(ii) of this section.

    (d) Adjustment to basis--(1) Stock held directly. The adjusted basis 
of the section 1296 stock shall be increased by the amount included in 
the gross income of the United States person under paragraph (c)(1) of 
this section with respect to such stock, and decreased by the amount 
allowed as a deduction to the United States person under paragraph 
(c)(3) of this section with respect to such stock.
    (2) Stock owned through certain foreign entities. (i) In the case of 
section 1296 stock that a United States person is treated as owning 
through certain foreign entities pursuant to paragraph (e) of this 
section, the basis adjustments under paragraph (d)(1) of this section 
shall apply to such stock in the hands of the foreign entity actually 
holding such stock, but only for purposes of determining the subsequent 
treatment under chapter 1 of the Internal Revenue Code of the United 
States person with respect to such stock. Such increase or decrease in 
the adjusted basis of the section 1296 stock shall constitute an 
adjustment to the basis of partnership property only with respect to the 
partner making the section 1296 election. Corresponding adjustments 
shall be made to the adjusted basis of the United States person's 
interest in the foreign entity and in any intermediary entity described 
in paragraph (e) of this section through which the United States person 
holds the PFIC stock.
    (ii) Example. The following example illustrates this paragraph 
(d)(2):

    Example. FP is a foreign partnership. Corp A, a domestic 
corporation, owns a 20 percent interest in FP. Corp B, a domestic 
corporation, owns a 30 percent interest in FP. Corp C, a foreign 
corporation, with no direct or indirect shareholders that are U.S. 
persons, owns a 50% interest in FP. Corp A, Corp B, and FP all use a 
calendar year for their taxable year. In 2005, FP purchases stock in FX, 
a foreign corporation and a PFIC, for $1,000. Corp A makes a timely 
section 1296 election for taxable year 2005. On December 31, 2005, the 
fair market value of the PFIC stock is $1,100. Corp A includes $20 of 
ordinary income in taxable year 2005 under paragraphs (c)(1) and (2) of 
this section. Corp A increases its basis in its FP partnership interest 
by $20. FP increases its basis in the FX stock to $1,020 solely for 
purposes of determining the subsequent treatment of Corp A, under 
chapter 1 of the Internal Revenue Code, with respect to such stock. In 
2006, FP sells the FX stock for $1,200. For purposes of determining the 
amount of gain of Corp A, FP will be treated as having $180 in gain of 
which $20 is allocated to Corp A. Corp A's $20 of gain will be treated 
as ordinary income under paragraph (c)(2) of this section. For purposes 
of determining the amount of gain attributable to Corp B, FP will be 
treated as having $200 gain, $60 of which will be allocated to Corp B.

    (3) Stock owned indirectly by an eligible RIC. Paragraph (d)(2) of 
this section shall also apply to an eligible RIC which is an indirect 
shareholder under Sec. 1.1296-2(f) of stock in a PFIC and has a valid 
section 1296 election in effect with respect to the PFIC stock.
    (4) Stock acquired from a decedent. In the case of stock of a PFIC 
which is acquired by bequest, devise, or inheritance (or by the 
decedent's estate) and with respect to which a section 1296 election was 
in effect as of the date of the decedent's death, notwithstanding 
section 1014, the basis of such stock in the hands of the person so 
acquiring it shall be the adjusted basis of such stock in the hands of 
the decedent immediately before his death (or, if lesser, the basis 
which would have been determined under section 1014 without regard to 
this paragraph).
    (5) Transition rule for individuals becoming subject to United 
States income taxation--(i) In general. If any individual becomes a 
United States person in a taxable year beginning after December 31, 
1997, solely for purposes of this section, the adjusted basis, before 
adjustments under this paragraph (d), of any section 1296 stock owned by 
such

[[Page 627]]

individual on the first day of such taxable year shall be treated as 
being the greater of its fair market value or its adjusted basis on such 
first day.
    (ii) An example of the transition rule for individuals becoming 
subject to United States income taxation is as follows:

    Example. A, a nonresident alien individual, purchases marketable 
stock in FX, a PFIC, for $50 in 1995. On January 1, 2005, A becomes a 
United States person and makes a timely section 1296 election with 
respect to the stock in accordance with paragraph (h) of this section. 
The fair market value of the FX stock on January 1, 2005, is $100. The 
fair market value of the FX stock on December 31, 2005, is $110. Under 
paragraph (d)(5)(i) of this section, A computes the amount of mark to 
market gain or loss for the FX stock in 2005 by reference to an adjusted 
basis of $100, and therefore A includes $10 in gross income as mark to 
market gain under paragraph (c)(1) of this section. Additionally, under 
paragraph (d)(1) of this section, A's adjusted basis in the FX stock for 
purposes of this section is increased to $110 (and to $60 for all other 
tax purposes). A sells the FX stock in 2006 for $120. For purposes of 
applying section 1001, A must use its original basis of $50, with any 
adjustments under paragraph (d)(1) of this section, $10 in this case, 
and therefore A recognizes $60 of gain. Under paragraph (c)(2) of this 
section (which is applied using an adjusted basis of $110), $10 of such 
gain is treated as ordinary income. The remaining $50 of gain from the 
sale of the FX stock is long term capital gain because A held such stock 
for more than one year.

    (e) Stock owned through certain foreign entities--(1) In general. 
Except as provided in paragraph (e)(2) of this section, the following 
rules shall apply in determining stock ownership for purposes of this 
section. PFIC stock owned, directly or indirectly, by or for a foreign 
partnership, foreign trust (other than a foreign trust described in 
sections 671 through 679), or foreign estate shall be considered as 
being owned proportionately by its partners or beneficiaries. PFIC stock 
owned, directly or indirectly, by or for a foreign trust described in 
sections 671 through 679 shall be considered as being owned 
proportionately by its grantors or other persons treated as owners under 
sections 671 through 679 of any portion of the trust that includes the 
stock. The determination of a person's proportionate interest in a 
foreign partnership, foreign trust or foreign estate will be made on the 
basis of all the facts and circumstances. Stock considered owned by 
reason of this paragraph shall, for purposes of applying the rules of 
this section, be treated as actually owned by such person.
    (2) Stock owned indirectly by eligible RICs. The rules for 
attributing ownership of stock contained in Sec. 1.1296-2(f) will apply 
to determine the indirect ownership of PFIC stock by an eligible RIC.
    (f) Holding period. Solely for purposes of sections 1291 through 
1298, if section 1296 applied to stock with respect to the taxpayer for 
any prior taxable year, the taxpayer's holding period in such stock 
shall be treated as beginning on the first day of the first taxable year 
beginning after the last taxable year for which section 1296 so applied.
    (g) Special rules--(1) Certain dispositions of stock. To the extent 
a United States person is treated as actually owning stock in a PFIC 
under paragraph (e) of this section, any disposition which results in 
the United States person being treated as no longer owning such stock, 
and any disposition by the person owning such stock, shall be treated as 
a disposition by the United States person of the stock in the PFIC.
    (2) Treatment of CFC as a United States person. In the case of a CFC 
that owns, or is treated as owning under paragraph (e) of this section, 
section 1296 stock:
    (i) Other than with respect to the sourcing rules in paragraph 
(c)(6) of this section, this section shall apply to the CFC in the same 
manner as if such corporation were a United States person. The CFC will 
be treated as a foreign person for purposes of applying the source rules 
of paragraph (c)(6).
    (ii) For purposes of subpart F of part III of subchapter N of the 
Internal Revenue Code--
    (A) Amounts included in the CFC's gross income under paragraph 
(c)(1) or (i)(2)(ii) of this section shall be treated as foreign 
personal holding company income under section 954(c)(1)(A); and
    (B) Amounts allowed as a deduction under paragraph (c)(3) of this 
section shall be treated as a deduction allocable to foreign personal 
holding company income for purposes of computing

[[Page 628]]

net foreign base company income under Sec. 1.954-1(c).
    (iii) A United States shareholder, as defined in section 951(b), of 
the CFC shall not be subject to section 1291 with respect to any stock 
of the PFIC for the period during which the section 1296 election is in 
effect for that stock, and the holding period rule of paragraph (f) of 
this section shall apply to such United States shareholder.
    (iv) The rules of this paragraph (g)(2) shall not apply to a United 
States person that is a shareholder of the PFIC for purposes of section 
1291, but is not a United States shareholder under section 951(b) with 
respect to the CFC making a section 1296 election.
    (3) Timing of inclusions for stock owned through certain foreign 
entities. In the case of section 1296 stock that a United States person 
is treated as owning through certain foreign entities pursuant to 
paragraph (e) of this section, the mark to market gain or mark to market 
loss is determined in accordance with paragraphs (c) and (i)(2)(ii) of 
this section as of the last day of the taxable year of the foreign 
partnership, foreign trust or foreign estate and then included in the 
taxable year of such United States person that includes the last day of 
the taxable year of the entity.
    (h) Elections--(1) Timing and manner for making a section 1296 
election--(i) United States persons. A United States person that owns 
marketable stock in a PFIC, or is treated as owning marketable stock 
under paragraph (e) of this section, on the last day of the taxable year 
of such person, and that wants to make a section 1296 election, must 
make a section 1296 election for such taxable year on or before the due 
date (including extensions) of the United States person's income tax 
return for that year. The section 1296 election must be made on the Form 
8621, ``Return by a Shareholder of a Passive Foreign Investment Company 
or Qualified Electing Fund'', included with the original tax return of 
the United States person for that year, or on an amended return, 
provided that the amended return is filed on or before the election due 
date.
    (ii) Controlled foreign corporations. A section 1296 election by a 
CFC shall be made by its controlling United States shareholders, as 
defined in Sec. 1.964-1(c)(5), and shall be included with the Form 
5471, ``Information Return of U.S. Persons With Respect to Certain 
Foreign Corporations'', for that CFC by the due date (including 
extensions) of the original income tax returns of the controlling United 
States shareholders for that year. A section 1296 election by a CFC 
shall be binding on all United States shareholders of the CFC.
    (iii) Retroactive elections for PFIC stock held in prior years. A 
late section 1296 election may be permitted only in accordance with 
Sec. 301.9100 of this chapter.
    (2) Effect of section 1296 election--(i) A section 1296 election 
will apply to the taxable year for which such election is made and 
remain in effect for each succeeding taxable year unless such election 
is revoked or terminated pursuant to paragraph (h)(3) of this section.
    (ii) Cessation of a foreign corporation as a PFIC. A United States 
person will not include mark to market gain or loss pursuant to 
paragraph (c) of this section with respect to any stock of a foreign 
corporation for any taxable year that such foreign corporation is not a 
PFIC under section 1297 or treated as a PFIC under section 1298(b)(1) 
(taking into account the holding period rule of paragraph (f) of this 
section). Cessation of a foreign corporation's status as a PFIC will 
not, however, terminate a section 1296 election. Thus, if a foreign 
corporation is a PFIC in a taxable year after a year in which it is not 
treated as a PFIC, the United States person's original election (unless 
revoked or terminated in accordance with paragraph (h)(3) of this 
section) continues to apply and the shareholder must include any mark to 
market gain or loss in such year.
    (3) Revocation or termination of election--(i) In general. A United 
States person's section 1296 election is terminated if the section 1296 
stock ceases to be marketable; if the United States person elects, or is 
required, to mark to market the section 1296 stock under another 
provision of chapter 1 of the Internal Revenue Code; or if the 
Commissioner, in the Commissioner's discretion, consents to the United 
States person's request to revoke its section

[[Page 629]]

1296 election upon a finding of a substantial change in circumstances. A 
substantial change in circumstances for this purpose may include a 
foreign corporation ceasing to be a PFIC.
    (ii) Timing of termination or revocation. Where a section 1296 
election is terminated automatically (e.g., the stock ceases to be 
marketable), section 1296 will cease to apply beginning with the taxable 
year in which such termination occurs. Where a section 1296 election is 
revoked with the consent of the Commissioner, section 1296 will cease to 
apply beginning with the first taxable year of the United States person 
after the revocation is granted unless otherwise provided by the 
Commissioner.
    (4) Examples. The operation of the rules of this paragraph (h) is 
illustrated by the following examples:

    Example 1. A, a United States person, owns stock in FX, a PFIC. A 
makes a QEF election in 1996 with respect to the FX stock. For taxable 
year 2005, A makes a timely section 1296 election with respect to its 
stock, and thus its QEF election is automatically terminated pursuant to 
Sec. 1.1295-1(i)(3). In 2006, A's stock in FX ceases to be marketable, 
and therefore its section 1296 election is automatically terminated 
under paragraph (h)(3) of this section. Beginning with taxable year 
2006, A is subject to the rules of section 1291 with respect to its FX 
stock unless it makes a new QEF election. See Sec. 1.1295-1(i)(5).
    Example 2. The facts are the same as in Example 1, except that A's 
stock in FX becomes marketable again in 2007. A may make a new section 
1296 election with respect to the FX stock for its taxable year 2007, or 
thereafter. A will be subject to the coordination rules under paragraph 
(i) of this section unless it made a new QEF election in 2006.

    (i) Coordination rules for first year of election--(1) In general. 
Notwithstanding any provision in this section to the contrary, the rules 
of this paragraph (i) shall apply to the first taxable year in which a 
section 1296 election is effective with respect to marketable stock of a 
PFIC if such foreign corporation was a PFIC for any taxable year, prior 
to such first taxable year, during the United States person's holding 
period (as defined in paragraph (f) of this section) in such stock, and 
for which such corporation was not treated as a QEF with respect to such 
United States person.
    (2) Shareholders other than regulated investment companies. For the 
first taxable year of a United States person (other than a regulated 
investment company) for which a section 1296 election is in effect with 
respect to the stock of a PFIC, such United States person shall, in lieu 
of the rules of paragraphs (c) and (d) of this section--
    (i) Apply the rules of section 1291 to any distributions with 
respect to, or disposition of, section 1296 stock;
    (ii) Apply section 1291 to the amount of the excess, if any, of the 
fair market value of such section 1296 stock on the last day of the 
United States person's taxable year over its adjusted basis, as if such 
amount were gain recognized from the disposition of stock on the last 
day of the taxpayer's taxable year; and
    (iii) Increase its adjusted basis in the section 1296 stock by the 
amount of excess, if any, subject to section 1291 under paragraph 
(i)(2)(ii) of this section.
    (3) Shareholders that are regulated investment companies. For the 
first taxable year of a regulated investment company for which a section 
1296 election is in effect with respect to the stock of a PFIC, such 
regulated investment company shall increase its tax under section 852 by 
the amount of interest that would have been imposed under section 
1291(c)(3) for such taxable year if such regulated investment company 
were subject to the rules of paragraph (i)(2) of this section, and not 
this paragraph (i)(3). No deduction or increase in basis shall be 
allowed for the increase in tax imposed under this paragraph (i)(3).
    (4) The operation of the rules of this paragraph (i) is illustrated 
by the following examples:

    Example (1). A, a United States person and a calendar year taxpayer, 
owns marketable stock in FX, a PFIC that it acquired on January 1, 1992. 
At all times, A's FX stock was a nonqualified fund subject to taxation 
under section 1291. A made a timely section 1296 election effective for 
taxable year 2005. At the close of taxable year 2005, the fair market 
value of A's FX stock exceeded its adjusted basis by $10. Pursuant to 
paragraph (i)(2)(ii) of this section, A must treat the $10 gain under 
section 1291 as if the FX stock were disposed of on December 31, 2005. 
Further, A increases its adjusted basis in the FX stock by the $10 in 
accordance with paragraph (i)(2)(iii) of this section.

[[Page 630]]

    Example (2). Assume the same facts as in Example (1), except that A 
is a RIC that had not made an election prior to 2005 to mark to market 
the PFIC stock. In taxable year 2005, A includes $10 of ordinary income 
under paragraph (c)(1) of this section, and such amount is not subject 
to section 1291. A also increases its tax imposed under section 852 by 
the amount of interest that would have been determined under section 
1291(c)(3), and no deduction is permitted for such amount. Finally, 
under paragraph (d)(1) of this section, A increases its adjusted basis 
in the FX stock by $10.

    (j) Effective date. The provisions in this section are applicable 
for taxable years beginning on or after May 3, 2004.

[T.D. 9123, 69 FR 24074, May 3, 2004]



Sec. 1.1296-2  Definition of marketable stock.

    (a) General rule. For purposes of section 1296, the term marketable 
stock means--
    (1) Passive foreign investment company (PFIC) stock that is 
regularly traded, as defined in paragraph (b) of this section, on a 
qualified exchange or other market, as defined in paragraph (c) of this 
section;
    (2) Stock in certain PFICs, as described in paragraph (d) of this 
section; and
    (3) Options on stock that is described in paragraph (a)(1) or (2) of 
this section, to the extent provided in paragraph (e) of this section.
    (b) Regularly traded--(1) General rule. For purposes of paragraph 
(a)(1) of this section, a class of stock that is traded on one or more 
qualified exchanges or other markets, as defined in paragraph (c) of 
this section, is regularly traded on such exchanges or markets for any 
calendar year during which such class of stock is traded, other than in 
de minimis quantities, on at least 15 days during each calendar quarter.
    (2) Special rule for year of initial public offering. For the 
calendar year in which a corporation initiates a public offering of a 
class of stock for trading on one or more qualified exchanges or other 
markets, as defined in paragraph (c) of this section, such class of 
stock meets the requirements of paragraph (b)(1) of this section for 
such year if the stock is regularly traded on such exchanges or markets, 
other than in de minimis quantities, on 1/6 of the days remaining in the 
quarter in which the offering occurs, and on at least 15 days during 
each remaining quarter of the taxpayer's calendar year. In cases where a 
corporation initiates a public offering of a class of stock in the 
fourth quarter of the calendar year, such class of stock meets the 
requirements of paragraph (b)(1) of this section in the calendar year of 
the offering if the stock is regularly traded on such exchanges or 
markets, other than in de minimis quantities, on the greater of 1/6 of 
the days remaining in the quarter in which the offering occurs, or 5 
days.
    (3) Anti-abuse rule. Trades that have as one of their principal 
purposes the meeting of the trading requirements of paragraph (b)(1) or 
(2) of this section shall be disregarded. Further, a class of stock 
shall not be treated as meeting the trading requirement of paragraph 
(b)(1) or (2) of this section if there is a pattern of trades conducted 
to meet the requirement of paragraph (b)(1) or (2) of this section. 
Similarly, paragraph (b)(2) of this section shall not apply to a public 
offering of stock that has as one of its principal purposes to avail 
itself of the reduced trading requirements under the special rule for 
the calendar year of an initial public offering. For purposes of 
applying the immediately preceding sentence, consideration will be given 
to whether the trading requirements of paragraph (b)(1) of this section 
are satisfied in the subsequent calendar year.
    (c) Qualified exchange or other market--(1) General rule. For 
purposes of paragraph (a)(1) of this section, the term qualified 
exchange or other market means, for any calendar year--
    (i) A national securities exchange that is registered with the 
Securities and Exchange Commission or the national market system 
established pursuant to section 11A of the Securities Exchange Act of 
1934 (15 U.S.C. 78f); or
    (ii) A foreign securities exchange that is regulated or supervised 
by a governmental authority of the country in which the market is 
located and which has the following characteristics--

[[Page 631]]

    (A) The exchange has trading volume, listing, financial disclosure, 
surveillance, and other requirements designed to prevent fraudulent and 
manipulative acts and practices, to remove impediments to and perfect 
the mechanism of a free and open, fair and orderly, market, and to 
protect investors; and the laws of the country in which the exchange is 
located and the rules of the exchange ensure that such requirements are 
actually enforced; and
    (B) The rules of the exchange effectively promote active trading of 
listed stocks.
    (2) Exchange with multiple tiers. If an exchange in a foreign 
country has more than one tier or market level on which stock may be 
separately listed or traded, each such tier shall be treated as a 
separate exchange.
    (d) Stock in certain PFICs--(1) General rule. Except as provided in 
paragraph (d)(2) of this section, a foreign corporation is a corporation 
described in section 1296(e)(1)(B), and paragraph (a)(2) of this 
section, if the foreign corporation offers for sale or has outstanding 
stock of which it is the issuer and which is redeemable at its net asset 
value and if the foreign corporation satisfies the following conditions 
with respect to the class of shares held by the electing taxpayer--
    (i) At all times during the calendar year, the foreign corporation 
has more than one hundred shareholders with respect to the class, other 
than shareholders who are related under section 267(b);
    (ii) At all times during the calendar year, the class of shares of 
the foreign corporation is readily available for purchase by the general 
public at its net asset value and the foreign corporation does not 
require a minimum initial investment of greater than $10,000 (U.S.);
    (iii) At all times during the calendar year, quotations for the 
class of shares of the foreign corporation are determined and published 
no less frequently than on a weekly basis in a widely-available 
permanent medium not controlled by the issuer of the shares, such as a 
newspaper of general circulation or a trade publication;
    (iv) No less frequently than annually, independent auditors prepare 
financial statements of the foreign corporation that include balance 
sheets (statements of assets, liabilities, and net assets) and 
statements of income and expenses, and those statements are made 
available to the public;
    (v) The foreign corporation is supervised or regulated as an 
investment company by a foreign government or an agency or 
instrumentality thereof that has broad inspection and enforcement 
authority and effective oversight over investment companies;
    (vi) At all times during the calendar year, the foreign corporation 
has no senior securities authorized or outstanding, including any debt 
other than in de minimis amounts;
    (vii) Ninety percent or more of the gross income of the foreign 
corporation for its taxable year is passive income, as defined in 
section 1297(a)(1) and the regulations thereunder; and
    (viii) The average percentage of assets held by the foreign 
corporation during its taxable year which produce passive income or 
which are held for the production of passive income, as defined in 
section 1297(a)(2) and the regulations thereunder, is at least 90 
percent.
    (2) Anti-abuse rule. If a foreign corporation undertakes any actions 
that have as one of their principal purposes the manipulation of the net 
asset value of a class of its shares, for the calendar year in which the 
manipulation occurs, the shares are not marketable stock for purposes of 
paragraph (d)(1) of this section.
    (e) [Reserved]
    (f) Special rules for regulated investment companies (RICs)--(1) 
General rule. In the case of any RIC that is offering for sale, or has 
outstanding, any stock of which it is the issuer and which is redeemable 
at net asset value, if the RIC owns directly or indirectly, as defined 
in section 1298(a), stock in any passive foreign investment company, 
that stock will be treated as marketable stock owned by that RIC for 
purposes of section 1296. Except as provided in paragraph (f)(2) of this 
section,

[[Page 632]]

in the case of any other RIC that publishes net asset valuations at 
least annually, if the RIC owns directly or indirectly, as defined in 
section 1298(a), stock in any passive foreign investment company, that 
stock will be treated as marketable stock owned by that RIC for purposes 
of section 1296.
    (2) [Reserved]
    (g) Effective date. This section applies to shareholders whose 
taxable year ends on or after January 25, 2000 for stock in a foreign 
corporation whose taxable year ends with or within the shareholder's 
taxable year. In addition, shareholders may elect to apply these 
regulations to any taxable year beginning after December 31, 1997, for 
stock in a foreign corporation whose taxable year ends with or within 
the shareholder's taxable year.

[T.D. 8867, 65 FR 3819, Jan. 25, 2000. Redesignated and amended by T.D. 
9123, 69 FR 24073, May 3, 2004]



Sec. 1.1297-0  Table of contents.

    This section contains a listing of the paragraph headings for Sec. 
1.1297-3.



Sec. 1.1297-3  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a section 1297(e) PFIC. [Reserved]

    For further guidance, see the entries in Sec. 1.1297-3T.

[T.D. 9231, 70 FR 72915, Dec. 8, 2005]



Sec. 1.1297-0T  Table of contents (temporary).

    This section contains a listing of the headings for Sec. 1.1297-3T.



Sec. 1.1297-3T  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a section 1297(e) PFIC (temporary).

    (a) In general.
    (b) Application of deemed sale election rules.
    (1) Eligibility to make the deemed sale election.
    (2) Effect of the deemed sale election.
    (3) Time for making the deemed sale election.
    (4) Manner of making the deemed sale election.
    (5) Adjustments to basis.
    (6) Treatment of holding period.
    (c) Application of deemed dividend election rules.
    (1) Eligibility to make the deemed dividend election.
    (2) Effect of the deemed dividend election.
    (3) Post-1986 earnings and profits defined.
    (4) Time for making the deemed dividend election.
    (5) Manner of making the deemed dividend election.
    (6) Adjustments to basis.
    (7) Treatment of holding period.
    (8) Coordination with section 959(e).
    (d) CFC qualification date.
    (e) Late elections requiring special consent.
    (1) In general.
    (2) Prejudice to the interests of the U.S. government.
    (3) Procedural requirements.
    (4) Time and manner of making late election.
    (f) Effective date.

[T.D. 9232, 70 FR 72910, Dec. 8, 2005]



Sec. 1.1297-3  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a section 1297(e) PFIC.

    [Reserved] For further guidance, see Sec. 1.1297-3T.

[T.D. 9231, 70 FR 72915, Dec. 8, 2005]



Sec. 1.1297-3T  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a section 1297(e) PFIC (temporary).

    (a) In general. A shareholder (as defined in Sec. 1.1291-9(j)(3)) 
of a foreign corporation that is a section 1297(e) PFIC (as defined in 
Sec. 1.1291-9T(j)(2)(v)) with respect to such shareholder, shall be 
treated for tax purposes as holding stock in a PFIC and therefore 
continues to be subject to taxation under section 1291 unless the 
shareholder makes a purging election under section 1298(b)(1). A purging 
election under section 1298(b)(1) is made under rules similar to the 
rules of section 1291(d)(2). Section 1291(d)(2) allows a shareholder to 
purge the continuing PFIC taint by either making a deemed sale election 
or a deemed dividend election.
    (b) Application of deemed sale election rules--(1) Eligibility to 
make the deemed sale election. A shareholder of a foreign corporation 
that is a section 1297(e) PFIC with respect to such shareholder may make 
a deemed sale election under section 1298(b)(1) by applying the rules of 
this paragraph (b).

[[Page 633]]

    (2) Effect of the deemed sale election. A shareholder making the 
deemed sale election with respect to a section 1297(e) PFIC shall be 
treated as having sold all of its stock in the section 1297(e) PFIC for 
its fair market value on the CFC qualification date, as defined in 
paragraph (d) of this section. A deemed sale under this section is 
treated as a disposition subject to taxation under section 1291. Thus, 
the gain from the deemed sale is taxed as an excess distribution 
received on the CFC qualification date. In the case of an election made 
by an indirect shareholder, the amount of gain to be recognized and 
taxed as an excess distribution is the amount of gain that the direct 
owner of the stock of the PFIC would have realized on an actual sale or 
disposition of the stock of the PFIC indirectly owned by the 
shareholder. Any loss realized on the deemed sale is not recognized. 
After the deemed sale election, the shareholder's stock with respect to 
which the election was made under this paragraph (b) shall not be 
treated as stock in a PFIC and the shareholder shall not be subject to 
taxation under section 1291 with respect to such stock unless the 
qualified portion of the shareholder's holding period ends, as 
determined under section 1297(e)(2), and the foreign corporation 
thereafter qualifies as a PFIC under section 1297(a).
    (3) Time for making the deemed sale election. Except as provided in 
paragraph (e) of this section, a shareholder shall make the deemed sale 
election under this paragraph (b) and section 1298(b)(1) in the 
shareholder's original or amended return for the taxable year that 
includes the CFC qualification date (election year). If the deemed sale 
election is made in an amended return, the return must be filed by a 
date that is within three years of the due date, as extended under 
section 6081, of the original return for the election year.
    (4) Manner of making the deemed sale election. A shareholder makes 
the deemed sale election under this paragraph (b) by filing Form 8621 
(``Return by a Shareholder of a Passive Foreign Investment Company or 
Qualified Electing Fund'') with the return of the shareholder for the 
election year, reporting the gain as an excess distribution pursuant to 
section 1291(a) as if such sale occurred under section 1291(d)(2), and 
paying the tax and interest due on the excess distribution. A 
shareholder that makes the deemed sale election after the due date of 
the return (determined without regard to extensions) for the election 
year must pay additional interest, pursuant to section 6601, on the 
amount of underpayment of tax for that year. An electing shareholder 
that realizes a loss shall report the loss on Form 8621, but shall not 
recognize the loss.
    (5) Adjustments to basis. A shareholder that makes the deemed sale 
election increases its adjusted basis of the PFIC stock owned directly 
by the amount of gain recognized on the deemed sale. If the shareholder 
makes the deemed sale election with respect to a PFIC of which it is an 
indirect shareholder, the shareholder's adjusted basis of the stock or 
other property owned directly by the shareholder, through which 
ownership of the PFIC is attributed to the shareholder, is increased by 
the amount of gain recognized by the shareholder. In addition, solely 
for purposes of determining the subsequent treatment under the Code and 
regulations of a shareholder of the stock of the PFIC, the adjusted 
basis of the direct owner of the stock of the PFIC is increased by the 
amount of gain recognized on the deemed sale. A shareholder shall not 
adjust the basis of any stock with respect to which the shareholder 
realized a loss on the deemed sale, which loss is not recognized under 
paragraph (b)(2) of this section.
    (6) Treatment of holding period. If a shareholder of a foreign 
corporation has made a deemed sale election, then, for purposes of 
applying sections 1291 through 1298 to such shareholder after the deemed 
sale, the shareholder's holding period in the stock of the foreign 
corporation begins on the CFC qualification date, without regard to 
whether the shareholder recognized gain on the deemed sale. For other 
purposes of the Code and regulations, this holding period rule does not 
apply.
    (c) Application of deemed dividend election rules--(1) Eligibility 
to make the deemed dividend election. A shareholder of a foreign 
corporation that is a section 1297(e) PFIC with respect to such

[[Page 634]]

shareholder may make the deemed dividend election under the rules of 
this paragraph (c). A deemed dividend election may be made by a 
shareholder whose pro rata share of the post-1986 earnings and profits 
of the PFIC attributable to the PFIC stock held on the CFC qualification 
date is zero.
    (2) Effect of the deemed dividend election. A shareholder making the 
deemed dividend election with respect to a section 1297(e) PFIC shall 
include in income as a dividend its pro rata share of the post-1986 
earnings and profits of the PFIC attributable to all of the stock it 
held, directly or indirectly on the CFC qualification date, as defined 
in paragraph (d) of this section. The deemed dividend is taxed under 
section 1291 as an excess distribution received on the CFC qualification 
date. The excess distribution determined under this paragraph (c) is 
allocated under section 1291(a)(1)(A) only to each day of the 
shareholder's holding period of the stock during which the foreign 
corporation qualified as a PFIC. For purposes of the preceding sentence, 
the shareholder's holding period of the PFIC stock ends on the day 
before the CFC qualification date. After the deemed dividend election, 
the shareholder's stock with respect to which the election was made 
under this paragraph (c) shall not be treated as stock in a PFIC and the 
shareholder shall not be subject to taxation under section 1291 with 
respect to such stock unless the qualified portion of the shareholder's 
holding period ends, as determined under section 1297(e)(2), and the 
foreign corporation thereafter qualifies as a PFIC under section 
1297(a).
    (3) Post-1986 earnings and profits defined: (i) In general--(A) 
General rule. For purposes of this section, the term post-1986 earnings 
and profits means the post-1986 undistributed earnings, within the 
meaning of section 902(c)(1) (determined without regard to section 
902(c)(3)), as of the day before the CFC qualification date, that were 
accumulated and not distributed in taxable years of the PFIC beginning 
after 1986 and during which it was a PFIC, without regard to whether the 
earnings related to a period during which the PFIC was a CFC.
    (B) Special rule. If the CFC qualification date is a day that is 
after the first day of the taxable year, the term post-1986 earnings and 
profits means the post-1986 undistributed earnings, within the meaning 
of section 902(c)(1) (determined without regard to section 902(c)(3)), 
as of the close of the taxable year that includes the CFC qualification 
date. For purposes of this computation, only earnings and profits 
accumulated in taxable years during which the foreign corporation was a 
PFIC shall be taken into account, but without regard to whether the 
earnings related to a period during which the PFIC was a CFC.
    (ii) Pro rata share of post-1986 earnings and profits attributable 
to shareholder's stock: (A) In general. A shareholder's pro rata share 
of the post-1986 earnings and profits of the PFIC attributable to the 
stock held by the shareholder on the CFC qualification date is the 
amount of post-1986 earnings and profits of the PFIC accumulated during 
any portion of the shareholder's holding period ending at the close of 
the day before the CFC qualification date and attributable, under the 
principles of section 1248 and the regulations under that section, to 
the PFIC stock held on the CFC qualification date.
    (B) Reduction for previously taxed amounts. A shareholder's pro rata 
share of the post-1986 earnings and profits of the PFIC does not include 
any amount that the shareholder demonstrates to the satisfaction of the 
Commissioner (in the manner provided in paragraph (c)(5)(ii) of this 
section) was, pursuant to another provision of the law, previously 
included in the income of the shareholder, or of another U.S. person if 
the shareholder's holding period of the PFIC stock includes the period 
during which the stock was held by that other U.S. person.
    (4) Time for making the deemed dividend election. Except as provided 
in paragraph (e) of this section, the shareholder shall make the deemed 
dividend election under this paragraph (c) and section 1298(b)(1) in the 
shareholder's original or amended return for the taxable year that 
includes the CFC qualification date (election year). If the deemed 
dividend election is made in an amended return, the return must be

[[Page 635]]

filed by a date that is within three years of the due date, as extended 
under section 6081, of the original return for the election year.
    (5) Manner of making the deemed dividend election: (i) In general. A 
shareholder makes the deemed dividend election by filing Form 8621 and 
the attachment to Form 8621 described in paragraph (c)(5)(ii) of this 
section with the return of the shareholder for the election year, 
reporting the deemed dividend as an excess distribution pursuant to 
section 1291(a)(1), and paying the tax and interest due on the excess 
distribution. A shareholder that makes the deemed dividend election 
after the due date of the return (determined without regard to 
extensions) for the election year must pay additional interest, pursuant 
to section 6601, on the amount of underpayment of tax for that year.
    (ii) Attachment to Form 8621. The shareholder must attach a schedule 
to Form 8621 that demonstrates the calculation of the shareholder's pro 
rata share of the post-1986 earnings and profits of the PFIC that is 
treated as distributed to the shareholder on the CFC qualification date, 
pursuant to this paragraph (c). If the shareholder is claiming an 
exclusion from its pro rata share of the post-1986 earnings and profits 
for an amount previously included in its income or the income of another 
U.S. person, the shareholder must include the following information:
    (A) The name, address and taxpayer identification number of each 
U.S. person that previously included an amount in income, the amount 
previously included in income by each such U.S. person, the provision of 
law, pursuant to which the amount was previously included in income, and 
the taxable year or years of inclusion of each amount.
    (B) A description of the transaction pursuant to which the 
shareholder acquired, directly or indirectly, the stock of the PFIC from 
another U.S. person, and the provision of law pursuant to which the 
shareholder's holding period includes the period the other U.S. person 
held the CFC stock.
    (6) Adjustments to basis. A shareholder that makes the deemed 
dividend election increases its adjusted basis of the stock of the PFIC 
owned directly by the shareholder by the amount of the deemed dividend. 
If the shareholder makes the deemed dividend election with respect to a 
PFIC of which it is an indirect shareholder, the shareholder's adjusted 
basis of the stock or other property owned directly by the shareholder, 
through which ownership of the PFIC is attributed to the shareholder, is 
increased by the amount of the deemed dividend. In addition, solely for 
purposes of determining the subsequent treatment under the Code and 
regulations of a shareholder of the stock of the PFIC, the adjusted 
basis of the direct owner of the stock of the PFIC is increased by the 
amount of the deemed dividend.
    (7) Treatment of holding period. If the shareholder of a foreign 
corporation has made a deemed dividend election, then, for purposes of 
applying sections 1291 through 1298 to such shareholder after the deemed 
dividend, the shareholder's holding period of the stock of the foreign 
corporation begins on the CFC qualification date. For other purposes of 
the Code and regulations, this holding period rule does not apply.
    (8) Coordination with section 959(e). For purposes of section 
959(e), the entire deemed dividend is treated as having been included in 
gross income under section 1248(a).
    (d) CFC qualification date. For purposes of this section, the CFC 
qualification date is the first day on which the qualified portion of 
the shareholder's holding period in the section 1297(e) PFIC begins, as 
determined under section 1297(e).
    (e) Late elections requiring special consent: (1) In general. This 
section prescribes the exclusive rules under which a shareholder of a 
section 1297(e) PFIC may make a section 1298(b)(1) election after the 
time prescribed in paragraph (b)(2) or (c)(4) of this section for making 
a deemed sale or a deemed dividend election has elapsed (late purging 
election). Therefore, a shareholder may not seek such relief under any 
other provisions of the law, including Sec. 301.9100-3 of this chapter. 
A shareholder may request the consent of the Commissioner to make a late 
deemed sale or deemed dividend election for the taxable year

[[Page 636]]

of the shareholder that includes the CFC qualification date provided the 
shareholder satisfies the requirements set forth in this paragraph (e). 
The Commissioner may, in his discretion, grant relief under this 
paragraph (e) only if:
    (i) In a case where the shareholder is requesting consent under this 
paragraph (e) after June 30, 2006, the shareholder requests such consent 
before a representative of the Internal Revenue Service raises upon 
audit the PFIC status of the foreign corporation for any taxable year of 
the shareholder;
    (ii) The shareholder has agreed in a closing agreement with the 
Commissioner, described in paragraph (e)(3) of this section, to 
eliminate any prejudice to the interests of the U.S. government, as 
determined under paragraph (e)(2) of this section, as a consequence of 
the shareholder's inability to file amended returns for its taxable year 
in which the CFC qualification date falls, or an earlier closed taxable 
year in which the shareholder has taken a position that is inconsistent 
with the treatment of the foreign corporation as a PFIC; and
    (iii) The shareholder satisfies the procedural requirements set 
forth in paragraph (e)(3) of this section.
    (2) Prejudice to the interests of the U.S. government. The interests 
of the U.S. government are prejudiced if granting relief would result in 
the shareholder having a lower tax liability (other than by a de minimis 
amount), taking into account applicable interest charges, for the 
taxable year that includes the CFC qualification date (or a prior 
taxable year in which the taxpayer took a position on a return that was 
inconsistent with the treatment of the foreign corporation as a PFIC) 
than the shareholder would have had if the shareholder had properly made 
the section 1298(b)(1) election in the time prescribed in paragraph 
(b)(2) or (c)(3) of this section (or had not taken a position in a 
return for an earlier year that was inconsistent with the status of the 
foreign corporation as a PFIC). The time value of money is taken into 
account for purposes of this computation.
    (3) Procedural requirements: (i) In general. The amount due with 
respect to a late purging election is determined in the same manner as 
if the purging election had been timely filed. However, the shareholder 
is also liable for interest on the amount due, determined for the period 
beginning on the due date (without extensions) for the taxpayer's income 
tax return for the year in which the CFC qualification date falls and 
ending on the date the late purging election is filed with the IRS.
    (ii) Filing instructions. A late purging election is made by filing 
a completed Form 8621-A, ``Return by a Shareholder Making Certain Late 
Elections to End Treatment as a Passive Foreign Investment Company.''
    (4) Time and manner of making late election: (i) Time for making a 
late purging election. A shareholder may make a late purging election in 
the manner provided in paragraph (e)(4)(ii) of this section at any time. 
The date the election is filed with the IRS will determine the amount of 
interest due under paragraph (e)(3) of this section.
    (ii) Manner of making a late purging election. A shareholder makes a 
late purging election by completing Form 8621-A in the manner required 
by that form and this section and filing that form with the Internal 
Revenue Service, DP 8621-A, Ogden, UT 84201.
    (f) Effective date. (1) The rules of this section are applicable as 
of December 8, 2005.
    (2) The applicability of this section will expire on or before 
December 8, 2008.

[T.D. 9232, 70 FR 72910, Dec. 8, 2005; T.D. 9232, 71 FR 4042, Jan. 25, 
2006]



Sec. 1.1298-0  Table of contents.

    This section contains a listing of the paragraph headings for Sec. 
1.1298-3.



Sec. 1.1298-3  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a former PFIC.

    (a) In general.
    (b) Application of deemed sale election rules.
    (1) Eligibility to make the deemed sale election.
    (2) Effect of deemed sale election.
    (3) Time for making the deemed sale election.
    (4) Manner of making the deemed sale election.
    (5) Adjustments to basis.
    (6) Treatment of holding period.

[[Page 637]]

    (c) Application of deemed dividend election rules.
    (1) Eligibility to make the deemed dividend election.
    (2) Effect of the deemed dividend election.
    (3) Post-1986 earnings and profits defined.
    (4) Time for making the deemed dividend election.
    (5) Manner of making the deemed dividend election.
    (6) Adjustments to basis.
    (7) Treatment of holding period.
    (8) Coordination with section 959(e).
    (d) Termination date.
    (e) Late purging elections requiring special consent. [Reserved] For 
further guidance, see Sec. 1.1298-0T.
    (f) Effective date.

[T.D. 9231, 70 FR 72915, Dec. 8, 2005]



Sec. 1.1298-0T  Table of contents (temporary).

    This section contains a listing of the paragraph headings for Sec. 
1.1298-3T.



Sec. 1.1298-3T  Deemed sale or deemed dividend election by a U.S. 
person that is a shareholder of a former PFIC (temporary).

    (a) through (d) [Reserved] For further guidance, see Sec. 1.1298-0, 
the entries for Sec. 1.1298-3T(a) through (d).
    (e) Late purging elections requiring special consent.
    (1) In general.
    (2) Prejudice to the interests of the U.S. government.
    (3) Procedural requirement.
    (4) Time and manner of making late election.
    (f) Effective date.

[T.D. 9232, 70 FR 72913, Dec. 8, 2005]



Sec. 1.1298-3  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a former PFIC.

    (a) In general. A shareholder (as defined in Sec. 1.1291-9(j)(3)) 
of a foreign corporation that is a former PFIC, (as defined in Sec. 
1.1291-9(j)(2)(iv)) with respect to such shareholder, shall be treated 
for tax purposes as holding stock in a PFIC and therefore continues to 
be subject to taxation under section 1291 unless the shareholder makes a 
purging election under section 1298(b)(1). A purging election under 
section 1298(b)(1) is made under rules similar to the rules of section 
1291(d)(2). Section 1291(d)(2) allows a shareholder to purge the 
continuing PFIC taint by making either a deemed sale election or a 
deemed dividend election.
    (b) Application of deemed sale election rules--(1) Eligibility to 
make the deemed sale election. A shareholder of a foreign corporation 
that is a former PFIC with respect to such shareholder may make a deemed 
sale election under section 1298(b)(1) by applying the rules of this 
paragraph (b).
    (2) Effect of deemed sale election. A shareholder making the deemed 
sale election with respect to a former PFIC shall be treated as having 
sold all its stock in the former PFIC for its fair market value on the 
termination date, as defined in paragraph (d) of this section. A deemed 
sale is treated as a disposition subject to taxation under section 1291. 
Thus, gain from the deemed sale is taxed under section 1291 as an excess 
distribution received on the termination date. In the case of an 
election made by an indirect shareholder, the amount of gain to be 
recognized and taxed as an excess distribution is the amount of gain 
that the direct owner of the stock of the PFIC would have realized on an 
actual sale or disposition of the stock of the PFIC indirectly owned by 
the shareholder. Any loss realized on the deemed sale is not recognized. 
After the deemed sale election, the shareholder's stock with respect to 
which the election was made under this paragraph (b) shall not be 
treated as stock in a PFIC and the shareholder shall not be subject to 
taxation under section 1291 with respect to such stock unless the 
foreign corporation thereafter qualifies as a PFIC under section 
1297(a).
    (3) Time for making the deemed sale election. Except as provided in 
paragraph (e) of this section, the shareholder shall make the deemed 
sale election under this paragraph (b) and section 1298(b)(1) in the 
shareholder's original or amended return for the taxable year that 
includes the termination date (election year). If the deemed sale 
election is made in an amended return, the return must be filed by a 
date that is within three years of the due date, as extended under 
section 6081, of the original return for the election year.
    (4) Manner of making the deemed sale election. A shareholder makes 
the

[[Page 638]]

deemed sale election under this paragraph (b) by filing Form 8621 
(``Return by a Shareholder of a Passive Foreign Investment Company or 
Qualified Electing Fund'') with the return of the shareholder for the 
election year, reporting the gain as an excess distribution pursuant to 
section 1291(a) as if such deemed sale occurred under section 
1291(d)(2), and paying the tax and interest due on the excess 
distribution. A shareholder that makes the deemed sale election after 
the due date of the return (determined without regard to extensions) for 
the election year must pay additional interest, pursuant to section 
6601, on the amount of underpayment of tax for that year. An electing 
shareholder that realizes a loss shall report the loss on Form 8621, but 
shall not recognize the loss.
    (5) Adjustments to basis. A shareholder that makes the deemed sale 
election increases its adjusted basis of the PFIC stock owned directly 
by the amount of gain recognized on the deemed sale. If the shareholder 
makes the deemed sale election with respect to a PFIC of which it is an 
indirect shareholder, the shareholder's adjusted basis of the stock or 
other property owned directly by the shareholder, through which 
ownership of the PFIC is attributed to the shareholder, is increased by 
the amount of gain recognized by the shareholder. In addition, solely 
for purposes of determining the subsequent treatment under the Code and 
regulations of a shareholder of the stock of the PFIC, the adjusted 
basis of the direct owner of the stock of the PFIC is increased by the 
amount of gain recognized on the deemed sale. A shareholder shall not 
adjust the basis of any stock with respect to which the shareholder 
realized a loss on the deemed sale, but which loss is not recognized 
under paragraph (b)(2) of this section.
    (6) Treatment of holding period. If a shareholder of a foreign 
corporation has made a deemed sale election, then, for purposes of 
applying sections 1291 through 1298 to such shareholder after the deemed 
sale, the shareholder's holding period in the stock of the foreign 
corporation begins on the day following the termination, without regard 
to whether the shareholder recognized gain on the deemed sale. For other 
purposes of the Code and regulations, this holding period rule does not 
apply.
    (c) Application of deemed dividend election rules--(1) Eligibility 
to make the deemed dividend election. A shareholder of a foreign 
corporation that is a former PFIC with respect to such shareholder may 
make the deemed dividend election under the rules of this paragraph (c) 
provided the foreign corporation was a controlled foreign corporation 
(as defined in section 957(a) (CFC)) during its last taxable year as a 
PFIC. A shareholder may make the deemed dividend election without regard 
to whether the shareholder is a United States shareholder within the 
meaning of section 951(b). A deemed dividend election may be made by a 
shareholder whose pro rata share of the post-1986 earnings and profits 
of the PFIC attributable to the PFIC stock held on the termination date 
is zero.
    (2) Effect of the deemed dividend election. A shareholder making the 
deemed dividend election with respect to a former PFIC shall include in 
income as a dividend its pro rata share of the post-1986 earnings and 
profits of the PFIC attributable to all of the stock it held, directly 
or indirectly on the termination date, as defined in paragraph (d) of 
this section. The deemed dividend is taxed under section 1291 as an 
excess distribution received on the termination date. The excess 
distribution determined under this paragraph (c) is allocated under 
section 1291(a)(1)(A) only to each day of the shareholder's holding 
period of the stock during which the foreign corporation qualified as a 
PFIC. For purposes of the preceding sentence, the shareholder's holding 
period of the PFIC stock ends on the termination date. After the deemed 
dividend election, the shareholder's stock with respect to which the 
election was made under this paragraph (c) shall not be treated as stock 
in a PFIC and the shareholder shall not be subject to taxation under 
section 1291 with respect to such stock unless the foreign corporation 
thereafter qualifies as a PFIC under section 1297(a).
    (3) Post-1986 earnings and profits defined: (i) In general. For 
purposes of this section, the term post-1986 earnings and

[[Page 639]]

profits means the post-1986 undistributed earnings, within the meaning 
of section 902(c)(1) (determined without regard to section 902(c)(3)), 
as of the close of the taxable year that includes the termination date. 
For purposes of this computation, only earnings and profits accumulated 
in taxable years during which the foreign corporation was a PFIC shall 
be taken into account, without regard to whether the earnings relate to 
a period during which the PFIC was a CFC.
    (ii) Pro rata share of post-1986 earnings and profits attributable 
to shareholder's stock: (A) In general. A shareholder's pro rata share 
of the post-1986 earnings and profits of the PFIC attributable to the 
stock held by the shareholder on the termination date is the amount of 
post-1986 earnings and profits of the PFIC accumulated during any 
portion of the shareholder's holding period ending at the close of the 
termination date and attributable, under the principles of section 1248 
and the regulations under that section, to the PFIC stock held on the 
termination date.
    (B) Reduction for previously taxed amounts. A shareholder's pro rata 
share of the post-1986 earnings and profits of the PFIC does not include 
any amount that the shareholder demonstrates to the satisfaction of the 
Commissioner (in the manner provided in paragraph (c)(5)(ii) of this 
section) was, pursuant to another provision of the law, previously 
included in the income of the shareholder, or of another U.S. person if 
the shareholder's holding period of the PFIC stock includes the period 
during which the stock was held by that other U.S. person.
    (4) Time for making the deemed dividend election. Except as provided 
in paragraph (e) of this section, the shareholder shall make the deemed 
dividend election under this paragraph (c) and section 1298(b)(1) in the 
shareholder's original or amended return for the taxable year that 
includes the termination date (election year). If the deemed dividend 
election is made in an amended return, the return must be filed by a 
date that is within three years of the due date, as extended under 
section 6081, of the original return for the election year.
    (5) Manner of making the deemed dividend election: (i) In general. A 
shareholder makes the deemed dividend election by filing Form 8621 and 
the attachment to Form 8621 described in paragraph (c)(5)(ii) of this 
section with the return of the shareholder for the election year, 
reporting the deemed dividend as an excess distribution pursuant to 
section 1291(a)(1), and paying the tax and interest due on the excess 
distribution. A shareholder that makes the deemed dividend election 
after the due date of the return (determined without regard to 
extensions) for the election year must pay additional interest, pursuant 
to section 6601, on the amount of underpayment of tax for that year.
    (ii) Attachment to Form 8621. The shareholder must attach a schedule 
to Form 8621 that demonstrates the calculation of the shareholder's pro 
rata share of the post-1986 earnings and profits of the PFIC that is 
treated as distributed to the shareholder on the termination date 
pursuant to this paragraph (c). If the shareholder is claiming an 
exclusion from its pro rata share of the post-1986 earnings and profits 
for an amount previously included in its income or the income of another 
U.S. person, the shareholder must include the following information:
    (A) The name, address, and taxpayer identification number of each 
U.S. person that previously included an amount in income, the amount 
previously included in income by each such U.S. person, the provision of 
law pursuant to which the amount was previously included in income, and 
the taxable year or years of inclusion of each amount.
    (B) A description of the transaction pursuant to which the 
shareholder acquired, directly or indirectly, the stock of the PFIC from 
another U.S. person, and the provision of law pursuant to which the 
shareholder's holding period includes the period the other U.S. person 
held the CFC stock.
    (6) Adjustments to basis. A shareholder that makes the deemed 
dividend election increases its adjusted basis of the stock of the PFIC 
owned directly by the shareholder by the amount of the deemed dividend. 
If the shareholder

[[Page 640]]

makes the deemed dividend election with respect to a PFIC of which it is 
an indirect shareholder, the shareholder's adjusted basis of the stock 
or other property owned directly by the shareholder, through which 
ownership of the PFIC is attributed to the shareholder, is increased by 
the amount of the deemed dividend. In addition, solely for purposes of 
determining the subsequent treatment under the Code and regulations of a 
shareholder of the stock of the PFIC, the adjusted basis of the direct 
owner of the stock of the PFIC is increased by the amount of the deemed 
dividend.
    (7) Treatment of holding period. If the shareholder of a foreign 
corporation has made a deemed dividend election, then, for purposes of 
applying sections 1291 through 1298 to such shareholder after the deemed 
dividend, the shareholder's holding period of the stock of the foreign 
corporation begins on the day following the termination date. For other 
purposes of the Code and regulations, this holding period rule does not 
apply.
    (8) Coordination with section 959(e). For purposes of section 
959(e), the entire deemed dividend is treated as having been included in 
gross income under section 1248(a).
    (d) Termination date. For purposes of this section, the termination 
date is the last day of the last taxable year of the foreign corporation 
during which it qualified as a PFIC under section 1297(a).
    (e) Late purging elections requiring special consent. [Reserved] For 
further guidance, see Sec. 1.1298-3T(e).
    (f) Effective date. This section applies for taxable years of 
shareholders beginning on or after December 8, 2005. However, taxpayers 
may apply the rules of this section to a taxable year beginning prior to 
December 8, 2005, provided the statute of limitations on the assessment 
of tax has not expired.

[T.D. 9231, 70 FR 72915, Dec. 8, 2005]



Sec. 1.1298-3T  Deemed sale or deemed dividend election by a U.S. person 
that is a shareholder of a former PFIC (temporary).

    (a) through (d) [Reserved] For further guidance see Sec. 1.1298-
3(a) through (d).
    (e) Late purging elections requiring special consent--(1) In 
general. This section prescribes the exclusive rules under which a 
shareholder of a former PFIC may make a section 1298(b)(1) election 
after the time prescribed in paragraph (b)(2) or (c)(4) of this section 
for making a deemed sale or a deemed dividend election has elapsed (late 
purging election). Therefore, a shareholder may not seek such relief 
under any other provisions of the law, including Sec. 301.9100-3 of 
this chapter. A shareholder may request the consent of the Commissioner 
to make a late purging election for the taxable year of the shareholder 
that includes the termination date provided the shareholder satisfies 
the requirements set forth in this paragraph (e). The Commissioner may, 
in his discretion, grant relief under this paragraph (e) only if:
    (i) In a case where the shareholder is requesting consent under this 
paragraph (e) after June 30, 2006, the shareholder requests such consent 
before a representative of the Internal Revenue Service raises upon 
audit the PFIC status of the foreign corporation for any taxable year of 
the shareholder;
    (ii) The shareholder has agreed in a closing agreement with the 
Commissioner, described in paragraph (e)(3) of this section, to 
eliminate any prejudice to the interests of the U.S. government, as 
determined under paragraph (e)(2) of this section, as a consequence of 
the shareholder's inability to file amended returns for its taxable year 
in which the termination date falls, or an earlier closed taxable year 
in which the shareholder has taken a position that is inconsistent with 
the treatment of the foreign corporation as a PFIC; and
    (iii) The shareholder satisfies the procedural requirements set 
forth in paragraph (e)(3) of this section.
    (2) Prejudice to the interests of the U.S. government. The interests 
of the U.S. government are prejudiced if granting relief would result in 
the shareholder having a lower tax liability (other than by a de minimis 
amount), taking into account applicable interest charges, for the 
taxable year that includes the termination date (or a prior taxable year 
in which the taxpayer took a position on a return that was inconsistent 
with

[[Page 641]]

the treatment of the foreign corporation as a PFIC) than the shareholder 
would have had if the shareholder had properly made the section 
1298(b)(1) election in the time prescribed in paragraph (b)(2) or (c)(3) 
of this section (or had not taken a position in a return for an earlier 
year that was inconsistent with the status of the foreign corporation as 
a PFIC). The time value of money is taken into account for purposes of 
this computation.
    (3) Procedural requirement: (i) In general. The amount due with 
respect to a late purging election is determined in the same manner as 
if the purging election had been timely filed. However, the shareholder 
is also liable for interest on the amount due, determined for the period 
beginning on the due date (without extensions) for the taxpayer's income 
tax return for the year in which the CFC qualification date falls and 
ending on the date the late purging election is filed with the IRS.
    (ii) Filing instructions. A late purging election is made by filing 
a completed Form 8621-A, ``Return by a Shareholder Making Certain Late 
Elections to End Treatment as a Passive Foreign Investment Company.''
    (4) Time and manner of making late election: (i) Time for making a 
late purging election. A shareholder may make a late purging election in 
the manner provided in paragraph (e)(4)(ii) of this section at any time. 
The date the election is filed with the IRS will determine the amount of 
interest due under paragraph (e)(3) of this section.
    (ii) Manner of making a late purging election. A shareholder makes a 
late purging election by completing Form 8621-A in the manner required 
by that form and this section and filing that form with the Internal 
Revenue Service, DP 8621-A, Ogden, UT 84201.
    (f) Effective date. (1) The rules of this section are applicable as 
of December 8, 2005.
    (2) The applicability of this section will expire on or before 
December 8, 2008.

[T.D. 9232, 70 FR 72913, Dec. 8, 2005; T.D. 9232, 71 FR 4042, Jan. 25, 
2006]

                            Income Averaging



Sec. 1.1301-1  Averaging of farm income.

    (a) Overview. An individual engaged in a farming business may elect 
to compute current year (election year) income tax liability under 
section 1 by averaging, over the prior three-year period (base years), 
all or a portion of the individual's current year electible farm income 
as defined in paragraph (e) of this section. To average farm income, the 
individual--
    (1) Designates all or a portion of his or her electible farm income 
for the election year as elected farm income; and
    (2) Determines the election year section 1 tax by determining the 
sum of--
    (i) The section 1 tax that would be imposed for the election year if 
taxable income for the year were reduced by elected farm income; plus
    (ii) For each base year, the amount by which the section 1 tax would 
be increased if taxable income for the year were increased by one-third 
of elected farm income.
    (b) Individual engaged in a farming business--(1) In general. 
Farming business has the same meaning as provided in section 263A(e)(4) 
and the regulations thereunder. An individual engaged in a farming 
business includes a sole proprietor of a farming business, a partner in 
a partnership engaged in a farming business, and a shareholder of an S 
corporation engaged in a farming business. Services performed as an 
employee are disregarded in determining whether an individual is engaged 
in a farming business for purposes of section 1301. An individual is not 
required to have been engaged in a farming business in any of the base 
years in order to make a farm income averaging election.
    (2) Certain landlords. A landlord is engaged in a farming business 
for purposes of section 1301 with respect to rental income that is based 
on a share of production from a tenant's farming business and, with 
respect to amounts received on or after January 1, 2003, is determined 
under a written agreement entered into before the tenant begins 
significant activities on the land. A landlord is not engaged in a 
farming business for purposes of section 1301

[[Page 642]]

with respect to either fixed rent or, with respect to amounts received 
on or after January 1, 2003, rental income based on a share of a 
tenant's production determined under an unwritten agreement or a written 
agreement entered into after the tenant begins significant activities on 
the land. Whether the landlord materially participates in the tenant's 
farming business is irrelevant for purposes of section 1301.
    (c) Making, changing, or revoking an election--(1) In general. A 
farm income averaging election is made by filing Schedule J, ``Farm 
Income Averaging,'' with an individual's Federal income tax return for 
the election year (including a late or amended return if the period of 
limitations on filing a claim for credit or refund has not expired).
    (2) Changing or revoking an election. An individual may change the 
amount of the elected farm income in a previous election or revoke a 
previous election if the period of limitations on filing a claim for 
credit or refund has not expired for the election year.
    (d) Guidelines for calculation of section 1 tax--(1) Actual taxable 
income not affected. Under paragraph (a)(2) of this section, a 
determination of the section 1 tax for the election year involves a 
computation of the section 1 tax that would be imposed if taxable income 
for the election year were reduced by elected farm income and taxable 
income for each of the base years were increased by one-third of elected 
farm income. The reduction and increases required for purposes of this 
computation do not affect the actual taxable income for either the 
election year or the base years. Thus, for each of those years, the 
actual taxable income is taxable income determined without regard to any 
hypothetical reduction or increase required for purposes of the 
computation under paragraph (a)(2) of this section. The following 
illustrates this principle:
    (i) Any reduction or increase in taxable income required for 
purposes of the computation under paragraph (a)(2) of this section is 
disregarded in determining the taxable year in which a net operating 
loss carryover or net capital loss carryover is applied.
    (ii) The net section 1231 gain or loss and the character of any 
section 1231 items for the election year is determined without regard to 
any reduction in taxable income required for purposes of the computation 
under paragraph (a)(2) of this section.
    (iii) The section 68 overall limitation on itemized deductions for 
the election year is determined without regard to any reduction in 
taxable income required for purposes of the computation under paragraph 
(a)(2) of this section. Similarly, the section 68 limitation for a base 
year is not recomputed to take into account any allocation of elected 
farm income to the base year for such purposes.
    (iv) If a base year had a partially used capital loss, the remaining 
capital loss may not be applied to reduce the elected farm income 
allocated to the year for purposes of the computation under paragraph 
(a)(2) of this section.
    (v) If a base year had a partially used credit, the remaining credit 
may not be applied to reduce the section 1 tax attributable to the 
elected farm income allocated to the year for purposes of the 
computation under paragraph (a)(2) of this section.
    (2) Computation in base years--(i) In general. As provided in 
paragraph (a)(2)(ii) of this section, the election year section 1 tax 
includes the amounts by which the section 1 tax for each base year would 
be increased if taxable income for the year were increased by one-third 
of elected farm income. For this purpose, all allowable deductions 
(including the full amount of any net operating loss carryover) are 
taken into account in determining the taxable income for the base year 
even if the deductions exceed gross income and the result is negative. 
If the result is negative, however, any amount that may provide a 
benefit in another taxable year is added back in determining base year 
taxable income. Amounts that may provide a benefit in another year 
include--
    (A) The net operating loss (as defined in section 172(c)) for the 
base year;
    (B) The net operating loss for any other year to the extent carried 
forward from the base year under section 172(b)(2); and
    (C) The capital loss deduction allowed for the base year under 
section

[[Page 643]]

1211(b)(1) or (2) to the extent such deduction does not reduce the 
capital loss carryover from the base year because it exceeds adjusted 
taxable income (as defined in section 1212(b)(2)(B)).
    (ii) Example. The rules of this paragraph (d)(2) are illustrated by 
the following example:

    Example. In 2001, F and F's spouse on their joint return elect to 
average $24,000 of income attributable to a farming business. One-third 
of the elected farm income, $8,000, is added to the 1999 base year 
income. In 1999, F and F's spouse reported adjusted gross income of 
$7,300 and claimed a standard deduction of $7,200 and a deduction for 
personal exemptions of $8,250. Therefore, their 1999 base year taxable 
income is -$8,150 [$7,300-($7,200+$8,250)]. After adding the elected 
farm income to the negative taxable income, their 1999 base year taxable 
income would be zero [$8,000+(-$8,150)=-$150]. If F and F's spouse 
elected to income average in 2002, and made the adjustments described in 
paragraph (d)(3) of this section to account for the 2001 election, their 
1999 base year taxable income for the 2002 election would be -$150.

    (3) Effect on subsequent elections--(i) In general. The reduction 
and increases in taxable income assumed in computing the election year 
section 1 tax (within the meaning of paragraph (a)(2) of this section) 
for an election year are treated as having actually occurred for 
purposes of computing the election year section 1 tax for any subsequent 
election year. Thus, if a base year for a farm income averaging election 
is also an election year for another farm income averaging election, the 
increase in the section 1 tax for that base year is determined after 
reducing taxable income by the elected farm income from the earlier 
election year. Similarly, if a base year for a farm income averaging 
election is also a base year for another farm income averaging election, 
the increase in the section 1 tax for that base year is determined after 
increasing taxable income by elected farm income allocated to the year 
from the earlier election year.
    (ii) Example. The rules of this paragraph (d)(3) are illustrated by 
the following example:

    Example. (i) In each of years 1998, 1999, and 2000, T had taxable 
income of $20,000. In 2001, T had taxable income of $30,000 (prior to 
any farm income averaging election) and electible farm income of 
$10,000. T makes a farm income averaging election with respect to $9,000 
of his electible farm income for 2001. Thus, for purposes of the 
computation under paragraph (a)(2) of this section, $3,000 of elected 
farm income is allocated to each of years 1998, 1999, and 2000. T's 2001 
tax liability is the sum of--
    (A) The section 1 tax on $21,000 (2001 taxable income minus elected 
farm income); plus
    (B) For each of years 1998, 1999, and 2000, the section 1 tax on 
$23,000 minus the section 1 tax on $20,000 (the amount by which section 
1 tax would be increased if one-third of elected farm income were 
allocated to such year).
    (ii) In 2002, T has taxable income of $50,000 and electible farm 
income of $12,000. T makes a farm income averaging election with respect 
to all $12,000 of his electible farm income for 2002. Thus, for purposes 
of the computation under paragraph (a)(2) of this section, $4,000 of 
elected farm income is allocated to each of years 1999, 2000, and 2001. 
T's 2002 tax liability is the sum of--
    (A) The section 1 tax on $38,000 (2002 taxable income minus elected 
farm income); plus
    (B) For each of years 1999 and 2000, the section 1 tax on $27,000 
minus the section 1 tax on $23,000 (the amount by which section 1 tax 
would be increased if one-third of elected farm income were allocated to 
such years after increasing taxable income for such years by the elected 
income allocated to such years from the 2001 election year); plus
    (C) For year 2001, the section 1 tax on $25,000 minus the section 1 
tax on $21,000 (the amount by which section 1 tax would be increased if 
one-third of elected farm income were allocated to such year after 
reducing taxable income for such year by the 2001 elected farm income).

    (e) Electible farm income--(1) Identification of items attributable 
to a farming business--(i) In general. Farm income includes items of 
income, deduction, gain, and loss attributable to the individual's 
farming business. Farm losses include a net operating loss carryover or 
carryback, or a net capital loss carryover, to an election year that is 
attributable to a farming business. Income, gain, or loss from the sale 
of development rights, grazing rights, and other similar rights is not 
treated as attributable to a farming business. In general, farm income 
does not include compensation received by an employee. However, a 
shareholder of an S corporation engaged in a farming business may treat 
compensation received from the corporation that is attributable to the 
farming business as farm income.

[[Page 644]]

    (ii) Gain or loss on sale or other disposition of property--(A) In 
general. Gain or loss from the sale or other disposition of property 
that was regularly used in the individual's farming business for a 
substantial period of time is treated as attributable to a farming 
business. For this purpose, the term property does not include land, but 
does include structures affixed to land. Property that has always been 
used solely in the farming business by the individual is deemed to meet 
both the regularly used and substantial period tests. Whether property 
not used solely in the farming business was regularly used in the 
farming business for a substantial period of time depends on all of the 
facts and circumstances.
    (B) Cessation of a farming business. If gain or loss described in 
paragraph (e)(1)(ii)(A) of this section is realized after cessation of a 
farming business, such gain or loss is treated as attributable to a 
farming business only if the property is sold within a reasonable time 
after cessation of the farming business. A sale or other disposition 
within one year of cessation of the farming business is presumed to be 
within a reasonable time. Whether a sale or other disposition that 
occurs more than one year after cessation of the farming business is 
within a reasonable time depends on all of the facts and circumstances.
    (2) Determination of amount that may be elected farm income--(i) 
Electible farm income. The maximum amount of income that an individual 
may elect to average (electible farm income) is the sum of any farm 
income and gains minus any farm deductions or losses (including loss 
carryovers and carrybacks) that are allowed as a deduction in computing 
the individual's taxable income. However, electible farm income may not 
exceed taxable income. In addition, electible farm income from net 
capital gain attributable to a farming business cannot exceed total net 
capital gain. Subject to these limitations, an individual who has both 
ordinary and net capital gain farm income may elect to average any 
combination of such ordinary and net capital gain farm income.
    (ii) Examples. The rules of paragraph (e)(2)(i) of this section are 
illustrated by the following examples:

    Example 1. A has farm gross receipts of $200,000 and farm ordinary 
deductions of $50,000. A's taxable income is $150,000 ($200,000-
$50,000). A's electible farm income is $150,000, all of which is 
ordinary income.
    Example 2. B has ordinary farm income of $200,000 and ordinary 
nonfarm losses of $50,000. B's taxable income is $150,000 ($200,000-
$50,000). B's electible farm income is $150,000, all of which is 
ordinary income.
    Example 3. C has a farm capital gain of $50,000 and a nonfarm 
capital loss of $40,000. C also has ordinary farm income of $60,000. C 
has taxable income of $70,000 ($50,000-$40,000+$60,000). C's electible 
farm income is $70,000. C can elect to average up to $10,000 of farm 
capital gain and up to $60,000 of farm ordinary income.
    Example 4. D has a nonfarm capital gain of $40,000 and a farm 
capital loss of $30,000. D also has ordinary farm income of $100,000. D 
has taxable income of $110,000 ($40,000-$30,000+$100,000). D's electible 
farm income is $70,000 ($100,000 ordinary farm income minus $30,000 farm 
capital loss), all of which is ordinary income.
    Example 5. E has a nonfarm capital gain of $20,000 and a farm 
capital loss of $30,000. E also has ordinary farm income of $100,000. E 
has taxable income of $97,000 ($20,000-$23,000 ($30,000 loss limited by 
section 1211(b))+$100,000). E has a farm capital loss carryover of 
$7,000 ($30,000-$23,000 allowed as a deduction). E's electible farm 
income is $77,000 ($100,000 ordinary farm income minus $23,000 farm 
capital loss), all of which is ordinary income.

    (f) Miscellaneous rules--(1) Short taxable year--(i) In general. If 
a base year or an election year is a short taxable year, the rules of 
section 443 and the regulations thereunder apply for purposes of 
calculating the section 1 tax.
    (ii) Base year is a short taxable year. If a base year is a short 
taxable year, elected farm income is allocated to such year for purposes 
of paragraph (a)(2) of this section after the taxable income for such 
year has been annualized.
    (iii) Election year is a short taxable year. In applying paragraph 
(a)(2) of this section for purposes of determining tax computed on the 
annual basis (within the meaning of section 443(b)(1)) for an election 
year that is a short taxable year--

[[Page 645]]

    (A) The taxable income and the electible farm income for the year 
are annualized; and
    (B) The taxpayer may designate all or any part of the annualized 
electible farm income as elected farm income.
    (2) Changes in filing status. An individual is not prohibited from 
making a farm income averaging election solely because the individual's 
filing status is not the same in an election year and the base years. 
For example, an individual who files married filing jointly in the 
election year, but filed as single in one or more of the base years, may 
still elect to average farm income using the single filing status used 
in the base year.
    (3) Employment tax. A farm income averaging election has no effect 
in determining the amount of wages for purposes of the Federal Insurance 
Contributions Act (FICA), the Federal Unemployment Tax Act (FUTA), and 
the Collection of Income Tax at Source on Wages (Federal income tax 
withholding), or the amount of net earnings from self-employment for 
purposes of the Self-Employment Contributions Act (SECA).
    (4) Alternative minimum tax. A farm income averaging election does 
not apply in determining the section 55 alternative minimum tax for any 
base year or the section 55(b) tentative minimum tax for the election 
year or any base year. The election does, however, apply in determining 
the regular tax under sections 53(c) and 55(c) for the election year.
    (5) Unearned income of minor child. In an election year, if a minor 
child's investment income is taxable under section 1(g) and a parent 
makes a farm income averaging election, the tax rate used for purposes 
of applying section 1(g) is the rate determined after application of the 
election. In a base year, however, the tax on a minor child's investment 
income is not affected by a farm income averaging election.
    (g) Effective date. The rules of this section apply to taxable years 
beginning after December 31, 2001, except with respect to the written 
agreement requirement of paragraph (b)(2) of this section.

[T.D. 8972, 67 FR 819, Jan. 8, 2002; 67 FR 5203, Feb. 5, 2002]

        Readjustment of Tax Between Years and Special Limitations

        Mitigation of Effect of Limitations and Other Provisions



Sec. 1.1311(a)-1  Introduction.

    (a) Part II (section 1311 and following), subchapter Q, chapter 1 of 
the Code, provides certain rules for the correction of the effect of an 
erroneous treatment of an item in a taxable year which is closed by the 
statute of limitations or otherwise, in cases where, in connection with 
the ascertainment of the tax for another taxable year, it has been 
determined that there was an erroneous treatment of such item in the 
closed year.
    (b) In most situations falling within this part the correction of 
the effect of the error on a closed year can be made only if either the 
Commissioner or the taxpayer has taken a position in another taxable 
year which is inconsistent with the erroneous treatment of the item in 
the closed year. If a refund or credit would result from the correction 
of the error in the closed year, then the Commissioner must be the one 
maintaining the inconsistent position. For example, if the taxpayer 
erroneously included an item of income on his return for an earlier year 
which is now closed and the Commissioner successfully requires it to be 
included in a later year, then the correction of the effect of the 
erroneous inclusion of that item in the closed year may be made since 
the Commissioner has maintained a position inconsistent with the 
treatment of such item in such closed year. On the other hand, if an 
additional assessment would result from the correction of the error in 
the closed year, then the taxpayer must be the one maintaining the 
inconsistent position. For example, if the taxpayer deducted an item in 
an earlier year which is now closed and he successfully contends that 
the item should be deducted in a later year, then the correction of the 
effect of the erroneous deduction of that item in the closed year may be 
made since the taxpayer has taken a position inconsistent with the 
treatment of such item in such earlier year.

[[Page 646]]

    (c) There are two special circumstances which fall within this part 
but which do not require that an inconsistent position be maintained. 
One of these circumstances relates to the inclusion of an item of income 
in the correct year and the other relates to the allowance of a 
deduction in the correct year. In the first situation, if the 
Commissioner takes the position by a deficiency notice or before the Tax 
Court that an item of income should be included in the gross income of a 
taxpayer for a particular year and it is ultimately determined that such 
item was not so includible, then such item can be included in the income 
of the proper year if that year was not closed at the time the 
Commissioner took his position. In the second situation, if the taxpayer 
claims that a deduction should be allowed for a particular year and it 
is ultimately determined that the deduction was not allowable in that 
year, then the taxpayer may take the deduction in the proper year if 
that year was not closed at the time the taxpayer first claimed a 
deduction.

[T.D. 6500, 25 FR 12031, Nov. 26, 1960]



Sec. 1.1311(a)-2  Purpose and scope of section 1311.

    (a) Section 1311 provides for the correction of the effect of 
certain errors under circumstances specified in section 1312 when one or 
more provisions of law, such as the statute of limitations, would 
otherwise prevent such correction. Section 1311 may be applied to 
correct the effect of certain errors if, on the date of a determination 
(as defined in section 1313(a) and the regulations thereunder), 
correction is prevented by the operation of any provision of law other 
than sections 1311 through 1315 and section 7122 (relating to 
compromises) and the corresponding provisions of prior revenue laws. 
Examples of provisions preventing such corrections are sections 6501, 
6511, 6532, and 6901 (c), (d) and (e), relating to periods of 
limitations; section 6212(c) and 6512 relating to the effect of petition 
to the Tax Court of the United States on further deficiency letters and 
on credits or refunds; section 7121 relating to closing agreements; and 
sections 6401 and 6514 relating to payments, refunds, or credits after 
the period of limitations has expired. Section 1311 may also be applied 
to correct the effect of an error if, on the date of the determination, 
correction of the error is prevented by the operation of any rule of 
law, such as res judicata or estoppel.
    (b) The determination (including a determination under section 1313 
(a)(4)) may be with respect to any of the taxes imposed by subtitle A of 
the Internal Revenue Code of 1954, by chapter 1 and subchapters A, B, D, 
and E of chapter 2 of the Internal Revenue Code of 1939, or by the 
corresponding provisions of any prior revenue act, or by more than one 
of such provisions. Section 1311 may be applied to correct the effect of 
the error only as to the tax or taxes with respect to which the error 
was made which correspond to the tax or taxes with respect to which the 
determination relates. Thus, if the determination relates to a tax 
imposed by chapter 1 of the Internal Revenue Code of 1954, the 
adjustment may be only with respect to the tax imposed by such chapter 
or by the corresponding provisions of prior law.
    (c) Section 1311 is not applicable if, on the date of the 
determination, correction of the effect of the error is permissible 
without recourse to said section.
    (d) If the tax liability for the year with respect to which the 
error was made has been compromised under section 7122 or the 
corresponding provisions of prior revenue laws, no adjustment may be 
made under section 1311 with respect to said year.
    (e) No adjustment may be made under section 1311 for any taxable 
year beginning prior to January 1, 1932. See section 1314(d).
    (f) Section 1311 applies only to a determination (as defined in 
section 1313(a) and Sec. Sec. 1.1313(a)-1 to 1.1313 (a)-4, inclusive) 
made after November 14, 1954. Section 3801 of the Internal Revenue Code 
of 1939 and the regulations thereunder apply to determinations, as 
defined therein, made on or before November 14, 1954. See section 1315.

[T.D. 6500, 25 FR 12031, Nov. 26, 1960]



Sec. 1.1311(b)-1  Maintenance of an inconsistent position.

    (a) In general. Under the circumstances stated in Sec. 1.1312-1, 
Sec. 1.1312-

[[Page 647]]

2, paragraph (a) of Sec. 1.1312-3, Sec. 1.1312-5, Sec. 1.1312-6, and 
Sec. 1.1312-7, the maintenance of an inconsistent position is a 
condition necessary for adjustment. The requirement in such 
circumstances is that a position maintained with respect to the taxable 
year of the determination and which is adopted in the determination be 
inconsistent with the erroneous inclusion, exclusion, omission, 
allowance, disallowance, recognition, or nonrecognition, as the case may 
be, with respect to the taxable year of the error. That is, a position 
successfully maintained with respect to the taxable year of the 
determination must be inconsistent with the treatment accorded an item 
which was the subject of an error in the computation of the tax for the 
closed taxable year. Adjustments under the circumstances stated in 
paragraph (b) of Sec. 1.1312-3 and in Sec. 1.1312-4 are made without 
regard to the maintenance of an inconsistent position.
    (b) Adjustments resulting in refund or credit. (1) An adjustment 
under any of the circumstances stated in Sec. 1.1312-1, Sec. 1.1312-5, 
Sec. 1.1312-6, or Sec. 1.1312-7 which would result in the allowance of 
a refund or credit is authorized only if (i) the Commissioner, in 
connection with a determination, has maintained a position which is 
inconsistent with the erroneous inclusion, omission, disallowance, 
recognition, or nonrecognition, as the case may be, in the year of the 
error, and (ii) such inconsistent position is adopted in the 
determination.

    Example: A taxpayer who keeps his books on the cash method 
erroneously included as income on his return for 1954 an item of accrued 
interest. After the period of limitations on refunds for 1954 had 
expired, the district director, on behalf of the Commissioner, proposed 
an adjustment for the year 1955 on the ground that the item of interest 
was received in 1955 and, therefore, was properly includible in gross 
income for that year. The taxpayer and the district director entered 
into an agreement which meets all of the requirements of Sec. 
1.1313(a)-4 and which determines that the interest item was includible 
in gross income for 1955. The Commissioner has maintained a position 
inconsistent with the inclusion of the interest item for 1954. As the 
determination (the agreement pursuant to Sec. 1.1313(a)-4) adopted such 
inconsistent position, an adjustment is authorized for the year 1954.

    (2) An adjustment under circumstances stated in Sec. 1.1312-1, 
Sec. 1.1312-5, Sec. 1.1312-6, or Sec. 1.1312-7 which would result in 
the allowance of a refund or credit is not authorized if the taxpayer 
with respect to whom the determination is made, and not the 
Commissioner, has maintained such inconsistent position.

    Example: In the example in subparagraph (1) of this paragraph, 
assume that the Commissioner asserted a deficiency for 1955 based upon 
other items for that year but, in computing the net income upon which 
such deficiency was based, did not include the item of interest. The 
taxpayer appealed to the Tax Court and in his petition asserted that the 
interest item should be included in gross income for 1955. The Tax Court 
in 1960 included the item of interest in its redetermination of tax for 
the year 1955. In such case no adjustment would be authorized for 1954 
as the taxpayer, and not the Commissioner, maintained a position 
inconsistent with the erroneous inclusion of the item of interest in the 
gross income of the taxpayer for that year.

    (c) Adjustments resulting in additional assessments. (1) An 
adjustment under any of the circumstances stated in Sec. 1.1312-2, 
paragraph (a) of Sec. 1.1312-3, Sec. 1.1312-5, Sec. 1.1312-6, or 
Sec. 1.1312-7 which would result in an additional assessment is 
authorized only if (i) the taxpayer with respect to whom the 
determination is made has, in connection therewith, maintained a 
position which is inconsistent with the erroneous exclusion, omission, 
allowance, recognition, or nonrecognition, as the case may be, in the 
year of the error, and (ii) such inconsistent position is adopted in the 
determination.

    Example: A taxpayer in his return for 1950 claimed and was allowed a 
deduction for a loss arising from a casualty. After the taxpayer had 
filed his return for 1951 and after the period of limitations upon the 
assessment of a deficiency for 1950 had expired, it was discovered that 
the loss actually occurred in 1951. The taxpayer, therefore, filed a 
claim for refund for the year 1951 based upon the allowance of a 
deduction for the loss in that year, and the claim was allowed by the 
Commissioner in 1955. The taxpayer thus has maintained a position 
inconsistent with the allowance of the deduction for 1950 by filing a 
claim for refund for 1951 based upon the same deduction. As the 
determination (the allowance of the claim for refund) adopts such 
inconsistent position, an adjustment is authorized for the year 1950.


[[Page 648]]


    (2) An adjustment under the circumstances stated in Sec. 1.1312-2, 
paragraph (a) of Sec. 1.1312-3, Sec. 1.1312-5, Sec. 1.1312-6, or 
Sec. 1.1312-7 which would result in an additional assessment is not 
authorized if the Commissioner, and not the taxpayer, has maintained 
such inconsistent position.

    Example: In the example in subparagraph (1) of this paragraph, 
assume that the taxpayer did not file a claim for refund for 1951 but 
the Commissioner issued a notice of deficiency for 1951 based upon other 
items. The taxpayer filed a petition with the Tax Court of the United 
States and the Commissioner in his answer voluntarily proposed the 
allowance for 1951 of a deduction for the loss previously allowed for 
1950. The Tax Court took the deduction into account in its 
redetermination in 1955 of the tax for the year 1951. In such case no 
adjustment would be authorized for the year 1950 as the Commissioner, 
and not the taxpayer, has maintained a position inconsistent with the 
allowance of a deduction for the loss in that year.

[T.D. 6500, 25 FR 12032, Nov. 26, 1960, as amended by T.D. 6617, 27 FR 
10823, Nov. 7, 1962]



Sec. 1.1311(b)-2  Correction not barred at time of erroneous action.

    (a) An adjustment under the circumstances stated in paragraph (b) of 
Sec. 1.1312-3 (relating to the double exclusion of an item of gross 
income) which would result in an additional assessment, is authorized 
only if assessment of a deficiency against the taxpayer or related 
taxpayer for the taxable year in which the item is includible was not 
barred by any law or rule of law at the time the Commissioner first 
maintained, in a notice of deficiency sent pursuant to section 6212 (or 
section 272(a) of the Internal Revenue Code of 1939) or before the Tax 
Court of the United States, that the item described in paragraph (b) of 
Sec. 1.1312-3 should be included in the gross income of the taxpayer in 
the taxable year to which the determination relates.
    (b) An adjustment under the circumstances stated in Sec. 1.1312-4 
(relating to the double disallowance of a deduction or credit), which 
would result in the allowance of a credit or refund, is authorized only 
if a credit or refund to the taxpayer or related taxpayer, attributable 
to such adjustment, was not barred by any law or rule of law when the 
taxpayer first maintained in writing before the Commissioner or the Tax 
Court that he was entitled to such deduction or credit for the taxable 
year to which the determination relates. The taxpayer will be considered 
to have first maintained in writing before the Commissioner or the Tax 
Court that he was entitled to such deduction or credit when he first 
formally asserts his right to such deduction or credit as, for example, 
in a return, in a claim for refund, or in a petition (or an amended 
petition) before the Tax Court.
    (c) Under the circumstances of adjustment with respect to which the 
conditions stated in this section are applicable, the conditions stated 
in Sec. 1.1311(b)-1 (maintenance of an inconsistent position) are not 
required. See paragraph (b) of Sec. 1.1312-3 and Sec. 1.1312-4 for 
examples of the application of this section.

[T.D. 6500, 25 FR 12032, Nov. 26, 1960]



Sec. 1.1311(b)-3  Existence of relationship in case of adjustment by way 
of deficiency assessment.

    (a) Except for cases described in paragraph (b) of Sec. 1.1312-3, 
no adjustment by way of a deficiency assessment shall be made, with 
respect to a related taxpayer, unless the relationship existed both at 
some time during the taxable year with respect to which the error was 
made and at the time the taxpayer with respect to whom the determination 
is made first maintained the inconsistent position with respect to the 
taxable year to which the determination relates. In the case of an 
adjustment by way of a deficiency assessment under the circumstance 
described in paragraph (b) of Sec. 1.1312-3 (where the maintenance of 
an inconsistent position is not required), the relationship need exist 
only at some time during the taxable year in which the error was made.
    (b) If the inconsistent position is maintained in a return, claim 
for refund, or petition (or amended petition) to the Tax Court of the 
United States for the taxable year in respect to which the determination 
is made, the requisite relationship must exist on the date of filing 
such document. If the inconsistent position is maintained in more than 
one of such documents, the

[[Page 649]]

requisite date is the date of filing of the document in which it was 
first maintained. If the inconsistent position was not thus maintained, 
then the relationship must exist on the date of the determination as, 
for example, where at the instance of the taxpayer a deduction is 
allowed, the right to which was not asserted in a return, claim for 
refund, or petition to the Tax Court, and a determination is effected by 
means of a closing agreement or an agreement under section 1313(a)(4).

[T.D. 6500, 25 FR 12033, Nov. 26, 1960]



Sec. 1.1312-1  Double inclusion of an item of gross income.

    (a) Paragraph (1) of section 1312 applies if the determination 
requires the inclusion in a taxpayer's gross income of an item which was 
erroneously included in the gross income of the same taxpayer for 
another taxable year or of a related taxpayer for the same or another 
taxable year.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. A taxpayer who keeps his books on the cash method 
erroneously included in income on his return for 1947 an item of accrued 
rent. In 1952, after the period of limitation on refunds for 1947 had 
expired, the Commissioner discovered that the taxpayer received this 
rent in 1948 and asserted a deficiency for the year 1948 which is 
sustained by the Tax Court of the United States in 1955. An adjustment 
in favor of the taxpayer is authorized with respect to the year 1947. If 
the taxpayer had returned the rent for both 1947 and 1948 and by a 
determination was denied a refund claim for 1948 on account of the rent 
item, a similar adjustment is authorized.
    Example 2. A husband assigned to his wife salary to be earned by him 
in the year 1952. The wife included such salary in her separate return 
for that year and the husband omitted it. The Commissioner asserted a 
deficiency against the wife for 1952 with respect to a different item; 
she contested that deficiency, and the Tax Court entered an order in her 
case which became final in 1955. The wife would therefore be barred by 
section 6512(a) from claiming a refund for 1952. Thereafter, the 
Commissioner asserted a deficiency against the husband on account of the 
omission of such salary from his return for 1952. In 1955 the husband 
and the Commissioner enter into a closing agreement for the year 1952 in 
which the salary is taxed to the husband. An adjustment is authorized 
with respect to the wife's tax for 1952.

[T.D. 6500, 25 FR 12033, Nov. 26, 1960]



Sec. 1.1312-2  Double allowance of a deduction or credit.

    (a) Paragraph (2) of section 1312 applies if the determination 
allows the taxpayer a deduction or credit which was erroneously allowed 
the same taxpayer for another taxable year or a related taxpayer for the 
same or another taxable year.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. A taxpayer in his return for 1950 claimed and was allowed 
a deduction for destruction of timber by a forest fire. Subsequently, it 
was discovered that the forest fire occurred in 1951 rather than 1950. 
After the expiration of the period of limitations for the assessment of 
a deficiency for 1950, the taxpayer filed a claim for refund for 1951 
based upon a deduction for the fire loss in that year. The Commissioner 
in 1955 allows the claim for refund. An adjustment is authorized with 
respect to the year 1950.
    Example 2. The beneficiary of a testamentary trust in his return for 
1949 claimed, and was allowed, a deduction for depreciation of the trust 
property. The Commissioner asserted a deficiency against the beneficiary 
for 1949 with respect to a different item and a final decision of the 
Tax Court of the United States was rendered in 1951, so that the 
Commissioner was thereafter barred by section 272(f) of the Internal 
Revenue Code of 1939 from asserting a further deficiency against the 
beneficiary for 1949. The trustee thereafter filed a timely refund claim 
contending that, under the terms of the will, the trust, and not the 
beneficiary, was entitled to the allowance for depreciation. The court 
in 1955 sustains the refund claim. An adjustment is authorized with 
respect to the beneficiary's tax for 1949.

[T.D. 6500, 25 FR 12033, Nov. 26, 1960]



Sec. 1.1312-3  Double exclusion of an item of gross income.

    (a) Items included in income or with respect to which a tax was 
paid. (1) Paragraph (3)(A) of section 1312 applies if the determination 
requires the exclusion, from a taxpayer's gross income, of an item 
included in a return filed by the taxpayer, or with respect to which tax 
was paid, and which was erroneously excluded or omitted from the gross 
income of the same taxpayer for another taxable year or of a related

[[Page 650]]

taxpayer for the same or another taxable year.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example 1. (i) A taxpayer received payments in 1951 under a contract 
for the performance of services and included the payments in his return 
for that year. After the expiration of the period of limitations for the 
assessment of a deficiency for 1950, the Commissioner issued a notice of 
deficiency to the taxpayer for the year 1951 based upon adjustments to 
other items, and the taxpayer filed a petition with the Tax Court of the 
United States and maintained in the proceedings before the Tax Court 
that he kept his books on the accrual basis and that the payments 
received in 1951 were on income that had accrued and was properly 
taxable in 1950. A final decision of the Tax Court was rendered in 1955 
excluding the payments from 1951 income. An adjustment in favor of the 
Commissioner is authorized with respect to the year 1950, whether or not 
a tax had been paid on the income reported in the 1951 return.
    (ii) Assume the same facts as in (i), except that the taxpayer had 
not included the payments in any return and had not paid a tax thereon. 
No adjustment would be authorized under section 1312(3)(A) with respect 
to the year 1950. If the taxpayer, however, had paid a deficiency 
asserted for 1951 based upon the inclusion of the payments in 1951 
income and thereafter successfully sued for refund thereof, an 
adjustment would be authorized with respect to the year 1950. (See 
paragraph (b) of this section for circumstances under which correction 
is authorized with respect to items not included in income and on which 
a tax was not paid.)
    Example 2. A father and son conducted a partnership business, each 
being entitled to one-half of the net profits. The father included the 
entire net income of the partnership in his return for 1948, and the son 
included no portion of this income in his return for that year. Shortly 
before the expiration of the period of limitations with respect to 
deficiency assessments and refund claims for both father and son for 
1948, the father filed a claim for refund of that portion of his 1948 
tax attributable to the half of the partnership income which should have 
been included in the son's return. The court sustains the claim for 
refund in 1955. An adjustment is authorized with respect to the son's 
tax for 1948.

    (b) Items not included in income and with respect to which the tax 
was not paid. (1) Paragraph (3)(B) of section 1312 applies if the 
determination requires the exclusion from gross income of an item not 
included in a return filed by the taxpayer and with respect to which a 
tax was not paid, but which is includible in the gross income of the 
same taxpayer for another taxable year, or in the gross income of a 
related taxpayer for the same or another taxable year. This is one of 
the two circumstances in which the maintenance of an inconsistent 
position is not a requirement for an adjustment, but the requirements in 
paragraph (a) of Sec. 1.1311(b)-2 must be fulfilled (correction not 
barred at time of erroneous action).
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example 1. The taxpayer, A, who computes his income by use of the 
accrual method of accounting, performed in 1949 services for which he 
received payments in 1949 and 1950. He did not include in his return for 
either 1949 or 1950 the payments which he received in 1950, and he paid 
no tax with respect to such payments. In 1952 the Commissioner sent a 
notice of deficiency to A with respect to the year 1949, contending that 
A should have included all of such payments in his return for that year. 
A contested the deficiency on the basis that in 1949 he had no accruable 
right to the payments which he received in 1950. In 1955 (after the 
expiration of the period of limitations for assessing deficiencies with 
respect to 1950), the Tax Court sustains A's position. The Commissioner 
may assess a deficiency for 1950, since a deficiency assessment for that 
year was not barred when he sent the notice of deficiency with respect 
to 1949.
    Example 2. B and C were partners in 1950, each being entitled to 
one-half of the profits of the partnership business. During 1950, B 
received an item of income which he treated as partnership income so 
that his return for that year reflected only 50 percent of such item. C, 
however, included no part of such item in any return and paid no tax 
with respect thereto. In 1952, the Commissioner sent to C a notice of 
deficiency with respect to 1950, contending that his return for that 
year should have reflected 50 percent of such item. C contested the 
deficiency on the basis that such item was not partnership income. In 
1955, after the expiration of the period of limitations for assessing 
deficiencies with respect to 1950, the Tax Court sustained C's position. 
The Commissioner may assess a deficiency against B with respect to 1950 
requiring him to include the entire amount of such item in his income 
since assessment of

[[Page 651]]

the deficiency was not barred when the Commissioner sent the notice of 
deficiency with respect to such item to C.

[T.D. 6500, 25 FR 12034, Nov. 26, 1960]



Sec. 1.1312-4  Double disallowance of a deduction or credit.

    (a) Paragraph (4) of section 1312 applies if the determination 
disallows a deduction or credit which should have been, but was not, 
allowed to the same taxpayer for another taxable year or to a related 
taxpayer for the same or another taxable year. This is one of the two 
circumstances in which the maintenance of an inconsistent position is 
not a requirement for an adjustment but the requirements in paragraph 
(b) of Sec. 1.1311(b)-2 must be fulfilled (correction not barred at 
time of erroneous action).
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. The taxpayer, A, who computes his income by use of the 
accrual method of accounting, deducted in his return for the taxable 
year 1951 an item of expense which he paid in such year. At the time A 
filed his return for 1951, the statute of limitations for 1950 had not 
expired. Subsequently, the Commissioner asserted a deficiency for 1951 
based on the position that the liability for such expense should have 
been accrued for the taxable year 1950. In 1955, after the period of 
limitations on refunds for 1950 had expired, there was a determination 
by the Tax Court disallowing such deduction for the taxable year 1951. A 
is entitled to an adjustment for the taxable year 1950. However, if such 
liability should have been accrued for the taxable year 1946 instead of 
1950, A would not be entitled to an adjustment, if a credit or refund 
with respect to 1946 was already barred when he deducted such expense 
for the taxable year 1951.
    Example 2. The taxpayer, B, in his return for 1951 claimed a 
deduction for a charitable contribution. The Commissioner asserted a 
deficiency for such year contending that 50 percent of the deduction 
should be disallowed, since the contribution was made from community 
property 50 percent of which was attributable to B's spouse. The 
deficiency is sustained by the Tax Court in 1956, subsequent to the 
period of limitations within which B's spouse could claim a refund with 
respect to 1951. An adjustment is permitted to B's spouse, a related 
taxpayer, since a refund attributable to a deduction by her of such 
contribution was not barred when B claimed the deduction.

[T.D. 6500, 25 FR 12034, Nov. 26, 1960]



Sec. 1.1312-5  Correlative deductions and inclusions for trusts or 
estates and legatees, beneficiaries, or heirs.

    (a) Paragraph (5) of section 1312 applies to distributions by a 
trust or an estate to the beneficiaries, heirs, or legatees. If the 
determination relates to the amount of the deduction allowed by sections 
651 and 661 or the inclusion in taxable income of the beneficiary 
required by sections 652 and 662 (including amounts falling within 
subpart D, subchapter J, chapter 1 of the Code, relating to treatment of 
excess distributions by trusts), or if the determination relates to the 
additional deduction (or inclusion) specified in section 162 (b) and (c) 
of the Internal Revenue Code of 1939 (or the corresponding provisions of 
a prior revenue act), with respect to amounts paid, credited, or 
required to be distributed to the beneficiaries, heirs, and legatees, 
and such determination requires:
    (1) The allowance to the estate or trust of the deduction when such 
amounts have been erroneously omitted or excluded from the income of the 
beneficiaries, heirs, or legatees; or
    (2) The inclusion of such amounts in the income of the 
beneficiaries, heirs, or legatees when the deduction has been 
erroneously disallowed to or omitted by the estate or trust; or
    (3) The disallowance to an estate or trust of the deduction when 
such amounts have been erroneously included in the income of the 
beneficiaries, heirs, or legatees; or
    (4) The exclusion of such amounts from the income of the 
beneficiaries, heirs, or legatees when the deduction has been 
erroneously allowed to the estate or trust.
    (b) The application of paragraph (a)(1) of this section may be 
illustrated by the following example:

    Example: For the taxable year 1954, a trustee, directed by the trust 
instrument to accumulate the trust income, made no distribution to the 
beneficiary and returned the entire income as taxable to the trust. 
Accordingly the beneficiary did not include the trust income in his 
return for the year 1954. In 1957, a State court holds invalid the 
clause directing accumulation and determines that the income is required 
to be currently distributed. It also rules that certain extraordinary 
dividends which the trustee in good

[[Page 652]]

faith allocated to corpus in 1954 were properly allocable to income. In 
1958, the trustee, relying upon the court decision, files a claim for 
refund of the tax paid on behalf of the trust for the year 1954 and 
thereafter files a suit in the District Court. The claim is sustained by 
the court (except as to the tax on the extraordinary dividends) in 1959 
after the expiration of the period of limitations upon deficiency 
assessments against the beneficiary for the year 1954. An adjustment is 
authorized with respect to the beneficiary's tax for the year 1954. The 
treatment of the distribution to the beneficiary of the extraordinary 
dividends shall be determined under subpart D of subchapter J.

    (c) The application of paragraph (a)(2) of this section may be 
illustrated by the following example:

    Example: Assume the same facts as in the example in paragraph (b) of 
this section, except that, instead of the trustee's filing a refund 
claim, the Commissioner, relying upon the decision of the State court, 
asserts a deficiency against the beneficiary for 1954. The deficiency is 
sustained by final decision of the Tax Court of the United States in 
1959, after the expiration of the period for filing claim for refund on 
behalf of the trust for 1954. An adjustment is authorized with respect 
to the trust for the year 1954.

    (d) The application of paragraph (a)(3) of this section may be 
illustrated by the following example:

    Example: A trustee claimed in the trust return for 1954 for amounts 
paid to the beneficiary a deduction to the extent of distributable net 
income. This amount was included by the beneficiary in gross income in 
his return for 1954. In computing distributable net income the trustee 
had included short and long-term capital gains. In 1958, the 
Commissioner asserts a deficiency against the trust on the ground that 
the capital gains were not includible in distributable net income, and 
that, therefore, the gains were taxable to the trust, not the 
beneficiary. The deficiency is sustained by a final decision of the Tax 
Court in 1960, after the expiration of the period for filing claims for 
refund by the beneficiary for 1954. An adjustment is authorized with 
respect to the beneficiary's tax for the year 1954, based on the 
exclusion from 1954 gross income of the capital gains previously 
considered distributed by the trust under section 662.

    (e) The application of paragraph (a)(4) of this section may be 
illustrated by the following example:

    Example: Assume the same facts as in the example in paragraph (d) of 
this section, except that, instead of the Commissioner's asserting a 
deficiency, the beneficiary filed a refund claim for 1954 on the same 
ground. The claim is sustained by the court in 1960 after the expiration 
of the period of limitations upon deficiency assessments against the 
trust for 1954. An adjustment is authorized with respect to the trust 
for the year 1954.

[T.D. 6500, 25 FR 12034, Nov. 26, 1960]



Sec. 1.1312-6  Correlative deductions and credits for certain related 
corporations.

    (a) Paragraph (6) of section 1312 applies if the determination 
allows or disallows a deduction (including a credit) to a corporation, 
and if a correlative deduction or credit has been erroneously allowed, 
omitted, or disallowed in respect of a related taxpayer described in 
section 1313(c)(7).
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. X Corporation is a wholly-owned subsidiary of Y 
Corporation. In 1955, X Corporation paid $5,000 to Y Corporation and 
claimed an interest deduction for this amount in its return for 1955. Y 
Corporation included this amount in its gross income for 1955. In 1958, 
the Commissioner asserted a deficiency against X Corporation for 1955, 
contending that the deduction for interest paid should be disallowed on 
the ground that the payment was in reality the payment of a dividend to 
Y Corporation. X Corporation contested the deficiency, and ultimately in 
June 1959, a final decision of the Tax Court sustained the Commissioner. 
Since the amount of the payment is a dividend, Y Corporation should have 
been allowed for 1955 the corporate dividends-received deduction under 
section 243 with respect to such payment. However, the Tax Court's 
decision sustaining the deficiency against X Corporation occurred after 
the expiration of the period for filing claim for refund by Y 
Corporation for 1955. An adjustment is authorized with respect to Y 
Corporation for 1955.
    Example 2. Assume the same facts as in example (1) except that, 
instead of the Commissioner asserting a deficiency against X Corporation 
for 1955, Y Corporation filed a claim for refund in 1958, alleging that 
the payment received in 1955 from X Corporation was in reality a 
dividend to which the corporate dividends-received deduction (section 
243) applies. The Commissioner denied the claim, and ultimately in June 
1959, the district court, in a final decision, sustained Y Corporation. 
Since the amount of the payment is a dividend, X Corporation should not 
have been allowed an interest deduction for the amount paid to Y 
Corporation. However,

[[Page 653]]

the district court's decision sustaining the claim for refund occurred 
after the expiration of the period of limitations for assessing a 
deficiency against X Corporation for the year 1955. An adjustment is 
authorized with respect to X Corporation's tax for 1955.

[T.D. 6617, 27 FR 10823, Nov. 7, 1962]



Sec. 1.1312-7  Basis of property after erroneous treatment of a prior 
transaction.

    (a) Paragraph (7) of section 1312 applies if the determination 
establishes the basis of property, and there occurred one of the 
following types of errors in respect of a prior transaction upon which 
such basis depends, or in respect of a prior transaction which was 
erroneously treated as affecting such basis:
    (1) An erroneous inclusion in, or omission from, gross income, or
    (2) An erroneous recognition or nonrecognition of gain or loss, or
    (3) An erroneous deduction of an item properly chargeable to capital 
account or an erroneous charge to capital account of an item properly 
deductible.
    (b) For this section to apply, the taxpayer with respect to whom the 
erroneous treatment occurred must be:
    (1) The taxpayer with respect to whom the determination is made, or
    (2) A taxpayer who acquired title to the property in the erroneously 
treated transaction and from whom, mediately or immediately, the 
taxpayer with respect to whom the determination is made derived title in 
such a manner that he will have a basis ascertained by reference to the 
basis in the hands of the taxpayer who acquired title to the property in 
the erroneously treated transaction, or
    (3) A taxpayer who had title to the property at the time of the 
erroneously treated transaction and from whom, mediately or immediately, 
the taxpayer with respect to whom the determination is made derived 
title, if the basis of the property in the hands of the taxpayer with 
respect to whom the determination is made is determined under section 
1015(a) (relating to the basis of property acquired by gift).

No adjustment is authorized with respect to the transferor of the 
property in a transaction upon which the basis of the property depends, 
when the determination is with respect to the original transferee or a 
subsequent transferee of such original transferee.
    (c) The application of this section may be illustrated by the 
following examples:

    Example 1. In 1949 taxpayer A transferred property which had cost 
him $5,000 to the X Corporation in exchange for an original issue of 
shares of its stock having a fair market value of $10,000. In his return 
for 1949 taxpayer A treated the exchange as one in which the gain or 
loss was not recognizable:
    (i) In 1955 the X Corporation maintains that the gain should have 
been recognized in the exchange in 1949 and therefore the property it 
received had a $10,000 basis for depreciation. Its position is adopted 
in a closing agreement. No adjustment is authorized with respect to the 
tax of the X Corporation for 1949, as none of the three types of errors 
specified in paragraph (a) of this section occurred with respect to the 
X Corporation in the treatment of the exchange in 1949. Moreover, no 
adjustment is authorized with respect to taxpayer A, as he is not within 
any of the three classes of taxpayers described in paragraph (b) of this 
section.
    (ii) In 1953 taxpayer A sells the stock which he received in 1949 
and maintains that, as gain should have been recognized in the exchange 
in 1949, the basis for computing the profit on the sale is $10,000. His 
position is confirmed in a closing agreement executed in 1955. An 
adjustment is authorized with respect to his tax for the year 1949 as 
the basis for computing the gain on the sale depends upon the 
transaction in 1949, and in respect of that transaction there was an 
erroneous nonrecognition of gain to taxpayer A, the taxpayer with 
respect to whom the determination is made.
    Example 2. In 1950 taxpayer A was the owner of 10 shares of the 
common stock of the Z Corporation which had a basis of $1,500. In that 
year he received as a dividend thereon 10 shares of the preferred stock 
of the same corporation having a fair market value of $1,000. On his 
books, entries were made reducing the basis of the common stock by 
allocating $500 of the basis to the preferred stock, and on his return 
for 1950 he did not include the dividend in gross income.
    (i) In 1951 taxpayer A made a gift of the preferred stock of the Z 
Corporation to taxpayer B, an unrelated individual. Taxpayer B sold the 
stock in 1953 and on his return for that year he reported the sale and 
claimed a basis of $1,000, contending that the dividend of preferred 
stock was taxable to A in 1950 at its fair market value of $1,000. The 
basis of $1,000 is confirmed by a closing agreement executed in 1955. An 
adjustment is authorized with respect to taxpayer A's tax for 1950, as 
the closing agreement determines basis of

[[Page 654]]

property, and in a prior transaction upon which such basis depends there 
was an erroneous omission from gross income of taxpayer A, a taxpayer 
who acquired title to the property in the erroneously treated 
transaction and from whom, immediately, the taxpayer with respect to 
whom the determination is made derived title.
    (ii) Assuming the same facts as in (i) except that the common stock 
instead of the preferred stock was the subject of the gift, and the 
basis claimed by taxpayer B and confirmed in the closing agreement was 
$1,500. An adjustment is authorized with respect to taxpayer A's tax for 
1950, as the closing agreement determines the basis of property, and in 
a prior transaction which was erroneously treated as affecting such 
basis there was an erroneous omission from gross income of taxpayer A, a 
taxpayer who had title to the property at the time of the erroneously 
treated transaction, and from whom, immediately, taxpayer B, with 
respect to whom the determination is made, derived title. The basis of 
the property in taxpayer B's hands with respect to whom the 
determination is made is determined under section 1015(a) (relating to 
the basis of property acquired by gift).
    Example 3. In 1950 taxpayer A sold property acquired at a cost of 
$5,000 to taxpayer B for $10,000. In his return for 1950 taxpayer A 
failed to include the profit on such sale. In 1953 taxpayer B sold the 
property for $12,000, and in his return for 1953 reported a gain of 
$2,000 upon the sale, which is confirmed by a closing agreement executed 
in 1955. No adjustment is authorized with respect to the tax of taxpayer 
A for 1950, as he does not come within any of the three classes of 
taxpayers described in paragraph (b) of this section.
    Example 4. In 1950 a taxpayer who owned 100 shares of stock in 
Corporation Y received $1,000 from the corporation which amount the 
taxpayer reported on his return for 1950 as a taxable dividend. In 1952 
Corporation Y was completely liquidated and the taxpayer received in 
that year liquidating distributions totalling $8,000. In his return for 
1952 the taxpayer reported the receipt of the $8,000 and computed his 
gain or loss upon the liquidation by using as a basis the amount which 
he paid for the stock. The Commissioner maintained that the distribution 
in 1950 was a distribution out of capital and that in computing the 
taxpayer's gain or loss upon the liquidation in 1952, the basis of the 
stock should be reduced by the $1,000. This position is adopted in a 
closing agreement executed in 1955 with respect to the year 1952. An 
adjustment is authorized with respect to the year 1950 as the basis for 
computing gain or loss in 1952 depends upon the transaction in 1950, and 
in respect of the 1950 transaction (upon which the basis of the property 
depends) there was an erroneous inclusion in gross income of the 
taxpayer with respect to whom the determination is made.
    Example 5. In 1946 a taxpayer received 100 shares of stock of the X 
Corporation having a fair market value of $5,000, in exchange for shares 
of stock in the Y Corporation which he had acquired at a cost of 
$12,000. In his return for 1946 the taxpayer treated the exchange as one 
in which gain or loss was not recognizable. The taxpayer sold 50 shares 
of the X Corporation stock in 1947 and in his return for that year 
treated such shares as having a $6,000 basis. In 1952, the taxpayer sold 
the remaining 50 shares of stock of the X Corporation for $7,500 and 
reported $1,500 gain in his return for 1952. After the expiration of the 
period of limitations on deficiency assessments and on refund claims for 
1946 and 1947, the Commissioner asserted a deficiency for 1952 on the 
ground that the loss realized on the exchange in 1946 was erroneously 
treated as nonrecognizable, and the basis for computing gain upon the 
sale in 1952 was $2,500, resulting in a gain of $5,000. The deficiency 
is sustained by the Tax Court in 1955. An adjustment is authorized with 
respect to the year 1946 as to the entire $7,000 loss realized on the 
exchange, as the Court's decision determines the basis of property, and 
in a prior transaction upon which such basis depends there was an 
erroneous nonrecognition of loss to the taxpayer with respect to whom 
the determination was made. No adjustment is authorized with respect to 
the year 1947 as the basis for computing gain upon the sale of the 50 
shares in 1952 does not depend upon the transaction in 1947 but upon the 
transaction in 1946.

[T.D. 6500, 25 FR 12035, Nov. 26, 1960, as amended by T.D. 6617, 27 FR 
10824, Nov. 7, 1962]



Sec. 1.1312-8  Law applicable in determination of error.

    The question whether there was an erroneous inclusion, exclusion, 
omission, allowance, disallowance, recognition, or nonrecognition is 
determined under the provisions of the internal revenue laws applicable 
with respect to the year as to which the inclusion, exclusion, omission, 
allowance, disallowance, recognition, or nonrecognition, as the case may 
be, was made. The fact that the inclusion, exclusion, omission, 
allowance, disallowance, recognition, or nonrecognition, as the case may 
be, was in pursuance of an interpretation, either judicial or 
administrative, accorded such provisions of the internal revenue laws at 
the time of such action is not necessarily determinative of this

[[Page 655]]

question. For example, if a later judicial decision authoritatively 
alters such interpretation so that such action was contrary to such 
provisions of the internal revenue laws as later interpreted, the 
inclusion, exclusion, omission, allowance, disallowance, recognition, or 
nonrecognition, as the case may be, is erroneous within the meaning of 
section 1312.

[T.D. 6500, 25 FR 12036, Nov. 26, 1960. Redesignated by T.D. 6617, 27 FR 
10824, Nov. 7, 1962]



Sec. 1.1313(a)-1  Decision by Tax Court or other court as a 
determination.

    (a) A determination may take the form of a decision by the Tax Court 
of the United States or a judgment, decree, or other order by any court 
of competent jurisdiction, which has become final.
    (b) The date upon which a decision by the Tax Court becomes final is 
prescribed in section 7481.
    (c) The date upon which a judgment of any other court becomes final 
must be determined upon the basis of the facts in the particular case. 
Ordinarily, a judgment of a United States district court becomes final 
upon the expiration of the time allowed for taking an appeal, if no such 
appeal is duly taken within such time; and a judgment of the United 
States Court of Claims becomes final upon the expiration of the time 
allowed for filing a petition for certiorari if no such petition is duly 
filed within such time.

[T.D. 6500, 25 FR 12036, Nov. 26, 1960]



Sec. 1.1313(a)-2  Closing agreement as a determination.

    A determination may take the form of a closing agreement authorized 
by section 7121. Such an agreement may relate to the total tax liability 
of the taxpayer for a particular taxable year or years or to one or more 
separate items affecting such liability. A closing agreement becomes 
final for the purpose of this section on the date of its approval by the 
Commissioner.

[T.D. 6500, 25 FR 12036, Nov. 26, 1960]



Sec. 1.1313(a)-3  Final disposition of claim for refund as a 
determination.

    (a) In general. A determination may take the form of a final 
disposition of a claim for refund. Such disposition may result in a 
determination with respect to two classes of items, i.e., items included 
by the taxpayer in a claim for refund and items applied by the 
Commissioner to offset the alleged overpayment. The time at which a 
disposition in respect of a particular item becomes final may depend not 
only upon what action is taken with respect to that item but also upon 
whether the claim for refund is allowed or disallowed.
    (b) Items with respect to which the taxpayer's claim is allowed. (1) 
The disposition with respect to an item as to which the taxpayer's 
contention in the claim for refund is sustained becomes final on the 
date of allowance of the refund or credit if:
    (i) The taxpayer's claim for refund is unqualifiedly allowed; or
    (ii) The taxpayer's contention with respect to an item is sustained 
and with respect to other items is denied, so that the net result is an 
allowance of refund or credit; or
    (iii) The taxpayer's contention with respect to an item is 
sustained, but the Commissioner applies other items to offset the amount 
of the alleged overpayment and the items so applied do not completely 
offset such amount but merely reduce it so that the net result is an 
allowance of refund or credit.
    (2) If the taxpayer's contention in the claim for refund with 
respect to an item is sustained but the Commissioner applies other items 
to offset the amount of the alleged overpayment so that the net result 
is a disallowance of the claim for refund, the date of mailing, by 
registered mail, of the notice of disallowance (see section 6532) is the 
date of the final disposition as to the item with respect to which the 
taxpayer's contention is sustained.
    (c) Items with respect to which the taxpayer's claim is disallowed. 
The disposition with respect to an item as to which the taxpayer's 
contention in the claim for refund is denied becomes final upon the 
expiration of the time allowed by section 6532 for instituting suit on 
the claim for refund, unless the suit is instituted prior to the 
expiration of such period, if:
    (1) The taxpayer's claim for refund is unqualifiedly disallowed; or

[[Page 656]]

    (2) The taxpayer's contention with respect to an item is denied and 
with respect to other items is sustained so that the net result is an 
allowance of refund or credit; or
    (3) The taxpayer's contention with respect to an item is sustained 
in part and denied in part. For example, assume that the taxpayer 
claimed a deductible loss of $10,000 and a consequent overpayment of 
$2,500 and the Commissioner concedes that a deductible loss was 
sustained, but only in the amount of $5,000. The disposition of the 
claim for refund with respect to the allowance of the $5,000 and the 
disallowance of the remaining $5,000 becomes final upon the expiration 
of the time for instituting suit on the claim for refund unless suit is 
instituted prior to the expiration of such period.
    (d) Items applied by the Commissioner in reduction of the refund or 
credit. If the Commissioner applies an item in reduction of the 
overpayment alleged in the claim for refund, and the net result is an 
allowance of refund or credit, the disposition with respect to the item 
so applied by the Commissioner becomes final upon the expiration of the 
time allowed by section 6532 for instituting suit on the claim for 
refund, unless suit is instituted prior to the expiration of such 
period. If such application of the item results in the assertion of a 
deficiency, such action does not constitute a final disposition of a 
claim for refund within the meaning of Sec. 1.1313(a)-3, but subsequent 
action taken with respect to such deficiency may result in a 
determination under Sec. Sec. 1.1313(a)-1, 1.1313(a)-2, or 1.1313(a)-4.
    (e) Elimination of waiting period. The necessity of waiting for the 
expiration of the 2-year period of limitations provided in section 6532 
may be avoided in such cases as are described in paragraph (c) or (d) of 
this section by the use of a closing agreement (see Sec. 1.1313(a)-2) 
or agreement under Sec. 1.1313(a)-4 to effect a determination.

[T.D. 6500, 25 FR 12036, Nov. 26, 1960]



Sec. 1.1313(a)-4  Agreement pursuant to section 1313(a)(4) as a 
determination.

    (a) In general. (1) A determination may take the form of an 
agreement made pursuant to this section. This section is intended to 
provide an expeditious method for obtaining an adjustment under section 
1311 and for offsetting deficiencies and refunds whenever possible. The 
provisions of part II (section 1311 and following), subchapter Q, 
chapter 1 of the Code, must be strictly complied with in any such 
agreement.
    (2) An agreement made pursuant to this section will not, in itself, 
establish the tax liability for the open taxable year to which it 
relates, but it will state the amount of the tax, as then determined, 
for such open year. The tax may be the amount of tax shown on the return 
as filed by the taxpayer, but if any changes in the amount have been 
made, or if any are being made by documents executed concurrently with 
the execution of said agreement, such changes must be taken into 
account. For example, an agreement pursuant to this section may be 
executed concurrently with the execution of a waiver of restrictions on 
assessment and collection of a deficiency or acceptance of an 
overassessment with respect to the open taxable year, or concurrently 
with the execution and filing of a stipulation in a proceeding before 
the Tax Court of the United States, where an item which is to be the 
subject of an adjustment under section 1311 is disposed of by the 
stipulation and is not left for determination by the court.
    (b) Contents of agreement. An agreement made pursuant to this 
section shall be so designated in the heading of the agreement, and it 
shall contain the following:
    (1) A statement of the amount of the tax determined for the open 
taxable year to which the agreement relates, and if said liability is 
established or altered by a document executed concurrently with the 
execution of the agreement, a reference to said document.
    (2) A concise statement of the material facts with respect to the 
item that was the subject of the error in the closed taxable year or 
years, and a statement of the manner in which such item was treated in 
computing the tax liability set forth pursuant to subparagraph (1) of 
this paragraph.
    (3) A statement as to the amount of the adjustment ascertained 
pursuant to Sec. 1.1314(a)-1 for the taxable year with respect to which 
the error was made

[[Page 657]]

and, where applicable, a statement as to the amount of the adjustment or 
adjustments ascertained pursuant to Sec. 1.1314(a)-2 with respect to 
any other taxable year or years; and
    (4) A waiver of restrictions on assessment and collection of any 
deficiencies set forth pursuant to subparagraph 3 of this paragraph.
    (c) Execution and effect of agreement. An agreement made pursuant to 
this section shall be signed by the taxpayer with respect to whom the 
determination is made, or on the taxpayer's behalf by an agent or 
attorney acting pursuant to a power of attorney on file with the 
Internal Revenue Service. If an adjustment is to be made in a case of a 
related taxpayer, the agreement shall be signed also by the related 
taxpayer, or on the related taxpayer's behalf by an agent or attorney 
acting pursuant to a power of attorney on file with the Internal Revenue 
Service. It may be signed on behalf of the Commissioner by the district 
director, or such other person as is authorized by the Commissioner. 
When duly executed, such agreement will constitute the authority for an 
allowance of any refund or credit agreed to therein, and for the 
immediate assessment of any deficiency agreed to therein for the taxable 
year with respect to which the error was made, or any closed taxable 
year or years affected, or treated as affected, by a net operating loss 
deduction or capital loss carryover determined with reference to the 
taxable year with respect to which the error was made.
    (d) Finality of determination. A determination made by an agreement 
pursuant to this section becomes final when the tax liability for the 
open taxable year to which the determination relates becomes final. 
During the period, if any, that a deficiency may be assessed or a refund 
or credit allowed with respect to such year, either the taxpayer or the 
Commissioner may properly pursue any of the procedures provided by law 
to secure a further modification of the tax liability for such year. For 
example, if the taxpayer subsequently files a claim for refund, or if 
the Commissioner subsequently issues a notice of deficiency with respect 
to such year, either may adopt a position with respect to the item that 
was the subject of the adjustment that is at variance with the manner in 
which said item was treated in the agreement. Any assessment, refund, or 
credit that is subsequently made with respect to the tax liability for 
such open taxable year, to the extent that it is based upon a revision 
in the treatment of the item that was the subject of the adjustment, 
shall constitute an alteration or revocation of the determination for 
the purpose of a redetermination of the adjustment pursuant to paragraph 
(d) of Sec. 1.1314(b)-1.

[T.D. 6500, 25 FR 12037, Nov. 26, 1960]



Sec. 1.1313(c)-1  Related taxpayer.

    An adjustment in the case of the taxpayer with respect to whom the 
error was made may be authorized under section 1311 although the 
determination is made with respect to a different taxpayer, provided 
that such taxpayers stand in one of the relationships specified in 
section 1313(c). The concept of related taxpayer has application to all 
of the circumstances of adjustment specified in Sec. 1.1312-1 through 
Sec. 1.1312-5 if the related taxpayer is one described in section 
1313(c); it has application to the circumstances of adjustment specified 
in Sec. 1.1312-6 only if the related taxpayer is one described in 
section 1313(c)(7); it does not apply in the circumstances specified in 
Sec. 1.1312-7. If such relationship exists, it is not essential that 
the error involve a transaction made possible only by reason of the 
existence of the relationship. For example, if the error with respect to 
which an adjustment is sought under section 1311 grew out of an 
assignment of rents between taxpayer A and taxpayer B, who are partners, 
and the determination is with respect to taxpayer A, an adjustment with 
respect to taxpayer B may be permissible despite the fact that the 
assignment had nothing to do with the business of the partnership. The 
relationship need not exist throughout the entire taxable year with 
respect to which the error was made, but only at some time during that 
taxable year. For example, if a taxpayer on February 15 assigns to his 
fiancee the net rents of a building which the taxpayer owns, and the two

[[Page 658]]

are married before the end of the taxable year, an adjustment may be 
permissible if the determination relates to such rents despite the fact 
that they were not husband and wife at the time of the assignment. See 
Sec. 1.1311(b)-3 for the requirement in certain cases that the 
relationship exist at the time an inconsistent position is first 
maintained.

[T.D. 6617, 27 FR 10824, Nov. 7, 1962]



Sec. 1.1314(a)-1  Ascertainment of amount of adjustment in year of error.

    (a) In computing the amount of the adjustment under sections 1311 to 
1315, inclusive, there must first be ascertained the amount of the tax 
previously determined for the taxpayer as to whom the error was made for 
the taxable year with respect to which the error was made. The tax 
previously determined for any taxable year may be the amount of tax 
shown on the taxpayer's return, but if any changes in that amount have 
been made, they must be taken into account. In such cases, the tax 
previously determined will be the sum of the amount shown as the tax by 
the taxpayer upon his return and the amounts previously assessed (or 
collected without assessment) as deficiencies, reduced by the amount of 
any rebates made. The amount shown as the tax by the taxpayer upon his 
return and the amount of any rebates or deficiencies shall be determined 
in accordance with the provisions of section 6211 and the regulations 
thereunder.
    (b)(1) The tax previously determined may consist of tax for any 
taxable year beginning after December 31, 1931, imposed by subtitle A of 
the Internal Revenue Code of 1954, by chapter 1 and subchapters A, B, D, 
and E of chapter 2 of the Internal Revenue Code of 1939, or by the 
corresponding provisions of prior internal revenue laws, or by any one 
or more of such provisions.
    (2) After the tax previously determined has been ascertained, a 
recomputation must then be made under the laws applicable to said 
taxable year to ascertain the increase or decrease in tax, if any, 
resulting from the correction of the error. The difference between the 
tax previously determined and the tax as recomputed after correction of 
the error will be the amount of the adjustment.
    (c) No change shall be made in the treatment given any item upon 
which the tax previously determined was based other than in the 
correction of the item or items with respect to which the error was 
made. However, due regard shall be given to the effect that such 
correction may have on the computation of gross income, taxable income, 
and other matters under chapter 1 of the Code. If the treatment of any 
item upon which the tax previously determined was based, or if the 
application of any provisions of the internal revenue laws with respect 
to such tax, depends upon the amount of income (e.g. charitable 
contributions, foreign tax credit, dividends received credit, medical 
expenses, and percentage depletion), readjustment in these particulars 
will be necessary as part of the recomputation in conformity with the 
change in the amount of the income which results from the correct 
treatment of the item or items in respect of which the error was made.
    (d) Any interest or additions to the tax collected as a result of 
the error shall be taken into account in determining the amount of the 
adjustment.
    (e) The application of this section may be illustrated by the 
following example:

    Example: (1) For the taxable year 1949 a taxpayer with no 
dependents, who kept his books on the cash receipts and disbursements 
method, filed a joint return with his wife disclosing adjusted gross 
income of $42,000 deductions amounting to $12,000, and a net income of 
$30,000. Included among other items in the gross income were salary in 
the amount of $15,000 and rents accrued but not yet received in the 
amount of $5,000. During the taxable year he donated $10,000 to the 
American Red Cross and in his return claimed a deduction of $6,300 on 
account thereof, representing the maximum deduction allowable under the 
15-percent limitation imposed by section 23(o) of the Internal Revenue 
Code of 1939 as applicable to the year 1949. In computing his net income 
he omitted interest income amounting to $6,000 and neglected to take a 
deduction for interest paid in the amount of $4,500. The return 
disclosed a tax liability of $7,788, which was assessed and paid. After 
the expiration of the period of limitations upon the assessment of a 
deficiency or the allowance of a refund for 1949, the Commissioner 
included the item of

[[Page 659]]

rental income amounting to $5,000 in the taxpayer's gross income for the 
year 1950 and asserted a deficiency for that year. As a result of a 
final decision of the Tax Court of the United States in 1955 sustaining 
the deficiency for 1950, an adjustment is authorized for the year 1949.
    (2) The amount of the adjustment is computed as follows:

Tax previously determined for 1949..........................      $7,788
                                                             ===========
Net income for 1949 upon which tax previously determined was      30,000
 based......................................................
Less: Rents erroneously included............................       5,000
                                                             -----------
    Balance.................................................      25,000
Adjustment for contributions (add 15 percent of $5,000).....         750
                                                             -----------
    Net income as adjusted..................................      25,750
                                                             ===========
Tax as recomputed...........................................       6,152
Tax previously determined...................................       7,788
                                                             -----------
    Difference..............................................       1,636
Amount of adjustment to be refunded or credited.............       1,636
 

    (3) In accordance with the provisions of paragraph (c) of this 
section, the recomputation to determine the amount of the adjustment 
does not take into consideration the item of $6,000 representing 
interest received, which was omitted from gross income, or the item of 
$4,500 representing interest paid, for which no deduction was allowed.

[T.D. 6500, 25 FR 12038, Nov. 26, 1960]



Sec. 1.1314(a)-2  Adjustment to other barred taxable years.

    (a) An adjustment is authorized under section 1311 with respect to a 
taxable year or years other than the year of the error, but only if all 
of the following requirements are met:
    (1) The tax liability for such other year or years must be affected, 
or must have been treated as affected, by a net operating loss deduction 
(as defined in section 172) or by a capital loss carryback or carryover 
(as defined in section 1212).
    (2) The net operating loss deduction or capital loss carryback or 
carryover must be determined with reference to the taxable year with 
respect to which the error was made.
    (3) On the date of the determination the adjustment with respect to 
such other year or years must be prevented by some law or rule of law, 
other than sections 1311 through 1315 and section 7122 and the 
corresponding provisions of prior revenue laws.
    (b) The amount of the adjustment for such other year or years shall 
be computed in a manner similar to that provided in Sec. 1.1314(a)-1. 
The tax previously determined for such other year or years shall be 
ascertained. A recomputation must then be made to ascertain the increase 
or decrease in tax, if any, resulting solely from the correction of the 
net operating loss deduction or capital loss carryback or carryover. The 
difference between the tax previously determined and the tax as 
recomputed is the amount of the adjustment. In the recomputation, no 
consideration shall be given to items other than the following:
    (1) The items upon which the tax previously determined for such 
other year or years was based, and
    (2) The net operating loss deduction or capital loss carryback or 
carryover as corrected.

In determining the correct net operating loss deduction or capital loss 
carryback or carryover, no changes shall be made in taxable income (net 
income in the case of taxable years subject to the provisions of the 
Internal Revenue Code of 1939 or prior revenue laws), net operating loss 
or capital loss, for any barred taxable year, except as provided in 
section 1314. Section 172 and the corresponding provisions of prior 
revenue laws, and the regulations promulgated thereunder, prescribe the 
methods of computing the net operating loss deduction. Section 1212 and 
the corresponding provisions of prior revenue laws, and the regulations 
promulgated thereunder, prescribe the methods for computing the capital 
loss carryback and carryover.
    (c) A net operating loss deduction or a capital loss carryback or 
carryover determined with reference to the year of the error may affect, 
or may have been treated as affecting, a taxable year with respect to 
which an adjustment is not prevented by the operation of any law or rule 
of law. In such case, the appropriate adjustment shall be made with 
respect to such open taxable year. However, the redetermination of the 
tax for such open taxable year is not made pursuant to part II (section 
1311 and following), subchapter Q, chapter 1 of the Code, and the 
adjustment for such open year and the method of

[[Page 660]]

computation are not limited by the provisions of said sections.
    (d) The application of this section may be illustrated by the 
following example:

    Example: The taxpayer is a corporation which makes its income tax 
returns on a calendar year basis. Its net income in 1949, computed 
without any net operating loss deduction was $10,000, but because of a 
net operating loss deduction in excess of that amount resulting from a 
carryback of a net operating loss claimed for 1950, it paid no income 
tax for 1949. On its return for 1950 it showed an excess of deductions 
over gross income of $14,000, and it paid no income tax for 1950. For 
the year 1951 its net income, computed without any net operating loss 
deduction, was $15,000, and a net operating loss deduction of $13,000 
was allowed ($4,000 of which was attributable to the carryover from 1950 
and $9,000 of which was attributable to the carryback of a net operating 
loss of $9,000 sustained in 1952). In 1957 the assessment of 
deficiencies or the allowance of refunds for all of said years are 
barred by the statute of limitations.
    (i) A Tax Court decision entered in 1957 with respect to the taxable 
year 1953 constituted a determination under which an adjustment is 
authorized to the taxable year 1950, the year with respect to which the 
error was made. This adjustment increases income for said year by 
$15,000, so that instead of a net operating loss of $14,000, its 
corrected net income is $1,000 for 1950, and the tax computed on that 
income will be assessed as a deficiency for 1950. An adjustment is 
authorized under this section with respect to each of the years 1949 and 
1951, as the tax liability for each year was treated as affected by a 
net operating loss deduction which was determined by a computation in 
which reference was made to the year 1950. In the recomputation of the 
tax for 1949, the net operating loss carryback from 1950 will be 
eliminated, and in the recomputation of the tax for 1951 the net 
operating loss carryover from 1950 will be eliminated; for each of the 
years 1949 and 1951 there will be an adjustment which will be treated as 
a deficiency for said year.
    (ii) Assuming the same facts, except that the correction with 
respect to the year 1950 increases the net operating loss for said year 
from $14,000 to $20,000. As a result of this correction, there will be 
no change in the tax due for 1949 and 1950. However, the net operating 
loss deduction for 1951 is recomputed to be $19,000, the aggregate of 
the $10,000 carryover from 1950 and the $9,000 carryback from 1952 (the 
carryover from 1950 is the excess of the $20,000 net operating loss for 
1950 over the $10,000 net income for 1949, such 1949 income being 
determined without any net operating loss deduction). As a result of the 
correction of the net operating loss deduction for 1951, the tax 
recomputation will show no tax due for said year, and the adjustment for 
1951 will result in a refund or credit of the tax previously paid. 
Moreover, computations resulting from this adjustment will disclose a 
net operating loss carryover from 1952 to 1953 of $4,000, that is, the 
excess of the $9,000 net operating loss for 1952 over the $5,000 net 
income for 1951 (such net income for 1951 being computed as the $15,000 
reduced by the carryover of $10,000 from 1950, the carryback from 1952 
not being taken into account). A further adjustment is authorized under 
section 1311 with respect to any subsequent barred year in which the tax 
liability is affected by a carryover of the net operating loss from 
1952, inasmuch as such carryover from 1952 has been determined by a 
computation in which reference was made to 1950, the taxable year of the 
error.

[T.D. 6500, 25 FR 12038, Nov. 26, 1960, as amended by T.D. 7301, 39 FR 
972, Jan. 4, 1974]



Sec. 1.1314(b)-1  Method of adjustment.

    (a) If the amount of the adjustment ascertained pursuant to Sec. 
1.1314(a)-1 or Sec. 1.1314(a)-2 represents an increase in tax, it is to 
be treated as if it were a deficiency determined by the Commissioner 
with respect to the taxpayer as to whom the error was made and for the 
taxable year or years with respect to which such adjustment was made. 
The amount of such adjustment is thus to be assessed and collected under 
the law and regulations applicable to the assessment and collection of 
deficiencies, subject, however, to the limitations imposed by Sec. 
1.1314(c)-1. Notice of deficiency, unless waived, must be issued with 
respect to such amount or amounts, and the taxpayer may contest the 
deficiency before the Tax Court of the United States or, if he chooses, 
may pay the deficiency and later file claim for refund. If the amount of 
the adjustment ascertained pursuant to Sec. 1.1314(a)-1 or Sec. 
1.1314(a)-2 represents a decrease in tax, it is to be treated as if it 
were an overpayment claimed by the taxpayer with respect to whom the 
error was made for the taxable year or years with respect to which such 
adjustment was made. Such amount may be recovered under the law and 
regulations applicable to overpayments of tax, subject, however, to the 
limitations imposed by Sec. 1.1314(c)-1. The taxpayer must file a claim 
for refund thereof, unless the overpayment is

[[Page 661]]

refunded without such claim, and if the claim is denied or not acted 
upon by the Commissioner within the prescribed time, the taxpayer may 
then file suit for refund.
    (b) For the purpose of the adjustments authorized by section 1311, 
the period of limitations upon the making of an assessment or upon 
refund or credit, as the case may be, for the taxable year of an 
adjustment shall be considered as if, on the date of the determination, 
one year remained before the expiration of such period. The Commissioner 
thus has one year from the date of the determination within which to 
mail a notice of deficiency in respect of the amount of the adjustment 
where such adjustment is treated as if it were a deficiency. The 
issuance of such notice of deficiency, in accordance with the law and 
regulations applicable to the assessment of deficiencies will suspend 
the running of the 1-year period of limitations provided in section 
1314(b). In accordance with the applicable law and regulations governing 
the collection of deficiencies, the period of limitation for collection 
of the amount of the adjustment will commence to run from the date of 
assessment of such amount. (See section 6502 and corresponding 
provisions of prior revenue laws.) Similarly, the taxpayer has a period 
of one year from the date of the determination within which to file a 
claim for refund in respect of the amount of the adjustment where such 
adjustment is treated as if it were an overpayment. Where the amount of 
the adjustment is treated as if it were a deficiency and the taxpayer 
chooses to pay such deficiency and contest it by way of a claim for 
refund, the period of limitation upon filing a claim for refund will 
commence to run from the date of such payment. See section 6511 and 
corresponding provisions of prior revenue laws.
    (c) The amount of an adjustment treated as if it were a deficiency 
or an overpayment, as the case may be, will bear interest and be subject 
to additions to the tax to the extent provided by the internal revenue 
laws applicable to deficiencies and overpayments for the taxable year 
with respect to which the adjustment is made. In the case of an 
adjustment resulting from an increase or decrease in a net operating 
loss or net capital loss which is carried back to the year of 
adjustment, interest shall not be collected or paid for any period prior 
to the close of the taxable year in which the net operating loss or net 
capital loss arises.
    (d) If, as a result of a determination provided for in Sec. 
1.1313(a)-4, an adjustment has been made by the assessment and 
collection of a deficiency or the refund or credit of an overpayment, 
and subsequently such determination is altered or revoked, the amount of 
the adjustment ascertained under Sec. 1.1314(a)-1 and Sec. 1.1314(a)-2 
shall be redetermined on the basis of such alteration or revocation, and 
any overpayment or deficiency resulting from such redetermination shall 
be refunded or credited, or assessed and collected, as the case may be, 
as an adjustment under section 1311. For the circumstances under which 
such an agreement can be altered or revoked, see paragraph (d) of Sec. 
1.1313(a)-4.

[T.D. 6500, 25 FR 12039, Nov. 26, 1960, as amended by T.D. 7301, 39 FR 
972, Jan. 4, 1974]



Sec. 1.1314(c)-1  Adjustment unaffected by other items.

    (a) The amount of any adjustment ascertained under Sec. 1.1314(a)-1 
or Sec. 1.1314(a)-2 shall not be diminished by any credit or set-off 
based upon any item other than the one that was the subject of the 
adjustment.
    (b) The application of this section may be illustrated by the 
following examples:

    Example 1. In the example set forth in paragraph (e) of Sec. 
1.1314(a)-1, if, after the amount of the adjustment had been 
ascertained, the taxpayer, filed a refund claim for the amount thereof, 
the Commissioner could not diminish the amount of that claim by 
offsetting against it the amount of tax which should have been paid with 
respect to the $6,000 interest item omitted from gross income for the 
year 1949; nor could the court, if suit were brought on such claim for 
refund, offset against the amount of the adjustment the amount of tax 
which should have been paid with respect to such interest. Similarly, 
the amount of the refund could not be increased by any amount 
attributable to the taxpayer's failure to deduct the $4,500 interest 
paid in the year 1949.
    Example 2. Assume that a taxpayer included in his gross income for 
the year 1953 an item which should have been included in

[[Page 662]]

his gross income for the year 1952. After the expiration of the period 
of limitations upon the assessment of a deficiency or the allowance of a 
refund for 1952, the taxpayer filed a claim for refund for the year 1953 
on the ground that such item was not properly includible in gross income 
for that year. The claim for refund was allowed by the Commissioner and 
as a result of such determination an adjustment was authorized under 
section 1311 with respect to the tax for 1952. If, in such case, the 
Commissioner issued a notice of deficiency for the amount of the 
adjustment and the taxpayer contested the deficiency before the Tax 
Court of the United States, the taxpayer could not in such proceeding 
claim an offset based upon his failure to take an allowable deduction 
for the year 1952; nor could the Tax Court in its decision offset 
against the amount of the adjustment any overpayment for the year 1952 
resulting from the failure to take such deduction.

    (c) If the Commissioner has refunded the amount of an adjustment 
under section 1311, the amount so refunded may not subsequently be 
recovered by the Commissioner in any suit for erroneous refund based 
upon any item other than the one that was the subject of the adjustment,

    Example: In the example set forth in paragraph (e) of Sec. 
1.1314(a)-1, if the Commissioner had refunded the amount of the 
adjustment, no part of the amount so refunded could subsequently be 
recovered by the Commissioner by a suit for erroneous refund based on 
the ground that there was no overpayment for 1949, as the taxpayer had 
failed to include in gross income the $6,000 item of interest received 
in that year.

    (d) If the Commissioner has assessed and collected the amount of an 
adjustment under section 1311, no part thereof may be recovered by the 
taxpayer in any suit for refund based upon any item other than the one 
that was the subject of the adjustment.

    Example: In example (2) of paragraph (b) of this section, if the 
taxpayer had paid the amount of the adjustment, he could not 
subsequently recover any part of such payment in a suit for refund based 
upon the failure to take an allowable deduction for the year 1952.

    (e) If the amount of the adjustment is considered an overpayment, it 
may be credited, under applicable law and regulations, together with any 
interest allowed thereon, against any liability in respect of an 
internal revenue tax on the part of the person who made such 
overpayment. Likewise, if the amount of the adjustment is considered as 
a deficiency, any overpayment by the taxpayer of any internal revenue 
tax may be credited against the amount of such adjustment in accordance 
with the applicable law and regulations thereunder. (See section 6402 
and the corresponding provisions of prior revenue laws.) Accordingly, it 
may be possible in one transaction between the Commissioner and the 
taxpayer to settle the taxpayer's tax liability for the year with 
respect to which the determination is made and to make the adjustment 
under section 1311 for the year with respect to which the error was made 
or for a year which is affected, or treated as affected, by a net 
operating loss deduction or a capital loss carryover from the year of 
the error.

[T.D. 6500, 25 FR 12040, Nov. 26, 1960]

       Involuntary Liquidation and Replacement of Lifo Inventories



Sec. 1.1321-1  Involuntary liquidation of lifo inventories.

    (a) Section 22(d)(6)(B) of the Internal Revenue Code of 1939 
provides as follows:

    Sec. 22. Gross income. * * *
    (d) * * *
    (6) Involuntary liquidation and replacement of inventory. * * *
    (B) Definition of involuntary liquidation. The term involuntary 
liquidation, as used in this paragraph, means the sale or other 
disposition of goods inventoried under the method described in this 
subsection, either voluntary or involuntary, coupled with a failure on 
the part of the taxpayer to purchase, manufacture, or otherwise produce 
and have on hand at the close of the taxable year in which such sale or 
other disposition occurred such goods as would, if on hand at the close 
of such taxable year, be subject to the application of the provisions of 
this subsection, if such failure on the part of the taxpayer is due, 
directly and exclusively, (i) to enemy capture or control of sources of 
limited foreign supply; (ii) to shipping or other transportation 
shortages; (iii) to material shortages resulting from priorities or 
allocations; (iv) to labor shortages; or (v) to other prevailing war 
conditions beyond the control of the taxpayer.

    (b)(1) If, during any taxable year ending after June 30, 1950, and 
before January 1, 1955, the disruption of normal

[[Page 663]]

trade relations between countries, or one or more of the conditions 
attributable to a state of national preparedness and beyond the control 
of the taxpayer, as prescribed by section 22(d)(6)(B) of the Internal 
Revenue Code of 1939, as modified by section 1321(b) of the Internal 
Revenue Code of 1954, should render it impossible during such period for 
a taxpayer using the last-in first-out inventory method to have on hand 
at the close of the taxable year a stock of merchandise in kind and 
description like that included in the opening inventory for the year, or 
in a quantity equal to that of the opening inventory, the resulting 
inventory decrease for the year will be regarded, at the election of the 
taxpayer, as reflecting an involuntary liquidation subject to 
replacement. If the taxpayer notifies the Commissioner within the period 
prescribed below that he intends to effect a replacement of the 
liquidated stock, in whole or in part, and that he desires to have 
applied in his case the involuntary liquidation and replacement 
provisions of section 1321, and if he establishes to the satisfaction of 
the Commissioner the involuntary character of the liquidation to which 
his stock has been subjected, effect shall be given, when replacement 
has been made, in whole or in part, but only to the extent made in 
taxable years ending before January 1, 1956, to an adjustment of taxable 
income for the year of liquidation in the amount of the difference 
between the replacement costs incurred and the original inventory cost 
of the liquidated base stock inventory that is replaced. The 
notification is to be given within 6 months after the filing by the 
taxpayer of his income tax return for the year of the liquidation. 
However, if the liquidation occurs in a taxable year ending after 
December 31, 1953, the notification may be given at any time within 3 
months after the promulgation of regulations under section 1321, or 
prior to the expiration of the 6-month period following the filing of 
the return, whichever expiration date later occurs.
    (2) If the replacement costs exceed such inventory costs, the 
taxable income of the taxpayer otherwise computed for the year of 
liquidation shall be reduced by an amount equal to such excess. If the 
replacement costs are less than the inventory costs, taxable income 
otherwise computed for the year of liquidation shall be increased to the 
extent of such difference. Any deficiency in the income or excess 
profits tax of the taxpayer, or any overpayment of such taxes, 
attributable to such adjustment shall be assessed and collected or 
credited or refunded to the taxpayer without interest.
    (c)(1) A failure on the part of the taxpayer to have on hand in his 
closing inventory for the taxable year merchandise of the kind, 
description, and quantity of that reflected in his opening inventory 
will be considered as an involuntary liquidation only if it is 
established to the satisfaction of the Commissioner that such failure is 
due wholly to his inability to purchase, manufacture, or otherwise 
produce and procure delivery of such merchandise during the taxable year 
of liquidation by reason of the disruption of normal trade relations 
between countries or by reason of certain war conditions, described in 
section 22(d)(6)(B) of the Internal Revenue Code of 1939, as modified by 
section 1321(b). Such war conditions are (i) shortages in the source of 
foreign supply by reason of capture or control by an enemy; (ii) 
shipping or other transportation shortages; (iii) material shortages 
resulting from priorities or allocations; (iv) labor shortages; and (v) 
similar war conditions beyond the control of the taxpayer. For the 
purpose of the preceding sentence, the words enemy and war shall be 
interpreted to apply to circumstances, occurrences, and conditions 
lacking a state of war, which are similar, by reason of a state of 
national preparedness, to those which would exist under a state of war.
    (2) The various directives, orders, regulations, and allotments 
issued by the Federal Government in connection with national 
preparedness are among such circumstances and conditions which might be 
recognized as effecting an involuntary liquidation under this section. 
Likewise, a voluntary compliance with a request of an authorized 
representative of the Federal Government made upon an industry or an 
important segment thereof, or a voluntary allocation of materials by an

[[Page 664]]

industry or important segment thereof sanctioned by the Federal 
Government, if made in connection with the national preparedness 
program, might be considered as such a circumstance or condition. 
Similarly, so much of an inventory decrease as is directly and 
exclusively attributable to the Federal Government's stockpiling program 
for periods during which an item is not subject to allotment shall also 
be considered as subject to the provisions of section 1321. Thus, so 
much of an inventory decrease as is due wholly to the effect of 
directives, orders, regulations, or allotments issued pursuant to the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et 
seq.), or to any other circumstance or condition which is solely 
dependent upon other action taken by the Federal Government in 
furtherance of the national preparedness program, ordinarily shall be 
considered as an involuntary liquidation under section 1321 and this 
section; however, to the extent that such a decrease is due to the 
disposition of goods acquired in violation of such directives, orders, 
regulations, or allotments, such decrease shall not be considered as 
such an involuntary liquidation. An inventory decrease due directly and 
exclusively to a disruption of normal trade relations between countries 
shall be considered as an involuntary liquidation subject to the rules 
and requirements prescribed in this section, including the requirement 
that the taxpayer establish to the satisfaction of the Commissioner the 
cause of the involuntary liquidation. A disruption of normal trade 
relations between countries may be reflected by unusual export 
limitations imposed by a foreign government, by unusual exchange 
restrictions, or by other unusual circumstances or conditions beyond the 
control of the taxpayer.
    (3) A voluntary shift by the taxpayer, in the exercise of business 
judgment, to merchandise of a different character, description, or use, 
or to merchandise processed out of a substantially different kind of raw 
materials while raw materials of the type originally used are still 
available will not be considered as an involuntary liquidation 
notwithstanding the fact that such a shift in merchandise stocked was 
prompted by a shifting market demand attributable to the above 
conditions. The term involuntary liquidation presupposes a physical 
inability to maintain a normal inventory as distinguished from a 
financial or business disinclination on the part of the taxpayer to do 
so.
    (d) If the taxpayer would have the involuntary liquidation and 
replacement provisions applicable with respect to any inventory 
decrease, he must so elect within the time prescribed by this section. 
In making such election, the taxpayer shall attach to his return and 
make a part thereof, or he shall furnish separately to the Commissioner, 
a statement setting forth the following matters:
    (1) The desire of the taxpayer to invoke the involuntary liquidation 
and replacement provisions;
    (2) A detailed list or other identifying description of the items of 
merchandise claimed to have been subjected to involuntary liquidation 
and the extent to which replacement is intended;
    (3) The circumstances relied upon as rendering the taxpayer unable 
to maintain throughout the taxable year a normal inventory of the items 
involved, including evidence of the applicable inventory control figures 
for the beginning and the close of the taxable year submitted to the 
appropriate Federal agency in control of defense production (or if none, 
a statement to that effect), allotments applied for, allotments 
received, and reason for failure to place allotments received;
    (4) Detailed proof of such circumstances to the extent that they may 
not be the subject-matter of common knowledge;
    (5) A full description of what efforts were made on the part of the 
taxpayer to effect replacement during the taxable year and the result of 
such efforts; and
    (6) In the case of an election made pursuant to an extension of time 
granted by the Commissioner, the circumstances relied upon as justifying 
the election at such time, together with a disclosure of the extent, if 
any, to which replacements have already been made.

[[Page 665]]

    (e) The election of the taxpayer to treat an involuntary decrease of 
inventory as subject to the replacement adjustments is to be exercised 
separately for each taxable year reflecting such a decrease and the 
election, once exercised with respect to a given year, shall be 
irrevocable with respect to the particular decrease involved and its 
replacement, and shall be binding for the year of liquidation, the year 
of replacement, and all prior, intervening, and subsequent years to the 
extent that such prior, intervening, and subsequent years are affected 
by the adjustments authorized. The ultimate replacement and the 
resulting adjustment for the year of liquidation may have consequences, 
among others, in the earnings and profits of intervening years and the 
inventory accounts of subsequent years. They may have consequences in 
the prior years by reason of adjustments in net operating loss or unused 
excess profits credit carrybacks, and in intervening and subsequent 
taxable years by reason of adjustments in carryovers. Adjustments are to 
be made for the several years affected consistent with the adjustments 
made for the year of liquidation. Detailed records shall be maintained 
such as will enable the Commissioner, in his examination of the 
taxpayer's return for the year of replacement, readily to verify the 
extent of the inventory decrease claimed to be involuntary in character 
and the facts upon which such claim is based, all subsequent inventory 
increases and decreases, and all other facts material to the replacement 
adjustment authorized. For taxable years subject to the Internal Revenue 
Code of 1939, an election under 26 CFR (1939) 39.22(d)-7(e) (Regulations 
118) or 26 CFR (1939) 29.22(d)-7 (Regulations 111) to have the 
involuntary liquidation and replacement provisions of section 22(d)(6) 
of the Internal Revenue Code of 1939 apply with respect to any inventory 
decrease for taxable years to which such section applies, shall be given 
the same effect as if such election had been made under this section. 
(See section 7807(b)(2).)
    (f) Notwithstanding the ultimate purchase price or the cost of 
production ultimately incurred by the taxpayer in effecting replacement 
of a stock involuntarily liquidated, the merchandise reflecting the 
replacement shall be taken into purchases and included in the closing 
inventory for the year of replacement, and shall be included in the 
inventories of subsequent taxable years, at the inventory cost figure of 
the merchandise replaced.
    (g) The goods reflected in any inventory increase in a year 
subsequent to a year of involuntary liquidation, to the extent that they 
constitute items of the kind and description liquidated in prior years, 
whether or not in a year of involuntary liquidation, shall be deemed, in 
the order of their acquisition, as having been acquired by the taxpayer 
in replacement of like goods most recently liquidated and not previously 
replaced. In a case involving involuntary liquidations of goods of the 
same class subject to the provisions of both section 22(d)(6)(A) of the 
Internal Revenue Code of 1939 and section 1321 of the Internal Revenue 
Code of 1954, the involuntary liquidations of such goods subject to the 
provisions of section 1321 shall, for the purpose of replacements made 
in taxable years ending before January 1, 1953, be considered as having 
occurred prior to the involuntary liquidations of such goods subject to 
the provisions of section 22(d)(6)(A) of the Internal Revenue Code of 
1939. To the extent that the items of increase are allocated to items 
liquidated voluntarily, no adjustment will be required or permitted. 
Such replacement merchandise will be carried in the inventory at its 
actual cost of acquisition. To the extent that replacements are 
allocated to items involuntarily liquidated, however, the provisions of 
this section shall apply, both with respect to adjustments for the year 
of liquidation and other taxable years affected and with respect to 
inventory computations for the year of replacement and all subsequent 
taxable years.
    (h) In some cases it may appear that, at the time of the filing of 
the income tax return for the year of replacement, or within three years 
thereafter, an adjustment with respect to the income or excess profits 
taxes for the year of the involuntary liquidation, or for some prior, 
intervening, or subsequent taxable year, is prevented by the running

[[Page 666]]

of the statute of limitations, by the execution of a closing agreement, 
by virtue of a court decision which has become final, or by reason of 
some other provision or rule of law other than section 7122 (relating to 
compromises) and other than the inventory replacement provisions. The 
adjustments provided for in connection with the involuntary liquidation 
and replacement of inventory shall nevertheless be made, but only if, 
within a period of three years after the date of the filing of the 
income tax return for the year of replacement, a notice of deficiency is 
mailed or a claim for refund is filed. No credit or refund will be 
allowed under such circumstances, whether within or without such three-
year period, in the absence of a claim for refund duly filed; nor will a 
resulting deficiency be assessed or collected under section 6213(d) 
relating to waivers of restrictions. The issuance of the statutory 
notice of deficiency or the filing of a claim for refund are statutory 
conditions upon which depend the provisions of section 22(d)(6)(E) of 
the Internal Revenue Code of 1939, referred to in section 1321(c) of the 
Internal Revenue Code of 1954. The adjustment authorized by section 
22(d)(6)(E) of the Internal Revenue Code of 1939 is limited further to 
the tax attributable solely to the replacement adjustments. The amount 
of the adjustment shall be computed by reference to the amount of the 
tax previously determined, and without regard to factors affecting the 
taxable year involved to which no effect was given in such prior 
determination. The tax previously determined shall be ascertained in 
accordance with the principles stated in section 452(d) of the Internal 
Revenue Code of 1939. Any deficiency paid or any overpayment credited or 
refunded under these circumstances shall not be subject to recovery on a 
claim for refund or a suit for the recovery of an erroneous refund in 
any case in which such claim or suit is based upon factors other than 
those giving rise to the adjustments made.

[T.D. 6500, 25 FR 12040, Nov. 26, 1960]



Sec. 1.1321-2  Liquidation and replacement of lifo inventories by 
acquiring corporations.

    For additional rules in the case of certain corporate acquisitions 
referred to in section 381(a), see section 381(c)(5) and the regulations 
thereunder.

[T.D. 6500, 25 FR 12042, Nov. 26, 1960]

                           War Loss Recoveries



Sec. 1.1331-1  Recoveries in respect of war losses.

    (a)(1) The amount of any recovery in respect of war loss property 
must be included in gross income to the extent provided in section 1332 
unless, pursuant to the taxpayer's election under section 1335, the 
provisions of section 1333 are applicable to such recovery. For the 
treatment of war loss recoveries under section 1333 and the manner of 
making the election under section 1335, see Sec. Sec. 1.1333-1 and 
1.1335-1.
    (2) As used in this part, the term war loss property means property 
considered under section 127(a) of the Internal Revenue Code of 1939 as 
destroyed or seized, including any interest described in section 
127(a)(3) of the Internal Revenue Code of 1939.
    (3) For regulations governing the treatment of war losses under the 
Internal Revenue Code of 1939, see 26 CFR (1939) 29.127(a)-1 to 
29.127(a)-4, inclusive, 29.127(b)-1, and 29.127(e)-1 (Regulations 111) 
and 26 CFR (1939) 39.127(a)-1 (Regulations 118).
    (b) The recoveries in respect of any war loss property include the 
recovery of the same war loss property and the recovery of any money or 
property in lieu of such property or on account of the destruction or 
seizure of such property. For example, there is a recovery upon the 
return to the taxpayer after the termination of the war of his property 
which was treated as war loss property because it was located in a 
country at war with the United States. An award by a government on 
account of the seizure of the taxpayer's property by an enemy country is 
a recovery under this section. The amount obtained upon the sale or 
other transfer by the taxpayer of his right to any war loss property is 
also a recovery for the purpose of this section. Similarly, if a 
taxpayer who sustained a war loss upon

[[Page 667]]

the liquidation of a corporation has received the rights to any property 
of the corporation which was treated as war loss property, any recovery 
by the taxpayer with respect to such rights is a recovery by him for the 
purposes of this section.
    (c) For the purpose of this section, the recoveries considered are 
only those with respect to war losses sustained in prior taxable years. 
Similarly, the only deductions considered are those allowable for prior 
taxable years, and any allowable deductions for the year of the recovery 
are ignored for the purposes of applying such section to the recovery.
    (d) If a deduction was claimed under section 127(a) of the Internal 
Revenue Code of 1939 by a taxpayer in computing his tax for any taxable 
year and if such deduction was disallowed in whole or in part, any 
recovery in respect of the portion disallowed shall not be subject to 
the provisions of part IV (section 1331 and following), subchapter Q, 
chapter 1 of the Code.

[T.D. 6500, 25 FR 12042, Nov. 26, 1960]



Sec. 1.1332-1  Inclusion in gross income of war loss recoveries.

    (a) Amount of recovery. Except as provided in section 1333(1), the 
amount of the recovery in respect of a war loss in a previous taxable 
year is determined in the same manner for the purpose of either section 
1332 or 1333. The amount of the recovery of any money or property in 
respect of any war loss is the aggregate of the amount of such money and 
of the fair market value of such property, both determined as of the 
date of the recovery. But see paragraph (a) of Sec. 1.1333-1 for 
optional valuation where the taxpayer recovers the same war loss 
property.
    (b) Amount of gain includible. (1) A taxpayer who has sustained a 
war loss described in section 127(a) of the Internal Revenue Code of 
1939 and who has not elected to have the provisions of section 1333 
apply to any taxable year in which he recovered any money or property in 
respect of a war loss in any previous taxable year must include in his 
gross income for each taxable year, to the extent provided in section 
1332, the amount of his recoveries of money and property for such 
taxable year in respect of any war loss in a previous taxable year. 
Section 1332 provides that such recoveries for any taxable year are not 
includible in income until the taxpayer has recovered an amount equal to 
his allowable deductions in prior taxable years on account of such war 
losses which did not result in a reduction of any tax under chapter 1 or 
2 of the Internal Revenue Code of 1939. War loss recoveries are 
considered as made first on account of war losses allowable but not 
actually allowed as a deduction, and second on account of war losses 
allowed as a deduction but which did not result in a reduction of tax 
under chapter 1 or 2 of the Internal Revenue Code of 1939. If there were 
deductions allowed on account of war losses for two or more taxable 
years which did not result in a reduction of any tax under chapter 1 or 
2 of the Internal Revenue Code of 1939, a recovery on account of such 
losses is considered as made on account of such losses in the order of 
the taxable years for which they were allowed beginning with the latest. 
See Sec. 1.1337-1 for the determination of the amount of such 
deductions. Recoveries in excess of such amount are treated as ordinary 
income until such excess equals the amount of the taxpayer's allowable 
deductions in prior taxable years on account of war losses which did 
result in a reduction of any such tax under chapter 1 or 2 of the 
Internal Revenue Code of 1939. Any further recoveries in excess of all 
the taxpayer's allowable deductions in prior taxable years for war 
losses are treated as gain on an involuntary conversion of property as a 
result of its destruction or seizure, and such gain is recognized or not 
recognized under the provisions of section 1033. See section 1033 and 
the regulations thereunder. Such gain, if recognized, is included in 
gross income as ordinary income unless section 1231(a) applies to cause 
such gain to be treated as gain from the sale or exchange of a capital 
asset held for more than six months. See section 1231(a) and the 
regulations thereunder.
    (2) The determination as to whether and to what extent any 
recoveries are to be included in gross income is made upon the basis of 
the amount of all the recoveries for each day upon which

[[Page 668]]

there are any such recoveries, as follows:
    (i) The amount of the recoveries for any day is not included in 
gross income, and is not considered gain on an involuntary conversion, 
to the extent, if any, that the aggregate of the allowable deductions in 
prior taxable years on account of war losses which did not result in a 
reduction of any tax of the taxpayer under chapter 1 or 2 of the 
Internal Revenue Code of 1939, as determined under Sec. 1.1337-1, 
exceeds the amount of all previous recoveries in the same and prior 
taxable years.
    (ii) The amount of the recoveries for any day which is not excluded 
from gross income under subdivision (i) of this subparagraph is included 
in gross income as ordinary income, and is not considered gain on an 
involuntary conversion, to the extent, if any, that the aggregate of all 
the allowable deductions in prior taxable years on account of war losses 
(both those which resulted in a reduction of a tax of the taxpayer and 
those which did not) exceeds the sum of the amount of all previous 
recoveries in the same and prior taxable years and of that portion, if 
any, of the amount of the recoveries for such day which is not included 
in gross income under subdivision (i) of this subparagraph.
    (iii) The amount of the recoveries for any day which is not excluded 
from gross income under subdivision (i) of this subparagraph and is not 
included in gross income as ordinary income under subdivision (ii) of 
this subparagraph is considered gain on an involuntary conversion of 
property as a result of its destruction or seizure. The following 
provisions then apply to this gain:
    (a) Such gain is recognized or not recognized under the provisions 
of section 1033, relating to gain on the involuntary conversion of 
property. For the purpose of applying section 1033, such gain for any 
day is deemed to be expended in the manner provided in section 1033 to 
the extent the recovery for such day is so expended.
    (b) If such gain is recognized, it is included in gross income as 
ordinary income or, if the provisions of section 1231(a) apply and 
require such treatment, as gain on the sale or exchange of a capital 
asset held for more than six months. For the purpose of applying section 
1231(a), such recognized gain for any day is deemed to be derived from 
property described in that section to the extent of the recovery for 
such day with respect to such property, except such portion of such 
recovery as is attributable to the nonrecognized gain for such day.
    (c) Section 1336 provides that in determining the unadjusted basis 
of recovered property, the total gain and the recognized gain with 
respect to such property must be determined. For such purpose, the 
recognized gain deemed to be derived from properties described in 
section 1231(a) may be allocated among such properties in the proportion 
of the recoveries with respect to such properties, reduced for each 
property by the portion of the recovery attributable to the 
nonrecognized gain for such day, and the recoveries with respect to 
properties not described in section 1231(a) may be similarly allocated. 
The total gain derived from any recovered property is the sum of the 
nonrecognized gain attributable to the recovery of such property and of 
the recognized gain allocable to such property.
    (3) The foregoing provisions may be illustrated by the following 
examples:

    Example 1. The taxpayer sustained war losses of $3,000 on account of 
properties A, B, C, and D. Of this amount, $1,000 did not result in a 
reduction of any income tax of the taxpayer, as determined under the 
provisions of Sec. 1.1337-1. In a subsequent taxable year, he received 
an award of $800 from the Government on account of property A. This is 
not included in income since it is less than the amount by which his 
allowable deductions for prior taxable years on account of war losses 
which did not result in any tax benefit ($1,000) exceed $0, the sum of 
all his previous recoveries. On a later date the taxpayer recovers 
property B, which is worth $1,500 on the date of recovery. This recovery 
is not included in gross income to the extent of $200, the amount by 
which the aggregate of the allowable deductions for prior taxable years 
on account of war losses which did not result in any tax benefit 
($1,000) exceeds the sum of all previous recoveries ($800). The 
remaining $1,300 of the recovery is included in gross income as ordinary 
income, and is not considered gain on the involuntary conversion of 
property, since it is less than the amount by which the aggregate of all 
the allowable deductions in prior taxable years on account of

[[Page 669]]

war losses ($3,000) exceeds $1,000, the sum of the $800 of previous 
recoveries and of the $200 portion of the recovery with respect to B 
which is not included in gross income. On a still later date the 
taxpayer sells for $2,500 his rights to recover C. Since the allowable 
deductions for prior taxable years on account of war losses which did 
not result in any tax benefit ($1,000) do not exceed the previous 
recoveries by the taxpayer ($800 and $1,500, or $2,300), none of the 
recovery on account of C is excluded from gross income. This recovery is 
included in gross income as ordinary income, and is not considered gain 
on the involuntary conversion of property, to the extent of $700, the 
amount by which the aggregate of all the allowable deductions for prior 
taxable years on account of war losses ($3,000) exceeds $2,300, the sum 
of the $2,300 of previous recoveries and of the $0 portion of the 
recovery on account of C which is not included in gross income. The 
remaining $1,800 of the recovery is considered gain on an involuntary 
conversion of property on account of its destruction or seizure, and is 
not recognized if forthwith expended in the manner provided in section 
1033. Thus, it is not recognized if it is forthwith expended for the 
acquisition of property related in service or use to C. On a later date 
the taxpayer recovers D, which has a fair market value of $400 at the 
time of the recovery. Since the aggregate of all the allowable 
deductions for prior taxable years on account of war losses ($3,000) 
does not exceed the previous recoveries by the taxpayer 
($800+$1,500+$2,500, or $4,800), all of the recovery with respect to D 
is considered gain on an involuntary conversion of property as a result 
of its destruction or seizure. Under the provisions of section 1033, 
this gain is not recognized if D is used for the same purposes for which 
it was used before it was deemed destroyed or seized under section 
127(a) of the Internal Revenue Code of 1939.
    Example 2. The taxpayer on one day recovers $3,000 for property A 
and $7,000 for property B, both of which were treated as war loss 
property for a prior taxable year, and $8,000 of such $10,000 recoveries 
is considered gain on the involuntary conversion of property as a result 
of its destruction or seizure. The taxpayer forthwith expends $5,000 in 
the acquisition of property similar in use to B. Therefore, $5,000 of 
the $8,000 gain is not recognized under section 1033, leaving $3,000 of 
recognized gain. Property B is within the provisions of section 1231(a), 
relating to gains and losses on the involuntary conversion of certain 
described property, but property A is not. Therefore, the provisions of 
section 1231(a) apply to $2,000 of the $3,000 gain, that is, the amount 
of the recovery with respect to B which is not attributable to the 
nonrecognized gain for such day ($7,000 minus $5,000). If the taxpayer 
forthwith expended $8,000 or more for the acquisition of property 
similar in use to B, none of the gain would be recognized. If the 
taxpayer forthwith expended the $5,000 to acquire property related in 
use to A, the $3,000 recognized gain would be considered derived from B 
to the extent of the recovery with respect to B ($7,000), not reduced by 
any nonrecognized gain since none of such recovery is attributable to 
such nonrecognized gain, and therefore all of the $3,000 recognized gain 
would be subject to the provisions of section 1231(a).

    (4) An allowable deduction with respect to a war loss is any 
deduction to which the taxpayer is entitled on account of any war loss 
property, regardless of whether or not such deduction was claimed by the 
taxpayer or otherwise allowed in computing his tax. If a deduction was 
claimed by a taxpayer in computing his tax for any taxable year and if 
such deduction was disallowed, such deduction will not be considered an 
allowable deduction for such taxable year since the previous 
determination will not be reconsidered.

[T.D. 6500, 25 FR 12043, Nov. 26, 1960]



Sec. 1.1333-1  Tax adjustment measured by prior benefits.

    (a) Amount of recovery. The amount of recovery for purposes of this 
section shall be determined in accordance with the provisions of section 
1332(a). See paragraph (a) of Sec. 1.1332-1. If, pursuant to the 
taxpayer's election under section 1335, the provisions of section 1333 
are applicable to any taxable year in which he recovers the same war 
loss property, the fair market value of such property shall, at the 
option of the taxpayer, be considered an amount equal to the adjusted 
basis (for determining loss) of such property in the hands of the 
taxpayer on the date such property was considered as destroyed or 
seized. This option is exercisable by the taxpayer with respect to each 
separate war loss property. Also, if the provisions of section 1333 are 
applicable pursuant to the taxpayer's election, the amount of the 
recovery of any money or property in respect of war loss property shall 
be reduced for the purpose of section 1333 (2) and (3) by the amount of 
the obligations or liabilities with respect to such property, if the 
taxpayer for any previous taxable year chose under section 127(b)(2) of 
the Internal

[[Page 670]]

Revenue Code of 1939 to treat such obligations or liabilities as 
discharged or satisfied out of such property, and such obligations or 
liabilities were not so discharged or satisfied before the date of the 
recovery. See 26 CFR (1939) 29.127(b)-1 (Regulations 111).
    (b) Elective method; tax adjustment measured by prior benefits. (1) 
If the taxpayer elects pursuant to section 1335 and in accordance with 
the provisions of Sec. 1.1335-1 to have the provisions of section 1333 
apply to any taxable year in which he recovers any money or property in 
respect of war loss property, the amount of the recovery in respect of 
such property for any taxable year shall not be included in income until 
the taxpayer has recovered an amount equal to his allowable deductions 
in prior taxable years on account of the destruction or seizure of such 
property, whether or not such allowable deductions resulted in a 
reduction of any tax under chapter 1 or 2 of the Internal Revenue Code 
of 1939. However, for the purposes of section 6012(a)(1), relating to 
the requirement of individual returns, section 6012(a)(2), relating to 
the requirement of corporation returns, and section 1312, relating to 
the mitigation of the effect of the statute of limitations, the entire 
amount of the recovery shall be deemed to be an item includible in gross 
income for the taxable year in which the recovery is made. In lieu of 
including such amount in gross income, there shall be added to, and 
assessed and collected as a part of, the tax imposed under subtitle A of 
the Internal Revenue Code of 1954 for the taxable year of the recovery 
an adjustment on account of any tax benefits in all prior taxable years 
resulting directly or indirectly from the fact that the loss from the 
destruction or seizure of such property was an allowable deduction. The 
amount of such adjustment shall be the total increase in the tax under 
chapters 1 and 2 of the Internal Revenue Code of 1939 for all taxable 
years which would result by decreasing such allowable deductions with 
respect to the destruction or seizure of such property by an amount 
equal to that portion of the amount of the recovery which is not 
included in gross income for the taxable year of the recovery. The 
portion of the amount of the recovery which is in excess of such 
allowable deductions is included in gross income for the taxable year of 
the recovery as gain on the involuntary conversion of property as a 
result of its destruction or seizure and is recognized or not recognized 
as provided in section 1033. See section 1033 and the regulations 
thereunder. Such gain, if recognized, is included in gross income as 
ordinary income unless section 1231(a) applies to cause such gain to be 
treated as gain on the sale or exchange of capital assets held for more 
than six months. See section 1231(a) and the regulations thereunder.
    (2) The determination as to whether and to what extent the amount of 
the recovery is to be excluded from gross income is to be made upon the 
basis of the total amount of the recoveries in each taxable year in 
respect of the same war loss property, as follows:
    (i) The amount of the recovery in any taxable year is excluded from 
the gross income of such year and is not considered gain on an 
involuntary conversion to the extent that such amount does not exceed 
the aggregate of the allowable deductions in prior taxable years on 
account of the destruction or seizure of such property (whether or not 
such deductions resulted in a reduction of a tax of the taxpayer) 
reduced by the aggregate amount of any recoveries in intervening taxable 
years in respect of the same property.
    (ii) The amount of the recovery in any taxable year which is not 
excluded from gross income under subdivision (i) of this subparagraph is 
included in gross income and is considered gain on an involuntary 
conversion of property as a result of its destruction or seizure. The 
following provisions apply to this gain:
    (a) Such gain is recognized or not recognized under the provisions 
of section 1033, relating to gain on the involuntary conversion of 
property. For the purpose of applying section 1033, such gain for any 
taxable year is deemed to be expended in the manner provided in section 
1033 to the extent the recovery in such taxable year is so expended.
    (b) If such gain is recognized it is included in gross income as 
ordinary income or, if the provisions of section

[[Page 671]]

1231(a) apply and require such treatment, as gain on the sale or 
exchange of a capital asset held for more than six months. In the case 
of the recovery of the same war loss property, any gain will not be 
deemed to be recognized under the provisions of section 1231(a) if such 
property is used for the same purpose for which it was used before it 
was deemed destroyed or seized under section 127(a) of the Internal 
Revenue Code of 1939.
    (3) The determination of the total increase in the tax under 
chapters 1 and 2 of the Internal Revenue Code of 1939 for all taxable 
years which would result by decreasing the deductions allowable in any 
prior taxable year with respect to the destruction or seizure of the 
property in respect of which the taxpayer has made a recovery by an 
amount equal to the part of such recovery not included in gross income 
for the taxable year of such recovery shall be made as provided in this 
subparagraph. Such total increase shall include the increases described 
in subdivisions (i), (ii), (iii), and (iv) of this subparagraph, and 
shall be added to, and assessed and collected as a part of, the tax 
under subtitle A for the taxable year of the recovery. Proper adjustment 
of such increases shall be made on account of the application of the 
provisions of this subparagraph to intervening taxable years. Proper 
adjustment shall also be made in the determination of such increases in 
the case of a taxpayer who has made a valid election under section 1020, 
relating to the adjustment of basis of property for depreciation, 
obsolescence, amortization, and depletion. The term tax previously 
determined as used in this subparagraph shall have the same meaning as 
used in section 1314(a) and shall include any tax under chapter 1 or 2 
of the Internal Revenue Code of 1939. In computing the amount of the 
increase in the tax previously determined under chapter 1 or 2 of the 
Internal Revenue Code of 1939 for any taxable year, the principles of 
section 1314(a) shall be applicable. See section 1314(a) and the 
regulations thereunder. However, the computation of the excess profits 
credit under chapter 2E of the Internal Revenue Code of 1939 for any 
taxable year shall not be affected by the adjustment provided in this 
subparagraph. All credits allowable against the tax for any year shall 
be taken into account in computing the increase in the tax previously 
determined. The increases referred to above include the following:
    (i) The increase, if any, in the tax previously determined for each 
prior taxable year in which a deduction was allowable on account of the 
destruction or seizure of the property in respect of which there is a 
recovery in the taxable year. After the tax previously determined has 
been ascertained, such tax shall be recomputed by disregarding such 
allowable deduction (to the extent that it does not exceed the sum of 
the amount of such recovery not included in gross income for the taxable 
year of such recovery, plus the aggregate amount of any recoveries in 
intervening taxable years in respect of the same property) and any other 
deductions allowable on account of other war losses or any other losses, 
expenditures or accruals in such prior taxable year in respect of which, 
and to the extent that, recoveries in intervening taxable years have 
been excluded from gross income under section 127(c)(3) or section 
22(b)(12) of the Internal Revenue Code of 1939, or section 1333 or 
section 111 of the Internal Revenue Code of 1954, or otherwise. The 
difference between the tax previously determined and the tax as 
recomputed will be the increase in the tax previously determined for the 
taxable year.
    (ii) The increase, if any, in the tax previously determined for any 
taxable year (including the taxable year of the recovery) in which a net 
operating loss deduction was allowable, if all or a part of such 
deduction was attributable to the carryover or carryback to such taxable 
year of a net operating loss from another taxable year in which a 
deduction was allowable on account of the destruction or seizure of the 
property in respect of which there is a recovery in the taxable year to 
which such increase is to be added. After the tax previously determined 
has been

[[Page 672]]

ascertained, such tax shall be recomputed by redetermining such net 
operating loss deduction. In the determination of such net operating 
loss deduction the net operating loss shall be recomputed by 
disregarding the deduction allowable on account of the war loss in 
respect of which there is a recovery in the taxable year to which such 
increase is to be added (to the extent that such deduction does not 
exceed the sum of the amount of such recovery not included in gross 
income for the taxable year of such recovery, plus the aggregate amount 
of any recoveries in intervening taxable years in respect of the same 
property) and by disregarding any other deductions allowable on account 
of other war losses or any other losses, expenditures, or accruals in 
the taxable year in respect of which, and to the extent that, recoveries 
in intervening taxable years have been excluded from gross income under 
section 127(c)(3) or 22(b)(12) of the Internal Revenue Code of 1939, or 
section 1333 or 111 of the Internal Revenue Code of 1954, or otherwise. 
The difference between the tax previously determined and the tax as 
recomputed will be the increase in the tax previously determined for the 
taxable year.
    (iii) The increase, if any, in the tax previously determined for any 
taxable year (including the taxable year of recovery) in which an unused 
excess profits credit was availed of in computing the unused excess 
profits credit adjustment for such taxable year, if all or a part of 
such adjustment was attributable to the carryover or carryback to such 
taxable year of an unused excess profits credit from another taxable 
year in which a deduction was allowable on account of the destruction or 
seizure of the property in respect of which there is a recovery in the 
taxable year to which such increase is to be added. After the tax 
previously determined has been ascertained, such tax shall be recomputed 
by redetermining such unused excess profits credit carryover or 
carryback. In the recomputation such carryover or carryback shall be 
redetermined by disregarding such allowable war loss deduction (to the 
extent such deduction does not exceed the sum of the amount of the 
recovery not included in gross income for the taxable year of such 
recovery, plus the aggregate amount of any recoveries in intervening 
taxable years in respect of the same property) and by disregarding any 
other deductions allowable on account of other war losses or any other 
losses, expenditures, or accruals in the taxable year in respect of 
which, and to the extent that, recoveries in intervening taxable years 
have been excluded from gross income under section 127(c)(3) or 
22(b)(12) of the Internal Revenue Code of 1939, or section 1333 or 111 
of the Internal Revenue Code of 1954, or otherwise. The difference 
between the tax previously determined and the tax as recomputed will be 
the increase in the tax previously determined for the taxable year. In 
case there is an increase in the excess profits tax under chapter 2E of 
the Internal Revenue Code of 1939 for the taxable year in which an 
unused excess profits credit was availed of in computing the unused 
excess profits credit adjustment, and a decrease in the income tax under 
chapter 1 of the Internal Revenue Code of 1939 for such taxable year, 
the increase in the tax previously determined shall be considered to be 
an amount equal to the excess of the increase in the excess profits tax 
over the decrease in the income tax.
    (iv) The increase, if any, in the tax previously determined for any 
taxable year (including the taxable year of the recovery) in which an 
unused excess profits credit was availed of in computing the unused 
excess profits credit adjustment for such taxable year, if all or a part 
of such adjustment was attributable to the carryover or carryback to 
such taxable year of an unused excess profits credit from another 
taxable year in which there was allowable a net operating loss deduction 
attributable to the carryover or carryback to such other taxable year of 
a net operating loss, and such net operating loss resulted in whole or 
in part from the deduction allowable on account of the destruction or 
seizure of the property in respect of which there is a recovery in the 
taxable year to which such increase is to be added. After the tax 
previously determined has been ascertained, such tax shall be

[[Page 673]]

recomputed by redetermining such net operating loss deduction and such 
unused excess profits credit carryover or carryback. In the 
redetermination of such net operating loss deduction the net operating 
loss carryover or carryback shall be recomputed by disregarding such 
allowable war loss deduction (to the extent that such deduction does not 
exceed the sum of the amount of such recovery not included in gross 
income for the taxable year of such recovery, plus the aggregate amount 
of any recoveries in intervening taxable years in respect of the same 
property) and by disregarding any other deductions allowable on account 
of other war losses or any other losses, expenditures, or accruals in 
the taxable year in respect of which, and to the extent that, recoveries 
in intervening taxable years have been excluded from gross income under 
section 127(c)(3) or 22(b)(12) of the Internal Revenue Code of 1939, or 
section 1333 or 111 of the Internal Revenue Code of 1954, or otherwise. 
The unused excess profits credit carryover or carryback shall then be 
recomputed to conform to the redetermination of the net operating loss 
deduction for the taxable year from which the unused credit is carried 
over or carried back. The difference between the tax previously 
determined and the tax as recomputed shall be the amount of the increase 
which shall be added to the tax for the taxable year of the recovery. In 
case there is an increase in the excess profits tax under chapter 2E of 
the Internal Revenue Code of 1939 for the taxable year in which an 
unused excess profits credit was availed of in computing the unused 
excess profits credit adjustment, and a decrease in the income tax under 
chapter 1 of the Internal Revenue Code of 1939 for such taxable year, 
the increase which shall be added to the tax for the taxable year of the 
recovery shall be considered to be an amount equal to the excess of the 
increase in the excess profits tax over the decrease in the income tax.

[T.D. 6500, 25 FR 12045, Nov. 26, 1960]



Sec. 1.1334-1  Restoration of value of investments.

    If any interest of the taxpayer in or with respect to property was 
determined to be worthless and was treated as a war loss under section 
127(a)(3) of the Internal Revenue Code of 1939 (see 26 CFR (1939) 
29.127(a)-4) (Regulations 111), or if the taxpayer retained an interest 
in a corporation with respect to which he sustained a war loss under 
section 127(e) of the Internal Revenue Code of 1939, and if the interest 
in the hands of the taxpayer is restored in value, in whole or in part, 
by reason of a recovery with respect to the underlying assets treated as 
war loss property, then such restoration in value is a recovery by the 
taxpayer for the purposes of section 1331. In the application of section 
1333, such restoration shall be treated as a recovery of the same 
interest considered as destroyed or seized. War loss property is 
considered as not being in existence from the date of the loss to the 
date of its recovery.

[T.D. 6500, 25 FR 12046, Nov. 26, 1960]



Sec. 1.1335-1  Elective method; time and manner of making election and 
effect thereof.

    (a) In general. If the taxpayer elects to have the provisions of 
section 1333 applicable to any taxable year in which any money or 
property is recovered in respect of war loss property, section 1333 will 
be applicable by virtue of that election to all taxable years of the 
taxpayer beginning after December 31, 1941. Thus, the taxpayer need not 
make an election with respect to each separate taxable year in which he 
had a recovery. An election for any taxable year in which the taxpayer 
had a recovery in respect of a prior war loss is sufficient to make the 
provisions of section 1333 applicable not only to war loss recoveries 
received by the taxpayer in any past taxable year beginning after 
December 31, 1941, but to any recoveries which may be received by the 
taxpayer in any future taxable year. Such election once made shall be 
irrevocable. The election to have the provisions of section 1333 
applicable to any taxable year cannot be made unless the taxpayer 
recovers money or property (in respect of a prior war loss) during the 
taxable year for which such election is made.
    (b) Manner of election. In all cases the election to have the 
provisions of section 1333 apply must be made by the

[[Page 674]]

taxpayer not later than six months from the last day prescribed by law 
for the filing of his income tax return for any taxable year in which a 
recovery of war loss property has occurred. The election shall be 
evidenced by a written statement, made within such 6-month period, that 
the taxpayer elects to have the provisions of section 1333 apply to any 
taxable year in which any money or property is recovered in respect of 
war loss property. The statement may be made in (or attached to):
    (1) The return or amended return filed for such taxable year;
    (2) A claim for refund or credit filed for such taxable year for an 
overpayment resulting from application of such provisions;
    (3) A timely petition or amended petition to The Tax Court of the 
United States for a redetermination of any deficiency for any taxable 
year in which a recovery of war loss property occurred; or
    (4) A letter addressed to the district director for the district in 
which the return for such taxable year was required to be filed.

If the written statement of election is made in a letter, it shall be 
signed by the taxpayer making the election if an individual or, if the 
taxpayer is not an individual, the letter must be executed in the same 
manner as required in the case of the income tax return of such 
taxpayer. The date of the making of the election shall be the date the 
return, amended return, claim for refund or credit, or letter is filed 
in the office of the district director, or the date the petition or 
amended petition is filed with The Tax Court of the United States. In 
case the election is made in a return filed before the last day 
prescribed by law for the filing thereof (including any extension of 
time for such filing), such election shall not be considered made until 
such last day. See section 7502 and the regulations thereunder with 
respect to the timeliness of filing an election where filing is done by 
mail and section 7503 and the regulations thereunder with respect to the 
timeliness of filing where the last day for filing falls on a Saturday, 
Sunday, or legal holiday.
    (c) Effect of election. (1) If the provisions of section 1333 are 
applicable to any taxable year pursuant to an election made by the 
taxpayer in accordance with the provisions of paragraph (a) of this 
section, the period of limitations provided in chapter 66 of the Code on 
the making of assessments and the beginning of distraint or a proceeding 
in court for collection with respect to (i) the amount to be added to 
the tax for such taxable year under the provisions of section 1333 and 
(ii) any deficiency for such taxable year or for any other taxable year 
to the extent attributable to the basis of the recovered property being 
determined under the provisions of section 1336(b), shall not expire 
prior to the expiration of two years following the date of the making of 
such election. Such amount or such deficiency may be assessed at any 
time prior to the expiration of such period, notwithstanding any law or 
rule of law which would otherwise prevent such assessment and 
collection.
    (2) If the provisions of section 1333 are applicable to any taxable 
year pursuant to an election made by the taxpayer in accordance with the 
provisions of paragraph (a) of this section, and refund or credit of any 
overpayment resulting from the application of such provisions to such 
taxable year is prevented on the date of the making of such election, or 
within one year from such date, by the operation of any law or rule of 
law (other than section 7122 relating to compromises), refund or credit 
of such overpayment may nevertheless be made or allowed, provided claim 
therefor is filed within one year from such date. Thus, the amount of 
such overpayment which may be refunded or credited is not subject to the 
limitations contained in section 6511 or 6512(b).
    (3) In the case of any taxable year ending before the date of the 
making by the taxpayer of an election under section 1335, no interest 
shall be paid on any overpayment specified in subparagraph (2) of this 
paragraph for any period before the expiration of six months following 
the date of the making of such election by the taxpayer, and no interest 
shall be assessed or collected with respect to any amount or any 
deficiency specified in subparagraph (1) of this paragraph for any 
period before the expiration of six

[[Page 675]]

months following the date of the making of such election by the 
taxpayer.

[T.D. 6500, 25 FR 12047, Nov. 26, 1960]



Sec. 1.1336-1  Basis of recovered property.

    (a) General rule. (1) Under section 1336(a), the unadjusted basis of 
any war loss property which is recovered and the unadjusted basis of any 
property which is recovered in lieu of or on account of any such war 
loss property is considered the fair market value of such recovered 
property upon the date of its recovery with the following adjustments:
    (i) If the sum of the recoveries for the day such property is 
recovered and of all previous recoveries exceeds the aggregate of the 
allowable deductions for prior taxable years on account of war losses, 
so that a portion of the recoveries for such day is treated as gain on 
the involuntary conversion of property, such fair market value of the 
property is reduced by the total gain, if any, for such day derived from 
such recovered property as determined under paragraph (b) of Sec. 
1.1332-1.
    (ii) Such fair market value, as reduced under subdivision (i) of 
this subparagraph, is increased by the portion, if any, of the 
recognized gain resulting from the recoveries for such day which is 
allocable to such recovered property, as determined under paragraph (b) 
of Sec. 1.1332-1.

In effect, the unadjusted basis of such property is its fair market 
value upon the date of its recovery, reduced by the amount of 
nonrecognized gain attributable to such recovery under the provisions of 
paragraph (b) of Sec. 1.1332-1.
    (2) If the respective bases of several properties of a taxpayer 
determined under section 1336(a) are greatly disproportionate to their 
adjusted bases immediately before their treatment as war loss 
properties, the taxpayer may apply to the Commissioner for the 
allocation of the aggregate of the bases of such properties among them 
in the proportion of their adjusted bases immediately before the 
destruction or seizure of such properties determined under section 
127(a) of the Internal Revenue Code of 1939. The amount so allocated to 
any such property, in an application approved by the Commissioner, shall 
be the unadjusted basis of such property in lieu of the amount 
determined under subparagraph (1) of this paragraph.
    (3) The application to the Commissioner shall set forth a list of 
all the properties of the taxpayer having an unadjusted basis determined 
under this section, a description of each such property together with a 
statement as to the amount of its adjusted basis immediately before the 
destruction or seizure of such property determined under section 127(a) 
of the Internal Revenue Code of 1939, and a statement as to whether 
there has been any substantial change in the use or nature of the 
property chosen for the allocation from its nature or use immediately 
before the time it was treated as destroyed or seized. Such application 
will be allowed unless there has been such a substantial change in the 
nature or use of such property that the allocation of the bases would 
produce an arbitrary result, or unless the taxpayer has obtained such 
tax benefits by reason of the basis determined under subparagraph (1) of 
this paragraph, that it would be inequitable to change his basis. Thus, 
the allocation will not be allowed if it would give the taxpayer an 
unadjusted basis with respect to any property which is less than the 
amount of the adjustments in reduction of the basis of such property 
which are allowable after its recovery. For example, when property A is 
recovered it has an unadjusted basis of $100. After $70 depreciation has 
been allowed on A, an allocation is sought which would give A an 
unadjusted basis of $60. Since this is less than the depreciation which 
is an adjustment against such basis, the allocation will not be 
permitted.
    (4) The amount of any adjustments to the unadjusted basis determined 
under subparagraph (1) of this paragraph shall, upon the allocation of 
the bases, be taken as an adjustment to the allocated unadjusted basis. 
Thus, if $30 depreciation was allowed upon a $100 basis determined under 
subparagraph (1) of this paragraph and if the unadjusted basis upon 
allocation is $75, such $30 depreciation is allowed against such 
allocated unadjusted basis, so that the adjusted basis of the property 
is then $45.

[[Page 676]]

    (5) The taxpayer may choose any group of recovered properties for 
allocation, except that if any such recovered properties form one 
economic unit, such properties may not be separated but all or none must 
be included in the group. For example, a building may not be separated 
from the land on which it stands if both are recovered property, nor may 
one block of stock in a corporation be separated from other stock in 
such corporation or from bonds in such corporation which are also 
treated as a recovery. If the taxpayer has once been permitted to 
allocate the bases of any group of properties, he may obtain another 
allocation with respect to such properties only if all the properties in 
the original group are included together with other recovered properties 
not included in the original group. For example, if the bases of 
properties A and B are allocated, a second allocation will be made for 
properties A, B, and C, but not for A and C or B and C.
    (b) Property recovered in taxable year to which section 1333 is 
applicable. If, pursuant to an election made by the taxpayer under 
section 1335 and paragraph (a) of Sec. 1.1335-1, the provisions of 
section 1333 are applicable to any taxable year in which the taxpayer 
recovered property in respect of a war loss under section 127(a) of the 
Internal Revenue Code of 1939, the unadjusted basis of such property 
shall be the fair market value of such property determined as of the 
date of the recovery, reduced by the amount of nonrecognized gain 
attributable to such recovery under the provisions of paragraph (b) of 
Sec. 1.1333-1. However, if the property recovered is the same war loss 
property, and if the taxpayer under section 1333(1) includes such 
property in the amount of the recovery at its adjusted basis (for 
determining loss) in his hands on the date such property was considered 
under section 127(a) of the Internal Revenue Code of 1939 as destroyed 
or seized, the unadjusted basis of such property shall be such adjusted 
basis, reduced by the amount of nonrecognized gain attributable to such 
recovery under the provisions of paragraph (b) of Sec. 1.1333-1. The 
fair market value of any property recovered, or the adjusted basis for 
determining loss) of such property if the same property treated as war 
loss property is recovered, shall not be reduced in determining the 
unadjusted basis of such property by the amount of the obligations or 
liabilities with respect to such property in respect of which the 
recovery was received, if the taxpayer for any previous taxable year 
chose under section 127(b)(2) of the Internal Revenue Code of 1939 to 
treat such obligations or liabilities as discharged or satisfied out of 
such property but such obligations or liabilities were not so discharged 
or satisfied prior to the date of the recovery.

[T.D. 6500, 25 FR 12048, Nov. 26, 1960]



Sec. 1.1337-1  Determination of tax benefits from allowable deductions.

    (a) That part of the aggregate of the deductions allowed a taxpayer 
for any taxable year on account of war losses under section 127(a) of 
the Internal Revenue Code of 1939 which, if disallowed, would not result 
in an increase in the normal tax, surtax (including the tax imposed by 
section 102 of the Internal Revenue Code of 1939), or victory tax of 
taxpayer, or of any tax imposed in lieu of such taxes or of any tax 
imposed by chapter 2 of the Internal Revenue Code of 1939, for the 
taxable year in which such deductions are allowed or in any other 
taxable year, such as a taxable year in which the taxpayer's income tax 
is computed by reference to a carryover or carryback of net operating 
losses from the taxable year in which such deductions are allowed, is 
considered, for the purposes of section 127(a) of the Internal Revenue 
Code of 1939 an allowable deduction for the taxable year which did not 
result in a reduction of any tax of the taxpayer under chapter 1 or 2 of 
the Internal Revenue Code of 1939. In the case of recoveries of war 
losses and other items to which the recovery exclusion provisions of 
section 111 apply, such as bad debts, the determination of the tax 
benefit should be made in accordance with section 111(b) and the 
regulations thereunder. The deductions allowed a taxpayer for any 
taxable year on account of war losses are all the deductions on account 
of war losses which were claimed by the taxpayer in a return, in a claim 
for credit or refund

[[Page 677]]

of an overpayment, or in a petition to The Tax Court of the United 
States with respect to such taxable year and which were not disallowed, 
and all deductions on account of war losses which, although not so 
claimed by the taxpayer, were nevertheless allowed (for example, by the 
Commissioner, a court, or The Tax Court) in computing a tax of the 
taxpayer.
    (b) Any deduction allowable for a taxable year on account of a war 
loss under section 127(a) of the Internal Revenue Code of 1939 which was 
not claimed by the taxpayer for such year in a return, a claim for 
credit or refund of an overpayment, or a petition to the Tax Court of 
the United States and was not allowed as a deduction (for example, by 
the Commissioner, a court, or the Tax Court) in computing his tax for 
such year or for any other year is considered a deduction which did not 
result in a reduction of any tax of the taxpayer under chapter 1 or 2 of 
the Internal Revenue Code of 1939, since it is an allowable deduction 
which was not allowed in computing any tax of the taxpayer. If the 
taxpayer claimed for any taxable year a deduction on account of a war 
loss, and if such deduction was disallowed, the taxpayer may not 
subsequently contend for the purposes of section 1331 that such 
deduction was an allowable deduction for such taxable year.
    (c) If the taxpayer elected under section 127(b) of the Internal 
Revenue Code of 1939 to decrease the amount of a war loss by treating 
the obligations and liabilities described in that section as discharged 
or satisfied out of the property destroyed or seized, and if the 
taxpayer establishes that any of the obligations and liabilities were 
not so discharged or satisfied, then the amount by which such continuing 
obligations and liabilities decreased the war loss shall be considered 
an allowable deduction for the taxable year in which the war loss was 
sustained which did not result in a reduction of any tax of the taxpayer 
under chapter 1 or 2 of the Internal Revenue Code of 1939.

[T.D. 6500, 25 FR 12048, Nov. 26, 1960]

                             Claim of Right



Sec. 1.1341-1  Restoration of amounts received or accrued under claim 
of right.

    (a) In general. (1) If, during the taxable year, the taxpayer is 
entitled under other provisions of chapter 1 of the Internal Revenue 
Code of 1954 to a deduction of more than $3,000 because of the 
restoration to another of an item which was included in the taxpayer's 
gross income for a prior taxable year (or years) under a claim of right, 
the tax imposed by chapter 1 of the Internal Revenue Code of 1954 for 
the taxable year shall be the tax provided in paragraph (b) of this 
section.
    (2) For the purpose of this section income included under a claim of 
right means an item included in gross income because it appeared from 
all the facts available in the year of inclusion that the taxpayer had 
an unrestricted right to such item, and restoration to another means a 
restoration resulting because it was established after the close of such 
prior taxable year (or years) that the taxpayer did not have an 
unrestricted right to such item (or portion thereof).
    (3) For purposes of determining whether the amount of a deduction 
described in section 1341(a)(2) exceeds $3,000 for the taxable year, 
there shall be taken into account the aggregate of all such deductions 
with respect to each item of income (described in section 1341(a)(1)) of 
the same class.
    (b) Determination of tax. (1) Under the circumstances described in 
paragraph (a) of this section, the tax imposed by chapter 1 of the 
Internal Revenue Code of 1954 for the taxable year shall be the lesser 
of:
    (i) The tax for the taxable year computed under section 1341(a)(4), 
that is, with the deduction taken into account, or
    (ii) The tax for the taxable year computed under section 1341(a)(5), 
that is, without taking such deduction into account, minus the decrease 
in tax (net of any increase in tax imposed by section 56, relating to 
the minimum tax for tax preferences) (under chapter 1 of the Internal 
Revenue Code of 1954, under chapter 1 (other than subchapter E) and 
subchapter E of chapter 2 of the

[[Page 678]]

Internal Revenue Code of 1939, or under the corresponding provisions of 
prior revenue laws) for the prior taxable year (or years) which would 
result solely from the exclusion from gross income of all or that 
portion of the income included under a claim of right to which the 
deduction is attributable. For the purpose of this subdivision, the 
amount of the decrease in tax is not limited to the amount of the tax 
for the taxable year. See paragraph (i) of this section where the 
decrease in tax for the prior taxable year (or years) exceeds the tax 
for the taxable year.
    (iii) For purposes of computing, under section 1341(a)(4) and 
subdivision (i) of this subparagraph, the tax for a taxable year 
beginning after December 31, 1961, if the deduction of the amount of the 
restoration results in a net operating loss for the taxable year of 
restoration, such net operating loss shall, pursuant to section 
1341(b)(4)(A), be carried back to the same extent and in the same manner 
as is provided under section 172 (relating to the net operating loss 
deduction) and the regulations thereunder. If the aggregate decrease in 
tax for the taxable year (or years) to which such net operating loss is 
carried back is greater than the excess of:
    (a) The amount of decrease in tax for a prior taxable year (or 
years) computed under section 1341(a)(5)(B), over
    (b) The tax for the taxable year computed under section 
1341(a)(5)(A),

The tax imposed for the taxable year under chapter 1 shall be the tax 
determined under section 1341(a)(4) and subdivision (i) of this 
subparagraph. If the tax imposed for the taxable year is determined 
under section 1341(a)(4) and subdivision (i) of this subparagraph, the 
decrease in tax for the taxable year (or years) to which the net 
operating loss is carried back shall be an overpayment of tax for the 
taxable year (or years) to which the net operating loss is carried back 
and shall be refunded or credited as an overpayment for such taxable 
year (or years). See section 6511(d)(2), relating to special period of 
limitation with respect to net operating loss carrybacks.
    (2) Except as otherwise provided in section 1341(b)(4)(B) and 
paragraph (d) (1)(ii) and (4)(ii) of this section, if the taxpayer 
computes his tax for the taxable year under the provisions of section 
1341(a)(5) and subparagraph (1)(ii) of this paragraph, the amount of the 
restoration shall not be taken into account in computing taxable income 
or loss for the taxable year, including the computation of any net 
operating loss carryback or carryover or any capital loss carryover. 
However, the amount of such restoration shall be taken into account in 
adjusting earnings and profits for the current taxable year.
    (3) If the tax determined under subparagraph (1)(i) of this 
paragraph is the same as the tax determined under subparagraph (1)(ii) 
of this paragraph, the tax imposed for the taxable year under chapter 1 
shall be the tax determined under subparagraph (1)(i) of this paragraph, 
and section 1341 and this section shall not otherwise apply.
    (4) After it has been determined whether the tax imposed for a 
taxable year of restoration beginning after December 31, 1961, shall be 
computed under the provisions of section 1341(a)(4) or under the 
provisions of section 1341(a)(5), the net operating loss, if any, which 
remains after the application of section 1341(b)(4)(A) or the net 
operating loss or capital loss, if any, which remains after the 
application of section 1341(b)(4)(B) shall be taken into account in 
accordance with the following rules:
    (i) If it is determined that section 1341(a)(4) and subparagraph 
(1)(i) of this paragraph apply, then that portion, if any, of the net 
operating loss for the taxable year which remains after the application 
of section 1341(b)(4)(A) and subparagraph (1)(iii) of this paragraph 
shall be taken into account under section 172 for taxable years 
subsequent to the taxable year of restoration to the same extent and in 
the same manner as a net operating loss sustained in such taxable year 
of restoration. Thus, if the net operating loss for the taxable year of 
restoration (computed with the deduction referred to in section 
1341(a)(4)) exceeds the taxable income (computed with the modifications 
prescribed in section 172) for the taxable year (or years) to which it 
is carried back, such excess shall be available as

[[Page 679]]

a carryover to taxable years subsequent to the taxable year of 
restoration.
    (ii) If it is determined that section 1341(a)(5) and subparagraph 
(1)(ii) of this paragraph apply, then that portion, if any, of a net 
operating loss or capital loss which remains after the application of 
section 1341(b)(4)(B) and paragraph (d)(4) of this section shall be 
taken into account under section 172 or 1212, as the case may be, for 
taxable years subsequent to the taxable year of restoration to the same 
extent and in the same manner as a net operating loss or capital loss 
sustained in the prior taxable year (or years). For example, if the net 
operating loss for the prior taxable year (computed with the exclusion 
referred to in section 1341(a)(5)(B)) exceeds the taxable income 
(computed with the modifications prescribed in section 172) for prior 
taxable years to which such net operating loss is carried back or 
carried over (including for this purpose the taxable year of 
restoration), such excess shall be available as a carryover to taxable 
years subsequent to the taxable year of restoration in accordance with 
the rules prescribed in section 172 which are applicable to such prior 
taxable year (or years).
    (c) Application to deductions which are capital in nature. Section 
1341 and this section shall also apply to a deduction which is capital 
in nature otherwise allowable in the taxable year. If the deduction 
otherwise allowable is capital in nature, the determination of whether 
the taxpayer is entitled to the benefits of section 1341 and this 
section shall be made without regard to the net capital loss limitation 
imposed by section 1211. For example, if a taxpayer restores $4,000 in 
the taxable year and such amount is a long-term capital loss, the 
taxpayer will, nevertheless, be considered to have met the $3,000 
deduction requirement for purposes of applying this section, although 
the full amount of the loss might not be allowable as a deduction for 
the taxable year. However, if the tax for the taxable year is computed 
with the deduction taken into account, the deduction allowable will be 
subject to the limitation on capital losses provided in section 1211, 
and the capital loss carryover provided in section 1212.
    (d) Determination of decrease in tax for prior taxable years--(1) 
Prior taxable years. (i) Except as otherwise provided in subdivision 
(ii) of this subparagraph, the prior taxable year (or years) referred to 
in paragraph (b) of this section is the year (or years) in which the 
item to which the deduction is attributable was included in gross income 
under a claim of right and, in addition, any other prior taxable year 
(or years) the tax for which will be affected by the exclusion from 
gross income in such prior taxable year (or years) of such income.
    (ii) For purposes of applying section 1341(b)(4)(B) in computing the 
amount of the decrease referred to in paragraph (b)(1)(ii) of this 
section for any taxable year beginning after December 31, 1961, the term 
prior taxable year (or years) includes the taxable year of restoration. 
Under section 1341(b)(4)(B), for taxable years of restoration beginning 
after December 31, 1961, in any case where the exclusion referred to in 
section 1341(a)(5)(B) and paragraph (b)(1)(ii) of this section results 
in a net operating loss or capital loss for the prior taxable year (or 
years), such loss shall, for purposes of computing the decrease in tax 
for the prior taxable year (or years) under such section 1341(a)(5)(B) 
and such paragraph (b)(1)(ii) of this section, be carried back and 
carried over to the same extent and in the same manner as is provided 
under section 172 (relating to the net operating loss deduction) or 
section 1212 (relating to capital loss carryover), except that no 
carryover beyond the taxable year shall be taken into account. See 
subparagraph (4) of this paragraph for rules relating to the computation 
of the amount of decrease in tax.
    (2) Amount of exclusion from gross income in prior taxable years. 
(i) The amount to be excluded from gross income for the prior taxable 
year (or years) in determining the decrease in tax under section 
1341(a)(5)(B) and paragraph (b)(1)(ii) of this section shall be the 
amount restored in the taxable year, but shall not exceed the amount 
included in gross income in the prior taxable year (or years) under the 
claim of right to which the deduction for the

[[Page 680]]

restoration is attributable, and shall be adjusted as provided in 
subdivision (ii) of this subparagraph.
    (ii) If the amount included in gross income for the prior taxable 
year (or years) under the claim of right in question was reduced in such 
year (or years) by a deduction allowed under section 1202 (or section 
117 (b) of the Internal Revenue Code of 1939 or corresponding provisions 
of prior revenue laws), then the amount determined under subdivision (i) 
of this subparagraph to be excluded from gross income for such year (or 
years) shall be reduced in the same proportion that the amount included 
in gross income under a claim of right was reduced.
    (iii) The determination of the amount of the exclusion from gross 
income of the prior taxable year shall be made without regard to the 
capital loss limitation contained in section 1211 applicable in 
computing taxable income for the current taxable year. The amount of the 
exclusion from gross income in a prior taxable year (or years) shall not 
exceed the amount which would, but for the application of section 1211, 
be allowable as a deduction in the taxable year of restoration.
    (iv) The rule provided in subdivision (iii) of this subparagraph may 
be illustrated as follows:

    Example: For the taxable year 1952, an individual taxpayer had long-
term capital gains of $50,000 and long-term capital losses of $10,000, a 
net long-term gain of $40,000. He also had other income of $5,000. In 
1956, taxpayer restored the $50,000 of long-term gain. He had no capital 
gains or losses in 1956 but had other income of $5,000. If his tax 
liability for 1956, the taxable year of restoration, is computed by 
taking the deduction into account, the taxpayer would be entitled to a 
deduction under section 1211 of only $1,000 on account of the capital 
loss. However, if the taxpayer computes his tax under section 1341(a)(5) 
and paragraph (b)(1)(ii) of this section, it is necessary to determine 
the decrease in tax for 1952. In such a determination, $50,000 is to be 
excluded from gross income for that year, resulting in a net capital 
loss for that year of $10,000, and a capital loss deduction of $1,000 
under section 117(d) of the Internal Revenue Code of 1939 (corresponding 
to section 1211 of the Internal Revenue Code of 1954) with carryover 
privileges. The difference between the tax previously determined and the 
tax as recomputed after such exclusion for the years affected will be 
the amount of the decrease.

    (3) Determination of amount of deduction attributable to prior 
taxable years. (i) If the deduction otherwise allowable for the taxable 
year relates to income included in gross income under a claim of right 
in more than one prior taxable year and the amount attributable to each 
such prior taxable year cannot be readily identified, then the portion 
attributable to each such prior taxable year shall be that proportion of 
the deduction otherwise allowable for the taxable year which the amount 
of the income included under the claim of right in question for the 
prior taxable year bears to the total of all such income included under 
the claim of right for all such prior taxable years.
    (ii) The rule provided in subdivision (i) of this subparagraph may 
be illustrated as follows:

    Example: Under a claim of right, A included in his gross income over 
a period of three taxable years an aggregate of $9,000 for services to a 
certain employer, in amounts as follows: $2,000 for taxable year 1952, 
$4,000 for taxable year 1953, and $3,000 for taxable year 1954. In 1955 
it is established that A must restore $6,750 of these amounts to his 
employer, and that A is entitled to a deduction of this amount in the 
taxable year 1955. The amount of the deduction attributable to each of 
the prior taxable years cannot be identified. Accordingly, the amount of 
the deduction attributable to each prior taxable year is:

1952--$6,750x$2,000/$9,000=$1,500
1953--$6,750x$4,000/$9,000=$3,000
1954--$6,750x$3,000/$9,000=$2,250

    (4) Computation of amount of decrease in tax. (i) In computing the 
amount of decrease in tax for a prior taxable year (or years) resulting 
from the exclusion from gross income of the income included under a 
claim of right, there must first be ascertained the amount of tax 
previously determined for the taxpayer for such prior taxable year (or 
years). The tax previously determined shall be the sum of the amounts 
shown by the taxpayer on his return or returns, plus any amounts which 
have been previously assessed (or collected without assessment) as 
deficiencies or which appropriately should be assessed or collected, 
reduced by the amount of any refunds or credits which have previously 
been made or which appropriately should be made. For taxable years 
beginning after December 31,

[[Page 681]]

1961, if the provisions of section 1341(b)(4)(B) are applicable, the tax 
previously determined shall include the tax for the taxable year of 
restoration computed without taking the deduction for the amount of the 
restoration into account. After the tax previously determined has been 
ascertained, a recomputation must then be made to determine the decrease 
in tax, if any, resulting from the exclusion from gross income of all or 
that portion of the income included under a claim of right to which the 
deduction otherwise allowable in the taxable year is attributable.
    (ii) No item other than the exclusion of the income previously 
included under a claim of right shall be considered in computing the 
amount of decrease in tax if reconsideration of such other item is 
prevented by the operation of any provision of the internal revenue laws 
or any other rule of law. However, if the amounts of other items in the 
return are dependent upon the amount of adjusted gross income, taxable 
income, or net income (such as charitable contributions, foreign tax 
credit, deductions for depletion, and net operating loss), appropriate 
adjustment shall be made as part of the computation of the decrease in 
tax. For the purpose of determining the decrease in tax for the prior 
taxable year (or years) which would result from the exclusion from gross 
income of the item included under a claim of right, the exclusion of 
such item shall be given effect not only in the prior taxable year in 
which it was included in gross income but in all other prior taxable 
years (including the taxable year of restoration if such year begins 
after December 31, 1961, and section 1341(b)(4)(B) applies, see 
subparagraph (1)(ii) of this paragraph) affected by the inclusion of the 
item (for example, prior taxable years affected by a net operating loss 
carryback or carryover or capital loss carryover).
    (iii) The rules provided in this subparagraph may be illustrated as 
follows:

    Example 1. For the taxable year 1954, a corporation had taxable 
income of $35,000, on which it paid a tax of $12,700. Included in gross 
income for the year was $20,000 received under a claim of right as 
royalties. In 1957, the corporation is required to return $10,000 of the 
royalties. It otherwise has taxable income in 1957 of $5,000, so that 
without the application of section 1341 it has a net operating loss of 
$5,000 in that year. Facts also come to light in 1957 which entitle the 
corporation to an additional deduction of $5,000 for 1954. When a 
computation is made under paragraph (b)(1)(i) of this section, the 
corporation has no tax for the taxable year 1957. When a computation is 
made under paragraph (b)(1)(ii) of this section, the tax for 1957, 
without taking the restoration into account, is $1,500, based on a 
taxable income of $5,000. The decrease in tax for 1954 is computed as 
follows:

Tax shown on return for 1954................................     $12,700
                                                 =============
Taxable income for 1954 upon which tax shown on return was        35,000
 based......................................................
Less: Additional deduction (on account of which credit or          5,000
 refund could be made)......................................
                                                 -------------
    Total...................................................      30,000
Tax on $30,000 (adjusted taxable income for 1954)...........      10,100
                                                 =============
Tax on $30,000 (adjusted taxable income for 1954)...........      10,100
Taxable income for 1954, as adjusted............     $30,000
Less exclusion of amount restored...............      10,000
                                                 ------------
    Taxable income for 1954 by applying               20,000
     paragraph (b)(1)(ii) of this section.......
Tax on $20,000..............................................       6,000
                                                 -------------
Decrease in tax for 1954 by applying paragraph (b)(1)(ii) of      $4,100
 this section...............................................
Tax for 1957 without taking the restoration into account....       1,500
                                                 -------------
Amount by which decrease exceeds the tax for 1957 computed        $2,600
 without taking restoration into account....................
 

    (The $2,600 is treated as having been paid on the last day 
prescribed by law for the payment of the tax for 1957 and is available 
as a refund. In addition the taxpayer has made an overpayment of $2,600 
($12,700 less $10,000) for 1954 because of the additional deduction of 
$5,000.)
    Example 2. Assume the same facts as in example (1) except that, 
instead of the corporation being entitled to an additional deduction of 
$5,000 for 1954, it is determined that the corporation failed to include 
an item of $5,000 in gross income for that year. The decrease in tax for 
1954 is computed as follows:

Tax shown on return for 1954................................     $12,700
                                                 =============
Taxable income for 1954 upon which tax shown on return was        35,000
 based......................................................
Plus: Additional income (on account of which deficiency           $5,000
 assessment could be made)..................................
                                                 -------------
    Total...................................................      40,000
Tax on $40,000 (adjusted taxable income for 1954)...........      15,300
                                                 =============
Tax on $40,000 (adjusted taxable income for 1954)...........      15,300
Taxable income for 1954 as adjusted.............     $40,000

[[Page 682]]

 
Less exclusion of amount restored...............      10,000
                                                 ------------
Taxable income for 1954 by applying paragraph         30,000
 (b)(1)(ii) of this section.....................
Tax on $30,000..............................................      10,100
                                                 -------------
Decrease in tax for 1954 by applying paragraph (b)(1)(ii) of       5,200
 this section...............................................
Tax for 1957 without taking the restoration into account....       1,500
                                                 -------------
Amount by which decrease exceeds the tax for 1957 computed        $3,700
 without taking the restoration into account................
 

    (The $3,700 is treated as having been paid on the last day 
prescribed by law for the payment of the tax for 1957 and is available 
as a refund. In addition the taxpayer has a deficiency of $2,600 
($15,300 less $12,700) for 1954 because of the additional income of 
$5,000.)
    Example 3. For the taxable year 1954, a corporation had taxable 
income of $25,000, on which it paid a tax of $7,500. Included in gross 
income for the year was $10,000 received under a claim of right as 
commissions. In 1956, the corporation is required to return $5,000 of 
the commissions. The corporation has a net operating loss of $10,000 for 
1956, excluding the deduction for the $5,000 restored. When a 
computation is made under either paragraph (b)(1)(i) or paragraph 
(b)(1)(ii) of this section, the corporation has no tax for the taxable 
year 1956. The decrease in tax for 1954 is computed as follows:

Tax shown on return for 1954................................      $7,500
                                                 =============
Taxable income for 1954 upon which tax shown on return was        25,000
 based......................................................
Less: Additional deduction (on account of net operating loss      10,000
 carryback from 1956).......................................
                                                 -------------
    Net income as adjusted..................................      15,000
Tax on $15,000 (adjusted taxable income for 1954)...........       4,500
                                                 =============
Tax on $15,000 (adjusted taxable income for 1954)...........       4,500
Taxable income for 1954, as adjusted............     $15,000
Less: exclusion of amount restored..............      $5,000
                                                 ------------
    Taxable income for 1954 by applying               10,000
     paragraph (b)(1)(ii) of this section.......
Tax on $10,000..............................................      $3,000
                                                 -------------
Decrease in tax for 1954 by applying paragraph (b)(1)(ii) of       1,500
 this section...............................................
Tax for 1956 without taking the restoration into account....        None
                                                 -------------
Amount by which decrease exceeds the tax for 1956 computed        $1,500
 without taking the restoration into account................
 


(The $1,500 is treated as having been paid on the last day prescribed by 
law for the payment of the tax for 1956 and is available as a refund. In 
addition, the taxpayer has an overpayment of $3,000 ($7,500 less $4,500) 
for 1954 because of the net operating loss deduction of $10,000.)
    Example 4. For the taxable year 1946 a married man with no 
dependents, who kept his books on the cash receipts and disbursements 
basis, filed a return (claiming two exemptions) disclosing adjusted 
gross income of $42,000, deductions amounting to $12,000, and a net 
income of $30,000. Gross income included among other items, salary in 
the amount of $15,000 and rental income in the amount of $5,000. During 
the taxable year he donated $10,000 to the American Red Cross and in his 
return claimed a deduction of $6,300 on account thereof, representing 
the maximum deduction allowable under the 15-percent limitation imposed 
by section 23(o) of the Internal Revenue Code of 1939 for the year 1946. 
In computing his net income he omitted interest income amounting to 
$6,000 and neglected to take a deduction for interest paid in the amount 
of $4,500. The return disclosed a tax liability of $11,970, which was 
assessed and paid. In 1955, after the expiration of the period of 
limitations upon the assessment of a deficiency or the allowance of a 
refund for 1946, the taxpayer had to restore the $5,000 included in his 
gross income in 1946 as rental income. The amount of the decrease in tax 
for 1946 is $2,467.62, computed as follows:

Tax previously determined for 1946..........................  $11,970.00
                                                 =============
Net income for 1946 upon which tax previously determined was   30,000.00
 based......................................................
Less: Rents included under claim of right...................    5,000.00
                                                 -------------
    Balance.................................................   25,000.00
Adjustment for contributions (add 15 percent of $5,000).....      750.00
                                                 -------------
    Net income as adjusted..................................   25,750.00
Tax on $25,750..............................................    9,502.38
                                                 =============
Amount of decrease in tax for 1946:
  Tax previously determined.................................  $11,970.00
  Tax as recomputed.........................................    9,502.38
                                                 -------------
    Decrease in tax.........................................   $2,467.62
 


The recomputation to determine the amount of the decrease in tax for 
1946 does not take into consideration the barred item of $6,000 
representing interest received, which was omitted from gross income, or 
the barred item of $4,500 representing interest paid for which no 
deduction was allowed. See subdivision (ii) of this subparagraph.
    Example 5. (a) Facts. For the taxable year 1959, a corporation 
reporting income on the calendar year basis had taxable income of 
$20,000 on which it paid a tax of $6,000. Included in gross income for 
such year was $100,000 received under a claim of right as royalties. For 
each of its taxable years 1956, 1957, 1958, 1960, 1961, and 1962, the 
corporation had taxable income of $10,000 on which it paid tax of $3,000 
for each year. In 1963, the corporation returns the entire amount of

[[Page 683]]

$100,000 of the royalties. In such taxable year the corporation has 
taxable income of $25,000 (without taking the deduction of $100,000 into 
account), and has a net operating loss of $75,000 (taking the deduction 
of $100,000 into account). In determining whether section 1341(a)(4) or 
section 1341(a)(5) applies, the corporation will compute the lesser 
amount of tax referred to in section 1341(a) by applying the rules 
provided in section 1341(b)(4).
    (b) Tax under section 1341 (a)(4) and (b)(4)(A). The net operating 
loss of $75,000 for 1963 (taking into account the deduction of $100,000) 
is carried back to the three taxable years (1960, 1961, and 1962) in the 
manner provided under section 172. For purposes of this example it is 
assumed that no modifications under section 172 are necessary. Since the 
aggregate taxable income for such three taxable years is only $30,000 
the entire taxable income for such years is eliminated by the carryback, 
and the corporation would be entitled to a refund of the tax for such 
years in the aggregate amount of $9,000. (In addition, the remaining 
$45,000 of the net operating loss for 1963 would be available as a 
carryover to taxable years after the taxable year (1963) to the extent 
and in the manner provided by section 172.)
    (c) Tax under section 1341 (a)(5) and (b)(4)(B). The tax for the 
taxable year (1963) on $25,000 of taxable income (computed without the 
deduction of $100,000) is $7,500. The exclusion of $100,000 from gross 
income for the taxable year 1959 (the year in which the item was 
included) results in a net operating loss of $80,000 for such year 
($20,000 taxable income minus the $100,000 exclusion, no adjustments 
under section 172 being necessary), thus decreasing the tax for such 
year by the entire amount of $6,000 paid. The resulting net operating 
loss of $80,000 for 1959 is available as a carryback to 1956, 1957, and 
1958, and as a carryover to 1960, 1961, 1962, and 1963. For purposes of 
this example it is assumed that no modifications under section 172 are 
necessary. Since the aggregate taxable income for such taxable years is 
$85,000, all except $5,000 of the 1963 taxable income is eliminated by 
such carryback and carryover. The tax on such remaining $5,000 of 
taxable income for 1963 is $1,500, thus decreasing the tax determined 
for such year by $6,000 ($7,500 minus $1,500). Under section 1341 (a)(5) 
and (b)(4)(B), the decrease in tax for the prior taxable years exceeds 
the tax for the taxable year of restoration computed without the 
deduction of the amount of the restoration by $22,500, computed as 
follows:

Tax for taxable year 1963 (on taxable income of     .........     $7,500
 $25,000 without the deduction)...................
Decrease in tax for prior taxable years:
Due to exclusion (1959)...........................     $6,000
Due to net operating loss carryback:
    1956...............................     $3,000
    1957...............................      3,000
    1958...............................      3,000
                                        -----------
                                         .........      9,000
Due to net operating loss carryover:
    1960...............................     $3,000
    1961...............................      3,000
    1962...............................      3,000
    1963...............................      6,000
                                        -----------
                                         .........     15,000
                                         .........   --------     30,000
                                                              ----------
Excess of the decrease in tax for the    .........  .........     22,500
 prior taxable years over the tax for
 taxable year 1963 ($30,000 less $7,500
 tax for the taxable year).............
 

    (d) Application of section 1341(a)(4) or section 1341(a)(5). Since 
the computation under section 1341 (a)(4) and (b)(4)(A) results in an 
available refund of only $9,000 tax for the taxable years to which the 
net operating loss for 1963 is carried back, and since the computation 
under section 1341 (a)(5) and (b)(4)(B) results in an overpayment of 
$22,500, it is determined that section 1341(a)(5) applies. Accordingly, 
the $22,500 is treated as having been paid on the last day prescribed by 
law for the payment of tax for 1963 and is available as a refund.

    (e) Method of accounting. The provisions of section 1341 and this 
section shall be applicable in the case of a taxpayer on the cash 
receipts and disbursements method of accounting only to the taxable year 
in which the item of income included in a prior year (or years) under a 
claim of right is actually repaid. However, in the case of a taxpayer on 
the cash receipts and disbursements method of accounting who 
constructively received an item of income under a claim of right and 
included such item of income in gross income in a prior year (or years), 
the provisions of section 1341 and this section shall be applicable to 
the taxable year in which the taxpayer is required to relinquish his 
right to receive such item of income. Such provisions shall be 
applicable in the case of other taxpayers only to the taxable year which 
is the proper taxable year (under the method of accounting used by the 
taxpayer in computing taxable income) for taking into account the 
deduction resulting from the restoration of the item of income included 
in a prior year (or years) under a claim of right. For example, if the 
taxpayer is on an accrual method of accounting, the provisions of this

[[Page 684]]

section shall apply to the year in which the obligation properly accrues 
for the repayment of the item included under a claim of right.
    (f) Inventory items, stock in trade, and property held primarily for 
sale in the ordinary course of trade or business. (1) Except for amounts 
specified in subparagraphs (2) and (3) of this paragraph, the provisions 
of section 1341 and this section do not apply to deductions attributable 
to items which were included in gross income by reason of the sale or 
other disposition of stock in trade of the taxpayer (or other property 
of a kind which would properly have been included in the inventory of 
the taxpayer if on hand at the close of the prior taxable year) or 
property held by the taxpayer primarily for sale to customers in the 
ordinary course of the taxpayer's trade or business. This section is, 
therefore, not applicable to sales returns and allowances and similar 
items.
    (2)(i) In the case of taxable years beginning after December 31, 
1957, the provisions of section 1341 and this section apply to 
deductions which arise out of refunds or repayments with respect to 
rates made by a regulated public utility, as defined in section 
7701(a)(33) without regard to the limitation contained in the last two 
sentences thereof (for taxable years beginning before January 1, 1964, 
as defined in section 1503(c) (1) or (3) and paragraph (g) of Sec. 
1.1502-2A (as contained in the 26 CFR edition revised as of April 1, 
1996)), if such refunds or repayments are required to be made by the 
Government, political subdivision, agency, or instrumentality referred 
to in such section, or are required to be made by an order of a court, 
or are made in settlement of litigation or under threat or imminence of 
litigation. Thus, deductions attributable to refunds of charges for the 
sale of natural gas under rates approved temporarily by a proper 
governmental authority are, in the case of taxable years beginning after 
December 31, 1957, eligible for the benefits of section 1341 and this 
section, if such refunds are required by the governmental authority, or 
by an order of a court, or are made in settlement of litigation or under 
threat or imminence of litigation.
    (ii) In the case of taxable years beginning before January 1, 1958, 
the provisions of section 1341 and this section apply to deductions 
which arise out of refunds or repayments (whether or not with respect to 
rates) made by a regulated public utility, as defined in section 
7701(a)(33) without regard to the limitation contained in the last two 
sentences thereof (for taxable years beginning before January 1, 1964, 
as defined in section 1503(c) (1) or (3) and paragraph (g) of Sec. 
1.1502-2A), if such refunds or repayments are required to be made by the 
Government, political subdivision, agency, or instrumentality referred 
to in such section. Thus, in the case of taxable years beginning before 
January 1, 1958, deductions attributable to refunds or repayments may be 
eligible for the benefits of section 1341 and this section, even though 
such refunds or repayments are not with respect to rates. On the other 
hand, in the case of such taxable years, section 1341 and this section 
do not apply to any deduction which arises out of a refund or repayment 
(whether or not with respect to rates) which is required to be made by 
an order of a court, or which is made in settlement of litigation or 
under threat or imminence of litigation.
    (3) The provisions of section 1341 and this section apply to a 
deduction which arises out of a payment or repayment made pursuant to a 
price redetermination provision in a subcontract:
    (i) If such subcontract was entered into before January 1, 1958, 
between persons other than those bearing a relationship set forth in 
section 267(b);
    (ii) If such subcontract is subject to statutory renegotiation; and
    (iii) If section 1481 (relating to mitigation of effect of 
renegotiation of Government contracts) does not apply to such payment or 
repayment solely because such payment or repayment is not paid or repaid 
to the United States or any agency thereof.

Thus, a taxpayer who enters into a subcontract to furnish items to a 
prime contractor with the United States may, pursuant to a price 
redetermination provision in the subcontract, be required to refund an 
amount to the prime contractor or to another subcontractor. Since the 
refund would be

[[Page 685]]

made directly to the prime contractor or to another subcontractor, and 
not directly to the United States, the taxpayer would be unable to avail 
himself of the benefits of section 1481. However, the provisions of 
section 1341 and this section will apply in such a case, if the 
conditions set forth in subdivisions (i), (ii), and (iii) of this 
subparagraph are met. For provisions relating to the mitigation of the 
effect of a redetermination of price with respect to subcontracts 
entered into after December 31, 1957, when repayment is made to a party 
other than the United States or any agency thereof, see section 1482.
    (g) Bad debts. The provisions of sections 1341 and this section do 
not apply to deductions attributable to bad debts.
    (h) Legal fees and other expenses. Section 1341 and this section do 
not apply to legal fees or other expenses incurred by a taxpayer in 
contesting the restoration of an item previously included in income. 
This rule may be illustrated by the following example:

    Example: A sold his personal residence to B in a prior taxable year 
and realized a capital gain on the sale. C claimed that under an 
agreement with A he was entitled to a 5-percent share of the purchase 
price since he brought the parties together and was instrumental in 
closing the sale. A rejected C's demand and included the entire amount 
of the capital gain in gross income for the year of sale. C instituted 
action and in the taxable year judgment is rendered against A who pays C 
the amount involved. In addition, A pays legal fees in the taxable year 
which were incurred in the defense of the action. Section 1341 applies 
to the payment of the 5-percent share of the purchase price to C. 
However, the payment of the legal fees, whether or not otherwise 
deductible, does not constitute an item restored for purposes of section 
1341(a) and paragraph (a) of this section.

    (i) Refunds. If the decrease in tax for the prior taxable year (or 
years) determined under section 1341(a)(5)(B) and paragraph (b)(1)(ii) 
of this section exceeds the tax imposed by chapter 1 of the Code for the 
taxable year computed without the deduction, and for taxable years 
beginning after December 31, 1961, if such excess is greater than the 
decrease in tax for the taxable year (or years) to which the net 
operating loss described in section 1341(b)(4)(A) and paragraph 
(b)(1)(iii) of this section is carried back, such excess shall be 
considered to be a payment of tax for the taxable year of restoration. 
Such payment is deemed to have been made on the last day prescribed by 
law for the payment of tax for the taxable year and shall be refunded or 
credited in the same manner as if it were an overpayment of tax for such 
taxable year. However, no interest shall be allowed or paid if such an 
excess results from the application of section 1341(a)(5)(B) in the case 
of a deduction described in paragraph (f)(3) of this section (relating 
to payments or repayments pursuant to price redetermination). If the tax 
for the taxable year of restoration is computed under section 1341(a)(4) 
and results in a decrease in tax for the taxable year (or years) to 
which a net operating loss described in section 1341(b)(4)(A) is carried 
back, see paragraph (b)(1)(iii) of this section.

[T.D. 6500, 25 FR 12049, Nov. 26, 1960, as amended by T.D. 6617, 27 FR 
10824, Nov. 7, 1962; T.D. 6747, 29 FR 9790, July 21, 1964; T.D. 7244, 37 
FR 28897, Dec. 30, 1972; T.D. 7564, 43 FR 40496, Sept. 12, 1978; T.D. 
8677, 61 FR 33323, June 27, 1996]



Sec. 1.1342-1  Computation of tax where taxpayer recovers substantial 
amount held by another under claim of right; effective date.

    Section 1342 shall apply with respect to taxable years beginning 
after December 31, 1954.

[T.D. 6500, 25 FR 12052, Nov. 26, 1960]

                            Other Limitations



Sec. 1.1346-1  Recovery of unconstitutional taxes.

    (a) In general. (1) A taxpayer who recovers unconstitutional Federal 
taxes which were paid or accrued and for which a deduction was allowed 
in a prior taxable year may elect, as provided in paragraph (b) of this 
section, to exclude the income (exclusive of interest) attributable to 
such recovery from his gross income in the taxable year of recovery. Any 
such exclusion of income is subject to the requirements of section 1346 
and this section.
    (2) If a taxpayer elects to receive the benefits of section 1346, 
the income (exclusive of interest) attributable to the

[[Page 686]]

recovery of the unconstitutional Federal tax will be treated as an 
offset to the deduction allowed therefor in a prior taxable year (or 
years). The taxpayer's return for the prior taxable year (or years) with 
respect to which the statutory period for the assessment of a deficiency 
has expired will be opened only for the purpose of reducing the 
deduction allowed for the unconstitutional Federal tax and assessing the 
resulting deficiency or deficiencies, if any. (An election under section 
1346 may be made only if the taxpayer consents in writing to such 
assessment. See paragraph (b) of this section.) No other adjustment will 
be allowed.
    (3) If the disallowance of the deduction allowed in respect of a 
prior taxable year results in a deficiency for that year, the deficiency 
will be assessed against the taxpayer within the period agreed upon 
between the taxpayer and the district director with respect to the 
taxable year of the prior deduction, even though the statutory period 
for the assessment may have expired prior to the filing of the consent.
    (4) If a taxpayer does not elect under the provisions of section 
1346 and this section to exclude the tax recovered from gross income in 
the taxable year of recovery, the tax recovered shall, from the 
standpoint of its inclusion in or exclusion from gross income, be 
governed by the provisions of section 111.
    (b) Manner of making election. (1) The election provided for in 
paragraph (a) of this section shall be made by the taxpayer filing a 
statement in writing that he elects to treat the deduction allowed in a 
prior taxable year for the unconstitutional tax as not having been 
allowable for such taxable year. Such a statement must be filed with the 
taxpayer's return for the taxable year in which the recovery of the 
unconstitutional tax or taxes occurs. No other method of making the 
election is permitted. The statement of election must contain a 
description of the tax recovered, the date of recovery, the taxable year 
in which paid or accrued, and the taxable year for which the deduction 
was allowed. The statement of election must also contain a statement 
signifying the taxpayer's consent (i) to treat the deduction or portion 
thereof allowed in a prior year with respect to the unconstitutional tax 
as not allowable for that year and (ii) to the assessment, in respect of 
the taxable year for which the deduction was allowed, of any deficiency, 
together with interest thereon as provided by law, resulting from 
disallowance of the deduction or portion thereof, even though the 
statutory period for the assessment of any such deficiency may have 
expired before the filing of such consent.
    (2) The term recovery, as used in this section, includes not only 
refund or credit of taxes previously paid, but also the cancellation of 
a purported tax liability which was accrued and deducted for a prior 
taxable year but never actually paid.

[T.D. 6500, 25 FR 12052, Nov. 26, 1960]



Sec. 1.1347-1  Tax on certain amounts received from the United States.

    (a) In the case of an amount (other than interest) received from the 
United States by an individual under a claim involving acquisition of 
property and remaining unpaid for more than 15 years, the tax (or, in 
the case of taxable years beginning before January 1, 1971, the surtax) 
imposed by section 1 attributable to such amount shall not exceed 33 
percent of the amount (other than interest) so received (30 percent for 
taxable years beginning before January 1, 1971). For the purpose of 
section 1347 and this section, such amount shall not include any amount 
received from the United States which constitutes interest, whether such 
interest was included in the claim or in any judgment thereon or has 
accrued on such judgment. Section 1347 and this section shall only apply 
with respect to amounts received under a claim filed with the United 
States before January 1, 1958.
    (b) To determine the application of section 1347 and this section to 
a particular amount, the taxpayer shall first compute the tax (or, in 
the case of taxable years beginning before January 1, 1971, the surtax) 
imposed by section 1 upon his entire taxable income, including the 
amount specified in paragraph (a) of this section, without regard to the 
limitation on tax provided in section 1347. The proportion of the tax 
(or surtax), so computed, indicated by the

[[Page 687]]

ratio which the taxpayer's taxable income attributable to the amount 
specified in paragraph (a) of this section, computed as prescribed in 
paragraph (c) of this section, bears to his total taxable income, is the 
portion of the tax (or surtax) attributable to such amount. If this 
portion of the tax (or surtax) exceeds 33 percent (30 percent for 
taxable years beginning before January 1, 1971) of the amount specified 
in paragraph (a) of this section, that portion of the tax (or surtax) 
shall be reduced to 33 percent (or 30 percent) of such amount.
    (c) In determining the portion of the taxable income attributable to 
any amount specified in paragraph (a) of this section, the taxpayer 
shall allocate to such amount received and to the gross income derived 
from all other sources, the expenses, losses, and other deductions 
properly attributable thereto, and shall apply any general expenses, 
losses, and other deductions (which cannot be properly apportioned 
otherwise) ratably to the gross income from all sources. The amount 
specified in paragraph (a) of this section, less the deductions properly 
attributable thereto and less its proportion of any general deductions, 
shall be the taxable income attributable to such amount. The taxpayer 
shall submit with his return a statement fully explaining the manner in 
which such expenses, losses, and deductions are allocated or 
apportioned.

[T.D. 6500, 25 FR 12052, Nov. 26, 1960, as amended by T.D. 7117, 36 FR 
9422, May 25, 1971; 36 FR 11434, June 12, 1971]



Sec. 1.1348-1  Fifty-percent maximum tax on earned income.

    Section 1348 provides generally that for taxable years beginning 
after December 31, 1971, the maximum tax rate applicable to the earned 
taxable income of an individual, estate, or trust is not to exceed 50 
percent. In the case of an estate or trust, earned income includes only 
amounts which constitute income in respect of a decedent within Sec. 
1.1348-3(a)(4). For taxable years beginning after December 31, 1970, and 
before January 1, 1972, the maximum rate is 60 percent. Section 1348 
does not apply if the taxpayer chooses the benefits of income averaging 
under sections 1301 through 1305. Section 1348 does not apply to a 
married individual who does not file a joint return with his spouse for 
the taxable year. For purposes of section 1348, an individual's marital 
status shall be determined under section 153 and the regulations 
thereunder.

[T.D. 7446, 41 FR 55337, Dec. 20, 1976]



Sec. 1.1348-2  Computation of the fifty-percent maximum tax on earned 
income.

    (a) Computation of tax for taxable years beginning after 1971. If, 
for a taxable year beginning after December 31, 1971, an individual has 
earned taxable income (as defined in paragraph (d) of this section) 
which exceeds the applicable amount in column (1) of table A, the tax 
imposed by section 1 for such year shall be the sum of:
    (1) The applicable amount in column (2) of table A.
    (2) 50 percent of the amount by which earned taxable income exceeds 
the applicable amount in column (1) of table A, and
    (3) The amount by which the tax imposed by chapter 1 on the entire 
taxable income exceeds a tax so computed on earned taxable income, such 
computations to be made without regard to section 1348 or 1301.

                                 Table A
------------------------------------------------------------------------
                       Status                            (1)       (2)
------------------------------------------------------------------------
Married individuals filing joint returns and           $52,000   $18,060
 surviving spouses..................................
Heads of households.................................    38,000    12,240
Unmarried individuals other than surviving spouses      38,000    13,290
 and heads of households............................
Trusts and estates..................................    26,000     9,030
------------------------------------------------------------------------

    (b) Computation of tax for taxable years beginning in 1971. If, for 
a taxable year beginning after December 31, 1970, and before January 1, 
1972, an individual has earned taxable income (as defined in paragraph 
(d) of this section) which exceeds the applicable amount in column (1) 
of table B, the tax imposed by section 1 for such year shall be the sum 
of:
    (1) The applicable amount in column (2) of table B,

[[Page 688]]

    (2) 60 percent of the amount by which earned taxable income exceeds 
the applicable amount in column (1) of table B, and
    (3) The amount by which the tax imposed by chapter 1 on the entire 
taxable income exceeds a tax so computed on earned taxable income, such 
computations to be made without regard to section 1348 or 1301.

                                 Table B
------------------------------------------------------------------------
                      Status                           (1)        (2)
------------------------------------------------------------------------
Married individuals filing joint returns and         $100,000    $45,180
 surviving spouses................................
Heads of households...............................     70,000     30,260
Unmarried individuals other than surviving spouses     50,000     20,190
 and heads of households..........................
Trusts and estates................................     50,000     22,590
------------------------------------------------------------------------

    (c) Short taxable periods. If a taxpayer is required under section 
443(a)(1) to make a return for a period of less than 12 months, the tax 
under section 1348 and this section shall be determined by placing his 
taxable income, earned net income, adjusted gross income, and items of 
tax preference on an annual basis in accordance with section 443 and the 
regulations thereunder. If a taxable year referred to in paragraph 
(d)(3)(i)(a) of this section is a period of less than 12 months for 
which a return is required under section 443(a)(1), the average 
described in such paragraph shall also be determined by placing the 
items of tax preference for such period on an annual basis in accordance 
with section 443 and the regulations thereunder. If a return for a 
period of less than 12 months is required under section 443(a)(3) for 
any taxable year referred to in paragraph (d)(3)(i)(a) of this section, 
section 1348 and this section shall not apply unless such period is 
reopened by the taxpayer as provided by section 6851(b).
    (d) Earned taxable income--(1) In general. For purposes of section 
1348 and this section, the term earned taxable income means the excess 
of (i) the portion of taxable income which, under subparagraph (2) of 
this paragraph, is attributable to earned net income over (ii) the tax 
preference offset (as defined in subparagraph (3) of this paragraph). 
For purposes of computing the alternative tax under section 1201, earned 
taxable income shall not exceed the excess of taxable income over 50 
percent of the net capital gain (net section 1201 gain for taxable years 
beginning before January 1, 1977).
    (2) Taxable income attributable to earned net income. The portion of 
taxable income which is attributable to earned net income shall be 
determined by multiplying taxable income by a fraction (not exceeding 
one), the numerator of which is earned net income, and the denominator 
of which is adjusted gross income. For purposes of this subparagraph the 
term earned net income means the excess of the total of earned income 
(as defined in Sec. 1.1343-(a)) over the total of any deductions which 
are required to be taken into account under section 62 in determining 
adjusted gross income and are properly allocable to or chargeable 
against earned income. Deductions are properly allocable to or 
chargeable against earned income if, and to the extent that, they are 
allowable in respect of expenses paid or incurred in connection with the 
production of earned income and have not been taken into account in 
determining the net profits of a trade or business in which both 
personal services and capital are material income producing factors (as 
defined in Sec. 1.1348-3(a)(3)). Except as otherwise provided, 
deductions properly allocable to or chargeable against earned income 
include:
    (i) Deductions attributable to a trade or business from which earned 
income is derived, except that if less than all the gross income from a 
trade or business constitutes earned income, only a ratable portion of 
the deductions attributable to such trade or business is allowable in 
respect of expenses paid or incurred in connection with the production 
of earned income,
    (ii) Deductions consisting of expenses paid or incurred in 
connection with the performance of services as an employee,
    (iii) The deductions described in section 62(7) and allowable by 
sections 404 and 405(c),
    (iv) The deduction allowable by section 217,
    (v) The deduction allowable by section 1379(b)(3), and
    (vi) A net operating loss deduction to the extent that the net 
operating

[[Page 689]]

losses carried to the taxable year are properly allocable to or 
chargeable against earned income.

A net operating loss carried to the taxable year is properly allocable 
to or chargeable against earned income in such year to the extent of the 
excess (if any) of the deductions for the loss year which are properly 
allocable to or chargeable against earned income and which are allowable 
under section 172(d) in determining a net operating loss, over the 
earned income for the loss year. If the excess described in the 
preceding sentence is less than the entire net operating loss, such 
excess and the balance of such loss shall be deemed to reduce taxable 
income ratably for any taxable year to which such loss may be carried. 
See examples (3) and (4) in subparagraph (4) of this paragraph.
    (3) Tax preference offset. (i) For purposes of subparagraph (1) of 
this paragraph, the tax preference offset is the amount by which the 
greater of:
    (A) The average of the taxpayer's items of tax preference for the 
taxable year and the four preceding taxable years, or
    (B) The taxpayer's items of tax preference for the taxable year,

exceeds $30,000.
    (ii) The items of tax preference to be taken into account under 
subdivision (i) of this subparagraph for any taxable year shall be those 
items of tax preference referred to in section 57(a) and the regulations 
thereunder for the taxable year, but excluding any amount not taken into 
account in computing the tax under section 56(a) and the regulations 
thereunder for such taxable year. The items of tax preference to be 
taken into account by an individual for any taxable year in which such 
individual is or was a nonresident alien shall not include items of tax 
preference which are not effectively connected with the conduct of a 
trade or business within the United States.
    (iii) Taxable years ending before January 1, 1970 shall not be 
included in computing the average described in subdivision (i)(A) of 
this subparagraph. Thus, for example, the tax preference offset for a 
taxable year ending on December 31, 1973, is the amount by which the 
average of the taxpayer's items of tax preference for 1970, 1971, 1972, 
and 1973, or the taxpayer's items of tax preference for 1973, whichever 
is greater, exceeds $30,000. Taxable years during which the taxpayer was 
not in existence shall not be included in computing the average 
described in subdivision (i)(A) of this subparagraph. A fractional part 
of a year which is treated as a taxable year under sections 441(b) and 
7701(a)(23) shall be treated as a taxable year for purposes of this 
section for special rules if a taxable year referred to in subdivision 
(i)(A) of this subparagraph is a period of less than 12 months for which 
a return is required under section 443(a)(1).
    (iv) If for the current taxable year the taxpayer and his spouse (or 
the estate of such spouse) file a joint return together, the items of 
tax preference for a preceding taxable year taken into account under 
subdivision (i)(A) of this subparagraph shall be the sum of the items of 
tax preference of the taxpayer and his spouse for such preceding year 
even though a joint return was not, or could not have been, filed by the 
taxpayer and such spouse for such preceding taxable year. If for the 
current taxable year the taxpayer (A) is no longer married to a spouse 
to whom he was married for a preceding taxable year taken into account 
under subdivision (i)(A) of this subparagraph and files a return as a 
single person, head of household, or surviving spouse for such current 
taxable year, or (B) is married to a spouse other than the spouse to 
whom he was married for a preceding taxable year taken into account 
under subdivision (i)(A) of this subparagraph, his items of tax 
preference shall be computed as if he were not married during such 
preceding taxable year.
    (v) The sum of the items of tax preference of an estate or trust 
shall, for purposes of this paragraph, be apportioned between the estate 
or trust and the beneficiary in the manner and to the extent provided by 
section 58(c)(1) and the regulations thereunder.
    (vi) If an item of gross income in respect of a decedent is 
includible in the gross income of a taxpayer and is treated as earned 
income in the hands of the taxpayer by reason of Sec. 1.1348-3(a)(4), 
the items of tax preference for a

[[Page 690]]

taxable year taken into account under subdivision (i) of this 
subparagraph shall be the sum of the taxpayer's items of tax preference 
for such taxable year and the decedent's items of tax preference for any 
taxable year of the decedent (including a short taxable year described 
in section 441(b)(3)) which ends with or within such taxable year of the 
taxpayer. For purposes of this subdivision, if a taxpayer (such as the 
estate of the decedent or a testamentary trust created by the decedent) 
has not been in existence for the number of preceding taxable years 
specified in subdivision (i)(A) or (iii) of this subparagraph, the items 
of tax preference for preceding taxable years taken into account shall 
be the taxpayer's items of tax preference for each of its preceding 
taxable years plus the decedent's items of tax preference for that 
number of the most recent taxable years of the decedent ending prior to 
the taxpayer's earliest taxable year which, when added to the taxpayer's 
preceding taxable years, equals such number of preceding taxable years 
specified in subdivision (i)(A), or (iii). The increase, if any, in the 
taxpayer's tax preference offset computed under this subdivision shall 
not exceed the amount by which the taxpayer's taxable income 
attributable to earned net income, computed as provided in Sec. 1.1348-
2(d)(2) and including the item of gross income in respect of a decedent, 
exceeds the taxpayer's taxable income attributable to earned net income 
computed without regard to such item of gross income.
    (4) Illustrations. The provisions of this section may be illustrated 
by the following examples:

    Example 1. (i) H and W, married calendar-year taxpayers filing a 
joint return, have the following items of income, deductions, and tax 
preference for 1976:

(a) Salary........................................   $155,000
(b) Dividends and interest........................     60,000
                                                   -----------
    Total.........................................    215,000
(c) Deductible travel expenses of employee              5,000
 allocable to earned income.......................
                                                   -----------
(d) Adjusted gross income....................................   $210,000
(e) Exemptions and itemized deductions.......................     38,000
                                                   ------------
(f) Taxable income...........................................    172,000
 

    In addition, the taxpayers have tax preference items for 1976 of 
$80,000 attributable to the exercise of a qualified stock option and 
total tax preference items of $300,000 for the years 1972 through 1975. 
Since the items of tax preference for 1976 exceed the average of the 
items of tax preference for the years 1972 through 1976, the tax 
preference offset for 1976 is $50,000 ($80,000-$30,000).
    (ii) H and W have earned taxable income of $72,857 determined in the 
following manner:

(a) Earned income............................................   $155,000
(b) Earned net income ($155,000-$5,000)......................    150,000
(c) Taxable income...........................................    172,000
(d) Adjusted gross income....................................    210,000
(e) Taxable income attributable to earned net
 income:
  $172,000(c) x ($150,000(b) / $210,000(d)........   $122,857
(f) Tax preference offset.........................     50,000
                                                   -----------
(g) Earned taxable income....................................     72,857
 

    (iii) The tax imposed by section 1 is $90,938, determined pursuant 
to section 1348 in the following manner:

(a) Applicable amount from col. (2) of table A, Sec.  1.1348-   $18,060
 2(a).........................................................
(b) 50 pct of amount by which $72,857 (earned taxable income)     10,429
 exceeds $52,000 (applicable amount from col. (1) of table A,
 Sec.  1.1348-2(a))..........................................
(c) Tax computed under section 1 on $172,000           $91,740
 (taxable income)...................................
(d) Tax computed under section 1 on $72,857 (earned     29,291
 taxable income)....................................
                                                     ----------
(e) Item (c) minus item (d)...................................   962,449
(f) Tax (total of items (a), (b), and (e))....................    90,938
 

    Example 2. (i) H and W, married calendar-year taxpayers filing a 
joint return, have the following items of income, deductions, and tax 
preference for 1976:

(a) Salary........................................   $210,000
(b) Dividends and interest........................     20,000
(c) Net long-term capital gains...................    100,000
                                                   -----------
    Total.........................................    330,000
(d) Sec. 1202 deduction (\1/2\ of net long-term        50,000
 capital gains)...................................
                                                   -----------
(e) Adjusted gross income....................................   $280,000
(f) Exemptions and itemized deductions.......................     40,000
                                                   ------------
(g) Taxable income...........................................    240,000
 

    The taxpayers' tax preference item for 1976 is one-half of the net 
long-term capital gains of $100,000, or $50,000. The taxpayers have no 
items of tax preference for the years 1972 through 1975. Accordingly, 
their tax preference offset for 1976 is $20,000 ($50,000-$30,000).
    (ii) H and W have earned taxable income of $160,000, determined in 
the following manner:

(a) Earned net income........................................   $210,000
(b) Taxable income...........................................    240,000
(c) Adjusted gross income....................................    280,000
(d) Taxable income attributable to earned net income:
    $240,000(b) x ($210,000(a) / $280,000(c)).....    180,000
(e) Tax preference offset.........................    $20,000
                                                   -----------
(f) Earned taxable income....................................   $160,000
 


[[Page 691]]

    (iii) The tax imposed by section 1 is $122,560, determined pursuant 
to section 1348 in the following manner:

(a) Applicable amount from col. (2) of table A, Sec.  1.1348-   $18,060
 2(a)........................................................
(b) 50 pct of amount by which $160,000 (earned taxable            54,000
 income) exceeds $52,000 (applicable amount from col. (1) of
 table A, Sec.  1.1348-2(a))................................
(c) Tax computed under section 1201(b) on $240,000
 (taxable income):
  (1) Tax under section 1201(b)(1) (tax under        $104,080
   section 1 on $190,000 (taxable income excluding
   capital gains))................................
  (2) Tax under section 1201(b)(2) (25 pct of          12,500
   subsection (d) gain of $50,000)................
  (3) Tax under section 1201(b)(3) (tax under          17,500
   section 1 on $240,000 (taxable income) less tax
   under section 1 on $215,000 (amount subject to
   tax under section 1201(b)(1) plus 50 pct of
   subsection (d) gain)) ($138,980-$121,480)......
                                                   -----------
    Total.........................................    134,080
(d) Tax computed under section 1 on $160,000           83,580
 (earned taxable income)..........................
                                                   -----------
(e) Item (c) through item (d)................................     50,500
                                                   ------------
(f) Tax (total of items (a), (b), and (e))...................   $122,560
 

    Example 3. (i) A, an unmarried calendar year taxpayer engaged in the 
practice of law, has the following items of income and deductions for 
1973 and 1976:

------------------------------------------------------------------------
                                                       1973       1976
------------------------------------------------------------------------
Gross income from law practice....................   $240,000   $100,000
Dividends.........................................     60,000     20,000
Expense paid in law practice......................     50,000    160,000
Investment interest...............................     30,000     10,000
Casualty loss on personal residence (amount in excess of          50,000
 $100).......................................................
------------------------------------------------------------------------

    (ii) For 1976, A's deductions exceed his gross income, and his 
taxable income is therefore zero. In addition, A has a net operating 
loss of $100,000 (i.e., the excess of his deductions of $220,000 over 
his gross income of $120,000), which may be carried back to 1973. In 
computing his taxable income and earned taxable income for 1973, $60,000 
(i.e., the excess of the expenses paid in A's law practice of $160,000, 
over his gross income from his law practice of $100,000) of the net 
operating loss deduction is properly allocable to or chargeable against 
earned income.
    (iii) A's recomputed taxable income and earned taxable income for 
1973 are $119,250 and $103,350 respectively, determined in the following 
manner:

Gross income ($240,000 + $60,000)............................   $300,000
Adjusted gross income ($300,000 - $50,000 - $100,000)........    150,000
Taxable income ($150,000 - $30,000 - $750)...................    119,250
Earned net income ($240,000 - $50,000 - $60,000).............    130,000
Earned taxable income ($130,000 / $150,000 x $119,250).......   $103,350
 

    Example 4. The facts are the same as in example (3) except that A's 
gross income from his law practice for 1973 is $40,000. Thus, for 1973, 
A's deductions (including the net operating loss deduction) exceed his 
gross income, and his recomputed taxable income is therefore zero. The 
taxable income subtracted from the net operating loss to determine the 
carryback to 1974 is $20,000 (i.e., $40,000 + $60,000 - $50,000 - 
$30,000), and thus the net operating loss carryback to 1974 is $20,000 
(i.e., $40,000 + $60,000 - $50,000 - $30,000), and thus the net 
operating loss carryback from 1976 to 1974 is $80,000 (i.e., $100,000 - 
$20,000). Of this amount, $48,000 ($80,000 x [$60,000 (the excess of the 
expenses paid in 1976 in A's law practice over his gross income from his 
law practice) / $100,000 (A's net operating loss for 1976)]) is properly 
allocable to or chargeable against earned income, and must be taken into 
account in recomputing A's taxable income and earned taxable income for 
1974.
    Example 5. A, an unmarried calendar year taxpayer, receives a salary 
of $80,000 from Corporation X in 1975 and also owns and operates a 
laundry in which both his capital and services are material income 
producing factors. A incurs no section 62 expenses with respect to the 
salary income. In 1975 the laundry, a sole proprietorship, has gross 
income of $100,000 and business expenses deductible under section 62 of 
$80,000. A reasonable allowance as compensation for A's personal 
services rendered by him in his laundry business would be $12,000. The 
net profits of the laundry business were $20,000.
    A's earned income from the laundry business is limited to $6,000 (30 
percent of $20,000). A's total earned income is $36,000 
($80,000+$60,000). Since the section 62 deductions of the laundry 
business have already been taken into account in computing net profits, 
they are not again taken into account in computing earned net income. 
Accordingly, A's earned net income for 1975 is $86,000.
    Example 6. The facts are the same as example (5) except that the 
gross income of the laundry is $130,000 and the net profits from the 
laundry are $50,000. A's earned income from the laundry is $12,000. Even 
though the 30-percent-of-net profits limitation has not resulted in a 
reduction of A's earned income from the laundry, the expenses deducted 
in computing net profits do not reduce earned income. Accordingly, both 
the earned income and the earned net income of A for 1975 are $92,000.
    Example 7. The facts are the same as example (5) except that the 
gross income of the laundry is $60,000 and the laundry has a net loss of 
$20,000. A's earned income from the laundry is $12,000. Since the 
laundry does not have net profits, the expenses of the laundry

[[Page 692]]

have not been taken into account in computing the net profits 
limitation. Accordingly, a ratable portion of deductible expenses of the 
laundry must be allocated to the earned income from the laundry in 
accordance with Sec. 1.1348-2(d)(2); $16,000 of the expenses are 
allocated to the earned income ($12,000/$60,000x$80,000). A's total 
earned income for 1975 is $92,000, and his earned net income is $76,000 
($92,000 minus $16,000).

[T.D. 7446, 41 FR 55337, Dec. 20, 1976, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]



Sec. 1.1348-3  Definitions.

    (a) Earned income--(1) In general. (i) For purposes of section 1348 
and the regulations thereunder, the term earned income means any item of 
gross income which is earned income within the meaning of section 
401(c)(2)(C) or 911(b) unless the item constitutes deferred compensation 
as defined in paragraph (b) of this section or is otherwise excluded by 
application of this paragraph. Thus, subject to such exceptions, the 
term includes:
    (A) Wages, salaries, professional fees, bonuses, amounts includible 
in gross income under section 83, commissions on sales or on insurance 
premiums, tips, and other amounts received, actually or constructively, 
as compensation for personal services actually rendered regardless of 
the medium or basis of payment.
    (B) Compensatory payments for personal services made prior to the 
time such services are actually rendered, provided such advance payments 
are not made for a purpose of minimizing Federal income taxes by reason 
of the application of section 1348, and are either customary in the 
particular profession, trade, or business, or are made for a bona fide 
business purpose.
    (C) Prizes and awards in recognition of personal services includible 
in gross income under section 74, amounts includible in gross income 
under section 79 (relating to group-term life insurance purchased for 
employees), and amounts includible in gross income under section 1379(b) 
(relating to contributions to qualified pension plans in the case of 
certain shareholder-employees); and
    (D) Gains (other than gain which is treated as capital gain under 
any provision of chapter 1) and net earnings derived from the sale or 
other disposition of, the transfer of any interest in, or the licensing 
of the use of property (other than good will) by an individual whose 
personal efforts created such property.

The term does not include such income as dividends (including an amount 
treated as a dividend by reason of section 1373(b) and Sec. 1.1373-1), 
other distributions of corporate earnings and profits, gambling gains, 
or gains which are treated as capital gains under any provision of 
chapter 1. The term also does not include amounts received for 
refraining from rendering personal services or engaging in competitive 
activity or amounts received as consideration for the cancellation of an 
employment contract.
    (ii) In the case of a nonresident alien individual, earned income 
includes only earned income from sources within the United States which 
is effectively connected with the conduct of a trade or business within 
the United States.
    (2) Earned income and employed assistants. The entire amount 
received as professional fees shall be treated as earned income if the 
taxpayer is engaged in a professional occupation, such as a doctor, 
dentist, lawyer, architect, or accountant, even though he employs 
assistants to perform part or all of the services, provided the patients 
or clients are those of the taxpayer and look to the taxpayer as the 
person responsible for the services performed.
    (3) Earned income from business in which capital is material. (i) If 
an individual is engaged in a trade or business (other than in corporate 
form) in which both personal services and capital are material income-
producing factors, a reasonable allowance as compensation for the 
personal services actually rendered by the individual shall be 
considered earned income, but the total amount which shall be treated as 
the earned income of the individual from such a trade or business shall 
in no case exceed 30 percent of his share of the net profits of such 
trade or business (which share shall include any guaranteed payment (as 
defined by

[[Page 693]]

Sec. 1.707-1(c)) received from a partnership). For purpose of the 
preceding sentence, the term net profits of the trade or business means 
the excess of gross income from such trade or business (including income 
from all sources, whether or not subject to Federal income tax, and 
without taking into account any deductions which may be allowable under 
section 1202) over the deductions attributable to such trade or 
business.
    (ii) Whether capital is a material income-producing factor must be 
determined by reference to all the facts of each case. Capital is a 
material income-producing factor if a substantial portion of the gross 
income of the business is attributable to the employment of capital in 
the business, as reflected, for example, by a substantial investment in 
inventories, plant, machinery, or other equipment. In general, capital 
is not a material income-producing factor where gross income of the 
business consists principally of fees, commissions, or other 
compensation for personal services performed by an individual. Thus, the 
practice of his profession by a doctor, dentist, lawyer, architect, or 
accountant will not, as such, be treated as a trade or business in which 
capital is a material income-producing factor even though the 
practitioner may have a substantial capital investment in professional 
equipment or in the physical plant constituting the office from which he 
conducts his practice since his capital investment is regarded as only 
incidental to his professional practice.
    (iii) This subparagraph does not apply to gains and net earnings 
derived from the sale or other disposition of, the transfer of any 
interest in, or the licensing of the use of property by an individual 
whose personal efforts created such property which are, by reason of 
subparagraph (1)(i) of this paragraph, treated as earned income. Thus, 
for example, a research chemist's substantial capital investment in 
laboratory facilities which he uses to produce patentable chemical 
processes from which he derives gains within the meaning of this 
subdivision would not be considered a material income-producing factor.
    (4) Income in respect of a decedent. An item of gross income in 
respect of a decedent includible in the gross income of a person 
described in section described in section 691(a)(1) shall be treated as 
earned income in the hands of such person for purposes of subparagraph 
(1) of this paragraph if such item of gross income would have 
constituted earned income of the decedent had he lived and received such 
amount. See Sec. 1.1348-2(d)(3)(vi) for rules relating to attribution 
of tax preferences by reason of an item of income in respect of a 
decedent.
    (5) Exceptions to definition of earned income. For purposes of 
section 1348 and the regulations thereunder, the term earned income does 
not include:
    (i) Any distribution to which section 72(m)(5), relating to certain 
amounts received by owner-employees from a trust described in section 
401(a) or under a plan described in section 403(a), applies,
    (ii) Any distribution to which section 402(e), relating to the 
treatment of certain total distributions from a trust described in 
section 401(a) or under a plan described in section 403(a), applies,
    (iii) Any distribution to which section 402(a)(2), relating to 
capital gains treatment of certain total distributions from a trust 
described in section 401(a), applies,
    (iv) Any distribution to which section 403(a)(2)(A), relating to 
capital gains treatment for certain distributions under a plan described 
in section 404(a)(2), applies, or
    (v) Any deferred compensation within the meaning of paragraph (b) of 
this section.
    (6) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. A owns and operates an unincorporated laundering and dry 
cleaning business. A, assisted by his employees, devotes his entire time 
and attention to this business. Substantial capital is invested in the 
plant and equipment utilized in the laundering and dry cleaning of 
clothing for A's customers. Although personal services performed by A 
and his employees are a material income-producing factor in A's 
business, the capital investment in plant and equipment is not merely 
incidental to the performance of such services but is, as such,

[[Page 694]]

material to the production of business income. Therefore, A's laundering 
and dry cleaning business is one in which both personal services and 
capital are material income-producing factors within the meaning of 
paragraph (a)(3) of this section. A may treat as earned income for a 
taxable year a reasonable allowance as compensation for the personal 
services rendered by him in his business, but the amount so treated 
shall not exceed 30% of the net profits of his business for such year.
    Example 2. In his unincorporated business as a real estate broker, 
which he conducts on a full-time basis, A performs substantial personal 
services, including solicitation of home buyers and sellers, escorting 
prospective buyers on house visits, arranging appraisal, financing, and 
legal services, and other related tasks. In the course of conducting 
such business, A often finances sales of real estate with his own 
capital, makes all the necessary arrangements incident to such 
financing, and a substantial portion of the gross income of the business 
consists of interest income from such financing. Under these facts and 
circumstances, both personal services and capital are material income-
producing factors in A's real estate business within the meaning of 
paragraph (a)(3) of this section since the financing of real estate 
sales is an integral part of the entire business. Accordingly, A's 
earned income from his real estate business is limited to a reasonable 
allowance as compensation for the personal services A actually renders, 
but not in excess of 30% of the net profits from the business, including 
the interest income derived from financing sales of real estate.
    Example 3. For his taxable year ending on December 31, 1973, A, a 
radiologist, reports fees of $100x for professional services rendered to 
his own patients during 1973. Since 1970, A has maintained his own 
office in a small building that he purchased for $60x. In addition, A 
owns X-ray equipment with an original cost of $300x which he uses in his 
professional practice. The entire $100x of professional fees earned by A 
during 1973 is treated as earned income, notwithstanding that A has a 
substantial capital investment in professional equipment and the office 
from which he conducts his medical practice, because such capital 
investment is only incidental to the rendition of personal services in 
A's professional practice.

    (b) Deferred compensation--(1) In general. For purposes of section 
1348 and the regulations thereunder, the term deferred compensation 
means, except as otherwise provided in subparagraph (2) of this 
paragraph, any compensation which is deferred within the meaning of that 
concept in section 404, including any deferred compensation to which the 
provisions of section 404 and the regulations thereunder apply and any 
other compensation taxation of which is deferred in a manner similar to 
the treatment applicable to deferred compensation to which such 
provisions apply. Thus, the term includes any amounts includable in 
gross income as compensation for personal services pursuant to a plan, 
or method having the effect of a plan, deferring the taxation of such 
payment to a taxable year later than that in which such services were 
rendered. For purposes of section 1348, the term deferred compensation 
is not limited to payments to common-law employees but also includes 
payments to self-employed individuals: nor is it material that no 
deduction is allowable in respect of all or part of such payments or 
that a deduction in respect thereof is allowable under some provision of 
the Code other than section 404. For example, amounts received by a 
retired partner pursuant to a written plan of the partnership of the 
kind described in section 1402(a)(10) constitute deferred compensation 
except as otherwise provided in subparagraph (2) of this paragraph. The 
term deferred compensation, as defined in this paragraph, shall have no 
application to a determination of the deductibility of any amount under 
section 162, 404, or any other provision of the Code.
    (2) Amounts not treated as deferred compensation. Notwithstanding 
the provisions of subparagraph (1) of this paragraph, any amount 
includible in gross income as compensation before the end of the taxable 
year following the first taxable year of the taxpayer in which his right 
to receive such amount is not subject to any requirement or condition 
which would be treated as resulting in a substantial risk of forfeiture 
within the meaning of section 83 and the regulations thereunder does not 
constitute deferred compensation for purposes of section 1348 and the 
regulations thereunder. For purposes of this subparagraph, a fractional 
part of a year which is a taxable year under sections 441(b) and 
7701(a)(23) shall be treated as a taxable year.
    (3) Application to certain compensation--(i) In general. This 
subparagraph provides rules for the application of the principles of 
subparagraphs (1) and (2)

[[Page 695]]

of this paragraph to certain types of compensation.
    (ii) Pension, etc., plans. (A) In accordance with subparagraph (1) 
of this paragraph, the taxable portion of distributions under a pension, 
annuity, profit-sharing, or stock bonus plan, whether or not such plan 
meets the requirements of section 401(a), or pursuant to a method having 
the effect of such a plan, generally constitutes deferred compensation. 
However, under subparagraph (2) of this paragraph, such portion 
constitutes earned income if includible in gross income before the end 
of the taxable year following the first taxable year of the taxpayer in 
which his right to receive such amount is not subject to a substantial 
risk of forfeiture. In the case of a distribution under a contributory 
plan, the preceding sentence applies only to that part of the taxable 
portion of the distribution which is attributable to employer 
contributions to the plan. For purposes of the preceding sentence, that 
part of the taxable portion of a distribution which is attributable to 
employer contributions is the amount of such part, multiplied by a 
fraction, the numerator of which is the employer contributions to the 
plan on behalf of the employee (determined in accordance with the 
principles of Sec. 1.402(a)-2), and the denominator of which is the sum 
of such employer contributions and the net employee contributions to the 
plan (as defined in paragraph (a)(2) of Sec. 1.402(a)-2). Thus, if the 
employer does not contribute to the plan, no part of any distribution 
thereunder constitutes earned income. Amounts included in gross income 
under section 402(b), 403(c), or 1379(b)(1) in respect of employer 
contributions to a plan described in this subdivision do not constitute 
deferred compensation.
    (B) If a recipient's rights to receive amounts pursuant to a plan 
cease to be subject to a substantial risk of forfeiture in more than one 
of his taxable years, each payment pursuant to such plan shall be 
considered to consist of a ratable portion of all of the amounts which 
are not subject to a substantial risk of forfeiture at the time of such 
payment. Thus, for example, if an employment contract provides in part 
that an employee or his estate is to receive in each of the fifteen 
years after the year in which he attains or would have attained age 65 
an amount equal to $2,000 times his years of service with the employer 
and if he had eighteen years of service with the employer, each $36,000 
payment would be considered to consist of 18 payments of $2,000, his 
right to receive one of which ceased to be subject to a substantial risk 
of forfeiture upon completing his first year of service with the 
employer, his right to receive another of which ceased to be subject to 
a substantial risk of forfeiture upon completing his second year of 
service with the employer, etc. Therefore, if the employee's last year 
of service with the employer was completed in the year in which he 
attained age 65, $2,000 of the first payment in the next year would not 
be deferred compensation under subparagraph (2) of this paragraph, and 
the remaining $34,000 of that payment and all of the other fourteen 
payments of $36,000 would be deferred compensation. If the employee's 
last year of service was completed in an earlier year, all fifteen 
payments would constitute deferred compensation in full.
    iii) Income attributable to options. (A) Ordinary income realized by 
a taxpayer upon a disqualifying disposition of stock acquired pursuant 
to the exercise of a statutory option (as defined in Sec. 1.421-7(b)) 
is not deferred compensation for purposes of subparagraph (1) of this 
paragraph and, therefore, constitutes earned income.
    (B) Ordinary income realized by a taxpayer upon the transfer of 
property pursuant to the exercise, or sale or other disposition, of an 
option which is not a statutory option (as defined in Sec. 1.421-7(b)) 
and which was granted on or before December 15, 1971, is not deferred 
compensation for purposes of subparagraph (1) of this paragraph and, 
therefore, constitutes earned income. Ordinary income realized by a 
taxpayer upon the transfer of property pursuant to the exercise, or sale 
or other disposition, of an option which is not a statutory option (as 
defined in Sec. 1.421-(b)) and which is granted after December 15, 1971 
constitutes earned income rather than deferred compensation if such 
option cannot, by its terms, be exercised more than three months after

[[Page 696]]

termination (for any reason other than death) of the grantee's 
employment by the grantor of the option. If the terms of such an option 
granted after December 15, 1971 permit the exercise of the option more 
than three months after termination (for any reason other than death) of 
the grantee's employment by the grantor, ordinary income realized by a 
taxpayer upon the transfer of property pursuant to exercise, or sale or 
other disposition, of the option constitutes earned income rather than 
deferred compensation only if such income is realized in a taxable year 
no later than that following the taxable year in which the option was 
granted. In the case of the grantee's death within a period during which 
ordinary income realized upon the transfer of property pursuant to his 
exercise, or sale or other disposition, of an option described in this 
subdivision would have constituted earned income as provided in this 
subdivision had the grantee lived, ordinary income realized subsequently 
upon the transfer of property pursuant to exercise, or sale or other 
disposition, of an option described in this subdivision, by the 
grantee's legal represedntatives or beneficiary constitutes earned 
income only if such exercise or sale or other disposition, occurs on a 
date no later than the date twelve months following that of the 
grantee's death. For purposes of this subdivision, the term employment 
by the grantor includes employment by a related corporation as defined 
in Sec. 1.421-7(i), and by a corporation which is considered a related 
corporation under Sec. 1.421-7(h)(3). Therefore, the transfer of an 
employee from the grantor corporation to such a related corporation or 
from one related corporation to another related corporation or to the 
grantor corporation will not be treated as a termination of employment 
by the grantor.
    (C) For purposes of (B) of this subdivision, if an option described 
therein and granted after December 15, 1971 is exercisable only 
following completion of a specified period of employment, the taxable 
year in which such period of employment is completed shall be treated as 
the taxable year in which the option was granted. Further, if the terms 
of an option described in (B) of this subdivision and granted after 
December 15, 1971 are modified, such modification shall not be 
considered as the granting of a new option for purposes of (B) in 
determining the taxable year in which such option was granted.
    (D) For purposes of (B) of this subdivision, an option will not be 
considered exercisable by its terms more than three months following 
termination (for any reason other than death) of the grantee's 
employment by the grantor solely because the terms of such option 
permit, in the event of such grantee's death within three months 
following termination of such employment, exercise of the option by the 
grantee's legal representative or beneficiary during or following such 
three-month period.
    (4) Examples. The application of this paragraph may be illustrated 
by the following examples, in each of which it is assumed that any 
amounts paid as described therein constitute salaries or other 
compensation for personal services actually rendered rather than a 
distribution of earnings and profits:

    Example 1. (i) On January 1, 1965, Corporation X and E, an 
individual, execute an employment contract under which E is to be 
employed by X for a period of 10 years. Under the contract, E is 
entitled to a stated annual salary and to additional compensation of 
$10x for each year. This additional compensation is to be credited as of 
December 31 of each year to a bookkeeping reserve account and will be 
deferred, accumulated, and paid only upon termination of the employment 
contract, E's becoming a part-time employee of X, or E's becoming 
partially or totally incapacitated. Under the terms of the contract, X 
is merely under a contractual obligation to make the payments when due, 
and neither X nor E intends that the amounts in the reserve be held by X 
in trust for E. The contract provides that if E shall fall or refuse to 
perform his duties, X will be relieved of any obligation to make further 
credits to the reserve but not of the obligation to distribute amounts 
previously credited to the reserve. In the event E should die prior to 
his receipt in full of the balance in the account, the remaining balance 
is distributed to his personal representative.
    (ii) Having completed the terms of his employment contract, E 
retires from the employment of X on December 31, 1974, and on January 
15, 1975, receives a total distribution of $100x from his reserve 
account. Of this distribution of $100x to E, only $10x, representing the 
credit made to E's reserve account in 1974, constitutes earned income. 
No

[[Page 697]]

other credits to E's reserve account are taken into account for this 
purpose because they were made to the reserve account and became 
nonforfeitable in a year earlier than the year preceding that in which 
the $100x distribution was made to E.
    Example 2. (i) Corporation X follows a policy of permitting 
employees to elect before the beginning of any calendar year to defer 
the receipt of either 5 percent or 10 percent of their stated annual 
salary to be earned in that year. E, an employee, elects for each of 10 
years of employment to defer receipt of $5x of his stated annual salary. 
The total so deferred, or $50x, is paid to E on January 15, 1974.
    (ii) Since the salary which E elects to defer is includible in his 
gross income only in the taxable year in which actually received by him, 
then to the extent E receives any such deferred salary payment after the 
end of the taxable year following the taxable year from which such 
payment was deferred, such payment does not constitute earned income 
since such payment is deferred compensation under this paragraph (b). 
Accordingly, of the $50x distribution to E, only $5x, representing the 
salary deferral from 1973, constitutes earned income.
    Example 3. (i) E is an officer of Corporation X, which has a plan 
for making future payments of additional compensation for current 
services to certain employees. The plan provides that a fixed percentage 
of the annual net earnings in excess of $400x is to be designated for 
division among the participants. This amount is not currently paid to 
the participants; but X has set up on its books a separate account for 
each participant, including E, and each year it credits thereto the 
dollar amount of his participation for the year. Distributions are to be 
made from the account when the employee reaches the age of 60, is no 
longer employed by X, including cessation of employment due to death, or 
becomes totally unable to perform his duties, whichever occurs first. 
X's liability to make these distributions is contingent upon the 
employee's refraining from engaging in any business competitive to that 
of X, making himself available to X for consultation and advice after 
retirement or termination of his services, unless disabled, and 
retaining unencumbered any interest or benefit under the plan. In the 
event of his death, either before or after the beginning of payments, 
amounts in an employee's account are distributable to his designated 
beneficiaries of heirs-at-law. Under the facts and circumstances, E's 
rights to distributions from his account pursuant to the terms of the 
plan are not subject to a substantial risk of forfeiture within the 
meaning of section 83(c)(1). Under the terms of the compensation plan, X 
is under a merely contractual obligation to make the payments when due, 
and the parties did not intend that the amounts in each account be held 
by X in trust for the participants.
    (ii) Cash or property includable in gross income by E which is 
attributable to a credit to his account in a taxable year earlier than 
the year immediately preceding the year on onclusion does not constitute 
earned income since it is deferred compensation within the meaning of 
this paragraph (b). See subparagraph (3) of this paragraph (b) for rules 
for determining that portion of distributions from E's acount which are 
attributable to credits to his account in a taxable year immediately 
preceding the year in which such distributions are made.
    Example 4. (i) Corporation X has an annual incentive bonus plan for 
its employees. Under this plan, X has the sole discretion to defer all 
or any part of any employee's incentive bonus award. In addition, no 
employee has any right to receive any incentive bonus for any year 
(whether to be paid currently or to be deferred) until such time, if 
any, as X makes an award to him. No employee has any election as to the 
amount or time of payment of his award for any year. Furthermore, the 
last of any payments under an award must be paid no later than 10 years 
from the normal retirement date of the employee. In addition, the 
obligations of X under the plan are merely contractual and are not 
funded or secured. The awards are nonassignable. However, in the case of 
death the awards are payable to the employee's designated beneficiary. 
Once made, a bonus award under the plan is not subject to any 
substantial risk of forfeiture.
    (ii) In each of the years 1967, 1968, 1969, and 1970, X awards E a 
deferred bonus of $100x. E retires on June 30, 1971. Beginning in 1971, 
X pays to E the total of $400x of deferred bonus awards in 5 annual 
installments of $80x each. With respect to the $80x payment made to E in 
1971, $20x, representing the ratable portion of the payment ($100x/
$400xx$80x) allocable to the 1970 bonus award, is earned income because 
it was received in a year no later than the year following that (1970) 
in which E's right to receive such amount was no longer subject to a 
substantial risk of forfeiture. The balance of the $80x payment made in 
1971 and all payments made subsequently constitute deferred 
compensation.
    Example 5. (i) Under the terms of a nonqualified bonus planfor its 
executive employees, Corporation M contributes each year to a bonus 
reserve a given percentage of its net earnings for the year. M makes 
bonus awards each year from the reserve in cash or stock of M, or a 
combination of both, to such executive employees, and in such amounts, 
as M may determine. The bonus award so determined to be made to a 
beneficiary is paid to him in installments: 20 percent of the award at 
the time that the award is made and the remaining installments in 
January of each succeeding year (until the full amount of the

[[Page 698]]

award is paid). Such amounts are payable in succeeding years but only if 
earned out by the employee by continuing service to M, at the rate of 
\1/12\th of the amount of the first installment for each complete month 
of service beginning with the year of determination. If the beneficiary 
voluntarily terminates his employment, is discharged for cause, or 
conducts himself in a manner inimical to the best interests of M, he 
forfeits the rights to receive any portion of his bonus award previously 
earned out but undelivered to him and to continue earning out his bonus 
award. Upon retirement a beneficiary retains the right to earn out an 
unearned bonus award but forfeits the right to continue earning out the 
award if he conducts himself in a manner inimical to M's best interests 
or engages in an activity which is in competition with an activity of M. 
If a beneficiary dies while earning out a bonus award, any unpaid and 
undelivered portion of his award is paid and delivered to his estate or 
heirs at such time and in such manner as if the beneficiary were living.
    (ii) On January 1, 1971, M makes a cash bonus award to A of $100x. 
On January 15, 1971, $20x, representing representing the first 
installment of the award, is paid to A. On January 15, 1972, $20x, 
representing the portion of the award earned out by A during the 
calendar year 1971 is paid to him. On January 1, 1972, A retires from 
employment with M and, having satisfied the conditions to continue 
earning out his bonus award, receives $20x on January 15, 1975.
    (iii) Under the facts and circumstances, the conditions that A not 
conduct himself in a manner inimical to the best interests of M and 
refrain from activity competitive to that of M are not considered to 
result in a substantial risk of forfeiture of the bonus award. The total 
installments of $40x paid to A in 1971 and 1972 constitute earned 
income. The installment of $20x earned out by A in 1972 and paid to him 
in 1973 also constitutes earned income for the taxable year 1973 because 
it was includible in gross income by A before the end of the taxable 
year of A following the first taxable year (the year of his retirement, 
i.e., 1972) in which his right to receive the installment was not 
subject to a substantial risk of forfeiture. The installments paid to A 
in 1974 and 1975, however, do not constitute earned income because they 
were paid in a year later than the year following the year of A's 
retirement. Had the conditions that A not conduct himself in a manner 
inimical to the best interests of M and refrain from activity 
competitive to that of M constituted a substantial risk of forfeiture, 
the installments paid to A in 1974 and 1975 would have constituted 
earned income.
    Example 6. On January 15, 1968, Corporation M, under the terms of a 
nonqualified bonus plan for its employees, grants to A, an employee, 
5,000 dividend units, which entitle A to receive, for the period during 
which the award remains in effect, a cash payment equal to the dividends 
declared andpaid by M on the equivalent of 5,000 shares of its capital 
stock. The award remains in effect for A's lifetime but is subject to 
forfeiture if A is dismissed or leaves the service of M for any reason 
other than his death or retirement, or if A, following his retirement, 
engages in any activity which is harmful to the interests of M. Under 
the particular facts and circumstances, the condition that A not engage 
in any harmful activity is not considered to amount to a substantial 
risk of forfeiture within the meaning of section 83(c)(1). A retires on 
January 1, 1971. In each of the calendar years 1971, 1972, 1973, and 
1974. A receives cash payments of $5x under his bonus award. The 
payments totaling $10x to A in the years 1971 and 1972 constitute earned 
income because A received them before the end of the taxable year 
following the first taxable year (i.e., 1971, the year in which A 
retired) in which his right to receive such payments was not subject to 
a substantial risk of forfeiture. Payments totaling $10x to A in 1973 
and 1974, however, constitute deferred compensation under paragraph (b) 
of this section.
    Example 7. Corporation M maintains an employees' profit sharing 
trust which is not exempt from tax under section 501(a). Under the terms 
of the trust agreement, the interest of the trust beneficiaries in each 
contribution made to the trust by M is subject to asubstantial risk of 
forfeiture for a period of 2 years from the date on which the particular 
contribution is made, except that upon a beneficiary's retirement, his 
entire interest in the trust vests immediately. Contributions are made 
on December 30 of each year. As of August 1, 1969, the total interest, 
forfeitable and nonforfeitable, of A, an employee of M, in the trust is 
$320x. On December 30 in each of the years 1969, 1970, and 1971, M makes 
a further contribution to the trust allocable to A's account equal to 
$60x. A retires on December 31, 1971, and becomes entitled to a total 
distribution from the trust of $500x, of which $320x represents M's 
contributions made prior to August 1, 1969, and $180x represents 
contributions made subsequent to such date. Beginning in 1972, the trust 
distributes to A $500x in 5 equal annual installments. Because M's 
contributions to A's account for the years subsequent to August 1, 1969, 
totaling $180x vested as of his retirement date, such contributions of 
$180x constitute earned income of A for the year 1971 by reason of Sec. 
1.402(b)-1(b). No portion of any annual installment of $100x which is 
includible in A's gross income constitutes earned income since it is 
attributable to the $320x, in all of which A's rights became 
nonforfeitable no later than December 30, 1970.

[[Page 699]]

    Example 8. Corporation M maintains a qualified noncontributory 
pension plan for the benefit of its employees. Under the terms of the 
plan, no employee has a vested right to receive any distribution under 
the plan prior to his retirement from the employment of M upon reaching 
the age of 65. A, an employee of M, reaches age 65 on June 15, 1972, and 
retires on June 30, 1972. Under the terms of the pension plan, A becomes 
entitled to receive a monthly pension of $5x, beginning on July 1, 1972. 
A receives pension payments totalling $30x in 1972, $60x in 1973, $60x 
in 1974, $60x in 1975, and $60x in 1976. The pension payments received 
by A in 1972 and 1973 constitute earned income within paragraph 
(b)(3)(ii) of this section. The pension payments received by A in 1974, 
1975, and 1976 constitute deferred compensation.
    Example 9. (i) A is a participant in X Corporation's noncontributory 
qualified pension plan. The plan provides an annual benefit upon 
attaining age 65 of 2 percent of average compensation for each calendar 
year of participation in the plan. Average compensation is defined as 
the average of an employee's annual compensation over the last 5 
calendar years of service. The plan provides that an employee's rights 
in his accrued benefit are nonforfeitable after 15 years of 
participation in the plan. A attains age 65 on June 20, 1975 and begins 
to receive a pension on July 1, 1975. A's pension is based upon 30 years 
of participation in the plan. A's annual compensation for the period 
1969 through 1974, is as follows:

------------------------------------------------------------------------
                       Year                         Annual Compensation
------------------------------------------------------------------------
1969.............................................                $75,000
1970.............................................                 80,000
1971.............................................                 80,000
1972.............................................                 85,000
1973.............................................                 85,000
1974.............................................                 90,000
------------------------------------------------------------------------

    (ii) Under the terms of the plan, A's accrued benefit as of December 
31, 1974, and his pension are $50,400 (0.02 x 30 x 1/5 ($80,000 + 
$80,000 + $85,000 + $90,000)). A's accrued benefit as of December 31, 
1973, is $46,980 (0.02 x 29 x 1/5 $85,000)). Since A's rights in $46,980 
of his accrued benefit had ceased to be subject to a substantial risk of 
forfeiture before 1974, only $285 (1/12 x ($50,400 - $46,980)) of each 
payment received during 1975 does not constitute deferred compensation. 
The balance of the amounts received during 1975 and all amounts received 
in 1976 constitute deferred compensation since they are paid after the 
end of the taxable year following A's first taxable year in which his 
right to receive any such amount was not subject to a substantial risk 
of forfeiture.
    Example 10. On January 15, 1971, Corporation M grants to A, an 
employee, an option to purchase 100 shares of stock of M at a price of 
$10x per share. Such option constitutes a qualified stock option 
constitutes a qualified stock option as defined in section 422(b). On 
August 1, 1971, A exercises his option, at which time the fair market 
value of the 100 shares of M Stock is $15x per share. On April 24, 1972, 
A sells the 100 shares of M stock acquired pursuant to exercise of his 
option at a price of $25x per share. Because the sale constitutes a 
disqualifying disposition within the meaning of section 421(b), A 
realizes ordinary income of $500x and a capital gain of $1,000x in the 
taxable year 1972. The $500x of ordinary income so realized by A 
constitutes earned income.
    Example 11. On November 30, 1072, Corporation M grants to A, an 
employee, a nonqualified stock option to which section 421 does not 
apply and which has no readily ascertainable fair market value on that 
date. The option may, by its terms, be exercised by A at any time 
during, or following termination of, his employment. On March 30, 1974, 
A, while still employed by M, exercises his option and realizes 
compensation income at that time. Such compensation does not constitute 
earned income because the option is exercisable within a period that may 
extend beyond three months after A's termination of employment (other 
than by reason of death). See paragraph (b)(3)(iii)(B) of this section. 
Had A exercised his option at any time prior to January 1, 1974, the 
compensation realized by him by reason of such exercise would have 
constituted earned income.
    Example 12. On November 30, 1972, Corporation N grants to B, an 
employee, a nonqualified stock option to which section 421 does not 
apply and which has no readily ascertainable fair market value on that 
date. The option may by its terms, be exercised only within the period 
during which B is employed by N or within three months thereafter. On 
March 30, 1974, B exercises his option and realizes compensation at that 
time. Such compensation so realized by B constitutes earned income. See 
paragraph (b)(3)(iii)(B) of this section.
    Example 13. On May 9, 1973, and in connection with the performance 
of services by E, an employee, Corporation X transfers to E 100 shares 
of X stock. Under the terms of the transfer, E is subject to a binding 
commitment to return the stock to X if E leaves X's employment for any 
reason prior to the expiration of a 3-year period beginning on the date 
of transfer. Since E must perform substantial services for X before he 
may keep the X stock, E's rights in the stock are subject to a 
substantial risk of forfeiture under section 83(c)(1). Consequently, if 
such restriction lapses on May 9, 1976, the compensation realized at 
such time constitutes earned income. Had E elected to include an amount 
in his gross income in 1973 pursuant to section 83(b) and the 
regulations thereunder, the amount so included would also have 
constituted earned income.

[[Page 700]]

    Example 14. On October 1, 1971, A, an author, and Corporation M, a 
publisher, executed an agreement under which A granted to M the 
exclusive right to print, publish and sell a book he had written. The 
agreement provides that M will pay to A specified royalties based on the 
actual cash received from the sale of the published work, render 
semiannual statements of the sales, and at the time of rendering each 
statement make settlement for the amount due. On the same day, another 
agreement was signed by A and M, mutually agreeing that, in 
consideration of, and notwithstanding, any contrary provisions contained 
in the first contract, M shall not pay A more than $100x in any one 
calendar year. Under this supplemental contract, sums in excess of $100x 
accruing in any one calendar year are to be carried over by M into 
succeeding years. For the calendar year 1971, royalties payable to A 
under the basic agreement amount to $100x and this sum is paid to A. For 
the calendar year 1972, royalties of $120x are payable to A under the 
basic agreement, but by reason of the supplemental agreement, only $100x 
of this sum is actually paid to A. For each of the calendar years 1973 
and 1974, royalties of $100x are payable to A under the basic agreement, 
and this sum is paid to A. For the calendar year 1975, royalties of $80x 
are payable to A under the basic agreement, and this sum, plus $20x 
carried over from 1972, or $100x, is paid to A. The $100x paid to A in 
each of the years 1971, 1972, 1973, and 1974, and $80x of the $100x paid 
to A in 1975 constitute earned income. The additional $20x carried over 
from 1972 and paid to A in 1975 constitutes deferred compensation under 
this paragraph (b) because it was paid to A later than the end of the 
year following the year (i.e., 1972) in which A's right to receive the 
amount was not subject to a substantial risk of forfeiture.
    Example 15. Corporation M is the producer and owner of a feature 
length motion picture which is distributed to exhibitors by Corporation 
N pursuant to a distribution agreement between M and N providing for 
current payments to M of a given percentage of the current net profits 
derived by N from the exhibition and exploitation of the picture. A was 
employed by M as the leading actor in the picture for fixed compensation 
payable at the rate of $10x per week during the production period plus 
additional compensation equal to a given percentage of the net profits 
derived from the exhibition and exploitation of the picture. A's 
additional compensation is payable at the time that M receives payments 
from N under the terms of the distribution agreement. The additional 
compensation paid to A does not constitute deferred compensation since 
it is attributable to and measured by current net profits derived from 
the use of property created in part by A's efforts.
    Example 16. A, a boxer entered into an agreement with M boxing club 
to fight a particular opponent on June 19, 1971. The agreement provided 
in part, that for his performance A was to receive 16 percent of the 
gross receipts derived from the match. Simultaneously, A and M executed 
a separate agreement providing for payment of A's share of the receipts 
from the match as follows: 25 percent thereof not later than August 15, 
1971, and 25 percent thereof during each of the years 1972, 1973, and 
1974 in equal semiannual installments. A's share of the gross receipts 
derived from the match was $100x, of which 25 percent was paid to him in 
1971 and a total of $25x in each of the years 1972, 1973, and 1974. 
Under the particular facts and circumstances, A and M are not acting as 
partners or joint venturers. Thus, A is taxable upon his share of such 
gross receipts only in the years in which such share is actually paid to 
him under the terms of the separate agreement. The payments of $25x in 
each of the years 1971 and 1972 constitute earned income. The payments 
of $25x in each of the years 1973 and 1974 would not constitute earned 
income because they constitute deferred compensation received later than 
the end of the first taxable year (i.e., 1972) following the year in 
which A's right to receive such amounts was not subject to a substantial 
risk of forfeiture.

[T.D. 7446, 41 FR 55339, Dec. 20, 1976]

           Small Business Corporations and Their Shareholders



Sec. 1.1361-0  Table of contents.

    This section lists captions contained in Sec. Sec. 1.1361-1, 
1.1361-2, 1.1361-3, 1.1361-4, 1.1361-5, and 1.1361-6.

                  Sec. 1.1361-1 S Corporation defined.

    (a) In general.
    (b) Small business corporation defined.
    (1) In general.
    (2) Estate in bankruptcy.
    (3) Treatment of restricted stock.
    (4) Treatment of deferred compensation plans.
    (5) Treatment of straight debt.
    (6) Effective date provisions.
    (c) Domestic corporation.
    (d) Ineligible corporation.
    (1) General rule.
    (2) Exceptions.
    (e) Number of shareholders.
    (1) General rule.
    (2) Special rules relating to stock owned by husband and wife.
    (f) Shareholder must be an individual or estate.
    (g) No nonresident alien shareholder.
    (1) General rule.
    (2) Special rule for dual residents.

[[Page 701]]

    (h) Special rules relating to trusts.
    (1) General rule.
    (2) Foreign trust.
    (3) Determination of shareholders.
    (i) [Reserved]
    (j) Qualified subchapter S trust.
    (1) Definition.
    (2) Special rules.
    (3) Separate and independent shares of a trust.
    (4) Qualified terminable interest property trust.
    (5) Ceasing to meet the QSST requirements.
    (6) Qualified subchapter S trust election.
    (7) Treatment as shareholder.
    (8) Coordination with grantor trust rules.
    (9) Successive income beneficiary.
    (10) Affirmative refusal to consent.
    (11) Revocation of QSST election.
    (12) Converting a QSST to an ESBT.
    (k)(1) Examples.
    (2) Effective date.
    (l) Classes of stock.
    (1) General rule.
    (2) Determination of whether stock confers identical rights to 
distribution and liquidation proceeds.
    (3) Stock taken into account.
    (4) Other instruments, obligations, or arrangements treated as a 
second class of stock.
    (5) Straight debt safe harbor.
    (6) Inadvertent terminations.
    (7) Effective date
    (m) Electing small business trust (ESBT).
    (1) Definition.
    (2) ESBT election.
    (3) Effect of ESBT election.
    (4) Potential current beneficiaries.
    (5) ESBT terminations.
    (6) Revocation of ESBT election.
    (7) Converting an ESBT to a QSST.
    (8) Examples.
    (9) Effective date.

   Sec. 1.1361-2 Definitions relating to S corporation subsidiaries.

    (a) In general.
    (b) Stock treated as held by S corporation.
    (c) Straight debt safe harbor.
    (d) Examples.

                      Sec. 1.1361-3 QSub election.

    (a) Time and manner of making election.
    (1) In general.
    (2) Manner of making election.
    (3) Time of making election.
    (4) Effective date of election.
    (5) Example.
    (6) Extension of time for making a QSub election.
    (b) Revocation of QSub election.
    (1) Manner of revoking QSub election.
    (2) Effective date of revocation.
    (3) Revocation after termination.
    (4) Revocation before QSub election effective.

                 Sec. 1.1361-4 Effect of QSub election.

    (a) Separate existence ignored.
    (1) In general.
    (2) Liquidation of subsidiary.
    (i) In general.
    (ii) Examples
    (iii) Adoption of plan of liquidation.
    (iv) Example.
    (v) Stock ownership requirements of section 332.
    (3) Treatment of banks.
    (i) In general.
    (ii) Examples.
    (iii)Effective date.
    (4) Treatment of stock of QSub.
    (5) Transitional relief.
    (i) General rule.
    (ii) Examples.
    (b) Timing of the liquidation.
    (1) In general.
    (2) Application to elections in tiered situations.
    (3) Acquisitions.
    (i) In general.
    (ii) Special rules for acquired S corporations.
    (4) Coordination with section 338 election.
    (c) Carryover of disallowed losses and deductions.
    (d) Examples.

              Sec. 1.1361-5 Termination of QSub election.

    (a) In general.
    (1) Effective date.
    (2) Information to be provided upon termination of QSub election by 
failure to qualify as a QSub.
    (3) QSub joins a consolidated group.
    (4) Examples.
    (b) Effect of termination of QSub election.
    (1) Formation of new corporation.
    (i) In general.
    (ii) Termination for tiered QSubs.
    (2) Carryover of disallowed losses and deductions.
    (3) Examples.
    (c) Election after QSub termination.
    (1) In general.
    (2) Exception.
    (3) Examples.

                     Sec. 1.1361-6 Effective date.

[T.D. 8600, 60 FR 37581, July 21, 1995, as amended by T.D. 8869, 65 FR 
3848, Jan. 25, 2000; T.D. 8994, 67 FR 34397, May 14, 2002]



Sec. 1.1361-1  S corporation defined.

    (a) In general. For purposes of this title, with respect to any 
taxable year--
    (1) The term S corporation means a small business corporation (as 
defined

[[Page 702]]

in paragraph (b) of this section) for which an election under section 
1362(a) is in effect for that taxable year.
    (2) The term C corporation means a corporation that is not an S 
corporation for that taxable year.
    (b) Small business corporation defined--(1) In general. For purposes 
of subchapter S, chapter 1 of the Code and the regulations thereunder, 
the term small business corporation means a domestic corporation that is 
not an ineligible corporation (as defined in section 1361(b)(2)) and 
that does not have--
    (i) More than 75 shareholders (35 for taxable years beginning before 
January 1, 1997);
    (ii) As a shareholder, a person (other than an estate, a trust 
described in section 1361(c)(2), or, for taxable years beginning after 
December 31, 1997, an organization described in section 1361(c)(6)) who 
is not an individual;
    (iii) A nonresident alien as a shareholder; or
    (iv) More than one class of stock.
    (2) Estate in bankruptcy. The term estate, for purposes of this 
paragraph, includes the estate of an individual in a case under title 11 
of the United States Code.
    (3) Treatment of restricted stock. For purposes of subchapter S, 
stock that is issued in connection with the performance of services 
(within the meaning of Sec. 1.83-3(f)) and that is substantially 
nonvested (within the meaning of Sec. 1.83-3(b)) is not treated as 
outstanding stock of the corporation, and the holder of that stock is 
not treated as a shareholder solely by reason of holding the stock, 
unless the holder makes an election with respect to the stock under 
section 83(b). In the event of such an election, the stock is treated as 
outstanding stock of the corporation, and the holder of the stock is 
treated as a shareholder for purposes of subchapter S. See paragraphs 
(l) (1) and (3) of this section for rules for determining whether 
substantially nonvested stock with respect to which an election under 
section 83(b) has been made is treated as a second class of stock.
    (4) Treatment of deferred compensation plans. For purposes of 
subchapter S, an instrument, obligation, or arrangement is not 
outstanding stock if it--
    (i) Does not convey the right to vote;
    (ii) Is an unfunded and unsecured promise to pay money or property 
in the future;
    (iii) Is issued to an individual who is an employee in connection 
with the performance of services for the corporation or to an individual 
who is an independent contractor in connection with the performance of 
services for the corporation (and is not excessive by reference to the 
services performed); and
    (iv) Is issued pursuant to a plan with respect to which the employee 
or independent contractor is not taxed currently on income.

A deferred compensation plan that has a current payment feature (e.g., 
payment of dividend equivalent amounts that are taxed currently as 
compensation) is not for that reason excluded from this paragraph 
(b)(4).
    (5) Treatment of straight debt. For purposes of subchapter S, an 
instrument or obligation that satisfies the definition of straight debt 
in paragraph (l)(5) of this section is not treated as outstanding stock.
    (6) Effective date provision. Section 1.1361-1(b) generally applies 
to taxable years of a corporation beginning on or after May 28, 1992. 
However, a corporation and its shareholders may apply this Sec. 1.1361-
1(b) to prior taxable years. In addition, substantially nonvested stock 
issued on or before May 28, 1992, that has been treated as outstanding 
by the corporation is treated as outstanding for purposes of subchapter 
S, and the fact that it is substantially nonvested and no section 83(b) 
election has been made with respect to it will not cause the stock to be 
treated as a second class of stock.
    (c) Domestic corporation. For purposes of paragraph (b) of this 
section, the term domestic corporation means a domestic corporation as 
defined in Sec. 301.7701-5 of this chapter, and the term corporation 
includes an entity that is classified as an association taxable as a 
corporation under Sec. 301.7701-2 of this chapter.
    (d) Ineligible corporation--(1) General rule. Except as otherwise 
provided in this paragraph (d), the term ineligible corporation means a 
corporation that is--

[[Page 703]]

    (i) For taxable years beginning on or after January 1, 1997, a 
financial institution that uses the reserve method of accounting for bad 
debts described in section 585 (for taxable years beginning prior to 
January 1, 1997, a financial institution to which section 585 applies 
(or would apply but for section 585(c)) or to which section 593 
applies);
    (ii) An insurance company subject to tax under subchapter L;
    (iii) A corporation to which an election under section 936 applies; 
or
    (iv) A DISC or former DISC.
    (2) Exceptions. See the special rules and exceptions provided in 
sections 6(c) (2), (3) and (4) of Public Law 97-354 that are applicable 
for certain casualty insurance companies and qualified oil corporations.
    (e) Number of shareholders--(1) General rule. A corporation does not 
qualify as a small business corporation if it has more than 75 
shareholders (35 for taxable years beginning prior to January 1, 1997). 
Ordinarily, the person who would have to include in gross income 
dividends distributed with respect to the stock of the corporation (if 
the corporation were a C corporation) is considered to be the 
shareholder of the corporation. For example, if stock (owned other than 
by a husband and wife) is owned by tenants in common or joint tenants, 
each tenant in common or joint tenant is generally considered to be a 
shareholder of the corporation. (For special rules relating to stock 
owned by husband and wife, see paragraph (e)(2) of this section; for 
special rules relating to restricted stock, see paragraphs (b) (3) and 
(6) of this section.) The person for whom stock of a corporation is held 
by a nominee, guardian, custodian, or an agent is considered to be the 
shareholder of the corporation for purposes of this paragraph (e) and 
paragraphs (f) and (g) of this section. For example, a partnership may 
be a nominee of S corporation stock for a person who qualifies as a 
shareholder of an S corporation. However, if the partnership is the 
beneficial owner of the stock, then the partnership is the shareholder, 
and the corporation does not qualify as a small business corporation. In 
addition, in the case of stock held for a minor under a uniform gifts to 
minors or similar statute, the minor and not the custodian is the 
shareholder. For purposes of this paragraph (e) and paragraphs (f) and 
(g) of this section, if stock is held by a decedent's estate, the estate 
(and not the beneficiaries of the estate) is considered to be the 
shareholder; however, if stock is held by a subpart E trust (which 
includes voting trusts), the deemed owner is considered to be the 
shareholder.
    (2) Special rules relating to stock owned by husband and wife. For 
purposes of paragraph (e)(1) of this section, stock owned by a husband 
and wife (or by either or both of their estates) is treated as if owned 
by one shareholder, regardless of the form in which they own the stock. 
For example, if husband and wife are owners of a subpart E trust, they 
will be treated as one individual. Both husband and wife must be U.S. 
citizens or residents, and a decedent spouse's estate must not be a 
foreign estate as defined in section 7701(a)(31). The treatment 
described in this paragraph (e)(2) will cease upon dissolution of the 
marriage for any reason other than death.
    (f) Shareholder must be an individual or estate. Except as otherwise 
provided in paragraph (e)(1) of this section (relating to nominees), 
paragraph (h) of this section (relating to certain trusts), and, for 
taxable years beginning after December 31, 1997, section 1361(c)(6) 
(relating to certain exempt organizations), a corporation in which any 
shareholder is a corporation, partnership, or trust does not qualify as 
a small business corporation.
    (g) Nonresident alien shareholder--(1) General rule. (i) A 
corporation having a shareholder who is a nonresident alien as defined 
in section 7701(b)(1)(B) does not qualify as a small business 
corporation. If a U.S. shareholder's spouse is a nonresident alien who 
has a current ownership interest (as opposed, for example, to a 
survivorship interest) in the stock of the corporation by reason of any 
applicable law, such as a state community property law or a foreign 
country's law, the corporation does not qualify as a small business 
corporation from the time the nonresident alien spouse acquires the 
interest in the stock. If a corporation's S election is inadvertently 
terminated as a result of

[[Page 704]]

a nonresident alien spouse being considered a shareholder, the 
corporation may request relief under section 1362(f).
    (ii) The following examples illustrate this paragraph (g)(1)(i):

    Example 1. In 1990, W, a U.S. citizen, married H, a citizen of a 
foreign country. At all times H is a nonresident alien under section 
7701(b)(1)(B). Under the foreign country's law, all property acquired by 
a husband and wife during the existence of the marriage is community 
property and owned jointly by the husband and wife. In 1996 while 
residing in the foreign country, W formed X, a U.S. corporation, and X 
simultaneously filed an election to be an S corporation. X issued all of 
its outstanding stock in W's name. Under the foreign country's law, X's 
stock became the community property of and jointly owned by H and W. 
Thus, X does not meet the definition of a small business corporation and 
therefore could not file a valid S election because H, a nonresident 
alien, has a current interest in the stock.
    Example 2. Assume the same facts as Example 1, except that in 1991, 
W and H filed a section 6013(g) election allowing them to file a joint 
U.S. tax return and causing H to be treated as a U.S. resident for 
purposes of chapters 1, 5, and 24 of the Internal Revenue Code. The 
section 6013(g) election applies to the taxable year for which made and 
to all subsequent taxable years until terminated. Because H is treated 
as a U.S. resident under section 6013(g), X does meet the definition of 
a small business corporation. Thus, the election filed by X to be an S 
corporation is valid.

    (2) Special rule for dual residents. [Reserved]
    (h) Special rules relating to trusts--(1) General rule. In general, 
a trust is not a permitted small business corporation shareholder. 
However, except as provided in paragraph (h)(2) of this section, the 
following trusts are permitted shareholders:
    (i) Qualified subpart E trust. A trust all of which is treated 
(under subpart E, part I, subchapter J, chapter 1) as owned by an 
individual (whether or not the grantor) who is a citizen or resident of 
the United States (a qualified subpart E trust). This requirement 
applies only during the period that the trust holds S corporation stock.
    (ii) Subpart E trust ceasing to be a qualified subpart E trust after 
the death of deemed owner. A trust that was a qualified subpart E trust 
immediately before the death of the deemed owner and that continues in 
existence after the death of the deemed owner, but only for the 2-year 
period beginning on the day of the deemed owner's death. A trust is 
considered to continue in existence if the trust continues to hold the 
stock pursuant to the terms of the will or the trust agreement, or if 
the trust continues to hold the stock during a period reasonably 
necessary to wind up the affairs of the trust. See Sec. 1.641(b)-3 for 
rules concerning the termination of trusts for federal income tax 
purposes.
    (iii) Electing qualified subchapter S trusts. A qualified subchapter 
S trust (QSST) that has a section 1361(d)(2) election in effect (an 
electing QSST). See paragraph (j) of this section for rules concerning 
QSSTs including the manner for making the section 1361(d)(2) election.
    (iv) Testamentary trusts. A trust (other than a qualified subpart E 
trust, an electing QSST, or an electing small business trust) to which S 
corporation stock is--
    (A) Transferred pursuant to the terms of a will, but only for the 2-
year period beginning on the day the stock is transferred to the trust 
except as otherwise provided in paragraph (h)(3)(i)(D) of this section; 
or
    (B) Transferred pursuant to the terms of an electing trust as 
defined in Sec. 1.645-1(b)(2) during the election period as defined in 
Sec. 1.645-1(b)(6), or deemed to be distributed at the close of the 
last day of the election period pursuant to Sec. 1.645-1(h)(1), but in 
each case only for the 2-year period beginning on the day the stock is 
transferred or deemed distributed to the trust except as otherwise 
provided in paragraph (h)(3)(i)(D) of this section.
    (v) Qualified voting trusts. A trust created primarily to exercise 
the voting power of S corporation stock transferred to it. To qualify as 
a voting trust for purposes of this section (a qualified voting trust), 
the beneficial owners must be treated as the owners of their respective 
portions of the trust under subpart E and the trust must have been 
created pursuant to a written trust agreement entered into by the 
shareholders, that--
    (A) Delegates to one or more trustees the right to vote;
    (B) Requires all distributions with respect to the stock of the 
corporation

[[Page 705]]

held by the trust to be paid to, or on behalf of, the beneficial owners 
of that stock;
    (C) Requires title and possession of that stock to be delivered to 
those beneficial owners upon termination of the trust; and
    (D) Terminates, under its terms or by state law, on or before a 
specific date or event.
    (vi) Electing small business trusts. An electing small business 
trust (ESBT) under section 1361(e). See paragraph (m) of this section 
for rules concerning ESBTs including the manner of making the election 
to be an ESBT under section 1361(e)(3).
    (2) Foreign trust. For purposes of paragraph (h)(1) of this section, 
in any case where stock is held by a foreign trust as defined in section 
7701(a)(31), the trust is considered to be the shareholder and is an 
ineligible shareholder. Thus, even if a foreign trust qualifies as a 
subpart E trust (e.g., a qualified voting trust), any corporation in 
which the trust holds stock does not qualify as a small business 
corporation.
    (3) Determination of shareholders--(i) General rule. For purposes of 
paragraph (b) of this section (qualification as a small business 
corporation), and, except as provided in paragraph (h)(3)(ii) of this 
section, for purposes of sections 1366 (relating to the pass-through of 
items of income, loss, deduction, or credit), 1367 (relating to 
adjustments to basis of shareholder's stock), and 1368 (relating to 
distributions), the shareholder of S corporation stock held by a trust 
that is a permitted shareholder under paragraph (h)(1) of this section 
is determined as follows:
    (A) If stock is held by a qualified subpart E trust, the deemed 
owner of the trust is treated as the shareholder.
    (B) If stock is held by a trust defined in paragraph (h)(1)(ii) of 
this section, the estate of the deemed owner is generally treated as the 
shareholder as of the day of the deemed owner's death. However, if stock 
is held by such a trust in a community property state, the decedent's 
estate is the shareholder only of the portion of the trust included in 
the decedent's gross estate (and the surviving spouse continues to be 
the shareholder of the portion of the trust owned by that spouse under 
the applicable state's community property law). The estate ordinarily 
will cease to be treated as the shareholder upon the earlier of the 
transfer of the stock by the trust or the expiration of the 2-year 
period beginning on the day of the deemed owner's death. If the trust 
qualifies and becomes an electing QSST, the beneficiary and not the 
estate is treated as the shareholder as of the effective date of the 
QSST election, and the rules provided in paragraph (j)(7) of this 
section apply. If the trust qualifies and becomes an ESBT, the 
shareholders are determined under paragraphs (h)(3)(i)(F) and (h)(3)(ii) 
of this section as of the effective date of the ESBT election, and the 
rules provided in paragraph (m) of this section apply.
    (C) If stock is held by an electing QSST, see paragraph (j)(7) of 
this section for the rules on who is treated as the shareholder.
    (D) If stock is transferred or deemed distributed to a testamentary 
trust described in paragraph (h)(1)(iv) of this section (other than a 
qualified subpart E trust, an electing QSST, or an ESBT), the estate of 
the testator is treated as the shareholder until the earlier of the 
transfer of that stock by the trust or the expiration of the 2-year 
period beginning on the day that the stock is transferred or deemed 
distributed to the trust. If the trust qualifies and becomes an electing 
QSST, the beneficiary and not the estate is treated as the shareholder 
as of the effective date of the QSST election, and the rules provided in 
paragraph (j)(7) of this section apply. If the trust qualifies and 
becomes an ESBT, the shareholders are determined under paragraphs 
(h)(3)(i)(F) and (h)(3)(ii) of this section as of the effective date of 
the ESBT election, and the rules provided in paragraph (m) of this 
section apply.
    (E) If stock is held by a qualified voting trust, each beneficial 
owner of the stock, as determined under subpart E, is treated as a 
shareholder with respect to the owner's proportionate share of the stock 
held by the trust.
    (F) If S corporation stock is held by an ESBT, each potential 
current beneficiary is treated as a shareholder. However, if for any 
period there is no potential current beneficiary of the

[[Page 706]]

ESBT, the ESBT is treated as the shareholder during such period. See 
paragraph (m)(4) of this section for the definition of potential current 
beneficiary.
    (ii) Exceptions. See Sec. 1.641(c)-1 for the rules for the taxation 
of an ESBT. Solely for purposes of section 1366, 1367, and 1368 the 
shareholder of S corporation stock held by a trust is determined as 
follows--
    (A) If stock is held by a trust as defined in paragraph (h)(1)(ii) 
of this section (other than an electing QSST or an ESBT), the trust is 
treated as the shareholder. If the trust continues to own the stock 
after the expiration of the 2-year period, the corporation's S election 
will terminate unless the trust is otherwise a permitted shareholder.
    (B) If stock is transferred or deemed distributed to a testamentary 
trust described in paragraph (h)(1)(iv) of this section (other than a 
qualified subpart E trust, an electing QSST, or an ESBT), the trust is 
treated as the shareholder. If the trust continues to own the stock 
after the expiration of the 2-year period, the corporation's S election 
will terminate unless the trust otherwise qualifies as a permitted 
shareholder.
    (i) [Reserved]
    (j) Qualified subchapter S trust--(1) Definition. A qualified 
subchapter S trust (QSST) is a trust (whether intervivos or 
testamentary), other than a foreign trust described in section 
7701(a)(31), that satisfies the following requirements:
    (i) All of the income (within the meaning of Sec. 1.643(b)-1) of 
the trust is distributed (or is required to be distributed) currently to 
one individual who is a citizen or resident of the United States. For 
purposes of the preceding sentence, unless otherwise provided under 
local law (including pertinent provisions of the governing instrument 
that are effective under local law), income of the trust includes 
distributions to the trust from the S corporation for the taxable year 
in question, but does not include the trust's pro rata share of the S 
corporation's items of income, loss, deduction, or credit determined 
under section 1366. See Sec. Sec. 1.651(a)-2(a) and 1.663(b)-1(a) for 
rules relating to the determination of whether all of the income of a 
trust is distributed (or is required to be distributed) currently. If 
under the terms of the trust income is not required to be distributed 
currently, the trustee may elect under section 663(b) to consider a 
distribution made in the first 65 days of a taxable year as made on the 
last day of the preceding taxable year. See section 663(b) and Sec. 
1.663(b)-2 for rules on the time and manner for making the election. The 
income distribution requirement must be satisfied for the taxable year 
of the trust or for that part of the trust's taxable year during which 
it holds S corporation stock.
    (ii) The terms of the trust must require that--
    (A) During the life of the current income beneficiary, there will be 
only one income beneficiary of the trust;
    (B) Any corpus distributed during the life of the current income 
beneficiary may be distributed only to that income beneficiary;
    (C) The current income beneficiary's income interest in the trust 
will terminate on the earlier of that income beneficiary's death or the 
termination of the trust; and
    (D) Upon termination of the trust during the life of the current 
income beneficiary, the trust will distribute all of its assets to that 
income beneficiary.
    (iii) The terms of the trust must satisfy the requirements of 
paragraph (j)(1)(ii) of this section from the date the QSST election is 
made or from the effective date of the QSST election, whichever is 
earlier, throughout the entire period that the current income 
beneficiary and any successor income beneficiary is the income 
beneficiary of the trust. If the terms of the trust do not preclude the 
possibility that any of the requirements stated in paragraph (j)(1)(ii) 
of this section will not be met, the trust will not qualify as a QSST. 
For example, if the terms of the trust are silent with respect to corpus 
distributions, and distributions of corpus to a person other than the 
current income beneficiary are permitted under local law during the life 
of the current income beneficiary, then the terms of the trust do not 
preclude the possibility that corpus may be distributed

[[Page 707]]

to a person other than the current income beneficiary and, therefore, 
the trust is not a QSST.
    (2) Special rules--(i) If a husband and wife are income 
beneficiaries of the same trust, the husband and wife file a joint 
return, and each is a U.S. citizen or resident, the husband and wife are 
treated as one beneficiary for purposes of paragraph (j) of this 
section. If a husband and wife are treated by the preceding sentence as 
one beneficiary, any action required by this section to be taken by an 
income beneficiary requires joinder of both of them. For example, each 
spouse must sign the QSST election, continue to be a U.S. citizen or 
resident, and continue to file joint returns for the entire period that 
the QSST election is in effect.
    (ii)(A) Terms of the trust and applicable local law. The 
determination of whether the terms of a trust meet all of the 
requirements under paragraph (j)(1)(ii) of this section depends upon the 
terms of the trust instrument and the applicable local law. For example, 
a trust whose governing instrument provides that A is the sole income 
beneficiary of the trust is, nevertheless, considered to have two income 
beneficiaries if, under the applicable local law, A and B are considered 
to be the income beneficiaries of the trust.
    (B) Legal obligation to support. If under local law a distribution 
to the income beneficiary is in satisfaction of the grantor's legal 
obligation of support to that income beneficiary, the trust will not 
qualify as a QSST as of the date of distribution because, under section 
677(b), if income is distributed, the grantor will be treated as the 
owner of the ordinary income portion of the trust or, if trust corpus is 
distributed, the grantor will be treated as a beneficiary under section 
662. See Sec. 1.677(b)-1 for rules on the treatment of trusts for 
support and Sec. 1.662(a)-4 for rules concerning amounts used in 
discharge of a legal obligation.
    (C) Example. The following example illustrates the rules of 
paragraph (j)(2)(ii)(B) of this section:

    Example: F creates a trust for the benefit of F's minor child, G. 
Under the terms of the trust, all income is payable to G until the trust 
terminates on the earlier of G's attaining age 35 or G's death. Upon the 
termination of the trust, all corpus must be distributed to G or G's 
estate. The trust includes all of the provisions prescribed by section 
1361(d)(3)(A) and paragraph (j)(1)(ii) of this section, but does not 
preclude the trustee from making income distributions to G that will be 
in satisfaction of F's legal obligation to support G. Under the 
applicable local law, distributions of trust income to G will satisfy 
F's legal obligation to support G. If the trustee distributes income to 
G in satisfaction of F's legal obligation to support G, the trust will 
not qualify as a QSST because F will be treated as the owner of the 
ordinary income portion of the trust. Further, the trust will not be a 
qualified subpart E trust because the trust will be subject to tax on 
the income allocable to corpus.

    (iii) If, under the terms of the trust, a person (including the 
income beneficiary) has a special power to appoint, during the life of 
the income beneficiary, trust income or corpus to any person other than 
the current income beneficiary, the trust will not qualify as a QSST. 
However, if the power of appointment results in the grantor being 
treated as the owner of the entire trust under the rules of subpart E, 
the trust may be a permitted shareholder under section 1361 (c)(2)(A)(i) 
and paragraph (h)(1)(i) of this section.
    (iv) If the terms of a trust or local law do not preclude the 
current income beneficiary from transferring the beneficiary's interest 
in the trust or do not preclude a person other than the current income 
beneficiary named in the trust instrument from being treated as a 
beneficiary of the trust under Sec. 1.643(c)-1, the trust will still 
qualify as a QSST. However, if the income beneficiary transfers or 
assigns the income interest or a portion of the income interest to 
another, the trust may no longer qualify as a QSST, depending on the 
facts and circumstances, because any transferee of the current income 
beneficiary's income interest and any person treated as a beneficiary 
under Sec. 1.643(c)-1 will be treated as a current income beneficiary 
for purposes of paragraph (j)(1)(ii) of this section and the trust may 
no longer meet the QSST requirements.
    (v) If the terms of the trust do not preclude a person other than 
the current income beneficiary named in the trust instrument from being 
awarded an interest in the trust by the order of a court, the trust will 
qualify as a

[[Page 708]]

QSST assuming the trust meets the requirements of paragraphs (j)(1) (i) 
and (ii) of this section. However, if as a result of such court order, 
the trust no longer meets the QSST requirements, the trust no longer 
qualifies as a QSST and the corporation's S election will terminate.
    (vi) A trust may qualify as a QSST even though a person other than 
the current income beneficiary is treated under subpart E as the owner 
of a part or all of that portion of a trust which does not consist of 
the S corporation stock, provided the entire trust meets the QSST 
requirements stated in paragraphs (j)(1) (i) and (ii) of this section.
    (3) Separate and independent shares of a trust. For purposes of 
sections 1361 (c) and (d), a substantially separate and independent 
share of a trust, within the meaning of section 663(c) and the 
regulations thereunder, is treated as a separate trust. For a separate 
share which holds S corporation stock to qualify as a QSST, the terms of 
the trust applicable to that separate share must meet the QSST 
requirements stated in paragraphs (j)(1) (i) and (ii) of this section.
    (4) Qualified terminable interest property trust. If property, 
including S corporation stock, or stock of a corporation that intends to 
make an S election, is transferred to a trust and an election is made to 
treat all or a portion of the transferred property as qualified 
terminable interest property (QTIP) under section 2056(b)(7), the income 
beneficiary may make the QSST election if the trust meets the 
requirements set out in paragraphs (j)(1) (i) and (ii) of this section. 
However, if property is transferred to a QTIP trust under section 
2523(f), the income beneficiary may not make a QSST election even if the 
trust meets the requirements set forth in paragraph (j)(1)(ii) of this 
section because the grantor would be treated as the owner of the income 
portion of the trust under section 677. In addition, if property is 
transferred to a QTIP trust under section 2523(f), the trust does not 
qualify as a permitted shareholder under section 1361(c)(2)(A)(i) and 
paragraph (h)(1)(i) of this section (a qualified subpart E trust), 
unless under the terms of the QTIP trust, the grantor is treated as the 
owner of the entire trust under sections 671 to 677. If the grantor 
ceases to be the income beneficiary's spouse, the trust may qualify as a 
QSST if it otherwise satisfies the requirements under paragraphs (j)(1) 
(i) and (ii) of this section.
    (5) Ceasing to meet the QSST requirements. If a QSST for which an 
election under section 1361(d)(2) has been made (as described in 
paragraph (j)(6) of this section) ceases to meet any of the requirements 
specified in paragraph (j)(1)(ii) of this section, the provisions of 
this paragraph (j) will cease to apply as of the first day on which that 
requirement ceases to be met. If such a trust ceases to meet the income 
distribution requirement specified in paragraph (j)(1)(i) of this 
section, but continues to meet all of the requirements in paragraph 
(j)(1)(ii) of this section, the provisions of this paragraph (j) will 
cease to apply as of the first day of the first taxable year beginning 
after the first taxable year for which the trust ceased to meet the 
income distribution requirement of paragraph (j)(1)(i) of this section. 
If a corporation's S election is inadvertently terminated as a result of 
a trust ceasing to meet the QSST requirements, the corporation may 
request relief under section 1362(f).
    (6) Qualified subchapter S trust election--(i) In general. This 
paragraph (j)(6) applies to the election provided in section 1361(d)(2) 
(the QSST election) to treat a QSST (as defined in paragraph (j)(1) of 
this section) as a trust described in section 1361(c)(2)(A)(i), and thus 
a permitted shareholder. This election must be made separately with 
respect to each corporation whose stock is held by the trust. The QSST 
election does not itself constitute an election as to the status of the 
corporation; the corporation must make the election provided by section 
1362(a) to be an S corporation. Until the effective date of a 
corporation's S election, the beneficiary is not treated as the owner of 
the stock of the corporation for purposes of section 678. Any action 
required by this paragraph (j) to be taken by a person who is under a 
legal disability by reason of age may be taken by that person's guardian 
or other legal representative, or if there be

[[Page 709]]

none, by that person's natural or adoptive parent.
    (ii) Filing the QSST election. The current income beneficiary of the 
trust must make the election by signing and filing with the service 
center with which the corporation files its income tax return the 
applicable form or a statement that--
    (A) Contains the name, address, and taxpayer identification number 
of the current income beneficiary, the trust, and the corporation;
    (B) Identifies the election as an election made under section 
1361(d)(2);
    (C) Specifies the date on which the election is to become effective 
(not earlier than 15 days and two months before the date on which the 
election is filed);
    (D) Specifies the date (or dates) on which the stock of the 
corporation was transferred to the trust; and
    (E) Provides all information and representations necessary to show 
that:
    (1) Under the terms of the trust and applicable local law--
    (i) During the life of the current income beneficiary, there will be 
only one income beneficiary of the trust (if husband and wife are 
beneficiaries, that they will file joint returns and that both are U.S. 
residents or citizens);
    (ii) Any corpus distributed during the life of the current income 
beneficiary may be distributed only to that beneficiary;
    (iii) The current beneficiary's income interest in the trust will 
terminate on the earlier of the beneficiary's death or upon termination 
of the trust; and
    (iv) Upon the termination of the trust during the life of such 
income beneficiary, the trust will distribute all its assets to such 
beneficiary.
    (2) The trust is required to distribute all of its income currently, 
or that the trustee will distribute all of its income currently if not 
so required by the terms of the trust.
    (3) No distribution of income or corpus by the trust will be in 
satisfaction of the grantor's legal obligation to support or maintain 
the income beneficiary.
    (iii) When to file the QSST election. (A) If S corporation stock is 
transferred to a trust, the QSST election must be made within the 16-
day-and-2-month period beginning on the day that the stock is 
transferred to the trust. If a C corporation has made an election under 
section 1362(a) to be an S corporation (S election) and, before that 
corporation's S election is in effect, stock of that corporation is 
transferred to a trust, the QSST election must be made within the 16-
day-and-2-month period beginning on the day that the stock is 
transferred to the trust.
    (B) If a trust holds C corporation stock and that C corporation 
makes an S election effective for the first day of the taxable year in 
which the S election is made, the QSST election must be made within the 
16-day-and-2-month period beginning on the day that the S election is 
effective. If a trust holds C corporation stock and that C corporation 
makes an S election effective for the first day of the taxable year 
following the taxable year in which the S election is made, the QSST 
election must be made within the 16-day-and-2-month period beginning on 
the day that the S election is made. If a trust holds C corporation 
stock and that corporation makes an S election intending the S election 
to be effective for the first day of the taxable year in which the S 
election is made but, under Sec. 1.1362-6(a)(2), such S election is 
subsequently treated as effective for the first day of the taxable year 
following the taxable year in which the S election is made, the fact 
that the QSST election states that the effective date of the QSST 
election is the first day of the taxable year in which the S election is 
made will not cause the QSST election to be ineffective for the first 
year in which the corporation's S election is effective.
    (C) If a trust ceases to be a qualified subpart E trust, satisfies 
the requirements of a QSST, and intends to become a QSST, the QSST 
election must be filed within the 16-day-and-2-month period beginning on 
the date on which the trust ceases to be a qualified subpart E trust. If 
the estate of the deemed owner of the trust is treated as the 
shareholder under paragraph (h)(3)(i) of this section, the QSST election 
may be filed at any time, but no later than the end of the 16-day-and-2-
month period beginning on the date on

[[Page 710]]

which the estate of the deemed owner ceases to be treated as a 
shareholder.
    (D) If a testamentary trust is a permitted shareholder under 
paragraph (h)(1)(iv) of this section, satisfies the requirements of a 
QSST, and intends to become a QSST, the QSST election may be filed at 
any time, but no later than the end of the 16-day-and-2-month period 
beginning on the day after the end of the 2-year period.
    (E) If a corporation's S election terminates because of a late QSST 
election, the corporation may request inadvertent termination relief 
under section 1362(f). See Sec. 1.1362-4 for rules concerning 
inadvertent terminations.
    (iv) Protective QSST election when a person is an owner under 
subpart E. If the grantor of a trust is treated as the owner under 
subpart E of all of the trust, or of a portion of the trust which 
consists of S corporation stock, and the current income beneficiary is 
not the grantor, the current income beneficiary may not make the QSST 
election, even if the trust meets the QSST requirements stated in 
paragraph (j)(1)(ii) of this section. See paragraph (j)(6)(iii)(C) of 
this section as to when the QSST election may be made. See also 
paragraph (j)(2)(vi) of this section. However, if the current income 
beneficiary (or beneficiaries who are husband and wife, if both spouses 
are U.S. citizens or residents and file a joint return) of a trust is 
treated under subpart E as owning all or a portion of the trust 
consisting of S corporation stock, the current income beneficiary (or 
beneficiaries who are husband and wife, if both spouses are U.S. 
citizens or residents and file a joint return) may make the QSST 
election. See Example 8 of paragraph (k)(1) of this section.
    (7) Treatment as shareholder. (i) The income beneficiary who makes 
the QSST election and is treated (for purposes of section 678(a)) as the 
owner of that portion of the trust that consists of S corporation stock 
is treated as the shareholder for purposes of sections 1361(b)(1), 1366, 
1367, and 1368.
    (ii) If, upon the death of an income beneficiary, the trust 
continues in existence, continues to hold S corporation stock but no 
longer satisfies the QSST requirements, is not a qualified subpart E 
trust, and does not qualify as an ESBT, then, solely for purposes of 
section 1361(b)(1), as of the date of the income beneficiary's death, 
the estate of that income beneficiary is treated as the shareholder of 
the S corporation with respect to which the income beneficiary made the 
QSST election. The estate ordinarily will cease to be treated as the 
shareholder for purposes of section 1361(b)(1) upon the earlier of the 
transfer of that stock by the trust or the expiration of the 2-year 
period beginning on the day of the income beneficiary's death. During 
the period that the estate is treated as the shareholder for purposes of 
section 1361(b)(1), the trust is treated as the shareholder for purposes 
of sections 1366, 1367, and 1368. If, after the 2-year period, the trust 
continues to hold S corporation stock and does not otherwise qualify as 
a permitted shareholder, the corporation's S election terminates. If the 
termination is inadvertent, the corporation may request relief under 
section 1362(f).
    (8) Coordination with grantor trust rules. If a valid QSST election 
is made, the income beneficiary is treated as the owner, for purposes of 
section 678(a), of that portion of the trust that consists of the stock 
of the S corporation for which the QSST election was made. However, 
solely for purposes of applying the preceding sentence to a QSST, an 
income beneficiary who is a deemed section 678 owner only by reason of 
section 1361(d)(1) will not be treated as the owner of the S corporation 
stock in determining and attributing the Federal income tax consequences 
of a disposition of the stock by the QSST. For example, if the 
disposition is a sale, the QSST election terminates as to the stock sold 
and any gain or loss recognized on the sale will be that of the trust, 
not the income beneficiary. Similarly, if a QSST distributes its S 
corporation stock to the income beneficiary, the QSST election 
terminates as to the distributed stock and the consequences of the 
distribution are determined by reference to the status of the trust 
apart from the income beneficiary's terminating ownership status under 
sections 678 and 1361(d)(1). The portions of the trust other than the 
portion consisting of S

[[Page 711]]

corporation stock are subject to subparts A through D of subchapter J of 
chapter 1, except as otherwise required by subpart E of the Internal 
Revenue Code.
    (9) Successive income beneficiary. (i) If the income beneficiary of 
a QSST who made a QSST election dies, each successive income beneficiary 
of that trust is treated as consenting to the election unless a 
successive income beneficiary affirmatively refuses to consent to the 
election. For this purpose, the term successive income beneficiary 
includes a beneficiary of a trust whose interest is a separate share 
within the meaning of section 663(c), but does not include any 
beneficiary of a trust that is created upon the death of the income 
beneficiary of the QSST and which is a new trust under local law.
    (ii) The application of this paragraph (j)(9) is illustrated by the 
following examples:

    Example 1. Shares of stock in Corporation X, an S corporation, are 
held by Trust A, a QSST for which a QSST election was made. B is the 
sole income beneficiary of Trust A. On B's death, under the terms of 
Trust A, J and K become the current income beneficiaries of Trust A. J 
and K each hold a separate and independent share of Trust A within the 
meaning of section 663(c). J and K are successive income beneficiaries 
of Trust A, and they are treated as consenting to B's QSST election.
    Example 2. Assume the same facts as in Example 1, except that on B's 
death, under the terms of Trust A and local law, Trust A terminates and 
the principal is to be divided equally and held in newly created Trust B 
and Trust C. The sole income beneficiaries of Trust B and Trust C are J 
and K, respectively. Because Trust A terminated, J and K are not 
successive income beneficiaries of Trust A. J and K must make QSST 
elections for their respective trusts to qualify as QSSTs, if they 
qualify. The result is the same whether or not the trustee of Trusts B 
and C is the same as the trustee of trust A.

    (10) Affirmative refusal to consent--(i) Required statement. A 
successive income beneficiary of a QSST must make an affirmative refusal 
to consent by signing and filing with the service center where the 
corporation files its income tax return a statement that--
    (A) Contains the name, address, and taxpayer identification number 
of the successive income beneficiary, the trust, and the corporation for 
which the election was made;
    (B) Identifies the refusal as an affirmative refusal to consent 
under section 1361(d)(2); and
    (C) Sets forth the date on which the successive income beneficiary 
became the income beneficiary.
    (ii) Filing date and effectiveness. The affirmative refusal to 
consent must be filed within 15 days and 2 months after the date on 
which the successive income beneficiary becomes the income beneficiary. 
The affirmative refusal to consent will be effective as of the date on 
which the successive income beneficiary becomes the current income 
beneficiary.
    (11) Revocation of QSST election. A QSST election may be revoked 
only with the consent of the Commissioner. The Commissioner will not 
grant a revocation when one of its purposes is the avoidance of Federal 
income taxes or when the taxable year is closed. The application for 
consent to revoke the election must be submitted to the Internal Revenue 
Service in the form of a letter ruling request under the appropriate 
revenue procedure. The application must be signed by the current income 
beneficiary and must--
    (i) Contain the name, address, and taxpayer identification number of 
the current income beneficiary, the trust, and the corporation with 
respect to which the QSST election was made;
    (ii) Identify the election being revoked as an election made under 
section 1361(d)(2); and
    (iii) Explain why the current income beneficiary seeks to revoke the 
QSST election and indicate that the beneficiary understands the 
consequences of the revocation.
    (12) Converting a QSST to an ESBT. For a trust that seeks to convert 
from a QSST to an ESBT, the consent of the Commissioner is hereby 
granted to revoke the QSST election as of the effective date of the ESBT 
election, if all the following requirements are met:
    (i) The trust meets all of the requirements to be an ESBT under 
paragraph (m)(1) of this section except for the requirement under 
paragraph (m)(1)(iv)(A) of this section that the trust not have a QSST 
election in effect.

[[Page 712]]

    (ii) The trustee and the current income beneficiary of the trust 
sign the ESBT election. The ESBT election must be filed with the service 
center where the S corporation files its income tax return. This ESBT 
election must state at the top of the document ``ATTENTION ENTITY 
CONTROL--CONVERSION OF A QSST TO AN ESBT PURSUANT TO SECTION 1.1361-
1(j)'' and include all information otherwise required for an ESBT 
election under paragraph (m)(2) of this section. A separate election 
must be made with respect to the stock of each S corporation held by the 
trust.
    (iii) The trust has not converted from an ESBT to a QSST within the 
36-month period preceding the effective date of the new ESBT election.
    (iv) The date on which the ESBT election is to be effective cannot 
be more than 15 days and two months prior to the date on which the 
election is filed and cannot be more than 12 months after the date on 
which the election is filed. If an election specifies an effective date 
more than 15 days and two months prior to the date on which the election 
is filed, it will be effective on the day that is 15 days and two months 
prior to the date on which it is filed. If an election specifies an 
effective date more than 12 months after the date on which the election 
is filed, it will be effective on the day that is 12 months after the 
date it is filed.
    (k)(1) Examples. The provisions of paragraphs (h) and (j) of this 
section are illustrated by the following examples in which it is assumed 
that all noncorporate persons are citizens or residents of the United 
States:

    Example 1. (i) Terms of the trust. In 1996, A and A's spouse, B, 
created an intervivos trust and each funded the trust with separately 
owned stock of an S corporation. Under the terms of the trust, A and B 
designated themselves as the income beneficiaries and each, 
individually, retained the power to amend or revoke the trust with 
respect to the trust assets attributable to their respective trust 
contributions. Upon A's death, the trust is to be divided into two 
separate parts; one part attributable to the assets A contributed to the 
trust and one part attributable to B's contributions. Before the trust 
is divided, and during the administration of A's estate, all trust 
income is payable to B. The part of the trust attributable to B's 
contributions is to continue in trust under the terms of which B is 
designated as the sole income beneficiary and retains the power to amend 
or revoke the trust. The part attributable to A's contributions is to be 
divided into two separate trusts both of which have B as the sole income 
beneficiary for life. One trust, the Credit Shelter Trust, is to be 
funded with an amount that can pass free of estate tax by reason of A's 
available estate tax unified credit. The terms of the Credit Shelter 
Trust meet the requirements of section 1361(d)(3) as a QSST. The balance 
of the property passes to a Marital Trust, the terms of which satisfy 
the requirements of section 1361(d)(3) as a QSST and section 2056(b)(7) 
as QTIP. The appropriate fiduciary under Sec. 20.2056(b)-7(b)(3) is 
directed to make an election under section 2056(b)(7).
    (ii) Results after deemed owner's death. On February 3, 1997, A dies 
and the portion of the trust assets attributable to A's contributions 
including the S stock contributed by A, is includible in A's gross 
estate under sections 2036 and 2038. During the administration of A's 
estate, the trust holds the S corporation stock. Under section 
1361(c)(2)(B)(ii), A's estate is treated as the shareholder of the S 
corporation stock that was included in A's gross estate for purposes of 
section 1361(b)(1); however, for purposes of sections 1366, 1367, and 
1368, the trust is treated as the shareholder. B's part of the trust 
continues to be a qualified subpart E trust of which B is the owner 
under sections 676 and 677. B, therefore, continues to be treated as the 
shareholder of the S corporation stock in that portion of the trust. On 
May 13, 1997, during the continuing administration of A's estate, the 
trust is divided into separate trusts in accordance with the terms of 
the trust instrument. The S corporation stock that was included in A's 
gross estate is distributed to the Marital Trust and to the Credit 
Shelter Trust. A's estate will cease to be treated as the shareholder of 
the S corporation under section 1361(c)(2)(B)(ii) on May 13, 1997 (the 
date on which the S corporation stock was transferred to the trusts). B, 
as the income beneficiary of the Marital Trust and the Credit Shelter 
Trust, must make the QSST election for each trust by July 28, 1997 (the 
end of the 16-day-and-2-month period beginning on the date the estate 
ceases to be treated as a shareholder) to have the trusts become 
permitted shareholders of the S corporation.
    Example 2. (i) Qualified subpart E trust as shareholder. In 1997, A, 
an individual established a trust and transferred to the trust A's 
shares of stock of Corporation M, an S corporation. A has the power to 
revoke the entire trust. The terms of the trust require that all income 
be paid to B and otherwise meet the requirements of a QSST under section 
1361(d)(3). The trust will continue in existence after A's death. The 
trust is a qualified subpart E trust described in section

[[Page 713]]

1361(c)(2)(A)(i) during A's life, and A (not the trust) is treated as 
the shareholder for purposes of sections 1361(b)(1), 1366, 1367, and 
1368.
    (ii) Trust ceasing to be a qualified subpart E trust on deemed 
owner's death. Assume the same facts as paragraph (i) of this Example 2, 
except that A dies without having exercised A's power to revoke. Upon 
A's death, the trust ceases to be a qualified subpart E trust described 
in section 1361(c)(2)(A)(i). A's estate (and not the trust) is treated 
as the shareholder for purposes of section 1361(b)(1). A's estate will 
cease to be treated as the shareholder for purposes of section 
1361(b)(1) upon the earlier of the transfer of the Corporation M stock 
by the trust (other than to A's estate), the expiration of the 2-year 
period beginning on the day of A's death, or the effective date of a 
QSST or ESBT election if the trust qualifies as a QSST or ESBT. However, 
until that time, because the trust continues in existence after A's 
death and will receive any distributions with respect to the stock it 
holds, the trust is treated as the shareholder for purposes of sections 
1366, 1367, and 1368. If no QSST or ESBT election is made effective upon 
the expiration of the 2-year period, the corporation ceases to be an S 
corporation, but the trust continues as the shareholder of a C 
corporation.
    (iii) Trust continuing to be a qualified subpart E trust on deemed 
owner's death. Assume the same facts as paragraph (ii) of this Example 
2, except that the terms of the trust also provide that if A does not 
exercise the power to revoke before A's death, B will have the sole 
power to withdraw all trust property at any time after A's death. The 
trust continues to qualify as a qualified subpart E trust after A's 
death because, upon A's death, B is deemed to be the owner of the entire 
trust under section 678. Because the trust does not cease to be a 
qualified subpart E trust upon A's death, B (and not A's estate) is 
treated as the shareholder for purposes of sections 1361(b)(1), 1366, 
1367, and 1368. Since the trust qualifies as a QSST, B may make a 
protective QSST election under paragraph (j)(6)(iv) of this section.
    Example 3. (i) 2-year rule under section 1361(c)(2)(A)(ii) and 
(iii). F owns stock of Corporation P, an S corporation. In addition, F 
is the deemed owner of a qualified subpart E trust that holds stock in 
Corporation O, an S corporation. F dies on July 1, 2003. The trust 
continues in existence after F's death but is no longer a qualified 
subpart E trust. On August 1, 2003, F's shares of stock in Corporation P 
are transferred to the trust pursuant to the terms of F's will. Because 
the stock of Corporation P was not held by the trust when F died, 
section 1361(c)(2)(A)(ii) does not apply with respect to that stock. 
Under section 1361(c)(2)(A)(iii), the last day on which the trust could 
be treated as a permitted shareholder of Corporation P is July 31, 2005 
(that is, the last day of the 2-year period that begins on the date of 
the transfer from the estate to the trust). With respect to the shares 
of stock in Corporation O held by the trust at the time of F's death, 
section 1361(c)(2)(A)(ii) applies and the last day on which the trust 
could be treated as a permitted shareholder of Corporation O is June 30, 
2005 (that is, the last day of the 2-year period that begins on the date 
of F's death).
    (ii) Section 645 electing trust and successor trust. Assume the same 
facts as in paragraph (i) of this Example 3, except that F's trust is a 
qualified revocable trust for which a valid section 645 election is made 
on October 1, 2003 (electing trust). Because under section 645 the 
electing trust is treated and taxed for purposes of subtitle A of the 
Code as part of F's estate, the trust may continue to hold the O stock 
pursuant to Sec. 1361(b)(1)(B), without causing the termination of 
Corporation O's S election, for the duration of the section 645 election 
period. However, on January 1, 2004, during the election period, the 
shares of stock in Corporation O are transferred pursuant to the terms 
of the electing trust to a successor trust. Because the successor trust 
satisfies the definition of a testamentary trust under paragraph 
(h)(1)(iv) of this section, the successor trust is a permitted 
shareholder until the earlier of the expiration of the 2-year period 
beginning on January 1, 2004, or the effective date of a QSST or ESBT 
election for the successor trust.
    Example 4. (i) QSST when terms do not require current distribution 
of income. Corporation Q, a calendar year corporation, makes an election 
to be an S corporation effective for calendar year 1996. On July 1, 
1996, G, a shareholder of Corporation Q, transfers G's shares of 
Corporation Q stock to a trust with H as its current income beneficiary. 
The terms of the trust otherwise satisfy the QSST requirements, but 
authorize the trustee in its discretion to accumulate or distribute the 
trust income. However, the trust, which uses the calendar year as its 
taxable year, initially satisfies the income distribution requirement 
because the trustee is currently distributing all of the income. On 
August 1, 1996, H makes a QSST election with respect to Corporation Q 
that is effective as of July 1, 1996. Accordingly, as of July 1, 1996, 
the trust is a QSST and H is treated as the shareholder for purposes of 
sections 1361(b)(1), 1366, 1367, and 1368.
    (ii) QSST when trust income is not distributed currently. Assume the 
same facts as in paragraph (i) of this Example 4, except that, for the 
taxable year ending on December 31, 1997, the trustee accumulates some 
trust income. The trust ceases to be a QSST on January 1, 1998, because 
the trust failed to distribute all of its income for the taxable year 
ending December 31, 1997. Thus, Corporation Q ceases to be an S 
corporation as of January 1, 1998,

[[Page 714]]

because the trust is not a permitted shareholder.
    (iii) QSST when a person other than the current income beneficiary 
may receive trust corpus. Assume the same facts as in paragraph (i) of 
this Example 4, except that the events occur in 2003 and H dies on 
November 1, 2003, and the trust does not qualify as an ESBT. Under the 
terms of the trust, after H's death, L is the income beneficiary of the 
trust and the trustee is authorized to distribute trust corpus to L as 
well as to J. The trust ceases to be a QSST as of November 1, 2003, 
because corpus distributions may be made to someone other than L, the 
current (successive) income beneficiary. Under section 
1361(c)(2)(B)(ii), H's estate (and not the trust) is considered to be 
the shareholder for purposes of section 1361(b)(1) for the 2-year period 
beginning on November 1, 2003. However, because the trust continues in 
existence after H's death and will receive any distributions from the 
corporation, the trust (and not H's estate) is treated as the 
shareholder for purposes of sections 1366, 1367, and 1368, during that 
2-year period. After the 2-year period, the S election terminates and 
the trust continues as a shareholder of a C corporation. If the 
termination is inadvertent, Corporation Q may request relief under 
section 1362(f). However, the S election would not terminate if the 
trustee distributed all Corporation Q shares to L, J, or both on or 
before October 31, 2005, (the last day of the 2-year period) assuming 
that neither L nor J becomes the 76th shareholder of Corporation Q as a 
result of the distribution.
    Example 5. QSST when current income beneficiary assigns the income 
interest to a person not named in the trust. On January 1, 1996, stock 
of Corporation R, a calendar year S corporation, is transferred to a 
trust that satisfies all of the requirements to be a QSST. Neither the 
terms of the trust nor local law preclude the current income 
beneficiary, K, from assigning K's income interest in the trust. K files 
a timely QSST election that is effective January 1, 1996. On July 1, 
1996, K assigns the income interest in the trust to N. Under applicable 
state law, the trustee is bound as a result of the assignment to 
distribute the trust income to N. Thus, the QSST will cease to qualify 
as a QSST under section 1361(d)(3)(A)(iii) because N's interest will 
terminate on K's death (rather than on N's death). Accordingly, as of 
the date of the assignment, the trust ceases to be a QSST and 
Corporation R ceases to be an S corporation.
    Example 6. QSST when terms fail to provide for distribution of trust 
assets upon termination during life of current income beneficiary. A 
contributes S corporation stock to a trust the terms of which provide 
for one income beneficiary, annual distributions of income, 
discretionary invasion of corpus only for the benefit of the income 
beneficiary, and termination of the trust only upon the death of the 
current income beneficiary. Since the trust can terminate only upon the 
death of the income beneficiary, the governing instrument fails to 
provide for any distribution of trust assets during the income 
beneficiary's life. The governing instrument's silence on this point 
does not disqualify the trust under section 1361(d)(3)(A) (ii) or (iv).
    Example 7. QSST when settlor of trust retains a reversion in the 
trust. On January 10, 1996, M transfers to a trust shares of stock in 
corporation X, an S corporation. D, who is 13 years old and not a lineal 
descendant of M, is the sole income beneficiary of the trust. On 
termination of the trust, the principal (including the X shares) is to 
revert to M. The trust instrument provides that the trust will terminate 
upon the earlier of D's death or D's 21st birthday. The terms of the 
trust satisfy all of the requirements to be a QSST except those of 
section 1361(d)(3)(A)(ii) (that corpus may be distributed during the 
current income beneficiary's life only to that beneficiary) and (iv) 
(that, upon termination of the trust during the life of the current 
income beneficiary, the corpus, must be distributed to that 
beneficiary). On February 10, 1996, M makes a gift of M's reversionary 
interest to D. Until M assigns M's reversion in the trust to D, M is 
deemed to own the entire trust under section 673(a) and the trust is a 
qualified subpart E trust. For purposes of section 1361(b)(1), 1366, 
1367, and 1368, M is the shareholder of X. The trust ceases to be a 
qualified subpart E trust on February 10, 1996. Assuming that, by virtue 
of the assignment to D of M's reversionary interest, D (upon his 21st 
birthday) or D's estate (in the case of D's death before reaching age 
21) is entitled under local law to receive the trust principal, the 
trust will be deemed as of February 10, 1996, to have satisfied the 
conditions of section 1361(d)(3)(A) (ii) and (iv) even though the terms 
of the trust do not explicitly so provide. D must make a QSST election 
by no later than April 25, 1996 (the end of the 16-day-and-2-month 
period that begins on February 10, 1996, the date on which the X stock 
is deemed transferred to the trust by M). See example (5) of Sec. 
1.1001-2(c) of the regulations.
    Example 8. QSST when the income beneficiary has the power to 
withdraw corpus. On January 1, 1996, F transfers stock of an S 
corporation to an irrevocable trust whose income beneficiary is F's son, 
C. Under the terms of the trust, C is given the noncumulative power to 
withdraw from the corpus of the trust the greater of $5,000 or 5 percent 
of the value of the corpus on a yearly basis. The terms of the trust 
meet the QSST requirements. Assuming the trust distributions are not in 
satisfaction of F's legal obligation to support C, the trust qualifies 
as a QSST. C (or if C is a minor, C's legal representative) must make 
the QSST election no later than March 16,

[[Page 715]]

1996 (the end of the 16-day-and-2-month period that begins on the date 
the stock is transferred to the trust).
    Example 9. (i) Filing the QSST election. On January 1, 1996, stock 
of Corporation T, a calendar year C corporation, is transferred to a 
trust that satisfies all of the requirements to be a QSST. On January 
31, 1996, Corporation T files an election to be an S corporation that is 
to be effective for its taxable year beginning on January 1, 1996. In 
order for the S election to be effective for the 1996 taxable year, the 
QSST election must be effective January 1, 1996, and must be filed 
within the period beginning on January 1, 1996, and ending March 16, 
1996 (the 16-day-and-2-month period beginning on the first day of the 
first taxable year for which the election to be an S corporation is 
intended to be effective).
    (ii) QSST election when the S election is filed late. Assume the 
same facts as in paragraph (i) of this Example 9, except that 
Corporation T's election to be an S corporation is filed on April 1, 
1996 (after the 15th day of the 3rd month of the first taxable year for 
which it is to be effective but before the end of that taxable year). 
Because the election to be an S corporation is not timely filed for the 
1996 taxable year, under section 1362(b)(3), the S election is treated 
as made for the taxable year beginning on January 1, 1997. The QSST 
election must be filed within the 16-day-and-2-month period beginning on 
April 1, 1996, the date the S election was made, and ending on June 16, 
1996.
    Example 10. (i) Transfers to QTIP trust. On June 1, 1996, A 
transferred S corporation stock to a trust for the benefit of A's spouse 
B, the terms of which satisfy the requirements of section 2523(f)(2) as 
qualified terminable interest property. Under the terms of the trust, B 
is the sole income beneficiary for life. In addition, corpus may be 
distributed to B, at the trustee's discretion, during B's lifetime. 
However, under section 677(a), A is treated as the owner of the trust. 
Accordingly, the trust is a permitted shareholder of the S corporation 
under section 1361(c)(2)(A)(i), and A is treated as the shareholder for 
purposes of sections 1361(b)(1), 1366, 1367, and 1368.
    (ii) Transfers to QTIP trust where husband and wife divorce. Assume 
the same facts as in paragraph (i) of this Example 10, except that A and 
B divorce on May 2, 1997. Under section 682, A ceases to be treated as 
the owner of the trust under section 677(a) because A and B are no 
longer husband and wife. Under section 682, after the divorce, B is the 
income beneficiary of the trust and corpus of the trust may only be 
distributed to B. Accordingly, assuming the trust otherwise meets the 
requirements of section 1361(d)(3), B must make the QSST election within 
2 months and 15 days after the date of the divorce.
    (iii) Transfers to QTIP trust where no corpus distribution is 
permitted. Assume the same facts as in paragraph (i) of this Example 10, 
except that the terms of the trust do not permit corpus to be 
distributed to B and require its retention by the trust for distribution 
to A and B's surviving children after the death of B. Under section 677, 
A is treated as the owner of the ordinary income portion of the trust, 
but the trust will be subject to tax on gross income allocable to 
corpus. Accordingly, the trust does not qualify as an eligible 
shareholder of the S corporation because it is neither a qualified 
subpart E trust nor a QSST.

    (2) Effective date--(i) In general. Paragraph (a) of this section, 
and paragraphs (c) through (k) of this section (as contained in the 26 
CFR edition revised April 1, 2003) apply to taxable years of a 
corporation beginning after July 21, 1995. For taxable years beginning 
on or before July 21, 1995, to which paragraph (a) of this section and 
paragraphs (c) through (k) of this section (as contained in the 26 CFR 
edition revised April 1, 2003) do not apply, see Sec. 18.1361-1 of this 
chapter (as contained in the 26 CFR edition revised April 1, 1995). 
However, paragraphs (h)(1)(vi), (h)(3)(i)(F), (h)(3)(ii), and (j)(12) of 
this section (as contained in the 26 CFR edition revised April 1, 2003) 
are applicable for taxable years beginning on and after May 14, 2002. 
Otherwise, paragraphs (b)(1)(ii), (f), (h)(1)(ii), (h)(1)(iv), 
(h)(3)(i)(B), (h)(3)(i)(D), (h)(3)(ii)(A), (h)(3)(ii)(B), 
(j)(6)(iii)(C), (j)(6)(iii)(D), (j)(7)(ii), and (k)(1) Example 2(ii) 
fourth and last sentences, Example 3, and Example 4(iii) of this section 
apply on and after July 17, 2003.
    (ii) Transition rules. Taxpayers may apply paragraph (h)(1)(iv)(B) 
of this section on and after December 24, 2002, and before July 17, 
2003, to treat a trust as a testamentary trust, but not during any 
period for which a QSST or ESBT election was in effect for the trust. In 
addition, the Internal Revenue Service will not challenge the treatment 
of a trust described in paragraph (h)(1)(iv)(B) of this section as a 
permitted shareholder of an S corporation for periods after August 5, 
1997, and before the earlier of July 17, 2003, or the effective date of 
any QSST or ESBT election for that trust.
    (iii) Exception. If a QSST has sold or otherwise disposed of all or 
a portion of

[[Page 716]]

its S corporation stock in a tax year that is open for the QSST and the 
income beneficiary but on or before July 21, 1995, the QSST and the 
income beneficiary may both treat the transaction as if the beneficiary 
was the owner of the stock sold or disposed of, and thus recognize any 
gain or loss, or as if the QSST was the owner of the stock sold or 
disposed of as described in paragraph (j)(8) of this section. This 
exception applies only if the QSST and the income beneficiary take 
consistent reporting positions. The QSST and the income beneficiary must 
disclose by a statement on their respective returns (or amended 
returns), that they are taking consistent reporting positions.
    (l) Classes of stock--(1) General rule. A corporation that has more 
than one class of stock does not qualify as a small business 
corporation. Except as provided in paragraph (l)(4) of this section 
(relating to instruments, obligations, or arrangements treated as a 
second class of stock), a corporation is treated as having only one 
class of stock if all outstanding shares of stock of the corporation 
confer identical rights to distribution and liquidation proceeds. 
Differences in voting rights among shares of stock of a corporation are 
disregarded in determining whether a corporation has more than one class 
of stock. Thus, if all shares of stock of an S corporation have 
identical rights to distribution and liquidation proceeds, the 
corporation may have voting and nonvoting common stock, a class of stock 
that may vote only on certain issues, irrevocable proxy agreements, or 
groups of shares that differ with respect to rights to elect members of 
the board of directors.
    (2) Determination of whether stock confers identical rights to 
distribution and liquidation proceeds--(i) In general. The determination 
of whether all outstanding shares of stock confer identical rights to 
distribution and liquidation proceeds is made based on the corporate 
charter, articles of incorporation, bylaws, applicable state law, and 
binding agreements relating to distribution and liquidation proceeds 
(collectively, the governing provisions). A commercial contractual 
agreement, such as a lease, employment agreement, or loan agreement, is 
not a binding agreement relating to distribution and liquidation 
proceeds and thus is not a governing provision unless a principal 
purpose of the agreement is to circumvent the one class of stock 
requirement of section 1361(b)(1)(D) and this paragraph (l). Although a 
corporation is not treated as having more than one class of stock so 
long as the governing provisions provide for identical distribution and 
liquidation rights, any distributions (including actual, constructive, 
or deemed distributions) that differ in timing or amount are to be given 
appropriate tax effect in accordance with the facts and circumstances.
    (ii) State law requirements for payment and withholding of income 
tax. State laws may require a corporation to pay or withhold state 
income taxes on behalf of some or all of the corporation's shareholders. 
Such laws are disregarded in determining whether all outstanding shares 
of stock of the corporation confer identical rights to distribution and 
liquidation proceeds, within the meaning of paragraph (l)(1) of this 
section, provided that, when the constructive distributions resulting 
from the payment or withholding of taxes by the corporation are taken 
into account, the outstanding shares confer identical rights to 
distribution and liquidation proceeds. A difference in timing between 
the constructive distributions and the actual distributions to the other 
shareholders does not cause the corporation to be treated as having more 
than one class of stock.
    (iii) Buy-sell and redemption agreements--(A) In general. Buy-sell 
agreements among shareholders, agreements restricting the 
transferability of stock, and redemption agreements are disregarded in 
determining whether a corporation's outstanding shares of stock confer 
identical distribution and liquidation rights unless--
    (1) A principal purpose of the agreement is to circumvent the one 
class of stock requirement of section 1361(b)(1)(D) and this paragraph 
(l), and
    (2) The agreement establishes a purchase price that, at the time the 
agreement is entered into, is significantly in excess of or below the 
fair market value of the stock.

[[Page 717]]


Agreements that provide for the purchase or redemption of stock at book 
value or at a price between fair market value and book value are not 
considered to establish a price that is significantly in excess of or 
below the fair market value of the stock and, thus, are disregarded in 
determining whether the outstanding shares of stock confer identical 
rights. For purposes of this paragraph (l)(2)(iii)(A), a good faith 
determination of fair market value will be respected unless it can be 
shown that the value was substantially in error and the determination of 
the value was not performed with reasonable diligence. Although an 
agreement may be disregarded in determining whether shares of stock 
confer identical distribution and liquidation rights, payments pursuant 
to the agreement may have income or transfer tax consequences.
    (B) Exception for certain agreements. Bona fide agreements to redeem 
or purchase stock at the time of death, divorce, disability, or 
termination of employment are disregarded in determining whether a 
corporation's shares of stock confer identical rights. In addition, if 
stock that is substantially nonvested (within the meaning of Sec. 1.83-
3(b)) is treated as outstanding under these regulations, the forfeiture 
provisions that cause the stock to be substantially nonvested are 
disregarded. Furthermore, the Commissioner may provide by Revenue Ruling 
or other published guidance that other types of bona fide agreements to 
redeem or purchase stock are disregarded.
    (C) Safe harbors for determinations of book value. A determination 
of book value will be respected if--
    (1) The book value is determined in accordance with Generally 
Accepted Accounting Principles (including permitted optional 
adjustments); or
    (2) The book value is used for any substantial nontax purpose.
    (iv) Distributions that take into account varying interests in stock 
during a taxable year. A governing provision does not, within the 
meaning of paragraph (l)(2)(i) of this section, alter the rights to 
liquidation and distribution proceeds conferred by an S corporation's 
stock merely because the governing provision provides that, as a result 
of a change in stock ownership, distributions in a taxable year are to 
be made on the basis of the shareholders' varying interests in the S 
corporation's income in the current or immediately preceding taxable 
year. If distributions pursuant to the provision are not made within a 
reasonable time after the close of the taxable year in which the varying 
interests occur, the distributions may be recharacterized depending on 
the facts and circumstances, but will not result in a second class of 
stock.
    (v) Special rule for section 338(h)(10) elections. If the 
shareholders of an S corporation sell their stock in a transaction for 
which an election is made under section 338(h)(10) and Sec. 
1.338(h)(10)-1, the receipt of varying amounts per share by the 
shareholders will not cause the S corporation to have more than one 
class of stock, provided that the varying amounts are determined in 
arm's length negotiations with the purchaser.
    (vi) Examples. The application of paragraph (l)(2) of this section 
may be illustrated by the following examples. In each of the examples, 
the S corporation requirements of section 1361 are satisfied except as 
otherwise stated, the corporation has in effect an S election under 
section 1362, and the corporation has only the shareholders described.

    Example 1. Determination of whether stock confers identical rights 
to distribution and liquidation proceeds. (i) The law of State A 
requires that permission be obtained from the State Commissioner of 
Corporations before stock may be issued by a corporation. The 
Commissioner grants permission to S, a corporation, to issue its stock 
subject to the restriction that any person who is issued stock in 
exchange for property, and not cash, must waive all rights to receive 
distributions until the shareholders who contributed cash for stock have 
received distributions in the amount of their cash contributions.
    (ii) The condition imposed by the Commissioner pursuant to state law 
alters the rights to distribution and liquidation proceeds conferred by 
the outstanding stock of S so that those rights are not identical. 
Accordingly, under paragraph (l)(2)(i) of this section, S is treated as 
having more than one class of stock and does not qualify as a small 
business corporation.

[[Page 718]]

    Example 2. Distributions that differ in timing. (i) S, a 
corporation, has two equal shareholders, A and B. Under S's bylaws, A 
and B are entitled to equal distributions. S distributes $50,000 to A in 
the current year, but does not distribute $50,000 to B until one year 
later. The circumstances indicate that the difference in timing did not 
occur by reason of a binding agreement relating to distribution or 
liquidation proceeds.
    (ii) Under paragraph (l)(2)(i) of this section, the difference in 
timing of the distributions to A and B does not cause S to be treated as 
having more than one class of stock. However, section 7872 or other 
recharacterization principles may apply to determine the appropriate tax 
consequences.
    Example 3. Treatment of excessive compensation. (i) S, a 
corporation, has two equal shareholders, C and D, who are each employed 
by S and have binding employment agreements with S. The compensation 
paid by S to C under C's employment agreement is reasonable. The 
compensation paid by S to D under D's employment agreement, however, is 
found to be excessive. The facts and circumstances do not reflect that a 
principal purpose to D's employment agreement is to circumvent the one 
class of stock requirement of section 1361(b)(1)(D) and this paragraph 
(l).
    (ii) Under paragraph (l)(2)(i) of this section, the employment 
agreements are not governing provisions. Accordingly, S is not treated 
as having more than one class of stock by reason of the employment 
agreements, even though S is not allowed a deduction for the excessive 
compensation paid to D.
    Example 4. Agreement to pay fringe benefits. (i) S, a corporation, 
is required under binding agreements to pay accident and health 
insurance premiums on behalf of certain of its employees who are also 
shareholders. Different premium amounts are paid by S for each employee-
shareholder. The facts and circumstances do not reflect that a principal 
purpose of the agreements is to circumvent the one class of stock 
requirement of section 1361(b)(1)(D) and this paragraph (l).
    (ii) Under paragraph (l)(2)(i) of this section, the agreements are 
not governing provisions. Accordingly, S is not treated as having more 
than one class of stock by reason of the agreements. In addition, S is 
not treated as having more than one class of stock by reason of the 
payment of fringe benefits.
    Example 5. Below-market corporation-shareholder loan. (i) E is a 
shareholder of S, a corporation. S makes a below-market loan to E that 
is a corporation-shareholder loan to which section 7872 applies. Under 
section 7872, E is deemed to receive a distribution with respect to S 
stock by reason of the loan. The facts and circumstances do not reflect 
that a principal purpose of the loan is to circumvent the one class of 
stock requirement of section 1361(b)(1)(D) and this paragraph (l).
    (ii) Under paragraph (l)(2)(i) of this section, the loan agreement 
is not a governing provision. Accordingly, S is not treated as having 
more than one class of stock by reason of the below-market loan to E.
    Example 6. Agreement to adjust distributions for state tax burdens. 
(i) S, a corporation, executes a binding agreement with its shareholders 
to modify its normal distribution policy by making upward adjustments of 
its distributions to those shareholders who bear heavier state tax 
burdens. The adjustments are based on a formula that will give the 
shareholders equal after-tax distributions.
    (ii) The binding agreement relates to distribution or liquidation 
proceeds. The agreement is thus a governing provision that alters the 
rights conferred by the outstanding stock of S to distribution proceeds 
so that those rights are not identical. Therefore, under paragraph 
(l)(2)(i) of this section, S is treated as having more than one class of 
stock.
    Example 7. State law requirements for payment and withholding of 
income tax. (i) The law of State X requires corporations to pay state 
income taxes on behalf of nonresident shareholders. The law of State X 
does not require corporations to pay state income taxes on behalf of 
resident shareholders. S is incorporated in State X. S's resident 
shareholders have the right (for example, under the law of State X or 
pursuant to S's bylaws or a binding agreement) to distributions that 
take into account the payments S makes on behalf of its nonresident 
shareholders.
    (ii) The payment by S of state income taxes on behalf of its 
nonresident shareholders are generally treated as constructive 
distributions to those shareholders. Because S's resident shareholders 
have the right to equal distributions, taking into account the 
constructive distributions to the nonresident shareholders, S's shares 
confer identical rights to distribution proceeds. Accordingly, under 
paragraph (l)(2)(ii) of this section, the state law requiring S to pay 
state income taxes on behalf of its nonresident shareholders is 
disregarded in determining whether S has more than one class of stock.
    (iii) The same result would follow if the payments of state income 
taxes on behalf of nonresident shareholders are instead treated as 
advances to those shareholders and the governing provisions require the 
advances to be repaid or offset by reductions in distributions to those 
shareholders.
    Example 8. Redemption agreements. (i) F, G, and H are shareholders 
of S, a corporation. F is also an employee of S. By agreement, S is to 
redeem F's shares on the termination of F's employment.
    (ii) On these facts, under paragraph (l)(2)(iii)(B) of this section, 
the agreement is

[[Page 719]]

disregarded in determining whether all outstanding shares of S's stock 
confer identical rights to distribution and liquidation proceeds.
    Example 9. Analysis of redemption agreements. (i) J, K, and L are 
shareholders of S, a corporation. L is also an employee of S. L's shares 
were not issued to L in connection with the performance of services. By 
agreement, S is to redeem L's shares for an amount significantly below 
their fair market value on the termination of L's employment or if S's 
sales fall below certain levels.
    (ii) Under paragraph (l)(2)(iii)(B) of this section, the portion of 
the agreement providing for redemption of L's stock on termination of 
employment is disregarded. Under paragraph (l)(2)(iii)(A), the portion 
of the agreement providing for redemption of L's stock if S's sales fall 
below certain levels is disregarded unless a principal purpose of that 
portion of the agreement is to circumvent the one class of stock 
requirement of section 1361(b)(1)(D) and this paragraph (l).

    (3) Stock taken into account. Except as provided in paragraphs (b) 
(3), (4), and (5) of this section (relating to restricted stock, 
deferred compensation plans, and straight debt), in determining whether 
all outstanding shares of stock confer identical rights to distribution 
and liquidation proceeds, all outstanding shares of stock of a 
corporation are taken into account. For example, substantially nonvested 
stock with respect to which an election under section 83(b) has been 
made is taken into account in determining whether a corporation has a 
second class of stock, and such stock is not treated as a second class 
of stock if the stock confers rights to distribution and liquidation 
proceeds that are identical, within the meaning of paragraph (l)(1) of 
this section, to the rights conferred by the other outstanding shares of 
stock.
    (4) Other instruments, obligations, or arrangements treated as a 
second class of stock--(i) In general. Instruments, obligations, or 
arrangements are not treated as a second class of stock for purposes of 
this paragraph (l) unless they are described in paragraph (l)(5) (ii) or 
(iii) of this section. However, in no event are instruments, 
obligations, or arrangements described in paragraph (b)(4) of this 
section (relating to deferred compensation plans), paragraphs 
(l)(4)(iii) (B) and (C) of this section (relating to the exceptions and 
safe harbor for options), paragraph (l)(4)(ii)(B) of this section 
(relating to the safe harbors for certain short-term unwritten advances 
and proportionally-held debt), or paragraph (l)(5) of this section 
(relating to the safe harbor for straight debt), treated as a second 
class of stock for purposes of this paragraph (l).
    (ii) Instruments, obligations, or arrangements treated as equity 
under general principles--(A) In general. Except as provided in 
paragraph (l)(4)(i) of this section, any instrument, obligation, or 
arrangement issued by a corporation (other than outstanding shares of 
stock described in paragraph (l)(3) of this section), regardless of 
whether designated as debt, is treated as a second class of stock of the 
corporation--
    (1) If the instrument, obligation, or arrangement constituters 
equity or otherwise results in the holder being treated as the owner of 
stock under general principles of Federal tax law; and
    (2) A principal purpose of issuing or entering into the instrument, 
obligation, or arrangement is to circumvent the rights to distribution 
or liquidation proceeds conferred by the outstanding shares of stock or 
to circumvent the limitation on eligible shareholders contained in 
paragraph (b)(1) of this section.
    (B) Safe harbor for certain short-term unwritten advances and 
proportionately held obligations--(1) Short-term unwritten advances. 
Unwritten advances from a shareholder that do not exceed $10,000 in the 
aggregate at any time during the taxable year of the corporation, are 
treated as debt by the parties, and are expected to be repaid within a 
reasonable time are not treated as a second class of stock for that 
taxable year, even if the advances are considered equity under general 
principles of Federal tax law. The failure of an unwritten advance to 
meet this safe harbor will not result in a second class of stock unless 
the advance is considered equity under paragraph (l)(4)(ii)(A)(1) of 
this section and a principal purpose of the advance is to circumvent the 
rights of the outstanding shares of stock or the limitation on eligible 
shareholders under paragraph (l)(4)(ii)(A)(2) of this section.
    (2) Proportionately-held obligations. Obligations of the same class 
that are

[[Page 720]]

considered equity under general principles of Federal tax law, but are 
owned solely by the owners of, and in the same proportion as, the 
outstanding stock of the corporation, are not treated as a second class 
of stock. Furthermore, an obligation or obligations owned by the sole 
shareholder of a corporation are always held proportionately to the 
corporation's outstanding stock. The obligations that are considered 
equity that do not meet this safe harbor will not result in a second 
class of stock unless a principal purpose of the obligations is to 
circumvent the rights of the outstanding shares of stock or the 
limitation on eligible shareholders under paragraph (l)(4)(ii)(A)(2) of 
this section.
    (iii) Certain call options, warrants or similar instruments--(A) In 
general. Except as otherwise provided in this paragraph (l)(4)(iii), a 
call option, warrant, or similar instrument (collectively, call option) 
issued by a corporation is treated as a second class of stock of the 
corporation if, taking into account all the facts and circumstances, the 
call option is substantially certain to be exercised (by the holder or a 
potential transferee) and has a strike price substantially below the 
fair market value of the underlying stock on the date that the call 
option is issued, transferred by a person who is an eligible shareholder 
under paragraph (b)(1) of this section to a person who is not an 
eligible shareholder under paragraph (b)(1) of this section, or 
materially modified. For purposes of this paragraph (l)(4)(iii), if an 
option is issued in connection with a loan and the time period in which 
the option can be exercised is extended in connection with (and 
consistent with) a modification of the terms of the loan, the extension 
of the time period in which the option may be exercised is not 
considered a material modification. In addition, a call option does not 
have a strike price substantially below fair market value if the price 
at the time of exercise cannot, pursuant to the terms of the instrument, 
be substantially below the fair market value of the underlying stock at 
the time of exercise.
    (B) Certain exceptions. (1) A call option is not treated as a second 
class of stock for purposes of this paragraph (l) if it is issued to a 
person that is actively and regularly engaged in the business of lending 
and issued in connection with a commercially reasonable loan to the 
corporation. This paragraph (l)(4)(iii)(B)(1) continues to apply if the 
call option is transferred with the loan (or if a portion of the call 
option is transferred with a corresponding portion of the loan). 
However, if the call option is transferred without a corresponding 
portion of the loan, this paragraph (l)(4)(iii)(B)(1) ceases to apply. 
Upon that transfer, the call option is tested under paragraph 
(l)(4)(iii)(A) (notwithstanding anything in that paragraph to the 
contrary) if, but for this paragraph, the call option would have been 
treated as a second class of stock on the date it was issued.
    (2) A call option that is issued to an individual who is either an 
employee or an independent contractor in connection with the performance 
of services for the corporation or a related corporation (and that is 
not excessive by reference to the services performed) is not treated as 
a second class of stock for purposes of this paragraph (l) if--
    (i) The call option is nontransferable within the meaning of Sec. 
1.83-3(d); and
    (ii) The call option does not have a readily ascertainable fair 
market value as defined in Sec. 1.83-7(b) at the time the option is 
issued.

If the call option becomes transferable, this paragraph 
(l)(4)(iii)(B)(2) ceases to apply. Solely for purposes of this paragraph 
(l)(4)(iii)(B)(2), a corporation is related to the issuing corporation 
if more than 50 percent of the total voting power and total value of its 
stock is owned by the issuing corporation.
    (3) The Commissioner may provide other exceptions by Revenue Ruling 
or other published guidance.
    (C) Safe harbor for certain options. A call option is not treated as 
a second class of stock if, on the date the call option is issued, 
transferred by a person who is an eligible shareholder under paragraph 
(b)(1) of this section to a person who is not an eligible shareholder 
under paragraph (b)(1) of this section, or materially modified, the 
strike price of the call option is at least 90 percent of the fair 
market value of the underlying stock on that date. For purposes of this 
paragraph

[[Page 721]]

(l)(4)(iii)(C), a good faith determination of fair market value by the 
corporation will be respected unless it can be shown that the value was 
substantially in error and the determination of the value was not 
performed with reasonable diligence to obtain a fair value. Failure of 
an option to meet this safe harbor will not necessarily result in the 
option being treated as a second class of stock.
    (iv) Convertible debt. A convertible debt instrument is considered a 
second class of stock if--
    (A) It would be treated as a second class of stock under paragraph 
(l)(4)(ii) of this section (relating to instruments, obligations, or 
arrangements treated as equity under general principles); or
    (B) It embodies rights equivalent to those of a call option that 
would be treated as a second class of stock under paragraph (l)(4)(iii) 
of this section (relating to certain call options, warrants, and similar 
instruments).
    (v) Examples. The application of this paragraph (l)(4) may be 
illustrated by the following examples. In each of the examples, the S 
corporation requirements of section 1361 are satisfied except as 
otherwise stated, the corporation has in effect an S election under 
section 1362, and the corporation has only the shareholders described.

    Example 1. Transfer of call option by eligible shareholder to 
ineligible shareholder. (i) S, a corporation, has 10 shareholders. S 
issues call options to A, B, and C, individuals who are U.S. residents. 
A, B, and C are not shareholders, employees, or independent contractors 
of S. The options have a strike price of $40 and are issued on a date 
when the fair market value of S stock is also $40. A year later, P, a 
partnership, purchases A's option. On the date of transfer, the fair 
market value of S stock is $80.
    (ii) On the date the call option is issued, its strike price is not 
substantially below the fair market value of the S stock. Under 
paragraph (l)(4)(iii)(A) of this section, whether a call option is a 
second class of stock must be redetermined if the call option is 
transferred by a person who is an eligible shareholder under paragraph 
(b)(1) of this section to a person who is not an eligible shareholder 
under paragraph (b)(1) of this section. In this case, A is an eligible 
shareholder of S under paragraph (b)(1) of this section, but P is not. 
Accordingly, the option is retested on the date it is transferred to D.
    (iii) Because on the date the call option is transferred to P its 
strike price is 50% of the fair market value, the strike price is 
substantially below the fair market value of the S stock. Accordingly, 
the call option is treated as a second class of stock as of the date it 
is transferred to P if, at that time, it is determined that the option 
is substantially certain to be exercised. The determination of whether 
the option is substantially certain to be exercised is made on the basis 
of all the facts and circumstances.
    Example 2. Call option issued in connection with the performance of 
services. (i) E is a bona fide employee of S, a corporation. S issues to 
E a call option in connection with E's performance of services. At the 
time the call option is issued, it is not transferable and does not have 
a readily ascertainable fair market value. However, the call option 
becomes transferable before it is exercised by E.
    (ii) While the option is not transferable, under paragraph 
(l)(4)(iii)(B)(2) of this section, it is not treated as a second class 
of stock, regardless of its strike price. When the option becomes 
transferable, that paragraph ceases to apply, and the general rule of 
paragraph (l)(4)(iii)(A) of this section applies. Accordingly, if the 
option is materially modified or is transferred to a person who is not 
an eligible shareholder under paragraph (b)(1) of this section, and on 
the date of such modification or transfer, the option is substantially 
certain to be exercised and has a strike price substantially below the 
fair market value of the underlying stock, the option is treated as a 
second class of stock.
    (iii) If E left S's employment before the option became 
transferable, the exception provided by paragraph (l)(4)(iii)(B)(2) 
would continue to apply until the option became transferable.

    (5) Straight debt safe harbor--(i) In general. Notwithstanding 
paragraph (l)(4) of this section, straight debt is not treated as a 
second class of stock. For purposes of section 1361(c)(5) and this 
section, the term straight debt means a written unconditional 
obligation, regardless of whether embodied in a formal note, to pay a 
sum certain on demand, or on a specified due date, which--
    (A) Does not provide for an interest rate or payment dates that are 
contingent on profits, the borrower's discretion, the payment of 
dividends with respect to common stock, or similar factors;
    (B) Is not convertible (directly or indirectly) into stock or any 
other equity interest of the S corporation; and

[[Page 722]]

    (C) Is held by an individual (other than a nonresident alien), an 
estate, or a trust described in section 1361(c)(2).
    (ii) Subordination. The fact that an obligation is subordinated to 
other debt of the corporation does not prevent the obligation from 
qualifying as straight debt.
    (iii) Modification or transfer. An obligation that originally 
qualifies as straight debt ceases to so qualify if the obligation--
    (A) Is materially modified so that it no longer satisfies the 
definition of straight debt; or
    (B) Is transferred to a third party who is not an eligible 
shareholder under paragraph (b)(1) of this section.
    (iv) Treatment of straight debt for other purposes. An obligation of 
an S corporation that satisfies the definition of straight debt in 
paragraph (l)(5)(i) of this section is not treated as a second class of 
stock even if it is considered equity under general principles of 
Federal tax law. Such an obligation is generally treated as debt and 
when so treated is subject to the applicable rules governing 
indebtedness for other purposes of the Code. Accordingly, interest paid 
or accrued with respect to a straight debt obligation is generally 
treated as interest by the corporation and the recipient and does not 
constitute a distribution to which section 1368 applies. However, if a 
straight debt obligation bears a rate of interest that is unreasonably 
high, an appropriate portion of the interest may be recharacterized and 
treated as a payment that is not interest. Such a recharacterization 
does not result in a second class of stock.
    (v) Treatment of C corporation debt upon conversion to S status. If 
a C corporation has outstanding an obligation that satisfies the 
definition of straight debt in paragraph (l)(5)(i) of this section, but 
that is considered equity under general principles of Federal tax law, 
the obligation is not treated as a second class of stock for purposes of 
this section if the C corporation converts to S status. In addition, the 
conversion from C corporation status to S corporation status is not 
treated as an exchange of debt for stock with respect to such an 
instrument.
    (6) Inadvertent terminations. See section 1362(f) and the 
regulations thereunder for rules relating to inadvertent terminations in 
cases where the one class of stock requirement has been inadvertently 
breached.
    (7) Effective date. Section 1.1361-1(l) generally applies to taxable 
years of a corporation beginning on or after May 28, 1992. However, 
Sec. 1.1361-1(l) does not apply to: an instrument, obligation, or 
arrangement issued or entered into before May 28, 1992, and not 
materially modified after that date; a buy-sell agreement, redemption 
agreement, or agreement restricting transferability entered into before 
May 28, 1992, and not materially modified after that date; or a call 
option or similar instrument issued before May 28, 1992, and not 
materially modified after that date. In addition, a corporation and its 
shareholders may apply this Sec. 1.1361-1(l) to prior taxable years.
    (m) Electing small business trust (ESBT)--(1) Definition--(i) 
General rule. An electing small business trust (ESBT) means any trust if 
it meets the following requirements: the trust does not have as a 
beneficiary any person other than an individual, an estate, an 
organization described in section 170(c)(2) through (5), or an 
organization described in section 170(c)(1) that holds a contingent 
interest in such trust and is not a potential current beneficiary; no 
interest in the trust has been acquired by purchase; and the trustee of 
the trust makes a timely ESBT election for the trust.
    (ii) Qualified beneficiaries--(A) In general. For purposes of this 
section, a beneficiary includes a person who has a present, remainder, 
or reversionary interest in the trust.
    (B) Distributee trusts. A distributee trust is the beneficiary of 
the ESBT only if the distributee trust is an organization described in 
section 170(c)(2) or (3). In all other situations, any person who has a 
beneficial interest in a distributee trust is a beneficiary of the ESBT. 
A distributee trust is a trust that receives or may receive a 
distribution from an ESBT, whether the rights to receive the 
distribution are fixed or contingent, or immediate or deferred.
    (C) Powers of appointment. A person in whose favor a power of 
appointment

[[Page 723]]

could be exercised is not a beneficiary of an ESBT until the holder of 
the power of appointment actually exercises the power in favor of such 
person.
    (D) Nonresident aliens. A nonresident alien as defined in section 
7701(b)(1)(B) is an eligible beneficiary of an ESBT. However, see 
paragraph (m)(4)(i) and (m)(5)(iii) of this section if the nonresident 
alien is a potential current beneficiary of the ESBT (which would result 
in an ineligible shareholder and termination of the S corporation 
election).
    (iii) Interests acquired by purchase. A trust does not qualify as an 
ESBT if any interest in the trust has been acquired by purchase. 
Generally, if a person acquires an interest in the trust and thereby 
becomes a beneficiary of the trust as defined in paragraph 
(m)(1)(ii)(A), and any portion of the basis in the acquired interest in 
the trust is determined under section 1012, such interest has been 
acquired by purchase. This includes a net gift of a beneficial interest 
in the trust, in which the person acquiring the beneficial interest pays 
the gift tax. The trust itself may acquire S corporation stock or other 
property by purchase or in a part-gift, part-sale transaction.
    (iv) Ineligible trusts. An ESBT does not include--
    (A) Any qualified subchapter S trust (as defined in section 
1361(d)(3)) if an election under section 1361(d)(2) applies with respect 
to any corporation the stock of which is held by the trust;
    (B) Any trust exempt from tax or not subject to tax under subtitle 
A; or
    (C) Any charitable remainder annuity trust or charitable remainder 
unitrust (as defined in section 664(d)).
    (2) ESBT election--(i) In general. The trustee of the trust must 
make the ESBT election by signing and filing, with the service center 
where the S corporation files its income tax return, a statement that 
meets the requirements of paragraph (m)(2)(ii) of this section. If there 
is more than one trustee, the trustee or trustees with authority to 
legally bind the trust must sign the election statement. If any one of 
several trustees can legally bind the trust, only one trustee needs to 
sign the election statement. Generally, only one ESBT election is made 
for the trust, regardless of the number of S corporations whose stock is 
held by the ESBT. However, if the ESBT holds stock in multiple S 
corporations that file in different service centers, the ESBT election 
must be filed with all the relevant service centers where the 
corporations file their income tax returns. This requirement applies 
only at the time of the initial ESBT election; if the ESBT later 
acquires stock in an S corporation which files its income tax return at 
a different service center, a new ESBT election is not required.
    (ii) Election statement. The election statement must include--
    (A) The name, address, and taxpayer identification number of the 
trust, the potential current beneficiaries, and the S corporations in 
which the trust currently owns stock;
    (B) An identification of the election as an ESBT election made under 
section 1361(e)(3);
    (C) The first date on which the trust owned stock in each S 
corporation;
    (D) The date on which the election is to become effective (not 
earlier than 15 days and two months before the date on which the 
election is filed); and
    (E) Representations signed by the trustee stating that--
    (1) The trust meets the definitional requirements of section 
1361(e)(1); and
    (2) All potential current beneficiaries of the trust meet the 
shareholder requirements of section 1361(b)(1).
    (iii) Due date for ESBT election. The ESBT election must be filed 
within the time requirements prescribed in paragraph (j)(6)(iii) of this 
section for filing a qualified subchapter S trust (QSST) election.
    (iv) Election by a trust described in section 1361(c)(2)(A)(ii) or 
(iii). A trust that is a qualified S corporation shareholder under 
section 1361(c)(2)(A)(ii) or (iii) may elect ESBT treatment at any time 
during the 2-year period described in those sections or the 16-day-and-
2-month period beginning on the date after the end of the 2-year period. 
If the trust makes an ineffective ESBT election, the trust will continue 
nevertheless to qualify as an eligible S corporation shareholder for the 
remainder of the period described in section 1361(c)(2)(A)(ii) or (iii).

[[Page 724]]

    (v) No protective election. A trust cannot make a conditional ESBT 
election that would be effective only in the event the trust fails to 
meet the requirements for an eligible trust described in section 
1361(c)(2)(A)(i) through (iv). If a trust attempts to make such a 
conditional ESBT election and it fails to qualify as an eligible S 
corporation shareholder under section 1361(c)(2)(A)(i) through (iv), the 
S corporation election will be ineffective or will terminate because the 
corporation will have an ineligible shareholder. Relief may be available 
under section 1362(f) for an inadvertent ineffective S corporation 
election or an inadvertent S corporation election termination. In 
addition, a trust that qualifies as an ESBT may make an ESBT election 
notwithstanding that the trust is a wholly-owned grantor trust.
    (3) Effect of ESBT election--(i) General rule. If a trust makes a 
valid ESBT election, the trust will be treated as an ESBT for purposes 
of chapter 1 of the Internal Revenue Code as of the effective date of 
the ESBT election.
    (ii) Employer Identification Number. An ESBT has only one employer 
identification number (EIN). If an existing trust makes an ESBT 
election, the trust continues to use the EIN it currently uses.
    (iii) Taxable year. If an ESBT election is effective on a day other 
than the first day of the trust's taxable year, the ESBT election does 
not cause the trust's taxable year to close. The termination of the ESBT 
election (including a termination caused by a conversion of the ESBT to 
a QSST) other than on the last day of the trust's taxable year also does 
not cause the trust's taxable year to close. In either case, the trust 
files one tax return for the taxable year.
    (iv) Allocation of S corporation items. If, during the taxable year 
of an S corporation, a trust is an ESBT for part of the year and an 
eligible shareholder under section 1361(c)(2)(A)(i) through (iv) for the 
rest of the year, the S corporation items are allocated between the two 
types of trusts under section 1377(a). See Sec. 1.1377-1(a)(2)(iii).
    (v) Estimated taxes. If an ESBT election is effective on a day other 
than the first day of the trust's taxable year, the trust is considered 
one trust for purposes of estimated taxes under section 6654.
    (4) Potential current beneficiaries--(i) In general. For purposes of 
determining whether a corporation is a small business corporation within 
the meaning of section 1361(b)(1), each potential current beneficiary of 
an ESBT generally is treated as a shareholder of the corporation. 
Subject to the provisions of this paragraph (m)(4), a potential current 
beneficiary generally is, with respect to any period, any person who at 
any time during such period is entitled to, or in the discretion of any 
person may receive, a distribution from the principal or income of the 
trust. A person is treated as a shareholder of the S corporation at any 
moment in time when that person is entitled to, or in the discretion of 
any person may, receive a distribution of principal or income of the 
trust. No person is treated as a potential current beneficiary solely 
because that person holds any future interest in the trust.
    (ii) Grantor trusts. If all or a portion of an ESBT is treated as 
owned by a person under subpart E, part I, subchapter J, chapter 1 of 
the Internal Revenue Code, such owner is a potential current beneficiary 
in addition to persons described in paragraph (m)(4)(i) of this section.
    (iii) Special rule for dispositions of stock. Notwithstanding the 
provisions of paragraph (m)(4)(i) of this section, if a trust disposes 
of all of its S corporation stock, any person who first met the 
definition of a potential current beneficiary during the 60-day period 
ending on the date of such disposition is not a potential current 
beneficiary and thus is not a shareholder of that corporation.
    (iv) Distributee trusts--(A) In general. This paragraph (m)(4)(iv) 
contains the rules for determining who are the potential current 
beneficiaries of an ESBT if a distributee trust becomes entitled to, or 
at the discretion of any person, may receive a distribution from 
principal or income of an ESBT. A distributee trust does not include a 
trust that is not currently in existence. For this purpose, a trust is 
not currently in existence if the trust has no assets and no items of 
income, loss, deduction, or

[[Page 725]]

credit. Thus, if a trust instrument provides for a trust to be funded at 
some future time, the future trust is not currently a distributee trust.
    (B) If the distributee trust is not a trust described in section 
1361(c)(2)(A), then the distributee trust is the potential current 
beneficiary of the ESBT and the corporation's S corporation election 
terminates.
    (C) If the distributee trust is a trust described in section 
1361(c)(2)(A), the persons who would be its potential current 
beneficiaries (as defined in paragraphs (m)(4)(i) and (ii) of this 
section) if the distributee trust were an ESBT are treated as the 
potential current beneficiaries of the ESBT. Notwithstanding the 
preceding sentence, however, if the distributee trust is a trust 
described in section 1361(c)(2)(A)(ii) or (iii), the estate described in 
section 1361(c)(2)(B) (ii) or (iii) is treated as the potential current 
beneficiary of the ESBT for the 2-year period during which such trust 
would be permitted as a shareholder.
    (D) For the purposes of paragraph (m)(4)(iv)(C) of this section, a 
trust will be deemed to be described in section 1361(c)(2)(A) if such 
trust would qualify for a QSST election under section 1361(d) or an ESBT 
election under section 1361(e) if it owned S corporation stock.
    (v) Contingent distributions. A person who is entitled to receive a 
distribution only after a specified time or upon the occurrence of a 
specified event (such as the death of the holder of a power of 
appointment) is not a potential current beneficiary until such time or 
the occurrence of such event.
    (vi) Currently exercisable powers of appointment--(A) In general. A 
person to whom a distribution is or may be made during a period pursuant 
to a power of appointment is a potential current beneficiary. Thus, if 
any person has a lifetime power of appointment that would permit 
distributions from the trust to be made to more than 75 persons, the 
corporation's S corporation election will terminate because the number 
of potential current beneficiaries will exceed the 75-shareholder limit 
of section 1361(b)(1)(A). Also, the S corporation election will 
terminate if the currently exercisable power of appointment allows 
distributions to be made to an ineligible shareholder as defined in 
section 1361(b)(1)(B) and (C).
    (B) Waiver or release. If the holder of a power of appointment 
permanently releases the power in a manner that is valid under 
applicable local law, the persons that would be potential current 
beneficiaries solely because of the power will not be potential current 
beneficiaries after the effective date of the release. An attempt to 
temporarily waive, release, or limit a currently exercisable power of 
appointment will be ignored in determining who are potential current 
beneficiaries of the trust.
    (vii) Number of shareholders. Each potential current beneficiary of 
the ESBT, as defined in paragraphs (m)(4)(i) through (vi) of this 
section, is counted as a shareholder of any S corporation whose stock is 
owned by the ESBT. During any period in which the ESBT has no potential 
current beneficiaries, the ESBT is counted as the shareholder. A person 
is counted as only one shareholder of an S corporation even though that 
person may be treated as a shareholder of the S corporation by direct 
ownership and through one or more eligible trusts described in section 
1361(c)(2)(A). Thus, for example, if a person owns stock in an S 
corporation and is a potential current beneficiary of an ESBT that owns 
stock in the same S corporation, that person is counted as one 
shareholder of the S corporation. Similarly, if a husband owns stock in 
an S corporation and his wife is a potential current beneficiary of an 
ESBT that owns stock in the same S corporation, the husband and wife 
will be counted as one shareholder of the S corporation.
    (viii) Miscellaneous. Payments made by an ESBT to a third party on 
behalf of a beneficiary are considered to be payments made directly to 
the beneficiary. The right of a beneficiary to assign the beneficiary's 
interest to a third party does not result in the third party being a 
potential current beneficiary until that interest is actually assigned.
    (5) ESBT terminations--(i) Ceasing to meet ESBT requirements. A 
trust ceases to be an ESBT on the first day the trust fails to meet the 
definition of an ESBT under section 1361(e). The last

[[Page 726]]

day the trust is treated as an ESBT is the day before the date on which 
the trust fails to meet the definition of an ESBT.
    (ii) Disposition of S stock. In general, a trust ceases to be an 
ESBT on the first day following the day the trust disposes of all S 
corporation stock. However, if the trust is using the installment method 
to report income from the sale or disposition of its stock in an S 
corporation, the trust ceases to be an ESBT on the day following the 
earlier of the day the last installment payment is received by the trust 
or the day the trust disposes of the installment obligation.
    (iii) Potential current beneficiaries that are ineligible 
shareholders. If a potential current beneficiary of an ESBT is not an 
eligible shareholder of a small business corporation within the meaning 
of section 1361(b)(1), the S corporation election terminates. For 
example, the S corporation election will terminate if a nonresident 
alien becomes a potential current beneficiary of an ESBT. Such a 
potential current beneficiary is treated as an ineligible shareholder 
beginning on the day such person becomes a potential current 
beneficiary, and the S corporation election terminates on that date. 
However, see the special rule of paragraph (m)(4)(iii) of this section. 
If the S corporation election terminates, relief may be available under 
section 1362(f).
    (6) Revocation of ESBT election. An ESBT election may be revoked 
only with the consent of the Commissioner. The application for consent 
to revoke the election must be submitted to the Internal Revenue Service 
in the form of a letter ruling request under the appropriate revenue 
procedure.
    (7) Converting an ESBT to a QSST. For a trust that seeks to convert 
from an ESBT to a QSST, the consent of the Commissioner is hereby 
granted to revoke the ESBT election as of the effective date of the QSST 
election, if all the following requirements are met:
    (i) The trust meets all of the requirements to be a QSST under 
section 1361(d).
    (ii) The trustee and the current income beneficiary of the trust 
sign the QSST election. The QSST election must be filed with the service 
center where the S corporation files its income tax return. This QSST 
election must state at the top of the document ``ATTENTION ENTITY 
CONTROL--CONVERSION OF AN ESBT TO A QSST PURSUANT TO SECTION 1.1361-
1(m)'' and include all information otherwise required for a QSST 
election under Sec. 1.1361-1(j)(6). A separate QSST election must be 
made with respect to the stock of each S corporation held by the trust.
    (iii) The trust has not converted from a QSST to an ESBT within the 
36-month period preceding the effective date of the new QSST election.
    (iv) The date on which the QSST election is to be effective cannot 
be more than 15 days and two months prior to the date on which the 
election is filed and cannot be more than 12 months after the date on 
which the election is filed. If an election specifies an effective date 
more than 15 days and two months prior to the date on which the election 
is filed, it will be effective on the day that is 15 days and two months 
prior to the date on which it is filed. If an election specifies an 
effective date more than 12 months after the date on which the election 
is filed, it will be effective on the day that is 12 months after the 
date it is filed.
    (8) Examples. The provisions of this paragraph (m) are illustrated 
by the following examples in which it is assumed, unless otherwise 
specified, that all noncorporate persons are citizens or residents of 
the United States:

    Example 1. (i) ESBT election with section 663(c) separate shares. On 
January 1, 2003, M contributes S corporation stock to Trust for the 
benefit of M's three children A, B, and C. Pursuant to section 663(c), 
each of Trust's separate shares for A, B, and C will be treated as 
separate trusts for purposes of determining the amount of distributable 
net income (DNI) in the application of sections 661 and 662. On January 
15, 2003, the trustee of Trust files a valid ESBT election for Trust 
effective January 1, 2003. Trust will be treated as a single ESBT and 
will have a single S portion taxable under section 641(c).
    (ii) ESBT acquires stock of an additional S corporation. On February 
15, 2003, Trust acquires stock of an additional S corporation. Because 
Trust is already an ESBT, Trust does not need to make an additional ESBT 
election.
    (iii) Section 663(c) shares of ESBT convert to separate QSSTs. 
Effective January 1, 2004, A,

[[Page 727]]

B, C, and Trust's trustee elect to convert each separate share of Trust 
into a separate QSST pursuant to paragraph (m)(7) of this section. For 
each separate share, they file a separate election for each S 
corporation whose stock is held by Trust. Each separate share will be 
treated as a separate QSST.
    Example 2. (i) Invalid potential current beneficiary. Effective 
January 1, 2003, Trust makes a valid ESBT election. On January 1, 2004, 
A, a nonresident alien, becomes a potential current beneficiary of 
Trust. Trust does not dispose of all of its S corporation stock within 
60 days after January 1, 2004. As of January 1, 2004, A is a potential 
current beneficiary of Trust and therefore is treated as a shareholder 
of the S corporation. Because A is not an eligible shareholder of an S 
corporation under section 1361(b)(1), the S corporation election of any 
corporation in which Trust holds stock terminates effective January 1, 
2004. Relief may be available under section 1362(f).
    (ii) Invalid potential current beneficiary and disposition of S 
stock. Assume the same facts as in Example 2 (i) except that within 60 
days after January 1, 2004, trustee of Trust disposes of all Trust's S 
corporation stock. A is not considered a potential current beneficiary 
of Trust and therefore is not treated as a shareholder of any S 
corporation in which Trust previously held stock.
    Example 3. Subpart E trust. M transfers stock in X, an S 
corporation, and other assets to Trust for the benefit of B and B's 
siblings. M retains no powers or interest in Trust. Under section 
678(a), B is treated as the owner of a portion of Trust that includes a 
portion of the X stock. No beneficiary has acquired any portion of his 
or her interest in Trust by purchase, and Trust is not an ineligible 
trust under paragraph (m)(1)(iv) of this section. Trust is eligible to 
make an ESBT election.
    Example 4. Subpart E trust continuing after grantor's death. On 
January 1, 2003, M transfers stock in X, an S corporation, and other 
assets to Trust. Under the terms of Trust, the trustee of Trust has 
complete discretion to distribute the income or principal to M during 
M's lifetime and to M's children upon M's death. During M's life, M is 
treated as the owner of Trust under section 677. The trustee of Trust 
makes a valid election to treat Trust as an ESBT effective January 1, 
2003. On March 28, 2004, M dies. Under applicable local law, Trust does 
not terminate on M's death. Trust continues to be an ESBT after M's 
death, and no additional ESBT election needs to be filed for Trust after 
M's death.
    Example 5. Potential current beneficiaries and distributee trust 
holding S corporation stock. Trust-1 has a valid ESBT election in 
effect. The trustee of Trust-1 has the power to make distributions to A 
directly or to any trust created for the benefit of A. On January 1, 
2003, M creates Trust-2 for the benefit of A. Also on January 1, 2003, 
the trustee of Trust-1 distributes some S corporation stock to Trust-2. 
A, as the current income beneficiary of Trust-2, makes a timely and 
effective election to treat Trust-2 as a QSST. Because Trust-2 is a 
valid S corporation shareholder, the distribution to Trust-2 does not 
terminate the ESBT election of Trust-1. Trust-2 itself will not be 
counted toward the 75-shareholder limit of section 1361(b)(1)(A). 
Additionally, because A is already counted as an S corporation 
shareholder because of A's status as a potential current income 
beneficiary of Trust-1, A is not counted again by reason of A's status 
as the deemed owner of Trust-2.
    Example 6. Potential current beneficiaries and distributee trust not 
holding S corporation stock. (i) Distributee trust that would itself 
qualify as an ESBT. Trust-1 holds stock in X, an S corporation, and has 
a valid ESBT election in effect. Under the terms of Trust-1, the trustee 
has discretion to make distributions to A, B, and Trust-2, a trust for 
the benefit of C, D, and E. Trust-2 would qualify to be an ESBT, but it 
owns no S corporation stock and has made no ESBT election. Under 
paragraph (m)(4)(iv) of this section, Trust-2's potential current 
beneficiaries are treated as the potential current beneficiaries of 
Trust-1 and are counted as shareholders for purposes of section 
1361(b)(1). Thus, A, B, C, D, and E are potential current beneficiaries 
of Trust-1 and are counted as shareholders for purposes of section 
1361(b)(1). Trust-2 itself will not be counted as a shareholder of 
Trust-1 for purposes of section 1361(b)(1).
    (ii) Distributee trust that would not qualify as an ESBT or a QSST. 
Assume the same facts as in paragraph (i) of this Example 6 except that 
D is a nonresident alien. Trust-2 would not be eligible to make an ESBT 
or QSST election if it owned S corporation stock and therefore Trust-2 
is a potential current beneficiary of Trust-1. Since Trust-2 is not an 
eligible shareholder, X's S corporation election terminates.
    (iii) Distributee trust that is a section 1361(c)(2)(A)(ii) trust. 
Assume the same facts as in paragraph (i) of this Example 6 except that 
Trust-2 is a trust treated as owned by A under section 676 because A has 
the power to revoke Trust-2 at any time prior to A's death. On January 
1, 2003, A dies. Because Trust-2 is a trust described in section 
1361(c)(2)(A)(ii) during the 2-year period beginning on the day of A's 
death, under paragraph (m)(4)(iv)(C) of this section, Trust-2's only 
potential current beneficiary is the person listed in section 
1361(c)(2)(B)(ii), A's estate. Thus, B and A's estate are potential 
current beneficiaries of Trust-1 and are counted as shareholders for 
purposes of section 1361(b)(1).
    Example 7. Potential current beneficiaries and powers of 
appointment. M creates Trust

[[Page 728]]

for the benefit of A. A also has a currently exercisable power to 
appoint income or principal to anyone except A, A's creditors, A's 
estate, and the creditors of A's estate. The potential current 
beneficiaries of Trust will be A and all other persons except for A's 
creditors, A's estate, and the creditors of A's estate. This number will 
exceed the 75-shareholder limit of section 1361(b)(1)(A). If Trust holds 
S corporation stock, the corporation's S election will terminate.

    (9) Effective date. This paragraph (m) is applicable for taxable 
years of ESBTs beginning on and after May 14, 2002.

[T.D. 8419, 57 FR 22649, May 29, 1992; 57 FR 28613, June 26, 1992, as 
amended by T.D. 8600, 60 FR 37581, July 21, 1995; 60 FR 49976, Sept. 27, 
1995; 60 FR 58234, Nov. 27, 1995; 61 FR 2869, Jan. 29, 1996; T.D. 8869, 
65 FR 3849, Jan. 25, 2000; T.D. 8940, 66 FR 9929, 9957, Feb. 13, 2001; 
T.D. 8994, 67 FR 34397, May 14, 2002; T.D. 9078, 68 FR 42252, July 17, 
2003]



Sec. 1.1361-2  Definitions relating to S corporation subsidiaries.

    (a) In general. The term qualified subchapter S subsidiary (QSub) 
means any domestic corporation that is not an ineligible corporation (as 
defined in section 1361(b)(2) and the regulations thereunder), if--
    (1) 100 percent of the stock of such corporation is held by an S 
corporation; and
    (2) The S corporation properly elects to treat the subsidiary as a 
QSub under Sec. 1.1361-3.
    (b) Stock treated as held by S corporation. For purposes of 
satisfying the 100 percent stock ownership requirement in section 
1361(b)(3)(B)(i) and paragraph (a)(1) of this section--
    (1) Stock of a corporation is treated as held by an S corporation if 
the S corporation is the owner of that stock for Federal income tax 
purposes; and
    (2) Any outstanding instruments, obligations, or arrangements of the 
corporation which would not be considered stock for purposes of section 
1361(b)(1)(D) if the corporation were an S corporation are not treated 
as outstanding stock of the QSub.
    (c) Straight debt safe harbor. Section 1.1361-1(l)(5)(iv) and (v) 
apply to an obligation of a corporation for which a QSub election is 
made if that obligation would satisfy the definition of straight debt in 
Sec. 1.1361-1(l)(5) if issued by the S corporation.
    (d) Examples. The following examples illustrate the application of 
this section:

    Example 1. X, an S corporation, owns 100 percent of Y, a corporation 
for which a valid QSub election is in effect for the taxable year. Y 
owns 100 percent of Z, a corporation otherwise eligible for QSub status. 
X may elect to treat Z as a QSub under section 1361(b)(3)(B)(ii).
    Example 2. Assume the same facts as in Example 1, except that Y is a 
business entity that is disregarded as an entity separate from its owner 
under Sec. 301.7701-2(c)(2) of this chapter. X may elect to treat Z as 
a QSub.
    Example 3. Assume the same facts as in Example 1, except that Y owns 
50 percent of Z, and X owns the other 50 percent. X may elect to treat Z 
as a QSub.
    Example 4. Assume the same facts as in Example 1, except that Y is a 
C corporation. Although Y is a domestic corporation that is otherwise 
eligible to be a QSub, no QSub election has been made for Y. Thus, X is 
not treated as holding the stock of Z. Consequently, X may not elect to 
treat Z as a QSub.
    Example 5. Individuals A and B own 100 percent of the stock of 
corporation X, an S corporation, and, except for C's interest (described 
below), X owns 100 percent of corporation Y, a C corporation. Individual 
C holds an instrument issued by Y that is considered to be equity under 
general principles of tax law but would satisfy the definition of 
straight debt under Sec. 1.1361-1(l)(5) if Y were an S corporation. In 
determining whether X owns 100 percent of Y for purposes of making the 
QSub election, the instrument held by C is not considered outstanding 
stock. In addition, under Sec. 1.1361-1(l)(5)(v), the QSub election is 
not treated as an exchange of debt for stock with respect to such 
instrument, and Sec. 1.1361-1(l)(5)(iv) applies to determine the tax 
treatment of payments on the instrument while Y's QSub election is in 
effect.

[T.D. 8869, 65 FR 3849, Jan. 25, 2000]



Sec. 1.1361-3  QSub election.

    (a) Time and manner of making election--(1) In general. The 
corporation for which the QSub election is made must meet all the 
requirements of section 1361(b)(3)(B) at the time the election is made 
and for all periods for which the election is to be effective.
    (2) Manner of making election. Except as provided in section 
1361(b)(3)(D) and Sec. 1.1361-5(c) (five-year prohibition on re-
election), an S corporation may elect to treat an eligible subsidiary as 
a

[[Page 729]]

QSub by filing a completed form to be prescribed by the IRS. The 
election form must be signed by a person authorized to sign the S 
corporation's return required to be filed under section 6037. Unless the 
election form provides otherwise, the election must be submitted to the 
service center where the subsidiary filed its most recent tax return (if 
applicable), and, if an S corporation forms a subsidiary and makes a 
valid QSub election (effective upon the date of the subsidiary's 
formation) for the subsidiary, the election should be submitted to the 
service center where the S corporation filed its most recent return.
    (3) Time of making election. A QSub election may be made by the S 
corporation parent at any time during the taxable year.
    (4) Effective date of election. A QSub election will be effective on 
the date specified on the election form or on the date the election form 
is filed if no date is specified. The effective date specified on the 
form cannot be more than two months and 15 days prior to the date of 
filing and cannot be more than 12 months after the date of filing. For 
this purpose, the definition of the term month found in Sec. 1.1362-
6(a)(2)(ii)(C) applies. If an election form specifies an effective date 
more than two months and 15 days prior to the date on which the election 
form is filed, it will be effective two months and 15 days prior to the 
date it is filed. If an election form specifies an effective date more 
than 12 months after the date on which the election is filed, it will be 
effective 12 months after the date it is filed.
    (5) Example. The following example illustrates the application of 
paragraph (a)(4) of this section:

    Example. X has been a calendar year S corporation engaged in a trade 
or business for several years. X acquires the stock of Y, a calendar 
year C corporation, on April 1, 2002. On August 10, 2002, X makes an 
election to treat Y as a QSub. Unless otherwise specified on the 
election form, the election will be effective as of August 10, 2002. If 
specified on the election form, the election may be effective on some 
other date that is not more than two months and 15 days prior to August 
10, 2002, and not more than 12 months after August 10, 2002.

    (6) Extension of time for making a QSub election. An extension of 
time to make a QSub election may be available under the procedures 
applicable under Sec. Sec. 301.9100-1 and 301.9100-3 of this chapter.
    (b) Revocation of QSub election--(1) Manner of revoking QSub 
election. An S corporation may revoke a QSub election under section 1361 
by filing a statement with the service center where the S corporation's 
most recent tax return was properly filed. The revocation statement must 
include the names, addresses, and taxpayer identification numbers of 
both the parent S corporation and the QSub, if any. The statement must 
be signed by a person authorized to sign the S corporation's return 
required to be filed under section 6037.
    (2) Effective date of revocation. The revocation of a QSub election 
is effective on the date specified on the revocation statement or on the 
date the revocation statement is filed if no date is specified. The 
effective date specified on the revocation statement cannot be more than 
two months and 15 days prior to the date on which the revocation 
statement is filed and cannot be more than 12 months after the date on 
which the revocation statement is filed. If a revocation statement 
specifies an effective date more than two months and 15 days prior to 
the date on which the statement is filed, it will be effective two 
months and 15 days prior to the date it is filed. If a revocation 
statement specifies an effective date more than 12 months after the date 
on which the statement is filed, it will be effective 12 months after 
the date it is filed.
    (3) Revocation after termination. A revocation may not be made after 
the occurrence of an event that renders the subsidiary ineligible for 
QSub status under section 1361(b)(3)(B).
    (4) Revocation before QSub election effective. For purposes of 
Section 1361(b)(3)(D) and Sec. 1.1361-5(c) (five-year prohibition on 
re-election), a revocation effective on the first day the QSub election 
was to be effective will not be treated as a termination of a QSub 
election.

[T.D. 8869, 65 FR 3850, Jan. 25, 2000]

[[Page 730]]



Sec. 1.1361-4  Effect of QSub election.

    (a) Separate existence ignored--(1) In general. Except as otherwise 
provided in paragraphs (a)(3) and (a)(6) of this section, for Federal 
tax purposes--
    (i) A corporation which is a QSub shall not be treated as a separate 
corporation; and
    (ii) All assets, liabilities, and items of income, deduction, and 
credit of a QSub shall be treated as assets, liabilities, and items of 
income, deduction, and credit of the S corporation.
    (2) Liquidation of subsidiary--(i) In general. If an S corporation 
makes a valid QSub election with respect to a subsidiary, the subsidiary 
is deemed to have liquidated into the S corporation. Except as provided 
in paragraph (a)(5) of this section, the tax treatment of the 
liquidation or of a larger transaction that includes the liquidation 
will be determined under the Internal Revenue Code and general 
principles of tax law, including the step transaction doctrine. Thus, 
for example, if an S corporation forms a subsidiary and makes a valid 
QSub election (effective upon the date of the subsidiary's formation) 
for the subsidiary, the transfer of assets to the subsidiary and the 
deemed liquidation are disregarded, and the corporation will be deemed 
to be a QSub from its inception.
    (ii) Examples. The following examples illustrate the application of 
this paragraph (a)(2)(i) of this section:

    Example 1. Corporation X acquires all of the outstanding stock of 
solvent corporation Y from an unrelated individual for cash and short-
term notes. Thereafter, as part of the same plan, X immediately makes an 
S election and a QSub election for Y. Because X acquired all of the 
stock of Y in a qualified stock purchase within the meaning of section 
338(d)(3), the liquidation described in paragraph (a)(2) of this section 
is respected as an independent step separate from the stock acquisition, 
and the tax consequences of the liquidation are determined under 
sections 332 and 337.
    Example 2. Corporation X, pursuant to a plan, acquires all of the 
outstanding stock of corporation Y from the shareholders of Y solely in 
exchange for 10 percent of the voting stock of X. Prior to the 
transaction, Y and its shareholders are unrelated to X. Thereafter, as 
part of the same plan, X immediately makes an S election and a QSub 
election for Y. The transaction is a reorganization described in section 
368(a)(1)(C), assuming the other conditions for reorganization treatment 
(e.g., continuity of business enterprise) are satisfied.
    Example 3. After the expiration of the transition period provided in 
paragraph (a)(5)(i) of this section, individual A, pursuant to a plan, 
contributes all of the outstanding stock of Y to his wholly owned S 
corporation, X, and immediately causes X to make a QSub election for Y. 
The transaction is a reorganization under section 368(a)(1)(D), assuming 
the other conditions for reorganization treatment (e.g., continuity of 
business enterprise) are satisfied. If the sum of the amount of 
liabilities of Y treated as assumed by X exceeds the total of the 
adjusted basis of the property of Y, then section 357(c) applies and 
such excess is considered as gain from the sale or exchange of a capital 
asset or of property which is not a capital asset, as the case may be.

    (iii) Adoption of plan of liquidation. For purposes of satisfying 
the requirement of adoption of a plan of liquidation under section 332, 
unless a formal plan of liquidation that contemplates the QSub election 
is adopted on an earlier date, the making of the QSub election is 
considered to be the adoption of a plan of liquidation immediately 
before the deemed liquidation described in paragraph (a)(2)(i) of this 
section.
    (iv) Example. The following example illustrates the application of 
paragraph (a)(2)(iii) of this section:

    Example. Corporation X owns 75 percent of a solvent corporation Y, 
and individual A owns the remaining 25 percent of Y. As part of a plan 
to make a QSub election for Y, X causes Y to redeem A's 25 percent 
interest on June 1 for cash and makes a QSub election for Y effective on 
June 3. The making of the QSub election is considered to be the adoption 
of a plan of liquidation immediately before the deemed liquidation. The 
deemed liquidation satisfies the requirements of section 332.

    (v) Stock ownership requirements of section 332. The deemed exercise 
of an option under Sec. 1.1504-4 and any instruments, obligations, or 
arrangements that are not considered stock under Sec. 1.1361-2(b)(2) 
are disregarded in determining if the stock ownership requirements of 
section 332(b) are met with respect to the deemed liquidation provided 
in paragraph (a)(2)(i) of this section.
    (3) Treatment of banks--(i) In general. If an S corporation is a 
bank, or if an

[[Page 731]]

S corporation makes a valid QSub election for a subsidiary that is a 
bank, any special rules applicable to banks under the Internal Revenue 
Code continue to apply separately to the bank parent or bank subsidiary 
as if the deemed liquidation of any QSub under paragraph (a)(2) of this 
section had not occurred (except as other published guidance may apply 
section 265(b) and section 291(a)(3) and (e)(1)(B) not only to the bank 
parent or bank subsidiary but also to any QSub deemed to have liquidated 
under paragraph (a)(2) of this section). For any QSub that is a bank, 
however, all assets, liabilities, and items of income, deduction, and 
credit of the QSub, as determined in accordance with the special bank 
rules, are treated as assets, liabilities, and items of income, 
deduction, and credit of the S corporation. For purposes of this 
paragraph (a)(3)(i), the term bank has the same meaning as in section 
581.
    (ii) Examples. The following examples illustrate the application of 
this paragraph (a)(3):

    Example 1. X, an S corporation, is a bank as defined in section 581. 
X owns 100 percent of Y and Z, corporations for which valid QSub 
elections are in effect. Y is a bank as defined in section 581, and Z is 
not a financial institution. Pursuant to paragraph (a)(3)(i) of this 
section, any special rules applicable to banks under the Internal 
Revenue Code continue to apply separately to X and Y and do not apply to 
Z. Thus, for example, section 265(b), which provides special rules for 
interest expense deductions of banks, applies separately to X and Y. 
That is, X and Y each must make a separate determination under section 
265(b) of interest expense allocable to tax-exempt interest, and no 
deduction is allowed for that interest expense. Section 265(b) does not 
apply to Z except as published guidance may provide otherwise.
    Example 2. X, an S corporation, is a bank holding company and thus 
is not a bank as defined in section 581. X owns 100 percent of Y, a 
corporation for which a valid QSub election is in effect. Y is a bank as 
defined in section 581. Pursuant to paragraph (a)(3)(i) of this section, 
any special rules applicable to banks under the Internal Revenue Code 
continue to apply to Y and do not apply to X. However, all of Y's 
assets, liabilities, and items of income, deduction, and credit, as 
determined in accordance with the special bank rules, are treated as 
those of X. Thus, for example, section 582(c), which provides special 
rules for sales and exchanges of debt by banks, applies only to sales 
and exchanges by Y. However, any gain or loss on such a transaction by Y 
that is considered ordinary income or ordinary loss pursuant to section 
582(c) is treated as ordinary income or ordinary loss of X.

    (iii) Effective date. This paragraph (a)(3) applies to taxable years 
beginning after December 31, 1996.
    (4) Treatment of stock of QSub. Except for purposes of section 
1361(b)(3)(B)(i) and Sec. 1.1361-2(a)(1), the stock of a QSub shall be 
disregarded for all Federal tax purposes.
    (5) Transitional relief--(i) General rule. If an S corporation and 
another corporation (the related corporation) are persons specified in 
section 267(b) prior to an acquisition by the S corporation of some or 
all of the stock of the related corporation followed by a QSub election 
for the related corporation, the step transaction doctrine will not 
apply to determine the tax consequences of the acquisition. This 
paragraph (a)(5) shall apply to QSub elections effective before January 
1, 2001.
    (ii) Examples. The following examples illustrate the application of 
this paragraph (a)(5):

    Example 1. Individual A owns 100 percent of the stock of X, an S 
corporation. X owns 79 percent of the stock of Y, a solvent corporation, 
and A owns the remaining 21 percent. On May 4, 1998, A contributes its Y 
stock to X in exchange for X stock. X makes a QSub election with respect 
to Y effective immediately following the transfer. The liquidation 
described in paragraph (a)(2) of this section is respected as an 
independent step separate from the stock acquisition, and the tax 
consequences of the liquidation are determined under sections 332 and 
337. The contribution by A of the Y stock qualifies under section 351, 
and no gain or loss is recognized by A, X, or Y.
    Example 2. Individual A owns 100 percent of the stock of two solvent 
S corporations, X and Y. On May 4, 1998, A contributes the stock of Y to 
X. X makes a QSub election with respect to Y immediately following the 
transfer. The liquidation described in paragraph (a)(2) of this section 
is respected as an independent step separate from the stock acquisition, 
and the tax consequences of the liquidation are determined under 
sections 332 and 337. The contribution by A of the Y stock to X 
qualifies under section 351, and no gain or loss is recognized by A, X, 
or Y. Y is not treated as a C corporation for any period solely because 
of the transfer of its stock to X, an ineligible shareholder. Compare 
Example 3 of Sec. 1.1361-4(a)(2)(ii).


[[Page 732]]


    (6) Treatment of certain QSubs--(i) In general. A QSub, even though 
it is generally not treated as a corporation separate from the S 
corporation, is treated as a separate corporation for purposes of:
    (A) Federal tax liabilities of the QSub with respect to any taxable 
period for which the QSub was treated as a separate corporation.
    (B) Federal tax liabilities of any other entity for which the QSub 
is liable.
    (C) Refunds or credits of Federal tax.
    (ii) Examples. The following examples illustrate the application of 
paragraph (a)(6)(i) of this section:

    Example 1. X has owned all of the outstanding stock of Y, a domestic 
corporation that reports its taxes on a calendar year basis, since 2001. 
X and Y do not report their taxes on a consolidated basis. For 2003, X 
makes a timely S election and simultaneously makes a QSub election for 
Y. In 2004, the Internal Revenue Service (IRS) seeks to extend the 
period of limitations on assessment for Y's 2001 taxable year. Because Y 
was treated as a separate corporation for its 2001 taxable year, Y is 
the proper party to sign the consent to extend the period of 
limitations.
    Example 2. The facts are the same as in Example 1, except that in 
2004, the IRS determines that Y miscalculated and underreported its 
income tax liability for 2001. Because Y was treated as a separate 
corporation for its 2001 taxable year, the deficiency for Y's 2001 
taxable year may be assessed against Y and, in the event that Y fails to 
pay the liability after notice and demand, a general tax lien will arise 
against all of Y's property and rights to property.
    Example 3. X is a QSub of Y. In 2001, Z, a domestic corporation that 
reports its taxes on a calendar year basis, merges into X in a state law 
merger. Z was not a member of a consolidated group at any time during 
its taxable year ending in December 2000. Under the applicable state 
law, X is the successor to Z and is liable for all of Z's debts. In 
2003, the IRS seeks to extend the period of limitations on assessment 
for Z's 2000 taxable year. Because X is the successor to Z and is liable 
for Z's 2000 taxes that remain unpaid, X is the proper party to execute 
the consent to extend the period of limitations on assessment.

    (iii) Effective date. This paragraph (a)(6) applies on or after 
April 1, 2004.
    (b) Timing of the liquidation--(1) In general. Except as otherwise 
provided in paragraph (b)(3) or (4) of this section, the liquidation 
described in paragraph (a)(2) of this section occurs at the close of the 
day before the QSub election is effective. Thus, for example, if a C 
corporation elects to be treated as an S corporation and makes a QSub 
election (effective the same date as the S election) with respect to a 
subsidiary, the liquidation occurs immediately before the S election 
becomes effective, while the S electing parent is still a C corporation.
    (2) Application to elections in tiered situations. When QSub 
elections for a tiered group of subsidiaries are effective on the same 
date, the S corporation may specify the order of the liquidations. If no 
order is specified, the liquidations that are deemed to occur as a 
result of the QSub elections will be treated as occurring first for the 
lowest tier entity and proceed successively upward until all of the 
liquidations under paragraph (a)(2) of this section have occurred. For 
example, S, an S corporation, owns 100 percent of C, the common parent 
of an affiliated group of corporations that includes X and Y. C owns all 
of the stock of X and X owns all of the stock of Y. S elects under Sec. 
1.1361-3 to treat C, X and Y as QSubs effective on the same date. If no 
order is specified for the elections, the following liquidations are 
deemed to occur as a result of the elections, with each successive 
liquidation occuring on the same day immediately after the preceding 
liquidation: Y is treated as liquidating into X, then X is treated as 
liquidating into C, and finally C is treated as liquidating into S.
    (3) Acquisitions. (i) In general. If an S corporation does not own 
100 percent of the stock of the subsidiary on the day before the QSub 
election is effective, the liquidation described in paragraph (a)(2) of 
this section occurs immediately after the time at which the S 
corporation first owns 100 percent of the stock.
    (ii) Special rules for acquired S corporations. Except as provided 
in paragraph (b)(4) of this section, if a corporation (Y) for which an 
election under section 1362(a) was in effect is acquired, and a QSub 
election is made effective on the day Y is acquired, Y is deemed to 
liquidate into the S corporation at the beginning of the day the 
termination of its S election is effective. As a result,

[[Page 733]]

if corporation X acquires Y, an S corporation, and makes an S election 
for itself and a QSub election for Y effective on the day of 
acquisition, Y liquidates into X at the beginning of the day when X's S 
election is effective, and there is no period between the termination of 
Y's S election and the deemed liquidation of Y during which Y is a C 
corporation. Y's taxable year ends for all Federal income tax purposes 
at the close of the preceding day. Furthermore, if Y owns Z, a 
corporation for which a QSub election was in effect prior to the 
acquisition of Y by X, and X makes QSub elections for Y and Z, effective 
on the day of acquisition, the transfer of assets to Z and the deemed 
liquidation of Z are disregarded. See Sec. Sec. 1.1361-4(a)(2) and 
1.1361-5(b)(1)(i).
    (4) Coordination with section 338 election. An S corporation that 
makes a qualified stock purchase of a target may make an election under 
section 338 with respect to the acquisition if it meets the requirements 
for the election, and may make a QSub election with respect to the 
target. If an S corporation makes an election under section 338 with 
respect to a subsidiary acquired in a qualified stock purchase, a QSub 
election made with respect to that subsidiary is not effective before 
the day after the acquisition date (within the meaning of section 
338(h)(2)). If the QSub election is effective on the day after the 
acquisition date, the liquidation under paragraph (a)(2) of this section 
occurs immediately after the deemed asset purchase by the new target 
corporation under section 338. If an S corporation makes an election 
under section 338 (without a section 338(h)(10) election) with respect 
to a target, the target must file a final return as a C corporation 
reflecting the deemed sale. See Sec. 1.338-10(a). If the target was an 
S corporation on the day before the acquisition date, the final return 
as a C corporation must reflect the activities of the target for the 
acquisition date, including the deemed sale. See Sec. 1.338-10(a)(3).
    (c) Carryover of disallowed losses and deductions. If an S 
corporation (S1) acquires the stock of another S corporation (S2), and 
S1 makes a QSub election with respect to S2 effective on the day of the 
acquisition, see Sec. 1.1366-2(c)(1) for provisions relating to the 
carryover of losses and deductions with respect to a former shareholder 
of S2 that may be available to that shareholder as a shareholder of S1.
    (d) Examples. The following examples illustrate the application of 
this section:

    Example 1. X, an S corporation, owns 100 percent of the stock of Y, 
a C corporation. On June 2, 2002, X makes a valid QSub election for Y, 
effective June 2, 2002. Assume that, under general principles of tax 
law, including the step transaction doctrine, X's acquisition of the Y 
stock and the subsequent QSub election would not be treated as related. 
The liquidation described in paragraph (a)(2) of this section occurs at 
the close of the day on June 1, 2002, the day before the QSub election 
is effective, and the plan of liquidation is considered adopted on that 
date. Y's taxable year and separate existence for Federal tax purposes 
end at the close of June 1, 2002.
    Example 2. X, a C corporation, owns 100 percent of the stock of Y, 
another C corporation. On December 31, 2002, X makes an election under 
section 1362 to be treated as an S corporation and a valid QSub election 
for Y, both effective January 1, 2003. Assume that, under general 
principles of tax law, including the step transaction doctrine, X's 
acquisition of the Y stock and the subsequent QSub election would not be 
treated as related. The liquidation described in paragraph (a)(2) of 
this section occurs at the close of December 31, 2002, the day before 
the QSub election is effective. The QSub election for Y is effective on 
the same day that X's S election is effective, and the deemed 
liquidation is treated as occurring before the S election is effective, 
when X is still a C corporation. Y's taxable year ends at the close of 
December 31, 2002. See Sec. 1.381(b)-1.
    Example 3. On June 1, 2002, X, an S corporation, acquires 100 
percent of the stock of Y, an existing S corporation, for cash in a 
transaction meeting the requirements of a qualified stock purchase (QSP) 
under section 338. X immediately makes a QSub election for Y effective 
June 2, 2002, and also makes a joint election under section 338(h)(10) 
with the shareholder of Y. Under section 338(a) and Sec. 1.338(h)(10)-
1(d)(3), Y is treated as having sold all of its assets at the close of 
the acquisition date, June 1, 2002. Y is treated as a new corporation 
which purchased all of those assets as of the beginning of June 2, 2002, 
the day after the acquisition date. Section 338(a)(2). The QSub election 
is effective on June 2, 2002, and the liquidation under paragraph (a)(2) 
of this section occurs immediately after the deemed asset purchase by 
the new corporation.

[[Page 734]]

    Example 4. X, an S corporation, owns 100 percent of Y, a corporation 
for which a QSub election is in effect. On May 12, 2002, a date on which 
the QSub election is in effect, X issues Y a $10,000 note under state 
law that matures in ten years with a market rate of interest. Y is not 
treated as a separate corporation, and X's issuance of the note to Y on 
May 12, 2002, is disregarded for Federal tax purposes.
    Example 5. X, an S corporation, owns 100 percent of the stock of Y, 
a C corporation. At a time when Y is indebted to X in an amount that 
exceeds the fair market value of Y's assets, X makes a QSub election 
effective on the date it is filed with respect to Y. The liquidation 
described in paragraph (a)(2) of this section does not qualify under 
sections 332 and 337 and, thus, Y recognizes gain or loss on the assets 
distributed, subject to the limitations of section 267.

[T.D. 8869, 65 FR 3850, Jan. 25, 2000; 65 FR 16318, Mar. 28, 2000; T.D. 
8940, 66 FR 9929, 9957, Feb. 13, 2001; T.D. 9183, 70 FR 9221, Feb. 25, 
2005]



Sec. 1.1361-5  Termination of QSub election.

    (a) In general--(1) Effective date. The termination of a QSub 
election is effective--
    (i) On the effective date contained in the revocation statement if a 
QSub election is revoked under Sec. 1.1361-3(b);
    (ii) At the close of the last day of the parent's last taxable year 
as an S corporation if the parent's S election terminates under Sec. 
1.1362-2; or
    (iii) At the close of the day on which an event (other than an event 
described in paragraph (a)(1)(ii) of this section) occurs that renders 
the subsidiary ineligible for QSub status under section 1361(b)(3)(B).
    (2) Information to be provided upon termination of QSub election by 
failure to qualify as a QSub. If a QSub election terminates because an 
event renders the subsidiary ineligible for QSub status, the S 
corporation must attach to its return for the taxable year in which the 
termination occurs a notification that a QSub election has terminated, 
the date of the termination, and the names, addresses, and employer 
identification numbers of both the parent corporation and the QSub.
    (3) QSub joins a consolidated group. If a QSub election terminates 
because the S corporation becomes a member of a consolidated group (and 
no election under section 338(g) is made) the principles of Sec. 
1.1502-76(b)(1)(ii)(A)(2) (relating to a special rule for S corporations 
that join a consolidated group) apply to any QSub of the S corporation 
that also becomes a member of the consolidated group at the same time as 
the S corporation. See Example 4 of paragraph (a)(4) of this section.
    (4) Examples. The following examples illustrate the application of 
this paragraph (a):

    Example 1. Termination because parent's S election terminates. X, an 
S corporation, owns 100 percent of Y. A QSub election is in effect with 
respect to Y for 2001. Effective on January 1, 2002, X revokes its S 
election. Because X is no longer an S corporation, Y no longer qualifies 
as a QSub at the close of December 31, 2001.
    Example 2. Termination due to transfer of QSub stock. X, an S 
corporation, owns 100 percent of Y. A QSub election is in effect with 
respect to Y. On December 10, 2002, X sells one share of Y stock to A, 
an individual. Because X no longer owns 100 percent of the stock of Y, Y 
no longer qualifies as a QSub. Accordingly, the QSub election made with 
respect to Y terminates at the close of December 10, 2002.
    Example 3. No termination on stock transfer between QSub and parent. 
X, an S corporation, owns 100 percent of the stock of Y, and Y owns 100 
percent of the stock of Z. QSub elections are in effect with respect to 
both Y and Z. Y transfers all of its Z stock to X. Because X is treated 
as owning the stock of Z both before and after the transfer of stock 
solely for purposes of determining whether the requirements of section 
1361(b)(3)(B)(i) and Sec. 1.1361-2(a)(1) have been satisfied, the 
transfer of Z stock does not terminate Z's QSub election. Because the 
stock of Z is disregarded for all other Federal tax purposes, no gain is 
recognized under section 311.
    Example 4. Termination due to acquisition of S parent by a 
consolidated group. X, an S corporation, owns 100 percent of Y, a 
corporation for which a QSub election is in effect. Z, the common parent 
of a consolidated group of corporations, acquires 80 percent of the 
stock of X on June 1, 2002. Z does not make an election under section 
338(g) with respect to the purchase of X stock. X's S election 
terminates as of the close of the preceding day, May 31, 2002. Y's QSub 
election also terminates at the close of May 31, 2002. Under Sec. 
1.1502-76(b)(1)(ii)(A)(2) and paragraph (a)(3) of this section, X and Y 
become members of Z's consolidated group of corporations as of the 
beginning of the day June 1, 2002.
    Example 5. Termination due to acquisition of QSub by a consolidated 
group. The facts are the same as in Example 4, except that Z acquires 80 
percent of the stock of Y (instead of X) on June 1, 2002. In this case, 
Y's QSub

[[Page 735]]

election terminates as of the close of June 1, 2002, and, under Sec. 
1.1502-76(b)(1)(ii)(A)(1), Y becomes a member of the consolidated group 
at that time.

    (b) Effect of termination of QSub election--(1) Formation of new 
corporation--(i) In general. If a QSub election terminates under 
paragraph (a) of this section, the former QSub is treated as a new 
corporation acquiring all of its assets (and assuming all of its 
liabilities) immediately before the termination from the S corporation 
parent in exchange for stock of the new corporation. The tax treatment 
of this transaction or of a larger transaction that includes this 
transaction will be determined under the Internal Revenue Code and 
general principles of tax law, including the step transaction doctrine. 
For purposes of determining the application of section 351 with respect 
to this transaction, instruments, obligations, or other arrangements 
that are not treated as stock of the QSub under Sec. 1.1361-2(b) are 
disregarded in determining control for purposes of section 368(c) even 
if they are equity under general principles of tax law.
    (ii) Termination for tiered QSubs. If QSub elections terminate for 
tiered QSubs on the same day, the formation of any higher tier 
subsidiary precedes the formation of its lower tier subsidiary. See 
Example 6 in paragraph (b)(3) of this section.
    (2) Carryover of disallowed losses and deductions. If a QSub 
terminates because the S corporation distributes the QSub stock to some 
or all of the S corporation's shareholders in a transaction to which 
section 368(a)(1)(D) applies by reason of section 355 (or so much of 
section 356 as relates to section 355), see Sec. 1.1366-2(c)(2) for 
provisions relating to the carryover of disallowed losses and deductions 
that may be available.
    (3) Examples. The following examples illustrate the application of 
this paragraph (b):

    Example 1. X, an S corporation, owns 100 percent of the stock of Y, 
a corporation for which a QSub election is in effect. X sells 21 percent 
of the Y stock to Z, an unrelated corporation, for cash, thereby 
terminating the QSub election. Y is treated as a new corporation 
acquiring all of its assets (and assuming all of its liabilities) in 
exchange for Y stock immediately before the termination from the S 
corporation. The deemed exchange by X of assets for Y stock does not 
qualify under section 351 because X is not in control of Y within the 
meaning of section 368(c) immediately after the transfer as a result of 
the sale of stock to Z. Therefore, X must recognize gain, if any, on the 
assets transferred to Y in exchange for its stock. X's losses, if any, 
on the assets transferred are subject to the limitations of section 267.
    Example 2. (i) X, an S corporation, owns 100 percent of the stock of 
Y, a corporation for which a QSub election is in effect. As part of a 
plan to sell a portion of Y, X causes Y to merge into T, a limited 
liability company wholly owned by X that is disregarded as an entity 
separate from its owner for Federal tax purposes. X then sells 21 
percent of T to Z, an unrelated corporation, for cash. Following the 
sale, no entity classification election is made under Sec. 301.7701-
3(c) of this chapter to treat the limited liability company as an 
association for Federal tax purposes.
    (ii) The merger of Y into T causes a termination of Y's QSub 
election. The new corporation (Newco) that is formed as a result of the 
termination is immediately merged into T, an entity that is disregarded 
for Federal tax purposes. Because, at the end of the series of 
transactions, the assets continue to be held by X for Federal tax 
purposes, under step transaction principles, the formation of Newco and 
the transfer of assets pursuant to the merger of Newco into T are 
disregarded. The sale of 21 percent of T is treated as a sale of a 21 
percent undivided interest in each of T's assets. Immediately 
thereafter, X and Z are treated as contributing their respective 
interests in those assets to a partnership in exchange for ownership 
interests in the partnership.
    (iii) Under section 1001, X recognizes gain or loss from the deemed 
sale of the 21 percent interest in each asset of the limited liability 
company to Z. Under section 721(a), no gain or loss is recognized by X 
and Z as a result of the deemed contribution of their respective 
interests in the assets to the partnership in exchange for ownership 
interests in the partnership.
    Example 3. Assume the same facts as in Example 1, except that, 
instead of purchasing Y stock, Z contributes to Y an operating asset in 
exchange for 21 percent of the Y stock. Y is treated as a new 
corporation acquiring all of its assets (and assuming all of its 
liabilities) in exchange for Y stock immediately before the termination. 
Because X and Z are co-transferors that control the transferee 
immediately after the transfer, the transaction qualifies under section 
351.
    Example 4. X, an S corporation, owns 100 percent of the stock of Y, 
a corporation for which a QSub election is in effect. X distributes all 
of the Y stock pro rata to its shareholders, and the distribution 
terminates the QSub election. The transaction can qualify

[[Page 736]]

as a distribution to which sections 368(a)(1)(D) and 355 apply if the 
transaction otherwise satisfies the requirements of those sections.
    Example 5. X, an S corporation, owns 100 percent of the stock of Y, 
a corporation for which a QSub election is in effect. X subsequently 
revokes the QSub election. Y is treated as a new corporation acquiring 
all of its assets (and assuming all of its liabilities) immediately 
before the revocation from its S corporation parent in a deemed exchange 
for Y stock. On a subsequent date, X sells 21 percent of the stock of Y 
to Z, an unrelated corporation, for cash. Assume that under general 
principles of tax law including the step transaction doctrine, the sale 
is not taken into account in determining whether X is in control of Y 
immediately after the deemed exchange of assets for stock. The deemed 
exchange by X of assets for Y stock and the deemed assumption by Y of 
its liabilities qualify under section 351 because, for purposes of that 
section, X is in control of Y within the meaning of section 368(c) 
immediately after the transfer.
    Example 6. (i) X, an S corporation, owns 100 percent of the stock of 
Y, and Y owns 100 percent of the stock of Z. Y and Z are corporations 
for which QSub elections are in effect. X subsequently revokes the QSub 
elections and the effective date specified on each revocation statement 
is June 26, 2002, a date that is less than 12 months after the date on 
which the revocation statements are filed.
    (ii) Immediately before the QSub elections terminate, Y is treated 
as a new corporation acquiring all of its assets (and assuming all of 
its liabilities) directly from X in exchange for the stock of Y. Z is 
treated as a new corporation acquiring all of its assets (and assuming 
all of its liabilities) directly from Y in exchange for the stock of Z.
    Example 7. (i) The facts are the same as in Example 6, except that, 
prior to June 26, 2002 (the effective date of the revocations), Y 
distributes the Z stock to X under state law.
    (ii) Immediately before the QSub elections terminate, Y is treated 
as a new corporation acquiring all of its assets (and assuming all of 
its liabilities) directly from X in exchange for the stock of Y. Z is 
also treated as a new corporation acquiring all of its assets (and 
assuming all of its liabilities) directly from X in exchange for the 
stock of Z.
    Example 8. Merger of parent into QSub. X, an S corporation, owns 100 
percent of the stock of Y, a corporation for which a QSub election is in 
effect. X merges into Y under state law, causing the QSub election for Y 
to terminate, and Y survives the merger. The formation of the new 
corporation, Y, and the merger of X into Y can qualify as a 
reorganization described in section 368(a)(1)(F) if the transaction 
otherwise satisfies the requirements of that section.
    Example 9. Transfer of 100 percent of QSub. X, an S corporation, 
owns 100 percent of the stock of Y, a corporation for which a QSub 
election is in effect. Z, an unrelated C corporation, acquires 100 
percent of the stock of Y. The deemed formation of Y by X (as a 
consequence of the termination of Y's QSub election) is disregarded for 
Federal income tax purposes. The transaction is treated as a transfer of 
the assets of Y to Z, followed by Z's transfer of these assets to the 
capital of Y in exchange for Y stock. Furthermore, if Z is an S 
corporation and makes a QSub election for Y effective as of the 
acquisition, Z's transfer of the assets of Y in exchange for Y stock, 
followed by the immediate liquidation of Y as a consequence of the QSub 
election are disregarded for Federal income tax purposes.

    (c) Election after QSub termination--(1) In general. Absent the 
Commissioner's consent, and except as provided in paragraph (c)(2) of 
this section, a corporation whose QSub election has terminated under 
paragraph (a) of this section (or a successor corporation as defined 
inSec. 1.1362-5(b)) may not make an S election under section 1362 or 
have a QSub election under section 1361(b)(3)(B)(ii) made with respect 
to it for five taxable years (as described in section 1361(b)(3)(D)). 
The Commissioner may permit an S election by the corporation or a new 
QSub election with respect to the corporation before the five-year 
period expires. The corporation requesting consent to make the election 
has the burden of establishing that, under the relevant facts and 
circumstances, the Commissioner should consent to a new election.
    (2) Exception. In the case of S and QSub elections effective after 
December 31, 1996, if a corporation's QSub election terminates, the 
corporation may, without requesting the Commissioner's consent, make an 
S election or have a QSub election made with respect to it before the 
expiration of the five-year period described in section 1361(b)(3)(D) 
and paragraph (c)(1) of this section, provided that--
    (i) Immediately following the termination, the corporation (or its 
successor corporation) is otherwise eligible to make an S election or 
have a QSub election made for it; and
    (ii) The relevant election is made effective immediately following 
the termination of the QSub election.

[[Page 737]]

    (3) Examples. The following examples illustrate the application of 
this paragraph (c):

    Example 1. Termination upon distribution of QSub stock to 
shareholders of parent. X, an S corporation, owns Y, a QSub. X 
distributes all of its Y stock to X's shareholders. The distribution 
terminates the QSub election because Y no longer satisfies the 
requirements of a QSub. Assuming Y is otherwise eligible to be treated 
as an S corporation, Y's shareholders may elect to treat Y as an S 
corporation effective on the date of the stock distribution without 
requesting the Commissioner's consent.
    Example 2. Sale of 100 percent of QSub stock. X, an S corporation, 
owns Y, a QSub. X sells 100 percent of the stock of Y to Z, an unrelated 
S corporation. Z may elect to treat Y as a QSub effective on the date of 
purchase without requesting the Commissioner's consent.

[T.D. 8869, 65 FR 3852, Jan. 25, 2000; 65 FR 16318, Mar. 28, 2000, as 
amended by T.D. 8869, 67 FR 65313, Oct. 24, 2002]



Sec. 1.1361-6  Effective date.

    Except as provided in Sec. Sec. 1.1361-4(a)(3)(iii), 1.1361-
4(a)(5)(i), and 1.1361-5(c)(2), the provisions of Sec. Sec. 1.1361-2 
through 1.1361-5 apply to taxable years beginning on or after January 
20, 2000; however, taxpayers may elect to apply the regulations in 
whole, but not in part (aside from those sections with special dates of 
applicability), for taxable years beginning on or after January 1, 2000, 
provided all affected taxpayers apply the regulations in a consistent 
manner. To make this election, the corporation and all affected 
taxpayers must file a return or an amended return that is consistent 
with these rules for the taxable year for which the election is made. 
For purposes of this section, affected taxpayers means all taxpayers 
whose returns are affected by the election to apply the regulations.

[T.D. 8869, 65 FR 3854, Jan. 25, 2000]



Sec. 1.1362-0  Table of contents.

    This section lists the captions that appear in the regulations under 
section 1362.

             Sec. 1.1362-1 Election to be an S corporation.

    (a) In general.
    (b) Years for which election is effective.

                 Sec. 1.1362-2 Termination of election.

    (a) Termination by revocation.
    (1) In general.
    (2) When effective.
    (i) In general.
    (ii) Revocations specifying a prospective revocation date.
    (3) Effect on taxable year of corporation.
    (4) Rescission of a revocation.
    (b) Termination by reason of corporation ceasing to be a small 
business corporation.
    (1) In general.
    (2) When effective.
    (3) Effect on taxable year of corporation.
    (c) Termination by reason of excess passive investment income.
    (1) In general.
    (2) When effective.
    (3) Subchapter C earnings and profits.
    (4) Gross receipts.
    (i) In general.
    (ii) Special rules for sales of capital assets, stock and 
securities.
    (A) Sales of capital assets.
    (B) Sales of stock or securities.
    (1) In general.
    (2) Treatment of certain liquidations.
    (3) Definition of stock or securities.
    (4) General partner interests.
    (i) In general.
    (ii) Exception.
    (iii) Other exclusions from gross receipts.
    (5) Passive investment income.
    (i) In general.
    (ii) Definitions.
    (A) Royalties.
    (1) In general.
    (2) Royalties derived in the ordinary course of a trade or business.
    (3) Copyright, mineral, oil and gas, and active business computer 
software royalties.
    (B) Rents.
    (1) In general.
    (2) Rents derived in the active trade or business of renting 
property.
    (3) Produced film rents.
    (4) Income from leasing self-produced tangible property.
    (C) Dividends.
    (D) Interest.
    (1) In general.
    (2) Interest on obligations acquired in the ordinary course of a 
trade or business.
    (E) Annuities.
    (F) Gross receipts from the sale of stock or securities.
    (G) Identified income.
    (iii) Special rules.
    (A) Options or commodities dealers.
    (B) Treatment of certain lending, financing and other businesses.
    (1) In general.
    (2) Directly derived.
    (C) Payment to a patron of a cooperative.
    (6) Examples.

[[Page 738]]

             Sec. 1.1362-3 Treatment of S termination year.

    (a) In general.
    (b) Allocations other than pro rata.
    (1) Elections under section 1362(e)(3).
    (2) Purchase of stock treated as an asset purchase.
    (3) 50 percent change in ownership during S termination year.
    (c) Special rules.
    (1) S corporation that is a partner in a partnership.
    (2) Tax for the C short year.
    (3) Each short year treated as taxable year.
    (4) Year for carryover purposes.
    (5) Due date for S short year return.
    (6) Year in which income from S short year is includible.
    (d) Examples.

                Sec. 1.1362-4 Inadvertent terminations.

    (a) In general.
    (b) Inadvertent termination.
    (c) Corporation's request for determination of an inadvertent 
termination.
    (d) Adjustments.
    (e) Corporation and shareholder consents.
    (f) Status of corporation.

               Sec. 1.1362-5 Election after termination.

    (a) In general.
    (b) Successor corporation.
    (c) Automatic consent after certain terminations.

                 Sec. 1.1362-6 Elections and consents.

    (a) Time and manner of making elections.
    (1) In general.
    (2) Election to be an S corporation.
    (i) Manner of making election.
    (ii) Time of making election.
    (A) In general.
    (B) Elections made during the first 2\1/2\ months treated as made 
for the following taxable year.
    (C) Definition of month and beginning of the taxable year.
    (iii) Examples.
    (3) Revocation of S election.
    (i) Manner of revoking election.
    (ii) Time of revoking election.
    (iii) Examples.
    (4) Rescission of a revocation.
    (i) Manner of rescinding a revocation.
    (ii) Time of rescinding a revocation.
    (5) Election not to apply pro rata allocation.
    (b) Shareholders' consents.
    (1) Manner of consents in general.
    (2) Persons required to consent.
    (i) Community interest in stock.
    (ii) Minor.
    (iii) Estate.
    (iv) Trust.
    (3) Special rules for consent of shareholder to election to be an S 
corporation.
    (i) In general.
    (ii) Examples.
    (iii) Extension of time for filing consents to an election.
    (A) In general.
    (B) Required consents.

                     Sec. 1.1362-7 Effective date.

    (a) In general.
    (b) Special effective date for passive investment income provisions.

     Sec. .1362-8 Dividends received from affiliated subsidiaries.

    (a) In general.
    (b) Determination of active or passive earnings and profits.
    (1) In general.
    (2) Lower tier subsidiaries.
    (3) De minimis exception.
    (4) Special rules for earnings and profits accumulated by a C 
corporation prior to 80 percent acquisition.
    (5) Gross receipts safe harbor.
    (c) Allocating distributions to active or passive earnings and 
profits.
    (1) Distributions from current earnings and profits.
    (2) Distributions from accumulated earnings and profits.
    (3) Adjustments to active earnings and profits.
    (4) Special rules for consolidated groups.
    (d) Examples.
    (e) Effective date.

[T.D. 8449, 57 FR 55448, Nov. 25, 1992; 58 FR 3330, Jan. 8, 1993, as 
amended by T.D. 8869, 65 FR 3854, Jan. 25, 2000]



Sec. 1.1362-1  Election to be an S corporation.

    (a) In general. Except as provided in Sec. 1.1362-5, a small 
business corporation as defined in section 1361 may elect to be an S 
corporation under section 1362(a). An election may be made only with the 
consent of all of the shareholders of the corporation at the time of the 
election. See Sec. 1.1362-6(a) for rules concerning the time and manner 
of making this election.
    (b) Years for which election is effective. An election under section 
1362(a) is effective for the entire taxable year of the corporation for 
which it is made and for all succeeding taxable years of the 
corporation, until the election is terminated.

[T.D. 8449, 57 FR 55449, Nov. 25, 1992]



Sec. 1.1362-2  Termination of election.

    (a) Termination by revocation--(1) In general. An election made 
under section

[[Page 739]]

1362(a) is terminated if the corporation revokes the election for any 
taxable year of the corporation for which the election is effective, 
including the first taxable year. A revocation may be made only with the 
consent of shareholders who, at the time the revocation is made, hold 
more than one-half of the number of issued and outstanding shares of 
stock (including non-voting stock) of the corporation. See Sec. 1.1362-
6(a) for rules concerning the time and manner of revoking an election 
made under section 1362(a).
    (2) When effective--(i) In general. Except as provided in paragraph 
(a)(2)(ii) of this section, a revocation made during the taxable year 
and before the 16th day of the third month of the taxable year is 
effective on the first day of the taxable year and a revocation made 
after the 15th day of the third month of the taxable year is effective 
for the following taxable year. If a corporation makes an election to be 
an S corporation that is to be effective beginning with the next taxable 
year and revokes its election on or before the first day of the next 
taxable year, the corporation is deemed to have revoked its election on 
the first day of the next taxable year.
    (ii) Revocations specifying a prospective revocation date. If a 
corporation specifies a date for revocation and the date is expressed in 
terms of a stated day, month, and year that is on or after the date the 
revocation is filed, the revocation is effective on and after the date 
so specified.
    (3) Effect on taxable year of corporation. In the case of a 
corporation that revokes its election to be an S corporation effective 
on the first day of the first taxable year for which its election is to 
be effective, any statement made with the election regarding a change in 
the corporation's taxable year has no effect.
    (4) Rescission of a revocation. A corporation may rescind a 
revocation made under paragraph (a)(2) of this section at any time 
before the revocation becomes effective. A rescission may be made only 
with the consent of each person who consented to the revocation and by 
each person who became a shareholder of the corporation within the 
period beginning on the first day after the date the revocation was made 
and ending on the date on which the rescission is made. See Sec. 
1.1362-6(a) for rules concerning the time and manner of rescinding a 
revocation.
    (b) Termination by reason of corporation ceasing to be a small 
business corporation--(1) In general. If a corporation ceases to be a 
small business corporation, as defined in section 1361(b), at any time 
on or after the first day of the first taxable year for which its 
election under section 1362(a) is effective, the election terminates. In 
the event of a termination under this paragraph (b)(1), the corporation 
should attach to its return for the taxable year in which the 
termination occurs a notification that a termination has occurred and 
the date of the termination.
    (2) When effective. If an election terminates because of a specific 
event that causes the corporation to fail to meet the definition of a 
small business corporation, the termination is effective as of the date 
on which the event occurs. If a corporation makes an election to be an S 
corporation that is effective beginning with the following taxable year 
and is not a small business corporation on the first day of that 
following taxable year, the election is treated as having terminated on 
that first day. If a corporation is a small business corporation on the 
first day of the taxable year for which its election is effective, its 
election does not terminate even if the corporation was not a small 
business corporation during all or part of the period beginning after 
the date the election was made and ending before the first day of the 
taxable year for which the election is effective.
    (3) Effect on taxable year of corporation. In the case of a 
corporation that fails to meet the definition of a small business 
corporation on the first day of the first taxable year for which its 
election to be an S corporation is to be effective, any statement made 
with the election regarding a change in the corporation's taxable year 
has no effect.
    (c) Termination by reason of excess passive investment income--(1) 
In general. A corporation's election under section 1362(a) terminates if 
the corporation has subchapter C earnings and profits

[[Page 740]]

at the close of each of three consecutive taxable years and, for each of 
those taxable years, has passive investment income in excess of 25 
percent of gross receipts. See section 1375 for the tax imposed on 
excess passive investment income.
    (2) When effective. A termination under this paragraph (c) is 
effective on the first day of the first taxable year beginning after the 
third consecutive year in which the S corporation had excess passive 
investment income.
    (3) Subchapter C earnings and profits. For purposes of this 
paragraph (c), subchapter C earnings and profits of a corporation are 
the earnings and profits of any corporation, including the S corporation 
or an acquired or predecessor corporation, for any period with respect 
to which an election under section 1362(a) (or under section 1372 of 
prior law) was not in effect. The subchapter C earnings and profits of 
an S corporation are modified as required by section 1371(c).
    (4) Gross receipts--(i) In general. For purposes of this paragraph 
(c), gross receipts generally means the total amount received or accrued 
under the method of accounting used by the corporation in computing its 
taxable income and is not reduced by returns and allowances, cost of 
goods sold, or deductions.
    (ii) Special rules for sales of capital assets, stock and 
securities--(A) Sales of capital assets. For purposes of this paragraph 
(c), gross receipts from the sales or exchanges of capital assets (as 
defined in section 1221), other than stock and securities, are taken 
into account only to the extent of capital gain net income (as defined 
in section 1222).
    (B) Sales of stock or securities--(1) In general. For purposes of 
this paragraph (c), gross receipts from the sales or exchanges of stock 
or securities are taken into account only to the extent of gains 
therefrom. In addition, for purposes of computing gross receipts from 
sales or exchanges of stock or securities, losses do not offset gains.
    (2) Treatment of certain liquidations. Gross receipts from the sales 
or exchanges of stock or securities do not include amounts described in 
section 1362(d)(3)(D)(iv), relating to the treatment of certain 
liquidations. For purposes of section 1362(d)(3)(D)(iv), stock of the 
liquidating corporation owned by an S corporation shareholder is not 
treated as owned by the S corporation.
    (3) Definition of stock or securities. For purposes of this 
paragraph (c), stock or securities includes shares or certificates of 
stock, stock rights or warrants, or an interest in any corporation 
(including any joint stock company, insurance company, association, or 
other organization classified as a corporation under section 7701); an 
interest as a limited partner in a partnership; certificates of interest 
or participation in any profit-sharing agreement, or in any oil, gas, or 
other mineral property, or lease; collateral trust certificates; voting 
trust certificates; bonds; debentures; certificates of indebtedness; 
notes; car trust certificates; bills of exchange; or obligations issued 
by or on behalf of a State, Territory, or political subdivision thereof.
    (4) General partner interests--(i) In general. Except as provided in 
paragraph (c)(4)(ii)(B)(4)(ii) of this section, if an S corporation 
disposes of a general partner interest, the gain on the disposition is 
treated as gain from the sale of stock or securities to the extent of 
the amount the S corporation would have received as a distributive share 
of gain from the sale of stock or securities held by the partnership if 
all of the stock and securities held by the partnership had been sold by 
the partnership at fair market value at the time the S corporation 
disposes of the general partner interest. In applying this rule, the S 
corporation's distributive share of gain from the sale of stock or 
securities held by the partnership is not reduced to reflect any loss 
that would be recognized from the sale of stock or securities held by 
the partnership. In the case of tiered partnerships, the rules of this 
section apply by looking through each tier.
    (ii) Exception. An S corporation that disposes of a general partner 
interest may treat the disposition, for purposes of this paragraph (c), 
in the same manner as the disposition of an interest as a limited 
partner.
    (iii) Other exclusions from gross receipts. For purposes of this 
paragraph (c), gross receipts do not include--

[[Page 741]]

    (A) Amounts received in nontaxable sales or exchanges except to the 
extent that gain is recognized by the corporation on the sale or 
exchange; or
    (B) Amounts received as a loan, as a repayment of a loan, as a 
contribution to capital, or on the issuance by the corporation of its 
own stock.
    (5) Passive investment income--(i) In general. In general, passive 
investment income means gross receipts (as defined in paragraph (c)(4) 
of this section) derived from royalties, rents, dividends, interest, 
annuities, and gains from the sales or exchanges of stock or securities.
    (ii) Definitions. For purposes of this paragraph (c)(5), the 
following definitions apply:
    (A) Royalties--(1) In general. Royalties means all royalties, 
including mineral, oil, and gas royalties, and amounts received for the 
privilege of using patents, copyrights, secret processes and formulas, 
good will, trademarks, tradebrands, franchises, and other like property. 
The gross amount of royalties is not reduced by any part of the cost of 
the rights under which the royalties are received or by any amount 
allowable as a deduction in computing taxable income.
    (2) Royalties derived in the ordinary course of a trade or business. 
Royalties does not include royalties derived in the ordinary course of a 
trade or business of franchising or licensing property. Royalties 
received by a corporation are derived in the ordinary course of a trade 
or business of franchising or licensing property only if, based on all 
the facts and circumstances, the corporation--
    (i) Created the property; or
    (ii) Performed significant services or incurred substantial costs 
with respect to the development or marketing of the property.
    (3) Copyright, mineral, oil and gas, and active business computer 
software royalties. Royalties does not include copyright royalties, nor 
mineral, oil and gas royalties if the income from those royalties would 
not be treated as personal holding company income under sections 543 
(a)(3) and (a)(4) if the corporation were a C corporation; amounts 
received upon disposal of timber, coal, or domestic iron ore with 
respect to which the special rules of sections 631 (b) and (c) apply; 
and active business computer software royalties as defined under section 
543(d) (without regard to paragraph (d)(5) of section 543).
    (B) Rents--(1) In general. Rents means amounts received for the use 
of, or right to use, property (whether real or personal) of the 
corporation.
    (2) Rents derived in the active trade or business of renting 
property. Rents does not include rents derived in the active trade or 
business of renting property. Rents received by a corporation are 
derived in an active trade or business of renting property only if, 
based on all the facts and circumstances, the corporation provides 
significant services or incurs substantial costs in the rental business. 
Generally, significant services are not rendered and substantial costs 
are not incurred in connection with net leases. Whether significant 
services are performed or substantial costs are incurred in the rental 
business is determined based upon all the facts and circumstances 
including, but not limited to, the number of persons employed to provide 
the services and the types and amounts of costs and expenses incurred 
(other than depreciation).
    (3) Produced film rents. Rents does not include produced film rents 
as defined under section 543(a)(5).
    (4) Income from leasing self-produced tangible property. Rents does 
not include compensation, however designated, for the use of, or right 
to use, any real or tangible personal property developed, manufactured, 
or produced by the taxpayer, if during the taxable year the taxpayer is 
engaged in substantial development, manufacturing, or production of real 
or tangible personal property of the same type.
    (C) Dividends. Dividends includes dividends as defined in section 
316, amounts to be included in gross income under section 551 (relating 
to foreign personal holding company income taxed to U.S. shareholders), 
and consent dividends as provided in section 565. See paragraphs 
(c)(5)(iii) (B) and (C) of this section for special rules for the 
treatment of certain dividends and certain payments to a patron of a 
cooperative. See Sec. 1.1362-8 for special rules

[[Page 742]]

regarding the treatment of dividends received by an S corporation from a 
C corporation in which the S corporation holds stock meeting the 
requirements of section 1504(a)(2).
    (D) Interest--(1) In general. Interest means any amount received for 
the use of money (including tax-exempt interest and amounts treated as 
interest under section 483, 1272, 1274, or 7872). See paragraph 
(c)(5)(iii)(B) of this section for a special rule for the treatment of 
interest derived in certain businesses.
    (2) Interest on obligations acquired in the ordinary course of a 
trade or business. Interest does not include interest on any obligation 
acquired from the sale of property described in section 1221(1) or the 
performance of services in the ordinary course of a trade or business of 
selling the property or performing the services.
    (E) Annuities. Annuities means the entire amount received as an 
annuity under an annuity, endowment, or life insurance contract, if any 
part of the amount would be includible in gross income under section 72.
    (F) Gross receipts from the sale of stock or securities. Gross 
receipts from the sales or exchanges of stock or securities, as 
described in paragraph (c)(4)(ii)(B) of this section, are passive 
investment income to the extent of gains therefrom. See paragraph 
(c)(5)(iii)(B) of this section for a special rule for the treatment of 
gains derived in certain businesses.
    (G) Identified income. Passive investment income does not include 
income identified by the Commissioner by regulations, revenue ruling, or 
revenue procedure as income derived in the ordinary course of a trade or 
business for purposes of this section.
    (iii) Special rules. For purposes of this paragraph (c)(5), the 
following special rules apply:
    (A) Options or commodities dealers. In the case of an options dealer 
or commodities dealer, passive investment income does not include any 
gain or loss (in the normal course of the taxpayer's activity of dealing 
in or trading section 1256 contracts) from any section 1256 contract or 
property related to the contract. Options dealer, commodities dealer, 
and section 1256 contract have the same meaning as in section 
1362(d)(3)(E)(ii).
    (B) Treatment of certain lending, financing and other business--(1) 
In general. Passive investment income does not include gross receipts 
that are directly derived in the ordinary course of a trade or business 
of--
    (i) Lending or financing;
    (ii) Dealing in property;
    (iii) Purchasing or discounting accounts receivable, notes, or 
installment obligations; or
    (iv) Servicing mortgages.
    (2) Directly derived. For purposes of this paragraph (c)(5)(iii)(B), 
gross receipts directly derived in the ordinary course of business 
includes gain (as well as interest income) with respect to loans 
originated in a lending business, or interest income (as well as gain) 
from debt obligations of a dealer in such obligations. However, interest 
earned from the investment of idle funds in short-term securities does 
not constitute gross receipts directly derived in the ordinary course of 
business. Similarly, a dealer's income or gain from an item of property 
is not directly derived in the ordinary course of its trade or business 
if the dealer held the property for investment at any time before the 
income or gain is recognized.
    (C) Payment to a patron of a cooperative. Passive investment income 
does not include amounts included in the gross income of a patron of a 
cooperative (within the meaning of section 1381(a), without regard to 
paragraph (2) (A) or (C) of section 1381(a)) by reason of any payment or 
allocation to the patron based on patronage occurring in the case of a 
trade or business of the patron.
    (6) Examples. The principles of paragraphs (c)(4) and (c)(5) of this 
section are illustrated by the following examples. Unless otherwise 
provided in an example, S is an S corporation with subchapter C earnings 
and profits, and S's gross receipts from operations are gross receipts 
not derived from royalties, rents, dividends, interest, annuities, or 
gains from the sales or exchanges of stock or securities. S is a 
calendar year taxpayer and its first taxable year as an S corporation is 
1993.


[[Page 743]]


    Example 1. Sales of capital assets, stock and securities. (i) S uses 
an accrual method of accounting and sells:
    (1) A depreciable asset, held for more than 6 months, which is used 
in the corporation's business;
    (2) A capital asset (other than stock or securities) for a gain;
    (3) A capital asset (other than stock or securities) for a loss; and
    (4) Securities.


S receives payment for each asset partly in money and partly in the form 
of a note payable at a future time, and elects not to report the sales 
on the installment method.
    (ii) The amount of money and the face amount (or issue price if 
different) of the note received for the business asset are considered 
gross receipts in the taxable year of sale and are not reduced by the 
adjusted basis of the property, costs of sale, or any other amount. With 
respect to the sales of the capital assets, gross receipts include the 
cash down payment and face amount (or issue price if different) of any 
notes, but only to the extent of S's capital gain net income. In the 
case of the sale of the securities, gross receipts include the cash down 
payment and face amount (or issue price if different) of the notes, but 
only to the extent of gain on the sale. In determining gross receipts 
from sales of securities, losses are not netted against gains.
    Example 2. Long-term contract reported on percentage-of-completion 
method. S has a long-term contract as defined in Sec. 1.460-1(b)(1) 
with respect to which it reports income according to the percentage-of-
completion method as described in Sec. 1.460-4(b). The portion of the 
gross contract price which corresponds to the percentage of the entire 
contract which has been completed during the taxable year is included in 
S's gross receipts for the year.
    Example 3. Income reported on installment sale method. For its 1993 
taxable year, S sells personal property on the installment plan and 
elects to report its taxable income from the sale of the property (other 
than property qualifying as a capital asset or stock or securities) on 
the installment method in accordance with section 453. The installment 
payment actually received in a given taxable year of S is included in 
gross receipts for the year.
    Example 4. Partnership interests. In 1993, S and two of its 
shareholders contribute cash to form a general partnership, PRS. S 
receives a 50 percent interest in the capital and profits of PRS. S 
formed PRS to indirectly invest in marketable stocks and securities. The 
only assets of PRS are the stock and securities, and certain real and 
tangible personal property. In 1994, S needs cash in its business and 
sells its partnership interest at a gain rather than having PRS sell the 
marketable stock or securities that have appreciated. Under paragraph 
(c)(4)(ii)(B)(4) of this section, the gain on S's disposition of its 
interest is PRS is treated as gain from the sale or exchange of stock or 
securities to the extent of the amount the distributive share of gain S 
would have received from the sale of stock or securities held by PRS if 
PRS had sold all of its stock or securities at fair market value at the 
time S disposed of its interest in PRS.
    Example 5. Royalties derived in ordinary course of trade or 
business. (i) In 1993, S has gross receipts of $75,000. Of this amount, 
$5,000 is from royalty payments with respect to Trademark A, $8,000 is 
from royalty payments with respect to Trademark B, and $62,000 is gross 
receipts from operations. S created Trademark A, but S did not create 
Trademark B or perform significant services or incur substantial costs 
with respect to the development or marketing of Trademark B.
    (ii) Because S created Trademark A, the royalty payments with 
respect to Trademark A are derived in the ordinary course of S's 
business and are not included within the definition of royalties for 
purposes of determining S's passive investment income. However, the 
royalty payments with respect to Trademark B are included within the 
definition of royalties for purposes of determining S's passive 
investment income. See paragraph (c)(5)(ii)(A) of this section. S's 
passive investment income for the year is $8,000, and S's passive 
investment income percentage for the taxable year is 10.67% ($8,000/
$75,000). This does not exceed 25 percent of S's gross receipts and 
consequently the three-year period described in section 1362(d)(3) does 
not begin to run.
    Example 6. Dividends; gain on sale of stock derived in the ordinary 
course of trade or business. (i) In 1993, S receives dividends of 
$10,000 on stock of corporations P and O, recognizes a gain of $25,000 
on sale of the P stock, and recognizes a loss of $12,000 on sale of the 
O stock. S held the P and O stock for investment, rather than for sale 
in the ordinary course of a trade or business. S has gross receipts from 
operations and from gain on the sale of stock in the ordinary course of 
its trade or business of $110,000.
    (ii) S's gross receipts are calculated as follows:

  $110,000  Gross receipts from operations and from gain on the sale of
             stock in the ordinary course of a trade or business
    10,000  Gross dividend receipts
    25,000  Gain on sale of P stock (Loss on O stock not taken into
             account
-----------
   145,000  Total gross receipts
 

    (iii) S's passsive investment income is determined as follows:

   $10,000  Gross dividend receipts

[[Page 744]]

 
    25,000  Gain on sale of P stock (Loss on O stock not taken into
             account
-----------
    35,000  Total passive investment income
 

    (iv) S's passive investment income percentage for its first year as 
an S corporation is 24.1% ($35,000/$145,000). This does not exceed 25 
percent of S's gross receipts and consequently the three-year period 
described in section 1362(d)(3) does not begin to run.
    Example 7. Interest on accounts receivable; netting of gain on sale 
of real property investments. (i) In 1993, S receives $6,000 of interest 
on accounts receivable arising from S's sales of inventory property. S 
also received dividends with respect to stock held for investment of 
$1,500. In addition, S sells two parcels of real property (Property J 
and Property K) that S had purchased and held for investment. S sells 
Property J, in which S has a basis of $5,000, for $10,000 (a gain of 
$5,000). S sells Property K, in which S has a basis of $12,000, for 
$9,000 (a loss of $3,000). S has gross receipts from operations of 
$90,000.
    (ii) S's gross receipts are calculated as follows:

   $90,000  Gross receipts from operations
     6,000  Gross interest receipts
     1,500  Gross dividend receipts
     2,000  Net gain on sale of real property investments
-----------
   $99,500  Total gross receipts
 

    (iii) Under paragraph (c)(5)(ii)(D) of this section, S's gross 
interest receipts are not passive investment income. In addition, gain 
on the sale of real property ($2,000) is not passive investment income. 
S's passive investment income includes only the $1,500 of gross dividend 
receipts. Accordingly, S's passive investment income percentage for its 
first year as an S corporation is 1.51% ($1,500/$99,500). This does not 
exceed 25 percent of S's gross receipts and consequently the three-year 
period described in section 1362(d)(3) does not begin to run.
    Example 8. Interest received in the ordinary course of a lending 
business. (i) In 1993, S has gross receipts of $100,000 from loans and 
investments made in the ordinary course of S's mortgage banking 
business. This includes, for example, mortgage servicing fees, interest 
earned on mortgages prior to sale of the mortgages, and gain on sale of 
mortgages. In addition, S receives, from the investment of idle funds in 
short-term securities, $15,000 of gross interest income and $5,000 of 
gain.
    (ii) S's gross receipts are calculated as follows:

  $100,000  Gross receipts from operations
    15,000  Gross interest receipts
     5,000  Gain on sale of securities
-----------
   120,000  Total gross receipts
 

    (iii) S's passive investment income is determined as follows:

   $15,000  Gross interest receipts
     5,000  Gain on sale of securities,
-----------
    20,000  Total passive investment income
 

    (iv) S's passive investment income percentage for its first year as 
an S corporation is 16.67% ($20,000/$120,000). This does not exceed 25 
percent of S's gross receipts and consequently the three-year period 
described in section 1362(d)(3) does not begin to run.

[T.D. 8449, 57 FR 55449, Nov. 25, 1992; 58 FR 15274, Mar. 22, 1993, as 
amended by T.D. 8869, 65 FR 3854, Jan. 25, 2000; T.D. 8995, 67 FR 34610, 
May 15, 2002]



Sec. 1.1362-3  Treatment of S termination year.

    (a) In general. If an S election terminates under section 1362(d) on 
a date other than the first day of a taxable year of the corporation, 
the corporation's taxable year in which the termination occurs is an S 
termination year. The portion of the S termination year ending at the 
close of the day prior to the termination is treated as a short taxable 
year for which the corporation is an S corporation (the S short year). 
The portion of the S termination year beginning on the day the 
termination is effective is treated as a short taxable year for which 
the corporation is a C corporation (the C short year). Except as 
provided in paragraphs (b) and (c)(1) of this section, the corporation 
allocates income or loss for the entire year on a pro rata basis as 
described in section 1362(e)(2). To the extent that income or loss is 
not allocated on a pro rata basis under this section, items of income, 
gain, loss, deduction, and credit are assigned to each short taxable 
year on the basis of the corporation's normal method of accounting as 
determined under section 446. See, however, Sec. 1.1502-
76(b)(1)(ii)(A)(2) for special rules for an S election that terminates 
under section 1362(d) immediately before the S corporation becomes a 
member of a consolidated group (within the meaning of Sec. 1.1502-
1(h)). See Sec. 1.460-4(k)(3)(iv)(D) for rules relating to the 
computation of the S corporation's income or loss from a contract 
accounted for under a long-term contract method of accounting in the S 
termination year.
    (b) Allocations other than pro rata--(1) Elections under section 
1362(e)(3). The pro rata allocation rules of section

[[Page 745]]

1362(e)(2) do not apply if the corporation elects to allocate its S 
termination year income on the basis of its normal tax accounting 
method. This election may be made only with the consent of each person 
who is a shareholder in the corporation at any time during the S short 
year and of each person who is a shareholder in the corporation on the 
first day of the C short year. See Sec. 1.1362-6(a) for rules 
concerning the time and manner of making this election.
    (2) Purchase of stock treated as an asset purchase. The pro rata 
allocation rules of section 1362(e)(2) do not apply with respect to any 
item resulting from the application of section 338.
    (3) 50 percent change in ownership during S termination year. The 
pro rata allocation rules of section 1362(e)(2) do not apply if at any 
time during the S termination year, as a result of sales or exchanges of 
stock in the corporation during that year, there is a change in 
ownership of 50 percent or more of the issued and outstanding shares of 
stock of the corporation. If stock has already been sold or exchanged 
during the S termination year, subsequent sales or exchanges of that 
stock are not taken into account for purposes of this paragraph (b)(3).
    (c) Special rules--(1) S corporation that is a partner in a 
partnership. For purposes of section 706(c) only, the termination of the 
election of an S corporation that is a partner in a partnership during 
any portion of the S short year under Sec. 1.1362-2 (a) or (b), is 
treated as a sale or exchange of the corporation's entire interest in 
the partnership on the last day of the S short year, if--
    (i) The pro rata allocation rules do not apply to the corporation; 
and
    (ii) Any taxable year of the partnership ends with or within the C 
short year.
    (2) Tax for the C short year. The taxable income for the C short 
year is determined on an annualized basis as described in section 
1362(e)(5).
    (3) Each short year treated as taxable year. Except as otherwise 
provided in paragraph (c)(4) of this section, the S and C short years 
are treated as two separate years for purposes of all provisions of the 
Internal Revenue Code.
    (4) Year for carryover purposes. The S and C short years are treated 
as one year for purposes of determining the number of taxable years to 
which any item may be carried back or forward by the corporation.
    (5) Due date for S short year return. The date by which the return 
for the S short year must be filed is the same as the date by which the 
return for the C short year must be filed (including extensions).
    (6) Year in which income from S short year is includible. A 
shareholder must include in taxable income the shareholder's pro rata 
share of the items described in section 1366(a) for the S short year for 
the taxable year with or within which the S termination year ends.
    (d) Examples. The provisions of this section are illustrated by the 
following examples:

    Example 1. S termination year not created. (i) On January 1, 1993, 
the first day of its taxable year, a subchapter C corporation had three 
eligible shareholders. During 1993, the corporation properly elected to 
be treated as an S corporation effective January 1, 1994, the first day 
of the succeeding taxable year. Subsequently, a transfer of some of the 
stock in the corporation was made to an ineligible shareholder. The 
ineligible shareholder still holds the stock on January 1, 1994.
    (ii) The corporation fails to meet the definition of a small 
business corporation on January 1, 1994, and its election is treated as 
having terminated on that date. See Sec. 1.1362-2(b)(2) for the 
termination rules. Because the corporation ceases to be a small business 
corporation on the first day of a taxable year, an S termination year is 
not created. In addition, if the corporation in the future meets the 
definition of a small business corporation and desires to elect to be 
treated as an S corporation, the corporation is automatically granted 
consent to reelect before the expiration of the 5-year waiting period. 
See Sec. 1.1362-5 for special rules concerning automatic consent to 
reelect.
    Example 2. More than 50 percent change in ownership during S short 
year. A, an individual, owns all 100 outstanding shares of stock of S, a 
calendar year S corporation. On January 31, 1993, A sells 60 shares of S 
stock to B, an individual. On June 1, 1993, A sells 5 shares of S stock 
to PRS, a partnership. S ceases to be a small business corporation on 
June 1, 1993, and pursuant to section 1362(d)(2), its election 
terminates on that date. Because there was a more than 50 percent change 
in ownership of the issued and outstanding shares of S stock, S must 
assign

[[Page 746]]

the items of income, loss, deduction, or credit for the S termination 
year to the two short taxable years on the basis of S's normal method of 
accounting under the rules of paragraph (b)(3) of this section.
    Example 3. More than 50 percent change in ownership during C short 
year. A, an individual, owns all 100 outstanding shares of stock of S, a 
calendar year S corporation. On June 1, 1993, A sells 5 shares of S 
stock to PRS, a partnership. S ceases to be a small business corporation 
on that date and pursuant to section 1362(d)(3), its election terminates 
on that date. On July 1, 1993, A sells 60 shares of S stock to B, an 
individual. Since there was a more than 50 percent change in ownership 
of the issued and outstanding shares of S stock during the S termination 
year, S must assign the items of income, loss, deduction, or credit for 
the S termination year to the two short taxable years on the basis of 
S's normal method of accounting under the rules of paragraph (b)(3) of 
this section.
    Example 4. Stock acquired other than by sale or exchange. C and D 
are shareholders in S, a calendar year S corporation. Each owns 50 
percent of the issued and outstanding shares of the corporation on 
December 31, 1993. On March 1, 1994, C makes a gift of his entire 
shareholder interest to T, a trust not permitted as a shareholder under 
section 1361(c)(2). S ceases to be a small business corporation on March 
1, 1994, and pursuant to section 1362(d)(2), its S corporation election 
terminates effective on that date. As a result of the gift, T owns 50 
percent of S's issued and outstanding stock. However, because T acquired 
the stock by gift from C rather than by sale or exchange, there has not 
been a more than 50 percent change in ownership by sale or exchange of S 
that would cause the rules of paragraph (b)(3) of this section to apply.

[T.D. 8449, 57 FR 55452, Nov. 25, 1992, as amended by T.D. 8842, 64 FR 
61205, Nov. 10, 1999; T.D. 9137, 69 FR 42559, July 16, 2004]



Sec. 1.1362-4  Inadvertent terminations.

    (a) In general. A corporation is treated as continuing to be an S 
corporation during the period specified by the Commissioner if--
    (1) The corporation made a valid election under section 1362(a) and 
the election terminated;
    (2) The Commissioner determines that the termination was 
inadvertent;
    (3) Steps were taken by the corporation to return to small business 
corporation status within a reasonable period after discovery of the 
terminating event; and
    (4) The corporation and shareholders agree to adjustments that the 
Commissioner may require for the period.
    (b) Inadvertent termination. For purposes of paragraph (a) of this 
section, the determination of whether a termination was inadvertent is 
made by the Commissioner. The corporation has the burden of establishing 
that under the relevant facts and circumstances the Commissioner should 
determine that the termination was inadvertent. The fact that the 
terminating event was not reasonably within the control of the 
corporation and was not part of a plan to terminate the election, or the 
fact that the event took place without the knowledge of the corporation, 
notwithstanding its due diligence to safeguard itself against such an 
event, tends to establish that the termination was inadvertent.
    (c) Corporation's request for determination of an inadvertent 
termination. A corporation that believes its election was terminated 
inadvertently may request a determination of inadvertent termination 
from the Commissioner. The request is made in the form of a ruling 
request and should set forth all relevant facts pertaining to the event 
including, but not limited to, the facts described in paragraph (b) of 
this section, the date of the corporation's election under section 
1362(a), a detailed explanation of the event causing termination, when 
and how the event was discovered, and the steps taken to return the 
corporation to small business corporation status.
    (d) Adjustments. The Commissioner may require any adjustments that 
are appropriate. In general, the adjustments required should be 
consistent with the treatment of the corporation as an S corporation 
during the period specified by the Commissioner. In the case of a 
transfer of stock to an ineligible shareholder that causes an 
inadvertent termination under section 1362(f), the Commissioner may 
require the ineligible shareholder to be treated as a shareholder of an 
S corporation during the period the ineligible shareholder actually held 
stock in the corporation. Moreover, the Commissioner may require 
protective adjustments that prevent any loss of revenue due to a 
transfer of stock to an ineligible

[[Page 747]]

shareholder (e.g., a transfer to a nonresident alien).
    (e) Corporation and shareholder consents. The corporation and all 
persons who were shareholders of the corporation at any time during the 
period specified by the Commissioner must consent to any adjustments 
that the Commissioner may require. Each consent should be in the form of 
a statement agreeing to make the adjustments. The statement must be 
signed by the shareholder (in the case of shareholder consent) or a 
person authorized to sign the return required by section 6037 (in the 
case of corporate consent). See Sec. 1.1362-6(b)(2) for persons 
required to sign consents. A shareholder's consent statement should 
include the name, address, and taxpayer identification numbers of the 
corporation and shareholder, the number of shares of stock owned by the 
shareholder, and the dates on which the shareholder owned any stock. The 
corporate consent statement should include the name, address, and 
taxpayer identification numbers of the corporation and each shareholder.
    (f) Status of corporation. The status of the corporation after the 
terminating event and before the determination of inadvertence is 
determined by the Commissioner. Inadvertent termination relief may be 
granted retroactive for all years for which the terminating event was 
effective, in which case the corporation is treated as if its election 
had not terminated. Alternatively, relief may be granted only for the 
period in which the corporation again became eligible for subchapter S 
treatment, in which case the corporation is treated as a C corporation 
during the period for which the corporation was not eligible to be an S 
corporation.

[T.D. 8449, 57 FR 55453, Nov. 25, 1992]



Sec. 1.1362-5  Election after termination.

    (a) In general. Absent the Commissioner's consent, an S corporation 
whose election has terminated (or a successor corporation) may not make 
a new election under section 1362(a) for five taxable years as described 
in section 1362(g). However, the Commissioner may permit the corporation 
to make a new election before the 5-year period expires. The corporation 
has the burden of establishing that under the relevant facts and 
circumstances, the Commissioner should consent to a new election. The 
fact that more than 50 percent of the stock in the corporation is owned 
by persons who did not own any stock in the corporation on the date of 
the termination tends to establish that consent should be granted. In 
the absence of this fact, consent ordinarily is denied unless the 
corporation shows that the event causing termination was not reasonably 
within the control of the corporation or shareholders having a 
substantial interest in the corporation and was not part of a plan on 
the part of the corporation or of such shareholders to terminate the 
election.
    (b) Successor corporation. A corporation is a successor corporation 
to a corporation whose election under section 1362 has been terminated 
if--
    (1) 50 percent or more of the stock of the corporation (the new 
corporation) is owned, directly or indirectly, by the same persons who, 
on the date of the termination, owned 50 percent or more of the stock of 
the corporation whose election terminated (the old corporation); and
    (2) Either the new corporation acquires a substantial portion of the 
assets of the old corporation, or a substantial portion of the assets of 
the new corporation were assets of the old corporation.
    (c) Automatic consent after certain terminations. A corporation may, 
without requesting the Commissioner's consent, make a new election under 
section 1362(a) before the 5-year period described in section 1362(g) 
expires if the termination occurred because the corporation--
    (1) Revoked its election effective on the first day of the first 
taxable year for which its election was to be effective (see Sec. 
1.1362-2(a)(2)); or
    (2) Failed to meet the definition of a small business corporation on 
the first day of the first taxable year for which its election was to be 
effective (see Sec. 1.1362-2(b)(2)).

[T.D. 8449, 57 FR 55454, Nov. 25, 1992]

[[Page 748]]



Sec. 1.1362-6  Elections and consents.

    (a) Time and manner of making elections--(1) In general. An election 
statement made under this section must identify the election being made, 
set forth the name, address, and taxpayer identification number of the 
corporation, and be signed by a person authorized to sign the return 
required to be filed under section 6037.
    (2) Election to be an S corporation--(i) Manner of making election. 
A small business corporation makes an election under section 1362(a) to 
be an S corporation by filing a completed Form 2553. The election form 
must be filed with the service center designated in the instructions 
applicable to Form 2553. The election is not valid unless all 
shareholders of the corporation at the time of the election consent to 
the election in the manner provided in paragraph (b) of this section. 
However, once a valid election is made, new shareholders need not 
consent to that election.
    (ii) Time of making election--(A) In general. The election described 
in paragraph (a)(2)(i) of this section may be made by a small business 
corporation at any time during the taxable year that immediately 
precedes the taxable year for which the election is to be effective, or 
during the taxable year for which the election is to be effective 
provided that the election is made before the 16th day of the third 
month of the year. If a corporation makes an election for a taxable 
year, and the election meets all the requirements of this section but is 
made during the period beginning after the 15th day of the third month 
of the taxable year, the election is treated as being made for the 
following taxable year provided that the corporation meets all the 
requirements of section 1361(b) at the time the election is made. For 
taxable years of 2\1/2\ months or less, an election made before the 16th 
day of the third month after the first day of the taxable year is 
treated as made during that year.
    (B) Elections made during the first 2\1/2\ months treated as made 
for the following taxable year. A timely election made by a small 
business corporation during the taxable year for which it is intended to 
be effective is nonetheless treated as made for the following taxable 
year if--
    (1) The corporation is not a small business corporation during the 
entire portion of the taxable year which occurs before the date the 
election is made; or
    (2) Any person who held stock in the corporation at any time during 
the portion of the taxable year which occurs before the time the 
election is made, and who does not hold stock at the time the election 
is made, does not consent to the election.
    (C) Definition of month and beginning of the taxable year. Month 
means a period commencing on the same numerical day of any calendar 
month as the day of the calendar month on which the taxable year began 
and ending with the close of the day preceding the numerically 
corresponding day of the succeeding calendar month or, if there is no 
corresponding day, with the close of the last day of the succeeding 
calendar month. In addition, the taxable year of a new corporation 
begins on the date that the corporation has shareholders, acquires 
assets, or begins doing business, whichever is the first to occur. The 
existence of incorporators does not necessarily begin the taxable year 
of a new corporation.
    (iii) Examples. The provisions of this section are illustrated by 
the following examples:

    Example 1. Effective election; no prior taxable year. A calendar 
year small business corporation begins its first taxable year on January 
7, 1993. To be an S corporation beginning with its first taxable year, 
the corporation must make the election set forth in this section during 
the period that begins January 7, 1993, and ends before March 22, 1993. 
Because the corporation had no taxable year immediately preceding the 
taxable year for which the election is to be effective, an election made 
earlier than January 7, 1993, will not be valid.
    Example 2. Effective election; taxable year less than 2 \1/2\ 
months. A calendar year small business corporation begins its first 
taxable year on November 8, 1993. To be an S corporation beginning with 
its first taxable year, the corporation must make the election set forth 
in this section during the period that begins November 8, 1993, and ends 
before January 23, 1994.
    Example 3. Election effective for the following taxable year; 
ineligible shareholder. On January 1, 1993, two individuals and a 
partnership

[[Page 749]]

own all of the stock of a calendar year subchapter C corporation. On 
January 31, 1993, the partnership dissolved and distributed its shares 
in the corporation to its five partners, all individuals. On February 
28, 1993, the seven shareholders of the corporation consented to the 
corporation's election of subchapter S status. The corporation files a 
properly completed Form 2533 on March 2, 1993. The corporation is not 
eligible to be a subchapter S corporation for the 1993 taxable year 
because during the period of the taxable year prior to the election it 
had an ineligible shareholder. However, under paragraph (a)(2)(ii)(B) of 
this section, the election is treated as made for the corporation's 1994 
taxable year.

    (3) Revocation of S election--(i) Manner of revoking election. To 
revoke an election, the corporation files a statement that the 
corporation revokes the election made under section 1362(a). The 
statement must be filed with the service center where the election was 
properly filed. The revocation statement must include the number of 
shares of stock (including non-voting stock) issued and outstanding at 
the time the revocation is made. A revocation may be made only with the 
consent of shareholders who, at the time the revocation is made, hold 
more than one-half of the number of issued and outstanding shares of 
stock (including non-voting stock) of the corporation. Each shareholder 
who consents to the revocation must consent in the manner required under 
paragraph (b) of this section. In addition, each consent should indicate 
the number of issued and outstanding shares of stock (including non-
voting stock) held by each shareholder at the time of the revocation.
    (ii) Time of revoking election. For rules concerning when a 
revocation is effective, see Sec. 1.1362-2(a)(2).
    (iii) Examples. The principles of this paragraph (a)(3) are 
illustrated by the following examples:

    Example 1. Revocation; consent of shareholders owning more than one-
half of issued and outstanding shares. A calendar year S corporation has 
issued an outstanding 40,000 shares of class A voting common stock and 
20,000 shares of class B non-voting common stock. The corporation wishes 
to revoke its election of subchapter S status. Shareholders owning 
11,000 shares of class A stock sign revocation consents. Shareholders 
owning 20,000 shares of class B stock sign revocation consents. The 
corporation has obtained the required shareholder consent to revoke its 
subchapter S election because shareholders owning more than one-half of 
the total number of issued and outstanding shares of stock of the 
corporation consented to the revocation.
    Example 2. Effective prospective revocation. In June 1993, a 
calendar year S corporation determines that it will revoke its 
subchapter S election effective August 1, 1993. To do so it must file 
its revocation statement with consents attached on or before August 1, 
1993, and the statement must indicate that the revocation is intended to 
be effective August 1, 1993.

    (4) Rescission of revocation--(i) Manner of rescinding a revocation. 
To rescind a revocation, the corporation files a statement that the 
corporation rescinds the revocation made under section 1362(d)(1). The 
statement must be filed with the service center where the revocation was 
properly filed. A rescission may be made only with the consent (in the 
manner required under paragraph (b)(1) of this section) of each person 
who consented to the revocation and of each person who became a 
shareholder of the corporation within the period beginning on the first 
day after the date the revocation was made and ending on the date on 
which the rescission is made.
    (ii) Time of rescinding a revocation. If the rescission statement is 
filed before the revocation becomes effective and is filed with proper 
service center, the rescission is effective on the date it is so filed.
    (5) Election not to apply pro rata allocation. To elect not to apply 
the pro rata allocation rules to an S termination year, a corporation 
files a statement that it elects under section 1362(e)(3) not to apply 
the rules provided in section 1362(e)(2). In addition to meeting the 
requirements of paragraph (a)(1) of this section, the statement must set 
forth the cause of the termination and the date thereof. The statement 
must be filed with the corporation's return for the C short year. This 
election may be made only with the consent of all persons who are 
shareholders of the corporation at any time during the S short year and 
all persons who are shareholders of the corporation on the first day of 
the C short year (in the manner required under paragraph (b)(1) of this 
section).

[[Page 750]]

    (b) Shareholders' consents--(1) Manner of consents in general. A 
shareholder's consent required under paragraph (a) of this section must 
be in the form of a written statement that sets forth the name, address, 
and taxpayer identification number of the shareholder, the number of 
shares of stock owned by the shareholder, the date (or dates) on which 
the stock was acquired, the date on which the shareholder's taxable year 
ends, the name of the S corporation, the corporation's taxpayer 
identification number, and the election to which the shareholder 
consents. The statement must be signed by the shareholder under 
penalties of perjury. Except as provided in paragraph (b)(3)(iii) of 
this section, the election of the corporation is not valid if any 
required consent is not filed in accordance with the rules contained in 
this paragraph (b). The consent statement should be attached to the 
corporation's election statement.
    (2) Persons required to consent. The following rules apply in 
determining persons required to consent:
    (i) Community interest in stock. When stock of the corporation is 
owned by husband and wife as community property (or the income from the 
stock is community property), or is owned by tenants in common, joint 
tenants, or tenants by the entirety, each person having a community 
interest in the stock or income therefrom and each tenant in common, 
joint tenant and tenant by the entirety must consent to the election.
    (ii) Minor. The consent of a minor must be made by the minor or by 
the legal representative of the minor (or by a natural or an adoptive 
parent of the minor if no legal representative has been appointed).
    (iii) Estate. The consent of an estate must be made by an executor 
or administrator thereof, or by any other fiduciary appointed by 
testamentary instrument or appointed by the court having jurisdiction 
over the administration of the estate.
    (iv) Trusts. In the case of a trust described in section 
1361(c)(2)(A) (including a trust treated under section 1361(d)(1)(A) as 
a trust described in section 1361(c)(2)(A)(i) and excepting an electing 
small business trust described in section 1361(c)(2)(A)(v) (ESBT)), only 
the person treated as the shareholder for purposes of section 1361(b)(1) 
must consent to the election. When stock of the corporation is held by a 
trust, both husband and wife must consent to any election if the husband 
and wife have a community interest in the trust property. See paragraph 
(b)(2)(i) of this section for rules concerning community interests in S 
corporation stock. In the case of an ESBT, the trustee and the owner of 
any portion of the trust that consists of the stock in one or more S 
corporations under subpart E, part I, subchapter J, chapter 1 of the 
Internal Revenue Code must consent to the S corporation election. If 
there is more than one trustee, the trustee or trustees with authority 
to legally bind the trust must consent to the S corporation election.
    (3) Special rules for consent of shareholder to election to be an S 
corporation--(i) In general. The consent of a shareholder to an election 
by a small business corporation under section 1362(a) may be made on 
Form 2553 or on a separate statement in the manner described in 
paragraph (b)(1) of this section. In addition, the separate statement 
must set forth the name, address, and taxpayer identification number of 
the corporation. A shareholder's consent is binding and may not be 
withdrawn after a valid election is made by the corporation. Each person 
who is a shareholder (including any person who is treated as a 
shareholder under section 1361(c)(2)(B)) at the time the election is 
made) must consent to the election. If the election is made before the 
16th day of the third month of the taxable year and is intended to be 
effective for that year, each person who was a shareholder (including 
any person who was treated as a shareholder under section 1361(c)(2)(B)) 
at any time during the portion of that year which occurs before the time 
the election is made, and who is not a shareholder at the time the 
election is made, must also consent to the election. If the election is 
to be effective for the following taxable year, no consent need be filed 
by any shareholder who is not a shareholder on the date of the election. 
Any person who is considered to be a shareholder under applicable State

[[Page 751]]

law solely by virtue of his or her status as an incorporator is not 
treated as a shareholder for purposes of this paragraph (b)(3)(i).
    (ii) Examples. The principles of this section are illustrated by the 
following examples:

    Example 1. Effective election; shareholder consents. On January 1, 
1993, the first day of its taxable year, a subchapter C corporation had 
15 shareholders. On January 30, 1993, two of the C corporation's 
shareholders, A and B, both individuals, sold their shares in the 
corporation to P, Q, and R, all individuals. On March 1, 1993, the 
corporation filed its election to be an S corporation for the 1993 
taxable year. The election will be effective (assuming the other 
requirements of section 1361(b) are met) provided that all of the 
shareholders as of March 1, 1993, as well as former shareholders A and 
B, consent to the election.
    Example 2. Consent of new shareholder unnecessary. On January 1, 
1993, three individuals own all of the stock of a calendar year 
subchapter C corporation. On April 15, 1993, the corporation, in 
accordance with paragraph (a)(2) of this section, files a properly 
completed Form 2553. The corporation anticipates that the election will 
be effective beginning January 1, 1994, the first day of the succeeding 
taxable year. On October 1, 1993, the three shareholders collectively 
sell 75% of their shares in the corporation to another individual. On 
January 1, 1994, the corporation's shareholders are the three original 
individuals and the new shareholder. Because the election was valid and 
binding when made, it is not necessary for the new shareholder to 
consent to the election. The corporation's subchapter S election is 
effective on January 1, 1994 (assuming the other requirements of section 
1361(b) are met).

    (iii) Extension of time for filing consents to an election--(A) In 
general. An election that is timely filed for any taxable year and that 
would be valid except for the failure of any shareholder to file a 
timely consent is not invalid if consents are filed as required under 
paragraph (b)(3)(iii)(B) of this section and it is shown to the 
satisfaction of the district director or director of the service center 
with which the corporation files its income tax return that--
    (1) There was reasonable cause for the failure to file the consent;
    (2) The request for the extension of time to file a consent is made 
within a reasonable time under the circumstances; and
    (3) The interests of the Government will not be jeopardized by 
treating the election as valid.
    (B) Required consents. Consents must be filed within the extended 
period of time as may be granted by the Internal Revenue Service, by all 
persons who--
    (1) Were shareholders of the corporation at any time during the 
period beginning as of the date of the invalid election and ending on 
the date on which an extension of time is granted in accordance with 
this paragraph (b)(3)(iii); and
    (2) Have not previously consented to the election.

[T.D. 8449, 57 FR 55454, Nov. 25, 1992, as amended by T.D. 8994, 67 FR 
34400, May 14, 2002]



Sec. 1.1362-7  Effective dates.

    (a) In general. The provisions of Sec. Sec. 1.1362-1 through 
1.1362-6 apply to taxable years of corporations beginning after December 
31, 1992. For taxable years to which these regulations do not apply, 
corporations and shareholders subject to the provisions of section 1362 
must take reasonable return positions taking into consideration the 
statute; its legislative history; the provisions of Sec. Sec. 18.1362-1 
through 18.1362-5 (see 26 CFR part 18 as contained in the CFR edition 
revised as of April 1, 1992). In addition, following these regulations 
is a reasonable return position. See Notice 92-56, 1992-49 I.R.B. (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter), for additional guidance 
regarding reasonable return positions for years to which Sec. Sec. 
1.362-1 through 1.1362-6 do not apply. Section 1.1362-6(b)(2)(iv) is 
applicable for taxable years beginning on and after May 14, 2002.
    (b) Special effective date for passive investment income provisions. 
For taxable years of an S corporation and all affected shareholders that 
are not closed, the S corporation and all affected shareholders may 
elect to apply the provisions of Sec. 1.1362-2(c)(5). To make the 
election, the corporation and all affected shareholders must file a 
return or an amended return that is consistent with these rules for the 
taxable year for which the election is made and

[[Page 752]]

each subsequent taxable year. For purposes of this section, affected 
shareholders means all shareholders who received distributive shares of 
S corporation items in the taxable year for which the election is made 
and all shareholders of the S corporation for all subsequent taxable 
years. However, the Commissioner may, in appropriate circumstances, 
permit taxpayers to make this election even if all affected shareholders 
cannot file consistent returns.

[T.D. 8449, 57 FR 55456, Nov. 25, 1992, as amended by T.D. 8994, 67 FR 
34401, May 14, 2002]



Sec. 1.1362-8  Dividends received from affiliated subsidiaries.

    (a) In general. For purposes of section 1362(d)(3), if an S 
corporation holds stock in a C corporation meeting the requirements of 
section 1504(a)(2), the term passive investment income does not include 
dividends from the C corporation to the extent those dividends are 
attributable to the earnings and profits of the C corporation derived 
from the active conduct of a trade or business (active earnings and 
profits). For purposes of applying section 1362(d)(3), earnings and 
profits of a C corporation are active earnings and profits to the extent 
that the earnings and profits are derived from activities that would not 
produce passive investment income (as defined in section 1362(d)(3)) if 
the C corporation were an S corporation.
    (b) Determination of active or passive earnings and profits--(1) In 
general. An S corporation may use any reasonable method to determine the 
amount of dividends that are not treated as passive investment income 
under section 1362(d)(3)(E). Paragraph (b)(5) of this section describes 
a method of determining the amount of dividends that are not treated as 
passive investment income under section 1362(d)(3)(E) that is deemed to 
be reasonable under all circumstances.
    (2) Lower tier subsidiaries. If a C corporation subsidiary (upper 
tier corporation) holds stock in another C corporation (lower tier 
subsidiary) meeting the requirements of section 1504(a)(2), the upper 
tier corporation's gross receipts attributable to a dividend from the 
lower tier subsidiary are considered to be derived from the active 
conduct of a trade or business to the extent the lower tier subsidiary's 
earnings and profits are attributable to the active conduct of a trade 
or business by the subsidiary under paragraph (b) (1), (3), (4), or (5) 
of this section. For purposes of this section, distributions by the 
lower tier subsidiary will be considered attributable to active earnings 
and profits according to the rule in paragraph (c) of this section. This 
paragraph (b)(2) does not apply to any member of a consolidated group 
(as defined in Sec. 1.1502-1(h)).
    (3) De minimis exception. If less than 10 percent of a C 
corporation's earnings and profits for a taxable year are derived from 
activities that would produce passive investment income if the C 
corporation were an S corporation, all earnings and profits produced by 
the corporation during that taxable year are considered active earnings 
and profits.
    (4) Special rules for earnings and profits accumulated by a C 
corporation prior to 80 percent acquisition. A C corporation may treat 
all earnings and profits accumulated by the corporation in all taxable 
years ending before the S corporation held stock meeting the 
requirements of section 1504(a)(2) as active earnings and profits in the 
same proportion as the C corporation's active earnings and profits for 
the three taxable years ending prior to the time when the S corporation 
acquired 80 percent of the C corporation bears to the C corporation's 
total earnings and profits for those three taxable years.
    (5) Gross receipts safe harbor. A corporation may treat its earnings 
and profits for a year as active earnings and profits in the same 
proportion as the corporation's gross receipts (as defined in Sec. 
1.1362-2(c)(4)) derived from activities that would not produce passive 
investment income (if the C corporation were an S corporation), 
including those that do not produce passive investment income under 
paragraphs (b)(2) through (b)(4) of this section, bear to the 
corporation's total gross receipts for the year in which the earnings 
and profits are produced.
    (c) Allocating distributions to active or passive earnings and 
profits--(1) Distributions from current earnings and profits.

[[Page 753]]

Dividends distributed by a C corporation from current earnings and 
profits are attributable to active earnings and profits in the same 
proportion as current active earnings and profits bear to total current 
earnings and profits of the C corporation.
    (2) Distributions from accumulated earnings and profits. Dividends 
distributed by a C corporation out of accumulated earnings and profits 
for a taxable year are attributable to active earnings and profits in 
the same proportion as accumulated active earnings and profits for that 
taxable year bear to total accumulated earnings and profits for that 
taxable year immediately prior to the distribution.
    (3) Adjustments to active earnings and profits. For purposes of 
applying paragraph (c) (1) or (2) of this section to a distribution, the 
active earnings and profits of a corporation shall be reduced by the 
amount of any prior distribution properly treated as attributable to 
active earnings and profits from the same taxable year.
    (4) Special rules for consolidated groups. For purposes of applying 
section 1362(d)(3) and this section to dividends received by an S 
corporation from the common parent of a consolidated group (as defined 
in Sec. 1.1502-1(h)), the following rules apply--
    (i) The current earnings and profits, accumulated earnings and 
profits, and active earnings and profits of the common parent shall be 
determined under the principles of Sec. 1.1502-33 (relating to earnings 
and profits of any member of a consolidated group owning stock of 
another member); and
    (ii) The gross receipts of the common parent shall be the sum of the 
gross receipts of each member of the consolidated group (including the 
common parent), adjusted to eliminate gross receipts from intercompany 
transactions (as defined in Sec. 1.1502-13(b)(1)(i)).
    (d) Examples. The following examples illustrate the principles of 
this section:

    Example 1. (i) X, an S corporation, owns 85 percent of the one class 
of stock of Y. On December 31, 2002, Y declares a dividend of $100 ($85 
to X), which is equal to Y's current earnings and profits. In 2002, Y 
has total gross receipts of $1,000, $200 of which would be passive 
investment income if Y were an S corporation.
    (ii) One-fifth ($200/$1,000) of Y's gross receipts for 2002 is 
attributable to activities that would produce passive investment income. 
Accordingly, one-fifth of the $100 of earnings and profits is passive, 
and $17 (\1/5\ of $85) of the dividend from Y to X is passive investment 
income.
    Example 2. (i) The facts are the same as in Example 1, except that Y 
owns 90 percent of the stock of Z. Y and Z do not join in the filing of 
a consolidated return. In 2002, Z has gross receipts of $15,000, $12,000 
of which are derived from activities that would produce passive 
investment income. On December 31, 2002, Z declares a dividend of $1,000 
($900 to Y) from current earnings and profits.
    (ii) Four-fifths ($12,000/$15,000) of the dividend from Z to Y are 
attributable to passive earnings and profits. Accordingly, $720 (\4/5\ 
of $900) of the dividend from Z to Y is considered gross receipts from 
an activity that would produce passive investment income. The $900 
dividend to Y gives Y a total of $1,900 ($1,000 + $900) in gross 
receipts, $920 ($200 + $720) of which is attributable to passive 
investment income-producing activities. Under these facts, $41 ($920/
$1,900 of $85) of Y's distribution to X is passive investment income to 
X.

    (e) Effective date. This section applies to dividends received in 
taxable years beginning on or after January 20, 2000; however, taxpayers 
may elect to apply the regulations in whole, but not in part, for 
taxable years beginning on or after January 1, 2000, provided all 
affected taxpayers apply the regulations in a consistent manner. To make 
this election, the corporation and all affected taxpayers must file a 
return or an amended return that is consistent with these rules for the 
taxable year for which the election is made. For purposes of this 
section, affected taxpayers means all taxpayers whose returns are 
affected by the election to apply the regulations.

[T.D. 8869, 65 FR 3854, Jan. 25, 2000; 65 FR 16318, Mar. 28, 2000]



Sec. 1.1363-1  Effect of election on corporation.

    (a) Exemption of corporation from income tax--(1) In general. Except 
as provided in this paragraph (a), a small business corporation that 
makes a valid election under section 1362(a) is exempt from the taxes 
imposed by chapter 1 of the Internal Revenue Code with respect to 
taxable years of the corporation for which the election is in effect.

[[Page 754]]

    (2) Corporate level taxes. An S corporation is not exempt from the 
tax imposed by section 1374 (relating to the tax imposed on certain 
built-in gains), or section 1375 (relating to the tax on excess passive 
investment income). See also section 1363(d) (relating to the recapture 
of LIFO benefits) for the rules regarding the payment by an S 
corporation of LIFO recapture amounts.
    (b) Computation of corporate taxable income. The taxable income of 
an S corporation is computed as described in section 1363(b).
    (c) Elections of the S corporation--(1) In general. Any elections 
(other than those described in paragraph (c)(2) of this section) 
affecting the computation of items derived from an S corporation are 
made by the corporation. For example, elections of methods of 
accounting, of computing depreciation, of treating soil and water 
conservation expenditures, and the option to deduct as expenses 
intangible drilling and development costs, are made by the corporation 
and not by the shareholders separately. All corporate elections are 
applicable to all shareholders.
    (2) Exceptions. (i) Each shareholder's pro rata share of expenses 
described in section 617 paid or accrued by the S corporation is treated 
according to the shareholder's method of treating those expenses, 
notwithstanding the treatment of the expenses by the corporation.
    (ii) Each shareholder may elect to amortize that shareholder's pro 
rata share of any qualified expenditure described in section 59(e) paid 
or accrued by the S corporation.
    (iii) Each shareholder's pro rata share of taxes described in 
section 901 paid or accrued by the S corporation to foreign countries or 
possessions of the United States (according to its method of treating 
those taxes) is treated according to the shareholder's method of 
treating those taxes, and each shareholder may elect to use the total 
amount either as a credit against tax or as a deduction from income.
    (d) Effective date. This section applies to taxable years of 
corporations beginning after December 31, 1992. For taxable years to 
which this section does not apply, corporations and shareholders subject 
to the provisions of section 1363 must take reasonable return positions 
taking into consideration the statute, its legislative history and these 
regulations. See Notice 92-56, 1992-49 I.R.B. (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), for additional guidance regarding 
reasonable return positions for taxable years to which this section does 
not apply.

[T.D. 8449, 57 FR 55456, Nov. 25, 1992]



Sec. 1.1363-2  Recapture of LIFO benefits.

    (a) In general. A C corporation must include the LIFO recapture 
amount (as defined in section 1363(d)(3)) in its gross income--
    (1) In its last taxable year as a C corporation if the corporation 
inventoried assets under the LIFO method for its last taxable year 
before its S corporation election becomes effective; or
    (2) In the year of transfer by the C corporation to an S corporation 
of the LIFO inventory assets if paragraph (a)(1) of this section does 
not apply and the C corporation--
    (i) Inventoried assets under the LIFO method during the taxable year 
of the transfer of those LIFO inventory assets; and
    (ii) Transferred the LIFO inventory assets to the S corporation in a 
nonrecognition transaction (within the meaning of section 7701(a)(45)) 
in which the transferred assets constitute transferred basis property 
(within the meaning of section 7701(a)(43)).
    (b) LIFO inventory held indirectly through partnership. A C 
corporation must include the lookthrough LIFO recapture amount (as 
defined in paragraph (c)(4) of this section) in its gross income--
    (1) In its last taxable year as a C corporation if, on the last day 
of the corporation's last taxable year before its S corporation election 
becomes effective, the corporation held a lookthrough partnership 
interest (as defined in paragraph (c)(3) of this section); or
    (2) In the year of transfer by the C corporation to an S corporation 
of a lookthrough partnership interest if the corporation transferred its 
lookthrough partnership interest to the S corporation in a 
nonrecognition transaction (within the meaning of section 7701(a)(45)) 
in which the transferred interest constitutes transferred

[[Page 755]]

basis property (within the meaning of section 7701(a)(43)).
    (c) Definitions and special rules--(1) Recapture date. In the case 
of a transaction described in paragraph (a)(1) or (b)(1) of this 
section, the recapture date is the day before the effective date of the 
S corporation election. In the case of a transaction described in 
paragraph (a)(2) or (b)(2) of this section, the recapture date is the 
date of the transfer of the partnership interest to the S corporation.
    (2) Determination of LIFO recapture amount. The LIFO recapture 
amount shall be determined as of the end of the recapture date for 
transactions described in paragraph (a)(1) of this section, and as of 
the moment before the transfer occurs for transactions described in 
paragraph (a)(2) of this section.
    (3) Lookthrough partnership interest. A partnership interest is a 
lookthrough partnership interest if the partnership owns (directly or 
indirectly through one or more partnerships) assets accounted for under 
the last-in, first-out (LIFO) method (LIFO inventory).
    (4) Lookthrough LIFO recapture amount--(i) In general. For purposes 
of this section, a corporation's lookthrough LIFO recapture amount is 
the amount of income that would be allocated to the corporation, taking 
into account section 704(c) and Sec. 1.704-3, if the partnership sold 
all of its LIFO inventory for the inventory's FIFO value. For this 
purpose, the FIFO value of inventory is the inventory amount of the 
inventory assets under the first-in, first-out method of accounting 
authorized by section 471, determined in accordance with section 
1363(d)(4)(C).
    (ii) Determination of lookthrough LIFO recapture amount. Except as 
provided in paragraph (c)(4)(iii) of this section, the lookthrough LIFO 
recapture amount shall be determined as of the end of the recapture date 
for transactions described in paragraph (b)(1) of this section, and as 
of the moment before the transfer occurs for transactions described in 
paragraph (b)(2) of this section.
    (iii) Alternative rule. If the partnership is not otherwise required 
to determine the inventory amount of the inventory using the LIFO method 
(the LIFO value) on the recapture date, the partnership may determine 
the lookthrough LIFO recapture amount as though the FIFO and LIFO values 
of the inventory on the recapture date equaled the FIFO and LIFO values 
of the opening inventory for the partnership's taxable year that 
includes the recapture date. For this purpose, the opening inventory 
includes inventory contributed by a partner to the partnership on or 
before the recapture date and excludes inventory distributed by the 
partnership to a partner on or before the recapture date. A partnership 
that applies the alternative method of this paragraph (c)(4)(iii) to 
calculate the lookthrough LIFO recapture amount must take into account 
any adjustments to the partnership's basis in its LIFO inventory that 
result from transactions occurring after the start of the partnership's 
taxable year and before the end of the recapture date. For example, the 
lookthrough LIFO recapture amount must be adjusted to take into account 
any adjustments to the basis of LIFO inventory during that period under 
sections 734(b), 737(c), or 751(b).
    (d) Payment of tax. Any increase in tax caused by including the LIFO 
recapture amount or the lookthrough LIFO recapture amount in the gross 
income of the C corporation is payable in four equal installments. The C 
corporation must pay the first installment of this payment by the due 
date of its return, determined without regard to extensions, for the 
last taxable year it operated as a C corporation if paragraph (a)(1) or 
(b)(1) of this section applies, or for the taxable year of the transfer 
if paragraph (a)(2) or (b)(2) of this section applies. The three 
succeeding installments must be paid--
    (1) For a transaction described in paragraph (a)(1) or (b)(1) of 
this section, by the corporation that made the election under section 
1362(a) to be an S corporation, on or before the due date for the 
corporation's returns (determined without regard to extensions) for the 
succeeding three taxable years; and
    (2) For a transaction described in paragraph (a)(2) or (b)(2) of 
this section, by the transferee S corporation

[[Page 756]]

on or before the due date for the transferee corporation's returns 
(determined without regard to extensions) for the succeeding three 
taxable years.
    (e) Basis adjustments--(1) General rule. Appropriate adjustments to 
the basis of inventory are to be made to reflect any amount included in 
income under paragraph (a) of this section.
    (2) LIFO inventory owned through a partnership--(i) Basis of 
corporation's partnership interest. Appropriate adjustments to the basis 
of the corporation's lookthrough partnership interest are to be made to 
reflect any amount included in income under paragraph (b) of this 
section.
    (ii) Basis of partnership assets. A partnership directly holding 
LIFO inventory that is taken into account under paragraph (b) of this 
section may elect to adjust the basis of that LIFO inventory. In 
addition, a partnership that holds, through another partnership, LIFO 
inventory that is taken into account under paragraph (b) of this section 
may elect to adjust the basis of that partnership interest. Any 
adjustment under this paragraph (e)(2) to the basis of inventory held by 
the partnership is equal to the amount of LIFO recapture attributable to 
the inventory. Likewise, any adjustment under this paragraph (e)(2) to 
the basis of a lookthrough partnership interest held by the partnership 
is equal to the amount of LIFO recapture attributable to the interest. A 
basis adjustment under this paragraph (e)(2) is treated in the same 
manner and has the same effect as an adjustment to the basis of 
partnership property under section 743(b). See Sec. 1.743-1(j).
    (3) Election. A partnership elects to adjust the basis of its 
inventory and any lookthrough partnership interest that it owns by 
attaching a statement to its original or amended income tax return for 
the first taxable year ending on or after the date of the S corporation 
election or transfer described in paragraph (b) of this section. This 
statement shall state that the partnership is electing under this 
paragraph (e)(3) and must include the names, addresses, and taxpayer 
identification numbers of any corporate partner liable for tax under 
paragraph (d) of this section and of the partnership, as well as the 
amount of the adjustment and the portion of the adjustment that is 
attributable to each pool of inventory or lookthrough partnership 
interest that is held by the partnership.
    (f) Examples. The following examples illustrate the rules of this 
section:

    Example 1. (i) G is a C corporation with a taxable year ending on 
June 30. GH is a partnership with a calendar year taxable year. G has a 
20 percent interest in GH. The remaining 80 percent interest is owned by 
an individual. On April 25, 2005, G contributed inventory that is LIFO 
inventory to GH, increasing G's interest in the partnership to 50 
percent. GH holds no other LIFO inventory, and there are no other 
adjustments to the partnership's basis in its LIFO inventory between 
January 1, 2005 and the end of the recapture date. G elects to be an S 
corporation effective July 1, 2005. The recapture date is June 30, 2005 
under paragraph (c)(1) of this section. GH elects to use the LIFO method 
for the inventory and determines that the FIFO and LIFO values of the 
opening inventory for GH's 2005 taxable year, including the inventory 
contributed by G, are $200 and $120, respectively.
    (ii) Under paragraph (c)(4)(iii) of this section, GH is not required 
to determine the FIFO and LIFO values of the inventory on the recapture 
date. Instead, GH may determine the lookthrough LIFO recapture amount as 
though the FIFO and LIFO values of the inventory on the recapture date 
equaled the FIFO and LIFO values of the opening inventory for the 
partnership's taxable year (2005) that includes the recapture date. For 
this purpose, under paragraph (c)(4) of this section, the opening 
inventory includes the inventory contributed by G. The amount by which 
the FIFO value ($200) exceeds the LIFO value ($120) in GH's opening 
inventory is $80. Thus, if GH sold all of its LIFO inventory for $200, 
it would recognize $80 of income. G's lookthrough LIFO recapture amount 
is $80, the amount of income that would be allocated to G, taking into 
account section 704(c) and Sec. 1.704-3, if GH sold all of its LIFO 
inventory for the FIFO value. Under paragraph (b)(1) of this section, G 
must include $80 in income in its taxable year ending on June 30, 2005. 
Under paragraph (e)(2) of this section, G must increase its basis in its 
interest in GH by $80. Under paragraphs (e)(2) and (3) of this section, 
and in accordance with section 743(b) principles, GH may elect to 
increase the basis (with respect to G only) of its LIFO inventory by 
$80.
    Example 2. (i) J is a C corporation with a calendar year taxable 
year. JK is a partnership with a calendar year taxable year. J has a 30 
percent interest in the partnership. JK owns LIFO inventory that is not 
section

[[Page 757]]

704(c) property. J elects to be an S corporation effective January 1, 
2005. The recapture date is December 31, 2004 under paragraph (c)(1) of 
this section. JK determines that the FIFO and LIFO values of the 
inventory on December 31, 2004 are $240 and $140, respectively.
    (ii) The amount by which the FIFO value ($240) exceeds the LIFO 
value ($140) on the recapture date is $100. Thus, if JK sold all of its 
LIFO inventory for $240, it would recognize $100 of income. J's 
lookthrough LIFO recapture amount is $30, the amount of income that 
would be allocated to J if JK sold all of its LIFO inventory for the 
FIFO value (30 percent of $100). Under paragraph (b)(1) of this section, 
J must include $30 in income in its taxable year ending on December 31, 
2004. Under paragraph (e)(2) of this section, J must increase its basis 
in its interest in JK by $30. Under paragraphs (e)(2) and (3) of this 
section, and in accordance with section 743(b) principles, JK may elect 
to increase the basis (with respect to J only) of its inventory by $30.

    (g) Effective dates. (1) The provisions of paragraph (a)(1) of this 
section apply to S elections made after December 17, 1987. For an 
exception, see section 10227(b)(2) of the Revenue Act of 1987.
    (2) The provisions of paragraph (a)(2) of this section apply to 
transfers made after August 18, 1993.
    (3) The provisions of paragraphs (b), (c), (d), (e)(2), (e)(3), and 
(f) of this section apply to S elections and transfers made on or after 
August 13, 2004. The rules that apply to S elections and transfers made 
before August 13, 2004, are contained in Sec. 1.1363-2 as in effect 
prior to August 13, 2004 (see 26 CFR part 1 revised as of April 1, 
2005).

[T.D. 8567, 59 FR 51106, Oct. 7, 1994, as amended by T.D. 9210, 70 FR 
39921, July 12, 2005]



Sec. 1.1366-0  Table of contents.

    The following table of contents is provided to facilitate the use of 
Sec. Sec. 1.1366-1 through 1.1366-5:

    Sec. 1.1366-1 Shareholder's share of items of an S corporation.

    (a) Determination of shareholder's tax liability.
    (1) In general.
    (2) Separately stated items of income, loss, deduction, or credit.
    (3) Nonseparately computed income or loss.
    (4) Separate activities requirement.
    (5) Aggregation of deductions or exclusions for purposes of 
limitations.
    (b) Character of items constituting pro rata share.
    (1) In general.
    (2) Exception for contribution of noncapital gain property.
    (3) Exception for contribution of capital loss property.
    (c) Gross income of a shareholder.
    (1) In general.
    (2) Gross income for substantial omission of items.
    (d) Shareholders holding stock subject to community property laws.
    (e) Net operating loss deduction of shareholder of S corporation.
    (f) Cross-reference.

  Sec. 1.1366-2 Limitations on deduction of passthrough items of an S 
                    corporation to its shareholders.

    (a) In general.
    (1) Limitation on losses and deductions.
    (2) Carryover of disallowance.
    (3) Basis limitation amount.
    (i) Stock portion.
    (ii) Indebtedness portion.
    (4) Limitation on losses and deductions allocated to each item.
    (5) Nontransferability of losses and deductions.
    (6) Basis of stock acquired by gift.
    (b) Special rules for carryover of disallowed losses and deductions 
to post-termination transition period described in section 1377(b).
    (1) In general.
    (2) Limitation on losses and deductions.
    (3) Limitation on losses and deductions allocated to each item.
    (4) Adjustment to the basis of stock.
    (c) Carryover of disallowed losses and deductions in the case of 
liquidations, reorganizations, and divisions.
    (1) Liquidations and reorganizations.
    (2) Corporate separations to which section 368(a)(1)(D) applies.

               Sec. 1.1366-3 Treatment of family groups.

    (a) In general.
    (b) Examples.

 Sec. 1.1366-4 Special rules limiting the passthrough of certain items 
                of an S corporation to its shareholders.

    (a) Passthrough inapplicable to section 34 credit.
    (b) Reduction in passthrough for tax imposed on built-in gains.
    (c) Reduction in passthrough for tax imposed on excess net passive 
income.

                     Sec. 1.1366-5 Effective date.

[T.D. 8852, 64 FR 71644, Dec. 22, 1999]

[[Page 758]]



Sec. 1.1366-1  Shareholder's share of items of an S corporation.

    (a) Determination of shareholder's tax liability--(1) In general. An 
S corporation must report, and a shareholder is required to take into 
account in the shareholder's return, the shareholder's pro rata share, 
whether or not distributed, of the S corporation's items of income, 
loss, deduction, or credit described in paragraphs (a)(2), (3), and (4) 
of this section. A shareholder's pro rata share is determined in 
accordance with the provisions of section 1377(a) and the regulations 
thereunder. The shareholder takes these items into account in 
determining the shareholder's taxable income and tax liability for the 
shareholder's taxable year with or within which the taxable year of the 
corporation ends. If the shareholder dies (or if the shareholder is an 
estate or trust and the estate or trust terminates) before the end of 
the taxable year of the corporation, the shareholder's pro rata share of 
these items is taken into account on the shareholder's final return. For 
the limitation on allowance of a shareholder's pro rata share of S 
corporation losses or deductions, see section 1366(d) and Sec. 1.1366-
2.
    (2) Separately stated items of income, loss, deduction, or credit. 
Each shareholder must take into account separately the shareholder's pro 
rata share of any item of income (including tax-exempt income), loss, 
deduction, or credit of the S corporation that if separately taken into 
account by any shareholder could affect the shareholder's tax liability 
for that taxable year differently than if the shareholder did not take 
the item into account separately. The separately stated items of the S 
corporation include, but are not limited to, the following items--
    (i) The corporation's combined net amount of gains and losses from 
sales or exchanges of capital assets grouped by applicable holding 
periods, by applicable rate of tax under section 1(h), and by any other 
classification that may be relevant in determining the shareholder's tax 
liability;
    (ii) The corporation's combined net amount of gains and losses from 
sales or exchanges of property described in section 1231 (relating to 
property used in the trade or business and involuntary conversions), 
grouped by applicable holding periods, by applicable rate of tax under 
section 1(h), and by any other classification that may be relevant in 
determining the shareholder's tax liability;
    (iii) Charitable contributions, grouped by the percentage 
limitations of section 170(b), paid by the corporation within the 
taxable year of the corporation;
    (iv) The taxes described in section 901 that have been paid (or 
accrued) by the corporation to foreign countries or to possessions of 
the United States;
    (v) Each of the corporation's separate items involved in the 
determination of credits against tax allowable under part IV of 
subchapter A (section 21 and following) of the Internal Revenue Code, 
except for any credit allowed under section 34 (relating to certain uses 
of gasoline and special fuels);
    (vi) Each of the corporation's separate items of gains and losses 
from wagering transactions (section 165(d)); soil and water conservation 
expenditures (section 175); deduction under an election to expense 
certain depreciable business expenses (section 179); medical, dental, 
etc., expenses (section 213); the additional itemized deductions for 
individuals provided in part VII of subchapter B (section 212 and 
following) of the Internal Revenue Code; and any other itemized 
deductions for which the limitations on itemized deductions under 
sections 67 or 68 applies;
    (vii) Any of the corporation's items of portfolio income or loss, 
and expenses related thereto, as defined in the regulations under 
section 469;
    (viii) The corporation's tax-exempt income. For purposes of 
subchapter S, tax-exempt income is income that is permanently excludible 
from gross income in all circumstances in which the applicable provision 
of the Internal Revenue Code applies. For example, income that is 
excludible from gross income under section 101 (certain death benefits) 
or section 103 (interest on state and local bonds) is tax-exempt income, 
while income that is excludible from gross income under section 108 
(income from discharge of indebtedness) or section 109 (improvements by

[[Page 759]]

lessee on lessor's property) is not tax-exempt income;
    (ix) The corporation's adjustments described in sections 56 and 58, 
and items of tax preference described in section 57; and
    (x) Any item identified in guidance (including forms and 
instructions) issued by the Commissioner as an item required to be 
separately stated under this paragraph (a)(2).
    (3) Nonseparately computed income or loss. Each shareholder must 
take into account separately the shareholder's pro rata share of the 
nonseparately computed income or loss of the S corporation. For this 
purpose, nonseparately computed income or loss means the corporation's 
gross income less the deductions allowed to the corporation under 
chapter 1 of the Internal Revenue Code, determined by excluding any item 
requiring separate computation under paragraph (a)(2) of this section.
    (4) Separate activities requirement. An S corporation must report, 
and each shareholder must take into account in the shareholder's return, 
the shareholder's pro rata share of an S corporation's items of income, 
loss, deduction, or credit described in paragraphs (a)(2) and (3) of 
this section for each of the corporation's activities as defined in 
section 469 and the regulations thereunder.
    (5) Aggregation of deductions or exclusions for purposes of 
limitations--(i) In general. A shareholder aggregates the shareholder's 
separate deductions or exclusions with the shareholder's pro rata share 
of the S corporation's separately stated deductions or exclusions in 
determining the amount of any deduction or exclusion allowable to the 
shareholder under subtitle A of the Internal Revenue Code as to which a 
limitation is imposed.
    (ii) Example. The provisions of paragraph (a)(5)(i) of this section 
are illustrated by the following example:

    Example. In 1999, Corporation M, a calendar year S corporation, 
purchases and places in service section 179 property costing $10,000. 
Corporation M elects to expense the entire cost of the property. 
Shareholder A owns 50 percent of the stock of Corporation M. Shareholder 
A's pro rata share of this item after Corporation M applies the section 
179(b) limitations is $5,000. Because the aggregate amount of 
Shareholder A's pro rata share and separately acquired section 179 
expense may not exceed $19,000 (the aggregate maximum cost that may be 
taken into account under section 179(a) for the applicable taxable 
year), Shareholder A may elect to expense up to $14,000 of separately 
acquired section 179 property that is purchased and placed in service in 
1999, subject to the limitations of section 179(b).

    (b) Character of items constituting pro rata share--(1) In general. 
Except as provided in paragraph (b)(2) or (3) of this section, the 
character of any item of income, loss, deduction, or credit described in 
section 1366(a)(1)(A) or (B) and paragraph (a) of this section is 
determined for the S corporation and retains that character in the hands 
of the shareholder. For example, if an S corporation has capital gain on 
the sale or exchange of a capital asset, a shareholder's pro rata share 
of that gain will also be characterized as a capital gain regardless of 
whether the shareholder is otherwise a dealer in that type of property. 
Similarly, if an S corporation engages in an activity that is not for 
profit (as defined in section 183), a shareholder's pro rata share of 
the S corporation's deductions will be characterized as not for profit. 
Also, if an S corporation makes a charitable contribution to an 
organization qualifying under section 170(b)(1)(A), a shareholder's pro 
rata share of the S corporation's charitable contribution will be 
characterized as made to an organization qualifying under section 
170(b)(1)(A).
    (2) Exception for contribution of noncapital gain property. If an S 
corporation is formed or availed of by any shareholder or group of 
shareholders for a principal purpose of selling or exchanging 
contributed property that in the hands of the shareholder or 
shareholders would not have produced capital gain if sold or exchanged 
by the shareholder or shareholders, then the gain on the sale or 
exchange of the property recognized by the corporation is not treated as 
a capital gain.
    (3) Exception for contribution of capital loss property. If an S 
corporation is formed or availed of by any shareholder or group of 
shareholders for a principal purpose of selling or exchanging 
contributed property that in the

[[Page 760]]

hands of the shareholder or shareholders would have produced capital 
loss if sold or exchanged by the shareholder or shareholders, then the 
loss on the sale or exchange of the property recognized by the 
corporation is treated as a capital loss to the extent that, immediately 
before the contribution, the adjusted basis of the property in the hands 
of the shareholder or shareholders exceeded the fair market value of the 
property.
    (c) Gross income of a shareholder--(1) In general. Where it is 
necessary to determine the amount or character of the gross income of a 
shareholder, the shareholder's gross income includes the shareholder's 
pro rata share of the gross income of the S corporation. The 
shareholder's pro rata share of the gross income of the S corporation is 
the amount of gross income of the corporation used in deriving the 
shareholder's pro rata share of S corporation taxable income or loss 
(including items described in section 1366(a)(1)(A) or (B) and paragraph 
(a) of this section). For example, a shareholder is required to include 
the shareholder's pro rata share of S corporation gross income in 
computing the shareholder's gross income for the purposes of determining 
the necessity of filing a return (section 6012(a)) and the shareholder's 
gross income derived from farming (sections 175 and 6654(i)).
    (2) Gross income for substantial omission of items--(i) In general. 
For purposes of determining the applicability of the 6-year period of 
limitation on assessment and collection provided in section 6501(e) 
(relating to omission of more than 25 percent of gross income), a 
shareholder's gross income includes the shareholder's pro rata share of 
S corporation gross income (as described in section 6501(e)(1)(A)(i)). 
In this respect, the amount of S corporation gross income used in 
deriving the shareholder's pro rata share of any item of S corporation 
income, loss, deduction, or credit (as included or disclosed in the 
shareholder's return) is considered as an amount of gross income stated 
in the shareholder's return for purposes of section 6501(e).
    (ii) Example. The following example illustrates the provisions of 
paragraph (c)(2)(i) of this section:

    Example. Shareholder A, an individual, owns 25 percent of the stock 
of Corporation N, an S corporation that has $10,000 gross income and 
$2,000 taxable income. A reports only $300 as A's pro rata share of N's 
taxable income. A should have reported $500 as A's pro rata share of 
taxable income, derived from A's pro rata share, $2,500, of N's gross 
income. Because A's return included only $300 without a disclosure 
meeting the requirements of section 6501(e)(1)(A)(ii) describing the 
difference of $200, A is regarded as having reported on the return only 
$1,500 ($300/$500 of $2,500) as gross income from N.

    (d) Shareholders holding stock subject to community property laws. 
If a shareholder holds S corporation stock that is community property, 
then the shareholder's pro rata share of any item or items listed in 
paragraphs (a)(2), (3), and (4) of this section with respect to that 
stock is reported by the husband and wife in accordance with community 
property rules.
    (e) Net operating loss deduction of shareholder of S corporation. 
For purposes of determining a net operating loss deduction under section 
172, a shareholder of an S corporation must take into account the 
shareholder's pro rata share of items of income, loss, deduction, or 
credit of the corporation. See section 1366(b) and paragraph (b) of this 
section for rules on determining the character of the items. In 
determining under section 172(d)(4) the nonbusiness deductions allowable 
to a shareholder of an S corporation (arising from both corporation 
sources and any other sources), the shareholder separately takes into 
account the shareholder's pro rata share of the deductions of the 
corporation that are not attributable to a trade or business and 
combines this amount with the shareholder's nonbusiness deductions from 
any other sources. The shareholder also separately takes into account 
the shareholder's pro rata share of the gross income of the corporation 
not derived from a trade or business and combines this amount with the 
shareholder's nonbusiness income from all other sources. See section 172 
and the regulations thereunder.
    (f) Cross-reference. For rules relating to the consistent tax 
treatment of subchapter S items, see section 6037(c).

[T.D. 8852, 64 FR 71645, Dec. 22, 1999]

[[Page 761]]



Sec. 1.1366-2  Limitations on deduction of passthrough items of an S 
corporation to its shareholders.

    (a) In general--(1) Limitation on losses and deductions. The 
aggregate amount of losses and deductions taken into account by a 
shareholder under Sec. 1.1366-1(a) (2), (3), and (4) for any taxable 
year of an S corporation cannot exceed the sum of--
    (i) The adjusted basis of the shareholder's stock in the corporation 
(as determined under paragraph (a)(3)(i) of this section); and
    (ii) The adjusted basis of any indebtedness of the corporation to 
the shareholder (as determined under paragraph (a)(3)(ii) of this 
section).
    (2) Carryover of disallowance. A shareholder's aggregate amount of 
losses and deductions for a taxable year in excess of the sum of the 
adjusted basis of the shareholder's stock in an S corporation and of any 
indebtedness of the S corporation to the shareholder is not allowed for 
the taxable year. However, any disallowed loss or deduction retains its 
character and is treated as incurred by the corporation in the 
corporation's first succeeding taxable year, and subsequent taxable 
years, with respect to the shareholder. For rules on determining the 
adjusted bases of stock of an S corporation and indebtedness of the 
corporation to the shareholder, see paragraphs (a)(3) (i) and (ii) of 
this section.
    (3) Basis limitation amount--(i) Stock portion. A shareholder 
generally determines the adjusted basis of stock for purposes of 
paragraphs (a)(1)(i) and (2) of this section (limiting losses and 
deductions) by taking into account only increases in basis under section 
1367(a)(1) for the taxable year and decreases in basis under section 
1367(a)(2) (A), (D) and (E) (relating to distributions, noncapital, 
nondeductible expenses, and certain oil and gas depletion deductions) 
for the taxable year. In so determining this loss limitation amount, the 
shareholder disregards decreases in basis under section 1367(a)(2) (B) 
and (C) (for losses and deductions, including losses and deductions 
previously disallowed) for the taxable year. However, if the shareholder 
has in effect for the taxable year an election under Sec. 1.1367-1(g) 
to decrease basis by items of loss and deduction prior to decreasing 
basis by noncapital, nondeductible expenses and certain oil and gas 
depletion deductions, the shareholder also disregards decreases in basis 
under section 1367(a)(2) (D) and (E). This basis limitation amount for 
stock is determined at the time prescribed under Sec. 1.1367-1(d)(1) 
for adjustments to the basis of stock.
    (ii) Indebtedness portion. A shareholder determines the 
shareholder's adjusted basis in indebtedness of the corporation for 
purposes of paragraphs (a)(1)(ii) and (2) of this section (limiting 
losses and deductions) without regard to any adjustment under section 
1367(b)(2)(A) for the taxable year. This basis limitation amount for 
indebtedness is determined at the time prescribed under Sec. 1.1367-
2(d)(1) for adjustments to the basis of indebtedness.
    (4) Limitation on losses and deductions allocated to each item. If a 
shareholder's pro rata share of the aggregate amount of losses and 
deductions specified in Sec. 1.1366-1(a)(2), (3), and (4) exceeds the 
sum of the adjusted basis of the shareholder's stock in the corporation 
(determined in accordance with paragraph (a)(3)(i) of this section) and 
the adjusted basis of any indebtedness of the corporation to the 
shareholder (determined in accordance with paragraph (a)(3)(ii) of this 
section), then the limitation on losses and deductions under section 
1366(d)(1) must be allocated among the shareholder's pro rata share of 
each loss or deduction. The amount of the limitation allocated to any 
loss or deduction is an amount that bears the same ratio to the amount 
of the limitation as the loss or deduction bears to the total of the 
losses and deductions. For this purpose, the total of losses and 
deductions for the taxable year is the sum of the shareholder's pro rata 
share of losses and deductions for the taxable year, and the losses and 
deductions disallowed and carried forward from prior years pursuant to 
section 1366(d)(2).
    (5) Nontransferability of losses and deductions. Any loss or 
deduction disallowed under paragraph (a)(1) of this section is personal 
to the shareholder and cannot in any manner be transferred to another 
person. If a shareholder transfers some but not all of the

[[Page 762]]

shareholder's stock in the corporation, the amount of any disallowed 
loss or deduction under this section is not reduced and the transferee 
does not acquire any portion of the disallowed loss or deduction. If a 
shareholder transfers all of the shareholder's stock in the corporation, 
any disallowed loss or deduction is permanently disallowed.
    (6) Basis of stock acquired by gift. For purposes of section 
1366(d)(1)(A) and paragraphs (a)(1)(i) and (2) of this section, the 
basis of stock in a corporation acquired by gift is the basis of the 
stock that is used for purposes of determining loss under section 
1015(a).
    (b) Special rules for carryover of disallowed losses and deductions 
to post-termination transition period described in section 1377(b)--(1) 
In general. If, for the last taxable year of a corporation for which it 
was an S corporation, a loss or deduction was disallowed to a 
shareholder by reason of the limitation in paragraph (a) of this 
section, the loss or deduction is treated under section 1366(d)(3) as 
incurred by that shareholder on the last day of any post-termination 
transition period (within the meaning of section 1377(b)).
    (2) Limitation on losses and deductions. The aggregate amount of 
losses and deductions taken into account by a shareholder under 
paragraph (b)(1) of this section cannot exceed the adjusted basis of the 
shareholder's stock in the corporation determined at the close of the 
last day of the post-termination transition period. For this purpose, 
the adjusted basis of a shareholder's stock in the corporation is 
determined at the close of the last day of the post-termination 
transition period without regard to any reduction required under 
paragraph (b)(4) of this section. If a shareholder disposes of a share 
of stock prior to the close of the last day of the post-termination 
transition period, the adjusted basis of that share is its basis as of 
the close of the day of disposition. Any losses and deductions in excess 
of a shareholder's adjusted stock basis are permanently disallowed. For 
purposes of section 1366(d)(3)(B) and this paragraph (b)(2), the basis 
of stock in a corporation acquired by gift is the basis of the stock 
that is used for purposes of determining loss under section 1015(a).
    (3) Limitation on losses and deductions allocated to each item. If 
the aggregate amount of losses and deductions treated as incurred by the 
shareholder under paragraph (b)(1) of this section exceeds the adjusted 
basis of the shareholder's stock determined under paragraph (b)(2) of 
this section, the limitation on losses and deductions under section 
1366(d)(3)(B) must be allocated among each loss or deduction. The amount 
of the limitation allocated to each loss or deduction is an amount that 
bears the same ratio to the amount of the limitation as the amount of 
each loss or deduction bears to the total of all the losses and 
deductions.
    (4) Adjustment to the basis of stock. The shareholder's basis in the 
stock of the corporation is reduced by the amount allowed as a deduction 
by reason of this paragraph (b). For rules regarding adjustments to the 
basis of a shareholder's stock in an S corporation, see Sec. 1.1367-1.
    (c) Carryover of disallowed losses and deductions in the case of 
liquidations, reorganizations, and divisions--(1) Liquidations and 
reorganizations. If a corporation acquires the assets of an S 
corporation in a transaction to which section 381(a) applies, any loss 
or deduction disallowed under paragraph (a) of this section with respect 
to a shareholder of the distributor or transferor S corporation is 
available to that shareholder as a shareholder of the acquiring 
corporation. Thus, where the acquiring corporation is an S corporation, 
a loss or deduction of a shareholder of the distributor or transferor S 
corporation disallowed prior to or during the taxable year of the 
transaction is treated as incurred by the acquiring S corporation with 
respect to that shareholder if the shareholder is a shareholder of the 
acquiring S corporation after the transaction. Where the acquiring 
corporation is a C corporation, a post-termination transition period 
arises the day after the last day that an S corporation was in existence 
and the rules provided in paragraph (b) of this section apply with 
respect to any shareholder of the acquired S corporation that is also a 
shareholder of the acquiring C corporation after the transaction. See 
the special rules under section 1377 for the availability of the

[[Page 763]]

post-termination transition period if the acquiring corporation is a C 
corporation.
    (2) Corporate separations to which section 368(a)(1)(D) applies. If 
an S corporation transfers a portion of its assets constituting an 
active trade or business to another corporation in a transaction to 
which section 368(a)(1)(D) applies, and immediately thereafter the stock 
and securities of the controlled corporation are distributed in a 
distribution or exchange to which section 355 (or so much of section 356 
as relates to section 355) applies, any loss or deduction disallowed 
under paragraph (a) of this section with respect to a shareholder of the 
distributing S corporation immediately before the transaction is 
allocated between the distributing corporation and the controlled 
corporation with respect to the shareholder. Such allocation shall be 
made according to any reasonable method, including a method based on the 
relative fair market value of the shareholder's stock in the 
distributing and controlled corporations immediately after the 
distribution, a method based on the relative adjusted basis of the 
assets in the distributing and controlled corporations immediately after 
the distribution, or, in the case of losses and deductions clearly 
attributable to either the distributing or controlled corporation, any 
method that allocates such losses and deductions accordingly.

[T.D. 8852, 64 FR 71646, Dec. 22, 1999]



Sec. 1.1366-3  Treatment of family groups.

    (a) In general. Under section 1366(e), if an individual, who is a 
member of the family of one or more shareholders of an S corporation, 
renders services for, or furnishes capital to, the corporation without 
receiving reasonable compensation, the Commissioner shall prescribe 
adjustments to those items taken into account by the individual and the 
shareholders as may be necessary to reflect the value of the services 
rendered or capital furnished. For these purposes, in determining the 
reasonable value for services rendered, or capital furnished, to the 
corporation, consideration will be given to all the facts and 
circumstances, including the amount that ordinarily would be paid in 
order to obtain comparable services or capital from a person (other than 
a member of the family) who is not a shareholder in the corporation. In 
addition, for purposes of section 1366(e), if a member of the family of 
one or more shareholders of the S corporation holds an interest in a 
passthrough entity (e.g., a partnership, S corporation, trust, or 
estate), that performs services for, or furnishes capital to, the S 
corporation without receiving reasonable compensation, the Commissioner 
shall prescribe adjustments to the passthrough entity and the 
corporation as may be necessary to reflect the value of the services 
rendered or capital furnished. For purposes of section 1366(e), the term 
family of any shareholder includes only the shareholder's spouse, 
ancestors, lineal descendants, and any trust for the primary benefit of 
any of these persons.
    (b) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. The stock of an S corporation is owned 50 percent by F 
and 50 percent by T, the minor son of F. For the taxable year, the 
corporation has items of taxable income equal to $70,000. Compensation 
of $10,000 is paid by the corporation to F for services rendered during 
the taxable year, and no compensation is paid to T, who rendered no 
services. Based on all the relevant facts and circumstances, reasonable 
compensation for the services rendered by F would be $30,000. In the 
discretion of the Internal Revenue Service, up to an additional $20,000 
of the $70,000 of the corporation's taxable income, for tax purposes, 
may be allocated to F as compensation for services rendered. If the 
Internal Revenue Service allocates $20,000 of the corporation's taxable 
income to F as compensation for services, taxable income of the 
corporation would be reduced by $20,000 to $50,000, of which F and T 
each would be allocated $25,000. F would have $30,000 of total 
compensation paid by the corporation for services rendered.
    Example 2. The stock of an S corporation is owned by A and B. For 
the taxable year, the corporation has paid compensation to a partnership 
that rendered services to the corporation during the taxable year. The 
spouse of A is a partner in that partnership. Consequently, if based on 
all the relevant facts and circumstances the partnership did not receive 
reasonable compensation for the services rendered to the corporation, 
the Internal Revenue Service, in its discretion, may make adjustments to 
those items taken

[[Page 764]]

into account by the partnership and the corporation as may be necessary 
to reflect the value of the services rendered.

[T.D. 8852, 64 FR 71648, Dec. 22, 1999]



Sec. 1.1366-4  Special rules limiting the passthrough of certain items 
of an S corporation to its shareholders.

    (a) Passthrough inapplicable to section 34 credit. Section 1.1366-
1(a) does not apply to any credit allowable under section 34 (relating 
to certain uses of gasoline and special fuels).
    (b) Reduction in passthrough for tax imposed on built-in gains. For 
purposes of Sec. 1.1366-1(a), if for any taxable year of the S 
corporation a tax is imposed on the corporation under section 1374, the 
amount of the tax imposed is treated as a loss sustained by the S 
corporation during the taxable year. The character of the deemed loss is 
determined by allocating the loss proportionately among the net 
recognized built-in gains giving rise to the tax and attributing the 
character of each net recognized built-in gain to the allocable portion 
of the loss.
    (c) Reduction in passthrough for tax imposed on excess net passive 
income. For purposes of Sec. 1.1366-1(a), if for any taxable year of 
the S corporation a tax is imposed on the corporation under section 
1375, each item of passive investment income shall be reduced by an 
amount that bears the same ratio to the amount of the tax as the net 
amount of the item bears to the total net passive investment income for 
that taxable year.

[T.D. 8852, 64 FR 71648, Dec. 22, 1999; 65 FR 12471, Mar. 9, 2000]



Sec. 1.1366-5  Effective date.

    Sections 1.1366-1 through 1.1366-4 apply to taxable years of an S 
corporation beginning on or after August 18, 1998.

[T.D. 8852, 64 FR 71648, Dec. 22, 1999]



Sec. 1.1367-0  Table of contents.

    The following table of contents is provided to facilitate the use of 
Sec. Sec. 1.1367-1 through 1.1367-3.

   Sec. 1.1367-1 Adjustments to basis of shareholder's stock in an S 
                              corporation.

    (a) In general.
    (1) Adjustments under section 1367.
    (2) Applicability of other Internal Revenue Code provisions.
    (b) Increase in basis of stock.
    (1) In general.
    (2) Amount of increase in basis of individual shares.
    (c) Decrease in basis of stock.
    (1) In general.
    (2) Noncapital, nondeductible expenses.
    (3) Amount of decrease in basis of individual shares.
    (d) Time at which adjustments to basis of stock are effective.
    (1) In general.
    (2) Adjustment for nontaxable item.
    (3) Effect of election under section 1377(a)(2) or Sec. 1.1368-
1(g)(2).
    (e) Ordering rules for taxable years beginning before January 1, 
1997.
    (f) Ordering rules for taxable years beginning on or after August 
18, 1998.
    (g) Elective ordering rule.
    (h) Examples.
    (i) [Reserved]
    (j) Adjustments for items of income in respect of a decedent.

   Sec. 1.1367-2 Adjustments to basis of indebtedness to shareholder.

    (a) In general.
    (b) Reduction in basis of indebtedness.
    (1) General rule.
    (2) Termination of shareholder's interest in corporation during 
taxable year.
    (3) Multiple indebtedness.
    (c) Restoration of basis.
    (1) General rule.
    (2) Multiple indebtedness.
    (d) Time at which adjustments to basis of indebtedness are 
effective.
    (1) In general.
    (2) Effect of election under section 1377(a)(2) or Sec. 1.1368-
1(g)(2).
    (e) Examples.

           Sec. 1.1367-3 Effective date and transition rule.

[T.D. 8508, 59 FR 15, Jan. 3, 1994, as amended by T.D. 8852, 64 FR 
71648, Dec. 22, 1999]



Sec. 1.1367-1  Adjustments to basis of shareholder's stock in an S 
corporation.

    (a) In general--(1) Adjustments under section 1367. This section 
provides rules relating to adjustments required by section 1367 to the 
basis of a shareholder's stock in an S corporation. Paragraph (b) of 
this section provides rules concerning increases in the basis of a 
shareholder's stock, and paragraph (c) of this section provides rules 
concerning decreases in the basis of a shareholder's stock.

[[Page 765]]

    (2) Applicability of other Internal Revenue Code provisions. In 
addition to the adjustments required by section 1367 and this section, 
the basis of stock is determined or adjusted under other applicable 
provisions of the Internal Revenue Code.
    (b) Increase in basis of stock--(1) In general. Except as provided 
in Sec. 1.1367-2(c) (relating to restoration of basis of indebtedness 
to the shareholder), the basis of a shareholder's stock in an S 
corporation is increased by the sum of the items described in section 
1367(a)(1). The increase in basis described in section 1367(a)(1)(C) for 
the excess of the deduction for depletion over the basis of the property 
subject to depletion does not include the depletion deduction 
attributable to oil or gas property. See section 613(A)(c)(11).
    (2) Amount of increase in basis of individual shares. The basis of a 
shareholder's share of stock is increased by an amount equal to the 
shareholder's pro rata portion of the items described in section 
1367(a)(1) that is attributable to that share, determined on a per 
share, per day basis in accordance with section 1377(a).
    (c) Decrease in basis of stock--(1) In general. The basis of a 
shareholder's stock in an S corporation is decreased (but not below 
zero) by the sum of the items described in section 1367(a)(2).
    (2) Noncapital, nondeductible expenses. For purposes of section 
1367(a)(2)(D), expenses of the corporation not deductible in computing 
its taxable income and not properly chargeable to a capital account 
(noncapital, nondeductible expenses) are only those items for which no 
loss or deduction is allowable and do not include items the deduction 
for which is deferred to a later taxable year. Examples of noncapital, 
nondeductible expenses include (but are not limited to) the following: 
Illegal bribes, kickbacks, and other payments not deductible under 
section 162(c); fines and penalties not deductible under section 162(f); 
expenses and interest relating to tax-exempt income under section 265; 
losses for which the deduction is disallowed under section 267(a)(1); 
the portion of meals and entertainment expenses disallowed under section 
274; and the two-thirds portion of treble damages paid for violating 
antitrust laws not deductible under section 162.
    (3) Amount of decrease in basis of individual shares. The basis of a 
shareholder's share of stock is decreased by an amount equal to the 
shareholder's pro rata portion of the passthrough items and 
distributions described in section 1367(a)(2) attributable to that 
share, determined on a per share, per day basis in accordance with 
section 1377(a). If the amount attributable to a share exceeds its 
basis, the excess is applied to reduce (but not below zero) the 
remaining bases of all other shares of stock in the corporation owned by 
the shareholder in proportion to the remaining basis of each of those 
shares.
    (d) Time at which adjustments to basis of stock are effective--(1) 
In general. The adjustments described in section 1367(a) to the basis of 
a shareholder's stock are determined as of the close of the 
corporation's taxable year, and the adjustments generally are effective 
as of that date. However, if a shareholder disposes of stock during the 
corporation's taxable year, the adjustments with respect to that stock 
are effective immediately prior to the disposition.
    (2) Adjustment for nontaxable item. An adjustment for a nontaxable 
item is determined for the taxable year in which the item would have 
been includible or deductible under the corporation's method of 
accounting for Federal income tax purposes if the item had been subject 
to Federal income taxation.
    (3) Effect of election under section 1377(a)(2) or Sec. 1.1368-
1(g)(2). If an election under section 1377(a)(2) (to terminate the year 
in the case of the termination of a shareholder's interest) or under 
Sec. 1.1368-1(g)(2) (to terminate the year in the case of a qualifying 
disposition) is made with respect to the taxable year of a corporation, 
this paragraph (d) applies as if the taxable year consisted of separate 
taxable years, the first of which ends at the close of the day on which 
either the shareholder's interest is terminated or a qualifying 
disposition occurs, whichever the case may be.
    (e) Ordering rules for taxable years beginning before January 1, 
1997. For any taxable year of a corporation beginning before January 1, 
1997, except as provided in paragraph (g) of this section,

[[Page 766]]

the adjustments required by section 1367(a) are made in the following 
order--
    (1) Any increase in basis attributable to the income items described 
in section 1367(a)(1) (A) and (B) and the excess of the deductions for 
depletion described in section 1367(a)(1)(C);
    (2) Any decrease in basis attributable to noncapital, nondeductible 
expenses described in section 1367(a)(2)(D) and the oil and gas 
depletion deduction described in section 1367(a)(2)(E);
    (3) Any decrease in basis attributable to items of loss or deduction 
described in section 1367(a)(2) (B) and (C); and
    (4) Any decrease in basis attributable to a distribution by the 
corporation described in section 1367(a)(2)(A).
    (f) Ordering rules for taxable years beginning on or after August 
18, 1998. For any taxable year of a corporation beginning on or after 
August 18, 1998, except as provided in paragraph (g) of this section, 
the adjustments required by section 1367(a) are made in the following 
order--
    (1) Any increase in basis attributable to the income items described 
in section 1367(a)(1)(A) and (B), and the excess of the deductions for 
depletion described in section 1367(a)(1)(C);
    (2) Any decrease in basis attributable to a distribution by the 
corporation described in section 1367(a)(2)(A);
    (3) Any decrease in basis attributable to noncapital, nondeductible 
expenses described in section 1367(a)(2)(D), and the oil and gas 
depletion deduction described in section 1367(a)(2)(E); and
    (4) Any decrease in basis attributable to items of loss or deduction 
described in section 1367(a)(2)(B) and (C).
    (g) Elective ordering rule. A shareholder may elect to decrease 
basis under paragraph (e)(3) or (f)(4) of this section, whichever 
applies, prior to decreasing basis under paragraph (e)(2) or (f)(3) of 
this section, whichever applies. If a shareholder makes this election, 
any amount described in paragraph (e)(2) or (f)(3) of this section, 
whichever applies, that is in excess of the shareholder's basis in stock 
and indebtedness is treated, solely for purposes of this section, as an 
amount described in paragraph (e)(2) or (f)(3) of this section, 
whichever applies, in the succeeding taxable year. A shareholder makes 
the election under this paragraph by attaching a statement to the 
shareholder's timely filed original or amended return that states that 
the shareholder agrees to the carryover rule of the preceding sentence. 
Once a shareholder makes an election under this paragraph with respect 
to an S corporation, the shareholder must continue to use the rules of 
this paragraph for that S corporation in future taxable years unless the 
shareholder receives the permission of the Commissioner.
    (h) Examples. The following examples illustrate the principles of 
Sec. 1.1367-1. In each example, the corporation is a calendar year S 
corporation:

    Example 1. Adjustments to basis of stock for taxable years beginning 
before January 1, 1997. (i) On December 31, 1994, A owns a block of 50 
shares of stock with an adjusted basis per share of $6 in Corporation S. 
On December 31, 1994, A purchases for $400 an additional block of 50 
shares of stock with an adjusted basis of $8 per share. Thus, A holds 
100 shares of stock for each day of the 1995 taxable year. For S's 1995 
taxable year, A's pro rata share of the amount of the items described in 
section 1367(a)(1)(A) (relating to increases in basis of stock) is $300, 
and A's pro rata share of the amount of the items described in section 
1367(a)(2) (B) and (D) (relating to decreases in basis of stock) is 
$500. S makes a distribution to A in the amount of $100 during 1995.
    (ii) Pursuant to the ordering rules of paragraph (e) of this 
section, A increases the basis of each share of stock by $3 ($300/100 
shares) and decreases the basis of each share of stock by $5 ($500/100 
shares). Then A reduces the basis of each share by $1 ($100/100 shares) 
for the distribution. Thus, on January 1, 1996, A has a basis of $3 per 
share in his original block of 50 shares ($6+$3-$5-$1) and a basis of $5 
per share in the second block of 50 shares ($8+$3-$5-$1).
    Example 2. Adjustments to basis of stock for taxable years beginning 
on or after August 18, 1998. (i) On December 31, 2001, A owns a block of 
50 shares of stock with an adjusted basis per share of $6 in Corporation 
S. On December 31, 2001, A purchases for $400 an additional block of 50 
shares of stock with an adjusted basis of $8 per share. Thus, A holds 
100 shares of stock for each day of the 2002 taxable year. For S's 2002 
taxable year, A's pro rata share of the amount of items described in 
section 1367(a)(1)(A) (relating to increases in basis of stock) is $300, 
A's pro rata share of the amount of the items described in section 
1367(a)(2)(B) (relating to decreases in basis of stock attributable to 
items of loss and deduction) is $300, and A's pro rata share

[[Page 767]]

of the amount of the items described in section 1367(a)(2)(D) (relating 
to decreases in basis of stock attributable to noncapital, nondeductible 
expenses) is $200. S makes a distribution to A in the amount of $100 
during 2002.
    (ii) Pursuant to the ordering rules of paragraph (f) of this 
section, A first increases the basis of each share of stock by $3 ($300/
100 shares) and then decreases the basis of each share by $1 ($100/100 
shares) for the distribution. A next decreases the basis of each share 
by $2 ($200/100 shares) for the noncapital, nondeductible expenses and 
then decreases the basis of each share by $3 ($300/100 shares) for the 
items of loss. Thus, on January 1, 2003, A has a basis of $3 per share 
in the original block of 50 shares ($6 + $3 - $1 - $2 - $3) and a basis 
of $5 per share in the second block of 100 shares ($8 + $3 - $1 - $2 - 
$3).
    Example 3. Adjustments attributable to basis of individual shares of 
stock. (i) On December 31, 1993, B owns one share of S corporation's 10 
outstanding shares of stock. The basis of B's share is $30. On July 2, 
1994, B purchases from another shareholder two shares for $25 each. 
During 1994, S corporation has no income or deductions but incurs a loss 
of $365. Under section 1377(a)(1)(A) and paragraph (c)(3) of this 
section, the amount of the loss assigned to each day of S's taxable year 
is $1.00 ($365/365 days). For each day, $.10 is allocated to each 
outstanding share ($1.00 amount of loss assigned to each day/10 shares).
    (ii) B owned one share for 365 days and, therefore, reduces the 
basis of that share by the amount of loss attributable to it, i.e., 
$36.50 ($.10 x 365 days). B owned two shares for 182 days and, 
therefore, reduces the basis of each of those shares by the amount of 
the loss attributable to each, i.e., $18.20 ($.10 x 182 days).
    (iii) The bases of the shares are decreased as follows:

------------------------------------------------------------------------
                                                                 Excess
             Share               Original  Decrease  Adjusted    basis
                                  basis                basis   reduction
------------------------------------------------------------------------
No. 1.........................     $30.00   $36.50         $0     $6.50
No. 2.........................      25.00    18.20       6.80         0
No. 3.........................      25.00    18.20       6.80         0
                                                    ----------
    Total remaining basis.....  .........  ........     13.60  .........
------------------------------------------------------------------------

    (iv) Because the decrease in basis attributable to share No. 1 
exceeds the basis of share No. 1 by $6.50 ($36.50 - $30.00), the excess 
is applied to reduce the bases of shares No. 2 and No. 3 in proportion 
to their remaining bases. Therefore, the bases of share No. 2 and share 
No. 3 are each decreased by an additional $3.25 ($6.50 x $6.80/$13.60). 
After this decrease, Share No. 1 has a basis of zero, Share No. 2 has a 
basis of $3.55, and Share No. 3 has a basis of $3.55.
    Example 4. Effects of section 1377(a)(2) election and distribution 
on basis of stock for taxable years beginning before January 1, 1997. 
(i) On January 1, 1994, individuals B and C each own 50 of the 100 
shares of issued and outstanding stock of Corporation S. B's adjusted 
basis in each share of stock is $120, and C's is $80. On June 30, 1994, 
S distributes $6,000 to B and $6,000 to C. On June 30, 1994, B sells all 
of her S stock for $10,000 to D. S elects under section 1377(a)(2) to 
treat its 1994 taxable year as consisting of two taxable years, the 
first of which ends at the close of June 30, the date on which B 
terminates her interest in S.
    (ii) For the period January 1, 1994, through June 30, 1994, S has 
nonseparately computed income of $6,000 and a separately stated 
deduction item of $4,000. Therefore, on June 30, 1994, B and C, pursuant 
to the ordering rules of paragraph (e) of this section, increase the 
basis of each share by $60 ($6,000/100 shares) and decrease the basis of 
each share by $40 ($4,000/100 shares). Then B and C reduce the basis of 
each share by $120 ($12,000/100 shares) for the distribution.
    (iii) The basis of B's stock is reduced from $120 to $20 per share 
($120+$60-$40-$120). The basis of C's stock is reduced from $80 to $0 
per share ($80+$60-$40-$120). See section 1368 and Sec. 1.1368-1 (c) 
and (d) for rules relating to the tax treatment of the distributions.
    (iv) Pursuant to paragraph (d)(3) of this section, the net reduction 
in the basis of B's shares of the S stock required by section 1367 and 
this section is effective immediately prior to B's sale of her stock. 
Thus, B's basis for determining gain or loss on the sale of the S stock 
is $20 per share, and B has a gain on the sale of $180 ($200-$20) per 
share.
    Example 5. Effects of section 1377(a)(2) election and distribution 
on basis of stock for taxable years beginning on or after August 18, 
1998. (i) The facts are the same as in Example 4, except that all of the 
events occur in 2001 rather than in 1994 and except as follows: On June 
30, 2001, B sells 25 shares of her stock for $5,000 to D and 25 shares 
back to Corporation S for $5,000. Under section 1377(a)(2)(B) and Sec. 
1.1377-1(b)(2), B, C, and D are affected shareholders because B has 
transferred shares to Corporations S and D. Pursuant to section 
1377(a)(2)(A) and Sec. 1.1377-1(b)(1), B, C, and D, the affected 
shareholders, and Corporation S agree to treat the taxable year 2001 as 
if it consisted of two separate taxable years for all affected 
shareholders for the purposes set forth in Sec. 1.1377-1(b)(3)(i).
    (ii) On June 30, 2001, B and C, pursuant to the ordering rules of 
paragraph (f)(1) of this section, increase the basis of each share by 
$60 ($6,000/100 shares) for the nonseparately computed income. Then B 
and C reduce the basis of each share by $120 ($12,000/100 shares) for 
the distribution. Finally, B and C decrease the basis of each share by 
$40 ($4,000/

[[Page 768]]

100 shares) for the separately stated deduction item.
    (iii) The basis of the stock of B is reduced from $120 to $20 per 
share ($120 + $60 - $120 - $40). Prior to accounting for the separately 
stated deduction item, the basis of the stock of C is reduced from $80 
to $20 ($80 + $60 - $120). Finally, because the period from January 1 
through June 30, 2001 is treated under Sec. 1.1377-1(b)(3)(i) as a 
separate taxable year for purposes of making adjustments to the basis of 
stock, under section 1366(d) and Sec. 1.1366-2(a)(2), C may deduct only 
$20 per share of the remaining $40 of the separately stated deduction 
item, and the basis of the stock of C is reduced from $20 per share to 
$0 per share. Under section 1366 and Sec. 1.1366-2(a)(2), C's remaining 
separately stated deduction item of $20 per share is treated as having 
been incurred in the first succeeding taxable year of Corporation S, 
which, for this purpose, begins on July 1, 2001.

    (i) [Reserved]
    (j) Adjustments for items of income in respect of a decedent. The 
basis determined under section 1014 of any stock in an S corporation is 
reduced by the portion of the value of the stock that is attributable to 
items constituting income in respect of a decedent. For the 
determination of items realized by an S corporation constituting income 
in respect of a decedent, see sections 1367(b)(4)(A) and 691 and 
applicable regulations thereunder. For the determination of the 
allowance of a deduction for the amount of estate tax attributable to 
income in respect of a decedent, see section 691(c) and applicable 
regulations thereunder.

[T.D. 8508, 59 FR 15, Jan. 3, 1994, as amended by T.D. 8852, 64 FR 
71648, Dec. 22, 1999; 65 FR 12471, Mar. 9, 2000; 65 FR 16319, Mar. 28, 
2000]



Sec. 1.1367-2  Adjustments to basis of indebtedness to shareholder.

    (a) In general. This section provides rules relating to adjustments 
required by subchapter S to the basis of indebtedness of an S 
corporation to a shareholder. For purposes of this section, shareholder 
advances not evidenced by separate written instruments and repayments on 
the advances (open account debt) are treated as a single indebtedness. 
The basis of indebtedness of the S corporation to a shareholder is 
reduced as provided in paragraph (b) of this section and restored as 
provided in paragraph (c) of this section.
    (b) Reduction in basis of indebtedness--(1) General rule. If, after 
making the adjustments required by section 1367(a)(1) for any taxable 
year of the S corporation, the amounts specified in section 1367(a)(2) 
(B), (C), (D), and (E) (relating to losses, deductions, noncapital, 
nondeductible expenses, and certain oil and gas depletion deductions) 
exceed the basis of a shareholder's stock in the corporation, the excess 
is applied to reduce (but not below zero) the basis of any indebtedness 
of the S corporation to the shareholder held by the shareholder at the 
close of the corporation's taxable year. Any such indebtedness that has 
been satisfied by the corporation, or disposed of or forgiven by the 
shareholder, during the taxable year, is not held by the shareholder at 
the close of that year and is not subject to basis reduction.
    (2) Termination of shareholder's interest in corporation during 
taxable year. If a shareholder terminates his or her interest in the 
corporation during the taxable year, the rules of this paragraph (b) are 
applied with respect to any indebtedness of the S corporation held by 
the shareholder immediately prior to the termination of the 
shareholder's interest in the corporation.
    (3) Multiple indebtedness. If a shareholder holds more than one 
indebtedness at the close of the corporation's taxable year or, if 
applicable, immediately prior to the termination of the shareholder's 
interest in the corporation, the reduction in basis is applied to each 
indebtedness in the same proportion that the basis of each indebtedness 
bears to the aggregate bases of the indebtedness to the shareholder.
    (c) Restoration of basis--(1) General rule. If, for any taxable year 
of an S corporation beginning after December 31, 1982, there has been a 
reduction in the basis of an indebtedness of the S corporation to a 
shareholder under section 1367(b)(2)(A), any net increase in any 
subsequent taxable year of the corporation is applied to restore that 
reduction. For purposes of this section, net increase with respect to a 
shareholder means the amount by which the shareholder's pro rata share 
of the items described in section 1367(a)(1) (relating to income items 
and excess deduction for depletion) exceed the items

[[Page 769]]

described in section 1367(a)(2) (relating to losses, deductions, 
noncapital, nondeductible expenses, certain oil and gas depletion 
deductions, and certain distributions) for the taxable year. These 
restoration rules apply only to indebtedness held by a shareholder as of 
the beginning of the taxable year in which the net increase arises. The 
reduction in basis of indebtedness must be restored before any net 
increase is applied to restore the basis of a shareholder's stock in an 
S corporation. In no event may the shareholder's basis of indebtedness 
be restored above the adjusted basis of the indebtedness under section 
1016(a), excluding any adjustments under section 1016(a)(17) for prior 
taxable years, determined as of the beginning of the taxable year in 
which the net increase arises.
    (2) Multiple indebtedness. If a shareholder holds more than one 
indebtedness as of the beginning of a corporation's taxable year, any 
net increase is applied first to restore the reduction of basis in any 
indebtedness repaid (in whole or in part) in that taxable year to the 
extent necessary to offset any gain that would otherwise be realized on 
the repayment. Any remaining net increase is applied to restore each 
outstanding indebtedness in proportion to the amount that the basis of 
each outstanding indebtedness has been reduced under section 
1367(b)(2)(A) and paragraph (b) of this section and not restored under 
section 1367(b)(2)(B) and this paragraph (c).
    (d) Time at which adjustments to basis of indebtedness are 
effective--(1) In general. The amounts of the adjustments to basis of 
indebtedness provided in section 1367(b)(2) and this section are 
determined as of the close of the corporation's taxable year, and the 
adjustments are generally effective as of the close of the corporation's 
taxable year. However, if the shareholder is not a shareholder in the 
corporation at that time, these adjustments are effective immediately 
before the shareholder terminates his or her interest in the 
corporation. If a debt is disposed of or repaid in whole or in part 
before the close of the taxable year, the basis of that indebtedness is 
restored under paragraph (c) of this section, effective immediately 
before the disposition or the first repayment on the debt during the 
taxable year.
    (2) Effect of election under section 1377(a)(2) or Sec. 1.1368-
1(g)(2). If an election is made under section 1377(a)(2) (to terminate 
the year in the case of the termination of a shareholder's interest) or 
under Sec. 1.1368-1(g)(2) (to terminate the year in the case of a 
qualifying disposition), this paragraph (d) applies as if the taxable 
year consisted of separate taxable years, the first of which ends at the 
close of the day on which the shareholder either terminates his or her 
interest in the corporation or disposes of a substantial amount of 
stock, whichever the case may be.
    (e) Examples. The following examples illustrate the principles of 
Sec. 1.1367-2. In each example, the corporation is a calendar year S 
corporation. The lending transactions described in the examples do not 
result in foregone interest (within the meaning of section 7872(e)(2)), 
original issue discount (within the meaning of section 1273), or total 
unstated interest (within the meaning of section 483(b)).

    Example 1. Reduction in basis of indebtedness. (i) A has been the 
sole shareholder in Corporation S since 1992. In 1993, A loans S $1,000 
(Debt No. 1), which is evidenced by a ten-year promissory note in the 
face amount of $1,000. In 1996, A loans S $5,000 (Debt No. 2), which is 
evidenced by a demand promissory note. On December 31, 1996, the basis 
of A's stock is zero; the basis of Debt No. 1 has been reduced under 
paragraph (b) of this section to $0; and the basis of Debt No. 2 has 
been reduced to $1,000. On January 1, 1997, A loans S $4,000 (Debt No. 
3), which is evidenced by a demand promissory note. For S's 1997 taxable 
year, the sum of the amounts specified in section 1367(a)(1) (in this 
case, nonseparately computed income and the excess deduction for 
depletion) is $6,000, and the sum of the amounts specified in section 
1367(a)(2) (B), (D), and (E) (in this case, items of separately stated 
deductions and losses, noncapital, nondeductible expenses, and certain 
oil and gas depletion deductions--there is no nonseparately computed 
loss) is $10,000. Corporation S makes no payments to A on any of the 
loans during 1997.
    (ii) The $4,000 excess of loss and deduction items is applied to 
reduce the basis of each indebtedness in proportion to the basis of that 
indebtedness over the aggregate bases of the indebtedness to the 
shareholder (determined immediately before any adjustment under section 
1367(b)(2)(A) and paragraph (b) of this section is effective for the 
taxable year). Thus, the basis of Debt No. 2

[[Page 770]]

is reduced in an amount equal to $800 ($4,000 (excess)x$1,000 (basis of 
Debt No. 2)/$5,000 (total basis of all debt)). Similarly, the basis in 
Debt No. 3 is reduced in an amount equal to $3,200 ($4,000x$4,000/
$5,000). Accordingly, on December 31, 1997, A's basis in his stock is 
zero and his bases in the three debts are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                  1/1/96   12/31/96   1/1/97   12/31/97   1/1/98
                              Debt                                basis   reduction   basis   reduction   basis
----------------------------------------------------------------------------------------------------------------
No. 1..........................................................   $1,000     $1,000       $0         $0       $0
No. 2..........................................................    5,000      4,000    1,000        800      200
No. 3..........................................................  .......  .........    4,000      3,200      800
----------------------------------------------------------------------------------------------------------------

    Example 2. Restoration of basis of indebtedness. (i) The facts are 
the same as in Example 1. On July 1, 1998, S completely repays Debt No. 
3, and, for S's 1998 taxable year, the net increase (within the meaning 
of paragraph (c) of this section) with respect to A equals $4,500.
    (ii) The net increase is applied first to restore the bases in the 
debts held on January 1, 1998, before any of the net increase is applied 
to increase A's basis in his shares of S stock. The net increase is 
applied to restore first the reduction of basis in indebtedness repaid 
in 1998. Any remaining net increase is applied to restore the bases of 
the outstanding debts in proportion to the amount that each of these 
outstanding debts have been reduced previously under paragraph (b) of 
this section and have not been restored. As of December 31, 1998, the 
total reduction in A's debts held on January 1, 1998 equals $9,000. 
Thus, the basis of Debt No. 3 is restored by $3,200 (the amount of the 
previous reduction) to $4,000. A's basis in Debt No. 3 is treated as 
restored immediately before that debt is repaid. Accordingly, A does not 
realize any gain on the repayment. The remaining net increase of $1,300 
($4,500-$3,200) is applied to restore the bases of Debt No. 1 and Debt 
No. 2. As of December 31, 1998, the total reduction in these outstanding 
debts is $5,800 ($9,000-$3,200). The basis of Debt No. 1 is restored in 
an amount equal to $224 ($1,300x$1,000/$5,800). Similarly, the basis in 
Debt No. 2 is restored in an amount equal to $1,076 ($1,300x$4,800/
$5,800). On December 31, 1998, A's basis in his S stock is zero and his 
bases in the two remaining debts are as follows:

------------------------------------------------------------------------
   Original        Amount                        Amount       12/31/98
    basis         reduced      1/1/98 basis     restored        basis
------------------------------------------------------------------------
     $1,000         $1,000             $0           $224           $224
      5,000          4,800            200          1,076          1,276
------------------------------------------------------------------------

    Example 3. Full restoration of basis in indebtedness when debt is 
repaid in part during the taxable year. (i) C has been a shareholder in 
Corporation S since 1992. In 1997, C loans S $1,000. S issues its note 
to C in the amount of $1,000, of which $950 is payable on March 1, 1998, 
and $50 is payable on March 1, 1999. On December 31, 1997, C's basis in 
all her shares of S stock is zero and her basis in the note has been 
reduced under paragraph (b) of this section to $900. For 1998, the net 
increase (within the meaning of paragraph (c) of this section) with 
respect to C is $300.
    (ii) Because C's basis of indebtedness was reduced in a prior 
taxable year under Sec. 1.1367-2(b), the net increase for 1998 is 
applied to restore this reduction. The restored basis cannot exceed the 
adjusted basis of the debt as of the beginning of the first day of 1998, 
excluding prior adjustments under section 1367, or $1,000. Therefore, 
$100 of the $300 net increase is applied to restore the basis of the 
debt from $900 to $1,000 effective immediately before the repayment on 
March 1, 1998. The remaining net increase of $200 increases C's basis in 
her stock.
    Example 4. Determination of net increase--distribution in excess of 
increase in basis. (i) D has been the sole shareholder in Corporation S 
since 1990. On January 1, 1996, D loans S $10,000 in return for a note 
from S in the amount of $10,000 of which $5,000 is payable on each of 
January 1, 2000, and January 1, 2001. On December 31, 1997, the basis of 
D's shares of S stock is zero, and his basis in the note has been 
reduced under paragraph (b) of this section to $8,000. During 1998, the 
sum of the items under section 1367(a)(1) (relating to increases in 
basis of stock) with respect to D equals $10,000 (in this case, 
nonseparately computed income), and the sum of the items under section 
1367(a)(2)(B), (C), (D), and (E) (relating to decreases in basis of 
stock) with respect to D equals $0. During 1998, S also makes 
distributions to D totaling $11,000. This distribution is an item that 
reduces basis of stock under section 1367(a)(2)(A) and must be taken 
into account for purposes of determining whether there is a net increase 
for the taxable year. Thus, for 1998, there is no net increase with 
respect to D because the amount of the items provided in section 
1367(a)(1) do not exceed the amount of the items provided in section 
1367(a)(2).
    (ii) Because there is no net increase with respect to D for 1998, 
none of the 1997 reduction in D's basis in the indebtedness is restored. 
The $10,000 increase in basis under section 1367(a)(1) is applied to 
increase D's basis in his S stock. Under section 1367(a)(2)(A), the 
$11,000 distribution with respect to D's stock reduces D's basis in his 
shares of S stock to $0. See section 1368 and Sec. 1.1368-1 (c) and (d) 
for the tax treatment of the $1,000 distribution in excess of D's basis.
    Example 5. Distributions less than increase in basis. (i) The facts 
are the same as in Example 4, except that in 1998 S makes distributions 
to D totaling $8,000. On these facts, for 1998, there is a net increase 
with respect to D of $2,000 (the amount by which the items provided in 
section 1367(a)(1) exceed the amount of the items provided in section 
1367(a)(2)).

[[Page 771]]

    (ii) Because there is a net increase of $2,000 with respect to D for 
1998, $2,000 of the $10,000 increase in basis under section 1367(a)(1) 
is first applied to restore D's basis in the indebtedness to $10,000 
($8,000 + $2,000). Accordingly, on December 31, 1998, D has a basis in 
his shares of S stock of $0 ($0 + $8,000 (increase in basis remaining 
after restoring basis in indebtedness)--$8,000 (distribution)) and a 
basis in the note of $10,000.

[T.D. 8508, 59 FR 16, Jan. 3, 1994]



Sec. 1.1367-3  Effective date and transition rule.

    Except for Sec. 1.1367-1(f), (h) Example 2 and Example 5, and (j), 
Sec. Sec. 1.1367-1 and 1.1367-2 apply to taxable years of the 
corporation beginning on or after January 1, 1994. Section 1.1367-1(f), 
(h) Example 2 and Example 5, and (j) apply only to taxable years of the 
corporation beginning on or after August 18, 1998. For taxable years 
beginning before January 1, 1994, and taxable years beginning on or 
after January 1, 1997, and before August 18, 1998, the basis of a 
shareholder's stock must be determined in a reasonable manner, taking 
into account the statute and legislative history. Except for Sec. 
1.1367-1(f), (h) Example 2 and Example 5, and (j), return positions 
consistent with Sec. Sec. 1.1367-1 and 1.1367-2 are reasonable for 
taxable years beginning before January 1, 1994. Return positions 
consistent with Sec. 1.1367-1(f), (h) Example 2 and Example 5, and (j) 
are reasonable for taxable years beginning on or after January 1, 1997, 
and before August 18, 1998.

[T.D. 8852, 64 FR 71649, Dec. 22, 1999]



Sec. 1.1368-0  Table of contents.

    The following table of contents is provided to facilitate the use of 
Sec. Sec. 1.1368-1 through 1.1368-4.

             Sec. 1.1368-1 Distributions by S corporations.

    (a) In general.
    (b) Date distribution made.
    (c) S corporation with no earnings and profits.
    (d) S corporation with earnings and profits.
    (1) General treatment of distribution.
    (2) Previously taxed income.
    (e) Certain adjustments taken into account.
    (1) Taxable years beginning before January 1, 1997.
    (2) Taxable years beginning on or after August 18, 1998.
    (f) Elections relating to source of distributions.
    (1) In general.
    (2) Election to distribute earnings and profits first.
    (i) In general.
    (ii) Previously taxed income.
    (iii) Corporation with subchapter C and subchapter S earnings and 
profits.
    (3) Election to make a deemed dividend.
    (4) Election to forego previously taxed income.
    (5) Time and manner of making elections.
    (i) For earnings and profits.
    (ii) For previously taxed income and deemed dividends.
    (iii) Corporate statement regarding elections.
    (iv) Irrevocable elections.
    (g) Special rule.
    (1) Election to terminate year under Sec. 1.1368-1(g)(2).
    (2) Election in case of a qualifying disposition.
    (i) In general.
    (ii) Effect of the election.
    (iii) Time and manner of making election.
    (iv) Coordination with election under section 1377(a)(2).

          Sec. 1.1368-2 Accumulated adjustments account (AAA).

    (a) Accumulated adjustments account.
    (1) In general.
    (2) Increases to the AAA.
    (3) Decreases to the AAA.
    (i) In general.
    (ii) Extent of allowable reduction.
    (iii) Decrease to the AAA for distributions.
    (4) Ordering rules for the AAA for taxable years beginning before 
January 1, 1997.
    (5) Ordering rules for the AAA for taxable years beginning on or 
after August 18, 1998.
    (b) Distributions in excess of the AAA.
    (1) In general.
    (2) Amount of the AAA allocated to each distribution.
    (c) Distribution of money and loss property.
    (1) In general.
    (2) Allocating the AAA to loss property.
    (d) Adjustment in the case of redemptions, liquidations, 
reorganizations, and divisions.
    (1) Redemptions.
    (i) General rule.
    (ii) Special rule for years in which a corporation makes both 
ordinary and redemption distributions.
    (iii) Adjustments to earnings and profits.
    (2) Liquidations and reorganizations.
    (3) Corporate separations to which section 368(a)(1)(D) applies.
    (e) Election to terminate year under section 1377(a)(2) or Sec. 
1.1368-1(g)(2).

[[Page 772]]

                        Sec. 1.1368-3 Examples.

           Sec. 1.1368-4 Effective date and transition rule.

[T.D. 8508, 59 FR 18, Jan. 3, 1994, as amended by T.D. 8696, 61 FR 
67455, Dec. 23, 1996; T.D. 8852, 64 FR 71649, Dec. 22, 1999; T.D. 8869, 
65 FR 3855, Jan. 25, 2000]



Sec. 1.1368-1  Distributions by S corporations.

    (a) In general. This section provides rules for distributions made 
by an S corporation with respect to its stock which, but for section 
1368(a) and this section, would be subject to section 301(c) and other 
rules of the Internal Revenue Code that characterize a distribution as a 
dividend.
    (b) Date distribution made. For purposes of section 1368, a 
distribution is taken into account on the date the corporation makes the 
distribution, regardless of when the distribution is treated as received 
by the shareholder.
    (c) S corporation with no earnings and profits. A distribution made 
by an S corporation that has no accumulated earnings and profits as of 
the end of the taxable year of the S corporation in which the 
distribution is made is treated in the manner provided in section 
1368(b).
    (d) S corporation with earnings and profits--(1) General treatment 
of distribution. Except as provided in paragraph (d)(2) of this section, 
a distribution made with respect to its stock by an S corporation that 
has accumulated earnings and profits as of the end of the taxable year 
of the S corporation in which the distribution is made is treated in the 
manner provided in section 1368(c). See section 316 and Sec. 1.316-2 
for provisions relating to the allocation of earnings and profits among 
distributions.
    (2) Previously taxed income. This paragraph (d)(2) applies to 
distributions by a corporation that has both accumulated earnings and 
profits and previously taxed income (within the meaning of section 
1375(d)(2), as in effect prior to its amendment by the Subchapter S 
Revision Act of 1982, and the regulations thereunder) with respect to 
one or more shareholders. In the case of such a distribution, that 
portion remaining after the application of section 1368(c)(1) (relating 
to distributions from the accumulated adjustments account (AAA) as 
defined in Sec. 1.1368-2(a)) is treated in the manner provided in 
section 1368(b) (relating to S corporations without earnings and 
profits) to the extent that portion is a distribution of money and does 
not exceed the shareholder's net share immediately before the 
distribution of the corporation's previously taxed income. The AAA and 
the earnings and profits of the corporation are not decreased by that 
portion of the distribution. Any distribution remaining after the 
application of this paragraph (d)(2) is treated in the manner provided 
in section 1368(c) (2) and (3).
    (e) Certain adjustments taken into account--(1) Taxable years 
beginning before January 1, 1997. For any taxable year of the 
corporation beginning before January 1, 1997, paragraphs (c) and (d) of 
this section are applied only after taking into account--
    (i) The adjustments to the basis of the shares of a shareholder's 
stock described in section 1367 (without regard to section 1367(a)(2)(A) 
(relating to decreases attributable to distributions not includible in 
income)) for the S corporation's taxable year; and
    (ii) The adjustments to the AAA required by section 1368(e)(1)(A) 
(but without regard to the adjustments for distributions under Sec. 
1.1368-2(a)(3)(iii)) for the S corporation's taxable year.
    (2) Taxable years beginning on or after August 18, 1998. For any 
taxable year of the corporation beginning on or after August 18, 1998, 
paragraphs (c) and (d) of this section are applied only after taking 
into account--
    (i) The adjustments to the basis of the shares of a shareholder's 
stock described in section 1367(a)(1) (relating to increases in basis of 
stock) for the S corporation's taxable year; and
    (ii) The adjustments to the AAA required by section 1368(e)(1)(A) 
(but without regard to the adjustments for distributions under Sec. 
1.1368-2(a)(3)(iii)) for the S corporation's taxable year. Any net 
negative adjustment (as defined in section 1368(e)(1)(C)(ii)) for the 
taxable year shall not be taken into account.
    (f) Elections relating to source of distributions--(1) In general. 
An S corporation may modify the application of

[[Page 773]]

paragraphs (c) and (d) of this section by electing (pursuant to 
paragraph (f)(5) of this section)--
    (i) To distribute earnings and profits first as described in 
paragraph (f)(2) of this section;
    (ii) To make a deemed dividend as described in paragraph (f)(3) of 
this section; or
    (iii) To forego previously taxed income as described in paragraph 
(f)(4) of this section.
    (2) Election to distribute earnings and profits first--(i) In 
general. An S corporation with accumulated earnings and profits may 
elect under this paragraph (f)(2) for any taxable year to distribute 
earnings and profits first as provided in section 1368(e)(3). Except as 
provided in paragraph (f)(2)(ii) of this section, distributions made by 
an S corporation making this election are treated as made first from 
earnings and profits under section 1368(c)(2) and second from the AAA 
under section 1368(c)(1). Any remaining portion of the distribution is 
treated in the manner provided in section 1368(b). This election is 
effective for all distributions made during the year for which the 
election is made.
    (ii) Previously taxed income. If a corporation to which paragraph 
(d)(2) of this section (relating to corporations with previously taxed 
income) applies makes the election provided in this paragraph (f)(2) for 
the taxable year, and does not make the election to forego previously 
taxed income under paragraph (f)(4) of this section, distributions by 
the S corporation during the taxable year are treated as made first, 
from previously taxed income under paragraph (d)(2) of this section; 
second, from earnings and profits under section 1368(c)(2); and third, 
from the AAA under section 1368(c)(1). Any portion of a distribution 
remaining after the previously taxed income, earnings and profits, and 
the AAA are exhausted is treated in the manner provided in section 
1368(b).
    (iii) Corporation with subchapter C and subchapter S earnings and 
profits. If an S corporation that makes the election provided in this 
paragraph (f)(2) has both subchapter C earnings and profits (as defined 
in section 1362(d)(3)(B)) and subchapter S earnings and profits in a 
taxable year of the corporation in which the distribution is made, the 
distribution is treated as made first from subchapter C earnings and 
profits, and second from subchapter S earnings and profits. Subchapter S 
earnings and profits are earnings and profits accumulated in a taxable 
year beginning before January 1, 1983 (or in the case of a qualified 
casualty insurance electing small business corporation or a qualified 
oil corporation, earnings and profits accumulated in any taxable year), 
for which an election under subchapter S of chapter 1 of the Internal 
Revenue Code was in effect.
    (3) Election to make a deemed dividend. An S corporation may elect 
under this paragraph (f)(3) to distribute all or part of its subchapter 
C earnings and profits through a deemed dividend. If an S corporation 
makes the election provided in this paragraph (f)(3), the S corporation 
will be considered to have made the election provided in paragraph 
(f)(2) of this section (relating to the election to distribute earnings 
and profits first). The amount of the deemed dividend may not exceed the 
subchapter C earnings and profits of the corporation on the last day of 
the taxable year, reduced by any actual distributions of subchapter C 
earnings and profits made during the taxable year. The amount of the 
deemed dividend is considered, for all purposes of the Internal Revenue 
Code, as if it were distributed in money to the shareholders in 
proportion to their stock ownership, received by the shareholders, and 
immediately contributed by the shareholders to the corporation, all on 
the last day of the corporation's taxable year.
    (4) Election to forego previously taxed income. An S corporation may 
elect to forego distributions of previously taxed income. If such an 
election is made, paragraph (d)(2) of this section (relating to 
corporations with previously taxed income) does not apply to any 
distribution made during the taxable year. Thus, distributions by a 
corporation that makes the election to forego previously taxed income 
for a taxable year under this paragraph (f)(4) and does not make the 
election to distribute earnings and profits first under paragraph (f)(2) 
of this section are

[[Page 774]]

treated in the manner provided in section 1368(c) (relating to 
distributions by corporations with earnings and profits). Distributions 
by a corporation that makes both the election to distribute earnings and 
profits first under paragraph (f)(2) of this section and the election to 
forego previously taxed income under this paragraph (f)(4), are treated 
in the manner provided in paragraph (f)(2)(i) of this section.
    (5) Time and manner of making elections--(i) For earnings and 
profits. If an election is made under paragraph (f)(2) of this section 
to distribute earnings and profits first, see section 1368(e)(3) 
regarding the consent required by shareholders.
    (ii) For previously taxed income and deemed dividends. If an 
election is made to forego previously taxed income under paragraph 
(f)(4) of this section or to make a deemed dividend under paragraph 
(f)(3) of this section, consent by each ``affected shareholder,'' as 
defined in section 1368(e)(3)(B), is required.
    (iii) [Reserved]. For further guidance, see Sec. 1.1368-
1T(f)(5)(iii).
    (iv) Irrevocable elections. The elections under this paragraph (f) 
are irrevocable and are effective only for the taxable year for which 
they are made. In applying the preceding sentence to elections under 
this paragraph (f), an election to terminate the taxable year under 
section 1377(a)(2) or Sec. 1.1368-1(g)(2) is disregarded.
    (g) Special rule--(1) Election to terminate year under Sec. 1.1368-
1(g)(2). If an election is made under paragraph (g)(2) of this section 
to terminate the year when there is a qualifying disposition, this 
section applies as if the taxable year consisted of separate taxable 
years, the first of which ends at the close of the day on which there is 
a qualifying disposition of stock.
    (2) Election in case of a qualifying disposition--(i) In general. In 
the case of a qualifying disposition, a corporation may elect under this 
paragraph (g)(2)(i) to treat the year as if it consisted of separate 
taxable years, the first of which ends at the close of the day on which 
the qualifying disposition occurs. A qualifying disposition is--
    (A) A disposition by a shareholder of 20 percent or more of the 
outstanding stock of the corporation in one or more transactions during 
any thirty-day period during the corporation's taxable year;
    (B) A redemption treated as an exchange under section 302(a) or 
section 303(a) of 20 percent or more of the outstanding stock of the 
corporation from a shareholder in one or more transactions during any 
thirty-day period during the corporation's taxable year; or
    (C) An issuance of an amount of stock equal to or greater than 25 
percent of the previously outstanding stock to one or more new 
shareholders during any thirty-day period during the corporation's 
taxable year.
    (ii) Effect of the election. A corporation making an election under 
paragraph (g)(2)(i) of this section must treat the taxable year as 
separate taxable years for purposes of allocating items of income and 
loss; making adjustments to the AAA, earnings and profits, and basis; 
and determining the tax effect of distributions under section 1368 (b) 
and (c). An election made under paragraph (g)(2)(i) of this section may 
be made upon the occurrence of any qualifying disposition. Dispositions 
of stock that are taken into account as part of a qualifying disposition 
are not taken into account in determining whether a subsequent 
qualifying disposition has been made.
    (iii) [Reserved]. For further guidance, see Sec. 1.1368-
1T(g)(2)(iii).
    (iv) Coordination with election under section 1377(a)(2). If the 
event resulting in a qualifying disposition also results in a 
termination of a shareholder's entire interest as described in Sec. 
1.1377-1(b)(4), the election under this paragraph (g)(2) cannot be made. 
Rather, the election under section 1377(a)(2) and Sec. 1.1377-1(b) may 
be made. See Sec. 1.1377-1(b) (concerning the election under section 
1377(a)(2)).

[T.D. 8508, 59 FR 19, Jan. 3, 1994, as amended by T.D. 8696, 61 FR 
67455, Dec. 23, 1996; T.D. 8852, 64 FR 71650, Dec. 22, 1999; T.D. 9100, 
68 FR 70706, Dec. 19, 2003]



Sec. 1.1368-1T  Distributions by S corporations (temporary).

    (a) through (f)(5)(ii) [Reserved]. For further guidance, see Sec. 
1.1368-1(a) through (f)(5)(ii).

[[Page 775]]

    (f)(5)(iii) Corporate statement regarding elections. A corporation 
makes an election for a taxable year under Sec. 1.1368-1(f) by 
attaching a statement to a timely filed original or amended return 
required to be filed under section 6037 for that taxable year. In the 
statement, the corporation must identify the election it is making under 
Sec. 1.1368-1(f) and must state that each shareholder consents to the 
election. In the case of elections for taxable years beginning before 
January 1, 2003, an officer of the corporation must sign under penalties 
of perjury the statement on behalf of the corporation. In the case of 
elections for taxable years beginning after December 31, 2002, the 
statement described in this paragraph (f)(5)(iii) shall be verified by 
signing the return. A statement of election to make a deemed dividend 
under Sec. 1.1368-1(f) must include the amount of the deemed dividend 
that is distributed to each shareholder.
    (f)(5)(iv) through (g)(2)(ii) [Reserved]. For further guidance, see 
Sec. 1.1368-1(f)(5)(iv) through (g)(2)(ii).
    (g)(2)(iii) Time and manner of making election. A corporation makes 
an election under Sec. 1.1368-1(g)(2)(i) for a taxable year by 
attaching a statement to a timely filed original or amended return 
required to be filed under section 6037 for a taxable year (without 
regard to the election under Sec. 1.1368-1(g)(2)(i)). In the statement, 
the corporation must state that it is electing for the taxable year 
under Sec. 1.1368-1(g)(2)(i) to treat the taxable year as if it 
consisted of separate taxable years. The corporation also must set forth 
facts in the statement relating to the qualifying disposition (e.g., 
sale, gift, stock issuance, or redemption), and state that each 
shareholder who held stock in the corporation during the taxable year 
(without regard to the election under Sec. 1.1368-1(g)(2)(i)) consents 
to this election. For purposes of this election, a shareholder of the 
corporation for the taxable year is a shareholder as described in 
section 1362(a)(2). A single election statement may be filed for all 
elections made under Sec. 1.1368-1(g)(2)(i) for the taxable year. An 
election made under Sec. 1.1368-1(g)(2)(i) of this section is 
irrevocable. In the case of elections for taxable years beginning before 
January 1, 2003, the statement through which a corporation makes an 
election under Sec. 1.1368-1(g)(2)(i) must be signed by an officer of 
the corporation under penalties of perjury. In the case of elections for 
taxable years beginning after December 31, 2002, the statement described 
in the preceding sentence shall be verified by signing the return.
    (g)(2)(iv) [Reserved]. For further guidance, see Sec. 1.1368-
1(g)(2)(iv).

[T.D. 9100, 68 FR 70706, Dec. 19, 2003]



Sec. 1.1368-2  Accumulated adjustments account (AAA).

    (a) Accumulated adjustments account--(1) In general. The accumulated 
adjustments account is an account of the S corporation and is not 
apportioned among shareholders. The AAA is relevant for all taxable 
years beginning on or after January 1, 1983, for which the corporation 
is an S corporation. On the first day of the first year for which the 
corporation is an S corporation, the balance of the AAA is zero. The AAA 
is increased in the manner provided in paragraph (a)(2) of this section 
and is decreased in the manner provided in paragraph (a)(3) of this 
section. For the adjustments to the AAA in the case of redemptions, 
liquidations, reorganizations, and corporate separations, see paragraph 
(d) of this section.
    (2) Increases to the AAA. The AAA is increased for the taxable year 
of the corporation by the sum of the following items with respect to the 
corporation for the taxable year:
    (i) The items of income described in section 1366(a)(1)(A) other 
than income that is exempt from tax;
    (ii) Any nonseparately computed income determined under section 
1366(a)(1)(B); and
    (iii) The excess of the deductions for depletion over the basis of 
property subject to depletion unless the property is an oil or gas 
property the basis of which has been allocated to shareholders under 
section 613A(c)(11).
    (3) Decreases to the AAA--(i) In general. The AAA is decreased for 
the taxable year of the corporation by the sum of the following items 
with respect to the corporation for the taxable year--
    (A) The items of loss or deduction described in section 
1366(a)(1)(A);

[[Page 776]]

    (B) Any nonseparately computed loss determined under section 
1366(a)(1)(B);
    (C) Any expense of the corporation not deductible in computing its 
taxable income and not properly chargeable to a capital account, other 
than--
    (1) Federal taxes attributable to any taxable year in which the 
corporation was a C corporation; and
    (2) Expenses related to income that is exempt from tax; and
    (D) The sum of the shareholders' deductions for depletion for any 
oil or gas property held by the corporation described in section 
1367(a)(2)(E).
    (ii) Extent of allowable reduction. The AAA may be decreased under 
paragraph (a)(3)(i) of this section below zero. The AAA is decreased by 
noncapital, nondeductible expenses under paragraph (a)(3)(i)(C) of this 
section even though a portion of the noncapital, nondeductible expenses 
is not taken into account by a shareholder under Sec. 1.1367-1(g) 
(relating to the elective ordering rule). The AAA is also decreased by 
the entire amount of any loss or deduction even though a portion of the 
loss or deduction is not taken into account by a shareholder under 
section 1366(d)(1) or is otherwise not currently deductible under the 
Internal Revenue Code. However, in any subsequent taxable year in which 
the loss, deduction, or noncapital, nondeductible expense is treated as 
incurred by the corporation with respect to the shareholder under 
section 1366(d)(2) or Sec. 1.1367-1(g) (or in which the loss or 
deduction is otherwise allowed to the shareholder), no further 
adjustment is made to the AAA.
    (iii) Decrease to the AAA for distributions. The AAA is decreased 
(but not below zero) by any portion of a distribution to which section 
1368 (b) or (c)(1) applies.
    (4) Ordering rules for the AAA for taxable years beginning before 
January 1, 1997. For any taxable year beginning before January 1, 1997, 
the adjustments to the AAA are made in the following order--
    (i) The AAA is increased under paragraph (a)(2) of this section 
before it is decreased under paragraph (a)(3) of this section for the 
taxable year;
    (ii) The AAA is decreased under paragraph (a)(3)(i) of this section 
before it is decreased under paragraph (a)(3) (iii) of this section;
    (iii) The AAA is decreased (but not below zero) by any portion of an 
ordinary distribution to which section 1368 (b) or (c)(1) applies; and
    (iv) The AAA is adjusted (whether negative or positive) for 
redemption distributions under paragraph (d)(1) of this section.
    (5) Ordering rules for the AAA for taxable years beginning on or 
after August 18, 1998. For any taxable year of the S corporation 
beginning on or after August 18, 1998, the adjustments to the AAA are 
made in the following order--
    (i) The AAA is increased under paragraph (a)(2) of this section 
before it is decreased under paragraph (a)(3)(i) of this section for the 
taxable year;
    (ii) The AAA is decreased under paragraph (a)(3)(i) of this section 
(without taking into account any net negative adjustment (as defined in 
section 1368(e)(1)(C)(ii)) before it is decreased under paragraph 
(a)(3)(iii) of this section;
    (iii) The AAA is decreased (but not below zero) by any portion of an 
ordinary distribution to which section 1368(b) or (c)(1) applies;
    (iv) The AAA is decreased by any net negative adjustment (as defined 
in section 1368(e)(1)(C)(ii)); and
    (v) The AAA is adjusted (whether negative or positive) for 
redemption distributions under paragraph (d)(1) of this section.
    (b) Distributions in excess of the AAA--(1) In general. A portion of 
the AAA (determined under paragraph (b)(2) of this section) is allocated 
to each of the distributions made for the taxable year if--
    (i) An S corporation makes more than one distribution of property 
with respect to its stock during the taxable year of the corporation 
(including an S short year as defined under section 1362(e)(1)(A));
    (ii) The AAA has a positive balance at the close of the year; and
    (iii) The sum of the distributions made during the corporation's 
taxable year exceeds the balance of the AAA at the close of the year.
    (2) Amount of the AAA allocated to each distribution. The amount of 
the AAA allocated to each distribution is

[[Page 777]]

determined by multiplying the balance of the AAA at the close of the 
current taxable year by a fraction, the numerator of which is the amount 
of the distribution and the denominator of which is the amount of all 
distributions made during the taxable year. For purposes of this 
paragraph (b)(2), the term all distributions made during the taxable 
year does not include any distribution treated as from earnings and 
profits or previously taxed income pursuant to an election made under 
section 1368(e)(3) and Sec. 1.1368-1(f)(2). See paragraph (d)(1) of 
this section for rules relating to the adjustments to the AAA for 
redemptions and distributions in the year of a redemption.
    (c) Distribution of money and loss property--(1) In general. The 
amount of the AAA allocated to a distribution under this section must be 
further allocated (under paragraph (c)(2) of this section) if the 
distribution--
    (i) Consists of property the adjusted basis of which exceeds its 
fair market value on the date of the distribution and money;
    (ii) Is a distribution to which Sec. 1.1368-1(d)(1) applies; and
    (iii) Exceeds the amount of the corporation's AAA properly allocable 
to that distribution.
    (2) Allocating the AAA to loss property. The amount of the AAA 
allocated to the property other than money is equal to the amount of the 
AAA allocated to the distribution multiplied by a fraction, the 
numerator of which is the fair market value of the property other than 
money on the date of distribution and the denominator of which is the 
amount of the distribution. The amount of the AAA allocated to the money 
is equal to the amount of the AAA allocated to the distribution reduced 
by the amount of the AAA allocated to the property other than money.
    (d) Adjustment in the case of redemptions, liquidations, 
reorganizations, and divisions--(1) Redemptions--(i) General rule. In 
the case of a redemption distribution by an S corporation that is 
treated as an exchange under section 302(a) or section 303(a) (a 
redemption distribution), the AAA of the corporation is adjusted in an 
amount equal to the ratable share of the corporation's AAA (whether 
negative or positive) attributable to the redeemed stock as of the date 
of the redemption.
    (ii) Special rule for years in which a corporation makes both 
ordinary and redemption distributions. In any year in which a 
corporation makes one or more distributions to which section 1368(a) 
applies (ordinary distributions) and makes one or more redemption 
distributions, the AAA of the corporation is adjusted first for any 
ordinary distributions and then for any redemption distributions.
    (iii) Adjustments to earnings and profits. Earnings and profits are 
adjusted under section 312 independently of any adjustments made to the 
AAA.
    (2) Liquidations and reorganizations. An S corporation acquiring the 
assets of another S corporation in a transaction to which section 381(a) 
applies will succeed to and merge its AAA (whether positive or negative) 
with the AAA (whether positive or negative) of the distributor or 
transferor S corporation as of the close of the date of distribution or 
transfer. Thus, the AAA of the acquiring corporation after the 
transaction is the sum of the AAAs of the corporations prior to the 
transaction.
    (3) Corporate separations to which section 368(a)(l)(D) applies. If 
an S corporation with accumulated earnings and profits transfers a part 
of its assets constituting an active trade or business to another 
corporation in a transaction to which section 368(a)(l)(D) applies, and 
immediately thereafter the stock and securities of the controlled 
corporation are distributed in a distribution or exchange to which 
section 355 (or so much of section 356 as relates to section 355) 
applies, the AAA of the distributing corporation immediately before the 
transaction is allocated between the distributing corporation and the 
controlled corporation in a manner similar to the manner in which the 
earnings and profits of the distributing corporation are allocated under 
section 312 (h). See Sec. 1.312-10(a).
    (e) Election to terminate year under section 1377(a)(2) or Sec. 
1.1368-1(g)(2). If an election is made under section 1377(a)(2) (to 
terminate the year in the case of termination of a shareholder's 
interest) or Sec. 1.1368-1(g)(2) (to terminate

[[Page 778]]

the year in the case of a qualifying disposition), this section applies 
as if the taxable year consisted of separate taxable years, the first of 
which ends at the close of the day on which the shareholder terminated 
his or her interest in the corporation or makes a substantial 
disposition of stock, whichever the case may be.

[T.D. 8508, 59 FR 20, Jan. 3, 1994, as amended by T.D. 8852, 64 FR 
71650, Dec. 22, 1999; T.D. 8869, 65 FR 3855, Jan. 25, 2000]



Sec. 1.1368-3  Examples.

    The principles of Sec. Sec. 1.1368-1 and 1.1368-2 are illustrated 
by the examples below. In each example Corporation S is a calendar year 
corporation:

    Example 1. Distributions by S corporations without C corporation 
earnings and profits for taxable years beginning before January 1, 1997. 
(i) Corporation S, an S corporation, has no earnings and profits as of 
January 1, 1996, the first day of its 1996 taxable year. S's sole 
shareholder, A, holds 10 shares of S stock with a basis of $1 per share 
as of that date. On March 1, 1996, S makes a distribution of $38 to A. 
For S's 1996 taxable year, A's pro rata share of the amount of the items 
described in section 1367(a)(1) (relating to increases in basis of 
stock) is $50 and A's pro rata share of the amount of the items 
described in section 1367(a)(2) (B) through (D) (relating to decreases 
in basis of stock for items other than distributions) is $26.
    (ii) Under section 1368(d)(1) and Sec. 1.1368-1(e)(1), the 
adjustments to the bases of A's stock in S described in section 1367 are 
made before the distribution rules of section 1368 are applied. Thus, 
A's basis per share in the stock is $3.40 ($1 + [($50-$26) / 10 shares]) 
before taking into account the distribution. Under section 
1367(a)(2)(A), the basis of A's stock is decreased by distributions to A 
that are not includible in A's income. Under Sec. 1.1367-1(c)(3), the 
amount of the distribution that is attributable to each share of A's 
stock is $3.80 ($38 distribution / 10 shares). However, A only has a 
basis of $3.40 in each share, and basis may not be reduced below zero. 
Therefore, the basis of each share of his stock is reduced by $3.40 to 
zero, and the remaining $4.00 of the distribution ([$3.80-$3.40] x 10 
shares) is treated as gain from the sale or exchange of property. As of 
January 1, 1997, A has a basis of $0 in his shares of S stock.
    Example 2. Distributions by S corporations without earnings and 
profits for taxable years beginning on or after August 18, 1998. (i) 
Corporation S, an S corporation, has no earnings and profits as of 
January 1, 2001, the first day of its 2001 taxable year. S's sole 
shareholder, A, holds 10 shares of S stock with a basis of $1 per share 
as of that date. On March 1, 2001, S makes a distribution of $38 to A. 
The balance in Corporation S's AAA is $100. For S's 2001 taxable year, 
A's pro rata share of the amount of the items described in section 
1367(a)(1) (relating to increases in basis of stock) is $50. A's pro 
rata share of the amount of the items described in sections 
1367(a)(2)(B) through (D) (relating to decreases in basis of stock for 
items other than distributions) is $26, $20 of which is attributable to 
items described in section 1367(a)(2)(B) and (C) and $6 of which is 
attributable to items described in section 1367(a)(2)(D) (relating to 
decreases in basis attributable to noncapital, nondeductible expenses).
    (ii) Under section 1368(d)(1) and Sec. 1.1368-1(e)(1) and (2), the 
adjustments to the basis of A's stock in S described in sections 
1367(a)(1) are made before the distribution rules of section 1368 are 
applied. Thus, A's basis per share in the stock is $6.00 ($1 + [$50/10]) 
before taking into account the distribution. Under section 
1367(a)(2)(A), the basis of A's stock is decreased by distributions to A 
that are not includible in A's income. Under Sec. 1.1367-1(c)(3), the 
amount of the distribution that is attributable to each share of A's 
stock is $3.80 ($38 distribution/10 shares). Thus, A's basis per share 
in the stock is $2.20 ($6.00-$3.80), after taking into account the 
distribution. Under section 1367(a)(2)(D), the basis of each share of 
A's stock in S after taking into account the distribution, $2.20, is 
decreased by $.60 ($6 noncapital, nondeductible expenses/10). Thus, A's 
basis per share after taking into account the nondeductible, noncapital 
expenses is $1.60. Under section 1367(a)(2)(B) and (C), A's basis per 
share is further decreased by $2 ($20 items described in section 
1367(a)(2)(B) and (C)/10 shares). However, basis may not be reduced 
below zero. Therefore, the basis of each share of A's stock is reduced 
to zero. As of January 1, 2002, A has a basis of $0 in his shares of S 
stock. Pursuant to section 1366(d)(2), the $.40 of loss in excess of A's 
basis in each of his shares of S stock is treated as incurred by the 
corporation in the succeeding taxable year with respect to A.
    Example 3. Distributions by S corporations with C corporation 
earnings and profits for taxable years beginning before January 1, 1997. 
(i) Corporation S properly elects to be an S corporation beginning 
January 1, 1997, and as of that date has accumulated earnings and 
profits of $30. B, an individual and sole shareholder of Corporation S, 
has 10 shares of S stock with a basis of $12 per share. In addition, B 
lends $30 to S evidenced by a demand note.
    (ii) During 1997, S has a nonseparately computed loss of $150. S 
makes no distributions to B during 1997. Under section 1366(d)(1), B is 
allowed a loss equal to $150,

[[Page 779]]

the amount equal to the sum of B's bases in his shares of stock and his 
basis in the debt. Under section 1367, the loss reduces B's adjusted 
basis in his stock and debt to $0. Under Sec. 1.1368-2(a)(3), S's AAA 
as of December 31, 1997, has a deficit of $150 as a result of S's loss 
for the year.
    (iii) For 1998, S has $220 of separately stated income and 
distributes $110 to B. The balance in the AAA (negative $150 from 1997) 
is increased by $220 for S's income for the year and decreased to $0 for 
the portion of the distribution that is treated as being from the AAA 
($70). Under Sec. 1.1367-2(c), B's net increase is $150, determined by 
reducing the $220 of income by the $70 of the distribution not 
includible in income by B. Thus, B's basis in the debt is fully restored 
to $30, and B's basis in S stock (before accounting for the 
distribution) is increased from zero to $19 per share ([$220-$30 applied 
to the debt] / 10). Thirty dollars of the distribution is considered a 
dividend to the extent of S's $30 of earnings and profits, and the 
remaining $10 of the distribution reduces B's basis in the S stock. 
Thus, B's basis in the S stock as of December 31, 1998, is $11 per share 
($19-[$70 AAA distribution / 10]-[10 distribution treated as a reduction 
in basis / 10]). The balance in the AAA is $0, S's earnings and profits 
are $0, and B's basis in the loan is $30.
    Example 4. Distributions by S corporations with earnings and profits 
and no net negative adjustment for taxable years beginning on or after 
August 18, 1998. (i) Corporation S, an S corporation, has accumulated 
earnings and profits of $1,000 and a balance in the AAA of $2,000 on 
January 1, 2001. S's sole shareholder B holds 100 shares of stock with a 
basis of $20 per share as of January 1, 2001. On April 1, 2001, S makes 
a distribution of $1,500 to B. B's pro rata share of the income earned 
by S during 2001 is $2,000 and B's pro rata share of S's losses is 
$1,500. For the taxable year ending December 31, 2001, S does not have a 
net negative adjustment as defined in section 1368(e)(1)(C). S does not 
make the election under section 1368(e)(3) and Sec. 1.1368-1(f)(2) to 
distribute its earnings and profits before its AAA.
    (ii) The AAA is increased from $2,000 to $4,000 for the $2,000 of 
income earned during the 2001 taxable year. The AAA is decreased from 
$4,000 to $2,500 for the $1,500 of losses. The AAA is decreased from 
$2,500 to $1,000 for the portion of the distribution ($1,500) to B that 
does not exceed the AAA.
    (iii) As of December 31, 2001, B's basis in his stock is $10 ($20 + 
$20 ($2,000 income/100 shares)--$15 ($1,500 distribution/100 shares)--
$15 ($1,500 loss/100 shares).
    Example 5. Distributions by S corporations with earnings and profits 
and net negative adjustment for taxable years beginning on or after 
August 18, 1998. (i) Corporation S, an S corporation, has accumulated 
earnings and profits of $1,000 and a balance in the AAA of $2,000 on 
January 1, 2001. S's sole shareholder B holds 100 shares of stock with a 
basis of $20 per share as of January 1, 2001. On April 1, 2001, S makes 
a distribution of $2,000 to B. B's pro rata share of the income earned 
by S during 2001 is $2,000 and B's pro rata share of S's losses is 
$3,500. For the taxable year ending December 31, 2001, S has a net 
negative adjustment as defined in section 1368(e)(1)(C). S does not make 
the election under section 1368(e)(3) and Sec. 1.1368-1(f)(2) to 
distribute its earnings and profits before its AAA.
    (ii) The AAA is increased from $2,000 to $4,000 for the $2,000 of 
income earned during the 2001 taxable year. Because under section 
1368(e)(1)(C)(ii) and Sec. 1.1368-2(a)(ii), the net negative adjustment 
is not taken into account, the AAA is decreased from $4,000 to $2,000 
for the portion of the losses ($2,000) that does not exceed the income 
earned during the 2001 taxable year. The AAA is reduced from $2,000 to 
zero for the portion of the distribution to B ($2,000) that does not 
exceed the AAA. The AAA is decreased from zero to a negative $1,500 for 
the portion of the $3,500 of loss that exceeds the $2,000 of income 
earned during the 2001 taxable year.
    (iii) Under Sec. 1.1367-1(c)(1), the basis of a shareholder's share 
in an S corporation stock may not be reduced below zero. Accordingly, as 
of December 31, 2001, B's basis per share in his stock is zero ($20 + 
$20 income--$20 distribution--$35 loss). Pursuant to section 1366(d)(2), 
the $15 of loss in excess of B's basis in each of his shares of S stock 
is treated as incurred by the corporation in the succeeding taxable year 
with respect to B.
    Example 6. Election in case of disposition of substantial amount of 
stock. (i) Corporation S, an S corporation, has earnings and profits of 
$3,000 and a balance in the AAA of $1,000 on January 1, 1997. C, an 
individual and the sole shareholder of Corporation S, has 100 shares of 
S stock with a basis of $10 per share. On July 3, 1997, C sells 50 
shares of his S stock to D, an individual, for $250. For 1997, S has 
taxable income of $1,000, of which $500 was earned on or before July 3, 
1997, and $500 earned after July 3, 1997. During its 1997 taxable year, 
S distributes $1,000 to C on February 1 and $1,000 to each of C and D on 
August 1. S does not make the election under section 1368(e)(3) and 
Sec. 1.1368-1(f)(2) to distribute its earnings and profits before its 
AAA. S makes the election under Sec. 1.1368-1(g)(2) to treat its 
taxable year as if it consisted of separate taxable years, the first of 
which ends at the close of July 3, 1997, the date of the qualifying 
disposition.
    (ii) Under section Sec. 1.1368-1(g)(2), for the period ending on 
July 3, 1997, S's AAA is $500 ($1,000 (AAA as of January 1, 1997) + $500 
(income earned from January 1, 1997 through July 3, 1997)-$1,000 
(distribution made on February 1, 1997)). C's bases in his shares of

[[Page 780]]

stock is decreased to $5 per share ($10 (original basis) + $5 (increase 
per share for income)-$10 (decrease per share for distribution)).
    (iii) The AAA is adjusted at the end of the taxable year for the 
period July 4 through December 31, 1997. It is increased from $500 (AAA 
as of the close of July 3, 1997) to $1,000 for the income earned during 
this period and is decreased by $1,000, the portion of the distribution 
($2,000 in total) made to C and D on August 1 that does not exceed the 
AAA. The $1,000 portion of the distribution that remains after the AAA 
is reduced to zero is attributable to earnings and profits. Therefore C 
and D each have a dividend of $500, which does not affect their basis or 
S's AAA. The earnings and profits account is reduced from $3,000 to 
$2,000.
    (iv) As of December 31, 1997, C and D have bases in their shares of 
stock of zero ($5 (basis as of July 4)+$5 ($500 income/100 shares)-$10 
($1,000 distribution/100 shares)). C and D each will report $500 as 
dividend income, which does not affect their basis or S's AAA.
    Example 7. Election to distribute earnings and profits first. (i) 
Corporation S has been a calendar year C corporation since 1975. For 
1982, S elects for the first time to be taxed under subchapter S, and 
during 1982 has $60 of earnings and profits. As of December 31, 1995, S 
has an AAA of $10 and earnings and profits of $160, consisting of $100 
of subchapter C earnings and profits and $60 of subchapter S earnings 
and profits. For 1996, S has $200 of taxable income and the AAA is 
increased to $210 (before taking distributions into account). During 
1996, S distributes $240 to its shareholders. With its 1996 tax return, 
S properly elects under section 1368(e)(3) and Sec. 1.1368-1(f)(2) to 
distribute its earnings and profits before its AAA.
    (ii) Because S elected to distribute its earnings and profits before 
its AAA, the first $100 of the distribution is characterized as a 
distribution from subchapter C earnings and profits; the next $60 of the 
distribution is characterized as a distribution from subchapter S 
earnings and profits. Because $160 of the distribution is from earnings 
and profits, the shareholders of S have a $160 dividend. The remaining 
$80 of the distribution is a distribution from S's AAA and is treated by 
the shareholders as a return of capital or gain from the sale or 
exchange of property, as appropriate, under Sec. 1.1368-1(d)(1). S's 
AAA, as of December 31, 1996, equals $130 ($210-$80).
    Example 8. Distributions in excess of the AAA. (i) On January 1, 
1995, Corporation S has $40 of earnings and profits and a balance in the 
AAA of $100. S has two shareholders, E and F, each of whom own 50 shares 
of S's stock. For 1995, S has taxable income of $50, which increases the 
AAA to $150 as of December 31, 1995 (before taking into account 
distributions made during 1995). On February 1, 1995, S distributes $60 
to each shareholder. On September 1, 1995, S distributes $30 to each 
shareholder. S does not make the election under section 1368(e)(3) and 
Sec. 1.1368-1(f)(2) to distribute its earnings and profits before its 
AAA.
    (ii) The sum of the distributions exceed S's AAA. Therefore, under 
Sec. 1.1368-2(b), a portion of S's $150 balance in the AAA as of 
December 31, 1995, is allocated to each of the February 1 and September 
1 distributions based on the respective sizes of the distributions. 
Accordingly, S must allocate $100 ($150 (AAA)x($120 (February 1 
distribution)/$180 (the sum of the distributions))) of the AAA to the 
February 1 distribution, and $50 ($150x($60/$180)) to the September 1 
distribution. The portions of the distributions to which the AAA is 
allocated are treated by the shareholder as a return of capital or gain 
from the sale or exchange of property, as appropriate. The remainder of 
the two distributions is treated as a dividend to the extent that it 
does not exceed S's earnings and profits. E and F must each report $10 
of dividend income for the February 1 distribution. For the September 1 
distribution, E and F must each report $5 of dividend income.
    Example 9. Ordinary and redemption distributions in the same taxable 
year. (i) On January 1, 1995, Corporation S, an S corporation, has $20 
of earnings and profits and a balance in the AAA of $10. S has two 
shareholders, G and H, each of whom owns 50 shares of S's stock. For 
1995, S has taxable income of $16, which increases the AAA to $26 as of 
December 31, 1995 (before taking into account distributions made during 
1995). On February 1, 1995, S distributes $10 to each shareholder. On 
December 31, 1995, S redeems for $13 all of shareholder G's stock in a 
redemption that is treated as a sale or exchange under section 302(a).
    (ii) The sum of the ordinary distributions does not exceed S's AAA. 
Therefore, S must reduce the $26 balance in the AAA by $20 for the 
February 1 ordinary distribution. The portions of the distribution by 
which the AAA is reduced are treated by the shareholders as a return of 
capital or gain from the sale or exchange of property. S must adjust the 
remaining AAA, $6, in an amount equal to the ratable share of the 
remaining AAA attributable to the redeemed stock, or $3 (50%x$6).
    (iii) S also must adjust the earnings and profits of $20 in an 
amount equal to the ratable share of the earnings and profits 
attributable to the redeemed stock. Therefore, S adjusts the earnings 
and profits by $10 (50%x$20), the ratable share of the earnings

[[Page 781]]

and profits attributable to the redeemed stock.

[T.D. 8508, 59 FR 22, Jan. 3, 1994; 59 FR 10675, Mar. 7, 1994, as 
amended by T.D. 8852, 64 FR 71650, Dec. 22, 1999]



Sec. 1.1368-4  Effective date and transition rule.

    Except for Sec. Sec. 1.1368-1(e)(2), 1.1368-2(a)(5), and 1.1368-3 
Example 2, Example 4, and Example 5, Sec. Sec. 1.1368-1, 1.1368-2, and 
1.1368-3 apply to taxable years of the corporation beginning on or after 
January 1, 1994. Section 1.1368-1(e)(2), Sec. 1.1368-2(a)(5), and Sec. 
1.1368-3 Example 2, Example 4, and Example 5 apply only to taxable years 
of the corporation beginning on or after August 18, 1998. For taxable 
years beginning before January 1, 1994, and taxable years beginning on 
or after January 1, 1997, and before August 18, 1998, the treatment of 
distributions by an S corporation to its shareholders must be determined 
in a reasonable manner, taking into account the statute and legislative 
history. Except with regard to the deemed dividend rule under Sec. 
1.1368-1(f)(3), Sec. 1.1368-1(e)(2), Sec. 1.1368-2(a)(5), and Sec. 
1.1368-3 Example 2, Example 4, and Example 5, return positions 
consistent with Sec. Sec. 1.1368-1, 1.1368-2, and 1.1368-3 are 
reasonable for taxable years beginning before January 1, 1994. Return 
positions consistent with Sec. Sec. 1.1368-1(e)(2), 1.1368-2(a)(5), and 
1.1368-3 Example 2, Example 4, and Example 5 are reasonable for taxable 
years beginning on or after January 1, 1997, and before August 18, 1998.

[T.D. 8852, 64 FR 71651, Dec. 22, 1999]



Sec. 1.1374-0  Table of contents.

    This section lists the major paragraph headings for Sec. Sec. 
1.1374-1 through 1.1374-10.

              Sec. 1.1374-1 General rules and definitions.

    (a) Computation of tax.
    (b) Anti-trafficking rules.
    (c) Section 1374 attributes.
    (d) Recognition period.
    (e) Predecessor corporation.

              Sec. 1.1374-2 Net recognized built-in gain.

    (a) In general.
    (b) Allocation rule.
    (c) Recognized built-in gain carryover.
    (d) Accounting methods.
    (e) Example.

              Sec. 1.1374-3 Net unrealized built-in gain.

    (a) In general.
    (b) Example.

            Sec. 1.1374-4 Recognized built-in gain or loss.

    (a) Sales and exchanges.
    (1) In general.
    (2) Oil and gas property.
    (3) Examples.
    (b) Accrual method rule.
    (1) Income items.
    (2) Deduction items.
    (3) Examples.
    (c) Section 267(a)(2) and 404(a)(5) deductions.
    (1) Section 267(a)(2).
    (2) Section 404(a)(5).
    (3) Examples.
    (d) Section 481(a) adjustments.
    (1) In general.
    (2) Examples.
    (e) Section 995(b)(2) deemed distributions.
    (f) Discharge of indebtedness and bad debts.
    (g) Completion of contract.
    (h) Installment method.
    (1) In general.
    (2) Limitation on amount subject to tax.
    (3) Rollover rule.
    (4) Use of losses and section 1374 attributes.
    (5) Examples.
    (i) Partnership interests.
    (1) In general.
    (2) Limitations.
    (i) Partnership RBIG.
    (ii) Partnership RBIL.
    (3) Disposition of partnership interest.
    (4) RBIG and RBIL limitations.
    (i)-Sale of partnership interest.
    (ii) Amounts of limitations.
    (5) Small interest exception.
    (i) In general.
    (ii) Contributed assets.
    (iii) Anti-abuse rule.
    (6) Section 704(c) gain or loss.
    (7) Disposition of distributed partnership asset.
    (8) Examples.

                   Sec. 1.1374-5 Loss carryforwards.

    (a) In general.
    (b) Example.--

            Sec. 1.1374-6 Credits and credit carryforwards.

    (a) In general.
    (b) Limitations.
    (c) Examples.
Sec. 1.1374-7 Inventory.
    (a) Valuation.
    (b) Identity of dispositions.

             Sec. 1.1374-8 Section 1374(d)(8) transactions.

    (a) In general.
    (b) Effective date of section 1374(d)(8).
    (c) Separate determination of tax.

[[Page 782]]

    (d) Taxable income limitation.
    (e) Examples.

                   Sec. 1.1374-9 Anti-stuffing rule.

          Sec. 1.1374-10 Effective date and additional rules.

    (a) In general.
    (b) Additional rules.
    (1) Certain transfers to partnerships.
    (2) Certain inventory dispositions.
    (3) Certain contributions of built-in loss assets.
    (4) Certain installment sales.
    (i) In general.
    (ii) Examples.
    (c) Revocation and re-election of S corporation status.
    (1) In general.
    (2) Example.

[T.D. 8579, 59 FR 66463, Dec. 27, 1994, as amended by T.D. 9236, 70 FR 
75731, Dec. 21, 2005]



Sec. 1.1374-1  General rules and definitions.

    (a) Computation of tax. The tax imposed on the income of an S 
corporation by section 1374(a) for any taxable year during the 
recognition period is computed as follows--
    (1) Step One: Determine the net recognized built-in gain of the 
corporation for the taxable year under section 1374(d)(2) and Sec. 
1.1374-2;
    (2) Step Two: Reduce the net recognized built-in gain (but not below 
zero) by any net operating loss and capital loss carryforward allowed 
under section 1374(b)(2) and Sec. 1.1374-5;
    (3) Step Three: Compute a tentative tax by applying the rate of tax 
determined under section 1374(b)(1) for the taxable year to the amount 
determined under paragraph (a)(2) of this section;
    (4) Step Four: Compute the final tax by reducing the tentative tax 
(but not below zero) by any credit allowed under section 1374(b)(3) and 
Sec. 1.1374-6.
    (b) Anti-trafficking rules. If section 382, 383, or 384 would have 
applied to limit the use of a corporation's recognized built-in loss or 
section 1374 attributes at the beginning of the first day of the 
recognition period if the corporation had remained a C corporation, 
these sections apply to limit their use in determining the S 
corporation's pre-limitation amount, taxable income limitation, net 
unrealized built-in gain limitation, deductions against net recognized 
built-in gain, and credits against the section 1374 tax.
    (c) Section 1374 attributes. Section 1374 attributes are the loss 
carryforwards allowed under section 1374(b)(2) as a deduction against 
net recognized built-in gain and the credit and credit carryforwards 
allowed under section 1374(b)(3) as a credit against the section 1374 
tax.
    (d) Recognition period. The recognition period is the 10-year (120-
month) period beginning on the first day the corporation is an S 
corporation or the day an S corporation acquires assets in a section 
1374(d)(8) transaction. For example, if the first day of the recognition 
period is July 14, 1996, the last day of the recognition period is July 
13, 2006. If the recognition period for certain assets ends during an S 
corporation's taxable year (for example, because the corporation was on 
a fiscal year as a C corporation and changed to a calendar year as an S 
corporation or because an S corporation acquired assets in a section 
1374(d)(8) transaction during a taxable year), the S corporation must 
determine its pre-limitation amount (as defined in Sec. 1.1374-2(a)(1)) 
for the year as if the corporation's books were closed at the end of the 
recognition period.
    (e) Predecessor corporation. For purposes of section 1374(c)(1), if 
the basis of an asset of the S corporation is determined (in whole or in 
part) by reference to the basis of the asset (or any other property) in 
the hands of another corporation, the other corporation is a predecessor 
corporation of the S corporation.

[T.D. 8579, 59 FR 66463, Dec. 27, 1994]



Sec. 1.1374-2  Net recognized built-in gain.

    (a) In general. An S corporation's net recognized built-in gain for 
any taxable year is the least of--
    (1) Its taxable income determined by using all rules applying to C 
corporations and considering only its recognized built-in gain, 
recognized built-in loss, and recognized built-in gain carryover (pre-
limitation amount);
    (2) Its taxable income determined by using all rules applying to C 
corporations as modified by section 1375(b)(1)(B) (taxable income 
limitation); and

[[Page 783]]

    (3) The amount by which its net unrealized built-in gain exceeds its 
net recognized built-in gain for all prior taxable years (net unrealized 
built-in gain limitation).
    (b) Allocation rule. If an S corporation's pre-limitation amount for 
any taxable year exceeds its net recognized built-in gain for that year, 
the S corporation's net recognized built-in gain consists of a ratable 
portion of each item of income, gain, loss, and deduction included in 
the pre-limitation amount.
    (c) Recognized built-in gain carryover. If an S corporation's net 
recognized built-in gain for any taxable year is equal to its taxable 
income limitation, the amount by which its pre-limitation amount exceeds 
its taxable income limitation is a recognized built-in gain carryover 
included in its pre-limitation amount for the succeeding taxable year. 
The recognized built-in gain carryover consists of that portion of each 
item of income, gain, loss, and deduction not included in the S 
corporation's net recognized built-in gain for the year the carryover 
arose, as determined under paragraph (b) of this section.
    (d) Accounting methods. In determining its taxable income for pre-
limitation amount and taxable income limitation purposes, a corporation 
must use the accounting method(s) it uses for tax purposes as an S 
corporation.
    (e) Example. The rules of this section are illustrated by the 
following example.

    Example: Net recognized built-in gain. X is a calendar year C 
corporation that elects to become an S corporation on January 1, 1996. X 
has a net unrealized built-in gain of $50,000 and no net operating loss 
or capital loss carryforwards. In 1996, X has a pre-limitation amount of 
$20,000, consisting of ordinary income of $15,000 and capital gain of 
$5,000, a taxable income limitation of $9,600, and a net unrealized 
built-in gain limitation of $50,000. Therefore, X's net recognized 
built-in gain for 1996 is $9,600, because that is the least of the three 
amounts described in paragraph (a) of this section. Under paragraph (b) 
of this section, X's net recognized built-in gain consists of recognized 
built-in ordinary income of $7,200 [$15,000x($9,600/$20,000)=$7,200] and 
recognized built-in capital gain of $2,400 [$5,000x($9,600/
$20,000)=$2,400]. Under paragraph (c) of this section, X has a 
recognized built-in gain carryover to 1997 of $10,400 ($20,000-
$9,600=$10,400), consisting of $7,800 ($15,000-$7,200=$7,800) of 
recognized built-in ordinary income and $2,600 ($5,000-$2,400=$2,600) of 
recognized built-in capital gain.

[T.D. 8579, 59 FR 66463, Dec. 27, 1994]



Sec. 1.1374-3  Net unrealized built-in gain.

    (a) In general. An S corporation's net unrealized built-in gain is 
the total of the following--
    (1) The amount that would be the amount realized if, at the 
beginning of the first day of the recognition period, the corporation 
had remained a C corporation and had sold all its assets at fair market 
value to an unrelated party that assumed all its liabilities; decreased 
by
    (2) Any liability of the corporation that would be included in the 
amount realized on the sale referred to in paragraph (a)(1) of this 
section, but only if the corporation would be allowed a deduction on 
payment of the liability; decreased by
    (3) The aggregate adjusted bases of the corporation's assets at the 
time of the sale referred to in paragraph (a)(1) of this section; 
increased or decreased by
    (4) The corporation's section 481 adjustments that would be taken 
into account on the sale referred to in paragraph (a)(1) of this 
section; and increased by
    (5) Any recognized built-in loss that would not be allowed as a 
deduction under section 382, 383, or 384 on the sale referred to in 
paragraph (a)(1) of this section.
    (b) Adjustment to net unrealized built-in gain--(1) In general. If 
section 1374(d)(8) applies to an S corporation's acquisition of assets, 
some or all of the stock of the corporation from which such assets were 
acquired was taken into account in the computation of the net unrealized 
built-in gain for a pool of assets of the S corporation, and some or all 
of such stock is redeemed or canceled in such transaction, then, subject 
to the limitations of paragraph (b)(2) of this section, such net 
unrealized built-in gain is adjusted to eliminate any effect that any 
built-in gain or built-in loss in the redeemed or canceled stock (other 
than stock with respect to which a loss under section 165

[[Page 784]]

is claimed) had on the initial computation of net unrealized built-in 
gain for that pool of assets. For purposes of this paragraph, stock 
described in section 1374(d)(6) shall be treated as taken into account 
in the computation of the net unrealized built-in gain for a pool of 
assets of the S corporation.
    (2) Limitations on adjustment--(i) Recognized built-in gain or loss. 
Net unrealized built-in gain for a pool of assets of the S corporation 
is only adjusted under paragraph (b)(1) of this section to reflect 
built-in gain or built-in loss in the redeemed or canceled stock that 
has not resulted in recognized built-in gain or recognized built-in loss 
during the recognition period.
    (ii) Anti-duplication rule. Paragraph (b)(1) of this section shall 
not be applied to duplicate an adjustment to the net unrealized built-in 
gain for a pool of assets made pursuant to paragraph (b)(1) of this 
section.
    (3) Effect of adjustment. Any adjustment to the net unrealized 
built-in gain made pursuant to this paragraph (b) only affects 
computations of the amount subject to tax under section 1374 for taxable 
years that end on or after the date of the acquisition to which section 
1374(d)(8) applies.
    (4) Pool of assets. For purposes of this section, a pool of assets 
means--
    (i) The assets held by the corporation on the first day it became an 
S corporation, if the corporation was previously a C corporation; or
    (ii) The assets the S corporation acquired from a C corporation in a 
section 1374(d)(8) transaction.
    (c) Examples. The following examples illustrate the rules of this 
section:
    Example 1. Computation of net unrealized built-in gain. (i)(A) X, a 
calendar year C corporation using the cash method, elects to become an S 
corporation on January 1, 1996. On December 31, 1995, X has assets and 
liabilities as follows:

------------------------------------------------------------------------
                      Assets                           FMV       Basis
------------------------------------------------------------------------
Factory..........................................    $500,000   $900,000
Accounts Receivable..............................     300,000          0
Goodwill.........................................     250,000          0
                                                  ----------------------
  Total..........................................   1,050,000    900,000
------------------------------------------------------------------------


 
                         Liabilities                             Amount
------------------------------------------------------------------------
Mortgage.....................................................   $200,000
Accounts Payable.............................................    100,000
                                                              ----------
  Total......................................................    300,000
------------------------------------------------------------------------

    (B) Further, X must include a total of $60,000 in taxable income in 
1996, 1997, and 1998 under section 481(a).
    (ii) If, on December 31, 1995, X sold all its assets to a third 
party that assumed all its liabilities, X's amount realized would be 
$1,050,000 ($750,000 cash received + $300,000 liabilities assumed = 
$1,050,000). Thus, X's net unrealized built-in gain is determined as 
follows:

Amount realized...........................................    $1,050,000
Deduction allowed (A/P)...................................     (100,000)
Basis of X's assets.......................................     (900,000)
Section 481 adjustments...................................        60,000
Net unrealized built-in gain..............................       110,000
------------------------------------------------------------------------

    Example 2. Adjustment to net unrealized built-in gain for built-in 
gain in eliminated C corporation stock. (i) X, a calendar year C 
corporation, elects to become an S corporation effective January 1, 
2005. On that date, X's assets (the first pool of assets) have a net 
unrealized built-in gain of $15,000. Among the assets in the first pool 
of assets is all of the outstanding stock of Y, a C corporation, with a 
fair market value of $33,000 and an adjusted basis of $18,000. On March 
1, 2009, X sells an asset that it owned on January 1, 2005, and as a 
result has $10,000 of recognized built-in gain. X has had no other 
recognized built-in gain or built-in loss. X's taxable income limitation 
for 2009 is $50,000. Effective June 1, 2009, X elects under section 1361 
to treat Y as a qualified subchapter S subsidiary (QSub). The election 
is treated as a transfer of Y's assets to X in a liquidation to which 
sections 332 and 337(a) apply.
    (ii) Under paragraph (b) of this section, the net unrealized built 
in-gain of the first pool of assets is adjusted to account for the 
elimination of the Y stock in the liquidation. The net unrealized built-
in gain of the first pool of assets, therefore, is decreased by $15,000, 
the amount by which the fair market value of the Y stock exceeded its 
adjusted basis as of January 1, 2005. Accordingly, for taxable years 
ending after June 1, 2009, the net unrealized built-in gain of the first 
pool of assets is $0.
    (iii) Under Sec. 1.1374-2(a), X's net recognized built-in gain for 
any taxable year equals the least of X's pre-limitation amount, taxable 
income limitation, and net unrealized built-in gain limitation. In 2009, 
X's pre-limitation amount is $10,000, X's taxable income limitation is 
$50,000, and X's net unrealized built-in gain limitation is $0. Because 
the net unrealized built-in gain of the first pool of assets has been 
adjusted to $0, despite the $10,000 of recognized built-in gain in 2009, 
X has $0 net recognized built-in gain for the taxable year ending on 
December 31, 2009.

[[Page 785]]

    Example 3. Adjustment to net unrealized built-in gain for built-in 
loss in eliminated C corporation stock. (i) X, a calendar year C 
corporation, elects to become an S corporation effective January 1, 
2005. On that date, X's assets (the first pool of assets) have a net 
unrealized built-in gain of negative $5,000. Among the assets in the 
first pool of assets is 10 percent of the outstanding stock of Y, a C 
corporation, with a fair market value of $18,000 and an adjusted basis 
of $33,000. On March 1, 2009, X sells an asset that it owned on January 
1, 2005, resulting in $8,000 of recognized built-in gain. X has had no 
other recognized built-in gains or built-in losses. X's taxable income 
limitation for 2009 is $50,000. On June 1, 2009, Y transfers its assets 
to X in a reorganization under section 368(a)(1)(C).
    (ii) Under paragraph (b) of this section, the net unrealized built 
in-gain of the first pool of assets is adjusted to account for the 
elimination of the Y stock in the reorganization. The net unrealized 
built-in gain of the first pool of assets, therefore, is increased by 
$15,000, the amount by which the adjusted basis of the Y stock exceeded 
its fair market value as of January 1, 2005. Accordingly, for taxable 
years ending after June 1, 2009, the net unrealized built-in gain of the 
first pool of assets is $10,000.
    (iii) Under Sec. 1.1374-2(a), X's net recognized built-in gain for 
any taxable year equals the least of X's pre-limitation amount, taxable 
income limitation, and net unrealized built-in gain limitation. In 2009, 
X's pre-limitation amount is $8,000 and X's taxable income limitation is 
$50,000. The net unrealized built-in gain of the first pool of assets 
has been adjusted to $10,000, so X's net unrealized built-in gain 
limitation is $10,000. X, therefore, has $8,000 net recognized built-in 
gain for the taxable year ending on December 31, 2009. X's net 
unrealized built-in gain limitation for 2010 is $2,000.
    Example 4. Adjustment to net unrealized built-in gain in case of 
prior gain recognition. (i) X, a calendar year C corporation, elects to 
become an S corporation effective January 1, 2005. On that date, X's 
assets (the first pool of assets) have a net unrealized built-in gain of 
$30,000. Among the assets in the first pool of assets is all of the 
outstanding stock of Y, a C corporation, with a fair market value of 
$45,000 and an adjusted basis of $10,000. Y has no current or 
accumulated earnings and profits. On April 1, 2007, Y distributes 
$18,000 to X, $8,000 of which is treated as gain to X from the sale or 
exchange of property under section 301(c)(3). That $8,000 is recognized 
built-in gain to X under section 1374(d)(3), and results in $8,000 of 
net recognized built-in gain to X for 2007. X's net unrealized built-in 
gain limitation for 2008 is $22,000. On June 1, 2009, Y transfers its 
assets to X in a liquidation to which sections 332 and 337(a) apply.
    (ii) Under paragraph (b) of this section, the net unrealized built 
in-gain of the first pool of assets is adjusted to account for the 
elimination of the Y stock in the liquidation. The net unrealized built-
in gain of that pool of assets, however, can only be adjusted to reflect 
the amount of built-in gain that was inherent in the Y stock on January 
1, 2005 that has not resulted in recognized built-in gain during the 
recognition period. In this case, therefore, the net unrealized built-in 
gain of the first pool of assets cannot be reduced by more than $27,000 
($35,000, the amount by which the fair market value of the Y stock 
exceeded its adjusted basis as of January 1, 2005, minus $8,000, the 
recognized built-in gain with respect to the stock during the 
recognition period). Accordingly, for taxable years ending after June 1, 
2009, the net unrealized built-in gain of the first pool of assets is 
$3,000. The net unrealized built-in gain limitation for 2009 is $0.

[T.D. 8579, 59 FR 66464, Dec. 27, 1994, as amended by T.D. 9180, 70 FR 
8728, Feb. 23, 2005]



Sec. 1.1374-4  Recognized built-in gain or loss.

    (a) Sales and exchanges--(1) In general. Section 1374(d)(3) or 
1374(d)(4) applies to any gain or loss recognized during the recognition 
period in a transaction treated as a sale or exchange for Federal income 
tax purposes.
    (2) Oil and gas property. For purposes of paragraph (a)(1) of this 
section, an S corporation's adjusted basis in oil and gas property 
equals the sum of the shareholders' adjusted bases in the property as 
determined in section 613A(c)(11)(B).
    (3) Examples. The rules of this paragraph (a) are illustrated by the 
following examples.

    Example 1. Production and sale of oil. X is a C corporation that 
purchased a working interest in an oil and gas property for $100,000 on 
July 1, 1993. X elects to become an S corporation effective January 1, 
1996. On that date, the working interest has a fair market value of 
$250,000 and an adjusted basis of $50,000, but no oil has as yet been 
extracted. In 1996, X begins production of the working interest, sells 
oil that it has produced to a refinery for $75,000, and includes that 
amount in gross income. Under paragraph (a)(1) of this section, the 
$75,000 is not recognized built-in gain because as of the beginning of 
the recognition period X held only a working interest in the oil and gas 
property (since the oil had not yet been extracted from the ground), and 
not the oil itself.

[[Page 786]]

    Example 2. Sale of oil and gas property. Y is a C corporation that 
elects to become an S corporation effective January 1, 1996. Y has two 
shareholders, A and B. A and B each own 50 percent of Y's stock. In 
addition, Y owns a royalty interest in an oil and gas property with a 
fair market value of $300,000 and an adjusted basis of $200,000. Under 
section 613A(c)(11)(B), Y's $200,000 adjusted basis in the royalty 
interest is allocated $100,000 to A and $100,000 to B. During 1996, A 
and B take depletion deductions with respect to the royalty interest of 
$10,000 and $15,000, respectively. As of January 1, 1997, A and B have a 
basis in the royalty interest of $90,000 and $85,000, respectively. On 
January 1, 1997, Y sells the royalty interest for $250,000. Under 
paragraph (a)(1) of this section, Y has gain recognized and recognized 
built-in gain of $75,000 ($250,000-($90,000+$85,000)=$75,000) on the 
sale.

    (b) Accrual method rule--(1) Income items. Except as otherwise 
provided in this section, any item of income properly taken into account 
during the recognition period is recognized built-in gain if the item 
would have been properly included in gross income before the beginning 
of the recognition period by an accrual method taxpayer (disregarding 
any method of accounting for which an election by the taxpayer must be 
made unless the taxpayer actually used the method when it was a C 
corporation).
    (2) Deduction items. Except as otherwise provided in this section, 
any item of deduction properly taken into account during the recognition 
period is recognized built-in loss if the item would have been properly 
allowed as a deduction against gross income before the beginning of the 
recognition period to an accrual method taxpayer (disregarding any 
method of accounting for which an election by the taxpayer must be made 
unless the taxpayer actually used the method when it was a C 
corporation). In determining whether an item would have been properly 
allowed as a deduction against gross income by an accrual method 
taxpayer for purposes of this paragraph, section 461(h)(2)(C) and Sec. 
1.461-4(g) (relating to liabilities for tort, worker's compensation, 
breach of contract, violation of law, rebates, refunds, awards, prizes, 
jackpots, insurance contracts, warranty contracts, service contracts, 
taxes, and other liabilities) do not apply.
    (3) Examples. The rules of this paragraph (b) are illustrated by the 
following examples.

    Example 1. Accounts receivable. X is a C corporation using the cash 
method that elects to become an S corporation effective January 1, 1996. 
On January 1, 1996, X has $50,000 of accounts receivable for services 
rendered before that date. On that date, the accounts receivable have a 
fair market value of $40,000 and an adjusted basis of $0. In 1996, X 
collects $50,000 on the accounts receivable and includes that amount in 
gross income. Under paragraph (b)(1) of this section, the $50,000 
included in gross income in 1996 is recognized built-in gain because it 
would have been included in gross income before the beginning of the 
recognition period if X had been an accrual method taxpayer. However, if 
X instead disposes of the accounts receivable for $45,000 on July 1, 
1996, in a transaction treated as a sale or exchange for Federal income 
tax purposes, X would have recognized built-in gain of $40,000 on the 
disposition.
    Example 2. Contingent liability. Y is a C corporation using the cash 
method that elects to become an S corporation effective January 1, 1996. 
In 1995, a lawsuit was filed against Y claiming $1,000,000 in damages. 
In 1996, Y loses the lawsuit, pays a $500,000 judgment, and properly 
claims a deduction for that amount. Under paragraph (b)(2) of this 
section, the $500,000 deduction allowed in 1996 is not recognized built-
in loss because it would not have been allowed as a deduction against 
gross income before the beginning of the recognition period if Y had 
been an accrual method taxpayer (even disregarding section 461(h)(2)(C) 
and Sec. 1.461-4(g)).
    Example 3. Deferred payment liabilities. X is a C corporation using 
the cash method that elects to become an S corporation on January 1, 
1996. In 1995, X lost a lawsuit and became obligated to pay $150,000 in 
damages. Under section 461(h)(2)(C), this amount is not allowed as a 
deduction until X makes payment. In 1996, X makes payment and properly 
claims a deduction for the amount of the payment. Under paragraph (b)(2) 
of this section, the $150,000 deduction allowed in 1996 is recognized 
built-in loss because it would have been allowed as a deduction against 
gross income before the beginning of the recognition period if X had 
been an accrual method taxpayer (disregarding section 461(h)(2)(C) and 
Sec. 1.461-4(g)).
    Example 4. Deferred prepayment income. Y is a C corporation using an 
accrual method that elects to become an S corporation effective January 
1, 1996. In 1995, Y received $2,500 for services to be rendered in 1996, 
and properly elected to include the $2,500 in gross income in 1996 under 
Rev. Proc. 71-21, 1971-2 C.B. 549 (see Sec. 601.601(d)(2)(ii)(b) of 
this chapter). Under paragraph (b)(1) of this section, the $2,500 
included in gross income in 1996 is

[[Page 787]]

not recognized built-in gain because it would not have been included in 
gross income before the beginning of the recognition period by an 
accrual method taxpayer using the method that Y actually used before the 
beginning of the recognition period.
    Example 5. Change in method. X is a C corporation using an accrual 
method that elects to become an S corporation effective January 1, 1996. 
In 1995, X received $5,000 for services to be rendered in 1996, and 
properly included the $5,000 in gross income. In 1996, X properly elects 
to include the $5,000 in gross income in 1996 under Rev. Proc. 71-21, 
1971-2 C.B. 549 (see Sec. 601.601(d)(2)(ii)(b) of this chapter). As a 
result of the change in method of accounting, X has a $5,000 negative 
section 481(a) adjustment. Under paragraph (b)(1) of this section, the 
$5,000 included in gross income in 1996 is recognized built-in gain 
because it would have been included in gross income before the beginning 
of the recognition period by an accrual method taxpayer using the method 
that X actually used before the beginning of the recognition period. In 
addition, the $5,000 negative section 481(a) adjustment is recognized 
built-in loss because it relates to an item (the $5,000 X received for 
services in 1995) attributable to periods before the beginning of the 
recognition period under the principles for determining recognized 
built-in gain or loss in this section. See paragraph (d) of this section 
for rules regarding section 481(a) adjustments.

    (c) Section 267(a)(2) and 404(a)(5) deductions--(1) Section 
267(a)(2). Notwithstanding paragraph (b)(2) of this section, any amount 
properly deducted in the recognition period under section 267(a)(2), 
relating to payments to related parties, is recognized built-in loss to 
the extent--
    (i) All events have occurred that establish the fact of the 
liability to pay the amount, and the exact amount of the liability can 
be determined, as of the beginning of the recognition period; and
    (ii) The amount is paid--
    (A) In the first two and one-half months of the recognition period; 
or
    (B) To a related party owning, under the attribution rules of 
section 267, less than 5 percent, by voting power and value, of the 
corporation's stock, both as of the beginning of the recognition period 
and when the amount is paid.
    (2) Section 404(a)(5). Notwithstanding paragraph (b)(2) of this 
section, any amount properly deducted in the recognition period under 
section 404(a)(5), relating to payments for deferred compensation, is 
recognized built-in loss to the extent--
    (i) All events have occurred that establish the fact of the 
liability to pay the amount, and the exact amount of the liability can 
be determined, as of the beginning of the recognition period; and
    (ii) The amount is not paid to a related party to which section 
267(a)(2) applies.
    (3) Examples. The rules of this paragraph (c) are illustrated by the 
following examples.

    Example 1. Fixed annuity. X is a C corporation that elects to become 
an S corporation effective January 1, 1996. On December 31, 1995, A is 
age 60, has provided services to X as an employee for 20 years, and is a 
vested participant in X's unfunded nonqualified retirement plan. Under 
the plan, A receives $1,000 per month upon retirement until death. The 
plan provides no additional benefits. A retires on December 31, 1997, 
after working for X for 22 years. A at no time is a shareholder of X. 
X's deductions under section 404(a)(5) in the recognition period on 
paying A the $1,000 per month are recognized built-in loss because all 
events have occurred that establish the fact of the liability to pay the 
amount, and the exact amount of the liability can be determined, as of 
the beginning of the recognition period.
    Example 2. Increase in annuity for working beyond 20 years. The 
facts are the same as Example 1, except that under the plan A receives 
$1,000 per month, plus $100 per month for each year A works for X beyond 
20 years, upon retirement until death. X's deductions on paying A the 
$1,000 per month are recognized built-in loss. However, X's deductions 
on paying A the $200 per month for the two years A worked for X beyond 
20 years are not recognized built-in loss because all events have not 
occurred that establish the fact of the liability to pay the amount, and 
the exact amount of the liability cannot be determined, as of the 
beginning of the recognition period.
    Example 3. Cost of living adjustment. The facts are the same as 
Example 1, except that under the plan A receives $1,000 per month, plus 
annual cost of living adjustments, upon retirement until death. X's 
deductions under section 404(a)(5) on paying A the $1,000 per month are 
recognized built-in loss. However, X's deductions under section 
404(a)(5) on paying A the annual cost of living adjustment are not 
recognized built-in loss because all events have not occurred that 
establish the fact of the liability to pay the amount, and the exact 
amount of the liability cannot be determined, as of the beginning of the 
recognition period.


[[Page 788]]


    (d) Section 481(a) adjustments--(1) In general. Any section 481(a) 
adjustment taken into account in the recognition period is recognized 
built-in gain or loss to the extent the adjustment relates to items 
attributable to periods before the beginning of the recognition period 
under the principles for determining recognized built-in gain or loss in 
this section. The principles for determining recognized built-in gain or 
loss in this section include, for example, the accrual method rule under 
paragraph (b) of this section.
    (2) Examples. The rules of this paragraph (d) are illustrated by the 
following examples.

    Example 1. Omitted item attributable to prerecognition period. X is 
a C corporation that elects to become an S corporation effective January 
1, 1996. X improperly capitalizes repair costs and recovers the costs 
through depreciation of the related assets. In 1999, X properly changes 
to deducting repair costs as they are incurred. Under section 481(a), 
the basis of the related assets are reduced by an amount equal to the 
excess of the repair costs incurred before the year of change over the 
repair costs recovered through depreciation before the year of change. 
In addition, X has a negative section 481(a) adjustment equal to the 
basis reduction. Under paragraph (d)(1) of this section, the portion of 
X's negative section 481(a) adjustment relating to the repair costs 
incurred before the recognition period is recognized built-in loss 
because those repair costs are items attributable to periods before the 
beginning of the recognition period under the principles for determining 
recognized built-in gain or loss in this section.
    Example 2. Duplicated item attributable to prerecognition period. Y 
is a C corporation that elects to become an S corporation effective 
January 1, 1996. Y improperly uses an accrual method without regard to 
the economic performance rules of section 461(h) to account for worker's 
compensation claims. As a result, Y takes deductions when claims are 
filed. In 1999, Y properly changes to an accrual method with regard to 
the economic performance rules under section 461(h)(2)(C) for worker's 
compensation claims. As a result, Y takes deductions when claims are 
paid. The positive section 481(a) adjustment resulting from the change 
is equal to the amount of claims filed, but unpaid, before the year of 
change. Under paragraph (b)(2) of this section, the deduction allowed in 
the recognition period for claims filed, but unpaid, before the 
recognition period is recognized built-in loss because a deduction was 
allowed for those claims before the recognition period under an accrual 
method without regard to section 461(h)(2)(C). Under paragraph (d)(1) of 
this section, the portion of Y's positive section 481(a) adjustment 
relating to claims filed, but unpaid, before the recognition period is 
recognized built-in gain because those claims are items attributable to 
periods before the beginning of the recognition period under the 
principles for determining recognized built-in gain or loss in this 
section.

    (e) Section 995(b)(2) deemed distributions. Any item of income 
properly taken into account during the recognition period under section 
995(b)(2) is recognized built-in gain if the item results from a DISC 
termination or disqualification occurring before the beginning of the 
recognition period.
    (f) Discharge of indebtedness and bad debts. Any item of income or 
deduction properly taken into account during the first year of the 
recognition period as discharge of indebtedness income under section 
61(a)(12) or as a bad debt deduction under section 166 is recognized 
built-in gain or loss if the item arises from a debt owed by or to an S 
corporation at the beginning of the recognition period.
    (g) Completion of contract. Any item of income properly taken into 
account during the recognition period under the completed contract 
method (as described in Sec. 1.460-4(d)) where the corporation began 
performance of the contract before the beginning of the recognition 
period is recognized built-in gain if the item would have been included 
in gross income before the beginning of the recognition period under the 
percentage of completion method (as described in Sec. 1.460-4(b)). Any 
similar item of deduction is recognized built-in loss if the item would 
have been allowed as a deduction against gross income before the 
beginning of the recognition period under the percentage of completion 
method.
    (h) Installment method--(1) In general. If a corporation sells an 
asset before or during the recognition period and reports the income 
from the sale using the installment method under section 453 during or 
after the recognition period, that income is subject to tax under 
section 1374.
    (2) Limitation on amount subject to tax. For purposes of paragraph 
(h)(1) of this section, the taxable income limitation under Sec. 
1.1374-2(a)(2) is equal to the

[[Page 789]]

amount by which the S corporation's net recognized built-in gain would 
have been increased from the year of the sale to the earlier of the year 
the income is reported under the installment method or the last year of 
the recognition period, assuming all income from the sale had been 
reported in the year of the sale and all provisions of section 1374 
applied. For purposes of the preceding sentence, if the corporation 
sells the asset before the recognition period, the income from the sale 
that is not reported before the recognition period is treated as having 
been reported in the first year of the recognition period.
    (3) Rollover rule. If the limitation in paragraph (h)(2) of this 
section applies, the excess of the amount reported under the installment 
method over the amount subject to tax under the limitation is treated as 
if it were reported in the succeeding taxable year(s), but only for 
succeeding taxable year(s) in the recognition period. The amount 
reported in the succeeding taxable year(s) under the preceding sentence 
is reduced to the extent that the amount not subject to tax under the 
limitation in paragraph (h)(2) of this section was not subject to tax 
because the S corporation had an excess of recognized built-in loss over 
recognized built-in gain in the taxable year of the sale and succeeding 
taxable year(s) in the recognition period.
    (4) Use of losses and section 1374 attributes. If income is reported 
under the installment method by an S corporation for a taxable year 
after the recognition period and the income is subject to tax under 
paragraph (h)(1) of this section, the S corporation's section 1374 
attributes may be used to the extent their use is allowed under all 
applicable provisions of the Code in determining the section 1374 tax. 
However, the S corporation's loss recognized for a taxable year after 
the recognition period that would have been recognized built-in loss if 
it had been recognized in the recognition period may not be used in 
determining the section 1374 tax.
    (5) Examples. The rules of this paragraph (h) are illustrated by the 
following examples.

    Example 1. Rollover rule. X is a C corporation that elects to become 
an S corporation effective January 1, 1996. On that date, X sells 
Blackacre with a basis of $0 and a value of $100,000 in exchange for a 
$100,000 note bearing a market rate of interest payable on January 1, 
2001. X does not make the election under section 453(d) and, therefore, 
reports the $100,000 gain using the installment method under section 
453. In the year 2001, X has income of $100,000 on collecting the note, 
unexpired C year attributes of $0, recognized built-in loss of $0, 
current losses of $100,000, and taxable income of $0. If X had reported 
the $100,000 gain in 1996, X's net recognized built-in gain from 1996 
through 2001 would have been $75,000 greater than otherwise. Under 
paragraph (h) of this section, X has $75,000 net recognized built-in 
gain subject to tax under section 1374. X also must treat the $25,000 
excess of the amount reported, $100,000, over the amount subject to tax, 
$75,000, as income reported under the installment method in the 
succeeding taxable year(s) in the recognition period, except to the 
extent X establishes that the $25,000 was not subject to tax under 
section 1374 in the year 2001 because X had an excess of recognized 
built-in loss over recognized built-in gain in the taxable year of the 
sale and succeeding taxable year(s) in the recognition period.
    Example 2. Use of losses. Y is a C corporation that elects to become 
an S corporation effective January 1, 1996. On that date, Y sells 
Whiteacre with a basis of $0 and a value of $250,000 in exchange for a 
$250,000 note bearing a market rate of interest payable on January 1, 
2006. Y does not make the election under section 453(d) and, therefore, 
reports the $250,000 gain using the installment method under section 
453. In the year 2006, Y has income of $250,000 on collecting the note, 
unexpired C year attributes of $0, loss of $100,000 that would have been 
recognized built-in loss if it had been recognized in the recognition 
period, current losses of $150,000, and taxable income of $0. If Y had 
reported the $250,000 gain in 1996, X's net recognized built-in gain 
from 1996 through 2005 (that is, during the recognition period) would 
have been $225,000 greater than otherwise. Under paragraph (h) of this 
section, X has $225,000 net recognized built-in gain subject to tax 
under section 1374.
    Example 3. Use of section 1374 attribute. Z is a C corporation that 
elects to become an S corporation effective January 1, 1996. On that 
date, Z sells Greenacre with a basis of $0 and a value of $500,000 in 
exchange for a $500,000 note bearing a market rate of interest payable 
on January 1, 2011. Z does not make the election under section 453(d) 
and, therefore, reports the $500,000 gain using the installment method 
under section 453. In the year 2011, Z has income of $500,000 on 
collecting the note, loss of $0 that would have

[[Page 790]]

been recognized built-in loss if it had been recognized in the 
recognition period, current losses of $0, taxable income of $500,000, 
and a minimum tax credit of $60,000 arising in 1995. None of Z's minimum 
tax credit is limited under sections 53(c) or 383. If Z had reported the 
$500,000 gain in 1996, Z's net recognized built-in gain from 1996 
through 2005 (that is, during the recognition period) would have been 
$350,000 greater than otherwise. Under paragraph (h) of this section, Z 
has $350,000 net recognized built-in gain subject to tax under section 
1374, a tentative section 1374 tax of $122,500 ($350,000 x .35 = 
$122,500), and a section 1374 tax after using its minimum tax credit 
arising in 1995 of $62,250 ($122,500 - $60,000 = $62,250).

    (i) Partnership interests--(1) In general. If an S corporation owns 
a partnership interest at the beginning of the recognition period or 
transfers property to a partnership in a transaction to which section 
1374(d)(6) applies during the recognition period, the S corporation 
determines the effect on net recognized built-in gain from its 
distributive share of partnership items as follows--
    (i) Step One: Apply the rules of section 1374(d) to the S 
corporation's distributive share of partnership items of income, gain, 
loss, or deduction included in income or allowed as a deduction under 
the rules of subchapter K to determine the extent to which it would have 
been treated as recognized built-in gain or loss if the partnership 
items had originated in and been taken into account directly by the S 
corporation (partnership 1374 items);
    (ii) Step Two: Determine the S corporation's net recognized built-in 
gain without partnership 1374 items;
    (iii) Step Three: Determine the S corporation's net recognized 
built-in gain with partnership 1374 items; and
    (iv) Step Four: If the amount computed under Step Three (paragraph 
(i)(1)(iii) of this section) exceeds the amount computed under Step Two 
(paragraph (i)(1)(ii) of this section), the excess (as limited by 
paragraph (i)(2)(i) of this section) is the S corporation's partnership 
RBIG, and the S corporation's net recognized built-in gain is the sum of 
the amount computed under Step Two (paragraph (i)(1)(ii) of this 
section) plus the partnership RBIG. If the amount computed under Step 
Two (paragraph (i)(1)(ii) of this section) exceeds the amount computed 
under Step Three (paragraph (i)(1)(iii) of this section), the excess (as 
limited by paragraph (i)(2)(ii) of this section) is the S corporation's 
partnership RBIL, and the S corporation's net recognized built-in gain 
is the remainder of the amount computed under Step Two (paragraph 
(i)(1)(ii) of this section) after subtracting the partnership RBIL.
    (2) Limitations--(i) Partnership RBIG. An S corporation's 
partnership RBIG for any taxable year may not exceed the excess (if any) 
of the S corporation's RBIG limitation over its partnership RBIG for 
prior taxable years. The preceding sentence does not apply if a 
corporation forms or avails of a partnership with a principal purpose of 
avoiding the tax imposed under section 1374.
    (ii) Partnership RBIL. An S corporation's partnership RBIL for any 
taxable year may not exceed the excess (if any) of the S corporation's 
RBIL limitation over its partnership RBIL for prior taxable years.
    (3) Disposition of partnership interest. If an S corporation 
disposes of its partnership interest, the amount that may be treated as 
recognized built-in gain may not exceed the excess (if any) of the S 
corporation's RBIG limitation over its partnership RBIG during the 
recognition period. Similarly, the amount that may be treated as 
recognized built-in loss may not exceed the excess (if any) of the S 
corporation's RBIL limitation over its partnership RBIL during the 
recognition period.
    (4) RBIG and RBIL limitations--(i) Sale of partnership interest. An 
S corporation's RBIG or RBIL limitation is the total of the following--
    (A) The amount that would be the amount realized if, at the 
beginning of the first day of the recognition period, the corporation 
had remained a C corporation and had sold its partnership interest (and 
any assets the corporation contributed to the partnership during the 
recognition period) at fair market value to an unrelated party; 
decreased by
    (B) The corporation's adjusted basis in the partnership interest 
(and any assets the corporation contributed to the partnership during 
the recognition period) at the time of the sale referred to

[[Page 791]]

in paragraph (i)(4)(i)(A) of this section; and increased or decreased by
    (C) The corporation's allocable share of the partnership's section 
481(a) adjustments at the time of the sale referred to in paragraph 
(i)(4)(i)(A) of this section.
    (ii) Amounts of limitations. If the result in paragraph (i)(4)(i) of 
this section is a positive amount, the S corporation has a RBIG 
limitation equal to that amount and a RBIL limitation of $0, but if the 
result in paragraph (i)(4)(i) of this section is a negative amount, the 
S corporation has a RBIL limitation equal to that amount and a RBIG 
limitation of $0.
    (5) Small interest exception--(i) In general. Paragraph (i)(1) of 
this section does not apply to a taxable year in the recognition period 
if the S corporation's partnership interest represents less than 10 
percent of the partnership's capital and profits at all times during the 
taxable year and prior taxable years in the recognition period, and the 
fair market value of the S corporation's partnership interest as of the 
beginning of the recognition period is less than $100,000.
    (ii) Contributed assets. For purposes of paragraph (i)(5)(i) of this 
section, if the S corporation contributes any assets to the partnership 
during the recognition period and the S corporation held the assets as 
of the beginning of the recognition period, the fair market value of the 
S corporation's partnership interest as of the beginning of the 
recognition period is determined as if the assets were contributed to 
the partnership before the beginning of the recognition period (using 
the fair market value of each contributed asset as of the beginning of 
the recognition period). The contribution does not affect whether 
paragraph (i)(5)(i) of this section applies for taxable years in the 
recognition period before the taxable year in which the contribution was 
made.
    (iii) Anti-abuse rule. Paragraph (i)(5)(i) of this section does not 
apply if a corporation forms or avails of a partnership with a principal 
purpose of avoiding the tax imposed under section 1374.
    (6) Section 704(c) gain or loss. Solely for purposes of section 
1374, an S corporation's section 704(c) gain or loss amount with respect 
to any asset is not reduced during the recognition period, except for 
amounts treated as recognized built-in gain or loss with respect to that 
asset under this paragraph.
    (7) Disposition of distributed partnership asset. If on the first 
day of the recognition period an S corporation holds an interest in a 
partnership that holds an asset and during the recognition period the 
partnership distributes the asset to the S corporation that thereafter 
disposes of the asset, the asset is treated as having been held by the S 
corporation on the first day of the recognition period and as having the 
fair market value and adjusted basis in the hands of the S corporation 
that it had in the hands of the partnership on that day.
    (8) Examples. The rules of this paragraph (i) are illustrated by the 
following examples.

    Example 1. Pre-conversion partnership interest. X is a C corporation 
that elects to become an S corporation on January 1, 1996. On that date, 
X owns a 50 percent interest in partnership P and P owns (among other 
assets) Blackacre with a basis of $25,000 and a value of $45,000. In 
1996, P buys Whiteacre for $50,000. In 1999, P sells Blackacre for 
$55,000 and recognizes a gain of $30,000 of which $15,000 is included in 
X's distributive share. P also sells Whiteacre in 1999 for $42,000 and 
recognizes a loss of $8,000 of which $4,000 is included in X's 
distributive share. Under this paragraph and section 1374(d)(3), X's 
$15,000 gain is presumed to be recognized built-in gain and thus treated 
as a partnership 1374 item, but this presumption is rebutted if X 
establishes that P's gain would have been only $20,000 ($45,000-
$25,000=$20,000) if Blackacre had been sold on the first day of the 
recognition period. In such a case, only X's distributive share of the 
$20,000 built-in gain, $10,000, would be treated as a partnership 1374 
item. Under this paragraph and section 1374(d)(4), X's $4,000 loss is 
not treated as a partnership 1374 item because P did not hold Whiteacre 
on the first day of the recognition period.
    Example 2. Post-conversion contribution. Y is a C corporation that 
elects to become an S corporation on January 1, 1996. On that date, Y 
owns (among other assets) Blackacre with a basis of $100,000 and a value 
of $200,000. On January 1, 1998, when Blackacre has a basis of $100,000 
and a value of $200,000, Y contributes Blackacre to partnership P for a 
50 percent interest in P. On January 1, 2000, P sells Blackacre for 
$300,000 and recognizes a gain of $200,000 on the sale

[[Page 792]]

($300,000-$100,000=$200,000). P is allocated $100,000 of the gain under 
section 704(c), and another $50,000 of the gain for its fifty percent 
share of the remainder, for a total of $150,000. Under this paragraph 
and section 1374(d)(3), if Y establishes that P's gain would have been 
only $100,000 ($200,000-$100,000=$100,000) if Blackacre had been sold on 
the first day of the recognition period, Y would treat only $100,000 as 
a partnership 1374 item.
    Example 3. RBIG limitation of $100,000 or $50,000. X is a C 
corporation that elects to become an S corporation on January 1, 1996. 
On that date, X owns a 50 percent interest in partnership P with a RBIG 
limitation of $100,000 and a RBIL limitation of $0. P owns (among other 
assets) Blackacre with a basis of $50,000 and a value of $200,000. In 
1996, P sells Blackacre for $200,000 and recognizes a gain of $150,000 
of which $75,000 is included in X's distributive share and treated as a 
partnership 1374 item. X's net recognized built-in gain for 1996 
computed without partnership 1374 items is $35,000 and with partnership 
1374 items is $110,000. Thus, X has a partnership RBIG of $75,000 except 
as limited under paragraph (i)(2)(i) of this section. Because X's RBIG 
limitation is $100,000, X's partnership RBIG of $75,000 is not limited 
and X's net recognized built-in gain for the year is $110,000 
($35,000+$75,000=$110,000). However, if X had a RBIG limitation of 
$50,000 instead of $100,000, X's partnership RBIG would be limited to 
$50,000 under paragraph (i)(2)(i) of this section and X's net recognized 
built-in gain would be $85,000 ($35,000+$50,000=$85,000).
    Example 4. RBIL limitation of $60,000 or $40,000. Y is a C 
corporation that elects to become an S corporation on January 1, 1996. 
On that date, Y owns a 50 percent interest in partnership P with a RBIG 
limitation of $0 and a RBIL limitation of $60,000. P owns (among other 
assets) Blackacre with a basis of $225,000 and a value of $125,000. In 
1996, P sells Blackacre for $125,000 and recognizes a loss of $100,000 
of which $50,000 is included in Y's distributive share and treated as a 
partnership 1374 item. Y's net recognized built-in gain for 1996 
computed without partnership 1374 items is $75,000 and with partnership 
1374 items is $25,000. Thus, Y has a partnership RBIL of $50,000 for the 
year except as limited under paragraph (i)(2)(ii) of this section. 
Because Y's RBIL limitation is $60,000, Y's partnership RBIL for the 
year is not limited and Y's net recognized built-in gain for the year is 
$25,000 ($75,000-$50,000=$25,000). However, if Y had a RBIL limitation 
of $40,000 instead of $60,000, Y's partnership RBIL would be limited to 
$40,000 under paragraph (i)(2)(ii) of this section and Y's net 
recognized built-in gain for the year would be $35,000 ($75,000-
$40,000=$35,000).
    Example 5. RBIG limitation of $0. (i) X is a C corporation that 
elects to become an S corporation on January 1, 1996. X owns a 50 
percent interest in partnership P with a RBIG limitation of $0 and a 
RBIL limitation of $25,000.
    (a) In 1996, P's partnership 1374 items are--
    (1) Ordinary income of $25,000; and
    (2) Capital gain of $75,000.
    (b) X itself has--
    (1) Recognized built-in ordinary income of $40,000; and
    (2) Recognized built-in capital loss of $90,000.
    (ii) X's net recognized built-in gain for 1996 computed without 
partnership 1374 items is $40,000 and with partnership 1374 items is 
$65,000 ($40,000+$25,000=$65,000). Thus, X's partnership RBIG is $25,000 
for the year except as limited under paragraph (i)(2)(i) of this 
section. Because X's RBIG limitation is $0, X's partnership RBIG of 
$25,000 is limited to $0 and X's net recognized built-in gain for the 
year is $40,000.
    Example 6. RBIL limitation of $0. (i) Y is a C corporation that 
elects to become an S corporation on January 1, 1996. Y owns a 50 
percent interest in partnership P with a RBIG limitation of $60,000 and 
a RBIL limitation of $0.
    (a) In 1996, P's partnership 1374 items are--
    (1) Ordinary income of $25,000; and
    (2) Capital loss of $90,000.
    (b) Y itself has--
    (1) recognized built-in ordinary income of $40,000; and
    (2) recognized built-in capital gain of $75,000.
    (ii) Y's net recognized built-in gain for 1996 computed without 
partnership 1374 items is $115,000 ($40,000+$75,000=$115,000) and with 
partnership 1374 items is $65,000 ($40,000+$25,000=$65,000). Thus, Y's 
partnership RBIL is $50,000 for the year except as limited under 
paragraph (i)(2)(ii) of this section. Because Y's RBIL limitation is $0, 
Y's partnership RBIL of $50,000 is limited to $0 and Y's net recognized 
built-in gain is $115,000.
    Example 7. Disposition of partnership interest. X is a C corporation 
that elects to become an S corporation on January 1, 1996. On that date, 
X owns a 50 percent interest in partnership P with a RBIG limitation of 
$200,000 and a RBIL limitation of $0. P owns (among other assets) 
Blackacre with a basis of $20,000 and a value of $140,000. In 1996, P 
sells Blackacre for $140,000 and recognizes a gain of $120,000 of which 
$60,000 is included in X's distributive share and treated as a 
partnership 1374 item. X's net recognized built-in gain for 1996 
computed without partnership 1374 items is $95,000 and with partnership 
1374 items is $155,000. Thus, X has a partnership RBIG of $60,000. In 
1999, X sells its entire interest in P for $350,000 and recognizes a 
gain of $250,000. Under paragraph (i)(3) of this section, X's recognized 
built-in gain on the sale is limited by its RBIG limitation to $140,000 
($200,000-$60,000=$140,000).

[[Page 793]]

    Example 8. Section 704(c) case. Y is a C corporation that elects to 
become an S corporation on January 1, 1996. On that date, Y contributes 
Asset 1, 5-year property with a value of $40,000 and a basis of $0, and 
an unrelated party contributes $40,000 in cash, each for a 50 percent 
interest in partnership P. The partnership adopts the traditional method 
under Sec. 1.704-3(b). If P sold Asset 1 for $40,000 immediately after 
it was contributed by Y, P's $40,000 gain would be allocated to Y under 
section 704(c). Instead, Asset 1 is sold by P in 1999 for $36,000 and P 
recognizes gain of $36,000 ($36,000-$0=$36,000) on the sale. However, 
because book depreciation of $8,000 per year has been taken on Asset 1 
in 1996, 1997, and 1998, Y is allocated only $16,000 of P's $36,000 gain 
($40,000-(3x$8,000)=($16,000-$0)=$16,000) under section 704(c). The 
remaining $20,000 of P's $36,000 gain ($36,000-$16,000=$20,000) is 
allocated 50 percent to each partner under section 704(b). Thus, a total 
of $26,000 ($16,000+$10,000=$26,000) of P's $36,000 gain is allocated to 
Y. However, under paragraph (i)(6) of this section, Y treats $36,000 as 
a partnership 1374 item on P's sale of Asset 1.
    Example 9. Disposition of distributed partnership asset. X is a C 
corporation that elects to become an S corporation on January 1, 1996. 
On that date, X owns a fifty percent interest in partnership P and P 
owns (among other assets) Blackacre with a basis of $20,000 and a value 
of $40,000. On January 1, 1998, P distributes Blackacre to X, when 
Blackacre has a basis of $20,000 and a value of $50,000. Under section 
732(a)(1), X has a transferred basis of $20,000 in Blackacre. On January 
1, 1999, X sells Blackacre for $60,000 and recognizes a gain of $40,000. 
Under paragraph (i)(7) of this section and section 1374(d)(3), X has 
recognized built-in gain from the sale of $20,000, the amount of built-
in gain in Blackacre on the first day of the recognition period.

[T.D. 8579, 59 FR 66464, Dec. 27, 1994, as amended by T.D. 8995. 67 FR 
34610, May 15, 2002]



Sec. 1.1374-5  Loss carryforwards.

    (a) In general. The loss carryforwards allowed as deductions against 
net recognized built-in gain under section 1374(b)(2) are allowed only 
to the extent their use is allowed under the rules applying to C 
corporations. Any other loss carryforwards, such as charitable 
contribution carryforwards under section 170(d)(2), are not allowed as 
deductions against net recognized built-in gain.
    (b) Example. The rules of this section are illustrated by the 
following example.

    Example: Section 382 limitation. X is a C corporation that has an 
ownership change under section 382(g)(1) on January 1, 1994. On that 
date, X has a fair market value of $500,000, NOL carryforwards of 
$400,000, and a net unrealized built-in gain under section 382(h)(3)(A) 
of $0. Assume X's section 382 limitation under section 382(b)(1) is 
$40,000. X elects to become an S corporation on January 1, 1998. On that 
date, X has NOL carryforwards of $240,000 (having used $160,000 of its 
pre-change net operating losses in its 4 preceding taxable years) and a 
section 1374 net unrealized built-in gain of $250,000. In 1998, X has 
net recognized built-in gain of $100,000. X may use $40,000 of its NOL 
carryforwards as a deduction against its $100,000 net recognized built-
in gain, because X's section 382 limitation is $40,000.

[T.D. 8579, 59 FR 66469, Dec. 27, 1994]



Sec. 1.1374-6  Credits and credit carryforwards.

    (a) In general. The credits and credit carryforwards allowed as 
credits against the section 1374 tax under section 1374(b)(3) are 
allowed only to the extent their use is allowed under the rules applying 
to C corporations. Any other credits or credit carryforwards, such as 
foreign tax credits under section 901, are not allowed as credits 
against the section 1374 tax.
    (b) Limitations. The amount of business credit carryforwards and 
minimum tax credit allowed against the section 1374 tax are subject to 
the limitations described in section 38(c) and section 53(c), 
respectively, as modified by this paragraph. The tentative tax 
determined under paragraph (a)(3) of Sec. 1.1374-1 is treated as the 
regular tax liability described in sections 38(c)(1) and 53(c)(1), and 
as the net income tax and net regular tax liability described in section 
38(c)(1). The tentative minimum tax described in section 55(b) is 
determined using the rate of tax applicable to corporations and without 
regard to any alternative minimum tax foreign tax credit described in 
that section and by treating the net recognized built-in gain determined 
under Sec. 1.1374-2, modified to take into account the adjustments of 
sections 56 and 58 applicable to corporations and the preferences of 
section 57, as the alternative minimum taxable income described in 
section 55(b)(2).

[[Page 794]]

    (c) Examples. The rules of this section are illustrated by the 
following examples.

    Example 1. Business credit carryforward. X is a C corporation that 
elects to become an S corporation effective January 1, 1996. On that 
date, X has a $500,000 business credit carryforward from a C year and 
Asset 1 with a fair market value of $400,000, a basis for 
regular tax purposes of $95,000, and a basis for alternative minimum tax 
purposes of $150,000. In 1996, X has net recognized built-in gain of 
$305,000 from selling Asset 1 for $400,000. Thus, X's tentative 
tax under paragraph (a)(3) of Sec. 1.1374-1 and regular tax liability 
under paragraph (b) of this section is $106,750 ($400,000-
$95,000=$305,000 x .35= $106,750, assuming a 35 percent tax rate). Also, 
X's tentative minimum tax determined under paragraph (b) of this section 
is $47,000 [$400,000-$150,000=$250,000-$15,000 ($40,000 corporate 
exemption amount -$25,000 phase-out=$15,000)=$235,000 x .20=$47,000, 
assuming a 20 percent tax rate]. Thus, the business credit limitation 
under section 38(c) is $59,750 [$106,750-$47,000 (the greater of $47,000 
or $20,438 (.25 x $81,750 ($106,750-$25,000=$81,750))) = $59,750]. As a 
result, X's section 1374 tax is $47,000 ($106,750-$59,750= $47,000) for 
1996 and X has $440,250 ($500,000-$59,750 = $440,250) of business credit 
carryforwards for succeeding taxable years.
    Example 2. Minimum tax credit. Y is a C corporation that elects to 
become an S corporation effective January 1, 1996. On that date, 
Asset1 has a fair market value of $5,000,000, a basis for 
regular tax purposes of $4,000,000, and a basis for alternative minimum 
tax purposes of $4,750,000. Y also has a minimum tax credit of $310,000 
from 1995. Y has no other assets, no net operating or capital loss 
carryforwards, and no business credit carryforwards. In 1996, Y's only 
transaction is the sale of Asset 1 for $5,000,000. Therefore, Y 
has net recognized built-in gain in 1996 of $1,000,000 ($5,000,000-
$4,000,000=$1,000,000) and a tentative tax under paragraph (a)(3) of 
Sec. 1.1374-1 of $350,000 ($1,000,000x.35=$350,000, assuming a 35 
percent tax rate). Also, Y's tentative minimum tax determined under 
paragraph (b) of this section is $47,000 [$5,000,000-
$4,750,000=$250,000-$15,000 ($40,000 corporate exemption amount -$25,000 
phase-out = $15,000) = $235,000x.20 = $47,000, assuming a 20 percent tax 
rate]. Thus, Y may use its minimum tax credit in the amount of $303,000 
($350,000-$47,000=$303,000) to offset its section 1374 tentative tax. As 
a result, Y's section 1374 tax is $47,000 ($350,000-$303,000=$47,000) in 
1996 and Y has a minimum tax credit attributable to years for which Y 
was a C corporation of $7,000 ($310,000-$303,000=$7,000).

[T.D. 8579, 59 FR 66469, Dec. 27, 1994]



Sec. 1.1374-7  Inventory.

    (a) Valuation. The fair market value of the inventory of an S 
corporation on the first day of the recognition period equals the amount 
that a willing buyer would pay a willing seller for the inventory in a 
purchase of all the S corporation's assets by a buyer that expects to 
continue to operate the S corporation's business. For purposes of the 
preceding sentence, the buyer and seller are presumed not to be under 
any compulsion to buy or sell and to have reasonable knowledge of all 
relevant facts.
    (b) Identity of dispositions. The inventory method used by an S 
corporation for tax purposes must be used to identify whether the 
inventory it disposes of during the recognition period is inventory it 
held on the first day of that period. Thus, a corporation using the LIFO 
method does not dispose of inventory it held on the first day of the 
recognition period unless the carrying value of its inventory for a 
taxable year during that period is less than the carrying value of its 
inventory on the first day of the recognition period (determined using 
the LIFO method as described in section 472). However, if a corporation 
changes its method of accounting for inventory (for example, from the 
FIFO method to the LIFO method or from the LIFO method to the FIFO 
method) with a principal purpose of avoiding the tax imposed under 
section 1374, it must use its former method to identify its dispositions 
of inventory.

[T.D. 8579, 59 FR 66469, Dec. 27, 1994]



Sec. 1.1374-8  Section 1374(d)(8) transactions.

    (a) In general. If any S corporation acquires any asset in a 
transaction in which the S corporation's basis in the asset is 
determined (in whole or in part) by reference to a C corporation's basis 
in the assets (or any other property) (a section 1374(d)(8) 
transaction), section 1374 applies to the net recognized built-in gain 
attributable to the assets acquired in any section 1374(d)(8) 
transaction.
    (b) Effective date of section 1374(d)(8). Section 1374(d)(8) applies 
to any section 1374(d)(8) transaction, as defined in

[[Page 795]]

paragraph (a)(1) of this section, that occurs on or after December 27, 
1994, without regard to the date of the corporation's election to be an 
S corporation under section 1362.
    (c) Separate determination of tax. For purposes of the tax imposed 
under section 1374(d)(8), a separate determination of tax is made with 
respect to the assets the S corporation acquires in one section 
1374(d)(8) transaction from the assets the S corporation acquires in 
another section 1374(d)(8) transaction and from the assets the 
corporation held when it became an S corporation. Thus, an S 
corporation's section 1374 attributes when it became an S corporation 
may only be used to reduce the section 1374 tax imposed on dispositions 
of assets the S corporation held at that time. Similarly, an S 
corporation's section 1374 attributes acquired in a section 1374(d)(8) 
transaction may only be used to reduce a section 1374 tax imposed on 
dispositions of assets the S corporation acquired in the same 
transaction. If an S corporation makes QSub elections under section 
1361(b)(3) for a tiered group of subsidiaries effective on the same day, 
see Sec. 1.1361-4(b)(2).
    (d) Taxable income limitation. For purposes of paragraph (a) of this 
section, an S corporation's taxable income limitation under Sec. 
1.1374-2(a)(2) for any taxable year is allocated between or among each 
of the S corporation's separate determinations of net recognized built-
in gain for that year (determined without regard to the taxable income 
limitation) based on the ratio of each of those determinations to the 
sum of all of those determinations.
    (e) Examples. The rules of this section are illustrated by the 
following examples.

    Example 1. Separate determination of tax. (i) X is a C corporation 
that elected to become an S corporation effective January 1, 1986 
(before section 1374 was amended in the Tax Reform Act of 1986). X has a 
net operating loss carryforward of $20,000 arising in 1985 when X was a 
C corporation. On January 1, 1996, Y (an unrelated C corporation) merges 
into X in a transaction to which section 368(a)(1)(A) applies. Y has no 
loss carryforwards, credits, or credit carryforwards. The assets X 
acquired from Y are subject to tax under section 1374 and have a net 
unrealized built-in gain of $150,000.
    (ii) In 1996, X has a pre-limitation amount of $50,000 on 
dispositions of assets acquired from Y and a taxable income limitation 
of $100,000 (because only one group of assets is subject to section 
1374, there is no allocation of the taxable income limitation). As a 
result, X has a net recognized built-in gain on those assets of $50,000. 
X's $20,000 net operating loss carryforward may not be used as a 
deduction against its $50,000 net recognized built-in gain on the assets 
X acquired from Y. Therefore, X has a section 1374 tax of $17,500 
($50,000 x .35 = $17,500, assuming a 35 percent tax rate) for its 1996 
taxable year.
    Example 2. Allocation of taxable income limitation. (i) Y is a C 
corporation that elects to become an S corporation effective January 1, 
1996. The assets Y holds when it becomes an S corporation have a net 
unrealized built-in gain of $5,000. Y has no loss carryforwards, 
credits, or credit carryforwards. On January 1, 1997, Z (an unrelated C 
corporation) merges into Y in a transaction to which section 
368(a)(1)(A) applies. Z has no loss carryforwards, credits, or credit 
carryforwards. The assets Y acquired from Z are subject to tax under 
section 1374 and have a net unrealized built-in gain of $80,000.
    (ii) In 1997, Y has a pre-limitation amount on the assets it held 
when it became an S corporation of $15,000, a pre-limitation amount on 
the assets Y acquired from Z of $15,000, and a taxable income limitation 
of $10,000. However, because the assets Y held on becoming an S 
corporation have a net unrealized built-in gain of $5,000, its net 
recognized built-in gain on those assets is limited to $5,000 before 
taking into account the taxable income limitation. Y's taxable income 
limitation of $10,000 is allocated between the assets Y held on becoming 
an S corporation and the assets Y acquired from Z for purposes of 
determining the net recognized built-in gain from each pool of assets. 
Thus, Y's net recognized built-in gain on the assets Y held on becoming 
an S corporation is $2,500 [$10,000 x ($5,000/$20,000) = $2,500]. Y's 
net recognized built-in gain on the assets Y acquired from Z is $7,500 
[$10,000 x ($15,000/$20,000) = $7,500]. Therefore, Y has a section 1374 
tax of $3,500 [($2,500 + $7,500) x .35 = $3,500, assuming a 35 percent 
tax rate] for its 1997 taxable year.

[T.D. 8579, 59 FR 66469, Dec. 27, 1994, as amended by T.D. 8869, 65 FR 
3856, Jan. 25, 2000; T.D. 9170, 69 FR 76614, Dec. 22, 2004; T.D. 9236, 
70 FR 75731, Dec. 21, 2005]



Sec. 1.1374-9  Anti-stuffing rule.

    If a corporation acquires an asset before or during the recognition 
period with a principal purpose of avoiding the tax imposed under 
section 1374, the

[[Page 796]]

asset and any loss, deduction, loss carryforward, credit, or credit 
carryforward attributable to the asset is disregarded in determining the 
S corporation's pre-limitation amount, taxable income limitation, net 
unrealized built-in gain limitation, deductions against net recognized 
built-in gain, and credits against the section 1374 tax.

[T.D. 8579, 59 FR 66470, Dec. 27, 1994]



Sec. 1.1374-10  Effective date and additional rules.

    (a) In general. Sections 1.1374-1 through 1.1374-9, other than Sec. 
1.1374-3(b) and (c) Examples 2 through 4, apply for taxable years ending 
on or after December 27, 1994, but only in cases where the S 
corporation's return for the taxable year is filed pursuant to an S 
election or a section 1374(d)(8) transaction occurring on or after 
December 27, 1994. Section 1.1374-3(b) and (c) Examples 2 through 4 
apply to section 1374(d)(8) transactions that occur in taxable years 
beginning after February 23, 2005. In addition, an S corporation may 
apply Sec. 1.1374-3(b) and (c) Examples 2 through 4 to section 
1374(d)(8) transactions that occur in taxable years beginning on or 
before February 23, 2005, if the S corporation (and any predecessors or 
successors) and all affected shareholders file original or amended 
returns that are consistent with these provisions for taxable years of 
the S corporation during the recognition period of the pool of assets 
the net unrealized built-in gain of which would be adjusted pursuant to 
those provisions that are not closed as of the first date after February 
23, 2005, that the S corporation files an original or amended return. 
For purposes of this section, affected shareholders means all 
shareholders who received distributive shares of S corporation items in 
such taxable years. However, the Commissioner may, in appropriate 
circumstances, permit taxpayers to apply these provisions even if all 
affected shareholders cannot file consistent returns. In addition, for 
this purpose, a predecessor of an S corporation is a corporation that 
transfers its assets to the S corporation in a transaction to which 
section 381 applies. A successor of an S corporation is a corporation to 
which the S corporation transfers its assets in a transaction to which 
section 381 applies.
    (b) Additional rules. This paragraph (b) provides rules applicable 
to certain S corporations, assets, or transactions to which Sec. Sec. 
1.1374-1 through 1.1374-9 do not apply.
    (1) Certain transfers to partnerships. If a corporation transfers an 
asset to a partnership in a transaction to which section 721(a) applies 
and the transfer is made in contemplation of an S election or during the 
recognition period, section 1374 applies on a disposition of the asset 
by the partnership as if the S corporation had disposed of the asset 
itself. This paragraph (b)(1) applies as of the effective date of 
section 1374, unless the recognition period with respect to the 
contributed asset is pursuant to an S election or a section 1374(d)(8) 
transaction occurring on or after December 27, 1994.
    (2) Certain inventory dispositions. For purposes of section 
1374(d)(2)(A), the inventory method used by the taxpayer for tax 
purposes (FIFO, LIFO, etc.) must be used to identify whether goods 
disposed of following conversion to S corporation status were held by 
the corporation at the time of conversion. Thus, for example, a 
corporation using the LIFO inventory method will not be subject to the 
built-in gain tax with respect to sales of inventory except to the 
extent that a LIFO layer existing prior to the beginning of the first 
taxable year as an S corporation is invaded after the beginning of that 
year. This paragraph (b)(2) applies as of the effective date of section 
1374, unless the recognition period with respect to the inventory is 
pursuant to an S election or a section 1374(d)(8) transaction occurring 
on or after December 27, 1994.
    (3) Certain contributions of built-in loss assets. If a built-in 
loss asset (that is, an asset with an adjusted tax basis in excess of 
its fair market value) is contributed to a corporation within 2 years 
before the earlier of the beginning of its first taxable year as an S 
corporation, or the filing of its S election, the loss inherent in the 
asset will not reduce net unrealized built-in gain, as defined in 
section 1374(d)(1), unless the taxpayer demonstrates a clear and 
substantial relationship between the

[[Page 797]]

contributed property and the conduct of the corporation's current or 
future business enterprises. This paragraph (b)(3) applies as of the 
effective date of section 1374, unless the recognition period with 
respect to the contributed asset is pursuant to an S election or a 
section 1374(d)(8) transaction occurring on or after December 27, 1994.
    (4) Certain installment sales--(i) In general. If a taxpayer sells 
an asset either prior to or during the recognition period and recognizes 
income either during or after the recognition period from the sale under 
the installment method, the income will, when recognized, be taxed under 
section 1374 to the extent it would have been so taxed in prior taxable 
years if the selling corporation had made the election under section 
453(d) not to report the income under the installment method. For 
purposes of determining the extent to which the income would have been 
subject to tax if the section 453(d) election had not been made, the 
taxable income limitation of section 1374(d)(2)(A)(ii) and the built-in 
gain carryover rule of section 1374(d)(2)(B) will be taken into account. 
This paragraph (b)(4) applies for installment sales occurring on or 
after March 26, 1990, and before December 27, 1994.
    (ii) Examples. The rules of this paragraph (b)(4) are illustrated by 
the following examples.

    Example 1. In year 1 of the recognition period under section 1374, a 
corporation realizes a gain of $100,000 on the sale of an asset with 
built-in gain. The corporation is to receive full payment for the asset 
in year 11. Because the corporation does not make an election under 
section 453(d), all $100,000 of the gain from the sale is reported under 
the installment method in year 11. If the corporation had made an 
election under section 453(d) with respect to the sale, the gain would 
have been recognized in year 1 and, taking into account the 
corporation's income and gains from other sources, application of the 
taxable income limitation of section 1374(d)(2)(A)(ii) and the built-in 
gain carryover rule of section 1374(d)(2)(B) would have resulted in 
$40,000 of the gain being subject to tax during the recognition period 
under section 1374. Therefore, $40,000 of the gain recognized in year 11 
is subject to tax under section 1374.
    Example 2. In year 1 of the recognition period under section 1374, a 
corporation realizes a gain of $100,000 on the sale of an asset with 
built-in gain. The corporation is to receive full payment for the asset 
in year 6. Because the corporation does not make an election under 
section 453(d), all $100,000 of the gain from the sale is reported under 
the installment method in year 6. If the corporation had made an 
election under section 453(d) with respect to the sale, the gain would 
have been recognized in year 1 and, taking into account the 
corporation's income and gains from other sources, application of the 
taxable income limitation of section 1374(d)(2)(A)(ii) and the built-in 
gain carryover rule of section 1374(d)(2)(B) would have resulted in all 
of the gain being subjected to tax under section 1374 in years 1 through 
5. Therefore, notwithstanding that the taxable income limitation of 
section 1374(d)(2)(A)(ii) might otherwise limit the taxation of the gain 
recognized in year 6, the entire $100,000 of gain will be subject to tax 
under section 1374 when it is recognized in year 6.
    (c) Termination and re-election of S corporation status--(1) In 
general. For purposes of section 633(d)(8) of the Tax Reform Act of 
1986, as amended, any reference to an election to be an S corporation 
under section 1362 shall be treated as a reference to the corporation's 
most recent election to be an S corporation under section 1362. This 
paragraph (c) applies for taxable years beginning after December 22, 
2004, without regard to the date of the corporation's most recent 
election to be an S corporation under section 1362.
    (2) Example. The following example illustrates the rules of this 
paragraph (c):

    Example. (i) Effective January 1, 1988, X, a C corporation that is a 
qualified corporation under section 633(d) of the Tax Reform Act of 
1986, as amended, elects to be an S corporation under section 1362. 
Effective January 1, 1990, X revokes its S status and becomes a C 
corporation. On January 1, 2004, X again elects to be an S corporation 
under section 1362. X disposes of assets in 2006, 2007, and 2008, 
recognizing gain.
    (ii) X is not eligible for treatment under the transition rule of 
section 633(d)(8) of the Tax Reform Act of 1986, as amended, with 
respect to these assets. Accordingly, X is subject to section 1374, as 
amended by the Tax Reform Act of 1986 and the Technical and 
Miscellaneous Revenue Act of 1988, and the 10-year recognition period 
begins on January 1, 2004.
    (iii) To the extent the gain that X recognizes on the asset sales in 
2006, 2007, and 2008 reflects built-in gain inherent in such assets in 
X's hands on January 1, 2004, such gain is subject to tax under section 
1374 as amended

[[Page 798]]

by the Tax Reform Act of 1986 and the Technical and Miscellaneous 
Revenue Act of 1988.

[T.D. 8579, 59 FR 66470, Dec. 27, 1994, as amended by T.D. 9170, 69 FR 
76614, Dec. 22, 2004; T.D. 9180, 70 FR 8728, Feb. 23, 2005; T.D. 9236, 
70 FR 75731, Dec. 21, 2005]



Sec. 1.1375-1  Tax imposed when passive investment income of corporation 
having subchapter C earnings and profits exceed 25 percent of gross receipts.

    (a) General rule. For taxable years beginning after 1981, section 
1375(a) imposes a tax on the income of certain S corporations that have 
passive investment income. In the case of a taxable year beginning 
during 1982, an electing small business corporation may elect to have 
the rules under this section not apply. See the regulations under 
section 1362 for rules on the election. For purposes of this section, 
the term S corporation shall include an electing small business 
corporation under prior law. This tax shall apply to an S corporation 
for a taxable year if the S corporation has--
    (1) Subchapter C earnings and profits at the close of such taxable 
year, and
    (2) Gross receipts more than 25 percent of which are passive 
investment income.

If the S corporation has no subchapter C earnings and profits at the 
close of the taxable year (because, for example, such earnings and 
profits were distributed in accordance with section 1368), the tax shall 
not be imposed even though the S corporation has passive investment 
income for the taxable year. If the tax is imposed, the tax shall be 
computed by multiplying the excess net passive income (as defined in 
paragraph (b) of this section) by the highest rate of tax specified in 
section 11(b).
    (b) Definitions--(1) Excess net passive income--(i) In general. The 
term excess net passive income is defined in section 1375(b)(1), and can 
be expressed by the following formula:
[GRAPHIC] [TIFF OMITTED] TC14NO91.101

Where:

ENPI = excess net passive income
NPI = net passive income
PII = passive investment income
GR = total gross receipts

    (ii) Limitation. The amount of the excess net passive income for any 
taxable year shall not exceed the corporation's taxable income for the 
taxable year (determined in accordance with section 1374(d) and Sec. 
1.1374-1(d)).
    (2) Net passive income. The term net passive income means--
    (i) Passive investment income, reduced by
    (ii) The deductions allowable under chapter 1 of the Internal 
Revenue Code of 1954 which are directly connected (within the meaning of 
paragraph (b)(3) of this section) with the production of such income 
(other than deductions allowable under section 172 and part VIII of 
subchapter B).
    (3) Directly connected--(i) In general. For purposes of paragraph 
(b)(2)(ii) of this section to be directly connected with the production 
of income, an item of deduction must have proximate and primary 
relationship to the income. Expenses, depreciation, and similar items 
attributable solely to such income qualify for deduction.
    (ii) Allocation of deduction. If an item of deduction is 
attributable (within the meaning of paragraph (b)(3)(i) of this section) 
inpart to passive investment income and in part to income other than 
passive investment income, the deduction shall be allocated between the 
two types of items on a reasonable basis. The portion of any deduction 
so allocated to passive investment income shall be treated as 
proximately and primarily related to such income.
    (4) Other definitions. The terms subchapter C earnings and profits, 
passive investment income, and gross receipts shall have the same 
meaning given these terms in section 1362(d)(3) and the regulations 
thereunder.
    (c) Special rules--(1) Disallowance of credits. No credit is allowed 
under part IV of subchapter A of chapter 1 of the Code (other than 
section 34) against the tax imposed by section 1375(a) and this section.
    (2) Coordination with section 1374. If any gain--
    (i) Is taken into account in determining passive income for purposes 
of this section, and
    (ii) Is taken into account under section 1374,

[[Page 799]]


the amount of such gain taken into account under section 1374(b) and 
Sec. 1.1374-1(b) (1) and (2) in determining the amount of tax shall be 
reduced by the portion of the excess net passive income for the taxable 
year which is attributable (on a pro rata basis) to such gain. For 
purposes of the preceding sentence, the portion of excess net passive 
income for the taxable year which is attributable to such capital gain 
is equal to the amount determined by multiplying the excess net passive 
income by the following fraction:
[GRAPHIC] [TIFF OMITTED] TC14NO91.102

Where:

NCG = net capital gain
NPI = net passive income.
E = Expense attributable to net capital gain.

    (d) Waiver of tax in certain cases--(1) In general. If an S 
corporation establishes to the satisfaction of the Commissioner that--
    (i) It determined in good faith that it had no subchapter C earnings 
and profits at the close of the taxable year, and
    (ii) During a reasonable period of time after it was determined that 
it did have subchapter C earnings and profits at the close of such 
taxable year such earnings and profits were distributed,


the Commissioner may waive the tax imposed by section 1375 for such 
taxable year. The S corporation has the burden of establishing that 
under the relevant facts and circumsances the Commissioner should waive 
the tax.
    For example, if an S corporation establishes that in good faith and 
using due diligence it determined that it had no subchapter C earnings 
and profits at the close of a taxable year, but it was later determined 
on audit that it did have subchapter C earnings and profits at the close 
of such taxable year, and if the corporation establishes that it 
distributed such earnings and profits within a reasonable time after the 
audit, it may be appropriate for the Commissioner to waive the tax on 
passive income for such taxable year.
    (2) Corporation's request for a waiver. A request for waiver of the 
tax imposed by section 1375 shall be made in writing to the district 
director and shall contain all relevant facts to establish that the 
requirements of paragraph (d)(1) of this section are met. Such request 
shall contain a description of how and on what date the S corporation in 
good faith and using due diligence determined that it had no subchapter 
C earnings and profits at the close of the taxable year, a description 
of how and on what date it was determined that the S corporation had 
subchapter C earnings and profits at the close of the year and a 
description (including dates) of any steps taken to distribute such 
earnings and profits. If the earnings and profits have not yet been 
distributed, the request shall contain a timetable for distribution and 
an explanation of why such timetable is reasonable. On the date the 
waiver is to become effective, all subchapter C earnings and profits 
must have been distributed.
    (e) Reduction in pass-thru for tax imposed on excess net passive 
income. See section 1366(f)(3) for a special rule reducing each item of 
the corporation's passive investment income for purposes of section 
1366(a) if a tax is imposed on the corporation under section 1375.
    (f) Examples. The following examples illustrate the principles of 
this section:

    Example 1. Assume Corporation M, an S corporation, has for its 
taxable year total gross receipts of $200,000, passive investment income 
of $100,000, $60,000 of which is interest income, and expenses directly 
connected with the production of such interest income in the amount of 
$10,000. Assume also that at the end of the taxable year Corporation M 
has subchapter C earnings and profits. Since more than 25 percent of the 
Corporation M's total gross receipts are passive investment income, and 
since Corporation M has subchapter C earnings and profits at the end of 
the taxable year, Corporation M will be subject to the tax imposed by 
section 1375. The amount of excess net passive investment income is 
$45,000 ($90,000 x (50,000 / 100,000)). Assume that the other $40,000 of 
passive investment income is attributable to net capital gain and that 
there are no expenses directly connected with such gain. Under these 
facts, $20,000 of the excess net passive income is attributable to the 
net capital gain ($45,000 x ($40,000 / $90,000)). Accordingly, the 
amount of gain taken into account under section 1374(b)(1) and the 
taxable income of Corporation M under section 1374(b)(2) shall be 
reduced by $20,000.

[[Page 800]]

    Example 2. Assume an S corporation with subchapter C earnings and 
profits has tax-exempt income of $400, its only passive income, gross 
receipts of $1,000 and taxable income of $250 and there are no expenses 
associated with the tax-exempt income. The corporation's excess net 
income for the taxable year would total $150 (400 x ((400 - 250 / 400)). 
This amount is subject to the tax imposed by section 1375, 
notwithstanding that such amount is otherwise tax-exempt income.

[T.D. 8104, 51 FR 34203, Sept. 26, 1986; 52 FR 9162, Mar. 23, 1987. 
Redesignated and amended by T.D. 8419, 57 FR 22653, May 29, 1992]



Sec. 1.1377-0  Table of contents.

    The following table of contents is provided to facilitate the use of 
Sec. Sec. 1.1377-1 through 1.1377-3:

                     Sec. 1.1377-1 Pro rata share.

    (a) Computation of pro rata shares.
    (1) In general.
    (2) Special rules.
    (i) Days on which stock has not been issued.
    (ii) Determining shareholder for day of stock disposition.
    (iii) Shareholder trust conversions.
    (b) Election to terminate year.
    (1) In general.
    (2) Affected shareholders.
    (3) Effect of the terminating election.
    (i) In general.
    (ii) Due date of S corporation return.
    (iii) Taxable year of inclusion by shareholder.
    (iv) S corporation that is a partner in a partnership.
    (4) Determination of whether an S shareholder's entire interest has 
terminated.
    (5) Time and manner of making a terminating election.
    (i) In general.
    (ii) Affected shareholders required to consent.
    (iii) More than one terminating election.
    (c) Examples.

           Sec. 1.1377-2 Post-termination transition period.

    (a) In general.
    (b) Special rules for post-termination transition period.
    (c) Determination defined.
    (d) Date a determination becomes effective.
    (1) Determination under section 1313(a).
    (2) Written agreement.
    (3) Implied agreement.

                     Sec. 1.1377-3 Effective date.

[T.D. 8696, 61 FR 67455, Dec. 23, 1996, as amended by T.D. 8994, 67 FR 
34401, May 14, 2002]



Sec. 1.1377-1  Pro rata share.

    (a) Computation of pro rata shares--(1) In general. For purposes of 
subchapter S of chapter 1 of the Internal Revenue Code and this section, 
each shareholder's pro rata share of any S corporation item described in 
section 1366(a) for any taxable year is the sum of the amounts 
determined with respect to the shareholder by assigning an equal portion 
of the item to each day of the S corporation's taxable year, and then 
dividing that portion pro rata among the shares outstanding on that day. 
See paragraph (b) of this section for rules pertaining to the 
computation of each shareholder's pro rata share when an election is 
made under section 1377(a)(2) to treat the taxable year of an S 
corporation as if it consisted of two taxable years in the case of a 
termination of a shareholder's entire interest in the corporation. See 
Sec. 1.460-4(k)(3)(iv)(D) for rules relating to the computation of the 
shareholders' pro rata share of S corporation's income or loss from a 
contract accounted for under a long-term contract method of accounting.
    (2) Special rules--(i) Days on which stock has not been issued. 
Solely for purposes of determining a shareholder's pro rata share of an 
item for a taxable year under section 1377(a) and this section, the 
beneficial owners of the corporation are treated as the shareholders of 
the corporation for any day on which the corporation has not issued any 
stock.
    (ii) Determining shareholder for day of stock disposition. A 
shareholder who disposes of stock in an S corporation is treated as the 
shareholder for the day of the disposition. A shareholder who dies is 
treated as the shareholder for the day of the shareholder's death.
    (iii) Shareholder trust conversions. If, during the taxable year of 
an S corporation, a trust that is an eligible shareholder of the S 
corporation converts from a trust described in section 1361(c)(2)(A)(i), 
(ii), (iii), or (v) for the first part of the year to a trust described 
in a different subpart of section 1361(c)(2)(A)(i), (ii), or (v) for the 
remainder of the year, the trust's share of the S corporation items is 
allocated between the two types of trusts. The first day that a 
qualified subchapter S

[[Page 801]]

trust (QSST) or an electing small business trust (ESBT) is treated as an 
S corporation shareholder is the effective date of the QSST or ESBT 
election. Upon the conversion, the trust is not treated as terminating 
its entire interest in the S corporation for purposes of paragraph (b) 
of this section, unless the trust was a trust described in section 
1361(c)(2)(A)(ii) or (iii) before the conversion.
    (b) Election to terminate year--(1) In general. If a shareholder's 
entire interest in an S corporation is terminated during the S 
corporation's taxable year and the corporation and all affected 
shareholders agree, the S corporation may elect under section 1377(a)(2) 
and this paragraph (b) (terminating election) to apply paragraph (a) of 
this section to the affected shareholders as if the corporation's 
taxable year consisted of two separate taxable years, the first of which 
ends at the close of the day on which the shareholder's entire interest 
in the S corporation is terminated. If the event resulting in the 
termination of the shareholder's entire interest also constitutes a 
qualifying disposition as described in Sec. 1.1368-1(g)(2)(i), the 
election under Sec. 1.1368-1(g)(2) cannot be made. An S corporation may 
not make a terminating election if the cessation of a shareholder's 
interest occurs in a transaction that results in a termination under 
section 1362(d)(2) of the corporation's election to be an S corporation. 
(See section 1362(e)(3) for an election to have items assigned to each 
short taxable year under normal tax accounting rules in the case of a 
termination of a corporation's election to be an S corporation.) A 
terminating election is irrevocable and is effective only for the 
terminating event for which it is made.
    (2) Affected shareholders. For purposes of the terminating election 
under section 1377(a)(2) and paragraph (b) of this section, the term 
affected shareholders means the shareholder whose interest is terminated 
and all shareholders to whom such shareholder has transferred shares 
during the taxable year. If such shareholder has transferred shares to 
the corporation, the term affected shareholders includes all persons who 
are shareholders during the taxable year.
    (3) Effect of the terminating election--(i) In general. An S 
corporation that makes a terminating election for a taxable year must 
treat the taxable year as separate taxable years for all affected 
shareholders for purposes of allocating items of income (including tax-
exempt income), loss, deduction, and credit; making adjustments to the 
accumulated adjustments account, earnings and profits, and basis; and 
determining the tax effect of a distribution. An S corporation that 
makes a terminating election must assign items of income (including tax-
exempt income), loss, deduction, and credit to each deemed separate 
taxable year using its normal method of accounting as determined under 
section 446(a).
    (ii) Due date of S corporation return. A terminating election does 
not affect the due date of the S corporation's return required to be 
filed under section 6037(a) for a taxable year (determined without 
regard to a terminating election).
    (iii) Taxable year of inclusion by shareholder. A terminating 
election does not affect the taxable year in which an affected 
shareholder must take into account the affected shareholder's pro rata 
share of the S corporation's items of income, loss, deduction, and 
credit.
    (iv) S corporation that is a partner in a partnership. A terminating 
election by an S corporation that is a partner in a partnership is 
treated as a sale or exchange of the corporation's entire interest in 
the partnership for purposes of section 706(c) (relating to closing the 
partnership taxable year), if the taxable year of the partnership ends 
after the shareholder's interest is terminated and within the taxable 
year of the S corporation (determined without regard to any terminating 
election) for which the terminating election is made.
    (4) Determination of whether an S shareholder's entire interest has 
terminated. For purposes of the terminating election under section 
1377(a)(2) and paragraph (b) of this section, a shareholder's entire 
interest in an S corporation is terminated on the occurrence of any 
event through which a shareholder's entire stock ownership in

[[Page 802]]

the S corporation ceases, including a sale, exchange, or other 
disposition of all of the stock held by the shareholder; a gift under 
section 102(a) of all the shareholder's stock; a spousal transfer under 
section 1041(a) of all the shareholder's stock; a redemption, as defined 
in section 317(b), of all the shareholder's stock, regardless of the tax 
treatment of the redemption under section 302; and the death of the 
shareholder. A shareholder's entire interest in an S corporation is not 
terminated if the shareholder retains ownership of any stock (including 
an interest treated as stock under Sec. 1.1361-1(l)) that would result 
in the shareholder continuing to be considered a shareholder of the 
corporation for purposes of section 1362(a)(2). Thus, in determining 
whether a shareholder's entire interest in an S corporation has been 
terminated, any interest held by the shareholder as a creditor, 
employee, director, or in any other non-shareholder capacity is 
disregarded.
    (5) Time and manner of making a terminating election--(i) In 
general. An S corporation makes a terminating election by attaching a 
statement to its timely filed original or amended return required to be 
filed under section 6037(a) (that is, a Form 1120S) for the taxable year 
during which a shareholder's entire interest is terminated. A single 
election statement may be filed by the S corporation for all terminating 
elections for the taxable year. The election statement must include--
    (A) A declaration by the S corporation that it is electing under 
section 1377(a)(2) and this paragraph (b) to treat the taxable year as 
if it consisted of two separate taxable years;
    (B) Information setting forth when and how the shareholder's entire 
interest was terminated (for example, a sale or gift);
    (C) [Reserved]. For further guidance, see Sec. 1.1377-
1T(b)(5)(i)(C).
    (D) A statement by the corporation that the corporation and each 
affected shareholder consent to the S corporation making the terminating 
election.
    (ii) Affected shareholders required to consent. For purposes of 
paragraph (b)(5)(i)(D) of this section, a shareholder of the S 
corporation for the taxable year is a shareholder as described in 
section 1362(a)(2). For example, the person who under Sec. 1.1362-
6(b)(2) must consent to a corporation's S election in certain special 
cases is the person who must consent to the terminating election. In 
addition, an executor or administrator of the estate of a deceased 
affected shareholder may consent to the terminating election on behalf 
of the deceased affected shareholder.
    (iii) More than one terminating election. A shareholder whose entire 
interest in an S corporation is terminated in an event for which a 
terminating election was made is not required to consent to a 
terminating election made with respect to a subsequent termination 
within the same taxable year unless the shareholder is an affected 
shareholder with respect to the subsequent termination.
    (c) Examples. The following examples illustrate the provisions of 
this section:

    Example 1. Shareholder's pro rata share in the case of a partial 
disposition of stock. (i) On January 6, 1997, X incorporates as a 
calendar year corporation, issues 100 shares of common stock to each of 
A and B, and files an election to be an S corporation for its 1997 
taxable year. On July 24, 1997, B sells 50 shares of X stock to C. Thus, 
in 1997, A owned 50 percent of the outstanding shares of X on each day 
of X's 1997 taxable year, B owned 50 percent on each day from January 6, 
1997, to July 24, 1997 (200 days), and 25 percent from July 25, 1997, to 
December 31, 1997 (160 days), and C owned 25 percent from July 25, 1997, 
to December 31, 1997 (160 days).
    (ii) Because B's entire interest in X is not terminated when B sells 
50 shares to C on July 24, 1997, X cannot make a terminating election 
under section 1377(a)(2) and paragraph (b) of this section for B's sale 
of 50 shares to C. Although B's sale of 50 shares to C is a qualifying 
disposition under Sec. 1.1368-1(g)(2)(i), X does not make an election 
to terminate its taxable year under Sec. 1.1368-1(g)(2). During its 
1997 taxable year, X has nonseparately computed income of $720,000.
    (iii) For each day in X's 1997 taxable year, A's daily pro rata 
share of X's nonseparately computed income is $1,000 ($720,000/360 
daysx50%). Thus, A's pro rata share of X's nonseparately computed income 
for 1997 is $360,000 ($1,000x360 days). B's daily pro rata share of X's 
nonseparately computed income is $1,000 ($720,000/360x50%) for the first 
200 days of X's 1997 taxable year, and $500 ($720,000/360x25%) for the 
following 160 days in 1997. Thus, B's pro rata share of X's 
nonseparately computed income for 1997 is $280,000 (($1,000x200 days) + 
($500x160 days)).

[[Page 803]]

C's daily pro rata share of X's nonseparately computed income is $500 
($720,000/360x25%) for 160 days in 1997. Thus, C's pro rata share of X's 
nonseparately computed income for 1997 is $80,000 ($500x160 days).
    Example 2. Shareholder's pro rata share when an S corporation makes 
a terminating election under section 1377(a)(2). (i) On January 6, 1997, 
X incorporates as a calendar year corporation, issues 100 shares of 
common stock to each of A and B, and files an election to be an S 
corporation for its 1997 taxable year. On July 24, 1997, B sells B's 
entire 100 shares of X stock to C. With the consent of B and C, X makes 
an election under section 1377(a)(2) and paragraph (b) of this section 
for the termination of B's entire interest arising from B's sale of 100 
shares to C. As a result of the election, the pro rata shares of B and C 
are determined as if X's taxable year consisted of two separate taxable 
years, the first of which ends on July 24, 1997, the date B's entire 
interest in X terminates. Because A is not an affected shareholder as 
defined by section 1377(a)(2)(B) and paragraph (b)(2) of this section, 
the treatment as separate taxable years does not apply to A.
    (ii) During its 1997 taxable year, X has nonseparately computed 
income of $720,000. Under X's normal method of accounting, $200,000 of 
the $720,000 of nonseparately computed income is allocable to the period 
of January 6, 1997, through July 24, 1997 (the first deemed taxable 
year), and the remaining $520,000 is allocable to the period of July 25, 
1997, through December 31, 1997 (the second deemed taxable year).
    (iii) B's pro rata share of the $200,000 of nonseparately computed 
income for the first deemed taxable year is determined by assigning the 
$200,000 of nonseparately computed income to each day of the first 
deemed taxable year ($200,000/200 days = $1,000 per day). Because B held 
50% of X's authorized and issued shares on each day of the first deemed 
taxable year, B's daily pro rata share for each day of the first deemed 
taxable year is $500 ($1,000 per day x 50%). Thus, B's pro rata share of 
the $200,000 of nonseparately computed income for the first deemed 
taxable year is $100,000 ($500 per day x 200 days). B must report this 
amount for B's taxable year with or within which X's full taxable year 
ends (December 31, 1997).
    (iv) C's pro rata share of the $520,000 of nonseparately computed 
income for the second deemed taxable year is determined by assigning the 
$520,000 of nonseparately computed income to each day of the second 
deemed taxable year ($520,000/160 days = $3,250 per day). Because C held 
50% of X's authorized and issued shares on each day of the second deemed 
taxable year, C's daily pro rata shares for each day of the second 
deemed taxable year is $1,625 ($3,250 per day x 50%). Therefore, C's pro 
rata share of the $520,000 of nonseparately computed income is $260,000 
($1,625 per day x 160 days). C must report this amount for C's taxable 
year with or within which X's full taxable year ends (December 31, 
1997).
    Example 3. Effect of conversion of a qualified subchapter S trust 
(QSST) to an electing small business trust (ESBT). (i) On January 1, 
2003, Trust receives stock of S corporation. Trust's current income 
beneficiary makes a timely QSST election under section 1361(d)(2), 
effective January 1, 2003. Subsequently, the trustee and current income 
beneficiary of Trust elect, pursuant to Sec. 1.1361-1(j)(12), to 
terminate the QSST election and convert to an ESBT, effective July 1, 
2004. The taxable year of S corporation is the calendar year. In 2004, 
Trust's pro rata share of S corporation's nonseparately computed income 
is $100,000.
    (ii) For purposes of computing the income allocable to the QSST and 
to the ESBT, Trust is treated as a QSST through June 30, 2004, and Trust 
is treated as an ESBT beginning July 1, 2004. Pursuant to section 
1377(a)(1), the pro rata share of S corporation income allocated to the 
QSST is $49,727 ($100,000x182 days/366 days), and the pro rata share of 
S corporation income allocated to the ESBT is $50,273 ($100,000x184 
days/366 days).

[T.D. 8696, 61 FR 67456, Dec. 23, 1996, as amended by T.D. 8994, 67 FR 
34401, May 14, 2002; T.D. 9100, 68 FR 70706, Dec. 19, 2003; T.D. 9137, 
69 FR 42559, July 16, 2004]



Sec. 1.1377-1T  Pro rata share (temporary).

    (a) through (b)(5)(i)(B) [Reserved]. For further guidance, see Sec. 
1.1377-1(a) through (b)(5)(i)(B).
    (b)(5)(i)(C) The signature on behalf of the S corporation of an 
authorized officer of the corporation under penalties of perjury, except 
that for taxable years beginning after December 31, 2002, the election 
statement described in Sec. 1.1377-1(b)(5)(i) shall be verified, and 
the requirement of this paragraph (b)(5)(i)(C) is satisfied, by the 
signature on the Form 1120S filed by the S corporation.
    (b)(5)(i)(D) through (c) [Reserved]. For further guidance, see Sec. 
1.1377-1(b)(5)(i) (D) through (c).

[T.D. 9100, 68 FR 70706, Dec. 19, 2003]



Sec. 1.1377-2  Post-termination transition period.

    (a) In general. For purposes of subchapter S of chapter 1 of the 
Internal Revenue Code (Code) and this section,

[[Page 804]]

the term post-termination transition period means--
    (1) The period beginning on the day after the last day of the 
corporation's last taxable year as an S corporation and ending on the 
later of--
    (i) The day which is 1 year after such last day; or
    (ii) The due date for filing the return for the last taxable year as 
an S corporation (including extensions);
    (2) The 120-day period beginning on the date of any determination 
pursuant to an audit of the taxpayer which follows the termination of 
the corporation's election and which adjusts a subchapter S item of 
income, loss, or deduction of the corporation arising during the S 
period (as defined in section 1368(e)(2)); and
    (3) The 120-day period beginning on the date of a determination that 
the corporation's election under section 1362(a) had terminated for a 
previous taxable year.
    (b) Special rules for post-termination transition period. Pursuant 
to section 1377(b)(1) and paragraph (a)(1) of this section, a post-
termination transition period arises the day after the last day that an 
S corporation was in existence if a C corporation acquires the assets of 
the S corporation in a transaction to which section 381(a)(2) applies. 
However, if an S corporation acquires the assets of another S 
corporation in a transaction to which section 381(a)(2) applies, a post-
termination transition period does not arise. (See Sec. 1.1368-2(d)(2) 
for the treatment of the acquisition of the assets of an S corporation 
by another S corporation in a transaction to which section 381(a)(2) 
applies.) The special treatment under section 1371(e)(1) of 
distributions of money by a corporation with respect to its stock during 
the post-termination transition period is available only to those 
shareholders who were shareholders in the S corporation at the time of 
the termination.
    (c) Determination defined. For purposes of section 1377(b)(1) and 
paragraph (a) of this section, the term determination means--
    (1) A determination as defined in section 1313(a);
    (2) A written agreement between the corporation and the Commissioner 
(including a statement acknowledging that the corporation's election to 
be an S corporation terminated under section 1362(d)) that the 
corporation failed to qualify as an S corporation;
    (3) For a corporation subject to the audit and assessment provisions 
of subchapter C of chapter 63 of subtitle A of the Code, the expiration 
of the period specified in section 6226 for filing a petition for 
readjustment of a final S corporation administrative adjustment finding 
that the corporation failed to qualify as an S corporation, provided 
that no petition was timely filed before the expiration of the period; 
and
    (4) For a corporation not subject to the audit and assessment 
provisions of subchapter C of chapter 63 of subtitle A of the Code, the 
expiration of the period for filing a petition under section 6213 for 
the shareholder's taxable year for which the Commissioner has made a 
finding that the corporation failed to qualify as an S corporation, 
provided that no petition was timely filed before the expiration of the 
period.
    (d) Date a determination becomes effective--(1) Determination under 
section 1313(a). A determination under paragraph (c)(1) of this section 
becomes effective on the date prescribed in section 1313 and the 
regulations thereunder.
    (2) Written agreement. A determination under paragraph (c)(2) of 
this section becomes effective when it is signed by the district 
director having jurisdiction over the corporation (or by another Service 
official to whom authority to sign the agreement is delegated) and by an 
officer of the corporation authorized to sign on its behalf. Neither the 
request for a written agreement nor the terms of the written agreement 
suspend the running of any statute of limitations.
    (3) Implied agreement. A determination under paragraph (c) (3) or 
(4) of this section becomes effective on the day after the date of 
expiration of the period specified under section 6226 or 6213, 
respectively.

[T.D. 8696, 61 FR 67457, Dec. 23, 1996]



Sec. 1.1377-3  Effective dates.

    Section 1.1377-1 and 1.1377-2 apply to taxable years of an S 
corporation beginning after December 31, 1996, except

[[Page 805]]

that Sec. 1.1377-1(a)(2)(iii), and (c) Example 3 are applicable for 
taxable years beginning on and after May 14, 2002.

[T.D. 8994, 67 FR 34401, May 14, 2002]



Sec. 1.1378-1  Taxable year of S corporation.

    (a) In general. The taxable year of an S corporation must be a 
permitted year. A permitted year is the required taxable year (i.e., a 
taxable year ending on December 31), a taxable year elected under 
section 444, a 52-53-week taxable year ending with reference to the 
required taxable year or a taxable year elected under section 444, or 
any other taxable year for which the corporation establishes a business 
purpose to the satisfaction of the Commissioner under section 442.
    (b) Adoption of taxable year. An electing S corporation may adopt, 
in accordance with Sec. 1.441-1(c), its required taxable year, a 
taxable year elected under section 444, or a 52-53-week taxable year 
ending with reference to its required taxable year or a taxable year 
elected under section 444 without the approval of the Commissioner. See 
Sec. 1.441-1. An electing S corporation that wants to adopt any other 
taxable year, must establish a business purpose and obtain the approval 
of the Commissioner under section 442.
    (c) Change in taxable year--(1) Approval required. An S corporation 
or electing S corporation that wants to change its taxable year must 
obtain the approval of the Commissioner under section 442 or make an 
election under section 444. However, an S corporation or electing S 
corporation may obtain automatic approval for certain changes, including 
a change to its required taxable year, pursuant to administrative 
procedures published by the Commissioner.
    (2) Short period tax return. An S corporation or electing S 
corporation that changes its taxable year must make its return for a 
short period in accordance with section 443, but must not annualize the 
corporation's taxable income.
    (d) Retention of taxable year. In certain cases, an S corporation or 
electing S corporation will be required to change its taxable year 
unless it obtains the approval of the Commissioner under section 442, or 
makes an election under section 444, to retain its current taxable year. 
For example, a corporation using a June 30 fiscal year that elects to be 
an S corporation and, as a result, is required to use the calendar year 
must obtain the approval of the Commissioner to retain its current 
fiscal year.
    (e) Procedures for obtaining approval or making a section 444 
election--(1) In general. See Sec. 1.442-1(b) for procedures to obtain 
the approval of the Commissioner (automatically or otherwise) to adopt, 
change, or retain a taxable year. See Sec. Sec. 1.444-1T and 1.444-2T 
for qualifications, and 1.444-3T for procedures, for making an election 
under section 444.
    (2) Special rules for electing S corporations. An electing S 
corporation that wants to adopt, change to, or retain a taxable year 
other than its required taxable year must request approval of the 
Commissioner on Form 2553, ``Election by a Small Business Corporation,'' 
when the election to be an S corporation is filed pursuant to section 
1362(b) and Sec. 1.1362-6. See Sec. 1.1362-6(a)(2)(i) for the manner 
of making an election to be an S corporation. If such corporation 
receives permission to adopt, change to, or retain a taxable year other 
than its required taxable year, the election to be an S corporation will 
be effective. Denial of the request renders the election ineffective 
unless the corporation agrees that, in the event the request to adopt, 
change to, or retain a taxable year other than its required taxable year 
is denied, it will adopt, change to, or retain its required taxable year 
or, if applicable, make an election under section 444.
    (f) Effective date. The rules of this section are applicable for 
taxable years ending on or after May 17, 2002.

[T.D. 8996, 67 FR 35024, May 17, 2002]

             Section 1374 Before the Tax Reform Act of 1986



Sec. 1.1374-1A  Tax imposed on certain capital gains.

    (a) General rule. Except as otherwise provided in paragraph (c) of 
this section, if for a taxable year beginning after 1982 of an S 
corporation--
    (1) The net capital gain of such corporation exceeds $25,000, and

[[Page 806]]

    (2) The net capital gain of such corporation exceeds 50 percent of 
its taxable income (as defined in paragraph (d) of this section) for 
such year, and
    (3) The taxable income of such corporation (as defined in paragraph 
(d) of this section) for such year exceeds $25,000,

section 1374 imposes a tax (computed under paragraph (b) of this 
section) on the income of such corporation. The tax is imposed on the S 
corporation and not on the shareholders.
    (b) Amount of tax. The amount of tax shall be the lower of--
    (1) An amount equal to the tax, determined as provided in section 
1201(a)(2), on the amount by which the net capital gain of the 
corporation for the taxable year exceeds $25,000, or
    (2) An amount equal to the tax which would be imposed by section 11 
on the taxable income of the corporation (as defined in paragraph (d) of 
this section) for the taxable year were it not an S corporation.

No credit shall be allowable under part IV of subchapter A of chapter 1 
of the Internal Revenue Code of 1954 (other than under section 34) 
against the tax imposed by section 1374(a) and this section. See section 
1375(c)(2) and Sec. 1.1375-1(c)(2) for a special rule that reduces the 
amount of the net capital gain of the corporation for purposes of this 
paragraph (b) in cases where a net capital gain is taxed as excess net 
passive income under section 1375. See section 1374(c)(3) and paragraph 
(c)(1)(ii) of this section for a special rule that limits the amount of 
tax on property with a substituted basis in certain cases.
    (c) Exceptions to taxation--(1) New corporations and corporations 
with election in effect for 3 immediately preceding years--(i) In 
general. If an S corporation would be subject to the tax imposed by 
section 1374 for a taxable year pursuant to paragraph (a) of this 
section, the corporation shall, nevertheless, not be subject to such tax 
for such year, if:
    (A) The election under section 1362(a) which is in effect with 
respect to such corporation for such year has been in effect for the 
corporation's three immediately preceding taxable years, or
    (B) An election under section 1362(a) has been in effect with 
respect to such corporation for each of its taxable years for which it 
has been in existence, unless there is a net capital gain for the 
taxable year which is attributable to property with a substituted basis 
within the meaning of paragraph (c)(1)(iii) of this section.
    (ii) Amount of tax on net capital gain attributable to property with 
a substituted basis. If for a taxable year of an S corporation either 
paragraph (c)(1)(i) (A) or (B) of this section is satisfied, but the S 
corporation has a net capital gain for such taxable year which is 
attributable to property with a substituted basis (within the meaning of 
paragraph (c)(1)(iii) of this section), then paragraph (a) of this 
section shall apply for the taxable year, but the amount of tax 
determined under paragraph (b) of this section shall not exceed a tax, 
determined as provided in section 1201 (a), on the net capital gain 
attributable to property with a substituted basis.
    (iii) Property with substituted basis. For purposes of this section, 
the term property with a substituted basis means:
    (A) Property acquired by a corporation (the acquiring corporation) 
during the period beginning 36 months before the first day of the 
acquiring corporation's taxable year and ending on the last day of such 
year;
    (B) The basis of such property in the hands of the acquiring 
corporation is determined in whole or in part by reference to the basis 
of any property in the hands of another corporation; and
    (C) Such other corporation was not an S corporation throughout the 
period beginning the later of:
    (1) 36 months before the first day of the acquiring corporation's 
taxable year, or
    (2) The time such other corporation came into existence,

and ending on the date such other corporation transferred the property, 
the basis of which is used to determine, in whole or in part, the basis 
of the property in the hands of the acquiring corporation. An S 
corporation and any predecessor corporation shall not be treated as one 
corporation for purposes of this paragraph (c) (1).
    (iv) Existence of a corporation. For purposes of this section, a 
corporation shall not be considered to be in existence for any month 
which precedes the

[[Page 807]]

first month in which such corporation has shareholders or acquires 
assets or begins business, whichever is first to occur.
    (v) References to prior law included. For purposes of this paragraph 
(c), the term S corporation shall include an electing small business 
corporation under prior subchapter S law, and the term election under 
section 1362 (a) shall include an election under section 1372 of prior 
subchapter S law.
    (iv) Examples. The provisions of this paragraph may be illustrated 
by the following examples:

    Example 1. M Corporation was organized and began business in 1977. M 
subsequently made an election under section 1362 (a) which was effective 
for its 1984 taxable year. If such election does not terminate under 
section 1362 for its taxable years 1984, 1985, and 1986, M is not 
subject to the tax imposed by section 1374 for its taxable year 1987, or 
for any subsequent year for which such election remains in effect, 
unless it has, for any such year, an excess of net long-term capital 
gain over net short-term capital loss attributable to property with a 
substituted basis. If there is such an excess for any such year, and the 
requirements of paragraph (a) of this section are met, M will be subject 
to the tax for such year. If there is no such excess for any year after 
1986, M will not be subject to the tax for any such year even though the 
requirements of paragraph (a) of this section are met.
    Example 2. N corporation was organized in 1983, and was an S 
corporation for its first taxable year, N is not subject to the tax 
imposed by section 1374 for 1983, or for any subsequent year for which 
its orginal election under section 1362 (a) has not terminated under 
section 1362(d), unless, for any such year, it has an excess of net 
long-term capital gain over net short-term capital loss attributable to 
property with a substituted basis and the requirements of paragraph (a) 
of this section are met.

    (2) Treatment of certain gains of options and commodities dealers--
(i) Exclusion of certain capital gains. For purposes of this section, 
the net capital gain of any options dealer or commodities dealer shall 
be determined by not taking into account any gain or loss (in the normal 
course of the taxpayer's activity of dealing in or trading section 1256 
contracts) from any section 1256 contract or property related to such a 
contract.
    (ii) Definitions. For purposes of this paragraph (c)(2)--
    (A) Options dealer. The term options dealer has the meaning given to 
such term by section 1256(g)(8).
    (B) Commodities dealer. The term commodities dealer means a person 
who is actively engaged in trading section 1256 contracts and is 
registered with a domestic board of trade which is designated as a 
contract market by the Commodities Futures Trading Commission.
    (C) Section 1256 contracts. The term section 1256 contracts has the 
meaning given to such term by section 1256(b).
    (iii) Effective dates--(A) In general. Except as otherwise provided 
in this paragraph (c)(2)(iii), this paragraph (c)(2) shall apply to 
positions established after July 18, 1984, in taxable years ending after 
such date.
    (B) Special rule for options on regulated futures contracts. In the 
case of any option with respect to a regulated futures contract (within 
the meaning of section 1256), this paragraph (c)(2) shall apply to 
positions established after October 31, 1983, in taxable years ending 
after such date.
    (C) Elections with respect to property held on or before July 18, 
1984. See Sec. Sec. 1.1256 (h)-1T and 1.1256(h)-2T for rules concerning 
an election to have this paragraph (c)(2) apply to certain property held 
on or before July 18, 1984.
    (d) Determination of taxable income--(1) General rule. For purposes 
of this section, taxable income of the corporation shall be determined 
under section 63(a) as if the corporation were a C corporation rather 
than an S corporation, except that the following deductions shall not 
apply in the computation--
    (i) The deduction allowed by section 172 (relating to net operating 
loss deduction), and
    (ii) The deductions allowed by part VIII of subchapter B (other than 
the deduction allowed by section 248, relating to organization 
expenditures).

For any taxable year in which a tax under this section is imposed on an 
S corporation, the S corporation shall attach a Form 1120 completed in 
accordance with this paragraph (d) and the instructions to Form 1120S to 
its tax return filed for such taxable year.
    (2) Special rule for net capital gains taxed as excess net passive 
income under section 1375. See section 1375 (c) (2) and

[[Page 808]]

Sec. 1.1375-1(c)(2) for a special rule that reduces the taxable income 
of the corporation for purposes of section 1374(b)(2) and Sec. 1.1374-
1(b)(2) in cases where a net capital gain is taxed as excess net passive 
income under section 1375.
    (e) Reduction in pass-thru for tax imposed on capital gain. See 
section 1366(f)(2) for a special rule reducing the S corporation's long-
term capital gains and the corporation's gain from sales or exchanges of 
property described in section 1231 for purposes of section 1366(a) by an 
amount of tax imposed under section 1374 and this section.
    (f) Examples. The following examples illustrate the principles of 
this section and assume that a tax will not be imposed under section 
1375:

    Example 1. Corporation M is an S corporation for its taxable year 
beginning January 1, 1983. For 1983, M has an excess of net long-term 
capital gain over net short-term capital loss in the amount of $30,000. 
However, its taxable income for the year is only $20,000 as a result of 
other deductions in excess of other income. Thus, although the excess of 
the net long-term capital gain over the net short-term capital loss 
exceeds $25,000 and also exceeds 50 percent of taxable income, M is not 
subject to the tax imposed by section 1374 for 1983 because its taxable 
income does not exceed $25,000.
    Example 2. Corporation N is an S Corporation for its 1983 taxable 
year. For 1983, N has an excess of net long-term capital gain over net 
short-term capital loss in the amount of $30,000, and taxable income of 
$65,000. Thus, although N's net capital gain ($30,000) exceeds $25,000, 
it does not exceed 50 percent of the corporation's taxable income for 
the year (50 percent of $65,000, or $32,500), and therefore N is not 
subject to the tax imposed by section 1374 for such year.
    Example 3. Assume that Corporation O, an S corporation, is subject 
to the tax imposed by section 1374 for its taxable year 1983. For 1983, 
O has an excess of net long-term capital gain over net short-term 
capital loss in the amount of $73,000, and taxable income within the 
meaning of section 1374, which includes capital gains and losses, of 
$100,000. The amount of tax computed under paragraph (b)(1) of this 
section is 28 percent of $48.00 ($73,000--$25,000), or $13,440. Since 
this is lower than the amount computed under paragraph (b)(2) of this 
section, which is $25,750 ($3,750+$4,500+$7,500+$10,000), $13,440 is the 
amount of tax imposed by section 1374.
    Example 4. Assume that in example (3) the taxable income of O for 
1983 is $35,000. This results from an excess of deductions over income 
with respect to items which were not included in determining the excess 
of the net long-term capital gain over the net short-term capital loss. 
In such case, the amount of tax, computed under paragraph (b)(2) of this 
section, is $5,550. Since this is lower than the amount computed under 
paragraph (b)(1) of this section, $5,550 is the amount of tax imposed by 
section 1374.
    Example 5. Corporation P, an S corporation, for its taxable year 
1983 has an excess of net long-term capital gain over net short-term 
capital loss in the amount of $65,000 and has taxable income of $80,000. 
P's election under section 1362 has been in effect for its three 
immediately preceding taxable years, but P, nevertheless, is subject to 
the tax imposed by section 1374 for 1983 since it has an excess of net 
long-term capital gain over net short-term capital loss (in the amount 
of $20,000) attributable to property with a substituted basis. The tax 
computed under paragraph (b)(1) of this section, $11,200 (28 percent of 
$40,000 ($65,000-$25,000)), is less than the tax computed under 
paragraph (b)(2) of this section, $17,750. However, under the limitation 
provided in paragraph (c) of this section which is applicable in this 
factual situation, the tax imposed by section 1374 for 1983 may not 
exceed $5,600 (28 percent of $20,000, the excess of net long-term 
capital gain over net short-term capital loss attributable to property 
with a substituted basis).

[T.D. 8104, 51 FR 34201, Sept. 26, 1986; 52 FR 9162, Mar. 23, 1987. 
Redesignated and amended by T.D. 8419, 57 FR 22653, May 29, 1992. 
Further redesignated by T.D. 8579, 59 FR 66462, Dec. 27, 1994]

                     Cooperatives and Their Patrons



Tax Treatment of Cooperatives--Table of Contents






Sec. 1.1381-1  Organizations to which part applies.

    (a) In general. Except as provided in paragraph (b) of this section, 
part I, subchapter T, chapter 1 of the Code, applies to any corporation 
operating on a cooperative basis and allocating amounts to patrons on 
the basis of the business done with or for such patrons.
    (b) Exceptions. Part I of such subchapter T does not apply to:
    (1) Any organization which is exempt from income taxes under chapter 
1 of the Code (other than an exempt farmers' cooperative described in 
section 521);
    (2) Any organization which is subject to the provisions of part II 
(section 591 and following), subchapter H, chapter 1 of the Code 
(relating to mutual savings banks, etc.);

[[Page 809]]

    (3) Any organization which is subject to the provisions of 
subchapter L (section 801 and following), chapter 1 of the Code 
(relating to insurance companies); or
    (4) Any organization which is engaged in generating, transmitting, 
or otherwise furnishing electric energy, or which provides telephone 
service, to persons in rural areas. The terms rural areas and telephone 
service shall have the meaning assigned to them in section 5 of the 
Rural Electrification Act of 1936, as amended (7 U.S.C. 924).

[T.D. 6643, 28 FR 3153, Apr. 2, 1963]



Sec. 1.1381-2  Tax on certain farmers' cooperatives.

    (a) In general. (1) For taxable years beginning after December 31, 
1962, farmers', fruit growers', or like associations, organized and 
operated in compliance with the requirements of section 521 and Sec. 
1.521-1, shall be subject to the taxes imposed by section 11 or section 
1201. Although such associations are subject to both normal tax and 
surtax, as in the case of corporations generally, certain special 
deductions are provided for them in section 1382(c) and Sec. 1.1382-3. 
For the purpose of any law which refers to organizations exempt from 
income taxes such an association shall, however, be considered as an 
organization exempt under section 501. Thus, the provisions of section 
243, providing a credit for dividends received from a domestic 
corporation subject to taxation, are not applicable to dividends 
received from a cooperative association organized and operated in 
compliance with the requirements of section 521 and Sec. 1.521-1. The 
provisions of section 1501, relating to consolidated returns, are 
likewise not applicable.
    (2) Rules governing the manner in which amounts paid as patronage 
dividends are allowable as deductions in computing the taxable income of 
such an association are set forth in section 1382(b) and Sec. 1.1382-2. 
For the tax treatment, as to patrons, of amounts received during the 
taxable year as patronage dividends, see section 1385 and the 
regulations thereunder.
    (b) Cross references. For tax treatment of exempt cooperative 
associations for taxable years beginning before January 1, 1963, or for 
taxable years beginning after December 31, 1962, with respect to 
payments attributable to patronage occurring during taxable years 
beginning before January 1, 1963, see section 522 and the regulations 
thereunder. For requirements of annual returns by such associations, see 
sections 6012 and 6072(d) and paragraph (f) of Sec. 1.6012-2.

[T.D. 6643, 28 FR 3153, Apr. 2, 1963]



Sec. 1.1382-1  Taxable income of cooperatives; gross income.

    (a) Introduction. Section 1382(b) provides that the amount of 
certain patronage dividends (and amounts paid in redemption of 
nonqualified written notices of allocation) shall not be taken into 
account by a cooperative organization in determining its taxable income. 
Such section also provides that, for purposes of the Internal Revenue 
Code, an amount not taken into account is to be treated in the same 
manner as an item of gross income and as a deduction therefrom. 
Therefore, such an amount is treated as a deduction for purposes of 
applying the Internal Revenue Code and the regulations thereunder and, 
for simplicity, is referred to as a deduction in the regulations under 
such Code. However, this should not be regarded as a determination of 
the character of the amount for other purposes.
    (b) Computation of gross income. Any cooperative organization to 
which part I, subchapter T, chapter 1 of the Code, applies shall not, 
for any purpose under the Code, exclude from its gross income (as a 
reduction in gross receipts, an increase in cost of goods sold, or 
otherwise) the amount of any allocation or distribution to a patron out 
of the net earnings of such organization with respect to patronage 
occurring during a taxable year beginning after December 31, 1962. See, 
however, section 1382(b) and Sec. 1.1382-2 for deductions for certain 
amounts paid to patrons out of net earnings.

[T.D. 6643, 28 FR 3154, Apr. 2, 1963]



Sec. 1.1382-2  Taxable income of cooperatives; treatment of patronage 
dividends.

    (a) In general. (1) In determining the taxable income of any 
cooperative organization to which part I, subchapter

[[Page 810]]

T, chapter 1 of the Code, applies, there shall be allowed as deductions 
from gross income, in addition to the other deductions allowable under 
chapter 1 of the Code, the deductions with respect to patronage 
dividends provided in section 1382(b) and paragraphs (b) and (c) of this 
section.
    (2) For the definition of terms used in this section see section 
1388 and Sec. 1.1388-1; to determine the payment period for a taxable 
year, see section 1382(d) and Sec. 1.1382-4.
    (b) Deduction for patronage dividends--(1) In general. In the case 
of a taxable year beginning after December 31, 1962, there is allowed as 
a deduction from the gross income of any cooperative organization to 
which part I of subchapter T applies, amounts paid to patrons during the 
payment period for the taxable year as patronage dividends with respect 
to patronage occurring during such taxable year, but only to the extent 
that such amounts are paid in money, qualified written notices of 
allocation, or other property (other than non qualified written notices 
of allocation). See section 1382 (e) and (f) and Sec. Sec. 1.1382-5 and 
1.1382-6 for special rules relating to the time when patronage is deemed 
to occur where products are marketed under a pooling arrangement or 
where earnings are includible in the gross income of the cooperative 
organization for a taxable year after the year in which the patronage 
occurred. For purposes of this paragraph, a written notice of allocation 
is considered paid when it is issued to the patron. A patronage dividend 
shall be treated as paid in money during the payment period for the 
taxable year to the extent it is paid by a qualified check which is 
issued during the payment period for such taxable year and endorsed and 
cashed on or before the ninetieth day after the close of such payment 
period. In determining the amount paid which is allowable as a deduction 
under this paragraph, property (other than written notices of 
allocation) shall be taken into account at its fair market value when 
paid, and a qualified written notice of allocation shall be taken into 
account at its stated dollar amount.
    (2) Special rule for certain taxable years. No deduction is allowed 
under this section for amounts paid during taxable years beginning 
before January 1, 1963, or for amounts paid during taxable years 
beginning after December 31, 1962, with respect to patronage occurring 
during taxable years beginning before January 1, 1963. With respect to 
such amounts, the Internal Revenue Code of 1954 (including section 522 
and the regulations thereunder) shall be applicable without regard to 
subchapter T.
    (c) Deduction for amounts paid in redemption of certain nonqualified 
written notices of allocation. In the case of a taxable year beginning 
after December 31, 1962, there is allowed as a deduction from the gross 
income of a cooperative organization to which part I of subchapter T 
applies, amounts paid by such organization during the payment period for 
such taxable year in redemption of a nonqualified written notice of 
allocation which was previously paid as a patronage dividend during the 
payment period for the taxable year during which the patronage occurred, 
but only to the extent such amounts (1) are paid in money or other 
property (other than written notices of allocation) and (2) do not 
exceed the stated dollar amount of such written notice of allocation. No 
deduction shall be allowed under this paragraph, however, for amounts 
paid in redemption of nonqualified written notices of allocation which 
were paid with respect to patronage occurring during a taxable year 
beginning before January 1, 1963. For purposes of this paragraph, if an 
amount is paid within the payment period for two or more taxable years, 
it will be allowable as a deduction only for the earliest of such 
taxable years. Thus, if a cooperative which reports its income on a 
calendar year basis pays an amount in redemption of a nonqualified 
written notice of allocation on January 15, 1966, it will be allowed a 
deduction for such amount only for its 1965 taxable year. In determining 
the amount paid which is allowable as a deduction under this paragraph, 
property (other than written notices of allocation) shall be taken into 
account at its fair market value when paid. Amounts paid in redemption 
of a nonqualified written notice of allocation in excess of its stated 
dollar

[[Page 811]]

amount shall be treated under the applicable provisions of the Code. For 
example, if such excess is in the nature of interest, its deductibility 
will be governed by section 163 and the regulations thereunder.

[T.D. 6643, 28 FR 3154, Apr. 2, 1963]



Sec. 1.1382-3  Taxable income of cooperatives; special deductions for 
exempt farmers' cooperatives.

    (a) In general. (1) Section 1382(c) provides that in determining the 
taxable income of a farmers', fruit growers', or like association, 
described in section 1381(a)(1) and organized and operated in compliance 
with the requirements of section 521 and Sec. 1.521-1, there shall be 
allowed as deductions from the gross income of such organization, in 
addition to the other deductions allowable under chapter 1 of the Code 
(including the deductions allowed by section 1382(b)) the special 
deductions provided in section 1382(c) and paragraphs (b), (c), and (d) 
of this section.
    (2) For the definition of terms used in this section, see section 
1388 and Sec. 1.1388-1; to determine the payment period for a taxable 
year, see section 1382(d) and Sec. 1.1382-4.
    (b) Deduction for dividends paid on capital stock. In the case of a 
taxable year beginning after December 31, 1962, there is allowed as a 
deduction from the gross income of a cooperative association operated in 
compliance with the requirements of section 521 and Sec. 1.521-1, 
amounts paid as dividends during the taxable year on the capital stock 
of such cooperative association. For the purpose of the preceding 
sentence, the term capital stock includes common stock (whether voting 
or nonvoting), preferred stock, or any other form of capital represented 
by capital retain certificates, revolving fund certificates, letters of 
advice, or other evidence of a proprietary interest in a cooperative 
association. Such deduction is applicable only to the taxable year in 
which the dividends are actually or constructively paid to the holder of 
capital stock or other proprietary interest in the cooperative 
association. If a dividend is paid by check and the check bearing a date 
within the taxable year is deposited in the mail, in a cover properly 
stamped and addressed to the shareholder at his last known address, at 
such time that in the ordinary handling of the mails the check would be 
received by such holder within the taxable year, a presumption arises 
that the dividend was paid to such holder in such year. The 
determination of whether a dividend has been paid to such holder by the 
corporation during its taxable year is in no way dependent upon the 
method of accounting regularly employed by the corporation in keeping 
its books. For further rules as to the determination of the right to a 
deduction for dividends paid, under certain specific circumstances, see 
section 561 and the regulations thereunder.
    (c) Deduction for amounts allocated from income not derived from 
patronage--(1) In general. In the case of a taxable year beginning after 
December 31, 1962, there is allowed as a deduction from the gross income 
of a cooperative association operated in compliance with the 
requirements of section 521 and Sec. 1.521-1, amounts paid to patrons, 
during the payment period for the taxable year, on a patronage basis 
with respect to its income derived during such taxable year either from 
business done with or for the United States or any of its agencies or 
from sources other than patronage, but only to the extent such amounts 
are paid in money, qualified written notices of allocation, or other 
property (other than nonqualified written notices of allocation). For 
purposes of this subparagraph a written notice of allocation is 
considered paid when it is issued to the patron. An amount shall be 
treated as paid in money during the payment period for the taxable year 
to the extent it is paid by a qualified check which is issued during the 
payment period for such taxable year and endorsed and cashed on or 
before the ninetieth day after the close of such payment period. In 
determining the amount paid which is allowable as a deduction under this 
paragraph, property (other than written notices of allocation) shall be 
taken into account at its fair market value when paid, and a qualified 
written notice of allocation shall be taken into account at its stated 
dollar amount.
    (2) Definition. As used in this paragraph, the term income derived 
from

[[Page 812]]

sources other than patronage means incidental income derived from 
sources not directly related to the marketing, purchasing, or service 
activities of the cooperative association. For example, income derived 
from the lease of premises, from investment in securities, or from the 
sale or exchange of capital assets, constitutes income derived from 
sources other than patronage.
    (3) Basis of distribution. In order that the deduction for amounts 
paid with respect to income derived from business done with or for the 
United States or any of its agencies or from sources other than 
patronage may be applicable, it is necessary that the amount sought to 
be deducted be paid on a patronage basis in proportion, insofar as is 
practicable, to the amount of business done by or for patrons during the 
period to which such income is attributable. For example, if capital 
gains are realized from the sale or exchange of capital assets acquired 
and disposed of during the taxable year, income realized from such gains 
must be paid to patrons of such year in proportion to the amount of 
business done by such patrons during the taxable year. Similarly, if 
capital gains are realized by the association from the sale or exchange 
of capital assets held for a period extending into more than one taxable 
year income realized from such gains must be paid, insofar as is 
practicable, to the persons who were patrons during the taxable years in 
which the asset was owned by the association in proportion to the amount 
of business done by such patrons during such taxable years.
    (4) Special rules for certain taxable years. No deduction is 
allowable under this paragraph for amounts paid during taxable years 
beginning before January 1, 1963, or for amounts paid during taxable 
years beginning after December 31, 1962, with respect to income derived 
during taxable years beginning before January 1, 1963. With respect to 
such amounts, the Internal Revenue Code of 1954 (including section 522 
and the regulations thereunder) shall be applicable without regard to 
subchapter T.
    (d) Deduction for amounts paid in redemption of certain nonqualified 
written notices of allocation. In the case of a taxable year beginning 
after December 31, 1962, there is allowed as a deduction from the gross 
income of a cooperative association operated in compliance with the 
requirements of section 521 and Sec. 1.521-1, amounts paid by such 
association during the payment period for such taxable year in 
redemption of certain nonqualified written notices of allocation, but 
only to the extent such amounts (1) are paid in money or other property 
(other than written notices of allocation) and (2) do not exceed the 
stated dollar amount of such nonqualified written notices of allocation. 
The nonqualified written notices of allocation referred to in the 
preceding sentence are those which were previously paid to patrons on a 
patronage basis with respect to earnings derived either from business 
done with or for the United States or any of its agencies or from 
sources other than patronage, provided that such nonqualified written 
notices of allocation were paid during the payment period for the 
taxable year during which such earnings were derived. No deduction shall 
be allowed under this paragraph, however, for amounts paid in redemption 
of nonqualified written notices of allocation which were paid with 
respect to earnings derived during a taxable year beginning before 
January 1, 1963. For purposes of this paragraph, if an amount is paid 
within the payment period for two or more taxable years, it will be 
allowable as a deduction only for the earliest of such taxable years. In 
determining the amount paid which is allowable as a deduction under this 
paragraph, property (other than written notices of allocation) shall be 
taken into account at its fair market value when paid. Amounts paid in 
redemption of a nonqualified written notice of allocation in excess of 
its stated dollar amount shall be treated under the applicable 
provisions of the Code.

[T.D. 6643, 28 FR 3155, Apr. 2, 1963]



Sec. 1.1382-4  Taxable income of cooperatives; payment period for each 
taxable year.

    The payment period for a taxable year is the period beginning with 
the

[[Page 813]]

first day of such taxable year and ending with the fifteenth day of the 
ninth month following the close of such year.

[T.D. 6643, 28 FR 3156, Nov. 26, 1963]



Sec. 1.1382-5  Taxable income of cooperatives; products marketed under 
pooling arrangements.

    For purposes of section 1382(b) and Sec. 1.1382-2, in the case of a 
pooling arrangement for the marketing of products the patronage under 
such pool shall be treated as occurring during the taxable year in which 
the pool closes. The determination of when a pool is closed will be made 
on the basis of the facts and circumstances in each case, but generally 
the practices and operations of the cooperative organization shall 
control. This section may be illustrated by the following example:

    Example: Farmer A delivers to the X Cooperative 100 bushels of wheat 
on August 15, 1963, at which time he receives a per bushel advance. 
(Both farmer A and the X Cooperative file returns on a calendar year 
basis.) On October 15, 1963 farmer A receives an additional per bushel 
payment. The pool sells some of its wheat in 1963 and the remainder in 
January of 1964. The pool is closed on February 15, 1964. For purposes 
of section 1382(b), A's patronage is considered as occurring in 1964.

[T.D. 6643, 28 FR 3156, Apr. 2, 1963]



Sec. 1.1382-6  Taxable income of cooperatives; treatment of earnings 
received after patronage occurred.

    If earnings derived from business done with or for patrons are 
includible in the gross income of the cooperative organization for a 
taxable year after the taxable year during which the patronage occurred, 
then, for purposes of determining whether the cooperative is allowed a 
deduction under section 1382(b) and Sec. 1.1382-2, the patronage to 
which these earnings relate shall be considered to have occurred during 
the taxable year for which such earnings are includible in the 
cooperative's gross income. Thus, if the cooperative organization pays 
these earnings out as patronage dividends during the payment period for 
the taxable year for which the earnings are includible in its gross 
income, it will be allowed a deduction for such payments under section 
1382(b)(1) and paragraph (b) of Sec. 1.1382-2, to the extent they are 
paid in money, qualified written notices of allocation, or other 
property (other than written notices of allocation).

[T.D. 6643, 28 FR 3156, Apr. 2, 1963]



Sec. 1.1382-7  Special rules applicable to cooperative associations 
exempt from tax before January 1, 1952.

    (a) Basis of property. The adjustments to the cost or other basis 
provided in sections 1011 and 1016 and the regulations thereunder, are 
applicable for the entire period since the acquisition of the property. 
Thus, proper adjustment to basis must be made under section 1016 for 
depreciation, obsolescence, amortization, and depletion for all taxable 
years beginning prior to January 1, 1952, although the cooperative 
association was exempt from tax under section 521 or corresponding 
provisions of prior law for such years. However, no adjustment for 
percentage or discovery depletion is to be made for any year during 
which the association was exempt from tax. If a cooperative association 
has made a proper election in accordance with section 1020 and the 
regulations prescribed thereunder with respect to a taxable year 
beginning before 1952 in which the association was not exempt from tax, 
the adjustment to basis for depreciation for such years shall be limited 
in accordance with the provisions of section 1016(a)(2).
    (b) Amortization of bond premium. In the case of tax exempt and 
partially taxable bonds purchased at a premium and subject to 
amortization under section 171, proper adjustment to basis must be made 
to reflect amortization with respect to such premium from the date of 
acquisition of the bond. (For principles governing the method of 
computation, see the example in paragraph (b) of Sec. 1.1016-9, 
relating to mutual savings banks, building and loan associations, and 
cooperative banks.) The basis of a fully taxable bond purchased at a 
premium shall be adjusted from the date of the election to amortize such 
premium in accordance with the provisions of section 171 except that no 
adjustment shall be allowable for such portion of the premium 
attributable to the period prior to the election.

[[Page 814]]

    (c) Amortization of mortgage premium. In the case of a mortgage 
acquired at a premium where the principal of such mortgage is payable in 
installments, adjustments to the basis for the premium must be made for 
all taxable years (whether or not the association was exempt from tax 
under section 521 during such years) in which installment payments are 
received. Such adjustments may be made on an individual mortgage basis 
or on a composite basis by reference to the average period of payments 
of the mortgage loans of such association. For the purpose of this 
adjustment, the term premium includes the excess of the acquisition 
value of the mortgage over its maturity value. The acquisition value of 
the mortgage is the cost including buying commissions, attorneys' fees, 
or brokerage fees, but such value does not include amounts paid for 
accrued interest.

[T.D. 6643, 28 FR 3156, Apr. 2, 1963]



Sec. 1.1383-1  Computation of tax where cooperative redeems nonqualified 
written notices of allocation.

    (a) General rule. (1) If, during the taxable year, a cooperative 
organization is entitled to a deduction under section 1382 (b)(2) or 
(c)(2)(B) for amounts paid in redemption of nonqualified written notices 
of allocation, the tax imposed for the taxable year by chapter 1 of the 
Code shall be the lesser of:
    (i) The tax for the taxable year computed under section 1383(a)(1), 
that is, with such deduction taken into account, or
    (ii) The tax for the taxable year computed under section 1383(a)(2), 
that is, without taking such deduction into account, minus the decrease 
in tax (under chapter 1 of the Code) for any prior taxable year (or 
years) which would result solely from treating all such nonqualified 
written notices of allocation redeemed during the taxable year as 
qualified written notices of allocation when paid. For the purpose of 
this subdivision, the amount of the decrease in tax is not limited to 
the amount of the tax for the taxable year. See paragraph (c) of this 
section for rules relating to a refund of tax where the decrease in tax 
for the prior taxable year (or years) exceeds the tax for the taxable 
year.
    (2) If the cooperative organization computes its tax for the taxable 
year under the provisions of section 1383(a)(2) and subparagraph (1)(ii) 
of this paragraph, then no deduction under section 1382 (b)(2) or 
(c)(2)(B) shall be taken into account in computing taxable income or 
loss for the taxable year, including the computation of any net 
operating loss carryback or carryover. However, the amount of the 
deduction shall be taken into account in adjusting earnings and profits 
for the taxable year.
    (3) If the tax determined under subparagraph (1)(i) of this 
paragraph is the same as the tax determined under subparagraph (1)(ii) 
of this paragraph, the tax imposed for the taxable year under chapter 1 
of the Code shall be the tax determined under subparagraph (1)(l) of 
this paragraph, and section 1383 and this section shall not otherwise 
apply. The tax imposed for the taxable year shall be the tax determined 
under subparagraph (1)(ii) of this paragraph in any case when a credit 
or refund would be allowable for the taxable year under section 
1383(b)(1).
    (b) Determination of decrease in tax for prior taxable years--(1) 
Prior taxable years. The prior taxable year (or years) referred to in 
paragraph (a) of this section is the year (or years) within the payment 
period for which the nonqualified written notices of allocation were 
paid and, in addition, any other prior taxable year (or years) which is 
affected by the adjustment to income by reason of treating such 
nonqualified written notices of allocation as qualified written notices 
of allocation when paid.
    (2) Adjustment to income in prior taxable years. The deduction for 
the prior taxable year (or years) in determining the decrease in tax 
under section 1383(a)(2)(B) and paragraph (a)(1)(ii) of this section 
shall be the amount paid in redemption of the nonqualified written 
notices of allocation which, without regard to section 1383, is 
allowable as a deduction under section 1382 (b)(2) or (c)(2)(B) for the 
current taxable year.
    (3) Computation of decrease in tax for prior taxable years. In 
computing the amount of decrease in tax for a prior taxable year (or 
years) resulting under

[[Page 815]]

this section, there must first be ascertained the amount of tax 
previously determined for the taxpayer for such prior taxable year (or 
years). The tax previously determined shall be the sum of the amounts 
shown as such tax by the taxpayer on his return or returns, plus any 
amounts which have been previously assessed (or collected without 
assessment) as deficiencies, reduced by the amount of any rebates which 
have previously been made. The amount shown as the tax by the taxpayer 
on his return and the amount of any rebates or deficiencies shall be 
determined in accordance with the provisions of section 6211 and the 
regulations thereunder. After the tax previously determined has been 
ascertained, a recomputation must then be made to determine the decrease 
in tax, if any, resulting under this section. In determining the 
decrease in tax for the prior taxable year (or years), appropriate 
adjustment shall be made to any item which is dependent upon the amount 
of gross income or taxable income (such as charitable contributions, net 
operating losses, the foreign tax credit, and the dividends received 
credit).
    (c) Refunds. If the decrease in tax for the prior taxable year (or 
years) determined under section 1383(a)(2)(B) and paragraph (a)(1)(ii) 
of this section exceeds the tax imposed by chapter 1 of the Code for the 
taxable year computed without the deduction under section 1382 (b) or 
(c)(2)(B), the excess shall be considered to be a payment of tax for the 
taxable year of the deduction. Such payment is deemed to have been made 
on the last day prescribed by law for the payment of tax for the taxable 
year and shall be refunded or credited in the same manner as if it were 
an overpayment of tax for such taxable year. See section 6151 and the 
regulations thereunder, for rules relating to time and place for paying 
tax shown on returns.
    (d) Example. The application of section 1383 may be illustrated by 
the following example:

    Example: The X Cooperative (which reports its income on a calendar 
year basis) pays patronage dividends of $100,000 in nonqualified written 
notices of allocation on February 1, 1964, with respect to patronage 
occurring in 1963. Since the patronage dividends of $100,000 were paid 
in nonqualified written notices of allocation the X Cooperative is not 
allowed a deduction for that amount for 1963. On December 1, 1966, the X 
Cooperative redeems these nonqualified written notices of allocation for 
$50,000. Under section 1382(b)(2), a deduction of $50,000 is allowable 
in computing its taxable income for 1966. However, the X Cooperative has 
a loss for 1966 determined without regard to this deduction. The X 
Cooperative, therefore, makes the computation under the alternative 
method provided in section 1383(a)(2). Under this alternative method, it 
will claim a credit or refund (as an overpayment of tax for 1966) of the 
decrease in tax for 1963 and for such other years prior to 1966 as are 
affected which results from recomputing its tax for 1963 and such other 
years affected) as if patronage dividends of $50,000 had been paid on 
February 1, 1964, in qualified written notices of allocation. In 
addition, under this alternative method the X Cooperative cannot use the 
$50,000 as a deduction for 1966 so as to increase its net operating loss 
for such year for purposes of computing a net operating loss carryback 
or carryover. If the X Cooperative also redeems on December 1, 1966, 
nonqualified written notices of allocation which were paid as patronage 
dividends on February 1, 1965, with respect to patronage occurring in 
1964, it will claim a credit or refund (as an overpayment of tax for 
1966) of the decrease in tax for 1964 and for such other years prior to 
1966 as are affected. It shall not, however, apply one method for 
computing the tax with respect to the redemptions in 1966 of the 
nonqualified written notices of allocation paid in 1964 and the other 
method with respect to the redemption in 1966 of the nonqualified 
written notices of allocation paid in 1965.

[T.D. 6643, 28 FR 3156, Apr. 2, 1963]

             Tax Treatment by Patrons of Patronage Dividends



Sec. 1.1385-1  Amounts includible in patron's gross income.

    (a) General rules. Section 1385(a) requires every person to include 
in gross income the following amounts received by him during the taxable 
year, to the extent paid by the organization in money, a qualified 
written notice of allocation, or other property (other than a 
nonqualified written notice of allocation):
    (1) The amount of any patronage dividend received from an 
organization subject to the provisions of part I, subchapter T, chapter 
1 of the Code, unless such amount is excludable from gross income under 
the provisions of section

[[Page 816]]

1385(b) and paragraph (c) of this section, and
    (2) The amount of any distribution received from a farmers', fruit 
growers', or like association, organized and operated in compliance with 
the requirements of section 521 and Sec. 1.521-1, which is paid on a 
patronage basis with respect to earnings derived by such association 
either from business done with or for the United States or any of its 
agencies or from sources other than patronage.

The amounts described in subparagraphs (1) and (2) of this paragraph are 
includible in gross income for the taxable year in which they are 
received even though the cooperative organization was allowed a 
deduction for such amounts for its preceding taxable year because they 
were paid during the payment period for such preceding taxable year. 
Similarly, such amounts are includible in gross income even though the 
cooperative organization is not permitted any deduction for such amounts 
under the provisions of section 1382 because such amounts were not paid 
within the time prescribed by such section.
    (b) Treatment of certain nonqualified written notices of allocation. 
(1) Except as provided in paragraph (c) of this section, any gain on the 
redemption, sale, or other disposition of a nonqualified written notice 
of allocation described in subparagraph (2) of this paragraph shall, to 
the extent that the stated dollar amount of such written notice of 
allocation exceeds its basis, be considered as gain from the sale or 
exchange of property which is not a capital asset, whether such gain is 
realized by the patron who received the nonqualified written notice of 
allocation initially or by any subsequent holder. Any amount realized on 
the redemption, sale, or other disposition of such a nonqualified 
written notice of allocation in excess of its stated dollar amount will 
be treated under the applicable provisions of the Code. For example, 
amounts received in redemption of a nonqualified written notice of 
allocation which are in excess of the stated dollar amount of such 
written notice of allocation and which, in effect, constitute interest 
shall be treated by the recipient as interest.
    (2) The nonqualified written notices of allocation to which 
subparagraph (1) of this paragraph applies are the following:
    (i) A nonqualified written notice of allocation which was paid as a 
patronage dividend (within the meaning of section 1388(a) and paragraph 
(a) of Sec. 1.1388-1), by a cooperative organization subject to the 
provisions of part I of subchapter T, and
    (ii) A nonqualified written notice of allocation which was paid by a 
farmers', fruit growers', or like association, organized and operated in 
compliance with the requirements of section 521 and Sec. 1.521-1, to 
patrons on a patronage basis with respect to earnings derived either 
from business done with or for the United States or any of its agencies 
or from sources other than patronage.
    (3) The basis of any nonqualified written notice of allocation 
described in subparagraph (2) of this paragraph, in the hands of the 
patron to whom such written notice of allocation was initially paid 
shall be zero, and the basis of such a written notice of allocation 
which was acquired from a decedent shall be its basis in the hands of 
the decedent.
    (4) The application of this paragraph may be illustrated by the 
following example:

    Example: A, a farmer, receives a patronage dividend from the X 
Cooperative, in the form of a nonqualified written notice of allocation, 
which is attributable to the sale of his crop to that cooperative 
organization. The stated dollar amount of the nonqualified written 
notice of allocation is $100. The basis of the written notice of 
allocation in the hands of A is zero and he must report any amount up to 
$100 received by him on its redemption, sale, or other disposition, as 
ordinary income. If A gives the written notice of allocation to his son 
B, B takes A's (the donor's) basis which is zero, and any gain up to 
$100 which B later realizes on its redemption, sale, or other 
disposition is ordinary income. Similarly, if A dies before realizing 
any gain on the nonqualified written notice of allocation, B, his 
legatee, has a zero basis for such written notice of allocation and any 
gain up to $100 which he then realizes on its redemption, sale, or other 
disposition is also ordinary income. Such gain is income in respect of a 
decedent within the meaning of section 691(a) and Sec. 1.691(a)-1.

    (c) Treatment of patronage dividends received with respect to 
certain property--

[[Page 817]]

(1) Exclusions from gross income. Except as provided in subparagraph (2) 
of this paragraph, gross income shall not include:
    (i) Any amount of a patronage dividend described in paragraph (a)(1) 
of this section which is received with respect to the purchase of 
supplies, equipment, or services, which were not used in the trade or 
business and the cost of which was not deductible under section 212, or 
which is received with respect to the marketing or purchasing of a 
capital asset (as defined in section 1221) or property used in the trade 
or business of a character which is subject to the allowance for 
depreciation provided in section 167; and
    (ii) Any amount (to the extent treated as ordinary income under 
paragraph (b) of this section) received on the redemption, sale, or 
other disposition of a nonqualified written notice of allocation which 
was received as a patronage dividend with respect to the purchase of 
supplies, equipment, or services, which were not used in the trade or 
business and the cost of which was not deductible under section 212, or 
which was received as a patronage dividend with respect to the marketing 
or purchasing of a capital asset (as defined in section 1221) or 
property used in the trade or business of a character which is subject 
to the allowance for depreciation provided in section 167.
    (2) Special rules. (i) If an amount described in subparagraph (1) of 
this paragraph relates to the purchase of a capital asset (as defined in 
section 1221), or property used in the trade or business of a character 
which is subject to the allowance for depreciation provided in section 
167, and the person receiving such amount owned such asset or property 
at any time during the taxable year in which such amount is received, 
then such amount shall be taken into account as an adjustment to the 
basis of such property or asset as of the first day of the taxable year 
in which such amount is received. To the extent that such amount exceeds 
the adjusted basis of such property it shall be taken into account as 
ordinary income.
    (ii) If an amount described in subparagraph (1) of this paragraph 
relates to the marketing or purchasing of a capital asset (as defined in 
section 1221), or property used in the trade or business of a character 
which is subject to the allowance for depreciation provided in section 
167, and the person receiving such amount did not own the asset or 
property at any time during the taxable year in which such amount is 
received, then such amount shall be included in gross income as ordinary 
income except that:
    (a) If such amount relates to a capital asset (as defined in section 
1221) which was held by the recipient for more than 1 year (6 months for 
taxable years beginning before 1977; 9 months for taxable years 
beginning in 1977) and with respect to which a loss was or would have 
been deductible under section 165, such amount shall be taken into 
account as gain from the sale or exchange of a capital asset held for 
more than 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977);
    (b) If such amount relates to a capital asset (as defined in section 
1221) with respect to which a loss was not or would not have been 
deductible under section 165, such amount shall not be taken into 
account.
    (iii) If an amount described in subparagraph (1) of this paragraph 
relates to the marketing of a capital asset (as defined in section 1221) 
or property used in the trade or business of a character which is 
subject to the allowance for depreciation provided in section 167, and 
such amount is received by the patron in the same taxable year during 
which he marketed the asset to which it relates, such amount shall be 
treated as an additional amount received on the sale or other 
disposition of such asset.
    (iv) If a person receiving a patronage dividend or an amount on the 
redemption, sale, or other disposition of a nonqualified written notice 
of allocation which was received as a patronage dividend is unable to 
determine the item to which it relates, he shall include such patronage 
dividend or such amount in gross income as ordinary income in the manner 
and to the extent provided in paragraph (a) or (b) of this section, 
whichever is applicable.

[[Page 818]]

    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example 1. On July 1, 1964, P, a patron of a cooperative 
association, purchases an implement for use in his farming business from 
such association for $2,900. The implement has an estimated useful life 
of three years and has an estimated salvage value of $200 which P 
chooses to take into account in the computation of depreciation. P files 
his income tax returns on a calendar year basis. For 1964 P claims 
depreciation of $450 with respect to the implement pursuant to his use 
of the straight-line method at the rate of $900 per year. On July 1, 
1965, the cooperative association pays a patronage dividend to P of $300 
in cash with respect to his purchase of the farm implement. P will 
adjust the basis of the implement and will compute his depreciation 
deduction for 1965 (and subsequent taxable years) as follows:

Cost of farm implement, July 1, 1964.........................     $2,900
  Less:
    Salvage value............................................        200
    Depreciation for 1964 (6 months).........................        450
    Adjustment as of January 1, 1965 for cash patronage              300
     dividend................................................
                                                              ----------
      Total..................................................        950
                                                              ----------
    Basis for depreciation for the remaining 2\1/2\ years of       1,950
     estimated life..........................................
                                                              ==========
Depreciation deduction for 1965 ($1,950 divided by the 2\1/2\        700
 years of remaining life)....................................
 

    Example 2. Assume the same facts as in example (1), except that on 
July 1, 1965, the cooperative association paid a patronage dividend to P 
with respect to his purchase of the implement in the form of a 
nonqualified written notice of allocation having a stated dollar amount 
of $300. Since such written notice of allocation was not qualified, no 
amount of the patronage dividend was taken into account by P as an 
adjustment to the basis of the implement, or in computing his 
depreciation deduction, for the year 1965. In 1968, P receives $300 cash 
from the association in full redemption of the written notice of 
allocation. Prior to 1968, he had recovered through depreciation $2,700 
of the cost of the implement, leaving an adjusted basis of $200 (the 
salvage value). For the year 1968, the redemption proceeds of $300 are 
applied against the adjusted basis of $200, reducing the basis of the 
implement to zero, and the balance of the redemption proceeds, $100, is 
includable as ordinary income in P's gross income for the calendar year 
1968. If the patronage dividend paid to P on July 1, 1965, had been in 
the form of $60 cash (20 percent of $300) and a qualified written notice 
of allocation with a stated dollar amount of $240, then the tax 
treatment of such patronage dividend would be that illustrated in 
example (1).
    Example 3. Assume the same facts as in example (2), except that the 
nonqualified written notice of allocation is redeemed in cash on July 1, 
1966. The full $300 received on redemption will reduce the adjusted 
basis of the implement as of January 1, 1966, and the depreciation 
allowances for 1966 and 1967 are computed as follows:

Cost of farm implement, July 1, 1964.........................     $2,900
  Less:
    Salvage value............................................        200
    Depreciation for 1964 (6 months).........................        450
    Depreciation for 1965....................................        900
    Adjustment as of January 1, 1966 for proceeds of the             300
     redemption..............................................
                                                              ----------
      Total..................................................      1,850
                                                              ----------
    Basis for depreciation on Jan. 1, 1966...................      1,050
If P uses the implement in his business until fully
 depreciated, he would be entitled to the following
 depreciation allowances with respect to such implement:
    For 1966.................................................        700
    For 1967.................................................        350
                                                              ----------
      Total..................................................      1,050
                                                              ==========
Balance to be depreciated....................................          0
 

    Example 4. Assume the same facts as in example (3), except that P 
sells the implement in 1965. The entire $300 received in 1966 in 
redemption of the nonqualified written notice of allocation is 
includible as ordinary income in P's gross income for the year 1966.

    (d) Determination of amount received. In determining the amount 
received for purposes of this section:
    (1) Property (other than written notices of allocation) shall be 
taken into account at its fair market value when received;
    (2) A qualified written notice of allocation shall be taken into 
account at its stated dollar amount; and
    (3) The amount of a qualified check shall be considered an amount 
received in money during the taxable year in which such check is 
received if the check is endorsed and cashed on or before the ninetieth 
day after the close of the payment period for the taxable year of the 
cooperative organization in which the patronage to which such amount 
relates occurred.
    (e) Effective date. This section shall not apply to any distribution 
or allocation received from a cooperative organization, or to any gain 
or loss on the redemption, sale, or other disposition of any allocation 
received from such an organization, if such distribution or allocation 
was received with respect to patronage occurring in a taxable year of 
the organization beginning before

[[Page 819]]

January 1, 1963. See Sec. 1.61-5 for the tax treatment by patrons of 
such distributions or allocations.

[T.D. 6643, 28 FR 3157, Apr. 2, 1963, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]

                       Definitions; Special Rules



Sec. 1.1388-1  Definitions and special rules.

    (a) Patronage dividend--(1) In general. The term patronage dividend 
means an amount paid to a patron by a cooperative organization subject 
to the provisions of part I, subchapter T, chapter 1 of the Code, which 
is paid:
    (i) On the basis of quantity or value of business done with or for 
such patron,
    (ii) Under a valid enforceable written obligation of such 
organization to the patron to pay such amount, which obligation existed 
before the cooperative organization received the amount so paid, and
    (iii) Which is determined by reference to the net earnings of the 
cooperative organization from business done with or for its patrons.

For the purpose of subdivision (ii) of this subparagraph, amounts paid 
by a cooperative organization are paid under a valid enforceable written 
obligation if such payments are required by State law or are paid 
pursuant to provisions of the bylaws, articles of incorporation, or 
other written contract, whereby the organization is obligated to make 
such payment. The term net earnings, for purposes of subdivision (iii) 
of this subparagraph, includes the excess of amounts retained (or 
assessed) by the organization to cover expenses or other items over the 
amount of such expenses or other items. For purposes of such subdivision 
(iii), net earnings shall not be reduced by any taxes imposed by 
subtitle A of the Code, but shall be reduced by dividends paid on 
capital stock or other proprietary capital interests.
    (2) Exceptions. The term patronage dividend does not include the 
following:
    (i) An amount paid to a patron by a cooperative organization to the 
extent that such amount is paid out of earnings not derived from 
business done with or for patrons.
    (ii) An amount paid to a patron by a cooperative organization to the 
extent that such amount is paid out of earnings from business done with 
or for other patrons to whom no amounts are paid, or to whom smaller 
amounts are paid, with respect to substantially identical transactions. 
Thus, if a cooperative organization does not pay any patronage dividends 
to nonmembers, any portion of the amounts paid to members which is out 
of net earnings from patronage with nonmembers, and which would have 
been paid to the nonmembers if all patrons were treated alike, is not a 
patronage dividend.
    (iii) An amount paid to a patron by a cooperative organization to 
the extent that such amount is paid in redemption of capital stock, or 
in redemption or satisfaction of certificates of indebtedness, revolving 
fund certificates, retain certificates, letters of advice, or other 
similar documents, even if such documents were originally paid as 
patronage dividends.
    (iv) An amount paid to a patron by a cooperative organization to the 
extent that such amount is fixed without reference to the net earnings 
of the cooperative organization from business done with or for its 
patrons.
    (3) Examples. The application of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. (i) Cooperative A, a marketing association operating on a 
pooling basis, receives the products of patron W on January 5, 1964. On 
the same day cooperative A advances to W 45 cents per unit for the 
products so delivered and allocates to him a retain certificate having a 
face value calculated at the rate of 5 cents per unit. During the 
operation of the pool, and before substantially all the products in the 
pool are disposed of, cooperative A advances to W an additional 40 cents 
per unit, the amount being determined by reference to the market price 
of the products sold and the anticipated price of the unsold products. 
At the close of the pool on November 10, 1964, cooperative A determines 
the excess of its receipts over the sum of its expenses and its previous 
advances to patrons, and allocates to W an additional 3 cents per unit 
and shares of the capital stock of A having an aggregate stated dollar 
amount calculated at the rate of 2 cents per unit. Under the provisions 
of section 1382(e), W's patronage is deemed to occur in 1964, the year 
in which the pool is closed.

[[Page 820]]

    (ii) The patronage dividend paid to W during 1964 amounts to 5 cents 
per unit, consisting of the aggregate of the following per-unit 
allocations: The amount of the cash distribution (3 cents), and the 
stated dollar amount of the capital stock of A (2 cents), which are 
fixed with reference to the net earnings of A. The amount of the two 
distributions in cash (85 cents) and the face amount of the retain 
certificate (5 cents), which are fixed without reference to the net 
earnings of A, do not constitute patronage dividends.
    Example 2. Cooperative B, a marketing association operating on a 
pooling basis, receives the products of patron X on March 5, 1964. On 
the same day cooperative B pays to X $1.00 per unit for such products, 
this amount being determined by reference to the market price of the 
product when received, and issues to him a participation certificate 
having no face value but which entitles X on the close of the pool to 
the proceeds derived from the sale of his products less the previous 
payment of $1.00 and the expenses and other charges attributable to such 
products. On March 5, 1967, cooperative B, having sold the products in 
the pool, having deducted the previous payments for such products, and 
having determined the expenses and other charges of the pool pays to X, 
in cash, 10 cents per unit pursuant to the participation certificate. 
Under the provisions of section 1382(e), X's patronage is deemed to 
occur in 1967, the year in which the pool is closed. The payment made to 
X during 1967, amounting to 10 cents per unit, is a patronage dividend. 
Neither the payment to X in 1964 of $1.00 nor the issuance to him of the 
participation certificate in that year constitutes a patronage dividend.
    Example 3. Cooperative C, a purchasing association, obtains supplies 
for patron Y on May 1, 1964, and receives in return therefor $100. On 
February 1, 1965, cooperative C, having determined the excess of its 
receipts over its costs and expenses, pays to Y a cash distribution of 
$1.00 and a revolving fund certificate with a stated dollar amount of 
$1.00. The amount of patronage dividend paid to Y in 1965 is $2.00, the 
aggregate of the cash distribution ($1.00) and the stated dollar amount 
of the revolving fund certificate ($1.00).
    Example 4. Cooperative D, a service association, sells the products 
of members on a fee basis. It receives the products of patron Z under an 
agreement not to pool his products with those of other members, to sell 
his products, and to deliver to him the proceeds of the sale. Patron Z 
makes payments to cooperative D during 1964 aggregating $75 for service 
rendered him by cooperative D during that year. On May 15, 1965, 
cooperative D, having determined the excess of its receipts over its 
costs and expenses, pays to Z a cash distribution of $2.00. Such amount 
is a patronage dividend paid by cooperative D during 1965.

    (b) Written notice of allocation. The term written notice of 
allocation means any capital stock, revolving fund certificate, retain 
certificate, certificate of indebtedness, letter of advice, or other 
written notice, which discloses to the patron the stated dollar amount 
allocated to him on the books of the cooperative organization, and the 
portion thereof, if any, which constitutes a patronage dividend. Thus, a 
mere credit to the account of a patron on the books of the organization 
without disclosure to the patron, is not a written notice of allocation. 
A written notice of allocation may disclose to the patron the amount of 
the allocation which constitutes a patronage dividend either as a dollar 
amount or as a percentage of the stated dollar amount of the written 
notice of allocation.
    (c) Qualified written notice of allocation--(1) In general. The term 
qualified written notice of allocation means a written notice of 
allocation:
    (i) Which meets the requirements of subparagraphs (2) or (3) of this 
paragraph, and
    (ii) Which is paid as part of a patronage dividend, or as part of a 
payment by a cooperative association organized and operated in 
compliance with the provisions of section 521 and Sec. 1.521-1 to 
patrons on a patronage basis with respect to earnings derived from 
business done with or for the United States or any of its agencies or 
from sources other than patronage, that also includes a payment in money 
or by qualified check equal to at least 20 percent of such patronage 
dividend or such payment.

In determining, for purposes of subdivision (ii) of this subparagraph, 
whether 20 percent of a patronage dividend or a payment with respect to 
nonpatronage earnings is paid in money or by qualified check, any 
portion of such dividend or payment which is paid in nonqualified 
written notices of allocation may be disregarded. Thus, if a cooperative 
pays a patronage dividend of $100 in the form of a nonqualified written 
notice of allocation with a stated dollar amount of $50, a written 
notice of allocation with a stated dollar amount of $40, and money in 
the amount of $10,

[[Page 821]]

the written notice of allocation with a stated dollar amount of $40 will 
constitute a qualified written notice of allocation if it meets the 
requirements of subparagraph (2) or (3) of this paragraph. A payment in 
money, as that term is used in subdivision (ii) of this subparagraph, 
includes a payment by a check drawn on a bank but does not include a 
credit against amounts owed by the patron to the cooperative 
organization, a credit against the purchase price of a share of stock or 
of a membership in such organization, nor does it include a payment by 
means of a document redeemable by such organization for money.
    (2) Written notice of allocation redeemable in cash. The term 
qualified written notice of allocation includes a written notice of 
allocation which meets the requirement of subparagraph (1)(ii) of this 
paragraph and which may be redeemed in cash at its stated dollar amount 
at any time within a period beginning on the date such written notice of 
allocation is paid and ending not earlier than 90 days from such date, 
but only if the distributee receives written notice of the right of 
redemption at the time he receives such written notice of allocation. 
The written notice of the right of redemption referred to in the 
preceding sentence shall be given separately to each patron. Thus, a 
written notice of the right of redemption which is published in a 
newspaper or posted at the cooperative's place of business would not be 
sufficient to qualify a written notice of allocation which is otherwise 
described in this subparagraph.
    (3) Consent of patron. The term qualified written notice of 
allocation also includes written notice of allocation which meets the 
requirement of subparagraph (1)(ii) of this paragraph and which the 
distributee has consented, in a manner provided in this subparagraph, to 
take into account at its stated dollar amount as provided in section 
1385 and Sec. 1.1385-1.
    (i) Consent in writing. A distributee may consent to take the stated 
dollar amount of written notices of allocation into account under 
section 1385 by signing and furnishing a written consent to the 
cooperative organization. No special form is required for the written 
consent so long as the document on which it is made clearly discloses 
the terms of the consent. Thus, the written consent may be made on a 
signed invoice, sales slip, delivery ticket, marketing agreement, or 
other document, on which appears the appropriate consent. Unless the 
written consent specifically provides to the contrary, it shall be 
effective with respect to all patronage occurring during the taxable 
year of the cooperative organization in which such consent is received 
by such organization and, unless revoked under section 1388(c)(3)(B), 
for all subsequent taxable years. Section 1388(c)(3)(B)(i) provides that 
a written consent may be revoked by the patron at any time. Thus, any 
written consent which is, by its terms, irrevocable is not a consent 
that would qualify a written notice of allocation. A revocation, to be 
effective, must be in writing, signed by the patron, and furnished to 
the cooperative organization. Such a revocation shall be effective only 
with respect to patronage occurring after the close of the taxable year 
of the cooperative organization during which the revocation is filed 
with it. In the case of a pooling arrangement described in section 
1382(e) and Sec. 1.1382-5, a written consent which is made at any time 
before the close of the taxable year of the cooperative organization 
during which the pool closes shall be effective with respect to all 
patronage under that pool. In addition, any subsequent revocation of 
such consent by the patron will not be effective for that pool or any 
other pool with respect to which he has been a patron before such 
revocation.
    (ii) Consent by membership. (a) A distributee may consent to take 
the stated dollar amount of written notices of allocation into account 
under section 1385 by obtaining or retaining membership in the 
cooperative organization after such organization has adopted a valid 
bylaw providing that membership in such cooperative organization 
constitutes such consent, but such consent shall take effect only after 
the distributee has received a written notification of the adoption of 
the bylaw provision and a copy of such bylaw. The bylaw must have been 
adopted by

[[Page 822]]

the cooperative organization after October 16, 1962, and must contain a 
clear statement that membership in the cooperative organization 
constitutes the prescribed consent. The written notification from the 
cooperative organization must inform the patron that this bylaw has been 
adopted and of its significance. The notification and copy of the bylaw 
shall be given separately to each member (or prospective member); thus, 
a written notice and copy of the bylaw which are published in a 
newspaper or posted at the cooperative's place of business are not 
sufficient to qualify a written notice of allocation under this 
subdivision. A member (or prospective member) is presumed to have 
received the notification and copy of the bylaw if they were sent to his 
last known address by ordinary mail. A prospective member must receive 
the notification and copy of the bylaw before he becomes a member of the 
organization in order to have his membership in the organization 
constitute consent. A consent made in the manner described in this 
subdivision shall be effective only with respect to patronage occurring 
after the patron has received a copy of the bylaw and the prerequisite 
notice and while he is a member of the organization. Thus, any such 
consent shall not be effective with respect to any patronage occurring 
after the patron ceases to be a member of the cooperative organization 
or after the bylaw provision is repealed by such organization. In the 
case of a pooling arrangement described in section 1382(e) and Sec. 
1.1382-5, a consent made under this subdivision will be effective only 
with respect to the patron's actual patronage occurring after he 
receives the notification and copy of the bylaw and while he is a member 
of the cooperative organization. Thus such a consent shall not be 
effective with respect to any patronage under a pool after the patron 
ceases to be a member of the cooperative organization or after the bylaw 
provisions is repealed by the organization.
    (b) The following is an example of a bylaw provision which would 
meet the requirements prescribed in (a) of this subdivision.

    Example: Each person who hereafter applies for and is accepted to 
membership in this cooperative and each member of this cooperative on 
the effective date of this bylaw who continues as a member after such 
date shall, by such act alone, consent that the amount of any 
distributions with respect to his patronage occurring after ----------, 
which are made in written notices of allocation (as defined in 26 U.S.C. 
1388) and which are received by him from the cooperative, will be taken 
into account by him at their stated dollar amounts in the manner 
provided in 26 U.S.C. 1385(a) in the taxable year in which such written 
notices of allocation are received by him.

    (c) For purposes of this subdivision the term member means a person 
who is entitled to participate in the management of the cooperative 
organization.
    (iii) Consent by qualified check. (a) A distributee may consent to 
take the stated dollar amount of a written notice of allocation into 
account under section 1385 by endorsing and cashing a qualified check 
which is paid as a part of the same patronage dividend or payment 
described in subparagraph (1)(ii) of this paragraph of which the written 
notice of allocation is also a part. In order to constitute an effective 
consent under this subdivision, however, the qualified check must be 
endorsed and cashed by the payee on or before the ninetieth day after 
the close of the payment period for the taxable year of the cooperative 
organization with respect to which the patronage dividend or payment is 
paid (or on or before such earlier day as may be prescribed by the 
cooperative organization). The endorsing and cashing of a qualified 
check shall be considered a consent only with respect to written notices 
of allocation which are part of the same patronage dividend or payment 
as the qualified check and for which a consent under subdivision (i) or 
(ii) of this subparagraph is not in effect. A qualified check is 
presumed to be endorsed and cashed within the 90-day period if the 
earliest bank endorsement which appears thereon bears a date no later 
than 3 days after the end of such 90-day period (excluding Saturdays, 
Sundays, and legal holidays).
    (b) The term qualified check means a check, or other instrument 
redeemable in money, which is paid as a part of a patronage dividend or 
payment described in subparagraph (1)(ii) of this paragraph, on which 
there is clearly

[[Page 823]]

imprinted a statement that the endorsement and cashing of the check or 
other instrument constitutes the consent of the payee to take into 
account, as provided in the Federal income tax laws, the stated dollar 
amount of any written notices of allocation which are paid as a part of 
the patronage dividend or payment of which such check or other 
instrument is also a part. A qualified check need not be in the form of 
an ordinary check which is payable through the banking system. It may, 
for example, be in the form of an instrument which is redeemable in 
money by the cooperative organization. The term qualified check does not 
include a check or other instrument paid as part of a patronage dividend 
or payment with respect to which a consent under subdivision (i) or (ii) 
of this subparagraph is in effect. In addition, the term qualified check 
does not include a check or other instrument which is paid as part of a 
patronage dividend or payment, if such patronage dividend or payment 
does not also include a written notice of allocation (other than a 
written notice of allocation that may be redeemed in cash at its stated 
dollar amount which meets the requirements of section 1388(c)(1)(A) and 
subparagraph (2) of this paragraph). Thus, a check which is paid as part 
of a patronage dividend is not a qualified check (even though it has the 
required statement imprinted on it) if the remaining portion of such 
patronage dividend is paid in cash or if the only written notices of 
allocation included in the payment are qualified under section 
1388(c)(1)(A) and subparagraph (2) of this paragraph (relating to 
certain written notices of allocation which are redeemable by the patron 
within a period of at least 90 days).
    (c) The provisions of this subdivision may be illustrated by the 
following example.

    Example: (1) The A Cooperative is a cooperative organization filing 
its income tax returns on a calendar year basis. None of its patrons 
have consented in the manner prescribed in section 1388(c)(2) (A) or 
(B). On August 1, 1964, the A Cooperative pays patronage dividends to 
its patrons with respect to their 1963 patronage, and the payment to 
each such patron is partly by a qualified check and partly in the form 
of a written notice of allocation which is not redeemable for cash. Each 
patron who endorses and cashes his qualified check on or before December 
14, 1964 (the ninetieth day following the close of the 1963 payment 
period) shall be considered to have consented with respect to the 
accompanying written notice of allocation and the amount of such check 
is treated as a patronage dividend paid in money on August 1, 1964.
    (2) As to any patron who has not endorsed and cashed his qualified 
check by December 14, 1964, there is no consent and both the written 
notice of allocation and the qualified check constitute nonqualified 
written notices of allocation within the meaning of section 1388(d) and 
paragraph (d) of this section. If such a patron then cashes his check on 
January 2, 1965, he shall treat the amount received as an amount 
received on January 2, 1965, in redemption of a nonqualified written 
notice of allocation. Likewise, the cooperative shall treat the amount 
of the check as an amount paid on January 2, 1965, in redemption of a 
nonqualified written notice of allocation.

    (d) Nonqualified written notice of allocation. The term nonqualified 
written notice of allocation means a written notice of allocation which 
is not a qualified written notice of allocation described in section 
1388(c) and paragraph (c) of this section, or a qualified check which is 
not cashed on or before the ninetieth day after the close of the payment 
period for the taxable year of the cooperative organization for which 
the payment of which it is a part is paid.
    (e) Patron. The term patron includes any person with whom or for 
whom the cooperative association does business on a cooperative basis, 
whether a member or a nonmember of the cooperative association, and 
whether an individual, a trust, estate, partnership, company, 
corporation, or cooperative association.

[T.D. 6643, 28 FR 3160, Apr. 2, 1963]



Sec. 1.1394-0  Table of contents.

    This section lists the major paragraph headings contained in Sec. 
1.1394-1.

             Sec. 1.1394-1 Enterprise zone facility bonds.

    (a) Scope.
    (b) Period of compliance.
    (1) In general.
    (2) Compliance after an issue is retired.
    (3) Deemed compliance.
    (c) Special rules for requirements of sections 1397B and 1397C.
    (1) Start of compliance period.

[[Page 824]]

    (2) Compliance period for certain prohibited activities.
    (3) Minimum compliance period.
    (4) Initial testing date.
    (d) Testing on an average basis.
    (e) Resident employee requirements.
    (1) Determination of employee status.
    (2) Employee treated as zone resident.
    (3) Resident employee percentage.
    (f) Application to pooled financing bond and loan recycling 
programs.
    (g) Limitation on amount of bonds.
    (1) Determination of outstanding amount.
    (2) Pooled financing bond programs.
    (h) Original use requirement for purposes of qualified zone 
property.
    (i) Land.
    (j) Principal user.
    (1) In general.
    (2) Rental of real property.
    (3) Pooled financing bond program.
    (k) Treatment as separately incorporated business.
    (l) Substantially all.
    (m) Application of sections 142 and 146 through 150.
    (1) In general.
    (2) Maturity limitation.
    (3) Volume cap.
    (4) Remedial actions.
    (n) Continuing compliance and change of use penalties.
    (1) In general.
    (2) Coordination with deemed compliance provisions.
    (3) Application to pooled financing bond and loan recycling 
programs.
    (4) Section 150(b)(4) inapplicable.
    (o) Refunding bonds.
    (1) In general.
    (2) Maturity limitation.
    (p) Examples.
    (q) Effective dates.
    (1) In general.
    (2) Elective retroactive application in whole.

[T.D. 8673, 61 FR 27259, May 31, 1996]



Sec. 1.1394-1  Enterprise zone facility bonds.

    (a) Scope. This section contains rules relating to tax-exempt bonds 
under section 1394 (enterprise zone facility bonds) to provide 
enterprise zone facilities in both empowerment zones and enterprise 
communities (zones). See sections 1394, 1397B, and 1397C for other rules 
and definitions.
    (b) Period of compliance--(1) In general. Except as provided in 
paragraphs (b)(2) and (c) of this section, the requirements under 
sections 1394 (a) and (b) applicable to enterprise zone facility bonds 
must be complied with throughout the greater of the following--
    (i) The remainder of the period during which the zone designation is 
in effect under section 1391 (zone designation period); and
    (ii) The period that ends on the weighted average maturity date of 
the enterprise zone facility bonds.
    (2) Compliance after an issue is retired. Except as provided in 
paragraph (c)(3) of this section, the requirements applicable to 
enterprise zone facility bonds do not apply to an issue after the date 
on which no enterprise zone facility bonds of the issue are outstanding.
    (3) Deemed compliance--(i) General rule. An issue is deemed to 
comply with the requirements of sections 1394 (a) and (b) if--
    (A) The issuer and the principal user in good faith attempt to meet 
the requirements of sections 1394 (a) and (b) throughout the period of 
compliance required under this section; and
    (B) Any failure to meet these requirements is corrected within a 
one-year period after the failure is first discovered.
    (ii) Exception. The provisions of paragraph (b)(3)(i) of this 
section do not apply to the requirements of section 1397B(d)(5)(A) 
(relating to certain prohibited business activities).
    (iii) Good faith. In order to satisfy the good faith requirement of 
paragraph (b)(3)(i)(A) of this section, the principal user must at least 
annually demonstrate to the issuer the principal user's monitoring of 
compliance with the requirements of sections 1394 (a) and (b).
    (c) Special rules for requirements of sections 1397B and 1397C--(1) 
Start of compliance period. Except as provided in paragraph (c)(2) of 
this section, the requirements of sections 1397B (relating to 
qualification as an enterprise zone business) and 1397C (relating to 
satisfaction of the rules for qualified zone property) do not apply 
prior to the initial testing date (as defined in paragraph (c)(4) of 
this section) if--
    (i) The issuer and the principal user reasonably expect on the issue 
date of the enterprise zone facility bonds that those requirements will 
be met by the principal user on or before the initial testing date; and

[[Page 825]]

    (ii) The issuer and the principal user exercise due diligence to 
meet those requirements prior to the initial testing date.
    (2) Compliance period for certain prohibited activities. The 
requirements of section 1397B(d)(5)(A) (relating to certain prohibited 
business activities) must be complied with throughout the term of the 
enterprise zone facility bonds.
    (3) Minimum compliance period. The requirements of sections 1397B 
(b) or (c) and 1397C must be satisfied for a continuous period of at 
least three years after the initial testing date, notwithstanding that--
    (i) The period of compliance required under paragraph (b)(1) of this 
section expires before the end of the three-year period; or
    (ii) The enterprise zone facility bonds are retired before the end 
of the three-year period.
    (4) Initial testing date--(i) In general. Except as otherwise 
provided in paragraph (c)(4)(ii) of this section, the initial testing 
date is the date that is 18 months after the later of the issue date of 
the enterprise zone facility bonds or the date on which the financed 
property is placed in service; provided, however, it is not later than--
    (A) Three years after the issue date; or
    (B) Five years after the issue date, if the issue finances a 
construction project for which both the issuer and a licensed architect 
or engineer certify on or before the issue date of the enterprise zone 
facility bonds that more than three years after the issue date is 
necessary to complete construction of the project.
    (ii) Alternative initial testing date. If the issuer identifies as 
the initial testing date a date after the issue date of the enterprise 
zone facility bonds and prior to the initial testing date that would 
have been determined under paragraph (c)(4)(i) of this section, that 
earlier date is treated as the initial testing date.
    (d) Testing on an average basis. Compliance with each of the 
requirements of section 1397B (b) or (c) is tested each taxable year. 
Compliance with any of the requirements may be tested on an average 
basis, taking into account up to four immediately preceding taxable 
years plus the current taxable year. The earliest taxable year that may 
be taken into account for purposes of the preceding sentence is the 
taxable year that includes the initial testing date. A taxable year is 
disregarded if the part of the taxable year that falls in a required 
compliance period does not exceed 90 days.
    (e) Resident employee requirements--(1) Determination of employee 
status. For purposes of the requirement of section 1397B (b)(6) or 
(c)(5) that at least 35 percent of the employees are residents of the 
zone, the issuer and the principal user may rely on a certification, 
signed under penalties of perjury by the employee, provided--
    (i) The certification provides to the principal user the address of 
the employee's principal residence;
    (ii) The employee is required by the certification to notify the 
principal user of a change of the employee's principal residence; and
    (iii) Neither the issuer nor the principal user has actual knowledge 
that the principal residence set forth in the certification is not the 
employee's principal residence.
    (2) Employee treated as zone resident. If an issue fails to comply 
with the requirement of section 1397B (b)(6) or (c)(5) because an 
employee who initially resided in the zone moves out of the zone, that 
employee is treated as still residing in the zone if--
    (i) That employee was a bona fide resident of the zone at the time 
of the certification described in paragraph (e)(1) of this section;
    (ii) That employee continues to perform services for the principal 
user in an enterprise zone business and substantially all of those 
services are performed in the zone; and
    (iii) A resident of the zone meeting the requirements of section 
1397B (b)(5) or (c)(4) is hired by the principal user for the next 
available comparable (or lesser) position.
    (3) Resident employee percentage. For purposes of meeting the 
requirement of section 1397B (b)(6) or (c)(5) that at least 35 percent 
of the employees of an enterprise zone business are residents of a zone, 
paragraphs (e)(3) (i) and (ii) of this section apply.

[[Page 826]]

    (i) The term employee includes a self-employed individual within the 
meaning of section 401(c)(1).
    (ii) The resident employee percentage is determined on any 
reasonable basis consistently applied throughout the period of 
compliance required under this section. The per-employee fraction (as 
defined in paragraph (e)(3)(ii)(A) of this section) or the employee 
actual work hour fraction (as defined in paragraph (e)(3)(ii)(B) of this 
section) are both reasonable methods.
    (A) The term per-employee fraction means the fraction, the numerator 
of which is, during the taxable year, the number of employees who work 
at least 15 hours a week for the principal user, who reside in the zone, 
and who are employed for at least 90 days, and the denominator of which 
is, during the same taxable year, the aggregate number of all employees 
who work at least 15 hours a week for the principal user and who are 
employed for at least 90 days.
    (B) The term employee actual work hour fraction means the fraction, 
the numerator of which is the aggregate total actual hours of work for 
the principal user of employees who reside in the zone during a taxable 
year, and the denominator of which is the aggregate total actual hours 
of work for the principal user of all employees during the same taxable 
year.
    (f) Application to pooled financing bond and loan recycling 
programs. In the case of a pooled financing bond program described in 
paragraph (g)(2) of this section or a loan recycling program described 
in paragraph (m)(2)(ii) of this section, the requirements of paragraphs 
(b) through (e) of this section apply on a loan-by-loan basis. See also 
paragraphs (g)(2) (relating to limitation on amount of bonds), (m)(2) 
(relating to maturity limitations), (m)(3) (relating to volume cap), and 
(m)(4) (relating to remedial actions) of this section.
    (g) Limitation on amount of bonds--(1) Determination of outstanding 
amount. Whether an issue satisfies the requirements of section 1394(c) 
(relating to the $3 million and $20 million aggregate limitations on the 
amount of outstanding enterprise zone facility bonds) is determined as 
of the issue date of that issue, based on the issue price of that issue 
and the adjusted issue price of outstanding enterprise zone facility 
bonds. Amounts of outstanding enterprise zone facility bonds allocable 
to any entity are determined under rules contained in section 
144(a)(10)(C) and the underlying regulations. Thus, the definition of 
principal user for purposes of section 1394(c) is different from the 
definition of principal user for purposes of paragraph (j) of this 
section.
    (2) Pooled financing bond programs--(i) In general. The limitations 
of section 1394(c) for an issue for a pooled financing bond program are 
determined with regard to the amount of the actual loans to enterprise 
zone businesses rather than the amount lent to intermediary lenders as 
defined in paragraph (g)(2)(ii) of this section. This paragraph (g)(2) 
applies only to the extent the proceeds of those enterprise zone 
facility bonds are loaned to one or more enterprise zone businesses 
within 42 months of the issue date of the enterprise zone facility bonds 
or are used to redeem enterprise zone facility bonds of the issue within 
that 42-month period.
    (ii) Pooled financing bond program defined. For purposes of this 
section, a pooled financing bond program is a program in which the 
issuer of enterprise zone facility bonds, in order to provide loans to 
enterprise zone businesses, lends the proceeds of the enterprise zone 
facility bonds to a bank or similar intermediary (intermediary lender) 
which must then relend the proceeds to two or more enterprise zone 
businesses.
    (h) Original use requirement for purposes of qualified zone 
property. In general, for purposes of section 1397C(a)(1)(B), the term 
original use means the first use to which the property is put within the 
zone. For purposes of section 1394, if property is vacant for at least a 
one-year period including the date of zone designation, use prior to 
that period is disregarded for purposes of determining original use. For 
this purpose, de minimis incidental uses of property, such as renting 
the side of a building for a billboard, are disregarded.
    (i) Land. The determination of whether land is functionally related

[[Page 827]]

and subordinate to qualified zone property is made in a manner 
consistent with the rules for exempt facilities under section 142.
    (j) Principal user--(1) In general. Except as provided in paragraph 
(j)(2) of this section, the term principal user means the owner of 
financed property.
    (2) Rental of real property--(i) A lessee as the principal user. If 
an owner of real property financed with enterprise zone facility bonds 
is not an enterprise zone business within the meaning of section 1397B, 
but the rental of the property is a qualified business within the 
meaning of section 1397B(d)(2), the term principal user for purposes of 
sections 1394 (b) and (e) means the lessee or lessees.
    (ii) Allocation of enterprise zone facility bonds. If a lessee is 
the principal user of real property under paragraph (j)(2)(i) of this 
section, then proceeds of enterprise zone facility bonds may be 
allocated to expenditures for real property only to the extent of the 
property allocable to the lessee's leased space, including expenditures 
for common areas.
    (3) Pooled financing bond program. An intermediary lender in a 
pooled financing bond program described in paragraph (g)(2) of this 
section is not treated as the principal user.
    (k) Treatment as separately incorporated business. For purposes of 
section 1394(b)(3)(B), a trade or business may be treated as separately 
incorporated if allocations of income and activities attributable to the 
business conducted within the zone are made using a reasonable 
allocation method and if that trade or business has evidence of those 
allocations sufficient to establish compliance with the requirements of 
paragraphs (b) through (f) of this section. Whether an allocation method 
is reasonable will depend upon the facts and circumstances. An 
allocation method will not be considered to be reasonable unless the 
allocation method is applied consistently by the trade or business and 
is consistent with the purposes of section 1394.
    (l) Substantially all. For purposes of sections 1397B and 1397C(a), 
the term substantially all means 85 percent.
    (m) Application of sections 142 and 146 through 150--(1) In general. 
Except as provided in this paragraph (m), enterprise zone facility bonds 
are treated as exempt facility bonds that are described in section 
142(a), and all regulations generally applicable to exempt facility 
bonds apply to enterprise zone facility bonds. For this purpose, 
enterprise zone businesses are treated as meeting the public use 
requirement. Sections 147(c)(1)(A) (relating to limitations on financing 
the acquisition of land), 147(d) (relating to financing the acquisition 
of existing property), and 142(b)(2) (relating to limitations on 
financing office space) do not apply to enterprise zone facility bonds. 
See also paragraph (n)(4) of this section.
    (2) Maturity limitation--(i) Requirements. An issue of enterprise 
zone facility bonds, the proceeds of which are to be used as part of a 
loan recycling program, satisfies the requirements of section 147(b) 
if--
    (A) Each loan satisfies the requirements of section 147(b) 
(determined by treating each separate loan as a separate issue); and
    (B) The term of the issue does not exceed 30 years.
    (ii) Loan recycling program defined. A loan recycling program is a 
program in which--
    (A) The issuer reasonably expects as of the issue date of the 
enterprise zone facility bonds that loan repayments from principal users 
will be used to make additional loans during the zone designation 
period;
    (B) Repayments of principal on loans (including prepayments) 
received during the zone designation period are used within six months 
of the date of receipt either to make new loans to enterprise zone 
businesses or to redeem enterprise zone facility bonds that are part of 
the issue; and
    (C) Repayments of principal on loans (including prepayments) 
received after the zone designation period are used to redeem enterprise 
zone facility bonds that are part of the issue within six months of the 
date of receipt.
    (3) Volume cap. For purposes of applying section 146(f)(5)(A) 
(relating to elective carryforward of unused volume limitation), issuing 
enterprise zone facility bonds is a carryforward purpose.

[[Page 828]]

    (4) Remedial actions. In the case of a pooled financing bond program 
described in paragraph (g)(2) of this section or a loan recycling 
program described in paragraph (m)(2)(ii) of this section, if a loan 
fails to meet the requirements of paragraphs (b) through (f) of this 
section, within six months of noncompliance (after taking into account 
the deemed compliance provisions of paragraph (b)(3) of this section, if 
applicable), an amount equal to the outstanding loan principal must be 
prepaid and the issuer must--
    (i) Reloan the amount of the prepayment; or
    (ii) Use the prepayment to redeem an amount of outstanding 
enterprise zone facility bonds equal to the outstanding principal amount 
of the loan that no longer meets those requirements.
    (n) Continuing compliance and change of use penalties--(1) In 
general. The penalty provisions of section 1394(e) apply throughout the 
period of compliance required under paragraph (b)(1) of this section.
    (2) Coordination with deemed compliance provisions. Section 
1394(e)(2) does not apply during any period during which the issue is 
deemed to comply with the requirements of section 1394 under the deemed 
compliance provisions of paragraph (b)(3) of this section.
    (3) Application to pooled financing bond and loan recycling 
programs. In the case of a pooled financing bond program described in 
paragraph (g)(2) of this section or a loan recycling program described 
in paragraph (m)(2)(ii) of this section, section 1394(e) applies on a 
loan-by-loan basis.
    (4) Section 150(b)(4) inapplicable. Section 150(b)(4) does not apply 
to enterprise zone facility bonds.
    (o) Refunding bonds--(1) In general. An issue of bonds issued after 
the zone designation period to refund enterprise zone facility bonds 
(other than in an advance refunding) are treated as enterprise zone 
facility bonds if the refunding issue and the prior issue, if treated as 
a single combined issue, would meet all of the requirements for 
enterprise zone facility bonds, except the requirements in section 
1394(c). For example, the compliance period described in paragraph 
(b)(1) of this section is calculated taking into account any extension 
of the weighted average maturity of the refunding issue compared to the 
remaining weighted average maturity of the prior issue. The proceeds of 
the refunding issue are allocated to the same expenditures and purpose 
investments as the prior issue.
    (2) Maturity limitation. The maturity limitation of section 147(b) 
is applied to a refunding issue by taking into account the issuer's 
reasonable expectations about the economic life of the financed property 
as of the issue date of the prior issue and the actual weighted average 
maturity of the combined refunding issue and prior issue.
    (p) Examples. The following examples illustrate paragraphs (a) 
through (o) of this section:

    Example 1. Averaging of enterprise zone business requirements. City 
C issues enterprise zone facility bonds, the proceeds of which are 
loaned by C to Corporation B to finance the acquisition of equipment for 
its existing business located in a zone. On the issue date of the 
enterprise zone facility bonds, B meets all of the requirements of 
section 1397B(b), except that only 25% of B's employees reside in the 
zone. C and B reasonably expect on the issue date to meet all 
requirements of section 1397B(b) by the date that is 18 months after the 
equipment is placed in service (the initial testing date). In each of 
the first, second, and third taxable years after the initial testing 
date, 35%, 40% and 45%, respectively, of B's employees are zone 
residents. In the fourth year after the testing date, only 25% of B's 
employees are zone residents. B continues to meet the 35% resident 
employee requirement, because the average of zone resident employees for 
those four taxable years is approximately 36%. The percentage of zone 
residents employed by B before the initial testing date is not included 
in determining whether B continues to comply with the 35% resident 
employee requirement.
    Example 2. Measurement of resident employee percentage. Authority D 
issues enterprise zone facility bonds, the proceeds of which are loaned 
to Sole Proprietor F to establish an accounting business in a zone. In 
the first year after the initial testing date, the staff working for F 
includes F, who works 40 hours per week and does not live in the zone, 
one employee who resides in the zone and works 40 hours per week, one 
employee who does not reside in the zone and works 20 hours per week, 
and one employee who does not reside in the zone and works 10 hours per 
week. F meets the 35% resident employee test by calculating the 
percentage on the basis of employee actual work hours as described in 
paragraph (e)(3)(ii)(B) of this section. If F

[[Page 829]]

uses the per-employee basis as described in paragraph (e)(3)(ii)(A) of 
this section to determine if the resident employee test is met, the 
percentage of employees who are zone residents on a per-employee basis 
is only 33% because F must exclude from the numerator and the 
denominator the employee who works only 10 hours per week. If F 
calculates the resident employee test as a percentage of employee actual 
work hours as described in paragraph (e)(3)(ii)(B) of this section in 
the first year, F must calculate the resident employee test as a 
percentage of employee actual work hours each year.
    Example 3. Active conduct of business within the zone. State G 
issues enterprise zone facility bonds and loans the proceeds to 
Corporation H to finance the acquisition of equipment for H's mail order 
clothing business, which is located in a zone. H purchases the supplies 
for its clothing business from suppliers located both within and outside 
of the zone and expects that orders will be received both from customers 
who will reside or work within the zone and from others outside the 
zone. All orders are received and filled at, and are shipped from, H's 
clothing business located in the zone. H meets the requirement that at 
least 80% of its gross income is derived from the active conduct of 
business within the zone.
    Example 4. Enterprise zone business definition. City J issues 
enterprise zone facility bonds, the proceeds of which are loaned to 
Partnership K to finance the acquisition of equipment for its printing 
operation located in the zone. All orders are taken and completed, and 
all billing and accounting activities are performed, at the print shop 
located in the zone. K, on occasion, uses its equipment (including its 
trucks) and employees to deliver large print jobs to customers who 
reside outside of the zone. So long as K is able to establish that its 
trucks are used in the zone at least 85% of the time and its employees 
perform at least 85% of services for K in the zone, K meets the 
requirements of sections 1397B(b) (3) and (5).
    Example 5. Treatment as a separately incorporated business. The 
facts are the same as in Example 4 except that six years after the issue 
date of the enterprise zone facility bonds, K determines to expand its 
operations to a second location outside of the boundaries of the zone. 
Although the expansion would result in the failure of K to meet the 
tests of 1397B(b), K, using a reasonable allocation method, allocates 
income and activities to its operations within the zone and has evidence 
of these allocations sufficient to establish compliance with the 
requirements of paragraphs (b) through (f) of this section. The bonds 
will not fail to be enterprise zone facility bonds merely because of the 
expansion.
    Example 6. Treatment of pooled financing bond programs. Authority L 
issues bonds in the aggregate principal amount of $5,000,000 and loans 
the proceeds to Bank M pursuant to a loans-to-lenders program. M does 
not meet the definition of enterprise zone business contained in section 
1397B. Prior to the issue date of the bonds, L held a public hearing 
regarding issuance of the bonds for the loans-to-lenders program, 
describing the projects of identified borrowers to be financed initially 
with $4,000,000 of the proceeds of the bonds. The applicable elected 
representative of L approved issuance of the bonds subsequent to the 
public hearing. The loan agreement between L and M provides that the 
other proceeds of the bonds will be held by M and loaned to borrowers 
that qualify as enterprise zone businesses, following a public hearing 
and approval by the applicable elected representative of L of each loan 
by M to an enterprise zone business. None of the loans will be in 
principal amounts in excess of $3,000,000. The loans by M will otherwise 
meet the requirements of section 1394. The bonds will be enterprise zone 
facility bonds.
    Example 7. Original use requirement for purposes of qualified zone 
property. City N issues enterprise zone facility bonds, the proceeds of 
which are loaned to Corporation P to finance the acquisition of 
equipment. P uses the proceeds after the zone designation date to 
purchase used equipment located outside of the zone and places the 
equipment in service at its location in the zone. Substantially all of 
the use of the equipment is in the zone and is in the active conduct of 
a qualified business by P. The equipment is treated as qualified 
enterprise zone property under section 1397C because P makes the first 
use of the property within the zone after the zone designation date.
    Example 8. Principal user. State R issues enterprise zone facility 
bonds and loans the proceeds to Partnership S to finance the 
construction of a small shopping center to be located in a zone. S is in 
the business of commercial real estate. S is not an enterprise zone 
business, but has secured one anchor lessee, Corporation T, for the 
shopping center. T would qualify as an enterprise zone business. S will 
derive 60% of its gross rental income of the shopping center from T. S 
does not anticipate that the remaining rental income will come from 
enterprise zone businesses. T will occupy 60% of the total rentable 
space in the shopping center. S can use enterprise zone facility bond 
proceeds to finance the portion of the costs of the shopping center 
allocable to T (60%) because T is treated as the principal user of the 
enterprise zone facility bond proceeds.
    Example 9. Remedial actions. State W issues pooled financing 
enterprise zone facility bonds, the proceeds of which will be loaned to 
several enterprise zone businesses in the two enterprise communities and 
one empowerment zone in W. Proceeds of the pooled

[[Page 830]]

financing bonds are loaned to Corporation X, an enterprise zone 
business, for a term of 10 years. Six years after the date of the loan, 
X expands its operations beyond the empowerment zone and is no longer 
able to meet the requirements of section 1394. X does not reasonably 
expect to be able to cure the noncompliance. The loan documents provide 
that X must prepay its loan in the event of noncompliance. W does not 
expect to be able to reloan the prepayment by X within six months of 
noncompliance. X's noncompliance will not affect the qualification of 
the pooled financing bonds as enterprise zone facility bonds if W uses 
the proceeds from the loan prepayment to redeem outstanding enterprise 
zone facility bonds within six months of noncompliance in an amount 
comparable to the outstanding amount of the loan immediately prior to 
prepayment. X will be denied an interest expense deduction for the 
interest accruing from the first day of the taxable year in which the 
noncompliance began.

    (q) Effective dates--(1) In general. Except as otherwise provided in 
this section, the provisions of this section apply to all issues issued 
after July 30, 1996, and subject to section 1394.
    (2) Elective retroactive application in whole. An issuer may apply 
the provisions of this section in whole, but not in part, to any issue 
that is outstanding on July 30, 1996, and is subject to section 1394.

[T.D. 8673, 61 FR 27259, May 31, 1996]

                   Empowerment Zone Employment Credit



Sec. 1.1396-1  Qualified zone employees.

    (a) In general. A qualified zone employee of an employer is an 
employee who satisfies the location-of-services requirement and the 
abode requirement with respect to the same empowerment zone and is not 
otherwise excluded by section 1396(d).
    (1) Location-of-services requirement. The location-of-services 
requirement is satisfied if substantially all of the services performed 
by the employee for the employer are performed in the empowerment zone 
in a trade or business of the employer.
    (2) Abode requirement. The abode requirement is satisfied if the 
employee's principal place of abode while performing those services is 
in the empowerment zone.
    (b) Period for applying location-of-services requirement. In 
applying the location-of-services requirement, an employer may use 
either the pay period method described in paragraph (b)(1) of this 
section or the calendar year method described in paragraph (b)(2) of 
this section. For each taxable year of an employer, the employer must 
either use the pay period method with respect to all of its employees or 
use the calendar year method with respect to all of its employees. The 
employer may change the method applied to all of its employees from one 
taxable year to the next.
    (1) Pay period method--(i) Relevant period. Under the pay period 
method, the relevant period for applying the location-of-services 
requirement is each pay period in which an employee provides services to 
the employer during the calendar year with respect to which the credit 
is being claimed (i.e., the calendar year that ends with or within the 
relevant taxable year). If an employer has one pay period for certain 
employees and a different pay period for other employees (e.g., a weekly 
pay period for hourly wage employees and a bi-weekly pay period for 
salaried employees), the pay period actually applicable to a particular 
employee is the relevant pay period for that employee under this method.
    (ii) Application of method. Under this method, an employee does not 
satisfy the location-of-services requirement during a pay period unless 
substantially all of the services performed by the employee for the 
employer during that pay period are performed within the empowerment 
zone in a trade or business of the employer.
    (2) Calendar year method--(i) Relevant period. Under the calendar 
year method, the relevant period for an employee is the entire calendar 
year with respect to which the credit is being claimed. However, for any 
employee who is employed by the employer for less than the entire 
calendar year, the relevant period is the portion of that calendar year 
during which the employee is employed by the employer.
    (ii) Application of method. Under this method, an employee does not 
satisfy the location-of-services requirement

[[Page 831]]

during any part of a calendar year unless substantially all of the 
services performed by the employee for the employer during that calendar 
year (or, if the employee is employed by the employer for less than the 
entire calendar year, the portion of that calendar year during which the 
employee is employed by the employer) are performed within the 
empowerment zone in a trade or business of the employer.
    (3) Examples. This paragraph (b) may be illustrated by the following 
examples. In each example, the following assumptions apply. The 
employees satisfy the abode requirement at all relevant times and all 
services performed by the employees for their employer are performed in 
a trade or business of the employer. The employees are not precluded 
from being qualified zone employees by section 1396(d)(2) (certain 
employees ineligible). No portion of the employees' wages is precluded 
from being qualified zone wages by section 1396(c)(2) (only first 
$15,000 of wages taken into account) or section 1396(c)(3) (coordination 
with targeted jobs credit and work opportunity credit). The examples are 
as follows:

    Example 1. (i) Employer X has a weekly pay period for all its 
employees. Employee A works for X throughout 1997. During each of the 
first 20 weekly pay periods in 1997, substantially all of A's work for X 
is performed within the empowerment zone in which A resides. A also 
works in the zone at various times during the rest of the year, but 
there is no other pay period in which substantially all of A's work for 
X is performed within the empowerment zone. Employer X uses the pay 
period method.
    (ii) For each of the first 20 pay periods of 1997, A is a qualified 
zone employee, all of A's wages from X are qualified zone wages, and X 
may claim the empowerment zone employment credit with respect to those 
wages. X cannot claim the credit with respect to any of A's wages for 
the rest of 1997.
    Example 2. (i) Employer Y has a weekly pay period for its factory 
workers and a bi-weekly pay period for its office workers. Employee B 
works for Y in various factories and Employee C works for Y in various 
offices. Employer Y uses the pay period method.
    (ii) Y must use B's weekly pay periods to determine the periods (if 
any) in which B is a qualified zone employee. Y may claim the 
empowerment zone employment credit with respect to B's wages only for 
the weekly pay periods for which B is a qualified zone employee, because 
those are B's only wages that are qualified zone wages. Y must use C's 
bi-weekly pay periods to determine the periods (if any) in which C is a 
qualified zone employee. Y may claim the credit with respect to C's 
wages only for the bi-weekly pay periods for which C is a qualified zone 
employee, because those are C's only wages that are qualified zone 
wages.
    Example 3. (i) Employees D and E work for Employer Z throughout 
1997. Although some of D's work for Z in 1997 is performed outside the 
empowerment zone in which D resides, substantially all of it is 
performed within that empowerment zone. E's work for Z is performed 
within the empowerment zone in which E resides for several weeks of 1997 
but outside the zone for the rest of the year so that, viewed on an 
annual basis, E's work is not substantially all performed within the 
empowerment zone. Employer Z uses the calendar year method.
    (ii) D is a qualified zone employee for the entire year, all of D's 
1997 wages from Z are qualified zone wages, and Z may claim the 
empowerment zone employment credit with respect to all of those wages, 
including the portion attributable to work outside the zone. Under the 
calendar year method, E is not a qualified zone employee for any part of 
1997, none of E's 1997 wages are qualified zone wages, and Z cannot 
claim any empowerment zone employment credit with respect to E's wages 
for 1997. Z cannot use the calendar year method for D and the pay period 
method for E because Z must use the same method for all employees. For 
1998, however, Z can switch to the pay period method for E if Z also 
switches to the pay period method for D and all of Z's other employees.

    (c) Effective date. This section applies with respect to wages paid 
or incurred on or after December 21, 1994.

[T.D. 8747, 62 FR 67727, Dec. 30, 1997]



Sec. 1.1397E-1  Qualified zone academy bonds.

    (a) Overview. In general, a qualified zone academy bond is a taxable 
bond issued by a state or local government the proceeds of which are 
used to improve certain eligible public schools. An eligible taxpayer 
that holds a qualified zone academy bond generally is allowed annual 
Federal income tax credits in lieu of periodic interest payments. These 
credits compensate the eligible taxpayer for lending money to the issuer 
and function as payments of interest on the bond. Accordingly, this 
section generally treats the allowance of a credit as if it were a 
payment of interest on the bond. In addition, this section provides 
rules to determine the

[[Page 832]]

credit rate, the present value of qualified contributions from private 
entities, and the maximum term of a qualified zone academy bond.
    (b) Credit rate. The Secretary shall determine monthly (or more 
often as deemed necessary by the Secretary) the credit rate the 
Secretary estimates will generally permit the issuance of a qualified 
zone academy bond without discount and without interest cost to the 
issuer. The manner for ascertaining the credit rate for a qualified zone 
academy bond as determined by the Secretary shall be set forth in 
procedures, notices, forms, or instructions prescribed by the 
Commissioner.
    (c) Private business contribution requirement--(1) Reasonable 
discount rate. To determine the present value (as of the issue date) of 
qualified contributions from private entities under section 1397E(d)(2), 
the issuer must use a reasonable discount rate. The credit rate 
determined under paragraph (b) of this section is a reasonable discount 
rate.
    (2) Definition of private entities. For purposes of section 
1397E(d)(2)(A), the term private entities includes any person (as 
defined in section 7701(a)) other than the United States, a State or 
local government, or any agency or instrumentality thereof or related 
party with respect thereto. To determine whether a person is related to 
the United States or a State or local government under this paragraph 
(c)(2), rules similar to those for determining whether a person is a 
related party under Sec. 1.150-1(b) shall apply (treating the United 
States as a governmental unit for purposes of Sec. 1.150-1(b)).
    (3) Qualified contribution. For purposes of section 1397E(d)(2)(A), 
the term qualified contribution means any contribution (of a type and 
quality acceptable to the eligible local education agency) of any 
property or service described in section 1397E(d)(2)(B)(i), (ii), (iii), 
(iv) or (v). In addition, cash received with respect to a qualified zone 
academy from a private entity (other than cash received indirectly from 
a person that is not a private entity as part of a plan to avoid the 
requirements of section 1397E) constitutes a qualified contribution if 
it is to be used to purchase any property or service described in 
section 1397E(d)(2)(B)(i), (ii), (iii), (iv) or (v). Services of 
employees of the eligible local education agency do not constitute 
qualified contributions.
    (d) Maximum term. The maximum term for a qualified zone academy bond 
is determined under section 1397E(d)(3) by using a discount rate equal 
to 110 percent of the long-term adjusted AFR, compounded semi-annually, 
for the month in which the bond is issued. The Internal Revenue Service 
publishes this figure each month in a revenue ruling that is published 
in the Internal Revenue Bulletin. See Sec. 601.601(d)(2)(ii)(b) of this 
chapter.
    (e) Tax credit--(1) Eligible taxpayer. An eligible taxpayer (within 
the meaning of section 1397E(d)(6)) that holds a qualified zone academy 
bond on a credit allowance date is allowed a tax credit against the 
Federal income tax imposed on the taxpayer for the taxable year that 
includes the credit allowance date. The amount of the credit is equal to 
the product of the credit rate and the outstanding principal amount of 
the bond on the credit allowance date. The credit is subject to a 
limitation based on the eligible taxpayer's income tax liability. See 
section 1397E(c).
    (2) Ineligible taxpayer. A taxpayer that is not an eligible taxpayer 
is not allowed a credit.
    (f) Treatment of the allowance of the credit as a payment of 
interest--(1) General rule. The holder of a qualified zone academy bond 
must treat the bond as if it pays qualified stated interest (within the 
meaning of Sec. 1.1273-1(c)) on each credit allowance date. The amount 
of the deemed payment of interest on each credit allowance date is equal 
to the product of the credit rate and the outstanding principal amount 
of the bond on that date. Thus, for example, if the holder uses an 
accrual method of accounting, the holder must accrue as interest income 
the amount of the credit over the one-year accrual period that ends on 
the credit allowance date.
    (2) Adjustment if the holder cannot use the credit to offset a tax 
liability. If a holder holds a qualified zone academy bond on the credit 
allowance date but cannot use all or a portion of the credit to reduce 
its income tax liability (for example, because the holder is not an

[[Page 833]]

eligible taxpayer or because the limitation in section 1397E(c) 
applies), the holder is allowed a deduction for the taxable year that 
includes the credit allowance date (or, at the option of the holder, the 
next succeeding taxable year). The amount of the deduction is equal to 
the amount of the unused credit deemed paid on the credit allowance 
date.
    (g) Not a tax-exempt obligation. A qualified zone academy bond is 
not an obligation the interest on which is excluded from gross income 
under section 103(a).
    (h) Reimbursement. An expenditure for a qualified purpose may be 
reimbursed with proceeds of a qualified zone academy bond. For this 
purpose, rules similar to those in Sec. 1.150-2 shall apply.
    (i) State or local government--(1) In general. For purposes of 
section 1397E(d)(1)(B), the term State or local government means a State 
or political subdivision as defined for purposes of section 103(c).
    (2) On behalf of issuer. A qualified zone academy bond may be issued 
on behalf of a State or local government under rules similar to those 
for determining whether a bond issued on behalf of a State or political 
subdivision constitutes an obligation of that State or political 
subdivision for purposes of section 103.
    (j) Cross-references. See section 171 and the regulations thereunder 
for rules relating to amortizable bond premium. See Sec. 1.61-7(d) for 
the seller's treatment of a bond sold between interest payment dates 
(credit allowance dates) and Sec. 1.61-7(c) for the buyer's treatment 
of a bond purchased between interest payment dates (credit allowance 
dates).
    (k) Effective dates. Except as provided in this paragraph (k), this 
section applies to bonds sold on or after September 26, 2000. Each of 
paragraphs (c) and (i) of this section may be applied by issuers to 
bonds that are sold before September 26, 2000.

[T.D. 8755, 63 FR 673, Jan. 7, 1998; 63 FR 8528, Feb. 19, 1998, as 
amended by T.D. 8826, 64 FR 35574, July 1, 1999. Redesignated and 
amended by T.D. 8903, 65 FR 57733, Sept. 26, 2000]

              Rules Relating to Individuals' Title 11 Cases

    Source: Sections 1.1398-1 and 1.1398-2 appear at T.D. 8537, 59 FR 
24937, May 13, 1994, unless otherwise noted.



Sec. 1.1398-1  Treatment of passive activity losses and passive activity 
credits in individuals' title 11 cases.

    (a) Scope. This section applies to cases under chapter 7 or chapter 
11 of title 11 of the United States Code, but only if the debtor is an 
individual.
    (b) Definitions and rules of general application. For purposes of 
this section--
    (1) Passive activity and former passive activity have the meanings 
given in section 469 (c) and (f)(3);
    (2) The unused passive activity loss (determined as of the first day 
of a taxable year) is the passive activity loss (as defined in section 
469(d)(1)) that is disallowed under section 469 for the previous taxable 
year; and
    (3) The unused passive activity credit (determined as of the first 
day of a taxable year) is the passive activity credit (as defined in 
section 469(d)(2)) that is disallowed under section 469 for the previous 
taxable year.
    (c) Estate succeeds to losses and credits upon commencement of case. 
The bankruptcy estate (estate) succeeds to and takes into account, 
beginning with its first taxable year, the debtor's unused passive 
activity loss and unused passive activity credit (determined as of the 
first day of the debtor's taxable year in which the case commences).
    (d) Transfers from estate to debtor--(1) Transfer not treated as 
taxable event. If, before the termination of the estate, the estate 
transfers an interest in a passive activity or former passive activity 
to the debtor (other than by sale or exchange), the transfer is not 
treated as a disposition for purposes of any provision of the Internal 
Revenue Code assigning tax consequences to a disposition. The transfers 
to which this rule applies include transfers from the estate to the 
debtor of property that is exempt under section 522 of title 11 of the 
United States Code and abandonments of estate property to the debtor 
under section 554(a) of such title.
    (2) Treatment of passive activity loss and credit. If, before the 
termination of

[[Page 834]]

the estate, the estate transfers an interest in a passive activity or 
former passive activity to the debtor (other than by sale or exchange)--
    (i) The estate must allocate to the transferred interest, in 
accordance with Sec. 1.469-1(f)(4), part or all of the estate's unused 
passive activity loss and unused passive activity credit (determined as 
of the first day of the estate's taxable year in which the transfer 
occurs); and
    (ii) The debtor succeeds to and takes into account, beginning with 
the debtor's taxable year in which the transfer occurs, the unused 
passive activity loss and unused passive activity credit (or part 
thereof) allocated to the transferred interest.
    (e) Debtor succeeds to loss and credit of the estate upon its 
termination. Upon termination of the estate, the debtor succeeds to and 
takes into account, beginning with the debtor's taxable year in which 
the termination occurs, the passive activity loss and passive activity 
credit disallowed under section 469 for the estate's last taxable year.
    (f) Effective date--(1) Cases commencing on or after November 9, 
1992. This section applies to cases commencing on or after November 9, 
1992.
    (2) Cases commencing before November 9, 1992--(i) Election required. 
This section applies to a case commencing before November 9, 1992, and 
terminating on or after that date if the debtor and the estate jointly 
elect its application in the manner prescribed in paragraph (f)(2)(v) of 
this section (the election). The caption ``ELECTION PURSUANT TO Sec. 
1.1398-1'' must be placed prominently on the first page of each of the 
debtor's returns that is affected by the election (other than returns 
for taxable years that begin after the termination of the estate) and on 
the first page of each of the estate's returns that is affected by the 
election. In the case of returns that are amended under paragraph 
(f)(2)(iii) of this section, this requirement is satisfied by placing 
the caption on the amended return.
    (ii) Scope of election. This election applies to the passive and 
former passive activities and unused passive activity losses and passive 
activity credits of the taxpayers making the election.
    (iii) Amendment of previously filed returns. The debtor and the 
estate making the election must amend all returns (except to the extent 
they are for a year that is a closed year within the meaning of 
paragraph (f)(2)(iv)(D) of this section) they filed before the date of 
the election to the extent necessary to provide that no claim of a 
deduction or credit is inconsistent with the succession under this 
section to unused losses and credits. The Commissioner may revoke or 
limit the effect of the election if either the debtor or the estate 
fails to satisfy the requirement of this paragraph (f)(2)(iii).
    (iv) Rules relating to closed years--(A) Estate succeeds to debtor's 
passive activity loss and credit as of the commencement date. If, by 
reason of an election under this paragraph (f), this section applies to 
a case that was commenced in a closed year, the estate, nevertheless, 
succeeds to and takes into account the unused passive activity loss and 
unused passive activity credit of the debtor (determined as of the first 
day of the debtor's taxable year in which the case commenced).
    (B) No reduction of unused passive activity loss and credit for 
passive activity loss and credit not claimed for a closed year. In 
determining a taxpayer's carryover of a passive activity loss or credit 
to its taxable year following a closed year, a deduction or credit that 
the taxpayer failed to claim in the closed year, if attributable to an 
unused passive activity loss or credit to which the taxpayer succeeded 
under this section, is treated as a deduction or credit that was 
disallowed under section 469.
    (C) Passive activity loss and credit to which taxpayer succeeds 
reflects deductions of prior holder in a closed year. A loss or credit 
to which a taxpayer would otherwise succeed under this section is 
reduced to the extent the loss or credit was allowed to its prior holder 
for a closed year.
    (D) Closed year. For purposes of this paragraph (f)(2)(iv), a 
taxable year is closed to the extent the assessment of a deficiency or 
refund of an overpayment is prevented, on the date of the election and 
at all times thereafter, by any law or rule of law.

[[Page 835]]

    (v) Manner of making election--(A) Chapter 7 cases. In a case under 
chapter 7 of title 11 of the United States Code, the election is made by 
obtaining the written consent of the bankruptcy trustee and filing a 
copy of the written consent with the returns (or amended returns) of the 
debtor and the estate for their first taxable years ending after 
November 9, 1992.
    (B) Chapter 11 cases. In a case under chapter 11 of title 11 of the 
United States Code, the election is made by incorporating the election 
into a bankruptcy plan that is confirmed by the bankruptcy court or into 
an order of such court and filing the pertinent portion of the plan or 
order with the returns (or amended returns) of the debtor and the estate 
for their first taxable years ending after November 9, 1992.
    (vi) Election is binding and irrevocable. Except as provided in 
paragraph (f)(2)(iii) of this section, the election, once made, is 
binding on both the debtor and the estate and is irrevocable.



Sec. 1.1398-2  Treatment of section 465 losses in individuals' title 11 
cases.

    (a) Scope. This section applies to cases under chapter 7 or chapter 
11 of title 11 of the United States Code, but only if the debtor is an 
individual.
    (b) Definition and rules of general application. For purposes of 
this section--
    (1) Section 465 activity means an activity to which section 465 
applies; and
    (2) For each section 465 activity, the unused section 465 loss from 
the activity (determined as of the first day of a taxable year) is the 
loss (as defined in section 465(d)) that is not allowed under section 
465(a)(1) for the previous taxable year.
    (c) Estate succeeds to losses upon commencement of case. The 
bankruptcy estate (the estate) succeeds to and takes into account, 
beginning with its first taxable year, the debtor's unused section 465 
losses (determined as of the first day of the debtor's taxable year in 
which the case commences).
    (d) Transfers from estate to debtor--(1) Transfer not treated as 
taxable event. If, before the termination of the estate, the estate 
transfers an interest in a section 465 activity to the debtor (other 
than by sale or exchange), the transfer is not treated as a disposition 
for purposes of any provision of the Internal Revenue Code assigning tax 
consequences to a disposition. The transfers to which this rule applies 
include transfers from the estate to the debtor of property that is 
exempt under section 522 of title 11 of the United States Code and 
abandonments of estate property to the debtor under section 554(a) of 
such title.
    (2) Treatment of section 465 losses. If, before the termination of 
the estate, the estate transfers an interest in a section 465 activity 
to the debtor (other than by sale or exchange) the debtor succeeds to 
and takes into account, beginning with the debtor's taxable year in 
which the transfer occurs, the transferred interest's share of the 
estate's unused section 465 loss from the activity (determined as of the 
first day of the estate's taxable year in which the transfer occurs). 
For this purpose, the transferred interest's share of such loss is the 
amount, if any, by which such loss would be reduced if the transfer had 
occurred as of the close of the preceding taxable year of the estate and 
been treated as a disposition on which gain or loss is recognized.
    (e) Debtor succeeds to losses of the estate upon its termination. 
Upon termination of the estate, the debtor succeeds to and takes into 
account, beginning with the debtor's taxable year in which the 
termination occurs, the losses not allowed under section 465 for the 
estate's last taxable year.
    (f) Effective date--(1) Cases commencing on or after November 9, 
1992. This section applies to cases commencing on or after November 9, 
1992.
    (2) Cases commencing before November 9, 1992--(i) Election required. 
This section applies to a case commencing before November 9, 1992, and 
terminating on or after that date if the debtor and the estate jointly 
elect its application in the manner prescribed in paragraph (f)(2)(v) of 
this section (the election). The caption ``ELECTION PURSUANT TO Sec. 
1.1398-2'' must be placed prominently on the first page of each of the 
debtor's returns that is affected by the election (other than returns 
for taxable years that begin after the termination of the estate) and on 
the first page of

[[Page 836]]

each of the estate's returns that is affected by the election. In the 
case of returns that are amended under paragraph (f)(2)(iii) of this 
section, this requirement is satisfied by placing the caption on the 
amended return.
    (ii) Scope of election. This election applies to the section 465 
activities and unused losses from section 465 activities of the 
taxpayers making the election.
    (iii) Amendment of previously filed returns. The debtor and the 
estate making the election must amend all returns (except to the extent 
they are for a year that is a closed year within the meaning of 
paragraph (f)(2)(iv)(D) of this section) they filed before the date of 
the election to the extent necessary to provide that no claim of a 
deduction is inconsistent with the succession under this section to 
unused losses from section 465 activities. The Commissioner may revoke 
or limit the effect of the election if either the debtor or the estate 
fails to satisfy the requirement of this paragraph (f)(2)(iii).
    (iv) Rules relating to closed years--(A) Estate succeeds to debtor's 
section 465 loss as of the commencement date. If, by reason of an 
election under this paragraph (f), this section applies to a case that 
was commenced in a closed year, the estate, nevertheless, succeeds to 
and takes into account the section 465 losses of the debtor (determined 
as of the first day of the debtor's taxable year in which the case 
commenced).
    (B) No reduction of unused section 465 loss for loss not claimed for 
a closed year. In determining a taxpayer's carryover of an unused 
section 465 loss to its taxable year following a closed year, a 
deduction that the taxpayer failed to claim in the closed year, if 
attributable to an unused section 465 loss to which the taxpayer 
succeeds under this section, is treated as a deduction that was not 
allowed under section 465.
    (C) Loss to which taxpayer succeeds reflects deductions of prior 
holder in a closed year. A loss to which a taxpayer would otherwise 
succeed under this section is reduced to the extent the loss was allowed 
to its prior holder for a closed year.
    (D) Closed year. For purposes of this paragraph (f)(2)(iv), a 
taxable year is closed to the extent the assessment of a deficiency or 
refund of an overpayment is prevented, on the date of the election and 
at all times thereafter, by any law or rule of law.
    (v) Manner of making election--(A) Chapter 7 cases. In a case under 
chapter 7 of title 11 of the United States Code, the election is made by 
obtaining the written consent of the bankruptcy trustee and filing a 
copy of the written consent with the returns (or amended returns) of the 
debtor and the estate for their first taxable years ending after 
November 9, 1992.
    (B) Chapter 11 cases. In a case under chapter 11 of title 11 of the 
United States Code, the election is made by incorporating the election 
into a bankruptcy plan that is confirmed by the bankruptcy court or into 
an order of such court and filing the pertinent portion of the plan or 
order with the returns (or amended returns) of the debtor and the estate 
for their first taxable years ending after November 9, 1992.
    (vi) Election is binding and irrevocable. Except as provided in 
paragraph (f)(2)(iii) of this section, the election, once made, is 
binding on both the debtor and the estate and is irrevocable.



Sec. 1.1398-3  Treatment of section 121 exclusion in individuals' 
title 11 cases.

    (a) Scope. This section applies to cases under chapter 7 or chapter 
11 of title 11 of the United States Code, but only if the debtor is an 
individual.
    (b) Definition and rules of general application. For purposes of 
this section, section 121 exclusion means the exclusion of gain from the 
sale or exchange of a debtor's principal residence available under 
section 121.
    (c) Estate succeeds to exclusion upon commencement of case. The 
bankruptcy estate succeeds to and takes into account the section 121 
exclusion with respect to the property transferred into the estate.
    (d) Effective date. This section is applicable for sales or 
exchanges on or after December 24, 2002.

[67 FR 78367, Dec. 24, 2002]

[[Page 837]]



Sec. 1.1400L(b)-1T  Additional first year depreciation deduction for 
qualified New York Liberty Zone property (temporary).

    (a) Scope. This section provides the rules for determining the 30-
percent additional first year depreciation deduction allowable under 
section 1400L(b) for qualified New York Liberty Zone property.
    (b) Definitions. For purposes of section 1400L(b) and this section, 
the definitions of the terms in Sec. 1.168(k)-1T(a)(2) apply and the 
following definitions also apply:
    (1) Building and structural components have the same meanings as 
those terms are defined in Sec. 1.48-1(e).
    (2) New York Liberty Zone is the area located on or south of Canal 
Street, East Broadway (east of its intersection with Canal Street), or 
Grand Street (east of its intersection with East Broadway) in the 
Borough of Manhattan in the City of New York, New York.
    (3) Nonresidential real property and residential rental property 
have the same meanings as those terms are defined in section 168(e)(2).
    (4) Real property is a building or its structural components, or 
other tangible real property except property described in section 
1245(a)(3)(B) (relating to depreciable property used as an integral part 
of a specified activity or as a specified facility), section 
1245(a)(3)(D) (relating to single purpose agricultural or horticultural 
structure), or section 1245(a)(3)(E) (relating to a storage facility 
used in connection with the distribution of petroleum or any primary 
product of petroleum).
    (c) Qualified New York Liberty Zone property--(1) In general. 
Qualified New York Liberty Zone property is depreciable property that--
    (i) Meets the requirements in Sec. 1.1400L(b)-1T(c)(2) (description 
of property);
    (ii) Meets the requirements in Sec. 1.1400L(b)-1T(c)(3) 
(substantial use);
    (iii) Meets the requirements in Sec. 1.1400L(b)-1T(c)(4) (original 
use);
    (iv) Meets the requirements in Sec. 1.1400L(b)-1T(c)(5) 
(acquisition of property by purchase); and
    (v) Meets the requirements in Sec. 1.1400L(b)-1T(c)(6) (placed-in-
service date).
    (2) Description of qualified New York Liberty Zone property--(i) In 
general. Depreciable property will meet the requirements of this 
paragraph (c)(2) if the property is--
    (A) Described in Sec. 1.168(k)-1T(b)(2)(i); or
    (B) Nonresidential real property or residential rental property 
depreciated under section 168, but only to the extent it rehabilitates 
real property damaged, or replaces real property destroyed or condemned, 
as a result of the terrorist attacks of September 11, 2001. Property is 
treated as replacing destroyed or condemned property if, as part of an 
integrated plan, the property replaces real property that is included in 
a continuous area that includes real property destroyed or condemned. 
For purposes of this section, real property is considered as destroyed 
or condemned only if an entire building or structure was destroyed or 
condemned as a result of the terrorist attacks of September 11, 2001. 
Otherwise, the real property is considered damaged real property. For 
example, if certain structural components (for example, walls, floors, 
and plumbing fixtures) of a building are damaged or destroyed as a 
result of the terrorist attacks of September 11, 2001, but the building 
is not destroyed or condemned, then only costs related to replacing the 
damaged or destroyed structural components qualify under this paragraph 
(c)(2)(i)(B).
    (ii) Property not eligible for additional first year depreciation 
deduction. Depreciable property will not meet the requirements of this 
paragraph (c)(2) if--
    (A) Section 168(k) or Sec. 1.168(k)-1T applies to the property; or
    (B) The property is described in section Sec. 1.168(k)-
1T(b)(2)(ii).
    (3) Substantial use. Depreciable property will meet the requirements 
of this paragraph (c)(3) if substantially all of the use of the property 
is in the New York Liberty Zone and is in the active conduct of a trade 
or business by the taxpayer in New York Liberty Zone. For purposes of 
this paragraph (c)(3), ``substantially all'' means 80 percent or more.
    (4) Original use. Depreciable property will meet the requirements of 
this paragraph (c)(4) if the original use of

[[Page 838]]

the property commences with the taxpayer in the New York Liberty Zone 
after September 10, 2001. The original use rules in Sec. 1.168(k)-
1T(b)(3) apply for purposes of this paragraph (c)(4). In addition, used 
property will satisfy the original use requirement in this paragraph 
(c)(4) so long as the property has not been previously used within the 
New York Liberty Zone.
    (5) Acquisition of property by purchase--(i) In general. Depreciable 
property will meet the requirements of this paragraph (c)(5) if the 
property is acquired by the taxpayer by purchase (as defined in section 
179(d) and Sec. 1.179-4(c)) after September 10, 2001, but only if no 
written binding contract for the acquisition of the property was in 
effect before September 11, 2001. For purposes of this paragraph (c)(5), 
the rules in Sec. 1.168(k)-1T(b)(4)(ii) (binding contract), the rules 
in Sec. 1.168(k)-1T(b)(4)(iii) (self-constructed property), and the 
rules in Sec. 1.168(k)-1T(b)(4)(iv) (disqualified transactions) apply. 
For purposes of the preceding sentence, the rules in Sec. 1.168(k)-
1T(b)(4)(iii) shall be applied without regard to `and before January 1, 
2005.'
    (ii) Exception for certain transactions. For purposes of this 
section, the new partnership of a transaction described in Sec. 
1.168(k)-1T(f)(1)(ii) (technical termination of a partnership) or the 
transferee of a transaction described in Sec. 1.168(k)-1T(f)(1)(iii) 
(section 168(i)(7) transactions) is deemed to acquire the depreciable 
property by purchase.
    (6) Placed-in-service date. Depreciable property will meet the 
requirements of this paragraph (c)(6) if the property is placed in 
service by the taxpayer on or before December 31, 2006. However, 
nonresidential real property and residential rental property described 
in paragraph (c)(2)(i)(B) of this section must be placed in service by 
the taxpayer on or before December 31, 2009. The rules in Sec. 
1.168(k)-1T(b)(5)(ii) (relating to sale-leaseback and syndication 
transactions), the rules in Sec. 1.168(k)-1T(b)(5)(iii) (relating to a 
technical termination of a partnership under section 708(b)(1)(B)), and 
the rules in Sec. 1.168(k)-1T(b)(5)(iv) (relating to section 168(i)(7) 
transactions) apply for purposes of this paragraph (c)(6).
    (d) Computation of depreciation deduction for qualified New York 
Liberty Zone property. The computation of the allowable additional first 
year depreciation deduction and the otherwise allowable depreciation 
deduction for qualified New York Liberty Zone property is made in 
accordance with the rules for qualified property in Sec. 1.168(k)-
1T(d)(1)(i) and (2).
    (e) Election not to deduct additional first year depreciation--(1) 
In general. A taxpayer may make an election not to deduct the 30-percent 
additional first year depreciation for any class of property that is 
qualified New York Liberty Zone property placed in service during the 
taxable year. If a taxpayer makes an election under this paragraph (e), 
the election applies to all qualified New York Liberty Zone property 
that is in the same class of property and placed in service in the same 
taxable year, and no additional first year depreciation deduction is 
allowable for the class of property.
    (2) Definition of class of property. For purposes of this paragraph 
(e), the term class of property means--
    (i) Except for the property described in paragraphs (e)(2)(ii), 
(iv), and (v) of this section, each class of property described in 
section 168(e) (for example, 5-year property);
    (ii) Water utility property as defined in section 168(e)(5) and 
depreciated under section 168;
    (iii) Computer software as defined in, and depreciated under, 
section 167(f)(1) and the regulations thereunder;
    (iv) Nonresidential real property as defined in paragraph (b)(3) of 
this section and as described in paragraph (c)(2)(B) of this section; or
    (v) Residential rental property as defined in paragraph (b)(3) of 
this section and as described in paragraph (c)(2)(B) of this section
    (3) Time and manner for making election--(i) Time for making 
election. Except as provided in paragraph (e)(4) of this section, the 
election specified in paragraph (e)(1) of this section must be made by 
the due date (including extensions) of the Federal tax return for the 
taxable year in which the qualified New York Liberty Zone property is 
placed in service by the taxpayer

[[Page 839]]

    (ii) Manner of making election. Except as provided in paragraph 
(e)(4) of this section, the election specified in paragraph (e)(1) of 
this section must be made in the manner prescribed on Form 4562, 
``Depreciation and Amortization,'' and its instructions. The election is 
made separately by each person owning qualified New York Liberty Zone 
property (for example, for each member of a consolidated group by the 
common parent of the group, by the partnership, or by the S 
corporation). If Form 4562 is revised or renumbered, any reference in 
this section to that form shall be treated as a reference to the revised 
or renumbered form.
    (4) Special rules for 2000 or 2001 returns. For the election 
specified in paragraph (e)(1) of this section for qualified New York 
Liberty Zone property placed in service by the taxpayer during the 
taxable year that included September 11, 2001, the taxpayer should refer 
to the guidance provided by the Internal Revenue Service for the time 
and manner of making this election on the 2000 or 2001 Federal tax 
return for the taxable year that included September 11, 2001 (for 
further guidance, see sections 3.03(3) and 4 of Rev. Proc. 2002-33 
(2002-1 C.B. 963), Rev. Proc. 2003-50 (2003-29 I.R.B. 119), and Sec. 
601.601(d)(2)(ii)(b) of this chapter).
    (5) Failure to make election. If a taxpayer does not make the 
election specified in paragraph (e)(1) of this section within the time 
and in the manner prescribed in paragraph (e)(3) or (e)(4) of this 
section, the amount of depreciation allowable for that property under 
section 167(f)(1) or under section 168, as applicable, must be 
determined for the placed-in-service year and for all subsequent taxable 
years by taking into account the additional first year depreciation 
deduction. Thus, the election specified in paragraph (e)(1) of this 
section shall not be made by the taxpayer in any other manner (for 
example, the election cannot be made through a request under section 
446(e) to change the taxpayer's method of accounting).
    (f) Special rules--(1) Property placed in service and disposed of in 
the same taxable year. Rules similar to those provided in Sec. 
1.168(k)-1T(f)(1) apply for purposes of this paragraph (f)(1).
    (2) Redetermination of basis. If the unadjusted depreciable basis 
(as defined in Sec. 1.168(k)-1T(a)(2)(iii)) of qualified New York 
Liberty Zone property is redetermined (for example, due to contingent 
purchase price or discharge of indebtedness) on or before December 31, 
2006 (or on or before December 31, 2009, for nonresidential real 
property and residential rental property described in paragraph 
(c)(2)(i)(B) of this section), the additional first year depreciation 
deduction allowable for the qualified New York Liberty Zone property is 
redetermined in accordance with the rules provided in Sec. 1.168(k)-
1T(f)(2).
    (3) Section 1245 and 1250 depreciation recapture. The rules provided 
in Sec. 1.168(k)-1T(f)(3) apply for purposes of this paragraph (f)(3).
    (4) Coordination with section 169. Rules similar to those provided 
in Sec. 1.168(k)-1T(f)(4) apply for purposes of this paragraph (f)(4).
    (5) Like-kind exchanges and involuntary conversions. This paragraph 
(f)(5) applies to acquired MACRS property (as defined in Sec. 1.168(k)-
1T(f)(5)(ii)(A)) or acquired computer software (as defined in Sec. 
1.168(k)-1T(f)(5)(ii)(C)) that is eligible for the additional first year 
depreciation deduction under section 1400L(b) at the time of replacement 
provided the time of replacement is after September 10, 2001, and on or 
before December 31, 2006, or in the case of acquired MACRS property or 
acquired computer software that is qualified New York Liberty Zone 
property described in paragraph (c)(2)(i)(B) of this section, the time 
of replacement is after September 10, 2001, and on or before December 
31, 2009. The rules and definitions similar to those provided in Sec. 
1.168(k)-1T(f)(5) apply for purposes of this paragraph (f)(5).
    (6) Change in use. Rules similar to those provided in Sec. 
1.168(k)-1T(f)(6) apply for purposes of this paragraph (f)(6).
    (7) Earnings and profits. The rule provided in Sec. 1.168(k)-
1T(f)(7) applies for purposes of this paragraph (f)(7).
    (8) Section 754 election. Rules similar to those provided in Sec. 
1.168(k)-1T(f)(9) apply for purposes of this paragraph (f)(8).
    (g) Effective date--(1) In general. Except as provided in paragraphs 
(g)(2)

[[Page 840]]

and (3) of this section, this section applies to qualified New York 
Liberty Zone property acquired by a taxpayer after September 10, 2001. 
This section expires on September 4, 2006.
    (2) Technical termination of a partnership or section 168(i)(7) 
transactions. If qualified New York Liberty Zone property is transferred 
in a technical termination of a partnership under section 708(b)(1)(B) 
or in a transaction described in section 168(i)(7) for a taxable year 
ending on or before September 8, 2003, and the additional first year 
depreciation deduction allowable for the property was not determined in 
accordance with paragraph (f)(1) of this section, the Internal Revenue 
Service will allow any reasonable method of determining the additional 
first year depreciation deduction allowable for the property in the year 
of the transaction that is consistently applied to the property by all 
parties to the transaction.
    (3) Like-kind exchanges and involuntary conversions. If a taxpayer 
did not claim on a federal tax return for a taxable year ending on or 
before September 8, 2003, the additional first year depreciation 
deduction for the remaining carryover basis of qualified New York 
Liberty Zone property acquired in a transaction described in section 
1031(a), (b), or (c), or in a transaction to which section 1033 applies 
and the taxpayer did not make an election not to deduct the additional 
first year depreciation deduction for the class of property applicable 
to the remaining carryover basis, the Internal Revenue Service will 
treat the taxpayer's method of not claiming the additional first year 
depreciation deduction for the remaining carryover basis as a 
permissible method of accounting and will treat the amount of the 
additional first year depreciation deduction allowable for the remaining 
carryover basis as being equal to zero, provided the taxpayer does not 
claim the additional first year depreciation deduction for the remaining 
carryover basis in accordance with paragraph (g)(4)(ii) of this section.
    (4) Change in method of accounting--(i) Special rules for 2000 or 
2001 returns. If a taxpayer did not claim on the federal tax return for 
the taxable year that included September 11, 2001, any additional first 
year depreciation deduction for a class of property that is qualified 
New York Liberty Zone property and did not make an election not to 
deduct the additional first year depreciation deduction for that class 
of property, the taxpayer should refer to the guidance provided by the 
Internal Revenue Service for the time and manner of claiming the 
additional first year depreciation deduction for the class of property 
(for further guidance, see section 4 of Rev. Proc. 2002-33 (2002-1 C.B. 
963), Rev. Proc. 2003-50 (2003-29 I.R.B. 119), and Sec. 
601.601(d)(2)(ii)(b) of this chapter).
    (ii) Like-kind exchanges and involuntary conversions. If a taxpayer 
did not claim on a federal tax return for any taxable year ending on or 
before September 8, 2003, the additional first year depreciation 
deduction allowable for the remaining carryover basis of qualified New 
York Liberty Zone property acquired in a transaction described in 
section 1031(a), (b), or (c), or in a transaction to which section 1033 
applies and the taxpayer did not make an election not to deduct the 
additional first year depreciation deduction for the class of property 
applicable to the remaining carryover basis, the taxpayer may claim the 
additional first year depreciation deduction allowable for the remaining 
carryover basis in accordance with paragraph (f)(5) of this section 
either--
    (A) By filing an amended return (or a qualified amended return, if 
applicable (for further guidance, see Rev. Proc. 94-69 (1994-2 C.B. 804) 
and Sec. 601.601(d)(2)(ii)(b) of this chapter)) on or before December 
31, 2003, for the year of replacement and any affected subsequent 
taxable year; or,
    (B) By following the applicable administrative procedures issued 
under Sec. 1.446-1(e)(3)(ii) for obtaining the Commissioner's automatic 
consent to a change in method of accounting (for further guidance, see 
Rev. Proc. 2002-9 (2002-1 C.B. 327) and Sec. 601.601(d)(2)(ii)(b) of 
this chapter).

[T.D. 9091, 68 FR 53004, Sept. 8, 2003; T.D. 9091, 68 FR 63734, Nov. 10, 
2003]

[[Page 841]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  Table of OMB Control Numbers
  List of CFR Sections Affected

[[Page 843]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2006)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100-199)
        II  Office of Management and Budget Circulars and Guidance 
                (200-299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 844]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)

[[Page 845]]

    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Part 9901)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)

[[Page 846]]

     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 847]]

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

[[Page 848]]

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

[[Page 849]]

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 850]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 851]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)

[[Page 852]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 853]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)

[[Page 854]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)

[[Page 855]]

       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)

[[Page 856]]

       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 857]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 858]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees' 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)

[[Page 859]]

        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 860]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 861]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2006)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 862]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 863]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, II
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 864]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 865]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Defense Acquisition Regulations System          48, 2
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives and Records Administration
[[Page 866]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50

[[Page 867]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52

[[Page 868]]

Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII

[[Page 869]]

Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 871]]







                      Table of OMB Control Numbers



The OMB control numbers for chapter I of title 26 were consolidated into 
Sec. Sec.  601.9000 and 602.101 at 50 FR 10221, Mar. 14, 1985. At 61 FR 
58008, Nov. 12, 1996, Sec.  601.9000 was removed. Section 602.101 is 
reprinted below for the convenience of the user.

Sec.  602.101  OMB Control numbers.

    (a) Purpose. This part collects and displays the control numbers 
assigned to collections of information in Internal Revenue Service 
regulations by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1980. The Internal Revenue Service intends 
that this part comply with the requirements of Sec. Sec.  1320.7(f), 
1320.12, 1320.13, and 1320.14 of 5 CFR part 1320 (OMB regulations 
implementing the Paperwork Reduction Act), for the display of control 
numbers assigned by OMB to collections of information in Internal 
Revenue Service regulations. This part does not display control numbers 
assigned by the Office of Management and Budget to collections of 
information of the Bureau of Alcohol, Tobacco, and Firearms.
    (b) Display.

------------------------------------------------------------------------
                                                             Current OMB
     CFR part or section where identified and described      control No.
------------------------------------------------------------------------
1.1(h)-1(e)................................................    1545-1654
1.23-5.....................................................    1545-0074
1.25-1T....................................................    1545-0922
                                                               1545-0930
1.25-2T....................................................    1545-0922
                                                               1545-0930
1.25-3T....................................................    1545-0922
                                                               1545-0930
1.25-4T....................................................    1545-0922
1.25-5T....................................................    1545-0922
1.25-6T....................................................    1545-0922
1.25-7T....................................................    1545-0922
1.25-8T....................................................    1545-0922
1.25A-1....................................................    1545-1630
1.28-1.....................................................    1545-0619
1.31-2.....................................................    1545-0074
1.32-2.....................................................    1545-0074
1.32-3.....................................................    1545-1575
1.37-1.....................................................    1545-0074
1.37-3.....................................................    1545-0074
1.41-2.....................................................    1545-0619
1.41-3.....................................................    1545-0619
1.41-4A....................................................    1545-0074
1.41-4 (b) and (c).........................................    1545-0074
1.41-8(b)..................................................    1545-1625
1.41-8(d)..................................................    1545-0732
1.41-9.....................................................    1545-0619
1.42-1T....................................................    1545-0984
                                                               1545-0988
1.42-2.....................................................    1545-1005
1.42-5.....................................................    1545-1357
1.42-6.....................................................    1545-1102
1.42-8.....................................................    1545-1102
1.42-10....................................................    1545-1102
1.42-13....................................................    1545-1357
1.42-14....................................................    1545-1423
1.42-17....................................................    1545-1357
1.43-3(a)(3)...............................................    1545-1292
1.43-3(b)(3)...............................................    1545-1292
1.44A-1....................................................    1545-0068
1.44A-3....................................................    1545-0074
1.44B-1....................................................    1545-0219
1.45D-1....................................................    1545-1765
1.46-1.....................................................    1545-0123
                                                               1545-0155
1.46-3.....................................................    1545-0155
1.46-4.....................................................    1545-0155
1.46-5.....................................................    1545-0155
1.46-6.....................................................    1545-0155
1.46-8.....................................................    1545-0155
1.46-9.....................................................    1545-0155
1.46-10....................................................    1545-0118
1.46-11....................................................    1545-0155
1.47-1.....................................................    1545-0166
                                                               1545-0155
1.47-3.....................................................    1545-0166
                                                               1545-0155
1.47-4.....................................................    1545-0123
1.47-5.....................................................    1545-0092
1.47-6.....................................................    1545-0099
1.48-3.....................................................    1545-0155
1.48-4.....................................................    1545-0808
                                                               1545-0155
1.48-5.....................................................    1545-0155
1.48-6.....................................................    1545-0155
1.48-12....................................................    1545-0155
                                                               1545-1783
1.50A-1....................................................    1545-0895
1.50A-2....................................................    1545-0895
1.50A-3....................................................    1545-0895
1.50A-4....................................................    1545-0895
1.50A-5....................................................    1545-0895
1.50A-6....................................................    1545-0895
1.50A-7....................................................    1545-0895
1.50B-1....................................................    1545-0895
1.50B-2....................................................    1545-0895
1.50B-3....................................................    1545-0895
1.50B-4....................................................    1545-0895
1.50B-5....................................................    1545-0895
1.51-1.....................................................    1545-0219
                                                               1545-0241
                                                               1545-0244
                                                               1545-0797
1.52-2.....................................................    1545-0219

[[Page 872]]

 
1.52-3.....................................................    1545-0219
1.56-1.....................................................    1545-0123
1.56(g)-1..................................................    1545-1233
1.56A-1....................................................    1545-0227
1.56A-2....................................................    1545-0227
1.56A-3....................................................    1545-0227
1.56A-4....................................................    1545-0227
1.56A-5....................................................    1545-0227
1.57-5.....................................................    1545-0227
1.58-1.....................................................    1545-0175
1.58-9(c)(5)(iii)(B).......................................    1545-1093
1.58-9(e)(3)...............................................    1545-1093
1.59-1.....................................................    1545-1903
1.61-2.....................................................    1545-0771
1.61-2T....................................................    1545-0771
1.61-4.....................................................    1545-0187
1.61-15....................................................    1545-0074
1.62-2.....................................................    1545-1148
1.63-1.....................................................    1545-0074
1.66-4.....................................................    1545-1770
1.67-2T....................................................    1545-0110
1.67-3.....................................................    1545-1018
1.67-3T....................................................    1545-0118
1.71-1T....................................................    1545-0074
1.72-4.....................................................    1545-0074
1.72-6.....................................................    1545-0074
1.72-9.....................................................    1545-0074
1.72-17....................................................    1545-0074
1.72-17A...................................................    1545-0074
1.72-18....................................................    1545-0074
1.74-1.....................................................    1545-1100
1.79-2.....................................................    1545-0074
1.79-3.....................................................    1545-0074
1.83-2.....................................................    1545-0074
1.83-5.....................................................    1545-0074
1.83-6.....................................................    1545-1448
1.103-10...................................................    1545-0123
                                                               1545-0940
1.103-15AT.................................................    1545-0720
1.103-18...................................................    1545-1226
1.103(n)-2T................................................    1545-0874
1.103(n)-4T................................................    1545-0874
1.103A-2...................................................    1545-0720
1.105-4....................................................    1545-0074
1.105-5....................................................    1545-0074
1.105-6....................................................    1545-0074
1.108-4....................................................    1545-1539
1.108-5....................................................    1545-1421
1.110-1....................................................    1545-1661
1.117-5....................................................    1545-0869
1.118-2....................................................    1545-1639
1.119-1....................................................    1545-0067
1.120-3....................................................    1545-0057
1.121-1....................................................    1545-0072
1.121-2....................................................    1545-0072
1.121-3....................................................    1545-0072
1.121-4....................................................    1545-0072
                                                               1545-0091
1.121-5....................................................    1545-0072
1.127-2....................................................    1545-0768
1.132-1T...................................................    1545-0771
1.132-2....................................................    1545-0771
1.132-2T...................................................    1545-0771
1.132-5....................................................    1545-0771
1.132-5T...................................................    1545-0771
                                                               1545-1098
1.132-9(b).................................................    1545-1676
1.141-1....................................................    1545-1451
1.141-12...................................................    1545-1451
1.142-2....................................................    1545-1451
1.142(f)(4)-1..............................................    1545-1730
1.148-0....................................................    1545-1098
1.148-1....................................................    1545-1098
1.148-2....................................................    1545-1098
                                                               1545-1347
1.148-3....................................................    1545-1098
                                                               1545-1347
1.148-4....................................................    1545-1098
                                                               1545-1347
1.148-5....................................................    1545-1098
                                                               1545-1490
1.148-6....................................................    1545-1098
                                                               1545-1451
1.148-7....................................................    1545-1098
                                                               1545-1347
1.148-8....................................................    1545-1098
1.148-11...................................................    1545-1098
                                                               1545-1347
1.149(e)-1.................................................    1545-0720
1.150-1....................................................    1545-1347
1.151-1....................................................    1545-0074
1.152-3....................................................    1545-0071
                                                               1545-1783
1.152-4....................................................    1545-0074
1.152-4T...................................................    1545-0074
1.162-1....................................................    1545-0139
1.162-2....................................................    1545-0139
1.162-3....................................................    1545-0139
1.162-4....................................................    1545-0139
1.162-5....................................................    1545-0139
1.162-6....................................................    1545-0139
1.162-7....................................................    1545-0139
1.162-8....................................................    1545-0139
1.162-9....................................................    1545-0139
1.162-10...................................................    1545-0139
1.162-11...................................................    1545-0139
1.162-12...................................................    1545-0139
1.162-13...................................................    1545-0139
1.162-14...................................................    1545-0139
1.162-15...................................................    1545-0139
1.162-16...................................................    1545-0139
1.162-17...................................................    1545-0139
1.162-18...................................................    1545-0139
1.162-19...................................................    1545-0139
1.162-20...................................................    1545-0139
1.162-27...................................................    1545-1466
1.163-5....................................................    1545-0786
                                                               1545-1132
1.163-8T...................................................    1545-0995
1.163-10T..................................................    1545-0074
1.163-13...................................................    1545-1491
1.163(d)-1.................................................    1545-1421
1.165-1....................................................    1545-0177
1.165-2....................................................    1545-0177
1.165-3....................................................    1545-0177
1.165-4....................................................    1545-0177
1.165-5....................................................    1545-0177
1.165-6....................................................    1545-0177
1.165-7....................................................    1545-0177
1.165-8....................................................    1545-0177
1.165-9....................................................    1545-0177
1.165-10...................................................    1545-0177
1.165-11...................................................    1545-0074
                                                               1545-0177
                                                               1545-0786
1.165-12...................................................    1545-0786
1.166-1....................................................    1545-0123
1.166-2....................................................    1545-1254
1.166-4....................................................    1545-0123
1.166-10...................................................    1545-0123
1.167(a)-5T................................................    1545-1021
1.167(a)-7.................................................    1545-0172
1.167(a)-11................................................    1545-0152
                                                               1545-0172

[[Page 873]]

 
1.167(a)-12................................................    1545-0172
1.167(d)-1.................................................    1545-0172
1.167(e)-1.................................................    1545-0172
1.167(f)-11................................................    1545-0172
1.167(l)-1.................................................    1545-0172
1.168(d)-1.................................................    1545-1146
1.168(f)(8)-1T.............................................    1545-0923
1.168(i)-1.................................................    1545-1331
1.168-5....................................................    1545-0172
1.169-4....................................................    1545-0172
1.170-1....................................................    1545-0074
1.170-2....................................................    1545-0074
1.170-3....................................................    1545-0123
1.170A-1...................................................    1545-0074
1.170A-2...................................................    1545-0074
1.170A-4(A)(b).............................................    1545-0123
1.170A-8...................................................    1545-0074
1.170A-9...................................................    1545-0052
                                                               1545-0074
1.170A-11..................................................    1545-0123
                                                               1545-0074
1.170A-11T.................................................    1545-1868
1.170A-12..................................................    1545-0020
                                                               1545-0074
1.170A-13..................................................    1545-0074
                                                               1545-0754
                                                               1545-0908
                                                               1545-1431
1.170A-13(f)...............................................    1545-1464
1.170A-14..................................................    1545-0763
1.171-4....................................................    1545-1491
1.171-5....................................................    1545-1491
1.172-1....................................................    1545-0172
1.172-13...................................................    1545-0863
1.173-1....................................................    1545-0172
1.174-3....................................................    1545-0152
1.174-4....................................................    1545-0152
1.175-3....................................................    1545-0187
1.175-6....................................................    1545-0152
1.177-1....................................................    1545-0172
1.179-2....................................................    1545-1201
1.179-3....................................................    1545-1201
1.179-5....................................................    1545-0172
                                                               1545-1201
1.180-2....................................................    1545-0074
1.182-6....................................................    1545-0074
1.183-1....................................................    1545-0195
1.183-2....................................................    1545-0195
1.183-3....................................................    1545-0195
1.183-4....................................................    1545-0195
1.190-3....................................................    1545-0074
1.194-2....................................................    1545-0735
1.194-4....................................................    1545-0735
1.195-1....................................................    1545-1582
1.197-1T...................................................    1545-1425
1.197-2....................................................    1545-1671
1.213-1....................................................    1545-0074
1.215-1T...................................................    1545-0074
1.217-2....................................................    1545-0182
1.243-3....................................................    1545-0123
1.243-4....................................................    1545-0123
1.243-5....................................................    1545-0123
1.248-1....................................................    1545-0172
1.261-1....................................................    1545-1041
1.263(a)-5.................................................    1545-1870
1.263(e)-1.................................................    1545-0123
1.263A-1...................................................    1545-0987
1.263A-1T..................................................    1545-0187
1.263A-2...................................................    1545-0987
1.263A-3...................................................    1545-0987
                                                               1545-0987
1.263A-8(b)(2)(iii)........................................    1545-1265
1.263A-9(d)(1).............................................    1545-1265
1.263A-9(f)(1)(ii).........................................    1545-1265
1.263A-9(f)(2)(iv).........................................    1545-1265
1.263A-9(g)(2)(iv)(C)......................................    1545-1265
1.263A-9(g)(3)(iv).........................................    1545-1265
1.265-1....................................................    1545-0074
1.265-2....................................................    1545-0123
1.266-1....................................................    1545-0123
1.267(f)-1.................................................    1545-0885
1.268-1....................................................    1545-0184
1.274-1....................................................    1545-0139
1.274-2....................................................    1545-0139
1.274-3....................................................    1545-0139
1.274-4....................................................    1545-0139
1.274-5....................................................    1545-0771
1.274-5A...................................................    1545-0139
                                                               1545-0771
1.274-5T...................................................    1545-0074
                                                               1545-0172
                                                               1545-0771
1.274-6....................................................    1545-0139
                                                               1545-0771
1.274-6T...................................................    1545-0074
                                                               1545-0771
1.274-7....................................................    1545-0139
1.274-8....................................................    1545-0139
1.279-6....................................................    1545-0123
1.280C-4...................................................    1545-1155
1.280F-3T..................................................    1545-0074
1.280G-1...................................................    1545-1851
1.281-4....................................................    1545-0123
1.302-4....................................................    1545-0074
1.305-3....................................................    1545-0123
1.305-5....................................................    1545-1438
1.307-2....................................................    1545-0074
1.312-15...................................................    1545-0172
1.316-1....................................................    1545-0123
1.331-1....................................................    1545-0074
1.332-4....................................................    1545-0123
1.332-6....................................................    1545-0123
1.337(d)-1.................................................    1545-1160
1.337(d)-2.................................................    1545-1160
1.337(d)-2.................................................    1545-1774
1.337(d)-4.................................................    1545-1633
1.337(d)-5.................................................    1545-1672
1.337(d)-6.................................................    1545-1672
1.337(d)-7.................................................    1545-1672
1.338-2....................................................    1545-1658
1.338-5....................................................    1545-1658
1.338-10...................................................    1545-1658
1.338(h)(10)-1.............................................    1545-1658
1.341-7....................................................    1545-0123
1.351-3....................................................    1545-0074
1.355-5....................................................    1545-0123
1.362-2....................................................    1545-0123
1.367(a)-1T................................................    1545-0026
1.367(a)-2T................................................    1545-0026
1.367(a)-3.................................................    1545-0026
                                                               1545-1478
1.367(a)-6T................................................    1545-0026
1.367(a)-8.................................................    1545-1271
1.367(b)-1.................................................    1545-1271
1.367(b)-3T................................................    1545-1666
1.367(d)-1T................................................    1545-0026
1.367(e)-1.................................................    1545-1487
1.367(e)-2.................................................    1545-1487
1.368-1....................................................    1545-1691
1.368-3....................................................    1545-0123
1.371-1....................................................    1545-0123
1.371-2....................................................    1545-0123
1.374-3....................................................    1545-0123
1.381(b)-1.................................................    1545-0123

[[Page 874]]

 
1.381(c)(4)-1..............................................    1545-0123
                                                               1545-0152
                                                               1545-0879
1.381(c)(5)-1..............................................    1545-0123
                                                               1545-0152
1.381(c)(6)-1..............................................    1545-0123
                                                               1545-0152
1.381(c)(8)-1..............................................    1545-0123
1.381(c)(10)-1.............................................    1545-0123
1.381(c)(11)-1(k)..........................................    1545-0123
1.381(c)(13)-1.............................................    1545-0123
1.381(c)(17)-1.............................................    1545-0045
1.381(c)(25)-1.............................................    1545-0045
1.382-1T...................................................    1545-0123
1.382-2....................................................    1545-0123
1.382-2T...................................................    1545-0123
1.382-3....................................................    1545-1281
                                                               1545-1345
1.382-4....................................................    1545-1120
1.382-6....................................................    1545-1381
1.382-8....................................................    1545-1434
1.382-9....................................................    1545-1260
                                                               1545-1120
                                                               1545-1275
                                                               1545-1324
1.382-91...................................................    1545-1260
                                                               1545-1324
1.383-1....................................................    1545-0074
                                                               1545-1120
1.401-1....................................................    1545-0020
                                                               1545-0197
                                                               1545-0200
                                                               1545-0534
                                                               1545-0710
1.401(a)-11................................................    1545-0710
1.401(a)-20................................................    1545-0928
1.401(a)-31................................................    1545-1341
1.401(a)-50................................................    1545-0710
1.401(a)(31)-1.............................................    1545-1341
1.401(b)-1.................................................    1545-0197
1.401(f)-1.................................................    1545-0710
1.401(k)-1.................................................    1545-1039
                                                               1545-1069
                                                               1545-1669
                                                               1545-1930
1.401(k)-2.................................................    1545-1669
1.401(k)-3.................................................    1545-1669
1.401(k)-4.................................................    1545-1669
1.401(m)-3.................................................    1545-1699
1.401(a)(9)-1..............................................    1545-1573
1.401(a)(9)-3..............................................    1545-1466
1.401(a)(9)-4..............................................    1545-1573
1.401-12(n)................................................    1545-0806
1.401-14...................................................    1545-0710
1.402(c)-2.................................................    1545-1341
1.402(f)-1.................................................    1545-1341
                                                               1545-1632
1.403(b)-1.................................................    1545-0710
1.403(b)-2.................................................    1545-1341
1.403(b)-3.................................................    1545-0996
1.404(a)-4.................................................    1545-0710
1.404(a)-12................................................    1545-0710
1.404A-2...................................................    1545-0123
1.404A-6...................................................    1545-0123
1.408-2....................................................    1545-0390
1.408-5....................................................    1545-0747
1.408-6....................................................    1545-0203
                                                               1545-0390
1.408-7....................................................    1545-0119
1.408(q)-1.................................................    1545-1841
1.408A-2...................................................    1545-1616
1.408A-4...................................................    1545-1616
1.408A-5...................................................    1545-1616
1.408A-7...................................................    1545-1616
1.410(a)-2.................................................    1545-0710
1.410(d)-1.................................................    1545-0710
1.411(a)-11................................................    1545-1471
                                                               1545-1632
1.411(d)-4.................................................    1545-1545
1.411(d)-6.................................................    1545-1477
1.412(b)-5.................................................    1545-0710
1.412(c)(1)-2..............................................    1545-0710
1.412(c)(2)-1..............................................    1545-0710
1.412(c)(3)-2..............................................    1545-0710
1.414(c)-5.................................................    1545-0797
1.414(r)-1.................................................    1545-1221
1.415-2....................................................    1545-0710
1.415-6....................................................    1545-0710
1.417(a)(3)-1..............................................    1545-0928
1.417(e)-1.................................................    1545-1471
                                                               1545-1724
1.417(e)-1T................................................    1545-1471
1.419A(f)(6)-1.............................................    1545-1795
1.422-1....................................................    1545-0820
1.441-2....................................................    1545-1748
1.442-1....................................................    1545-0074
                                                               1545-0123
                                                               1545-0134
                                                               1545-0152
                                                               1545-0820
                                                               1545-1748
1.443-1....................................................    1545-0123
1.444-3T...................................................    1545-1036
1.444-4....................................................    1545-1591
1.446-1....................................................    1545-0074
                                                               1545-0152
1.446-4(d).................................................    1545-1412
1.448-1(g).................................................    1545-0152
1.448-1(h).................................................    1545-0152
1.448-1(i).................................................    1545-0152
1.448-2T...................................................    1545-0152
                                                               1545-1855
1.451-1....................................................    1545-0091
1.451-4....................................................    1545-0123
1.451-5....................................................    1545-0074
1.451-6....................................................    1545-0074
1.451-7....................................................    1545-0074
1.453-1....................................................    1545-0152
1.453-2....................................................    1545-0152
1.453-8....................................................    1545-0152
                                                               1545-0228
1.453-10...................................................    1545-0152
1.453A-1...................................................    1545-0152
                                                               1545-1134
1.453A-2...................................................    1545-0152
                                                               1545-1134
1.453A-3...................................................    1545-0963
1.454-1....................................................    1545-0074
1.455-2....................................................    1545-0152
1.455-6....................................................    1545-0123
1.456-2....................................................    1545-0123
1.456-6....................................................    1545-0123
1.456-7....................................................    1545-0123
1.457-8....................................................    1545-1580
1.458-1....................................................    1545-0879
1.458-2....................................................    1545-0152
1.460-1....................................................    1545-1650
1.460-6....................................................    1545-1031
                                                               1545-1572
                                                               1545-1732
1.461-1....................................................    1545-0074
1.461-2....................................................    1545-0096
1.461-4....................................................    1545-0917
1.461-5....................................................    1545-0917

[[Page 875]]

 
1.463-1T...................................................    1545-0916
1.465-1T...................................................    1545-0712
1.466-1T...................................................    1545-0152
1.466-4....................................................    1545-0152
1.468A-3...................................................    1545-1269
                                                               1545-1378
                                                               1545-1511
1.468A-4...................................................    1545-0954
1.468A-7...................................................    1545-0954
1.468A-8...................................................    1545-1269
1.468B-1...................................................    1545-1631
1.468B-9...................................................    1545-1631
1.468B-1(j)................................................    1545-1299
1.468B-2(k)................................................    1545-1299
1.468B-2(l)................................................    1545-1299
1.468B-3(b)................................................    1545-1299
1.468B-3(e)................................................    1545-1299
1.468B-5(b)................................................    1545-1299
1.469-1....................................................    1545-1008
1.469-2T...................................................    1545-0712
                                                               1545-1091
1.469-4T...................................................    1545-0985
                                                               1545-1037
1.469-7....................................................    1545-1244
1.471-2....................................................    1545-0123
1.471-5....................................................    1545-0123
1.471-6....................................................    1545-0123
1.471-8....................................................    1545-0123
1.471-11...................................................    1545-0123
                                                               1545-0152
1.472-1....................................................    1545-0042
                                                               1545-0152
1.472-2....................................................    1545-0152
1.472-3....................................................    1545-0042
1.472-5....................................................    1545-0152
1.472-8....................................................    1545-0028
                                                               1545-0042
                                                               1545-1767
1.475(b)-4.................................................    1545-1496
1.481-4....................................................    1545-0152
1.481-5....................................................    1545-0152
1.482-1....................................................    1545-1364
1.482-4....................................................    1545-1364
1.482-7....................................................    1545-1364
                                                               1545-1794
1.501(a)-1.................................................    1545-0056
                                                               1545-0057
1.501(c)(3)-1..............................................    1545-0056
1.501(c)(9)-5..............................................    1545-0047
1.501(c)(17)-3.............................................    1545-0047
1.501(e)-1.................................................    1545-0814
1.503(c)-1.................................................    1545-0047
                                                               1545-0052
1.505(c)-1T................................................    1545-0916
1.507-1....................................................    1545-0052
1.507-2....................................................    1545-0052
1.508-1....................................................    1545-0052
                                                               1545-0056
1.509(a)-3.................................................    1545-0047
1.509(a)-5.................................................    1545-0047
1.509(c)-1.................................................    1545-0052
1.512(a)-1.................................................    1545-0687
1.512(a)-4.................................................    1545-0047
                                                               1545-0687
1.521-1....................................................    1545-0051
                                                               1545-0058
1.527-2....................................................    1545-0129
1.527-5....................................................    1545-0129
1.527-6....................................................    1545-0129
1.527-9....................................................    1545-0129
1.528-8....................................................    1545-0127
1.533-2....................................................    1545-0123
1.534-2....................................................    1545-0123
1.542-3....................................................    1545-0123
1.545-2....................................................    1545-0123
1.545-3....................................................    1545-0123
1.547-2....................................................    1545-0045
                                                               1545-0123
1.547-3....................................................    1545-0123
1.551-4....................................................    1545-0074
1.552-3....................................................    1545-0099
1.552-4....................................................    1545-0099
1.552-5....................................................    1545-0099
1.556-2....................................................    1545-0704
1.561-1....................................................    1545-0044
1.561-2....................................................    1545-0123
1.562-3....................................................    1545-0123
1.563-2....................................................    1545-0123
1.564-1....................................................    1545-0123
1.565-1....................................................    1545-0043
                                                               1545-0123
1.565-2....................................................    1545-0043
1.565-3....................................................    1545-0043
1.565-5....................................................    1545-0043
1.565-6....................................................    1545-0043
1.585-1....................................................    1545-0123
1.585-3....................................................    1545-0123
1.585-8....................................................    1545-1290
1.586-2....................................................    1545-0123
1.593-1....................................................    1545-0123
1.593-6....................................................    1545-0123
1.593-6A...................................................    1545-0123
1.593-7....................................................    1545-0123
1.595-1....................................................    1545-0123
1.597-2....................................................    1545-1300
1.597-4....................................................    1545-1300
1.597-6....................................................    1545-1300
1.597-7....................................................    1545-1300
1.611-2....................................................    1545-0099
1.611-3....................................................    1545-0007
                                                               1545-0099
                                                               1545-1784
1.612-4....................................................    1545-0074
1.612-5....................................................    1545-0099
1.613-3....................................................    1545-0099
1.613-4....................................................    1545-0099
1.613-6....................................................    1545-0099
1.613-7....................................................    1545-0099
1.613A-3...................................................    1545-0919
1.613A-3(e)................................................    1545-1251
1.613A-3(l)................................................    1545-0919
1.613A-5...................................................    1545-0099
1.613A-6...................................................    1545-0099
1.614-2....................................................    1545-0099
1.614-3....................................................    1545-0099
1.614-5....................................................    1545-0099
1.614-6....................................................    1545-0099
1.614-8....................................................    1545-0099
1.617-1....................................................    1545-0099
1.617-3....................................................    1545-0099
1.617-4....................................................    1545-0099
1.631-1....................................................    1545-0007
1.631-2....................................................    1545-0007
1.641(b)-2.................................................    1545-0092
1.642(c)-1.................................................    1545-0092
1.642(c)-2.................................................    1545-0092
1.642(c)-5.................................................    1545-0074
1.642(c)-6.................................................    1545-0020
                                                               1545-0074
                                                               1545-0092
1.642(g)-1.................................................    1545-0092
1.642(i)-1.................................................    1545-0092
1.645-1....................................................    1545-1578
1.663(b)-2.................................................    1545-0092

[[Page 876]]

 
1.664-1....................................................    1545-0196
1.664-1(a)(7)..............................................    1545-1536
1.664-2....................................................    1545-0196
1.664-3....................................................    1545-0196
1.664-4....................................................    1545-0020
                                                               1545-0196
1.665(a)-0A through
1.665(g)-2A................................................    1545-0192
1.666(d)-1A................................................    1545-0092
1.671-4....................................................    1545-1442
1.671-5....................................................    1545-1540
1.701-1....................................................    1545-0099
1.702-1....................................................    1545-0074
1.703-1....................................................    1545-0099
1.704-2....................................................    1545-1090
1.706-1....................................................    1545-0099
                                                               1545-0074
                                                               1545-0134
1.706-1T...................................................    1545-0099
1.707-3(c)(2)..............................................    1545-1243
1.707-5(a)(7)(ii)..........................................    1545-1243
1.707-6(c).................................................    1545-1243
1.707-8....................................................    1545-1243
1.708-1....................................................    1545-0099
1.732-1....................................................    1545-0099
                                                               1545-1588
1.736-1....................................................    1545-0074
1.743-1....................................................    1545-0074
                                                               1545-1588
1.751-1....................................................    1545-0074
                                                               1545-0099
                                                               1545-0941
1.752-5....................................................    1545-1090
1.752-7....................................................    1545-1843
1.754-1....................................................    1545-0099
1.755-1....................................................    1545-0099
1.761-2....................................................    1545-1338
1.801-1....................................................    1545-0123
                                                               1545-0128
1.801-3....................................................    1545-0123
1.801-5....................................................    1545-0128
1.801-8....................................................    1545-0128
1.804-4....................................................    1545-0128
1.811-2....................................................    1545-0128
1.812-2....................................................    1545-0128
1.815-6....................................................    1545-0128
1.818-4....................................................    1545-0128
1.818-5....................................................    1545-0128
1.818-8....................................................    1545-0128
1.819-2....................................................    1545-0128
1.821-1....................................................    1545-1027
1.821-3....................................................    1545-1027
1.821-4....................................................    1545-1027
1.822-5....................................................    1545-1027
1.822-6....................................................    1545-1027
1.822-8....................................................    1545-1027
1.822-9....................................................    1545-1027
1.823-2....................................................    1545-1027
1.823-5....................................................    1545-1027
1.823-6....................................................    1545-1027
1.825-1....................................................    1545-1027
1.826-1....................................................    1545-1027
1.826-2....................................................    1545-1027
1.826-3....................................................    1545-1027
1.826-4....................................................    1545-1027
1.826-6....................................................    1545-1027
1.831-3....................................................    1545-0123
1.831-4....................................................    1545-0123
1.832-4....................................................    1545-1227
1.832-5....................................................    1545-0123
1.848-2(g)(8)..............................................    1545-1287
1.848-2(h)(3)..............................................    1545-1287
1.848-2(i)(4)..............................................    1545-1287
1.851-2....................................................    1545-1010
1.851-4....................................................    1545-0123
1.852-1....................................................    1545-0123
1.852-4....................................................    1545-0123
                                                               1545-0145
1.852-6....................................................    1545-0123
                                                               1545-0144
1.852-7....................................................    1545-0074
1.852-9....................................................    1545-0074
                                                               1545-0123
                                                               1545-0144
                                                               1545-0145
                                                               1545-1783
1.852-11...................................................    1545-1094
1.853-3....................................................    1545-0123
1.853-4....................................................    1545-0123
1.854-2....................................................    1545-0123
1.855-1....................................................    1545-0123
1.856-2....................................................    1545-0123
                                                               1545-1004
1.856-6....................................................    1545-0123
1.856-7....................................................    1545-0123
1.856-8....................................................    1545-0123
1.857-8....................................................    1545-0123
1.857-9....................................................    1545-0074
1.858-1....................................................    1545-0123
1.860-2....................................................    1545-0045
1.860-4....................................................    1545-0045
                                                               1545-1054
                                                               1545-1057
1.860E-1...................................................    1545-1675
1.860E-2(a)(5).............................................    1545-1276
1.860E-2(a)(7).............................................    1545-1276
1.860E-2(b)(2).............................................    1545-1276
1.861-2....................................................    1545-0089
1.861-3....................................................    1545-0089
1.861-4....................................................    1545-1900
1.861-8....................................................    1545-0126
1.861-8(e)(6) and (g)......................................    1545-1224
1.861-9T...................................................    1545-0121
                                                               1545-1072
1.861-18...................................................    1545-1594
1.863-1....................................................    1545-1476
1.863-3....................................................    1545-1476
                                                               1545-1556
1.863-3A...................................................    1545-0126
1.863-4....................................................    1545-0126
1.863-7....................................................    1545-0132
1.864-4....................................................    1545-0126
1.871-1....................................................    1545-0096
1.871-6....................................................    1545-0795
1.871-7....................................................    1545-0089
1.871-10...................................................    1545-0089
                                                               1545-0165
1.874-1....................................................    1545-0089
1.881-4....................................................    1545-1440
1.882-4....................................................    1545-0126
1.883-1....................................................    1545-1677
1.883-2....................................................    1545-1677
1.883-3....................................................    1545-1677
1.883-4....................................................    1545-1677
1.883-5....................................................    1545-1677
1.884-0....................................................    1545-1070
1.884-1....................................................    1545-1070
1.884-2....................................................    1545-1070
1.884-2T...................................................    1545-0126
                                                               1545-1070
1.884-4....................................................    1545-1070
1.884-5....................................................    1545-1070
1.892-1T...................................................    1545-1053
1.892-2T...................................................    1545-1053

[[Page 877]]

 
1.892-3T...................................................    1545-1053
1.892-4T...................................................    1545-1053
1.892-5T...................................................    1545-1053
1.892-6T...................................................    1545-1053
1.892-7T...................................................    1545-1053
1.897-2....................................................    1545-0123
                                                               1545-0902
1.897-3....................................................    1545-0123
1.897-5T...................................................    1545-0902
1.897-6T...................................................    1545-0902
1.901-2....................................................    1545-0746
1.901-2A...................................................    1545-0746
1.901-3....................................................    1545-0122
1.902-1....................................................    1545-0122
                                                               1545-1458
1.904-1....................................................    1545-0121
                                                               1545-0122
1.904-2....................................................    1545-0121
                                                               1545-0122
1.904-3....................................................    1545-0121
1.904-4....................................................    1545-0121
1.904-5....................................................    1545-0121
1.904(f)-1.................................................    1545-0121
                                                               1545-0122
1.904(f)-2.................................................    1545-0121
1.904(f)-3.................................................    1545-0121
1.904(f)-4.................................................    1545-0121
1.904(f)-5.................................................    1545-0121
1.904(f)-6.................................................    1545-0121
1.904(f)-7.................................................    1545-1127
1.905-2....................................................    1545-0122
1.905-3T...................................................    1545-1056
1.905-4T...................................................    1545-1056
1.905-5T...................................................    1545-1056
1.911-1....................................................    1545-0067
                                                               1545-0070
1.911-2....................................................    1545-0067
                                                               1545-0070
1.911-3....................................................    1545-0067
                                                               1545-0070
1.911-4....................................................    1545-0067
                                                               1545-0070
1.911-5....................................................    1545-0067
                                                               1545-0070
1.911-6....................................................    1545-0067
                                                               1545-0070
1.911-7....................................................    1545-0067
                                                               1545-0070
1.913-13...................................................    1545-0067
1.921-1T...................................................    1545-0190
                                                               1545-0884
                                                               1545-0935
                                                               1545-0939
1.921-2....................................................    1545-0884
1.921-3T...................................................    1545-0935
1.923-1T...................................................    1545-0935
1.924(a)-1T................................................    1545-0935
1.925(a)-1T................................................    1545-0935
1.925(b)-1T................................................    1545-0935
1.926(a)-1T................................................    1545-0935
1.927(a)-1T................................................    1545-0935
1.927(b)-1T................................................    1545-0935
1.927(d)-1.................................................    1545-0884
1.927(d)-2T................................................    1545-0935
1.927(e)-1T................................................    1545-0935
1.927(e)-2T................................................    1545-0935
1.927(f)-1.................................................    1545-0884
1.931-1....................................................    1545-0074
                                                               1545-0123
1.934-1....................................................    1545-0782
1.935-1....................................................    1545-0074
                                                               1545-0087
                                                               1545-0803
1.936-1....................................................    1545-0215
                                                               1545-0217
1.936-4....................................................    1545-0215
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1.6164-3...................................................    1545-0135
1.6164-5...................................................    1545-0135
1.6164-6...................................................    1545-0135
1.6164-7...................................................    1545-0135
1.6164-8...................................................    1545-0135
1.6164-9...................................................    1545-0135
1.6302-1...................................................    1545-0257
1.6302-2...................................................    1545-0098
                                                               1545-0257
1.6411-1...................................................    1545-0098
                                                               1545-0135
                                                               1545-0582
1.6411-2...................................................    1545-0098
                                                               1545-0582
1.6411-3...................................................    1545-0098
                                                               1545-0582
1.6411-4...................................................    1545-0582
1.6414-1...................................................    1545-0096
1.6425-1...................................................    1545-0170
1.6425-2...................................................    1545-0170
1.6425-3...................................................    1545-0170
1.6654-1...................................................    1545-0087
                                                               1545-0140
1.6654-2...................................................    1545-0087
1.6654-3...................................................    1545-0087
1.6654-4...................................................    1545-0087
1.6655-1...................................................    1545-0142
1.6655-2...................................................    1545-0142
1.6655-3...................................................    1545-0142
1.6655-7...................................................    1545-0123
1.6655(e)-1................................................    1545-1421
1.6662-3(c)................................................    1545-0889
1.6662-4(e) and (f)........................................    1545-0889
1.6662-6...................................................    1545-1426
1.6694-1...................................................    1545-0074
1.6694-2...................................................    1545-0074
1.6694-2(c)................................................    1545-1231
1.6694-3(e)................................................    1545-1231
1.6695-1...................................................    1545-0074
                                                               1545-1385
1.6695-2...................................................    1545-1570
1.6696-1...................................................    1545-0074
                                                               1545-0240
1.6851-1...................................................    1545-0086
                                                               1545-0138
1.6851-2...................................................    1545-0086
                                                               1545-0138
1.7476-1...................................................    1545-0197
1.7476-2...................................................    1545-0197
1.7519-2T..................................................    1545-1036
1.7520-1...................................................    1545-1343
1.7520-2...................................................    1545-1343
1.7520-3...................................................    1545-1343
1.7520-4...................................................    1545-1343
1.7701(l)-3................................................    1545-1642
1.7872-15..................................................    1545-1792
1.9100-1...................................................    1545-0074
1.9101-1...................................................    1545-0008
2.1-4......................................................    1545-0123
2.1-5......................................................    1545-0123
2.1-6......................................................    1545-0123
2.1-10.....................................................    1545-0123
2.1-11.....................................................    1545-0123
2.1-12.....................................................    1545-0123
2.1-13.....................................................    1545-0123
2.1-20.....................................................    1545-0123
2.1-22.....................................................    1545-0123
2.1-26.....................................................    1545-0123
3.2........................................................    1545-0123
4.954-1....................................................    1545-1068
4.954-2....................................................    1545-1068
5.6411-1...................................................    1545-0098
                                                               1545-0582
                                                               1545-0042
                                                               1545-0074
                                                               1545-0129
                                                               1545-0172
                                                               1545-0619
5c.44F-1...................................................    1545-0619
5c.128-1...................................................    1545-0123
5c.168(f)(8)-1.............................................    1545-0123
5c.168(f)(8)-2.............................................    1545-0123
5c.168(f)(8)-6.............................................    1545-0123
5c.168(f)(8)-8.............................................    1545-0123
5c.305-1...................................................    1545-0110
5c.442-1...................................................    1545-0152
5f.103-1...................................................    1545-0720
5f.103-3...................................................    1545-0720
5f.6045-1..................................................    1545-0715
6a.103A-2..................................................    1545-0123
                                                               1545-0720
6a.103A-3..................................................    1545-0720
7.465-1....................................................    1545-0712
7.465-2....................................................    1545-0712
7.465-3....................................................    1545-0712
7.465-4....................................................    1545-0712
7.465-5....................................................    1545-0712
7.936-1....................................................    1545-0217
7.999-1....................................................    1545-0216
7.6039A-1..................................................    1545-0015

[[Page 882]]

 
7.6041-1...................................................    1545-0115
11.410-1...................................................    1545-0710
11.412(c)-7................................................    1545-0710
11.412(c)-11...............................................    1545-0710
12.7.......................................................    1545-0190
12.8.......................................................    1545-0191
12.9.......................................................    1545-0195
14a.422A-1.................................................    1545-0123
15A.453-1..................................................    1545-0228
16.3-1.....................................................    1545-0159
16A.126-2..................................................    1545-0074
16A.1255-1.................................................    1545-0184
16A.1255-2.................................................    1545-0184
18.1371-1..................................................    1545-0130
18.1378-1..................................................    1545-0130
18.1379-1..................................................    1545-0130
18.1379-2..................................................    1545-0130
20.2011-1..................................................    1545-0015
20.2014-5..................................................    1545-0015
                                                               1545-0260
20.2014-6..................................................    1545-0015
20.2016-1..................................................    1545-0015
20.2031-2..................................................    1545-0015
20.2031-3..................................................    1545-0015
20.2031-4..................................................    1545-0015
20.2031-6..................................................    1545-0015
20.2031-7..................................................    1545-0020
20.2031-10.................................................    1545-0015
20.2032-1..................................................    1545-0015
20.2032A-3.................................................    1545-0015
20.2032A-4.................................................    1545-0015
20.2032A-8.................................................    1545-0015
20.2039-4..................................................    1545-0015
20.2051-1..................................................    1545-0015
20.2053-3..................................................    1545-0015
20.2053-9..................................................    1545-0015
20.2053-10.................................................    1545-0015
20.2055-1..................................................    1545-0015
20.2055-2..................................................    1545-0015
                                                               1545-0092
20.2055-3..................................................    1545-0015
20.2056(b)-4...............................................    1545-0015
20.2056(b)-7...............................................    1545-0015
                                                               1545-1612
20.2056A-2.................................................    1545-1443
20.2056A-3.................................................    1545-1360
20.2056A-4.................................................    1545-1360
20.2056A-10................................................    1545-1360
20.2106-1..................................................    1545-0015
20.2106-2..................................................    1545-0015
20.2204-1..................................................    1545-0015
20.2204-2..................................................    1545-0015
20.6001-1..................................................    1545-0015
20.6011-1..................................................    1545-0015
20.6018-1..................................................    1545-0015
                                                               1545-0531
20.6018-2..................................................    1545-0015
20.6018-3..................................................    1545-0015
20.6018-4..................................................    1545-0015
                                                               1545-0022
20.6036-2..................................................    1545-0015
20.6061-1..................................................    1545-0015
20.6065-1..................................................    1545-0015
20.6075-1..................................................    1545-0015
20.6081-1..................................................    1545-0015
                                                               1545-0181
                                                               1545-1707
20.6091-1..................................................    1545-0015
20.6161-1..................................................    1545-0015
                                                               1545-0181
20.6161-2..................................................    1545-0015
                                                               1545-0181
20.6163-1..................................................    1545-0015
20.6166-1..................................................    1545-0181
20.6166A-1.................................................    1545-0015
20.6166A-3.................................................    1545-0015
20.6324A-1.................................................    1545-0754
20.7520-1..................................................    1545-1343
20.7520-2..................................................    1545-1343
20.7520-3..................................................    1545-1343
20.7520-4..................................................    1545-1343
22.0.......................................................    1545-0015
25.2511-2..................................................    1545-0020
25.2512-2..................................................    1545-0020
25.2512-3..................................................    1545-0020
25.2512-5..................................................    1545-0020
25.2512-9..................................................    1545-0020
25.2513-1..................................................    1545-0020
25.2513-2..................................................    1545-0020
                                                               1545-0021
25.2513-3..................................................    1545-0020
25.2518-2..................................................    1545-0959
25.2522(a)-1...............................................    1545-0196
25.2522(c)-3...............................................    1545-0020
                                                               1545-0196
25.2523(a)-1...............................................    1545-0020
                                                               1545-0196
25.2523(f)-1...............................................    1545-0015
25.2701-2..................................................    1545-1241
25.2701-4..................................................    1545-1241
25.2701-5..................................................    1545-1273
25.2702-5..................................................    1545-1485
25.2702-6..................................................    1545-1273
25.6001-1..................................................    1545-0020
                                                               1545-0022
25.6011-1..................................................    1545-0020
25.6019-1..................................................    1545-0020
25.6019-2..................................................    1545-0020
25.6019-3..................................................    1545-0020
25.6019-4..................................................    1545-0020
25.6061-1..................................................    1545-0020
25.6065-1..................................................    1545-0020
25.6075-1..................................................    1545-0020
25.6081-1..................................................    1545-0020
25.6091-1..................................................    1545-0020
25.6091-2..................................................    1545-0020
25.6151-1..................................................    1545-0020
25.6161-1..................................................    1545-0020
25.7520-1..................................................    1545-1343
25.7520-2..................................................    1545-1343
25.7520-3..................................................    1545-1343
25.7520-4..................................................    1545-1343
26.2601-1..................................................    1545-0985
26.2632-1..................................................    1545-0985
                                                               1545-1892
26.2642-1..................................................    1545-0985
26.2642-2..................................................    1545-0985
26.2642-3..................................................    1545-0985
26.2642-4..................................................    1545-0985
26.2652-2..................................................    1545-0985
26.2662-1..................................................    1545-0015
                                                               1545-0985
26.2662-2..................................................    1545-0985
31.3102-3..................................................    1545-0029
                                                               1545-0059
                                                               1545-0065
31.3121(b)(19)-1...........................................    1545-0029
31.3121(d)-1...............................................    1545-0004
31.3121(i)-1...............................................    1545-0034
31.3121(k)-4...............................................    1545-0137
31.3121(r)-1...............................................    1545-0029
31.3121(s)-1...............................................    1545-0029
31.3121(v)(2)-1............................................    1545-1643
31.3302(a)-2...............................................    1545-0028

[[Page 883]]

 
31.3302(a)-3...............................................    1545-0028
31.3302(b)-2...............................................    1545-0028
31.3302(e)-1...............................................    1545-0028
31.3306(c)(18)-1...........................................    1545-0029
31.3401(a)-1...............................................    1545-0029
31.3401(a)(6)..............................................    1545-1484
31.3401(a)(6)-1............................................    1545-0029
                                                               1545-0096
                                                               1545-0795
31.3401(a)(7)-1............................................    1545-0029
31.3401(a)(8)(A)-1 ........................................    1545-0029
                                                               1545-0666
31.3401(a)(8)(C)-1 ........................................    1545-0029
31.3401(a)(15)-1...........................................    1545-0182
31.3401(c)-1...............................................    1545-0004
31.3402(b)-1...............................................    1545-0010
31.3402(c)-1...............................................    1545-0010
31.3402(f)(1)-1............................................    1545-0010
31.3402(f)(2)-1............................................    1545-0010
                                                               1545-0410
31.3402(f)(3)-1............................................    1545-0010
31.3402(f)(4)-1............................................    1545-0010
31.3402(f)(4)-2............................................    1545-0010
31.3402(f)(5)-1............................................    1545-0010
                                                               1545-1435
31.3402(h)(1)-1............................................    1545-0029
31.3402(h)(3)-1............................................    1545-0010
31.3402(h)(3)-1............................................    1545-0029
31.3402(h)(4)-1............................................    1545-0010
31.3402(i)-(1).............................................    1545-0010
31.3402(i)-(2).............................................    1545-0010
31.3402(k)-1...............................................    1545-0065
31.3402(l)-(1).............................................    1545-0010
31.3402(m)-(1).............................................    1545-0010
31.3402(n)-(1).............................................    1545-0010
31.3402(o)-2...............................................    1545-0415
31.3402(o)-3...............................................    1545-0008
                                                               1545-0010
                                                               1545-0415
                                                               1545-0717
31.3402(p)-1...............................................    1545-0415
                                                               1545-0717
31.3402(q)-1...............................................    1545-0238
                                                               1545-0239
31.3404-1..................................................    1545-0029
31.3405(c)-1...............................................    1545-1341
31.3406(a)-1...............................................    1545-0112
31.3406(a)-2...............................................    1545-0112
31.3406(a)-3...............................................    1545-0112
31.3406(a)-4...............................................    1545-0112
31.3406(b)(2)-1............................................    1545-0112
31.3406(b)(2)-2............................................    1545-0112
31.3406(b)(2)-3............................................    1545-0112
31.3406(b)(2)-4............................................    1545-0112
31.3406(b)(2)-5............................................    1545-0112
31.3406(b)(3)-1............................................    1545-0112
31.3406(b)(3)-2............................................    1545-0112
31.3406(b)(3)-3............................................    1545-0112
31.3406(b)(3)-4............................................    1545-0112
31.3406(b)(4)-1............................................    1545-0112
31.3406(c)-1...............................................    1545-0112
31.3406(d)-1...............................................    1545-0112
31.3406(d)-2...............................................    1545-0112
31.3406(d)-3...............................................    1545-0112
31.3406(d)-4...............................................    1545-0112
31.3406(d)-5...............................................    1545-0112
31.3406(e)-1...............................................    1545-0112
31.3406(f)-1...............................................    1545-0112
31.3406(g)-1...............................................    1545-0096
                                                               1545-0112
                                                               1545-1819
31.3406(g)-2...............................................    1545-0112
31.3406(g)-3...............................................    1545-0112
31.3406(h)-1...............................................    1545-0112
31.3406(h)-2...............................................    1545-0112
31.3406(h)-3...............................................    1545-0112
31.3406(i)-1...............................................    1545-0112
31.3501(a)-1T..............................................    1545-0771
31.3503-1..................................................    1545-0024
31.3504-1..................................................    1545-0029
31.6001-1..................................................    1545-0798
31.6001-2..................................................    1545-0034
                                                               1545-0798
31.6001-3..................................................    1545-0798
31.6001-4..................................................    1545-0028
31.6001-5..................................................    1545-0798
31.6001-6..................................................    1545-0029
                                                               1459-0798
31.6011(a)-1...............................................    1545-0029
                                                               1545-0034
                                                               1545-0035
                                                               1545-0059
                                                               1545-0074
                                                               1545-0718
                                                               1545-0256
31.6011(a)-2...............................................    1545-0001
                                                               1545-0002
31.6011(a)-3...............................................    1545-0028
31.6011(a)-3A..............................................    1545-0955
31.6011(a)-4...............................................    1545-0034
                                                               1545-0035
                                                               1545-0718
                                                               1545-1413
31.6011(a)-5...............................................    1545-0718
                                                               1545-0028
31.6011(a)-6...............................................    1545-0028
31.6011(a)-7...............................................    1545-0074
31.6011(a)-8...............................................    1545-0028
31.6011(a)-9...............................................    1545-0028
31.6011(a)-10..............................................    1545-0112
31.6011(b)-1...............................................    1545-0003
31.6011(b)-2...............................................    1545-0029
31.6051-1..................................................    1545-0008
                                                               1545-0182
                                                               1545-0458
                                                               1545-1729
31.6051-2..................................................    1545-0008
31.6051-3..................................................    1545-0008
31.6053-1..................................................    1545-0029
                                                               1545-0062
                                                               1545-0064
                                                               1545-0065
                                                               1545-1603
31.6053-2..................................................    1545-0008
31.6053-3..................................................    1545-0065
                                                               1545-0714
31.6053-4..................................................    1545-0065
                                                               1545-1603
31.6065(a)-1...............................................    1545-0029
31.6071(a)-1...............................................    1545-0001
                                                               1545-0028
                                                               1545-0029
31.6071(a)-1A..............................................    1545-0955
31.6081(a)-1...............................................    1545-0008
                                                               1545-0028
31.6091-1..................................................    1545-0028
                                                               1545-0029
31.6157-1..................................................    1545-0955
31.6205-1..................................................    1545-0029
31.6301(c)-1AT.............................................    1545-0035
                                                               1545-0112
                                                               1545-0257
31.6302-1..................................................    1545-1413
31.6302-2..................................................    1545-1413

[[Page 884]]

 
31.6302-3..................................................    1545-1413
31.6302-4..................................................    1545-1413
31.6302(c)-2...............................................    1545-0001
                                                               1545-0257
31.6302(c)-2A..............................................    1545-0955
31.6302(c)-3...............................................    1545-0257
31.6402(a)-2...............................................    1545-0256
31.6413(a)-1...............................................    1545-0029
31.6413(a)-2...............................................    1545-0029
                                                               1545-0256
31.6413(c)-1...............................................    1545-0029
                                                               1545-0171
31.6414-1..................................................    1545-0029
32.1.......................................................    1545-0029
                                                               1545-0415
32.2.......................................................    1545-0029
35a.3406-2.................................................    1545-0112
35a.9999-5.................................................    1545-0029
36.3121(l)(1)-1............................................    1545-0137
36.3121(l)(1)-2............................................    1545-0137
36.3121(l)(3)-1............................................    1545-0123
36.3121(1)(7)-1............................................    1545-0123
36.3121(1)(10)-1...........................................    1545-0029
36.3121(1)(10)-3...........................................    1545-0029
36.3121(1)(10)-4...........................................    1545-0257
40.6302(c)-3(b)(2)(ii).....................................    1545-1296
40.6302(c)-3(b)(2)(iii)....................................    1545-1296
40.6302(c)-3(e)............................................    1545-1296
40.6302(c)-3(f)(2)(ii).....................................    1545-1296
41.4481-1..................................................    1545-0143
41.4481-2..................................................    1545-0143
41.4483-3..................................................    1545-0143
41.6001-1..................................................    1545-0143
41.6001-2..................................................    1545-0143
41.6001-3..................................................    1545-0143
41.6071(a)-1...............................................    1545-0143
41.6081(a)-1...............................................    1545-0143
41.6091-1..................................................    1545-0143
41.6109-1..................................................    1545-0143
41.6151(a)-1...............................................    1545-0143
41.6156-1..................................................    1545-0143
41.6161(a)(1)-1............................................    1545-0143
44.4401-1..................................................    1545-0235
44.4403-1..................................................    1545-0235
44.4412-1..................................................    1545-0236
44.4901-1..................................................    1545-0236
44.4905-1..................................................    1545-0236
44.4905-2..................................................    1545-0236
44.6001-1..................................................    1545-0235
44.6011(a)-1...............................................    1545-0235
                                                               1545-0236
44.6071-1..................................................    1545-0235
44.6091-1..................................................    1545-0235
44.6151-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-2..................................................    1545-0235
46.4371-4..................................................    1545-0023
46.4374-1..................................................    1545-0023
46.4701-1..................................................    1545-0023
                                                               1545-0257
48.4041-4..................................................    1545-0023
48.4041-5..................................................    1545-0023
48.4041-6..................................................    1545-0023
48.4041-7..................................................    1545-0023
48.4041-9..................................................    1545-0023
48.4041-10.................................................    1545-0023
48.4041-11.................................................    1545-0023
48.4041-12.................................................    1545-0023
48.4041-13.................................................    1545-0023
48.4041-18.................................................    1545-0023
48.4041-19.................................................    1545-0023
48.4041-20.................................................    1545-0023
48.4041-21.................................................    1545-1270
48.4042-2..................................................    1545-0023
48.4052-1..................................................    1545-1418
48.4061(a)-1...............................................    1545-0023
48.4061(a)-2...............................................    1545-0023
48.4061(b)-3...............................................    1545-0023
48.4064-1..................................................    1545-0014
                                                               1545-0242
48.4071-1..................................................    1545-0023
48.4073-1..................................................    1545-0023
48.4073-3..................................................    1545-0023
                                                               1545-1074
                                                               1545-1087
48.4081-2..................................................    1545-1270
                                                               1545-1418
48.4081-3..................................................    1545-1270
                                                               1545-1418
48.4081-3T.................................................    1545-1897
48.4081-4(b)(2)(ii)........................................    1545-1270
48.4081-4(b)(3)(i).........................................    1545-1270
48.4081-4(c)...............................................    1545-1270
48.4081-6(c)(1)(ii)........................................    1545-1270
48.4081-7..................................................    1545-1270
                                                               1545-1418
48.4082-1T.................................................    1545-1418
48.4082-2..................................................    1545-1418
48.4082-6..................................................    1545-1418
48.4082-7..................................................    1545-1418
48.4091-3..................................................    1545-1418
48.4101-1..................................................    1545-1418
48.4101-1T.................................................    1545-1418
48.4101-2..................................................    1545-1418
48.4161(a)-1...............................................    1545-0723
48.4161(a)-2...............................................    1545-0723
48.4161(a)-3...............................................    1545-0723
48.4161(b)-1...............................................    1545-0723
                                                               1545-0723
48.4216(a)-2...............................................    1545-0023
48.4216(a)-3...............................................    1545-0023
48.4216(c)-1...............................................    1545-0023
48.4221-1..................................................    1545-0023
48.4221-2..................................................    1545-0023
48.4221-3..................................................    1545-0023
48.4221-4..................................................    1545-0023
48.4221-5..................................................    1545-0023
48.4221-6..................................................    1545-0023
48.4221-7..................................................    1545-0023
48.4222(a)-1...............................................    1545-0023
                                                               1545-0014
48.4223-1..................................................    1545-0023
                                                               1545-0723
                                                               1545-0723
                                                               1545-0723
                                                               1545-0257
48.6302(c)-1...............................................    1545-0023
                                                               1545-0257
48.6412-1..................................................    1545-0723
48.6416(a)-1...............................................    1545-0023
                                                               1545-0723
48.6416(a)-2...............................................    1545-0723
48.6416(a)-3...............................................    1545-0723
48.6416(b)(2)-3............................................    1545-1087
48.6416(b)(1)-1............................................    1545-0723
48.6416(b)(1)-2............................................    1545-0723
48.6416(b)(1)-3............................................    1545-0723
48.6416(b)(1)-4............................................    1545-0723
48.6416(b)(2)-1............................................    1545-0723
48.6416(b)(2)-2............................................    1545-0723
48.6416(b)(2)-3............................................    1545-0723
                                                               1545-1087
48.6416(b)(2)-4............................................    1545-0723

[[Page 885]]

 
48.6416(b)(3)-1............................................    1545-0723
48.6416(b)(3)-2............................................    1545-0723
48.6416(b)(3)-3............................................    1545-0723
48.6416(b)(4)-1............................................    1545-0723
48.6416(b)(5)-1............................................    1545-0723
48.6416(c)-1...............................................    1545-0723
48.6416(e)-1...............................................    1545-0023
                                                               1545-0723
48.6416(f)-1...............................................    1545-0023
                                                               1545-0723
48.6416(g)-1...............................................    1545-0723
48.6416(h)-1...............................................    1545-0723
48.6420(c)-2...............................................    1545-0023
48.6420(f)-1...............................................    1545-0023
48.6420-1..................................................    1545-0162
                                                               1545-0723
48.6420-2..................................................    1545-0162
                                                               1545-0723
48.6420-3..................................................    1545-0162
                                                               1545-0723
48.6420-4..................................................    1545-0162
                                                               1545-0723
48.6420-5..................................................    1545-0162
                                                               1545-0723
48.6420-6..................................................    1545-0162
                                                               1545-0723
48.6421-0..................................................    1545-0162
                                                               1545-0723
48.6421-1..................................................    1545-0162
                                                               1545-0723
48.6421-2..................................................    1545-0162
                                                               1545-0723
48.6421-3..................................................    1545-0162
                                                               1545-0723
48.6421-4..................................................    1545-0162
                                                               1545-0723
48.6421-5..................................................    1545-0162
                                                               1545-0723
48.6421-6..................................................    1545-0162
                                                               1545-0723
48.6421-7..................................................    1545-0162
                                                               1545-0723
48.6424-0..................................................    1545-0723
48.6424-1..................................................    1545-0723
48.6424-2..................................................    1545-0723
48.6424-3..................................................    1545-0723
48.6424-4..................................................    1545-0723
48.6424-5..................................................    1545-0723
48.6424-6..................................................    1545-0723
48.6427-0..................................................    1545-0723
48.6427-1..................................................    1545-0023
                                                               1545-0162
                                                               1545-0723
48.6427-2..................................................    1545-0162
                                                               1545-0723
48.6427-3..................................................    1545-0723
48.6427-4..................................................    1545-0723
48.6427-5..................................................    1545-0723
48.6427-8..................................................    1545-1418
48.6427-9..................................................    1545-1418
48.6427-10.................................................    1545-1418
48.6427-11.................................................    1545-1418
49.4251-1..................................................    1545-1075
49.4251-2..................................................    1545-1075
49.4251-4(d)(2)............................................    1545-1628
49.4253-3..................................................    1545-0023
49.4253-4..................................................    1545-0023
49.4264(b)-1...............................................    1545-0023
                                                               1545-0226
                                                               1545-0226
                                                               1545-0912
                                                               1545-0912
                                                               1545-0257
                                                               1545-0230
                                                               1545-0224
                                                               1545-0225
                                                               1545-0224
                                                               1545-0230
49.4271-1(d)...............................................    1545-0685
52.4682-1(b)(2)(iii).......................................    1545-1153
52.4682-2(b)...............................................    1545-1153
                                                               1545-1361
52.4682-2(d)...............................................    1545-1153
                                                               1545-1361
52.4682-3(c)(2)............................................    1545-1153
52.4682-3(g)...............................................    1545-1153
52.4682-4(f)...............................................    1545-1153
                                                               1545-0257
52.4682-5(d)...............................................    1545-1361
52.4682-5(f)...............................................    1545-1361
53.4940-1..................................................    1545-0052
                                                               1545-0196
53.4942(a)-1...............................................    1545-0052
53.4942(a)-2...............................................    1545-0052
53.4942(a)-3...............................................    1545-0052
53.4942(b)-3...............................................    1545-0052
53.4945-1..................................................    1545-0052
53.4945-4..................................................    1545-0052
53.4945-5..................................................    1545-0052
53.4945-6..................................................    1545-0052
53.4947-1..................................................    1545-0196
53.4947-2..................................................    1545-0196
53.4948-1..................................................    1545-0052
53.4958-6..................................................    1545-1623
53.4961-2..................................................    1545-0024
53.4963-1..................................................    1545-0024
53.6001-1..................................................    1545-0052
53.6011-1..................................................    1545-0049
                                                               1545-0052
                                                               1545-0092
                                                               1545-0196
53.6065-1..................................................    1545-0052
53.6071-1..................................................    1545-0049
53.6081-1..................................................    1545-0066
                                                               1545-0148
53.6161-1..................................................    1545-0575
54.4972-1..................................................    1545-0197
54.4975-7..................................................    1545-0575
54.4977-1T.................................................    1545-0771
54.4980B-6.................................................    1545-1581
54.4980B-7.................................................    1545-1581
54.4980B-8.................................................    1545-1581
54.4980F-1.................................................    1545-1780
54.4981A-1T................................................    1545-0203
54.6011-1..................................................    1545-0575
54.6011-1T.................................................    1545-0575
54.9801-3..................................................    1545-1537
54.9801-4..................................................    1545-1537
54.9801-5..................................................    1545-1537
54.9801-6..................................................    1545-1537
55.6001-1..................................................    1545-0123
55.6011-1..................................................    1545-0999
                                                               1545-0123
                                                               1545-1016
55.6061-1..................................................    1545-0999
55.6071-1..................................................    1545-0999
56.4911-6..................................................    1545-0052
56.4911-7..................................................    1545-0052
56.4911-9..................................................    1545-0052
56.4911-10.................................................    1545-0052
56.6001-1..................................................    1545-1049
56.6011-1..................................................    1545-1049
56.6081-1..................................................    1545-1049
56.6161-1..................................................    1545-1049

[[Page 886]]

 
                                                               1545-0257
145.4051-1.................................................    1545-0745
145.4052-1.................................................    1545-0120
                                                               1545-0745
                                                               1545-1076
                                                               1545-0745
                                                               1545-1076
145.4061-1.................................................    1545-0745
                                                               1545-0257
                                                               1545-0230
                                                               1545-0224
156.6001-1.................................................    1545-1049
156.6011-1.................................................    1545-1049
156.6081-1.................................................    1545-1049
156.6161-1.................................................    1545-1049
157.6001-1.................................................    1545-1824
157.6011-1.................................................    1545-1824
157.6081-1.................................................    1545-1824
157.6161-1.................................................    1545-1824
301.6011-2.................................................    1545-0225
                                                               1545-0350
                                                               1545-0387
                                                               1545-0441
                                                               1545-0957
301.6017-1.................................................    1545-0090
301.6034-1.................................................    1545-0092
301.6035-1.................................................    1545-0123
301.6036-1.................................................    1545-0013
                                                               1545-0773
301.6047-1.................................................    1545-0367
                                                               1545-0957
301.6057-1.................................................    1545-0710
301.6057-2.................................................    1545-0710
301.6058-1.................................................    1545-0710
301.6059-1.................................................    1545-0710
301.6103(c)-1..............................................    1545-1816
301.6103(n)-1..............................................    1545-1841
301.6103(p)(2)(B)-1........................................    1545-1757
301.6104(a)-1..............................................    1545-0495
301.6104(a)-5..............................................    1545-0056
301.6104(a)-6..............................................    1545-0056
301.6104(b)-1..............................................    1545-0094
                                                               1545-0742
301.6104(d)-1..............................................    1545-1655
301.6104(d)-2..............................................    1545-1655
301.6104(d)-3..............................................    1545-1655
301.6109-1.................................................    1545-0003
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
                                                               1545-1461
301.6109-3.................................................    1545-1564
301.6110-3.................................................    1545-0074
301.6110-5.................................................    1545-0074
301.6111-1T................................................    1545-0865
                                                               1545-0881
301.6111-2.................................................    1545-0865
                                                               1545-1687
301.6112-1.................................................    1545-0865
                                                               1545-1686
301.6112-1T................................................    1545-0865
                                                               1545-1686
301.6114-1.................................................    1545-1126
                                                               1545-1484
301.6222(a)-2..............................................    1545-0790
301.6222(b)-1..............................................    1545-0790
301.6222(b)-2..............................................    1545-0790
301.6222(b)-3..............................................    1545-0790
301.6223(b)-1..............................................    1545-0790
301.6223(c)-1..............................................    1545-0790
301.6223(e)-2..............................................    1545-0790
301.6223(g)-1..............................................    1545-0790
301.6223(h)-1..............................................    1545-0790
301.6224(b)-1..............................................    1545-0790
301.6224(c)-1..............................................    1545-0790
301.6224(c)-3..............................................    1545-0790
301.6227(c)-1..............................................    1545-0790
301.6227(d)-1..............................................    1545-0790
301.6229(b)-2..............................................    1545-0790
301.6230(b)-1..............................................    1545-0790
301.6230(e)-1..............................................    1545-0790
301.6231(a)(1)-1...........................................    1545-0790
301.6231(a)(7)-1...........................................    1545-0790
301.6231(c)-1..............................................    1545-0790
301.6231(c)-2..............................................    1545-0790
301.6241-1T................................................    1545-0130
301.6316-4.................................................    1545-0074
301.6316-5.................................................    1545-0074
301.6316-6.................................................    1545-0074
301.6316-7.................................................    1545-0029
301.6324A-1................................................    1545-0015
301.6361-1.................................................    1545-0074
                                                               1545-0024
301.6361-2.................................................    1545-0024
301.6361-3.................................................    1545-0074
301.6402-2.................................................    1545-0024
                                                               1545-0073
                                                               1545-0091
301.6402-3.................................................    1545-0055
                                                               1545-0073
                                                               1545-0091
                                                               1545-0132
                                                               1545-1484
301.6402-5.................................................    1545-0928
301.6404-1.................................................    1545-0024
301.6404-2T................................................    1545-0024
301.6404-3.................................................    1545-0024
301.6405-1.................................................    1545-0024
301.6501(c)-1..............................................    1545-1241
                                                               1545-1637
301.6501(d)-1..............................................    1545-0074
                                                               1545-0430
301.6501(o)-2..............................................    1545-0728
301.6511(d)-1..............................................    1545-0582
                                                               1545-0024
301.6511(d)-2..............................................    1545-0582
                                                               1545-0024
301.6511(d)-3..............................................    1545-0024
                                                               1545-0582
301.6652-2.................................................    1545-0092
301.6685-1.................................................    1545-0092
301.6689-1T................................................    1545-1056
301.6707-1T................................................    1545-0865
                                                               1545-0881
301.6708-1T................................................    1545-0865
301.6712-1.................................................    1545-1126
301.6723-1A(d).............................................    1545-0909
301.6903-1.................................................    1545-0013
                                                               1545-1783
301.6905-1.................................................    1545-0074
301.7001-1.................................................    1545-0123
301.7101-1.................................................    1545-1029
301.7207-1.................................................    1545-0092
301.7216-2.................................................    1545-0074
301.7216-2(o)..............................................    1545-1209
301.7425-3.................................................    1545-0854
301.7430-2(c)..............................................    1545-1356
301.7507-8.................................................    1545-0123
301.7507-9.................................................    1545-0123
301.7513-1.................................................    1545-0429
301.7517-1.................................................    1545-0015
301.7605-1.................................................    1545-0795
301.7623-1.................................................    1545-0409

[[Page 887]]

 
                                                               1545-1534
301.7654-1.................................................    1545-0803
301.7701-3.................................................    1545-1486
301.7701-4.................................................    1545-1465
301.7701-7.................................................    1545-1600
301.7701-16................................................    1545-0795
301.7701(b)-1..............................................    1545-0089
301.7701(b)-2..............................................    1545-0089
301.7701(b)-3..............................................    1545-0089
301.7701(b)-4..............................................    1545-0089
301.7701(b)-5..............................................    1545-0089
301.7701(b)-6..............................................    1545-0089
301.7701(b)-7..............................................    1545-0089
                                                               1545-1126
301.7701(b)-9..............................................    1545-0089
301.7805-1.................................................    1545-0805
301.9001-1.................................................    1545-0220
301.9000-5.................................................    1545-1850
301.9100-2.................................................    1545-1488
301.9100-3.................................................    1545-1488
301.9100-4T................................................    1545-0016
                                                               1545-0042
                                                               1545-0074
                                                               1545-0129
                                                               1545-0172
                                                               1545-0619
301.9100-6T................................................    1545-0872
301.9100-7T................................................    1545-0982
301.9100-8.................................................    1545-1112
301.9100-11T...............................................    1545-0123
301.9100-12T...............................................    1545-0026
                                                               1545-0074
                                                               1545-0172
                                                               1545-1027
301.9100-14T...............................................    1545-0046
301.9100-15T...............................................    1545-0046
301.9100-16T...............................................    1545-0152
302.1-7....................................................    1545-0024
305.7701-1.................................................    1545-0823
305.7871-1.................................................    1545-0823
404.6048-1.................................................    1545-0160
420.0-1....................................................    1545-0710
Part 509...................................................    1545-0846
Part 513...................................................    1545-0834
Part 514...................................................    1545-0845
Part 521...................................................    1545-0848
601.104....................................................    1545-0233
601.105....................................................    1545-0091
601.201....................................................    1545-0019
                                                               1545-0819
601.204....................................................    1545-0152
601.401....................................................    1545-0257
601.504....................................................    1545-0150
601.601....................................................    1545-0800
601.602....................................................    1545-0295
                                                               1545-0387
                                                               1545-0957
601.702....................................................    1545-0429
------------------------------------------------------------------------


(26 U.S.C. 7805)

[T.D. 8011, 50 FR 10222, Mar. 14, 1985]

    Editorial Note: For Federal Register citations affecting Sec.  
602.101, see the List of CFR Sections Affected, which appears in the 
Findings Aids section of the printed volume and on GPO Access.

[[Page 889]]



List of CFR Sections Affected



All changes to sections of part 1 (Sec. Sec.  1.1001 to 1.1400) of title 
26 of the Code of Federal Regulations that were made by documents 
published in the Federal Register since January 1, 2001, are enumerated 
in the following list. Entries indicate the nature of the changes 
effected. Page numbers refer to Federal Register pages. The user should 
consult the entries for chapters and parts as well as sections for 
revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000,'' published in 
11 separate volumes.

                                  2001

26 CFR
                                                                   66 FR
                                                                    Page
Chapter I
1.1001-5 Added......................................................2218
1.1001-5T Removed...................................................2218
1.1031(d)-1T Amended................................................9929
1.1031(j)-1 (b)(2)(iii) amended.....................................9929
1.1060-1 Added......................................................9954
1.1060-1T Removed...................................................9957
1.1271-0 (b) amended................................................2815
1.1275-1 (f) revised................................................2815
1.1275-2 (d) revised; (k) added.....................................2816
1.1275-2T Removed...................................................2817
1.1275-7 (g) added..................................................2817
1.1361-1 (l)(2)(v) redesignated as (l)(2)(vi); new (l)(2)(v) added
                                                                    9957
1.1361-4 (d) Example 3 amended......................................9929
    (b)(4) amended..................................................9957

                                  2002

26 CFR
                                                                   67 FR
                                                                    Page
Chapter I
1.1031(k)-1 (k)(4) revised..........................................4909
1.1092(c)-1 Redesignated as 1.1092(c)-2; new 1.1092(c)-1 added.....20899
    Regulation at 67 FR 20899 suspended to 7-29-02.................37671
1.1092(c)-2 Redesignated from 1.1092(c)-1..........................20899
    (b) and (d) revised; (c) added; (d)(1) introductory text, (i) 
introductory text, (A) through (D), (ii) introductory text, (A), 
(B) and (2) redesignated as (a) introductory text, (1) 
introductory text, (i) through (iv), (2) introductory text, (i), 
(ii) and (f) in 1.1092(c)-4; (e) removed...........................20900
    Regulation at 67 FR 20899 and 20900 suspended to 7-29-02.......37671
1.1092(c)-3 Added..................................................20900
    Regulation at 67 FR 20900 suspended to 7-29-02.................37671
1.1092(c)-4 Added; (a) introductory text, (1) introductory text, 
        (i) through (iv), (2) introductory text, (i), (ii) and (f) 
        redesignated from (d)(1) introductory text, (i) 
        introductory text, (A) through (D), (ii) introductory 
        text, (A), (B) and (2) in 1.1092(c)-2......................20900
    (a)(1)(iv), (2) introductory text and (i) revised; (b) through 
(e) and (g) added..................................................20901
    Regulation at 67 FR 20900 and 20901 suspended to 7-29-02.......37671
1.1221-2 Revised...................................................12866
1.1256(e)-1 (b) and (c) amended....................................12866
    Revised........................................................12870
    Corrected......................................................31955
1.1271-0 (k) introductory text through (3) added...................30548
1.1275-1 (k) added.................................................30548

[[Page 890]]

1.1301-1 Undesignated center heading and section added...............819
    Corrected.......................................................5203
1.1361-0 Amended...................................................34396
1.1361-1 (h)(1)(vi), (3)(i)(F), (j)(12) and (m) added; (h)(3)(ii) 
        introductory text and (k)(2)(i) amended....................34397
1.1361-5 (c)(1) amended............................................65313
1.1362-2 (c)(6) Example 2 amended..................................34610
1.1362-6 (b)(2)(iv) revised........................................34400
1.1362-7 Heading revised; (a) amended..............................34401
1.1374-4 (g) amended...............................................34610
1.1377-0 Amended...................................................34401
1.1377-1 (a)(2)(iii) and (c) Example 3 added.......................34401
1.1377-3 Revised...................................................34401
1.1378-1 Added.....................................................35024
1.1398-3 Added.....................................................78367

                                  2003

26 CFR
                                                                   68 FR
                                                                    Page
Chapter I
1.1017-1 (b)(4) added..............................................42593
    (g)(2)(iii)(B) revised.........................................70705
1.1017-1T Added....................................................42593
    (c) through (i) revised........................................70706
1.1041-1T (c) amended...............................................1536
1.1041-2 Added......................................................1536
1.1060-1 (e)(2) revised............................................34299
1.1361-1 (b)(1)(ii), (f), (h)(1)(ii), (iv), (3)(i)(B), (D), 
        (ii)(A), (B), (j)(6)(iii)(C), (7)(ii), (k)(1) Examples 2, 
        3, 4 and (k)(2)(i) revised; (j)(6)(iii)(D) and (k)(2)(ii) 
        redesignated as (j)(6)(iii)(E) and (k)(2)(iii); new 
        (j)(6)(iii)(D) and (k)(2)(ii) added........................42252
1.1368-1 (f)(5)(iii) and (g)(2)(iii) revised.......................70706
1.1368-1T Added....................................................70706
1.1377-1 (b)(5)(i)(C) revised......................................70706
1.1377-1T Added....................................................70706
1.1400L(b)-1T Added................................................53004
    (g)(1) corrected...............................................63734

                                  2004

26 CFR
                                                                   69 FR
                                                                    Page
Chapter I
1.1016-3 (h) redesignated as (i); new (h) and (j) added...............12
1.1016-3T Added.......................................................12
    (j)(3) corrected................................................5273
1.1017-1 Corrected..................................................5017
    (b)(4) revised.................................................26039
1.1017-1T (b)(4) removed; (a) through (b)(3) entry revised.........26039
1.1031(a)-2 (b)(3) through (6) and (7) Examples 3 and 4 revised; 
        (d) amended................................................50068
1.1031(a)-2T Added.................................................50068
1.1060-1 (a)(3) and (c)(3) amended; (e)(1)(ii)(C) added............55742
1.1060-1T Added....................................................55742
1.1275-2 (g)(1) amended............................................52829
1.1275-4 (a)(2)(iv) revised........................................52829
1.1291-0 Amended...................................................24073
1.1291-1 (a) through (d) revised; (f) through (j) added............24073
1.1295-0 Amended...................................................24073
1.1295-1 (i)(3) and (4) redesignated as (i)(4) and (5); new (i)(3) 
        added; new (i)(5) and (k) revised..........................24073
1.1296-1 Added.....................................................24074
1.1296(e)-1 Redesignated as 1.1296-2...............................24078
1.1296-2 Redesignated from 1.1296(e)-1; (b)(2) revised; (b)(3) 
        added; (f)(1) amended......................................24078
1.1362-3 (a) amended...............................................42559
1.1374-8 (a) redesignated as (a)(1); (a)(2) added..................76614
1.1374-8T Added....................................................76614
1.1374-10 (c) added................................................76614
1.1374-10T Added...................................................76614
1.1377-1 (a)(1) amended............................................42559

                                  2005

26 CFR
                                                                   70 FR
                                                                    Page
Chapter I
1.1031(a)-2 (b)(3) through (6), (7) Examples 3 and 4 and (d) 
        revised; (b)(8) added......................................28819
1.1031(a)-2T Removed...............................................28820
1.1031(j)-1 (d) amended............................................28820
1.1291-9 (i)(1) and (2) heading removed; (i)(2) redesignated as 
        (i); (j)(2)(iv) revised; (j)(2)(v) added...................72915
1.1291-9T Added....................................................72910
1.1297-0 Revised...................................................72915
1.1297-0T Added....................................................72910
1.1297-3 Added.....................................................72915
1.1297-3T Revised..................................................72910
1.1298-0 Added.....................................................72915

[[Page 891]]

1.1298-0T Added....................................................72913
1.1298-3 Added.....................................................72915
1.1298-3T Added....................................................72913
1.1361-4 (a)(1) introductory text amended; (a)(6) added.............9221
1.1363-2 (b), (c) and (d) redesignated as (d), (e) and (g); new 
        (b), (c), (f) and (g)(3) added; new (d) and (e) revised....39921
1.1374-0 Amended...................................................75731
1.1374-3 (b) revised; (c) added.....................................8728
1.1374-8 (a) revised; (b), (c) and (d) redesignated as (c), (d) 
        and (e); new (b) added.....................................75731
1.1374-8T Heading, (a)(1) and (2) correctly revised.................5045
    Revised........................................................23790
    Removed........................................................75731
1.1374-10 (a) revised...............................................8729
    (c) revised....................................................75731
1.1374.10T Removed.................................................75731

                                  2006

   (Regulations published from January 1, 2006, through April 1, 2006)

26 CFR
                                                                   71 FR
                                                                    Page
Chapter I
1.1297-3T (e)(1)(i) correctly amended...............................4042
1.1298-3T (e)(1)(i) correctly amended...............................4042


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