[Title 26 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2013 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

Title 26

Internal Revenue


________________________

Part 1 (Sec. Sec.  1.170 to 1.300)

                         Revised as of April 1, 2013

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2013
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as 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........................     933
      Alphabetical List of Agencies Appearing in the CFR......     953
      Table of OMB Control Numbers............................     963
      List of CFR Sections Affected...........................     981

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 26 CFR 1.170-0 
                       refers to title 26, part 
                       1, section 170-0.

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

[[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

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2013), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

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 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
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to materials already published elsewhere. For an incorporation to be 
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if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
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CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
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register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Printing Office. It is 
available at www.ecfr.gov.

    Charles A. Barth,
    Director,
    Office of the Federal Register.
    April 1, 2013.







[[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, 
2013. 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 of part 1. 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, Michele Bugenhagen was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

[[Page 1]]



                       TITLE 26--INTERNAL REVENUE




         (This book contains part 1, Sec. Sec. 1.170 to 1.300)

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

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

[[Page 3]]



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




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

                  SUBCHAPTER A--INCOME TAX (CONTINUED)
Part                                                                Page
1               Income taxes (Continued)....................           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 (CONTINUED)--Table of Contents



                  Normal Taxes and Surtaxes (Continued)

                COMPUTATION OF TAXABLE INCOME (CONTINUED)

    Itemized Deductions for Individuals and Corporations (Continued)

Sec.
1.170-0 Effective dates.
1.170-1 Charitable, etc., contributions and gifts; allowance of 
          deduction (before amendment by Tax Reform Act of 1969).
1.170-2 Charitable deductions by individuals; limitations (before 
          amendment by Tax Reform Act of 1969).
1.170-3 Contributions or gifts by corporations (before amendment by Tax 
          Reform Act of 1969).
1.170A-1 Charitable, etc., contributions and gifts; allowance of 
          deduction.
1.170A-2 Amounts paid to maintain certain students as members of the 
          taxpayer's household.
1.170A-3 Reduction of charitable contribution for interest on certain 
          indebtedness.
1.170A-4 Reduction in amount of charitable contributions of certain 
          appreciated property.
1.170A-4A Special rule for the deduction of certain charitable 
          contributions of inventory and other property.
1.170A-5 Future interests in tangible personal property.
1.170A-6 Charitable contributions in trust.
1.170A-7 Contributions not in trust of partial interests in property.
1.170A-8 Limitations on charitable deductions by individuals.
1.170A-9 Definition of section 170(b)(1)(A) organization.
1.170A-10 Charitable contributions carryovers of individuals.
1.170A-11 Limitation on, and carryover of, contributions by 
          corporations.
1.170A-12 Valuation of a remainder interest in real property for 
          contributions made after July 31, 1969.
1.170A-13 Recordkeeping and return requirements for deductions for 
          charitable contributions.
1.170A-14 Qualified conservation contributions.
1.171-1 Bond premium.
1.171-1T Bond premium (temporary).
1.171-2 Amortization of bond premium.
1.171-2T Amortization of bond premium (temporary).
1.171-3 Special rules for certain bonds.
1.171-4 Election to amortize bond premium on taxable bonds.
1.171-5 Effective date and transition rules.
1.172-1 Net operating loss deduction.
1.172-2 Net operating loss in case of a corporation.
1.172-3 Net operating loss in case of a taxpayer other than a 
          corporation.
1.172-4 Net operating loss carrybacks and net operating loss carryovers.
1.172-5 Taxable income which is subtracted from net operating loss to 
          determine carryback or carryover.
1.172-6 Illustration of net operating loss carrybacks and carryovers.
1.172-7 Joint return by husband and wife.
1.172-8 Net operating loss carryovers for regulated transportation 
          corporations.
1.172-9 Election with respect to portion of net operating loss 
          attributable to foreign expropriation loss.
1.172-10 Net operating losses of real estate investment trusts.
1.172-13 Product liability losses.
1.173-1 Circulation expenditures.
1.174-1 Research and experimental expenditures; in general.
1.174-2 Definition of research and experimental expenditures.
1.174-3 Treatment as expenses.
1.174-4 Treatment as deferred expenses.
1.175-1 Soil and water conservation expenditures; in general.
1.175-2 Definition of soil and water conservation expenditures.
1.175-3 Definition of ``the business of farming.''
1.175-4 Definition of ``land used in farming.''
1.175-5 Percentage limitation and carryover.
1.175-6 Adoption or change of method.
1.175-7 Allocation of expenditures in certain circumstances.
1.177-1 Election to amortize trademark and trade name expenditures.
1.178-1 Depreciation or amortization of improvements on leased property 
          and cost of acquiring a lease.
1.178-2 Related lessee and lessor.
1.178-3 Reasonable certainty test.
1.179-0 Table of contents for section 179 expensing rules.
1.179-1 Election to expense certain depreciable assets.
1.179-2 Limitations on amount subject to section 179 election.
1.179-3 Carryover of disallowed deduction.
1.179-4 Definitions.
1.179-5 Time and manner of making election.
1.179-5T Time and manner of making election (temporary).
1.179-6 Effective date.

[[Page 6]]

1.179A-1 Recapture of deduction for qualified clean-fuel vehicle 
          property and qualified clean-fuel vehicle refueling property.
1.179B-1T Deduction for capital costs incurred in complying with 
          Environmental Protection Agency sulfur regulations 
          (temporary).
1.179C-1 Election to expense certain refineries.
1.180-1 Expenditures by farmers for fertilizer, etc.
1.180-2 Time and manner of making election and revocation.
1.181-0 Table of contents.
1.181-1 Deduction for qualified film and television production costs.
1.181-2 Election to deduct production costs.
1.181-3 Qualified film or television production.
1.181-4 Special rules.
1.181-5 Examples.
1.181-6 Effective/applicability date.
1.182-1 Expenditures by farmers for clearing land; in general.
1.182-2 Definition of ``the business of farming.''
1.182-3 Definition, exceptions, etc., relating to deductible 
          expenditures.
1.182-4 Definition of ``land suitable for use in farming'', etc.
1.182-5 Limitation.
1.182-6 Election to deduct land clearing expenditures.
1.183-1 Activities not engaged in for profit.
1.183-2 Activity not engaged in for profit defined.
1.183-3 Election to postpone determination with respect to the 
          presumption described in section 183(d). [Reserved]
1.183-4 Taxable years affected.
1.186-1 Recoveries of damages for antitrust violations, etc.
1.187-1 Amortization of certain coal mine safety equipment.
1.187-2 Definitions.
1.188-1 Amortization of certain expenditures for qualified on-the-job 
          training and child care facilities.
1.190-1 Expenditures to remove architectural and transportation barriers 
          to the handicapped and elderly.
1.190-2 Definitions.
1.190-3 Election to deduct architectural and transportation barrier 
          removal expenses.
1.193-1 Deduction for tertiary injectant expenses.
1.194-1 Amortization of reforestation expenditures.
1.194-2 Amount of deduction allowable.
1.194-3 Definitions.
1.194-4 Time and manner of making election.
1.195-1 Election to amortize start-up expenditures.
1.197-0 Table of contents.
1.197-1T Certain elections for intangible property (temporary).
1.197-2 Amortization of goodwill and certain other intangibles.
1.197-2T Amortization of goodwill and certain other intangibles 
          (temporary).
1.199-0 Table of contents.
1.199-1 Income attributable to domestic production activities.
1.199-2 Wage limitation.
1.199-3 Domestic production gross receipts.
1.199-4 Costs allocable to domestic production gross receipts.
1.199-5 Application of section 199 to pass-thru entities for taxable 
          years beginning after May 17, 2006, the enactment date of the 
          Tax Increase Prevention and Reconciliation Act of 2005.
1.199-6 Agricultural and horticultural cooperatives.
1.199-7 Expanded affiliated groups.
1.199-8 Other rules.
1.199-9 Application of section 199 to pass-thru entities for taxable 
          years beginning on or before May 17, 2006, the enactment date 
          of the Tax Increase Prevention and Reconciliation Act of 2005.

             Additional Itemized Deductions for Individuals

1.211-1 Allowance of deductions.
1.212-1 Nontrade or nonbusiness expenses.
1.213-1 Medical, dental, etc., expenses.
1.215-1 Periodic alimony, etc., payments.
1.215-1T Alimony, etc., payments (temporary).
1.216-1 Amounts representing taxes and interest paid to cooperative 
          housing corporation.
1.216-2 Treatment as property subject to depreciation.
1.217-1 Deduction for moving expenses paid or incurred in taxable years 
          beginning before January 1, 1970.
1.217-2 Deduction for moving expenses paid or incurred in taxable years 
          beginning after December 31, 1969.
1.219-1 Deduction for retirement savings.
1.219-2 Definition of active participant.
1.221-1 Deduction for interest paid on qualified education loans after 
          December 31, 2001.
1.221-2 Deduction for interest due and paid on qualified education loans 
          before January 1, 2002.

                   Special Deductions for Corporations

1.241-1 Allowance of special deductions.
1.242-1 Deduction for partially tax-exempt interest.
1.243-1 Deduction for dividends received by corporations.
1.243-2 Special rules for certain distributions.
1.243-3 Certain dividends from foreign corporations.

[[Page 7]]

1.243-4 Qualifying dividends.
1.243-5 Effect of election.
1.244-1 Deduction for dividends received on certain preferred stock.
1.244-2 Computation of deduction.
1.245-1 Dividends received from certain foreign corporations.
1.246-1 Deductions not allowed for dividends from certain corporations.
1.246-2 Limitation on aggregate amount of deductions.
1.246-3 Exclusion of certain dividends.
1.246-4 Dividends from a DISC or former DISC.
1.246-5 Reduction of holding periods in certain situations.
1.247-1 Deduction for dividends paid on preferred stock of public 
          utilities.
1.248-1 Election to amortize organizational expenditures.
1.249-1 Limitation on deduction of bond premium on repurchase.
1.249-1T Limitation on deduction of bond premium on repurchase 
          (temporary).

                          Items Not Deductible

1.261-1 General rule for disallowance of deductions.
1.262-1 Personal, living, and family expenses.
1.263(a)-0 Table of contents.
1.263(a)-0T Table of contents (temporary).
1.263(a)-1 Capital expenditures; In general.
1.263(a)-1T Capital expenditures; in general (temporary)--
1.263(a)-2 Amounts paid to acquire or produce tangible property.
1.263(a)-2T Amounts paid to acquire or produce tangible property 
          (temporary).
1.263(a)-3 Amounts paid to improve tangible property.
1.263(a)-3T Amounts paid to improve tangible property (temporary).
1.263(a)-4 Amounts paid to acquire or create intangibles.
1.263(a)-5 Amounts paid or incurred to facilitate an acquisition of a 
          trade or business, a change in the capital structure of a 
          business entity, and certain other transactions.
1.263(a)-6T Election to deduct or capitalize certain expenditures 
          (temporary).
1.263(b)-1 Expenditures for advertising or promotion of good will.
1.263(c)-1 Intangible drilling and development costs in the case of oil 
          and gas wells.
1.263(e)-1 Expenditures in connection with certain railroad rolling 
          stock.
1.263(f)-1 Reasonable repair allowance.
1.263A-0 Outline of regulations under section 263A.
1.263A-1 Uniform capitalization of costs.
1.263A-1T Uniform capitalization of costs (temporary).
1.263A-2 Rules relating to property produced by the taxpayer.
1.263A-3 Rules relating to property acquired for resale.
1.263A-4 Rules for property produced in a farming business.
1.263A-5 Exception for qualified creative expenses incurred by certain 
          free-lance authors, photographers, and artists. [Reserved]
1.263A-6 Rules for foreign persons. [Reserved]
1.263A-7 Changing a method of accounting under section 263A.
1.263A-8 Requirement to capitalize interest.
1.263A-9 The avoided cost method.
1.263A-10 Unit of property.
1.263A-11 Accumulated production expenditures.
1.263A-12 Production period.
1.263A-13 Oil and gas activities.
1.263A-14 Rules for related persons.
1.263A-15 Effective dates, transitional rules, and anti-abuse rule.
1.264-1 Premiums on life insurance taken out in a trade or business.
1.264-2 Single premium life insurance, endowment, or annuity contracts.
1.264-3 Effective date; taxable years ending after March 1, 1954, 
          subject to the Internal Revenue Code of 1939.
1.264-4 Other life insurance, endowment, or annuity contracts.
1.265-1 Expenses relating to tax-exempt income.
1.265-2 Interest relating to tax-exempt income.
1.265-3 Nondeductibility of interest relating to exempt-interest 
          dividends.
1.266-1 Taxes and carrying charges chargeable to capital account and 
          treated as capital items.
1.267(a)-1 Deductions disallowed.
1.267(a)-2T Temporary regulations; questions and answers arising under 
          the Tax Reform Act of 1984 (temporary).
1.267(a)-3 Deduction of amounts owed to related foreign persons.
1.267(b)-1 Relationships.
1.267(c)-1 Constructive ownership of stock.
1.267(d)-1 Amount of gain where loss previously disallowed.
1.267(d)-2 Effective date; taxable years subject to the Internal Revenue 
          Code of 1939.
1.267(f)-1 Controlled groups.
1.268-1 Items attributable to an unharvested crop sold with the land.
1.269-1 Meaning and use of terms.
1.269-2 Purpose and scope of section 269.
1.269-3 Instances in which section 269(a) disallows a deduction, credit, 
          or other allowance.
1.269-4 Power of district director to allocate deduction, credit, or 
          allowance in part.
1.269-5 Time of acquisition of control.
1.269-6 Relationship of section 269 to section 382 before the Tax Reform 
          Act of 1986.

[[Page 8]]

1.269-7 Relationship of section 269 to sections 382 and 383 after the 
          Tax Reform Act of 1986.
1.269B-1 Stapled foreign corporations.
1.270-1 Limitation on deductions allowable to individuals in certain 
          cases.
1.271-1 Debts owed by political parties.
1.272-1 Expenditures relating to disposal of coal or domestic iron ore.
1.273-1 Life or terminable interests.
1.274-1 Disallowance of certain entertainment, gift and travel expenses.
1.274-2 Disallowance of deductions for certain expenses for 
          entertainment, amusement, recreation, or travel.
1.274-3 Disallowance of deduction for gifts.
1.274-4 Disallowance of certain foreign travel expenses.
1.274-5 Substantiation requirements.
1.274-5T Substantiation requirements (temporary).
1.274-6 Expenditures deductible without regard to trade or business or 
          other income producing activity.
1.274-6T Substantiation with respect to certain types of listed property 
          for taxable years beginning after 1985 (temporary).
1.274-7 Treatment of certain expenditures with respect to entertainment-
          type facilities.
1.274-8 Effective date.
1.274-9 Entertainment provided to specified individuals.
1.274-10 Special rules for aircraft used for entertainment.
1.275-1 Deduction denied in case of certain taxes.
1.276-1 Disallowance of deductions for certain indirect contributions to 
          political parties.
1.278-1 Capital expenditures incurred in planting and developing citrus 
          and almond groves.
1.279-1 General rule; purpose.
1.279-2 Amount of disallowance of interest on corporate acquisition 
          indebtedness.
1.279-3 Corporate acquisition indebtedness.
1.279-4 Special rules.
1.279-5 Rules for application of section 279(b).
1.279-6 Application of section 279 to certain affiliated groups.
1.279-7 Effect on other provisions.
1.280B-1 Demolition of structures.
1.280C-1 Disallowance of certain deductions for wage or salary expenses.
1.280C-3 Disallowance of certain deductions for qualified clinical 
          testing expenses when section 28 credit is allowable.
1.280C-4 Credit for increasing research activities.
1.280F-1T Limitations on investment tax credit and recovery deductions 
          under section 168 for passenger automobiles and certain other 
          listed property; overview of regulations (temporary).
1.280F-2T Limitations on recovery deductions and the investment tax 
          credit for certain passenger automobiles (temporary).
1.280F-3T Limitations on recovery deductions and the investment tax 
          credit when the business use percentage of listed property is 
          not greater than 50 percent (temporary).
1.280F-4T Special rules for listed property (temporary).
1.280F-5T Leased property (temporary).
1.280F-6 Special rules and definitions.
1.280F-7 Property leased after December 31, 1986.
1.280G-1 Golden parachute payments.
1.280H-0T Table of contents (temporary).
1.280H-1T Limitation on certain amounts paid to employee-owners by 
          personal service corporations electing alternative taxable 
          years (temporary).

            Taxable Years Beginning Prior to January 1, 1986

1.274-5A Substantiation requirements.

          Terminal Railroad Corporations and Their Shareholders

1.281-1 In general.
1.281-2 Effect of section 281 upon the computation of taxable income.
1.281-3 Definitions.
1.281-4 Taxable years affected.
1.282-1.300 [Reserved]

    Authority: 26 U.S.C. 7805.
    Section 1.170A-1 also issued under 26 U.S.C. 170(a).
    Section 1.170A-6 also issued under 26 U.S.C. 170(f)(4); 26 U.S.C. 
642(c)(5).
    Section 1.170A-12 also issued under 26 U.S.C. 170(f)(4).
    Section 1.170A-13 also issued under 26 U.S.C. 170(f)(8).
    Section 1.171-2 also issued under 26 U.S.C. 171(e).
    Section 1.171-2T also issued under 26 U.S.C. 171(e).
    Section 1.171-3 also issued under 26 U.S.C. 171(e).
    Section 1.171-4 also issued under 26 U.S.C. 171(c).
    Section 1.179-1 also issued under 26 U.S.C. 179(d)(6) and (10).
    Section 1.179-4 also issued under 26 U.S.C. 179(c).
    Section 1.179-6 also issued under 26 U.S.C. 179(c).
    Section 1.179A-1 also issued under 26 U.S.C. 179A(e)(4).
    Section 1.197-2 also issued under 26 U.S.C. 197.
    Section 1.199-1 also issued under 26 U.S.C. 199(d).
    Section 1.199-2 also issued under 26 U.S.C. 199(d).

[[Page 9]]

    Section 1.199-3 also issued under 26 U.S.C. 199(d).
    Section 1.199-4 also issued under 26 U.S.C. 199(d).
    Section 1.199-5 also issued under 26 U.S.C. 199(d).
    Section 1.199-6 also issued under 26 U.S.C. 199(d).
    Section 1.199-7 also issued under 26 U.S.C. 199(d).
    Section 1.199-8 also issued under 26 U.S.C. 199(d).
    Section 1.199-9 also issued under 26 U.S.C. 199(d).
    Section 1.216-2 also issued under 26 U.S.C. 216(d).
    Section 1.221-2 also issued under 26 U.S.C. 221(d).
    Section 1.263A-1 also issued under 26 U.S.C. 263A.
    Section 1.263A-2 also issued under 26 U.S.C. 263A.
    Section 1.263A-3 also issued under 26 U.S.C. 263A.
    Section 1.263A-4 also issued under 26 U.S.C. 263A.
    Section 1.263A-4T also issued under 26 U.S.C. 263A.
    Section 1.263A-5 also issued under 26 U.S.C. 263A.
    Section 1.263A-6 also issued under 26 U.S.C. 263A.
    Section 1.263A-7 also issued under 26 U.S.C. 263A.
    Section 1.263A-7T also issued under 26 U.S.C. 263A.
    Sections 1.263A-8 through 1.263A-15 also issued under 26 U.S.C. 
263A(i).
    Section 1.267(a)-3 also issued under 26 U.S.C. 267(a)(3).
    Section 1.267(f)-1 also issued under 26 U.S.C. 267 and 1502.
    Section 1.269-3(d) also issued under 26 U.S.C. 382(m).
    Section 1.274-5 also issued under 26 U.S.C. 274(d).
    Section 1.274-5T also issued under 26 U.S.C. 274(d).
    Section 1.274-9 also issued under 26 U.S.C. 274(o).
    Section 1.274-10 also issued under 26 U.S.C. 274(o).
    Section 1.274(d)-1 also issued under 26 U.S.C. 274(d).
    Section 1.274(d)-1T also issued under 26 U.S.C. 274(d).
    Section 1.280C-4 also issued under 26 U.S.C. 280C(c) and 103 Stat. 
2413.
    Section 1.280F-1T also issued under 26 U.S.C. 280F.
    Section 1.280F-6 also issued under 26 U.S.C. 280F.
    Section 1.280F-7 also issued under 26 U.S.C. 280F(c).
    Section 1.280G-1 also issued under 26 U.S.C. 280G(b) and (e).

    Source: T.D. 6500, 25 FR 11402, Nov. 26, 1960; 25 FR 14021, Dec. 31, 
1960, T.D. 9381, 73 FR 8604, Feb. 15, 2008 unless otherwise noted.

                COMPUTATION OF TAXABLE INCOME (CONTINUED)

    Itemized Deductions for Individuals and Corporations (Continued)



Sec. 1.170-0  Effective dates.

    Except as otherwise provided in this section, the provisions of 
section 170 and Sec. Sec. 1.170-1 through 1.170-3 are applicable to 
contributions paid in taxable years beginning before January 1, 1970, 
and all references therein to sections of the Code are to sections of 
the Internal Revenue Code of 1954 prior to the amendments made by 
section 201(a) of the Tax Reform Act of 1969 (83 Stat. 549). Except as 
otherwise provided therein, Sec. Sec. 1.170A through 1.170A-11 are 
applicable to contributions paid in taxable years beginning after 
December 31, 1969. In a case where a provision in Sec. Sec. 1.170A 
through 1.170A-11 is applicable to a contribution paid in a taxable year 
beginning before January 1, 1970, such provision shall apply to the 
contribution and Sec. Sec. 1.170-1 through 1.170-3 shall not apply to 
the contribution.

[T.D. 7207, 37 FR 20767, Oct. 5, 1972]



Sec. 1.170-1  Charitable, etc., contributions and gifts; allowance of 
deduction (before amendment by Tax Reform Act of 1969).

    (a) In general--(1) General rule. Any charitable contribution (as 
defined in section 170(c)) actually paid during the taxable year is 
allowable as a deduction in computing taxable income, regardless of the 
method of accounting employed or when pledged. In addition, 
contributions by corporations may under certain circumstances be 
deductible even though not paid during the taxable year (see Sec. 
1.170-3), and subject to the provisions of section 170(b)(5) and 
paragraph (g) of Sec. 1.170-2, certain excess charitable contributions 
made by individuals in taxable years beginning after December 31, 1963, 
shall be treated as paid in certain succeeding taxable years. The 
deduction is subject to the limitations of section 170(b) (see 
Sec. Sec. 1.170-2 and 1.170-3) and is subject to verification by the 
district director. For rules relating to the determination

[[Page 10]]

of, and the deduction for, amounts paid to maintain certain students as 
members of the taxpayer's household and treated under section 170(d) as 
paid for the use of an organization described in section 170(c) (2), 
(3), or (4), see paragraph (f) of Sec. 1.170-2. For a special rule 
relating to the computation of the amount of the deduction with respect 
to a contribution of section 1245 or section 1250 property, see section 
170(e).
    (2) Information required in support of deductions for taxable years 
beginning before January 1, 1964. In connection with claims for 
deductions for charitable contributions paid in taxable years beginning 
before January 1, 1964, taxpayers shall state in their income tax 
returns the name and address of each organization to which a 
contribution was made and the amount and approximate date of the actual 
payment of each contribution. Any deduction for charitable contribution 
must be substantiated, when required by the district director, by a 
statement from the organization to which the contribution was made 
indicating whether the organization is a domestic organization, the name 
and address of the contributor, the amount of the contribution, and the 
date of its actual payment, and by such other information as the 
district director may deem necessary.
    (3) Information required in support of deductions for taxable years 
beginning after December 31, 1963--(i) In general. In connection with 
claims for deductions for charitable contributions paid in taxable years 
beginning after December 31, 1963, taxpayers shall state in their income 
tax returns the name of each organization to which a contribution was 
made and the amount and date of the actual payment of each contribution. 
If a contribution is made in property other than money, the taxpayer 
shall state the kind of property contributed (for example, used 
clothing, paintings, securities) and shall state the method utilized in 
determining the fair market value of the property at the time the 
contribution was made. In any case in which a taxpayer makes numerous 
cash contributions to an organization during the taxable year, the 
taxpayer may state the total cash payments made to such organization 
during the taxable year in lieu of listing each cash contribution and 
the date of payment.
    (ii) Contribution by individual of property other than money. If an 
individual taxpayer makes a charitable contribution of an item of 
property other than money and claims a deduction in excess of $200 in 
respect of his contribution of such item, he shall attach to his income 
tax return a statement setting forth the following information with 
respect to such item:
    (a) The name and address of the organization to which the 
contribution was made.
    (b) The date of the actual contribution.
    (c) A description of the property in sufficient detail to identify 
the particular property contributed including, in the case of tangible 
property, the physical condition of the property at the time of 
contribution. In the case of securities, the name of the issuer, the 
type of security, and whether or not such security is regularly traded 
on a stock exchange or in an over-the-counter market.
    (d) The manner (for example, by purchase, gift, bequest, 
inheritance, exchange, etc.) and the approximate date of acquisition of 
the property by the taxpayer. If the property was created, produced, or 
manufactured by the taxpayer, the approximate date the property was 
substantially completed.
    (e) The fair market value of the property at the time the 
contribution was made, showing the method utilized in determining the 
fair market value. (If the valuation was determined by appraisal, a copy 
of the signed report of the appraiser should be submitted.)
    (f) In the case of property (not including securities) held by the 
taxpayer for a period less than five years immediately preceding the 
date on which the contribution was made, the cost or other basis, 
adjusted as provided by section 1016. If available, the cost or other 
basis, adjusted as provided by section 1016, of property (not including 
securities) held for a period of five years or more prior to the time of 
contribution should be submitted.
    (g) In the case of section 1245 or section 1250 property, the 
reduction by reason of section 170(e) in the amount

[[Page 11]]

of the charitable contribution taken into account under section 170.
    (h) The terms of any agreement or understanding entered into by or 
on behalf of the taxpayer relating to the use, sale, or disposition of 
the property contributed. For example, there must be attached to the 
income tax return of an individual taxpayer the terms of any agreement 
or understanding which restricts the donee's right to dispose of the 
donated property (either temporarily or permanently) or which reserves 
to, or confers upon, anyone other than the donee organization (or an 
organization participating with such organization in cooperative fund 
raising) any right to the income from such property, to the possession 
of the property (including the right to vote securities), to acquire 
such property by purchase or otherwise, or to designate who shall have 
such income, possession, or right to acquire. Notwithstanding the above, 
it will not be necessary to set forth the terms of any agreement or 
understanding which merely earmarks contributed property for a 
particular charitable use, such as the use of donated furniture in the 
reading room of the donee organization's library.
    (i) The total amount claimed as a deduction for the taxable year due 
to the contribution of the property. If less than the entire interest in 
the property is contributed during the taxable year, the amount claimed 
as a deduction in any prior year or years for contributions of other 
interests in such property, the name and address of each organization to 
which any such contribution was made, the place where the property (if 
tangible property) is located or kept and the name of the person having 
actual possession of the property, if other than the organization to 
which the property giving rise to the deduction was contributed.
    (iii) Statement from donee organization. Any deduction for a 
charitable contribution must be substantiated, when required by the 
district director, by a statement from the organization to which the 
contribution was made indicating whether the organization is a domestic 
organization, the name and address of the contributor, the amount of the 
contribution, the date of actual receipt of the contribution, and such 
other information as the district director may deem necessary. If the 
contribution includes an item of property (other than money or 
securities which are regularly traded on a stock exchange or in an over-
the-counter market) which the donee deems to have a fair market value in 
excess of $200 at the time of receipt, such statement shall also 
indicate for each such item its location if retained by the 
organization, the amount received by the organization on any sale of the 
property and the date of sale, or in case of other disposition of the 
property, the method of disposition.
    (b) Time of making contribution. Ordinarly a contribution is made at 
the time delivery is effected. In the case of a check, the unconditional 
delivery (or mailing) of a check which subsequently clears in due course 
will constitute an effective contribution on the date of delivery (or 
mailing). If a taxpayer unconditionally delivers (or mails) a properly 
endorsed stock certificate to a charitable donee or the donee's agent, 
the gift is completed on the date of delivery (or mailing, provided that 
such certificate is received in the ordinary course of the mails). If 
the donor delivers the certificate to his bank or broker as the donor's 
agent, or to the issuing corporation or its agent, for transfer into the 
name of the donee, the gift is completed on the date the stock is 
transferred on the books of the corporation. For rules relating to a 
contribution consisting of a future interest in tangible personal 
property, see paragraph (d)(2) of this section.
    (c) Contribution in property--(1) General rules. If a contribution 
is made in property other than money, the amount of the deduction is 
determined by the fair market value of the property at the time of the 
contribution. The fair market value is the price at which the property 
would change hands between a willing buyer and a willing seller, neither 
being under any compulsion to buy or sell and both having reasonable 
knowledge of relevant facts. If the contribution is made in property of 
a type which the taxpayer sells in the course of his business, the fair 
market value is the price which the taxpayer would have received if he 
had sold the

[[Page 12]]

contributed property in the lowest usual market in which he customarily 
sells, at the time and place of the contribution (and in the case of a 
contribution of goods in quantity, in the quantity contributed). The 
usual market of a manufacturer or other producer consists of the 
wholesalers or other distributors to or through whom he customarily 
sells, unless he sells only at retail in which event it is his retail 
customers. If a donor makes a charitable contribution of, for example, 
stock in trade at a time when he could not reasonably have been expected 
to realize its usual selling price, the value of the gift is not the 
usual selling price but is the amount for which the quantity of 
merchandise contributed would have been sold by the donor at the time of 
the contribution. Costs and expenses incurred in the year of 
contribution in producing or acquiring the contributed property are not 
deductible and are not a part of the cost of goods sold. Similarly, to 
the extent that costs and expenses incurred in a prior taxable year in 
producing or acquiring the contributed property are reflected in the 
cost of goods sold in the year of contribution, cost of goods sold must 
be reduced by such costs and expenses. Transfers of property to an 
organization described in section 170(c) which bear a direct 
relationship to the taxpayer's business and which are made with a 
reasonable expectation of financial return commensurate with the amount 
of the transfer may constitute allowable deductions as trade or business 
expenses rather than as charitable contributions. See section 162 and 
the regulations thereunder.
    (2) Reduction for certain interest. (i) With respect to charitable 
contributions made after December 31, 1957, section 170(b)(4) requires 
that the amount of the charitable deduction be reduced for certain 
interest to the extent necessary to avoid the reduction of the same 
amount both as an interest deduction under section 163 and as a 
deduction for charitable contributions under section 170. The reduction 
is to be determined in accordance with subdivisions (ii) and (iii) of 
this subparagraph.
    (ii) With respect to charitable contributions made after December 
31, 1957, in determining the amount to be taken into account as a 
charitable contribution for purposes of section 170, the amount 
determined without regard to section 170(b)(4) or this subparagraph 
shall be reduced by the amount of interest which has been paid (or is to 
be paid) by the taxpayer, which is attributable to any liability 
connected with the contribution, and which is attributable to any period 
of time after the making of the contribution. The deduction otherwise 
allowable for charitable contributions under section 170 is required to 
be reduced pursuant to section 170(b)(4) only if, in connection with a 
charitable contribution, a liability is assumed by the recipient of the 
contribution or by any other person, or if the charitable contribution 
is of property which is subject to a liability. Thus, if the 
contribution is made in property and the transfer is conditioned upon 
the assumption of a liability by the donee or by some other person, any 
interest paid (or to be paid) by the taxpayer, attributable to the 
liability, and with respect to a period after the making of the 
contribution, will serve to reduce the amount that may be taken into 
account as a charitable contribution for purposes of section 170. The 
adjustment referred to in this subdivision must also be made where the 
contributed property is subject to a liability and the value of the 
property reflects the payment by the donor of interest with respect to a 
period of time after the making of the contribution.
    (iii) If, in connection with the charitable contribution, after 
December 31, 1957, of a bond, a liability is assumed by the recipient or 
by any other person, or if the bond is subject to a liability, then, in 
determining the amount to be taken into account as a charitable 
contribution under section 170, the amount determined without regard to 
section 170(b)(4) or this subparagraph shall, without regard to whether 
any reduction may be required by subdivision (ii) of this subparagraph, 
also be reduced for interest which has been paid (or is to be paid) by 
the taxpayer on indebtedness incurred or continued to purchase or carry 
such bond, and which is attributable to any period before the making of 
the contribution.

[[Page 13]]

However, the reduction referred to in this subdivision shall be made 
only to the extent that such reduction does not exceed the interest 
(including bond discount and other interest equivalent) receivable on 
the bond, and attributable to any period before the making of the 
contribution which is not, by reason of the taxpayer's method of 
accounting, includible in the taxpayer's gross income for any taxable 
year. For purposes of section 170(b)(4) and this subdivision the term 
bond means any bond, debenture, note, or certificate or other evidence 
of indebtedness.
    (iv) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. A, an individual using the cash receipts and 
disbursements method of accounting, on January 1, 1960, contributed to a 
charitable organization real estate having a fair market value of 
$10,000. In connection with the contribution the charitable organization 
assumed an indebtedness of $8,000 which A had incurred. A has prepaid 
two years' interest on that indebtedness (for 1960 and 1961) amounting 
to $960, and has taken an interest deduction of $960 for such amount. 
The amount of the gift, determined without regard to this subparagraph, 
is $2,960 ($10,000 less $8,000, the outstanding indebtedness, plus $960, 
the amount of prepaid interest). In determining the amount of the 
deduction for charitable contributions, the value of the gift ($2,960) 
must be reduced by $960 to eliminate from the computation of such 
deduction that portion thereof for which A has been allowed an interest 
deduction.
    Example 2. On January 1, 1960, B, an individual using the cash 
receipts and disbursements method of accounting, purchased for $9,600 a 
5\1/2\ percent $10,000, 20-year M Corporation bond, the interest on 
which was payable semiannually on June 30 and December 31. The M 
Corporation had issued the bond on January 1, 1950, at a discount of 
$720 from the principal amount. On December 1, 1960, B donated the bond 
to a charitable organization, and, in connection with the contribution, 
the charitable organization assumed an indebtedness of $7,000 which B 
had incurred to purchase and carry the bond. During the calendar year 
1960 B paid accrued interest of $330 on the indebtedness for the period 
from January 1 to December 1, 1960, and has taken an interest deduction 
of $330 for such amount. No portion of the bond discount of $36 a year 
($720 divided by 20 years) has been included in B's income, and of the 
$550 of annual interest receivable on the bond, he included in income 
only the June 30 payment of $275. The market value of the bond on the 
date of the contribution was $9,902. Such value reflects a proportionate 
part of the original bond discount ($9,280 plus $393, or $9,673) and of 
interest receivable of $229 which had accrued from July 1 to December 1, 
1960. The amount of the charitable contribution determined without 
regard to this subparagraph is $2,902 ($9,902, the value of the property 
on the date of gift, less $7,000, the amount of the liability assumed by 
the charitable organization). In determining the amount of the allowable 
deduction for charitable contributions, the value of the gift ($2,902) 
must be reduced to eliminate from the deduction that portion thereof for 
which B has been allowed an interest deduction. Although the amount of 
such interest deduction was $330, the reduction required by this 
subparagraph is limited to $262, since the reduction is not in excess of 
the amount of interest income on the bond ($229 of accrued interest plus 
$33, the amount of bond discount attributable to the eleven-month period 
B held the bond).

    (3) Reduction for depreciable property. (i) With respect to a 
charitable contribution of section 1245 property (as defined in section 
1245(a)(3)), or section 1250 property (as defined in section 1250(c)), 
section 170(e) requires that the amount of the charitable contribution 
taken into account under section 170 shall be reduced by the amount 
which would have been treated (but was not actually treated) as gain to 
which section 1245(a)(1) or 1250(a) (relating to gain from dispositions 
of depreciable property) applies if the property contributed had been 
sold at its fair market value (determined at the time of such 
contribution).
    (ii) Section 170(e) applies to charitable contributions of section 
1245 property in taxable years beginning after December 31, 1962, except 
that in respect of section 1245 property which is an elevator or 
escalator section 170(e) applies to charitable contributions after 
December 31, 1963. Section 170(e) applies to charitable contributions of 
section 1250 property after December 31, 1963.
    (iii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. Jones contributes to a charitable organization section 1245 
property which has an adjusted basis of $10,000, a recomputed basis (as 
defined in section 1245 (a)(2)) of $14,000, and a fair market value of 
$17,000. If Jones had instead sold the property at its fair market 
value, he would have recognized

[[Page 14]]

gain under section 1245(a)(1) of $4,000. See paragraph (b) of Sec. 
1.1245-1. Under section 170(e), the amount of the charitable 
contribution taken into account under section 170 is reduced by $4,000. 
Accordingly, the amount of the charitable contribution is $13,000 
($17,000 minus $4,000).

    (d) Transfers of income and future interests--(1) In general. A 
deduction may be allowed for a contribution of an interest in the income 
from property or an interest in the remainder (but see subparagraph (2) 
of this paragraph for rules relating to transfers, after December 31, 
1963, of future interests in tangible personal property). The income or 
remainder interest shall be valued according to the tables referred to 
in paragraph (d) of Sec. 1.170-2. For rules with respect to certain 
transfers to a trust, see paragraph (d) of Sec. 1.170-2.
    (2) Future interests in tangible personal property. (i) Except as 
otherwise provided in subdivision (iii) of this subparagraph, a 
contribution consisting of a transfer, after December 31, 1963, in a 
taxable year ending after such date, of a future interest in tangible 
personal property shall be treated as made only when:
    (a) All intervening interests in, and rights to the actual 
possession or enjoyment of, the property have expired, or
    (b) Are held by persons other than the taxpayer or those standing in 
a relationship to the taxpayer described in section 267(b) and the 
regulations thereunder (relating to losses, expenses, and interest with 
respect to transactions between related taxpayers).

Section 170(f) and this subparagraph have no application in respect of a 
transfer of an undivided present interest in property. For example, a 
contribution of an undivided one-quarter interest in a painting with 
respect to which the donee is entitled to possession during three months 
of each year shall be treated as made upon the receipt by the donee of a 
formally executed and acknowledged deed of gift. Section 170(f) and this 
subparagraph have no application in respect of a transfer of a future 
interest in intangible personal property or in real property. However, a 
fixture which is intended to be severed from real property shall be 
treated as tangible personal property. For example, a contribution of a 
future interest in a chandelier which is attached to a building is 
considered a contribution which consists of a future interest in 
tangible personal property if the transferor intends that it be detached 
from the building at or prior to the time when the charitable 
organization's right to possession or enjoyment of the chandelier is to 
commence. For purposes of section 170(f) and this subparagraph, the term 
future interest has generally the same meaning as it has when used in 
section 2503, relating to taxable gifts, see Sec. 25.2503-3 of Part 25 
of this chapter (Gift Tax Regulations), and such term includes 
reversions, remainders, and other interests or estates, whether vested 
or contingent, and whether or not supported by a particular interest or 
estate, which are limited to commence in use, possession or enjoyment at 
some future date or time. The term future interest includes situations 
in which a donor purports to give tangible personal property to a 
charitable organization, but has an understanding, arrangement, 
agreement, etc. (whether written or oral) with the charitable 
organization which has the effect of reserving to, or retaining in, such 
donor a right to the use, possession, or enjoyment of the property.
    (ii) The provisions of subdivision (i) of this subparagraph may be 
illustrated by the following examples:

    Example 1. On December 31, 1964, A, an individual who reports his 
income on the calendar year basis, conveys by deed of gift to a museum 
title to a painting, but reserves to himself the right to the use, 
possession, and enjoyment of the painting during his lifetime. At the 
time of the gift the value of the painting is $90,000. Since the 
contribution consists of a future interest in tangible personal property 
in which the donor has retained an intervening interest, no contribution 
is considered as having been made in 1964.
    Example 2. Assume the same facts as in Example 1 except that on 
December 31, 1965, A relinquishes all of his right to the use, 
possession, and enjoyment of the painting and delivers the painting to 
the museum. Assuming that the value of the painting has increased to 
$95,000, A is treated as having made a charitable contribution of 
$95,000 in 1965.

[[Page 15]]

    Example 3. Assume the same facts as Example 1 except A dies without 
relinquishing his right to the use, possession, and enjoyment of the 
painting. Since A did not relinquish his right to the use, possession, 
and enjoyment of the property during his life, A is treated as not 
having made a charitable contribution of the painting for income tax 
purposes.
    Example 4. Assume the same facts as in Example 1 except A, on 
December 31, 1965, transfers his interest in the painting to his son, B. 
Since the relationship between A and B is one described in section 
267(b), no contribution of the remainder interest in the painting is 
considered as having been made in 1965.
    Example 5. Assume the same facts as in Example 4. Also assume that 
on December 31, 1966, B conveys the interest measured by A's life to the 
museum. B has made a charitable contribution of the present interest in 
the painting conveyed to the museum (i.e., the life interest measured by 
A's life expectancy in 1966 valued according to paragraph (f), Table 1, 
of Sec. 20.2031-7 of Part 20 of this chapter (Estate Tax Regulations)). 
In addition, since all intervening interests in, and rights to the 
actual possession or enjoyment of the property, have expired, a 
charitable contribution of the remainder interest is treated as having 
been made by A in 1966. Such remainder interest shall also be valued 
according to paragraph (f), Table 1, of Sec. 20.2031-7 of Part 20 of 
this chapter (Estate Tax Regulations)).

    (iii) Section 209(f)(3) of the Revenue Act of 1964 (78 Stat. 47) 
provides an exception to the rule set forth in section 170(f). Pursuant 
to the exception, section 170(f) and subdivision (i) of this 
subparagraph shall not apply in the case of a transfer of a future 
interest in tangible personal property made after December 31, 1963, and 
before July 1, 1964, where:
    (a) The sole intervening interest or right is a nontransferable life 
interest reserved by the donor, or
    (b) In the case of a joint gift by husband and wife, the sole 
intervening interest or right is a nontransferable life interest 
reserved by the donors which expires not later than the death of 
whichever of such donors dies later.

For purposes of the preceding sentence, the right to make a transfer of 
the reserved life interest to the donee of the future interest shall not 
be treated as making a life interest transferable.
    (e) Transfers subject to a condition or a power. If as of the date 
of a gift a transfer for charitable purposes is dependent upon the 
performance of some act or the happening of a precedent event in order 
that it might become effective, no deduction is allowable unless the 
possibility that the charitable transfer will not become effective is so 
remote as to be negligible. If an interest passes to or is vested in 
charity on the date of the gift and the interest would be defeated by 
the performance of some act or the happening of some event, the 
occurrence of which appeared to have been highly improbable on the date 
of the gift, the deduction is allowable. The deduction is not allowed in 
the case of a transfer in trust conveying a present interest in income 
if by reason of all the conditions and circumstances surrounding the 
transfer it appears that the charity may not receive the beneficial 
enjoyment of the interest. For example, assume that assets placed in 
trust consist of stock in a corporation the fiscal policies of which are 
controlled by the donor and his family, that the trustees and 
remaindermen are likewise members of the donor's family, and that the 
governing instrument contains no adequate guarantee of the requisite 
income to the charitable organization. Under such circumstances, no 
deduction will be allowed. Similarly, if the trustees were not members 
of the donor's family but had no power to sell or otherwise dispose of 
closely held stock, or otherwise insure the requisite enjoyment of 
income to the charitable organization, no deduction would be allowed.
    (f) Exceptions. (1) This section does not apply to contributions by 
estates and trusts (see section 642(c)). For disallowance of certain 
charitable deductions otherwise allowable under section 170, see 
sections 503(e) and 681(b)(5) (relating to organizations engaged in 
prohibited transactions). For disallowance of deductions for 
contributions to or for the use of communist controlled organizations, 
see section 11(a) of the Internal Security Act of 1950, as amended (50 
U.S.C. 790). For denial of deduction for charitable contributions as 
trade or business expenses and rules with respect to treatment of 
payments to organizations other than those described in section 170(c), 
see section 162 and the regulations thereunder.

[[Page 16]]

    (2) No deduction shall be allowed under section 170 for amounts paid 
to an organization:
    (i) A substantial part of the activities of which is carrying on 
propaganda, or otherwise attempting, to influence legislation, or
    (ii) Which participates in or intervenes in any political campaign 
on behalf of any candidate for public office.

For purposes of determining whether an organization is attempting to 
influence legislation or is engaging in political activities, see 
section 501(c)(3) and the regulations thereunder. Moreover, no deduction 
shall be allowed under section 170 for expenditures for lobbying 
purposes, promotion or defeat of legislation, etc. See also the 
regulations under section 162.
    (3) No deduction for charitable contributions is allowed in 
computing the taxable income of a common trust fund or of a partnership. 
See sections 584(d) and 703(a)(2)(D). However, a partner's distributive 
share of charitable contributions actually paid by a partnership during 
its taxable year may be allowed as a deduction in the partner's separate 
return for his taxable year with or within which the taxable year of the 
partnership ends, to the extent that the aggregate of his share of the 
partnership contributions and his own contributions does not exceed the 
limitations in section 170 (b). In the case of a nonresident alien 
individual, or a citizen of the United States entitled to the benefits 
of section 931, see sections 873(c), 876, and 931.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6605, 27 FR 
8094, Aug. 15, 1962; T.D. 6785, 29 FR 18499, Dec. 29, 1964; T.D. 6832, 
30 FR 8574, July 7, 1965; T.D. 6900, 31 FR 14633, Nov. 17, 1966; T.D. 
7084, 36 FR 266, Jan. 8, 1971; T.D. 7207, 37 FR 20768, Oct. 4, 1972]



Sec. 1.170-2  Charitable deductions by individuals; limitations (before 
amendment by Tax Reform Act of 1969).

    (a) In general. (1) A deduction is allowable to an individual under 
section 170 only for charitable contributions actually paid during the 
taxable year, regardless of when pledged and regardless of the method of 
accounting employed by the taxpayer in keeping his books and records. A 
contribution to an organization described in section 170(c) is 
deductible even though some portion of the funds of the organization may 
be used in foreign countries for charitable or educational purposes. The 
deduction by an individual for charitable contributions under section 
170 is limited generally to 20 percent of the taxpayer's adjusted gross 
income (computed without regard to any net operating loss carryback to 
the taxable year under section 172). If a husband and wife make a joint 
return, the deduction for contributions is the aggregate of the 
contributions made by the spouses, and the limitation in section 170(b) 
is based on the aggregate adjusted gross income of the spouses. The 20-
percent limitation applies to amounts contributed during the taxable 
year ``to or for the use of'' those recipients described in section 
170(c), including amounts treated under section 170(d) as paid for the 
use of an organization described in section 170(c) (2), (3), or (4). See 
paragraph (f) of this section. The limitation is computed without regard 
to contributions qualifying for the additional 10-percent deduction. For 
examples of the application of the 10- and 20-percent limitation, see 
paragraph (b)(5) of this section. For special rules reducing amount of 
certain charitable deductions, see paragraph (c)(2) of Sec. 1.170-1.
    (2) No deduction is allowable for contribution of services. However, 
unreimbursed expenditures made incident to the rendition of services to 
an organization contributions to which are deductible may constitute a 
deductible contribution. For example, the cost of a uniform without 
general utility which is required to be worn in performing donated 
services is deductible. Similarly, out-of-pocket transportation expenses 
necessarily incurred in rendering donated services are deductible. 
Reasonable expenditures for meals and lodging necessarily incurred while 
away from home in the course of rendering donated services also are 
deductible. For the purposes of this section, the phrase while away from 
home has the same meaning as that phrase is used for purposes of section 
162.
    (3)(i) In the case of an annuity or portion thereof purchased from 
an organization described in section 170(c), there

[[Page 17]]

shall be allowed as a deduction the excess of the amount paid over the 
value at the time of purchase of the annuity or portion purchased.
    (ii) The value of the annuity or portion is the value of the annuity 
determined in accordance with section 101(b) and the regulations 
thereunder.
    (b) Additional 10-percent deduction--(1) In general. In addition to 
the deduction which may be allowed for contributions subject to the 
general 20-percent limitation, an individual may deduct charitable 
contributions made during the taxable year to the organizations 
specified in section 170(b)(1)(A) to the extent that such contributions 
in the aggregate do not exceed 10 percent of his adjusted gross income 
(computed without regard to any net operating loss carryback to the 
taxable year under section 172). The additional 10-percent deduction may 
be allowed with respect to contributions to:
    (i) A church or a convention or association of churches,
    (ii) An educational organization referred to in section 503(b)(2) 
and defined in subparagraph (3)(i) of this paragraph,
    (iii) A hospital referred to in section 503(b)(5) and defined in 
subparagraph (4)(i) of this paragraph,
    (iv) Subject to certain conditions and limitations set forth in 
subparagraph (4)(ii) of this paragraph, and for taxable years beginning 
after December 31, 1955, a medical research organization referred to in 
section 503(b)(5),
    (v) Subject to certain limitations and conditions set forth in 
subparagraph (3)(ii) of this paragraph, and for taxable years beginning 
after December 31, 1960, an organization referred to in section 
503(b)(3) which is organized and operated for the benefit of certain 
State and municipal colleges and universities,
    (vi) For taxable years beginning after December 31, 1963, a 
governmental unit referred to in section 170(c)(1), and
    (vii) Subject to certain limitations and conditions set forth in 
subparagraph (5) of this paragraph, and for taxable years beginning 
after December 31, 1963, an organization referred to in section 
170(c)(2).

To qualify for the additional 10-percent deduction the contributions 
must be made ``to'', and not merely ``for the use of'', one of the 
specified organizations. A contribution to an organization referred to 
in section 170(c)(2) (other than an organization specified in 
subdivisions (i) through (vi) of this subparagraph) which, for taxable 
years beginning after December 31, 1963, is not ``publicly supported'' 
under the rules of subparagraph (5) of this paragraph will not qualify 
for the additional 10-percent deduction even though such organization 
makes the contribution available to an organization which is specified 
in section 170(b)(1)(A). The computation of this additional deduction is 
not necessary unless the total contributions paid during the taxable 
year are in excess of the general 20-percent limitation. Where the total 
contributions exceed the 20-percent limitation, the taxpayer should 
first ascertain the amount of charitable contributions subject to the 
10-percent limitation, and any excess over the 10-percent limitation 
should then be added to all other contributions and limited by the 20-
percent limitation. For provisions relating to a carryover of certain 
charitable contributions made by individuals, see paragraph (g) of this 
section.
    (2) Church. For definition of church, see the regulations under 
section 511.
    (3) Educational organization and organizations for the benefit of 
certain State and municipal colleges and universities--(i) Educational 
organization. An educational organization within the meaning of section 
170(b)(1)(A) is one whose primary function is the presentation of formal 
instruction and which normally maintains a regular faculty and 
curriculum and normally has a regularly enrolled body of pupils or 
students in attendance at the place where its educational activities are 
regularly carried on. The term, therefore, includes institutions such as 
primary, secondary, preparatory, or high schools, and colleges and 
universities. It includes Federal, State, and other public-supported 
schools which otherwise come within the definition. It does not include 
organizations engaged in both educational and noneducational activities 
unless the latter are merely incidental to and growing out of the 
educational activities. A recognized university which incidentally 
operates a

[[Page 18]]

museum or sponsors concerts is an educational organization. However, the 
operation of a school by a museum does not necessarily qualify the 
museum as an educational organization. A gift to an educational 
institution through an alumni association or a class organization, which 
acts simply as a fund-raising or collection agency through which gifts 
may be made currently to the institution, is a gift to the educational 
organization if the entire gift inures to its benefit, but not if any 
part of it inures to the general or operating fund of the agency. 
Similarly, a gift to one or more educational institutions through an 
association of educational institutions will be considered a gift to the 
institutions if it inures entirely to their benefit.
    (ii) Organizations for the benefit of certain State and municipal 
colleges and universities. (a) For taxable years beginning after 
December 31, 1960, gifts made to an organization referred to in section 
503(b)(3) organized and operated exclusively to receive, hold, invest, 
and administer property and to make expenditures to or for the benefit 
of certain colleges and universities, may be taken into account in 
computing the additional 10-percent limitation. The phrase expenditures 
to or for the benefit of certain colleges and universities includes 
expenditures made for any one or more of the normally accepted functions 
of colleges and universities, for example, for the acquisition and 
maintenance of real property comprising part of the campus area, the 
erection of or participation in the erection of college or university 
buildings, scholarships, libraries, student loans, and the acquisition 
and maintenance of equipment and furnishings used for or in conjunction 
with normally accepted functions of colleges and universities.
    (b) The recipient organization must be one which normally receives a 
substantial portion of its support from the United States or any State 
or political subdivision thereof or from direct or indirect 
contributions from the general public, or from a combination of two or 
more of such sources. An example of an indirect contribution from the 
public would be the receipt by the organization of its share of the 
proceeds of an annual collection campaign of a community chest, 
community fund, or united fund.
    (c) The college or university (including land grant colleges and 
universities) to be benefited must be an educational organization 
referred to in section 170(b)(1)(A)(ii) and subdivision (i) of this 
subparagraph; and must be an agency or instrumentality of a State or 
political subdivision thereof, or must be owned or operated by a State 
or political subdivision thereof or by an agency or instrumentality of 
one or more States or political subdivisions.
    (4) Hospital and medical research organization--(i) Hospital. The 
term hospital, as used in section 170(b)(1)(A), means an organization 
the principal purposes or functions of which are the providing of 
hospital or medical care. The term includes Federal and State hospitals 
otherwise coming within the definition but does not include medical 
education organizations, or medical research organizations. See, 
however, subdivision (ii) of this subparagraph, relating to 
contributions to certain medical research organizations for taxable 
years beginning after December 31, 1955. A rehabilitation institution or 
an outpatient clinic may qualify as a hospital if its principal purposes 
or functions are the providing of hospital or medical care. The term 
hospital does not include convalescent homes or homes for children or 
the aged, nor does the term include institutions whose principal 
purposes or functions are to train handicapped individuals to pursue 
some vocation.
    (ii) Certain medical research organizations. (a) For taxable years 
beginning after December 31, 1955, certain charitable contributions made 
to certain medical research organizations may be taken into account in 
computing the additional 10-percent limitation. To be so taken into 
account the charitable contribution must be made to a medical research 
organization that is directly engaged in the continuous active conduct 
of medical research in conjunction with a hospital (as defined in 
subdivision (i) of this subparagraph), and, during the calendar year in 
which the contribution is made, the organization must be committed to 
spend the contribution for such active conduct of

[[Page 19]]

medical research before January 1 of the fifth calendar year beginning 
after the date the contribution is made.
    (b) As used in section 170(b)(1)(A) and this subparagraph, the term 
medical research organization means an organization the principal 
purpose or function of which is to engage in medical research. Medical 
research may be defined as the conduct of investigations, experiments, 
and studies to discover, develop, or verify knowledge relating to the 
causes, diagnosis, treatment, prevention, or control of physical or 
mental diseases and impairments of man. To qualify as a medical research 
organization, the organization must have the appropriate equipment and 
professional personnel necessary to carry out its principal function.
    (c) The organization must, at the time of the contribution, be 
directly engaged in the continuous active conduct of medical research in 
conjunction with a hospital described in subdivision (i) of this 
subparagraph. The organization need not be formally affiliated with a 
hospital to be considered engaged in the active conduct of medical 
research in conjunction with a hospital, but it must be physically 
connected, or closely associated, with a hospital. In any case, there 
must be a joint effort on the part of the research organization and the 
hospital pursuant to an understanding that the two organizations shall 
maintain continuing close cooperation in the active conduct of medical 
research. For example, the necessary joint effort will normally be found 
to exist if the activities of the medical research organization are 
carried on in space located within or adjacent to a hospital provided 
that the organization is permitted to utilize the facilities (including 
equipment, case studies, etc.) of the hospital on a continuing basis in 
the active conduct of medical research. A medical research organization 
which is closely associated, in the manner described above, with a 
particular hospital or particular hospitals, may be considered to be 
pursuing research in conjunction with a hospital if the necessary joint 
effort is supported by substantial evidence of the close cooperation of 
the members of the research organization and the staff of the particular 
hospital or hospitals. The active participation in medical research by 
the staff of the particular hospital or hospitals will be considered as 
evidence of the requisite joint effort. If the organization's primary 
purpose is to disburse funds to other organizations for the conduct of 
research by them, or, if the organization's primary purpose is to extend 
research grants or scholarships to others, it is not directly engaged in 
the active conduct of medical research, and contributions to such an 
organization may not be taken into account for purposes of the 
additional 10-percent limitation.
    (d) A charitable contribution to a medical research organization may 
be taken into account in computing the additional 10-percent limitation 
only if the organization is committed to spend such contribution for 
medical research in conjunction with a hospital on or before the first 
day of the fifth calendar year which begins after the date the 
contribution is made. The organization's commitment that the 
contribution will be spent within the prescribed time only for the 
prescribed purposes must be legally enforceable. A promise in writing to 
the donor in consideration of his making a contribution that such 
contribution will be so spent within the prescribed time will constitute 
a commitment. The expenditure of contributions received for plant, 
facilities, or equipment, used solely for medical research purposes 
shall ordinarily be considered to be an expenditure for medical research 
for purposes of section 170(b) and this section. If a contribution is 
made in other than money, it shall be considered spent for medical 
research if the funds from the proceeds of a disposition thereof are 
spent by the organization within the five-year period for medical 
research; or, if such property is of such a kind that it is used on a 
continuing basis directly in connection with such research, it shall be 
considered spent for medical research in the year in which it is first 
so used.
    (5) Corporation, trust, or community chest, fund, or foundation--(i) 
In general. (a) For taxable years beginning after December 31, 1963, 
gifts made to a corporation, trust, or community chest,

[[Page 20]]

fund, or foundation, referred to in section 170(c)(2) (other than an 
organization specified in subparagraph (1) (i) through (vi) of this 
paragraph), may be taken into account in computing the additional 10-
percent limitation, provided the organization is a ``publicly 
supported'' organization. For purposes of this subparagraph, an 
organization is ``publicly supported'' if it normally receives a 
substantial part of its support from a governmental unit referred to in 
section 170(c)(1) or from direct or indirect contributions from the 
general public.
    (b) An important factor in determining whether an organization 
normally receives a substantial part of its support from ``direct or 
indirect contributions from the general public'' is the extent to which 
the organization derives its support from or through voluntary 
contributions made by persons representing the general public. Except in 
unusual situations (particularly in the case of newly created 
organizations), an organization is not ``publicly supported'' if it 
receives contributions only from the members of a single family or from 
a few individuals.
    (ii) Special rules and meaning of terms. (a) For purposes of this 
subparagraph, the term support, except as otherwise provided in (b) of 
this subdivision (ii), means all forms of support including (but not 
limited to) contributions received by the organization, investment 
income (such as, interest, rents, royalties, and dividends), and net 
income from unrelated business activities whether or not such activities 
are carried on regularly as a trade or business.
    (b) The term support does not include:
    (1) Any amounts received from the exercise or performance by an 
organization of its charitable, educational, or other purpose or 
function constituting the basis for its exemption under section 501(a). 
In general, such amounts include amounts received from any activity the 
conduct of which is substantially related to the furtherance of such 
purpose or function (other than through the production of income).
    (2) Any gain upon the sale or exchange of property which would be 
considered under any section of the Code as gain from the sale or 
exchange of a capital asset.
    (3) Contributions of services for which a deduction is not 
allowable.
    (c) The term support from a governmental unit includes:
    (1) Any amounts received from a governmental unit including 
donations or contributions and amounts received in connection with a 
contract entered into with a governmental unit for the performance of 
services or in connection with a government research grant, provided 
such amounts are not excluded from the term support under (b) of this 
subdivision (ii). For purposes of (b)(1) of this subdivision (ii), an 
amount paid by a governmental unit to an organization is not received 
from the exercise or performance of its charitable, educational, or 
other purpose or function constituting the basis for its exemption under 
section 501(a) if the purpose of the payment is to enable the 
organization to provide a service to, or maintain a facility for, the 
direct benefit of the public, as, for example, the maintenance of 
library facilities which are open to the public.
    (2) Tax revenues levied for the benefit of the organization and 
either paid to or expended on behalf of the organization.
    (3) The value of services or facilities (exclusive of services or 
facilities generally furnished, without charge, to the public) furnished 
by a governmental unit to the organization without charge, as, for 
example, where a city pays the salaries of personnel used to guard a 
museum, art gallery, etc., or provides, rent free, the use of a 
building. However, the term does not include the value of any exemption 
from Federal, State, or local tax or any similar benefit.
    (d) The term indirect contributions from the general public includes 
contributions received by the organization from organizations which 
normally receive a substantial part of their support from direct 
contributions from the general public.
    (iii) Determination of whether organization is ``publicly 
supported''--(a) In general. No single test which would be appropriate 
in every case may be prescribed for determining whether a corporation, 
trust, or community chest, fund, or foundation, referred to in section 
170(c)(2), is ``publicly supported''.

[[Page 21]]

For example, since the statutory test is whether the organization 
normally receives a substantial part of its support from the prescribed 
sources, a test which would be appropriate in the case of an 
organization which has been in operation for a number of years would not 
necessarily be appropriate in the case of a newly established 
organization. The determination of whether an organization is ``publicly 
supported'' depends on the facts and circumstances in each case. Thus, 
although a ``mechanical test'' is set forth in (b) of this subdivision 
(iii), such test is not an exclusive test. Accordingly, an organization 
which does not qualify as a ``publicly supported'' organization by 
application of the ``mechanical test'' may qualify as a ``publicly 
supported'' organization on the basis of the facts and circumstances in 
its case. For provisions relating to the facts and circumstances test, 
see (c) of this subdivision (iii).
    (b) Mechanical test. An organization will be considered to be a 
``publicly supported'' organization for its current taxable year and the 
taxable year immediately succeeding its current year, if, for the four 
taxable years immediately preceding the current taxable year, the total 
amount of the support which the organization receives from governmental 
units, from donations made directly or indirectly by the general public, 
or from a combination of these sources equals 33\1/3\ percent or more of 
the total support of the organization for such four taxable years. The 
rule in the preceding sentence does not apply if there are substantial 
changes in the organization's character, purposes, or methods of 
operation in the current year, and does not apply in respect of the 
immediately succeeding taxable year if such changes occur in such year. 
In determining whether the 33\1/3\-percent-of-support test is met, 
contributions by an individual, trust, or corporation shall be taken 
into account only to the extent that the total amount of the 
contributions by any such individual, trust, or corporation during the 
four-taxable-year period does not exceed 1 percent of the organization's 
total support for such four taxable years. In applying the 1-percent 
limitation, all contributions made by a donor and by any person or 
persons standing in a relationship to the donor which is described in 
section 267(b) and the regulations thereunder shall be treated as made 
by one person. The 1-percent limitation shall not apply to support from 
governmental units referred to in section 170(c)(1) or to contributions 
from ``publicly supported'' organizations. A national organization which 
carries out its purposes through local chapters with which it has an 
identity of aims and purposes may, for purposes of determining whether 
the organization and the local chapters meet the mechanical test, make 
the computation on an aggregate basis.

    Example. For the years 1964 through 1967, X, an organization 
referred to in section 170(c)(2), received support (as defined in 
subdivision (ii) of this subparagraph) of $600,000 from the following 
sources:

Investment income...........................................    $300,000
City Y (a governmental unit referred to in section                40,000
 170(c)(1)).................................................
United Fund (an organization referred to in section               40,000
 170(c)(2) which is ``publicly supported'').................
Contributions...............................................     220,000
                                                             -----------
   Total support............................................     600,000
 

    For the years 1964 through 1967, X received in excess of 33\1/3\ 
percent of its support from a governmental unit referred to in section 
170(c)(1) and from direct and indirect contributions from the general 
public computed as follows:

33\1/3\ percent of total support............................    $200,000
                                                             ===========
Support from a governmental unit referred to in section           40,000
 170(c)(1)..................................................
Indirect contributions from the general public (United Fund)      40,000
Contributions by various donors (no one donor having made         50,000
 contributions which total in excess of $6,000--1 percent of
 total support).............................................
12 contributions (each in excess of $6,000--1 percent of          72,000
 total support) 12x$6,000...................................
                                                             -----------
                                                                 202,000
                                                             ===========
 

    Since the amount of X's support from governmental units referred to 
in section 170 (c)(1) and from direct and indirect contributions from 
the general public in the years 1964 through 1967 is in excess of 33\1/
3\ percent of X's total support for such four taxable years, X is 
considered a ``publicly supported'' organization with respect to 
contributions made to it during 1968 and 1969 without regard to whether 
X receives 33\1/3\ percent of its support during 1968 or 1969 from such 
sources (assuming that there are no substantial changes in X's 
character, purposes, or methods of operation).


[[Page 22]]


    (c) Facts and circumstances test. (1) A corporation, trust, or 
community chest, fund or foundation referred to in section 170(c)(2) 
which does not qualify as a ``publicly supported'' organization under 
the mechanical test described in (b) of this subdivision (iii) 
(including an organization which has not been in existence for a 
sufficient length of time to make such test applicable) may be a 
``publicly supported'' organization on the basis of the facts and 
circumstances in its case.
    (2) The facts and circumstances which are relevant and the weight to 
be accorded such facts and circumstances may differ in certain cases 
depending, for example, on the nature of the organization and the period 
of time it has been in existence. However, under no circumstances will 
an organization which normally receives substantially all of its 
contributions (directly or indirectly) from the members of a single 
family or from a few individuals qualify as a ``publicly supported'' 
organization.
    (3) For purposes of the facts and circumstances test the most 
important consideration is the organization's source of support. An 
organization will be considered a ``publicly supported'' organization if 
it is constituted so as to attract substantial support from 
contributions, directly or indirectly, from a representative number of 
persons in the community or area in which it operates. In determining 
what is a ``representative number of persons,'' consideration must be 
given to the type of organization and whether or not the organization 
limits its activities to a special field which can be expected to appeal 
to a limited number of persons. An organization is so constituted if, 
for example, it establishes that it does in fact receive substantial 
support from contributions from a representative number of persons; that 
pursuant to its organizational structure and method of operation it 
makes bona fide solicitations for broad based public support, or, in the 
case of a newly created organization, that its organizational structure 
and method of operation are such as to require bona fide solicitations 
for broad based public support; that it receives substantial support 
from a community chest or similar public federated fund raising 
organization, such as a United Fund or United Appeal; or that it has a 
substantial number of members (in relation to the community it serves, 
the nature of its activities, and its total support) who pay annual 
membership dues.
    (4) Although primary consideration will be given to the source of an 
organization's support, other relevant factors may be taken into account 
in determining whether or not the organization is of a public nature, 
such as:
    (i) Whether the organization has a governing body (whether 
designated in the organization's bylaws, certificate of incorporation, 
deed of trust, etc., as a Board of Directors, Board of Trustees, etc.) 
which is comprised of public officials, of individuals chosen by public 
officials acting in their capacity as such, or of citizens broadly 
representative of the interests and views of the public. This 
characteristic does not exist if the membership of an organization's 
governing body is such as to indicate that it represents the personal or 
private interests of a limited number of donors to the organization (or 
persons standing in a relationship to such donors which is described in 
section 267(b) and the regulations thereunder), rather than the 
interests of the community or the general public.
    (ii) Whether the organization annually or more frequently makes 
available to the public financial reports or, in the case of a newly 
created organization, is constituted so as to require such reporting. 
For this purpose an information or other return made pursuant to a 
requirement of a governmental unit shall not be considered a financial 
report. An organization shall be considered as making financial reports 
of its operations available to the public if it publishes a financial 
report in a newspaper which is widely circulated in the community in 
which the organization operates or if it makes a bona fide dissemination 
of a brochure containing a financial report.
    (iii) If the organization is of a type which generally holds open to 
the public its buildings (as in the case of a museum) or performances 
conducted by it (as in the case of a symphonic orchestra), whether the 
organization actually follows such practice, or, in the case of

[[Page 23]]

a newly created organization, is so organized as to require that its 
facilities be open to the public.
    (5) The application of this subdivision (c) may be illustrated by 
the following examples:

    Example 1. M, a community trust, is an organization referred to in 
section 170(c)(2). In 1950, M was organized in the X Community by 
several leading trusts and financial institutions with the purpose of 
serving permanently the educational and charitable needs of the X 
Community by providing a means by which the public may establish funds 
or make gifts of various amounts to established funds which are 
administered as an aggregate fund with provision for distribution of 
income and, in certain cases, principal for educational or charitable 
purposes by a single impartial committee. The M Organization, by 
distribution of pamphlets to the public through participating trustee 
banks, actively solicits members of the X Community and other concerned 
parties to establish funds within the trust or to contribute to 
established funds within the trust. Under the declaration of trust, a 
contributor to a fund may suggest or request (but not require) that his 
contribution be used in respect of his preferred charitable, 
educational, or other benevolent purpose, and distributions of the 
income from the fund, and in certain cases the principal, will be made 
by the Distribution Committee with regard to such request unless 
changing conditions make such purpose unnecessary, undesirable, 
impractical, or impossible in which case income and (where the 
contributor has so specified) principal will be distributed by the 
Distribution Committee in order to promote the public welfare more 
effectively. Where a contributor has not expressed a desire as to a 
charitable, educational, or other benevolent purpose, the Distribution 
Committee will distribute the entire annual income from the fund to such 
a purpose agreed upon by such committee. The Distribution Committee is 
composed of representatives of the community chosen one each by the X 
Bar Association, the X Medical Society, the mayor of X Community, the 
judge of the highest X Court, and the president of the X College, and 
two representatives chosen by the participating trustee banks. There are 
a number of separate funds within the trust administered by several 
participating banks. M has consistently distributed or used its entire 
annual income for projects with purposes described in section 
170(c)(2)(B) from which members of the public may benefit or to other 
organizations described in section 170(b)(1)(A) which so distribute or 
use such income. Through its participating trustee banks, M annually 
makes available to the public a brochure containing a financial 
statement of its operations including a list of all receipts and 
disbursements. Under the facts and circumstances, M is a ``publicly 
supported'' organization.
    Example 2. Assume the same facts as in Example 1 except that M has 
been in existence for only one year and only two contributors have 
established funds within the trust. The Distribution Committee has been 
chosen and is required by the governing declaration of trust to make 
annual distribution of the entire income of the trust to projects with 
purposes described in section 170(c)(2)(B) from which members of the 
public may benefit or to other organizations described in section 
170(b)(1)(A) which so distribute or use such income. The declaration of 
trust and other governing instruments require (1) that the M Community 
Trust actively solicit contributions from members of the X Community 
through dissemination of literature and other public appeals, and (2) 
that it make available to the members of the X Community, annual 
financial reports of its operations. Under the facts and circumstances, 
M is a ``publicly supported'' organization.
    Example 3. N, an art museum, is an organization referred to in 
section 170(c)(2). In 1930, N was founded in Y City by the members of a 
single family to collect, preserve, interpret, and display to the public 
important works of art. N is governed by a self-perpetuating Board of 
Trustees limited by the governing instruments to a maximum membership of 
20 individuals. The original board consisted almost entirely of members 
of the founding family. Since 1945, members of the founding family or 
persons standing in a relationship to the members of such family 
described in section 267(b) have annually constituted less than one-
fifth of the Board of Trustees. The remaining board members are citizens 
of Y City from a variety of professions and occupations who represent 
the interests and views of the people of Y City in the activities 
carried on by the organization rather than the personal or private 
interests of the founding family. N solicits contributions from the 
general public and for each of its four most recent taxable years has 
received total contributions in small sums (less than $100) in excess of 
$10,000. For N's four most recent taxable years, investment income from 
several large endowment funds has constituted 75 percent of its total 
support. N normally expends a substantial part of its annual income for 
purposes described in section 170(c)(2)(B). N has, for the entire period 
of its existence, been open to the public and more than 300,000 people 
(from the Y City and elsewhere) have visited the museum in each of its 
four most recent taxable years. N annually publishes a financial report 
of its operation in the Y City newspaper. Under the facts and 
circumstances, N museum is a ``publicly supported'' organization.

[[Page 24]]

    Example 4. In 1960, the O Philharmonic Orchestra was organized in Z 
City through the combined efforts of a local music society and a local 
women's club to present to the public a wide variety of musical programs 
intended to foster music appreciation in the community. O is an 
organization referred to in section 170(c)(2). The orchestra is composed 
of professional musicians who are paid by the association. Twelve 
performances, open to the public, are scheduled each year. The admission 
charge for each of these performances is $3. In addition, several 
performances are staged annually without charge. In each of its four 
most recent taxable years, O has received separate contributions of 
$10,000 from A, B, C, and D (not members of a single family) and support 
of $5,000 from the Z Community Chest, a public federated fund raising 
organization operating in Z City. O is governed by a Board of Directors 
comprised of five individuals. A faculty member of a local college, the 
president of a local music society, the head of a local banking 
institution, a prominent doctor, and a member of the governing body of 
the local Chamber of Commerce currently serve on the Board and represent 
the interests and views of the community in the activities carried on by 
O. O annually files a financial report with Z City which makes such 
report available for public inspection. Under the facts and 
circumstances, O is a ``publicly supported'' organization.
    Example 5. P is a newly created organization of a type referred to 
in section 170 (c)(2). P's charter requires that its governing body be 
selected by public officials and by public organizations representing 
the community in which it operates. Pursuant to P's charter, a 
continuing fund raising campaign which will encompass the entire 
community has been planned. P's charter requires that its entire annual 
income be distributed to or used for projects with purposes described in 
section 170(c)(2)(B) and that it make available to the public annual 
financial reports of its operations. By reason of the express provisions 
of P's charter relating to its organizational structure and prescribed 
methods of operation, P is a ``publicly supported'' organization.

    (6) Examples. The application of the special 10-percent limitation 
and the general 20-percent limitation on contributions by individuals 
may be illustrated by the following examples:

    Example 1. A, an individual, reports his income on the calendar year 
basis and for the year 1957 has an adjusted gross income of $10,000. 
During 1957 he made the following charitable contributions:

1. Contributions qualifying for the additional        $2,400
 10-percent deduction under section 170(b)(1)(A)
2. Other charitable contributions...............         700
                                                 -----------------------
3. Total contributions paid.....................       3,100
                                                 =======================
 


 
                                                             Deductible
                                                           contributions
 
4. Contributions qualifying for the                 2,400
 additional 10-percent deduction under
 section 170(b)(1)(A)........................
5. Special limitation under section                 1,000
 170(b)(1)(A): 10 percent of adjusted gross
 income......................................
6. Deductible amount: line 4 or line 5,        ..........        $1,000
 whichever is the lesser.....................
                                              ------------
7. Excess of line 4 over line 5..............       1,400
8. Add: Other charitable contributions.......         700
                                              -------------
9. Contributions subject to the general 20-         2,100
 percent limitation under section
 170(b)(1)(B)................................
10. Limitation under section 170(b)(1)(B): 20       2,000
 percent of the adjusted gross income........
11. Deductible amount: line 9 or line 10,      ..........         2,000
 whichever is the lesser.....................
                                              ------------
12. Contributions not deductible.............         100
                                              ============--------------
13. Total deduction for contributions........  ..........         3,000
                                                          ==============
 

    Example 2. B, an individual, reports his income on the calendar year 
basis and for the year 1957 has an adjusted gross income of $10,000. 
During 1957 he made the following charitable contributions:

1. Contributions qualifying for the additional          $700
 10-percent deduction under section 170(b)(1)(A)
2. Other charitable contributions...............       2,400
                                                 ------------
3. Total contributions paid.....................       3,100
                                                 ============
4. Contributions qualifying for the additional           700
 10-percent deduction under section 170(b)(1)(A)
5. Limitation described in section 170(b)(1)(A):       1,000
 10 percent of the adjusted gross income........

[[Page 25]]

 
6. Deductible amount: line 4 or line 5,           ..........        $700
 whichever is the lesser........................
                                                 ------------
7. Excess of line 4 over line 5.................           0
8. Add: Other charitable contributions..........       2,400
                                                 ------------
9. Contributions subject to the general 20-            2,400
 percent limitation under section 170(b)(1)(B)..
10. Limitation under section 170(b)(1)(B): 20          2,000
 percent of the adjusted gross income...........
11. Deductible amount: line 9 or line 10,         ..........       2,000
 whichever is the lesser........................
                                                 ------------
12. Contributions not deductible................         400
                                                 ============-----------
13. Total deduction for contributions...........  ..........       2,700
                                                             ===========
 

    (c) Unlimited deduction for individuals--(1) In general. (i) The 
deduction for charitable contributions made by an individual is not 
subject to the 10- and 20-percent limitations of section 170(b) if in 
the taxable year and each of 8 of the 10 preceding taxable years the sum 
of his charitable contributions paid during the year, plus his payments 
during the year on account of Federal income taxes, is more than 90 
percent of his taxable income for the year (or net income, in years 
governed by the Internal Revenue Code of 1939). In determining the 
applicability of the 10- and 20-percent limitations of section 170(b) 
for taxable years beginning after December 31, 1957, there may be 
substituted, in lieu of the amount of income tax paid during any year, 
the amount of income tax paid in respect of such year, provided that any 
amount so included for the year in respect of which payment was made 
shall not be included for any other year. For the purpose of the first 
sentence of this paragraph, taxable income under the 1954 Code is 
determined without regard to the deductions for charitable contributions 
under section 170, for personal exemptions under section 151, or for a 
net operating loss carryback under section 172. On the other hand, for 
this purpose net income under the 1939 Code is computed without the 
benefit only of the deduction for charitable contributions. See section 
120 of the Internal Revenue Code of 1939. The term income tax as used in 
section 170(b)(1)(C) means only Federal income taxes, and does not 
include the taxes imposed on self-employment income, on employees under 
the Federal Insurance Contributions Act, and on railroad employees and 
their representatives under the Railroad Retirement Tax Act by Chapters 
2, 21, and 22, respectively, or corresponding provisions of the Internal 
Revenue Code of 1939. For purposes of section 170(b)(1)(C) and this 
paragraph, the amount of income tax paid during a taxable year shall be 
determined (except as provided in subdivision (ii) of this subparagraph) 
by including all payments made by the taxpayer during such taxable year 
on account of his Federal income taxes (whether for the taxable year or 
for preceding taxable years). Such payments would include any amount 
paid during the taxable year as estimated tax (exclusive of any portion 
of such amount for taxable years beginning after December 31, 1966, 
which is attributable to the self-employment tax imposed by chapter (2) 
for that year, payment of the final installment of estimated tax 
(exclusive of any portion of such installment, for taxable years 
beginning after December 31, 1966, which is attributable to the self-
employment tax imposed by chapter 2) for the preceding taxable year, 
final payment for the preceding taxable year, and any payment of a 
deficiency for an earlier taxable year, to the extent that such payments 
do not exceed the tax for the taxable year for which payment is made. 
Any payment of income tax with respect to which the taxpayer receives a 
refund or credit shall be reduced by the amount of such refund or 
credit. Any such refund or credit shall be applied against the most 
recent payments for the taxable year in respect of which the refund or 
credit arose.
    (ii) For any taxable year beginning after December 31, 1957, the 
applicability of the 10- and 20-percent limitations of section 170(b) 
may be determined either with reference to the income tax paid during 
the year or any prior year, or with reference to the income tax paid in 
respect of any such

[[Page 26]]

year or prior years. The 90-percent test of section 170(b)(1)(C) may be 
applied for the taxable year, or for any one or more of the preceding 10 
taxable years, by taking into account the income taxes paid in respect 
of that year or years, and for the balance of the 10 years by taking 
into account the income tax payments made during those years. Thus, a 
taxable year which qualifies under either of the two permissible methods 
shall be considered as a qualifying year irrespective of whether the 
taxable year begins before or after December 31, 1957. However, a 
particular income tax payment may only be taken into account once, 
either with respect to the year of liability or for the year of payment.
    (2) Joint returns--(i) Joint return for current taxable year. If a 
husband and wife make a joint return for any taxable year, their 
deduction for charitable contributions is not subject to the 10- and 20-
percent limitations of section 170(b), if, under the rules of 
subparagraph (1) of this paragraph, in the taxable year and in each of 8 
of the 10 preceding taxable years (regardless of whether separate or 
joint returns were filed), the aggregate charitable contributions of 
both spouses paid during the year, plus their aggregate payments during 
the year on account of Federal income taxes (or, if the taxable year 
begins after December 31, 1957, the aggregate tax paid in respect of 
such taxable year or any preceding taxable year) exceed 90 percent of 
their aggregate taxable incomes for the year.
    (ii) Separate return by spouse or by unremarried widow or widower. 
If a spouse, or the unremarried widow or widower of a deceased spouse, 
makes a separate return for any taxable year, his deduction for 
charitable contributions is not subject to the 10- and 20-percent 
limitations of section 170(b), if, under the rules of subparagraph (1) 
of this paragraph, in the taxable year and each of 8 of the 10 preceding 
taxable years:
    (a) For which the taxpayer filed a joint return with his spouse, 
either their aggregate charitable contributions and payments of Federal 
income taxes made during the taxable year (or if the taxable year begins 
after December 31, 1957, made in respect of such taxable year or any 
preceding taxable year) exceed 90 percent of their aggregate taxable 
income for that year, or the taxpayer's separate charitable 
contributions and payments of Federal income taxes allocable to his 
separate income and made during the taxable year (or if the taxable year 
begins after December 31, 1957, made in respect of such taxable year or 
any preceding taxable year) exceed 90 percent of his separate taxable 
income for that year, and (b) For which the taxpayer did not file a 
joint return with his spouse, the aggregate of his charitable 
contributions and payments of Federal income taxes made during the 
taxable year (or, if the taxable year begins after December 31, 1957, 
the payments of income taxes made in respect of such taxable year or any 
preceding taxable year) exceeds 90 percent of his taxable income for 
that year.

For the purpose of the preceding sentence, the word spouse does not 
include a spouse from whom the taxpayer has been divorced.
    (iii) Joint return with former spouse for prior taxable year. A 
divorced or remarried taxpayer who filed a joint return for a prior 
taxable year with a former spouse shall, for purposes of applying this 
paragraph, be treated in the same manner as if he had filed a separate 
return for such prior taxable year, and as if his Federal income tax 
liability and taxable income for such prior taxable year were his 
allocable portions of the joint tax liability and combined taxable 
income, respectively, for such year.
    (iv) Allocation. Whenever it is necessary to allocate the joint tax 
liability or the combined taxable income, or both, for a taxable year 
for which a joint return was filed, a computation shall be made for the 
taxpayer and for his spouse or former spouse showing for each of them 
the Federal income taxes and taxable income which would be determined if 
separate returns had been filed by them for such taxable year. The joint 
tax liability and conbined taxable income for such taxable year shall 
then be allocated proportionately to the income taxes and taxable 
income, respectively, so computed. Whenever it is necessary to determine

[[Page 27]]

the separate payments made by a taxpayer in respect of a joint tax 
liability, the amount paid by him during the taxable year as estimated 
tax (exclusive of any portion of such amount for taxable years beginning 
after December 31, 1966, which is attributable to the self-employment 
tax imposed by Chapter 2) for that year shall be included to the extent 
it does not exceed his allocable portion of the joint tax under Chapter 
1 (exclusive of tax under section 56) for the taxable year, and any 
amount paid by him for a prior year (whether as the final installment of 
estimated tax--exclusive of any portion of such installment, for taxable 
years beginning after December 31, 1966, which is attributable to the 
self-employment tax imposed by Chapter 2--for the preceding taxable 
year, or a final payment for the preceding year, or the payment of a 
deficiency for an earlier year) shall be included to the extent such 
amount, when added to amounts previously paid by him for such prior 
year, does not exceed his allocable portion of the joint tax liability 
for the prior year.
    (d) Denial of deduction in case of certain transfers in trust--(1) 
Reversionary interest in grantor. No charitable deduction will be 
allowed for the value of any interest in property transferred to a trust 
after March 9, 1954, if the grantor at the time of the transfer has a 
reversionary interest in the corpus or income and the value of such 
reversionary interest exceeds 5 percent of the total value on which the 
charitable deduction would, but for section 170(b)(1)(D), be determined. 
For purposes of this paragraph, the term reversionary interest means a 
possibility that after the possession or enjoyment of property or its 
income has been obtained by a charitable donee, the property or its 
income may revest in the grantor or his estate, or may be subject to a 
power exercisable by the grantor or a nonadverse party (within the 
meaning of section 672 (b)), or both, to revest in, or return to or for 
the benefit of, the grantor or his estate the property or income 
therefrom. An interest of the grantor which, in any event, will 
terminate before the ripening of the assured charitable gift for which a 
deduction is claimed is not considered a reversionary interest for 
purposes of this section. For example, assume that a taxpayer conveyed 
property to a trust under the terms of which the income is payable to 
the taxpayer's wife for her life, and, if she predeceases him, to him 
for his life, and after the death of both the property is to be 
transferred to a charitable organization.
    (2) Valuation of interests. The present value of the remainder 
interest in the property, taking into account the value of the life 
estates reserved to the taxpayer and his wife, may be allowed as a 
charitable deduction. Where the corpus of the trust is to return to the 
grantor after a number of years certain, the value of the reversionary 
interest at the time of the transfer may be computed by the use of 
tables showing the present value at 3\1/2\ percent a year, compuounded 
annually, of $1 payable at the end of a number of years certain. See 
paragraph (f), Table II, of Sec. 20.2031-7 of this chapter (Estate Tax 
Regulations). Where the value of a reversionary interest is dependent 
upon the continuation or termination of the life of one or more persons, 
it must be determined on the basis of Table 38 of United States Life 
Tables and Actuarial Tables 1939-1941, published by the United States 
Department of Commerce, Bureau of the Census, and interest at the rate 
of 3\1/2\ percent a year, compounded annually. See paragraph (f), Table 
I, of Sec. 20.2031-7 of this chapter (Estate Tax Regulations) for 
valuations based on one life, and ``Actuarial Values for Estate and Gift 
Tax`` (Internal Revenue Service Publication No. 11, Rev. 5-59) for 
values based on more than one life. In an actual case (not merely 
hypothetical), the grantor or his legal representative may, upon 
request, obtain the information necessary to determine such a value from 
the district director with whom the grantor files his return. The 
request must be accompanied by a statement showing the date of birth of 
each person the duration of whose life may affect the value of the 
reversionary interest and by copies of the instruments relevant to the 
transfer.
    (e) Fiscal years and short taxable years ending after March 9, 1954, 
subject to the Internal Revenue Code of 1939. Pursuant to section 
7851(a)(1)(C) of the Internal

[[Page 28]]

Revenue Code of 1954, the regulations prescribed in paragraph (d) of 
this section, to the extent that they relate to transfers in trust 
occurring after March 9, 1954, shall apply to all taxable years ending 
after March 9, 1954, even though those years may be subject to the 
Internal Revenue Code of 1939.
    (f) Amounts paid to maintain certain students as members of the 
taxpayer's household--(1) In General. (i) For taxable years beginning 
after December 31, 1959, the term charitable contribution includes 
amounts paid by the taxpayer during the taxable year to maintain certain 
students as members of his household which, under the provisions of 
section 170(d) and this paragraph, are treated as amounts paid for the 
use of an organization described in section 170(c) (2), (3), or (4), and 
such amounts, to the extent they do not exceed the limitations under 
section 170(d)(2) and paragraph (f)(2) of this section, are deductible 
contributions under section 170. In order for such amounts to be so 
treated, the student must be an individual who is neither a dependent 
(as defined in section 152) of the taxpayer nor related to the taxpayer 
in a manner described in any of the paragraphs (1) through (8) of 
section 152(a), and such individual must be a member of the taxpayer's 
household pursuant to a written agreement between the taxpayer and an 
organization described in section 170(c) (2), (3), or (4) to implement a 
program of the organization to provide educational opportunities for 
pupils or students placed in private homes by such organization. 
Furthermore, such amounts must be paid to maintain such individual 
during the period in the taxable year he is a member of the taxpayer's 
household and is a full-time pupil or student in the twelfth or any 
lower grade at an educational institution (as defined in section 
151(e)(4)) located in the United States. Amounts paid outside of the 
period (but within the taxable year) for expenses necessary for the 
maintenance of the student during the period will qualify for the 
charitable deduction if the other limitation requirements of the section 
are met.
    (ii) For purposes of paragraph (i) of this section, amounts treated 
as charitable contributions include only those amounts actually paid by 
the taxpayer during the taxable year which are directly attributable to 
the maintenance of the student while he is a member of the taxpayer's 
household and is attending school on a full-time basis. This would 
include amounts paid to ensure the well-being of the individual and to 
carry out the purpose for which the individual was placed in the 
taxpayer's home. For example, a deduction would be allowed for amounts 
paid for books, tuition, food, clothing, transportation, medical and 
dental care, and recreation for the individual. Amounts treated as 
charitable contributions under this paragraph do not include amounts 
which the taxpayer would have expended had the student not been in the 
household. They would not include, for example, amounts paid in 
connection with the taxpayer's home for taxes, insurance, interest on a 
mortgage, repairs, etc. Moreover, such amounts do not include any 
depreciation sustained by the taxpayer in maintaining such student or 
students in his household, nor do they include the value of any services 
rendered on behalf of such student or students by the taxpayer or any 
member of the taxpayer's household.
    (iii) For purposes of section 170(d) and this paragraph, an 
individual will be considered to be a full-time pupil or student at an 
educational institution only if he is enrolled for a course of study 
(prescribed for a full-time student) at such institution and is 
attending classes on a full-time basis. Nevertheless, such individual 
may be absent from school due to special circumstances and still be 
considered to be in full-time attendance. Periods during the regular 
school term when the school is closed for holidays, such as Christmas 
and Easter, and for periods between semesters are treated as periods 
during which the pupil or student is in full-time attendance at the 
school. Also, absences during the regular school term due to illness of 
such individual shall not prevent him from being considered as a full-
time pupil or student. Similarly, absences from the taxpayer's household 
due to special circumstances will not disqualify the student as a member 
of the household. Summer vacations between regular

[[Page 29]]

school terms are not considered periods of school attendance.
    (iv) As in the case of other charitable deductions, any deduction 
claimed for amounts described in section 170(d) and this paragraph which 
are treated as charitable contributions under section 170(c) is subject 
to verification by the district director. When claiming a deduction for 
such amounts, the taxpayer should submit a copy of his agreement with 
the organization sponsoring the individual placed in the taxpayer's 
household together with a summary of the various items for which amounts 
were paid to maintain such individual, and a statement as to the date 
the individual became a member of the household and the period of his 
attendance at school and the name and location of such school. 
Substantiation of amounts claimed must be supported by adequate records 
of the amounts actually paid. Due to the nature of certain items, such 
as food, a record of amounts spent for all members of the household, 
with an equal portion thereof allocated to each member, will be 
acceptable.
    (2) Limitations. Section 170(d) and this paragraph shall apply to 
amounts paid during the taxable year only to the extent that the amounts 
paid in maintaining each pupil or student do not exceed $50 multiplied 
by the number of full calendar months in the taxable year that the pupil 
or student is maintained in accordance with the provisions of this 
paragraph. For purposes of such limitation, if 15 or more days of a 
calendar month fall within the period to which the maintenance of such 
pupil or student relates, such month is considered as a full calendar 
month. To the extent that such amounts qualify as charitable 
contributions under section 170(c), the aggregate of such amounts plus 
other contributions made during the taxable year is deductible under 
section 170, subject to the 20-percent limitation provided in section 
170(b)(1)(B). Also, see Sec. 1.170-2(a)(1).
    (3) Compensation or reimbursement. Amounts paid during the taxable 
year to maintain a pupil or student as a member of the taxpayer's 
household, as provided in paragraph (f)(1) of this section, shall not be 
taken into account under section 170(d) of this paragraph, if the 
taxpayer receives any money or other property as compensation or 
reimbursement for any portion of such amounts. The taxpayer will not be 
denied the benefits of section 170(d) if he prepays an extraordinary or 
nonrecurring expense, such as a hospital bill or vacation trip, at the 
request of the individual's parents or the sponsoring organization and 
is reimbursed for such prepayment. The value of services performed by 
the pupil or student in attending to ordinary chores of the household 
will not generally be considered to constitute compensation or 
reimbursement. However, if the pupil or student is taken into the 
taxpayer's household to replace a former employee of the taxpayer or 
gratuitously to perform substantial services for the taxpayer, the facts 
and circumstances may warrant a conclusion that the taxpayer received 
reimbursement for maintaining the pupil or student.
    (4) No other amount allowed as deduction. Except to the extent that 
amounts described in section 170(d) and this paragraph are treated as 
charitable contributions under section 170(c) and, therefore, deductible 
under section 170(a), no deduction is allowed for any amount paid to 
maintain an individual, as a member of the taxpayer's household, in 
accordance with the provisions of section 170(d) and this paragraph.
    (5) Examples. Application of the provisions of this paragraph may be 
illustrated by the following examples:

    Example 1. The X organization is an organization described in 
section 170(c)(2) and is engaged in a program under which a number of 
European children are placed in the homes of United States residents in 
order to further the children's high school education. In accordance 
with the provisions of subparagraph (1) of this paragraph, the taxpayer, 
A, who reports his income on the calendar year basis, agreed with X to 
take two of the children, and they were placed in the taxpayer's home on 
January 2, 1960, where they remained until January 21, 1961, during 
which time they were fully maintained by the taxpayer. The children 
enrolled at the local high school for the full course of study 
prescribed for tenth grade students and attended the school on a full-
time basis for the spring semester starting January 18, 1960, and ending 
June 3, 1960, and for the fall semester starting September 1, 1960, and 
ending January 13, 1961. The total cost of food

[[Page 30]]

paid by A in 1960 for himself, his wife, and the two children amounted 
to $1,920, or $40 per month for each member of the household. Since the 
children were actually full-time students for only 8\1/2\ months during 
1960, the amount paid for food for each child during that period 
amounted to $340. Other amounts paid during the 8\1/2\ month period for 
each child for laundry, lights, water, recreation, and school supplies 
amounted to $160. Thus, the amounts treated under section 170(d) and 
this paragraph as paid for the use of X would, with respect to each 
child, total $500 ($340+$160), or a total for both children of $1,000, 
subject to the limitations of subparagraph (2) of this paragraph. Since, 
for purposes of such limitations, the children were full-time students 
for only 8 full calendar months during 1960 (less than 15 days in 
January 1960), the taxpayer may treat only $800 as a charitable 
contribution made in 1960, that is, $50 multiplied by the 8 full 
calendar months, or $400 paid for the maintenance of each child. Neither 
the excess payments nor amounts paid to maintain the children during the 
period before school opened and for the period in summer between regular 
school terms is taken into account by reason of section 170(d). Also, 
because the children were full-time students for less than 15 days in 
January 1961 (although maintained in the taxpayer's household for 21 
days), amounts paid to maintain the children during 1961 would not 
qualify as a charitable contribution.
    Example 2. A religious organization described in section 170(c)(2) 
has a program for providing educational opportunities for children it 
places in private homes. In order to implement the program, the 
taxpayer, H, who resides with his wife, son, and daughter of high school 
age in a town in the United States, signs an agreement with the 
organization to maintain a girl sponsored by the organization as a 
member of his household while the child attends the local high school 
for the regular 1960-61 school year. The child is a full-time student at 
the school during the school year starting September 6, 1960, and ending 
June 6, 1961, and is a member of the taxpayer's household during that 
period. Although the taxpayer pays $200 during the school period falling 
in 1960, and $240 during the school period falling in 1961, to maintain 
the child, he cannot claim either amount as a charitable contribution 
because the child's parents, from time to time during the school year, 
send butter, eggs, meat, and vegetables to H to help defray the expenses 
of maintaining the child. This is considered property received as 
reimbursement under subparagraph (3) of this paragraph. Had her parents 
not contributed the food, the fact that the child, in addition to the 
normal chores she shared with the taxpayer's daughter, such as cleaning 
their own rooms and helping with the shopping and cooking, was 
responsible for the family laundry and for the heavy cleaning of the 
entire house while the taxpayer's daughter had no comparable 
responsibilities would also preclude a claim for a charitable deduction. 
These substantial gratuitous services are considered property received 
as reimbursement under subparagraph (3) of this paragraph.
    Example 3. A taxpayer resides with his wife in a city in the eastern 
United States. He agrees, in writing, with a fraternal society described 
in section 170(c)(4) to accept a child selected by the society for 
maintenance by him as a member of his household during 1961 in order 
that the child may attend the local grammar school as a part of the 
society's program to provide elementary education for certain children 
selected by it. The taxpayer maintains the child, who has as his 
principal place of abode the home of the taxpayer, and is a member of 
the taxpayer's household, during the entire year 1961. The child is a 
full-time student at the local grammar school for 9 full calendar months 
during the year. Under the agreement, the society pays the taxpayer $30 
per month to help maintain the child. Since the $30 per month is 
considered as compensation or reimbursement to the taxpayer for some 
portion of the maintenance paid on behalf of the child, no amounts paid 
with respect to such maintenance can be treated as amounts paid in 
accordance with section 170(d). In the absence of the $30 per month 
payments, if the child qualifies as a dependent of the taxpayer under 
section 152(a)(9), that fact would also prevent the maintenance payments 
from being treated as charitable contributions paid for the use of the 
fraternal society.

    (g) Charitable contributions carryover of individuals--(1) 
Computation of excess charitable contributions made in contribution 
year. Subject to certain conditions and limitations, the excess of:
    (i) The amount of the charitable contributions made by an individual 
in a taxable year beginning after December 31, 1963 (hereinafter in this 
paragraph referred to as the ``contribution year''), to organizations 
specified in section 170(b)(1)(A) (see paragraph (b) of this section), 
over
    (ii) Thirty percent of his adjusted gross income (computed without 
regard to any net operating loss carryback to such year under section 
172) for such contribution year, shall be treated as a charitable 
contribution paid by him to an organization specified in section 
170(b)(1)(A) and paragraph (b) of this section, relating to the 
additional 10-percent deduction, in each of the 5 taxable years 
immediately succeeding the

[[Page 31]]

contribution year in order of time. (For provisions requiring a 
reduction of such excess, see subparagraph (5) of this paragraph.) The 
provisions of this subparagraph apply even though the taxpayer elects 
under section 144 to take the standard deduction in the contribution 
year instead of itemizing the deductions (other than those specified in 
sections 62 and 151) allowable in computing taxable income for the 
contribution year. No excess charitable contribution carryover shall be 
allowed with respect to contributions ``for the use of'' rather than 
``to'' organizations described in section 170(b)(1)(A) and paragraph (b) 
of this section or with respect to contributions made ``to'' or ``for 
the use of'' organizations which are not described in such sections. The 
provisions of section 170(b)(5) and this paragraph are not applicable in 
the case of estates or trusts, see section 642(c), relating to 
deductions for amounts paid or permanently set aside for a charitable 
purpose, and the regulations thereunder. The provisions of this 
subparagraph may be illustrated by the following examples:

    Example 1. Assume that H and W (husband and wife) have adjusted 
gross income for 1964 of $50,000 and for 1965 of $40,000 and file a 
joint return for each year. Assume further that in 1964 they contribute 
$16,500 to a church and $1,000 to X (an organization not referred to in 
section 170(b)(1)(A)) and in 1965 contribute $11,000 to the church and 
$400 to X. They may claim a charitable contribution deduction of $15,000 
in 1964, and the excess of $16,500 (contribution to the church) over 
$15,000 (30 percent of adjusted gross income) or $1,500 constitutes a 
charitable contribution carryover which shall be treated as a charitable 
contribution paid by them to an organization referred to in section 
170(b)(1)(A) in each of the 5 succeeding taxable years in order of time. 
No carryover is allowed with respect to the $1,000 contribution made to 
X in 1964. Since 30 percent of their adjusted gross income for 1965 
($12,000) exceeds the charitable contributions of $11,000 made by them 
in 1965 to organizations referred to in section 170(b)(1)(A) (computed 
without regard to section 170(b)(5) and this paragraph) the portion of 
the 1964 carryover equal to such excess of $1,000 ($12,000 minus 
$11,000) is treated, pursuant to the provisions of subparagraph (2) of 
this paragraph, as paid to a section 170(b)(1)(A) organization in 1965; 
the remaining $500 constitutes an unused charitable contribution 
carryover. No carryover is allowed with respect to the $400 contribution 
made to X in 1965.
    Example 2. Assume the same facts as in Example 1 except that H and W 
have adjusted gross income for 1965 of $42,000. Since 30 percent of 
their adjusted gross income for 1965 ($12,600) exceeds by $1,600 the 
charitable contribution of $11,000 made by them in 1965 to organizations 
referred to in section 170(b)(1)(A) (computed without regard to section 
170(b)(5) and this paragraph), the full amount of the 1964 carryover of 
$1,500 is treated, pursuant to the provisions of subparagraph (2) of 
this paragraph, as paid to a section 170(b)(1)(A) organization in 1965. 
They may also claim a charitable contribution of $100 ($12,600 -$12,500 
($11,000+$1,500)) with respect to the gift to X in 1965. No carryover is 
allowed with respect to the $300 ($400-$100) of the contribution to X 
which is not deductible in 1965.

    (2) Determination of amount treated as paid in taxable years 
succeeding contribution year. Notwithstanding the provisions of 
subparagraph (1) of this paragraph, the amount of the excess computed in 
accordance with the provisions of subparagraphs (1) and (5) of this 
paragraph which is to be treated as paid in any one of the 5 taxable 
years immediately succeeding the contribution year to an organization 
specified in section 170(b)(1)(A) shall not exceed the lesser of the 
amount computed under subdivision (i) or (ii) of this subparagraph:
    (i) The amount by which (a) 30 percent of the taxpayer's adjusted 
gross income for such succeeding taxable year (computed without regard 
to any net operating loss carryback to such succeeding taxable year 
under section 172) exceeds (b) the sum of (1) the charitable 
contributions actually made (computed without regard to the provisions 
of section 170(b)(5) and this paragraph) by the taxpayer in such 
succeeding taxable year to organizations referred to in section 
170(b)(1)(A), and (2) the charitable contributions made to organizations 
referred to in section 170(b)(1)(A) in taxable years (excluding any 
taxable year beginning before January 1, 1964) preceding the 
contribution year which, pursuant to the provisions of section 170(b)(5) 
and this paragraph, are treated as having been paid to an organization 
referred to in section 170(b)(1)(A) in such succeeding year.
    (ii) In the case of the first taxable year succeeding the 
contribution year,

[[Page 32]]

the amount of the excess charitable contribution in the contribution 
year, computed under subparagraphs (1) and (5) of this paragraph. In the 
case of the second, third, fourth, and fifth succeeding taxable years, 
the portion of the excess charitable contribution in the contribution 
year (computed under subparagraphs (1) and (5) of this paragraph) which 
has not been treated as paid to a section 170(b)(1)(A) organization in a 
year intervening between the contribution year and such succeeding 
taxable year.

If a taxpayer, in any one of the four taxable years succeeding a 
contribution year, elects under section 144 to take the standard 
deduction in the amount provided for in section 141 instead of itemizing 
the deductions (other than those specified in sections 62 and 151) 
allowable in computing taxable income, there shall be treated as paid 
(but not allowable as a deduction) in the standard deduction year the 
amount determined under subdivision (i) or (ii) of this subparagraph, 
whichever is the lesser. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. Assume that B has adjusted gross income for 1966 of 
$20,000 and for 1967 of $30,000. Assume further that in 1966 B 
contributed $8,000 to a church and in 1967 he contributes $7,500 to the 
church. B may claim a charitable contribution deduction of $6,000 in 
1966, and the excess of $8,000 (contribution to the church) over $6,000 
(30 percent of B's adjusted gross income) or $2,000 constitutes a 
charitable contribution carryover which shall be treated as a charitable 
contribution paid by B to an organization referred to in section 
170(b)(1)(A) in the 5 taxable years succeeding 1966 in order of time. (B 
made no excess contributions in 1964 or 1965 which should be treated as 
paid in years succeeding 1964 or 1965.) B may claim a charitable 
contribution deduction of $9,000 in 1967. Such $9,000 consists of the 
$7,500 contribution to the church in 1967 and $1,500 carried over from 
1966 and treated as a charitable contribution paid to a section 
170(b)(1)(A) organization in 1967. The $1,500 contribution treated as 
paid in 1967 is computed as follows:

1966 excess contributions.......................  ..........      $2,000
                                                             ===========
30 percent of B's adjusted gross income for 1967  ..........       9,000
Less:
  Contributions actually made in 1967 to section      $7,500
   170(b)(1)(A) organizations...................
  Contributions made to section 170(b)(1)(A)               0       7,500
   organizations in taxable years prior to 1966
   treated as having been paid in 1967..........
                                                             ===========
                                                  ..........       1,500
                                                             ===========
Amount of 1966 excess treated as paid in 1967--   ..........       1,500
 the lesser of $2,000 (1966 excess
 contributions) or $1,500 (30 percent of
 adjusted gross income for 1967 ($9,000) over
 the section 170(b)(1)(A) contributions actually
 made in 1967 ($7,500) and the section
 170(b)(1)(A) contributions made in years prior
 to 1966 treated as having been paid in 1967
 (0))...........................................
                                                             ===========
 


If the excess contributions made by B in 1966 had been $1,000 instead of 
$2,000, then, for purposes of this example, the amount of the 1966 
excess treated as paid in 1967 would be $1,000 rather than $1,500.
    Example 2. Assume the same facts as in Example 1, and, in addition, 
that B has adjusted gross income for 1968 of $10,000 and for 1969 of 
$20,000. Assume further with respect to 1968 that B elects under section 
144 to take the standard deduction in computing taxable income and that 
his actual contributions to organizations specified in section 
170(b)(1)(A) are $300. Assume further with respect to 1969, that B 
itemizes his deductions which include a $5,000 contribution to a church. 
B's deductions for 1968 are not increased by reason of the $500 
available as a charitable contribution carryover from 1966 (excess 
contributions made in 1966 ($2,000) less the amount of such excess 
treated as paid in 1967 ($1,500)) since B elected to take the standard 
deduction in 1968. However, for purposes of determining the amount of 
the excess charitable contributions made in 1966 which is available as a 
carryover to 1969, B is required to treat such $500 as a charitable 
contribution paid in 1968--the lesser of $500 or $2,700 (30 percent of 
adjusted gross income ($3,000) over contributions actually made in 1968 
to section 170(b)(1)(A) organizations ($300)). Therefore, even though 
the $5,000 contribution made by B in 1969 to a church does not amount to 
30 percent of B's adjusted gross income for 1969 (30 percent of 
$20,000=$6,000), B may claim a charitable contribution deduction of only 
the $5,000 actually paid in 1969 since the entire excess charitable 
contribution made in 1966 ($2,000) has been treated as paid in 1967 
($1,500) and 1968 ($500).

[[Page 33]]

    Example 3. Assume the following factual situation for C who itemizes 
his deductions in computing taxable income for each of the years set 
forth in the example:

----------------------------------------------------------------------------------------------------------------
                                                                  1964      1965      1966      1967      1968
----------------------------------------------------------------------------------------------------------------
Adjusted gross income.........................................   $10,000    $7,000   $15,000   $10,000    $9,000
                                                               -------------------------------------------------
Contributions to section 170(b)(1)(A) organizations (no other      4,000     3,000     5,000     1,000     1,500
 contributions)...............................................
Allowable charitable contributions deductions computed without     3,000     2,100     4,500     1,000     1,500
 regard to carryover of contributions.........................
                                                               -------------------------------------------------
Excess contributions for taxable year to be treated as paid in     1,000       900       500         0         0
 5 succeeding taxable years...................................
----------------------------------------------------------------------------------------------------------------


Since C's contributions in 1967 and 1968 to section 170(b)(1)(A) 
organizations are less than 30 percent of his adjusted gross income for 
such years, the excess contributions for 1964, 1965, and 1966 are 
treated as having been paid to section 170(b)(1)(A) organizations in 
1967 and 1968 as follows:

                                  1967
------------------------------------------------------------------------
                                                    Less:
                                                   Amount
                                                   treated    Available
           Contribution year              Total    as paid   charitable
                                         excess    in year  contribution
                                                  prior to   carryovers
                                                    1967
------------------------------------------------------------------------
1964..................................    $1,000         0      $1,000
1965..................................       900         0         900
1966..................................       500         0         500
                                                           -------------
                                        ........  ........       2,400
                                                           -------------
30 percent of B's adjusted gross income for 1967..........       3,000
Less: Charitable contributions made in 1967 to section           1,000
 170(b)(1)(A) organizations...............................
                                                           -------------
                                                                 2,000
                                                           =============
Amount of excess contributions treated as paid in 1967--         2,000
 the lesser of $2,400 (available carryovers to 1967) or
 $2,000 (excess of 30 percent of adjusted gross income
 ($3,000) over contributions actually made in 1967 to
 section 170(b)(1)(A) organizations ($1,000)).............
                                                           =============
------------------------------------------------------------------------


                                  1968
------------------------------------------------------------------------
                                                    Less:
                                                   Amount
                                                   treated    Available
           Contribution year              Total    as paid   charitable
                                         excess    in year  contribution
                                                  prior to   carryovers
                                                    1968
------------------------------------------------------------------------
1964..................................    $1,000    $1,000           0
1965..................................       900       900           0
1966..................................       500       100        $400
1967..................................         0         0           0
                                                           -------------
                                        ........  ........         400
                                                           =============
30 percent of B's adjusted gross income for 1968..........       2,700
Less: Charitable contributions made in 1968 to section           1,500
 170(b)(1)(A) organizations...............................
                                                           -------------
                                                                 1,200
                                                           =============
Amount of excess contributions treated as paid in 1968--           400
 the lesser of $400 (available carryovers to 1968) or
 $1,200 (30 percent of adjusted gross income $2,700) over
 contributions actually made in 1968 to section
 170(b)(1)(A) organizations ($1,500)......................
                                                           =============
------------------------------------------------------------------------

    (3) Effect of net operating loss carryback to contribution year. The 
amount of the excess contribution for a contribution year (computed as 
provided in subparagraphs (1) and (5) of this paragraph) shall not be 
increased because a net operating loss carryback is available as a 
deduction in the contribution year. In addition, in determining (under 
the provisions of section 172(b)(2)) the amount of the net operating 
loss for any year subsequent to the contribution year which is a 
carryback or carryover to taxable years succeeding the contribution 
year, the amount of contributions made to organizations referred to in 
section 170(b)(1)(A) shall be limited to the amount of such 
contributions which did not exceed 30 percent of the donor's adjusted 
gross income (computed without regard to any net operating loss 
carryback or any of the modifications referred to in section 172(d)) for 
the contribution year.
    (4) Effect of net operating loss carryback to taxable years 
succeeding the contribution year. The amount of the charitable 
contribution from a preceding taxable year which is treated as paid (as 
provided in subparagraph (2) of

[[Page 34]]

this paragraph) in a current taxable year (hereinafter referred to in 
this subparagraph as the ``deduction year'') shall not be reduced 
because a net operating loss carryback is available as a deduction in 
the deduction year. In addition, in determining (under the provisions of 
section 172(b)(2)) the amount of the net operating loss for any year 
subsequent to the deduction year which is a carryback or carryover to 
taxable years succeeding the deduction year, the amount of contributions 
made to organizations referred to in section 170(b)(1)(A) in the 
deduction year shall be limited to the amount of such contributions 
which were actually made in such year and those which were treated as 
paid in such year which did not exceed 30 percent of the donor's 
adjusted gross income (computed without regard to any net operating loss 
carryback or any of the modifications referred to in section 172(d)) for 
the deduction year.
    (5) Reduction of excess contributions. An individual having a net 
operating loss carryover from a prior taxable year which is available as 
a deduction in a contribution year must apply the special rule of 
section 170(b)(5)(B) and this subparagraph in computing the excess 
described in subparagraph (1) of this paragraph for such contribution 
year. In determining the amount of excess charitable contributions that 
shall be treated as paid in each of the 5 taxable years succeeding the 
contribution year, the excess charitable contributions described in such 
subparagraph (1) must be reduced by the amount by which such excess 
reduces taxable income (for purposes of determining the portion of a net 
operating loss which shall be carried to taxable years succeeding the 
contribution year under the second sentence of section 172(b)(2)) and 
increases the net operating loss which is carried to a succeeding 
taxable year. In reducing taxable income under the second sentence of 
section 172(b)(2), an individual who has made charitable contributions 
in the contribution year to both organizations specified in section 
170(b)(1)(A) (see paragraph (b) of this section) and to organizations 
not so specified must first deduct contributions made to the section 
170(b)(1)(A) organizations from his adjusted gross income computed 
without regard to his net operating loss deduction before any of the 
contributions made to organizations not specified in section 
170(b)(1)(A) may be deducted from such adjusted gross income. Thus, if 
the excess of the contributions made in the contribution year to 
organizations specified in section 170(b)(1)(A) over the amount 
deductible in such contribution year is utilized to reduce taxable 
income (under the provisions of section 172 (b)(2)) for such year, 
thereby serving to increase the amount of the net operating loss 
carryover to a succeeding year or years, no part of the excess 
charitable contributions made in such contribution year shall be treated 
as paid in any of the 5 immediately succeeding taxable years. If only a 
portion of the excess charitable contributions is so used, the excess 
charitable contributions will be reduced only to that extent. The 
provisions of this subparagraph may be illustrated by the following 
examples:

    Example 1. B, an individual, reports his income on the calendar year 
basis and for the year 1964 has adjusted gross income (computed without 
regard to any net operating loss deduction) of $50,000. During 1964 he 
made charitable contributions in the amount of $20,000 all of which were 
to organizations specified in section 170(b)(1)(A). B has a net 
operating loss carryover from 1963 of $50,000. In the absence of the net 
operating loss deduction B would have been allowed a deduction for 
charitable contributions of $15,000. After the application of the net 
operating loss deduction, B is allowed no deduction for charitable 
contributions, and there is (before applying the special rule of section 
170(b)(5)(B) and this subparagraph) a tentative excess charitable 
contribution of $20,000. For purposes of determining the net operating 
loss which remains to be carried over to 1965, B computes his taxable 
income for his prior taxable year, 1964, under section 172(b)(2) by 
deducting the $15,000 charitable contribution. After the $50,000 net 
operating loss carryover is applied against the $35,000 of taxable 
income for 1964 (computed in accordance with section 172(b)(2), assuming 
no deductions other than the charitable contribution deduction are 
applicable in making such computation), there remains a $15,000 net 
operating loss carryover to 1965. Since the application of the net 
operating loss carryover of $50,000 from 1963 reduces the 1964 adjusted 
gross income (for purposes of determining 1964 tax liability) to zero, 
no part of the $20,000 of charitable contributions in that year is 
deductible under section 170(b)(1). However, in determining the

[[Page 35]]

amount of the excess charitable contributions which shall be treated as 
paid in taxable years 1965, 1966, 1967, 1968, 1969, the $20,000 must be 
reduced by the portion thereof ($15,000) which was used to reduce 
taxable income for 1964 (as computed for purposes of the second sentence 
of section 172(b)(2)) and which thereby served to increase the net 
operating loss carryover to 1965 from zero to $15,000.
    Example 2. Assume the same facts as in Example 1, except that B's 
total contributions of $20,000 made during 1964 consisted of $15,000 to 
organizations specified in section 170(b)(1)(A) and $5,000 to 
organizations not so specified. Under these facts there is a tentative 
excess charitable contribution of $15,000, rather than $20,000 as in 
Example 1. For purposes of determining the net operating loss which 
remains to be carried over to 1965, B computes his taxable income for 
his prior taxable year, 1964, under section 172(b)(2) by deducting the 
$15,000 of charitable contributions made to organizations specified in 
section 170(b)(1)(A). Since the excess charitable contribution of 
$15,000 determined in accordance with subparagraph (1) of this paragraph 
was used to reduce taxable income for 1964 (as computed for purposes of 
the second sentence of section 172(b)(2)) and thereby served to increase 
the net operating loss carryover to 1965 from zero to $15,000, no part 
of such excess charitable contributions made in the contribution year 
shall be treated as paid in any of the five immediately succeeding 
taxable years. No carryover is allowed with respect to the $5,000 of 
charitable contributions made in 1964 to organizations not specified in 
section 170(b)(1)(A).

    (6) Change in type of return filed--(i) From joint return to 
separate returns. If a husband and wife--
    (a) Make a joint return for a contribution year and compute an 
excess charitable contribution for such year in accordance with the 
provisions of subparagraphs (1) and (5) of this paragraph, and
    (b) Make separate returns for one or more of the 5 taxable years 
immediately succeeding such contribution year, any excess charitable 
contribution for the contribution year which is unused at the beginning 
of the first such taxable year for which separate returns are filed 
shall be allocated between the husband and wife. For purposes of the 
allocation, a computation shall be made of the amount of any excess 
charitable contribution which each spouse would have computed in 
accordance with subparagraphs (1) and (5) of this paragraph if separate 
returns (rather than a joint return) had been filed for the contribution 
year. The portion of the total unused excess charitable contribution for 
the contribution year allocated to each spouse shall be an amount which 
bears the same ratio to such unused excess charitable contribution as 
such spouse's excess contribution (based on the separate return 
computation) bears to the total excess contributions of both spouses 
(based on the separate return computation). To the extent that a portion 
of the amount allocated to either spouse in accordance with the 
foregoing provisions of this subdivision is not treated in accordance 
with the provisions of subparagraph (2) of this paragraph as a 
charitable contribution paid to an organization specified in section 
170(b)(1)(A) in the taxable year in which a separate return or separate 
returns are filed, each spouse shall for purposes of subparagraph (2) of 
this paragraph treat his respective unused portion as the available 
charitable contributions carryover to the next succeeding taxable year 
in which the joint excess charitable contribution may be treated as paid 
in accordance with subparagraph (1) of this paragraph. If such husband 
and wife make a joint return in one of the five taxable years 
immediately succeeding the contribution year with respect to which a 
joint excess charitable contribution is computed and following the first 
succeeding year in which such husband and wife filed a separate return 
or separate returns, the amounts allocated to each spouse in accordance 
with this subdivision for such first year reduced by the portion of such 
amounts treated as paid to an organization specified in section 
170(b)(1)(A) in such first year and in any taxable year intervening 
between such first year and the succeeding taxable year in which the 
joint return is filed shall be aggregated for purposes of determining 
the amount of the available charitable contributions carryover to such 
succeeding taxable year. The provisions of this subdivision (i) may be 
illustrated by the following example:

    Example. H and W file joint returns for 1964, 1965, and 1966, and in 
1967 they file separate returns. In each such year H and W itemize

[[Page 36]]

their deductions in computing taxable income. Assume the following 
factual situation with respect to H and W for 1964:

                                  1964
 
                                                                  Joint
                                                H         W      return
 
Adjusted gross income.....................   $50,000   $40,000   $90,000
                                           =============================
Contributions to section 170(b)(1)(A)         27,000    20,000    47,000
 organization (no other contributions)....
Allowable charitable contribution             15,000    12,000    27,000
 deductions...............................
                                           -----------------------------
Excess contributions for taxable year to      12,000     8,000    20,000
 be treated as paid in 5 succeeding
 taxable years............................
                                           =============================
 


The joint excess charitable contribution of $20,000 is to be treated as 
having been paid to a section 170(b)(1)(A) organization in the five 
succeeding taxable years. Assume that in 1965, the portion of such 
excess treated as paid by H and W is $3,000 and that in 1966, the 
portion of such excess treated as paid is $7,000. Thus, the unused 
portion of the excess charitable contribution made in the contribution 
year is $10,000 ($20,000 less $3,000 (amount treated as paid in 1965) 
and $7,000 (amount treated as paid in 1966)). Since H and W file 
separate returns in 1967, $6,000 of such $10,000 is allocable to H and 
$4,000 is allocable to W. Such allocation is computed as follows:

$12,000 (excess charitable contributions made by H (based on separate 
          return computation) in 1964)/$20,000 (total excess charitable 
          contributions made by H and W (based on separate return 
          computation) in 1964)x$10,000=$6,000
$8,000 (excess charitable contributions made by W (based on separate 
          return computation) in 1964)/$20,000 (total excess charitable 
          contributions made by H and W (based on separate return 
          computation) in 1964)x$10,000=$4,000

    In 1967 H has adjusted gross income of $70,000 and he contributes 
$14,000 to an organization specified in section 170(b)(1)(A). In 1967 W 
has adjusted gross income of $50,000, and she contributes $10,000 to an 
organization specified in section 170(b)(1)(A). H may claim a charitable 
contribution deduction of $20,000 in 1967, and W may claim a charitable 
contribution deduction of $14,000 in 1967. H's $20,000 deduction 
consists of the $14,000 contribution to the section 170(b)(1)(A) 
organization in 1967 and $6,000 carried over from 1964 and treated as a 
charitable contribution paid to a section 170(b)(1)(A) organization in 
1967. W's $14,000 deduction consists of the $10,000 contribution made to 
a section 170(b)(1)(A) organization in 1967 and $4,000 carried over from 
1964 and treated as a charitable contribution paid to a section 
170(b)(1)(A) organization in 1967. The $6,000 contribution treated as 
paid in 1967 by H, and the $4,000 contribution treated as paid in 1967 
by W are computed as follows:

 
                                                          H         W
 
Available charitable contribution carryover (see        $6,000    $4,000
 computations above)................................
                                                     ===================
30-percent of adjusted gross income.................    21,000    15,000
Contributions made in 1967 to section 170(b)(1)(A)      14,000    10,000
 organization (no other contributions)..............
                                                     -------------------
Amount of allowable deduction unused................     7,000     5,000
                                                     ===================
Amount of excess contributions treated as paid in        6,000
 1967--the lesser of $6,000 (available carryover of
 H to 1967) or $7,000 (excess of 30 percent of
 adjusted gross income ($21,000) over contributions
 actually made in 1967 to section 170(b)(1)(A)
 organizations ($14,000))...........................
                                                     ==========
The lesser of $4,000 (available carryover of W to     ........     4,000
 1967) or $5,000 (excess of 30 percent of adjusted
 gross income ($15,000) over contributions actually
 made in 1967 to section 170(b)(1)(A) organizations
 ($10,000)).........................................
                                                     ===================
 


    (ii) From separate returns to joint return and remarried taxpayers. 
If in the case of a husband and wife:
    (a) Either or both of the spouses make a separate return for a 
contribution year and compute an excess charitable contribution for such 
year in accordance with the provisions of subparagraphs (1) and (5) of 
this paragraph, and
    (b) Such husband and wife make a joint return for one or more of the 
taxable years immediately succeeding such contribution year, the excess 
charitable contribution of the husband and wife for the contribution 
year which is unused at the beginning of the first taxable year for 
which a joint return is filed shall be aggregated for purposes of 
determining the portion of such unused charitable contribution which 
shall be treated in accordance with subparagraph (2) of this paragraph 
as a charitable contribution paid to an organization specified in 
section 170(b)(1)(A). The provisions of this subdivision are also 
applicable in the case of two single individuals who are subsequently 
married and file a joint return. A remarried taxpayer who filed a joint 
return with a former spouse in a contribution year with respect to which 
an

[[Page 37]]

excess charitable contribution was computed and who in any one of the 
five taxable years immediately succeeding such contribution year files a 
joint return with his (or her) present spouse shall treat the unused 
portion of such excess charitable contribution allocated to him (or her) 
in accordance with subdivision (i) of this subparagraph in the same 
manner as the unused portion of an excess charitable contribution 
computed in a contribution year in which he filed a separate return for 
purposes of determining the amount which in accordance with subparagraph 
(2) of this paragraph shall be treated as paid to an organization 
specified in section 170(b)(1)(A) in such succeeding year.
    (iii) Unused excess charitable contribution of deceased spouse. In 
case of the death of one spouse, any unused portion of an excess 
charitable contribution which is allocable (in accordance with 
subdivision (i) of this subparagraph) to such spouse shall not be 
treated as paid in the taxable year in which such death occurs or in any 
subsequent taxable year except on a separate return made for the 
deceased spouse by a fiduciary for the taxable year which ends with the 
date of death or on a joint return for the taxable year in which such 
death occurs. The application of this subdivision may be illustrated by 
the following example:

    Example. Assume the same facts as in the example in subdivision (i) 
of this subparagraph except that H dies in 1966 and W files a separate 
return for 1967. W made a joint return for herself and H for 1966. In 
that example, the unused excess charitable contribution as of January 1, 
1967, was $10,000, $6,000 of which was allocable to H and $4,000 to W. 
No portion of the $6,000 allocable to H may be treated as paid by W or 
any other person in 1967 or any subsequent year.

    (7) Information required in support of a deduction of an amount 
treated as paid. If, in a taxable year, a deduction is claimed in 
respect of an excess charitable contribution which, in accordance with 
the provisions of subparagraph (2) of this paragraph, is treated (in 
whole or in part) as paid in such taxable year, the taxpayer shall 
attach to his return a statement showing:
    (i) The year (or years) in which the excess charitable contributions 
were made (the contribution year or years),
    (ii) The excess charitable contributions made in each contribution 
year,
    (iii) The portion of such excess (or each such excess) treated as 
paid in accordance with subparagraph (2) of this paragraph in any 
taxable year intervening between the contribution year and the taxable 
year for which the return is made, and
    (iv) Such other information as the return or the instructions 
relating thereto may require.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6605, 27 FR 
8096, Aug. 15, 1962; T.D. 6639, 28 FR 1762, Feb. 26, 1963; T.D. 6732, 29 
FR 6280, May 13, 1964; T.D. 6900, 31 FR 14634, Nov. 17, 1966; T.D. 7207, 
37 FR 20768, Oct. 4, 1972; T.D. 7427, 41 FR 34026, Aug. 12, 1976]



Sec. 1.170-3  Contributions or gifts by corporations (before amendment 
by Tax Reform Act of 1969).

    (a) In general. The deduction by a corporation in any taxable year 
for charitable contributions, as defined in section 170(c), is limited 
to 5 percent of its taxable income for the year computed without regard 
to:
    (1) The deduction for charitable contributions,
    (2) The special deductions for corporations allowed under part VIII 
(except section 248), subchapter B, chapter 1 of the Code,
    (3) Any net operating loss carryback to the taxable year under 
section 172,
    (4) The special deduction for Western Hemisphere trade corporations 
under section 922, and
    (5) Any capital loss carryback to the taxable year under section 
1212(a)(1).

A contribution by a corporation to a trust, chest, fund, or foundation 
organized and operated exclusively for religious, charitable, 
scientific, literary, or educational purposes or for the prevention of 
cruelty to children or animals is deductible only if the contribution is 
to be used in the United States or its possessions for those purposes. 
See section 170(c)(2). For the purposes of section 170, amounts excluded 
from the gross income of a corporation under section 114 (relating to 
sports programs conducted for the American

[[Page 38]]

National Red Cross) are not to be considered contributions or gifts. For 
reduction or disallowance of certain charitable, etc., deductions, see 
paragraphs (c)(2), (e), and (f) of Sec. 1.170-1.
    (b) Election by corporations on an accrual method. A corporation 
reporting its taxable income on an accrual method may elect to have a 
charitable contribution (as defined in section 170 (c)) considered as 
paid during the taxable year, if payment is actually made on or before 
the fifteenth day of the third month following the close of the year and 
if, during the year, the board of directors authorized the contribution. 
The election must be made at the time the return for the taxable year is 
filed, by reporting the contribution on the return. There shall be 
attached to the return when filed a written declaration that the 
resolution authorizing the contribution was adopted by the board of 
directors during the taxable year, and the declaration shall be verified 
by a statement signed by an officer authorized to sign the return that 
it is made under the penalties of perjury. There shall also be attached 
to the return when filed a copy of the resolution of the board of 
directors authorizing the contribution.
    (c) Charitable contributions carryover of corporations--(1) 
Contributions made in taxable years beginning before January 1, 1962. 
Subject to the rules set forth in subparagraph (3) of this paragraph, 
any contributions made by a corporation in a taxable year (hereinafter 
in this paragraph referred to as the contribution year) subject to the 
Code beginning before January 1, 1962, in excess of the amount 
deductible in such contribution year under the 5-percent limitation of 
section 170(b)(2) are deductible in each of the two succeeding taxable 
years in order of time, but only to the extent of the lesser of the 
following amounts:
    (i) The excess of the maximum amount deductible for the succeeding 
year under the 5-percent limitation of section 170(b)(2) over the 
contributions made in that year; and
    (ii) In the case of the first taxable year succeeding the 
contribution year, the amount of the excess contributions; and, in the 
case of the second taxable year succeeding the contribution year, the 
portion of the excess contributions not deductible in the first 
succeeding taxable year.


The application of the rules in this subparagraph may be illustrated by 
the following example:

    Example. A corporation which reports its income on the calendar year 
basis makes a charitable contribution of $10,000 in June 1961, 
anticipating taxable income for 1961 of $200,000. Its actual taxable 
income (without regard to any deduction for charitable contributions) 
for 1961 is only $50,000 and the charitable deduction for that year is 
limited to $2,500 (5 percent of $50,000). The excess charitable 
contribution not deductible in 1961 ($7,500) represents a carryover 
potentially available as a deduction in the two succeeding taxable 
years. The corporation has taxable income (without regard to any 
deduction for charitable contributions) of $150,000 in 1962 and makes a 
charitable contribution of $2,500 in that year. For 1962, the 
corporation may deduct as a charitable contribution the amount of $7,500 
(5 percent of $150,000). This amount consists first of the $2,500 
contribution made in 1962, and $5,000 of the $7,500 carried over from 
1961. The remaining $2,500 carried over from 1961 and not allowable as a 
deduction in 1962 because of the 5-percent limitation may be carried 
over to 1963. The corporation has taxable income (without regard to any 
deduction for charitable contributions) of $100,000 in 1963 and makes a 
charitable contribution of $3,000. For 1963, the corporation may deduct 
under section 170 the amount of $5,000 (5 percent of $100,000). This 
amount consists first of the $3,000 contributed in 1963, and $2,000 of 
the $2,500 carried over from 1961 to 1963. The remaining $500 of the 
carryover from 1961 is not allowable as a deduction in any year because 
of the 2-year limitation with respect to excess contributions made in 
taxable years beginning before January 1, 1962.

    (2) Contributions made in taxable years beginning after December 31, 
1961. Subject to the rules set forth in subparagraph (3) of this 
paragraph, any contributions made by a corporation in a taxable year 
(hereinafter in this paragraph referred to as the contribution year) 
beginning after December 31, 1961, in excess of the amount deductible in 
such contribution year under the 5-percent limitation of section 
170(b)(2) are deductible in each of the five succeeding taxable years in 
order of time, but only to the extent of the lesser of the following 
amounts:
    (i) The excess of the maximum amount deductible for such succeeding

[[Page 39]]

taxable year under the 5-percent limitation of section 170(b)(2) over 
the sum of the contributions made in that year plus the aggregate of the 
excess contributions which were made in taxable years before the 
contribution year and which are deductible under this paragraph in such 
succeeding taxable year; or
    (ii) In the case of the first taxable year succeeding the 
contribution year, the amount of the excess contributions, and in the 
case of the second, third, fourth, or fifth taxable years succeeding the 
contribution year, the portion of the excess contributions not 
deductible under this subparagraph for any taxable year intervening 
between the contribution year and such succeeding taxable year.


The application of the rules of this subparagraph may be illustrated by 
the following example:

    Example. A corporation which reports its income on the calendar year 
basis makes a charitable contribution of $20,000 in June 1964, 
anticipating taxable income for 1964 of $400,000. Its actual taxable 
income (without regard to any deduction for charitable contributions) 
for 1964 is only $100,000 and the charitable deduction for that year is 
limited to $5,000 (5 percent of $100,000). The excess charitable 
contribution not deductible in 1964 ($15,000) represents a carryover 
potentially available as a deduction in the five succeeding taxable 
years. The corporation has taxable income (without regard to any 
deduction for charitable contributions) of $150,000 in 1965 and makes a 
charitable contribution of $5,000 in that year. For 1965 the corporation 
may deduct as a charitable contribution the amount of $7,500 (5 percent 
of $150,000). This amount consists first of the $5,000 contribution made 
in 1965, and $2,500 carried over from 1964. The remaining $12,500 
carried over from 1964 and not allowable as a deduction for 1965 because 
of the 5-percent limitation may be carried over to 1966. The corporation 
has taxable income (without regard to any deduction for charitable 
contributions) of $200,000 in 1966 and makes a charitable contribution 
of $5,000. For 1966, the corporation may deduct the amount of $10,000 (5 
percent of $200,000). This amount consists first of the $5,000 
contributed in 1966, and $5,000 of the $12,500 carried over from 1964 to 
1966. The remaining $7,500 of the carryover from 1964 is available for 
purposes of computing the charitable contributions carryover from 1964 
to 1967, 1968, and 1969.

    (3) Reduction of excess contributions. A corporation having a net 
operating loss carryover (or carryovers) must apply the special rule of 
section 170(b)(3) and this subparagraph before computing under 
subparagraph (1) or (2) of this paragraph the charitable contributions 
carryover for any taxable year subject to the Internal Revenue Code of 
1954. In determining the amount of charitable contributions that may be 
deducted in accordance with the rules set forth in subparagraph (1) or 
(2) of this paragraph in taxable years succeeding the contribution year, 
the excess of contributions made by a corporation in the contribution 
year over the amount deductible in such year must be reduced by the 
amount by which such excess reduces taxable income (for purposes of 
determining the net operating loss carryover under the second sentence 
of section 172(b)(2) and increases a net operating loss carryover to a 
succeeding taxable year. Thus, if the excess of the contributions made 
in a taxable year over the amount deductible in the taxable year is 
utilized to reduce taxable income (under the provisions of section 
172(b)(2)) for such year, thereby serving to increase the amount of the 
net operating loss carryover to a succeeding year or years, no 
charitable contributions carryover will be allowed. If only a portion of 
the excess charitable contributions is so used, the charitable 
contributions carryover. will be reduced only to that extent. The 
application of the rules of this subparagraph may be illustrated by the 
following example:

    Example. A corporation which reports its income on the calendar year 
basis makes a charitable contribution of $10,000 during the taxable year 
1960. Its taxable income for 1960 is $80,000 (computed without regard to 
any net operating loss deduction and computed in accordance with section 
170(b)(2) without regard to any deduction for charitable contributions). 
The corporation has a net operating loss carryover from 1959 of $80,000. 
In the absence of the net operating loss deduction the corporation would 
have been allowed a deduction for charitable contributions of $4,000 (5 
percent of $80,000). After the application of the net operating loss 
deduction the corporation is allowed no deduction for charitable 
contributions, and there is a tentative charitable contribution 
carryover of $10,000. For purposes of determining the net operating loss 
carryover to 1961 the corporation computes its taxable income for its 
prior taxable year 1960 under section 172(b)(2)

[[Page 40]]

by deducting the $4,000 charitable contribution. Thus, after the $80,000 
net operating loss carryover is applied against the $76,000 of taxable 
income for 1960 (computed in accordance with section 172(b)(2)), there 
remains a $4,000 net operating loss carryover to 1961. Since the 
application of the net operating loss carryover of $80,000 from 1959 
reduces the taxable income for 1960 to zero, no part of the $10,000 of 
charitable contributions in that year is deductible under section 
170(b)(2). However, in determining the amount of the allowable 
charitable contributions carryover to the taxable years 1961 and 1962, 
the $10,000 must be reduced by the portion thereof ($4,000) which was 
used to reduce taxable income for 1960 (as computed for purposes of the 
second sentence of section 172(b)(2)) and which thereby served to 
increase the net operating loss carryover to 1961 from zero to $4,000.

    (4) Year contribution is made. For purposes of this paragraph, 
contributions made by a corporation in a contribution year include 
contributions which, in accordance with the provisions of section 
170(a)(2) and paragraph (b) of this section, are considered as paid 
during such contribution year.
    (5) Effect of net operating loss carryback to contribution year. The 
amount of the excess contribution for a contribution year (computed as 
provided in this paragraph) shall not be increased because a net 
operating loss carryback is available as a deduction in the contribution 
year. In addition, in determining (under the provisions of section 
172(b)(2)) the amount of the net operating loss for any year subsequent 
to the contribution year which is a carryback or carryover to taxable 
years succeeding the contribution year, the amount of contributions 
shall be limited to the maximum amount deductible under the 5-percent 
limitation of section 170(b)(2) (computed without regard to any net 
operating loss carryback or any of the modifications referred to in 
section 172(d)) for the contribution year.
    (6) Effect of net operating loss carryback to taxable years 
succeeding the contribution year. The amount of the charitable 
contribution from a preceding taxable year which is deductible (as 
provided in this paragraph) in a current taxable year (hereinafter 
referred to in this subparagraph as the ``deduction year'') shall not be 
reduced because a net operating loss carryback is available as a 
deduction in the deduction year. In addition, in determining (under the 
provisions of section 172(b)(2)) the amount of the net operating loss 
for any year subsequent to the deduction year which is a carryback or a 
carryover to taxable years succeeding the deduction year, the amount of 
contributions shall be limited to the maximum amount deductible under 
the 5-percent limitation of section 170(b)(2) (computed without regard 
to any net operating loss carryback or any of the modifications referred 
to in section 172(d)) for the deduction year.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6605, 27 FR 
8096, Aug. 15, 1962; T.D. 6900, 31 FR 14640, Nov. 17, 1966; T.D. 7207, 
37 FR 20768, Oct. 4, 1972]



Sec. 1.170A-1  Charitable, etc., contributions and gifts; allowance of 
deduction.

    (a) Allowance of deduction. Any charitable contribution, as defined 
in section 170(c), actually paid during the taxable year is allowable as 
a deduction in computing taxable income irrespective of the method of 
accounting employed or of the date on which the contribution is pledged. 
However, charitable contributions by corporations may under certain 
circumstances be deductible even though not paid during the taxable year 
as provided in section 170(a)(2) and Sec. 1.170A-11. For rules relating 
to recordkeeping and return requirements in support of deductions for 
charitable contributions (whether by an itemizing or nonitemizing 
taxpayer) see Sec. 1.170A-13. The deduction is subject to the 
limitations of section 170(b) and Sec. 1.170A-8 or Sec. 1.170A-11. 
Subject to the provisions of section 170(d) and Sec. Sec. 1.170A-10 and 
1.170A-11, certain excess charitable contributions made by individuals 
and corporations shall be treated as paid in certain succeeding taxable 
years. For provisions relating to direct charitable deductions under 
section 63 by nonitemizers, see section 63 (b)(1)(C) and (i) and section 
170(i). For rules relating to the detemination of, and the deduction 
for, amounts paid to maintain certain students as members of the 
taxpayer's household and treated under section 170(g) as paid for the 
use of an organization described in

[[Page 41]]

section 170(c) (2), (3), or (4), see Sec. 1.170A-2. For the reduction 
of any charitable contributions for interest on certain indebtedness, 
see section 170(f)(5) and Sec. 1.170A-3. For a special rule relating to 
the computation of the amount of the deduction with respect to a 
charitable contribution of certain ordinary income or capital gain 
property, see section 170(e) and Sec. Sec. 1.170A-4 and 1.170A-4A. For 
rules for postponing the time for deduction of a charitable contribution 
of a future interest in tangible personal property, see section 
170(a)(3) and Sec. 1.170A-5. For rules with respect to transfers in 
trust and of partial interests in property, see section 170(e), section 
170(f) (2) and (3), Sec. Sec. 1.170A-4, 1.170A-6, and 1.170A-7. For 
definition of the term section 170(b)(1)(A) organization, see Sec. 
1.170A-9. For valuation of a remainder interest in real property, see 
section 170(f)(4) and the regulations thereunder. The deduction for 
charitable contributions is subject to verification by the district 
director.
    (b) Time of making contribution. Ordinarily, a contribution is made 
at the time delivery is effected. The unconditional delivery or mailing 
of a check which subsequently clears in due course will constitute an 
effective contribution on the date of delivery or mailing. If a taxpayer 
unconditionally delivers or mails a properly endorsed stock certificate 
to a charitable donee or the donee's agent, the gift is completed on the 
date of delivery or, if such certificate is received in the ordinary 
course of the mails, on the date of mailing. If the donor delivers the 
stock certificate to his bank or broker as the donor's agent, or to the 
issuing corporation or its agent, for transfer into the name of the 
donee, the gift is completed on the date the stock is transferred on the 
books of the corporation. For rules relating to the date of payment of a 
contribution consisting of a future interest in tangible personal 
property, see section 170(a)(3) and Sec. 1.170A-5.
    (c) Value of a contribution in property. (1) If a charitable 
contribution is made in property other than money, the amount of the 
contribution is the fair market value of the property at the time of the 
contribution reduced as provided in section 170(e)(1) and paragraph (a) 
of Sec. 1.170A-4, or section 170(e)(3) and paragraph (c) of Sec. 
1.170A-4A.
    (2) The fair market value is the price at which the property would 
change hands between a willing buyer and a willing seller, neither being 
under any compulsion to buy or sell and both having reasonable knowledge 
of relevant facts. If the contribution is made in property of a type 
which the taxpayer sells in the course of his business, the fair market 
value is the price which the taxpayer would have received if he had sold 
the contributed property in the usual market in which he customarily 
sells, at the time and place of the contribution and, in the case of a 
contribution of goods in quantity, in the quantity contributed. The 
usual market of a manufacturer or other producer consists of the 
wholesalers or other distributors to or through whom he customarily 
sells, but if he sells only at retail the usual market consists of his 
retail customers.
    (3) If a donor makes a charitable contribution of property, such as 
stock in trade, at a time when he could not reasonably have been 
expected to realize its usual selling price, the value of the gift is 
not the usual selling price but is the amount for which the quantity of 
property contributed would have been sold by the donor at the time of 
the contribution.
    (4) Any costs and expenses pertaining to the contributed property 
which were incurred in taxable years preceding the year of contribution 
and are properly reflected in the opening inventory for the year of 
contribution must be removed from inventory and are not a part of the 
cost of goods sold for purposes of determining gross income for the year 
of contribution. Any costs and expenses pertaining to the contributed 
property which are incurred in the year of contribution and would, under 
the method of accounting used, be properly reflected in the cost of 
goods sold for such year are to be treated as part of the costs of goods 
sold for such year. If costs and expenses incurred in producing or 
acquiring the contributed property are, under the method of accounting 
used, properly deducted under section 162 or other section of the Code, 
such costs and expenses will be allowed

[[Page 42]]

as deductions for the taxable year in which they are paid or incurred 
whether or not such year is the year of the contribution. Any such costs 
and expenses which are treated as part of the cost of goods sold for the 
year of contribution, and any such costs and expenses which are properly 
deducted under section 162 or other section of the Code, are not to be 
treated under any section of the Code as resulting in any basis for the 
contributed property. Thus, for example, the contributed property has no 
basis for purposes of determining under section 170(e)(1)(A) and 
paragraph (a) of Sec. 1.170A-4 the amount of gain which would have been 
recognized if such property had been sold by the donor at its fair 
market value at the time of its contribution. The amount of any 
charitable contribution for the taxable year is not to be reduced by the 
amount of any costs or expenses pertaining to the contributed property 
which was properly deducted under section 162 or other section of the 
Code for any taxable year preceding the year of the contribution. This 
subparagraph applies only to property which was held by the taxpayer for 
sale in the course of a trade or business. The application of this 
subparagraph may be illustrated by the following examples:

    Example 1. In 1970, A, an individual using the calendar year as the 
taxable year and the accrual method of accounting, contributed to a 
church property from inventory having a fair market value of $600. The 
closing inventory at the end of 1969 properly included $400 of costs 
attributable to the acquisition of such property, and in 1969 A properly 
deducted under section 162 $50 of administrative and other expenses 
attributable to such property. Under section 170(e)(1)(A) and paragraph 
(a) of Sec. 1.170A-4, the amount of the charitable contribution allowed 
for 1970 is $400 ($600-[$600-$400]). Pursuant to this subparagraph, the 
cost of goods sold to be used in determining gross income for 1970 may 
not include the $400 which was included in opening inventory for that 
year.
    Example 2. The facts are the same as in Example 1 except that the 
contributed property was acquired in 1970 at a cost of $400. The $400 
cost of the property is included in determining the cost of goods sold 
for 1970, and $50 is allowed as a deduction for that year under section 
162. A is not allowed any deduction under section 170 for the 
contributed property, since under section 170(e)(1)(A) and paragraph (a) 
of Sec. 1.170A-4 the amount of the charitable contribution is reduced 
to zero ($600-[$600-$0]).
    Example 3. In 1970, B, an individual using the calendar year as the 
taxable year and the accrual method of accounting, contributed to a 
church property from inventory having a fair market value of $600. Under 
Sec. 1.471-3(c), the closing inventory at the end of 1969 properly 
included $450 costs attributable to the production of such property, 
including $50 of administrative and other indirect expenses which, under 
his method of accounting, was properly added to inventory rather than 
deducted as a business expense. Under section 170(e)(1)(A) and paragraph 
(a) of Sec. 1.170A-4, the amount of the charitable contribution allowed 
for 1970 is $450 ($600-[$600-$450]). Pursuant to this subparagraph, the 
cost of goods sold to be used in determining gross income for 1970 may 
not include the $450 which was included in opening inventory for that 
year.
    Example 4. The facts are the same as in Example 3 except that the 
contributed property was produced in 1970 at a cost of $450, including 
$50 of administrative and other indirect expenses. The $450 cost of the 
property is included in determining the cost of goods sold for 1970. B 
is not allowed any deduction under section 170 for the contributed 
property, since under section 170(e)(1)(A) and paragraph (a) of Sec. 
1.170A-4 the amount of the charitable contribution is reduced to zero 
($600-[$600-$0]).
    Example 5. In 1970, C, a farmer using the cash method of accounting 
and the calendar year as the taxable year, contributed to a church a 
quantity of grain which he had raised having a fair market value of 
$600. In 1969, C paid expenses of $450 in raising the property which he 
properly deducted for such year under section 162. Under section 
170(e)(1)(A) and paragraph (a) of Sec. 1.170A-4, the amount of the 
charitable contribution in 1970 is reduced to zero ($600-[$600-$0]). 
Accordingly, C is not allowed any deduction under section 170 for the 
contributed property.
    Example 6. The facts are the same as in Example 5 except that the 
$450 expenses incurred in raising the contributed property were paid in 
1970. The result is the same as in Example 5, except the amount of $450 
is deductible under section 162 for 1970.

    (5) Transfers of property to an organization described in section 
170(c) which bear a direct relationship to the taxpayer's trade or 
business and which are made with a reasonable expectation of financial 
return commensurate with the amount of the transfer may constitute 
allowable deductions as trade or business expenses rather than as 
charitable contributions. See section 162 and the regulations 
thereunder.

[[Page 43]]

    (d) Purchase of an annuity. (1) In the case of an annuity or portion 
thereof purchased from an organization described in section 170(c), 
there shall be allowed as a deduction the excess of the amount paid over 
the value at the time of purchase of the annuity or portion purchased.
    (2) The value of the annuity or portion is the value of the annuity 
determined in accordance with paragraph (e)(1)(iii) (b)(2) of Sec. 
1.101-2.
    (3) For determining gain on any such transaction constituting a 
bargain sale, see section 1011(b) and Sec. 1.1011-2.
    (e) Transfers subject to a condition or power. If as of the date of 
a gift a transfer for charitable purposes is dependent upon the 
performance of some act or the happening of a precedent event in order 
that it might become effective, no deduction is allowable unless the 
possibility that the charitable transfer will not become effective is so 
remote as to be negligible. If an interest in property passes to, or is 
vested in, charity on the date of the gift and the interest would be 
defeated by the subsequent performance of some act or the happening of 
some event, the possibility of occurrence of which appears on the date 
of the gift to be so remote as to be negligible, the deduction is 
allowable. For example, A transfers land to a city government for as 
long as the land is used by the city for a public park. If on the date 
of the gift the city does plan to use the land for a park and the 
possibility that the city will not use the land for a public park is so 
remote as to be negligible, A is entitled to a deduction under section 
170 for his charitable contribution.
    (f) Special rules applicable to certain contributions. (1) See 
section 14 of the Wild and Scenic Rivers Act (Pub. L. 90-542, 82 Stat. 
918) for provisions relating to the claim and allowance of the value of 
certain easements as a charitable contribution under section 170.
    (2) For treatment of gifts accepted by the Secretary of State or the 
Secretary of Commerce, for the purpose of organizing and holding an 
international conference to negotiate a Patent Corporation Treaty, as 
gifts to or for the use of the United States, see section 3 of joint 
resolution of December 24, 1969 (Pub. L. 91-160, 83 Stat. 443).
    (3) For treatment of gifts accepted by the Secretary of the 
Department of Housing and Urban Development, for the purpose of aiding 
or facilitating the work of the Department, as gifts to or for the use 
of the United States, see section 7(k) of the Department of Housing and 
Urban Development Act (42 U.S.C. 3535), as added by section 905 of Pub. 
L. 91-609 (84 Stat. 1809).
    (g) Contributions of services. No deduction is allowable under 
section 170 for a contribution of services. However, unreimbursed 
expenditures made incident to the rendition of services to an 
organization contributions to which are deductible may constitute a 
deductible contribution. For example, the cost of a uniform without 
general utility which is required to be worn in performing donated 
services is deductible. Similarly, out-of-pocket transportation expenses 
necessarily incurred in performing donated services are deductible. 
Reasonable expenditures for meals and lodging necessarily incurred while 
away from home in the course of performing donated services also are 
deductible. For the purposes of this paragraph, the phrase while away 
from home has the same meaning as that phrase is used for purposes of 
section 162 and the regulations thereunder.
    (h) Payment in exchange for consideration--(1) Burden on taxpayer to 
show that all or part of payment is a charitable contribution or gift. 
No part of a payment that a taxpayer makes to or for the use of an 
organization described in section 170(c) that is in consideration for 
(as defined in Sec. 1.170A-13(f)(6)) goods or services (as defined in 
Sec. 1.170A-13(f)(5)) is a contribution or gift within the meaning of 
section 170(c) unless the taxpayer--
    (i) Intends to make a payment in an amount that exceeds the fair 
market value of the goods or services; and
    (ii) Makes a payment in an amount that exceeds the fair market value 
of the goods or services.
    (2) Limitation on amount deductible--(i) In general. The charitable 
contribution deduction under section 170(a) for a payment a taxpayer 
makes partly in consideration for goods or services may not exceed the 
excess of--
    (A) The amount of any cash paid and the fair market value of any 
property

[[Page 44]]

(other than cash) transferred by the taxpayer to an organization 
described in section 170(c); over
    (B) The fair market value of the goods or services the organization 
provides in return.
    (ii) Special rules. For special limits on the deduction for 
charitable contributions of ordinary income and capital gain property, 
see section 170(e) and Sec. Sec. 1.170A-4 and 1.170A-4A.
    (3) Certain goods or services disregarded. For purposes of section 
170(a) and paragraphs (h)(1) and (h)(2) of this section, goods or 
services described in Sec. 1.170A-13(f)(8)(i) or Sec. 1.170A-
13(f)(9)(i) are disregarded.
    (4) Donee estimates of the value of goods or services may be treated 
as fair market value--(i) In general. For purposes of section 170(a), a 
taxpayer may rely on either a contemporaneous written acknowledgment 
provided under section 170(f)(8) and Sec. 1.170A-13(f) or a written 
disclosure statement provided under section 6115 for the fair market 
value of any goods or services provided to the taxpayer by the donee 
organization.
    (ii) Exception. A taxpayer may not treat an estimate of the value of 
goods or services as their fair market value if the taxpayer knows, or 
has reason to know, that such treatment is unreasonable. For example, if 
a taxpayer knows, or has reason to know, that there is an error in an 
estimate provided by an organization described in section 170(c) 
pertaining to goods or services that have a readily ascertainable value, 
it is unreasonable for the taxpayer to treat the estimate as the fair 
market value of the goods or services. Similarly, if a taxpayer is a 
dealer in the type of goods or services provided in consideration for 
the taxpayer's payment and knows, or has reason to know, that the 
estimate is in error, it is unreasonable for the taxpayer to treat the 
estimate as the fair market value of the goods or services.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (h).

    Example 1. Certain goods or services disregarded. Taxpayer makes a 
$50 payment to Charity B, an organization described in section 170(c), 
in exchange for a family membership. The family membership entitles 
Taxpayer and members of Taxpayer's family to certain benefits. These 
benefits include free admission to weekly poetry readings, discounts on 
merchandise sold by B in its gift shop or by mail order, and invitations 
to special events for members only, such as lectures or informal 
receptions. When B first offers its membership package for the year, B 
reasonably projects that each special event for members will have a cost 
to B, excluding any allocable overhead, of $5 or less per person 
attending the event. Because the family membership benefits are 
disregarded pursuant to Sec. 1.170A-13(f)(8)(i), Taxpayer may treat the 
$50 payment as a contribution or gift within the meaning of section 
170(c), regardless of Taxpayer's intent and whether or not the payment 
exceeds the fair market value of the goods or services. Furthermore, any 
charitable contribution deduction available to Taxpayer may be 
calculated without regard to the membership benefits.
    Example 2. Treatment of good faith estimate at auction as the fair 
market value. Taxpayer attends an auction held by Charity C, an 
organization described in section 170(c). Prior to the auction, C 
publishes a catalog that meets the requirements for a written disclosure 
statement under section 6115(a) (including C's good faith estimate of 
the value of items that will be available for bidding). A representative 
of C gives a copy of the catalog to each individual (including Taxpayer) 
who attends the auction. Taxpayer notes that in the catalog C's estimate 
of the value of a vase is $100. Taxpayer has no reason to doubt the 
accuracy of this estimate. Taxpayer successfully bids and pays $500 for 
the vase. Because Taxpayer knew, prior to making her payment, that the 
estimate in the catalog was less than the amount of her payment, 
Taxpayer satisfies the requirement of paragraph (h)(1)(i) of this 
section. Because Taxpayer makes a payment in an amount that exceeds that 
estimate, Taxpayer satisfies the requirements of paragraph (h)(1)(ii) of 
this section. Taxpayer may treat C's estimate of the value of the vase 
as its fair market value in determining the amount of her charitable 
contribution deduction.
    Example 3. Good faith estimate not in error. Taxpayer makes a $200 
payment to Charity D, an organization described in section 170(c). In 
return for Taxpayer's payment, D gives Taxpayer a book that Taxpayer 
could buy at retail prices typically ranging from $18 to $25. D provides 
Taxpayer with a good faith estimate, in a written disclosure statement 
under section 6115(a), of $20 for the value of the book. Because the 
estimate is within the range of typical retail prices for the book, the 
estimate contained in the written disclosure statement is not in error. 
Although Taxpayer knows that the book is sold for as much as $25, 
Taxpayer may treat the estimate of $20 as the fair market value of

[[Page 45]]

the book in determining the amount of his charitable contribution 
deduction.

    (i) [Reserved]
    (j) Exceptions and other rules. (1) The provisions of section 170 do 
not apply to contributions by an estate; nor do they apply to a trust 
unless the trust is a private foundation which, pursuant to section 
642(c)(6) and Sec. 1.642(c)-4, is allowed a deduction under section 170 
subject to the provisions applicable to individuals.
    (2) No deduction shall be allowed under section 170 for a charitable 
contribution to or for the use of an organization or trust described in 
section 508(d) or 4948(c)(4), subject to the conditions specified in 
such sections and the regulations thereunder.
    (3) For disallowance of deductions for contributions to or for the 
use of communist controlled organizations, see section 11(a) of the 
Internal Security Act of 1950, as amended (50 U.S.C. 790).
    (4) For denial of deductions for charitable contributions as trade 
or business expenses and rules with respect to treatment of payments to 
organizations other than those described in section 170(c), see section 
162 and the regulations thereunder.
    (5) No deduction shall be allowed under section 170 for amounts paid 
to an organization:
    (i) Which is disqualified for tax exemption under section 501(c)(3) 
by reason of attempting to influence legislation, or
    (ii) Which participates in, or intervenes in (including the 
publishing or distribution of statements), any political campaign on 
behalf of or in opposition to any candidate for public office.

For purposes of determining whether an organization is attempting to 
influence legislation or is engaging in political activities, see 
sections 501(c)(3), 501(h), 4911 and the regulations thereunder.
    (6) No deduction shall be allowed under section 170 for expenditures 
for lobbying purposes, the promotion or defeat of legislation, etc. See 
also the regulations under sections 162 and 4945.
    (7) No deduction for charitable contributions is allowed in 
computing the taxable income of a common trust fund or of a partnership. 
See sections 584(d)(3) and 703(a)(2)(D). However, a partner's 
distributive share of charitable contributions actually paid by a 
partnership during its taxable year may be allowed as a deduction in the 
partner's separate return for his taxable year with or within which the 
taxable year of the partnership ends, to the extent that the aggregate 
of his share of the partnership contributions and his own contributions 
does not exceed the limitations in section 170(b).
    (8) For charitable contributions paid by a nonresident alien 
individual or a foreign corporation, see Sec. 1.170A-4(b)(5) and 
sections 873, 876, 877, and 882(c), and the regulations thereunder.
    (9) Charitable contributions paid by bona fide residents of a 
section 931 possession as defined in Sec. 1.931-1(c)(1) or Puerto Rico 
are deductible only to the extent allocable to income that is not 
excluded under section 931 or 933. For the rules for allocating 
deductions for charitable contributions, see the regulations under 
section 861.
    (10) For carryover of excess charitable contributions in certain 
corporate acquisitions, see section 381(c)(19) and the regulations 
thereunder.
    (11) No deduction shall be allowed under section 170 for out-of-
pocket expenditures on behalf of an eligible organization (within the 
meaning of Sec. 1.501(h)-2(b)(1)) if the expenditure is made in 
connection with influencing legislation (within the meaning of section 
501(c)(3) or Sec. 56.4911-2), or in connection with the payment of the 
organization's tax liability under section 4911. For the treatment of 
similar expenditures on behalf of other organizations see paragraph 
(h)(6) of this section.
    (k) Effective/applicability date. In general this section applies to 
contributions made in taxable years beginning after December 31, 1969. 
Paragraph (j)(11) of this section, however, applies only to out-of-
pocket expenditures made in taxable years beginning after December 31, 
1976. In addition, paragraph (h) of this section applies only to 
payments made on or after December 16, 1996. However, taxpayers may rely 
on the rules of paragraph (h) of this section for payments made on or 
after January 1, 1994. Paragraph (j)(9) of this

[[Page 46]]

section is applicable for taxable years ending after April 9, 2008.

(68A Stat. 58, 26 U.S.C. 170(a)(1); 68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7207, 37 FR 20771, Oct. 4, 1972, as amended by T.D. 7340, 40 FR 
1238, Jan. 7, 1975; T.D. 7807, 47 FR 4510, Feb. 1, 1982; T.D. 8002, 49 
FR 50666, Dec. 31, 1984; T.D. 8308, 55 FR 35587, Aug. 31, 1990; T.D. 
8690, 61 FR 65951, Dec. 16, 1996; T.D. 9194, 70 FR 18928, Apr. 11, 2005; 
T.D. 9391, 73 FR 19358, Apr. 9, 2008]



Sec. 1.170A-2  Amounts paid to maintain certain students as members 
of the taxpayer's household.

    (a) In general. (1) The term charitable contributions includes 
amounts paid by the taxpayer during the taxable year to maintain certain 
students as members of his household which, under the provisions of 
section 170(h) and this section, are treated as amounts paid for the use 
of an organization described in section 170(c) (2), (3), or (4), and 
such amounts, to the extent they do not exceed the limitations under 
section 170(h)(2) and paragraph (b) of this section, are contributions 
deductible under section 170. In order for such amounts to be so 
treated, the student must be an individual who is neither a dependent 
(as defined in section 152) of the taxpayer nor related to the taxpayer 
in a manner described in any of the paragraphs (1) through (8) of 
section 152(a), and such individual must be a member of the taxpayer's 
household pursuant to a written agreement between the taxpayer and an 
organization described in section 170(c) (2), (3), or (4) to implement a 
program of the organization to provide educational opportunities for 
pupils or students placed in private homes by such organization. 
Furthermore, such amounts must be paid to maintain such individual 
during the period in the taxable year he is a member of the taxpayer's 
household and is a full-time pupil or student in the 12th or any lower 
grade at an educational institution, as defined in section 151(e)(4) and 
Sec. 1.151-3, located in the United States. Amounts paid outside of 
such period, but within the taxable year, for expenses necessary for the 
maintenance of the student during the period will qualify for the 
charitable contributions deduction if the other limitation requirements 
of the section are met.
    (2) For purposes of subparagraph (1) of this paragraph, amounts 
treated as charitable contributions include only those amounts actually 
paid by the taxpayer during the taxable year which are directly 
attributable to the maintenance of the student while he is a member of 
the taxpayer's household and is attending an educational institution on 
a full-time basis. This would include amounts paid to insure the well-
being of the individual and to carry out the purpose for which the 
individual was placed in the taxpayer's home. For example, a deduction 
under section 170 would be allowed for amounts paid for books, tuition, 
food, clothing, transportation, medical and dental care, and recreation 
for the individual. Amounts treated as charitable contributions under 
this section do not include amounts which the taxpayer would have 
expended had the student not been in the household. They would not 
include, for example, amounts paid in connection with the taxpayer's 
home for taxes, insurance, interest on a mortgage, repairs, etc. 
Moreover, such amounts do not include any depreciation sustained by the 
taxpayer in maintaining such student or students in his household, nor 
do they include the value of any services rendered on behalf of such 
student or students by the taxpayer or any member of the taxpayer's 
household.
    (3) For purposes of section 170(h) and this section, an individual 
will be considered to be a full-time pupil or student at an educational 
institution only if he is enrolled for a course of study prescribed for 
a full-time student at such institution and is attending classes on a 
full-time basis. Nevertheless, such individual may be absent from school 
due to special circumstances and still be considered to be in full-time 
attendance. Periods during the regular school term when the school is 
closed for holidays, such as Christmas and Easter, and for periods 
between semesters are treated as periods during which the pupil or 
student is in full-time attendance at the school. Also, absences during 
the regular school term due to illness of such individual

[[Page 47]]

shall not prevent him from being considered as a full-time pupil or 
student. Similarly, absences from the taxpayer's household due to 
special circumstances will not disqualify the student as a member of the 
household. Summer vacations between regular school terms are not 
considered periods of school attendance.
    (4) When claiming a deduction for amounts described in section 
170(h) and this section, the taxpayer must submit with his return a copy 
of his agreement with the organization sponsoring the individual placed 
in the taxpayer's household, together with a summary of the various 
items for which amounts were paid to maintain such individual, and a 
statement as to the date the individual became a member of the household 
and the period of his full-time attendance at school and the name and 
location of such school. Substantiation of amounts claimed must be 
supported by adequate records of the amounts actually paid. Due to the 
nature of certain items, such as food, a record of amount spent for all 
members of the household, with an equal portion thereof allocated to 
each member, will be acceptable.
    (b) Limitations. Section 170(h) and this section shall apply to 
amounts paid during the taxable year only to the extent that the amounts 
paid in maintaining each pupil or student do not exceed $50 multiplied 
by the number of full calendar months in the taxable year that the pupil 
or student is maintained in accordance with the provisions of this 
section. For purposes of such limitation if 15 or more days of a 
calendar month fall within the period to which the maintenance of such 
pupil or student relates, such month is considered as a full calendar 
month. To the extent that such amounts qualify as charitable 
contributions under section 170(c), the aggregate of such amounts plus 
other contributions made during the taxable year for the use of an 
organization described in section 170(c) is deductible under section 170 
subject to the limitation provided in section 170(b)(1)(B) and paragraph 
(c) of Sec. 1.170A-8.
    (c) Compensation or reimbursement. Amounts paid during the taxable 
year to maintain a pupil or student as a member of the taxpayer's 
household as provided in paragraph (a) of this section, shall not be 
taken into account under section 170(h) and this section, if the 
taxpayer receives any money or other property as compensation or 
reimbursement for any portion of such amounts. The taxpayer will not be 
denied the benefits of section 170(h) if he prepays an extraordinary or 
nonrecurring expense such as a hospital bill or vacation trip, at the 
request of the individual's parents or the sponsoring organization and 
is reimbursed for such prepayment. The value of services performed by 
the pupil or student in attending to ordinary chores of the household 
will generally not be considered to constitute compensation or 
reimbursement. However, if the pupil or student is taken into the 
taxpayer's household to replace a former employee of the taxpayer or 
gratuitously to perform substantial services for the taxpayer, the facts 
and circumstances may warrant a conclusion that the taxpayer received 
reimbursement for maintaining the pupil or student.
    (d) No other amount allowed as deduction. Except to the extent that 
amounts described in section 170(h) and this section are treated as 
charitable contributions under section 170(c) and, therefore, deductible 
under section 170(a), no deduction is allowed for any amount paid to 
maintain an individual, as a member of the taxpayer's household, in 
accordance with the provisions of section 170(h) and this section.
    (e) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. The X organization is an organization described in 
section 170(c)(2) and is engaged in a program under which a number of 
European children are placed in the homes of U.S. residents in order to 
further the children's high school education. In accordance with 
paragraph (a) of this section, the taxpayer, A, who reports his income 
on the calendar year basis, agreed with X to take two of the children, 
and they were placed in the taxpayer's home on January 2, 1970, where 
they remained until January 21, 1971, during which time they were fully 
maintained by the taxpayer. The children enrolled at the local high 
school for the full course of study prescribed for 10th grade students 
and attended the school on a full-time basis for the spring semester 
starting January 18, 1970,

[[Page 48]]

and ending June 3, 1970, and for the fall semester starting September 1, 
1970, and ending January 13, 1971. The total cost of food paid by A in 
1970 for himself, his wife, and the two children amounted to $1,920, or 
$40 per month for each member of the household. Since the children were 
actually full-time students for only 8\1/2\ months during 1970, the 
amount paid for food for each child during that period amounted to $340. 
Other amounts paid during the 8 1/2-month period for each child for 
laundry, lights, water, recreation, and school supplies amounted to 
$160. Thus, the amounts treated under section 170(h) and this section as 
paid for the use of X would, with respect to each child, total $500 
($340+$160), or a total for both children of $1,000, subject to the 
limitations of paragraph (b) of this section. Since, for purposes of 
such limitations, the children were full-time students for only 8 full 
calendar months during 1970 (less than 15 days in January 1970), the 
taxpayer may treat only $800 as a charitable contribution made in 1970, 
that is, $50 multiplied by the 8 full calendar months, or $400 paid for 
the maintenance of each child. Neither the excess payments nor amounts 
paid to maintain the children during the period before school opened and 
for the period in summer between regular school terms is taken into 
account by reason of section 170(h). Also, because the children were 
full-time students for less than 15 days in January 1971 (although 
maintained in the taxpayer's household for 21 days), amounts paid to 
maintain the children during 1971 would not qualify as a charitable 
contribution.
    Example 2. A religious organization described in section 170(c)(2) 
has a program for providing educational opportunities for children it 
places in private homes. In order to implement the program, the 
taxpayer, H, who resides with his wife, son, and daughter of high school 
age in a town in the United States, signs an agreement with the 
organization to maintain a girl sponsored by the organization as a 
member of his household while the child attends the local high school 
for the regular 1970-71 school year. The child is a full-time student at 
the school during the school year starting September 6, 1970, and ending 
June 6, 1971, and is a member of the taxpayer's household during that 
period. Although the taxpayer pays $200 during the school period falling 
in 1970, and $240 during the school period falling in 1971, to maintain 
the child, he cannot claim either amount as a charitable contribution 
because the child's parents, from time to time during the school year, 
send butter, eggs, meat, and vegetables to H to help defray the expenses 
of maintaining the child. This is considered property received as 
reimbursement under paragraph (c) of this section. Had her parents not 
contributed the food, the fact that the child, in addition to the normal 
chores she shared with the taxpayer's daughter, such as cleaning their 
own rooms and helping with the shopping and cooking, was responsible for 
the family laundry and for the heavy cleaning of the entire house while 
the taxpayer's daughter had no comparable responsibilities would also 
preclude a claim for a charitable contributions deduction. These 
substantial gratuitous services are considered property received as 
reimbursement under paragraph (c) of this section.
    Example 3. A taxpayer resides with his wife in a city in the eastern 
United States. He agrees, in writing, with a fraternal society described 
in section 170(c)(4) to accept a child selected by the society for 
maintenance by him as a member of his household during 1971 in order 
that the child may attend the local grammar school as a part of the 
society's program to provide elementary education for certain children 
selected by it. The taxpayer maintains the child, who has as his 
principal place of abode the home of the taxpayer, and is a member of 
the taxpayer's household, during the entire year 1971. The child is a 
full-time student at the local grammar school for 9 full calendar months 
during the year. Under the agreement, the society pays the taxpayer $30 
per month to help maintain the child. Since the $30 per month is 
considered as compensation or reimbursement to the taxpayer for some 
portion of the maintenance paid on behalf of the child, no amounts paid 
with respect to such maintenance can be treated as amounts paid in 
accordance with section 170(h). In the absence of the $30 per month 
payments, if the child qualifies as a dependent of the taxpayer under 
section 152(a)(9), that fact would also prevent the maintenance payments 
from being treated as charitable contributions paid for the use of the 
fraternal society.

    (f) Effective date. This section applies only to contributions paid 
in taxable years beginning after December 31, 1969.

[T.D. 7207, 37 FR 20774, Oct. 4, 1972]



Sec. 1.170A-3  Reduction of charitable contribution for interest on 
certain indebtedness.

    (a) In general. Section 170(f)(5) requires that the amount of a 
charitable contribution be reduced for certain interest to the extent 
necessary to avoid the deduction of the same amount both as an interest 
deduction under section 163 and as a deduction for charitable 
contributions under section 170. The reduction is to be determined in 
accordance with paragraphs (b) and (c) of this section.

[[Page 49]]

    (b) Interest attributable to postcontribution period. In determining 
the amount to be taken into account as a charitable contribution for 
purposes of section 170, the amount determined without regard to section 
170(f)(5) or this section shall be reduced by the amount of interest 
which has been paid, or is to be paid, by the taxpayer, which is 
attributable to any liability connected with the contribution, and which 
is attributable to any period of time after the making of the 
contribution. The deduction otherwise allowable for charitable 
contributions under section 170 is required to be reduced pursuant to 
section 170(f)(5) and this section only if, in connection with a 
charitable contribution, a liability is assumed by the recipient of the 
contribution or by any other person or if the charitable contribution is 
of property which is subject to a liability. Thus, if a charitable 
contribution is made in property and the transfer is conditioned upon 
the assumption of a liability by the donee or by some other person, the 
contribution must be reduced by the amount of any interest which has 
been paid, or will be paid, by the taxpayer, which is attributable to 
the liability, and which is attributable to any period after the making 
of the contribution. The adjustment referred to in this paragraph must 
also be made where the contributed property is subject to a liability 
and the value of the property reflects the payment by the donor of 
interest with respect to a period of time after the making of the 
contribution.
    (c) Interest attributable to precontribution period. If, in 
connection with the charitable contribution of a bond, a liability is 
assumed by the recipient or by any other person, or if the bond is 
subject to a liability, then, in determining the amount to be taken into 
account as a charitable contribution under section 170, the amount 
determined without regard to section 170(f)(5) and this section shall, 
without regard to whether any reduction may be required by paragraph (b) 
of this section, also be reduced for interest which has been paid, or is 
to be paid, by the taxpayer on indebtedness incurred or continued to 
purchase or carry such bond, and which is attributable to any period 
before the making of the contribution. However, the reduction referred 
to in this paragraph shall be made only to the extent that such 
reduction does not exceed the interest (including bond discount and 
other interest equivalent) receivable on the bond, and attributable to 
any period before the making of the contribution which is not, by reason 
of the taxpayer's method of accounting, includible in the taxpayer's 
gross income for any taxable year. For purposes of section 170(f)(5) and 
this section the term bond means any bond, debenture, note, or 
certificate or other evidence of indebtedness.
    (d) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. On January 1, 1970, A, a cash basis taxpayer using the 
calendar year as the taxable year, contributed to a charitable 
organization real estate having a fair market value and adjusted basis 
of $10,000. In connection with the contribution the charitable 
organization assumed an indebtedness of $8,000 which A had incurred. On 
December 31, 1969, A prepaid one year's interest on that indebtedness 
for 1970, amounting to $960, and took an interest deduction of $960 for 
such amount. The amount of the gift, determined without regard to this 
section, is $2,960 ($10,000 less $8,000, the outstanding indebtedness, 
plus $960, the amount of prepaid interest). In determining the amount of 
the deduction for the charitable contribution, the value of the gift 
($2,960) must be reduced by $960 to eliminate from the computation of 
such deduction that portion thereof for which A has been allowed an 
interest deduction.
    Example 2. (a) On January 1, 1970, B, an individual using the cash 
receipts and disbursements method of accounting, purchased for $9,950 a 
5\1/2\ percent $10,000, 20-year M Corporation bond, the interest on 
which was payable semiannually on June 30 and December 31. The M 
Corporation had issued the bond on January 1, 1960, at a discount of 
$720 from the principal amount. On December 1, 1970, B donated the bond 
to a charitable organization, and, in connection with the contribution, 
the charitable organization assumed an indebtedness of $7,000 which B 
had incurred to purchase and carry the bond.
    (b) During the calendar year 1970 B paid accrued interest of $330 on 
the indebtedness for the period from January 1, 1970, to December 1, 
1970, and has taken an interest deduction of $330 for such amount. No 
portion of the bond discount of $36 a year ($720 divided by 20 years) 
has been included in B's income, and of the $550 of annual interest 
receivable on

[[Page 50]]

the bond, he included in income only the June 30, 1970, payment of $275.
    (c) The market value of the bond on December 1, 1970, was $9,902. 
Such value includes $229 of interest receivable which had accrued from 
July 1 to December 1, 1970.
    (d) The amount of the charitable contribution determined without 
regard to this section is $2,902 ($9,902, the value of the property on 
the date of gift, less $7,000, the amount of the liability assumed by 
the charitable organization). In determining the amount of the allowable 
deduction for charitable contributions, the value of the gift ($2,902) 
must be reduced to eliminate from the deduction that portion thereof for 
which B has been allowed an interest deduction. Although the amount of 
such interest deduction was $330, the reduction required by this section 
is limited to $262, since the reduction is not in excess of the amount 
of interest income on the bond ($229 of accrued interest plus $33, the 
amount of bond discount attributable to the 11-month period B held the 
bond).

    (e) Effective date. This section applies only to contributions paid 
in taxable years beginning after December 31, 1969.

[T.D. 7207, 37 FR 20775, Oct. 4, 1972]



Sec. 1.170A-4  Reduction in amount of charitable contributions of 
certain appreciated property.

    (a) Amount of reduction. Section 170(e)(1) requires that the amount 
of the charitable contribution which would be taken into account under 
section 170(a) without regard to section 170(e) shall be reduced before 
applying the percentage limitations under section 170(b):
    (1) In the case of a contribution by an individual or by a 
corporation of ordinary income property, as defined in paragraph (b)(1) 
of this section, by the amount of gain (hereinafter in this section 
referred to as ordinary income) which would have been recognized as gain 
which is not long-term capital gain if the property had been sold by the 
donor at its fair market value at the time of its contribution to the 
charitable organization,
    (2) In the case of a contribution by an individual of section 170(e) 
capital gain property, as defined in paragraph (b)(2) of this section, 
by 50 percent of the amount of gain (hereinafter in this section 
referred to as long-term capital gain) which would have been recognized 
as long-term capital gain if the property had been sold by the donor at 
its fair market value at the time of its contribution to the charitable 
organization, and
    (3) In the case of a contribution by a corporation of section 170(e) 
capital gain property, as defined in paragraph (b)(2) of this section, 
by 62\1/2\ percent of the amount of gain (hereinafter in this section 
referred to as long-term capital gain) which would have been recognized 
as long-term capital gain if the property had been sold by the donor at 
its fair market value at the time of its contribution to the charitable 
organization.

Section 170(e)(1) and this paragraph do not apply to reduce the amount 
of the charitable contribution where, by reason of the transfer of the 
contributed property, ordinary income or capital gain is recognized by 
the donor in the same taxable year in which the contribution is made. 
Thus, where income or gain is recognized under section 453(d) upon the 
transfer of an installment obligation to a charitable organization, or 
under section 454(b) upon the transfer of an obligation issued at a 
discount to such an organization, or upon the assignment of income to 
such an organization, section 170(e)(1) and this paragraph do not apply 
if recognition of the income or gain occurs in the same taxable year in 
which the contribution is made. Section 170(e)(1) and this paragraph 
apply to a charitable contribution of an interest in ordinary income 
property or section 170(e) capital gain property which is described in 
paragraph (b) of Sec. 1.170A-6, or paragraph (b) of Sec. 1.170A-7. For 
purposes of applying section 170(e)(1) and this paragraph it is 
immaterial whether the charitable contribution is made ``to'' the 
charitable organization or whether it is made ``for the use of'' the 
charitable organization. See Sec. 1.170A-8(a)(2).
    (b) Definitions and other rules. For purposes of this section:
    (1) Ordinary income property. The term ordinary income property 
means property any portion of the gain on which would not have been long 
term capital gain if the property had been sold by the donor at its fair 
market value at the time of its contribution to the charitable 
organization. Such term includes, for example, property held by

[[Page 51]]

the donor primarily for sale to customers in the ordinary course of his 
trade or business, a work of art created by the donor, a manuscript 
prepared by the donor, letters and memorandums prepared by or for the 
donor, a capital asset held by the donor for not more than 1 year (6 
months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977), and stock described in section 306(a), 341(a), 
or 1248(a) to the extent that, after applying such section, gain on its 
disposition would not have been long-term capital gain. The term does 
not include an income interest in respect of which a deduction is 
allowed under section 170(f)(2)(B) and paragraph (c) of Sec. 1.170A-6.
    (2) Section 170(e) capital gain property. The term section 170(e) 
capital gain property means property any portion of the gain on which 
would have been treated as long-term capital gain if the property had 
been sold by the donor at its fair market value at the time of its 
contribution to the charitable organization and which:
    (i) Is contributed to or for the use of a private foundation, as 
defined in section 509(a) and the regulations thereunder, other than a 
private foundation described in section 170(b)(1)(E),
    (ii) Constitutes tangible personal property contributed to or for 
the use of a charitable organization, other than a private foundation to 
which subdivision (i) of this subparagraph applies, which is put to an 
unrelated use by the charitable organization within the meaning of 
subparagraph (3) of this paragraph, or
    (iii) Constitutes property not described in subdivision (i) or (ii) 
of this subparagraph which is 30-percent capital gain property to which 
an election under paragraph (d)(2) of Sec. 1.170A-8 applies.

For purposes of this subparagraph a fixture which is intended to be 
severed from real property shall be treated as tangible personal 
property.
    (3) Unrelated use--(i) In general. The term unrelated use means a 
use which is unrelated to the purpose or function constituting the basis 
of the charitable organization's exemption under section 501 or, in the 
case of a contribution of property to a governmental unit, the use of 
such property by such unit for other than exclusively public purposes. 
For example, if a painting contributed to an educational institution is 
used by that organization for educational purposes by being placed in 
its library for display and study by art students, the use is not an 
unrelated use; but if the painting is sold and the proceeds used by the 
organization for educational purposes, the use of the property is an 
unrelated use. If furnishings contributed to a charitable organization 
are used by it in its offices and buildings in the course of carrying 
out its functions, the use of the property is not an unrelated use. If a 
set or collection of items of tangible personal property is contributed 
to a charitable organization or governmental unit, the use of the set or 
collection is not an unrelated use if the donee sells or otherwise 
disposes of only an insubstantial portion of the set or collection. The 
use by a trust of tangible personal property contributed to it for the 
benefit of a charitable organization is an unrelated use if the use by 
the trust is one which would have been unrelated if made by the 
charitable organization.
    (ii) Proof of use. For purposes of applying subparagraph (2)(ii) of 
this paragraph, a taxpayer who makes a charitable contribution of 
tangible personal property to or for the use of a charitable 
organization or governmental unit may treat such property as not being 
put to an unrelated use by the donee if:
    (a) He establishes that the property is not in fact put to an 
unrelated use by the donee, or
    (b) At the time of the contribution or at the time the contribution 
is treated as made, it is reasonable to anticipate that the property 
will not be put to an unrelated use by the donee. In the case of a 
contribution of tangible personal property to or for the use of a 
museum, if the object donated is of a general type normally retained by 
such museum or other museums for museum purposes, it will be reasonable 
for the donor to anticipate, unless he has actual knowledge to the 
contrary, that the object will not be put to an unrelated use by the 
donee, whether or not the object is later sold or exchanged by the 
donee.

[[Page 52]]

    (4) Property used in trade or business. For purposes of applying 
subparagraphs (1) and (2) of this paragraph, property which is used in 
the trade or business, as defined in section 1231(b), shall be treated 
as a capital asset, except that any gain in respect of such property 
which would have been recognized if the property had been sold by the 
donor at its fair market value at the time of its contribution to the 
charitable organization shall be treated as ordinary income to the 
extent that such gain would have constituted ordinary income by reason 
of the application of section 617 (d)(1), 1245(a), 1250(a), 1251(c), 
1252(a), or 1254(a).
    (5) Nonresident alien individuals and foreign corporations. The 
reduction in the case of a nonresident alien individual or a foreign 
corporation shall be determined by taking into account the gain which 
would have been recognized and subject to tax under chapter 1 of the 
Code if the property had been sold or disposed of within the United 
States by the donor at its fair market value at the time of its 
contribution to the charitable organization. However, the amount of such 
gain which would have been subject to tax under section 871(a) or 881 
(relating to gain not effectively connected with the conduct of a trade 
or business within the United States) if there had been a sale or other 
disposition within the United States shall be treated as long-term 
capital gain. Thus, a charitable contribution by a nonresident alien 
individual or a foreign corporation of property the sale or other 
disposition of which within the United States would have resulted in 
gain subject to tax under section 871(a) or 881 will be reduced only as 
provided in section 170(e)(1)(B) and paragraph (a) (2) or (3) of this 
section, but only if the property contributed is described in 
subdivision (i), (ii), or (iii) of subparagraph (2) of this paragraph. A 
charitable contribution by a nonresident alien individual or a foreign 
corporation of property the sale or other disposition of which within 
the United States would have resulted in gain subject to tax under 
section 871(a) or 881 will in no case be reduced under section 
170(e)(1)(A) and paragraph (a)(1) of this section.
    (c) Allocation of basis and gain--(1) In general. Except as provided 
in subparagraph (2) of this paragraph:
    (i) If a taxpayer makes a charitable contribution of less than his 
entire interest in appreciated property, whether or not the transfer is 
made in trust, as, for example, in the case of a transfer of appreciated 
property to a pooled income fund described in section 642(c)(5) and 
Sec. 1.642(c)-5, and is allowed a deduction under section 170 for a 
portion of the fair market value of such property, then for purposes of 
applying the reduction rules of section 170(e)(1) and this section to 
the contributed portion of the property the taxpayer's adjusted basis in 
such property at the time of the contribution shall be allocated under 
section 170(e)(2) between the contributed portion of the property and 
the noncontributed portion.
    (ii) The adjusted basis of the contributed portion of the property 
shall be that portion of the adjusted basis of the entire property which 
bears the same ratio to the total adjusted basis as the fair market 
value of the contributed portion of the property bears to the fair 
market value of the entire property.
    (iii) The ordinary income and the long-term capital gain which shall 
be taken into account in applying section 170(e)(1) and paragraph (a) of 
this section to the contributed portion of the property shall be the 
amount of gain which would have been recognized as ordinary income and 
long-term capital gain if such contributed portion had been sold by the 
donor at its fair market value at the time of its contribution to the 
charitable organization.
    (2) Bargain sale. (i) Section 1011(b) and Sec. 1.1011-2 apply to 
bargain sales of property to charitable organizations. For purposes of 
applying the reduction rules of section 170(e)(1) and this section to 
the contributed portion of the property in the case of a bargain sale, 
there shall be allocated under section 1011(b) to the contributed 
portion of the property that portion of the adjusted basis of the entire 
property that bears the same ratio to the total adjusted basis as the 
fair market value of the contributed portion of the property bears to 
the fair market value of the

[[Page 53]]

entire property. For purposes of applying section 170(e)(1) and 
paragraph (a) of this section to the contributed portion of the property 
in such a case, there shall be allocated to the contributed portion the 
amount of gain that is not recognized on the bargain sale but that would 
have been recognized if such contributed portion had been sold by the 
donor at its fair market value at the time of its contribution to the 
charitable organization.
    (ii) The term bargain sale, as used in this subparagraph, means a 
transfer of property which is in part a sale or exchange of the property 
and in part a charitable contribution, as defined in section 170(c), of 
the property.
    (3) Ratio of ordinary income and capital gain. For purposes of 
applying subparagraphs (1)(iii) and (2)(i) of this paragraph, the amount 
of ordinary income (or long-term capital gain) which would have been 
recognized if the contributed portion of the property had been sold by 
the donor at its fair market value at the time of its contribution 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 its contribution as (i) the fair market value of the contributed 
portion at such time bears to (ii) the fair market value of the entire 
property at such time. In the case of a bargain sale, the fair market 
value of the contributed portion for purposes of subdivision (i) is the 
amount determined by subtracting from the fair market value of the 
entire property the amount realized on the sale.
    (4) Donee's basis of property acquired. The adjusted basis of the 
contributed portion of the property, as determined under subparagraph 
(1) or (2) of this paragraph, shall be used by the donee in applying to 
the contributed portion such provisions as section 514(a)(1), relating 
to adjusted basis of debt-financed property; section 1015(a), relating 
to basis of property acquired by gift; section 4940(c)(4), relating to 
capital gains and losses in determination of net investment income; and 
section 4942(f)(2)(B), relating to net short-term capital gain in 
determination of tax on failure to distribute income. The fair market 
value of the contributed portion of the property at the time of the 
contribution shall not be used by the donee as the basis of such 
contributed portion.
    (d) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. (a) On July 1, 1970, C, an individual, makes the 
following charitable contributions, all of which are made to a church 
except in the case of the stock (as indicated):

------------------------------------------------------------------------
                                            Fair
                Property                   market   Adjusted  Recognized
                                            value     basis    gain sold
------------------------------------------------------------------------
Ordinary income property................   $50,000   $35,000    $15,000
Property which, if sold, would produce
 long-term capital gain:
  (1) Stock held more than 6 months
   contributed to--.....................
    (i) A church........................    25,000    21,000      4,000
    (ii) A private foundation not           15,000    10,000      5,000
     described in section 170(b)(1)(E)..
  (2) Tangible personal property held       12,000     6,000      6,000
   more than 6 months (put to unrelated
   use by church).......................
                                         -------------------------------
 Total..................................   102,000    72,000     30,000
------------------------------------------------------------------------

    (b) After making the reductions required by paragraph (a) of this 
section, the amount of charitable contributions allowed (before 
application of section 170(b) limitations) is as follows:

------------------------------------------------------------------------
                                         Fair
               Property                 market   Reduction  Contribution
                                         value                 allowed
------------------------------------------------------------------------
Ordinary income property.............   $50,000    $15,000     $35,000
Property which, if sold, would
 produce long-term capital gain:
  (1) Stock contributed to:..........
    (i) The church...................    25,000  .........      25,000
    (ii) The private foundation......    15,000      2,500      12,500
  (2) Tangible personal property.....    12,000      3,000       9,000
                                      ----------------------------------
 Total...............................   102,000     20,500      81,500
------------------------------------------------------------------------

    (c) If C were a corporation, rather than an individual, the amount 
of charitable contributions allowed (before application of section 
170(b) limitation) would be as follows:

------------------------------------------------------------------------
                                         Fair
               Property                 market   Reduction  Contribution
                                         value                 allowed
------------------------------------------------------------------------
Ordinary income property.............   $50,000    $15,000     $35,000

[[Page 54]]

 
Property which, if sold, would
 produce long-term capital gain:
  (1) Stock contributed to:..........
    (i) The church...................    25,000  .........      25,000
    (ii) The private foundation......    15,000      3,125      11,875
  (2) Tangible personal property.....    12,000      3,750       8,250
                                      ----------------------------------
    Total............................   102,000     21,875      80,125
------------------------------------------------------------------------

    Example 2. On March 1, 1970, D, an individual, contributes to a 
church intangible property to which section 1245 applies which has a 
fair market value of $60,000 and an adjusted basis of $10,000. At the 
time of the contribution D has used the property in his business for 
more than 6 months. If the property had been sold by D at its fair 
market value at the time of its contribution, it is assumed that under 
section 1245 $20,000 of the gain of $50,000 would have been treated as 
ordinary income and $30,000 would have been long-term capital gain. 
Under paragraph (a)(1) of this section, D's contribution of $60,000 is 
reduced by $20,000.
    Example 3. The facts are the same as in Example 2 except that the 
property is contributed to a private foundation not described in section 
170(b)(1)(E). Under paragraph (a) (1) and (2) of this section, D's 
contribution is reduced by $35,000 (100 percent of the ordinary income 
of $20,000 and 50 percent of the long-term capital gain of $30,000).
    Example 4. (a) In 1971, E, an individual calendar-year taxpayer, 
contributes to a church stock held for more than 6 months which has a 
fair market value of $90,000 and an adjusted basis of $10,000. In 1972, 
E also contributes to a church stock held for more than 6 months which 
has a fair market value of $20,000 and an adjusted basis of $10,000. E's 
contribution base for 1971 is $200,000; and for 1972, is $150,000. E 
makes no other charitable contributions for these 2 taxable years.
    (b) For 1971 the amount of the contribution which may be taken into 
account under section 170(a) is limited by section 170(b)(1)(D)(i) to 
$60,000 ($200,000x30%), and A is allowed a deduction for $60,000. Under 
section 170(b)(1)(D)(ii), E has a $30,000 carryover to 1972 of 30-
percent capital gain property, as defined in paragraph (d)(3) of Sec. 
1.170A-8. For 1972 the amount of the charitable contributions deduction 
is $45,000 (total contributions of $50,000 [$30,000+$20,000] but not to 
exceed 30% of $150,000).
    (c) Assuming, however, that in 1972 E elects under section 
170(b)(1)(D)(iii) and paragraph (d)(2) of Sec. 1.170A-8 to have section 
170(e)(1)(B) apply to his contributions and carryovers of 30-percent 
capital gain property, he must apply section 170(d)(1) as if section 
170(e)(1)(B) had applied to the contribution for 1971. If section 170 
(e)(1)(B) had applied in 1971 to his contributions of 30-percent capital 
gain property, E's contribution would have been reduced from $90,000 to 
$50,000, the reduction of $40,000 being 50 percent of the gain of 
$80,000 ($90,000-$10,000) which would have been recognized as long-term 
capital gain if the property had been sold by E at its fair market value 
at the time of its contribution to the church. Accordingly, by taking 
the election into account, E has no carryover of 30-percent capital gain 
property to 1972 since the charitable contributions deduction of $60,000 
allowed for 1971 in respect of that property exceeds the reduced 
contribution of $50,000 for 1971 which may be taken into account by 
reason of the election. The charitable contributions deduction of 
$60,000 allowed for 1971 is not reduced by reason of the election.
    (d) Since by reason of the election E is allowed under paragraph 
(a)(2) of this section a charitable contributions deduction for 1972 of 
$15,000 ($20,000-[($20,000- $10,000)x50%]) and since the $30,000 
carryover from 1971 is eliminated, it would not be to E's advantage to 
make the election under section 170(b)(1)(D)(iii) in 1972.
    Example 5. In 1970, F, an individual calendar-year taxpayer, sells 
to a church for $4,000 ordinary income property with a fair market value 
of $10,000 and an adjusted basis of $4,000. F's contribution base for 
1970 is $20,000, and F makes no other charitable contributions in 1970. 
Thus, F makes a charitable contribution to the church of $6,000 
($10,000-$4,000 amount realized), which is 60% of the value of the 
property. The amount realized on the bargain sale is 40% ($4,000/
$10,000) of the value of the property. In applying section 1011(b) to 
the bargain sale, adjusted basis in the amount of $1,600 ($4,000 
adjusted basis x 40%) is allocated under Sec. 1.1011-2(b) to the 
noncontributed portion of the property, and F recognizes $2,400 ($4,000 
amount realized less $1,600 adjusted basis) of ordinary income. Under 
paragraphs (a)(1) and (c)(2)(i) of this section, F's contribution of 
$6,000 is reduced by $3,600 ($6,000 - [$4,000 adjusted basis x 60%]) 
(i.e., the amount of ordinary income that would have been recognized on 
the contributed portion had the property been sold). The reduced 
contribution of $2,400 consists of the portion ($4,000 x 60%) of the 
adjusted basis not allocated to the noncontributed portion of the 
property. That is, the reduced contribution consists of the portion of 
the adjusted basis allocated to the contributed portion. Under sections 
1012 and 1015(a) the basis of the property to the church is $6,400 
($4,000 + $2,400).
    Example 6. In 1970, G, an individual calendar-year taxpayer, sells 
to a church for $6,000 ordinary income property with a fair market value 
of $10,000 and an adjusted basis of $4,000. G's contribution base for 
1970 is

[[Page 55]]

$20,000, and G makes no other charitable contributions in 1970. Thus, G 
makes a charitable contribution to the church of $4,000 ($10,000 - 
$6,000 amount realized), which is 40% of the value of the property. The 
amount realized on the bargain sale is 60% ($6,000/$10,000) of the value 
of the property. In applying section 1011(b) to the bargain sale, 
adjusted basis in the amount of $2,400 ($4,000 adjusted basis x 60%) is 
allocated under Sec. 1.1011-2(b) to the noncontributed portion of the 
property, and G recognizes $3,600 ($6,000 amount realized less $2,400 
adjusted basis) of ordinary income. Under paragraphs (a)(1) and 
(c)(2)(i) of this section, G's contribution of $4,000 is reduced by 
$2,400 ($4,000 - [$4,000 adjusted basis x 40%]) (i.e., the amount of 
ordinary income that would have been recognized on the contributed 
portion had the property been sold). The reduced contribution of $1,600 
consist of the portion ($4,000x40%) of the adjusted basis not allocated 
to the noncontributed portion of the property. That is, the reduced 
contribution consists of the portion of the adjusted basis allocated to 
the contributed portion. Under sections 1012 and 1015(a) the basis of 
the property to the church is $7,600 ($6,000+$1,600).
    Example 7. In 1970, H, an individual calendar-year 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. H's 
contribution base for 1970 is $20,000, and H makes no other charitable 
contributions in 1970. Thus, H makes a charitable contribution to the 
church of $8,000 ($10,000-$2,000 amount realized), which is 80% of the 
value of the property. The amount realized on the bargain sale is 20% 
($2,000/$10,000) of the value of the property. In applying section 
1011(b) to the bargain sale, adjusted basis in the amount of $800 
($4,000 adjusted basis x 20%) is allocated under Sec. 1.1011-2(b) to 
the noncontributed portion of the property, and H recognizes $1,200 
($2,000 amount realized less $800 adjusted basis) of ordinary income. 
Under paragraphs (a)(1) and (c)(2)(i) of this section, H's contribution 
of $8,000 is reduced by $4,800 ($8,000 - [$4,000 adjusted basisx80%]) 
(i.e., the amount of ordinary income that would have been recognized on 
the contributed portion had the property been sold). The reduced 
contribution of $3,200 consists of the portion ($4,000x80%) of the 
adjusted basis not allocated to the noncontributed portion of the 
property. That is, the reduced contribution consists of the portion of 
the adjusted basis allocated to the contributed portion. Under sections 
1012 and 1015(a) the basis of the property to the church is $5,200 
($2,000+$3,200).
    Example 8. In 1970, F, an individual calendar-year taxpayer, sells 
for $4,000 to a private foundation not described in section 170(b)(1)(E) 
property to which section 1245 applies which has a fair market value of 
$10,000 and an adjusted basis of $4,000. F's contribution base for 1970 
is $20,000, and F makes no other charitable contributions in 1970. At 
the time of the bargain sale, F has used the property in his business 
for more than 6 months. Thus F makes a charitable contribution of $6,000 
($10,000-$4,000 amount realized), which is 60% of the value of the 
property. The amount realized on the bargain sale is 40% ($4,000/
$10,000) of the value of the property. If the property had been sold by 
F 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-
$4,000 adjusted basis) would have been treated as ordinary income and 
$2,000 would have been long-term capital gain. In applying section 
1011(b) to the bargain sale, adjusted basis in the amount of $1,600 
($4,000 adjusted basis x 40%) is allocated under Sec. 1.1011-2(b) to 
the noncontributed portion of the property, and F's recognized gain of 
$2,400 ($4,000 amount realized less $1,600 adjusted basis) consists of 
$1,600 ($4,000x40%) of ordinary income and $800 ($2,000x40%) of long-
term capital gain. Under paragraphs (a) and (c)(2)(i) of this section, 
F's contribution of $6,000 is reduced by $3,000 (the sum of $2,400 
($4,000x60%) of ordinary income and $600 ([$2,000x60%] x 50%) of long-
term capital gain) (i.e., the amount of gain that would have been 
recognized on the contributed portion had the property been sold). The 
reduced contribution of $3,000 consists of $2,400 ($4,000x60%) of 
adjusted basis and $600 ([$2,000x60%] x 50%) of long-term capital gain 
not used as a reduction under paragraph (a)(2) of this section. Under 
sections 1012 and 1015(a) the basis of the property to the private 
foundation is $6,400 ($4,000+$2,400).
    Example 9. On January 1, 1970, A, an individual, transfers to a 
charitable remainder annuity trust described in section 664 (d)(1) stock 
which he has held for more than 6 months and which has a fair market 
value of $250,000 and an adjusted basis of $50,000, an irrevocable 
remainder interest in the property being contributed to a private 
foundation not described in section 170(b)(1)(E). The trusts provides 
that an annuity of $12,500 a year is payable to A at the end of each 
year for 20 years. By reference to Sec. 20.2031-7A(c) of this chapter 
(Estate Tax Regulations) the figure in column (2) opposite 20 years is 
11.4699. Therefore, under Sec. 1.664-2 the fair market value of the 
gift of the remainder interest to charity is $106,626.25 ($250,000 - 
[$12,500x11.4699]). Under paragraph (c)(1)(ii) of this section, the 
adjusted basis allocated to the contributed portion of the property is 
$21,325.25 ($50,000x$106,626.25/$250,000). Under paragraphs (a)(2) and 
(c)(1) of this section, A's contribution is reduced by $42,650.50 (50 
percent x [$106,626.25-$21,325.25]) to $63,975.75 ($106,626.25-
$42,650.50). If, however, the irrevocable remainder interest in the 
property

[[Page 56]]

had been contributed to a section 170(b)(1)(A) organization, A's 
contribution of $106,626.25 would not be reduced under paragraph (a) of 
this section.
    Example 10. (a) On July 1, 1970, B, a calendar-year individual 
taxpayer, sells to a church for $75,000 intangible property to which 
section 1245 applies which has a fair market value of $250,000 and an 
adjusted basis of $75,000. Thus, B makes a charitable contribution to 
the church of $175,000 ($250,000-$75,000 amount realized), which is 70% 
($175,000/$250,000) of the value of the property, the amount realized on 
the bargain sale is 30% ($75,000/$250,000) of the value of the property. 
At the time of the bargain sale, B has used the property in his business 
for more than 6 months. B's contribution base for 1970 is $500,000, and 
B makes no other charitable contributions in 1970. If the property had 
been sold by B at its fair market value at the time of its contribution, 
it is assumed that under section 1245 $105,000 of the gain of $175,000 
($250,000-$75,000 adjusted basis) would have been treated as ordinary 
income and $70,000 would have been long-term capital gain. In applying 
section 1011(b) to the bargain sale, adjusted basis in the amount of 
$22,500 ($75,000 adjusted basis x 30%) is allocated under Sec. 1.1011-
2(b) to the noncontributed portion of the property and B's recognized 
gain of $52,500 ($75,000 amount realized less $22,500 adjusted basis) 
consists of $31,500 ($105,000x30%) of ordinary income and $21,000 
($70,000x30%) of long term capital gain.
    (b) Under paragraphs (a)(1) and (c)(2)(i) of this section B's 
contribution of $175,000 is reduced by $73,500 ($105,000x70%) (i.e., the 
amount of ordinary income that would have been recognized on the 
contributed portion had the property been sold). The reduced 
contribution of $101,500 consists of $52,500 [$75,000x70%] of adjusted 
basis allocated to the contributed portion of the property and $49,000 
[$70,000x70%] of long-term capital gain allocated to the contributed 
portion. Under sections 1012 and 1015(a) the basis of the property to 
the church is $127,500 ($75,000+$52,500).

    (e) Effective date. This section applies only to contributions paid 
after December 31, 1969, except that, in the case of a charitable 
contribution of a letter, memorandum, or property similar to a letter or 
memorandum, it applies to contributions paid after July 25, 1969.

[T.D. 7207, 37 FR 20776, Oct. 4, 1972; 37 FR 22982, Oct. 27, 1972, as 
amended by T.D. 7728, 45 FR 72650, Nov. 3, 1980; T.D. 7807, 47 FR 4510, 
Feb. 1, 1982; T.D. 8176, 53 FR 5569, Feb. 25, 1988; T.D. 8540, 59 FR 
30102, June 10, 1994]



Sec. 1.170A-4A  Special rule for the deduction of certain charitable 
contributions of inventory and other property.

    (a) Introduction. Section 170(e)(3) provides a special rule for the 
deduction of certain qualified contributions of inventory and certain 
other property. To be treated as a ``qualified contribution'', a 
contribution must meet the restrictions and requirements of section 
170(e)(3)(A) and paragraph (b) of this section. Paragraph (b)(1) of this 
section describes the corporations whose contributions may be subject to 
this section, the exempt organizations to which these contributions may 
be made, and the kinds of property which may be contributed. Under 
paragraph (b)(2) of this section, the use of the property must be 
related to the purpose or function constituting the ground for the 
exemption of the organization to which the contribution is made. Also, 
the property must be used for the care of the ill, needy, or infants. 
Under paragraph (b)(3) of this section, the recipient organization may 
not, except as there provided, require or receive in exchange money, 
property, or services for the transfer or use of property contributed 
under section 170(e)(3). Under paragraph (b)(4) of this section, the 
recipient organization must provide the contributing taxpayer with a 
written statement representing that the organization intends to comply 
with the restrictions set forth in paragraph (b) (2) and (3) of this 
section on the use and transfer of the property. Under paragraph (b)(5) 
of this section, the contributed property must conform to any applicable 
provisions of the Federal Food, Drug, and Cosmetic Act (as amended), and 
the regulations thereunder, at the date of contribution and for the 
immediately preceding 180 days. Paragraph (c) of this section provides 
the rules for determining the amount of reduction of the charitable 
contribution under section 170(e)(3). In general, the amount of the 
reduction is equal to one-half of the amount of gain (other than gain 
described in paragraph (d) of this section) which would not have been 
long-term capital gain if the property had been sold by the donor-
taxpayer at fair market value at the

[[Page 57]]

date of contribution. If, after this reduction, the amount of the 
deduction would be more than twice the basis of the contributed 
property, the amount of the deduction is accordingly further reduced 
under paragraph (c)(1) of this section. The basis of contributed 
property which is inventory is determined under paragraph (c)(2) of this 
section, and the donor's cost of goods sold for the year of contribution 
must be adjusted under paragraph (c)(3) of this section. Under paragraph 
(d) of this section, a deduction is not allowed for any amount which, if 
the property had been sold by the donor-taxpayer, would have been gain 
to which the recapture provisions of section 617, 1245, 1250, 1251, or 
1252 would have applied. For purposes of section 170(e)(3) the rules of 
Sec. 1.170A-4 apply where not inconsistent with the rules of this 
section.
    (b) Qualified contributions--(1) In general. A contribution of 
property qualifies under section 170(e)(3) of this section only if it is 
a charitable contribution:
    (i) By a corporation, other than a corporation which is an electing 
small business corporation within the meaning of section 1371(b);
    (ii) To an organization described in section 501(c)(3) and exempt 
under section 501(a), other than a private foundation, as defined in 
section 509(a), which is not an operating foundation, as defined in 
section 4942(j)(e);
    (iii) Of property described in section 1221 (1) or (2);
    (iv) Which contribution meets the restrictions and requirements of 
paragraph (b) (2) through (5) of this section.
    (2) Restrictions on use of contributed property. In order for the 
contribution to qualify under this section, the contributed property is 
subject to the following restrictions in use. If the transferred 
property is used or transferred by the donee organization (or by any 
subsequent transferee that furnished to the donee organization the 
written statement described in paragraph (b)(4)(ii) of this section) in 
a manner inconsistent with the requirements of subdivision (i) or (ii) 
of this paragraph (b)(2) or the requirements of paragraph (b)(3) of this 
section, the donor's deduction is reduced to the amount allowable under 
section 170 of the regulations thereunder, determined without regard to 
section 170(e)(3) of this section. If, however, the donor establishes 
that, at the time of the contribution, the donor reasonably anticipated 
that the property would be used in a manner consistent with those 
requirements, then the donor's deduction is not reduced.
    (i) Requirement of use for exempt purpose. The use of the property 
must be related to the purpose or function constituting the ground for 
exemption under section 501(c)(3) of the organization to which the 
contribution is made. The property may not be used in connection with 
any activity which gives rise to unrelated trade or business income, as 
defined in sections 512 and 513 and the regulations thereunder.
    (ii) Requirement of use for care of the ill, needy, or infants--(A) 
In general. The property must be used for the care of the ill, needy, or 
infants, as defined in this subdivision (ii). The property itself must 
ultimately either be transferred to (or for the use of) the ill, needy, 
or infants for their care or be retained for their care. No other person 
may use the contributed property except as incidental to primary use in 
the care of the ill, needy, or infants. The organization may satisfy the 
requirement of this subdivision by transferring the property to a 
relative, custodian, parent or guardian of the ill or needy individual 
or infant, or to any other individual if it makes a reasonable effort to 
ascertain that the property will ultimately be used primarily for the 
care of the ill or needy individual, or infant, and not for the primary 
benefit of any other person. The recipient organization may transfer the 
property to another exempt organization within the jurisdiction of the 
United States which meets the description contained in paragraph 
(b)(1)(ii) of this section, or to an organization not within the 
jurisdiction of the United States that, but for the fact that it is not 
within the jurisdiction of the United States, would be described in 
paragraph (b)(1)(ii) of this section. If an organization transfers the 
property to another organization, the transferring organization must 
obtain a written statement from the transferee organization as set forth 
in paragraph (b)(4) of this section. If

[[Page 58]]

the property is ultimately transferred to, or used for the benefit of, 
ill or needy persons, or infants, not within the jurisdiction of the 
United States, the organization which so transfers the property outside 
the jurisdiction of the United States must necessarily be a corporation. 
See section 170(c)(2) and Sec. 1.170A-11(a). For purposes of this 
subdivision, if the donee-organization charges for its transfer of 
contributed property (other than a fee allowed by paragraph (b)(3)(ii) 
of this section), the requirement of this subdivision is not met. See 
paragraph (b)(3) of this section.
    (B) Definition of the ill. An ill person is a person who requires 
medical care within the meaning of Sec. 1.213-1(e). Examples of ill 
persons include a person suffering from physical injury, a person with a 
significant impairment of a bodily organ, a person with an existing 
handicap, whether from birth or later injury, a person suffering from 
malnutrition, a person with a disease, sickness, or infection which 
significantly impairs physical health, a person partially or totally 
incapable of self-care (including incapacity due to old age). A person 
suffering from mental illness is included if the person is hospitalized 
or institutionalized for the mental disorder, or, although the person is 
nonhospitalized or noninstitutionalized, if the person's mental illness 
constitutes a significant health impairment.
    (C) Definition of care of the ill. Care of the ill means alleviation 
or cure of an existing illness and includes care of the physical, 
mental, or emotional needs of the ill.
    (D) Definition of the needy. A needy person is a person who lacks 
the necessities of life, involving physical, mental, or emotional well-
being, as a result of poverty or temporary distress. Examples of needy 
persons include a person who is financially impoverished as a result of 
low income and lack of financial resources, a person who temporarily 
lacks food or shelter (and the means to provide for it), a person who is 
the victim of a natural disaster (such as fire or flood), a person who 
is the victim of a civil disaster (such as a civil disturbance), a 
person who is temporarily not self-sufficient as a result of a sudden 
and severe personal or family crisis (such as a person who is the victim 
of a crime of violence or who has been physically abused), a person who 
is a refugee or immigrant and who is experiencing language, cultural, or 
financial difficulties, a minor child who is not self-sufficient and who 
is not cared for by a parent or guardian, and a person who is not self-
sufficient as a result of previous institutionalization (such as a 
former prisoner or a former patient in a mental institution).
    (E) Definition of care of the needy. Care of the needy means 
alleviation or satisfaction of an existing need. Since a person may be 
needy in some respects and not needy in other respects, care of the 
needy must relate to the particular need which causes the person to be 
needy. For example, a person whose temporary need arises from a natural 
disaster may need temporary shelter and food but not recreational 
facilities.
    (F) Definition of infant. An infant is a minor child (as determined 
under the laws of the jurisdiction in which the child resides).
    (G) Definition of care of an infant. Care of an infant means 
performance of parental functions and provision for the physical, 
mental, and emotional needs of the infant.
    (3) Restrictions on Transfer of contributed property--(i) In 
general. Except as otherwise provided in subdivision (ii) of this 
paragraph (b)(3), a contribution will not qualify under this section, if 
the donee-organization or any transferee of the donee-organization 
requires or receives any money, property, or services for the transfer 
or use of property contributed under section 170(e)(3). For example, if 
an organization provides temporary shelter for a fee, and also provides 
free meals to ill or needy individuals, or infants using food 
contributed under this section the contribution of food is subject to 
this section (if the other requirements of this section are met). 
However, the fee charged by the organization for the shelter may not be 
increased merely because meals are served to the ill or needy 
individuals or infants.
    (ii) Exception. A contribution may qualify under this section if the 
donee-organization charges a fee to another

[[Page 59]]

organization in connection with its transfer of the donated property, 
if:
    (A) The fee is small or nominal in relation to the value of the 
transferred property and is not determined by this value; and
    (B) The fee is designed to reimburse the donee-organization for its 
administrative, warehousing, or other similar costs.

For example, if a charitable organization (such as a food bank) accepts 
surplus food to distribute to other charities which give the food to 
needy persons, a small fee may be charged to cover administrative, 
warehousing, and other similar costs. This fee may be charged on the 
basis of the total number of pounds of food distributed to the 
transferee charity but not on the basis of the value of the food 
distributed. The provisions of this subdivision (ii) do not apply to a 
transfer of donated property directly from an organization to ill or 
needy individuals, or infants.
    (4) Requirement of a written statement--(i) Furnished to taxpayer. 
In the case of any contribution made on or after March 3, 1982, the 
donee-organization must furnish to the taxpayer a written statement 
which:
    (A) Describes the contributed property, stating the date of its 
receipt;
    (B) Represents that the property will be used in compliance with 
section 170(e)(3) and paragraphs (b) (2) and (3) of this section;
    (C) Represents that the donee-organization meets the requirements of 
paragraph (b)(1)(ii) of this section; and
    (D) Represents that adequate books and records will be maintained, 
and made available to the Internal Revenue Service upon request.

The written statement must be furnished within a reasonable period after 
the contribution, but not later than the date (including extensions) by 
which the donor is required to file a United States corporate income tax 
return for the year in which the contribution was made. The books and 
records described in (D) of this subdivision (i) need not trace the 
receipt and disposition of specific items of donated property if they 
disclose compliance with the requirements by reference to aggregate 
quantities of donated property. The books and records are adequate if 
they reflect total amounts received and distributed (or used), and 
outline the procedure used for determining that the ultimate recipient 
of the property is an ill or needy individual, or infant. However, the 
books and records need not reflect the names of the ultimate individual 
recipients or the property distributed to (or used by) each one.
    (ii) Furnished to transferring organization. If an organization that 
received a contribution under this section transfers the contributed 
property to another organization on or after March 3, 1982, the 
transferee organization must furnish to the transferring organization a 
written statement which contains the information required in paragraph 
(b)(4)(i) (A), (B) and (D) of this section. The statement must also 
represent that the transferee organization meets the requirements of 
paragraph (b)(1)(ii) of this section (or, in the case of a transferee 
organization which is a foreign organization not within the jurisdiction 
of the United States, that, but for such fact, the organization would 
meet the requirements of paragraph (b)(1)(ii) of this section). The 
written statement must be furnished within a reasonable period after the 
transfer.
    (5) Requirement of compliance with the Federal Food, Drug, and 
Cosmetic Act--(i) In general. With respect to property contributed under 
this section which is subject to the Federal Food, Drug, and Cosmetic 
Act (as amended), and regulations thereunder, the contributed property 
must comply with the applicable provisions of that Act and regulations 
thereunder at the date of the contribution and for the immediately 
preceding 180 days. In the case of specific items of contributed 
property not in existence for the entire period of 180 days immediately 
preceding the date of contribution, the requirement of this paragraph 
(b)(5) is considered met if the contributed property complied with that 
Act and the regulations thereunder during the period of its existence 
and at the date of contribution and if, for the 180 day period prior to 
contribution other property (if any) held by the taxpayer at any time 
during that period, which property was fungible with the contributed 
property, complied with that Act

[[Page 60]]

and the regulations thereunder during the period held by the taxpayer.
    (ii) Example. The rule of this paragraph (b)(5) may be illustrated 
by the following example.

    Example. Corporation X a grocery store, contributes 12 crates of 
navel oranges. The oranges were picked and placed in the grocery store's 
stock two weeks prior to the date of contribution. The contribution 
satisfies the requirements of this paragraph (b)(5) if X complied with 
the Act and regulations thereunder for 180 days prior to the date of 
contribution with respect to all navel oranges in stock during that 
period.

    (c) Amount of reduction--(1) In general. Section 170(e)(3)(B) 
requires that the amount of the charitable contribution subject to this 
section which would be taken into account under section 170(a), without 
regard to section 170(e), must be reduced before applying the percentage 
limitations under section 170(b). The amount of the first reduction is 
equal to one-half of the amount of gain which would not have been long-
term capital gain if the property had been sold by the donor-taxpayer at 
its fair market value on the date of its contribution, excluding, 
however, any amount described in paragraph (d) of this section. If the 
amount of the charitable contribution which remains after this reduction 
exceeds twice the basis of the contributed property, then the amount of 
the charitable contribution is reduced a second time to an amount which 
is equal to twice the amount of the basis of the property.
    (2) Basis of contributed property which is inventory. For the 
purposes of this section, notwithstanding the rules of Sec. 1.170A-
1(c)(4), the basis of contributed property which is inventory must be 
determined under the donor's method of accounting for inventory for 
purposes of United States income tax. The donor must use as the basis of 
the contributed item the inventoriable carrying cost assigned to any 
similar item not included in closing inventory. For example, under the 
LIFO dollar value method of accounting for inventory, where there has 
been an invasion of a prior year's layer, the donor may choose to treat 
the item contributed as having a basis of the unit's cost with reference 
to the layer(s) of prior year(s) cost or with reference to the current 
year cost.
    (3) Adjustment to cost of goods sold. Notwithstanding the rules of 
Sec. 1.170A-1(c)(4), the donor of the property which is inventory 
contributed under this section must make a corresponding adjustment to 
cost of goods sold by decreasing the cost of goods sold by the lesser of 
the fair market value of the contributed item or the amount of basis 
determined under paragraph (c)(2) of this section.
    (4) Examples. The rules of this paragraph (c) may be illustrated by 
the following examples:

    Example 1. During 1978 corporation X, a calendar year taxpayer, 
makes a qualified contribution of women's coats which were section 
1221(1) property. The fair market value of the property at the date of 
contribution is $1,000, and the basis of the property is $200. The 
amount of the charitable contribution which would be taken into account 
under section 170(a) is the fair market value ($1,000). The amount of 
gain which would not have been long-term capital gain if the property 
had been sold is $800 ($1,000-$200). The amount of the contribution is 
reduced by one-half the amount which would not have been capital gain if 
the property had been sold ($800/2=-$400).
    After this reduction, the amount of the contribution which may be 
taken into account is $600 ($1,000-$400). A second reduction is made in 
the amount of the charitable contribution because this amount (as first 
reduced to $600) is more than $400 which is an amount equal to twice the 
basis of the property. The amount of the further reduction is $200 
[$600-(2x$200)], and the amount of the contribution as finally reduced 
is $400 [$1,00-($400+$200)]. X would also have to decrease its cost of 
goods sold for the year of contribution by $200.
    Example 2. Assume the same facts as set forth in Example 1 except 
that the basis of the property is $600. The amount of the first 
reduction is $200 (($1,000-$600)/2).
    As reduced, the amount of the contribution which may be taken into 
account is $800 ($1,000-$200). There is no second reduction because $800 
is less than $1,200 which is twice the basis of the property. However, X 
would have to decrease its cost of goods sold for the year of 
contribution by $600.

    (d) Recapture excluded. A deduction is not allowed under section 
170(e)(3) or this section for any amount which, if the property had been 
sold by the donor-taxpayer on the date of its contribution for an amount 
equal to its fair market value, would have been

[[Page 61]]

treated as ordinary income under section 617, 1245, 1250, 1251, or 1252. 
Thus, before making either reduction required by section 170(e)(3)(B) 
and paragraph (c) of this section, the fair market value of the 
contributed property must be reduced by the amount of gain that would 
have been recognized (if the property had been sold) as ordinary income 
under section 617, 1245, 1250, 1251, or 1252.
    (e) Effective date. This section applies to qualified contributions 
made after October 4, 1976.

[T.D. 7807, 47 FR 4510, Feb. 1, 1982, as amended by T.D. 7962, 49 FR 
27317, July 3, 1984]



Sec. 1.170A-5  Future interests in tangible personal property.

    (a) In general. (1) A contribution consisting of a transfer of a 
future interest in tangible personal property shall be treated as made 
only when all intervening interests in, and rights to the actual 
possession or enjoyment of, the property:
    (i) Have expired, or
    (ii) Are held by persons other than the taxpayer or those standing 
in a relationship to the taxpayer described in section 267(b) and the 
regulations thereunder, relating to losses, expenses, and interest with 
respect to transactions between related taxpayers.
    (2) Section 170(a)(3) and this section have no application in 
respect of a transfer of an undivided present interest in property. For 
example, a contribution of an undivided one-quarter interest in a 
painting with respect to which the donee is entitled to possession 
during 3 months of each year shall be treated as made upon the receipt 
by the donee of a formally executed and acknowledged deed of gift. 
However, the period of initial possession by the donee may not be 
deferred in time for more than 1 year.
    (3) Section 170(a)(3) and this section have no application in 
respect of a transfer of a future interest in intangible personal 
property or in real property. However, a fixture which is intended to be 
severed from real property shall be treated as tangible personal 
property. For example, a contribution of a future interest in a 
chandelier which is attached to a building is considered a contribution 
which consists of a future interest in tangible personal property if the 
transferor intends that it be detached from the building at or prior to 
the time when the charitable organization's right to possession or 
enjoyment of the chandelier is to commence.
    (4) For purposes of section 170(a)(3) and this section, the term 
future interest has generally the same meaning as it has when used in 
section 2503 and Sec. 25.2503-3 of this chapter (Gift Tax Regulations); 
it includes reversions, remainders, and other interests or estates, 
whether vested or contingent, and whether or not supported by a 
particular interest or estate, which are limited to commence in use, 
possession, or enjoyment at some future date or time. The term future 
interest includes situations in which a donor purports to give tangible 
personal property to a charitable organization, but has an 
understanding, arrangement, agreement, etc., whether written or oral, 
with the charitable organization which has the effect of reserving to, 
or retaining in, such donor a right to the use, possession, or enjoyment 
of the property.
    (5) In the case of a charitable contribution of a future interest to 
which section 170(a)(3) and this section apply the other provisions of 
section 170 and the regulations thereunder are inapplicable to the 
contribution until such time as the contribution is treated as made 
under section 170(a)(3).
    (b) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. On December 31, 1970, A, an individual who reports his 
income on the calendar year basis, conveys by deed of gift to a museum 
title to a painting, but reserves to himself the right to the use, 
possession, and enjoyment of the painting during his lifetime. It is 
assumed that there was no intention to avoid the application of section 
170(f)(3)(A) by the conveyance. At the time of the gift the value of the 
painting is $90,000. Since the contribution consists of a future 
interest in tangible personal property in which the donor has retained 
an intervening interest, no contribution is considered to have been made 
in 1970.
    Example 2. Assume the same facts as in Example 1 except that on 
December 31, 1971, A relinquishes all of his right to the use, 
possession, and enjoyment of the painting and

[[Page 62]]

delivers the painting to the museum. Assuming that the value of the 
painting has increased to $95,000, A is treated as having made a 
charitable contribution of $95,000 in 1971 for which a deduction is 
allowable without regard to section 170(f)(3)(A).
    Example 3. Assume the same facts as in Example 1 except A dies 
without relinquishing his right to the use, possession, and enjoyment of 
the painting. Since A did not relinquish his right to the use, 
possession, and enjoyment of the property during his life, A is treated 
as not having made a charitable contribution of the painting for income 
tax purposes.
    Example 4. Assume the same facts as in Example 1 except A, on 
December 31, 1971, transfers his interest in the painting to his son, B, 
who reports his income on the calendar year basis. Since the 
relationship between A and B is one described in section 267(b), no 
contribution of the remainder interest in the painting is considered to 
have been made in 1971.
    Example 5. Assume the same facts as in Example 4. Also assume that 
on December 31, 1972, B conveys to the museum the interest measured by 
A's life. B has made a charitable contribution of the present interest 
in the painting conveyed to the museum. In addition, since all 
intervening interests in, and rights to the actual possession or 
enjoyment of the property, have expired, a charitable contribution of 
the remainder interest is treated as having been made by A in 1972 for 
which a deduction is allowable without regard to section 170(f)(3)(A). 
Such remainder interest is valued according to Sec. 20.2031-7A(c) of 
this chapter (estate tax regulations), determined by subtracting the 
value of B's interest measured by A's life expectancy in 1972, and B 
receives a deduction in 1972 for the life interest measured by A's life 
expectancy and valued according to Table A(1) in such section.
    Example 6. On December 31, 1970, C, an individual who reports his 
income on the calendar year basis, transfers a valuable painting to a 
pooled income fund described in section 642(c)(5), which is maintained 
by a university. C retains for himself for life an income interest in 
the painting, the remainder interest in the painting being contributed 
to the university. Since the contribution consists of a future interest 
in tangible personal property in which the donor has retained an 
intervening interest, no charitable contribution is considered to have 
been made in 1970.
    Example 7. On January 15, 1972, D, an individual who reports his 
income on the calendar year basis, transfers a capital asset held for 
more than 6 months consisting of a valuable painting to a pooled income 
fund described in section 642(c)(5), which is maintained by a 
university, and creates an income interest in such painting for E for 
life. E is an individual not standing in a relationship to D described 
in section 267(b). The remainder interest in the property is contributed 
by D to the university. The trustee of the pooled income fund puts the 
painting to an unrelated use within the meaning of paragraph (b)(3) of 
Sec. 1.170A-4. Accordingly, D is allowed a deduction under section 170 
in 1972 for the present value of the remainder interest in the painting, 
after reducing such amount under section 170 (e)(1)(B)(i) and paragraph 
(a)(2) of Sec. 1.170A-4. This reduction in the amount of the 
contribution is required since under paragraph (b)(3) of that section 
the use by the pooled income fund of the painting is a use which would 
have been an unrelated use if it had been made by the university.

    (c) Effective date. This section applies only to contributions paid 
in taxable years beginning after December 31, 1969.

[T.D. 7207, 37 FR 20779, Oct. 4, 1972, as amended by T.D. 8540, 59 FR 
30102, June 10, 1994]



Sec. 1.170A-6  Charitable contributions in trust.

    (a) In general. (1) No deduction is allowed under section 170 for 
the fair market value of a charitable contribution of any interest in 
property which is less than the donor's entire interest in the property 
and which is transferred in trust unless the transfer meets the 
requirements of paragraph (b) or (c) of this section. If the donor's 
entire interest in the property is transferred in trust and is 
contributed to a charitable organization described in section 170(c), a 
deduction is allowed under section 170. Thus, if on July 1, 1972, 
property is transferred in trust with the requirement that the income of 
the trust be paid for a term of 20 years to a church and thereafter the 
remainder be paid to an educational organization described in section 
170(b)(1)(A), a deduction is allowed for the value of such property. See 
section 170(f)(2) and (3)(B), and paragraph (b)(1) of Sec. 1.170A-7.
    (2) A deduction is allowed without regard to this section for a 
contribution of a partial interest in property if such interest is the 
taxpayer's entire interest in the property, such as an income interest 
or a remainder interest. If, however, the property in which such partial 
interest exists was divided in order to create such interest and thus 
avoid section 170(f)(2), the deduction

[[Page 63]]

will not be allowed. Thus, for example, assume that a taxpayer desires 
to contribute to a charitable organization the reversionary interest in 
certain stocks and bonds which he owns. If the taxpayer transfers such 
property in trust with the requirement that the income of the trust be 
paid to his son for life and that the reversionary interest be paid to 
himself and immediately after creating the trust contributes the 
reversionary interest to a charitable organization, no deduction will be 
allowed under section 170 for the contribution of the taxpayer's entire 
interest consisting of the reversionary interest in the trust.
    (b) Charitable contribution of a remainder interest in trust--(1) In 
general. No deduction is allowed under section 170 for the fair market 
value of a charitable contribution of a remainder interest in property 
which is less than the donor's entire interest in the property and which 
the donor transfers in trust unless the trust is:
    (i) A pooled income fund described in section 642(c)(5) and Sec. 
1.642(c)-5,
    (ii) A charitable remainder annuity trust described in section 
664(d)(1) and Sec. 1.664-2, or
    (iii) A charitable remainder unitrust described in section 664(d)(2) 
and Sec. 1.664-3.
    (2) Value of a remainder interest. The fair market value of a 
remainder interest in a pooled income fund shall be computed under Sec. 
1.642(c)-6. The fair market value of a remainder interest in a 
charitable remainder annuity trust shall be computed under Sec. 1.664-
2. The fair market value of a remainder interest in a charitable 
remainder unitrust shall be computed under Sec. 1.664-4. However, in 
some cases a reduction in the amount of a charitable contribution of the 
remainder interest may be required. See section 170(e) and Sec. 1.170A-
4.
    (c) Charitable contribution of an income interest in trust--(1) In 
general. No deduction is allowed under section 170 for the fair market 
value of a charitable contribution of an income interest in property 
which is less than the donor's entire interest in the property and which 
the donor transfers in trust unless the income interest is either a 
guaranteed annuity interest or a unitrust interest, as defined in 
paragraph (c)(2) of this section, and the grantor is treated as the 
owner of such interest for purposes of applying section 671, relating to 
grantors and others treated as substantial owners. See section 
4947(a)(2) for the application to such income interests in trust of the 
provisions relating to private foundations and section 508(e) for rules 
relating to provisions required in the governing instruments.
    (2) Definitions. For purposes of this paragraph:
    (i) Guaranteed annuity interest. (A) An income interest is a 
``guaranteed annuity interest'' only if it is an irrevocable right 
pursuant to the governing instrument of the trust to receive a 
guaranteed annuity. A guaranteed annuity is an arrangement under which a 
determinable amount is paid periodically, but not less often than 
annually, for a specified term of years or for the life or lives of 
certain individuals, each of whom must be living at the date of transfer 
and can be ascertained at such date. Only one or more of the following 
individuals may be used as measuring lives: the donor, the donor's 
spouse, and an individual who, with respect to all remainder 
beneficiaries (other than charitable organizations described in section 
170, 2055, or 2522), is either a lineal ancestor or the spouse of a 
lineal ancestor of those beneficiaries. A trust will satisfy the 
requirement that all noncharitable remainder beneficiaries are lineal 
descendants of the individual who is the measuring life, or that 
individual's spouse, if there is less than a 15% probability that 
individuals who are not lineal descendants will receive any trust 
corpus. This probability must be computed, based on the current 
applicable Life Table contained in Sec. 20.2031-7, at the time property 
is transferred to the trust taking into account the interests of all 
primary and contingent remainder beneficiaries who are living at that 
time. An interest payable for a specified term of years can qualify as a 
guaranteed annuity interest even if the governing instrument contains a 
savings clause intended to ensure compliance with a rule against 
perpetuities. The savings clause must utilize a period for vesting

[[Page 64]]

of 21 years after the deaths of measuring lives who are selected to 
maximize, rather than limit, the term of the trust. The rule in this 
paragraph that a charitable interest may be payable for the life or 
lives of only certain specified individuals does not apply in the case 
of a charitable guaranteed annuity interest payable under a charitable 
remainder trust described in section 664. An amount is determinable if 
the exact amount which must be paid under the conditions specified in 
the governing instrument of the trust can be ascertained as of the date 
of transfer. For example, the amount to be paid may be a stated sum for 
a term of years, or for the life of the donor, at the expiration of 
which it may be changed by a specified amount, but it may not be 
redetermined by reference to a fluctuating index such as the cost of 
living index. In further illustration, the amount to be paid may be 
expressed in terms of a fraction or percentage of the cost of living 
index on the date of transfer.
    (B) An income interest is a guaranteed annuity interest only if it 
is a guaranteed annuity interest in every respect. For example, if the 
income interest is the right to receive from a trust each year a payment 
equal to the lesser of a sum certain or a fixed percentage of the net 
fair market value of the trust assets, determined annually, such 
interest is not a guaranteed annuity interest.
    (C) Where a charitable interest is in the form of a guaranteed 
annuity interest, the governing instrument of the trust may provide that 
income of the trust which is in excess of the amount required to pay the 
guaranteed annuity interest shall be paid to or for the use of a 
charitable organization. Nevertheless, the amount of the deduction under 
section 170(f)(2)(B) shall be limited to the fair market value of the 
guaranteed annuity interest as determined under paragraph (c)(3) of this 
section. For a rule relating to treatment by the grantor of any 
contribution made by the trust in excess of the amount required to pay 
the guaranteed annuity interest, see paragraph (d)(2)(ii) of this 
section.
    (D) If the present value on the date of transfer of all the income 
interests for a charitable purpose exceeds 60 percent of the aggregate 
fair market value of all amounts in the trust (after the payment of 
liabilities), the income interest will not be considered a guaranteed 
annuity interest unless the governing instrument of the trust prohibits 
both the acquisition and the retention of assets which would give rise 
to a tax under section 4944 if the trustee had acquired such assets. The 
requirement in this subdivision (D) for a prohibition in the governing 
instrument against the retention of assets which would give rise to a 
tax under section 4944 if the trustee had acquired the assets shall not 
apply to a transfer in trust made on or before May 21, 1972.
    (E) Where a charitable interest in the form of a guaranteed annuity 
interest is transferred after May 21, 1972, the charitable interest 
generally is not a guaranteed annuity interest if any amount may be paid 
by the trust for a private purpose before the expiration of all the 
charitable annuity interests. There are two exceptions to this general 
rule. First, the charitable interest is a guaranteed annuity interest if 
the amount payable for a private purpose is in the form of a guaranteed 
annuity interest and the trust's governing instrument does not provide 
for any preference or priority in the payment of the private annuity as 
opposed to the charitable annuity. Second, the charitable interest is a 
guaranteed annuity interest if under the trust's governing instrument 
the amount that may be paid for a private purpose is payable only from a 
group of assets that are devoted exclusively to private purposes and to 
which section 4947(a)(2) is inapplicable by reason of section 
4947(a)(2)(B). For purposes of this paragraph (c)(2)(i)(E), an amount is 
not paid for a private purpose if it is paid for an adequate and full 
consideration in money or money's worth. See Sec. 53.4947-1(c) of this 
chapter for rules relating to the inapplicability of section 4947(a)(2) 
to segregated amounts in a split-interest trust.
    (F) For rules relating to certain governing instrument requirements 
and to the imposition of certain excise taxes where the guaranteed 
annuity interest is in trust and for rules governing payment of private 
income interests by a

[[Page 65]]

split-interest trust, see section 4947(a)(2) and (b)(3)(A), and the 
regulations thereunder.
    (ii) Unitrust interest. (A) An income interest is a ``unitrust 
interest'' only if it is an irrevocable right pursuant to the governing 
instrument of the trust to receive payment, not less often than annually 
of a fixed percentage of the net fair market value of the trust assets, 
determined annually. In computing the net fair market value of the trust 
assets, all assets and liabilities shall be taken into account without 
regard to whether particular items are taken into account in determining 
the income of the trust. The net fair market value of the trust assets 
may be determined on any one date during the year or by taking the 
average of valuations made on more than one date during the year, 
provided that the same valuation date or dates and valuation methods are 
used each year. Where the governing instrument of the trust does not 
specify the valuation date or dates, the trustee shall select such date 
or dates and shall indicate his selection on the first return on Form 
1041 which the trust is required to file. Payments under a unitrust 
interest may be paid for a specified term of years or for the life or 
lives of certain individuals, each of whom must be living at the date of 
transfer and can be ascertained at such date. Only one or more of the 
following individuals may be used as measuring lives: the donor, the 
donor's spouse, and an individual who, with respect to all remainder 
beneficiaries (other than charitable organizations described in section 
170, 2055, or 2522), is either a lineal ancestor or the spouse of a 
lineal ancestor of those beneficiaries. A trust will satisfy the 
requirement that all noncharitable remainder beneficiaries are lineal 
descendants of the individual who is the measuring life, or that 
individual's spouse, if there is less than a 15% probability that 
individuals who are not lineal descendants will receive any trust 
corpus. This probability must be computed, based on the current 
applicable Life Table contained in Sec. 20.2031-7, at the time property 
is transferred to the trust taking into account the interests of all 
primary and contingent remainder beneficiaries who are living at that 
time. An interest payable for a specified term of years can qualify as a 
unitrust interest even if the governing instrument contains a savings 
clause intended to ensure compliance with a rule against perpetuities. 
The savings clause must utilize a period for vesting of 21 years after 
the deaths of measuring lives who are selected to maximize, rather than 
limit, the term of the trust. The rule in this paragraph that a 
charitable interest may be payable for the life or lives of only certain 
specified individuals does not apply in the case of a charitable 
unitrust interest payable under a charitable remainder trust described 
in section 664.
    (B) An income interest is a unitrust interest only if it is a 
unitrust interest in every respect. For example, if the income interest 
is the right to receive from a trust each year a payment equal to the 
lesser of a sum certain or a fixed percentage of the net fair market 
value of the trust assets, determined annually, such interest is not a 
unitrust interest.
    (C) Where a charitable interest is in the form of a unitrust 
interest, the governing instrument of the trust may provide that income 
of the trust which is in excess of the amount required to pay the 
unitrust interest shall be paid to or for the use of a charitable 
organization. Nevertheless, the amount of the deduction under section 
170(f)(2)(B) shall be limited to the fair market value of the unitrust 
interest as determined under paragraph (c)(3) of this section. For a 
rule relating to treatment by the grantor of any contribution made by 
the trust in excess of the amount required to pay the unitrust interest, 
see paragraph (d)(2)(ii) of this section.
    (D) Where a charitable interest is in the form of a unitrust 
interest, the charitable interest generally is not a unitrust interest 
if any amount may be paid by the trust for a private purpose before the 
expiration of all the charitable unitrust interests. There are two 
exceptions to this general rule. First, the charitable interest is a 
unitrust interest if the amount payable for a private purpose is in the 
form of a unitrust interest and the trust's governing instrument does 
not provide for

[[Page 66]]

any preference or priority in the payment of the private unitrust 
interest as opposed to the charitable unitrust interest. Second, the 
charitable interest is a unitrust interest if under the trust's 
governing instrument the amount that may be paid for a private purpose 
is payable only from a group of assets that are devoted exclusively to 
private purposes and to which section 4947(a)(2) is inapplicable by 
reason of section 4947(a)(2)(B). For purposes of this paragraph 
(c)(2)(ii)(D), an amount is not paid for a private purpose if it is paid 
for an adequate and full consideration in money or money's worth. See 
Sec. 53.4947-1(c) of this chapter for rules relating to the 
inapplicability of section 4947(a)(2) to segregated amounts in a split-
interest trust.
    (E) For rules relating to certain governing instrument requirements 
and to the imposition of certain excise taxes where the unitrust 
interest is in trust and for rules governing payment of private income 
interests by a split-interest trust, see section 4947(a)(2) and 
(b)(3)(A), and the regulations thereunder.
    (3) Valuation of income interest. (i) The deduction allowed by 
section 170(f)(2)(B) for a charitable contribution of a guaranteed 
annuity interest is limited to the fair market value of such interest on 
the date of contribution, as computed under Sec. 20.2031-7 or, for 
certain prior periods, 20.2031-7A of this chapter (Estate Tax 
Regulations).
    (ii) The deduction allowed under section 170(f)(2)(B) for a 
charitable contribution of a unitrust interest is limited to the fair 
market value of the unitrust interest on the date of contribution. The 
fair market value of the unitrust interest shall be determined by 
subtracting the present value of all interests in the transferred 
property other than the unitrust interest from the fair market value of 
the transferred property.
    (iii) If by reason of all the conditions and circumstances 
surrounding a transfer of an income interest in property in trust it 
appears that the charity may not receive the beneficial enjoyment of the 
interest, a deduction will be allowed under paragraph (c)(1) of this 
section only for the minimum amount it is evident the charity will 
receive. The application of this subdivision may be illustrated by the 
following examples:

    Example 1. In 1972, B transfers $20,000 in trust with the 
requirement that M Church be paid a guaranteed annuity interest (as 
defined in subparagraph (2)(i) of this paragraph) of $4,000, payable 
annually at the end of each year for 9 years, and that the residue 
revert to himself. Since the fair market value of an annuity of $4,000 a 
year for a period of 9 years, as determined under Sec. 20.2031-7A(c) of 
this chapter, is $27,206.80 ($4,000 x 6.8017), it appears that M will 
not receive the beneficial enjoyment of the income interest. 
Accordingly, even though B is treated as the owner of the trust under 
section 673, he is allowed a deduction under subparagraph (1) of this 
paragraph for only $20,000, which is the minimum amount it is evident M 
will receive.
    Example 2. In 1975, C transfers $40,000 in trust with the 
requirement that D, an individual, and X Charity be paid simultaneously 
guaranteed annuity interests (as defined in subparagraph (2)(i) of this 
paragraph) of $5,000 a year each, payable annually at the end of each 
year, for a period of 5 years and that the remainder be paid to C's 
children. The fair market value of two annuities of $5,000 each a year 
for a period of 5 years is $42,124 ([$5,000 x 4.2124] x 2), as 
determined under Sec. 20.2031-7A(c) of this chapter. The trust 
instrument provides that in the event the trust fund is insufficient to 
pay both annuities in a given year, the trust fund will be evenly 
divided between the charitable and private annuitants. The deduction 
under subparagraph (1) of this paragraph with respect to the charitable 
annuity will be limited to $20,000, which is the minimum amount it is 
evident X will receive.
    Example 3. In 1975, D transfers $65,000 in trust with the 
requirement that a guaranteed annuity interest (as defined in 
subparagraph (2)(i) of this paragraph) of $5,000 a year, payable 
annually at the end of each year, be paid to Y Charity for a period of 
10 years and that a guaranteed annuity interest (as defined in 
subparagraph (2)(i) of this paragraph) of $5,000 a year, payable 
annually at the end of each year, be paid to W, his wife, aged 62, for 
10 years or until her prior death. The annuities are to be paid 
simultaneously, and the remainder is to be paid to D's children. The 
fair market value of the private annuity is $33,877 ($5,000 x 6.7754), 
as determined pursuant to Sec. 20.2031-7A(c) of this chapter and by the 
use of factors involving one life and a term of years as published in 
Publication 723A (12-70). The fair market value of the charitable 
annuity is $36,800.50 ($5,000 x 7.3601), as determined under Sec. 
20.2031-7A(c) of this chapter. It is not evident from the governing 
instrument of the trust or

[[Page 67]]

from local law that the trustee would be required to apportion the trust 
fund between the wife and charity in the event the fund were 
insufficient to pay both annuities in a given year. Accordingly, the 
deduction under subparagraph (1) of this paragraph with respect to the 
charitable annuity will be limited to $31,123 ($65,000 less $33,877 [the 
value of the private annuity]), which is the minimum amount it is 
evident Y will receive.

    (iv) See paragraph (b)(1) of Sec. 1.170A-4 for rule that the term 
ordinary income property for purposes of section 170(e) does not include 
an income interest in respect of which a deduction is allowed under 
section 170(f)(2)(B) and this paragraph.
    (4) Recapture upon termination of treatment as owner. If for any 
reason the donor of an income interest in property ceases at any time 
before the termination of such interest to be treated as the owner of 
such interest for purposes of applying section 671, as for example, 
where he dies before the termination of such interest, he shall for 
purposes of this chapter be considered as having received, on the date 
he ceases to be so treated, an amount of income equal to (i) the amount 
of any deduction he was allowed under section 170 for the contribution 
of such interest reduced by (ii) the discounted value of all amounts 
which were required to be, and actually were, paid with respect to such 
interest under the terms of trust to the charitable organization before 
the time at which he ceases to be treated as the owner of the interest. 
The discounted value of the amounts described in subdivision (ii) of 
this subparagraph shall be computed by treating each such amount as a 
contribution of a remainder interest after a term of years and valuing 
such amount as of the date of contribution of the income interest by the 
donor, such value to be determined under Sec. 20.2031-7 of this chapter 
consistently with the manner in which the fair market value of the 
income interest was determined pursuant to subparagraph (3)(i) of this 
paragraph. The application of this subparagraph will not be construed to 
disallow a deduction to the trust for amounts paid by the trust to the 
charitable organization after the time at which the donor ceased to be 
treated as the owner of the trust.
    (5) Illustrations. The application of this paragraph may be 
illustrated by the following examples:

    Example 1. On January 1, 1971, A contributes to a church in trust a 
9-year irrevocable income interest in property. Both A and the trust 
report income on a calendar year basis. The fair market value of the 
property placed in trust is $10,000. The trust instrument provides that 
the church will receive an annuity of $500, payable annually at the end 
of each year for 9 years. The income interest is a guaranteed annuity 
interest as defined in subparagraph (2)(i) of this paragraph; upon 
termination of such interest the residue of the trust is to revert to A. 
By reference to Sec. 20.2031-7A(c) of this chapter, it is found that 
the figure in column (2) opposite 9 years is 6.8017. The present value 
of the annuity is therefore $3,400.85 ($500 x 6.8017). The present value 
of the income interest and A's charitable contribution for 1971 is 
$3,400.85.
    Example 2. (a) On January 1, B contributes to a church in trust a 9-
year irrevocable income interest in property. Both B and the trust 
report income on a calendar year basis. The fair market value of the 
property placed in trust is $10,000. The trust instrument provides that 
the trust will pay to the church at the end of each year for 9 years 5 
percent of the fair market value of all property in the trust at the 
beginning of the year. The income interest is a unitrust interest as 
defined in subparagraph (2)(ii) of this paragraph; upon termination of 
such interest the residue of the trust is to revert to B.
    (b) The section 7520 rate at the time of the transfer was 6.0 
percent. By reference to Table F(6.0) in Sec. 1.664-4(e)(6), the 
adjusted payout rate is 4.717% (5% x 0.943396). The present value of the 
reversion is $6,473.75, computed by reference to Table D in Sec. 1.664-
4(e)(6), as follows:

Factor at 4.6 percent for 9 years............................   0.654539
Factor at 4.8 percent for 9 years............................    .642292
                                                              ----------
  Difference.................................................    .012247
Interpolation adjustment:
 
                       4.717%-4.6%/0.2%=x/0.012247
                               x=0.007164
 
Factor at 4.6 percent for 9 years............................    .654539
Less: Interpolation adjustment...............................    .007164
                                                              ----------
  Interpolated factor........................................    .647375
Present value of reversion ($10,000x0.647375)................  $6,473.75
 

    (c) The present value of the income interest and B's charitable 
contribution is $3,526.25 ($10,000-$6,473.75).
    Example 3. (a) On January 1, 1971, C contributes to a church in 
trust a 9-year irrevocable income interest in property. Both C and the 
trust report income on a calendar year basis. The fair market value of 
the property placed in trust is $10,000. The trust

[[Page 68]]

instrument provides that the church will receive an annuity of $500, 
payable annually at the end of each year for 9 years. The income 
interest is a guaranteed annuity interest as defined in subparagraph 
(2)(i) of this paragraph; upon termination of such interest the residue 
of the trust is to revert to C. C's charitable contribution for 1971 is 
$3,400.85, determined as provided in Example 1. The trust earns income 
of $600 in 1971, $400 in 1972, and $500 in 1973, all of which is taxable 
to C under section 671. The church is paid $500 at the end of 1971, 
1972, and 1973, respectively. On December 31, 1973, C dies and ceases to 
be treated as the owner of the income interest under section 673.
    (b) Pursuant to subparagraph (4) of this paragraph, the discounted 
value as of January 1, 1971, of the amounts paid to the church by the 
trust is $1,336.51, determined by reference to column (4) of Sec. 
20.2031-7A(c) of this chapter, as follows:

----------------------------------------------------------------------------------------------------------------
                             Annuity                                          Years from
-----------------------------------------------------------------               Jan. 1,                Discount
                                                                    Amount     1971, to    Discount    value as
                          Payment date                               paid       payment     factor    of Jan. 1,
                                                                                 date                    1971
----------------------------------------------------------------------------------------------------------------
Dec. 31, 1971...................................................        $500           1    0.943396     $471.70
Dec. 31, 1972...................................................         500           2     .889996      445.00
Dec. 31, 1973...................................................         500           3     .839619      419.81
                                                                 -----------------------------------------------
    Total discounted value......................................  ..........  ..........  ..........    1,336.51
----------------------------------------------------------------------------------------------------------------

    (c) Pursuant to subparagraph (4) of this paragraph, there must be 
included in C's gross income for 1973 the amount of $2,064.34 ($3,400.85 
less $1,336.51).
    (d) For deduction by the trust for amounts paid to the church after 
December 31, 1973, see section 642(c)(1) and the regulations thereunder.

    (d) Denial of deduction for certain contributions by a trust. (1) If 
by reason of section 170(f)(2)(B) and paragraph (c) of this section a 
charitable contributions deduction is allowed under section 170 for the 
fair market value of an income interest transferred in trust, neither 
the grantor of the income interest, the trust, nor any other person 
shall be allowed a deduction under section 170 or any other section for 
the amount of any charitable contribution made by the trust with respect 
to, or in fulfillment of, such income interest.
    (2) Section 170(f)(2)(C) and subparagraph (1) of this paragraph 
shall not be construed, however, to:
    (i) Disallow a deduction to the trust, pursuant to section 642(c)(1) 
and the regulations thereunder, for amounts paid by the trust after the 
grantor ceases to be treated as the owner of the income interest for 
purposes of applying section 671 and which are not taken into account in 
determining the amount of recapture under paragraph (c)(4) of this 
section, or
    (ii) Disallow a deduction to the grantor under section 671 and Sec. 
1.671-2(c) for a charitable contribution made by the trust in excess of 
the contribution required to be made by the trust under the terms of the 
trust instrument with respect to, or in fulfillment of, the income 
interest.
    (3) Although a deduction for the fair market value of an income 
interest in property which is less than the donor's entire interest in 
the property and which the donor transfers in trust is disallowed under 
section 170 because such interest is not a guaranteed annuity interest, 
or a unitrust interest, as defined in paragraph (c)(2) of this section, 
the donor may be entitled to a deduction under section 671 and Sec. 
1.671-2(c) for any charitable contributions made by the trust if he is 
treated as the owner of such interest for purposes of applying section 
671.
    (e) Effective date. This section applies only to transfers in trust 
made after July 31, 1969. In addition, the rule in paragraphs 
(c)(2)(i)(A) and (ii)(A) of this section that guaranteed annuity 
interests and unitrust interests, respectively, may be payable for a 
specified term of years or for the life or lives of only certain 
individuals applies to transfers made on or after April 4, 2000. If a 
transfer is made to a trust on or after April 4, 2000 that uses an 
individual other than one permitted in paragraphs (c)(2)(i)(A) and 
(ii)(A) of this section, the trust may be reformed to satisfy this rule. 
As an alternative to reformation, rescission may be

[[Page 69]]

available for a transfer made on or before March 6, 2001. See Sec. 
25.2522(c)-3(e) of this chapter for the requirements concerning 
reformation or possible rescission of these interests.

[T.D. 7207, 37 FR 20780, Oct. 5, 1972; 37 FR 22982, Oct. 27, 1972, as 
amended by T.D. 7340, 40 FR 1238, Jan. 7, 1975; T.D. 7955, 49 FR 19975, 
May 11, 1984; T.D. 8540, 59 FR 30102, June 10, 1994; T.D. 8819, 64 FR 
23189, 23228, Apr. 30, 1999; 64 FR 33196, June 22, 1999; T.D. 8923, 66 
FR 1041, Jan. 5, 2001; T.D. 9068, 68 FR 40131, July 7, 2003]



Sec. 1.170A-7  Contributions not in trust of partial interests in 
property.

    (a) In general. (1) In the case of a charitable contribution, not 
made by a transfer in trust, of any interest in property which consists 
of less than the donor's entire interest in such property, no deduction 
is allowed under section 170 for the value of such interest unless the 
interest is an interest described in paragraph (b) of this section. See 
section 170(f)(3)(A). For purposes of this section, a contribution of 
the right to use property which the donor owns, for example, a rent-free 
lease, shall be treated as a contribution of less than the taxpayer's 
entire interest in such property.
    (2)(i) A deduction is allowed without regard to this section for a 
contribution of a partial interest in property if such interest is the 
taxpayer's entire interest in the property, such as an income interest 
or a remainder interest. Thus, if securities are given to A for life, 
with the remainder over to B, and B makes a charitable contribution of 
his remainder interest to an organization described in section 170(c), a 
deduction is allowed under section 170 for the present value of B's 
remainder interest in the securities. If, however, the property in which 
such partial interest exists was divided in order to create such 
interest and thus avoid section 170(f)(3)(A), the deduction will not be 
allowed. Thus, for example, assume that a taxpayer desires to contribute 
to a charitable organization an income interest in property held by him, 
which is not of a type described in paragraph (b)(2) of this section. If 
the taxpayer transfers the remainder interest in such property to his 
son and immediately thereafter contributes the income interest to a 
charitable organization, no deduction shall be allowed under section 170 
for the contribution of the taxpayer's entire interest consisting of the 
retained income interest. In further illustration, assume that a 
taxpayer desires to contribute to a charitable organization the 
reversionary interest in certain stocks and bonds held by him, which is 
not of a type described in paragraph (b)(2) of this section. If the 
taxpayer grants a life estate in such property to his son and 
immediately thereafter contributes the reversionary interest to a 
charitable organization, no deduction will be allowed under section 170 
for the contribution of the taxpayer's entire interest consisting of the 
reversionary interest.
    (ii) A deduction is allowed without regard to this section for a 
contribution of a partial interest in property if such contribution 
constitutes part of a charitable contribution not in trust in which all 
interests of the taxpayer in the property are given to a charitable 
organization described in section 170(c). Thus, if on March 1, 1971, an 
income interest in property is given not in trust to a church and the 
remainder interest in the property is given not in trust to an 
educational organization described in section 170(b)(1)(A), a deduction 
is allowed for the value of such property.
    (3) A deduction shall not be disallowed under section 170(f)(3)(A) 
and this section merely because the interest which passes to, or is 
vested in, the charity may be defeated by the performance of some act or 
the happening of some event, if on the date of the gift it appears that 
the possibility that such act or event will occur is so remote as to be 
negligible. See paragraph (e) of Sec. 1.170A-1.
    (b) Contributions of certain partial interests in property for which 
a deduction is allowed. A deduction is allowed under section 170 for a 
contribution not in trust of a partial interest which is less than the 
donor's entire interest in property and which qualifies under one of the 
following subparagraphs:
    (1) Undivided portion of donor's entire interest. (i) A deduction is 
allowed under section 170 for the value of a charitable contribution not 
in trust of an undivided portion of a donor's entire

[[Page 70]]

interest in property. An undivided portion of a donor's entire interest 
in property must consist of a fraction or percentage of each and every 
substantial interest or right owned by the donor in such property and 
must extend over the entire term of the donor's interest in such 
property and in other property into which such property is converted. 
For example, assuming that in 1967 B has been given a life estate in an 
office building for the life of A and that B has no other interest in 
the office building, B will be allowed a deduction under section 170 for 
his contribution in 1972 to charity of a one-half interest in such life 
estate in a transfer which is not made in trust. Such contribution by B 
will be considered a contribution of an undivided portion of the donor's 
entire interest in property. In further illustration, assuming that in 
1968 C has been given the remainder interest in a trust created under 
the will of his father and C has no other interest in the trust, C will 
be allowed a deduction under section 170 for his contribution in 1972 to 
charity of a 20-percent interest in such remainder interest in a 
transfer which is not made in trust. Such contribution by C will be 
considered a contribution of an undivided portion of the donor's entire 
interest in property. If a taxpayer owns 100 acres of land and makes a 
contribution of 50 acres to a charitable organization, the charitable 
contribution is allowed as a deduction under section 170. A deduction is 
allowed under section 170 for a contribution of property to a charitable 
organization whereby such organization is given the right, as a tenant 
in common with the donor, to possession, dominion, and control of the 
property for a portion of each year appropriate to its interest in such 
property. However, for purposes of this subparagraph a charitable 
contribution in perpetuity of an interest in property not in trust where 
the donor transfers some specific rights and retains other substantial 
rights will not be considered a contribution of an undivided portion of 
the donor's entire interest in property to which section 170(f)(3)(A) 
does not apply. Thus, for example, a deduction is not allowable for the 
value of an immediate and perpetual gift not in trust of an interest in 
original historic motion picture films to a charitable organization 
where the donor retains the exclusive right to make reproductions of 
such films and to exploit such reproductions commercially.
    (ii) With respect to contributions made on or before December 17, 
1980, for purposes of this subparagraph a charitable contribution of an 
open space easement in gross in perpetuity shall be considered a 
contribution of an undivided portion of the donor's entire interest in 
property to which section 170(f)(3)(A) does not apply. For this purpose 
an easement in gross is a mere personal interest in, or right to use, 
the land of another; it is not supported by a dominant estate but is 
attached to, and vested in, the person to whom it is granted. Thus, for 
example, a deduction is allowed under section 170 for the value of a 
restrictive easement gratuitously conveyed to the United States in 
perpetuity whereby the donor agrees to certain restrictions on the use 
of his property, such as, restrictions on the type and height of 
buildings that may be erected, the removal of trees, the erection of 
utility lines, the dumping of trash, and the use of signs. For the 
deductibility of a qualified conservation contribution, see Sec. 
1.170A-14.
    (2) Partial interests in property which would be deductible in 
trust. A deduction is allowed under section 170 for the value of a 
charitable contribution not in trust of a partial interest in property 
which is less than the donor's entire interest in the property and which 
would be deductible under section 170(f)(2) and Sec. 1.170A-6 if such 
interest had been transferred in trust.
    (3) Contribution of a remainder interest in a personal residence. A 
deduction is allowed under section 170 for the value of a charitable 
contribution not in trust of an irrevocable remainder interest in a 
personal residence which is not the donor's entire interest in such 
property. Thus, for example, if a taxpayer contributes not in trust to 
an organization described in section 170(c) a remainder interest in a 
personal residence and retains an estate in such property for life or 
for a term of years, a deduction is allowed under section

[[Page 71]]

170 for the value of such remainder interest not transferred in trust. 
For purposes of section 170(f)(3)(B)(i) and this subparagraph, the term 
personal residence means any property used by the taxpayer as his 
personal residence even though it is not used as his principal 
residence. For example, the taxpayer's vacation home may be a personal 
residence for purposes of this subparagraph. The term personal residence 
also includes stock owned by a taxpayer as 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 personal residence.
    (4) Contribution of a remainder interest in a farm. A deduction is 
allowed under section 170 for the value of a charitable contribution not 
in trust of an irrevocable remainder interest in a farm which is not the 
donor's entire interest in such property. Thus, for example, if a 
taxpayer contributes not in trust to an organization described in 
section 170(c) a remainder interest in a farm and retains an estate in 
such farm for life or for a term of years, a deduction is allowed under 
section 170 for the value of such remainder interest not transferred in 
trust. For purposes of section 170(f)(3)(B)(i) and this subparagraph, 
the term farm means any land used by the taxpayer or his tenant for the 
production of crops, fruits, or other agricultural products or for the 
sustenance of livestock. The term livestock includes cattle, hogs, 
horses, mules, donkeys, sheep, goats, captive fur-bearing animals, 
chickens, turkeys, pigeons, and other poultry. A farm includes the 
improvements thereon.
    (5) Qualified conservation contribution. A deduction is allowed 
under section 170 for the value of a qualified conservation 
contribution. For the definition of a qualified conservation 
contribution, see Sec. 1.170A-14.
    (c) Valuation of a partial interest in property. Except as provided 
in Sec. 1.170A-14, the amount of the deduction under section 170 in the 
case of a charitable contribution of a partial interest in property to 
which paragraph (b) of this section applies is the fair market value of 
the partial interest at the time of the contribution. See Sec. 1.170A-
1(c). The fair market value of such partial interest must be determined 
in accordance with Sec. 20.2031-7, of this chapter (Estate Tax 
Regulations), except that, in the case of a charitable contribution of a 
remainder interest in real property which is not transferred in trust, 
the fair market value of such interest must be determined in accordance 
with section 170(f)(4) and Sec. 1.170A-12. In the case of a charitable 
contribution of a remainder interest in the form of a remainder interest 
in a pooled income fund, a charitable remainder annuity trust, or a 
charitable remainder unitrust, the fair market value of the remainder 
interest must be determined as provided in paragraph (b)(2) of Sec. 
1.170A-6. However, in some cases a reduction in the amount of a 
charitable contribution of the remainder interest may be required. See 
section 170(e) and paragraph (a) of Sec. 1.170A-4.
    (d) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. A, an individual owning a 10-story office building, 
donates the rent-free use of the top floor of the building for the year 
1971 to a charitable organization. Since A's contribution consists of a 
partial interest to which section 170(f)(3)(A) applies, he is not 
entitled to a charitable contributions deduction for the contribution of 
such partial interest.
    Example 2. In 1971, B contributes to a charitable organization an 
undivided one-half interest in 100 acres of land, whereby as tenants in 
common they share in the economic benefits from the property. The 
present value of the contributed property is $50,000. Since B's 
contribution consists of an undivided portion of his entire interest in 
the property to which section 170(f)(3)(B) applies, he is allowed a 
deduction in 1971 for his charitable contribution of $50,000.
    Example 3. In 1971, D loans $10,000 in cash to a charitable 
organization and does not require the organization to pay any interest 
for the use of the money. Since D's contribution consists of a partial 
interest to which section 170(f)(3)(A) applies, he is not entitled to a 
charitable contributions deduction for the contribution of such partial 
interest.

    (e) Effective date. This section applies only to contributions made 
after July 31, 1969. The deduction allowable under Sec. 1.170A-
7(b)(1)(ii) shall be available

[[Page 72]]

only for contributions made on or before December 17, 1980. Except as 
otherwise provided in Sec. 1.170A-14(g)(4)(ii), the deduction allowable 
under Sec. 1.170A-7(b)(5) shall be available for contributions made on 
or after December 18, 1980.

(83 Stat. 544, 26 U.S.C. 170(f)(4); 83 Stat. 560, 26 U.S.C. 642(c)(5); 
68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7207, 37 FR 20782, Oct. 4, 1972; 37 FR 22982, Oct. 27, 1972; as 
amended by T.D. 7955, 49 FR 19975, May 11, 1984; T.D. 8069, 51 FR 1498, 
Jan. 14, 1986; T.D. 8540, 59 FR 30102, June 10, 1994]



Sec. 1.170A-8  Limitations on charitable deductions by individuals.

    (a) Percentage limitations--(1) In general. An individual's 
charitable contributions deduction is subject to 20-, 30-, and 50-
percent limitations unless the individual qualifies for the unlimited 
charitable contributions deduction under section 170(b)(1)(C). For a 
discussion of these limitations and examples of their application, see 
paragraphs (b) through (f) of this section. If a husband and wife make a 
joint return, the deduction for contributions is the aggregate of the 
contributions made by the spouses, and the limitations in section 170(b) 
and this section are based on the aggregate contribution base of the 
spouses. A charitable contribution by an individual to or for the use of 
an organization described in section 170(c) may be deductible even 
though all, or some portion, of the funds of the organization may be 
used in foreign countries for charitable or educational purposes.
    (2) ``To'' or ``for the use of'' defined. For purposes of section 
170, a contribution of an income interest in property, whether or not 
such contributed interest is transferred in trust, for which a deduction 
is allowed under section 170(f)(2)(B) or (3)(A) shall be considered as 
made ``for the use of'' rather than ``to'' the charitable organization. 
A contribution of a remainder interest in property, whether or not such 
contributed interest is transferred in trust, for which a deduction is 
allowed under section 170(f)(2)(A) or (3)(A), shall be considered as 
made ``to'' the charitable organization except that, if such interest is 
transferred in trust and, pursuant to the terms of the trust instrument, 
the interest contributed is, upon termination of the predecessor estate, 
to be held in trust for the benefit of such organization, the 
contribution shall be considered as made ``for the use of'' such 
organization. Thus, for example, assume that A transfers property to a 
charitable remainder annuity trust described in section 664(d)(1) which 
is required to pay to B for life an annuity equal to 5 percent of the 
initial fair market value of the property transferred in trust. The 
trust instrument provides that after B's death the remainder interest in 
the trust is to be transferred to M Church or, in the event M Church is 
not an organization described in section 170(c) when the amount is to be 
irrevocably transferred to such church, to an organization which is 
described in section 170(c) at that time. The contribution by A of the 
remainder interest shall be considered as made ``to'' M Church. However, 
if in the trust instrument A had directed that after B's death the 
remainder interest is to be held in trust for the benefit of M Church, 
the contribution shall be considered as made ``for the use of'' M 
Church. This subparagraph does not apply to the contribution of a 
partial interest in property, or of an undivided portion of such partial 
interest, if such partial interest is the donor's entire interest in the 
property and such entire interest was not created to avoid section 
170(f)(2) or (3)(A). See paragraph (a)(2) of Sec. 1.170A-6 and 
paragraphs (a)(2)(i) and (b)(1) of Sec. 1.170A-7.
    (b) 50-percent limitation. An individual may deduct charitable 
contributions made during a taxable year to any one or more section 
170(b)(1)(A) organizations, as defined in Sec. 1.170A-9, to the extent 
that such contributions in the aggregate do not exceed 50 percent of his 
contribution base, as defined in section 170(b)(1)(F) and paragraph (e) 
of this section, for the taxable year. However, see paragraph (d) of 
this section for a limitation on the amount of charitable contributions 
of 30-percent capital gain property. To qualify for the 50-percent 
limitation the contributions must be made ``to,'' and not merely ``for 
the use of,'' one of the specified organizations. A contribution to an 
organization referred to in section 170(c)(2), other than a section 
170(b)(1)(A) organization, will

[[Page 73]]

not qualify for the 50-percent limitation even though such organization 
makes the contribution available to an organization which is a section 
170 (b)(1)(A) organization. For provisions relating to the carryover of 
contributions in excess of 50-percent of an individual's contribution 
base see section 170(d)(1) and paragraph (b) of Sec. 1.170A-10.
    (c) 20-percent limitation. (1) An individual may deduct charitable 
contributions made during a taxable year:
    (i) To any one or more charitable organizations described in section 
170(c) other than section 170(b)(1)(A) organizations, as defined in 
Sec. 1.170A-9, and,
    (ii) For the use of any charitable organization described in section 
170(c), to the extent that such contributions in the aggregate do not 
exceed the lesser of the limitations under subparagraph (2) of this 
paragraph.
    (2) For purposes of subparagraph (1) of this paragraph the 
limitations are:
    (i) 20 percent of the individual's contribution base, as defined in 
paragraph (e) of this section, for the taxable year, or
    (ii) The excess of 50 percent of the individual's contribution base, 
as so defined, for the taxable year over the total amount of the 
charitable contributions allowed under section 170(b)(1)(A) and 
paragraph (b) of this section, determined by first reducing the amount 
of such contributions under section 170(e)(1) and paragraph (a) of Sec. 
1.170A-4 but without applying the 30-percent limitation under section 
170(b)(1)(D)(i) and paragraph (d)(1) of this section.

However, see paragraph (d) of this section for a limitation on the 
amount of charitable contributions of 30-percent capital gain property. 
If an election under section 170(b)(1)(D)(iii) and paragraph (d)(2) of 
this section applies to any contributions of 30-percent capital gain 
property made during the taxable year or carried over to the taxable 
year, the amount allowed for the taxable year under paragraph (b) of 
this section with respect to such contributions for purposes of applying 
subdivision (ii) of this subparagraph shall be the reduced amount of 
such contributions determined by applying paragraph (d)(2) of this 
section.
    (d) 30-percent limitation--(1) In general. An individual may deduct 
charitable contributions of 30-percent capital gain property, as defined 
in subparagraph (3) of this paragraph, made during a taxable year to or 
for the use of any charitable organization described in section 170(c) 
to the extent that such contributions in the aggregate do not exceed 30-
percent of his contribution base, as defined in paragraph (e) of this 
section, subject, however, to the 50- and 20-percent limitations 
prescribed by paragraphs (b) and (c) of this section. For purposes of 
applying the 50-percent and 20-percent limitations described in 
paragraphs (b) and (c) of this section, charitable contributions of 30-
percent capital gain property paid during the taxable year, and limited 
as provided by this subparagraph, shall be taken into account after all 
other charitable contributions paid during the taxable year. For 
provisions relating to the carryover of certain contributions of 30-
percent capital gain property in excess of 30-percent of an individual's 
contribution base, see section 170(b)(1)(D)(ii) and paragraph (c) of 
Sec. 1.170A-10.
    (2) Election by an individual to have section 170(e)(1)(B) apply to 
contributions--(i) In general. (A) An individual may elect under section 
170(b)(1)(D)(iii) for any taxable year to have the reduction rule of 
section 170(e)(1)(B) and paragraph (a) of Sec. 1.170A-4 apply to all 
his charitable contributions of 30-percent capital gain property made 
during such taxable year or carried over to such taxable year from a 
taxable year beginning after December 31, 1969. If such election is made 
such contributions shall be treated as contributions of section 170(e) 
capital gain property in accordance with paragraph (b)(2)(iii) of Sec. 
1.170A-4. The election may be made with respect to contributions of 30-
percent capital gain property carried over to the taxable year even 
though the individual has not made any contribution of 30-percent 
capital gain property in such year. If such an election is made, section 
170(b)(1)(D) (i) and (ii) and subparagraph (1) of this paragraph shall 
not apply to such contributions made during such year. However, such 
contributions must be reduced as required

[[Page 74]]

under section 170(e)(1)(B) and paragraph (a) of Sec. 1.170A-4.
    (B) If there are carryovers to such taxable year of charitable 
contributions of 30-percent capital gain property made in preceding 
taxable years beginning after December 31, 1969, the amount of such 
contributions in each such preceding year shall be reduced as if section 
170(e)(1)(B) had applied to them in the preceding year and shall be 
carried over to the taxable year and succeeding taxable years under 
section 170(d)(1) and paragraph (b) of Sec. 1.170A-10 as contributions 
of property other than 30-percent capital gain property. For purposes of 
applying the immediately preceding sentence, the percentage limitations 
under section 170(b) for the preceding taxable year and for any taxable 
years intervening between such year and the year of the election shall 
not be redetermined and the amount of any deduction allowed for such 
years under section 170 in respect of the charitable contributions of 
30-percent capital gain property in the preceding taxable year shall not 
be redetermined. However, the amount of the deduction so allowed under 
section 170 in the preceding taxable year must be subtracted from the 
reduced amount of the charitable contributions made in such year in 
order to determine the excess amount which is carried over from such 
year under section 170(d)(1). If the amount of the deduction so allowed 
in the preceding taxable year equals or exceeds the reduced amount of 
the charitable contributions, there shall be no carryover from such year 
to the year of the election.
    (C) An election under this subparagraph may be made for each taxable 
year in which charitable contributions of 30-percent capital gain 
property are made or to which they are carried over under section 
170(b)(1)(D)(ii). If there are also carryovers under section 170(d)(1) 
to the year of the election by reason of an election made under this 
subparagraph for a previous taxable year, such carryovers under section 
170(d)(1) shall not be redetermined by reason of the subsequent 
election.
    (ii) Husband and wife making joint return. If a husband and wife 
make a joint return of income for a contribution year and one of the 
spouses elects under this subparagraph in a later year when he files a 
separate return, or if a spouse dies after a contribution year for which 
a joint return is made, any excess contribution of 30-percent capital 
gain property which is carried over to the election year from the 
contribution year shall be allocated between the husband and wife as 
provided in paragraph (d)(4) (i) and (iii) of Sec. 1.170A-10. If a 
husband and wife file separate returns in a contribution year, any 
election under this subparagraph in a later year when a joint return is 
filed shall be applicable to any excess contributions of 30-percent 
capital gain property of either taxpayer carried over from the 
contribution year to the election year. The immediately preceding 
sentence shall also apply where two single individuals are subsequently 
married and file a joint return. A remarried individual who filed a 
joint return with his former spouse for a contribution year and 
thereafter files a joint return with his present spouse shall treat the 
carryover to the election year as provided in paragraph (d)(4)(ii) of 
Sec. 1.170A-10.
    (iii) Manner of making election. The election under subdivision (i) 
of this subparagraph shall be made by attaching to the income tax return 
for the election year a statement indicating that the election under 
section 170(b)(1)(D)(iii) and this subparagraph is being made. If there 
is a carryover to the taxable year of any charitable contributions of 
30-percent capital gain property from a previous taxable year or years, 
the statement shall show a recomputation, in accordance with this 
subparagraph and Sec. 1.170A-4, of such carryover, setting forth 
sufficient information with respect to the previous taxable year or any 
intervening year to show the basis of the recomputation. The statement 
shall indicate the district director, or the director of the internal 
revenue service center, with whom the return for the previous taxable 
year or years was filed, the name or names in which such return or 
returns were filed, and whether each such return was a joint or separate 
return.
    (3) 30-percent capital gain property defined. If there is a 
charitable contribution of a capital asset which, if it were sold by the 
donor at its fair market

[[Page 75]]

value at the time of its contribution, would result in the recognition 
of gain all, or any portion, of which would be long-term capital gain 
and if the amount of such contribution is not required to be reduced 
under section 170(e)(1)(B) and Sec. 1.170A-4(a)(2), such capital asset 
shall be treated as ``30-percent capital gain property'' for purposes of 
section 170 and the regulations thereunder. For such purposes any 
property which is property used in the trade or business, as defined in 
section 1231(b), shall be treated as a capital asset. However, see 
paragraph (b)(4) of Sec. 1.170A-4. For the treatment of such property 
as section 170(e) capital gain property, see paragraph (b)(2)(iii) of 
Sec. 1.170A-4.
    (e) Contribution base defined. For purposes of section 170 the term 
contribution base means adjusted gross income under section 62, computed 
without regard to any net operating loss carryback to the taxable year 
under section 172. See section 170(b)(1)(F).
    (f) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. B, an individual, reports his income on the calendar-year 
basis and for 1970 has a contribution base of $100,000. During 1970 he 
makes charitable contributions of $70,000 in cash, of which $40,000 is 
given to section 170(b)(1)(A) organizations and $30,000 is given to 
other organizations described in section 170(c). Accordingly, B is 
allowed a charitable contributions deduction of $50,000 (50% of 
$100,000), which consists of the $40,000 contributed to section 
170(b)(1)(A) organizations and $10,000 of the $30,000 contributed to the 
other organizations. Under paragraph (c) of this section, only $10,000 
of the $30,000 contributed to the other organizations is allowed as a 
deduction since such contribution of $30,000 is allowed to the extent of 
the lesser of $20,000 (20% of $100,000) or $10,000 ([50% of $100,000]-
$40,000 (contributions allowed under section 170(b)(1)(A) and paragraph 
(b) of this section)). Under section 170 (b)(1)(D)(ii) and (d)(1) and 
Sec. 1.170A-10, B is not allowed a carryover to 1971 or to any other 
taxable year for any of the $20,000 ($30,000-$10,000) not deductible 
under section 170(b)(1)(B) and paragraph (c) of this section.
    Example 2. C, an individual, reports his income on the calendar-year 
basis and for 1970 has a contribution base of $100,000. During 1970 he 
makes charitable contributions of $40,000 in 30-percent capital gain 
property to section 170(b)(1)(A) organizations and of $30,000 in cash to 
other organizations described in section 170(c). The 20-percent 
limitation in section 170(b)(1)(B) and paragraph (c) of this section is 
applied before the 30-percent limitation in section 170(b)(1)(D)(i) and 
paragraph (d) of this section; accordingly section 170(b)(1)(B)(ii) 
limits the deduction for the $30,000 cash contribution to $10,000 ([50% 
of $100,000]- $40,000). The amount of the contribution of 30-percent 
capital gain property is limited by section 170(b)(1)(D)(i) and 
paragraph (d) of this section to $30,000 (30% of $100,000). Accordingly, 
C's charitable contributions deduction for 1970 is limited to $40,000 
($10,000+$30,000). Under section 170 (b)(1)(D)(ii) and paragraph (c) of 
Sec. 1.170A-10, C is allowed a carryover to 1971 of $10,000 ($40,000-
$30,000) in respect of his contributions of 30-percent capital gain 
property. C is not allowed a carryover to 1971 or to any other taxable 
year for any of the $20,000 cash ($30,000-$10,000) not deductible under 
section 170(b)(1)(B) and paragraph (c) of this section.
    Example 3. (a) D, an individual, reports his income on the calendar-
year basis and for 1970 has a contribution base of $100,000. During 1970 
he makes charitable contributions of $70,000 in cash, of which $40,000 
is given to section 170(b)(1)(A) organizations and $30,000 is given to 
other organizations described in section 170(c). During 1971 D makes 
charitable contributions to a section 170(b)(1)(A) organization of 
$12,000, consisting of cash of $1,000 and $11,000 in 30-percent capital 
gain property. His contribution base for 1971 is $10,000.
    (b) For 1970, D is allowed a charitable contributions deduction of 
$50,000 (50% of $100,000), which consists of the $40,000 contributed to 
section 170(b)(1)(A) organizations and $10,000 of the $30,000 
contributed to the other organizations. Under paragraph (c) of this 
section, only $10,000 of the $30,000 contributed to the other 
organizations is allowed as a deduction since such contribution of 
$30,000 is allowed to the extent of the lesser of $20,000 (20% of 
$100,000) or $10,000 ([50% of $100,000]-$40,000 (contributions allowed 
under section 170(b)(1)(A) and paragraph (b) of this section)). D is not 
allowed a carryover to 1971 or to any other taxable year for any of the 
$20,000 ($30,000-$10,000) not deductible under section 170(b)(1)(B) and 
paragraph (c) of this section.
    (c) For 1971, D is allowed a charitable contributions deduction of 
$4,000, consisting of $1,000 cash and $3,000 of the 30-percent capital 
gain property (30% of $10,000). Under section 170(b)(1)(D)(ii) and 
paragraph (c) of Sec. 1.170A-10, D is allowed a carryover to 1972 of 
$8,000 ($11,000-$3,000) in respect of his contribution of 30-percent 
capital gain property in 1971.
    Example 4. (a) E, an individual, reports his income on the calendar-
year basis and for 1970 has a contribution base of $100,000. During 1970 
he makes charitable contributions of $70,000 in cash, of which $40,000 
is given to

[[Page 76]]

section 170(b)(1)(A) organizations and $30,000 is given to other 
organizations described in section 170(c). During 1971 E makes 
charitable contributions to a section 170(b)(1)(A) organization of 
$14,000 consisting of cash of $3,000 and $11,000 in 30-percent capital 
gain property. His contribution base for 1971 is $10,000.
    (b) For 1970, E is allowed a charitable contributions deduction of 
$50,000 (50% of $100,000), which consists of the $40,000 contributed to 
section 170(b)(1)(A) organizations and $10,000 of the $30,000 
contributed to the other organizations. Under paragraph (c) of this 
section, only $10,000 of the $30,000 contributed to the other 
organizations is allowed as a deduction since such contribution of 
$30,000 is allowed to the extent of the lesser of $20,000 (20% of 
$100,000) or ($10,000 ([50% of $100,000]-$40,000 (contributions allowed 
under section 170(b)(1)(A) and paragraph (b) of this section)). E is not 
allowed a carryover to 1971 or to any other taxable year for any of the 
$20,000 ($30,000-$10,000) not deductible under section 170(b)(1)(B) and 
paragraph (c) of this section.
    (c) For 1971, E is allowed a charitable contributions deduction of 
$5,000 (50% of $10,000), consisting of $3,000 cash and $2,000 of the 
$3,000 (30% of $10,000) 30-percent capital gain property which is taken 
into account. This result is reached because, as provided in section 
170(b)(1)(D)(i) and paragraph (d)(1) of this section, cash contributions 
are taken into account before charitable contributions of 30-percent 
capital gain property. Under section 170(b)(1)(D)(ii) and (d)(1) and 
paragraphs (b) and (c) of Sec. 1.170A-10, E is allowed a carryover of 
$9,000 ([$11,000-$3,000] plus [$6,000 -$5,000]) to 1972 in respect of 
his contribution of 30-percent capital gain property in 1971.
    Example 5. In 1970, C, a calendar-year individual taxpayer, 
contributes to section 170(b)(1)(A) organizations the amount of $8,000, 
consisting of $3,000 in cash and $5,000 in 30-percent capital gain 
property. In 1970, C also makes charitable contributions of $8,500 in 30 
percent capital gain property to other organizations described in 
section 170(c). C's contribution base for 1970 is $20,000. The 20-
percent limitation in section 170(b)(1)(B) and paragraph (c) of this 
section is applied before the 30-percent limitation in section 
170(b)(1)(D)(i) and paragraph (d) of this section; accordingly, section 
170(b)(1)(B)(ii) limits the deduction for the $8,500 of contributions to 
the other organizations described in section 170(c) to $2,000 ([50% of 
$20,000]-[$3,000+$5,000]). However, the total amount of contributions of 
30-percent capital gain property which is allowed as a deduction for 
1970 is limited by section 170(b)(1)(D)(i) and paragraph (d) of this 
section to $6,000 (30% of $20,000), consisting of the $5,000 
contribution to the section 170(b)(1)(A) organizations and $1,000 of the 
contributions to the other organizations described in section 170(c). 
Accordingly C is allowed a charitable contributions deduction for 1970 
of $9,000, which consists of $3,000 cash and $6,000 of the $13,500 of 
30-percent capital gain property. C is not allowed to carryover to 1971 
or any other year the remaining $7,500 because his contributions of 30-
percent capital gain property for 1970 to section 170(b)(1)(A) 
organizations amount only to $5,000 and do not exceed $6,000 (30% of 
$20,000). Thus, the requirement of section 170(b)(1)(D)(ii) is not 
satisfied.
    Example 6. During 1971, D, a calendar-year individual taxpayer, 
makes a charitable contribution to a church of $8,000, consisting of 
$5,000 in cash and $3,000 in 30-percent capital gain property. For such 
year, D's contribution base is $10,000. Accordingly, D is allowed a 
charitable contributions deduction for 1971 of $5,000 (50% of $10,000) 
of cash. Under section 170(d)(1) and paragraph (b) of Sec. 1.170A-10, D 
is allowed a carryover to 1972 of his $3,000 contribution of 30-percent 
capital gain property, even though such amount does not exceed 30 
percent of his contribution base for 1971.
    Example 7. In 1970, E, a calendar-year individual taxpayer, makes a 
charitable contribution to a section 170(b)(1)(A) organization in the 
amount of $10,000, consisting of $8,000 in 30-percent capital gain 
property and of $2,000 (after reduction under section 170(e)) in other 
property. E's contribution base of 1970 is $20,000. Accordingly, E is 
allowed a charitable contributions deduction for 1970 of $8,000, 
consisting of the $2,000 of property the amount of which was reduced 
under section 170(e) and $6,000 (30% of $20,000) of the 30-percent 
capital gain property. Under section 170(b)(1)(D)(ii) and paragraph (c) 
of Sec. 1.170A-10, E is allowed to carryover to 1971 $2,000 ($8,000-
$6,000) of his contribution of 30-percent capital gain property.
    Example 8. (a) In 1972, F, calendar-year individual taxpayer, makes 
a charitable contribution to a church of $4,000, consisting of $1,000 in 
cash and $3,000 in 30-percent capital gain property. In addition, F 
makes a charitable contribution in 1972 of $2,000 in cash to an 
organization described in section 170(c)(4). F also has a carryover from 
1971 under section 170(d)(1) of $5,000 (none of which consists of 
contributions of 30-percent capital gain property) and a carryover from 
1971 under section 170(b)(1)(D)(ii) of $6,000 of contributions of 30-
percent capital gain property. F's contribution base for 1972 is 
$11,000.
    Accordingly, F is allowed a charitable contributions deduction for 
1972 of $5,500 (50% of $11,000), which consists of $1,000 cash 
contributed in 1972 to the church, $3,000 of 30-percent capital gain 
property contributed in 1972 to the church, and $1,500 (carryover of 
$5,000 but not to exceed [$5,500-($1,000 +$3,000)]) of the carryover 
from 1971 under section 170(d)(1).

[[Page 77]]

    (b) No deduction is allowed for 1972 for the contribution in that 
year of $2,000 cash to the section 170(c)(4) organization since section 
170(b)(1)(B)(ii) and paragraph (c) of this section limit the deduction 
for such contribution to $0([50% of $11,000]-[$1,000 +$1,500+$3,000]). 
Moreover, F is not allowed a carryover to 1973 or to any other year for 
any of such $2,000 cash contributed to the section 170(c)(4) 
organization.
    (c) Under section 170(d)(1) and paragraph (b) of Sec. 1.170A-10, F 
is allowed a carryover to 1973 from 1971 of $3,500 ($5,000-$1,500) of 
contributions of other than 30-percent capital gain property. Under 
section 170(b)(1)(D)(ii) and paragraph (c) of Sec. 1.170A-10, F is 
allowed a carryover to 1973 from 1971 of $6,000 ($6,000-$0 of such 
carryover treated as paid in 1972) of contributions of 30-percent 
capital gain property. The portion of such $6,000 carryover from 1971 
which is treated as paid in 1972 is $0 ([50% of $11,000]-[$4,000 
contributions to the church in 1972 plus $1,500 of section 170(d)(1) 
carryover treated as paid in 1972]).
    Example 9. (a) In 1970, A, a calendar-year individual taxpayer, 
makes a charitable contribution to a church of 30-percent capital gain 
property having a fair market value of $60,000 and an adjusted basis of 
$10,000. A's contribution base for 1970 is $50,000, and he makes no 
other charitable contributions in that year. A does not elect for 1970 
under paragraph (d)(2) of this section to have section 170(e)(1)(B) 
apply to such contribution. Accordingly, under section 170(b)(1)(D)(i) 
and paragraph (d) of this section, A is allowed a charitable 
contributions deduction for 1970 of $15,000 (30% of $50,000). Under 
section 170(b)(1)(D)(ii) and paragraph (c) of Sec. 1.170A-10, A is 
allowed a carryover to 1971 of $45,000 ($60,000-$15,000) for his 
contribution of 30-percent capital gain property.
    (b) In 1971, A makes a charitable contribution to a church of 30-
percent capital gain property having a fair market value of $11,000 and 
an adjusted basis of $10,000. A's contribution base for 1971 is $60,000, 
and he makes no other charitable contributions in that year. A elects 
for 1971 under paragraph (d)(2) of this section to have section 
170(e)(1)(B) and Sec. 1.170A-4 apply to his contribution of $11,000 in 
that year and to his carryover of $45,000 from 1970. Accordingly, he is 
required to recompute his carryover from 1970 as if section 170(e)(1)(B) 
had applied to his contribution of 30-percent capital gain property in 
that year.
    (c) If section 170(e)(1)(B) had applied in 1970 to his contribution 
of 30-percent capital gain property, A's contribution would have been 
reduced from $60,000 to $35,000, the reduction of $25,000 being 50 
percent of the gain of $50,000 ($60,000-$10,000) which would have been 
recognized as long-term capital gain if the property had been sold by A 
at its fair market value at the time of the contribution in 1970. 
Accordingly, by taking the election under paragraph (d)(2) of this 
section into account, A has a recomputed carryover to 1971 of $20,000 
($35,000- $15,000) of his contribution of 30-percent capital gain 
property in 1970. However, A's charitable contributions deduction of 
$15,000 allowed for 1970 is not recomputed by reason of the election.
    (d) Pursuant to the election for 1971, the contribution of 30-
percent capital gain property for 1971 is reduced from $11,000 to 
$10,500, the reduction of $500 being 50 percent of the gain of $1,000 
($11,000-$10,000) which would have been recognized as long-term capital 
gain if the property had been sold by A at its fair market value at the 
time of its contribution in 1971.
    (e) Accordingly, A is allowed a charitable contributions deduction 
for 1971 of $30,000 (total contributions of $30,500 [$20,000+ $10,500] 
but not to exceed 50% of $60,000).
    (f) Under section 170(d)(1) and paragraph (b) of Sec. 1.170A-10, A 
is allowed a carryover of $500 ($30,500-$30,000) to 1972 and the 3 
succeeding taxable years. The $500 carryover, which by reason of the 
election is no longer treated as a contribution of 30-percent capital 
gain property, is treated as carried over under paragraph (b) of Sec. 
1.170A-10 from 1970 since in 1971 current year contributions are 
deducted before contributions which are carried over from preceding 
taxable years.
    Example 10. The facts are the same as in Example 9 except that A 
also makes a charitable contribution in 1971 of $2,000 cash to a private 
foundation not described in section 170(b)(1)(E) and that A's 
contribution base for that year is $62,000, instead of $60,000. 
Accordingly, A is allowed a charitable contributions deduction for 1971 
of $31,000, determined in the following manner Under section 
170(b)(1)(A) and paragraph (b) of this section, A is allowed a 
charitable contributions deduction for 1971 of $30,500, consisting of 
$10,500 of property contributed to the church in 1971 and of $20,000 
(carryover of $20,000 but not to exceed [($62,000x50%)-$10,500]) of 
contributions of property carried over to 1971 under section 170(d)(1) 
and paragraph (b) of Sec. 1.170A-10. Under section 170(b)(1)(B) and 
paragraph (c) of this section, A is allowed a charitable contributions 
deduction for 1971 of $500 ([50% of $62,000]-[$10,500+ $20,000]) of cash 
contributed to the private foundation in that year. A is not allowed a 
carryover to 1972 or to any other taxable year for any of the $1,500 
($2,000-$500) cash not deductible in 1971 under section 170(b)(1)(B) and 
paragraph (c) of this section.
    Example 11. The facts are the same as in Example 9 except that A's 
contribution base for 1970 is $120,000. Thus, before making the election 
under paragraph (d)(2) of this section for 1971, A is allowed a 
charitable contributions deduction for 1970 of $36,000 (30% of $120,000) 
and is allowed a carryover to 1971 of $24,000 ($60,000-$36,000). By 
making the

[[Page 78]]

election for 1971, A is required to recompute the carryover from 1970, 
which is reduced from $24,000 to zero, since the charitable 
contributions deduction of $36,000 allowed for 1970 exceeds the reduced 
$35,000 contribution for 1970 which iay be taken into account by reason 
of the election for 1971. Accordingly, A is allowed a deduction for 1971 
of $10,500 and is allowed no carryover to 1972, since the reduced 
contribution for 1971 ($10,500) does not exceed the limitation of 
$30,000 (50% of $60,000) for 1971 which applies under section 170(d)(1) 
and paragraph (b) of Sec. 1.170A-10. A's charitable contributions 
deduction of $36,000 allowed for 1970 is not recomputed by reason of the 
election. Thus, it is not to A's advantage to make the election under 
paragraph (d)(2) of this section.
    Example 12. (a) B, an individual, reports his income on the 
calendar-year basis and for 1970 has a contribution base of $100,000. 
During 1970 he makes charitable contributions of $70,000, consisting of 
$50,000 in 30-percent capital gain property contributed to a church and 
$20,000 in cash contributed to a private foundation not described in 
section 170(b)(1)(E). For 1971, B's contribution base is $40,000, and in 
that year he makes a charitable contribution of $5,000 in cash to such 
private foundation. During the years involved B makes no other 
charitable contributions.
    (b) The amount of the contribution of 30-percent capital gain 
property which may be taken into account for 1970 is limited by section 
170(b)(1)(D)(i) and paragraph (d) of this section to $30,000 (30% of 
$100,000). Accordingly, under section 170(b)(1)(A) and paragraph (b) of 
this section B is allowed a deduction for 1970 of $30,000 of 30-percent 
capital gain property (contribution of $30,000 but not to exceed $50,000 
[50% of $100,000]). No deduction is allowed for 1970 for the 
contribution in that year of $20,000 of cash to the private foundation 
since section 170(b)(1)(B)(ii) and paragraph (c) of this section limit 
the deduction for such contribution to $0 ([50% of $100,000]- $50,000, 
the amount of the contribution of 30-percent capital gain property).
    (c) Under section 170(b)(1)(D)(ii) and paragraph (c) of Sec. 
1.170A-10, B is allowed a carryover to 1971 of $20,000 ($50,000-[30% of 
$100,000]) of his contribution in 1970 of 30-percent capital gain 
property. B is not allowed a carryover to 1971 or to any other taxable 
year for any of the $20,000 cash contribution in 1970 which is not 
deductible under section 170(b)(1)(B) and paragraph (c) of this section.
    (d) The amount of the contribution of 30-percent capital gain 
property which may be taken into account for 1971 is limited by section 
170(b)(1)(D)(i) and paragraph (d) of this section to $12,000 (30% of 
$40,000).
    Accordingly, under section 170(b)(1)(A) and paragraph (b) of this 
section B is allowed a deduction for 1971 of $12,000 of 30-percent 
capital gain property (contribution of $12,000 but not to exceed $20,000 
[50% of $40,000]). No deduction is allowed for 1971 for the contribution 
in that year of $5,000 of cash to the private foundation, since section 
170(b)(1)(B)(ii) and paragraph (c) of this section limit the deduction 
for such contribution to $0 ([50% of $40,000] -$20,000 carryover of 30-
percent capital gain property from 1970).
    (e) Under section 170(b)(1)(D)(ii) and paragraph (c) of Sec. 
1.170A-10, B is allowed a carryover to 1972 of $8,000 ($20,000-[30% of 
$40,000]) of his contribution in 1970 of 30-percent capital gain 
property. B is not allowed a carryover to 1972 or to any other taxable 
year for any of the $5,000 cash contribution for 1971 which is not 
deductible under section 170(b)(1)(B) and paragraph (c) of this section.
    Example 13. D, an individual, reports his income on the calendar-
year basis and for 1970 has a contribution base of $100,000. On March 1, 
1970, he contributes to a church intangible property to which section 
1245 applies which has a fair market value of $60,000 and an adjusted 
basis of $10,000. At the time of the contribution D has used the 
property in his business for more than 6 months. If the property had 
been sold by D at its fair market value at the time of its contribution, 
it is assumed that under section 1245 $20,000 of the gain of $50,000 
would have been treated as ordinary income and $30,000 would have been 
long-term capital gain. Since the property contributed is ordinary 
income property within the meaning of paragraph (b)(1) of Sec. 1.170A-
4, D's contribution of $60,000 is reduced under paragraph (a)(1) of such 
section to $40,000 ($60,000-$20,000 ordinary income). However, since the 
property contributed is also 30-percent capital gain property within the 
meaning of paragraph (d)(3) of this section, D's deduction for 1970 is 
limited by section 170(b)(1)(D)(i) and paragraph (d) of this section to 
$30,000 (30% of $100,000). Under section 170(b)(1)(D)(ii) and paragraph 
(c) of Sec. 1.170A-10, D is allowed to carry over to 1971 $10,000 
($40,000-$30,000) of his contribution of 30-percent capital gain 
property.
    Example 14. C, an individual, reports his income on the calendar-
year basis and for 1970 has a contribution base of $50,000. During 1970 
he makes charitable contributions to a church of $57,000, consisting of 
$2,000 cash and of 30-percent capital gain property with a fair market 
value of $55,000 and an adjusted basis of $15,000. In addition, C 
contributes $3,000 cash in 1970 to a private foundation not described in 
section 170(b)(1)(E). For 1970, C elects under paragraph (d)(2) of this 
section to have section 170(e)(1)(B) and Sec. 1.170A-4(a) apply to his 
contribution of property to the church. Accordingly, for 1970 C's 
contribution of property to the church is reduced from $55,000 to 
$35,000, the reduction of $20,000 being 50 percent of the gain of 
$40,000

[[Page 79]]

($55,000 -$15,000) which would have been recognized as long-term capital 
gain if the property had been sold by C at its fair market value at the 
time of its contribution to the church. Under section 170(b)(1)(A) and 
paragraph (b) of this section, C is allowed a charitable contributions 
deduction for 1970 of $25,000 ([$2,000+$35,000] but not to exceed 
[$50,000x50%]). Under section 170(d)(1) and paragraph (b) of Sec. 
1.170A-10, C is allowed a carryover from 1970 to 1971 of $12,000 
($37,000-$25,000). No deduction is allowed for 1970 for the contribution 
in that year of $3,000 cash to the private foundation since section 
170(b)(1)(B) and paragraph (c) of this section limit the deduction for 
such contribution to the smaller of $10,000 ($50,000x20%) or $0 
([$50,000x50%]-$25,000). C is not allowed a carryover from 1970 for any 
of the $3,000 cash contribution in that year which is not deductible 
under section 170(b)(1)(B) and paragraph (c) of this section.
    Example 15. (a) D, an individual, reports his income on the 
calendar-year basis and for 1970 has a contribution base of $100,000. 
During 1970 he makes a charitable contribution to a church of 30-percent 
capital gain property with a fair market value of $40,000 and an 
adjusted basis of $21,000. In addition, he contributes $23,000 cash in 
1970 to a private foundation not described in section 170(b)(1)(E). For 
1970, D elects under paragraph (d)(2) of this section to have section 
170(e)(1)(B) and Sec. 1.170A-4(a) apply to his contribution of property 
to the church. Accordingly, for 1970 D's contribution of property to the 
church is reduced from $40,000 to $30,500, the reduction of $9,500 being 
50 percent of the gain of $19,000 ($40,000-$21,000) which would have 
been recognized as long-term capital gain if the property had been sold 
by D at its fair market value at the time of its contribution to the 
church. Under section 170(b)(1)(A) and paragraph (b) of this section, D 
is allowed a charitable contributions deduction for 1970 of $30,500 for 
the property contributed to the church. In addition, under section 
170(b)(1)(B) and paragraph (c) of this section D is allowed a deduction 
of $19,500 for the cash contributed to the private foundation, since 
such contribution of $23,000 is allowed to the extent of the lesser of 
$20,000 (20% of $100,000) or $19,500 ([$100,000x50%]-$30,500). D is not 
allowed a carryover to 1971 or to any other taxable year for any of the 
$3,500 ($23,000-$19,500) of cash not deductible under section 
170(b)(1)(B) and paragraph (c) of this section.
    (b) If D had not made the election under paragraph (d)(2) of this 
section for 1970, his deduction for 1970 under section 170(a) for the 
$40,000 contribution of property to the church would have been limited 
by section 170(b)(1)(D)(i) and paragraph (d) of this section to $30,000 
(30% of $100,000), and under section 170(b)(1)(D)(ii) and paragraph (c) 
of Sec. 1.170A-10 he would have been allowed a carryover to 1971 of 
$10,000 ($40,000-$30,000) for his contribution of such property. In 
addition, he would have been allowed under section 170(b)(1)(B)(ii) and 
paragraph (c) of this section for 1970 a charitable contributions 
deduction of $10,000 ([$100,000x50%]-$40,000) for the cash contributed 
to the private foundation. In such case, D would not have been allowed a 
carryover to 1971 or to any other taxable year for any of the $13,000 
($23,000-$10,000) of cash not deductible under section 170(b)(1)(B) and 
paragraph (c) of this section.

    (g) Effective date. This section applies only to contributions paid 
in taxable years beginning after December 31, 1969.

[T.D. 7207, 37 FR 20783, Oct. 4, 1972; 37 FR 22982, Oct. 27, 1972]



Sec. 1.170A-9  Definition of section 170(b)(1)(A) organization.

    (a) The term section 170(b)(1)(A) organization as used in the 
regulations under section 170 means any organization described in 
paragraphs (b) through (j) of this section, effective with respect to 
taxable years beginning after December 31, 1969, except as otherwise 
provided. Section 1.170-2(b) shall continue to be applicable with 
respect to taxable years beginning prior to January 1, 1970. The term 
one or more organizations described in section 170(b)(1)(A) (other than 
clauses (vii) and (viii)) as used in sections 507 and 509 of the 
Internal Revenue Code (Code) and the regulations means one or more 
organizations described in paragraphs (b) through (f) of this section, 
except as modified by the regulations under part II of subchapter F of 
chapter 1 or under chapter 42.
    (b) Church or a convention or association of churches. An 
organization is described in section 170(b)(1)(A)(i) if it is a church 
or a convention or association of churches.
    (c) Educational organization and organizations for the benefit of 
certain State and municipal colleges and universities--(1) Educational 
organization. An educational organization is described in section 
170(b)(1)(A)(ii) if its primary function is the presentation of formal 
instruction and it normally maintains a regular faculty and curriculum 
and normally has a regularly enrolled body of pupils or students in 
attendance at

[[Page 80]]

the place where its educational activities are regularly carried on. The 
term includes institutions such as primary, secondary, preparatory, or 
high schools, and colleges and universities. It includes Federal, State, 
and other public-supported schools which otherwise come within the 
definition. It does not include organizations engaged in both 
educational and noneducational activities unless the latter are merely 
incidental to the educational activities. A recognized university which 
incidentally operates a museum or sponsors concerts is an educational 
organization within the meaning of section 170(b)(1)(A)(ii). However, 
the operation of a school by a museum does not necessarily qualify the 
museum as an educational organization within the meaning of this 
subparagraph.
    (2) Organizations for the benefit of certain State and municipal 
colleges and universities. (i) An organization is described in section 
170(b)(1)(A)(iv) if it meets the support requirements of subdivision 
(ii) of this subparagraph and is organized and operated exclusively to 
receive, hold, invest, and administer property and to make expenditures 
to or for the benefit of a college or university which is an 
organization described in subdivision (iii) of this subparagraph. The 
phrase ``expenditures to or for the benefit of a college or university'' 
includes expenditures made for any one or more of the normal functions 
of colleges and universities such as the acquisition and maintenance of 
real property comprising part of the campus area; the erection of, or 
participation in the erection of, college or university buildings; the 
acquisition and maintenance of equipment and furnishings used for, or in 
conjunction with, normal functions of colleges and universities; or 
expenditures for scholarships, libraries and student loans.
    (ii) To qualify under section 170(b)(1)(A)(iv), the organization 
receiving the contribution must normally receive a substantial part of 
its support from the United States or any State or political subdivision 
thereof or from direct or indirect contributions from the general 
public, or from a combination of two or more of such sources. For such 
purposes, the term ``support'' does not include income received in the 
exercise or performance by the organization of its charitable, 
educational, or other purpose or function constituting the basis for its 
exemption under section 501(a). An example of an indirect contribution 
from the public is the receipt by the organization of its share of the 
proceeds of an annual collection campaign of a community chest, 
community fund, or united fund. In determining the amount of support 
received by such organization with respect to a contribution of property 
which is subject to reduction under section 170(e), the fair market 
value of the property shall be taken into account.
    (iii) The college or university (including a land grant college or 
university) to be benefited must be an educational organization referred 
to in section 170(b)(1)(A)(ii) and subparagraph (1) of this paragraph 
which is an agency or instrumentality of a State or political 
subdivision thereof, or which is owned or operated by a State or 
political subdivision thereof or by an agency or instrumentality of one 
or more States or political subdivisions.
    (d) Hospitals and medical research organizations--(1) Hospitals. An 
organization (other than one described in paragraph (d)(2) of this 
section) is described in section 170(b)(1)(A)(iii) if--
    (i) It is a hospital; and
    (ii) Its principal purpose or function is the providing of medical 
or hospital care or medical education or medical research.
    (A) The term hospital includes--
    (1) Federal hospitals; and
    (2) State, county, and municipal hospitals which are 
instrumentalities of governmental units referred to in section 170(c)(1) 
and otherwise come within the definition. A rehabilitation institution, 
outpatient clinic, or community mental health or drug treatment center 
may qualify as a ``hospital'' within the meaning of paragraph (d)(1)(i) 
of this section if its principal purpose or function is the providing of 
hospital or medical care. For purposes of this paragraph (d)(1)(ii), the 
term medical care shall include the treatment of any physical or mental 
disability or condition, whether on an inpatient or outpatient basis, 
provided the cost of such treatment is deductible under section 213 by 
the person

[[Page 81]]

treated. An organization, all the accommodations of which qualify as 
being part of a ``skilled nursing facility'' within the meaning of 42 
U.S.C. 1395x(j), may qualify as a ``hospital'' within the meaning of 
paragraph (d)(1)(i) of this section if its principal purpose or function 
is the providing of hospital or medical care. For taxable years ending 
after June 28, 1968, the term hospital also includes cooperative 
hospital service organizations which meet the requirements of section 
501(e) and Sec. 1.501(e)-1.
    (B) The term hospital does not, however, include convalescent homes 
or homes for children or the aged, nor does the term include 
institutions whose principal purpose or function is to train handicapped 
individuals to pursue some vocation. An organization whose principal 
purpose or function is the providing of medical education or medical 
research will not be considered a ``hospital'' within the meaning of 
paragraph (d)(1)(i) of this section, unless it is also actively engaged 
in providing medical or hospital care to patients on its premises or in 
its facilities, on an inpatient or outpatient basis, as an integral part 
of its medical education or medical research functions. See, however, 
paragraph (d)(2) of this section with respect to certain medical 
research organizations.
    (2) Certain medical research organizations--(i) Introduction. A 
medical research organization is described in section 170(b)(1)(A)(iii) 
if the principal purpose or functions of such organization are medical 
research and if it is directly engaged in the continuous active conduct 
of medical research in conjunction with a hospital. In addition, for 
purposes of the 50 percent limitation of section 170(b)(1)(A) with 
respect to a contribution, during the calendar year in which the 
contribution is made such organization must be committed to spend such 
contribution for such research before January 1 of the fifth calendar 
year which begins after the date such contribution is made. An 
organization need not receive contributions deductible under section 170 
to qualify as a medical research organization and such organization need 
not be committed to spend amounts to which the limitation of section 
170(b)(1)(A) does not apply within the 5-year period referred to in this 
paragraph (d)(2)(i). However, the requirement of continuous active 
conduct of medical research indicates that the type of organization 
contemplated in this paragraph (d)(2) is one which is primarily engaged 
directly in the continuous active conduct of medical research, as 
compared to an inactive medical research organization or an organization 
primarily engaged in funding the programs of other medical research 
organizations. As in the case of a hospital, since an organization is 
ordinarily not described in section 170(b)(1)(A)(iii) as a hospital 
unless it functions primarily as a hospital, similarly a medical 
research organization is not so described unless it is primarily engaged 
directly in the continuous active conduct of medical research in 
conjunction with a hospital. Accordingly, the rules of this paragraph 
(d)(2) shall only apply with respect to such medical research 
organizations.
    (ii) General rule. An organization (other than a hospital described 
in paragraph (d)(1) of this section) is described in section 
170(b)(1)(A)(iii) only if within the meaning of this paragraph (d)(2):
    (A) The principal purpose or functions of such organization are to 
engage primarily in the conduct of medical research; and
    (B) It is primarily engaged directly in the continuous active 
conduct of medical research in conjunction with a hospital which is--
    (1) Described in section 501(c)(3);
    (2) A Federal hospital; or
    (3) An instrumentality of a governmental unit referred to in section 
170(c)(1).
    (C) In order for a contribution to such organization to qualify for 
purposes of the 50 percent limitation of section 170(b)(1)(A), during 
the calendar year in which such contribution is made or treated as made, 
such organization must be committed (within the meaning of paragraph 
(d)(2)(viii) of this section) to spend such contribution for such active 
conduct of medical research before January 1 of the fifth calendar year 
beginning after the date such contribution is made. For the

[[Page 82]]

meaning of the term ``medical research'' see paragraph (d)(2)(iii) of 
this section. For the meaning of the term ``principal purpose or 
functions'' see paragraph (d)(2)(iv) of this section. For the meaning of 
the term ``primarily engaged directly in the continuous active conduct 
of medical research'' see paragraph (d)(2)(v) of this section. For the 
meaning of the term ``medical research in conjunction with a hospital'' 
see paragraph (d)(2)(vii) of this section.
    (iii) Definition of medical research. Medical research means the 
conduct of investigations, experiments, and studies to discover, 
develop, or verify knowledge relating to the causes, diagnosis, 
treatment, prevention, or control of physical or mental diseases and 
impairments of man. To qualify as a medical research organization, the 
organization must have or must have continuously available for its 
regular use the appropriate equipment and professional personnel 
necessary to carry out its principal function. Medical research 
encompasses the associated disciplines spanning the biological, social 
and behavioral sciences. Such disciplines include chemistry 
(biochemistry, physical chemistry, bioorganic chemistry, etc.), 
behavioral sciences (psychiatry, physiological psychology, 
neurophysiology, neurology, neurobiology, and social psychology, etc.), 
biomedical engineering (applied biophysics, medical physics, and medical 
electronics, for example, developing pacemakers and other medically 
related electrical equipment), virology, immunology, biophysics, cell 
biology, molecular biology, pharmacology, toxicology, genetics, 
pathology, physiology, microbiology, parasitology, endocrinology, 
bacteriology, and epidemiology.
    (iv) Principal purpose or functions. An organization must be 
organized for the principal purpose of engaging primarily in the conduct 
of medical research in order to be an organization meeting the 
requirements of this paragraph (d)(2). An organization will normally be 
considered to be so organized if it is expressly organized for the 
purpose of conducting medical research and is actually engaged primarily 
in the conduct of medical research. Other facts and circumstances, 
however, may indicate that an organization does not meet the principal 
purpose requirement of this paragraph (d)(2)(iv) even where its 
governing instrument so expressly provides. An organization that 
otherwise meets all of the requirements of this paragraph (d)(2) 
(including this paragraph (d)(2)(iv)) to qualify as a medical research 
organization will not fail to so qualify solely because its governing 
instrument does not specifically state that its principal purpose is to 
conduct medical research.
    (v) Primarily engaged directly in the continuous active conduct of 
medical research--(A) In order for an organization to be primarily 
engaged directly in the continuous active conduct of medical research, 
the organization must either devote a substantial part of its assets to, 
or expend a significant percentage of its endowment for, such purposes, 
or both. Whether an organization devotes a substantial part of its 
assets to, or makes significant expenditures for, such continuous active 
conduct depends upon the facts and circumstances existing in each 
specific case. An organization will be treated as devoting a substantial 
part of its assets to, or expending a significant percentage of its 
endowment for, such purposes if it meets the appropriate test contained 
in paragraph (d)(2)(v)(B) of this section. If an organization fails to 
satisfy both of such tests, in evaluating the facts and circumstances, 
the factor given most weight is the margin by which the organization 
failed to meet such tests. Some of the other facts and circumstances to 
be considered in making such a determination are--
    (1) If the organization fails to satisfy the tests because it failed 
to properly value its assets or endowment, then upon determination of 
the improper valuation it devotes additional assets to, or makes 
additional expenditures for, such purposes, so that it satisfies such 
tests on an aggregate basis for the prior year in addition to such tests 
for the current year;
    (2) The organization acquires new assets or has a significant 
increase in the value of its securities after it had developed a budget 
in a prior year based on the assets then owned and the then current 
values;

[[Page 83]]

    (3) The organization fails to make expenditures in any given year 
because of the interrelated aspects of its budget and long-term planning 
requirements, for example, where an organization prematurely terminates 
an unsuccessful program and because of long-term planning requirements 
it will not be able to establish a fully operational replacement program 
immediately; and
    (4) The organization has as its objective to spend less than a 
significant percentage in a particular year but make up the difference 
in the subsequent few years, or to budget a greater percentage in an 
earlier year and a lower percentage in a later year.
    (B) For purposes of this section, an organization which devotes more 
than one half of its assets to the continuous active conduct of medical 
research will be considered to be devoting a substantial part of its 
assets to such conduct within the meaning of paragraph (d)(2)(v)(A) of 
this section. An organization which expends funds equaling 3.5 percent 
or more of the fair market value of its endowment for the continuous 
active conduct of medical research will be considered to have expended a 
significant percentage of its endowment for such purposes within the 
meaning of paragraph (d)(2)(v)(A) of this section.
    (C) Engaging directly in the continuous active conduct of medical 
research does not include the disbursing of funds to other organizations 
for the conduct of research by them or the extending of grants or 
scholarships to others. Therefore, if an organization's primary purpose 
is to disburse funds to other organizations for the conduct of research 
by them or to extend grants or scholarships to others, it is not 
primarily engaged directly in the continuous active conduct of medical 
research.
    (vi) Special rules. The following rules shall apply in determining 
whether a substantial part of an organization's assets are devoted to, 
or its endowment is expended for, the continuous active conduct of 
medical research activities:
    (A) An organization may satisfy the tests of paragraph (d)(2)(v)(B) 
of this section by meeting such tests either for a computation period 
consisting of the immediately preceding taxable year, or for the 
computation period consisting of the immediately preceding four taxable 
years. In addition, for taxable years beginning in 1970, 1971, 1972, 
1973, and 1974, if an organization meets such tests for the computation 
period consisting of the first four taxable years beginning after 
December 31, 1969, an organization will be treated as meeting such 
tests, not only for the taxable year beginning in 1974, but also for the 
preceding four taxable years. Thus, for example, if a calendar year 
organization failed to satisfy such tests for a computation period 
consisting of 1969, 1970, 1971, and 1972, but on the basis of a 
computation period consisting of the years 1970 through 1973, it 
expended funds equaling 3.5 percent or more of the fair market value of 
its endowment for the continuous active conduct of medical research, 
such organization will be considered to have expended a significant 
percentage of its endowment for such purposes for the taxable years 1970 
through 1974. In applying such tests for a four-year computation period, 
although the organization's expenditures for the entire four-year period 
shall be aggregated, the fair market value of its endowment for each 
year shall be summed, even though, in the case of an asset held 
throughout the four-year period, the fair market value of such an asset 
will be counted four times. Similarly, the fair market value of an 
organization's assets for each year of a four-year computation period 
shall be summed.
    (B) Any property substantially all the use of which is 
``substantially related'' (within the meaning of section 514(b)(1)(A)) 
to the exercise or performance of the organization's medical research 
activities will not be treated as part of its endowment.
    (C) The valuation of assets must be made with commonly accepted 
methods of valuation. A method of valuation made in accordance with the 
principles stated in the regulations under section 2031 constitutes an 
acceptable method of valuation. Assets may be valued as of any day in 
the organization's taxable year to which such valuation applies, 
provided the organization follows a consistent practice of valuing such 
asset as of such date in all

[[Page 84]]

taxable years. For purposes of paragraph (d)(2)(v) of this section, an 
asset held by the organization for part of a taxable year shall be taken 
into account by multiplying the fair market value of such asset by a 
fraction, the numerator of which is the number of days in such taxable 
year that the organization held such asset and the denominator of which 
is the number of days in such taxable year.
    (vii) Medical research in conjunction with a hospital. The 
organization need not be formally affiliated with a hospital to be 
considered primarily engaged directly in the continuous active conduct 
of medical research in conjunction with a hospital, but in any event 
there must be a joint effort on the part of the research organization 
and the hospital pursuant to an understanding that the two organizations 
will maintain continuing close cooperation in the active conduct of 
medical research. For example, the necessary joint effort will normally 
be found to exist if the activities of the medical research organization 
are carried on in space located within or adjacent to a hospital, the 
organization is permitted to utilize the facilities (including 
equipment, case studies, etc.) of the hospital on a continuing basis 
directly in the active conduct of medical research, and there is 
substantial evidence of the close cooperation of the members of the 
staff of the research organization and members of the staff of the 
particular hospital or hospitals. The active participation in medical 
research by members of the staff of the particular hospital or hospitals 
will be considered to be evidence of such close cooperation. Because 
medical research may involve substantial investigation, experimentation 
and study not immediately connected with hospital or medical care, the 
requisite joint effort will also normally be found to exist if there is 
an established relationship between the research organization and the 
hospital which provides that the cooperation of appropriate personnel 
and the use of facilities of the particular hospital or hospitals will 
be required whenever it would aid such research.
    (viii) Commitment to spend contributions. The organization's 
commitment that the contribution will be spent within the prescribed 
time only for the prescribed purposes must be legally enforceable. A 
promise in writing to the donor in consideration of his making a 
contribution that such contribution will be so spent within the 
prescribed time will constitute a commitment. The expenditure of 
contributions received for plant, facilities, or equipment, used solely 
for medical research purposes (within the meaning of paragraph 
(d)(2)(ii) of this section), shall ordinarily be considered to be an 
expenditure for medical research. If a contribution is made in other 
than money, it shall be considered spent for medical research if the 
funds from the proceeds of a disposition thereof are spent by the 
organization within the five-year period for medical research; or, if 
such property is of such a kind that it is used on a continuing basis 
directly in connection with such research, it shall be considered spent 
for medical research in the year in which it is first so used. A medical 
research organization will be presumed to have made the commitment 
required under this paragraph (d)(2)(viii) with respect to any 
contribution if its governing instrument or by-laws require that every 
contribution be spent for medical research before January 1 of the fifth 
year which begins after the date such contribution is made.
    (ix) Organizational period for new organizations. A newly created 
organization, for its ``organizational'' period, shall be considered to 
be primarily engaged directly in the continuous active conduct of 
medical research in conjunction with a hospital within the meaning of 
paragraphs (d)(2)(v) and (d)(2)(vii) of this section if during such 
period the organization establishes to the satisfaction of the 
Commissioner that it reasonably can be expected to be so engaged by the 
end of such period. The information to be submitted shall include 
detailed plans showing the proposed initial medical research program, 
architectural drawings for the erection of buildings and facilities to 
be used for medical research in accordance with such plans, plans to 
assemble a professional staff and detailed projections showing the 
timetable for the expected accomplishment of the

[[Page 85]]

foregoing. The ``organizational'' period shall be that period which is 
appropriate to implement the proposed plans, giving effect to the 
proposed amounts involved and the magnitude and complexity of the 
projected medical research program, but in no event in excess of three 
years following organization.
    (x) Examples. The application of this paragraph (d)(2) may be 
illustrated by the following examples:

    Example 1. N, an organization referred to in section 170(c)(2), was 
created to promote human knowledge within the field of medical research 
and medical education. All of N's assets were contributed to it by A and 
consist of a diversified portfolio of stocks and bonds. N's endowment 
earns 3.5 percent annually, which N expends in the conduct of various 
medical research programs in conjunction with Y hospital. N is located 
adjacent to Y hospital, makes substantial use of Y's facilities, and 
there is close cooperation between the staffs of N and Y. N is directly 
engaged in the continuous active conduct of medical research in 
conjunction with a hospital, meets the principal purpose test described 
in paragraph (d)(2)(iv) of this section, and is therefore an 
organization described in section 170(b)(1)(A)(iii).
    Example 2. O, an organization referred to in section 170(c)(2), was 
created to promote human knowledge within the field of medical research 
and medical education. All of O's assets consist of a diversified 
portfolio of stocks and bonds. O's endowment earns 3.5 percent annually, 
which O expends in the conduct of various medical research programs in 
conjunction with certain hospitals. However, in 1974, O receives a 
substantial bequest of additional stocks and bonds. O's budget for 1974 
does not take into account the bequest and as a result O expends only 
3.1 percent of its endowment in 1974. However, O establishes that it 
will expend at least 3.5 percent of its endowment for the active conduct 
of medical research for taxable years 1975 through 1978. O is therefore 
directly engaged in the continuous active conduct of medical research in 
conjunction with a hospital for taxable year 1975. Since O also meets 
the principal purpose test described in paragraph (d)(2)(iv) of this 
section, it is therefore an organization described in section 
170(b)(1)(A)(iii) for taxable year 1975.
    Example 3. M, an organization referred to in section 170(c)(2), was 
created to promote human knowledge within the field of medical research 
and medical education. M's activities consist of the conduct of medical 
research programs in conjunction with various hospitals. Under such 
programs, researchers employed by M engage in research at laboratories 
set aside for M within the various hospitals. Substantially all of M's 
assets consist of 100 percent of the stock of X corporation, which has a 
fair market value of approximately 100 million dollars. X pays M 
approximately 3.3 million dollars in dividends annually, which M expends 
in the conduct of its medical research programs. Since M expends only 
3.3 percent of its endowment, which does not constitute a significant 
percentage, in the active conduct of medical research, M is not an 
organization described in section 170(b)(1)(A)(iii) because M is not 
engaged in the continuous active conduct of medical research.

    (xi) Special rule for organizations with existing ruling. This 
paragraph (d)(2)(xi) shall apply to an organization that prior to 
January 1, 1970, had received a ruling or determination letter which has 
not been expressly revoked holding the organization to be a medical 
research organization described in section 170(b)(1)(A)(iii) and with 
respect to which the facts and circumstances on which the ruling was 
based have not substantially changed. An organization to which this 
paragraph (d)(2)(xi) applies shall be treated as an organization 
described in section 170(b)(1)(A)(iii) for a period not ending prior to 
90 days after February 13, 1976 (or where appropriate, for taxable years 
beginning before such 90th day). In addition, with respect to a grantor 
or contributor under sections 170, 507, 545(b)(2), 556(b)(2), 642(c), 
4942, 4945, 2055, 2106(a)(2), and 2522, the status of an organization to 
which this paragraph (d)(2)(xi) applies will not be affected until 
notice of change of status under section 170(b)(1)(A)(iii) is made to 
the public (such as by publication in the Internal Revenue Bulletin). 
The preceding sentence shall not apply if the grantor or contributor had 
previously acquired knowledge that the Internal Revenue Service had 
given notice to such organization that it would be deleted from 
classification as a section 170(b)(1)(A)(iii) organization.
    (e) Governmental unit. A governmental unit is described in section 
170(b)(1)(A)(v) if it is referred to in section 170(c)(1).
    (f) Definition of section 170(b)(1)(A)(vi) organization--(1) In 
general. An organization is described in section 170(b)(1)(A)(vi) if 
it--

[[Page 86]]

    (i) Is referred to in section 170(c)(2) (other than an organization 
specifically described in paragraphs (b) through (e) of this section); 
and
    (ii) Normally receives a substantial part of its support from a 
governmental unit referred to in section 170(c)(1) or from direct or 
indirect contributions from the general public (``publicly supported''). 
For purposes of this paragraph (f), an organization is publicly 
supported if it meets the requirements of either paragraph (f)(2) of 
this section (33\1/3\ percent support test) or paragraph (f)(3) of this 
section (facts and circumstances test). Paragraph (f)(4) of this section 
defines ``normally'' for purposes of the 33\1/3\ percent support test 
and the facts and circumstances test, and for new organizations in the 
first five years of the organization's existence as a section 501(c)(3) 
organization. Paragraph (f)(5) of this section provides for 
determinations of foundation classification and rules for reliance by 
donors and contributors. Paragraphs (f)(6), (f)(7), and (f)(8) of this 
section list the items that are included and excluded from the term 
support. Paragraph (f)(9) of this section provides examples of the 
application of this paragraph. Types of organizations that, subject to 
the provisions of this paragraph (f), generally qualify under section 
170(b)(1)(A)(vi) as ``publicly supported'' are publicly or 
governmentally supported museums of history, art, or science, libraries, 
community centers to promote the arts, organizations providing 
facilities for the support of an opera, symphony orchestra, ballet, or 
repertory drama or for some other direct service to the general public.
    (2) Determination whether an organization is ``publicly supported''; 
33\1/3\ percent support test. An organization is publicly supported if 
the total amount of support (see paragraphs (f)(6), (f)(7), and (f)(8) 
of this section) that the organization normally (see paragraph (f)(4)(i) 
of this section) receives from governmental units referred to in section 
170(c)(1), from contributions made directly or indirectly by the general 
public, or from a combination of these sources, equals at least 33\1/3\ 
percent of the total support normally received by the organization. See 
paragraph (f)(9), Example 1 of this section.
    (3) Determination whether an organization is ``publicly supported''; 
facts and circumstances test. Even if an organization fails to meet the 
33\1/3\ percent support test described in paragraph (f)(2) of this 
section, it is publicly supported if it normally (see paragraph 
(f)(4)(i) of this section) receives a substantial part of its support 
from governmental units, from contributions made directly or indirectly 
by the general public, or from a combination of these sources, and meets 
the other requirements of this paragraph (f)(3). In order to satisfy the 
facts and circumstances test, an organization must meet the requirements 
of paragraphs (f)(3)(i) and (f)(3)(ii) of this section. In addition, the 
organization must be in the nature of an organization that is publicly 
supported, taking into account all pertinent facts and circumstances, 
including the factors listed in paragraphs (f)(3)(iii)(A) through 
(f)(3)(iii)(E) of this section.
    (i) Ten-percent support limitation. The percentage of support (see 
paragraphs (f)(6), (f)(7) and (f)(8) of this section) normally received 
by an organization from governmental units, from contributions made 
directly or indirectly by the general public, or from a combination of 
these sources, must be substantial. For purposes of this paragraph 
(f)(3), an organization will not be treated as normally receiving a 
substantial amount of governmental or public support unless the total 
amount of governmental and public support normally received equals at 
least 10 percent of the total support normally received by such 
organization.
    (ii) Attraction of public support. An organization must be so 
organized and operated as to attract new and additional public or 
governmental support on a continuous basis. An organization will be 
considered to meet this requirement if it maintains a continuous and 
bona fide program for solicitation of funds from the general public, 
community, or membership group involved, or if it carries on activities 
designed to attract support from governmental units or other 
organizations described in section 170(b)(1)(A)(i) through 
(b)(1)(A)(vi). In determining whether an organization maintains a 
continuous and bona fide program for solicitation of funds from the 
general public or

[[Page 87]]

community, consideration will be given to whether the scope of its 
fundraising activities is reasonable in light of its charitable 
activities. Consideration will also be given to the fact that an 
organization, in its early years of existence, may limit the scope of 
its solicitation to persons deemed most likely to provide seed money in 
an amount sufficient to enable it to commence its charitable activities 
and expand its solicitation program.
    (iii) In addition to the requirements set forth in paragraphs 
(f)(3)(i) and (f)(3)(ii) of this section that must be satisfied, all 
pertinent facts and circumstances, including the following factors, will 
be taken into consideration in determining whether an organization is 
``publicly supported'' within the meaning of paragraph (f)(1) of this 
section. However, an organization is not generally required to satisfy 
all of the factors in paragraphs (f)(3)(iii)(A) through (f)(3)(iii)(E) 
of this section. The factors relevant to each case and the weight 
accorded to any one of them may differ depending upon the nature and 
purpose of the organization and the length of time it has been in 
existence.
    (A) Percentage of financial support. The percentage of support 
received by an organization from public or governmental sources will be 
taken into consideration in determining whether an organization is 
``publicly supported.'' The higher the percentage of support above the 
10 percent requirement of paragraph (f)(3)(i) of this section from 
public or governmental sources, the lesser will be the burden of 
establishing the publicly supported nature of the organization through 
other factors, including those described in this paragraph (f)(3), while 
the lower the percentage, the greater will be the burden. If the 
percentage of the organization's support from public or governmental 
sources is low because it receives a high percentage of its total 
support from investment income on its endowment funds, such fact will be 
treated as evidence of an organization being ``publicly supported'' if 
such endowment funds were originally contributed by a governmental unit 
or by the general public. However, if such endowment funds were 
originally contributed by a few individuals or members of their 
families, such fact will increase the burden on the organization of 
establishing that it is ``publicly supported'' taking into account all 
pertinent facts and circumstances, including the other factors described 
in paragraph (f)(3)(iii) of this section.
    (B) Sources of support. The fact that an organization meets the 
requirement of paragraph (f)(3)(i) of this section through support from 
governmental units or directly or indirectly from a representative 
number of persons, rather than receiving almost all of its support from 
the members of a single family, will be considered evidence of an 
organization being ``publicly supported.'' In determining what is a 
``representative number of persons,'' consideration will be given to the 
type of organization involved, the length of time it has been in 
existence, and whether it limits its activities to a particular 
community or region or to a special field which can be expected to 
appeal to a limited number of persons.
    (C) Representative governing body. The fact that an organization has 
a governing body which represents the broad interests of the public, 
rather than the personal or private interests of a limited number of 
donors (or persons standing in a relationship to such donors which is 
described in section 4946(a)(1)(C) through (a)(1)(G)), will be 
considered evidence of an organization being ``publicly supported.'' An 
organization will be treated as having a representative governing body 
if it has a governing body (whether designated in the organization's 
governing instrument or bylaws as a Board of Directors, Board of 
Trustees, or similar governing body) which is comprised of public 
officials acting in their capacities as such; of individuals selected by 
public officials acting in their capacities as such; of persons having 
special knowledge or expertise in the particular field or discipline in 
which the organization is operating; of community leaders, such as 
elected or appointed officials, clergymen, educators, civic leaders, or 
other such persons representing a broad cross-section of the views and 
interests of the community; or, in the case of a

[[Page 88]]

membership organization, of individuals elected pursuant to the 
organization's governing instrument or bylaws by a broadly based 
membership.
    (D) Availability of public facilities or services; public 
participation in programs or policies. (1) The fact that an organization 
generally provides facilities or services directly for the benefit of 
the general public on a continuing basis (such as a museum or library 
which holds open its building or facilities to the public, a symphony 
orchestra which gives public performances, a conservation organization 
which provides educational services to the public through the 
distribution of educational materials, or an old age home which provides 
domiciliary or nursing services for members of the general public) will 
be considered evidence that such organization is ``publicly supported.''
    (2) The fact that an organization is an educational or research 
institution which regularly publishes scholarly studies that are widely 
used by colleges and universities or by members of the general public 
will also be considered evidence that such organization is ``publicly 
supported.''
    (3) The following factors will also be considered evidence that an 
organization is ``publicly supported'':
    (i) The participation in, or sponsorship of, the programs of the 
organization by members of the public having special knowledge or 
expertise, public officials, or civic or community leaders.
    (ii) The maintenance of a definitive program by an organization to 
accomplish its charitable work in the community, such as combating 
community deterioration in an economically depressed area that has 
suffered a major loss of population and jobs.
    (iii) The receipt of a significant part of its funds from a public 
charity or governmental agency to which it is in some way held 
accountable as a condition of the grant, contract, or contribution.
    (E) Additional factors pertinent to membership organizations. The 
following are additional factors to be considered in determining whether 
a membership organization is ``publicly supported'':
    (1) Whether the solicitation for dues-paying members is designed to 
enroll a substantial number of persons in the community or area, or in a 
particular profession or field of special interest (taking into account 
the size of the area and the nature of the organization's activities).
    (2) Whether membership dues for individual (rather than 
institutional) members have been fixed at rates designed to make 
membership available to a broad cross section of the interested public, 
rather than to restrict membership to a limited number of persons.
    (3) Whether the activities of the organization will be likely to 
appeal to persons having some broad common interest or purpose, such as 
educational activities in the case of alumni associations, musical 
activities in the case of symphony societies, or civic affairs in the 
case of parent-teacher associations. See Example 2 through Example 5 
contained in paragraph (f)(9) of this section for illustrations of this 
paragraph (f)(3).
    (4) Definition of normally; general rule--(i) Normally; 33\1/3\ 
percent support test. An organization ``normally'' receives the 
requisite amount of public support and meets the 33\1/3\ percent support 
test for a taxable year and the taxable year immediately succeeding that 
year, if, for the taxable year being tested and the four taxable years 
immediately preceding that taxable year, the organization meets the 
33\1/3\ percent support test on an aggregate basis.
    (ii) Normally; facts and circumstances test. An organization 
``normally'' receives the requisite amount of public support and meets 
the facts and circumstances test of paragraph (f)(3) for a taxable year 
and the taxable year immediately succeeding that year, if, for the 
taxable year being tested and the four taxable years immediately 
preceding that taxable year, the organization meets the facts and 
circumstances test on an aggregate basis. In the case of paragraphs 
(f)(3)(iii)(A) and (f)(3)(iii)(B) of this section, facts pertinent to 
years preceding the five-year period may also be taken into 
consideration. The combination of factors set forth in paragraphs 
(f)(3)(iii)(A) through (f)(3)(iii)(E) of this section that an 
organization normally must meet does not have to be the same for

[[Page 89]]

each five-year period so long as there exists a sufficient combination 
of factors to show compliance with the facts and circumstances test.
    (iii) Special rule. The fact that an organization has normally met 
the requirements of the 33\1/3\ percent support test for a current 
taxable year, but is unable normally to meet such requirements for a 
succeeding taxable year, will not in itself prevent such organization 
from meeting the facts and circumstances test for such succeeding 
taxable year.

    (iv) Example. The application of paragraphs (f)(4)(i), (f)(4)(ii), 
and (f)(4)(iii) of this section may be illustrated by the following 
example:

    Example. (i) X is recognized as an organization described in section 
501(c)(3). On the basis of support received during taxable years 2008, 
2009, 2010, 2011, and 2012, in the aggregate, X receives at least 33\1/
3\ percent of its support from governmental units referred to in section 
170(c)(1), from contributions made directly or indirectly by the general 
public, or from a combination of these sources. Consequently, X meets 
the 33\1/3\ percent support test for taxable year 2012 (the current 
taxable year). X also meets the 33\1/3\ support test for 2013, as the 
immediately succeeding taxable year.
    (ii) In taxable years 2009, 2010, 2011, 2012, and 2013, in the 
aggregate, X does not receive at least 33\1/3\ percent of its support 
from governmental units referred to in section 170(c)(1), from 
contributions made directly or indirectly by the general public, or from 
a combination of these sources. However, X still meets the 33\1/3\ 
percent support test for taxable year 2013 based on the aggregate 
support received for taxable years 2008 through 2012.
    (iii) In taxable years 2010, 2011, 2012, 2013, and 2014, in the 
aggregate, X does not receive at least 33\1/3\ percent of its support 
from governmental units referred to in section 170(c)(1), from 
contributions made directly or indirectly by the general public, or from 
a combination of these sources. X does not meet the 33\1/3\ percent 
support test for taxable year 2014.
    (iv) X meets the facts and circumstances test for taxable year 2013 
and for taxable year 2014 (the immediately succeeding taxable year) 
based on the aggregate support X receives, X's fundraising program, and 
consideration of other factors, including those listed in paragraphs 
(f)(3)(iii)(A) through (f)(3)(iii)(E) of this section, during taxable 
years 2009, 2010, 2011, 2012, and 2013. Therefore, even though X does 
not meet the 33\1/3\ percent support test for taxable year 2014, X is 
still an organization described in section 170(b)(1)(A)(vi) for that 
year.

    (v) Normally; first five years of an organization's existence. (A) 
An organization ``normally'' receives the requisite amount of public 
support and meets the 33\1/3\ percent public support test or the facts 
and circumstances test during its first five taxable years as a section 
501(c)(3) organization if the organization can reasonably be expected to 
meet the requirements of the 33\1/3\ percent support test or the facts 
and circumstances test during that period. With respect to such 
organization's sixth taxable year, the general definition of normally 
set forth in paragraphs (f)(4)(i), (f)(4)(ii), and (f)(4)(iii) of this 
section apply. Alternatively, the organization shall be treated as 
``normally'' meeting the 33\1/3\ percent support test or the facts and 
circumstances test for its sixth taxable year (but not its seventh 
taxable year) if it meets the 33\1/3\ percent support test or the facts 
and circumstances test under the definition of normally set forth in 
paragraphs (f)(4)(i), (f)(4)(ii), and (f)(4)(iii) of this section for 
its fifth taxable year (based on support received in its first through 
fifth taxable years).
    (B) Basic consideration. In determining whether an organization can 
reasonably be expected (within the meaning of paragraph (f)(4)(v)(A) of 
this section) to meet the requirements of the 33\1/3\ percent support 
test or the facts and circumstances test during its first five taxable 
years, the basic consideration is whether its organizational structure, 
current or proposed programs or activities, and actual or intended 
method of operation are such as can reasonably be expected to attract 
the type of broadly based support from the general public, public 
charities, and governmental units that is necessary to meet such tests. 
The factors that are relevant to this determination, and the weight 
accorded to each of them, may differ from case to case, depending on the 
nature and functions of the organization. The information to be 
considered for this purpose shall consist of all pertinent facts and 
circumstances, including the factors set forth in paragraph (f)(3) of 
this section.


[[Page 90]]


    (vi) Example. The application of paragraph (f)(4)(v) of this section 
may be illustrated by the following example:

    Example. (i) Organization Y was formed in January 2008, and uses a 
taxable year ending December 31. After September 9, 2008, and before 
December 31, 2008, Organization Y filed Form 1023 requesting recognition 
of exemption as an organization described in section 501(c)(3) and in 
sections 170(b)(1)(A)(vi) and 509(a)(1). In its application, 
Organization Y established that it can reasonably be expected to operate 
as a publicly supported organization under paragraph (f)(2) or (f)(3) 
and paragraph (f)(4)(v) of this section. Subsequently, Organization Y 
received a ruling or determination letter that it is an organization 
described in section 501(c)(3) and sections 170(b)(1)(A)(vi) and 
509(a)(1) effective as of the date of its formation.
    (ii) Organization Y is described in sections 170(b)(1)(A)(vi) and 
509(a)(1) for its first five taxable years (the taxable years ending 
December 31, 2008, through December 31, 2012).
    (iii) Organization Y can qualify as a publicly supported 
organization for the taxable year ending December 31, 2013, if 
Organization Y can meet the requirements of either paragraph (f)(2) or 
paragraph (f)(3) of this section or Sec. 1.509(a)-3(a) and Sec. 
1.509(a)-(3)(b) for the taxable years ending December 31, 2009, through 
December 31, 2013, or for the taxable years ending December 31, 2008, 
through December 31, 2012.

    (vii) Organizations reclassified as private foundations. (A) New 
publicly supported organizations. If a new publicly supported 
organization described under section 170(b)(1)(A)(vi) cannot meet the 
requirements of the 33\1/3\ percent test of paragraph (f)(2) or the 
facts and circumstances test of paragraph (f)(3) for its sixth taxable 
year under the general definition of normally set forth in paragraphs 
(f)(4)(i), (f)(4)(ii), and (f)(4)(iii) of this section or under the 
alternate rule set forth in paragraph (f)(4)(v) of this section 
(effectively failing to meet a public support test for both its fifth 
and sixth taxable years), it will be treated as a private foundation as 
of the first day of its sixth taxable year only for purposes of sections 
507, 4940, and 6033. Such an organization must file a Form 990-PF, 
``Return of Private Foundation or Section 4947(a)(1) Nonexempt 
Charitable Trust Treated as a Private Foundation,'' and will be liable 
for the net investment tax imposed by section 4940 and, if applicable, 
the private foundation termination tax imposed by section 507(c), for 
its sixth taxable year. For succeeding taxable years, the organization 
will be treated as a private foundation for all purposes.
    (B) Other publicly supported organizations. A publicly supported 
organization described in section 170(b)(1)(A)(vi) (other than a new 
publicly supported organization described in paragraph (f)(4)(vii)(A) of 
this section) that has failed to meet both the 33\1/3\ percent support 
test and the facts and circumstances test for any two consecutive 
taxable years will be treated as a private foundation as of the first 
day of the second consecutive taxable year only for purposes of sections 
507, 4940, and 6033. Such an organization must file a Form 990-PF, 
``Return of Private Foundation or Section 4947(a)(1) Nonexempt 
Charitable Trust Treated as a Private Foundation,'' and will be liable 
for the net investment tax imposed by section 4940 and, if applicable, 
the private foundation termination tax imposed by section 507(c), for 
the second consecutive failed taxable year. For succeeding taxable 
years, the organization will be treated as a private foundation for all 
purposes.
    (5) Determinations of foundation classification and reliance. (i) A 
ruling or determination letter that an organization is described in 
section 170(b)(1)(A)(vi) may be issued to an organization. Such 
determination may be made in conjunction with the recognition of the 
organization's tax-exempt status or at such other time as the 
organization believes it is described in section 170(b)(1)(A)(vi). The 
ruling or determination letter that the organization is described in 
section 170(b)(1)(A)(vi) may be revoked if, upon examination, the 
organization has not met the requirements of paragraph (f) of this 
section. The ruling or determination letter that the organization is 
described in section 170(b)(1)(A)(vi) also may be revoked if the 
organization's application for a ruling or determination contained one 
or more material misstatements or omissions of fact or if such 
application was part of a scheme or plan to avoid or evade any provision 
of the Internal Revenue Code. The revocation of the determination that 
an organization is described in

[[Page 91]]

section 170(b)(1)(A)(vi) does not preclude revocation of the 
determination that the organization is described in section 501(c)(3).
    (ii) Status of grantors or contributors. For purposes of sections 
170, 507, 545(b)(2), 642(c), 4942, 4945, 4966, 2055, 2106(a)(2), and 
2522, grantors or contributors may rely upon a determination letter or 
ruling that an organization is described in section 170(b)(1)(A)(vi) 
until the IRS publishes notice of a change of status (for example, in 
the Internal Revenue Bulletin or Publication 78, ``Cumulative List of 
Organizations described in Section 170(c) of the Internal Revenue Code 
of 1986,'' which can be searched at http://www.irs.gov.) For this 
purpose, grantors or contributors also may rely on an advance ruling 
that expires on or after June 9, 2008. However, a grantor or contributor 
may not rely on such an advance ruling or any determination letter or 
ruling if the grantor or contributor was responsible for, or aware of, 
the act or failure to act that resulted in the organization's loss of 
classification under section 170(b)(1)(A)(vi) or acquired knowledge that 
the IRS had given notice to such organization that it would be deleted 
from such classification.
    (iii) Reliance by grantors or contributors. A grantor or 
contributor, other than one of the organization's founders, creators, or 
foundation managers (within the meaning of section 4946(b)), will not be 
considered to be responsible for, or aware of, the act or failure to act 
that resulted in the loss of the organization's ``publicly supported'' 
classification under section 170(b)(1)(A)(vi), if such grantor or 
contributor has made such grant or contribution in reliance upon a 
written statement by the grantee organization that such grant or 
contribution will not result in the loss of such organization's 
classification as a publicly supported organization as described in 
section 170(b)(1)(A)(vi). Such statement must be signed by a responsible 
officer of the grantee organization and must set forth sufficient 
information, including a summary of the pertinent financial data for the 
five taxable years immediately preceding the current taxable year, to 
assure a reasonably prudent person that his grant or contribution will 
not result in the loss of the grantee organization's classification as a 
publicly supported organization as described in section 
170(b)(1)(A)(vi). If a reasonable doubt exists as to the effect of such 
grant or contribution, or if the grantor or contributor is one of the 
organization's founders, creators, or foundation managers, the procedure 
set forth in paragraph (f)(6)(iv) of this section for requesting a 
determination from the IRS may be followed by the grantee organization 
for the protection of the grantor or contributor.
    (6) Definition of support; meaning of general public--(i) In 
general. In determining whether the 33\1/2\ percent support test or the 
10 percent support limitation described in paragraph (f)(3)(i) of this 
section is met, contributions by an individual, trust, or corporation 
shall be taken into account as support from direct or indirect 
contributions from the general public only to the extent that the total 
amount of the contributions by any such individual, trust, or 
corporation during the period described in paragraph (f)(4)(i) or 
paragraph (f)(4)(ii) of this section does not exceed two percent of the 
organization's total support for such period, except as provided in 
paragraph (f)(6)(ii) of this section. Therefore, for example, any 
contribution by one individual will be included in full in the 
denominator of the fraction determining the 33\1/2\ percent support or 
the 10 percent support limitation, but will be includible in the 
numerator of such fraction only to the extent that such amount does not 
exceed two percent of the denominator. In applying the two percent 
limitation, all contributions made by a donor and by any person or 
persons standing in a relationship to the donor that is described in 
section 4946(a)(1)(C) through (a)(1)(G) and the related regulations 
shall be treated as made by one person. The two percent limitation shall 
not apply to support received from governmental units referred to in 
section 170(c)(1) or to contributions from organizations described in 
section 170(b)(1)(A)(vi), except as provided in paragraph (f)(6)(v) of 
this section. For purposes of paragraphs (f)(2), (f)(3)(i), and 
(f)(7)(iii)(A)(2) of this section, the

[[Page 92]]

term indirect contributions from the general public includes 
contributions received by the organization from organizations (such as 
section 170(b)(1)(A)(vi) organizations) that normally receive a 
substantial part of their support from direct contributions from the 
general public, except as provided in paragraph (f)(6)(v) of this 
section. See the examples in paragraph (f)(9) of this section for the 
application of this paragraph (f)(6)(i). For purposes of this paragraph 
(f), the term contributions includes qualified sponsorship payments (as 
defined in Sec. 1.513-4) in the form of money or property (but not 
services).
    (ii) Exclusion of unusual grants. (A) For purposes of applying the 
two percent limitation described in paragraph (f)(6)(i) of this section 
to determine whether the 33\1/3\ percent support test or the 10 percent 
support limitation in paragraph (f)(3)(i) of this section is satisfied, 
one or more contributions may be excluded from both the numerator and 
the denominator of the applicable support fraction if such contributions 
meet the requirements of paragraph (f)(6)(iii) of this section. The 
exclusion provided by this paragraph (f)(6)(ii) is generally intended to 
apply to substantial contributions or bequests from disinterested 
parties, which contributions or bequests--
    (1) Are attracted by reason of the publicly supported nature of the 
organization;
    (2) Are unusual or unexpected with respect to the amount thereof; 
and
    (3) Would, by reason of their size, adversely affect the status of 
the organization as normally being publicly supported for the applicable 
period described in paragraph (f)(4) of this section.
    (B) In the case of a grant (as defined in Sec. 1.509(a)-3(g)) that 
meets the requirements of this paragraph (f)(6)(ii), if the terms of the 
granting instrument require that the funds be paid to the recipient 
organization over a period of years, the grant amounts received by the 
organization may be excluded for such year or years in which they would 
otherwise be includible in computing support under the method of 
accounting on the basis of which the organization regularly computes its 
income in keeping its books under section 446. However, no item of gross 
investment income may be excluded under this paragraph (f)(6). The 
provisions of this paragraph (f)(6) shall apply to exclude unusual 
grants made during any of the applicable periods described in paragraph 
(f)(4) or paragraph (f)(6) of this section. See paragraph (f)(6)(iv) of 
this section as to reliance by a grantee organization upon an unusual 
grant ruling under this paragraph (f)(6).
    (iii) Determining factors. In determining whether a particular 
contribution may be excluded under paragraph (f)(6)(ii) of this section, 
all pertinent facts and circumstances will be taken into consideration. 
No single factor will necessarily be determinative. For some of the 
factors similar to the factors to be considered, see Sec. 1.509(a)-
3(c)(4).
    (iv) Grantors and contributors. Prior to the making of any grant or 
contribution that will allegedly meet the requirements for exclusion 
under paragraph (f)(6)(ii) of this section, a potential grantee 
organization may request a determination whether such grant or 
contribution may be so excluded. Requests for such determination may be 
filed by the grantee organization in the time and manner specified by 
revenue procedure or other guidance published in the Internal Revenue 
Bulletin. The issuance of such determination will be at the sole 
discretion of the Commissioner. The organization must submit all 
information necessary to make a determination on the factors referred to 
in paragraph (f)(6)(iii) of this section. If a favorable determination 
is issued, such determination may be relied upon by the grantor or 
contributor of the particular contribution in question for purposes of 
sections 170, 507, 545(b)(2), 642(c), 4942, 4945, 4966, 2055, 
2106(a)(2), and 2522 and by the grantee organization for purposes of 
paragraph (f)(6)(ii) of this section.
    (v) Grants from public charities. Pursuant to paragraph (f)(6)(i) of 
this section, contributions received from a governmental unit or from a 
section 170(b)(1)(A)(vi) organization are not subject to the two percent 
limitation described in paragraph (f)(6)(i) of this section unless such 
contributions represent amounts which have been expressly or impliedly 
earmarked by a

[[Page 93]]

donor to such governmental unit or section 170(b)(1)(A)(vi) organization 
as being for, or for the benefit of, the particular organization 
claiming section 170(b)(1)(A)(vi) status. See Sec. 1.509(a)-3(j)(3) for 
examples illustrating the rules of this paragraph (f)(6)(v).
    (7) Definition of support; special rules and meaning of terms--(i) 
Definition of support. For purposes of this paragraph (f), the term 
``support'' shall be as defined in section 509(d) (without regard to 
section 509(d)(2)). The term ``support'' does not include--
    (A) Any amounts received from the exercise or performance by an 
organization of its charitable, educational, or other purpose or 
function constituting the basis for its exemption under section 501(a). 
In general, such amounts include amounts received from any activity the 
conduct of which is substantially related to the furtherance of such 
purpose or function (other than through the production of income); or
    (B) Contributions of services for which a deduction is not 
allowable.
    (ii) For purposes of the 33\1/3\ percent support test and the 10 
percent support limitation in paragraph (f)(3)(i) of this section, all 
amounts received that are described in paragraph (f)(7)(i)(A) or 
paragraph (f)(7)(i)(B) of this section are to be excluded from both the 
numerator and the denominator of the fractions determining compliance 
with such tests, except as provided in paragraph (f)(7)(iii) of this 
section.
    (iii) Organizations dependent primarily on gross receipts from 
related activities. (A) Notwithstanding the provisions of paragraph 
(f)(7)(i) of this section, an organization will not be treated as 
satisfying the 33\1/3\ percent support test or the 10 percent support 
limitation in paragraph (f)(3)(i) of this section if it receives--
    (1) Almost all of its support (as defined in section 509(d)) from 
gross receipts from related activities; and
    (2) An insignificant amount of its support from governmental units 
(without regard to amounts referred to in paragraph (f)(7)(i)(A) of this 
section) and contributions made directly or indirectly by the general 
public.
    (B) Example. The application of this paragraph (f)(7)(iii) may be 
illustrated by the following example:

    Example. Z, an organization described in section 501(c)(3), is 
controlled by A, its president. Z received $500,000 during the period 
consisting of the current taxable year and the four immediately 
preceding taxable years under a contract with the Department of 
Transportation, pursuant to which Z has engaged in research to improve a 
particular vehicle used primarily by the Federal government. During this 
same period, the only other support received by Z consisted of $5,000 in 
small contributions primarily from Z's employees and business 
associates. The $500,000 amount constitutes support under sections 
509(d)(2) and 509(a)(2)(A). Under these circumstances, Z meets the 
conditions of paragraphs (f)(7)(iii)(A)(1) and (f)(7)(iii)(A)(2) of this 
section and will not be treated as meeting the requirements of either 
the 33\1/3\ percent support test or the facts and circumstances test. As 
to the rules applicable to organizations that fail to qualify under 
section 170(b)(1)(A)(vi) because of the provisions of this paragraph 
(f)(7)(iii), see section 509(a)(2) and the related regulations. For the 
distinction between gross receipts (as referred to in section 509(d)(2)) 
and gross investment income (as referred to in section 509(d)(4)), see 
Sec. 1.509(a)-3(m).

    (iv) Membership fees. For purposes of this paragraph (f)(7), the 
term support shall include ``membership fees'' within the meaning of 
Sec. 1.509(a)-3(h) (that is, if the basic purpose for making a payment 
is to provide support for the organization rather than to purchase 
admissions, merchandise, services, or the use of facilities).
    (8) Support from a governmental unit. (i) For purposes of the 33\1/
3\ percent support test and the 10 percent support limitation described 
in paragraph (f)(3)(i) of this section, the term support from a 
governmental unit includes any amounts received from a governmental 
unit, including donations or contributions and amounts received in 
connection with a contract entered into with a governmental unit for the 
performance of services or in connection with a government research 
grant. However, such amounts will not constitute support from a 
governmental unit for such purposes if they constitute amounts received 
from the exercise or performance of the organization's exempt functions 
as provided in paragraph (f)(7)(i)(A) of this section.
    (ii) For purposes of paragraph (f)(8)(i) of this section, any amount 
paid by a governmental unit to an organization is not to be treated as 
received from

[[Page 94]]

the exercise or performance of its charitable, educational, or other 
purpose or function constituting the basis for its exemption under 
section 501(a) (within the meaning of paragraph (f)(7)(i)(A) of this 
section) if the purpose of the payment is primarily to enable the 
organization to provide a service to, or maintain a facility for, the 
direct benefit of the public (regardless of whether part of the expense 
of providing such service or facility is paid for by the public), rather 
than to serve the direct and immediate needs of the payor. For example--
    (A) Amounts paid for the maintenance of library facilities which are 
open to the public;
    (B) Amounts paid under government programs to nursing homes or homes 
for the aged in order to provide health care or domiciliary services to 
residents of such facilities; and
    (C) Amounts paid to child placement or child guidance organizations 
under government programs for services rendered to children in the 
community, are considered payments the purpose of which is primarily to 
enable the recipient organization to provide a service or maintain a 
facility for the direct benefit of the public, rather than to serve the 
direct and immediate needs of the payor. Furthermore, any amount 
received from a governmental unit under circumstances such that the 
amount would be treated as a ``grant'' within the meaning of Sec. 
1.509(a)-3(g) will generally constitute ``support from a governmental 
unit'' described in this paragraph (f)(8), rather than an amount 
described in paragraph (f)(7)(i)(A) of this section.
    (9) Examples. The application of paragraphs (f)(1) through (f)(8) of 
this section may be illustrated by the following examples:

    Example 1. (i) M is recognized as an organization described in 
section 501(c)(3). For the years 2008 through 2012 (the applicable 
period with respect to the taxable year 2012 under paragraph (f)(4) of 
this section), M received support (as defined in paragraphs (f)(6) 
through (8) of this section) of $600,000 from the following sources:

Investment income............................................   $300,000
City R (a governmental unit described in section 170(c)(1))..     40,000
United Fund (an organization described in section                 40,000
 170(b)(1)(A)(vi))...........................................
Contributions (including six contributions in excess of the      220,000
 two-percent limit, totaling $170,000).......................
                                                              ----------
    Total support............................................    600,000
 

    (ii) With respect to the taxable year 2012, M's public support is 
computed as follows:

Support from a governmental unit described in section            $40,000
 170(c)(1)...................................................
Indirect contributions from the general public (United Fund).     40,000
Contributions by various donors that were not in excess of        50,000
 $12,000, or two percent of total support....................
Six contributions that were each in excess of $12,000, or two     72,000
 percent of total support, up to the two-percent limitation,
 6 x $12,000.................................................
                                                              ----------
    Total support............................................    202,000
 

    (iii) M's support from governmental units referred to in section 
170(c)(1) and from direct and indirect contributions from the general 
public (as defined in paragraph (f)(6) of this section) with respect to 
the taxable year 2012 normally exceeds 33\1/3\ percent of M's total 
support ($202,000/$600,000 = 33.67 percent) for the applicable period 
(2008 through 2012). M meets the 33\1/3\ percent support test with 
respect to 2012 and is therefore publicly supported for the taxable 
years 2012 and 2013.


[[Page 95]]


    Example 2. (i) N is recognized as an organization described in 
section 501(c)(3). It was created to maintain public gardens containing 
botanical specimens and displaying statuary and other art objects. The 
facilities, works of art, and a large endowment were all contributed by 
a single contributor. The members of the governing body of the 
organization are unrelated to its creator. The gardens are open to the 
public without charge and attract a substantial number of visitors each 
year. For the current taxable year and the four taxable years 
immediately preceding the current taxable year, 95 percent of the 
organization's total support was received from investment income from 
its original endowment. N also maintains a membership society that is 
supported by members of the general public who wish to contribute to the 
upkeep of the gardens by paying a small annual membership fee. Over the 
five-year period in question, these fees from the general public 
constituted the remaining five percent of the organization's total 
support for such period.
    (ii) Under these circumstances, N does not meet the 33\1/3\ percent 
support test for its current taxable year. Furthermore, because only 
five percent of its total support is, with respect to the current 
taxable year, normally received from the general public, N does not 
satisfy the 10 percent support limitation described in paragraph 
(f)(3)(i) of this section and therefore does not qualify as publicly 
supported under the facts and circumstances test. Because N has failed 
to satisfy the 10 percent support limitation under paragraph (f)(3)(i) 
of this section, none of the other requirements or factors set forth in 
paragraphs (f)(3)(iii)(A) through (f)(3)(iii)(E) of this section can be 
considered in determining whether N qualifies as a publicly supported 
organization. For its current taxable year, therefore, N is not an 
organization described in section 170(b)(1)(A)(vi).
    Example 3. (i) O, an art museum, is recognized as an organization 
described in section 501(c)(3). In 1930, O was founded in S City by the 
members of a single family to collect, preserve, interpret, and display 
to the public important works of art. O is governed by a Board of 
Trustees that originally consisted almost entirely of members of the 
founding family. However, since 1945, members of the founding family or 
persons standing in a relationship to the members of such family 
described in section 4946(a)(1)(C) through (G) have annually constituted 
less than one-fifth of the Board of Trustees. The remaining board 
members are citizens of S City from a variety of professions and 
occupations who represent the interests and views of the people of S 
City in the activities carried on by the organization rather than the 
personal or private interests of the founding family. O solicits 
contributions from the general public and, for the current taxable year 
and each of the four taxable years immediately preceding the current 
taxable year, O has received total contributions (in small sums of less 
than $100, none of which exceeds two percent of O's total support for 
such period) in excess of $10,000. These contributions from the general 
public (as defined in paragraph (f)(6) of this section) represent 25 
percent of the organization's total support for such five-year period. 
For this same period, investment income from several large endowment 
funds has constituted 75 percent of O's total support. O expends 
substantially all of its annual income for its exempt purposes and thus 
depends upon the funds it annually solicits from the public as well as 
its investment income in order to carry out its activities on a normal 
and continuing basis and to acquire new works of art. O has, for the 
entire period of its existence, been open to the public and more than 
300,000 people (from S City and elsewhere) have visited the museum in 
each of the current taxable year and the four immediately preceding 
taxable years.
    (ii) Under these circumstances, O does not meet the 33\1/3\ percent 
support test for its current year because it has received only 25 
percent of its total support for the applicable five-year period from 
the general public. However, under the facts set forth above, O meets 
the 10 percent support limitation under paragraph (f)(3)(i) of this 
section, as well as the requirements of paragraph (f)(3)(ii) of this 
section. Under all of the facts set forth in this example, O is 
considered as meeting the requirements of the facts and circumstances 
test on the basis of satisfying paragraphs (f)(3)(i) and (f)(3)(ii) of 
this section and the factors set forth in paragraphs (f)(3)(iii)(A) 
through (f)(3)(iii)(D) of this section. O is therefore publicly 
supported for its current taxable year and the immediately succeeding 
taxable year.
    Example 4. (i) In 1960, the P Philharmonic Orchestra was organized 
in T City through the combined efforts of a local music society and a 
local women's club to present to the public a wide variety of musical 
programs intended to foster music appreciation in the community. P is 
recognized as an organization described in section 501(c)(3). The 
orchestra is composed of professional musicians who are paid by the 
association. Twelve performances open to the public are scheduled each 
year. A small admission fee is charged for each of these performances. 
In addition, several performances are staged annually without charge. 
During the current taxable year and the four taxable years immediately 
preceding the current taxable year, P has received separate 
contributions of $200,000 each from A and B (not members of a single 
family) and support of $120,000 from the T Community Chest, a public 
federated fundraising organization operating in T City. P depends on 
these funds in order to carry out its activities and will continue to

[[Page 96]]

depend on contributions of this type to be made in the future. P has 
also begun a fundraising campaign in an attempt to expand its activities 
for the coming years. P is governed by a Board of Directors comprised of 
five individuals. A faculty member of a local college, the president of 
a local music society, the head of a local banking institution, a 
prominent doctor, and a member of the governing body of the local 
chamber of commerce currently serve on P's Board and represent the 
interests and views of the community in the activities carried on by P.
    (ii) With respect to P's current taxable year, P's sources of 
support are computed on the basis of the current taxable year and the 
four taxable years immediately preceding the current taxable year, as 
follows:

Contributions................................................   $520,000
Receipts from performances...................................    100,000
                                                              ----------
    Total support............................................    620,000
Less:
Receipts from performances (excluded under paragraph             100,000
 (f)(7)(i)(A) of this section)...............................
                                                              ----------
    Total support for purposes of paragraphs (f)(2) and          520,000
     (f)(3)(i) of this section...............................
 

    (iii) For purposes of paragraphs (f)(2) and (f)(3)(i) of this 
section, P's public support is computed as follows:

T Community Chest (indirect support from the general public).    120,000
Two contributions from A & B (each in excess of $10,400--2        20,800
 percent of total support) 2 x $10,400.......................
                                                              ----------
    Total....................................................    140,800
 

    (iv) Under these circumstances, P does not meet the 33\1/3\ percent 
support test for its current year because it has received only 27 
percent of its total support ($140,800/$520,000) for the applicable 
five-year period from the general public. However, under the facts set 
forth above, P meets the 10 percent support limitation under paragraph 
(f)(3)(i) of this section, as well as the requirements of paragraph 
(f)(3)(ii) of this section. Under all of the facts set forth in this 
example, P is considered as meeting the requirements of the facts and 
circumstances test on the basis of satisfying paragraphs (f)(3)(i) and 
(f)(3)(ii) of this section and the factors set forth in paragraphs 
(f)(3)(iii)(A) through (f)(3)(iii)(D) of this section. P is therefore 
publicly supported for its current taxable year and the immediately 
succeeding taxable year.
    Example 5. (i) Q is recognized as an organization described in 
section 501(c)(3). It is a philanthropic organization founded in 1965 by 
C for the purpose of making annual contributions to worthy charities. C 
created Q as a charitable trust by the transfer of appreciated 
securities worth $500,000 to Q. Pursuant to the trust agreement, C and 
two other members of his family are the sole trustees of Q and are 
vested with the right to appoint successor trustees. In each of the 
current taxable year and the four taxable years immediately preceding 
the current taxable year, Q received $12,000 in investment income from 
its original endowment. Each year Q makes a solicitation for funds by 
operating a charity ball at C's residence. Guests are invited and 
requested to make contributions of $100 per couple. During the five-year 
period at issue, $15,000 was received from the proceeds of these events. 
C and his family have also made contributions to Q of $25,000 over the 
five-year period at issue. Q makes disbursements each year of 
substantially all of its net income to the public charities chosen by 
the trustees.
    (ii) Q's sources of support for the current taxable year and the 
four taxable years immediately preceding the current taxable year as 
follows:

Investment income............................................    $60,000
Contributions................................................     40,000
                                                              ----------
    Total support............................................    100,000
 


[[Page 97]]

    (iii) For purposes of paragraphs (f)(2) and (f)(3)(i) of this 
section, Q's public support is computed as follows:

Contributions from the general public........................   $ 15,000
C's contribution (in excess of $ 2,000--2 percent of total         2,000
 support) 1 x $2,000.........................................
                                                              ----------
    Total....................................................     17,000
 

    (iv) Under these circumstances, Q does not meet the 33\1/3\ percent 
support test for its current year because it has received only 17 
percent of its total support ($17,000/$100,000) for the applicable five-
year period from the general public. Thus, Q's classification as a 
``publicly supported'' organization depends on whether it meets the 
requirements of the facts and circumstances test. Even though it 
satisfies the 10 percent support limitation under paragraph (f)(3)(i) of 
this section, its method of solicitation makes it questionable whether Q 
satisfies the requirements of paragraph (f)(3)(ii) of this section. 
Because of its method of operating, Q also has a greater burden of 
establishing its publicly supported nature under paragraph 
(f)(3)(iii)(A) of this section. Based upon the foregoing facts and 
circumstances, including Q's failure to receive favorable consideration 
under the factors set forth in paragraphs (f)(3)(iii)(B), 
(f)(3)(iii)(C), and (f)(3)(iii)(D) of this section, Q does not satisfy 
the facts and circumstances test.

    (10) Community trust; introduction. Community trusts have often been 
established to attract large contributions of a capital or endowment 
nature for the benefit of a particular community or area, and often such 
contributions have come initially from a small number of donors. While 
the community trust generally has a governing body comprised of 
representatives of the particular community or area, its contributions 
are often received and maintained in the form of separate trusts or 
funds, which are subject to varying degrees of control by the governing 
body. To qualify as a ``publicly supported'' organization, a community 
trust must meet the 33\1/3\ percent support test, or, if it cannot meet 
that test, be organized and operated so as to attract new and additional 
public or governmental support on a continuous basis sufficient to meet 
the facts and circumstances test. Such facts and circumstances test 
includes a requirement of attraction of public support in paragraph 
(f)(3)(ii) of this section which, as applied to community trusts, 
generally will be satisfied if they seek gifts and bequests from a wide 
range of potential donors in the community or area served, through banks 
or trust companies, through attorneys or other professional persons, or 
in other appropriate ways that call attention to the community trust as 
a potential recipient of gifts and bequests made for the benefit of the 
community or area served. A community trust is not required to engage in 
periodic, community-wide, fundraising campaigns directed toward 
attracting a large number of small contributions in a manner similar to 
campaigns conducted by a community chest or united fund. Paragraph 
(f)(11) of this section provides rules for determining the extent to 
which separate trusts or funds may be treated as component parts of a 
community trust, fund, or foundation (herein collectively referred to as 
a ``community trust,'' and sometimes referred to as an ``organization'') 
for purposes of meeting the requirements of this paragraph for 
classification as a publicly supported organization. Paragraph (f)(12) 
of this section contains rules for trusts or funds that are prevented 
from qualifying as component parts of a community trust by paragraph 
(f)(11) of this section.
    (11) Community trusts; requirements for treatment as a single 
entity--(i) General rule. For purposes of sections 170, 501, 507, 508, 
509, and Chapter 42, any organization that meets the requirements 
contained in paragraphs (f)(11)(iii) through (f)(11)(vi) of this section 
will be treated as a single entity, rather than as an aggregation of 
separate funds, and except as otherwise provided, all funds associated 
with such organization (whether a trust, not-for-profit corporation, 
unincorporated association, or a combination thereof)

[[Page 98]]

which meet the requirements of paragraph (f)(11)(ii) of this section 
will be treated as component parts of such organization.
    (ii) Component part of a community trust. In order to be treated as 
a component part of a community trust referred to in this paragraph 
(f)(11) (rather than as a separate trust or not-for-profit corporation 
or association), a trust or fund:
    (A) Must be created by a gift, bequest, legacy, devise, or other 
transfer to a community trust which is treated as a single entity under 
this paragraph (f)(11); and
    (B) May not be directly or indirectly subjected by the transferor to 
any material restriction or condition (within the meaning of Sec. 
1.507-2(a)(7)) with respect to the transferred assets. For purposes of 
this paragraph (f)(11)(ii)(B), if the transferor is not a private 
foundation, the provisions of Sec. 1.507-2(a)(7) shall be applied to 
the trust or fund as if the transferor were a private foundation 
established and funded by the person establishing the trust or fund and 
such foundation transferred all its assets to the trust or fund. Any 
transfer made to a fund or trust which is treated as a component part of 
a community trust under this paragraph (f)(11)(ii) will be treated as a 
transfer made ``to'' a ``publicly supported'' community trust for 
purposes of sections 170(b)(1)(A) and 507(b)(1)(A) if such community 
trust meets the requirements of section 170(b)(1)(A)(vi) as a ``publicly 
supported'' organization at the time of the transfer, except as provided 
in paragraph (f)(5)(ii) of this section or Sec. Sec. 1.508-1(b)(4) and 
1.508-1(b)(6) (relating, generally, to reliance by grantors and 
contributors). See also paragraphs (f)(12)(ii) and (f)(12)(iii) of this 
section for special provisions relating to split-interest trusts and 
certain private foundations described in section 170(b)(1)(F)(iii).
    (iii) Name. The organization must be commonly known as a community 
trust, fund, foundation, or other similar name conveying the concept of 
a capital or endowment fund to support charitable activities (within the 
meaning of section 170(c)(1) or section 170(c)(2)(B)) in the community 
or area it serves.
    (iv) Common instrument. All funds of the organization must be 
subject to a common governing instrument or a master trust or agency 
agreement (herein referred to as the ``governing instrument''), which 
may be embodied in a single document or several documents containing 
common language. Language in an instrument of transfer to the community 
trust making a fund subject to the community trust's governing 
instrument or master trust or agency agreement will satisfy the 
requirements of this paragraph (f)(11)(iv). In addition, if a community 
trust adopts a new governing instrument (or creates a corporation) to 
put into effect new provisions (applying to future transfers to the 
community trust), the adoption of such new governing instrument (or 
creation of a corporation with a governing instrument) which contains 
common language with the existing governing instrument shall not 
preclude the community trust from meeting the requirements of this 
paragraph (f)(11)(iv).
    (v) Common governing body. (A) The organization must have a common 
governing body or distribution committee (herein referred to as the 
``governing body'') which either directs or, in the case of a fund 
designated for specified beneficiaries, monitors the distribution of all 
of the funds exclusively for charitable purposes (within the meaning of 
section 170(c)(1) or section 170(c)(2)(B)). For purposes of this 
paragraph (f)(11)(v), a fund is designated for specified beneficiaries 
only if no person is left with the discretion to direct the distribution 
of the fund.
    (B) Powers of modification and removal. The fact that the exercise 
of any power described in this paragraph (f)(11)(v)(B) is reviewable by 
an appropriate State authority will not preclude the community trust 
from meeting the requirements of this paragraph (f)(11)(v)(B). Except as 
provided in paragraph (f)(11)(v)(C) of this section, the governing body 
must have the power in the governing instrument, the instrument of 
transfer, the resolutions or by-laws of the governing body, a written 
agreement, or otherwise--
    (1) To modify any restriction or condition on the distribution of 
funds for any specified charitable purposes or to

[[Page 99]]

specified organizations if in the sole judgment of the governing body 
(without the necessity of the approval of any participating trustee, 
custodian, or agent), such restriction or condition becomes, in effect, 
unnecessary, incapable of fulfillment, or inconsistent with the 
charitable needs of the community or area served;
    (2) To replace any participating trustee, custodian, or agent for 
breach of fiduciary duty under State law; and
    (3) To replace any participating trustee, custodian, or agent for 
failure to produce a reasonable (as determined by the governing body) 
return of net income (within the meaning of paragraph (f)(11)(v)(F) of 
this section) over a reasonable period of time (as determined by the 
governing body).
    (C) Transitional rule--(1) Notwithstanding paragraph (f)(11)(v)(B) 
of this section, if a community trust meets the requirements of 
paragraph (f)(11)(v)(C)(3) of this section, then in the case of any 
instrument of transfer which is executed before July 19, 1977, and is 
not revoked or amended thereafter (with respect to any dispositive 
provision affecting the transfer to the community trust), and in the 
case of any instrument of transfer which is irrevocable on January 19, 
1982, the governing body must have the power to cause proceedings to be 
instituted (by request to the appropriate State authority)--
    (i) To modify any restriction or condition on the distribution of 
funds for any specified charitable purposes or to specified 
organizations if in the judgment of the governing body such restriction 
or condition becomes, in effect, unnecessary, incapable of fulfillment, 
or inconsistent with the charitable needs of the community or area 
served; and
    (ii) To remove any participating trustee, custodian, or agent for 
breach of fiduciary duty under State law.
    (2) The necessity for the governing body to obtain the approval of a 
participating trustee to exercise the powers described in paragraph 
(f)(11)(v)(C)(1) of this section shall be treated as not preventing the 
governing body from having such power, unless (and until) such approval 
has been (or is) requested by the governing body and has been (or is) 
denied.
    (3) Paragraph (f)(11)(v)(C)(1) of this section shall not apply 
unless the community trust meets the requirements of paragraph 
(f)(11)(v)(B) of this section, with respect to funds other than those 
under instruments of transfer described in the first sentence of such 
paragraph (f)(11)(v)(C)(1) of this section, by January 19, 1978, or such 
later date as the Commissioner may provide for such community trust, and 
unless the community trust does not, once it so complies, thereafter 
solicit for funds that will not qualify under the requirements of 
paragraph (f)(11)(v)(B) of this section.
    (D) Inconsistent State law--(1) For purposes of paragraphs 
(f)(11)(v)(B)(1), (f)(11)(v)(B)(2), (f)(11)(v)(B)(3), 
(f)(11)(v)(C)(1)(i), (f)(11)(v)(C)(1)(ii), and (f)(11)(v)(E) of this 
section, if a power described in such a provision is inconsistent with 
State law even if such power were expressly granted to the governing 
body by the governing instrument and were accepted without limitation 
under an instrument of transfer, then the community trust will be 
treated as meeting the requirements of such a provision if it meets such 
requirements to the fullest extent possible consistent with State law 
(if such power is or had been so expressly granted).
    (2) For example, if, under the conditions of paragraph 
(f)(11)(v)(D)(1) of this section, the power to modify is inconsistent 
with State law, but the power to institute proceedings to modify, if so 
expressly granted, would be consistent with State law, the community 
trust will be treated as meeting such requirements to the fullest extent 
possible if the governing body has the power (in the governing 
instrument or otherwise) to institute proceedings to modify a condition 
or restriction. On the other hand, if in such a case the community trust 
has only the power to cause proceedings to be instituted to modify a 
condition or restriction, it will not be treated as meeting such 
requirements to the fullest extent possible.
    (3) In addition, if, for example, under the conditions of paragraph 
(f)(11)(v)(D)(1) of this section, the

[[Page 100]]

power to modify and the power to institute proceedings to modify a 
condition or restriction is inconsistent with State law, but the power 
to cause such proceedings to be instituted would be consistent with 
State law, if it were expressly granted in the governing instrument and 
if the approval of the State Attorney General were obtained, then the 
community trust will be treated as meeting such requirements to the 
fullest extent possible if it has the power (in the governing instrument 
or otherwise) to cause such proceedings to be instituted, even if such 
proceedings can be instituted only with the approval of the State 
Attorney General.
    (E) Exercise of powers. The governing body shall (by resolution or 
otherwise) commit itself to exercise the powers described in paragraphs 
(f)(11)(v)(B), (f)(11)(v)(C), and (f)(11)(v)(D) of this section in the 
best interests of the community trust. The governing body will be 
considered not to be so committed where it has grounds to exercise such 
a power and fails to exercise it by taking appropriate action. Such 
appropriate action may include, for example, consulting with the 
appropriate State authority prior to taking action to replace a 
participating trustee.
    (F) Reasonable return. In addition to the requirements of paragraphs 
(f)(11)(v)(B), (f)(11)(v)(C), (f)(11)(v)(D), or (f)(11)(v)(E) of this 
section, the governing body shall (by resolution or otherwise) commit 
itself to obtain information and take other appropriate steps with the 
view to seeing that each participating trustee, custodian, or agent, 
with respect to each restricted trust or fund that is, and with respect 
to the aggregate of the unrestricted trusts or funds that are, a 
component part of the community trust, administers such trust or fund in 
accordance with the terms of its governing instrument and accepted 
standards of fiduciary conduct to produce a reasonable return of net 
income (or appreciation where not inconsistent with the community 
trust's need for current income), with due regard to safety of 
principal, in furtherance of the exempt purposes of the community trust 
(except for assets held for the active conduct of the community trust's 
exempt activities). In the case of a low return of net income (and, 
where appropriate, appreciation), the IRS will examine carefully whether 
the governing body has, in fact, committed itself to take the 
appropriate steps. For purposes of this paragraph (f)(11)(v)(F), any 
income that has been designated by the donor of the gift or bequest to 
which such income is attributable as being available only for the use or 
benefit of a broad charitable purpose, such as the encouragement of 
higher education or the promotion of better health care in the 
community, will be treated as unrestricted. However, any income that has 
been designated for the use or benefit of a named charitable 
organization or agency or for the use or benefit of a particular class 
of charitable organizations or agencies, the members of which are 
readily ascertainable and are less than five in number, will be treated 
as restricted.
    (vi) Common reports. The organization must prepare periodic 
financial reports treating all of the funds which are held by the 
community trust, either directly or in component parts, as funds of the 
organization.
    (12) Community trusts; treatment of trusts and not-for-profit 
corporations and associations not included as components. (i) For 
purposes of sections 170, 501, 507, 508, 509, and Chapter 42, any trust 
or not-for-profit corporation or association that is alleged to be a 
component part of a community trust, but that fails to meet the 
requirements of paragraph (f)(11)(ii) of this section, shall not be 
treated as a component part of a community trust and, if a trust, shall 
be treated as a separate trust and be subject to the provisions of 
section 501, section 4947(a)(1), or section 4947(a)(2), as the case may 
be. If such organization is a not-for-profit corporation or association, 
it will be treated as a separate entity, and, if it is described in 
section 501(c)(3), it will be treated as a private foundation unless it 
is described in section 509(a)(1), section 509(a)(2), section 509(a)(3), 
or section 509(a)(4). In the case of a fund that is ultimately treated 
as not being a component part of a community trust pursuant to this 
paragraph (f)(12), if the

[[Page 101]]

Forms 990 filed annually by the community trust included financial 
information with respect to such fund and treated such fund in the same 
manner as other component parts thereof, such returns filed by the 
community trust prior to the taxable year in which the Commissioner 
notifies such fund that it will not be treated as a component part will 
be treated as its separate return for purpose of Subchapter A of Chapter 
61 of Subtitle F, and the first such return filed by the community trust 
will be treated as the notification required of the separate entity for 
purposes of section 508(a).
    (ii) If a transfer is made in trust to a community trust to make 
income or other payments for a period of a life or lives in being or a 
term of years to any individual or for any noncharitable purpose, 
followed by payments to or for the use of the community trust (such as 
in the case of a charitable remainder annuity trust or a charitable 
remainder unitrust described in section 664 or a pooled income fund 
described in section 642(c)(5)), such trust will be treated as a 
component part of the community trust upon the termination of all 
intervening noncharitable interests and rights to the actual possession 
or enjoyment of the property if such trust satisfies the requirements of 
paragraph (f)(11) of this section at such time. Until such time, the 
trust will be treated as a separate trust. If a transfer is made in 
trust to a community trust to make income or other payments to or for 
the use of the community trust, followed by payments to any individual 
or for any noncharitable purpose, such trust will be treated as a 
separate trust rather than as a component part of the community trust. 
See section 4947(a)(2) and the related regulations for the treatment of 
such split-interest trusts. The provisions of this paragraph (f)(12)(ii) 
provide rules only for determining when a charitable remainder trust or 
pooled income fund may be treated as a component part of a community 
trust and are not intended to preclude a community trust from 
maintaining a charitable remainder trust or pooled income fund. For 
purposes of grantors and contributors, a pooled income fund of a 
publicly supported community trust shall be treated no differently than 
a pooled income fund of any other publicly supported organization.
    (iii) An organization described in section 170(b)(1)(F)(iii) will 
not ordinarily satisfy the requirements of paragraph (f)(11)(ii) of this 
section because of the unqualified right of the donor to designate the 
recipients of the income and principal of the trust. Such organization 
will therefore ordinarily be treated as other than a component part of a 
community trust under paragraph (f)(12)(i) of this section. However, see 
section 170(b)(1)(F)(iii) and the related regulations with respect to 
the treatment of contributions to such organizations.
    (13) Method of accounting. For purposes of section 170(b)(1)(A)(vi), 
an organization's support will be determined under the method of 
accounting on the basis of which the organization regularly computes its 
income in keeping its books under section 446. For example, if a grantor 
makes a grant to an organization payable over a term of years, such 
grant will be includible in the support fraction of the grantee 
organization under the method of accounting on the basis of which the 
grantee organization regularly computes its income in keeping its books 
under section 446.
    (14) Transition rules. (i) An organization that received an advance 
ruling, that expires on or after June 9, 2008, that it will be treated 
as an organization described in sections 170(b)(1)(A)(vi) and 509(a)(1) 
will be treated as meeting the requirements of paragraph (f)(2) or 
paragraph (f)(3) of this section for the first five taxable years of its 
existence as a section 501(c)(3) organization unless the IRS issued to 
the organization a proposed determination prior to September 9, 2008, 
that the organization is not described in sections 170(b)(1)(A)(vi) and 
509(a)(1) or in section 509(a)(2).
    (ii) Paragraph (f)(4)(v) of this section shall not apply with 
respect to an organization that received an advance ruling that expired 
prior to June 9, 2008, and that did not timely file with the Internal 
Revenue Service the required information to establish that it is an 
organization described in sections

[[Page 102]]

170(b)(1)(A)(vi) and 509(a)(1) or in section 509(a)(2).
    (iii) An organization that fails to meet a public support test for 
its first taxable year beginning on or after January 1, 2008, under the 
regulations in this section may use the prior tests set forth in Sec. 
1.170A-9(e)(2) or Sec. 1.170A-9(e)(3), or in Sec. Sec. 1.509(a)-
3(a)(2) and 1.509(a)-3(a)(3), as in effect before September 9, 2008 (as 
contained in 26 CFR part 1 revised April 1, 2008), to determine whether 
the organization was publicly supported for its 2008 taxable year based 
on its satisfaction of a public support test for taxable year 2007, 
computed over the period 2003 through 2006.
    (iv) Examples. The application of this paragraph (f)(14) may be 
illustrated by the following examples:

    Example 1. (i) Organization X was formed in January 2004 and uses a 
taxable year ending June 30. Organization X received an advance ruling 
letter that it is recognized as an organization described in section 
501(c)(3) effective as of the date of its formation and that it is 
treated as a publicly supported organization under sections 
170(b)(1)(A)(vi) and 509(a)(1) during the five-year advance ruling 
period that will end on June 30, 2008. This date is on or after June 9, 
2008.
    (ii) Under the transition rule, Organization X is a publicly 
supported organization described in sections 170(b)(1)(A)(vi) and 
509(a)(1) for the taxable years ending June 30, 2004, through June 30, 
2008. Organization X does not need to establish within 90 days after 
June 30, 2008, that it met a public support test under Sec. 1.170A-9(e) 
or Sec. 1.509(a)-3, as in effect prior to September 9, 2008, (as 
contained in 26 CFR part 1 revised April 1, 2008), for its advance 
ruling period.
    (iii) Organization X can qualify as a publicly supported 
organization for the taxable year ending June 30, 2009, if Organization 
X can meet the requirements of paragraph (f)(2) or (f)(3) of this 
section or Sec. Sec. 1.509(a)-3(a)(2) and 1.509(a)-3(a)(3) for the 
taxable years ending June 30, 2005, through June 30, 2009, or for the 
taxable years ending June 30, 2004, through June 30, 2008. In addition, 
for its taxable year ending June 30, 2009, Organization X may qualify as 
a publicly supported organization by availing itself of the transition 
rule contained in paragraph (f)(14)(iii) of this section, which looks to 
support received by X in the taxable years ending June 30, 2004, through 
June 30, 2007.
    Example 2. (i) Organization Y was formed in January 2000, and uses a 
taxable year ending December 31. Organization Y received a final 
determination that it was recognized as tax-exempt under section 
501(c)(3) and as a publicly supported organization prior to September 9, 
2008.
    (ii) For taxable year 2008, Organization Y will qualify as publicly 
supported if it meets the requirements under either paragraph (f)(2) or 
(f)(3) of this section or Sec. Sec. 1.509(a)-3(a)(2) or 1.509(a)-
3(a)(3) for the five-year period January 1, 2004, through December 31, 
2008. Organization Y will also qualify as publicly supported for taxable 
year 2008 if it meets the requirements under Sec. 1.170A-9(e)(2) or 
Sec. 1.170A-9(e)(3), or under Sec. Sec. 1.509(a)-3(a)(2) and 1.509(a)-
3(a)(3), as in effect prior to September 9, 2008, (as contained in 26 
CFR part 1 revised April 1, 2008) for taxable year 2007, using the four-
year period from January 1, 2003, through December 31, 2006.

    (g) Private operating foundation. An organization is described in 
section 170(b)(1) (A)(vii) and (E)(i) if it is a private ``operating 
foundation'' as defined in section 4942(j)(3) and the regulations 
thereunder.
    (h) Private nonoperating foundation distributing amount equal to all 
contributions received--(1) In general. (i) An organization is described 
in section 170(b)(1) (A)(vii) and (E)(ii) if it is a private foundation 
which, not later than the 15th day of the third month after the close of 
its taxable year in which any contributions are received, distributes an 
amount equal in value to 100 percent of all contributions received in 
such year. Such distributions must be qualifying distributions (as 
defined in section 4942(g) without regard to paragraph (3) thereof) 
which are treated, after the application of section 4942(g)(3), as 
distributions out of corpus in accordance with section 4942(h). 
Qualifying distributions, as defined in section 4942(g) without regard 
to paragraph (3) thereof, cannot be made to (i) an organization 
controlled directly or indirectly by the foundation or by one or more 
disqualified persons (as defined in section 4946) with respect to the 
foundation or (ii) a private foundation which is not an operating 
foundation (as defined in section 4942(j)(3)). The phrase ``after the 
application of section 4942(g)(3)'' means that every contribution 
described in section 4942(g)(3) received by a private foundation 
described in this subparagraph in a particular taxable year must be 
distributed (within the meaning of section 4942(g)(3)(A)) by such 
foundation not later than the 15th day of the third

[[Page 103]]

month after the close of such taxable year in order for any other 
distribution by such foundation to be counted toward the 100-percent 
requirement described in this subparagraph.
    (ii) In order for an organization to meet the distribution 
requirements of subdivision (i) of this subparagraph, it must, not later 
than the 15th day of the third month after the close of its taxable year 
in which any contributions are received, distribute (within the meaning 
of subdivision (i) of this subparagraph) an amount equal in value to 100 
percent of all contributions received in such year and have no remaining 
undistributed income for such year.
    (iii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. X is a private foundation on a calendar year basis. As of 
January 1, 1971, X had no undistributed income for 1970. X's 
distributable amount for 1971 was $600,000. In July 1971, A, an 
individual, contributed $500,000 (fair market value determined at the 
time of the contribution) of appreciated property to X (which, if sold, 
would give rise to long-term capital gain). X did not receive any other 
contribution in either 1970 or 1971. During 1971, X made qualifying 
distributions of $700,000 which were treated as made out of the 
undistributed income for 1971 and $100,000 out of corpus. X will meet 
the requirements of section 170(b)(1)(E)(ii) for 1971 if it makes 
additional qualifying distributions of $400,000 out of corpus by March 
15, 1972.
    Example 2. Assume the facts as stated in Example 1, except that as 
of January 1, 1971, X had $100,000 of undistributed income for 1970. 
Under these circumstances, the $700,000 distributed by X in 1971 would 
be treated as made out of the undistributed income for 1970 and 1971. X 
would therefore have to make additional qualifying distributions of 
$500,000 out of corpus between January 1, 1972, and March 15, 1972, in 
order to meet the requirements of section 170(b)(1)(E)(ii) for 1971.

    (2) Special rules. In applying subparagraph (1) of this paragraph:
    (i) For purposes of section 170(b)(1)(A)(vii), an organization 
described in section 170(b)(1)(E)(ii) must distribute all contributions 
received in any year, whether of cash or property. However, solely for 
purposes of section 170(e)(1)(B)(ii), an organization described in 
section 170(b)(1)(E)(ii) is required to distribute all contributions of 
property only received in any year. Contributions for purposes of this 
paragraph do not include bequests, legacies, devises, or transfers 
within the meaning of section 2055 or 2106(a)(2) with respect to which a 
deduction was not allowed under section 170.
    (ii) Any distributions made by a private foundation pursuant to 
subparagraph (1) of this paragraph with respect to a particular taxable 
year shall be treated as made first out of contributions of property and 
then out of contributions of cash received by such foundation in such 
year.
    (iii) A private foundation is not required to trace specific 
contributions of property, or amounts into which such contributions are 
converted, to specific distributions.
    (iv) For purposes of satisfying the requirements of section 
170(b)(1)(D)(ii), except as provided to the contrary in this subdivision 
(iv), the fair market value of contributed property, determined on the 
date of contribution, is required to be used for purposes of determining 
whether an amount equal in value to 100 percent of the contribution 
received has been distributed. However, reasonable selling expenses, if 
any, incurred by the foundation in the sale of the contributed property 
may be deducted from the fair market value of the contributed property 
on the date of contribution, and distribution of the balance of the fair 
market value will satisfy the 100 percent distribution requirement. If a 
private foundation receives a contribution of property and, within 30 
days thereafter, either sells the property or makes an in kind 
distribution of the property to a public charity, then at the choice of 
the private foundation the gross amount received on the sale (less 
reasonable selling expenses incurred) or the fair market value of the 
contributed property at the date of its distribution to the public 
charity, and not the fair market value of the contributed property on 
the sale of contribution (less reasonable selling expenses, if any), is 
considered to be the amount of the fair market value of the contributed 
property for purposes of the requirements of section 170(b)(1)(D)(ii).
    (v) A private foundation may satisfy the requirements of 
subparagraph (1) of

[[Page 104]]

this paragraph for a particular taxable year by electing (pursuant to 
section 4942(h)(2) and the regulations thereunder) to treat a portion or 
all of one or more distributions, made not later than the 15th day of 
the third month after the close of such year, as made out of corpus.
    (3) Transitional rules--(i) Taxable years beginning before January 
1, 1970, and ending after December 31, 1969. In order for an 
organization to meet the distribution requirements of subparagraph 
(1)(i) of this paragraph for a taxable year which begins before January 
1, 1970, and ends after December 31, 1969, it must, not later than the 
15th day of the third month after the close of such taxable year, 
distribute (within the meaning of subparagraph (1)(i) of this paragraph) 
an amount equal in value to 100 percent of all contributions (other than 
contributions described in section 4942(g)(3)) which were received 
between January 1, 1970, and the last day of such taxable year. Because 
the organization is not subject to the provisions of section 4942 for 
such year, the organization need not satisfy subparagraph (1)(ii) of 
this paragraph or the phrase ``after the application of section 
4942(g)(3)'' for such year.
    (ii) Extension of period. For purposes of section 170(b)(1)(A)(vii) 
and 170(e)(1)(B)(ii), in the case of a taxable year ending in either 
1970, 1971 or 1972, the period referred to in section 170(b)(1)(E)(ii) 
for making distributions shall not expire before April 2, 1973.
    (4) Adequate records required. A taxpayer claiming a deduction under 
section 170 for a charitable contribution to a foundation described in 
subparagraph (1) of this paragraph must obtain adequate records or other 
sufficient evidence from such foundation showing that the foundation 
made the required qualifying distributions within the time prescribed. 
Such records or other evidence must be attached to the taxpayer's return 
for the taxable year for which the charitable contribution deduction is 
claimed. If necessary, an amended income tax return or claim for refund 
may be filed in accordance with Sec. 301.6402-2 and Sec. 301.6402-3 of 
this chapter (procedure and administration regulations).
    (i) Private foundation maintaining a common fund--(1) Designation by 
substantial contributors. An organization is described in section 
170(b)(1) (A)(vii) and (E)(iii) if it is a private foundation all of the 
contributions to which are pooled in a common fund and which would be 
described in section 509(a)(3) but for the right of any donor who is a 
substantial contributor or his spouse to designate annually the 
recipients, from among public charities, of the income attributable to 
the donor's contribution to the fund and to direct (by deed or by will) 
the payment, to public charities, of the corpus in the common fund 
attributable to the donor's contribution. For purposes of this 
paragraph, the private foundation is to be treated as meeting the 
requirements of section 509(a)(3) (A) and (B) even though donors to the 
foundation, or their spouses, retain the right to, and in fact do, 
designate public charities to receive income or corpus from the fund.
    (2) Distribution requirements. To qualify under subparagraph (1) of 
this paragraph, the private foundation described therein must be 
required by its governing instrument to distribute, and it must in fact 
distribute (including administrative expenses):
    (i) All of the adjusted net income (as defined in section 4942(f)) 
of the common fund to one or more public charities not later than the 
15th day of the third month after the close of the taxable year in which 
such income is realized by the fund, and
    (ii) All the corpus attributable to any donor's contribution to the 
fund to one or more public charities not later than 1 year after the 
donor's death or after the death of the donor's surviving spouse if such 
surviving spouse has the right to designate the recipients of such 
corpus.
    (3) Failure to designate. A private foundation will not fail to 
qualify under this paragraph merely because a substantial contributor or 
his spouse fails to exercise his right to designate the recipients of 
income or corpus of the fund, provided that the income and corpus 
attributable to his contribution are distributed as required by 
subparagraph (2) of this paragraph.

[[Page 105]]

    (4) Definitions. For purposes of this paragraph:
    (i) The term substantial contributor is as defined in section 
507(d)(2) and the regulations thereunder.
    (ii) The term public charity means an organization described in 
section 170(b)(1)(A) (i) through (vi). If an organization is described 
in section 170(b)(1)(A) (i) through (vi), and is also described in 
section 170(b)(1)(A)(viii), it shall be treated as a public charity for 
purposes of this paragraph.
    (iii) The term income attributable to means the income earned by the 
fund which is properly allocable to the contributed amount by any 
reasonable and consistently applied method. See, for example, Sec. 
1.642(c)-5(c).
    (iv) The term corpus attributable to means the portion of the corpus 
of the fund attributable to the contributed amount. Such portion may be 
determined by any reasonable and consistently applied method.
    (v) The term donor means any individual who makes a contribution 
(whether of cash or property) to the private foundation, whether or not 
such individual is a substantial contributor.
    (j) Section 509(a) (2) or (3) organization. An organization is 
described in section 170(b)(1)(A)(viii) if it is described in section 
509(a) (2) or (3) and the regulations thereunder.
    (k) Effective/applicability date--(1) In general. These regulations 
shall apply to taxable years beginning after December 31, 1969.
    (2) Applicability date. The regulations in paragraph (f) of this 
section shall apply to taxable years beginning on or after January 1, 
2008. For tax years beginning after December 31, 1969, and beginning 
before January 1, 2008, see Sec. 1.170A-9(e) (as contained in 26 CFR 
part 1 revised April 1, 2008).

[T.D. 7242, 38 FR 12, Jan. 3, 1973; 38 FR 3598, Feb. 8, 1973, as amended 
by T.D. 7406, 41 FR 7096, Feb. 17, 1976; T.D. 7440, 41 FR 50650, Nov. 
17, 1976; T.D. 7456, 42 FR 4436, Jan. 25, 1977; T.D. 7679, 45 FR 13452, 
Feb. 29, 1980; T.D. 8100, 51 FR 31614, Sept. 4, 1986; T.D. 8991, 67 FR 
20437, Apr. 25, 2002; T.D. 9423, 73 FR 52533, Sept. 9, 2008; T.D. 9549, 
76 FR 55750, Sept. 8, 2011]



Sec. 1.170A-10  Charitable contributions carryovers of individuals.

    (a) In general. (1) Section 170(d)(1), relating to carryover of 
charitable contributions in excess of 50 percent of contribution base, 
and section 170(b)(1)(D)(ii), relating to carryover of charitable 
contributions in excess of 30 percent of contribution base, provide for 
excess charitable contributions carryovers by individuals of charitable 
contributions to section 170(b)(1)(A) organizations described in Sec. 
1.170A-9. These carryovers shall be determined as provided in paragraphs 
(b) and (c) of this section. No excess charitable contributions 
carryover shall be allowed with respect to contributions ``for the use 
of,'' rather than ``to,'' section 170(b)(1)(A) organizations or with 
respect to contributions ``to'' or ``for the use of'' organizations 
which are not section 170(b)(1)(A) organizations. See Sec. 1.170A-
8(a)(2) for definitions of ``to'' or ``for the use of'' a charitable 
organization.
    (2) The carryover provisions apply with respect to contributions 
made during a taxable year in excess of the applicable percentage 
limitation even though the taxpayer elects under section 144 to take the 
standard deduction in that year instead of itemizing the deduction 
allowable in computing taxable income for that year.
    (3) For provisions requiring a reduction of the excess charitable 
contribution computed under paragraph (b)(1) or (c)(1) of this section 
when there is a net operating loss carryover to the taxable year, see 
paragraph (d)(1) of this section.
    (4) The provisions of section 170 (b)(1)(D)(ii) and (d)(1) and this 
section do not apply to contributions by an estate; nor do they apply to 
a trust unless the trust is a private foundation which, pursuant to 
Sec. 1.642(c)-4, is allowed a deduction under section 170 subject to 
the provisions applicable to individuals.
    (b) 50-percent charitable contributions carryover of individuals--
(1) Computation of excess of charitable contributions made in a 
contribution year. Under section 170(d)(1), subject to certain 
conditions and limitations, the excess of:
    (i) The amount of the charitable contributions made by an individual 
in a

[[Page 106]]

taxable year (hereinafter) in this paragraph referred to as the 
``contribution year'') to section 170(b)(1)(A) organizations described 
in Sec. 1.170A-9, over
    (ii) 50 percent of his contribution base, as defined in section 
170(b)(1)(F), for such contribution year, shall be treated as a 
charitable contribution paid by him to a section 170(b)(1)(A) 
organization in each of the 5 taxable years immediately succeeding the 
contribution year in order of time. However, such excess to the extent 
it consists of contributions of 30-percent capital gain property, as 
defined in Sec. 1.170A-8(d)(3), shall be subject to the rules of 
section 170(b)(1)(D)(ii) and paragraph (c) of this section in the years 
to which it is carried over. A charitable contribution made in a taxable 
year beginning before January 1, 1970, to a section 170(b)(1)(A) 
organization and carried over to a taxable year beginning after December 
31, 1969, under section 170(b)(5) (before its amendment by the Tax 
Reform Act of 1969) shall be treated in such taxable year beginning 
after December 31, 1969, as a charitable contribution of cash subject to 
the limitations of this paragraph, whether or not such carryover 
consists of contributions of 30-percent capital gain property or of 
ordinary income property described in Sec. 1.170A-4(b)(1). For purposes 
of applying this paragraph and paragraph (c) of this section, such a 
carryover from a taxable year beginning before January 1, 1970, which is 
so treated as paid to a section 170(b)(1)(A) organization in a taxable 
year beginning after December 31, 1969, shall be treated as paid to such 
an organization under section 170(d)(1) and this section. The provisions 
of this subparagraph may be illustrated by the following examples:

    Example 1. Assume that H and W (husband and wife) have a 
contribution base for 1970 of $50,000 and for 1971 of $40,000 and file a 
joint return for each year. Assume further that in 1970 they make a 
charitable contribution in cash of $26,500 to a church and $1,000 to X 
(not a section 170(b)(1)(A) organization) and in 1971 they make a 
charitable contribution in cash of $19,000 to a church and $600 to X. 
They may claim a charitable contributions deduction of $25,000 in 1970, 
and the excess of $26,500 (contribution to the church) over $25,000 (50 
percent of contribution base), or $1,500, constitutes a charitable 
contributions carryover which shall be treated as a charitable 
contribution paid by them to a section 170(b)(1)(A) organization in each 
of the 5 succeeding taxable years in order of time. No carryover is 
allowed with respect to the $1,000 contribution made to X in 1970. Since 
50 percent of their contribution base for 1971 ($20,000) exceeds the 
charitable contributions of $19,000 made by them in 1971 to section 
170(b)(1)(A) organizations (computed without regard to section 170 
(b)(1)(D)(ii) and (d)(1) and this section), the portion of the 1970 
carryover equal to such excess of $1,000 ($20,000 minus $19,000) is 
treated, pursuant to the provisions of subparagraph (2) of this 
paragraph, as paid to a section 170(b)(1)(A) organization in 1971; the 
remaining $500 constitutes an unused charitable contributions carryover. 
No deduction for 1971, and no carryover, are allowed with respect to the 
$600 contribution made to X in 1971.
    Example 2. Assume the same facts as in Example 1 except that H and W 
have a contribution base for 1971 of $42,000. Since 50 percent of their 
contribution base for 1971 ($21,000) exceeds by $2,000 the charitable 
contribution of $19,000 made by them in 1971 to the section 170(b)(1)(A) 
organization (computed without regard to section 170 (b)(1)(D)(ii) and 
(d)(1) and this section), the full amount of the 1970 carryover of 
$1,500 is treated, pursuant to the provisions of subparagraph (2) of 
this paragraph, as paid to a section 170(b)(1)(A) organization in 1971. 
They may also claim a charitable contribution of $500 ($21,000 -
$20,500[$19,000+$1,500]) with respect to the gift to X in 1971. No 
carryover is allowed with respect to the $100 ($600-$500) of the 
contribution to X which is not deductible in 1971.

    (2) Determination of amount treated as paid in taxable years 
succeeding contribution year. In applying the provisions of subparagraph 
(1) of this paragraph, the amount of the excess computed in accordance 
with the provisions of such subparagraph and paragraph (d)(1) of this 
section which is to be treated as paid in any one of the 5 taxable years 
immediately succeeding the contribution year to a section 170(b)(1)(A) 
organization shall not exceed the lesser of the amounts computed under 
subdivisions (i) to (iii), inclusive, of this subparagraph:
    (i) The amount by which 50 percent of the taxpayer's contribution 
base for such succeeding taxable year exceeds the sum of:
    (a) The charitable contributions actually made (computed without 
regard to the provisions of section 170 (b)(1)(D)(ii) and (d)(1) and 
this section)

[[Page 107]]

by the taxpayer in such succeeding taxable year to section 170(b)(1)(A) 
organizations, and
    (b) The charitable contributions, other than contributions of 30-
percent capital gain property, made to section 170(b)(1)(A) 
organizations in taxable years preceding the contribution year which, 
pursuant to the provisions of section 170(d)(1) and this section, are 
treated as having been paid to a section 170(b)(1)(A) organization in 
such succeeding year.
    (ii) In the case of the first taxable year succeeding the 
contribution year, the amount of the excess charitable contribution in 
the contribution year, computed under subparagraph (1) of this paragraph 
and paragraph (d)(1) of this section.
    (iii) In the case of the second, third, fourth, and fifth taxable 
years succeeding the contribution year, the portion of the excess 
charitable contribution in the contribution year, computed under 
subparagraph (1) of this paragraph and paragraph (d)(1) of this section, 
which has not been treated as paid to a section 170(b)(1)(A) 
organization in a year intervening between the contribution year and 
such succeeding taxable year.

For purposes of applying subdivision (i)(a) of this subparagraph, the 
amount of charitable contributions of 30-percent capital gain property 
actually made in a taxable year succeeding the contribution year shall 
be determined by first applying the 30-percent limitation of section 
170(b)(1)(D)(i) and paragraph (d) of Sec. 1.170A-8. If a taxpayer, in 
any one of the 4 taxable years succeeding a contribution year, elects 
under section 144 to take the standard deduction instead of itemizing 
the deductions allowable in computing taxable income, there shall be 
treated as paid (but not allowable as a deduction) in such standard 
deduction year the lesser of the amounts determined under subdivisions 
(i) to (iii), inclusive, of this subparagraph. The provisions of this 
subparagraph may be illustrated by the following examples:

    Example 1. Assume that B has a contribution base for 1970 of $20,000 
and for 1971 of $30,000. Assume further that in 1970 B contributed 
$12,000 in cash to a church and in 1971 he contributed $13,500 in cash 
to the church. B may claim a charitable contributions deduction of 
$10,000 in 1970, and the excess of $12,000 (contribution to the church) 
over $10,000 (50 percent of B's contribution base), or $2,000, 
constitutes a charitable contributions carryover which shall be treated 
as a charitable contribution paid by B to a section 170(b)(1)(A) 
organization in the 5 taxable years succeeding 1970 in order of time. B 
may claim a charitable contributions deduction of $15,000 in 1971. Such 
$15,000 consists of the $13,500 contribution to the church in 1971 and 
$1,500 carried over from 1970 and treated as a charitable contribution 
paid to a section 170(b)(1)(A) organization in 1971. The $1,500 
contribution treated as paid in 1971 is computed as follows:

1970 excess contributions....................................     $2,000
                                                              ==========
50 percent of B's contribution base for 1971.................    15,000
Less:
  Contributions actually made in 1971 to section      $13,500
   170(b)(1)(A) organizations.....................
  Contributions made to section 170(b)(1)(A)                0     13,500
   organizations in taxable years prior to 1970
   treated as having been paid in 1971............
                                                   ---------------------
      Balance.....................................  .........      1,500
                                                              ==========
Amount of 1970 excess treated as paid in 1971--the lesser of       1,500
 $2,000 (1970 excess contributions) or $1,500 (excess of 50
 percent of contribution base for 1971 ($15,000) over the sum
 of the section 170(b)(1)(A) contributions actually made in
 1971 ($13,500) and the section 170(b)(1)(A) contributions
 made in years prior to 1970 treated as having been paid in
 1971 ($0))..................................................
                                                              ==========
 


If the excess contributions made by B in 1970 had been $1,000 instead of 
$2,000, then, for purposes of this example, the amount of the 1970 
excess treated as paid in 1971 would be $1,000 rather than $1,500.
    Example 2. Assume the same facts as in Example 1, and, in addition, 
that B has a contribution base for 1972 of $10,000 and for 1973 of 
$20,000. Assume further with respect to 1972 that B elects under section 
144 to take the standard deduction in computing taxable income and that 
his actual contributions to section 170(b)(1)(A) organizations in that 
year are $300 in cash. Assume further with respect to 1973 that R 
itemizes his deductions, which include a $5,000 cash contribution to a 
church. B's deductions for 1972 are not increased by reason of the $500 
available as a charitable contributions carryover from 1970 (excess 
contributions made in 1970 ($2,000) less the amount of such excess 
treated as paid in 1971 ($1,500)), since B elected to take the standard 
deduction in 1972. However, for purposes of determining the amount of 
the excess charitable contributions made in 1970 which is available as a 
carryover to 1973, B is required to treat such $500 as a

[[Page 108]]

charitable contribution paid in 1972--the lesser of $500 or $4,700 (50 
percent of contribution base ($5,000) over contributions actually made 
in 1972 to section 170(b)(1)(A) organizations ($300)). Therefore, even 
though the $5,000 contribution made by B in 1973 to a church does not 
amount to 50 percent of B's contribution base for 1973 (50 percent of 
$20,000), B may claim a charitable contributions deduction of only the 
$5,000 actually paid in 1973 since the entire excess charitable 
contribution made in 1970 ($2,000) has been treated as paid in 1971 
($1,500) and 1972 ($500).
    Example 3. Assume the following factual situation for C who itemizes 
his deductions in computing taxable income for each of the years set 
forth in the example:

----------------------------------------------------------------------------------------------------------------
                                                                  1970      1971      1972      1973      1974
----------------------------------------------------------------------------------------------------------------
Contribution base.............................................   $10,000    $7,000   $15,000   $10,000    $9,000
                                                               =================================================
Contributions of cash to section 170(b)(1)(A) organizations        6,000     4,400     8,000     3,000     1,500
 (no other contributions).....................................
Allowable charitable contributions deductions computed without     5,000     3,500     7,500     3,000     1,500
 regard to carryover of contributions.........................
                                                               -------------------------------------------------
Excess contributions for taxable year to be treated as paid in     1,000       900       500         0         0
 5 succeeding taxable years...................................
----------------------------------------------------------------------------------------------------------------


Since C's contributions in 1973 and 1974 to section 170(b)(1)(A) 
organizations are less than 50 percent of his contribution base for such 
years, the excess contributions for 1970, 1971, and 1972 are treated as 
having been paid to section 170(b)(1)(A) organizations in 1973 and 1974 
as follows:

                                  1973
------------------------------------------------------------------------
                                                  Less:
                                                  Amount
                                                 treated     Available
         Contribution year             Total     as paid     charitable
                                       excess    in year   contributions
                                                 prior to    carryovers
                                                   1973
------------------------------------------------------------------------
1970...............................     $1,000          0       $1,000
1971...............................        900          0          900
1972...............................        500          0          500
                                    ------------------------------------
  Total............................  .........  .........        2,400
50 percent of B's contribution base for 1973.............       $5,000
Less: Charitable contributions made in 1973 to section           3,000
 170(b)(1)(A) organizations..............................
                                                          --------------
                                                                 2,000
                                                          ==============
Amount of excess contributions treated as paid in 1973--         2,000
 lesser of $2,400 (available carryovers to 1973) or
 $2,000 (excess of 50 percent of contribution base
 ($5,000) over contributions actually made in 1973 to
 section 170(b)(1)(A) organizations ($3,000))............
                                                          ==============
------------------------------------------------------------------------


                                  1974
------------------------------------------------------------------------
                                                  Less:
                                                  Amount
                                                 treated     Available
         Contribution year             Total     as paid     charitable
                                       excess    in year   contributions
                                                 prior to    carryovers
                                                   1974
------------------------------------------------------------------------
1970...............................     $1,000     $1,000
1971...............................        900        900
1972...............................        500        100          $40
1973...............................          0          0
                                    ------------------------------------
  Total............................  .........  .........          400
50 percent of B's contribution base for 1974.............       $4,500
Less: Charitable contributions made in 1974 to section           1,500
 170(b)(1)(A) organizations..............................
                                                          --------------
                                                                 3,000
                                                          ==============
Amount of excess contributions treated as paid in 1974--           400
 the lesser of $400 (available carryovers to 1974) or
 $3,000 (excess of 50 percent of contribution base
 ($4,500) over contributions actually made in 1974 to
 section 170(b)(1)(A) organizations ($1,500))............
                                                          ==============
------------------------------------------------------------------------

    (c) 30-percent charitable contributions carryover of individuals--
(1) Computation of excess of charitable contributions made in a 
contribution year. Under section 170(b)(1)(D)(ii), subject to certain 
conditions and limitations, the excess of:
    (i) The amount of the charitable contributions of 30-percent capital 
gain property, as defined in Sec. 1.170A-8(d)(3), made by an individual 
in a taxable year (hereinafter in this paragraph referred to as the 
``contribution year'') to section 170(b)(1)(A) organizations described 
in Sec. 1.170A-9, over
    (ii) 30 percent of his contribution base for such contribution year, 
shall, subject to section 170(b)(1)(A) and paragraph (b) of Sec. 
1.170A-8, be treated as a charitable contribution of 30-percent capital 
gain property paid by him to a section 170(b)(1)(A) organization in each 
of the 5 taxable years immediately succeeding the contribution

[[Page 109]]

year in order of time. In addition, any charitable contribution of 30-
percent capital gain property which is carried over to such years under 
section 170(d)(1) and paragraph (b) of this section shall also be 
treated as though it were a carryover of 30-percent capital gain 
property under section 170(b)(1)(D)(ii) and this paragraph. The 
provisions of this subparagraph may be illustrated by the following 
examples:

    Example 1. Assume that H and W (husband and wife) have a 
contribution base for 1970 of $50,000 and for 1971 of $40,000 and file a 
joint return for each year. Assume further that in 1970 they contribute 
$20,000 cash and $13,000 of 30-percent capital gain property to a 
church, and that in 1971 they contribute $5,000 cash and $10,000 of 30-
percent capital gain property to a church. They may claim a charitable 
contributions deduction of $25,000 in 1970 and the excess of $33,000 
(contributed to the church) over $25,000 (50 percent of contribution 
base), or $8,000, constitutes a charitable contributions carryover which 
shall be treated as a charitable contribution of 30-percent capital gain 
property paid by them to a section 170(b)(1)(A) organization in each of 
the 5 succeeding taxable years in order of time. Since 30 percent of 
their contribution base for 1971 ($12,000) exceeds the charitable 
contributions of 30-percent capital gain property ($10,000) made by them 
in 1971 to section 170(b)(1)(A) organizations (computed without regard 
to section 170 (b)(1)(D)(ii) and (d)(1) and this section), the portion 
of the 1970 carryover equal to such excess of $2,000 ($12,000--$10,000) 
is treated, pursuant to the provisions of subparagraph (2) of this 
paragraph, as paid to a section 170(b)(1)(A) organization in 1971; the 
remaining $6,000 constitutes an unused charitable contributions 
carryover in respect of 30-percent capital gain property from 1970.
    Example 2. Assume the same facts as in Example 1 except the $33,000 
of charitable contributions in 1970 are all 30-percent capital gain 
property. Since their charitable contributions in 1970 exceed 30 percent 
of their contribution base ($15,000) by $18,000 ($33,000--$15,000), they 
may claim a charitable contributions deduction of $15,000 in 1970, and 
the excess of $33,000 over $15,000, or $18,000, constitutes a charitable 
contributions carryover which shall be treated as a charitable 
contribution of 30-percent capital gain property paid by them to a 
section 170(b)(1)(A) organization in each of the 5 succeeding taxable 
years in order of time. Since they are allowed to treat only $2,000 of 
their 1970 contribution as paid in 1971, they have a remaining unused 
charitable contributions carryover of $16,000 in respect of 30-percent 
capital gain property from 1970.

    (2) Determination of amount treated as paid in taxable years 
succeeding contribution year. In applying the provisions of subparagraph 
(1) of this paragraph, the amount of the excess computed in accordance 
with the provisions of such subparagraph and paragraph (d)(1) of this 
section which is to be treated as paid in any one of the 5 taxable years 
immediately succeeding the contribution year to a section 170(b)(1)(A) 
organization shall not exceed the least of the amounts computed under 
subdivisions (i) to (iv), inclusive, of this subparagraph:
    (i) The amount by which 30 percent of the taxpayer's contribution 
base for such succeeding taxable year exceeds the sum of:
    (a) The charitable contributions of 30-percent capital gain property 
actually made (computed without regard to the provisions of section 170 
(b)(1)(D)(ii) and (d)(1) and this section) by the taxpayer in such 
succeeding taxable year to section 170(b)(1)(A) organizations, and
    (b) The charitable contributions of 30-percent capital gain property 
made to section 170(b)(1)(A) organizations in taxable years preceding 
the contribution year, which, pursuant to the provisions of section 170 
(b)(1)(D)(ii) and (d)(1) and this section, are treated as having been 
paid to a section 170(b)(1)(A) organization in such succeeding year.
    (ii) The amount by which 50 percent of the taxpayer's contribution 
base for such succeeding taxable year exceeds the sum of:
    (a) The charitable contributions actually made (computed without 
regard to the provisions of section 170 (b)(1)(D)(ii) and (d)(1) and 
this section) by the taxpayer in such succeeding taxable year to section 
170(b)(1)(A) organizations,
    (b) The charitable contributions of 30-percent capital gain property 
made to section 170(b)(1)(A) organizations in taxable years preceding 
the contribution year which, pursuant to the provisions of section 170 
(b)(1)(D)(ii) and (d)(1) and this section, are treated as having been 
paid to a section 170(b)(1)(A) organization in such succeeding year, and

[[Page 110]]

    (c) The charitable contributions, other than contributions of 30-
percent capital gain property, made to section 170(b)(1)(A) 
organizations which, pursuant to the provisions of section 170(d)(1) and 
paragraph (b) of this section, are treated as having been paid to a 
section 170(b)(1)(A) organization in such succeeding year.
    (iii) In the case of the first taxable year succeeding the 
contribution year, the amount of the excess charitable contribution of 
30-percent capital gain property in the contribution year, computed 
under subparagraph (1) of this paragraph and paragraph (d)(1) of this 
section.
    (iv) In the case of the second, third, fourth, and fifth succeeding 
taxable years succeeding the contribution year, the portion of the 
excess charitable contribution of 30-percent capital gain property in 
the contribution year (computed under subparagraph (1) of this paragraph 
and paragraph (d)(1) of this section) which has not been treated as paid 
to a section 170(b)(1)(A) organization in a year intervening between the 
contribution year and such succeeding taxable year.

For purposes of applying subdivisions (i) and (ii) of this subparagraph, 
the amount of charitable contributions of 30-percent capital gain 
property actually made in a taxable year succeeding the contribution 
year shall be determined by first applying the 30-percent limitation of 
section 170(b)(1)(D)(i) and paragraph (d) of Sec. 1.170A-8. If a 
taxpayer, in any one of the four taxable years succeeding a contribution 
year, elects under section 144 to take the standard deduction instead of 
itemizing the deductions allowable in computing taxable income, there 
shall be treated as paid (but not allowable as a deduction) in the 
standard deduction year the least of the amounts determined under 
subdivisions (i) to (iv), inclusive, of this subparagraph. The 
provisions of this subparagraph may be illustrated by the following 
example:

    Example. Assume the following factual situation for C who itemizes 
his deductions in computing taxable income for each of the years set 
forth in the example:

----------------------------------------------------------------------------------------------------------------
                                                         1970        1971        1972        1973        1974
----------------------------------------------------------------------------------------------------------------
Contribution base...................................     $10,000     $15,000     $20,000     $15,000     $33,000
                                                     -----------------------------------------------------------
Contributions of cash to section 170(b)(1)(A)              2,000       8,500           0      14,000         700
 organizations......................................
                                                     -----------------------------------------------------------
Contributions of 30-percent capital gain property to       5,000           0       7,800           0       6,400
 section 170(b)(1)(A) organizations.................
                                                     -----------------------------------------------------------
Allowable charitable contributions deductions
 (computed without regard to carryover of
 contributions) subject to limitations of:
  50 percent........................................       2,000       7,500           0       7,500         700
  30 percent........................................       3,000           0       6,000           0       6,400
                                                     -----------------------------------------------------------
    Total...........................................       5,000       7,500       6,000       7,500       7,100
----------------------------------------------------------------------------------------------------------------
Excess of contributions for taxable year to be
 treated as paid in 5 succeeding taxable years:
  Carryover of contributions of property other than            0       1,000           0       6,500
   30-percent capital gain property.................
  Carryover of contributions of 30-percent capital         2,000           0       1,800          0
   gain property....................................
----------------------------------------------------------------------------------------------------------------
C's excess contributions for 1970, 1971, 1972, and 1973 which are treated as having been paid to section
  170(b)(1)(A) organizations in 1972, 1973, and 1974 are indicated below. The portion of the excess charitable
  contribution for 1972 of 30-percent capital gain property which is not treated as paid in 1974 ($1,800-$900)
  is available as a carryover to 1975.


                                                      1971
----------------------------------------------------------------------------------------------------------------
                                                           Total excess          Less:     Available charitable
                                                     ------------------------   Amount         contributions
                                                                              treated as        carryovers
                    Contribution                                                paid in  -----------------------
                                                          50%         30%        years
                                                                               prior to       50%         30%
                                                                                 1971
----------------------------------------------------------------------------------------------------------------
1970................................................           0      $2,000           0           0      $2,000
                                                                                         =======================
50 percent of C's contribution base for 1971............................................      $7,500
30 percent of C's contribution base for 1971............................................  ..........       4,500

[[Page 111]]

 
Less: Charitable contributions actually made in 1971 to section 170(b)(1)(A)                   7,500           0
 organizations ($8,500, but not to exceed 50% of contribution base).....................
                                                                                         -----------------------
    Excess..............................................................................           0       4,500
                                                                                         =======================
The amount of excess contributions for 1970 of 30-percent capital gain property which is
 treated as paid in 1971 is the least of:
  (i) Available carryover from 1970 to 1971 of contributions of 30-percent capital gain        2,000
   property.............................................................................
  (ii) Excess of 50 percent of contribution base for 1971 ($7,500) over sum of                     0
   contributions actually made in 1971 to section 170(b)(1)(A) organizations ($7,500)...
  (iii) Excess of 30 percent of contribution base for 1971 ($4,500) over contributions         4,500  ..........
   of 30 percent capital gain property actually made in 1971 to section 170(b)(1)(A)
   organizations ($0)...................................................................
                                                                                         -----------------------
    Amount treated as paid..............................................................  ..........           0
----------------------------------------------------------------------------------------------------------------


                                                      1972
----------------------------------------------------------------------------------------------------------------
                                                           Total excess          Less:     Available charitable
                                                     ------------------------   Amount         contributions
                                                                              treated as        carryovers
                  Contribution year                                             paid in  -----------------------
                                                          50%         30%        years
                                                                               prior to       50%         30%
                                                                                 1972
----------------------------------------------------------------------------------------------------------------
1970................................................           0      $2,000           0           0      $2,000
1971................................................      $1,000           0           0      $1,000           0
                                                                                         -----------------------
                                                                                               1,000       2,000
                                                                                         =======================
50 percent of C's contribution base for 1972............................................      10,000  ..........
30 percent of C's contribution base for 1972............................................  ..........       6,000
Less: Charitable contributions actually made in 1972 to section 170(b)(1)(A)                       0       6,000
 organizations ($7,800, but not to exceed 30% of contribution base).....................
                                                                                         =======================
    Excess..............................................................................      10,000           0
                                                                                         =======================
(1) The amount of excess contributions for 1971 of property other than 30-percent
 capital gain property which is treated as paid in 1972 is the lesser of:
  (i) Available carryover from 1971 to 1972 of contributions of property other than 30-        1,000  ..........
   percent capital gain property........................................................
  (ii) Excess of 50 percent of contribution base for 1972 ($10,000) over contributions         4,000  ..........
   actually made in 1972 to section 170(b)(1)(A) organizations ($6,000).................
                                                                                         -----------------------
    Amount treated as paid..............................................................  ..........       1,000
                                                                                         =======================
(2) The amount of excess contributions for 1970 of 30-percent capital gain property
 which is treated as paid in 1972 is the least of:
  (i) Available carryover from 1970 to 1972 of contributions of 30-percent capital gain        2,000  ..........
   property.............................................................................
  (ii) Excess of 50 percent of contribution base for 1972 ($10,000) over sum of                3,000  ..........
   contributions actually made in 1972 to section 170(b)(1)(A) organizations ($6,000)
   and excess contributions for 1971 treated under item (1) above as paid in 1972
   ($1,000).............................................................................
  (iii) Excess of 30 percent of contribution base for 1972 ($6,000) over contributions             0  ..........
   of 30-percent capital gain property actually made in 1972 to section 170(b)(1)(A)
   organizations ($6,000)...............................................................
                                                                                         -----------------------
    Amount treated as paid..............................................................  ..........           0
----------------------------------------------------------------------------------------------------------------


                                                      1973
----------------------------------------------------------------------------------------------------------------
                                                           Total excess          Less:     Available charitable
                                                     ------------------------   Amount         contributions
                                                                              treated as        carryovers
                  Contribution year                                             paid in  -----------------------
                                                          50%         30%        years
                                                                               prior to       50%         30%
                                                                                 1973
----------------------------------------------------------------------------------------------------------------
1970................................................           0      $2,000           0           0      $2,000
1971................................................      $1,000           0      $1,000           0           0
1972................................................           0       1,800           0           0       1,800
                                                                                         -----------------------

[[Page 112]]

 
                                                                                                   0       3,800
                                                                                         =======================
50 percent of C's contribution base for 1973............................................      $7,500
30 percent of C's contribution base for 1973............................................  ..........       4,500
Less: Charitable contributions actually made in 1973 to section 170(b)(1)(A)                   7,500           0
 organizations ($14,000, but not to exceed 50% of contribution base)....................
                                                                                         -----------------------
    Excess..............................................................................           0       4,500
                                                                                         =======================
(1) The amount of excess contributions for 1970 of 30-percent capital gain property
 which is treated as paid in 1973 is the least of:
  (i) Available carryover from 1970 to 1973 of contributions of 30-percent capital gain        2,000  ..........
   property.............................................................................
  (ii) Excess of 50 percent of contribution base for 1973 ($7,500) over contributions              0  ..........
   actually made in 1973 to section 170(b)(1)(A) organizations ($7,500).................
  (iii) Excess of 30 percent of contribution base for 1973 ($4,500) over contributions         4,500  ..........
   of 30-percent capital gain property actually made in 1973 to section 170(b)(1)(A)
   organizations ($0)...................................................................
                                                                                         -----------------------
    Amount treated as paid..............................................................           0
                                                                                         =======================
(2) The amount of excess contributions for 1972 of 30-percent capital gain property
 which is treated as paid in 1973 is the least of:
  (i) Available carryover from 1972 to 1973 of contributions of 30-percent capital gain        1,800  ..........
   property.............................................................................
  (ii) Excess of 50 percent of contribution base for 1973 ($7,500) over contributions              0  ..........
   actually made in 1973 to section 170(b)(1)(A) organizations ($7,500).................
  (iii) Excess of 30 percent of contribution base for 1973 ($4,500) over sum of                4,500  ..........
   contributions of 30-percent capital gain property actually made in 1973 to section
   170(b)(1)(A) organizations ($0) and excess contributions for 1970 treated under item
   (1) above as paid in 1973 ($0).......................................................
                                                                                         -----------------------
    Amount treated as paid..............................................................           0  ..........
----------------------------------------------------------------------------------------------------------------


                                                      1974
----------------------------------------------------------------------------------------------------------------
                                                           Total excess          Less:     Available charitable
                                                     ------------------------   Amount         contributions
                                                                              treated as        carryovers
                  Contribution year                                             paid in  -----------------------
                                                          50%         30%        years
                                                                               prior to       50%         30%
                                                                                 1974
----------------------------------------------------------------------------------------------------------------
1970................................................           0      $2,000           0           0      $2,000
1971................................................      $1,000           0      $1,000           0           0
1972................................................           0       1,800           0           0       1,800
1973................................................       6,500           0           0      $6,500           0
                                                                                         -----------------------
                                                                                               6,500       3,800
                                                                                         =======================
50 percent of C's contribution base for 1974............................................      16,500  ..........
30 percent of C's contribution base for 1974............................................  ..........       9,900
Less: Charitable contributions actually made in 1974 to section 170(b)(1)(A)                     700       6,400
 organizations..........................................................................
                                                                                         -----------------------
    Excess..............................................................................      15,800       3,500
                                                                                         =======================
(1) The amount of excess contributions for 1973 of property other than 30-percent
 capital gain property which is treated as paid in 1974 is the lesser of:
  (i) Available carryover from 1973 to 1974 of contributions of property other than 30-        6,500  ..........
   percent capital gain property........................................................
  (ii) Excess of 50 percent of contribution base for 1974 ($16,500) over contributions         9,400  ..........
   actually made in 1974 to section 170(b)(1)(A) organizations ($7,100).................
                                                                                         -----------------------
    Amount treated as paid..............................................................  ..........       6,500
                                                                                         =======================
(2) The amount of excess contributions for 1970 of 30-percent capital gain property
 which is treated as paid in 1974 is the least of:
  (i) Available carryover from 1970 to 1974 of contributions of 30-percent capital gain       $2,000
   property.............................................................................
  (ii) Excess of 50 percent of contribution base for 1974 ($16,500) over sum of                2,900
   contributions actually made in 1974 to section 170(b)(1)(A) organizations ($7,100)
   and excess contributions for 1973 of property other than 30-percent capital gain
   property treated under item (1) above as paid in 1974 ($6,500).......................

[[Page 113]]

 
  (iii) Excess of 30 percent of contribution base for 1974 ($9,900) over contributions         3,500  ..........
   of 30-percent capital gain property actually made in 1974 to section 170(b)(1)(A)
   organizations ($6,400)...............................................................
                                                                                         -----------------------
    Amount treated as paid..............................................................  ..........      $2,000
                                                                                         =======================
(3) The amount of excess contributions for 1972 of 30-percent capital gain property
 which is treated as paid in 1974 is the least of:
  (i) Available carryover from 1972 to 1974 of contributions of 30-percent capital gain        1,800
   property.............................................................................
  (ii) Excess of 50 percent of contribution base for 1974 ($16,500) over sum of                  900
   contributions actually made in 1974 to section 170(b)(1)(A) organizations ($7,100)
   and excess contributions for 1973 and 1970 treated under items (1) and (2) above as
   paid in 1974 ($8,500)................................................................
  (iii) Excess of 30 percent of contribution base for 1974 ($9,900) over sum of                1,500  ..........
   contributions of 30-percent capital gain property actually made in 1974 to section
   170(b)(1)(A) organizations ($6,400) and excess contributions for 1970 of 30-percent
   capital gain property treated under item (2) above as paid in 1974 ($2,000)..........
                                                                                         -----------------------
    Amount treated as paid..............................................................  ..........         900
----------------------------------------------------------------------------------------------------------------

    (d) Adjustments--(1) Effect of net operating loss carryovers on 
carryover of excess contributions. An individual having a net operating 
loss carryover from a prior taxable year which is available as a 
deduction in a contribution year must apply the special rule of section 
170(d)(1)(B) and this subparagraph in computing the excess described in 
paragraph (b)(1) or (c)(1) of this section for such contribution year. 
In determining the amount of excess charitable contributions that shall 
be treated as paid in each of the 5 taxable years succeeding the 
contribution year, the excess charitable contributions described in 
paragraph (b)(1) or (c)(1) of this section must be reduced by the amount 
by which such excess reduces taxable income (for purposes of determining 
the portion of a net operating loss which shall be carried to taxable 
years succeeding the contribution year under the second sentence of 
section 172(b)(2)) and increases the net operating loss which is carried 
to a succeeding taxable year. In reducing taxable income under the 
second sentence of section 172(b)(2), an individual who has made 
charitable contributions in the contribution year to both section 
170(b)(1)(A) organizations, as defined in Sec. 1.170A-9, and to 
organizations which are not section 170(b)(1)(A) organizations must 
first deduct contributions made to the section 170(b)(1)(A) 
organizations from his adjusted gross income computed without regard to 
his net operating loss deduction before any of the contributions made to 
organizations which are not section 170(b)(1)(A) organizations may be 
deducted from such adjusted gross income. Thus, if the excess of the 
contributions made in the contribution year to section 170(b)(1)(A) 
organizations over the amount deductible in such contribution year is 
utilized to reduce taxable income (under the provisions of section 
172(b)(2)) for such year, thereby serving to increase the amount of the 
net operating loss carryover to a succeeding year or years, no part of 
the excess charitable contributions made in such contribution year shall 
be treated as paid in any of the 5 immediately succeeding taxable years. 
If only a portion of the excess charitable contributions is so used, the 
excess charitable contributions shall be reduced only to that extent. 
The provisions of this subparagraph may be illustrated by the following 
examples:

    Example 1. B, an individual, reports his income on the calendar year 
basis and for the year 1970 has adjusted gross income (computed without 
regard to any net operating loss deduction) of $50,000. During 1970 he 
made charitable contributions of cash in the amount of $30,000 all of 
which were to section 170(b)(1)(A) organizations. B has a net operating 
loss carryover from 1969 of $50,000. In the absence of the net operating 
loss deduction B would have been allowed a deduction for charitable 
contributions of $25,000. After

[[Page 114]]

the application of the net operating loss deduction, B is allowed no 
deduction for charitable contributions, and there is (before applying 
the special rule of section 170(d)(1)(B) and this subparagraph) a 
tentative excess charitable contribution of $30,000. For purposes of 
determining the net operating loss which remains to be carried over to 
1971, B computes his taxable income for 1970 under section 172(b)(2) by 
deducting the $25,000 charitable contribution. After the $50,000 net 
operating loss carryover is applied against the $25,000 of taxable 
income for 1970 (computed in accordance with section 172(b)(2), assuming 
no deductions other than the charitable contributions deduction are 
applicable in making such computation), there remains a $25,000 net 
operating loss carryover to 1971. Since the application of the net 
operating loss carryover of $50,000 from 1969 reduces the 1970 adjusted 
gross income (for purposes of determining 1970 tax liability) to zero, 
no part of the $25,000 of charitable contributions in that year is 
deductible under section 170(b)(1). However, in determining the amount 
of the excess charitable contributions which shall be treated as paid in 
taxable years 1971, 1972, 1973, 1974, and 1975, the $30,000 must be 
reduced to $5,000 by the portion of the excess charitable contributions 
($25,000) which was used to reduce taxable income for 1970 (as computed 
for purposes of the second sentence of section 172(b)(2)) and which 
thereby served to increase the net operating loss carryover to 1971 from 
zero to $25,000.
    Example 2. Assume the same facts as in Example 1, except that B's 
total charitable contributions of $30,000 in cash made during 1970 
consisted of $25,000 to section 170(b)(1)(A) organizations and $5,000 to 
organizations other than section 170(b)(1)(A) organizations. Under these 
facts there is a tentative excess charitable contribution of $25,000, 
rather than $30,000 as in Example 1. For purposes of determining the net 
operating loss which remains to be carried over to 1971, B computes his 
taxable income for 1970 under section 172(b)(2) by deducting the $25,000 
of charitable contributions made to section 170(b)(1)(A) organizations. 
Since the excess charitable contribution of $25,000 determined in 
accordance with paragraph (b)(1) of this section was used to reduce 
taxable income for 1970 (as computed for purposes of the second sentence 
of section 172(b)(2)) and thereby served to increase the net operating 
loss carryover to 1971 from zero to $25,000, no part of such excess 
charitable contributions made in the contribution year shall be treated 
as paid in any of the five immediately succeeding taxable years. No 
carryover is allowed with respect to the $5,000 of charitable 
contributions made in 1970 to organizations other than section 
170(b)(1)(A) organizations.
    Example 3. Assume the same facts as in Example 1, except that B's 
total contributions of $30,000 made during 1970 were of 30-percent 
capital gain property. Under these facts there is a tentative excess 
charitable contribution of $30,000. For purposes of determining the net 
operating loss which remains to be carried over to 1971, B computes his 
taxable income for 1970 under section 172(b)(2)(B) by deducting the 
$15,000 (30% of $50,000) contribution of 30-percent capital gain 
property which would have been deductible in 1970 absent the net 
operating loss deduction. Since $15,000 of the excess charitable 
contribution of $30,000 determined in accordance with paragraph (c)(1) 
of this section was used to reduce taxable income for 1970 (as computed 
for purposes of the second sentence of section 172(b)(2)) and thereby 
served to increase the net operating loss carryover to 1971 from zero to 
$15,000, only $15,000 ($30,000--$15,000) of such excess shall be treated 
as paid in taxable years 1971, 1972, 1973, 1974, and 1975.

    (2) Effect of net operating loss carryback to contribution year. The 
amount of the excess contribution for a contribution year computed as 
provided in paragraph (b)(1) or (c)(1) of this section and subparagraph 
(1) of this paragraph shall not be increased because a net operating 
loss carryback is available as a deduction in the contribution year. 
Thus, for example, assuming that in 1970 there is an excess contribution 
of $50,000 (determined as provided in paragraph (b)(1) of this section) 
which is to be carried to the 5 succeeding taxable years and that in 
1973 the taxpayer has a net operating loss which may be carried back to 
1970, the excess contribution of $50,000 for 1970 is not increased by 
reason of the fact that the adjusted gross income for 1970 (on which 
such excess contribution was based) is subsequently decreased by the 
carryback of the net operating loss from 1973. In addition, in 
determining under the provisions of section 172(b)(2) the amount of the 
net operating loss for any year subsequent to the contribution year 
which is a carryback or carryover to taxable years succeeding the 
contribution year, the amount of contributions made to section 
170(b)(1)(A) organizations shall be limited to the amount of such 
contributions which did not exceed 50 percent or, in the case of 30-
percent capital gain property, 30 percent of the donor's contribution 
base, computed without regard to any of the modifications referred to in 
section 172(d), for

[[Page 115]]

the contribution year. Thus, for example, assume that the taxpayer has a 
net operating loss in 1973 which is carried back to 1970 and in turn to 
1971 and that he has made charitable contributions in 1970 to section 
170(b)(1)(A) organizations. In determining the maximum amount of such 
charitable contributions which may be deducted in 1970 for purposes of 
determining the taxable income for 1970 which is deducted under section 
172(b)(2) from the 1973 loss in order to ascertain the amount of such 
loss which is carried back to 1971, the 50-percent limitation of section 
170(b)(1)(A) is based upon the adjusted gross income for 1970 computed 
without taking into account the net operating loss carryback from 1973 
and without making any of the modifications specified in section 172(d).
    (3) Effect of net operating loss carryback to taxable years 
succeeding the contribution year. The amount of the charitable 
contribution from a preceding taxable year which is treated as paid, as 
provided in paragraph (b)(2) or (c)(2) of this section, in a current 
taxable year (hereinafter referred to in this subparagraph as the 
``deduction year'') shall not be reduced because a net operating loss 
carryback is available as a deduction in the deduction year. In 
addition, in determining under the provisions of section 172(b)(2) the 
amount of the net operating loss for any taxable year subsequent to the 
deduction year which is a carryback or carryover to taxable years 
succeeding the deduction year, the amount of contributions made to 
section 170(b)(1)(A) organizations in the deduction year shall be 
limited to the amount of such contributions, which were actually made in 
such year and those which were treated as paid in such year, which did 
not exceed 50 percent or, in the case of 30-percent capital gain 
property, 30 percent of the donor's contribution base, computed without 
regard to any of the modifications referred to in section 172(d), for 
the deduction year.
    (4) Husband and wife filing joint returns--(i) Change from joint 
return to separate returns. If a husband and wife:
    (a) Make a joint return for a contribution year and compute an 
excess charitable contribution for such year in accordance with the 
provisions of paragraph (b)(1) or (c)(1) of this section and 
subparagraph (1) of this paragraph, and
    (b) Make separate returns for one or more of the 5 taxable years 
immediately succeeding such contribution year, any excess charitable 
contribution for the contribution year which is unused at the beginning 
of the first such taxable year for which separate returns are filed 
shall be allocated between the husband and wife. For purposes of the 
allocation, a computation shall be made of the amount of any excess 
charitable contribution which each spouse would have computed in 
accordance with paragraph (b)(1) or (c)(1) of this section and 
subparagraph (1) of this paragraph if separate returns (rather than a 
joint return) had been filed for the contribution year. The portion of 
the total unused excess charitable contribution for the contribution 
year allocated to each spouse shall be an amount which bears the same 
ratio to such unused excess charitable contribution as such spouse's 
excess contribution, based on the separate return computation, bears to 
the total excess contributions of both spouses, based on the separate 
return computation. To the extent that a portion of the amount allocated 
to either spouse in accordance with the foregoing provisions of this 
subdivision is not treated in accordance with the provisions of 
paragraph (b)(2) or (c)(2) of this section as a charitable contribution 
paid to a section 170(b)(1)(A) organization in the taxable year in which 
a separate return or separate returns are filed, each spouse shall for 
purposes of paragraph (b)(2) or (c)(2) of this section treat his 
respective unused portion as the available charitable contributions 
carryover to the next succeeding taxable year in which the joint excess 
charitable contribution may be treated as paid in accordance with 
paragraph (b)(1) or (c)(1) of this section. If such husband and wife 
make a joint return in one of the 5 taxable years immediately succeeding 
the contribution year with respect to which a joint excess charitable 
contribution is computed and following such first taxable year for which 
such husband and wife filed a separate return, the amounts allocated to 
each

[[Page 116]]

spouse in accordance with this subdivision for such first year reduced 
by the portion of such amounts treated as paid to a section 170(b)(1)(A) 
organization in such first year and in any taxable year intervening 
between such first year and the succeeding taxable year in which the 
joint return is filed shall be aggregated for purposes of determining 
the amount of the available charitable contributions carryover to such 
succeeding taxable year. The provisions of this subdivision may be 
illustrated by the following example:

    Example. (a) H and W file joint returns for 1970, 1971, and 1972, 
and in 1973 they file separate returns. In each such year H and W 
itemize their deductions in computing taxable income. Assume the 
following factual situation with respect to H and W for 1970:

                                  1970
------------------------------------------------------------------------
                                                                  Joint
                                                H         W      return
------------------------------------------------------------------------
Contribution base.........................   $50,000   $40,000   $90,000
                                           =============================
Contributions of cash to section              37,000    28,000    65,000
 170(b)(1)(A) organizations (no other
 contributions)...........................
Allowable charitable contributions            25,000    20,000    45,000
 deductions...............................
                                           -----------------------------
Excess contributions for taxable year to      12,000     8,000    20,000
 be treated as paid in 5 succeeding
 taxable years............................
------------------------------------------------------------------------

    (b) The joint excess charitable contribution of $20,000 is to be 
treated as having been paid to a section 170(b)(1)(A) organization in 
the 5 succeeding taxable years. Assume that in 1971 the portion of such 
excess treated as paid by H and W is $3,000, and that in 1972 the 
portion of such excess treated as paid is $7,000. Thus, the unused 
portion of the excess charitable contribution made in the contribution 
year is $10,000 ($20,000 less $3,000 [amount treated as paid in 1971] 
and $7,000 [amount treated as paid in 1972]). Since H and W file 
separate returns in 1973, $6,000 of such $10,000 is allocable to H, and 
$4,000 is allocable to W. Such allocation is computed as follows:

$12,000 (excess charitable contributions made by H (based on separate 
          return computation) in 1970)/$20,000 (total excess charitable 
          contributions made by H and W (based on separate return 
          computation) in 1970)x$10,000=$6,000
$8,000 (excess charitable contributions made by W (based on separate 
          return computation) in 1970)/$20,000 (total excess charitable 
          contributions made by H and W (based on separate return 
          computation) in 1970)x$10,000=$4,000

    (c) In 1973 H has a contribution base of $70,000, and he contributes 
$14,000 in cash to a section 170(b)(1)(A) organization. In 1973 W has a 
contribution base of $50,000, and she contributes $10,000 in cash to a 
section 170(b)(1)(A) organization. Accordingly, H may claim a charitable 
contributions deduction of $20,000 in 1973, and W may claim a charitable 
contributions deduction of $14,000 in 1973. H's $20,000 deduction 
consists of the $14,000 contribution made to the section 170(b)(1)(A) 
organization in 1973 and the $6,000 carried over from 1970 and treated 
as a charitable contribution paid by him to a section 170(b)(1)(A) 
organization in 1973. W's $14,000 deduction consists of the $10,000 
contribution made to a section 170(b)(1)(A) organization in 1973 and the 
$4,000 carried over from 1970 and treated as a charitable contribution 
paid by her to a section 170(b)(1)(A) organization in 1973.
    (d) The $6,000 contribution treated as paid in 1973 by H, and the 
$4,000 contribution treated as paid in 1973 by W, are computed as 
follows:

------------------------------------------------------------------------
                                                          H         W
------------------------------------------------------------------------
Available charitable contribution carryover (see        $6,000    $4,000
 computations in (b))...............................
                                                     ===================
50 percent of contribution base.....................    35,000    25,000
Contributions of cash made in 1973 to section           14,000    10,000
 170(b)(1)(A) organizations (no other contributions)
                                                     -------------------
                                                        21,000    15,000
Amount of excess contributions treated as paid in       $6,000  ........
 1973: The lesser of $6,000 (available carryover of
 H to 1973) or $21,000 (excess of 50 percent of
 contribution base ($35,000) over contributions
 actually made in 1973 to section 170(b)(1)(A)
 organizations ($14,000))...........................
                                                     ==========
  The lesser of $4,000 (available carryover of W to   ........    $4,000
   1973) or $15,000 (excess of 50 percent of
   contribution base ($25,000) over contributions
   actually made in 1973 to section 170(b)(1)(A)
   organizations ($10,000)).........................
------------------------------------------------------------------------

    (e) It is assumed that H and W made no contributions of 30-percent 
capital gain property during these years. If they had made such 
contributions, there would have been similar adjustments based on 30 
percent of the contribution base.

    (ii) Change from separate returns to joint return. If in the case of 
a husband and wife:

[[Page 117]]

    (a) Either or both of the spouses make a separate return for a 
contribution year and compute an excess charitable contribution for such 
year in accordance with the provisions of paragraph (b)(1) or (c)(1) of 
this section and subparagraph (1) of this paragraph, and
    (b) Such husband and wife make a joint return for one or more of the 
taxable years succeeding such contribution year, the excess charitable 
contribution of the husband and wife for the contribution year which is 
unused at the beginning of the first taxable year for which a joint 
return is filed shall be aggregated for purposes of determining the 
portion of such unused charitable contribution which shall be treated in 
accordance with paragraph (b)(2) or (c)(2) of this section as a 
charitable contribution paid to a section 170(b)(1)(A) organization. The 
provisions of this subdivision also apply in the case of two single 
individuals who are subsequently married and file a joint return. A 
remarried taxpayer who filed a joint return with a former spouse in a 
contribution year with respect to which an excess charitable 
contribution was computed and who in any one of the 5 taxable years 
succeeding such contribution year files a joint return with his or her 
present spouse shall treat the unused portion of such excess charitable 
contribution allocated to him or her in accordance with subdivision (i) 
of this subparagraph in the same manner as the unused portion of an 
excess charitable contribution computed in a contribution year in which 
he filed a separate return, for purposes of determining the amount which 
in accordance with paragraph (b)(2) or (c)(2) of this section shall be 
treated as paid to an organization specified in section 170(b)(1)(A) in 
such succeeding year.
    (iii) Unused excess charitable contribution of deceased spouse. In 
case of the death of one spouse, any unused portion of an excess 
charitable contribution which is allocable in accordance with 
subdivision (i) of this subparagraph to such spouse shall not be treated 
as paid in the taxable year in which such death occurs or in any 
subsequent taxable year except on a separate return made for the 
deceased spouse by a fiduciary for the taxable year which ends with the 
date of death or on a joint return for the taxable year in which such 
death occurs. The application of this subdivision may be illustrated by 
the following example:

    Example. Assume the same facts as in the example in subdivision (i) 
of this subparagraph except that H dies in 1972 and W files a separate 
return for 1973. W made a joint return for herself and H for 1972. In 
the example, the unused excess charitable contribution as of January 1, 
1973, was $10,000, $6,000 of which was allocable to H and $4,000 to W. 
No portion of the $6,000 allocable to H may be treated as paid by W or 
any other person in 1973 or any subsequent year.

    (e) Information required in support of a deduction of an amount 
carried over and treated as paid. If, in a taxable year, a deduction is 
claimed in respect of an excess charitable contribution which, in 
accordance with the provisions of paragraph (b)(2) or (c)(2) of this 
section, is treated (in whole or in part) as paid in such taxable year, 
the taxpayer shall attach to his return a statement showing:
    (1) The contribution year (or years) in which the excess charitable 
contributions were made,
    (2) The excess charitable contributions made in each contribution 
year, and the amount of such excess charitable contributions consisting 
of 30-percent capital gain property,
    (3) The portion of such excess, or of each such excess, treated as 
paid in accordance with paragraph (b)(2) or (c)(2) of this section in 
any taxable year intervening between the contribution year and the 
taxable year for which the return is made, and the portion of such 
excess which consists of 30-percent capital gain property.
    (4) Whether or not an election under section 170(b)(1)(D)(iii) has 
been made which affects any of such excess contributions of 30-percent 
capital gain property, and
    (5) Such other information as the return or the instructions 
relating thereto may require.
    (f) Effective date. This section applies only to contributions paid 
in taxable years beginning after December 31, 1969. For purposes of 
applying section 170(d)(1) with respect to contributions paid in a 
taxable year beginning before January 1, 1970, subsection (b)(1)(D),

[[Page 118]]

subsection (e), and paragraphs (1), (2), (3), and (4) of subsection (f) 
of section 170 shall not apply. See section 201(g)(1)(D) of the Tax 
Reform Act of 1969 (83 Stat. 564).

[T.D. 7207, 37 FR 20787, Oct. 4, 1972; 37 FR 22982, Oct. 27, 1972, as 
amended by T.D. 7340, 40 FR 1240, Jan. 7, 1975]



Sec. 1.170A-11  Limitation on, and carryover of, contributions by 
corporations.

    (a) In general. The deduction by a corporation in any taxable year 
for charitable contributions, as defined in section 170(c), is limited 
to 5 percent of its taxable income for the year, computed without regard 
to:
    (1) The deduction under section 170 for charitable contributions,
    (2) The special deductions for corporations allowed under Part VIII 
(except section 248), Subchapter B, Chapter 1 of the Code,
    (3) Any net operating loss carryback to the taxable year under 
section 172, and
    (4) Any capital loss carryback to the taxable year under section 
1212(a)(1).

A charitable contribution by a corporation to a trust, chest, fund, or 
foundation described in section 170(c)(2) is deductible under section 
170 only if the contribution is to be used in the United States or its 
possessions exclusively for religious, charitable, scientific, literary, 
or educational purposes or for the prevention of cruelty to children or 
animals. For the purposes of section 170, amounts excluded from the 
gross income of a corporation under section 114, relating to sports 
programs conducted for the American National Red Cross, are not to be 
considered contributions or gifts.
    (b) Election by corporations on an accrual method. (1) A corporation 
reporting its taxable income on an accrual method may elect to have a 
charitable contribution treated as paid during the taxable year, if 
payment is actually made on or before the 15th day of the third month 
following the close of such year and if, during such year, its board of 
directors authorizes the charitable contribution. If by reason of such 
an election a charitable contribution (other than a contribution of a 
letter, memorandum, or property similar to a letter or memorandum) paid 
in a taxable year beginning after December 31, 1969, is treated as paid 
during a taxable year beginning before January 1, 1970, the provisions 
of Sec. 1.170A-4 shall not be applied to reduce the amount of such 
contribution. However, see section 170(e) before its amendment by the 
Tax Reform Act of 1969.
    (2) The election must be made at the time the return for the taxable 
year is filed, by reporting the contribution on the return. There shall 
be attached to the return when filed a written declaration stating that 
the resolution authorizing the contribution was adopted by the board of 
directors during the taxable year. For taxable years beginning before 
January 1, 2003, the declaration shall be verified by a statement signed 
by an officer authorized to sign the return that it is made under 
penalties of perjury, and there shall also be attached to the return 
when filed a copy of the resolution of the board of directors 
authorizing the contribution. For taxable years beginning after December 
31, 2002, the declaration must also include the date of the resolution, 
the declaration shall be verified by signing the return, and a copy of 
the resolution of the board of directors authorizing the contribution is 
a record that the taxpayer must retain and keep available for inspection 
in the manner required by Sec. 1.6001-1(e).
    (c) Charitable contributions carryover of corporations--(1) In 
general. Subject to the reduction provided in subparagraph (2) of this 
paragraph, any charitable contributions made by a corporation in a 
taxable year (hereinafter in this paragraph referred to as the 
``contribution year'') in excess of the amount deductible in such 
contribution year under the 5-percent limitation of section 170(b)(2) 
are deductible in each of the five succeeding taxable years in order of 
time, but only to the extent of the lesser of the following amounts:
    (i) The excess of the maximum amount deductible for such succeeding 
taxable year under the 5-percent limitation of section 170(b)(2) over 
the sum of the charitable contributions made in that year plus the 
aggregate of the excess contributions which were made in taxable years 
before the contribution

[[Page 119]]

year and which are deductible under this paragraph in such succeeding 
taxable year; or
    (ii) In the case of the first taxable year succeeding the 
contribution year, the amount of the excess charitable contributions, 
and in the case of the second, third, fourth, and fifth taxable years 
succeeding the contribution year, the portion of the excess charitable 
contributions not deductible under this subparagraph for any taxable 
year intervening between the contribution year and such succeeding 
taxable year.

This paragraph applies to excess charitable contributions by a 
corporation, whether or not such contributions are made to, or for the 
use of, the donee organization and whether or not such organization is a 
section 170(b)(1)(A) organization, as defined in Sec. 1.170A-9. For 
purposes of applying this paragraph, a charitable contribution made in a 
taxable year beginning before January 1, 1970, which is carried over to 
taxable year beginning after December 31, 1969, under section 170(b)(2) 
(before its amendment by the Tax Reform Act of 1969) and is deductible 
in such taxable year beginning after December 31, 1969, shall be treated 
as deductible under section 170(d)(1) and this paragraph. The 
application of this subparagraph may be illustrated by the following 
example:

    Example. A corporation which reports its income on the calendar year 
basis makes a charitable contribution of $20,000 in 1970. Its taxable 
income (determined without regard to any deduction for charitable 
contributions) for 1970 is $100,000. Accordingly, the charitable 
contributions deduction for that year is limited to $5,000 (5 percent of 
$100,000). The excess charitable contribution not deductible in 1970 
($15,000) is a carryover to 1971. The corporation has taxable income 
(determined without regard to any deduction for charitable 
contributions) of $150,000 in 1971 and makes a charitable contribution 
of $5,000 in that year. For 1971 the corporation may deduct as a 
charitable contribution the amount of $7,500 (5 percent of $150,000). 
This amount consists of the $5,000 contribution made in 1971 and of the 
$2,500 carried over from 1970. The remaining $12,500 carried over from 
1970 and not allowable as a deduction for 1971 because of the 5-percent 
limitation may be carried over to 1972. The corporation has taxable 
income (determined without regard to any deduction for charitable 
contributions) of $200,000 in 1972 and makes a charitable contribution 
of $5,000 in that year. For 1972 the corporation may deduct the amount 
of $10,000 (5 percent of $200,000). This amount consists of the $5,000 
contributed in 1972, and $5,000 of the $12,500 carried over from 1970 to 
1972. The remaining $7,500 of the carryover from 1970 is available for 
purposes of computing the charitable contributions carryover from 1970 
to 1973, 1974, and 1975.

    (2) Effect of net operating loss carryovers on carryover of excess 
contributions. A corporation having a net operating loss carryover from 
any taxable year must apply the special rule of section 170(d)(2)(B) and 
this subparagraph before computing under subparagraph (1) of this 
paragraph the excess charitable contributions carryover from any taxable 
year. In determining the amount of excess charitable contributions that 
may be deducted in accordance with subparagraph (1) of this paragraph in 
taxable years succeeding the contribution year, the excess of the 
charitable contributions made by a corporation in the contributions year 
over the amount deductible in such year must be reduced by the amount by 
which such excess reduces taxable income for purposes of determining the 
net operating loss carryover under the second sentence of section 
172(b)(2)) and increases a net operating loss carryover to a succeeding 
taxable year. Thus, if the excess of the contributions made in a taxable 
year over the amount deductible in the taxable year is utilized to 
reduce taxable income (under the provisions of section 172(b)(2)) for 
such year, thereby serving to increase the amount of the net operating 
loss carryover to a succeeding taxable year or years, no charitable 
contributions carryover will be allowed. If only a portion of the excess 
charitable contributions is so used, the charitable contributions 
carryover will be reduced only to that extent. The application of this 
subparagraph may be illustrated by the following example:

    Example. A corporation, which reports its income on the calendar 
year basis, makes a charitable contribution of $10,000 during 1971. Its 
taxable income for 1971 is $80,000 (computed without regard to any net 
operating loss deduction and computed in accordance with section 
170(b)(2) without regard to any deduction for charitable contributions). 
The corporation has a net operating loss carryover from 1970 of $80,000. 
In the absence of

[[Page 120]]

the net operating loss deduction the corporation would have been allowed 
a deduction for charitable contributions of $4,000 (5 percent of 
$80,000). After the application of the net operating loss deduction the 
corporation is allowed no deduction for charitable contributions, and 
there is a tentative charitable contribution carryover from 1971 of 
$10,000. For purposes of determining the net operating loss carryover to 
1972 the corporation computes its taxable income for 1971 under section 
172(b)(2) by deducting the $4,000 charitable contribution. Thus, after 
the $80,000 net operating loss carryover is applied against the $76,000 
of taxable income for 1971 (computed in accordance with section 
172(b)(2)), there remains a $4,000 net operating loss carryover to 1972. 
Since the application of the net operating loss carryover of $80,000 
from 1970 reduces the taxable income for 1971 to zero, no part of the 
$10,000 of charitable contributions in that year is deductible under 
section 170(b)(2). However, in determining the amount of the allowable 
charitable contributions carryover from 1971 to 1972, 1973, 1974, 1975, 
and 1976, the $10,000 must be reduced by the portion thereof ($4,000) 
which was used to reduce taxable income for 1971 (as computed for 
purposes of the second sentence of section 172(b)(2)) and which thereby 
served to increase the net operating loss carryover from 1970 to 1972 
from zero to $4,000.

    (3) Effect of net operating loss carryback to contribution year. The 
amount of the excess contribution for a contribution year computed as 
provided in subparagraph (1) of this paragraph shall not be increased 
because a net operating loss carryback is available as a deduction in 
the contribution year. In addition, in determining under the provisions 
of section 172(b)(2) the amount of the net operating loss for any year 
subsequent to the contribution year which is a carryback or carryover to 
taxable years succeeding the contribution year, the amount of any 
charitable contributions shall be limited to the amount of such 
contributions which did not exceed 5 percent of the donor's taxable 
income, computed as provided in paragraph (a) of this section and 
without regard to any of the modifications referred to in section 
172(d), for the contribution year. For illustrations see paragraph 
(d)(2) of Sec. 1.170A-10.
    (4) Effect of net operating loss carryback to taxable year 
succeeding the contribution year. The amount of the charitable 
contribution from a preceding taxable year which is deductible (as 
provided in this paragraph) in a current taxable year (hereinafter 
referred to in this subparagraph as the ``deduction year'') shall not be 
reduced because a net operating loss carryback is available as a 
deduction in the deduction year. In addition, in determining under the 
provisions of section 172(b)(2) the amount of the net operating loss for 
any taxable year subsequent to the deduction year which is a carryback 
or a carryover to taxable years succeeding the deduction year, the 
amount of contributions made in the deduction year shall be limited to 
the amount of such contributions, which were actually made in such year 
and those which were deductible in such year under section 170(d)(2), 
which did not exceed 5 percent of the donor's taxable income, computed 
as provided in paragraph (a) of this section and without regard to any 
of the modifications referred to in section 172(d), for the deduction 
year.
    (5) Year contribution is made. For purposes of this paragraph, 
contributions made by a corporation in a contribution year include 
contributions which, in accordance with the provisions of section 
170(a)(2) and paragraph (b) of this section, are considered as paid 
during such contribution year.
    (d) Effective date. This section applies only to contributions paid 
in taxable years beginning after December 31, 1969. For purposes of 
applying section 170(d)(2) with respect to contributions paid, or 
treated under section 170(a)(2) as paid, in a taxable year beginning 
before January 1, 1970, subsection (e), and paragraphs (1), (2), (3), 
and (4) of subsection (f) of section 170 shall not apply. See section 
201(g)(1)(D) of the Tax Reform Act of 1969 (83 Stat. 564).

[T.D. 7207, 37 FR 20793, Oct. 4, 1972, as amended by T.D. 7807, 47 FR 
4512, Feb. 1, 1982; T.D. 9100, 68 FR 70704, Dec. 19, 2003; T.D. 9300, 71 
FR 71041, Dec. 8, 2006]



Sec. 1.170A-12  Valuation of a remainder interest in real property 
for contributions made after July 31, 1969.

    (a) In general. (1) Section 170(f)(4) provides that, in determining 
the value of a remainder interest in real property for purposes of 
section 170, depreciation and depletion of such property shall be

[[Page 121]]

taken into account. Depreciation shall be computed by the straight line 
method and depletion shall be computed by the cost depletion method. 
Section 170(f)(4) and this section apply only in the case of a 
contribution, not made in trust, of a remainder interest in real 
property made after July 31, 1969, for which a deduction is otherwise 
allowable under section 170.
    (2) In the case of the contribution of a remainder interest in real 
property consisting of a combination of both depreciable and 
nondepreciable property, or of both depletable and nondepletable 
property, and allocation of the fair market value of the property at the 
time of the contribution shall be made between the depreciable and 
nondepreciable property, or the depletable and nondepletable property, 
and depreciation or depletion shall be taken into account only with 
respect to the depreciable or depletable property. The expected value at 
the end of its ``estimated useful life'' (as defined in paragraph (d) of 
this section) of that part of the remainder interest consisting of 
depreciable property shall be considered to be nondepreciable property 
for purposes of the required allocation. In the case of the contribution 
of a remainder interest in stock in a cooperative housing corporation 
(as defined in section 216(b)(1)), an allocation of the fair market 
value of the stock at the time of the contribution shall be made to 
reflect the respective values of the depreciable and nondepreciable 
property underlying such stock, and depreciation on the depreciable part 
shall be taken into account for purposes of valuing the remainder 
interest in such stock.
    (3) If the remainder interest that has been contributed follows only 
one life, the value of the remainder interest shall be computed under 
the rules contained in paragraph (b) of this section. If the remainder 
interest that has been contributed follows a term for years, the value 
of the remainder interest shall be computed under the rules contained in 
paragraph (c) of this section. If the remainder interest that has been 
contributed is dependent upon the continuation or the termination of 
more than one life or upon a term certain concurrent with one or more 
lives, the provisions of paragraph (e) of this section shall apply. In 
every case where it is provided in this section that the rules contained 
in Sec. 25.2512-5 (or, for certain prior periods, Sec. 25.2512-5A) of 
this chapter (Gift Tax Regulations) apply, such rules shall apply 
notwithstanding the general effective date for such rules contained in 
paragraph (a) of such section. Except as provided in Sec. 1.7520-3(b) 
of this chapter, for transfers of remainder interests after April 30, 
1989, the present value of the remainder interest is determined under 
Sec. 25.2512-5 of this chapter by use of the interest rate component on 
the date the interest is transferred unless an election is made under 
section 7520 and Sec. 1.7520-2 of this chapter to compute the present 
value of the interest transferred by use of the interest rate component 
for either of the 2 months preceding the month in which the interest is 
transferred. In some cases, a reduction in the amount of a charitable 
contribution of a remainder interest, after the computation of its value 
under section 170(f)(4) and this section, may be required. See section 
170(e) and Sec. 1.170A-4.
    (b) Valuation of a remainder interest following only one life--(1) 
General rule. The value of a remainder interest in real property 
following only one life is determined under the rules provided in Sec. 
20.2031-7 (or for certain prior periods, Sec. 20.2031-7A) of this 
chapter (Estate Tax Regulations), using the interest rate and life 
contingencies prescribed for the date of the gift. See, however, Sec. 
1.7520-3(b) (relating to exceptions to the use of prescribed tables 
under certain circumstances). However, if any part of the real property 
is subject to exhaustion, wear and tear, or obsolescence, the special 
factor determined under paragraph (b)(2) of this section shall be used 
in valuing the remainder interest in that part. Further, if any part of 
the property is subject to depletion of its natural resources, such 
depletion is taken into account in determining the value of the 
remainder interest.
    (2) Computation of depreciation factor. If the valuation of the 
remainder interest in depreciable property is dependent upon the 
continuation of one life, a special factor must be used. The factor 
determined under this paragraph (b)(2)

[[Page 122]]

is carried to the fifth decimal place. The special factor is to be 
computed on the basis of the interest rate and life contingencies 
prescribed in Sec. 20.2031-7 of this chapter (or for periods before May 
1, 2009, Sec. 20.2031-7A) and on the assumption that the property 
depreciates on a straight-line basis over its estimated useful life. For 
transfers for which the valuation date is on or after May 1, 2009, 
special factors for determining the present value of a remainder 
interest following one life and an example describing the computation 
are contained in Internal Revenue Service Publication 1459, ``Actuarial 
Valuations Version 3C'' (2009). This publication is available, at no 
charge, electronically via the IRS Internet site at http://www.irs.gov. 
For transfers for which the valuation date is after April 30, 1999, and 
before May 1, 2009, special factors for determining the present value of 
a remainder interest following one life and an example describing the 
computation are contained in Internal Revenue Service Publication 1459, 
``Actuarial Values, Book Gimel,'' (7-99). For transfers for which the 
valuation date is after April 30, 1989, and before May 1, 1999, special 
factors for determining the present value of a remainder interest 
following one life and an example describing the computation are 
contained in Internal Revenue Service Publication 1459, ``Actuarial 
Values, Gamma Volume,'' (8-89). These publications are no longer 
available for purchase from the Superintendent of Documents, United 
States Government Printing Office. However, they may be obtained by 
requesting a copy from: CC:PA:LPD:PR (IRS Publication 1459), room 5205, 
Internal Revenue Service, P.O.Box 7604, Ben Franklin Station, 
Washington, DC 20044. See, however, Sec. 1.7520-3(b) (relating to 
exceptions to the use of prescribed tables under certain circumstances). 
Otherwise, in the case of the valuation of a remainder interest 
following one life, the special factor may be obtained through use of 
the following formula:
[GRAPHIC] [TIFF OMITTED] TR10AU11.000

Where:

n = the estimated number of years of useful life,
i = the applicable interest rate under section 7520 of the Internal 
          Revenue Code,
v = 1 divided by the sum of 1 plus the applicable interest rate under 
          section 7520 of the Internal Revenue Code,
x = the age of the life tenant, and
lx = number of persons living at age x as set forth in Table 2000CM of 
          Sec. 20.2031-7 of this chapter (or, for periods before May 1, 
          2009, the tables set forth under Sec. 20.2031-7A).
    (3) The following example illustrates the provisions of this 
paragraph (b):

    Example. A, who is 62, donates to Y University a remainder interest 
in a personal residence, consisting of a house and land, subject to a 
reserved life estate in A. At the time of the gift, the land has a value 
of $30,000 and the house has a value of $100,000 with an estimated 
useful life of 45 years, at the end of which period the value of the 
house is expected to be $20,000. The portion of the property considered 
to be depreciable is $80,000 (the value of the house ($100,000) less its 
expected value at the end of 45 years ($20,000)). The portion of the 
property considered to be nondepreciable is $50,000 (the value of the 
land at the time of the gift ($30,000) plus the expected value of the 
house at the end of 45 years ($20,000)). At the time of the gift, the 
interest rate prescribed under section 7520 is 8.4 percent. Based on an 
interest rate of 8.4 percent, the remainder factor for $1.00 prescribed 
in Sec. 20.2031-7(d) for a person age 62 is 0.26534. The value of the 
nondepreciable remainder interest is $13,267.00 (0.26534 times $50,000). 
The value of the depreciable remainder interest is $15,053.60 (0.18817, 
computed under the formula described in paragraph (b)(2) of this 
section, times $80,000). Therefore, the value of the remainder interest 
is $28,320.60.

    (c) Valuation of a remainder interest following a term for years. 
The value of a remainder interest in real property

[[Page 123]]

following a term for years shall be determined under the rules provided 
in Sec. 25.2512-5 (or, for certain prior periods, Sec. 25.2512-5A) of 
this chapter (Gift Tax Regulations) using Table B provided in Sec. 
20.2031-7(d)(6) of this chapter. However, if any part of the real 
property is subject to exhaustion, wear and tear, or obsolescence, in 
valuing the remainder interest in that part the value of such part is 
adjusted by subtracting from the value of such part the amount 
determined by multiplying such value by a fraction, the numerator of 
which is the number of years in the term or, if less, the estimated 
useful life of the property, and the denominator of which is the 
estimated useful life of the property. The resultant figure is the value 
of the property to be used in Sec. 25.2512-5 (or, for certain prior 
periods, Sec. 25.2512-5A) of this chapter (Gift Tax Regulations). 
Further, if any part of the property is subject to depletion of its 
natural resources, such depletion shall be taken into account in 
determining the value of the remainder interest. The provisions of this 
paragraph as it relates to depreciation are illustrated by the following 
example:

    Example. In 1972, B donates to Z University a remainder interest in 
his personal residence, consisting of a house and land, subject to a 20 
year term interest provided for his sister. At such time the house has a 
value of $60,000, and an expected useful life of 45 years, at the end of 
which time it is expected to have a value of $10,000, and the land has a 
value of $8,000. The value of the portion of the property considered to 
be depreciable is $50,000 (the value of the house ($60,000) less its 
expected value at the end of 45 years ($10,000)), and this is multiplied 
by the fraction 20/45. The product, $22,222.22, is subtracted from 
$68,000, the value of the entire property, and the balance, $45,777.78, 
is multiplied by the factor .311805 (see Sec. 25.2512-5A(c)). The 
result, $14,273.74, is the value of the remainder interest in the 
property.

    (d) Definition of estimated useful life. For the purposes of this 
section, the determination of the estimated useful life of depreciable 
property shall take account of the expected use of such property during 
the period of the life estate or term for years. The term ``estimated 
useful life'' means the estimated period (beginning with the date of the 
contribution) over which such property may reasonably be expected to be 
useful for such expected use. This period shall be determined by 
reference to the experience based on any prior use of the property for 
such purposes if such prior experience is adequate. If such prior 
experience is inadequate or if the property has not been previously used 
for such purposes, the estimated useful life shall be determined by 
reference to the general experience of persons normally holding similar 
property for such expected use, taking into account present conditions 
and probable future developments. The estimated useful life of such 
depreciable property is not limited to the period of the life estate or 
term for years preceding the remainder interest. In determining the 
expected use and the estimated useful life of the property, 
consideration is to be given to the provisions of the governing 
instrument creating the life estate or term for years or applicable 
local law, if any, relating to use, preservation, and maintenance of the 
property during the life estate or term for years. In arriving at the 
estimated useful life of the property, estimates, if available, of 
engineers or other persons skilled in estimating the useful life of 
similar property may be taken into account. At the option of the 
taxpayer, the estimated useful life of property contributed after 
December 31, 1970, for purposes of this section, shall be an asset 
depreciation period selected by the taxpayer that is within the 
permissible asset depreciation range for the relevant asset guideline 
class established pursuant to Sec. 1.167(a)-11(b) (4)(ii). For purposes 
of the preceding sentence, such period, range, and class shall be those 
which are in effect at the time that the contribution of the remainder 
interest was made. At the option of the taxpayer, in the case of 
property contributed before January 1, 1971, the estimated useful life, 
for purposes of this section, shall be the guideline life provided in 
Revenue Procedure 62-21 for the relevant asset guideline class.
    (e) Valuation of a remainder interest following more than one life 
or a term certain concurrent with one or more lives. (1)(i) If the 
valuation of the remainder interest in the real property is dependent 
upon the continuation or the termination of more than one life or upon a 
term certain concurrent with one or

[[Page 124]]

more lives, a special factor must be used.
    (ii) The special factor is to be computed on the basis of--
    (A) Interest at the rate prescribed under Sec. 25.2512-5 (or, for 
certain prior periods, Sec. 25.2512-5A) of this chapter, compounded 
annually;
    (B) Life contingencies determined from the values that are set forth 
in the mortality table in Sec. 20.2031-7 (or, for certain prior 
periods, Sec. 20.2031-7A) of this chapter; and
    (C) If depreciation is involved, the assumption that the property 
depreciates on a straight-line basis over its estimated useful life.
    (iii) If any part of the property is subject to depletion of its 
natural resources, such depletion must be taken into account in 
determining the value of the remainder interest.
    (2) In the case of the valuation of a remainder interest following 
two lives, the special factor may be obtained through use of the 
following formula:
[GRAPHIC] [TIFF OMITTED] TR10JN94.001

Where:

n=the estimated number of years of useful life,
i=the applicable interest rate under section 7520 of the Internal 
          Revenue Code,
v=1 divided by the sum of 1 plus the applicable interest rate under 
          section 7520 of the Internal Revenue Code,
x and y=the ages of the life tenants, and
lx and ly=the number of persons living at ages x and y as set forth in 
          Table 2000CM in Sec. 20.2031-7 (or, for prior periods, in 
          Sec. 20.2031-7A) of this chapter.

    (3) Notwithstanding that the taxpayer may be able to compute the 
special factor in certain cases under paragraph (2), if a special factor 
is required in the case of an actual contribution, the Commissioner will 
furnish the factor to the donor upon request. The request must be 
accompanied by a statement of the sex and date of birth of each person 
the duration of whose life may affect the value of the remainder 
interest, copies of the relevant instruments, and, if depreciation is 
involved, a statement of the estimated useful life of the depreciable 
property. However, since remainder interests in that part of any 
property which is depletable cannot be valued on a purely actuarial 
basis, special factors will not be furnished with respect to such part. 
Requests should be forwarded to the Commissioner of Internal Revenue, 
Attention: OP:E:EP:A:1, Washington, DC 20224.
    (f) Effective/applicability date. This section applies to 
contributions made after July 31, 1969, except that paragraphs (b)(2) 
and (b)(3) apply to all contributions made on or after May 1, 2009.

[T.D. 7370, 40 FR 34337, Aug. 15, 1975, as amended by T.D. 7955, 49 FR 
19975, May 11, 1984; T.D. 8540, 59 FR 30102, 30104, June 10, 1994; T.D. 
8819, 64 FR 23228, Apr. 30, 1999; T.D. 8886, 65 FR 36909, 36943, June 
12, 2000; T.D. 9448, 74 FR 21439, 21518, May 7, 2009; 74 FR 27079, June 
8, 2009; T.D. 9540, 76 FR 49571, 49612, Aug. 10, 2011]



Sec. 1.170A-13  Recordkeeping and return requirements for deductions 
for charitable contributions.

    (a) Charitable contributions of money made in taxable years 
beginning after December 31, 1982--(1) In general. If a taxpayer makes a 
charitable contribution of money in a taxable year beginning after 
December 31, 1982, the taxpayer shall maintain for each contribution one 
of the following:
    (i) A cancelled check.
    (ii) A receipt from the donee charitable organization showing the 
name of the donee, the date of the contribution, and the amount of the 
contribution. A letter or other communication from the donee charitable 
organization acknowledging receipt of a contribution and showing the 
date and amount of the contribution constitutes a receipt for purposes 
of this paragraph (a).

[[Page 125]]

    (iii) In the absence of a canceled check or receipt from the donee 
charitable organization, other reliable written records showing the name 
of the donee, the date of the contribution, and the amount of the 
contribution.
    (2) Special rules--(i) Reliability of records. The reliability of 
the written records described in paragraph (a)(1)(iii) of this section 
is to be determined on the basis of all of the facts and circumstances 
of a particular case. In all events, however, the burden shall be on the 
taxpayer to establish reliability. Factors indicating that the written 
records are reliable include, but are not limited to:
    (A) The contemporaneous nature of the writing evidencing the 
contribution.
    (B) The regularity of the taxpayer's recordkeeping procedures. For 
example, a contemporaneous diary entry stating the amount and date of 
the donation and the name of the donee charitable organization made by a 
taxpayer who regularly makes such diary entries would generally be 
considered reliable.
    (C) In the case of a contribution of a small amount, the existence 
of any written or other evidence from the donee charitable organization 
evidencing receipt of a donation that would not otherwise constitute a 
receipt under paragraph (a)(1)(ii) of this section (including an emblem, 
button, or other token traditionally associated with a charitable 
organization and regularly given by the organization to persons making 
cash donations).
    (ii) Information stated in income tax return. The information 
required by paragraph (a)(1)(iii) of this section shall be stated in the 
taxpayer's income tax return if required by the return form or its 
instructions.
    (3) Taxpayer option to apply paragraph (d)(1) to pre-1985 
contribution. See paragraph (d)(1) of this section with regard to 
contributions of money made on or before December 31, 1984.
    (b) Charitable contributions of property other than money made in 
taxable years beginning after December 31, 1982--(1) In general. Except 
in the case of certain charitable contributions of property made after 
December 31, 1984, to which paragraph (c) of this section applies, any 
taxpayer who makes a charitable contribution of property other than 
money in a taxable year beginning after December 31, 1982, shall 
maintain for each contribution a receipt from the donee showing the 
following information:
    (i) The name of the donee.
    (ii) The date and location of the contribution.
    (iii) A description of the property in detail reasonably sufficient 
under the circumstances. Although the fair market value of the property 
is one of the circumstances to be taken into account in determining the 
amount of detail to be included on the receipt, such value need not be 
stated on the receipt.

A letter or other written communication from the donee acknowledging 
receipt of the contribution, showing the date of the contribution, and 
containing the required description of the property contributed 
constitutes a receipt for purposes of this paragraph. A receipt is not 
required if the contribution is made in circumstances where it is 
impractical to obtain a receipt (e.g., by depositing property at a 
charity's unattended drop site). In such cases, however, the taxpayer 
shall maintain reliable written records with respect to each item of 
donated property that include the information required by paragraph 
(b)(2)(ii) of this section.
    (2) Special rules--(i) Reliability of records. The rules described 
in paragraph (a)(2)(i) of this section also apply to this paragraph (b) 
for determining the reliability of the written records described in 
paragraph (b)(1) of this section
    (ii) Content of records. The written records described in paragraph 
(b)(1) of this section shall include the following information and such 
information shall be stated in the taxpayers income tax return if 
required by the return form or its instructions:
    (A) The name and address of the donee organization to which the 
contribution was made.
    (B) The date and location of the contribution.
    (C) A description of the property in detail reasonable under the 
circumstances (including the value of the property), and, in the case of 
securities, the name of the issuer, the type of

[[Page 126]]

security, and whether or not such security is regularly traded on a 
stock exchange or in an over-the-counter market.
    (D) The fair market value of the property at the time the 
contribution was made, the method utilized in determining the fair 
market value, and, if the valuation was determined by appraisal, a copy 
of the signed report of the appraiser.
    (E) In the case of property to which section 170(e) applies, the 
cost or other basis, adjusted as provided by section 1016, the reduction 
by reason of section 170(e)(1) in the amount of the charitable 
contribution otherwise taken into account, and the manner in which such 
reduction was determined. A taxpayer who elects under paragraph (d)(2) 
of Sec. 1.170A-8 to apply section 170(e)(1) to contributions and 
carryovers of 30 percent capital gain property shall maintain a written 
record indicating the years for which the election was made and showing 
the contributions in the current year and carryovers from preceding 
years to which it applies. For the definition of the term ``30-percent 
capital gain property,'' see paragraph (d)(3) of Sec. 1.170A-8.
    (F) If less than the entire interest in the property is contributed 
during the taxable year, the total amount claimed as a deduction for the 
taxable year due to the contribution of the property, and the amount 
claimed as a deduction in any prior year or years for contributions of 
other interests in such property, the name and address of each 
organization to which any such contribution was made, the place where 
any such property which is tangible property is located or kept, and the 
name of any person, other than the organization to which the property 
giving rise to the deduction was contributed, having actual possession 
of the property.
    (G) The terms of any agreement or understanding entered into by or 
on behalf of the taxpayer which relates to the use, sale, or other 
disposition of the property contributed, including for example, the 
terms of any agreement or understanding which:
    (1) Restricts temporarily or permanently the donee's right to use or 
dispose of the donated property,
    (2) Reserves to, or confers upon, anyone (other than the donee 
organization or an organization participating with the donee 
organization in cooperative fundraising) any right to the income from 
the donated property or to the possession of the property, including the 
right to vote donated securities, to acquire the property by purchase or 
otherwise, or to designate the person having such income, possession, or 
right to acquire, or
    (3) Earmarks donated property for a particular use.
    (3) Deductions in excess of $500 claimed for a charitable 
contribution of property other than money--(i) In general. In addition 
to the information required under paragraph (b)(2)(ii) of this section, 
if a taxpayer makes a charitable contribution of property other than 
money in a taxable year beginning after December 31, 1982, and claims a 
deduction in excess of $500 in respect of the contribution of such item, 
the taxpayer shall maintain written records that include the following 
information with respect to such item of donated property, and shall 
state such information in his or her income tax return if required by 
the return form or its instructions:
    (A) The manner of acquisition, as for example by purchase, gift 
bequest, inheritance, or exchange, and the approximate date of 
acquisition of the property by the taxpayer or, if the property was 
created, produced, or manufactured by or for the taxpayer, the 
approximate date the property was substantially completed.
    (B) The cost or other basis, adjusted as provided by section 1016, 
of property, other than publicly traded securities, held by the taxpayer 
for a period of less than 12 months (6 months for property contributed 
in taxable years beginning after December 31, 1982, and on or before 
June 6, 1988, immediately preceding the date on which the contribution 
was made and, when the information is available, of property, other than 
publicly traded securities, held for a period of 12 months or more (6 
months or more for property contributed in taxable years beginning after 
December 31, 1982, and on or before June 6, 1988, preceding the date on 
which the contribution was made.

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    (ii) Information on acquisition date or cost basis not available. If 
the return form or its instructions require the taxpayer to provide 
information on either the acquisition date of the property or the cost 
basis as described in paragraph (b)(3)(i) (A) and (B), respectively, of 
this section, and the taxpayer has reasonable cause for not being able 
to provide such information, the taxpayer shall attach an explanatory 
statement to the return. If a taxpayer has reasonable cause for not 
being able to provide such information, the taxpayer shall not be 
disallowed a charitable contribution deduction under section 170 for 
failure to comply with paragraph (b)(3)(i) (A) and (B) of the section.
    (4) Taxpayer option to apply paragraph (d) (1) and (2) to pre-1985 
contributions. See paragraph (d) (1) and (2) of this section with regard 
to contributions of property made on or before December 31, 1984.
    (c) Deductions in excess of $5,000 for certain charitable 
contributions of property made after December 31, 1984--(1) General 
Rule--(i) In general. This paragraph applies to any charitable 
contribution made after December 31, 1984, by an individual, closely 
held corporation, personal service corporation, partnership, or S 
corporation of an item of property (other than money and publicly traded 
securities to which Sec. 1.170A-13(c)(7)(xi)(B) does not apply if the 
amount claimed or reported as a deduction under section 170 with respect 
to such item exceeds $5,000. This paragraph also applies to charitable 
contributions by C corporations (as defined in section 1361(a)(2) of the 
Code) to the extent described in paragraph (c)(2)(ii) of this section. 
No deduction under section 170 shall be allowed with respect to a 
charitable contribution to which this paragraph applies unless the 
substantiation requirements described in paragraph (c)(2) of this 
section are met. For purposes of this paragraph (c), the amount claimed 
or reported as a deduction for an item of property is the aggregate 
amount claimed or reported as a deduction for a charitable contribution 
under section 170 for such items of property and all similar items of 
property (as defined in paragraph (c)(7)(iii) of this section) by the 
same donor for the same taxable year (whether or not donated to the same 
donee).
    (ii) Special rule for property to which section 170(e) (3) or (4) 
applies. For purposes of this paragraph (c), in computing the amount 
claimed or reported as a deduction for donated property to which section 
170(e) (3) or (4) applies (pertaining to certain contributions of 
inventory and scientific equipment) there shall be taken into account 
only the amount claimed or reported as a deduction in excess of the 
amount which would have been taken into account for tax purposes by the 
donor as costs of goods sold if the donor had sold the contributed 
property to the donee. For example, assume that a donor makes a 
contribution from inventory of clothing for the care of the needy to 
which section 170(e)(3) applies. The cost of the property to the donor 
was $5,000, and, pursuant to section 170(e)(3)(B), the donor claims a 
charitable contribution deduction of $8,000 with respect to the 
property. Therefore, $3,000 ($8,000-$5,000) is the amount taken into 
account for purposes of determining whether the $5,000 threshold of this 
paragraph (c)(1) is met.
    (2) Substantiation requirements--(i) In general. Except as provided 
in paragraph (c)(2)(ii) of this section, a donor who claims or reports a 
deduction with respect to a charitable contribution to which this 
paragraph (c) applies must comply with the following three requirements:
    (A) Obtain a qualified appraisal (as defined in paragraph (c) (3) of 
this section) for such property contributed. If the contributed property 
is a partial interest, the appraisal shall be of the partial interest.
    (B) Attach a fully completed appraisal summary (as defined in 
paragraph (c) (4) of this section) to the tax return (or, in the case of 
a donor that is a partnership or S corporation, the information return) 
on which the deduction for the contribution is first claimed (or 
reported) by the donor.
    (C) Maintain records containing the information required by 
paragraph (b) (2) (ii) of this section.

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    (ii) Special rules for certain nonpublicly traded stock, certain 
publicly traded securities, and contributions by certain C corporations. 
(A) In cases described in paragraph (c)(2)(ii)(B) of this section, a 
qualified appraisal is not required, and only a partially completed 
appraisal summary form (as described in paragraph (c)(4)(iv)(A) of this 
section) is required to be attached to the tax or information return 
specified in paragraph (c)(2)(i)(B) of this section. However, in all 
cases donors must maintain records containing the information required 
by paragraph (b)(2)(ii) of this section.
    (B) This paragraph (c)(2)(ii) applies in each of the following 
cases:
    (1) The contribution of nonpublicly traded stock, if the amount 
claimed or reported as a deduction for the charitable contribution of 
such stock is greater than $5,000 but does not exceed $10,000;
    (2) The contribution of a security to which paragraph (c)(7)(xi)(B) 
of this section applies; and
    (3) The contribution of an item of property or of similar items of 
property described in paragraph (c)(1) of this section made after June 
6, 1988, by a C corporation (as defined in section 1361(a)(2) of the 
Code), other than a closely held corporation or a personal service 
corporation.
    (3) Qualified appraisal--(i) In general. For purposes of this 
paragraph (c), the term ``qualified appraisal'' means an appraisal 
document that--
    (A) Relates to an appraisal that is made not earlier than 60 days 
prior to the date of contribution of the appraised property nor later 
than the date specified in paragraph (c)(3)(iv)(B) of this section;
    (B) Is prepared, signed, and dated by a qualified appraiser (within 
the meaning of paragraph (c)(5) of this section);
    (C) Includes the information required by paragraph (c)(3)(ii) of 
this section; and
    (D) Does not involve an appraisal fee prohibited by paragraph (c)(6) 
of this section.
    (ii) Information included in qualified appraisal. A qualified 
appraisal shall include the following information:
    (A) A description of the property in sufficient detail for a person 
who is not generally familiar with the type of property to ascertain 
that the property that was appraised is the property that was (or will 
be) contributed;
    (B) In the case of tangible property, the physical condition of the 
property;
    (C) The date (or expected date) of contribution to the donee;
    (D) The terms of any agreement or understanding entered into (or 
expected to be entered into) by or on behalf of the donor or donee that 
relates to the use, sale, or other disposition of the property 
contributed, including, for example, the terms of any agreement or 
understanding that--
    (1) Restricts temporarily or permanently a donee's right to use or 
dispose of the donated property,
    (2) Reserves to, or confers upon, anyone (other than a donee 
organization or an organization participating with a donee organization 
in cooperative fundraising) any right to the income from the contributed 
property or to the possession of the property, including the right to 
vote donated securities, to acquire the property by purchase or 
otherwise, or to designate the person having such income, possession, or 
right to acquire, or
    (3) Earmarks donated property for a particular use;
    (E) The name, address, and (if a taxpayer identification number is 
otherwise required by section 6109 and the regulations thereunder) the 
identifying number of the qualified appraiser; and, if the qualified 
appraiser is acting in his or her capacity as a partner in a 
partnership, an employee of any person (whether an individual, 
corporation, or partnerships), or an independent contractor engaged by a 
person other than the donor, the name, address, and taxpayer 
identification number (if a number is otherwise required by section 6109 
and the regulations thereunder) of the partnership or the person who 
employs or engages the qualified appraiser;
    (F) The qualifications of the qualified appraiser who signs the 
appraisal, including the appraiser's background, experience, education, 
and membership, if any, in professional appraisal associations;
    (G) A statement that the appraisal was prepared for income tax 
purposes;

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    (H) The date (or dates) on which the property was appraised;
    (I) The appraised fair market value (within the meaning of Sec. 
1.170A-1 (c)(2)) of the property on the date (or expected date) of 
contribution;
    (J) The method of valuation used to determine the fair market value, 
such as the income approach, the market-data approach, and the 
replacement-cost-less-depreciation approach; and
    (K) The specific basis for the valuation, such as specific 
comparable sales transactions or statistical sampling, including a 
justification for using sampling and an explanation of the sampling 
procedure employed.
    (iii) Effect of signature of the qualified appraiser. Any appraiser 
who falsely or fraudulently overstates the value of the contributed 
property referred to in a qualified appraisal or appraisal summary (as 
defined in paragraphs (c) (3) and (4), respectively, of this section) 
that the appraiser has signed may be subject to a civil penalty under 
section 6701 for aiding and abetting an understatement of tax liability 
and, moreover, may have appraisals disregarded pursuant to 31 U.S.C. 
330(c).
    (iv) Special rules--(A) Number of qualified appraisals. For purposes 
of paragraph (c)(2)(i)(A) of this section, a separate qualified 
appraisal is required for each item of property that is not included in 
a group of similar items of property. See paragraph (c)(7)(iii) of this 
section for the definition of similar items of property. Only one 
qualified appraisal is required for a group of similar items of property 
contributed in the same taxable year of the donor, although a donor may 
obtain separate qualified appraisals for each item of property. A 
qualified appraisal prepared with respect to a group of similar items of 
property shall provide all the information required by paragraph 
(c)(3)(ii) of this section for each item of similar property, except 
that the appraiser may select any items whose aggregate value is 
appraised at $100 or less and provide a group description of such items.
    (B) Time of receipt of qualified appraisal. The qualified appraisal 
must be received by the donor before the due date (including extensions) 
of the return on which a deduction is first claimed (or reported in the 
case of a donor that is a partnership or S corporation) under section 
170 with respect to the donated property, or, in the case of a deduction 
first claimed (or reported) on an amended return, the date on which the 
return is filed.
    (C) Retention of qualified appraisal. The donor must retain the 
qualified appraisal in the donor's records for so long as it may be 
relevant in the administration of any internal revenue law.
    (D) Appraisal disregarded pursuant to 31 U.S.C. 330(c). If an 
appraisal is disregarded pursuant to 31 U.S.C. 330(c) it shall have no 
probative effect as to the value of the appraised property. Such 
appraisal will, however, otherwise constitute a ``qualified appraisal'' 
for purposes of this paragraph (c) if the appraisal summary includes the 
declaration described in paragraph (c)(4)(ii)(L)(2) and the taxpayer had 
no knowledge that such declaration was false as of the time described in 
paragraph (c)(4)(i)(B) of this section.
    (4) Appraisal summary--(i) In general. For purposes of this 
paragraph (c), except as provided in paragraph (c)(4)(iv)(A) of this 
section, the term appraisal summary means a summary of a qualified 
appraisal that--
    (A) Is made on the form prescribed by the Internal Revenue Service;
    (B) Is signed and dated (as described in paragraph (c)(4)(iii) of 
this section) by the donee (or presented to the donee for signature in 
cases described in paragraph (c)(4)(iv)(C)(2) of this section);
    (C) Is signed and dated by the qualified appraiser (within the 
meaning of paragraph (c)(5) of this section) who prepared the qualified 
appraisal (within the meaning of paragraph (c)(3) of this section); and
    (D) Includes the information required by paragraph (c)(4)(ii) of 
this section.
    (ii) Information included in an appraisal summary. An appraisal 
summary shall include the following information:
    (A) The name and taxpayer identification number of the donor (social 
security number if the donor is an individual or employer identification 
number if the donor is a partnership or corporation);

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    (B) A description of the property in sufficient detail for a person 
who is not generally familiar with the type of property to ascertain 
that the property that was appraised is the property that was 
contributed;
    (C) In the case of tangible property, a brief summary of the overall 
physical condition of the property at the time of the contribution;
    (D) The manner of acquisition (e.g., purchase, exchange, gift, or 
bequest) and the date of acquisition of the property by the donor, or, 
if the property was created, produced, or manufactured by or for the 
donor, a statment to that effect and the approximate date the property 
was substantially completed;
    (E) The cost or other basis of the property adjusted as provided by 
section 1016;
    (F) The name, address, and taxpayer identification number of the 
donee;
    (G) The date the donee received the property;
    (H) For charitable contributions made after June 6, 1988, a 
statement explaining whether or not the charitable contribution was made 
by means of a bargain sale and the amount of any consideration received 
from the donee for the contribution;
    (I) The name, address, and (if a taxpayer identification number is 
otherwise required by section 6109 and the regulations thereunder) the 
identifying number of the qualified appraiser who signs the appraisal 
summary and of other persons as required by paragraph (c)(3)(ii)(E) of 
this section;
    (J) The appraised fair market value of the property on the date of 
contribution;
    (K) The declaration by the appraiser described in paragraph 
(c)(5)(i) of this section;
    (L) A declaration by the appraiser stating that--
    (1) The fee charged for the appraisal is not of a type prohibited by 
paragraph (c)(6) of this section; and
    (2) Appraisals prepared by the appraiser are not being disregarded 
pursuant to 31 U.S.C. 330(c) on the date the appraisal summary is signed 
by the appraiser; and
    (M) Such other information as may be specified by the form.
    (iii) Signature of the original donee. The person who signs the 
appraisal summary for the donee shall be an official authorized to sign 
the tax or information returns of the donee, or a person specifically 
authorized to sign appraisal summaries by an official authorized to sign 
the tax or information returns of such done. In the case of a donee that 
is a governmental unit, the person who signs the appraisal summary for 
such donee shall be the official authorized by such donee to sign 
appraisal summaries. The signature of the donee on the appraisal summary 
does not represent concurrence in the appraised value of the contributed 
property. Rather, it represents acknowledgment of receipt of the 
property described in the appraisal summary on the date specified in the 
appraisal summary and that the donee understands the information 
reporting requirements imposed by section 6050L and Sec. 1.6050L-1. In 
general, Sec. 1.6050L-1 requires the donee to file an information 
return with the Internal Revenue Service in the event the donee sells, 
exchanges, consumes, or otherwise disposes of the property (or any 
portion thereof) described in the appraisal summary within 2 years after 
the date of the donor's contribution of such property.
    (iv) Special rules--(A) Content of appraisal summary required in 
certain cases. With respect to contributions of nonpublicly traded stock 
described in paragraph (c)(2)(ii)(B)(1) of this section, contributions 
of securities described in paragraph (c)(7)(xi)(B) of this section, and 
contributions by C corporations described in paragraph (c)(2)(ii)(B)(3) 
of this section, the term appraisal summary means a document that--
    (1) Complies with the requirements of paragraph (c)(4)(i) (A) and 
(B) of this section,
    (2) Includes the information required by paragraph (c)(4)(ii) (A) 
through (H) of this section,
    (3) Includes the amount claimed or reported as a charitable 
contribution deduction, and

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    (4) In the case of securities described in paragraph (c)(7)(xi)(B) 
of this section, also includes the pertinent average trading price (as 
described in paragraph (c)(7)(xi)(B)(2)(iii) of this section).
    (B) Number of appraisal summaries. A separate appraisal summary for 
each item of property described in paragraph (c)(1) of this section must 
be attached to the donor's return. If, during the donor's taxable year, 
the donor contributes similar items of property described in paragraph 
(c)(1) of this section to more than one donee, the donor shall attach to 
the donor's return a separate appraisal summary for each donee. See 
paragraph (c)(7)(iii) of this section for the definition of similar 
items of property. If, however, during the donor's taxable year, a donor 
contributes similar items of property described in paragraph (c)(1) of 
this section to the same donee, the donor may attach to the donor's 
return a single appraisal summary with respect to all similar items of 
property contributed to the same donee. Such an appraisal summary shall 
provide all the information required by paragraph (c)(4)(ii) of this 
section for each item of property, except that the appraiser may select 
any items whose aggregate value is appraised at $100 or less and provide 
a group description for such items.
    (C) Manner of acquisition, cost basis and donee's signature. (1) If 
a taxpayer has reasonable cause for being unable to provide the 
information required by paragraph (c)(4)(ii) (D) and (E) of this section 
(relating to the manner of acquisition and basis of the contributed 
property), an appropriate explanation should be attached to the 
appraisal summary. The taxpayer's deduction will not be disallowed 
simply because of the inability (for reasonable cause) to provide these 
items of information.
    (2) In rare and unusual circumstances in which it is impossible for 
the taxpayer to obtain the signature of the donee on the appraisal 
summary as required by paragraph (c)(4)(i)(B) of this section, the 
taxpayer's deduction will not be disallowed for that reason provided 
that the taxpayer attaches a statement to the appraisal summary 
explaining, in detail, why it was not possible to obtain the donee's 
signature. For example, if the donee ceases to exist as an entity 
subsequent to the date of the contribution and prior to the date when 
the appraisal summary must be signed, and the donor acted reasonably in 
not obtaining the donee's signature at the time of the contribution, 
relief under this paragraph (c)(4)(iv)(C)(2) would generally be 
appropriate.
    (D) Information excluded from certain appraisal summaries. The 
information required by paragraph (c)(4)(i)(C), paragraph (c)(4)(ii) 
(D), (E), (H) through (M), and paragraph (c)(4)(iv)(A)(3), and the 
average trading price referred to in paragraph (c)(4)(iv)(A)(4) of this 
section do not have to be included on the appraisal summary at the time 
it is signed by the donee or a copy is provided to the donee pursuant to 
paragraph (c)(4)(iv)(E) of this section.
    (E) Statement to be furnished by donors to donees. Every donor who 
presents an appraisal summary to a donee for signature after June 6, 
1988, in order to comply with paragraph (c)(4)(i)(B) of this section 
shall furnish a copy of the appraisal summary to such donee.
    (F) Appraisal summary required to be provided to partners and S 
corporation shareholders. If the donor is a partnership or S 
corporation, the donor shall provide a copy of the appraisal summary to 
every partner or shareholder, respectively, who receives an allocation 
of a charitable contribution deduction under section 170 with respect to 
the property described in the appraisal summary.
    (G) Partners and S corporation shareholders. A partner of a 
partnership or shareholder of an S corporation who receives an 
allocation of a deduction under section 170 for a charitable 
contribution of property to which this paragraph (c) applies must attach 
a copy of the partnership's or S corporation's appraisal summary to the 
tax return on which the deduction for the contribution is first claimed. 
If such appraisal summary is not attached, the partner's or 
shareholder's deduction shall not be allowed except as provided for in 
paragraph (c)(4)(iv)(H) of this section.
    (H) Failure to attach appraisal summary. In the event that a donor 
fails to

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attach to the donor's return an appraisal summary as required by 
paragraph (c)(2)(i)(B) of this section, the Internal Revenue Service may 
request that the donor submit the appraisal summary within 90 days of 
the request. If such a request is made and the donor complies with the 
request within the 90-day period, the deduction under section 170 shall 
not be disallowed for failure to attach the appraisal summary, provided 
that the donor's failure to attach the appraisal summary was a good 
faith omission and the requirements of paragraph (c) (3) and (4) of this 
section are met (including the completion of the qualified appraisal 
prior to the date specified in paragraph (c)(3)(iv)(B) of this section).
    (5) Qualified appraiser--(i) In general. The term qualified 
appraiser means an individual (other than a person described in 
paragraph (c)(5)(iv) of this section) who includes on the appraisal 
summary (described in paragraph (c)(4) of this section), a declaration 
that--
    (A) The individual either holds himself or herself out to the public 
as an appraiser or performs appraisals on a regular basis;
    (B) Because of the appraiser's qualifications as described in the 
appraisal (pursuant to paragraph (c)(3)(ii)(F) of this section), the 
appraiser is qualified to make appraisals of the type of property being 
valued;
    (C) The appraiser is not one of the persons described in paragraph 
(c)(5)(iv) of this section; and
    (D) The appraiser understands that an intentionally false or 
fraudulent overstatement of the value of the property described in the 
qualified appraisal or appraisal summary may subject the appraiser to a 
civil penalty under section 6701 for aiding and abetting an 
understatement of tax liability, and, moreover, the appraiser may have 
appraisals disregarded pursuant to 31 U.S.C. 330(c) (see paragraph 
(c)(3)(iii) of this section).
    (ii) Exception. An individual is not a qualified appraiser with 
respect to a particular donation, even if the declaration specified in 
paragraph (c)(5)(i) of this section is provided in the appraisal 
summary, if the donor had knowledge of facts that would cause a 
reasonable person to expect the appraiser falsely to overstate the value 
of the donated property (e.g., the donor and the appraiser make an 
agreement concerning the amount at which the property will be valued and 
the donor knows that such amount exceeds the fair market value of the 
property).
    (iii) Numbers of appraisers. More than one appraiser may appraise 
the donated property. If more than one appraiser appraises the property, 
the donor does not have to use each appraiser's appraisal for purposes 
of substantiating the charitable contribution deduction pursuant to this 
paragraph (c). If the donor uses the appraisal of more than one 
appraiser, or if two or more appraisers contribute to a single 
appraisal, each appraiser shall comply with the requirements of this 
paragraph (c), including signing the qualified appraisal and appraisal 
summary as required by paragraphs (c)(3)(i)(B) and (c)(4)(i)(C) of this 
section, respectively.
    (iv) Qualified appraiser exclusions. The following persons cannot be 
qualified appraisers with respect to particular property:
    (A) The donor or the taxpayer who claims or reports a deductions 
under section 170 for the contribution of the property that is being 
appraised.
    (B) A party to the transaction in which the donor acquired the 
property being appraised (i.e., the person who sold, exchanged, or gave 
the property to the donor, or any person who acted as an agent for the 
transferor or for the donor with respect to such sale, exchange, or 
gift), unless the property is donated within 2 months of the date of 
acquisition and its appraised value does not exceed its acquisition 
price.
    (C) The donee of the property.
    (D) Any person employed by any of the foregoing persons (e.g., if 
the donor acquired a painting from an art dealer, neither the art dealer 
nor persons employed by the dealer can be qualified appraisers with 
respect to that painting).
    (E) Any person related to any of the foregoing persons under section 
267(b), or, with respect to appraisals made after June 6, 1988, married 
to a person who is in a relationship described in section 267(b) with 
any of the foregoing persons.

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    (F) An appraiser who is regularly used by any person described in 
paragraph (c)(5)(iv) (A), (B), or (C) of this section and who does not 
perform a majority of his or her appraisals made during his or her 
taxable year for other persons.
    (6) Appraisal fees--(i) In general. Except as otherwise provided in 
paragraph (c)(6)(ii) of this section, no part of the fee arrangement for 
a qualified appraisal can be based, in effect, on a percentage (or set 
of percentages) of the appraised value of the property. If a fee 
arrangement for an appraisal is based in whole or in part on the amount 
of the appraised value of the property, if any, that is allowed as a 
deduction under section 170, after Internal Revenue Service examination 
or otherwise, it shall be treated as a fee based on a percentage of the 
appraised value of the property. For example, an appraiser's fee that is 
subject to reduction by the same percentage as the appraised value may 
be reduced by the Internal Revenue Service would be treated as a fee 
that violates this paragraph (c)(6).
    (ii) Exception. Paragraph (c)(6)(i) of this section does not apply 
to a fee paid to a generally recognized association that regulates 
appraisers provided all of the following requirements are met:
    (A) The association is not organized for profit and no part of the 
net earnings of the association inures to the benefit of any private 
shareholder or individual (these terms have the same meaning as in 
section 501(c)),
    (B) The appraiser does not receive any compensation from the 
association or any other persons for making the appraisal, and
    (C) The fee arrangement is not based in whole or in part on the 
amount of the appraised value of the donated property, if any, that is 
allowed as a deduction under section 170 after Internal Revenue Service 
examination or otherwise.
    (7) Meaning of terms. For purposes of this paragraph (c)--
    (i) Closely held corporation. The term closely held corporation 
means any corporation (other than an S corporation) with respect to 
which the stock ownership requirement of paragraph (2) of section 542(a) 
of the Code is met.
    (ii) Personal service corporation. The term personal service 
corporation means any corporation (other than an S corporation) which is 
a service organization (within the meaning of section 414(m)(3) of the 
Code).
    (iii) Similar items of property. The phrase similar items of 
property means property of the same generic category or type, such as 
stamp collections (including philatelic supplies and books on stamp 
collecting), coin collections (including numismatic supplies and books 
on coin collecting), lithographs, paintings, photographs, books, 
nonpublicly traded stock, nonpublicly traded securities other than 
nonpublicly trade stock, land, buildings, clothing, jewelry, funiture, 
electronic equipment, household appliances, toys, everyday kitchenware, 
china, crystal, or silver. For example, if a donor claims on her return 
for the year deductions of $2,000 for books given by her to College A, 
$2,500 for books given by her to College B, and $900 for books given by 
her to College C, the $5,000 threshold of paragraph (c)(1) of this 
section is exceeded. Therefore, the donor must obtain a qualified 
appraisal for the books and attach to her return three appraisal 
summaries for the books donated to A, B, and C. For rules regarding the 
number of qualified appraisals and appraisal summaries required when 
similar items of property are contributed, see paragraphs (c)(3)(iv)(A) 
and (c)(4)(iv)(B), respectively, of this section.
    (iv) Donor. The term donor means a person or entity (other than an 
organization described in section 170(c) to which the donated property 
was previously contributed) that makes a charitable contribution of 
property.
    (v) Donee. The term donee means--
    (A) Except as provided in paragraph (c)(7)(v) (B) and (C) of this 
section, an organization described in section 170(c) to which property 
is contributed,
    (B) Except as provided in paragraph (c)(7)(v)(C) of this section, in 
the case of a charitable contribution of property placed in trust for 
the benefit of an organization described in section 170(c), the trust, 
or
    (C) In the case of a charitable contribution of property placed in 
trust

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for the benefit of an organization described in section 170(c) made on 
or before June 6, 1988, the beneficiary that is an organization 
described in section 170(c), or if the trust has assumed the duties of a 
donee by signing the appraisal summary pursuant to paragraph 
(c)(4)(i)(B) of this section, the trust.

In general, the term, refers only to the original donee. However, with 
respect to paragraph (c)(3)(ii)(D), the last sentence of paragraph 
(c)(4)(iii), and paragraph (c)(5)(iv)(C) of this section, the term donee 
means the original donee and all successor donees in cases where the 
original donee transfers the contributed property to a successor donee 
after July 5, 1988.
    (vi) Original donee. The term original donee means the donee to or 
for which property is initially donated by a donor.
    (vii) Successor donee. The term successor donee means any donee of 
property other than its original donee (i.e., a transferee of property 
for less than fair market value from an original donee or another 
successor donee).
    (viii) Fair market value. For the meaning of the term fair market 
value, see section 1.170A-1(c)(2).
    (ix) Nonpublicly traded securities. The term nonpublicly traded 
securities means securities (within the meaning of section 165(g)(2) of 
the Code) which are not publicly traded securities as defined in 
paragraph (c)(7)(xi) of this section.
    (x) Nonpublicly traded stock. The term nonpublicly traded stock 
means any stock of a corporation (evidence by a stock certificate) which 
is not a publicly traded security. The term stock does not include a 
debenture or any other evidence of indebtedness.
    (xi) Publicly traded securities--(A) In general. Except as provided 
in paragraph (c)(7)(xi)(C) of this section, the term publicly traded 
securities means securities (within the meaning of section 165(g)(2) of 
the Code) for which (as of the date of the contribution) market 
quotations are readily available on an established securities market. 
For purposes of this section, market quotations are readily available on 
an established securities market with respect to a security if:
    (1) The security is listed on the New York Stock Exchange, the 
American Stock Exchange, or any city or regional exchange in which 
quotations are published on a daily basis, including foreign securities 
listed on a recognized foreign, national, or regional exchange in which 
quotations are published on a daily basis;
    (2) The security is regularly traded in the national or regional 
over-the-counter market, for which published quotations are available; 
or
    (3) The security is a share of an open-end investment company 
(commonly known as a mutual fund) registered under the Investment 
Company Act of 1940, as amended (15 U.S.C. 80a-1 to 80b-2), for which 
quotations are published on a daily basis in a newspaper of general 
circulation throughout the United States.

(If the market value of an issue of a security is reflected only on an 
interdealer quotation system, the issue shall not be considered to be 
publicly traded unless the special rule described in paragraph 
(c)(7)(xi)(B) of this section is satisfied.)
    (B) Special rule--(1) In General. An issue of a security that does 
not satisfy the requirements of paragraph (c)(7)(xi)(A) (1), (2), or (3) 
of this section shall nonetheless be considered to have market 
quotations readily available on an established securities market for 
purposes of paragraph (c)(7)(xi)(A) of this section if all of the 
following five requirements are met:
    (i) The issue is regularly traded during the computational period 
(as defined in paragraph (c)(7)(xi)(B)(2)(iv) of this section) in a 
market that is reflected by the existence of an interdealer quotation 
system for the issue,
    (ii) The issuer or an agent of the issuer computes the average 
trading price (as defined in paragraph (c)(7)(xi)(B)(2)(iii) of this 
section) for the issue for the computational period,
    (iii) The average trading price and total volume of the issue during 
the computational period are published in a newspaper of general 
circulation throughout the United States not later than the last day of 
the month following the end of the calendar quarter in which the 
computational period ends,

[[Page 135]]

    (iv) The issuer or its agent keeps books and records that list for 
each transaction during the computational period involving each issue 
covered by this procedure the date of the settlement of the transaction, 
the name and address of the broker or dealer making the market in which 
the transaction occurred, and the trading price and volume, and
    (v) The issuer or its agent permits the Internal Revenue Service to 
review the books and records described in paragraph (c)(7)(xi)(B)(1)(iv) 
of this section with respect to transactions during the computational 
period upon giving reasonable notice to the issuer or agent.
    (2) Definitions. For purposes of this paragraph (c)(7)(xi)(B)--
    (i) Issue of a security. The term issue of a security means a class 
of debt securities with the same obligor and identical terms except as 
to their relative denominations (amounts) or a class of stock having 
identical rights.
    (ii) Interdealer quotation system. The term interdealer quotation 
system means any system of general circulation to brokers and dealers 
that regularly disseminates quotations of obligations by two or more 
identified brokers or dealers, who are not related to either the issuer 
of the security or to the issuer's agent, who compute the average 
trading price of the security. A quotation sheet prepared and 
distributed by a broker or dealer in the regular course of its business 
and containing only quotations of such broker or dealer is not an 
interdealer quotation system.
    (iii) Average trading price. The term average trading price means 
the mean price of all transactions (weighted by volume), other than 
original issue or redemption transactions, conducted through a United 
States office of a broker or dealer who maintains a market in the issue 
of the security during the computational period. For this purpose, bid 
and asked quotations are not taken into account.
    (iv) Computational period. For calendar quarters beginning on or 
after June 6, 1988, the term computational period means weekly during 
October through December (beginning with the first Monday in October and 
ending with the first Sunday following the last Monday in December) and 
monthly during January through September (beginning January 1). For 
calendar quarters beginning before June 6, 1988, the term computational 
period means weekly during October through December and monthly during 
January through September.
    (C) Exception. Securities described in paragraph (c)(7)(xi) (A) or 
(B) of this section shall not be considered publicly traded securities 
if--
    (1) The securities are subject to any restrictions that materially 
affect the value of the securities to the donor or prevent the 
securities from being freely traded, or
    (2) If the amount claimed or reported as a deduction with respect to 
the contribution of the securities is different than the amount listed 
in the market quotations that are readily available on an established 
securities market pursuant to paragraph (c)(7)(xi) (A) or (B) of this 
section.
    (D) Market quotations and fair market value. The fair market value 
of a publicly traded security, as defined in this paragraph (c)(7)(xi), 
is not necessarily equal to its market quotation, its average trading 
price (as defined in paragraph (c)(7)(xi)(B)(2)(iii) of this section), 
or its face value, if any. See section 1.170A-1(c)(2) for the definition 
of fair market value.
    (d) Charitable contributions; information required in support of 
deductions for taxable years beginning before January 1, 1983--(1) In 
general. This paragraph (d)(1) shall apply to deductions for charitable 
contributions made in taxable years beginning before January 1, 1983. At 
the option of the taxpayer the requirements of this paragraph (d)(1) 
shall also apply to all charitable contributions made on or before 
December 31, 1984 (in lieu of the requirements of paragraphs (a) and (b) 
of this section). In connection with claims for deductions for 
charitable contributions, taxpayers shall state in their income tax 
returns the name of each organization to which a contribution was made 
and the amount and date of the actual payment of each contribution. If a 
contribution is made in property other than money, the taxpayer shall 
state the kind of property contributed, for example, used clothing, 
paintings, or

[[Page 136]]

securities, the method utilized in determining the fair market value of 
the property at the time the contribution was made, and whether or not 
the amount of the contribution was reduced under section 170(e). If a 
taxpayer makes more than one cash contribution to an organization during 
the taxable year, then in lieu of listing each cash contribution and the 
date of payment the taxpayer may state the total cash payments made to 
such organization during the taxable year. A taxpayer who elects under 
paragraph (d)(2) of Sec. 1.170A-8 to apply section 170(e)(1) to his 
contributions and carryovers of 30-percent capital gain property must 
file a statement with his return indicating that he has made the 
election and showing the contributions in the current year and 
carryovers from preceding years to which it applies. For the definition 
of the term 30-percent capital gain property, see paragraph (d)(3) of 
Sec. 1.170A-8.
    (2) Contribution by individual of property other than money. This 
paragraph (d)(2) shall apply to deductions for charitable contributions 
made in taxable years beginning before January 1, 1983. At the option of 
the taxpayer, the requirements of this paragraph (d)(2) shall also apply 
to contributions of property made on or before December 31, 1984 (in 
lieu of the requirements of paragraph (b) of this section). If an 
individual taxpayer makes a charitable contribution of an item of 
property other than money and claims a deduction in excess of $200 in 
respect of his contribution of such item, he shall attach to his income 
tax return the following information with respect to such item:
    (i) The name and address of the organization to which the 
contribution was made.
    (ii) The date of the actual contribution.
    (iii) A description of the property in sufficient detail to identify 
the particular property contributed, including in the case of tangible 
property the physical condition of the property at the time of 
contribution, and, in the case of securities, the name of the issuer, 
the type of security, and whether or not such security is regularly 
traded on a stock exchange or in an over-the-counter market.
    (iv) The manner of acquisition, as, for example, by purchase, gift, 
bequest, inheritance, or exchange, and the approximate date of 
acquisition of the property by the taxpayer or, if the property was 
created, produced, or manufactured by or for the taxpayer, the 
approximate date the property was substantially completed.
    (v) The fair market value of the property at the time the 
contribution was made, the method utilized in determining the fair 
market value, and, if the valuation was determined by appraisal, a copy 
of the signed report of the appraiser.
    (vi) The cost or other basis, adjusted as provided by section 1016, 
of property, other than securities, held by the taxpayer for a period of 
less than 5 years immediately preceding the date on which the 
contribution was made and, when the information is available, of 
property, other than securities, held for a period of 5 years or more 
preceding the date on which the contribution was made.
    (vii) In the case of property to which section 170(e) applies, the 
cost or other basis, adjusted as provided by section 1016, the reduction 
by reason of section 170(e)(1) in the amount of the charitable 
contribution otherwise taken into account, and the manner in which such 
reduction was determined.
    (viii) The terms of any agreement or understanding entered into by 
or on behalf of the taxpayer which relates to the use, sale, or 
disposition of the property contributed, as, for example, the terms of 
any agreement or understanding which:
    (A) Restricts temporarily or permanently the donee's right to 
dispose of the donated property,
    (B) Reserves to, or confers upon, anyone other than the donee 
organization or other than an organization participating with such 
organization in cooperative fundraising, any right to the income from 
such property, to the possession of the property, including the right to 
vote securities, to acquire such property by purchase or otherwise, or 
to designate the person to have such income, possession, or right to 
acquire, or

[[Page 137]]

    (C) Earmarks contributed property for a particular charitable use, 
such as the use of donated furniture in the reading room of the donee 
organization's library.
    (ix) The total amount claimed as a deduction for the taxable year 
due to the contribution of the property and, if less than the entire 
interest in the property is contributed during the taxable year, the 
amount claimed as a deduction in any prior year or years for 
contributions of other interests in such property, the name and address 
of each organization to which any such contribution was made, the place 
where any such property which is tangible property is located or kept, 
and the name of any person, other than the organization to which the 
property giving rise to the deduction was contributed, having actual 
possession of the property.
    (3) Statement from donee organization. Any deduction for a 
charitable contribution must be substantiated, when required by the 
district director, by a statement from the organization to which the 
contribution was made indicating whether the organization is a domestic 
organization, the name and address of the contributor, the amount of the 
contribution, the date of actual receipt of the contribution, and such 
other information as the district director may deem necessary. If the 
contribution includes an item of property, other than money or 
securities which are regularly traded on a stock exchange or in an over-
the-counter market, which the donee deems to have a fair market value in 
excess of $500 ($200 in the case of a charitable contribution made in a 
taxable year beginning before January 1, 1983) at the time of receipt, 
such statement shall also indicate for each such item its location if it 
is retained by the organization, the amount received by the organization 
on any sale of the property and the date of sale or, in case of any 
other disposition of the property, the method of disposition. In the 
case of any contribution of tangible personal property, the statement 
shall indicate the use of the property by the organization and whether 
or not it is used for a purpose or function constituting the basis for 
the donee organization's exemption from income tax under section 501 or, 
in the case of a governmental unit, whether or not it is used for 
exclusively public purposes.
    (e) [Reserved]
    (f) Substantiation of charitable contributions of $250 or more--(1) 
In general. No deduction is allowed under section 170(a) for all or part 
of any contribution of $250 or more unless the taxpayer substantiates 
the contribution with a contemporaneous written acknowledgment from the 
donee organization. A taxpayer who makes more than one contribution of 
$250 or more to a donee organization in a taxable year may substantiate 
the contributions with one or more contemporaneous written 
acknowledgments. Section 170(f)(8) does not apply to a payment of $250 
or more if the amount contributed (as determined under Sec. 1.170A-
1(h)) is less than $250. Separate contributions of less than $250 are 
not subject to the requirements of section 170(f)(8), regardless of 
whether the sum of the contributions made by a taxpayer to a donee 
organization during a taxable year equals $250 or more.
    (2) Written acknowledgment. Except as otherwise provided in 
paragraphs (f)(8) through (f)(11) and (f)(13) of this section, a written 
acknowledgment from a donee organization must provide the following 
information--
    (i) The amount of any cash the taxpayer paid and a description (but 
not necessarily the value) of any property other than cash the taxpayer 
transferred to the donee organization;
    (ii) A statement of whether or not the donee organization provides 
any goods or services in consideration, in whole or in part, for any of 
the cash or other property transferred to the donee organization;
    (iii) If the donee organization provides any goods or services other 
than intangible religious benefits (as described in section 170(f)(8)), 
a description and good faith estimate of the value of those goods or 
services; and
    (iv) If the donee organization provides any intangible religious 
benefits, a statement to that effect.
    (3) Contemporaneous. A written acknowledgment is contemporaneous if 
it is obtained by the taxpayer on or before the earlier of--

[[Page 138]]

    (i) The date the taxpayer files the original return for the taxable 
year in which the contribution was made; or
    (ii) The due date (including extensions) for filing the taxpayer's 
original return for that year.
    (4) Donee organization. For purposes of this paragraph (f), a donee 
organization is an organization described in section 170(c).
    (5) Goods or services. Goods or services means cash, property, 
services, benefits, and privileges.
    (6) In consideration for. A donee organization provides goods or 
services in consideration for a taxpayer's payment if, at the time the 
taxpayer makes the payment to the donee organization, the taxpayer 
receives or expects to receive goods or services in exchange for that 
payment. Goods or services a donee organization provides in 
consideration for a payment by a taxpayer include goods or services 
provided in a year other than the year in which the taxpayer makes the 
payment to the donee organization.
    (7) Good faith estimate. For purposes of this section, good faith 
estimate means a donee organization's estimate of the fair market value 
of any goods or services, without regard to the manner in which the 
organization in fact made that estimate. See Sec. 1.170A-1(h)(4) for 
rules regarding when a taxpayer may treat a donee organization's 
estimate of the value of goods or services as the fair market value.
    (8) Certain goods or services disregarded--(i) In general. For 
purposes of section 170(f)(8), the following goods or services are 
disregarded--
    (A) Goods or services that have insubstantial value under the 
guidelines provided in Revenue Procedures 90-12, 1990-1 C.B. 471, 92-49, 
1992-1 C.B. 987, and any successor documents. (See Sec. 
601.601(d)(2)(ii) of the Statement of Procedural Rules, 26 CFR part 
601.); and
    (B) Annual membership benefits offered to a taxpayer in exchange for 
a payment of $75 or less per year that consist of--
    (1) Any rights or privileges, other than those described in section 
170(l), that the taxpayer can exercise frequently during the membership 
period. Examples of such rights and privileges may include, but are not 
limited to, free or discounted admission to the organization's 
facilities or events, free or discounted parking, preferred access to 
goods or services, and discounts on the purchase of goods or services; 
and
    (2) Admission to events during the membership period that are open 
only to members of a donee organization and for which the donee 
organization reasonably projects that the cost per person (excluding any 
allocable overhead) attending each such event is within the limits 
established for ``low cost articles'' under section 513(h)(2). The 
projected cost to the donee organization is determined at the time the 
organization first offers its membership package for the year (using 
section 3.07 of Revenue Procedure 90-12, or any successor documents, to 
determine the cost of any items or services that are donated).
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (f)(8).

    Example 1. Membership benefits disregarded. Performing Arts Center E 
is an organization described in section 170(c). In return for a payment 
of $75, E offers a package of basic membership benefits that includes 
the right to purchase tickets to performances one week before they go on 
sale to the general public, free parking in E's garage during evening 
and weekend performances, and a 10% discount on merchandise sold in E's 
gift shop. In return for a payment of $150, E offers a package of 
preferred membership benefits that includes all of the benefits in the 
$75 package as well as a poster that is sold in E's gift shop for $20. 
The basic membership and the preferred membership are each valid for 
twelve months, and there are approximately 50 performances of various 
productions at E during a twelve-month period. E's gift shop is open for 
several hours each week and at performance times. F, a patron of the 
arts, is solicited by E to make a contribution. E offers F the preferred 
membership benefits in return for a payment of $150 or more. F makes a 
payment of $300 to E. F can satisfy the substantiation requirement of 
section 170(f)(8) by obtaining a contemporaneous written acknowledgment 
from E that includes a description of the poster and a good faith 
estimate of its fair market value ($20) and disregards the remaining 
membership benefits.
    Example 2. Contemporaneous written acknowledgment need not mention 
rights or privileges that can be disregarded. The facts are the same as 
in Example 1, except that F made a payment of $300 and received only a 
basic

[[Page 139]]

membership. F can satisfy the section 170(f)(8) substantiation 
requirement with a contemporaneous written acknowledgment stating that 
no goods or services were provided.
    Example 3. Rights or privileges that cannot be exercised frequently. 
Community Theater Group G is an organization described in section 
170(c). Every summer, G performs four different plays. Each play is 
performed two times. In return for a membership fee of $60, G offers its 
members free admission to any of its performances. Non-members may 
purchase tickets on a performance by performance basis for $15 a ticket. 
H, an individual who is a sponsor of the theater, is solicited by G to 
make a contribution. G tells H that the membership benefit will be 
provided in return for any payment of $60 or more. H chooses to make a 
payment of $350 to G and receives in return the membership benefit. G's 
membership benefit of free admission is not described in paragraph 
(f)(8)(i)(B) of this section because it is not a privilege that can be 
exercised frequently (due to the limited number of performances offered 
by G). Therefore, to meet the requirements of section 170(f)(8), a 
contemporaneous written acknowledgment of H's $350 payment must include 
a description of the free admission benefit and a good faith estimate of 
its value.
    Example 4. Multiple memberships. In December of each year, K, an 
individual, gives each of her six grandchildren a junior membership in 
Dinosaur Museum, an organization described in section 170(c). Each 
junior membership costs $50, and K makes a single payment of $300 for 
all six memberships. A junior member is entitled to free admission to 
the museum and to weekly films, slide shows, and lectures about 
dinosaurs. In addition, each junior member receives a bi-monthly, non-
commercial quality newsletter with information about dinosaurs and 
upcoming events. K's contemporaneous written acknowledgment from 
Dinosaur Museum may state that no goods or services were provided in 
exchange for K's payment.

    (9) Goods or services provided to employees or partners of donors--
(i) Certain goods or services disregarded. For purposes of section 
170(f)(8), goods or services provided by a donee organization to 
employees of a donor, or to partners of a partnership that is a donor, 
in return for a payment to the organization may be disregarded to the 
extent that the goods or services provided to each employee or partner 
are the same as those described in paragraph (f)(8)(i) of this section.
    (ii) No good faith estimate required for other goods or services. If 
a taxpayer makes a contribution of $250 or more to a donee organization 
and, in return, the donee organization offers the taxpayer's employees 
or partners goods or services other than those described in paragraph 
(f)(9)(i) of this section, the contemporaneous written acknowledgment of 
the taxpayer's contribution is not required to include a good faith 
estimate of the value of such goods or services but must include a 
description of those goods or services.
    (iii) Example. The following example illustrates the rules of this 
paragraph (f)(9).

    Example. Museum J is an organization described in section 170(c). 
For a payment of $40, J offers a package of basic membership benefits 
that includes free admission and a 10% discount on merchandise sold in 
J's gift shop. J's other membership categories are for supporters who 
contribute $100 or more. Corporation K makes a payment of $50,000 to J 
and, in return, J offers K's employees free admission for one year, a 
tee-shirt with J's logo that costs J $4.50, and a gift shop discount of 
25% for one year. The free admission for K's employees is the same as 
the benefit made available to holders of the $40 membership and is 
otherwise described in paragraph (f)(8)(i)(B) of this section. The tee-
shirt given to each of K's employees is described in paragraph 
(f)(8)(i)(A) of this section. Therefore, the contemporaneous written 
acknowledgment of K's payment is not required to include a description 
or good faith estimate of the value of the free admission or the tee-
shirts. However, because the gift shop discount offered to K's employees 
is different than that offered to those who purchase the $40 membership, 
the discount is not described in paragraph (f)(8)(i) of this section. 
Therefore, the contemporaneous written acknowledgment of K's payment is 
required to include a description of the 25% discount offered to K's 
employees.

    (10) Substantiation of out-of-pocket expenses. A taxpayer who incurs 
unreimbursed expenditures incident to the rendition of services, within 
the meaning of Sec. 1.170A-1(g), is treated as having obtained a 
contemporaneous written acknowledgment of those expenditures if the 
taxpayer--
    (i) Has adequate records under paragraph (a) of this section to 
substantiate the amount of the expenditures; and
    (ii) Obtains by the date prescribed in paragraph (f)(3) of this 
section a statement prepared by the donee organization containing--

[[Page 140]]

    (A) A description of the services provided by the taxpayer;
    (B) A statement of whether or not the donee organization provides 
any goods or services in consideration, in whole or in part, for the 
unreimbursed expenditures; and
    (C) The information required by paragraphs (f)(2) (iii) and (iv) of 
this section.
    (11) Contributions made by payroll deduction--(i) Form of 
substantiation. A contribution made by means of withholding from a 
taxpayer's wages and payment by the taxpayer's employer to a donee 
organization may be substantiated, for purposes of section 170(f)(8), by 
both--
    (A) A pay stub, Form W-2, or other document furnished by the 
employer that sets forth the amount withheld by the employer for the 
purpose of payment to a donee organization; and
    (B) A pledge card or other document prepared by or at the direction 
of the donee organization that includes a statement to the effect that 
the organization does not provide goods or services in whole or partial 
consideration for any contributions made to the organization by payroll 
deduction.
    (ii) Application of $250 threshold. For the purpose of applying the 
$250 threshold provided in section 170(f)(8)(A) to contributions made by 
the means described in paragraph (f)(11)(i) of this section, the amount 
withheld from each payment of wages to a taxpayer is treated as a 
separate contribution.
    (12) Distributing organizations as donees. An organization described 
in section 170(c), or an organization described in 5 CFR 950.105 (a 
Principal Combined Fund Organization for purposes of the Combined 
Federal Campaign) and acting in that capacity, that receives a payment 
made as a contribution is treated as a donee organization solely for 
purposes of section 170(f)(8), even if the organization (pursuant to the 
donor's instructions or otherwise) distributes the amount received to 
one or more organizations described in section 170(c). This paragraph 
(f)(12) does not apply, however, to a case in which the distributee 
organization provides goods or services as part of a transaction 
structured with a view to avoid taking the goods or services into 
account in determining the amount of the deduction to which the donor is 
entitled under section 170.
    (13) Transfers to certain trusts. Section 170(f)(8) does not apply 
to a transfer of property to a trust described in section 170(f)(2)(B), 
a charitable remainder annuity trust (as defined in section 664(d)(1)), 
or a charitable remainder unitrust (as defined in section 664(d)(2) or 
(d)(3) or Sec. 1.664(3)(a)(1)(i)(b)). Section 170(f)(8) does apply, 
however, to a transfer to a pooled income fund (as defined in section 
642(c)(5)); for such a transfer, the contemporaneous written 
acknowledgment must state that the contribution was transferred to the 
donee organization's pooled income fund and indicate whether any goods 
or services (in addition to an income interest in the fund) were 
provided in exchange for the transfer. The contemporaneous written 
acknowledgment is not required to include a good faith estimate of the 
income interest.
    (14) Substantiation of payments to a college or university for the 
right to purchase tickets to athletic events. For purposes of paragraph 
(f)(2)(iii) of this section, the right to purchase tickets for seating 
at an athletic event in exchange for a payment described in section 
170(l) is treated as having a value equal to twenty percent of such 
payment. For example, when a taxpayer makes a payment of $312.50 for the 
right to purchase tickets for seating at an athletic event, the right to 
purchase tickets is treated as having a value of $62.50. The remaining 
$250 is treated as a charitable contribution, which the taxpayer must 
substantiate in accordance with the requirements of this section.
    (15) Substantiation of charitable contributions made by a 
partnership or an S corporation. If a partnership or an S corporation 
makes a charitable contribution of $250 or more, the partnership or S 
corporation will be treated as the taxpayer for purposes of section 
170(f)(8). Therefore, the partnership or S corporation must substantiate 
the contribution with a contemporaneous written acknowledgment from the 
donee organization before reporting the contribution on its income tax 
return for the year in which the contribution

[[Page 141]]

was made and must maintain the contemporaneous written acknowledgment in 
its records. A partner of a partnership or a shareholder of an S 
corporation is not required to obtain any additional substantiation for 
his or her share of the partnership's or S corporation's charitable 
contribution.
    (16) Purchase of an annuity. If a taxpayer purchases an annuity from 
a charitable organization and claims a charitable contribution deduction 
of $250 or more for the excess of the amount paid over the value of the 
annuity, the contemporaneous written acknowledgment must state whether 
any goods or services in addition to the annuity were provided to the 
taxpayer. The contemporaneous written acknowledgment is not required to 
include a good faith estimate of the value of the annuity. See Sec. 
1.170A-1(d)(2) for guidance in determining the value of the annuity.
    (17) Substantiation of matched payments--(i) In general. For 
purposes of section 170, if a taxpayer's payment to a donee organization 
is matched, in whole or in part, by another payor, and the taxpayer 
receives goods or services in consideration for its payment and some or 
all of the matching payment, those goods or services will be treated as 
provided in consideration for the taxpayer's payment and not in 
consideration for the matching payment.
    (ii) Example. The following example illustrates the rules of this 
paragraph (f)(17).

    Example. Taxpayer makes a $400 payment to Charity L, a donee 
organization. Pursuant to a matching payment plan, Taxpayer's employer 
matches Taxpayer's $400 payment with an additional payment of $400. In 
consideration for the combined payments of $800, L gives Taxpayer an 
item that it estimates has a fair market value of $100. L does not give 
the employer any goods or services in consideration for its 
contribution. The contemporaneous written acknowledgment provided to the 
employer must include a statement that no goods or services were 
provided in consideration for the employer's $400 payment. The 
contemporaneous written acknowledgment provided to Taxpayer must include 
a statement of the amount of Taxpayer's payment, a description of the 
item received by Taxpayer, and a statement that L's good faith estimate 
of the value of the item received by Taxpayer is $100.

    (18) Effective date. This paragraph (f) applies to contributions 
made on or after December 16, 1996. However, taxpayers may rely on the 
rules of this paragraph (f) for contributions made on or after January 
1, 1994.

[T.D. 8002, 49 FR 50664, 50666, Dec. 31, 1984, as amended by T.D. 8003, 
49 FR 50659, Dec. 31, 1984; T.D. 8199, 53 FR 16080, May 5, 1988; 53 FR 
18372, May 23, 1988; T.D. 8623, 60 FR 53128, Oct. 12, 1995; T.D. 8690, 
61 FR 65952, Dec. 16, 1996]



Sec. 1.170A-14  Qualified conservation contributions.

    (a) Qualified conservation contributions. A deduction under section 
170 is generally not allowed for a charitable contribution of any 
interest in property that consists of less than the donor's entire 
interest in the property other than certain transfers in trust (see 
Sec. 1.170A-6 relating to charitable contributions in trust and Sec. 
1.170A-7 relating to contributions not in trust of partial interests in 
property). However, a deduction may be allowed under section 
170(f)(3)(B)(iii) for the value of a qualified conservation contribution 
if the requirements of this section are met. A qualified conservation 
contribution is the contribution of a qualified real property interest 
to a qualified organization exclusively for conservation purposes. To be 
eligible for a deduction under this section, the conservation purpose 
must be protected in perpetuity.
    (b) Qualified real property interest--(1) Entire interest of donor 
other than qualified mineral interest. (i) The entire interest of the 
donor other than a qualified mineral interest is a qualified real 
property interest. A qualified mineral interest is the donor's interest 
in subsurface oil, gas, or other minerals and the right of access to 
such minerals.
    (ii) A real property interest shall not be treated as an entire 
interest other than a qualified mineral interest by reason of section 
170(h)(2)(A) and this paragraph (b)(1) if the property in which the 
donor's interest exists was divided prior to the contribution in order 
to enable the donor to retain control of more than a qualified mineral 
interest or to reduce the real property interest donated. See Treasury 
regulations Sec. 1.170A-7(a)(2)(i). An entire interest in real property 
may consist of an

[[Page 142]]

undivided interest in the property. But see section 170(h)(5)(A) and the 
regulations thereunder (relating to the requirement that the 
conservation purpose which is the subject of the donation must be 
protected in perpetuity). Minor interests, such as rights-of-way, that 
will not interfere with the conservation purposes of the donation, may 
be transferred prior to the conservation contribution without affecting 
the treatment of a property interest as a qualified real property 
interest under this paragraph (b)(1).
    (2) Perpetual conservation restriction. A ``perpetual conservation 
restriction'' is a qualified real property interest. A ``perpetual 
conservation restriction'' is a restriction granted in perpetuity on the 
use which may be made of real property--including, an easement or other 
interest in real property that under state law has attributes similar to 
an easement (e.g., a restrictive covenant or equitable servitude). For 
purposes of this section, the terms easement, conservation restriction, 
and perpetual conservation restriction have the same meaning. The 
definition of perpetual conservation restriction under this paragraph 
(b)(2) is not intended to preclude the deductibility of a donation of 
affirmative rights to use a land or water area under Sec. 1.170A-
13(d)(2). Any rights reserved by the donor in the donation of a 
perpetual conservation restriction must conform to the requirements of 
this section. See e.g., paragraph (d)(4)(ii), (d)(5)(i), (e)(3), and 
(g)(4) of this section.
    (c) Qualified organization--(1) Eligible donee. To be considered an 
eligible donee under this section, an organization must be a qualified 
organization, have a commitment to protect the conservation purposes of 
the donation, and have the resources to enforce the restrictions. A 
conservation group organized or operated primarily or substantially for 
one of the conservation purposes specified in section 170(h)(4)(A) will 
be considered to have the commitment required by the preceding sentence. 
A qualified organization need not set aside funds to enforce the 
restrictions that are the subject of the contribution. For purposes of 
this section, the term qualified organization means:
    (i) A governmental unit described in section 170(b)(1)(A)(v);
    (ii) An organization described in section 170(b)(1)(A)(vi);
    (iii) A charitable organization described in section 501(c)(3) that 
meets the public support test of section 509(a)(2);
    (iv) A charitable organization described in section 501(c)(3) that 
meets the requirements of section 509(a)(3) and is controlled by an 
organization described in paragraphs (c)(1) (i), (ii), or (iii) of this 
section.
    (2) Transfers by donee. A deduction shall be allowed for a 
contribution under this section only if in the instrument of conveyance 
the donor prohibits the donee from subsequently transferring the 
easement (or, in the case of a remainder interest or the reservation of 
a qualified mineral interest, the property), whether or not for 
consideration, unless the donee organization, as a condition of the 
subsequent transfer, requires that the conservation purposes which the 
contribution was originally intended to advance continue to be carried 
out. Moreover, subsequent transfers must be restricted to organizations 
qualifying, at the time of the subsequent transfer, as an eligible donee 
under paragraph (c)(1) of this section. When a later unexpected change 
in the conditions surrounding the property that is the subject of a 
donation under paragraph (b)(1), (2), or (3) of this section makes 
impossible or impractical the continued use of the property for 
conservation purposes, the requirement of this paragraph will be met if 
the property is sold or exchanged and any proceeds are used by the donee 
organization in a manner consistent with the conservation purposes of 
the original contribution. In the case of a donation under paragraph 
(b)(3) of this section to which the preceding sentence applies, see also 
paragraph (g)(5)(ii) of this section.
    (d) Conservation purposes--(1) In general. For purposes of section 
170(h) and this section, the term conservation purposes means--
    (i) The preservation of land areas for outdoor recreation by, or the 
education of, the general public, within the meaning of paragraph (d)(2) 
of this section,

[[Page 143]]

    (ii) The protection of a relatively natural habitat of fish, 
wildlife, or plants, or similar ecosystem, within the meaning of 
paragraph (d)(3) of this section,
    (iii) The preservation of certain open space (including farmland and 
forest land) within the meaning of paragraph (d)(4) of this section, or
    (iv) The preservation of a historically important land area or a 
certified historic structure, within the meaning of paragraph (d)(5) of 
this section.
    (2) Recreation or education--(i) In general. The donation of a 
qualified real property interest to preserve land areas for the outdoor 
recreation of the general public or for the education of the general 
public will meet the conservation purposes test of this section. Thus, 
conservation purposes would include, for example, the preservation of a 
water area for the use of the public for boating or fishing, or a nature 
or hiking trail for the use of the public.
    (ii) Access. The preservation of land areas for recreation or 
education will not meet the test of this section unless the recreation 
or education is for the substantial and regular use of the general 
public.
    (3) Protection of environmental system--(i) In general. The donation 
of a qualified real property interest to protect a significant 
relatively natural habitat in which a fish, wildlife, or plant 
community, or similar ecosystem normally lives will meet the 
conservation purposes test of this section. The fact that the habitat or 
environment has been altered to some extent by human activity will not 
result in a deduction being denied under this section if the fish, 
wildlife, or plants continue to exist there in a relatively natural 
state. For example, the preservation of a lake formed by a man-made dam 
or a salt pond formed by a man-made dike would meet the conservation 
purposes test if the lake or pond were a nature feeding area for a 
wildlife community that included rare, endangered, or threatened native 
species.
    (ii) Significant habitat or ecosystem. Significant habitats and 
ecosystems include, but are not limited to, habitats for rare, 
endangered, or threatened species of animal, fish, or plants; natural 
areas that represent high quality examples of a terrestrial community or 
aquatic community, such as islands that are undeveloped or not intensely 
developed where the coastal ecosystem is relatively intact; and natural 
areas which are included in, or which contribute to, the ecological 
viability of a local, state, or national park, nature preserve, wildlife 
refuge, wilderness area, or other similar conservation area.
    (iii) Access. Limitations on public access to property that is the 
subject of a donation under this paragraph (d)(3) shall not render the 
donation nondeductible. For example, a restriction on all public access 
to the habitat of a threatened native animal species protected by a 
donation under this paragraph (d)(3) would not cause the donation to be 
nondeductible.
    (4) Preservation of open space--(i) In general. The donation of a 
qualified real property interest to preserve open space (including 
farmland and forest land) will meet the conservation purposes test of 
this section if such preservation is--
    (A) Pursuant to a clearly delineated Federal, state, or local 
governmental conservation policy and will yield a significant public 
benefit, or
    (B) For the scenic enjoyment of the general public and will yield a 
significant public benefit.

An open space easement donated on or after December 18, 1980, must meet 
the requirements of section 170(h) in order to be deductible.
    (ii) Scenic enjoyment--(A) Factors. A contribution made for the 
preservation of open space may be for the scenic enjoyment of the 
general public. Preservation of land may be for the scenic enjoyment of 
the general public if development of the property would impair the 
scenic character of the local rural or urban landscape or would 
interfere with a scenic panorama that can be enjoyed from a park, nature 
preserve, road, waterbody, trail, or historic structure or land area, 
and such area or transportation way is open to, or utilized by, the 
public. ``Scenic enjoyment'' will be evaluated by considering all 
pertinent facts and circumstances germane to the contribution. Regional

[[Page 144]]

variations in topography, geology, biology, and cultural and economic 
conditions require flexibility in the application of this test, but do 
not lessen the burden on the taxpayer to demonstrate the scenic 
characteristics of a donation under this paragraph. The application of a 
particular objective factor to help define a view as scenic in one 
setting may in fact be entirely inappropriate in another setting. Among 
the factors to be considered are:
    (1) The compatibility of the land use with other land in the 
vicinity;
    (2) The degree of contrast and variety provided by the visual scene;
    (3) The openness of the land (which would be a more significant 
factor in an urban or densely populated setting or in a heavily wooded 
area);
    (4) Relief from urban closeness;
    (5) The harmonious variety of shapes and textures;
    (6) The degree to which the land use maintains the scale and 
character of the urban landscape to preserve open space, visual 
enjoyment, and sunlight for the surrounding area;
    (7) The consistency of the proposed scenic view with a methodical 
state scenic identification program, such as a state landscape 
inventory; and
    (8) The consistency of the proposed scenic view with a regional or 
local landscape inventory made pursuant to a sufficiently rigorous 
review process, especially if the donation is endorsed by an appropriate 
state or local governmental agency.
    (B) Access. To satisfy the requirement of scenic enjoyment by the 
general public, visual (rather than physical) access to or across the 
property by the general public is sufficient. Under the terms of an open 
space easement on scenic property, the entire property need not be 
visible to the public for a donation to qualify under this section, 
although the public benefit from the donation may be insufficient to 
qualify for a deduction if only a small portion of the property is 
visible to the public.
    (iii) Governmental conservation policy--(A) In general. The 
requirement that the preservation of open space be pursuant to a clearly 
delineated Federal, state, or local governmental policy is intended to 
protect the types of property identified by representatives of the 
general public as worthy of preservation or conservation. A general 
declaration of conservation goals by a single official or legislative 
body is not sufficient. However, a governmental conservation policy need 
not be a certification program that identifies particular lots or small 
parcels of individually owned property. This requirement will be met by 
donations that further a specific, identified conservation project, such 
as the preservation of land within a state or local landmark district 
that is locally recognized as being significant to that district; the 
preservation of a wild or scenic river, the preservation of farmland 
pursuant to a state program for flood prevention and control; or the 
protection of the scenic, ecological, or historic character of land that 
is contiguous to, or an integral part of, the surroundings of existing 
recreation or conservation sites. For example, the donation of a 
perpetual conservation restriction to a qualified organization pursuant 
to a formal resolution or certification by a local governmental agency 
established under state law specifically identifying the subject 
property as worthy of protection for conservation purposes will meet the 
requirement of this paragraph. A program need not be funded to satisfy 
this requirement, but the program must involve a significant commitment 
by the government with respect to the conservation project. For example, 
a governmental program according preferential tax assessment or 
preferential zoning for certain property deemed worthy of protection for 
conservation purposes would constitute a significant commitment by the 
government.
    (B) Effect of acceptance by governmental agency. Acceptance of an 
easement by an agency of the Federal Government or by an agency of a 
state or local government (or by a commission, authority, or similar 
body duly constituted by the state or local government and acting on 
behalf of the state or local government) tends to establish the 
requisite clearly delineated governmental policy, although such 
acceptance, without more, is not sufficient. The more rigorous the 
review process by the governmental agency, the more the acceptance of 
the easement tends

[[Page 145]]

to establish the requisite clearly delineated governmental policy. For 
example, in a state where the legislature has established an 
Environmental Trust to accept gifts to the state which meet certain 
conservation purposes and to submit the gifts to a review that requires 
the approval of the state's highest officials, acceptance of a gift by 
the Trust tends to establish the requisite clearly delineated 
governmental policy. However, if the Trust merely accepts such gifts 
without a review process, the requisite clearly delineated governmental 
policy is not established.
    (C) Access. A limitation on public access to property subject to a 
donation under this paragraph (d)(4)(iii) shall not render the deduction 
nondeductible unless the conservation purpose of the donation would be 
undermined or frustrated without public access. For example, a donation 
pursuant to a governmental policy to protect the scenic character of 
land near a river requires visual access to the same extent as would a 
donation under paragraph (d)(4)(ii) of this section.
    (iv) Significant public benefit--(A) Factors. All contributions made 
for the preservation of open space must yield a significant public 
benefit. Public benefit will be evaluated by considering all pertinent 
facts and circumstances germane to the contribution. Factors germane to 
the evaluation of public benefit from one contribution may be irrelevant 
in determining public benefit from another contribution. No single 
factor will necessarily be determinative. Among the factors to be 
considered are:
    (1) The uniqueness of the property to the area;
    (2) The intensity of land development in the vicinity of the 
property (both existing development and foreseeable trends of 
development);
    (3) The consistency of the proposed open space use with public 
programs (whether Federal, state or local) for conservation in the 
region, including programs for outdoor recreation, irrigation or water 
supply protection, water quality maintenance or enhancement, flood 
prevention and control, erosion control, shoreline protection, and 
protection of land areas included in, or related to, a government 
approved master plan or land management area;
    (4) The consistency of the proposed open space use with existing 
private conservation programs in the area, as evidenced by other land, 
protected by easement or fee ownership by organizations referred to in 
Sec. 1.170A-14(c)(1), in close proximity to the property;
    (5) The likelihood that development of the property would lead to or 
contribute to degradation of the scenic, natural, or historic character 
of the area;
    (6) The opportunity for the general public to use the property or to 
appreciate its scenic values;
    (7) The importance of the property in preserving a local or regional 
landscape or resource that attracts tourism or commerce to the area;
    (8) The likelihood that the donee will acquire equally desirable and 
valuable substitute property or property rights;
    (9) The cost to the donee of enforcing the terms of the conservation 
restriction;
    (10) The population density in the area of the property; and
    (11) The consistency of the proposed open space use with a 
legislatively mandated program identifying particular parcels of land 
for future protection.
    (B) Illustrations. The preservation of an ordinary tract of land 
would not in and of itself yield a significant public benefit, but the 
preservation of ordinary land areas in conjunction with other factors 
that demonstrate significant public benefit or the preservation of a 
unique land area for public employment would yield a significant public 
benefit. For example, the preservation of a vacant downtown lot would 
not by itself yield a significant public benefit, but the preservation 
of the downtown lot as a public garden would, absent countervailing 
factors, yield a significant public benefit. The following are other 
examples of contributions which would, absent countervailing factors, 
yield a significant public benefit: The preservation of farmland 
pursuant to a state program for

[[Page 146]]

flood prevention and control; the preservation of a unique natural land 
formation for the enjoyment of the general public; the preservation of 
woodland along a public highway pursuant to a government program to 
preserve the appearance of the area so as to maintain the scenic view 
from the highway; and the preservation of a stretch of undeveloped 
property located between a public highway and the ocean in order to 
maintain the scenic ocean view from the highway.
    (v) Limitation. A deduction will not be allowed for the preservation 
of open space under section 170(h)(4)(A)(iii), if the terms of the 
easement permit a degree of intrusion or future development that would 
interfere with the essential scenic quality of the land or with the 
governmental conservation policy that is being furthered by the 
donation. See Sec. 1.170A-14(e)(2) for rules relating to inconsistent 
use.
    (vi) Relationship of requirements--(A) Clearly delineated 
governmental policy and significant public benefit. Although the 
requirements of ``clearly delineated governmental policy'' and 
``significant public benefit'' must be met independently, for purposes 
of this section the two requirements may also be related. The more 
specific the governmental policy with respect to the particular site to 
be protected, the more likely the governmental decision, by itself, will 
tend to establish the significant public benefit associated with the 
donation. For example, while a statute in State X permitting 
preferential assessment for farmland is, by definition, governmental 
policy, it is distinguishable from a state statute, accompanied by 
appropriations, naming the X River as a valuable resource and 
articulating the legislative policy that the X River and the relatively 
natural quality of its surrounding be protected. On these facts, an open 
space easement on farmland in State X would have to demonstrate 
additional factors to establish ``significant public benefit.'' The 
specificity of the legislative mandate to protect the X River, however, 
would by itself tend to establish the significant public benefit 
associated with an open space easement on land fronting the X River.
    (B) Scenic enjoyment and significant public benefit. With respect to 
the relationship between the requirements of ``scenic enjoyment'' and 
``significant public benefit,'' since the degrees of scenic enjoyment 
offered by a variety of open space easements are subjective and not as 
easily delineated as are increasingly specific levels of governmental 
policy, the significant public benefit of preserving a scenic view must 
be independently established in all cases.
    (C) Donations may satisfy more than one test. In some cases, open 
space easements may be both for scenic enjoyment and pursuant to a 
clearly delineated governmental policy. For example, the preservation of 
a particular scenic view identified as part of a scenic landscape 
inventory by a rigorous governmental review process will meet the tests 
of both paragraphs (d)(4)(i)(A) and (d)(4)(i)(B) of this section.
    (5) Historic preservation--(i) In general. The donation of a 
qualified real property interest to preserve an historically important 
land area or a certified historic structure will meet the conservation 
purposes test of this section. When restrictions to preserve a building 
or land area within a registered historic district permit future 
development on the site, a deduction will be allowed under this section 
only if the terms of the restrictions require that such development 
conform with appropriate local, state, or Federal standards for 
construction or rehabilitation within the district. See also, Sec. 
1.170A-14(h)(3)(ii).
    (ii) Historically important land area. The term historically 
important land area includes:
    (A) An independently significant land area including any related 
historic resources (for example, an archaeological site or a Civil War 
battlefield with related monuments, bridges, cannons, or houses) that 
meets the National Register Criteria for Evaluation in 36 CFR 60.4 (Pub. 
L. 89-665, 80 Stat. 915);
    (B) Any land area within a registered historic district including 
any buildings on the land area that can reasonably be considered as 
contributing to the significance of the district; and

[[Page 147]]

    (C) Any land area (including related historic resources) adjacent to 
a property listed individually in the National Register of Historic 
Places (but not within a registered historic district) in a case where 
the physical or environmental features of the land area contribute to 
the historic or cultural integrity of the property.
    (iii) Certified historic structure. The term certified historic 
structure, for purposes of this section, means any building, structure 
or land area which is--
    (A) Listed in the National Register, or
    (B) Located in a registered historic district (as defined in section 
48(g)(3)(B)) and is certified by the Secretary of the Interior (pursuant 
to 36 CFR 67.4) to the Secretary of the Treasury as being of historic 
significance to the district.

A structure for purposes of this section means any structure, whether or 
not it is depreciable. Accordingly easements on private residences may 
qualify under this section. In addition, a structure would be considered 
to be a certified historic structure if it were certified either at the 
time the transfer was made or at the due date (including extensions) for 
filing the donor's return for the taxable year in which the contribution 
was made.
    (iv) Access. (A) In order for a conservation contribution described 
in section 170(h)(4)(A)(iv) and this paragraph (d)(5) to be deductible, 
some visual public access to the donated property is required. In the 
case of an historically important land area, the entire property need 
not be visible to the public for a donation to qualify under this 
section. However, the public benefit from the donation may be 
insufficient to qualify for a deduction if only a small portion of the 
property is so visible. Where the historic land area or certified 
historic structure which is the subject of the donation is not visible 
from a public way (e.g., the structure is hidden from view by a wall or 
shrubbery, the structure is too far from the public way, or interior 
characteristics and features of the structure are the subject of the 
easement), the terms of the easement must be such that the general 
public is given the opportunity on a regular basis to view the 
characteristics and features of the property which are preserved by the 
easement to the extent consistent with the nature and condition of the 
property.
    (B) Factors to be considered in determining the type and amount of 
public access required under paragraph (d)(5)(iv)(A) of this section 
include the historical significance of the donated property, the nature 
of the features that are the subject of the easement, the remoteness or 
accessibility of the site of the donated property, the possibility of 
physical hazards to the public visiting the property (for example, an 
unoccupied structure in a dilapidated condition), the extent to which 
public access would be an unreasonable intrusion on any privacy 
interests of individuals living on the property, the degree to which 
public access would impair the preservation interests which are the 
subject of the donation, and the availability of opportunities for the 
public to view the property by means other than visits to the site.
    (C) The amount of access afforded the public by the donation of an 
easement shall be determined with reference to the amount of access 
permitted by the terms of the easement which are established by the 
donor, rather than the amount of access actually provided by the donee 
organization. However, if the donor is aware of any facts indicating 
that the amount of access that the donee organization will provide is 
significantly less than the amount of access permitted under the terms 
of the easement, then the amount of access afforded the public shall be 
determined with reference to this lesser amount.
    (v) Examples. The provisions of paragraph (d)(5)(iv) of this section 
may be illustrated by the following examples:

    Example 1. A and his family live in a house in a certified historic 
district in the State of X. The entire house, including its interior, 
has architectural features representing classic Victorian period 
architecture. A donates an exterior and interior easement on the 
property to a qualified organization but continues to live in the house 
with his family. A's house is surrounded by a high stone wall which 
obscures the public's view of it from the street. Pursuant to the terms 
of the easement, the house may be opened to the public from 10:00 a.m. 
to 4:00 p.m. on one Sunday in May and one Sunday in November each year 
for house and garden tours. These tours are

[[Page 148]]

to be under the supervision of the donee and open to members of the 
general public upon payment of a small fee. In addition, under the terms 
of the easement, the donee organization is given the right to photograph 
the interior and exterior of the house and distribute such photographs 
to magazines, newsletters, or other publicly available publications. The 
terms of the easement also permit persons affiliated with educational 
organizations, professional architectural associations, and historical 
societies to make an appointment through the donee organization to study 
the property. The donor is not aware of any facts indicating that the 
public access to be provided by the donee organization will be 
significantly less than that permitted by the terms of the easement. The 
2 opportunities for public visits per year, when combined with the 
ability of the general public to view the architectural characteristics 
and features that are the subject of the easement through photographs, 
the opportunity for scholarly study of the property, and the fact that 
the house is used as an occupied residence, will enable the donation to 
satisfy the requirement of public access.
    Example 2. B owns an unoccupied farmhouse built in the 1840's and 
located on a property that is adjacent to a Civil War battlefield. 
During the Civil War the farmhouse was used as quarters for Union 
troops. The battlefield is visited year round by the general public. The 
condition of the farmhouse is such that the safety of visitors will not 
be jeopardized and opening it to the public will not result in 
significant deterioration. The farmhouse is not visible from the 
battlefield or any public way. It is accessible only by way of a private 
road owned by B. B donates a conservation easement on the farmhouse to a 
qualified organization. The terms of the easement provide that the donee 
organization may open the property (via B's road) to the general public 
on four weekends each year from 8:30 a.m. to 4:00 p.m. The donation does 
not meet the public access requirement because the farmhouse is safe, 
unoccupied, and easily accessible to the general public who have come to 
the site to visit Civil War historic land areas (and related resources), 
but will only be open to the public on four weekends each year. However, 
the donation would meet the public access requirement if the terms of 
the easement permitted the donee organization to open the property to 
the public every other weekend during the year and the donor is not 
aware of any facts indicating that the donee organization will provide 
significantly less access than that permitted.

    (e) Exclusively for conservation purposes--(1) In general. To meet 
the requirements of this section, a donation must be exclusively for 
conservation purposes. See paragraphs (c)(1) and (g)(1) through 
(g)(6)(ii) of this section. A deduction will not be denied under this 
section when incidental benefit inures to the donor merely as a result 
of conservation restrictions limiting the uses to which the donor's 
property may be put.
    (2) Inconsistent use. Except as provided in paragraph (e)(4) of this 
section, a deduction will not be allowed if the contribution would 
accomplish one of the enumerated conservation purposes but would permit 
destruction of other significant conservation interests. For example, 
the preservation of farmland pursuant to a State program for flood 
prevention and control would not qualify under paragraph (d)(4) of this 
section if under the terms of the contribution a significant naturally 
occurring ecosystem could be injured or destroyed by the use of 
pesticides in the operation of the farm. However, this requirement is 
not intended to prohibit uses of the property, such as selective timber 
harvesting or selective farming if, under the circumstances, those uses 
do not impair significant conservation interests.
    (3) Inconsistent use permitted. A use that is destructive of 
conservation interests will be permitted only if such use is necessary 
for the protection of the conservation interests that are the subject of 
the contribution. For example, a deduction for the donation of an 
easement to preserve an archaeological site that is listed on the 
National Register of Historic Places will not be disallowed if site 
excavation consistent with sound archaeological practices may impair a 
scenic view of which the land is a part. A donor may continue a pre-
existing use of the property that does not conflict with the 
conservation purposes of the gift.
    (f) Examples. The provisions of this section relating to 
conservation purposes may be illustrated by the following examples.

    Example 1. State S contains many large tract forests that are 
desirable recreation and scenic areas for the general public. The 
forests' scenic values attract millions of people to the State. However, 
due to the increasing intensity of land development in State S, the 
continued existence of forestland parcels greater than 45 acres is 
threatened. J grants a perpetual easement on a 100-acre parcel of 
forestland that is part

[[Page 149]]

of one of the State's scenic areas to a qualifying organization. The 
easement imposes restrictions on the use of the parcel for the purpose 
of maintaining its scenic values. The restrictions include a requirement 
that the parcel be maintained forever as open space devoted exclusively 
to conservation purposes and wildlife protection, and that there be no 
commercial, industrial, residential, or other development use of such 
parcel. The law of State S recognizes a limited public right to enter 
private land, particularly for recreational pursuits, unless such land 
is posted or the landowner objects. The easement specifically restricts 
the landowner from posting the parcel, or from objecting, thereby 
maintaining public access to the parcel according to the custom of the 
State. J's parcel provides the opportunity for the public to enjoy the 
use of the property and appreciate its scenic values. Accordingly, J's 
donation qualifies for a deduction under this section.
    Example 2. A qualified conservation organization owns Greenacre in 
fee as a nature preserve. Greenacre contains a high quality example of a 
tall grass prairie ecosystem. Farmacre, an operating farm, adjoins 
Greenacre and is a compatible buffer to the nature preserve. Conversion 
of Farmacre to a more intense use, such as a housing development, would 
adversely affect the continued use of Greenacre as a nature preserve 
because of human traffic generated by the development. The owner of 
Farmacre donates an easement preventing any future development on 
Farmacre to the qualified conservation organization for conservation 
purposes. Normal agricultural uses will be allowed on Farmacre. 
Accordingly, the donation qualifies for a deduction under this section.
    Example 3. H owns Greenacre, a 900-acre parcel of woodland, rolling 
pasture, and orchards on the crest of a mountain. All of Greenacre is 
clearly visible from a nearby national park. Because of the strict 
enforcement of an applicable zoning plan, the highest and best use of 
Greenacre is as a subdivision of 40-acre tracts. H wishes to donate a 
scenic easement on Greenacre to a qualifying conservation organization, 
but H would like to reserve the right to subdivide Greenacre into 90-
acre parcels with no more than one single-family home allowable on each 
parcel. Random building on the property, even as little as one home for 
each 90 acres, would destroy the scenic character of the view. 
Accordingly, no deduction would be allowable under this section.
    Example 4. Assume the same facts as in example (3), except that not 
all of Greenacre is visible from the park and the deed of easement 
allows for limited cluster development of no more than five nine-acre 
clusters (with four houses on each cluster) located in areas generally 
not visible from the national park and subject to site and building plan 
approval by the donee organization in order to preserve the scenic view 
from the park. The donor and the donee have already identified sites 
where limited cluster development would not be visible from the park or 
would not impair the view. Owners of homes in the clusters will not have 
any rights with respect to the surrounding Greenacre property that are 
not also available to the general public. Accordingly, the donation 
qualifies for a deduction under this section.
    Example 5. In order to protect State S's declining open space that 
is suited for agricultural use from increasing development pressure that 
has led to a marked decline in such open space, the Legislature of State 
S passed a statute authorizing the purchase of ``agricultural land 
development rights'' on open acreage. Agricultural land development 
rights allow the State to place agricultural preservation restrictions 
on land designated as worthy of protection in order to preserve open 
space and farm resources. Agricultural preservation restrictions 
prohibit or limit construction or placement of buildings except those 
used for agricultural purposes or dwellings used for family living by 
the farmer and his family and employees; removal of mineral substances 
in any manner that adversely affects the land's agricultural potential; 
or other uses detrimental to retention of the land for agricultural use. 
Money has been appropriated for this program and some landowners have in 
fact sold their ``agricultural land development rights'' to State S. K 
owns and operates a small dairy farm in State S located in an area 
designated by the Legislature as worthy of protection. K desires to 
preserve his farm for agricultural purposes in perpetuity. Rather than 
selling the development rights to State S, K grants to a qualified 
organization an agricultural preservation restriction on his property in 
the form of a conservation easement. K reserves to himself, his heirs 
and assigns the right to manage the farm consistent with sound 
agricultural and management practices. The preservation of K's land is 
pursuant to a clearly delineated governmental policy of preserving open 
space available for agricultural use, and will yield a significant 
public benefit by preserving open space against increasing development 
pressures.

    (g) Enforceable in perpetuity--(1) In general. In the case of any 
donation under this section, any interest in the property retained by 
the donor (and the donor's successors in interest) must be subject to 
legally enforceable restrictions (for example, by recordation in the 
land records of the jurisdiction in which the property is located) that 
will prevent uses of the retained interest inconsistent with the 
conservation purposes of the donation. In

[[Page 150]]

the case of a contribution of a remainder interest, the contribution 
will not qualify if the tenants, whether they are tenants for life or a 
term of years, can use the property in a manner that diminishes the 
conservation values which are intended to be protected by the 
contribution.
    (2) Protection of a conservation purpose in case of donation of 
property subject to a mortgage. In the case of conservation 
contributions made after February 13, 1986, no deducion will be 
permitted under this section for an interest in property which is 
subject to a mortgage unless the mortgagee subordinates its rights in 
the property to the right of the qualified organization to enforce the 
conservation purposes of the gift in perpetuity. For conservation 
contributions made prior to February 14, 1986, the requirement of 
section 170 (h)(5)(A) is satisfied in the case of mortgaged property 
(with respect to which the mortgagee has not subordinated its rights) 
only if the donor can demonstrate that the conservation purpose is 
protected in perpetuity without subordination of the mortgagee's rights.
    (3) Remote future event. A deduction shall not be disallowed under 
section 170(f)(3)(B)(iii) and this section merely because the interest 
which passes to, or is vested in, the donee organization may be defeated 
by the performance of some act or the happening of some event, if on the 
date of the gift it appears that the possibility that such act or event 
will occur is so remote as to be negligible. See paragraph (e) of Sec. 
1.170A-1. For example, a state's statutory requirement that use 
restrictions must be rerecorded every 30 years to remain enforceable 
shall not, by itself, render an easement nonperpetual.
    (4) Retention of qualified mineral interest--(i) In general. Except 
as otherwise provided in paragraph (g)(4)(ii) of this section, the 
requirements of this section are not met and no deduction shall be 
allowed in the case of a contribution of any interest when there is a 
retention by any person of a qualified mineral interest (as defined in 
paragraph (b)(1)(i) of this section) if at any time there may be 
extractions or removal of minerals by any surface mining method. 
Moreover, in the case of a qualified mineral interest gift, the 
requirement that the conservation purposes be protected in perpetuity is 
not satisfied if any method of mining that is inconsistent with the 
particular conservation purposes of a contribution is permitted at any 
time. See also Sec. 1.170A-14(e)(2). However, a deduction under this 
section will not be denied in the case of certain methods of mining that 
may have limited, localized impact on the real property but that are not 
irremediably destructive of significant conservation interests. For 
example, a deduction will not be denied in a case where production 
facilities are concealed or compatible with existing topography and 
landscape and when surface alteration is to be restored to its original 
state.
    (ii) Exception for qualified conservation contributions after July 
1984. (A) A contribution made after July 18, 1984, of a qualified real 
property interest described in section 170(h)(2)(A) shall not be 
disqualified under the first sentence of paragraph (g)(4)(i) of this 
section if the following requirements are satisfied.
    (1) The ownership of the surface estate and mineral interest were 
separated before June 13, 1976, and remain so separated up to and 
including the time of the contribution.
    (2) The present owner of the mineral interest is not a person whose 
relationship to the owner of the surface estate is described at the time 
of the contribution in section 267(b) or section 707(b), and
    (3) The probability of extraction or removal of minerals by any 
surface mining method is so remote as to be negligible.

Whether the probability of extraction or removal of minerals by surface 
mining is so remote as to be negligible is a question of fact and is to 
be made on a case by case basis. Relevant factors to be considered in 
determining if the probability of extraction or removal of minerals by 
surface mining is so remote as to be negligible include: Geological, 
geophysical or economic data showing the absence of mineral reserves on 
the property, or the lack of commercial feasibility at the time of the 
contribution of surface mining the mineral interest.

[[Page 151]]

    (B) If the ownership of the surface estate and mineral interest 
first became separated after June 12, 1976, no deduction is permitted 
for a contribution under this section unless surface mining on the 
property is completely prohibited.
    (iii) Examples. The provisions of paragraph (g)(4)(i) and (ii) of 
this section may be illustrated by the following examples:

    Example 1. K owns 5,000 acres of bottomland hardwood property along 
a major watershed system in the southern part of the United States. 
Agencies within the Department of the Interior have determined that 
southern bottomland hardwoods are a rapidly diminishing resource and a 
critical ecosystem in the south because of the intense pressure to cut 
the trees and convert the land to agricultural use. These agencies have 
further determined (and have indicated in correspondence with K) that 
bottomland hardwoods provide a superb habitat for numerous species and 
play an important role in controlling floods and purifying rivers. K 
donates to a qualified organization his entire interest in this property 
other than his interest in the gas and oil deposits that have been 
identified under K's property. K covenants and can ensure that, although 
drilling for gas and oil on the property may have some temporary 
localized impact on the real property, the drilling will not interfere 
with the overall conservation purpose of the gift, which is to protect 
the unique bottomland hardwood ecosystem. Accordingly, the donation 
qualifies for a deduction under this section.
    Example 2. Assume the same facts as in Example 1, except that in 
1979, K sells the mineral interest to A, an unrelated person, in an 
arm's-length transaction, subject to a recorded prohibition on the 
removal of any minerals by any surface mining method and a recorded 
prohibition against any mining technique that will harm the bottomland 
hardwood ecosystem. After the sale to A, K donates a qualified real 
property interest to a qualified organization to protect the bottomland 
hardwood ecosystem. Since at the time of the transfer, surface mining 
and any mining technique that will harm the bottomland hardwood 
ecosystem are completely prohibited, the donation qualifies for a 
deduction under this section.

    (5) Protection of conservation purpose where taxpayer reserves 
certain rights--(i) Documentation. In the case of a donation made after 
February 13, 1986, of any qualified real property interest when the 
donor reserves rights the exercise of which may impair the conservation 
interests associated with the property, for a deduction to be allowable 
under this section the donor must make available to the donee, prior to 
the time the donation is made, documentation sufficient to establish the 
condition of the property at the time of the gift. Such documentation is 
designed to protect the conservation interests associated with the 
property, which although protected in perpetuity by the easement, could 
be adversely affected by the exercise of the reserved rights. Such 
documentation may include:
    (A) The appropriate survey maps from the United States Geological 
Survey, showing the property line and other contiguous or nearby 
protected areas;
    (B) A map of the area drawn to scale showing all existing man-made 
improvements or incursions (such as roads, buildings, fences, or gravel 
pits), vegetation and identification of flora and fauna (including, for 
example, rare species locations, animal breeding and roosting areas, and 
migration routes), land use history (including present uses and recent 
past disturbances), and distinct natural features (such as large trees 
and aquatic areas);
    (C) An aerial photograph of the property at an appropriate scale 
taken as close as possible to the date the donation is made; and
    (D) On-site photographs taken at appropriate locations on the 
property. If the terms of the donation contain restrictions with regard 
to a particular natural resource to be protected, such as water quality 
or air quality, the condition of the resource at or near the time of the 
gift must be established. The documentation, including the maps and 
photographs, must be accompanied by a statement signed by the donor and 
a representative of the donee clearly referencing the documentation and 
in substance saying ``This natural resources inventory is an accurate 
representation of [the protected property] at the time of the 
transfer.''.
    (ii) Donee's right to inspection and legal remedies. In the case of 
any donation referred to in paragraph (g)(5)(i) of this section, the 
donor must agree to notify the donee, in writing, before exercising any 
reserved right, e.g. the right to extract certain minerals which

[[Page 152]]

may have an adverse impact on the conservation interests associated with 
the qualified real property interest. The terms of the donation must 
provide a right of the donee to enter the property at reasonable times 
for the purpose of inspecting the property to determine if there is 
compliance with the terms of the donation. Additionally, the terms of 
the donation must provide a right of the donee to enforce the 
conservation restrictions by appropriate legal proceedings, including 
but not limited to, the right to require the restoration of the property 
to its condition at the time of the donation.
    (6) Extinguishment. (i) In general. If a subsequent unexpected 
change in the conditions surrounding the property that is the subject of 
a donation under this paragraph can make impossible or impractical the 
continued use of the property for conservation purposes, the 
conservation purpose can nonetheless be treated as protected in 
perpetuity if the restrictions are extinguished by judicial proceeding 
and all of the donee's proceeds (determined under paragraph (g)(6)(ii) 
of this section) from a subsequent sale or exchange of the property are 
used by the donee organization in a manner consistent with the 
conservation purposes of the original contribution.
    (ii) Proceeds. In case of a donation made after February 13, 1986, 
for a deduction to be allowed under this section, at the time of the 
gift the donor must agree that the donation of the perpetual 
conservation restriction gives rise to a property right, immediately 
vested in the donee organization, with a fair market value that is at 
least equal to the proportionate value that the perpetual conservation 
restriction at the time of the gift, bears to the value of the property 
as a whole at that time. See Sec. 1.170A-14(h)(3)(iii) relating to the 
allocation of basis. For purposes of this paragraph (g)(6)(ii), that 
proportionate value of the donee's property rights shall remain 
constant. Accordingly, when a change in conditions give rise to the 
extinguishment of a perpetual conservation restriction under paragraph 
(g)(6)(i) of this section, the donee organization, on a subsequent sale, 
exchange, or involuntary conversion of the subject property, must be 
entitled to a portion of the proceeds at least equal to that 
proportionate value of the perpetual conservation restriction, unless 
state law provides that the donor is entitled to the full proceeds from 
the conversion without regard to the terms of the prior perpetual 
conservation restriction.
    (h) Valuation--(1) Entire interest of donor other than qualified 
mineral interest. The value of the contribution under section 170 in the 
case of a contribution of a taxpayer's entire interest in property other 
than a qualified mineral interest is the fair market value of the 
surface rights in the property contributed. The value of the 
contribution shall be computed without regard to the mineral rights. See 
paragraph (h)(4), example (1), of this section.
    (2) Remainder interest in real property. In the case of a 
contribution of any remainder interest in real property, section 
170(f)(4) provides that in determining the value of such interest for 
purposes of section 170, depreciation and depletion of such property 
shall be taken into account. See Sec. 1.170A-12. In the case of the 
contribution of a remainder interest for conservation purposes, the 
current fair market value of the property (against which the limitations 
of Sec. 1.170A-12 are applied) must take into account any pre-existing 
or contemporaneously recorded rights limiting, for conservation 
purposes, the use to which the subject property may be put.
    (3) Perpetual conservation restriction--(i) In general. The value of 
the contribution under section 170 in the case of a charitable 
contribution of a perpetual conservation restriction is the fair market 
value of the perpetual conservation restriction at the time of the 
contribution. See Sec. 1.170A-7(c). If there is a substantial record of 
sales of easements comparable to the donated easement (such as purchases 
pursuant to a governmental program), the fair market value of the 
donated easement is based on the sales prices of such comparable 
easements. If no substantial record of market-place sales is available 
to use as a meaningful or valid comparison, as a general rule (but not 
necessarily in all cases) the fair market value of a perpetual 
conservation

[[Page 153]]

restriction is equal to the difference between the fair market value of 
the property it encumbers before the granting of the restriction and the 
fair market value of the encumbered property after the granting of the 
restriction. The amount of the deduction in the case of a charitable 
contribution of a perpetual conservation restriction covering a portion 
of the contiguous property owned by a donor and the donor's family (as 
defined in section 267(c)(4)) is the difference between the fair market 
value of the entire contiguous parcel of property before and after the 
granting of the restriction. If the granting of a perpetual conservation 
restriction after January 14, 1986, has the effect of increasing the 
value of any other property owned by the donor or a related person, the 
amount of the deduction for the conservation contribution shall be 
reduced by the amount of the increase in the value of the other 
property, whether or not such property is contiguous. If, as a result of 
the donation of a perpetual conservation restriction, the donor or a 
related person receives, or can reasonably expect to receive, financial 
or economic benefits that are greater than those that will inure to the 
general public from the transfer, no deduction is allowable under this 
section. However, if the donor or a related person receives, or can 
reasonably expect to receive, a financial or economic benefit that is 
substantial, but it is clearly shown that the benefit is less than the 
amount of the transfer, then a deduction under this section is allowable 
for the excess of the amount transferred over the amount of the 
financial or economic benefit received or reasonably expected to be 
received by the donor or the related person. For purposes of this 
paragraph (h)(3)(i), related person shall have the same meaning as in 
either section 267(b) or section 707(b). (See Example 10 of paragraph 
(h)(4) of this section.)
    (ii) Fair market value of property before and after restriction. If 
before and after valuation is used, the fair market value of the 
property before contribution of the conservation restriction must take 
into account not only the current use of the property but also an 
objective assessment of how immediate or remote the likelihood is that 
the property, absent the restriction, would in fact be developed, as 
well as any effect from zoning, conservation, or historic preservation 
laws that already restrict the property's potential highest and best 
use. Further, there may be instances where the grant of a conservation 
restriction may have no material effect on the value of the property or 
may in fact serve to enhance, rather than reduce, the value of property. 
In such instances no deduction would be allowable. In the case of a 
conservation restriction that allows for any development, however 
limited, on the property to be protected, the fair maket value of the 
property after contribution of the restriction must take into account 
the effect of the development. In the case of a conservation easement 
such as an easement on a certified historic structure, the fair market 
value of the property after contribution of the restriction must take 
into account the amount of access permitted by the terms of the 
easement. Additionally, if before and after valuation is used, an 
appraisal of the property after contribution of the restriction must 
take into account the effect of restrictions that will result in a 
reduction of the potential fair market value represented by highest and 
best use but will, nevertheless, permit uses of the property that will 
increase its fair market value above that represented by the property's 
current use. The value of a perpetual conservation restriction shall not 
be reduced by reason of the existence of restrictions on transfer 
designed solely to ensure that the conservation restriction will be 
dedicated to conservation purposes. See Sec. 1.170A-14 (c)(3).
    (iii) Allocation of basis. In the case of the donation of a 
qualified real property interest for conservation purposes, the basis of 
the property retained by the donor must be adjusted by the elimination 
of that part of the total basis of the property that is properly 
allocable to the qualified real property interest granted. The amount of 
the basis that is allocable to the qualified real property interest 
shall bear the same ratio to the total basis of the property as the fair 
market value of the qualified real property interest

[[Page 154]]

bears to the fair market value of the property before the granting of 
the qualified real property interest. When a taxpayer donates to a 
qualifying conservation organization an easement on a structure with 
respect to which deductions are taken for depreciation, the reduction 
required by this paragraph (h)(3)(ii) in the basis of the property 
retained by the taxpayer must be allocated between the structure and the 
underlying land.
    (4) Examples. The provisions of this section may be illustrated by 
the following examples. In examples illustrating the value or 
deductibility of donations, the applicable restrictions and limitations 
of Sec. 1.170A-4, with respect to reduction in amount of charitable 
contributions of certain appreciated property, and Sec. 1.170A-8, with 
respect to limitations on charitable deductions by individuals. must 
also be taken into account.

    Example 1. A owns Goldacre, a property adjacent to a state park. A 
wants to donate Goldacre to the state to be used as part of the park, 
but A wants to reserve a qualified mineral interest in the property, to 
exploit currently and to devise at death. The fair market value of the 
surface rights in Goldacre is $200,000 and the fair market value of the 
mineral rights in $100.000. In order to ensure that the quality of the 
park will not be degraded, restrictions must be imposed on the right to 
extract the minerals that reduce the fair market value of the mineral 
rights to $80,000. Under this section, the value of the contribution is 
$200,000 (the value of the surface rights).
    Example 2. In 1984 B, who is 62, donates a remainder interest in 
Greenacre to a qualifying organization for conservation purposes. 
Greenacre is a tract of 200 acres of undeveloped woodland that is valued 
at $200,000 at its highest and best use. Under Sec. 1.170A-12(b), the 
value of a remainder interest in real property following one life is 
determined under Sec. 25.2512-5 of this chapter (Gift Tax Regulations). 
(See Sec. 25.2512-5A of this chapter with respect to the valuation of 
annuities, interests for life or term of years, and remainder or 
reversionary interests transferred before May 1, 2009.) Accordingly, the 
value of the remainder interest, and thus the amount eligible for an 
income tax deduction under section 170(f), is $55,996 ($200,000x.27998).
    Example 3. Assume the same facts as in Example 2, except that 
Greenacre is B's 200-acre estate with a home built during the colonial 
period. Some of the acreage around the home is cleared; the balance of 
Greenacre, except for access roads, is wooded and undeveloped. See 
section 170(f)(3)(B)(i). However, B would like Greenacre to be 
maintained in its current state after his death, so he donates a 
remainder interest in Greenacre to a qualifying organization for 
conservation purposes pursunt to section 170 (f)(3)(B)(iii) and 
(h)(2)(B). At the time of the gift the land has a value of $200,000 and 
the house has a value of $100,000. The value of the remainder interest, 
and thus the amount eligible for an income tax deduction under section 
170(f), is computed pursuant to Sec. 1.170A-12. See Sec. 1.170A-
12(b)(3).
    Example 4. Assume the same facts as in Example 2, except that at age 
62 instead of donating a remainder interest B donates an easement in 
Greenacre to a qualifying organization for conservation purposes. The 
fair market value of Greenacre after the donation is reduced to 
$110,000. Accordingly, the value of the easement, and thus the amount 
eligible for a deduction under section 170(f), is $90,000 ($200,000 less 
$110,000).
    Example 5. Assume the same facts as in Example 4, and assume that 
three years later, at age 65, B decides to donate a remainder interest 
in Greenacre to a qualifying organization for conservation purposes. 
Increasing real estate values in the area have raised the fair market 
value of Greenacre (subject to the easement) to $130,000. Accordingly, 
the value of the remainder interest, and thus the amount eligible for a 
deduction under section 170(f), is $41,639 ($130,000x.32030).
    Example 6. Assume the same facts as in Example 2, except that at the 
time of the donation of a remainder interest in Greenacre, B also 
donates an easement to a different qualifying organization for 
conservation purposes. Based on all the facts and circumstances, the 
value of the easement is determined to be $100,000. Therefore, the value 
of the property after the easement is $100,000 and the value of the 
remainder interest, and thus the amount eligible for deduction under 
section 170(f), is $27,998 ($100,000x.27998).
    Example 7. C owns Greenacre, a 200-acre estate containing a house 
built during the colonial period. At its highest and best use, for home 
development, the fair market value of Greenacre is $300,000. C donates 
an easement (to maintain the house and Green acre in their current 
state) to a qualifying organization for conservation purposes. The fair 
market value of Greenacre after the donation is reduced to $125,000. 
Accordingly, the value of the easement and the amount eligible for a 
deduction under section 170(f) is $175.000 ($300,000 less $125,000).
    Example 8. Assume the same facts as in Example 7 and assume that 
three years later, C decides to donate a remainder interest in Greenacre 
to a qualifying organization for conservation purposes. Increasing real 
estate values in the area have raised the fair market value of Greenacre 
to $180.000. Assume

[[Page 155]]

that because of the perpetual easement prohibiting any development of 
the land, the value of the house is $120,000 and the value of the land 
is $60,000. The value of the remainder interest, and thus the amount 
eligible for an income tax deduction under section 170(f), is computed 
pursuant to Sec. 1.170A-12. See Sec. 1.170A-12(b)(3).
    Example 9. D owns property with a basis of $20,000 and a fair market 
value of $80,000. D donates to a qualifying organization an easement for 
conservation purposes that is determined under this section to have a 
fair market value of $60,000. The amount of basis allocable to the 
easement is $15,000 ($60,000/$80,000=$15,000/$20,000). Accordingly, the 
basis of the property is reduced to $5,000 ($20,000 minus $15,000).
    Example 10. E owns 10 one-acre lots that are currently woods and 
parkland. The fair market value of each of E's lots is $15,000 and the 
basis of each lot is $3,000. E grants to the county a perpetual easement 
for conservation purposes to use and maintain eight of the acres as a 
public park and to restrict any future development on those eight acres. 
As a result of the restrictions, the value of the eight acres is reduced 
to $1,000 an acre. However, by perpetually restricting development on 
this portion of the land, E has ensured that the two remaining acres 
will always be bordered by parkland, thus increasing their fair market 
value to $22,500 each. If the eight acres represented all of E's land, 
the fair market value of the easement would be $112,000, an amount equal 
to the fair market value of the land before the granting of the easement 
(8x$15,000=$120,000) minus the fair market value of the encumbered land 
after the granting of the easement (8x$1,000=$8,000). However, because 
the easement only covered a portion of the taxpayer's contiguous land, 
the amount of the deduction under section 170 is reduced to $97,000 
($150,000-$53,000), that is, the difference between the fair market 
value of the entire tract of land before ($150,000) and after 
((8x$1,000)+(2x $22,500)) the granting of the easement.
    Example 11. Assume the same facts as in example (10). Since the 
easement covers a portion of E's land, only the basis of that portion is 
adjusted. Therefore, the amount of basis allocable to the easement is 
$22,400 ((8x$3,000)x($112,000/$120,000)). Accordingly, the basis of the 
eight acres encumbered by the easement is reduced to $1,600 ($24,000-
$22,400), or $200 for each acre. The basis of the two remaining acres is 
not affected by the donation.
    Example 12. F owns and uses as professional offices a two-story 
building that lies within a registered historic district. F's building 
is an outstanding example of period architecture with a fair market 
value of $125,000. Restricted to its current use, which is the highest 
and best use of the property without making changes to the facade, the 
building and lot would have a fair market value of $100,000, of which 
$80,000 would be allocable to the building and $20,000 woud be allocable 
to the lot. F's basis in the property is $50,000, of which $40,000 is 
allocable to the building and $10,000 is allocable to the lot. F's 
neighborhood is a mix of residential and commercial uses, and it is 
possible that F (or another owner) could enlarge the building for more 
extensive commercial use, which is its highest and best use. However, 
this would require changes to the facade. F would like to donate to a 
qualifying preservation organization an easement restricting any changes 
to the facade and promising to maintain the facade in perpetuity. The 
donation would qualify for a deduction under this section. The fair 
market value of the easement is $25,000 (the fair market value of the 
property before the easement, $125,000, minus the fair market value of 
the property after the easement, $100,000). Pursuant to Sec. 1.170A-
14(h)(3)(iii), the basis allocable to the easement is $10,000 and the 
basis of the underlying property (building and lot) is reduced to 
$40,000.

    (i) Substantiation requirement. If a taxpayer makes a qualified 
conservation contribution and claims a deduction, the taxpayer must 
maintain written records of the fair market value of the underlying 
property before and after the donation and the conservation purpose 
furthered by the donation and such information shall be stated in the 
taxpayer's income tax return if required by the return or its 
instructions. See also Sec. 1.170A-13(c) (relating to substantiation 
requirements for deductions in excess of $5,000 for charitable 
contributions made after 1984), and section 6659 (relating to additions 
to tax in the case of valuation overstatements).
    (j) Effective date. Except as otherwise provided in Sec. 1.170A-
14(g)(4)(ii), this section applies only to contributions made on or 
after December 18, 1980.

[T.D. 8069, 51 FR 1499, Jan. 14, 1986; 51 FR 5322, Feb. 13, 1986; 51 FR 
6219, Feb. 21, 1986, as amended by T.D. 8199, 53 FR 16085, May 5, 1988; 
T.D. 8540, 59 FR 30105, June 10, 1994; T.D. 8819, 64 FR 23228, Apr. 30, 
1999; T.D. 9448, 74 FR 21518, May 7, 2009]



Sec. 1.171-1  Bond premium.

    (a) Overview--(1) In general. This section and Sec. Sec. 1.171-2 
through 1.171-5 provide rules for the determination and amortization of 
bond premium by a holder. In general, a holder amortizes

[[Page 156]]

bond premium by offsetting the interest allocable to an accrual period 
with the premium allocable to that period. Bond premium is allocable to 
an accrual period based on a constant yield. The use of a constant yield 
to amortize bond premium is intended to generally conform the treatment 
of bond premium to the treatment of original issue discount under 
sections 1271 through 1275. Unless otherwise provided, the terms used in 
this section and Sec. Sec. 1.171-2 through 1.171-5 have the same 
meaning as those terms in sections 1271 through 1275 and the 
corresponding regulations. Moreover, unless otherwise provided, the 
provisions of this section and Sec. Sec. 1.171-2 through 1.171-5 apply 
in a manner consistent with those of sections 1271 through 1275 and the 
corresponding regulations. In addition, the anti-abuse rule in Sec. 
1.1275-2(g) applies for purposes of this section and Sec. Sec. 1.171-2 
through 1.171-5.
    (2) Cross-references. For rules dealing with the adjustments to a 
holder's basis to reflect the amortization of bond premium, see Sec. 
1.1016-5(b). For rules dealing with the treatment of bond issuance 
premium by an issuer, see Sec. 1.163-13.
    (b) Scope--(1) In general. Except as provided in paragraph (b)(2) of 
this section and Sec. 1.171-5, this section and Sec. Sec. 1.171-2 
through 1.171-4 apply to any bond that, upon its acquisition by the 
holder, is held with bond premium. For purposes of this section and 
Sec. Sec. 1.171-2 through 1.171-5, the term bond has the same meaning 
as the term debt instrument in Sec. 1.1275-1(d).
    (2) Exceptions. This section and Sec. Sec. 1.171-2 through 1.171-5 
do not apply to--
    (i) A bond described in section 1272(a)(6)(C) (regular interests in 
a REMIC, qualified mortgages held by a REMIC, and certain other debt 
instruments, or pools of debt instruments, with payments subject to 
acceleration);
    (ii) A bond to which Sec. 1.1275-4 applies (relating to certain 
debt instruments that provide for contingent payments);
    (iii) A bond held by a holder that has made a Sec. 1.1272-3 
election with respect to the bond;
    (iv) A bond that is stock in trade of the holder, a bond of a kind 
that would properly be included in the inventory of the holder if on 
hand at the close of the taxable year, or a bond held primarily for sale 
to customers in the ordinary course of the holder's trade or business; 
or
    (v) A bond issued before September 28, 1985, unless the bond bears 
interest and was issued by a corporation or by a government or political 
subdivision thereof.
    (c) General rule--(1) Tax-exempt obligations. A holder must amortize 
bond premium on a bond that is a tax-exempt obligation. See Sec. 1.171-
2(c) Example 4.
    (2) Taxable bonds. A holder may elect to amortize bond premium on a 
taxable bond. Except as provided in paragraph (c)(3) of this section, a 
taxable bond is any bond other than a tax-exempt obligation. See Sec. 
1.171-4 for rules relating to the election to amortize bond premium on a 
taxable bond.
    (3) Bonds the interest on which is partially excludable. For 
purposes of this section and Sec. Sec. 1.171-2 through 1.171-5, a bond 
the interest on which is partially excludable from gross income is 
treated as two instruments, a tax-exempt obligation and a taxable bond. 
The holder's basis in the bond and each payment on the bond are 
allocated between the two instruments based on a reasonable method.
    (d) Determination of bond premium--(1) In general. A holder acquires 
a bond at a premium if the holder's basis in the bond immediately after 
its acquisition by the holder exceeds the sum of all amounts payable on 
the bond after the acquisition date (other than payments of qualified 
stated interest). This excess is bond premium, which is amortizable 
under Sec. 1.171-2.
    (2) Additional rules for amounts payable on certain bonds. 
Additional rules apply to determine the amounts payable on a variable 
rate debt instrument, an inflation-indexed debt instrument, a bond that 
provides for certain alternative payment schedules, and a bond that 
provides for remote or incidental contingencies. See Sec. 1.171-3.
    (e) Basis. A holder determines its basis in a bond under this 
paragraph (e). This determination of basis applies only for purposes of 
this section and Sec. Sec. 1.171-2 through 1.171-5. Because of the 
application of this paragraph (e), the

[[Page 157]]

holder's basis in the bond for purposes of these sections may differ 
from the holder's basis for determining gain or loss on the sale or 
exchange of the bond.
    (1) Determination of basis--(i) In general. In general, the holder's 
basis in the bond is the holder's basis for determining loss on the sale 
or exchange of the bond.
    (ii) Bonds acquired in certain exchanges. If the holder acquired the 
bond in exchange for other property (other than in a reorganization 
defined in section 368) and the holder's basis in the bond is determined 
in whole or in part by reference to the holder's basis in the other 
property, the holder's basis in the bond may not exceed its fair market 
value immediately after the exchange. See paragraph (f) Example 1 of 
this section. If the bond is acquired in a reorganization, see section 
171(b)(4)(B).
    (iii) Convertible bonds--(A) General rule. If the bond is a 
convertible bond, the holder's basis in the bond is reduced by an amount 
equal to the value of the conversion option. The value of the conversion 
option may be determined under any reasonable method. For example, the 
holder may determine the value of the conversion option by comparing the 
market price of the convertible bond to the market prices of similar 
bonds that do not have conversion options. See paragraph (f) Example 2 
of this section.
    (B) Convertible bonds acquired in certain exchanges. If the bond is 
a convertible bond acquired in a transaction described in paragraph 
(e)(1)(ii) of this section, the holder's basis in the bond may not 
exceed its fair market value immediately after the exchange reduced by 
the value of the conversion option.
    (C) Definition of convertible bond. A convertible bond is a bond 
that provides the holder with an option to convert the bond into stock 
of the issuer, 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. For bonds 
issued on or after February 5, 2013, the term stock in the preceding 
sentence means an equity interest in any entity that is classified, for 
Federal tax purposes, as either a partnership or a corporation.
    (2) Basis in bonds held by certain transferees. Notwithstanding 
paragraph (e)(1) of this section, if the bond is transferred basis 
property (as defined in section 7701(a)(43)) and the transferor had 
acquired the bond at a premium, the holder's basis in the bond is--
    (i) The holder's basis for determining loss on the sale or exchange 
of the bond; reduced by
    (ii) Any amounts that the transferor could not have amortized under 
this paragraph (e) or under Sec. 1.171-4(c), except to the extent that 
the holder's basis already reflects a reduction attributable to such 
nonamortizable amounts.
    (f) Examples. The following examples illustrate the rules of this 
section:

    Example 1. Bond received in liquidation of a partnership interest--
(i) Facts. PR is a partner in partnership PRS. PRS does not have any 
unrealized receivables or inventory items as defined in section 751. On 
January 1, 1998, PRS distributes to PR a taxable bond, issued by an 
unrelated corporation, in liquidation of PR's partnership interest. At 
that time, the fair market value of PR's partnership interest is $40,000 
and the basis is $100,000. The fair market value of the bond is $40,000.
    (ii) Determination of basis. Under section 732(b), PR's basis in the 
bond is equal to PR's basis in the partnership interest. Therefore, PR's 
basis for determining loss on the sale or exchange of the bond is 
$100,000. However, because the distribution is treated as an exchange 
for purposes of section 171(b)(4), PR's basis in the bond is $40,000 for 
purposes of this section and Sec. Sec. 1.171-2 through 1.171-5. See 
paragraph (e)(1)(ii) of this section.
    Example 2. [Reserved] For further guidance, see Sec. 1.171-1T(f) 
Example 2.

[T.D. 8746, 62 FR 68177, Dec. 31, 1997, as amended by T.D. 9533, 76 FR 
39280, July 6, 2011; T.D. 9612, 78 FR 8005, Feb. 5, 2013]



Sec. 1.171-1T  Bond premium (temporary).

    (a) through (f) Example 1 [Reserved] For further guidance, see Sec. 
1.171-1(a) through (f) Example 1.

    Example 2. Convertible bond--(i) Facts. On January 1, 2012, A 
purchases for $1,100 B corporation's bond maturing on January 1, 2015, 
with a stated principal amount of $1,000, payable at maturity. The bond 
provides for unconditional payments of interest of $30 on

[[Page 158]]

January 1 and July 1 of each year. In addition, the bond is convertible 
into 15 shares of B corporation stock at the option of the holder. On 
January 1, 2012, B corporation's nonconvertible, publicly-traded, three-
year debt of comparable credit quality trades at a price that reflects a 
yield of 6.75 percent, compounded semiannually.
    (ii) Determination of basis. A's basis for determining loss on the 
sale or exchange of the bond is $1,100. As of January 1, 2012, 
discounting the remaining payments on the bond at the yield at which B's 
similar nonconvertible bonds trade (6.75 percent, compounded 
semiannually) results in a present value of $980. Thus, the value of the 
conversion option is $120. Under Sec. 1.171-1(e)(1)(iii)(A), A's basis 
is $980 ($1,100 -$120) for purposes of Sec. Sec. 1.171-1 through 1.171-
5. The sum of all amounts payable on the bond other than qualified 
stated interest is $1,000. Because A's basis (as determined under Sec. 
1.171-1(e)(1)(iii)(A)) does not exceed $1,000, A does not acquire the 
bond at a premium.

    (iii) Effective/applicability date. This Example 2 applies to bonds 
acquired on or after July 6, 2011.
    (g) Expiration date. The applicability of this section expires on or 
before July 1, 2014.

[T.D. 9533, 76 FR 39280, July 6, 2011]



Sec. 1.171-2  Amortization of bond premium.

    (a) Offsetting qualified stated interest with premium--(1) In 
general. A holder amortizes bond premium by offsetting the qualified 
stated interest allocable to an accrual period with the bond premium 
allocable to the accrual period. This offset occurs when the holder 
takes the qualified stated interest into account under the holder's 
regular method of accounting.
    (2) Qualified stated interest allocable to an accrual period. See 
Sec. 1.446-2(b) to determine the accrual period to which qualified 
stated interest is allocable and to determine the accrual of qualified 
stated interest within an accrual period.
    (3) Bond premium allocable to an accrual period. The bond premium 
allocable to an accrual period is determined under this paragraph 
(a)(3). Within an accrual period, the bond premium allocable to the 
period accrues ratably.
    (i) Step one: Determine the holder's yield. The holder's yield is 
the discount rate that, when used in computing the present value of all 
remaining payments to be made on the bond (including payments of 
qualified stated interest), produces an amount equal to the holder's 
basis in the bond as determined under Sec. 1.171-1(e). For this 
purpose, the remaining payments include only payments to be made after 
the date the holder acquires the bond. The yield is calculated as of the 
date the holder acquires the bond, must be constant over the term of the 
bond, and must be calculated to at least two decimal places when 
expressed as a percentage.
    (ii) Step two: Determine the accrual periods. A holder determines 
the accrual periods for the bond under the rules of Sec. 1.1272-
1(b)(1)(ii).
    (iii) Step three: Determine the bond premium allocable to the 
accrual period. The bond premium allocable to an accrual period is the 
excess of the qualified stated interest allocable to the accrual period 
over the product of the holder's adjusted acquisition price (as defined 
in paragraph (b) of this section) at the beginning of the accrual period 
and the holder's yield. In performing this calculation, the yield must 
be stated appropriately taking into account the length of the particular 
accrual period. Principles similar to those in Sec. 1.1272-1(b)(4) 
apply in determining the bond premium allocable to an accrual period.
    (4) Bond premium in excess of qualified stated interest--(i) Taxable 
bonds--(A) Bond premium deduction. In the case of a taxable bond, if the 
bond premium allocable to an accrual period exceeds the qualified stated 
interest allocable to the accrual period, the excess is treated by the 
holder as a bond premium deduction under section 171(a)(1) for the 
accrual period. However, the amount treated as a bond premium deduction 
is limited to the amount by which the holder's total interest inclusions 
on the bond in prior accrual periods exceed the total amount treated by 
the holder as a bond premium deduction on the bond in prior accrual 
periods. A deduction determined under this paragraph (a)(4)(i)(A) is not 
subject to section 67 (the 2-percent floor on miscellaneous itemized 
deductions). See Example 1 of Sec. 1.171-3(e).

[[Page 159]]

    (B) Carryforward. If the bond premium allocable to an accrual period 
exceeds the sum of the qualified stated interest allocable to the 
accrual period and the amount treated as a deduction for the accrual 
period under paragraph (a)(4)(i)(A) of this section, the excess is 
carried forward to the next accrual period and is treated as bond 
premium allocable to that period.
    (ii) Tax-exempt obligations. In the case of a tax-exempt obligation, 
if the bond premium allocable to an accrual period exceeds the qualified 
stated interest allocable to the accrual period, the excess is a 
nondeductible loss. If a regulated investment company (RIC) within the 
meaning of section 851 has excess bond premium for an accrual period 
that would be a nondeductible loss under the prior sentence, the RIC 
must use this excess bond premium to reduce its tax-exempt interest 
income on other tax-exempt obligations held during the accrual period.
    (5) Additional rules for certain bonds. Additional rules apply to 
determine the amortization of bond premium on a variable rate debt 
instrument, an inflation-indexed debt instrument, a bond that provides 
for certain alternative payment schedules, and a bond that provides for 
remote or incidental contingencies. See Sec. 1.171-3.
    (b) Adjusted acquisition price. The adjusted acquisition price of a 
bond at the beginning of the first accrual period is the holder's basis 
as determined under Sec. 1.171-1(e). Thereafter, the adjusted 
acquisition price is the holder's basis in the bond decreased by--
    (1) The amount of bond premium previously allocable under paragraph 
(a)(3) of this section; and
    (2) The amount of any payment previously made on the bond other than 
a payment of qualified stated interest.
    (c) Examples. The following examples illustrate the rules of this 
section. Each example assumes the holder uses the calendar year as its 
taxable year and has elected to amortize bond premium, effective for all 
relevant taxable years. In addition, each example assumes a 30-day month 
and 360-day year. Although, for purposes of simplicity, the yield as 
stated is rounded to two decimal places, the computations do not reflect 
this rounding convention. The examples are as follows:

    Example 1. Taxable bond--(i) Facts. On February 1, 1999, A purchases 
for $110,000 a taxable bond maturing on February 1, 2006, with a stated 
principal amount of $100,000, payable at maturity. The bond provides for 
unconditional payments of interest of $10,000, payable on February 1 of 
each year. A uses the cash receipts and disbursements method of 
accounting, and A decides to use annual accrual periods ending on 
February 1 of each year.
    (ii) Amount of bond premium. The interest payments on the bond are 
qualified stated interest. Therefore, the sum of all amounts payable on 
the bond (other than the interest payments) is $100,000. Under Sec. 
1.171-1, the amount of bond premium is $10,000 ($110,000-$100,000).
    (iii) Bond premium allocable to the first accrual period. Based on 
the remaining payment schedule of the bond and A's basis in the bond, 
A's yield is 8.07 percent, compounded annually. The bond premium 
allocable to the accrual period ending on February 1, 2000, is the 
excess of the qualified stated interest allocable to the period 
($10,000) over the product of the adjusted acquisition price at the 
beginning of the period ($110,000) and A's yield (8.07 percent, 
compounded annually). Therefore, the bond premium allocable to the 
accrual period is $1,118.17 ($10,000-$8,881.83).
    (iv) Premium used to offset interest. Although A receives an 
interest payment of $10,000 on February 1, 2000, A only includes in 
income $8,881.83, the qualified stated interest allocable to the period 
($10,000) offset with bond premium allocable to the period ($1,118.17). 
Under Sec. 1.1016-5(b), A's basis in the bond is reduced by $1,118.17 
on February 1, 2000.
    Example 2. Alternative accrual periods--(i) Facts. The facts are the 
same as in Example 1 of this paragraph (c) except that A decides to use 
semiannual accrual periods ending on February 1 and August 1 of each 
year.
    (ii) Bond premium allocable to the first accrual period. Based on 
the remaining payment schedule of the bond and A's basis in the bond, 
A's yield is 7.92 percent, compounded semiannually. The bond premium 
allocable to the accrual period ending on August 1, 1999, is the excess 
of the qualified stated interest allocable to the period ($5,000) over 
the product of the adjusted acquisition price at the beginning of the 
period ($110,000) and A's yield, stated appropriately taking into 
account the length of the accrual period (7.92 percent/2). Therefore, 
the bond premium allocable to the accrual period is $645.29 ($5,000-
$4,354.71). Although the accrual period ends on August 1, 1999, the 
qualified stated interest of $5,000 is not taken into income until 
February 1, 2000, the date it is received. Likewise, the bond premium of

[[Page 160]]

$645.29 is not taken into account until February 1, 2000. The adjusted 
acquisition price of the bond on August 1, 1999, is $109,354.71 (the 
adjusted acquisition price at the beginning of the period ($110,000) 
less the bond premium allocable to the period ($645.29)).
    (iii) Bond premium allocable to the second accrual period. Because 
the interval between payments of qualified stated interest contains more 
than one accrual period, the adjusted acquisition price at the beginning 
of the second accrual period must be adjusted for the accrued but unpaid 
qualified stated interest. See paragraph (a)(3)(iii) of this section and 
Sec. 1.1272-1(b)(4)(i)(B). Therefore, the adjusted acquisition price on 
August 1, 1999, is $114,354.71 ($109,354.71 + $5,000). The bond premium 
allocable to the accrual period ending on February 1, 2000, is the 
excess of the qualified stated interest allocable to the period ($5,000) 
over the product of the adjusted acquisition price at the beginning of 
the period ($114,354.71) and A's yield, stated appropriately taking into 
account the length of the accrual period (7.92 percent/2). Therefore, 
the bond premium allocable to the accrual period is $472.88 ($5,000-
$4,527.12).
    (iv) Premium used to offset interest. Although A receives an 
interest payment of $10,000 on February 1, 2000, A only includes in 
income $8,881.83, the qualified stated interest of $10,000 ($5,000 
allocable to the accrual period ending on August 1, 1999, and $5,000 
allocable to the accrual period ending on February 1, 2000) offset with 
bond premium of $1,118.17 ($645.29 allocable to the accrual period 
ending on August 1, 1999, and $472.88 allocable to the accrual period 
ending on February 1, 2000). As indicated in Example 1 of this paragraph 
(c), this same amount would be taken into income at the same time had A 
used annual accrual periods.
    Example 3. Holder uses accrual method of accounting--(i) Facts. The 
facts are the same as in Example 1 of this paragraph (c) except that A 
uses an accrual method of accounting. Thus, for the accrual period 
ending on February 1, 2000, the qualified stated interest allocable to 
the period is $10,000, and the bond premium allocable to the period is 
$1,118.17. Because the accrual period extends beyond the end of A's 
taxable year, A must allocate these amounts between the two taxable 
years.
    (ii) Amounts allocable to the first taxable year. The qualified 
stated interest allocable to the first taxable year is $9,166.67 
($10,000 x \11/12\). The bond premium allocable to the first taxable 
year is $1,024.99 ($1,118.17 x \11/12\).
    (iii) Premium used to offset interest. For 1999, A includes in 
income $8,141.68, the qualified stated interest allocable to the period 
($9,166.67) offset with bond premium allocable to the period 
($1,024.99). Under Sec. 1.1016-5(b), A's basis in the bond is reduced 
by $1,024.99 in 1999.
    (iv) Amounts allocable to the next taxable year. The remaining 
amounts of qualified stated interest and bond premium allocable to the 
accrual period ending on February 1, 2000, are taken into account for 
the taxable year ending on December 31, 2000.
    Example 4. Tax-exempt obligation--(i) Facts. On January 15, 1999, C 
purchases for $120,000 a tax-exempt obligation maturing on January 15, 
2006, with a stated principal amount of $100,000, payable at maturity. 
The obligation provides for unconditional payments of interest of 
$9,000, payable on January 15 of each year. C uses the cash receipts and 
disbursements method of accounting, and C decides to use annual accrual 
periods ending on January 15 of each year.
    (ii) Amount of bond premium. The interest payments on the obligation 
are qualified stated interest. Therefore, the sum of all amounts payable 
on the obligation (other than the interest payments) is $100,000. Under 
Sec. 1.171-1, the amount of bond premium is $20,000 ($120,000--
$100,000).
    (iii) Bond premium allocable to the first accrual period. Based on 
the remaining payment schedule of the obligation and C's basis in the 
obligation, C's yield is 5.48 percent, compounded annually. The bond 
premium allocable to the accrual period ending on January 15, 2000, is 
the excess of the qualified stated interest allocable to the period 
($9,000) over the product of the adjusted acquisition price at the 
beginning of the period ($120,000) and C's yield (5.48 percent, 
compounded annually). Therefore, the bond premium allocable to the 
accrual period is $2,420.55 ($9,000-$6,579.45).
    (iv) Premium used to offset interest. Although C receives an 
interest payment of $9,000 on January 15, 2000, C only receives tax-
exempt interest income of $6,579.45, the qualified stated interest 
allocable to the period ($9,000) offset with bond premium allocable to 
the period ($2,420.55). Under Sec. 1.1016-5(b), C's basis in the 
obligation is reduced by $2,420.55 on January 15, 2000.

[T.D. 8746, 62 FR 68178, Dec. 31, 1997]



Sec. 1.171-2T  Amortization of bond premium (temporary).

    (a)(1) through (a)(4)(i)(B) [Reserved] For further guidance, see 
Sec. 1.171-2(a)(1) through (a)(4)(i)(B).
    (C) Carryforward in holder's final accrual period--(1) If there is a 
bond premium carryforward determined under Sec. 1.171-2(a)(4)(i)(B) as 
of the end of the holder's accrual period in which the bond is sold, 
retired, or otherwise disposed of, the holder treats the amount of the 
carryforward as a bond premium deduction under section 171(a)(1) for the 
holder's taxable year in which the

[[Page 161]]

sale, retirement, or other disposition occurs. For purposes of Sec. 
1.1016-5(b), the holder's basis in the bond is reduced by the amount of 
bond premium allowed as a deduction under this paragraph 
(a)(4)(i)(C)(1).
    (2) Effective/applicability date. Notwithstanding Sec. 1.171-
5(a)(1), paragraph (a)(4)(i)(C)(1) of this section applies to a bond 
acquired on or after January 4, 2013. A taxpayer, however, may rely on 
paragraph (a)(4)(i)(C)(1) of this section for a bond acquired before 
that date.
    (ii) through (c) [Reserved] For further guidance, see Sec. 1.171-
2(a)(4)(ii) through (c).
    (d) Expiration date. The applicability of this section expires on or 
before December 31, 2015.

[T.D. 9609, 78 FR 667, Jan. 4, 2013]



Sec. 1.171-3  Special rules for certain bonds.

    (a) Variable rate debt instruments. A holder determines bond premium 
on a variable rate debt instrument by reference to the stated redemption 
price at maturity of the equivalent fixed rate debt instrument 
constructed for the variable rate debt instrument. The holder also 
allocates any bond premium among the accrual periods by reference to the 
equivalent fixed rate debt instrument. The holder constructs the 
equivalent fixed rate debt instrument, as of the date the holder 
acquires the variable rate debt instrument, by using the principles of 
Sec. 1.1275-5(e). See paragraph (e) Example 1 of this section.
    (b) Inflation-indexed debt instruments. A holder determines bond 
premium on an inflation-indexed debt instrument by assuming that there 
will be no inflation or deflation over the remaining term of the 
instrument. The holder also allocates any bond premium among the accrual 
periods by assuming that there will be no inflation or deflation over 
the remaining term of the instrument. The bond premium allocable to an 
accrual period offsets qualified stated interest allocable to the 
period. Notwithstanding Sec. 1.171-2(a)(4), if the bond premium 
allocable to an accrual period exceeds the qualified stated interest 
allocable to the period, the excess is treated as a deflation adjustment 
under Sec. 1.1275-7(f)(1)(i). However, the rules in Sec. 1.171-
2T(a)(4)(i)(C) apply to any remaining deflation adjustment attributable 
to bond premium as of the end of the holder's accrual period in which 
the bond is sold, retired, or otherwise disposed of. See Sec. 1.1275-7 
for other rules relating to inflation-indexed debt instruments.
    (c) Yield and remaining payment schedule of certain bonds subject to 
contingencies--(1) Applicability. This paragraph (c) provides rules that 
apply in determining the yield and remaining payment schedule of certain 
bonds 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 date 
the holder acquires the bond (the acquisition date) and the bond is 
subject to paragraph (c)(2), (3), or (4) of this section. A bond 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 bond that provides for a contingency that is not described in this 
paragraph (c).
    (2) Remaining payment schedule that is significantly more likely 
than not to occur. If, based on all the facts and circumstances as of 
the acquisition date, a single remaining payment schedule for a bond is 
significantly more likely than not to occur, this remaining payment 
schedule is used to determine and amortize bond premium under Sec. Sec. 
1.171-1 and 1.171-2.
    (3) Mandatory sinking fund provision. Notwithstanding paragraph 
(c)(2) of this section, if a bond is subject to a mandatory sinking fund 
provision described in Sec. 1.1272-1(c)(3), the provision is ignored 
for purposes of determining and amortizing bond premium under Sec. Sec. 
1.171-1 and 1.171-2.
    (4) Treatment of certain options--(i) Applicability. Notwithstanding 
paragraphs (c)(2) and (3) of this section, the rules of this paragraph 
(c)(4) determine the remaining payment schedule of a bond that provides 
the holder or issuer with an unconditional option or options, 
exercisable on one or more dates

[[Page 162]]

during the remaining term of the bond, to alter the bond's remaining 
payment schedule.
    (ii) Operating rules. A holder determines the remaining payment 
schedule of a bond by assuming that each option will (or will not) be 
exercised under the following rules:
    (A) Issuer options. In general, the issuer is deemed to exercise or 
not exercise an option or combination of options in the manner that 
minimizes the holder's yield on the obligation. However, the issuer of a 
taxable bond is deemed to exercise or not exercise a call option or 
combination of call options in the manner that maximizes the holder's 
yield on the bond.
    (B) Holder options. A holder is deemed to exercise or not exercise 
an option or combination of options in the manner that maximizes the 
holder's yield on the bond.
    (C) Multiple options. If both the issuer and the holder have 
options, the rules of paragraphs (c)(4)(ii)(A) and (B) of this section 
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.
    (5) Subsequent adjustments--(i) In general. Except as provided in 
paragraph (c)(5)(ii) of this section, if a contingency described in this 
paragraph (c) (including the exercise of an option described in 
paragraph (c)(4) of this section) actually occurs or does not occur, 
contrary to the assumption made pursuant to paragraph (c) of this 
section (a change in circumstances), then solely for purposes of section 
171, the bond is treated as retired and reacquired by the holder on the 
date of the change in circumstances for an amount equal to the adjusted 
acquisition price of the bond as of that date. 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 bond. See 
paragraph (e) Example 2 of this section.
    (ii) Bond premium deduction on the issuer's call of a taxable bond. 
If a change in circumstances results from an issuer's call of a taxable 
bond or a partial call that is a pro-rata prepayment, the holder may 
deduct as bond premium an amount equal to the excess, if any, of the 
holder's adjusted acquisition price of the bond over the greater of--
    (A) The amount received on redemption; and
    (B) The amounts that would have been payable under the bond (other 
than payments of qualified stated interest) if no change in 
circumstances had occurred.
    (d) Remote and incidental contingencies. For purposes of determining 
and amortizing bond premium, if a bond provides for a contingency that 
is remote or incidental (within the meaning of Sec. 1.1275-2(h)), the 
holder takes the contingency into account under the rules for remote and 
incidental contingencies in Sec. 1.1275-2(h).
    (e) Examples. The following examples illustrate the rules of this 
section. Each example assumes the holder uses the calendar year as its 
taxable year and has elected to amortize bond premium, effective for all 
relevant taxable years. In addition, each example assumes a 30-day month 
and 360-day year. Although, for purposes of simplicity, the yield as 
stated is rounded to two decimal places, the computations do not reflect 
this rounding convention. The examples are as follows:

    Example 1. Variable rate debt instrument--(i) Facts. On March 1, 
1999, E purchases for $110,000 a taxable bond maturing on March 1, 2007, 
with a stated principal amount of $100,000, payable at maturity. The 
bond provides for unconditional payments of interest on March 1 of each 
year based on the percentage appreciation of a nationally-known 
commodity index. On March 1, 1999, it is reasonably expected that the 
bond will yield 12 percent, compounded annually. E uses the cash 
receipts and disbursements method of accounting, and E decides to use 
annual accrual periods ending on March 1 of each year. Assume that the 
bond is a variable rate debt instrument under Sec. 1.1275-5.
    (ii) Amount of bond premium. Because the bond is a variable rate 
debt instrument, E determines and amortizes its bond premium by 
reference to the equivalent fixed rate debt instrument constructed for 
the bond as of March 1, 1999. Because the bond provides for interest at 
a single objective rate that is reasonably expected to yield 12 percent, 
compounded annually, the equivalent fixed rate debt instrument for the 
bond is an eight-year bond with a principal amount of $100,000, payable 
at maturity. It provides for annual

[[Page 163]]

payments of interest of $12,000. E's basis in the equivalent fixed rate 
debt instrument is $110,000. The sum of all amounts payable on the 
equivalent fixed rate debt instrument (other than payments of qualified 
stated interest) is $100,000. Under Sec. 1.171-1, the amount of bond 
premium is $10,000 ($110,000 -$100,000).
    (iii) Bond premium allocable to each accrual period. E allocates 
bond premium to the remaining accrual periods by reference to the 
payment schedule on the equivalent fixed rate debt instrument. Based on 
the payment schedule of the equivalent fixed rate debt instrument and 
E's basis in the bond, E's yield is 10.12 percent, compounded annually. 
The bond premium allocable to the accrual period ending on March 1, 
2000, is the excess of the qualified stated interest allocable to the 
period for the equivalent fixed rate debt instrument ($12,000) over the 
product of the adjusted acquisition price at the beginning of the period 
($110,000) and E's yield (10.12 percent, compounded annually). 
Therefore, the bond premium allocable to the accrual period is $870.71 
($12,000-$11,129.29). The bond premium allocable to all the accrual 
periods is listed in the following schedule:

------------------------------------------------------------------------
                                                Adjusted
                                               acquisition     Premium
           Accrual period ending                price at      allocable
                                              beginning of    to accrual
                                             accrual period     period
------------------------------------------------------------------------
3/1/00.....................................     $110,000.00      $870.71
3/1/01.....................................      109,129.29       958.81
3/1/02.....................................      108,170.48     1,055.82
3/1/03.....................................      107,114.66     1,162.64
3/1/04.....................................      105,952.02     1,280.27
3/1/05.....................................      104,671.75     1,409.80
3/1/06.....................................      103,261.95     1,552.44
3/1/07.....................................      101,709.51     1,709.51
                                            ----------------------------
                                             ..............    10,000.00
------------------------------------------------------------------------

    (iv) Qualified stated interest for each accrual period. Assume the 
bond actually pays the following amounts of qualified stated interest:

------------------------------------------------------------------------
                                                              Qualified
                   Accrual period ending                        stated
                                                               interest
------------------------------------------------------------------------
3/1/00.....................................................    $2,000.00
3/1/01.....................................................         0.00
3/1/02.....................................................         0.00
3/1/03.....................................................    10,000.00
3/1/04.....................................................     8,000.00
3/1/05.....................................................    12,000.00
3/1/06.....................................................    15,000.00
3/1/07.....................................................     8,500.00
------------------------------------------------------------------------

    (v) Premium used to offset interest. E's interest income for each 
accrual period is determined by offsetting the qualified stated interest 
allocable to the period with the bond premium allocable to the period. 
For the accrual period ending on March 1, 2000, E includes in income 
$1,129.29, the qualified stated interest allocable to the period 
($2,000) offset with the bond premium allocable to the period ($870.71). 
For the accrual period ending on March 1, 2001, the bond premium 
allocable to the accrual period ($958.81) exceeds the qualified stated 
interest allocable to the period ($0) and, therefore, E does not have 
interest income for this accrual period. However, under Sec. 1.171-
2(a)(4)(i)(A), E may deduct as bond premium $958.81, the excess of the 
bond premium allocable to the accrual period ($958.81) over the 
qualified stated interest allocable to the accrual period ($0). For the 
accrual period ending on March 1, 2002, the bond premium allocable to 
the accrual period ($1,055.82) exceeds the qualified stated interest 
allocable to the accrual period ($0) and, therefore, E does not have 
interest income for the accrual period. Under Sec. 1.171-2(a)(4)(i)(A), 
E's deduction for bond premium for the accrual period is limited to 
$170.48, the excess of E's total interest inclusions on the bond in 
prior accrual periods ($1,129.29) over the total amount treated by E as 
a bond premium deduction in prior accrual periods ($958.81). Under Sec. 
1.171-2(a)(4)(i)(B), E must carry forward the remaining $885.34 of bond 
premium allocable to the period ending March 1, 2002, and treat it as 
bond premium allocable to the period ending March 1, 2003. The amount E 
includes in income for each accrual period is shown in the following 
schedule:

----------------------------------------------------------------------------------------------------------------
                                                               Premium
                                                 Qualified    allocable     Interest     Premium       Premium
             Accrual period ending                 stated     to accrual     income     deduction   carryforward
                                                  interest      period
----------------------------------------------------------------------------------------------------------------
3/1/00........................................    $2,000.00      $870.71    $1,129.29  ...........  ............
3/1/01........................................         0.00       958.81         0.00      $958.81  ............
3/1/02........................................         0.00     1,055.82         0.00       170.48       $885.34
3/1/03........................................    10,000.00     1,162.64     7,951.93  ...........  ............
3/1/04........................................     8,000.00     1,280.27     6,719.73  ...........  ............
3/1/05........................................    12,000.00     1,409.80    10,590.20  ...........  ............
3/1/06........................................    15,000.00     1,552.44    13,447.56  ...........  ............
3/1/07........................................     8,500.00     1,709.51     6,790.49
                                                            -------------
                                                ...........    10,000.00  ...........  ...........  ............
----------------------------------------------------------------------------------------------------------------


[[Page 164]]

    Example 2. Partial call that results in a pro-rata prepayment--(i) 
Facts. On April 1, 1999, M purchases for $110,000 N's taxable bond 
maturing on April 1, 2006, with a stated principal amount of $100,000, 
payable at maturity. The bond provides for unconditional payments of 
interest of $10,000, payable on April 1 of each year. N has the option 
to call all or part of the bond on April 1, 2001, at a 5 percent premium 
over the principal amount. M uses the cash receipts and disbursements 
method of accounting.
    (ii) Determination of yield and the remaining payment schedule. M's 
yield determined without regard to the call option is 8.07 percent, 
compounded annually. M's yield determined by assuming N exercises its 
call option is 6.89 percent, compounded annually. Under paragraph 
(c)(4)(ii)(A) of this section, it is assumed N will not exercise the 
call option because exercising the option would minimize M's yield. 
Thus, for purposes of determining and amortizing bond premium, the bond 
is assumed to be a seven-year bond with a single principal payment at 
maturity of $100,000.
    (iii) Amount of bond premium. The interest payments on the bond are 
qualified stated interest. Therefore, the sum of all amounts payable on 
the bond (other than the interest payments) is $100,000. Under Sec. 
1.171-1, the amount of bond premium is $10,000 ($110,000-$100,000).
    (iv) Bond premium allocable to the first two accrual periods. For 
the accrual period ending on April 1, 2000, M includes in income 
$8,881.83, the qualified stated interest allocable to the period 
($10,000) offset with bond premium allocable to the period ($1,118.17). 
The adjusted acquisition price on April 1, 2000, is $108,881.83 
($110,000-$1,118.17). For the accrual period ending on April 1, 2001, M 
includes in income $8,791.54, the qualified stated interest allocable to 
the period ($10,000) offset with bond premium allocable to the period 
($1,208.46). The adjusted acquisition price on April 1, 2001, is 
$107,673.37 ($108,881.83-$1,208.46).
    (v) Partial call. Assume N calls one-half of M's bond for $52,500 on 
April 1, 2001. Because it was assumed the call would not be exercised, 
the call is a change in circumstances. However, the partial call is also 
a pro-rata prepayment within the meaning of Sec. 1.1275-2(f)(2). As a 
result, the call is treated as a retirement of one-half of the bond. 
Under paragraph (c)(5)(ii) of this section, M may deduct $1,336.68, the 
excess of its adjusted acquisition price in the retired portion of the 
bond ($107,673.37/2, or $53,836.68) over the amount received on 
redemption ($52,500). M's adjusted basis in the portion of the bond that 
remains outstanding is $53,836.68 ($107,673.37-$53,836.68).

[T.D. 8746, 62 FR 68180, Dec. 31, 1997, as amended by T.D. 8838, 64 FR 
48547, Sept. 7, 1999; T.D. 9609, 78 FR 668, Jan. 4, 2013]



Sec. 1.171-4  Election to amortize bond premium on taxable bonds.

    (a) Time and manner of making the election--(1) In general. A holder 
makes the election to amortize bond premium by offsetting interest 
income with bond premium in the holder's timely filed federal income tax 
return for the first taxable year to which the holder desires the 
election to apply. The holder should attach to the return a statement 
that the holder is making the election under this section.
    (2) Coordination with OID election. If a holder makes an election 
under Sec. 1.1272-3 for a bond with bond premium, the holder is deemed 
to have made the election under this section.
    (b) Scope of election. The election under this section applies to 
all taxable bonds held during or after the taxable year for which the 
election is made.
    (c) Election to amortize made in a subsequent taxable year--(1) In 
general. If a holder elects to amortize bond premium and holds a taxable 
bond acquired before the taxable year for which the election is made, 
the holder may not amortize amounts that would have been amortized in 
prior taxable years had an election been in effect for those prior 
years.
    (2) Example. The following example illustrates the rule of this 
paragraph (c):

    Example. (i) Facts. On May 1, 1999, C purchases for $130,000 a 
taxable bond maturing on May 1, 2006, with a stated principal amount of 
$100,000, payable at maturity. The bond provides for unconditional 
payments of interest of $15,000, payable on May 1 of each year. C uses 
the cash receipts and disbursements method of accounting and the 
calendar year as its taxable year. C has not previously elected to 
amortize bond premium, but does so for 2002.
    (ii) Amount to amortize. C's basis for determining loss on the sale 
or exchange of the bond is $130,000. Thus, under Sec. 1.171-1, the 
amount of bond premium is $30,000. Under Sec. 1.171-2, if a bond 
premium election were in effect for the prior taxable years, C would 
have amortized $3,257.44 of bond premium on May 1, 2000, and $3,551.68 
of bond premium on May 1, 2001, based on annual accrual periods ending 
on May 1. Thus, for 2002 and future

[[Page 165]]

years to which the election applies, C may amortize only $23,190.88 
($30,000-$3,257.44-$3,551.68).

    (d) Revocation of election. The election under this section may not 
be revoked unless approved by the Commissioner. Because a revocation of 
the election is a change in accounting method, a taxpayer must follow 
the rules under Sec. 1.446-1(e)(3)(i) to request the Commissioner's 
consent to revoke the election. A revocation of the election applies to 
all taxable bonds held during or after the taxable year for which the 
revocation is effective. The holder may not amortize any remaining bond 
premium on bonds held at the beginning of the taxable year for which the 
revocation is effective. Therefore, no adjustment under section 481 is 
allowed upon the revocation of the election because no items of income 
or deduction are omitted or duplicated.

[T.D. 8746, 62 FR 68182, Dec. 31, 1997]



Sec. 1.171-5  Effective date and transition rules.

    (a) Effective date--(1) In general. Sections 1.171-1 through 1.171-4 
apply to bonds acquired on or after March 2, 1998. However, if a holder 
makes the election under Sec. 1.171-4 for the taxable year containing 
March 2, 1998, or any subsequent taxable year, Sec. Sec. 1.171-1 
through 1.171-4 apply to bonds held on or after the first day of the 
taxable year in which the election is made.
    (2) Transition rule for use of constant yield. Notwithstanding 
paragraph (a)(1) of this section, Sec. 1.171-2(a)(3) (providing that 
the bond premium allocable to an accrual period is determined with 
reference to a constant yield) does not apply to a bond issued before 
September 28, 1985.
    (b) Coordination with existing election. A holder is deemed to have 
made the election under Sec. 1.171-4 for the taxable year containing 
March 2, 1998, if the holder elected to amortize bond premium under 
section 171 and that election is effective on March 2, 1998. If the 
holder is deemed to have made the election under Sec. 1.171-4 for the 
taxable year containing March 2, 1998, Sec. Sec. 1.171-1 through 1.171-
4 apply to bonds acquired on or after the first day of that taxable 
year. See Sec. 1.171-4(d) for rules relating to a revocation of an 
election under section 171.
    (c) Accounting method changes--(1) Consent to change. A holder 
required to change its method of accounting for bond premium to comply 
with Sec. Sec. 1.171-1 through 1.171-3 must secure the consent of the 
Commissioner in accordance with the requirements of Sec. 1.446-1(e). 
Paragraph (c)(2) of this section provides the Commissioner's automatic 
consent for certain changes. A holder making the election under Sec. 
1.171-4 does not need the Commissioner's consent to make the election.
    (2) Automatic consent. The Commissioner grants consent for a holder 
to change its method of accounting for bond premium with respect to 
taxable bonds to which Sec. Sec. 1.171-1 through 1.171-3 apply. Because 
this change is made on a cut-off basis, no items of income or deduction 
are omitted or duplicated and, therefore, no adjustment under section 
481 is allowed. The consent granted by this paragraph (c)(2) applies 
provided--
    (i) The holder elected to amortize bond premium under section 171 
for a taxable year prior to the taxable year containing March 2, 1998, 
and that election has not been revoked;
    (ii) The change is made for the first taxable year for which the 
holder must account for a bond under Sec. Sec. 1.171-1 through 1.171-3; 
and
    (iii) The holder attaches to its return for the taxable year 
containing the change a statement that it has changed its method of 
accounting under this section.

[T.D. 8746, 62 FR 68182, Dec. 31, 1997]



Sec. 1.172-1  Net operating loss deduction.

    (a) Allowance of deduction. Section 172(a) allows as a deduction in 
computing taxable income for any taxable year subject to the Code the 
aggregate of the net operating loss carryovers and net operating loss 
carrybacks to such taxable year. This deduction is referred to as the 
net operating loss deduction. The net operating loss is the basis for 
the computation of the net operating loss carryovers and net operating 
loss carrybacks and ultimately for the net operating loss deduction 
itself. The net operating loss deduction shall not be disallowed for any 
taxable

[[Page 166]]

year merely because the taxpayer has no income from a trade or business 
for the taxable year.
    (b) Steps in computation of net operating loss deduction. The three 
steps to be taken in the ascertainment of the net operating loss 
deduction for any taxable year subject to the Code are as follows:
    (1) Compute the net operating loss for any preceding or succeeding 
taxable year from which a net operating loss may be carried over or 
carried back to such taxable year.
    (2) Compute the net operating loss carryovers to such taxable year 
from such preceding taxable years and the net operating loss carrybacks 
to such taxable year from such succeeding taxable years.
    (3) Add such net operating loss carryovers and carrybacks in order 
to determine the net operating loss deduction for such taxable year.
    (c) Statement with tax return. Every taxpayer claiming a net 
operating loss deduction for any taxable year shall file with his return 
for such year a concise statement setting forth the amount of the net 
operating loss deduction claimed and all material and pertinent facts 
relative thereto, including a detailed schedule showing the computation 
of the net operating loss deduction.
    (d) Ascertainment of deduction dependent upon net operating loss 
carryback. If the taxpayer is entitled in computing his net operating 
loss deduction to a carryback which he is not able to ascertain at the 
time his return is due, he shall compute the net operating loss 
deduction on his return without regard to such net operating loss 
carryback. When the taxpayer ascertains the net operating loss 
carryback, he may within the applicable period of limitations file a 
claim for credit or refund of the overpayment, if any, resulting from 
the failure to compute the net operating loss deduction for the taxable 
year with the inclusion of such carryback; or he may file an application 
under the provisions of section 6411 for a tentative carryback 
adjustment.
    (e) Law applicable to computations. (1) In determining the amount of 
any net operating loss carryback or carryover to any taxable year, the 
necessary computations involving any other taxable year shall be made 
under the law applicable to such other taxable year.
    (2) The net operating loss for any taxable year shall be determined 
under the law applicable to that year without regard to the year to 
which it is to be carried and in which, in effect, it is to be deducted 
as part of the net operating loss deduction.
    (3) The amount of the net operating loss deduction which shall be 
allowed for any taxable year shall be determined under the law 
applicable to that year.
    (f) Electing small business corporations. In determining the amount 
of the net operating loss deduction of any corporation, there shall be 
disregarded the net operating loss of such corporation for any taxable 
year for which such corporation was an electing small business 
corporation under subchapter S (section 1371 and following), chapter 1 
of the Code. In applying section 172(b)(1) and (2) to a net operating 
loss sustained in a taxable year in which the corporation was not an 
electing small business corporation, a taxable year in which the 
corporation was an electing small business corporation is counted as a 
taxable year to which such net operating loss is carried back or over. 
However, the taxable income for such year as determined under section 
172(b)(2) is treated as if it were zero for purposes of computing the 
balance of the loss available to the corporation as a carryback or 
carryover to other taxable years in which the corporation is not an 
electing small business corporation. See section 1374 and the 
regulations thereunder for allowance of a deduction to shareholders for 
a net operating loss sustained by an electing small business 
corporation.
    (g) Husband and wife. The net operating loss deduction of a husband 
and wife shall be determined in accordance with this section, but 
subject also to the provisions of Sec. 1.172-7.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 8107, 51 FR 
43345, Dec. 2, 1986]

[[Page 167]]



Sec. 1.172-2  Net operating loss in case of a corporation.

    (a) Modification of deductions. A net operating loss is sustained by 
a corporation in any taxable year if and to the extent that, for such 
year, there is an excess of deductions allowed by chapter 1 of the Code 
over gross income computed thereunder. In determining the excess of 
deductions over gross income for such purpose--
    (1) Items not deductible. No deduction shall be allowed under--
    (i) Section 172 for the net operating loss deduction, and
    (ii) Section 922 in respect of Western Hemisphere trade 
corporations;
    (2) Dividends received. The 85-percent limitation provided by 
section 246(b) shall not apply to the deductions otherwise allowed 
under--
    (i) Section 243(a) in respect of dividends received from domestic 
corporations.
    (ii) Section 244 in respect of dividends received on preferred stock 
of public utilities, and
    (iii) Section 245 in respect of dividends received from foreign 
corporations; and
    (3) Dividends paid. The deduction granted by section 247 in respect 
of dividends paid on the preferred stock of public utilities shall be 
computed without regard to subsection (a)(1)(B) of Section 247.
    (b) Example. The following example illustrates the application of 
paragraph (a):

    Example. For the calendar year 1981, the X corporation has a gross 
income of $400,000 and total deductions allowed by chapter 1 of the Code 
of $375,000 exclusive of any net operating loss deduction and exclusive 
of any deduction for dividends received or paid. Corporation X in 1981 
received $100,000 of dividends entitled to the benefits of section 
243(a). These dividends are included in Corporation X's $400,000 gross 
income. Corporation X has no other deductions to which section 172(d) 
applies. On the basis of these facts, Corporation X has a net operating 
loss for the year 1981 of $60,000, computed as follows:

Deductions for 1981..........................................   $375,000
Plus: Deduction for dividends received, computed without          85,000
 regard to the limitation provided in section 246(b) (85% of
 $100,000)...................................................
                                                              ----------
      Total..................................................    460,000
Less: Gross income for 1981 (including $100,000 dividends)...    400,000
                                                              ----------
      Net operating loss for 1981............................     60,000
 

    (c) Qualified real estate investment trusts. For taxable years 
ending after October 4, 1976, the net operating loss of a qualified real 
estate investment trust (as defined in Sec. 1.172-10(b)) is computed by 
taking into account the adjustments described in section 857(b)(2) 
(other than the deduction for dividends paid, as defined in section 
561), as well as the modifications required by paragraph (a)(1) of this 
section. Thus, for example, the special deductions for dividends 
received, etc., provided in part VIII of subchapter B (other than 
section 248), as well as the net operating loss deduction under section 
172, are not allowed in computing the net operating loss of a qualified 
real estate investment trust.

[T.D. 8107, 51 FR 43345, Dec. 2, 1986]



Sec. 1.172-3  Net operating loss in case of a taxpayer other than a 
corporation.

    (a) Modification of deductions. A net operating loss is sustained by 
a taxpayer other than a corporation in any taxable year if and to the 
extent that, for such year there is an excess of deductions allowed by 
chapter 1 of the Internal Revenue Code over gross income computed 
thereunder. In determining the excess of deductions over gross income 
for such purpose:
    (1) Items not deductible. No deduction shall be allowed under:
    (i) Section 151 for the personal exemptions or under any other 
section which grants a deduction in lieu of the deductions allowed by 
section 151,
    (ii) Section 172 for the net operating loss deduction, and
    (iii) Section 1202 in respect of the net long-term capital gain.
    (2) Capital losses. (i) The amount deductible on account of business 
capital losses shall not exceed the sum of the amount includible on 
account of business capital gains and that portion of nonbusiness 
capital gains which is computed in accordance with paragraph (c) of this 
section.
    (ii) The amount deductible on account of nonbusiness capital losses 
shall not exceed the amount includible

[[Page 168]]

on account of nonbusiness capital gains.
    (3) Nonbusiness deductions--(i) Ordinary deductions. Ordinary 
nonbusiness deductions shall be taken into account without regard to the 
amount of business deductions and shall be allowed in full to the 
extent, but not in excess, of that amount which is the sum of the 
ordinary nonbusiness gross income and the excess of nonbusiness capital 
gains over nonbusiness capital losses. See paragraph (c) of this 
section. For purposes of section 172, nonbusiness deductions and income 
are those deductions and that income which are not attributable to, or 
derived from, a taxpayer's trade or business. Wages and salary 
constitute income attributable to the taxpayer's trade or business for 
such purposes.
    (ii) Sale of business property. Any gain or loss on the sale or 
other disposition of property which is used in the taxpayer's trade or 
business and which is of a character that is subject to the allowance 
for depreciation provided in section 167, or of real property used in 
the taxpayer's trade or business, shall be considered, for purposes of 
section 172(d)(4), as attributable to, or derived from, the taxpayer's 
trade or business. Such gains and losses are to be taken into account 
fully in computing a net operating loss without regard to the limitation 
on nonbusiness deductions. Thus, a farmer who sells at a loss land used 
in the business of farming may, in computing a net operating loss, 
include in full the deduction otherwise allowable with respect to such 
loss, without regard to the amount of his nonbusiness income and without 
regard to whether he is engaged in the trade or business of selling 
farms. Similarly, an individual who sells at a loss machinery which is 
used in his trade or business and which is of a character that is 
subject to the allowance for depreciation may, in computing the net 
operating loss, include in full the deduction otherwise allowable with 
respect to such loss.
    (iii) Casualty losses. Any deduction allowable under section 
165(c)(3) for losses of property not connected with a trade or business 
shall not be considered, for purposes of section 172(d)(4), to be a 
nonbusiness deduction but shall be treated as a deduction attributable 
to the taxpayer's trade or business.
    (iv) Self-employed retirement plans. Any deduction allowed under 
section 404, relating to contributions of an employer to an employees' 
trust or annuity plan, or under section 405(c), relating to 
contributions to a bond purchase plan, to the extent attributable to 
contributions made on behalf of an individual while he is an employee 
within the meaning of section 401(c)(1), shall not be treated, for 
purposes of section 172(d)(4), as attributable to, or derived from, the 
taxpayer's trade or business, but shall be treated as a nonbusiness 
deduction.
    (v) Limitation. The provisions of this subparagraph shall not be 
construed to permit the deduction of items disallowed by subparagraph 
(1) of this paragraph.
    (b) Treatment of capital loss carryovers. Because of the distinction 
between business and nonbusiness capital gains and losses, a taxpayer 
who has a capital loss carryover from a preceding taxable year, 
includible by virtue of section 1212 among the capital losses for the 
taxable year in issue, is required to determine how much of such capital 
loss carryover is a business capital loss and how much is a nonbusiness 
capital loss. In order to make this determination, the taxpayer shall 
first ascertain what proportion of the net capital loss for such 
preceding taxable year was attributable to an excess of business capital 
losses over business capital gains for such year, and what proportion 
was attributable to an excess of nonbusiness capital losses over 
nonbusiness capital gains. The same proportion of the capital loss 
carryover from such preceding taxable year shall be treated as a 
business capital loss and a nonbusiness capital loss, respectively. In 
order to determine the composition (business--nonbusiness) of a net 
capital loss for a taxable year, for purposes of this paragraph, if such 
net capital loss is computed under paragraph (b) of Sec. 1.1212-1 and 
takes into account a capital loss carryover from a preceding taxable 
year, the composition (business--nonbusiness) of the net capital loss 
for such preceding taxable

[[Page 169]]

year must also be determined. For purposes of this paragraph, the term 
capital loss carryover means the sum of the short-term and long-term 
capital loss carryovers from such year. This paragraph may be 
illustrated by the following examples:

    Example 1. (i) A, an individual, has $5,000 ordinary taxable income 
(computed without regard to the deductions for personal exemptions) for 
the calendar year 1954 and also has the following capital gains and 
losses for such year: Business capital gains of $2,000; business capital 
losses of $3,200; nonbusiness capital gains of $1,000; and nonbusiness 
capital losses of $1,200.
    (ii) A's net capital loss for the taxable year 1954 is $400, 
computed as follows:

Capital losses...............................................     $4,400
Capital gains................................................      3,000
                                                              ----------
Excess of capital losses over capital gains..................      1,400
Less: $1,000 of such ordinary taxable income.................      1,000
                                                              ----------
    Net capital loss for 1954................................        400
 

    (iii) A's capital losses for 1954 exceeded his capital gains for 
such year by $1,400. Since A's business capital losses for 1954 exceeded 
his business capital gains for such year by $1,200, 6/7ths ($1,200/
$1,400) of A's net capital loss for 1954 is attributable to an excess of 
his business capital losses over his business capital gains for such 
year. Similarly, 1/7th of the net capital loss is attributable to the 
excess of nonbusiness capital losses over nonbusiness capital gains. 
Since the capital loss carryover for 1954 to 1955 is $400, 6/7ths of 
$400, or $342.86, shall be treated as a business capital loss in 1955; 
and 1/7th of $400, or $57.14, as a nonbusiness capital loss.
    Example 2. (i) A, an individual who is computing a net operating 
loss for the calendar year 1966, has a capital loss carryover from 1965 
of $8,000. In order to apply the provisions of this paragraph, A must 
determine what portion of the $8,000 carryover is attributable to the 
excess of business capital losses over business capital gains and what 
portion thereof is attributable to the excess of nonbusiness capital 
losses over nonbusiness capital gains. For 1965, A had $10,000 ordinary 
taxable income (computed without regard to the deductions for personal 
exemptions), and a short-term capital loss carryover of $6,000 from 
1964. In order to determine the composition (business--nonbusiness) of 
the $8,000 carryover from 1965, A first determines that of the $6,000 
carryover from 1964, $5,000 is a business capital loss and $1,000 is a 
nonbusiness capital loss. This must be done since, under paragraph (b) 
of Sec. 1.1212-1, the net capital loss for 1965 is computed by taking 
into account the capital loss carryover from 1964. A's capital gains and 
losses for 1965 are as follows:

------------------------------------------------------------------------
                                                           Carried over
                                                  1965       from 1964
------------------------------------------------------------------------
Business capital gains........................    $2,000               0
Business capital losses.......................     3,000          $5,000
Nonbusiness capital gains.....................     4,000               0
Nonbusiness capital losses....................     6,000           1,000
------------------------------------------------------------------------

    (ii) A's net capital loss for the taxable year 1965 is $8,000, 
computed as follows:

Capital losses (including carryovers)........................    $15,000
Capital gains................................................      6,000
                                                              ----------
Excess of capital losses over capital gains..................      9,000
Less: $1,000 of such ordinary taxable income.................      1,000
                                                              ----------
    Net capital loss for 1965................................      8,000
 

    (iii) A's capital losses, including carryovers, for 1965 exceeded 
his capital gains for such year by $9,000. Since A's business capital 
losses for 1965 exceeded his business capital gains for such year by 
$6,000, 2/3rds ($6,000/$9,000) of A's net capital loss for 1965 is 
attributable to an excess of his business capital losses over his 
business capital gains for such year. Similarly, 1/3rd of the net 
capital loss is attributable to the excess of nonbusiness capital losses 
over nonbusiness capital gains. Since the total capital loss carryover 
from 1965 to 1966 is $8,000, 2/3rds of $8,000, or $5,333.33, shall be 
treated as a business capital loss in 1966; and 1/3rd of $8,000, or 
$2,666.67, as a nonbusiness capital loss.

    (c) Determination of portion of nonbusiness capital gains available 
for the deduction of business capital losses. In the computation of a 
net operating loss a taxpayer other than a corporation must use his 
nonbusiness capital gains for the deduction of his nonbusiness capital 
losses. Any amount not necessary for this purpose shall then be used for 
the deduction of any excess of ordinary nonbusiness deductions over 
ordinary nonbusiness gross income. The remainder, computed by applying 
the excess ordinary nonbusiness deductions against the excess 
nonbusiness capital gains, shall be treated as nonbusiness capital gains 
and used for the purpose of determining the deductibility of business 
capital losses under paragraph (a)(2)(i) of this section. This principle 
may be illustrated by the following example:

    Example. (1) A, an individual, has a total nonbusiness gross income 
of $20,500, computed as follows:

Ordinary gross income........................................     $7,500
Capital gains................................................     13,000
                                                   ------------
    Total gross income.......................................     20,500
 


[[Page 170]]

    (2) A also has total nonbusiness deductions of $16,000, computed as 
follows:

Ordinary deductions..........................................     $9,000
Capital loss.................................................      7,000
                                                              ----------
    Total deductions.........................................     16,000
 

    (3) The portion of nonbusiness capital gains to be used for the 
purpose of determining the deductibility of business capital losses is 
$4,500, computed as follows:

Nonbusiness capital gains....................................    $13,000
Less: Nonbusiness capital loss...............................      7,000
                                                   ------------
Excess to be taken into account for purposes of paragraph         6,000
 (a)(3)(i) of this section...................................
Ordinary nonbusiness deductions...................     $9,000
Less: Ordinary nonbusiness gross income...........      7,500
                                                     --------      1,500
                                                              ----------
Portion of nonbusiness capital gains to be used for purposes       4,500
 of paragraph (a)(2)(i) of this section......................
 

    (d) Joint net operating loss of husband and wife. In the case of a 
husband and wife, the joint net operating loss for any taxable year for 
which a joint return is filed is to be computed on the basis of the 
combined income and deductions of both spouses, and the modifications 
prescribed in paragraph (a) of this section are to be computed as if the 
combined income and deductions of both spouses were the income and 
deductions of one individual.
    (e) Illustration of computation of net operating loss of a taxpayer 
other than a corporation--(1) Facts. For the calendar year 1954 A, an 
individual, has gross income of $483,000 and allowable deductions of 
$540,000. The latter amount does not include the net operating loss 
deduction or any deduction on account of the sale or exchange of capital 
assets. Included in gross income are business capital gains of $50,000 
and ordinary nonbusiness income of $10,000. Included among the 
deductions are ordinary nonbusiness deductions of $12,000 and a 
deduction of $600 for his personal exemption. A has a business capital 
loss of $60,000 in 1954. A has no other items of income or deductions to 
which section 172(d) applies.
    (2) Computation. On the basis of these facts, A has a net operating 
loss for 1954 of $104,400, computed as follows:

Deductions for 1954 (as specified in first sentence of          $540,000
 subparagraph (1))...........................................
Plus: Amount of business capital loss ($60,000) to extent         50,000
 such amount does not exceed business capital gains ($50,000)
                                                   ------------
    Total....................................................    590,000
Less: Excess of ordinary nonbusiness deductions        $2,000
 over ordinary nonbusiness gross income ($12,000
 minus $10,000)...................................
Deduction for personal exemption..................        600
                                                     --------     $2,600
                                                              ----------
Deductions for 1954 adjusted as required by section 172(d)...   587,400
Gross income for 1954.............................    483,000
                                                   ------------
    Net operating loss for 1954...................    104,400
 


[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6828, 30 FR 
7805, June 17, 1965; T.D. 6862, 30 FR 14427, Nov. 18, 1965; T.D. 8107, 
51 FR 43345, Dec. 2, 1986]



Sec. 1.172-4  Net operating loss carrybacks and net operating loss 
carryovers.

    (a) General provisions--(1) Years to which loss may be carried--(i) 
In general. In order to compute the net operating loss deduction the 
taxpayer must first determine the part of any net operating losses for 
any preceding or succeeding taxable years which are carrybacks or 
carryovers to the taxable year in issue.
    (ii) General rule for carrybacks and carryovers. Except as provided 
in section 172 (b)(1)(C), (D), (E), (F), (G), (H), (I), and (J), 
paragraphs (a)(1)(iii), (iv), (v), and (vi) of this section, and Sec. 
1.172-10(a), a net operating loss shall be carried back to the 3 
preceding taxable years and carried over to the 15 succeeding taxable 
years (5 succeeding taxable years for a loss sustained in a taxable year 
ending before January 1, 1976).
    (iii) Loss of a regulated transportation corporation. Except as 
provided in subdivision (iv) of this subparagraph and Sec. 1.172-10(a), 
a net operating loss sustained by a taxpayer which is a regulated 
transportation corporation (as defined in section 172(g)(1)) in a 
taxable year ending before January 1, 1976, shall, subject to the 
provisions of section 172(g) and Sec. 1.172-8, be carried back to the 
taxable years specified in paragraph (a)(1)(ii) of this section and 
shall be carried over to the 7 succeeding taxable years.
    (iv) Loss attributable to foreign expropriation. If the provisions 
of section 172(b)(3)(A) and Sec. 1.172-9 are satisfied, the portion of 
a net operating loss attributable to a foreign expropriation loss (as 
defined in section 172(h)) shall not be a net operating loss carryback

[[Page 171]]

to any taxable year preceding the taxable year of such loss and shall be 
a net operating loss carryover to each of the 10 taxable years following 
the taxable year of such loss.
    (v) Loss of a financial institution. A net operating loss sustained 
in a taxable year beginning after December 31, 1975, by a taxpayer to 
which section 585, 586, or 593 applies shall be carried back (except as 
provided in Sec. 1.172-10(a)) to the 10 preceding taxable years and 
shall be carried over to the 5 succeeding taxable years.
    (vi) Loss of a Bank for Cooperatives. A net operating loss sustained 
by a taxpayer which is a Bank for Cooperatives (organized and chartered 
pursuant to section 2 of the Farm Credit Act of 1933 (12 U.S.C. 1134)) 
shall be carried back (except as provided in Sec. 1.172-10(a)) to the 
10 preceding taxable years and shall be carried over to the 5 succeeding 
taxable years.
    (2) Periods of less than 12 months. A fractional part of a year 
which is a taxable year under sections 441(b) and 7701(a)(23) is a 
preceding or a succeeding taxable year for the purpose of determining 
under section 172 the first, second, etc., preceding or succeeding 
taxable year.
    (3) Amount of loss to be carried. The amount which is carried back 
or carried over to any taxable year is the net operating loss to the 
extent it was not absorbed in the computation of the taxable (or net) 
income for other taxable years, preceding such taxable year, to which it 
may be carried back or carried over. For the purpose of determining the 
taxable (or net) income for any such preceding taxable year, the various 
net operating loss carryovers and carrybacks to such taxable year are 
considered to be applied in reduction of the taxable (or net) income in 
the order of the taxable years from which such losses are carried over 
or carried back, beginning with the loss for the earliest taxable year.
    (4) Husband and wife. The net operating loss carryovers and 
carrybacks of a husband and wife shall be determined in accordance with 
this section, but subject also to the provisions of Sec. 1.172-7.
    (5) Corporate acquisitions. For the computation of the net operating 
loss carryovers in the case of certain acquisitions of the assets of a 
corporation by another corporation, see section 381 and the regulations 
thereunder.
    (6) Special limitations. For special limitations on the net 
operating loss carryovers in certain cases of change in both the 
ownership and the trade or business of a corporation and in certain 
cases of corporate reorganization lacking specified continuity of 
ownership, see section 382 and the regulations thereunder.
    (7) Electing small business corporations. For special rule 
applicable to corporations which were electing small business 
corporations under Subchapter S (section 1361 and following), chapter 1 
of the Code, during one or more of the taxable years described in 
section 172 (b)(1), see paragraph (f) of Sec. 1.172-1.
    (b) Portion of net operating loss which is a carryback or a 
carryover to the taxable year in issue. (1) A net operating loss shall 
first be carried to the earliest of the several taxable years for which 
such loss is allowable as a carryback or a carryover, and shall then be 
carried to the next earliest of such several taxable years, etc. Except 
as provided in Sec. 1.172-9, the entire net operating loss shall be 
carried back to such earliest year.
    (2) The portion of the loss which shall be carried to any of such 
several taxable years subsequent to the earliest taxable year is the 
excess of such net operating loss over the sum of the taxable incomes 
(computed as provided in Sec. 1.172-5) for all of such several taxable 
years preceding such subsequent taxable year.
    (3) If a portion of the net operating loss for a taxable year is 
attributable to a foreign expropriation loss (as defined in section 
172(h)) and if an election under paragraph (c) of Sec. 1.172-9 is made 
with respect to such portion of the net operating loss, then see Sec. 
1.172-9 for the separate treatment of such portion of the net operating 
loss.
    (c) Illustration. The principles of this section are illustrated in 
Sec. 1.172-6.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 8107, 51 FR 
43345, Dec. 2, 1986]

[[Page 172]]



Sec. 1.172-5  Taxable income which is subtracted from net operating 
loss to determine carryback or carryover.

    (a) Taxable year subject to the Internal Revenue Code of 1954. The 
taxable income for any taxable year subject to the Internal Revenue Code 
of 1954 which is subtracted from the net operating loss for any other 
taxable year to determine the portion of such net operating loss which 
is a carryback or a carryover to a particular taxable year is computed 
with the modifications prescribed in this paragraph. These modifications 
shall be made independently of, and without reference to, the 
modifications required by Sec. Sec. 1.172-2(a) and 1.172-3(a) for 
purposes of computing the net operating loss itself.
    (1) Modifications applicable to unincorporated taxpayers only. In 
the case of a taxpayer other than a corporation, in computing taxable 
income and adjusted gross income:
    (i) No deduction shall be allowed under section 151 for the personal 
exemptions (or under any other section which grants a deduction in lieu 
of the deductions allowed by section 151) and under section 1202 in 
respect of the net long-term capital gain.
    (ii) The amount deductible on account of losses from sales or 
exchanges of capital assets shall not exceed the amount includible on 
account of gains from sales or exchanges of capital assets.
    (2) Modifications applicable to all taxpayers. In the case either of 
a corporation or of a taxpayer other than a corporation:
    (i) Net operating loss deduction. The net operating loss deduction 
for such taxable year shall be computed by taking into account only such 
net operating losses otherwise allowable as carrybacks or carryovers to 
such taxable year as were sustained in taxable years preceding the 
taxable year in which the taxpayer sustained the net operating loss from 
which the taxable income is to be deducted. Thus, for such purposes, the 
net operating loss for the loss year or any taxable year thereafter 
shall not be taken into account.

    Example. The taxpayer's income tax returns are made on the basis of 
the calendar year. In computing the net operating loss deduction for 
1954, the taxpayer has a carryover from 1952 of $9,000, a carryover from 
1953 of $6,000, a carryback from 1955 of $18,000, and a carryback from 
1956 of $10,000, or an aggregate of $43,000 in carryovers and 
carrybacks. Thus, the net operating loss deduction for 1954, for 
purposes of determining the tax liability for 1954, is $43,000. However, 
in computing the taxable income for 1954 which is subtracted from the 
net operating loss for 1955 for the purpose of determining the portion 
of such loss which may be carried over to subsequent taxable years, the 
net operating loss deduction for 1954 is $15,000, that is, the aggregate 
of the $9,000 carryover from 1952 and the $6,000 carryover from 1953. In 
computing the net operating loss deduction for such purpose, the $18,000 
carryback from 1955 and the $10,000 carryback from 1956 are disregarded. 
In computing the taxable income for 1954, however, which is subtracted 
from the net operating loss for 1956 for the purpose of determining the 
portion of such loss which may be carried over to subsequent taxable 
years, the net operating loss deduction for 1954 is $33,000, that is, 
the aggregate of the $9,000 carryover from 1952, the $6,000 carryover 
from 1953, and the $18,000 carryback from 1955. In computing the net 
operating loss deduction for such purpose, the $10,000 carryback from 
1956 is disregarded.

    (ii) Recomputation of percentage limitations. Unless otherwise 
specifically provided in this subchapter, any deduction which is limited 
in amount to a percentage of the taxpayer's taxable income or adjusted 
gross income shall be recomputed upon the basis of the taxable income or 
adjusted gross income, as the case may be, determined with the 
modifications prescribed in this paragraph. Thus, in the case of an 
individual the deduction for medical expenses would be recomputed after 
making all the modifications prescribed in this paragraph, whereas the 
deduction for charitable contributions would be determined without 
regard to any net operating loss carryback but with regard to any other 
modifications so prescribed. See, however, the regulations under 
paragraph (g) of Sec. 1.170-2 (relating to charitable contributions 
carryover of individuals) and paragraph (c) of Sec. 1.170-3 (relating 
to charitable contributions carryover of corporations) for special rules 
regarding charitable contributions in excess of the percentage 
limitations which may be treated as paid in succeeding taxable years.


[[Page 173]]


    Example 1. For the calendar year 1954 the taxpayer, an individual, 
files a return showing taxable income of $4,800, computed as follows:

Salary.......................................................     $5,000
Net long-term capital gain...................................      4,000
                                                              ----------
    Total gross income.......................................      9,000
Less: Deduction allowed by section 1202 in respect of net          2,000
 long-term capital gain......................................
                                                              ----------
  Adjusted gross income......................................      7,000
Less:
  Deduction for personal exemption................       $600
  Deduction for medical expense ($410 actually            200
   paid but allowable only to extent in excess of
   3 percent of adjusted gross income)............
  Deduction for charitable contributions ($2,000       $1,400
   actually paid but allowable only to extent not
   in excess of 20 percent of adjusted gross
   income)........................................
                                                   -----------
                                                    .........     $2,200
                                                              ----------
    Taxable income...........................................      4,800
 


In 1955 the taxpayer undertakes the operation of a trade or business and 
sustains therein a net operating loss of $3,000. Under section 
172(b)(2), it is determined that the entire $3,000 is a carryback to 
1954. In 1956 he sustains a net operating loss of $10,000 in the 
operation of the business. In determining the amount of the carryover of 
the 1956 loss to 1957, the taxable income for 1954 as computed under 
this paragraph is $3,970, determined as follows:

Salary.......................................................     $5,000
Net long-term capital gain...................................      4,000
                                                              ----------
    Total gross income.......................................      9,000
Less: Deduction for carryback of 1955 net operating loss.....      3,000
                                                              ----------
    Adjusted gross income....................................      6,000
Less:
  Deduction for medical expense ($410 actually           $230  .........
   paid but allowable only to extent in excess of
   3 percent of adjusted gross income as modified
   under this paragraph)..........................
  Deduction for charitable contributions ($2,000        1,800  .........
   actually paid but allowable only to extent not
   in excess of 20 percent of adjusted gross
   income determined with all the modifications
   prescribed in this paragraph other than the net
   operating loss carryback)......................
                                                   -----------
                                                    .........      2,030
                                                              ----------
    Taxable income...........................................      3,970
 

    Example 2. For the calendar year 1959 the taxpayer, an individual, 
files a return showing taxable income of $5,700, computed as follows:

Salary.......................................................     $5,000
Net long-term capital gain...................................      4,000
                                                              ----------
    Total gross income.......................................      9,000
Less: Deduction allowed by section 1202 in respect of net          2,000
 long-term capital gain......................................
                                                              ----------
  Adjusted gross income......................................      7,000
Less:
  Deduction for personal exemption................       $600  .........
  Standard deduction allowed by section 141.......       $700  .........
                                                   -----------
                                                    .........     $1,300
                                                              ----------
    Taxable income................................  .........      5,700
 


In 1960 the taxpayer undertakes the operation of a trade or business and 
sustains therein a net operating loss of $4,700. In 1961 he sustains a 
net operating loss of $10,000 in the operation of the business. Under 
section 172(b)(2), it is determined that the entire amount of each loss, 
$4,700 and $10,000, is a carryback to 1959. In determining the amount of 
the carryover of the 1961 loss to 1962, the taxable income for 1959 as 
computed under this paragraph is $3,870, determined as follows:

Salary.......................................................     $5,000
Net long-term capital gain...................................      4,000
                                                              ----------
    Total gross income.......................................      9,000
Less: Deduction for carryback of 1960 net operating loss.....      4,700
                                                              ----------
    Adjusted gross income....................................      4,300
Less: Standard deduction.....................................        430
                                                              ----------
    Taxable income...........................................      3,870
 

    (iii) Minimum limitation. The taxable income, as modified under this 
paragraph, shall in no case be considered less than zero.
    (3) Electing small business corporations. For special rule 
applicable to corporations which were electing small business 
corporations under Subchapter S (section 1361 and following), Chapter 1 
of the Code, during one or more of the taxable years described in 
section 172(b)(1), see paragraph (f) of Sec. 1.172-1.
    (4) Qualified real estate investment trust. Where a net operating 
loss is carried over to a qualified taxable year (as defined in Sec. 
1.172-10(b)) ending after October 4, 1976, the real estate investment 
trust taxable income (as defined in section 857(b)(2)) shall be used as 
the ``taxable income'' for that taxable year to determine, under section 
172(b)(2), the balance of the net operating loss available as a 
carryover to a subsequent taxable year. The real estate investment trust 
taxable income, however, is computed by applying the rules

[[Page 174]]

applicable to corporations in paragraph (a)(2) of this section. Thus, in 
computing real estate investment trust taxable income for purposes of 
section 172(b)(2), the net operating loss deduction for the taxable year 
shall be computed in accordance with paragraph (a)(2)(i) of this 
section. The principles of this subparagraph may be illustrated by the 
following examples:

    Example 1. Corporation X, a calendar year taxpayer, is formed on 
January 1, 1977. X incurs a net operating loss of $100,000 for its 
taxable year 1977, which under section 172(b)(2), is a carryover to 
1978. For 1978 X is a qualified real estate investment trust (as defined 
in Sec. 1.172-10(b)) and has real estate investment trust taxable 
income (determined without regard to the deduction for dividends paid or 
the net operating loss deduction) of $150,000, all of which consists of 
ordinary income. X pays dividends in 1978 totaling $120,000 that qualify 
for the deduction for dividends paid under section 857(b)(2)(B). The 
portion of the 1977 net operating loss available as a carryover to 1979 
and subsequent years is $70,000 (i.e., the excess of the amount of the 
net operating loss ($100,000) over the amount of the real estate 
investment trust taxable income for 1978 ($30,000), determined by taking 
into account the deduction for dividends paid allowable under section 
857(b)(2)(B) and without taking into account the net operating loss of 
1977).
    Example 2. (i) Assume the same facts as in Example 1, except that 
the $150,000 of real estate investment trust taxable income (determined 
without the net operating loss deduction or the dividends paid 
deduction) consists of $80,000 of ordinary income and $70,000 of net 
capital gain. The amount of capital gain dividends which may be paid for 
1978 is limited to $50,000, that is, the amount of the real estate 
investment trust taxable income for 1978, determined by taking into 
account the net operating loss deduction for the taxable year, but not 
the deduction for dividends paid ($150,000 minus $100,000). See Sec. 
1.857-6(e)(1)(ii).
    (ii) X designated $50,000 of the $120,000 of dividends paid as 
capital gains dividends (as defined in section 857(b)(3)(C) and Sec. 
1.857-6(e)). Thus, $70,000 is an ordinary dividend. Since both ordinary 
dividends and capital gains dividends are taken into account in 
computing the deduction for dividends paid under section 857(b)(2)(B), 
the result will be the same as in Example 1; that is, the portion of the 
1977 net operating loss available as a carryover to 1979 and subsequent 
years is $70,000.

    (b) [Reserved]

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6862, 30 FR 
14428, Nov. 18, 1965; T.D. 6900, 31 FR 14641, Nov. 17, 1966; T.D. 7767, 
46 FR 11263, Feb. 6, 1981; T.D. 8107, 51 FR 43346, Dec. 2, 1986]



Sec. 1.172-6  Illustration of net operating loss carrybacks and 
carryovers.

    The application of Sec. 1.172-4 may be illustrated by the following 
example:
    (a) Facts. The books of the taxpayer, whose return is made on the 
basis of the calendar year, reveal the following facts:

------------------------------------------------------------------------
                                                                  Net
                   Taxable year                      Taxable   operating
                                                      income      loss
------------------------------------------------------------------------
1954..............................................    $15,000
1955..............................................     30,000
1956..............................................  .........  ($75,000)
1957..............................................     20,000
1958..............................................  .........  (150,000)
1959..............................................     30,000
1960..............................................     35,000
1961..............................................     75,000
1962..............................................     17,000
1963..............................................     53,000
------------------------------------------------------------------------


The taxable income thus shown is computed without any net operating loss 
deduction. The assumption is also made that none of the other 
modifications prescribed in Sec. 1.172-5 apply. There are no net 
operating losses for 1950, 1951, 1952, 1953, 1964, 1965, or 1966.
    (b) Loss sustained in 1956. The portions of the $75,000 net 
operating loss for 1956 which shall be used as carrybacks to 1954 and 
1955 and as carryovers to 1957, 1958, 1959, 1960, and 1961 are computed 
as follows:
    (1) Carryback to 1954. The carryback to this year is $75,000, that 
is, the amount of the net operating loss.
    (2) Carryback to 1955. The carryback to this year is $60,000, 
computed as follows:

Net operating loss...........................................    $75,000
Less:
  Taxable income for 1954 (computed without the deduction of      15,000
   the carryback from 1956)..................................
                                                              ----------
    Carryback................................................     60,000
 

    (3) Carryover to 1957. The carryover to this year is $30,000, 
computed as follows:

Net operating loss................................  .........    $75,000
Less:
  Taxable income for 1954 (computed without the       $15,000  .........
   deduction of the carryback from 1956)..........

[[Page 175]]

 
  Taxable income for 1955 (computed without the        30,000  .........
   deduction of the carryback from 1956 or the
   carryback from 1958)...........................
                                                   -----------
                                                    .........     45,000
                                                              ----------
    Carryover.....................................  .........     30,000
 

    (4) Carryover to 1958. The carryover to this year is $10,000, 
computed as follows:

Net operating loss................................  .........    $75,000
Less:
  Taxable income for 1954 (computed without the       $15,000  .........
   deduction of the carryback from 1956)..........
  Taxable income for 1955 (computed without the        30,000  .........
   deduction of the carryback from 1956 or the
   carryback from 1958)...........................
  Taxable income for 1957 (computed without the        20,000  .........
   deduction of the carryover from 1956 or the
   carryback from 1958)...........................
                                                   -----------
                                                    .........     65,000
                                                              ----------
    Carryover.....................................  .........     10,000
 

    (5) Carryover to 1959. The carryover to this year is $10,000, 
computed as follows:

Net operating loss................................  .........    $75,000
Less:
  Taxable income for 1954 (computed without the       $15,000
   deduction of the carryback from 1956)..........
  Taxable income for 1955 (computed without the        30,000
   deduction of the carryback from 1956 or the
   carryback from 1958)...........................
  Taxable income for 1957 (computed without the        20,000
   deduction of the carryover from 1956 or the
   carryback from 1958)...........................
  Taxable income for 1958 (a year in which a net            0
   operating loss was sustained)..................
                                                     --------     65,000
                                                              ----------
    Carryover.....................................  .........     10,000
 

    (6) Carryover to 1960. The carryover to this year is $0, computed as 
follows:

Net operating loss................................  .........    $75,000
Less:
  Taxable income for 1954 (computed without the       $15,000
   deduction of the carryback from 1956)..........
  Taxable income for 1955 (computed without the        30,000
   deduction of the carryback from 1956 or the
   carryback from 1958)...........................
  Taxable income for 1957 (computed without the        20,000
   deduction of the carryover from 1956 or the
   carryback from 1958)...........................
  Taxable income for 1958 (a year in which a net            0
   operating loss was sustained)..................
  Taxable income for 1959 (computed without the        30,000
   deduction of the carryover from 1956 or the
   carryover from 1958)...........................
                                                     --------     95,000
                                                              ----------
    Carryover.....................................  .........          0
 

    (7) Carryover to 1961. The carryover to this year is $0, computed as 
follows:

Net operating loss................................  .........    $75,000
Less:
  Taxable income for 1954 (computed without the       $15,000
   deduction of the carryback from 1956)..........
  Taxable income for 1955 (computed without the        30,000
   deduction of the carryback from 1956 or the
   carryback from 1958)...........................
  Taxable income for 1957 (computed without the        20,000
   deduction of the carryover from 1956 or the
   carryback from 1958)...........................
  Taxable income for 1958 (a year in which a net            0
   operating loss was sustained)..................
  Taxable income for 1959 (computed without the        30,000
   deduction of the carryover from 1956 or the
   carryover from 1958)...........................
  Taxable income for 1960 (computed without the        35,000
   deduction of the carryover from 1956 or the
   carryover from 1958)...........................
                                                     --------    130,000
                                                              ----------
    Carryover.....................................  .........          0
 

    (c) Loss sustained in 1958. The portions of the $150,000 net 
operating loss for 1958 which shall be used as carrybacks to 1955, 1956, 
and 1957 and as carryovers to 1959, 1960, 1961, 1962, and 1963 are 
computed as follows:
    (1) Carryback to 1955. The carryback to this year is $150,000, that 
is, the amount of the net operating loss.
    (2) Carryback to 1956. The carryback to this year is $150,000, 
computed as follows:

Net operating loss...........................................   $150,000
Less:
  Taxable income for 1955 (the $30,000 taxable income for              0
   such year reduced by the carryback to such year of $60,000
   from 1956, the carryback from 1958 to 1955 not being taken
   into account).............................................
                                                              ----------
    Carryback................................................    150,000
 

    (3) Carryback to 1957. The carryback to this year is $150,000, 
computed as follows:

Net operating loss................................  .........   $150,000
Less:
  Taxable income for 1955 (the $30,000 taxable              0
   income for such year reduced by the carryback
   to such year of $60,000 from 1956, the
   carryback from 1958 to 1955 not being taken
   into account)..................................
  Taxable income for 1956 (a year in which a net            0
   operating loss was sustained)..................

[[Page 176]]

 
                                                     --------          0
                                                              ----------
    Carryback.....................................  .........    150,000
 

    (4) Carryover to 1959. The carryover to this year is $150,000, 
computed as follows:

Net operating loss................................  .........   $150,000
Less:
  Taxable income for 1955 (the $30,000 taxable              0
   income for such year reduced by the carryback
   to such year of $60,000 from 1956, the
   carryback from 1958 to 1955 not being taken
   into account)..................................
  Taxable income for 1956 (a year in which a net            0
   operating loss was sustained)..................
  Taxable income for 1957 (the $20,000 taxable              0
   income for such year reduced by the carryover
   to such year of $30,000 from 1956, the
   carryback from 1958 to 1957 not being taken
   into account)..................................
                                                     --------          0
                                                              ----------
    Carryover.....................................  .........    150,000
 

    (5) Carryover to 1960. The carryover to this year is $130,000, 
computed as follows:

Net operating loss................................  .........   $150,000
Less:
  Taxable income for 1955 (the $30,000 taxable              0
   income for such year reduced by the carryback
   to such year of $60,000 from 1956, the
   carryback from 1958 to 1955 not being taken
   into account)..................................
  Taxable income for 1956 (a year in which a net            0
   operating loss was sustained)..................
  Taxable income for 1957 (the $20,000 taxable              0
   income for such year reduced by the carryover
   to such year of $30,000 from 1956, the
   carryback from 1958 to 1957 not being taken
   into account)..................................
  Taxable income for 1959 (the $30,000 taxable        $20,000
   income for such year reduced by the carryover
   to such year of $10,000 from 1956, the
   carryover from 1958 to 1959 not being taken
   into account)..................................
                                                     --------     20,000
                                                              ----------
    Carryover.....................................  .........    130,000
 

    (6) Carryover to 1961. The carryover to this year is $95,000, 
computed as follows:

Net operating loss................................  .........   $150,000
Less:
  Taxable income for 1955 (the $30,000 taxable              0
   income for such year reduced by the carryback
   to such year of $60,000 from 1956, the
   carryback from 1958 to 1955 not being taken
   into account)..................................
  Taxable income for 1956 (a year in which a net            0
   operating loss was sustained)..................
  Taxable income for 1957 (the $20,000 taxable              0
   income for such year reduced by the carryover
   to such year of $30,000 from 1956, the
   carryback from 1958 to 1957 not being taken
   into account)..................................
  Taxable income for 1959 (the $30,000 taxable        $20,000
   income for such year reduced by the carryover
   to such year of $10,000 from 1956, the
   carryover from 1958 to 1959 not being taken
   into account)..................................
  Taxable income for 1960 (the $35,000 taxable         35,000
   income for such year reduced by the carryover
   to such year of $0 from 1956, the carryover
   from 1958 to 1960 not being taken into account)
                                                     --------     55,000
                                                              ----------
    Carryover.....................................  .........     95,000
 

    (7) Carryover to 1962. The carryover to this year is $20,000, 
computed as follows:

Net operating loss................................  .........   $150,000
Less:
  Taxable income for 1955 (the $30,000 taxable              0
   income for such year reduced by the carryback
   to such year of $60,000 from 1956, the
   carryback from 1958 to 1955 not being taken
   into account)..................................
  Taxable income for 1956 (a year in which a net            0
   operating loss was sustained)..................
  Taxable income for 1957 (the $20,000 taxable              0
   income for such year reduced by the carryover
   to such year of $30,000 from 1956, the
   carryback from 1958 to 1957 not being taken
   into account)..................................
  Taxable income for 1959 (the $30,000 taxable        $20,000
   income for such year reduced by the carryover
   to such year of $10,000 from 1956, the
   carryover from 1958 to 1959 not being taken
   into account)..................................
  Taxable income for 1960 (the $35,000 taxable         35,000
   income for such year reduced by the carryover
   to such year of $0 from 1956, the carryover
   from 1958 to 1960 not being taken into account)

[[Page 177]]

 
  Taxable income for 1961 (the $75,000 taxable         75,000
   income for such year reduced by the carryover
   to such year of $0 from 1956, the carryover
   from 1958 to 1961 not being taken into account)
                                                     --------    130,000
                                                              ----------
    Carryover.....................................  .........     20,000
 

    (8) Carryover to 1963. The carryover to this year is $3,000, 
computed as follows:

Net operating loss................................  .........   $150,000
Less:
  Taxable income for 1955 (the $30,000 taxable              0
   income for such year reduced by the carryback
   to such year of $60,000 from 1956, the
   carryback from 1958 to 1955 not being taken
   into account)..................................
  Taxable income for 1956 (a year in which a net            0
   operating loss was sustained)..................
  Taxable income for 1957 (the $20,000 taxable              0
   income for such year reduced by the carryover
   to such year of $30,000 from 1956, the
   carryback from 1958 to 1957 not being taken
   into account)..................................
  Taxable income for 1959 (the $30,000 taxable        $20,000
   income for such year reduced by the carryover
   to such year of $10,000 from 1956, the
   carryover from 1958 to 1959 not being taken
   into account)..................................
  Taxable income for 1960 (the $35,000 taxable         35,000
   income for such year reduced by the carryover
   to such year of $0 from 1956, the carryover
   from 1958 to 1960 not being taken into account)
  Taxable income for 1961 (the $75,000 taxable         75,000  .........
   income for such year reduced by the carryover
   to such year of $0 from 1956, the carryover
   from 1958 to 1961 not being taken into account)
  Taxable income for 1962 (computed without the        17,000
   deduction of the carryover from 1958)..........
                                                     --------    147,000
                                                              ----------
    Carryover.....................................  .........      3,000
 

    (d) Determination of net operating loss deduction for each year. The 
carryovers and carrybacks computed under paragraphs (b) and (c) of this 
section are used as a basis for the computation of the net operating 
loss deduction in the following manner:

----------------------------------------------------------------------------------------------------------------
                                                                    Carryover           Carryback         Net
                                                              ---------------------------------------- operating
                         Taxable year                            From      From      From      From       loss
                                                                 1956      1958      1956      1958    deduction
----------------------------------------------------------------------------------------------------------------
1954.........................................................        $0        $0   $75,000        $0    $75,000
1955.........................................................         0         0    60,000   150,000    210,000
1957.........................................................    30,000         0         0   150,000    180,000
1959.........................................................    10,000   150,000         0         0    160,000
1960.........................................................         0   130,000         0         0    130,000
1961.........................................................         0    95,000         0         0     95,000
1962.........................................................         0    20,000         0         0     20,000
1963.........................................................         0     3,000         0         0      3,000
----------------------------------------------------------------------------------------------------------------



Sec. 1.172-7  Joint return by husband and wife.

    (a) In general. This section prescribes additional rules for 
computing the net operating loss carrybacks and carryovers of a husband 
and wife making a joint return for one or more of the taxable years 
involved in the computation of the net operating loss deduction.
    (b) From separate to joint return. If a husband and wife, making a 
joint return for any taxable year, did not make a joint return for any 
of the taxable years involved in the computation of a net operating loss 
carryover or a net operating loss carryback to the taxable year for 
which the joint return is made, such separate net operating loss 
carryover or separate net operating loss carryback is a joint net 
operating loss carryover or joint net operating loss carryback to such 
taxable year.
    (c) Continuous use of joint return. If a husband and wife making a 
joint return for a taxable year made a joint return for each of the 
taxable years involved in the computation of a net operating loss 
carryover or net operating loss carryback to such taxable year, the 
joint net operating loss carryover or joint net operating loss carryback 
to such taxable year is computed in the

[[Page 178]]

same manner as the net operating loss carryover or net operating loss 
carryback of an individual under Sec. 1.172-4 but upon the basis of the 
joint net operating losses and the combined taxable income of both 
spouses.
    (d) From joint to separate return. If a husband and wife making 
separate returns for a taxable year made a joint return for any, or all, 
of the taxable years involved in the computation of a net operating loss 
carryover or net operating loss carryback to such taxable year, the 
separate net operating loss carryover or separate net operating loss 
carryback of each spouse to the taxable year is computed in the manner 
set forth in Sec. 1.172-4 but with the following modifications:
    (1) Net operating loss. The net operating loss of each spouse for a 
taxable year for which a joint return was made shall be deemed to be 
that portion of the joint net operating loss (computed in accordance 
with paragraph (d) of Sec. 1.172-3) which is attributable to the gross 
income and deductions of such spouse, gross income and deductions being 
taken into account to the same extent that they are taken into account 
in computing the joint net operating loss.
    (2) Taxable income to be subtracted--(i) Net operating loss of other 
spouse. The taxable income of a particular spouse for any taxable year 
which is subtracted from the net operating loss of such spouse for 
another taxable year in order to determine the amount of such loss which 
may be carried back or carried over to still another taxable year is 
deemed to be, in a case in which such taxable income was reported in a 
joint return, the sum of the following:
    (a) That portion of the combined taxable income of both spouses for 
such year for which the joint return was made which is attributable to 
the gross income and deductions of the particular spouse, gross income 
and deductions being taken into account to the same extent that they are 
taken into account in computing such combined taxable income, and
    (b) That portion of such combined taxable income which is 
attributable to the other spouse; but, if such other spouse sustained a 
net operating loss in a taxable year beginning on the same date as the 
taxable year in which the particular spouse sustained the net operating 
loss from which the taxable income is subtracted, then such portion 
shall first be reduced by such net operating loss of such other spouse.
    (ii) Modifications. For purposes of this subparagraph, the combined 
taxable income shall be computed as though the combined income and 
deductions of both spouses were those of one individual. The provisions 
of Sec. 1.172-5 shall apply in computing the combined taxable income 
for such purposes except that the net operating loss deduction shall be 
determined without taking into account any separate net operating loss 
of either spouse, or any joint net operating loss of both spouses, which 
was sustained in a taxable year beginning on or after the date of the 
beginning of the taxable year in which the particular spouse sustained 
the net operating loss from which the taxable income is subtracted.
    (e) Recurrent use of joint return. If a husband and wife making a 
joint return for any taxable year made a joint return for one or more, 
but not all, of the taxable years involved in the computation of a net 
operating loss carryover or net operating loss carryback to such taxable 
year, such net operating loss carryover or net operating loss carryback 
to the taxable year is computed in the manner set forth in paragraph (d) 
of this section. Such net operating loss carryover or net operating loss 
carryback is considered a joint net operating loss carryover or joint 
net operating loss carryback to such taxable year.
    (f) Joint carryovers and carrybacks. The joint net operating loss 
carryovers and the joint net operating loss carrybacks to any taxable 
year for which a joint return is made are all the net operating loss 
carryovers and net operating loss carrybacks of both spouses to such 
taxable year. For example, a husband and wife file a joint return for 
the calendar year 1956, having a joint taxable income for such year. The 
wife filed a separate return for the calendar years 1954 and 1955, in 
which years she sustained net operating losses. The husband filed 
separate returns for his fiscal year ending

[[Page 179]]

June 30, 1955, and, having received permission to change his accounting 
period to a calendar year basis, for the 6-month period ending December 
31, 1955. The husband sustained net operating losses in both such 
taxable years. Since the husband and wife did not file a joint return 
for any taxable year involved in the computation of the net operating 
loss carryovers to 1956 from 1954 and 1955, the joint net operating loss 
carryovers to 1956 are the separate net operating loss carryovers of the 
wife from the calendar years 1954 and 1955 and the separate net 
operating loss carryovers of the husband from the fiscal year ending 
June 30, 1955, and from the short taxable year ending December 31, 1955. 
If the husband and wife also file joint returns for the calendar years 
1957, 1958, and 1959, having joint taxable income in 1957 and 1958 and a 
joint net operating loss in 1959, the joint net operating loss 
carrybacks to 1956, 1957, and 1958 from 1959 are computed on the basis 
of the joint net operating loss for 1959, since separate returns were 
not made for any taxable year involved in the computation of such 
carrybacks.
    (g) Illustration of principles. In the following examples, which 
illustrate the application of this section, it is assumed that there are 
no items of adjustment under section 172(b)(2)(A) and that the taxable 
income or loss in each case is the taxable income or loss determined 
without any net operating loss deduction. The taxpayers in each example, 
H, a husband, and W, his wife, report their income on the calendar-year 
basis.

    Example 1. H and W filed joint returns for 1954 and 1955. They 
sustained a joint net operating loss of $1,000 for 1954 and a joint net 
operating loss of $2,000 for 1955. For 1954 the deductions of H exceeded 
his gross income by $700, and the deductions of W exceeded her gross 
income by $300, the total of such amounts being $1,000. Therefore, $700 
of the $1,000 joint net operating loss for 1954 is considered the net 
operating loss of H for 1954, and $300 of such joint net operating loss 
is considered the net operating loss of W for 1954. For 1955 the gross 
income of H exceeded his deductions, so that his separate taxable income 
would be $1,500, and the deductions of W exceeded her gross income by 
$3,500. Therefore, all of the $2,000 joint net operating loss for 1955 
is considered the separate net operating loss of W for 1955.
    Example 2. (i) H and W filed joint returns for 1954 and 1956, and 
separate returns for 1955 and 1957. For the years 1954, 1955, 1956, and 
1957 they had taxable incomes and net operating losses as follows, 
losses being indicated in parentheses:

------------------------------------------------------------------------
                                    1954      1955      1956      1957
------------------------------------------------------------------------
H...............................  ($5,000)  ($2,500)    $6,500  ($4,000)
W...............................   (3,000)     2,000     3,000   (1,500)
                                 ---------------------------------------
  Total.........................   (8,000)  ........     9,500  ........
------------------------------------------------------------------------

    (ii) The net operating loss carryover of H from 1957 to 1958 is 
$4,000, that is, his $4,000 net operating loss for 1957 which is not 
reduced by any part of the taxable income for 1956, since none of such 
taxable income is attributable to H and the portion attributable to W is 
entirely offset by her separate net operating loss for her taxable year 
1957, which taxable year begins on the same date as H's taxable year 
1957. H's $4,000 net operating loss for 1957 likewise is not reduced by 
reference to 1955 since H sustained a loss in 1955. The $0 taxable 
income for 1956 which reduces H's net operating loss for 1957 is 
computed as follows:
    (iii) The combined taxable income of $9,500 for 1956 is reduced to 
$1,000 by the net operating loss deduction for such year of $8,500. This 
net operating loss deduction is computed without taking into account any 
net operating loss of either H or W sustained in a taxable year 
beginning on or after January 1, 1957, the date of the beginning of the 
taxable year in which H sustained the net operating loss from which the 
taxable income is subtracted. This $8,500 is composed of H's carryovers 
of $5,000 from 1954 and $2,500 from 1955, and of W's carryover of $1,000 
from 1954 (the excess of W's $3,000 loss for 1954 over her $2,000 income 
for 1955). None of the $1,000 combined taxable income for 1956 (computed 
with the net operating loss deduction described above) is attributable 
to H since it is caused by W's income (computed after deducting her 
separate carryover) offsetting H's loss (computed by deducting from his 
income his separate carryovers). No part of the $1,000 combined taxable 
income for 1956 which is attributable to W is used to reduce H's net 
operating loss for 1957 since such taxable income attributable to W must 
first be reduced by W's $1,500 net operating loss for 1957, her taxable 
year beginning on the same date as the taxable year of H in which he 
sustained the net operating loss from which the taxable income is 
subtracted.
    (iv) The net operating loss carryover of W from 1957 to 1958 is 
$500, her $1,500 loss reduced by the sum of her $0 taxable income for 
1955 (computed by taking into account her $3,000 carryover from 1954) 
and her $1,000 taxable income for 1956, that is, the portion of the 
combined taxable income for 1956 which is attributable to her.

[[Page 180]]

    Example 3. (i) Assume the same facts as in Example 2 except that for 
1957 the net operating loss of W is $200 instead of $1,500.
    (ii) The net operating loss carryover of H from 1957 to 1958 is 
$3,200, that is, his $4,000 net operating loss for 1957 reduced by the 
sum of his $0 taxable income for 1955 (a year in which he sustained a 
loss) and his $800 taxable income for 1956. Such $800 is computed as 
follows:
    (iii) The combined taxable income for 1956, computed with the net 
operating loss deduction in the manner described in Example 2, remains 
$1,000, no part of which is attributable to H. To the $0 taxable income 
attributable to H for 1956 there is added $800, the excess of the $1,000 
taxable income for such year attributable to W over her $200 net 
operating loss sustained in 1957, a taxable year beginning on the same 
date as the taxable year of H in which he sustained the $4,000 net 
operating loss from which the taxable income is subtracted.
    (iv) W has no net operating loss carryover from 1957 to 1958 since 
her net operating loss of $200 for 1957 does not exceed the $1,000 
taxable income for 1956 attributable to her.
    Example 4. (i) Assume the same facts as in Example 2, except that W 
changes her accounting period in 1957 to a fiscal year ending on January 
31, and has neither income nor losses for the taxable year January 1, 
1957, to January 31, 1957, or for the fiscal year February 1, 1957, to 
January 31, 1958, but has a net operating loss of $200 for the fiscal 
year February 1, 1958, to January 31, 1959.
    (ii) The net operating loss carryover of H from 1957 to 1958 is 
$3,000, that is, his net operating loss of $4,000 for 1957 reduced by 
the sum of his $0 taxable income for 1955 (a year in which he sustained 
a loss) and his $1,000 taxable income for 1956. Such $1,000 is computed 
as follows:
    (iii) The combined taxable income for 1956, computed with the net 
operating loss deduction in the manner described in Example 2, remains 
$1,000, no part of which is attributable to H. To the $0 taxable income 
attributable to H for 1956 there is added the $1,000 taxable income 
attributable to W for such year. The taxable income attributable to W is 
not reduced by any amount since she does not have a net operating loss 
for her taxable year beginning on January 1, 1957, the date of the 
beginning of the taxable year of H in which he sustained the $4,000 net 
operating loss from which his taxable income is subtracted.
    (iv) The net operating loss carryover of W from the fiscal year 
beginning February 1, 1958, to her next fiscal year is $200, that is, 
her net operating loss of $200 for the fiscal year beginning February 1, 
1958, reduced by the sum of her $0 taxable income for 1956, her $0 
taxable income for the taxable year January 1, 1957, to January 31, 1957 
(a year in which she had neither income nor loss), and her $0 taxable 
income for the fiscal year February 1, 1957, to January 31, 1958 (also a 
year in which she had neither income nor loss). The $0 taxable income 
for 1956 is computed as follows:
    (v) The combined taxable income of $9,500 for 1956 is reduced to $0 
amount by the net operating loss deduction for such year of $12,500. 
This net operating loss deduction is computed by taking into account the 
net operating loss of H for 1957 since it was sustained in a taxable 
year beginning before February 1, 1958, the date of the beginning of the 
taxable year of W in which she sustained the $200 net operating loss 
from which her taxable income is subtracted. This $12,500 is composed of 
H's carryovers of $5,000 from 1954 and $2,500 from 1955 and of his 
carryback of $4,000 from 1957, plus W's carryover of $1,000 from 1954 
(the excess of W's $3,000 loss for 1954 over her $2,000 income for 
1955). Since there is no combined taxable income for 1956, there is no 
taxable income attributable to W for such year.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 8107, 51 FR 
43346, Dec. 2, 1986]



Sec. 1.172-8  Net operating loss carryovers for regulated 
transportation corporations.

    (a) In general. A net operating loss sustained in a taxable year 
ending before January 1, 1976, shall be a carryover to the 7 succeeding 
taxable years if the taxpayer is a regulated transportation corporation 
(as defined in paragraph (b) of this section) for the loss year and for 
the 6th and 7th succeeding taxable years. If, however, the taxpayer is a 
regulated transportation corporation for the loss year and for the 6th 
succeeding taxable year, but not for the 7th succeeding taxable year, 
then the loss shall be a carryover to the 6 succeeding taxable years. If 
the taxpayer is not a regulated transportation corporation for the 6th 
succeeding taxable year then this section shall not apply. A net 
operating loss sustained in a taxable year ending after December 31, 
1975, shall be a carryover to the 15 succeeding taxable years.
    (b) Regulated transportation corporations. A corporation is a 
regulated transportation corporation for a taxable year if it is 
included within one or more of the following categories:
    (1) Eighty percent or more of the corporation's gross income 
(computed without regard to dividends and capital

[[Page 181]]

gains and losses) for such taxable year is income from transportation 
sources described in paragraph (c) of this section.
    (2) The corporation is a railroad corporation, subject to Part I of 
the Interstate Commerce Act, which is either a lessor railroad 
corporation described in section 7701(a)(33)(G) or a common parent 
railroad corporation described in section 7701(a)(33)(H).
    (3) The corporation is a member of a regulated transportation system 
for the taxable year. For purposes of this section, a member of a 
regulated transportation system for a taxable year means a member of an 
affiliated group of corporations making a consolidated return for such 
year, if 80 percent or more of the sum of the gross incomes of the 
members of the affiliated group for such year (computed without regard 
to dividends, capital gains and losses, or eliminations for intercompany 
transactions) is derived from transportation sources described in 
paragraph (c) of this section. For purposes of this subparagraph, income 
derived by a corporation described in subparagraph (2) of this paragraph 
from leases described in section 7701(a)(33)(G) shall be considered as 
income from transportation sources described in paragraph (c) of this 
section.
    (c) Transportation sources. For purposes of this section, income 
from ``transportation sources'' means income received directly in 
consideration for transportation services, and income from the 
furnishing or sale of essential facilities, products, and other services 
which are directly necessary and incidental to the furnishing of 
transportation services. For purposes of the preceding sentence, the 
term transportation services means:
    (1) Transportation by railroad as a common carrier subject to the 
jurisdiction of the Interstate Commerce Commission;
    (2)(i) Transportation, which is not included in subparagraph (1) of 
this paragraph:
    (a) On an intrastate, suburban, municipal, or interurban electric 
railroad,
    (b) On an intrastate, municipal, or suburban trackless trolley 
system,
    (c) On a municipal or suburban bus system, or
    (d) By motor vehicle not otherwise included in this subparagraph, if 
the rates for the furnishing or sale of such transportation are 
established or approved by a regulatory body described in section 
7701(a)(33)(A);
    (ii) In the case of a corporation which establishes to the 
satisfaction of the district director that:
    (a) Its revenue from regulated rates from transportation services 
described in subdivision (i) of this subparagraph and its revenue 
derived from unregulated rates are derived from its operation of a 
single interconnected and coordinated system or from the operation of 
more than one such system, and
    (b) The unregulated rates have been and are substantially as 
favorable to users and consumers as are the regulated rates, 
transportation, which is not included in subparagraph (1) of this 
paragraph, from which such revenue from unregulated rates is derived.
    (3) Transportation by air as a common carrier subject to the 
jurisdiction of the Civil Aeronautics Board; and
    (4) Transportation by water by common carrier subject to the 
jurisdiction of either the Interstate Commerce Commission under Part III 
of the Interstate Commerce Act (54 Stat. 929), or the Federal Maritime 
Board under the Intercoastal Shipping Act, 1933 (52 Stat. 965).
    (d) Corporate acquisitions. This section shall apply to a carryover 
of a net operating loss sustained by a regulated transportation 
corporation (as defined in paragraph (b) of this section) to which an 
acquiring corporation succeeds under section 381(a) only if the 
acquiring corporation is a regulated transportation corporation (as 
defined in paragraph (b) of this section):
    (1) For the sixth succeeding taxable year in the case of a carryover 
to the sixth succeeding taxable year, and
    (2) For the sixth and seventh succeeding taxable years in the case 
of a carryover to the seventh succeeding taxable year.

[T.D. 6862, 30 FR 14430, Nov. 18, 1965, as amended by T.D. 8107, 51 FR 
43346, Dec. 2, 1986]

[[Page 182]]



Sec. 1.172-9  Election with respect to portion of net operating loss 
attributable to foreign expropriation loss.

    (a) In general. If a taxpayer has a net operating loss for a taxable 
year ending after December 31, 1958, and if the foreign expropriation 
loss for such year (as defined in paragraph (b)(1) of this section) 
equals or exceeds 50 percent of the net operating loss for such year, 
then the taxpayer may elect (at the time and in the manner provided in 
paragraph (c) (1) or (2) of this section, whichever is applicable) to 
have the provisions of this section apply. If the taxpayer so elects, 
the portion of the net operating loss for such taxable year attributable 
(under paragraph (b)(2) of this section) to such foreign expropriation 
loss shall not be a net operating loss carryback to any taxable year 
preceding the taxable year of such loss and shall be a net operating 
loss carryover to each of the ten taxable years following the taxable 
year of such loss. In such case, the portion, if any, of the net 
operating loss not attributable to a foreign expropriation loss shall be 
carried back or carried over as provided in paragraph (a)(1)(ii) of 
Sec. 1.172-4.
    (b) Determination of ``foreign expropriation loss''--(1) Definition 
of ``foreign expropriation loss''. The term foreign expropriation loss 
means, for any taxable year, the sum of the losses allowable as 
deductions under section 165 (other than losses from, or which under 
section 165(g) or 1231(a) are treated or considered as losses from, 
sales or exchanges of capital assets and other than losses described in 
section 165(i)(1)) sustained by reason of the expropriation, 
intervention, seizure, or similar taking of property by the government 
or any foreign country, any political subdivision thereof, or any agency 
or instrumentality of the foregoing. For purposes of the preceding 
sentence, a debt which becomes worthless in whole or in part, shall, to 
the extent of any deduction allowed under section 166(a), be treated as 
a loss allowable as a deduction under section 165.
    (2) Portion of the net operating loss attributable to a foreign 
expropriation loss. (i) Except as provided in subdivision (ii) of this 
subparagraph, the portion of the net operating loss for any taxable year 
attributable to a foreign expropriation loss is the amount of the 
foreign expropriation loss for such taxable year (determined under 
subparagraph (1) of this paragraph).
    (ii) The portion of the net operating loss for a taxable year 
attributable to a foreign expropriation loss shall not exceed the amount 
of the net operating loss, computed under section 172(c), for such year.
    (3) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. M Corporation, a domestic calendar year corporation 
manufacturing cigars in the United States, owns, in country X, a tobacco 
plantation having an adjusted basis of $400,000 and farm equipment 
having an adjusted basis of $300,000. On January 15, 1961, country X 
expropriates the plantation and equipment without any allowance for 
compensation. For the taxable year 1961, M Corporation sustains a loss 
from the operation of its business (not including losses from the 
seizure of its plantation and equipment in country X) of $200,000, which 
loss would not have been sustained in the absence of the seizure. 
Accordingly, M has a net operating loss of $900,000 (the sum of 
$400,000, $300,000, and $200,000). For purposes of section 172(k)(1), M 
Corporation has a foreign expropriation loss for 1961 of $700,000 (the 
sum of $400,000 and $300,000, the losses directly sustained by reason of 
the seizure of its property by country X). Since the foreign 
expropriation loss for 1961, $700,000, equals or exceeds 50 percent of 
the net operating loss for such year, or $450,000 (i.e., 50 percent of 
$900,000), M Corporation may make the election under paragraph (c)(2) of 
this section with respect to $700,000, the portion of the net operating 
loss attributable to the foreign expropriation loss.
    Example 2. Assume the same facts as in Example 1 except that for 
1961, M Corporation has operating profits of $300,000 (not including 
losses from the seizure of its plantation and equipment in country X) so 
that its net operating loss (as defined in section 172(c)) is only 
$400,000. Under the provisions of section 172(k)(2) and paragraph (b)(2) 
of this section, the portion of the net operating loss for 1961 
attributable to a foreign expropriation loss is limited to $400,000, the 
amount of the net operating loss.

    (c) Time and manner of making election--(1) Taxable years ending 
after December 31, 1963. In the case of a taxpayer who has a foreign 
expropriation loss for a taxable year ending after December 31, 1963, 
the election referred to in paragraph (a) of this section shall be

[[Page 183]]

made by attaching to the taxpayer's income tax return (filed within the 
time prescribed by law, including extensions of time) for the taxable 
year of such foreign expropriation loss a statement containing the 
information required by subparagraph (3) of this paragraph. Such 
election shall be irrevocable after the due date (including extensions 
of time) of such return.
    (2) Information required. The statement referred to in subparagraph 
(1) of this paragraph shall contain the following information:
    (i) The name, address, and taxpayer account number of the taxpayer;
    (ii) A statement that the taxpayer elects under section 
172(b)(3)(A)(ii) or (iii), whichever is applicable, to have section 
172(b)(1)(D) of the Code apply;
    (iii) The amount of the net operating loss for the taxable year; and
    (iv) The amount of the foreign expropriation loss for the taxable 
year, including a schedule showing the computation of such foreign 
expropriation loss.
    (d) Amount of foreign expropriation loss which is a carryover to the 
taxable year in issue--(1) General. If a portion of a net operating loss 
for the taxable year is attributable to a foreign expropriation loss and 
if an election under paragraph (a) of this section has been made with 
respect to such portion of the net operating loss, then such portion 
shall be considered to be a separate net operating loss for such year, 
and, for the purpose of determining the amount of such separate loss 
which may be carried over to other taxable years, such portion shall be 
applied after the other portion (if any) of such net operating loss. 
Such separate loss shall be carried to the earliest of the several 
taxable years to which such separate loss is allowable as a carryover 
under the provisions of paragraph (a)(1)(iv) of Sec. 1.172-4, and the 
amount of such separate loss which shall be carried over to any taxable 
year subsequent to such earliest year is an amount (not exceeding such 
separate loss) equal to the excess of:
    (i) The sum of (a) such separate loss and (b) the other portion (if 
any) of the net operating loss (i.e., that portion not attributable to a 
foreign expropriation loss) to the extent such other portion is a 
carryover to such earliest taxable year, over
    (ii) The sum of the aggregate of the taxable incomes (computed as 
provided in Sec. 1.172-5) for all of such several taxable years 
preceding such subsequent taxable year.
    (2) Cross reference. The portion of a net operating loss which is 
not attributable to a foreign expropriation loss shall be carried back 
or carried over, in accordance with the rules provided in paragraph 
(b)(1) of Sec. 1.172-4, as if such portion were the only net operating 
loss for such year.
    (3) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example 1. Corporation A, organized in 1960 and whose return is made 
on the basis of the calendar year, incurs for 1960 a net operating loss 
of $10,000, of which $7,500 is attributable to a foreign expropriation 
loss. With respect to such $7,500, A makes the election described in 
paragraph (a) of this section. In each of the years 1961, 1962, 1963, 
1964, and 1965, A has taxable income in the amount of $600 (computed 
without any net operating loss deduction). The assumption is made that 
none of the other modifications prescribed in Sec. 1.172-5 apply. The 
portion of the net operating loss attributable to the foreign 
expropriation loss which is a carryover to the year 1966 is $7,000, 
which is the sum of $7,500 (the portion of the net operating loss 
attributable to the foreign expropriation loss) and $2,500 (the other 
portion of the net operating loss available as a carryover to 1961), 
minus $3,000 (the aggregate of the taxable incomes for taxable years 
1961 through 1965).
    Example 2. Assume the same facts as in Example 1 except that taxable 
income for each of the years 1961 through 1965 is $400 (computed without 
any net operating loss deduction). The carryover to the year 1966 is 
$7,500, that is, the sum of $7,500 (the portion of the net operating 
loss attributable to the foreign expropriation loss) and $2,500 (the 
other portion of the net operating loss available as a carryover to 
1961), minus $2,000 (the aggregate of the taxable incomes for taxable 
years 1961 through 1965), but limited to $7,500 (the portion of the net 
operating loss attributable to the foreign expropriation loss).

    (e) Taxable income which is subtracted from net operating loss to 
determine carryback or carryover. In computing taxable income for a 
taxable year (hereinafter called a ``prior taxable year'') for the 
purpose of determining the portion of a net operating loss for another 
taxable year which shall be

[[Page 184]]

carried to each of the several taxable years subsequent to the earliest 
taxable year to which such loss may be carried, the net operating loss 
deduction for any such prior taxable year shall be determined without 
regard to that portion, if any, of a net operating loss for a taxable 
year attributable to a foreign expropriation loss, if such portion may 
not, under the provisions of section 172(b)(1)(D) and paragraph 
(a)(1)(iv) of Sec. 1.172-4, be carried back to such prior taxable year. 
Thus, if the taxpayer has a foreign expropriation loss for 1962 and 
elects the 10-year carryover with respect to the portion of his net 
operating loss for 1962 attributable to the foreign expropriation loss, 
then in computing taxable income for the year 1960 for the purpose of 
determining the portion of a net operating loss for 1963 which is 
carried to years subsequent to 1960, the net operating loss deduction 
for 1960 is determined without regard to the portion of the net 
operating loss for 1962 attributable to the foreign expropriation loss, 
since under the provisions of section 172(b)(1)(D) and paragraph 
(a)(1)(iv) of Sec. 1.172-4 such portion of the net operating loss for 
1962 may not be carried back to 1960.

[T.D. 6862, 30 FR 14431, Nov. 18, 1965, as amended by T.D. 8107, 51 FR 
43346, Dec. 2, 1986]



Sec. 1.172-10  Net operating losses of real estate investment trusts.

    (a) Taxable years to which a loss may be carried. (1) A net 
operating loss sustained by a qualified real estate investment trust (as 
defined in paragraph (b)(1) of this section) in a qualified taxable year 
(as defined in paragraph (b)(2) of this section) ending after October 4, 
1976, shall not be carried back to a preceding taxable year.
    (2) A net operating loss sustained by a qualified real estate 
investment trust in a qualified taxable year ending before October 5, 
1976, shall be carried back to the 3 preceding taxable years. However, 
see Sec. 1.857-2(a)(5), which does not allow the net operating loss 
deduction in computing real estate investment trust taxable income for 
taxable years ending before October 5, 1976.
    (3) A net operating loss sustained by a qualified real estate 
investment trust in a qualified taxable year ending after December 31, 
1972, shall be carried over to the 15 succeeding taxable years. However, 
see Sec. 1.857-2(a)(5).
    (4) A net operating loss sustained by a qualified real estate 
investment trust in a qualified taxable year ending before January 1, 
1973, shall be carried over to 8 succeeding taxable years. However, see 
Sec. 1.857-2(a)(5).
    (5) A net operating loss sustained in a taxable year for which the 
taxpayer is not a qualified real estate investment trust generally may 
be carried back to the 3 preceding taxable years; however, a net 
operating loss sustained in a taxable year ending after December 31, 
1975, shall not be carried back to any qualified taxable year. However, 
see Sec. 1.857-2(a)(5), with respect to a net operating loss sustained 
in a taxable year ending before January 1, 1976.
    (6) A net operating loss sustained in a taxable year ending after 
December 31, 1975, for which the taxpayer is not a qualified real estate 
investment trust generally may be carried over to the 15 succeeding 
taxable years.
    (7)(i) A net operating loss sustained in a taxable year ending 
before January 1, 1986, for which the taxpayer is not a qualified real 
estate investment trust generally may be a net operating loss carryover 
to each of the 5 succeeding taxable years. However, where the loss was a 
net operating loss carryback to one or more qualified taxable years, the 
net operating loss, in accordance with paragraph (a)(7)(ii) of this 
section shall be--
    (A) Carried over to the 15 succeeding taxable years if the loss 
could be a net operating loss carryover to a taxable year ending in 
1981, or
    (B) Carried over to the 5, 6, 7, or 8 succeeding taxable years if 
paragraph (a)(7)(i)(A) of this section does not apply.
    (ii) For purposes of determining whether a net operating loss could 
be a carryover to a taxable year ending in 1981 under paragraph 
(a)(7)(i)(A) of this section or, where paragraph (a)(7)(i)(A) of this 
section does not apply, to determine the actual carryover period under 
paragraph (a)(7)(i)(B) of this section, the net operating loss shall 
have a carryover period of 5 years, and such period shall be increased 
(to a number

[[Page 185]]

not greater than 8) by the number of qualified taxable years to which 
such loss was a net operating loss carryback; however, where the 
taxpayer acted so as to cause itself to cease to be a qualified real 
estate investment trust and the principal purpose for such action was to 
secure the benefit of the allowance of a net operating loss carryover 
under section 172(b)(1)(B), the net operating loss carryover period 
shall be limited to 5 years. However, see Sec. 1.857-2(a)(5).
    (8) A qualified taxable year is a taxable year preceding or 
following the taxable year of the net operating loss, for purposes of 
section 172(b)(1), even though the loss may not be carried to, or 
allowed as a deduction in, such qualified taxable year. Thus, a 
qualified taxable year ending before October 5, 1976 (for which no net 
operating loss deduction is allowable) is nevertheless a preceding or 
following taxable year for purposes of section 172(b)(1). Moreover, a 
qualified taxable year ending after October 4, 1976 (to which a net 
operating loss cannot be carried back because of section 172(b)(1)(E)) 
is nevertheless a preceding taxable year for purposes of section 
172(b)(1). For purposes of determining, under section 172(b)(2), the 
balance of the loss available as a carryback or carryover to other 
taxable years, however, the net operating loss is not reduced on account 
of such qualified taxable year being a preceding or following taxable 
year.
    (b) Definitions. For purposes of this section and Sec. Sec. 1.172-2 
and 1.172-5:
    (1) The term qualified real estate investment trust means, with 
respect to any taxable year, a real estate investment trust within the 
meaning of part II of subchapter M which is taxable for such year under 
that part as a real estate investment trust, and
    (2) The term qualified taxable year means a taxable year for which 
the taxpayer is a qualified real estate investment trust.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. (i) Facts. X was a qualified real estate investment trust 
for the taxable years ending on December 31, 1972, and December 31, 
1973. X was not a qualified real estate investment trust for the taxable 
years ending on December 31, 1971, and December 31, 1974. X sustained a 
net operating loss for the taxable year ending on December 31, 1974.
    (ii) Applicable carryback and carryover periods. The net operating 
loss must be carried back to the 3 preceding taxable years. Under Sec. 
1.857-2 (a)(5) the net operating loss deduction shall not be allowed in 
computing real estate investment trust taxable income for the years 
ending December 31, 1972, and December 31, 1973. Where a net operating 
loss is sustained in a taxable year ending before January 1, 1976, for 
which the taxpayer is not a qualified real estate investment trust and 
the loss is a net operating loss carryback to one or more qualified 
taxable years, the carryover period is determined under Sec. 1.172-10 
(a)(7); the carryover period is determined by first applying the rule 
provided in paragraph (a)(7)(ii) of this section to obtain the carryover 
period for purposes of determining whether the net operating loss could 
have been a net operating loss carryover to a taxable year ending in 
1981. Under these facts, paragraph (a)(7)(ii) of this section provides 
for a 7-year carryover period (5 years increased by the 2 qualified 
taxable years to which the loss was a net operating loss carryback); 
therefore, since the carryover period provided for by paragraph 
(a)(7)(ii) of this section would allow the net operating loss to be a 
net operating loss carryover to a taxable year ending in 1981, under 
paragraph (a)(7)(ii)(A) of this section the applicable carryover period 
is 15 years (provided that X did not act so as to cause itself to cease 
to qualify as a real estate investment trust for the principal purpose 
of securing the benefit of a net operating loss carryover under section 
172 (b)(1)(B)).
    Example 2. (i) Facts. The facts are the same as in example (1) 
except that the taxable year ending December 31, 1973, was not a 
qualified taxable year for X.
    (ii) Applicable carryback and carryover periods. The net operating 
loss must be carried back to the 3 preceding taxable years. Section 
1.857-2 (a)(5) provides that the net operating loss deduction shall not 
be allowed in computing real estate investment trust taxable income for 
the year ending December 31, 1972. Under these facts the carryover 
period is determined under Sec. 1.172-10 (a)(7). Paragraph (a)(7)(ii) 
of this section provides for a 6 year carryover period (5 years 
increased by the 1 qualified taxable year to which the loss was a net 
operating loss carryback); therefore, since a 6 year carryover period 
would not allow the net operating loss to be a net operating loss 
carryover to a taxable year ending in 1981, paragraph (a)(7)(i)(A) of 
this section does not apply. Where the rule stated in paragraph 
(a)(7)(i)(A) of this section does not apply, paragraph (a)(7)(i)(B) of 
this section provides that the applicable carryover period is the 
carryover period determined

[[Page 186]]

under paragraph (a)(7)(ii) of this section, which, in this case, is 6 
years (provided that the principal purpose for X acting so as to cause 
itself to cease to qualify as a real estate investment trust was not to 
secure the benefit of the allowance of a net operating loss carryover 
under section 172 (b)(1)(B)).

    (d) Cross references. See Sec. Sec. 1.172-2(c) and 1.172-5(a)(5) 
for the computation of the net operating loss of a qualified real estate 
investment trust for a taxable year ending after October 4, 1976, and 
the amount of a net operating loss which is absorbed when carried over 
to a qualified taxable year ending after October 4, 1976. See Sec. 
1.857-2(a)(5), which provides that for a taxable year ending before 
October 5, 1976, the net operating loss deduction is not allowed in 
computing the real estate investment trust taxable income of a qualified 
real estate investment trust.

[T.D. 7767, 46 FR 11263, Feb. 6, 1981, as amended by T.D. 8107, 51 FR 
43346, Dec. 2, 1986]



Sec. 1.172-13  Product liability losses.

    (a) Entitlement to 10-year carryback--(1) In general. Unless an 
election is made pursuant to paragraph (c) of this section, in the case 
of a taxpayer which has a product liability loss (as defined in section 
172(j) and paragraph (b)(1) of this section) for a taxable year 
beginning after September 30, 1979 (hereinafter ``loss year''), the 
product liability loss shall be a net operating loss carryback to each 
of the 10 taxable years preceding the loss year.
    (2) Years to which loss may be carried. A product liability loss 
shall first be carried to the earliest of the taxable years to which 
such loss is allowable as a carryback and shall then be carried to the 
next earliest of such taxable years, etc.
    (3) Example. The application of this paragraph may be illustrated as 
follows:

    Example. Taxpayer A incurs a net operating loss for taxable year 
1980 of $80,000, of which $60,000 is a product liability loss. A's 
taxable income for each of the 10 years immediately preceding taxable 
year 1980 was $5,000. The product liability loss of $60,000 is first 
carried back to the 10th through the 4th preceding taxable years ($5,000 
per year), thus offsetting $35,000 of the loss. The remaining $25,000 of 
product liability loss is added to the remaining portion of the total 
net operating loss for taxable year 1980 which was not a product 
liability loss ($20,000), and the total is then carried back to the 3rd 
through 1st years preceding taxable year 1980, which offsets $15,000 of 
this loss. The remaining loss ($30,000) is carried forward pursuant to 
section 172(b)(1) and the regulations thereunder without regard to 
whether all or any portion thereof originated as a product liability 
loss.

    (b) Definitions--(1) Product liability loss. The term product 
liability loss means, for any taxable year, the lesser of--
    (i) The net operating loss for the current taxable year (not 
including the portion of such net operating loss attributable to foreign 
expropriation losses, as defined in Sec. 1.172-11), or
    (ii) The total of the amounts allowable as deductions under sections 
162 and 165 directly attributable to--
    (A) Product liability (as defined in paragraph (b)(2) of this 
section), and
    (B) Expenses (including settlement payments) incurred in connection 
with the investigation or settlement of or opposition to claims against 
the taxpayer on account of alleged product liability.

Indirect corporate expense, or overhead, is not to be allocated to 
product liability claims so as to become a product liability loss.
    (2) Product liability. (i) The term product liability means the 
liability of a taxpayer for damages resulting from physical injury or 
emotional harm to individuals, or damage to or loss of the use of 
property, on account of any defect in any product which is manufactured, 
leased, or sold by the taxpayer. The preceding sentence applies only to 
the extent that the injury, harm, or damage occurs after the taxpayer 
has completed or terminated operations with respect to the product, 
including, but not limited to the manufacture, installation, delivery, 
or testing of the product, and has relinquished possession of such 
product.
    (ii) The term product liability does not include liabilities arising 
under warranty theories relating to repair or replacement of the 
property that are essentially contract liabilities. For example, the 
costs incurred by a taxpayer in repairing or replacing defective 
products under the terms of a warranty, express or implied, are not 
product liability losses. On the other hand,

[[Page 187]]

the taxpayer's liability for damage done to other property or for harm 
done to persons that is attributable to a defective product may be 
product liability losses regardless of whether the claim sounds in tort 
or contract. Further, liability incurred as a result of services 
performed by a taxpayer is not product liability. For purposes of the 
preceding sentence, where both a product and services are integral parts 
of a transaction, product liability does not arise until all operations 
with respect to the product are completed and the taxpayer has 
relinquished possession of it. On the other hand, any liability that 
arises after completion of the initial delivery, installation, 
servicing, testing, etc., is considered ``product liability'' even if 
such liability arises during the subsequent servicing of the product 
pursuant to a service agreement or otherwise.
    (iii) Liability for injury, harm, or damage due to a defective 
product as described in this subparagraph shall be ``product liability'' 
notwithstanding that the liability is not considered product liability 
under the law of the State in which such liability arose.
    (iv) Amounts paid for insurance against product liability risks are 
not paid on account of product liability.
    (v) Notwithstanding subparagraph (iv), an amount is paid on account 
of product liability (even if such amount is paid to an insurance 
company) if the amount satisifies the provisions of paragraph (b)(2) (i) 
through (iii) of this section and the amount--
    (A) Is paid on account of specific claims against the taxpayer (or 
on account of expenses incurred in connection with the investigation or 
settlement of or opposition to such claims), subsequent to the events 
giving rise to the claims and pursuant to a contract entered into before 
those events,
    (B) Is not refundable, and
    (C) Is not applicable to other claims, other expenses or to 
subsequent coverage.
    (3) Examples. Paragraph (b)(2) of this section is illustrated by the 
following examples:

    Example 1. X, a manufacturer of heating equipment, sells a boiler to 
A, a homeowner. Subsequent to the sale and installation of the boiler, 
the boiler explodes due to a defect causing physical injury to A. A sues 
X for damages for the injuries sustained in the explosion and is awarded 
$250,000, which X pays. The payment was made on account of product 
liability.
    Example 2. Assume the same facts as in Example 1 and that A also 
sues under the contract with X to recover for the cost of the boiler and 
recovers $1,000, the boiler's replacement cost. The $1,000 payment is 
not a payment on account of product liability. Similarly, if X agrees to 
repair the destroyed boiler, any amount expended by X for such repair is 
not payment made on account of product liability.
    Example 3. Y, a professional medical association, is sued by B, a 
patient, in an action based on the malpractice of one of its doctors. B 
recovers $25,000. Because the suit was based on the services of B, the 
payment is not made on account of product liability.
    Example 4. R, a retailer of communications equipment, sells a 
telecommunication device to C. R also contracts with C to service the 
equipment for 3 years. While R is installing the equipment, the unit 
catches on fire due to faulty wiring within the unit and destroys C's 
office. Because R had not relinquished possession of this equipment when 
the fire started, any amount paid to C by R for the damage to C's 
property on account of the defective product is not payment on account 
of product liability.
    Example 5. Assume the same facts as in Example 4 except that the 
fire and resulting property damages occurred after R had installed the 
equipment and relinquished possession of it. Any amount paid for the 
property damages sustained on account of the defective product is 
payment on account of product liability.
    Example 6. Assume the same facts as in Example 4 except that the 
equipment catches on fire during the subsequent servicing of the unit. 
Because C is in possession of the unit during the servicing, any amount 
paid for the property damage sustained on account of the defective 
product would be payment on account of product liability.
    Example 7. X, a manufacturer of computers, sells a computer to A. X 
also has its employees periodically service the computer for A from time 
to time after it is placed in service. After the initial delivery, 
installation, servicing, and testing of the computer is completed, the 
computer catches on fire while X's employee is servicing the equipment. 
This fire causes property damage to A's office and physical injury to A. 
Any amount paid for the property or physical damage sustained on account 
of the defective product is payment on account of product liability.

    (c) Election--(1) In general. The 10-year carryback provision of 
this section applies, except as provided in this

[[Page 188]]

paragraph, to any taxpayer who, for a taxable year beginning after 
September 30, 1979, incurs a product liability loss. Any taxpayer 
entitled to a 10-year carryback under paragraph (a) of this section in 
any loss year may elect (at the time and in the manner provided in 
paragraph (c)(2) of this section) to have the carryback period with 
respect to the product liability loss determined without regard to the 
carryback rules provided by paragraph (a) of this section. If the 
taxpayer so elects, the product liability loss shall not be carried back 
to the 10th through the 4th taxable years preceding the loss year. In 
such case, the product liability loss shall be carried back or carried 
over as provided by section 172(b) (except subparagraph (1)(I) thereof) 
and the regulations thereunder.
    (2) Time and manner of making election. An election by any taxpayer 
entitled to the 10-year carryback for the product liability loss to have 
the carryback with respect to such loss determined without regard to the 
10-year carryback provision of paragraph (a) of this section must be 
made by attaching to the taxpayer's tax return (filed within the time 
prescribed by law, including extensions of time) for the taxable year in 
which such product liability loss is sustained, a statement containing 
the information required by paragraph (c)(3) of this section. Such 
election, once made for any taxable year, shall be irrevocable after the 
due date (including extensions of time) of the taxpayer's tax return for 
that taxable year.
    (3) Information required. In the case of a statement filed after 
April 25, 1983, the statement referred to in paragraph (c)(2) of this 
section shall contain the following information:
    (i) The name, address, and taxpayer identifying number of the 
taxpayer; and
    (ii) A statement that the taxpayer elects under section 172(j)(3) 
not to have section 172(b)(1)(I) apply.
    (4) Relationship with section 172(b)(3)(C) election. If a taxpayer 
sustains during the taxable year both a net operating loss not 
attributable to product liability and a product liability loss (as 
defined in section 172(j)(1) and paragraph (b)(1) of this section), an 
election pursuant to section 172(b)(3)(C) (relating to election to 
relinquish the entire carryback period) does not preclude the product 
liability loss from being carried back 10 years under section 
172(b)(1)(I) and paragraph (a)(1) of this section.

[T.D. 8096, 51 FR 30482, Aug. 27, 1986]



Sec. 1.173-1  Circulation expenditures.

    (a) Allowance of deduction. Section 173 provides for the deduction 
from gross income of all expenditures to establish, maintain, or 
increase the circulation of a newspaper, magazine, or other periodical, 
subject to the following limitations:
    (1) No deduction shall be allowed for expenditures for the purchase 
of land or depreciable property or for the acquisition of circulation 
through the purchase of any part of the business of another publisher of 
a newspaper, magazine, or other periodical;
    (2) The deduction shall be allowed only to the publisher making the 
circulation expenditures; and
    (3) The deduction shall be allowed only for the taxable year in 
which such expenditures are paid or incurred.

Subject to the provisions of paragraph (c) of this section, the 
deduction permitted under section 173 and this paragraph shall be 
allowed without regard to the method of accounting used by the taxpayer 
and notwithstanding the provisions of section 263 and the regulations 
thereunder, relating to capital expenditures.
    (b) Deferred expenditures. Notwithstanding the provisions of 
paragraph (a)(3) of this section, expenditures paid or incurred in a 
taxable year subject to the Internal Revenue Code of 1939 which are 
deferrable pursuant to I.T. 3369 (C.B. 1940-1, 46), as modified by Rev. 
Rul. 57-87 (C.B. 1957-1, 507) may be deducted in the taxable year 
subject to the Internal Revenue Code of 1954 to which so deferred.
    (c) Election to capitalize. (1) A taxpayer entitled to the deduction 
for circulation expenditures provided in section 173 and paragraph (a) 
of this section may, in lieu of taking such deduction, elect to 
capitalize the portion of such circulation expenditures which is 
properly chargeable to capital account.

[[Page 189]]

As a general rule, expenditures normally made from year to year in an 
effort to maintain circulation are not properly chargeable to capital 
account; conversely, expenditures made in an effort to establish or to 
increase circulation are properly chargeable to capital account. For 
example, if a newspaper normally employs five persons to obtain renewals 
of subscriptions by telephone, the expenditures in connection therewith 
would not be properly chargeable to capital account. However, if such 
newspaper, in a special effort to increase its circulation, hires for a 
limited period 20 additional employees to obtain new subscriptions by 
means of telephone calls to the general public, the expenditures in 
connection therewith would be properly chargeable to capital account. If 
an election is made by a taxpayer to treat any portion of his 
circulation expenditures as chargeable to capital account, the election 
must apply to all such expenditures which are properly so chargeable. In 
such case, no deduction shall be allowed under section 173 for any such 
expenditures. In particular cases, the extent to which any deductions 
attributable to the amortization of capital expenditures are allowed may 
be determined under sections 162, 263, and 461.
    (2) A taxpayer may make the election referred to in subparagraph (1) 
of this paragraph by attaching a statement to his return for the first 
taxable year to which the election is applicable. Once an election is 
made, the taxpayer must continue in subsequent taxable years to charge 
to capital account all circulation expenditures properly so chargeable, 
unless the Commissioner, on application made to him in writing by the 
taxpayer, permits a revocation of such election for any subsequent 
taxable year or years. Permission to revoke such election may be granted 
subject to such conditions as the Commissioner deems necessary.
    (3) Elections filed under section 23(bb) of the Internal Revenue 
Code of 1939 shall be given the same effect as if they were filed under 
section 173. (See section 7807(b)(2).)



Sec. 1.174-1  Research and experimental expenditures; in general.

    Section 174 provides two methods for treating research or 
experimental expenditures paid or incurred by the taxpayer in connection 
with his trade or business. These expenditures may be treated as 
expenses not chargeable to capital account and deducted in the year in 
which they are paid or incurred (see Sec. 1.174-3), or they may be 
deferred and amortized (see Sec. 1.174-4). Research or experimental 
expenditures which are neither treated as expenses nor deferred and 
amortized under section 174 must be charged to capital account. The 
expenditures to which section 174 applies may relate either to a general 
research program or to a particular project. See Sec. 1.174-2 for the 
definition of research and experimental expenditures. The term paid or 
incurred, as used in section 174 and in Sec. Sec. 1.174-1 to 1.174-4, 
inclusive, is to be construed according to the method of accounting used 
by the taxpayer in computing taxable income. See section 7701(a)(25).



Sec. 1.174-2  Definition of research and experimental expenditures.

    (a) In general. (1) The term research or experimental expenditures, 
as used in section 174, means expenditures incurred in connection with 
the taxpayer's trade or business which represent research and 
development costs in the experimental or laboratory sense. The term 
generally includes all such costs incident to the development or 
improvement of a product. The term includes the costs of obtaining a 
patent, such as attorneys' fees expended in making and perfecting a 
patent application. Expenditures represent research and development 
costs in the experimental or laboratory sense if they are for activities 
intended to discover information that would eliminate uncertainty 
concerning the development or improvement of a product. Uncertainty 
exists if the information available to the taxpayer does not establish 
the capability or method for developing or improving the product or the 
appropriate design of the product. Whether expenditures qualify as 
research or experimental expenditures depends on the nature of the 
activity to which the expenditures relate, not

[[Page 190]]

the nature of the product or improvement being developed or the level of 
technological advancement the product or improvement represents.
    (2) For purposes of this section, the term product includes any 
pilot model, process, formula, invention, technique, patent, or similar 
property, and includes products to be used by the taxpayer in its trade 
or business as well as products to be held for sale, lease, or license.
    (3) The term research or experimental expenditures does not include 
expenditures for--
    (i) The ordinary testing or inspection of materials or products for 
quality control (quality control testing);
    (ii) Efficiency surveys;
    (iii) Management studies;
    (iv) Consumer surveys;
    (v) Advertising or promotions;
    (vi) The acquisition of another's patent, model, production or 
process; or
    (vii) Research in connection with literary, historical, or similar 
projects.
    (4) For purposes of paragraph (a)(3)(i) of this section, testing or 
inspection to determine whether particular units of materials or 
products conform to specified parameters is quality control testing. 
However, quality control testing does not include testing to determine 
if the design of the product is appropriate.
    (5) See section 263A and the regulations thereunder for cost 
capitalization rules which apply to expenditures paid or incurred for 
research in connection with literary, historical, or similar projects 
involving the production of property, including the production of films, 
sound recordings, video tapes, books, or similar properties.
    (6) Section 174 applies to a research or experimental expenditure 
only to the extent that the amount of the expenditure is reasonable 
under the circumstances. In general, the amount of an expenditure for 
research or experimental activities is reasonable if the amount would 
ordinarily be paid for like activities by like enterprises under like 
circumstances. Amounts supposedly paid for research that are not 
reasonable under the circumstances may be characterized as disguised 
dividends, gifts, loans, or similar payments. The reasonableness 
requirement of this paragraph (a)(6) does not apply to the 
reasonableness of the type or nature of the activities themselves.
    (7) This paragraph (a) applies to taxable years beginning after 
October 3, 1994.
    (8) The provisions of this section apply not only to costs paid or 
incurred by the taxpayer for research or experimentation undertaken 
directly by him but also to expenditures paid or incurred for research 
or experimentation carried on in his behalf by another person or 
organization (such as a research institute, foundation, engineering 
company, or similar contractor). However, any expenditures for research 
or experimentation carried on in the taxpayer's behalf by another person 
are not expenditures to which section 174 relates, to the extent that 
they represent expenditures for the acquisition or improvement of land 
or depreciable property, used in connection with the research or 
experimentation, to which the taxpayer acquires rights of ownership.
    (9) The application of subparagraph (2) of this paragraph may be 
illustrated by the following examples:

    Example 1. A engages B to undertake research and experimental work 
in order to create a particular product. B will be paid annually a fixed 
sum plus an amount equivalent to his actual expenditures. In 1957, A 
pays to B in respect of the project the sum of $150,000 of which $25,000 
represents an addition to B's laboratory and the balance represents 
charges for research and experimentation on the project. It is agreed 
between the parties that A will absorb the entire cost of this addition 
to B's laboratory which will be retained by B. A may treat the entire 
$150,000 as expenditures under section 174.
    Example 2. X Corporation, a manufacturer of explosives, contracts 
with the Y research organization to attempt through research and 
experimentation the creation of a new process for making certain 
explosives. Because of the danger involved in such an undertaking, Y is 
compelled to acquire an isolated tract of land on which to conduct the 
research and experimentation. It is agreed that upon completion of the 
project Y will transfer this tract, including any improvements thereon, 
to X. Section 174 does not apply to the amount paid to Y representing 
the costs of the tract of land and improvements.


[[Page 191]]


    (b) Certain expenditures with respect to land and other property. 
(1) Expenditures by the taxpayer for the acquisition or improvement of 
land, or for the acquisition or improvement of property which is subject 
to an allowance for depreciation under section 167 or depletion under 
section 611, are not deductible under section 174, irrespective of the 
fact that the property or improvements may be used by the taxpayer in 
connection with research or experimentation. However, allow- ances for 
depreciation or depletion of property are considered as research or 
experimental expenditures, for purposes of section 174, to the extent 
that the property to which the allowances relate is used in connection 
with research or experimentation. If any part of the cost of acquisition 
or improvement of depreciable property is attributable to research or 
experimentation (whether made by the taxpayer or another), see 
subparagraphs (2), (3), and (4) of this paragraph.
    (2) Expenditures for research or experimentation which result, as an 
end product of the research or experimentation, in depreciable property 
to be used in the taxpayer's trade or business may, subject to the 
limitations of subparagraph (4) of this paragraph, be allowable as a 
current expense deduction under section 174(a). Such expenditures cannot 
be amortized under section 174(b) except to the extent provided in 
paragraph (a)(4) of Sec. 1.174-4.
    (3) If expenditures for research or experimentation are incurred in 
connection with the construction or manufacture of depreciable property 
by another, they are deductible under section 174(a) only if made upon 
the taxpayer's order and at his risk. No deduction will be allowed (i) 
if the taxpayer purchases another's product under a performance 
guarantee (whether express, implied, or imposed by local law) unless the 
guarantee is limited, to engineering specifications or otherwise, in 
such a way that economic utility is not taken into account; or (ii) for 
any part of the purchase price of a product in regular production. For 
example, if a taxpayer orders a specially-built automatic milling 
machine under a guarantee that the machine will be capable of producing 
a given number of units per hour, no portion of the expenditure is 
deductible since none of it is made at the taxpayer's risk. Similarly, 
no deductible expense is incurred if a taxpayer enters into a contract 
for the construction of a new type of chemical processing plant under a 
turn-key contract guaranteeing a given annual production and a given 
consumption of raw material and fuel per unit. On the other hand, if the 
contract contained no guarantee of quality of production and of quantity 
of units in relation to consumption of raw material and fuel, and if 
real doubt existed as to the capabilities of the process, expenses for 
research or experimentation under the contract are at the taxpayer's 
risk and are deductible under section 174(a). However, see subparagraph 
(4) of this paragraph.
    (4) The deductions referred to in subparagraphs (2) and (3) of this 
paragraph for expenditures in connection with the acquisition or 
production of depreciable property to be used in the taxpayer's trade or 
business are limited to amounts expended for research or 
experimentation. For the purpose of the preceding sentence, amounts 
expended for research or experimentation do not include the costs of the 
component materials of the depreciable property, the costs of labor or 
other elements involved in its construction and installation, or costs 
attributable to the acquisition or improvement of the property. For 
example, a taxpayer undertakes to develop a new machine for use in his 
business. He expends $30,000 on the project of which $10,000 represents 
the actual costs of material, labor, etc., to construct the machine, and 
$20,000 represents research costs which are not attributable to the 
machine itself. Under section 174(a) the taxpayer would be permitted to 
deduct the $20,000 as expenses not chargeable to capital account, but 
the $10,000 must be charged to the asset account (the machine).
    (c) Exploration expenditures. The provisions of section 174 are not 
applicable to any expenditures paid or incurred for the purpose of 
ascertaining the existence, location, extent, or quality of

[[Page 192]]

any deposit of ore, oil, gas or other mineral. See sections 617 and 263.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 8562, 59 FR 
50160, Oct. 3, 1994]



Sec. 1.174-3  Treatment as expenses.

    (a) In general. Research or experimental expenditures paid or 
incurred by a taxpayer during the taxable year in connection with his 
trade or business are deductible as expenses, and are not chargeable to 
capital account, if the taxpayer adopts the method provided in section 
174(a). See paragraph (b) of this section. If adopted, the method shall 
apply to all research and experimental expenditures paid or incurred in 
the taxable year of adoption and all subsequent taxable years, unless a 
different method is authorized by the Commissioner under section 
174(a)(3) with respect to part or all of the expenditures. See paragraph 
(b)(3) of this section. Thus, if a change to the deferred expense method 
under section 174(b) is authorized by the Commissioner with respect to 
research or experimental expenditures attributable to a particular 
project or projects, the taxpayer, for the taxable year of the change 
and for subsequent taxable years, must apply the deferred expense method 
to all such expenditures paid or incurred during any of those taxable 
years in connection with the particular project or projects, even though 
all other research and experimental expenditures are required to be 
deducted as current expenses under this section. In no event will the 
taxpayer be permitted to adopt the method described in this section as 
to part of the expenditures relative to a particular project and adopt 
for the same taxable year a different method of treating the balance of 
the expenditures relating to the same project.
    (b) Adoption and change of method--(1) Adoption without consent. The 
method described in this section may be adopted for any taxable year 
beginning after December 31, 1953, and ending after August 16, 1954. The 
consent of the Commissioner is not required if the taxpayer adopts the 
method for the first such taxable year in which he pays or incurs 
research or experimental expenditures. The taxpayer may do so by 
claiming in his income tax return for such year a deduction for his 
research or experimental expenditures. If the taxpayer fails to adopt 
the method for the first taxable year in which he incurs such 
expenditures, he cannot do so in subsequent taxable years unless he 
obtains the consent of the Commissioner under section 174(a)(2)(B) and 
subparagraph (2) of this paragraph. See, however, subparagraph (4) of 
this paragraph, relating to extensions of time.
    (2) Adoption with consent. A taxpayer may, with the consent of the 
Commissioner, adopt at any time the method provided in section 174(a). 
The method adopted in this manner shall be applicable only to 
expenditures paid or incurred during the taxable year for which the 
request is made and in subsequent taxable years. A request to adopt this 
method shall be in writing and shall be addressed to the Commissioner of 
Internal Revenue, Attention: T:R, Washington, DC, 20224. The request 
shall set forth the name and address of the taxpayer, the first taxable 
year for which the adoption of the method is requested, and a 
description of the project or projects with respect to which research or 
experimental expenditures are to be, or have already been, paid or 
incurred. The request shall be signed by the taxpayer (or his duly 
authorized representative) and shall be filed not later than the last 
day of the first taxable year for which the adoption of the method is 
requested. See, however, subparagraph (4) of this paragraph, relating to 
extensions of time.
    (3) Change of method. An application for permission to change to a 
different method of treating research or experimental expenditures shall 
be in writing and shall be addressed to the Commissioner of Internal 
Revenue, Attention: T:R, Washington, DC, 20224. The application shall 
include the name and address of the taxpayer, shall be signed by the 
taxpayer (or his duly authorized representative), and shall be filed not 
later than the last day of the first taxable year for which the change 
in method is to apply. See, however, subparagraph (4) of this paragraph, 
relating to extensions of time. The application shall:

[[Page 193]]

    (i) State the first year to which the requested change is to be 
applicable;
    (ii) State whether the change is to apply to all research or 
experimental expenditures paid or incurred by the taxpayer, or only to 
expenditures attributable to a particular project or projects;
    (iii) Include such information as will identify the project or 
projects to which the change is applicable;
    (iv) Indicate the number of months (not less than 60) selected for 
amortization of the expenditures, if any, which are to be treated as 
deferred expenses under section 174(b);
    (v) State that, upon approval of the application, the taxpayer will 
make an accounting segregation on his books and records of the research 
or experimental expenditures to which the change in method is to apply; 
and
    (vi) State the reasons for the change.

If permission is granted to make the change, the taxpayer shall attach a 
copy of the letter granting permission to his income tax return for the 
first taxable year in which the different method is effective.
    (4) Special rules. If the last day prescribed by law for filing a 
return for any taxable year (including extensions thereof) to which 
section 174(a) is applicable falls before January 2, 1958, consent is 
hereby given for the taxpayer to adopt the expense method or to change 
from the expense method to a different method. In the case of a change 
from the expense method to a different method, the taxpayer, on or 
before January 2, 1958, must submit to the district director for the 
internal revenue district in which the return was filed the information 
required by subparagraph (3) of this paragraph. For any taxable year for 
which the expense method or a different method is adopted pursuant to 
this subparagraph, an amended return reflecting such method shall be 
filed on or before January 2, 1958, if such return is necessary.



Sec. 1.174-4  Treatment as deferred expenses.

    (a) In general. (1) If a taxpayer has not adopted the method 
provided in section 174(a) of treating research or experimental 
expenditures paid or incurred by him in connection with his trade or 
business as currently deductible expenses, he may, for any taxable year 
beginning after December 31, 1953, elect to treat such expenditures as 
deferred expenses under section 174(b), subject to the limitations of 
subparagraph (2) of this paragraph. If a taxpayer has adopted the method 
of treating such expenditures as expenses under section 174(a), he may 
not elect to defer and amortize any such expenditures unless permission 
to do so is granted under section 174(a)(3). See paragraph (b) of this 
section.
    (2) The election to treat research or experimental expenditures as 
deferred expenses under section 174(b) applies only to those 
expenditures which are chargeable to capital account but which are not 
chargeable to property of a character subject to an allowance for 
depreciation or depletion under section 167 or 611, respectively. Thus, 
the election under section 174(b) applies only if the property resulting 
from the research or experimental expenditures has no determinable 
useful life. If the property resulting from the expenditures has a 
determinable useful life, section 174(b) is not applicable, and the 
capitalized expenditures must be amortized or depreciated over the 
determinable useful life. Amounts treated as deferred expenses are 
properly chargeable to capital account for purposes of section 
1016(a)(1), relating to adjustments to basis of property. See section 
1016(a)(14). See section 174(c) and paragraph (b)(1) of Sec. 1.174-2 
for treatment of expenditures for the acquisition or improvement of land 
or of depreciable or depletable property to be used in connection with 
the research or experimentation.
    (3) Expenditures which are treated as deferred expenses under 
section 174(b) are allowable as a deduction ratably over a period of not 
less than 60 consecutive months beginning with the month in which the 
taxpayer first realizes benefits from the expenditures. The length of 
the period shall be selected by the taxpayer at the time he makes the 
election to defer the expenditures. If a taxpayer has two or more 
separate projects, he may select a different amortization period for 
each project. In the absence of a showing to the contrary, the taxpayer 
will be

[[Page 194]]

deemed to have begun to realize benefits from the deferred expenditures 
in the month in which the taxpayer first puts the process, formula, 
invention, or similar property to which the expenditures relate to an 
income-producing use. See section 1016(a)(14) for adjustments to basis 
of property for amounts allowed as deductions under section 174(b) and 
this section. See section 165 and the regulations thereunder for rules 
relating to the treatment of losses resulting from abandonment.
    (4) If expenditures which the taxpayer has elected to defer and 
deduct ratably over a period of time in accordance with section 174(b) 
result in the development of depreciable property, deductions for the 
unrecovered expenditures, beginning with the time the asset becomes 
depreciable in character, shall be determined under section 167 
(relating to depreciation) and the regulations thereunder. For example, 
for the taxable year 1954, A, who reports his income on the basis of a 
calendar year, elects to defer and deduct ratably over a period of 60 
months research and experimental expenditures made in connection with a 
particular project. In 1956, the total of the deferred expenditures 
amounts to $60,000. At that time, A has developed a process which he 
seeks to patent. On July 1, 1956, A first realized benefits from the 
marketing of products resulting from this process. Therefore, the 
expenditures deferred are deductible ratably over the 60-month period 
beginning with July 1, 1956 (when A first realized benefits from the 
project). In his return for the year 1956. A deducted $6,000; in 1957, A 
deducted $12,000 ($1,000 per month). On July 1, 1958, a patent 
protecting his process is obtained by A. In his return for 1958, A is 
entitled to a deduction of $6,000, representing the amortizable portion 
of the deferred expenses attributable to the period prior to July 1, 
1958. The balance of the unrecovered expenditures ($60,000 minus 
$24,000, or $36,000) is to be recovered as a depreciation deduction over 
the life of the patent commencing with July 1, 1958. Thus, one-half of 
the annual depreciation deduction based upon the useful life of the 
patent is also deductible for 1958 (from July 1 to December 31).
    (5) The election shall be applicable to all research and 
experimental expenditures paid or incurred by the taxpayer or, if so 
limited by the taxpayer's election, to all such expenditures with 
respect to the particular project, subject to the limitations of 
subparagraph (2) of this paragraph. The election shall apply for the 
taxable year for which the election is made and for all subsequent 
taxable years, unless a change to a different treatment is authorized by 
the Commissioner under section 174(b)(2). See paragraph (b)(2) of this 
section. Likewise, the taxpayer shall adhere to the amortization period 
selected at the time of the election unless a different period of 
amortization with respect to a part or all of the expenditures is 
similarly authorized. However, no change in method will be permitted 
with respect to expenditures paid or incurred before the taxable year to 
which the change is to apply. In no event will the taxpayer be permitted 
to treat part of the expenditures with respect to a particular project 
as deferred expenses under section 174(b) and to adopt a different 
method of treating the balance of the expenditures relating to the same 
project for the same taxable year. The election under this section shall 
not apply to any expenditures paid or incurred before the taxable year 
for which the taxpayer makes the election.
    (b) Election and change of method--(1) Election. The election under 
section 174(b) shall be made not later than the time (including 
extensions) prescribed by law for filing the return for the taxable year 
for which the method is to be adopted. The election shall be made by 
attaching a statement to the taxpayer's return for the first taxable 
year to which the election is applicable. The statement shall be signed 
by the taxpayer (or his duly authorized representative), and shall:
    (i) Set forth the name and address of the taxpayer;
    (ii) Designate the first taxable year to which the election is to 
apply;
    (iii) State whether the election is intended to apply to all 
expenditures within the permissible scope of the election, or only to a 
particular project or projects, and, if the latter, include such 
information as will identify the

[[Page 195]]

project or projects as to which the election is to apply;
    (iv) Set forth the amount of all research or experimental 
expenditures paid or incurred during the taxable year for which the 
election is made;
    (v) Indicate the number of months (not less than 60) selected for 
amortization of the deferred expenses for each project; and
    (vi) State that the taxpayer will make an accounting segregation in 
his books and records of the expenditures to which the election relates.
    (2) Change to a different method or period. Application for 
permission to change to a different method of treating research or 
experimental expenditures or to a different period of amortization for 
deferred expenses shall be in writing and shall be addressed to the 
Commissioner of Internal Revenue, Attention: T:R, Washington, DC, 20224. 
The application shall include the name and address of the taxpayer, 
shall be signed by the taxpayer (or his duly authorized representative), 
and shall be filed not later than the end of the first taxable year in 
which the different method or different amortization period is to be 
used (unless subparagraph (3) of this paragraph, relating to extensions 
of time, is applicable). The application shall set forth the following 
information with regard to the research or experimental expenditures 
which are being treated under section 174(b) as deferred expenses:
    (i) Total amount of research or experimental expenditures 
attributable to each project;
    (ii) Amortization period applicable to each project; and
    (iii) Unamortized expenditures attributable to each project at the 
beginning of the taxable year in which the application is filed.

In addition, the application shall set forth the length of the new 
period or periods proposed, or the new method of treatment proposed, the 
reasons for the proposed change, and such information as will identify 
the project or projects to which the expenditures affected by the change 
relate. If permission is granted to make the change, the taxpayer shall 
attach a copy of the letter granting the permission to his income tax 
return for the first taxable year in which the different method or 
period is to be effective.
    (3) Special rules. If the last day prescribed by law for filing a 
return for any taxable year for which the deferred method provided in 
section 174(b) has been adopted falls before January 2, 1958, consent is 
hereby given for the taxpayer to change from such method and adopt a 
different method of treating research or experimental expenditures, 
provided that on or before January 2, 1958, he submits to the district 
director for the district in which the return was filed the information 
required by subparagraph (2) of this paragraph, relating to a change to 
a different method or period. For any taxable year for which the 
different method is adopted pursuant to this subparagraph, an amended 
return reflecting such method shall be filed on or before January 2, 
1958.
    (c) Example. The application of this section is illustrated by the 
following example:

    Example. N Corporation is engaged in the business of manufacturing 
chemical products. On January 1, 1955, work is begun on a special 
research project. N Corporation elects, pursuant to section 174(b), to 
defer the expenditures relating to the special project and to amortize 
the expenditures over a period of 72 months beginning with the month in 
which benefits from the expenditures are first realized. On January 1, 
1955, N Corporation also purchased for $57,600 a building having a 
remaining useful life of 12 years as of the date of purchase and no 
salvage value at the end of the period. Fifty percent of the building's 
facilities are to be used in connection with the special research 
project. During 1955, N Corporation pays or incurs the following 
expenditures relating to the special research project:

Salaries.....................................................    $15,000
Heat, light and power........................................        700
Drawings.....................................................      2,000
Models.......................................................      6,500
Laboratory materials.........................................      8,000
Attorneys' fees..............................................      1,400
Depreciation on building attributable to project (50 percent       2,400
 of $4,800 allowable depreciation)...........................
                                                              ----------
    Total research and development expenditures..............     36,000
 


The above expenditures result in a process which is marketable but not 
patentable and which has no determinable useful life. N Corporation 
first realizes benefits from the process in January 1956. N Corporation 
is entitled to deduct the amount of $6,000 ($36,000x12 months/72 months) 
as deferred expenses

[[Page 196]]

under section 174(b) in computing taxable income for 1956.



Sec. 1.175-1  Soil and water conservation expenditures; in general.

    Under section 175, a farmer may deduct his soil or water 
conservation expenditures which do not give rise to a deduction for 
depreciation and which are not otherwise deductible. The amount of the 
deduction is limited annually to 25 percent of the taxpayer's gross 
income from farming. Any excess may be carried over and deducted in 
succeeding taxable years. As a general rule, once a farmer has adopted 
this method of treating soil and water conservation expenditures, he 
must deduct all such expenditures (subject to the 25-percent limitation) 
for the current and subsequent taxable years. If a farmer does not adopt 
this method, such expenditures increase the basis of the property to 
which they relate.



Sec. 1.175-2  Definition of soil and water conservation expenditures.

    (a) Expenditures treated as a deduction. (1) The method described in 
section 175 applies to expenditures paid or incurred for the purpose of 
soil or water conservation in respect of land used in farming, or for 
the prevention of erosion of land used in farming, but only if such 
expenditures are made in the furtherance of the business of farming. 
More specifically, a farmer may deduct expenditures made for these 
purposes which are for (i) the treatment or moving of earth, (ii) the 
construction, control, and protection of diversion channels, drainage 
ditches, irrigation ditches, earthen dams, watercourses, outlets, and 
ponds, (iii) the eradication of brush, and (iv) the planting of 
windbreaks. Expenditures for the treatment or moving of earth include 
but are not limited to expenditures for leveling, conditioning, grading, 
terracing, contour furrowing, and restoration of soil fertility. For 
rules relating to the allocation of expenditures that benefit both land 
used in farming and other land of the taxpayer, see Sec. 1.175-7.
    (2) The following are examples of soil and water conservation: (i) 
Constructing terraces, or the like, to detain or control the flow of 
water, to check soil erosion on sloping land, to intercept runoff, and 
to divert excess water to protected outlets; (ii) constructing water 
detention or sediment retention dams to prevent or fill gullies, to 
retard or reduce run-off of water, or to collect stock water; and (iii) 
constructing earthen floodways, levies, or dikes, to prevent flood 
damage to farmland.
    (b) Expenditures not subject to section 175 treatment. (1) The 
method described in section 175 applies only to expenditures for 
nondepreciable items. Accordingly, a taxpayer may not deduct 
expenditures for the purchase, construction, installation, or 
improvement of structures, appliances, or facilities subject to the 
allowance for depreciation. Thus, the method does not apply to 
depreciable nonearthen items such as those made of masonry or concrete 
(see section 167). For example, expenditures in respect of depreciable 
property include those for materials, supplies, wages, fuel, hauling, 
and dirt moving for making structures such as tanks, reservoirs, pipes, 
conduits, canals, dams, wells, or pumps composed of masonry, concrete, 
tile, metal, or wood. However, the method applies to expenditures for 
earthen items which are not subject to a depreciation allowance. For 
example, expenditures for earthen terraces and dams which are 
nondepreciable are deductible under section 175. For taxable years 
beginning after December 31, 1959, in the case of expenditures paid or 
incurred by farmers for fertilizer, lime, etc., for purposes other than 
soil or water conservation, see section 180 and the regulations 
thereunder.
    (2) The method does not apply to expenses deductible apart from 
section 175. Adoption of the method is not necessary in order to deduct 
such expenses in full without limitation. Thus, the method does not 
apply to interest (deductible under section 163), nor to taxes 
(deductible under section 164). It does not apply to expenses for the 
repair of completed soil or water conservation structures, such as costs 
of annual removal of sediment from a drainage ditch. It does not apply 
to expenditures paid or incurred primarily to produce an agricultural 
crop even though they incidentally conserve soil.

[[Page 197]]

Thus, the cost of fertilizing (the effectiveness of which does not last 
beyond one year) used to produce hay is deductible without adoption of 
the method prescribed in section 175. For taxable years beginning after 
December 31, 1959, in the case of expenditures paid or incurred by 
farmers for fertilizer, lime, etc., for purposes other than soil or 
water conservation, see section 180 and the regulations thereunder. 
However, the method would apply to expenses incurred to produce 
vegetation primarily to conserve soil or water or to prevent erosion. 
Thus, for example, the method would apply to such expenditures as the 
cost of dirt moving, lime, fertilizer, seed and planting stock used in 
gulley stabilization, or in stabilizing severely eroded areas, in order 
to obtain a soil binding stand of vegetation on raw or infertile land.
    (c) Assessments. The method applies also to that part of assessments 
levied by a soil or water conservation or drainage district to reimburse 
it for its expenditures which, if actually paid or incurred during the 
taxable year by the taxpayer directly, would be deductible under section 
175. Depending upon the farmer's method of accounting, the time when the 
farmer pays or incurs the assessment, and not the time when the 
expenditures are paid or incurred by the district, controls the time the 
deduction must be taken. The provisions of this paragraph may be 
illustrated by the following example:

    Example. In 1955 a soil and water conservation district levies an 
assessment of $700 upon a farmer on the cash method of accounting. The 
assessment is to reimburse the district for its expenditures in 1954. 
The farmer's share of such expenditures is as follows: $400 for digging 
drainage ditches for soil conservation and $300 for assets subject to 
the allowance for depreciation. If the farmer pays the assessment in 
1955 and has adopted the method of treating expenditures for soil or 
water conservation as current expenses under section 175, he may deduct 
in 1955 the $400 attributable to the digging of drainage ditches as a 
soil conservation expenditure subject to the 25-percent limitation.

(74 Stat. 1001; 26 U.S.C. 180)

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6548, 26 FR 
1487, Feb. 22, 1961; T.D. 7740, 45 FR 78634, Nov. 26, 1980]



Sec. 1.175-3  Definition of ``the business of farming.''

    The method described in section 175 is available only to a taxpayer 
engaged in ``the business of farming''. A taxpayer is engaged in the 
business of farming if he cultivates, operates, or manages a farm for 
gain or profit, either as owner or tenant. For the purpose of section 
175, a taxpayer who receives a rental (either in cash or in kind) which 
is based upon farm production is engaged in the business of farming. 
However, a taxpayer who receives a fixed rental (without reference to 
production) is engaged in the business of farming only if he 
participates to a material extent in the operation or management of the 
farm. A taxpayer engaged in forestry or the growing of timber is not 
thereby engaged in the business of farming. A person cultivating or 
operating a farm for recreation or pleasure rather than a profit is not 
engaged in the business of farming. For the purpose of this section, the 
term farm is used in its ordinary, accepted sense and includes stock, 
dairy, poultry, fish, fruit, and truck farms, and also plantations, 
ranches, ranges, and orchards. A fish farm is an area where fish are 
grown or raised, as opposed to merely caught or harvested; that is, an 
area where they are artificially fed, protected, cared for, etc. A 
taxpayer is engaged in ``the business of farming'' if he is a member of 
a partnership engaged in the business of farming. See paragraphs 
(a)(8)(i) and (c)(1)(iv) of Sec. 1.702-1.

[T.D. 6649, 28 FR 3762, Apr. 18, 1963]



Sec. 1.175-4  Definition of ``land used in farming.''

    (a) Requirements. For purposes of section 175, the term land used in 
farming means land which is used in the business of farming and which 
meets both of the following requirements:
    (1) The land must be used for the production of crops, fruits, or 
other agricultural products, including fish, or for the sustenance of 
livestock. The term livestock includes cattle, hogs, horses, mules, 
donkeys, sheep, goats, captive fur-bearing animals, chickens, turkeys, 
pigeons, and other poultry. Land used

[[Page 198]]

for the sustenance of livestock includes land used for grazing such 
livestock.
    (2) The land must be or have been so used either by the taxpayer or 
his tenant at some time before or at the same time as, the taxpayer 
makes the expenditures for soil or water conservation or for the 
prevention of the erosion of land. The taxpayer will be considered to 
have used the land in farming before making such expenditure if he or 
his tenant has employed the land in a farming use in the past. If the 
expenditures are made by the taxpayer in respect of land newly acquired 
from one who immediately prior to the acquisition was using it in 
farming, the taxpayer will be considered to be using the land in farming 
at the time that such expenditures are made, if the use which is made by 
the taxpayer of the land from the time of its acquisition by him is 
substantially a continuation of its use in farming, whether for the same 
farming use as that of the taxpayer's predecessor or for one of the 
other uses specified in paragraph (a)(1) of this section.
    (b) Examples. The provisions of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. A purchases an operating farm from B in the autumn after 
B has harvested his crops. Prior to spring plowing and planting when the 
land is idle because of the season, A makes certain soil and water 
conservation expenditures on this farm. At the time such expenditures 
are made the land is considered to be used by A in farming, and A may 
deduct such expenditures under section 175, subject to the other 
requisite conditions of such section.
    Example 2. C acquires uncultivated land, not previously used in 
farming, which he intends to develop for farming. Prior to putting this 
land into production it is necessary for C to clear brush, construct 
earthen terraces and ponds, and make other soil and water conservation 
expenditures. The land is not used in farming at the same time that such 
expenditures are made. Therefore, C may not deduct such expenditures 
under section 175.
    Example 3. D acquires several tracts of land from persons who had 
used such land immediately prior to D's acquisition for grazing cattle. 
D intends to use the land for growing grapes. In order to make the land 
suitable for this use, D constructs earthen terraces, builds drainage 
ditches and irrigation ditches, extensively treats the soil, and makes 
other soil and water conservation expenditures. The land is considered 
to be used in farming by D at the time he makes such expenditures, even 
though it is being prepared for a different type of farming activity 
than that engaged in by D's predecessors. Therefore, D may deduct such 
expenditures under section 175, subject to the other requisite 
conditions of such section.

    (c) Cross reference. For rules relating to the allocation of 
expenditures that benefit both land used in farming and other land of 
the taxpayer, see Sec. 1.175-7.

[T.D. 7740, 45 FR 78634, Nov. 26, 1980]



Sec. 1.175-5  Percentage limitation and carryover.

    (a) The limitation--(1) General rule. The amount of soil and water 
conservation expenditures which the taxpayer may deduct under section 
175 in any one taxable year is limited to 25 percent of his ``gross 
income from farming''.
    (2) Definition of ``gross income from farming.'' For the purpose of 
section 175, the term gross income from farming means the gross income 
of the taxpayer, derived in ``the business of farming'' as defined in 
Sec. 1.175-3, from the production of crops, fruits, or other 
agricultural products, including fish, or from livestock (including 
livestock held for draft, breeding, or dairy purposes). It includes such 
income from land used in farming other than that upon which expenditures 
are made for soil or water conservation or for the prevention of erosion 
of land. It does not include gains from sales of assets such as farm 
machinery or gains from the disposition of land. A taxpayer shall 
compute his ``gross income from farming'' in accordance with his 
accounting method used in determining gross income. (See the regulations 
under section 61 relating to accounting methods used by farmers in 
determining gross income.) The provisions of this subparagraph may be 
illustrated by the following example:

    Example. A, who uses the cash receipts and disbursements method of 
accounting, includes in his ``gross income from farming'' for purposes 
of determining the 25-percent limitation the following items:

Proceeds from sale of his 1955 yield of corn.................    $10,000
Gain from disposition of old breeding cows replaced by               500
 younger cows................................................
                                                              ----------
    Total gross income from farming..........................     10,500
 


[[Page 199]]

    A must exclude from ``gross income from farming'' the following 
items which are included in his gross income:

Gain from sale of tractor....................................       $100
Gain from sale of 40 acres of taxpayer's farm................      8,000
                                                              ----------
Interest on loan to neighboring farmer.......................        100
 

    (3) Deduction qualifies for net operating loss deduction. Any amount 
allowed as a deduction under section 175, either for the year in which 
the expenditure is paid or incurred or for the year to which it is 
carried, is taken into account in computing a net operating loss for 
such taxable year. If a deduction for soil or water conservation 
expenditures has been taken into account in computing a net operating 
loss carryback or carryover, it shall not be considered a soil or water 
conservation expenditure for the year to which the loss is carried, and 
therefore, is not subject to the 25-percent limitation for that year. 
The provisions of this subparagraph may be illustrated by the following 
example:

    Example. Assume that in 1956 A has gross income from farming of 
$4,000, soil and water conservation expenditures of $1,600 and 
deductible farm expenses of $3,500. Of the soil and water conservation 
expenditures $1,000 is deductible in 1956. The $600 in excess of 25 
percent of A's gross income from farming is carried over into 1957. 
Assuming that A has no other income, his deductions of $4,500 ($1,000 
plus $3,500) exceed his gross income of $4,000 by $500. This $500 will 
constitute a net operating loss which he must carry back two years and 
carry forward five years, until it has offset $500 of taxable income. No 
part of this $500 net operating loss carryback or carryover will be 
taken into account in determining the amount of soil and water 
conservation expenditures in the years to which it is carried.

    (b) Carryover of expenditures in excess of deduction. The deduction 
for soil and water conservation expenditures in any one taxable year is 
limited to 25 percent of the taxpayer's gross income from farming. The 
taxpayer may carry over the excess of such expenditures over 25 percent 
of his gross income from farming into his next taxable year, and, if not 
deductible in that year, into the next year, and so on without limit as 
to time. In determining the deductible amount of such expenditures for 
any taxable year, the actual expenditures of that year shall be added to 
any such expenditures carried over from prior years, before applying the 
25-percent limitation. Any such expenditures in excess of the deductible 
amount may be carried over during the taxpayer's entire existence. For 
this purpose in a farm partnership, since the 25-percent limitation is 
applied to each partner, not the partnership, the carryover may be 
carried forward during the life of the partner. The provisions of this 
paragraph may be illustrated by the following example:

    Example. Assume the expenditures and income shown in the following 
table:

----------------------------------------------------------------------------------------------------------------
                                                                      Deductible soil
                                                                         and water
                                                                        conservation               25
                                                                        expenditures            percent   Excess
                                                                    -------------------            of     to be
                                Year                                  Paid or  Carried   Total   gross   carried
                                                                     incurred  forward           income  forward
                                                                      during     from             from
                                                                      taxable   prior           farming
                                                                       year      year
----------------------------------------------------------------------------------------------------------------
1954...............................................................     $900      None    $900     $800     $100
1955...............................................................    1,000      $100   1,100      900      200
1956...............................................................     None       200     200    1,000     None
----------------------------------------------------------------------------------------------------------------


The deduction for 1954 is limited to $800. The remainder, $100 ($900 
minus $800), not being deductible for 1954, is a carryover to 1955. For 
1955, accordingly, the total of the expenditures to be taken into 
account is $1,100 (the $100 carryover and the $1,000 actually paid in 
that year). The deduction for 1955 is limited to $900, and the remainder 
of the $1,100 total, or $200, is a carryover to 1956. The deduction for 
1956 consists solely of this carryover of $200. Since the total 
expenditures, actual and carried-over, for 1956 are less than 25 percent 
of gross income from farming, there is no carryover into 1957.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6649, 28 FR 
3762, Apr. 18, 1963]



Sec. 1.175-6  Adoption or change of method.

    (a) Adoption with consent. A taxpayer may, without consent, adopt 
the method of treating expenditures for soil or water conservation as 
expenses for the first taxable year:
    (1) Which begins after December 31, 1953, and ends after August 16, 
1954, and
    (2) For which soil or water conservation expenditures described in 
section 175(a) are paid or incurred.

Such adoption shall be made by claiming the deduction on his income tax 
return. For a taxable year ending prior

[[Page 200]]

to May 31, 1957, the adoption of the method described in section 175 
shall be made by claiming the deduction on such return for that year, or 
by claiming the deduction on an amended return filed for that year on or 
before August 30, 1957.
    (b) Adoption with consent. A taxpayer may adopt the method of 
treating soil and water conservation expenditures as provided by section 
175 for any taxable year to which the section is applicable if consent 
is obtained from the district director for the internal revenue district 
in which the taxpayer's return is required to be filed.
    (c) Change of method. A taxpayer who has adopted the method of 
treating expenditures for soil or water conservation, as provided by 
section 175, may change from this method and capitalize such 
expenditures made after the effective date of the change, if he obtains 
the consent of the district director for the internal revenue district 
in which his return is required to be filed.
    (d) Request for consent to adopt or change method. Where the consent 
of the district director is required under paragraph (b) or (c) of this 
section, the request for his consent shall be in writing, signed by the 
taxpayer or his authorized representative, and shall be filed not later 
than the date prescribed by law for filing the income tax return for the 
first taxable year to which the adoption of, or change of, method is to 
apply, or not later than August 20, 1957, following their adoption, 
whichever is later. The request shall:
    (1) Set forth the name and address of the taxpayer;
    (2) Designate the first taxable year to which the method or change 
of method is to apply;
    (3) State whether the method or change of method is intended to 
apply to all expenditures within the permissible scope of section 175, 
or only to a particular project or farm and, if the latter, include such 
information as will identify the project or farm as to which the method 
or change of method is to apply;
    (4) Set forth the amount of all soil and water conservation 
expenditures paid or incurred during the first taxable year for which 
the method or change of method is to apply; and
    (5) State that the taxpayer will make an accounting segregation in 
his books and records of the expenditures to which the election relates.
    (e) Scope of method. Except with the consent of the district 
director as provided in paragraph (b) or (c) of this section, the 
taxpayer's method of treating soil and water conservation expenditures 
described in section 175 shall apply to all such expenditures for the 
taxable year of adoption and all subsequent taxable years. Although a 
taxpayer may have elected to deduct soil and water conservation 
expenditures, he may request an authorization to capitalize his soil and 
water conservation expenditures attributable to a special project or 
single farm. Similarly, a taxpayer who has not elected to deduct such 
expenditures may request an authorization to deduct his soil and water 
conservation expenditures attributable to a special project or single 
farm. The authorization with respect to the special project or single 
farm will not affect the method adopted with respect to the taxpayer's 
regularly incurred soil and water conservation expenditures. No adoption 
of, or change of, the method under section 175 will be permitted as to 
expenditures actually paid or incurred before the taxable year to which 
the method or change of method is to apply. Thus, if a taxpayer adopts 
such method for 1956, he cannot deduct any part of such expenditures 
which he capitalized, or should have capitalized, in 1955. Likewise, if 
a taxpayer who has adopted such method has an unused carryover of such 
expenditures in excess of the 25-percent limitation, and is granted 
consent to capitalize soil and water conservation expenditures beginning 
in 1956, he cannot capitalize any part of the unused carryover. The 
excess expenditures carried over continue to be deductible to the extent 
of 25 percent of the taxpayer's gross income from farming. No adjustment 
to the basis of land shall be made under section 1016 for expenditures 
to which the method under section 175 applies. For example, A has an 
unused carryover of soil and water conservation expenditures amounting 
to $5,000 as of December 31, 1956. On January 1, 1957, A sells his farm 
and goes out of the business of farming. The unused carryover of $5,000

[[Page 201]]

cannot be added to the basis of the farm for purposes of determining 
gain or loss on its sale. In 1959, A purchases another farm and resumes 
the business of farming. In such year, A may deduct the amount of the 
unused carryover to the extent of 25 percent of his gross income from 
farming and may carry over any excess to subsequent years.



Sec. 1.175-7  Allocation of expenditures in certain circumstances.

    (a) General rule. If at the time the taxpayer paid or incurred 
expenditures for the purpose of soil or water conservation, or for the 
prevention of erosion of land, it was reasonable to believe that such 
expenditures would directly and substantially benefit land of the 
taxpayer which does not qualify as ``land used in farming,'' as defined 
in Sec. 1.175-4, as well as land of the taxpayer which does so qualify, 
then, for purposes of section 175, only a part of the taxpayer's total 
expenditures is in respect of ``land used in farming.''
    (b) Method of allocation. The part of expenditures allocable to 
``land used in farming'' generally equals the amount which bears the 
same proportion to the total amount of such expenditures as the area of 
land of the taxpayer used in farming which it was reasonable to believe 
would be directly and substantially benefited as a result of the 
expenditures bears to the total area of land of the taxpayer which it 
was reasonable to believe would be so benefited. If it is established by 
clear and convincing evidence that, in the light of all the facts and 
circumstances, another method of allocation is more reasonable than the 
method provided in the preceding sentence, the taxpayer may allocate the 
expenditures under that other method. For purposes of this section, the 
term land of the taxpayer means land with respect to which the taxpayer 
has title, leasehold, or some other substantial interest.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. A owns a 200-acre tract of land, 80 acres of which 
qualify as ``land used in farming.'' A makes expenditures for the 
purpose of soil and water conservation which can reasonably be expected 
to directly and substantially benefit the entire 200-acre tract. In the 
absence of clear and convincing evidence that a different allocation is 
more reasonable, A may deduct 40 percent (80/200) of such expenditures 
under section 175. The same result would obtain if A had made the 
expenditures after newly acquiring the tract from a person who had used 
80 of the 200 acres in farming immediately prior to A's acquisition.
    Example 2. Assume the same facts as in Example 1, except that A's 
expenditures for the purpose of soil and water conservation can 
reasonably be expected to directly and substantially benefit only the 80 
acres which qualify as land used in farming; any benefit to the other 
120 acres would be minor and incidental. A may deduct all of such 
expenditures under section 175.
    Example 3. Assume the same facts as in Example 1, except that A's 
expenditures for the purpose of soil and water conservation can 
reasonably be expected to directly and substantially benefit only the 
120 acres which do not qualify as land used in farming. A may not deduct 
any of such expenditures under section 175. The same result would obtain 
even if A had leased the 200-acre tract to B in the expectation that B 
would farm the entire tract.

[T.D. 7740, 45 FR 78635, Nov. 26, 1980]



Sec. 1.177-1  Election to amortize trademark and trade name
expenditures.

    (a) In general. (1) Section 177 provides that a taxpayer may elect 
to treat any trademark or trade name expenditure (defined in section 
177(b) and paragraph (b) of this section) paid or incurred during a 
taxable year beginning after December 31, 1955, as a deferred expense. 
Any expenditure so treated shall be allowed as a deduction ratably over 
the number of continuous months (not less than 60) selected by the 
taxpayer, beginning with the first month of the taxable year in which 
the expenditure is paid or incurred. The term paid or incurred, as used 
in section 177 and this section, is to be construed according to the 
method of accounting used by the taxpayer in computing taxable income. 
See section 7701(a)(25). An election under section 177 is irrevocable 
insofar as it applies to a particular trademark or trade name 
expenditure, but separate elections may be made with respect to other 
trademark or trade name expenditures. See subparagraph (3) of this 
paragraph. See also paragraph (c) of this section for time and manner of 
making election.

[[Page 202]]

    (2) The number of continuous months selected by the taxpayer may be 
equal to or greater, but not less than 60, but in any event the 
deduction must begin with the first month of the taxable year in which 
the expenditure is paid or incurred. The number of months selected by 
the taxpayer at the time he makes the election may not be subsequently 
changed but shall be adhered to in computing taxable income for the 
taxable year for which the election is made and all subsequent taxable 
years.
    (3) Section 177 permits an election by the taxpayer for each 
separate trademark or trade name expenditure. Thus, a taxpayer who has 
several trademark or trade name expenditures in a taxable year may elect 
under section 177 with respect to some of such expenditures and not 
elect with respect to the other expenditures. Also, a taxpayer may 
choose different amortization periods for different trademark or trade 
name expenditures with respect to which he has made the election under 
section 177.
    (4) All trademark and trade name expenditures are properly 
chargeable to capital account for purposes of section 1016(a)(1), 
relating to adjustments to basis of property, whether or not they are to 
be amortized under section 177. However, the trademark and trade name 
expenditures with respect to which the taxpayer has made an election 
under section 177 must be kept in a separate account in the taxpayer's 
books and records. See paragraph (c) of this section. See also section 
1016(a)(16) and paragraph (m) of Sec. 1.1016-5 for adjustments to basis 
of property for amounts allowed as deductions under section 177 and this 
section.
    (b) Trademark and trade name expenditures defined. (1) The term 
trademark and trade name expenditures, as used in section 177 and this 
section, means any expenditure which:
    (i) Is directly connected with the acquisition, protection, 
expansion, registration (Federal, State, or foreign), or defense of a 
trademark or trade name;
    (ii) Is chargeable to capital account; and
    (iii) Is not part of the consideration or purchase price paid for a 
trademark, trade name, or a business (including goodwill) already in 
existence.

An expenditure which fails to meet one or more of these tests is not a 
trademark or trade name expenditure for purposes of section 177 and this 
section.

Amounts paid in connection with the acquisition of an existing trademark 
or trade name may not be amortized under section 177 even though such 
amounts may be paid to protect or expand a previously owned trademark or 
trade name through purchase of a competitive trademark. Similarly, the 
provisions of section 177 and this section are not applicable to 
expenditures paid or incurred for an agreement to discontinue the use of 
a trademark or trade name (if the effect of the agreement is the 
purchase of a trademark or trade name) nor to expenditures paid or 
incurred in acquiring franchises or rights to the use of a trademark or 
trade name. Generally, section 177 will apply to expenditures such as 
legal fees and other costs in connection with the acquisition of a 
certificate of registration of a trademark from the United States or 
other government, artists' fees and similar expenses connected with the 
design of a distinctive mark for a product or service, litigation 
expenses connected with infringement proceedings, and costs in 
connection with the preparation and filing of an application for renewal 
of registration and continued use of a trademark.
    (2) Expenditures for a trademark or trade name which has a 
determinable useful life and which would otherwise be depreciable under 
section 167 must be deferred and amortized under section 177 if an 
election under section 177 is made with respect to such expenditures.
    (3) The following examples illustrate the application of section 
177:

    Example 1. X Corporation engages an artist to design a distinctive 
trademark for its product. At the same time it retains an attorney to 
prepare the papers necessary for registration of this trademark with the 
Federal Government. The fees of both the artist and the attorney may be 
amortized under section 177 over a period of not less than 60 continuous 
months.
    Example 2. Y Corporation wishes to expand the market served by its 
product. It acquires a competing firm in a neighboring State. The 
contract of sale provides for a purchase price

[[Page 203]]

of $250,000 of which $225,000 shall constitute payment for physical 
assets and $25,000 for the trademark and goodwill. No part of the 
purchase price may be amortized under section 177.
    Example 3. M Corporation brings suit against N Corporation for 
infringement of M's trademark. The costs of this litigation may be 
amortized under section 177.

    (c) Time and manner of making election. (1) A taxpayer who elects to 
defer and amortize any trademark or trade name expenditure paid or 
incurred during a taxable year beginning after December 31, 1955, shall, 
within the time prescribed by law (including extensions thereof) for 
filing his income tax return for that year, attach to his income tax 
return a statement signifying his election under section 177 and setting 
forth the following:
    (i) Name and address of the taxpayer, and the taxable year involved;
    (ii) An identification of the character and amount of each 
expenditure to which the election applies and the number of continuous 
months (not less than 60) during which the expenditures are to be 
ratably deducted; and
    (iii) A declaration by the taxpayer that he will make an accounting 
segregation on his books and records of the trademark and trade name 
expenditures for which the election has been made, sufficient to permit 
an identification of the character and amount of each such expenditure 
and the amortization period selected for each expenditure.
    (2) The provisions of subparagraph (1) of this paragraph shall apply 
to income tax returns and statements required to be filed after May 4, 
1960. Elections properly made in accordance with the provisions of 
Treasury Decision 6209, approved October 26, 1956 (21 FR 8319, C.B. 
1956-2, 1370), continue in effect.



Sec. 1.178-1  Depreciation or amortization of improvements on leased 
property and cost of acquiring a lease.

    (a) In general. Section 178 provides rules for determining the 
amount of the deduction allowable for any taxable year to a lessee for 
depreciation or amortization of improvements made on leased property and 
as amortization of the cost of acquiring a lease. For purposes of 
section 178 the term depreciation means the deduction allowable for 
exhaustion, wear and tear, or obsolescence under provisions of the Code 
such as section 167 or 611 and the regulations thereunder and the term 
amortization means the deduction allowable for amortization of buildings 
or other improvements made on leased property or for amortization of the 
cost of acquiring a lease under provisions of the Code such as section 
162 or 212 and the regulations thereunder. The provisions of section 178 
are applicable with respect to costs of acquiring a lease incurred, and 
improvements begun, after July 28, 1958, other than improvements which, 
on July 28, 1958, and at all times thereafter, the lessee was under a 
binding legal obligation to make.
    (b) Determination of amount of deduction. (1) In determining the 
amount of the deduction allowable to a lessee (other than a lessee who 
is related to the lessor within the meaning of Sec. 1.178-2) for any 
taxable year for depreciation or amortization of improvements made on 
leased property, or for amortization in respect of the cost of acquiring 
a lease, the term of the lease shall, except as provided in subparagraph 
(2) of this paragraph, be treated as including all periods 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) if:
    (i) In the case of any building erected, or other improvements made, 
by the lessee on the leased property, the portion of the term of the 
lease (excluding all periods for which the lease may subsequently be 
renewed, extended, or continued pursuant to an option or options 
exercisable by the lessee) remaining upon the completion of such 
building or other improvements is less than 60 percent of the estimated 
useful life of such building or other improvements; or
    (ii) In the case of any cost of acquiring the lease, less than 75 
percent of such cost is attributable to the portion of the term of the 
lease (excluding all periods for which the lease may be renewed, 
extended, or continued pursuant to an option or options exercisable by 
the lessee) remaining on the date of its acquisition.
    (2) The rules provided in subparagraph (1) of this paragraph shall 
not

[[Page 204]]

apply if the lessee establishes that, as of the close of the taxable 
year, it is more probable that the lease will not be renewed, extended, 
or continued than that the lease will be renewed, extended, or 
continued. In such case, the cost of improvements made on leased 
property or the cost of acquiring a lease shall be amortized over the 
remaining term of the lease without regard to any options exercisable by 
the lessee to renew, extend, or continue the lease. The probability test 
referred to in the first sentence of this subparagraph shall be 
applicable to each option period to which the lease may be renewed, 
extended, or continued. The establishment by a lessee as of the close of 
the taxable year that it is more probable that the lease will not be 
renewed, extended, or continued will ordinarily be effective as of the 
close of such taxable year and any subsequent taxable year, and the 
deduction for amortization will be based on the term of the lease 
without regard to any periods for which the lease may be renewed, 
extended, or continued pursuant to an option or options exercisable by 
the lessee. However, in appropriate cases, if the facts as of the close 
of any subsequent taxable year indicate that it is more probable that 
the lease will be renewed, extended, or continued, the deduction for 
amortization (or depreciation) shall, beginning with the first day of 
such subsequent taxable year, be determined by including in the 
remaining term of the lease all periods for which it is more probable 
that the lease will be renewed, extended, or continued.
    (3) If at any time the remaining term of the lease determined in 
accordance with section 178 and this section is equal to or of longer 
duration than the then estimated useful life of the improvements made on 
the leased property by the lessee, the cost of such improvements shall 
be depreciated over the estimated useful life of such improvements under 
the provisions of section 167 and the regulations thereunder.
    (4) For purposes of section 178(a)(1) and this section, the date on 
which the building erected or other improvements made are completed is 
the date on which the building or improvements are usable, whether or 
not used.
    (5)(i) For purposes of section 178(a)(2) and this section, the 
portion of the cost of acquiring a lease which is attributable to the 
term of the lease remaining on the date of its acquisition without 
regard to options exercisable by the lessee to renew, extend, or 
continue the lease shall be determined on the basis of the facts and 
circumstances of each case. In some cases, it may be appropriate to 
determine such portion of the cost of acquiring a lease by applying the 
principles used to measure the present value of an annuity. Where that 
method is used, such portion shall be determined by multiplying the cost 
of the lease by a fraction, the numerator comprised of a factor 
representing the present value of an annually recurring savings of $1 
per year for the period of the remaining term of the lease (without 
regard to options to renew, extend, or continue the lease) at an 
appropriate rate of interest (determined on the basis of all the facts 
and circumstances in each case), and the denominator comprised of a 
factor representing the present value of $1 per year for the period of 
the remaining term of the lease including the options to renew, extend, 
or continue the lease at an appropriate rate of interest.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. Lessee A acquires a lease with respect to unimproved 
property at a cost of $100,000 at which time there are 21 years 
remaining in the original term of the lease with two renewal options of 
21 years each. The lease provides for a uniform annual rental for the 
remaining term of the lease and the renewal periods. It has been 
determined that this is an appropriate case for the application of the 
principles used to measure the present value of an annuity. Assume that 
in this case the appropriate rate of interest is 5 percent. By applying 
the tables (Inwood) used to measure the present value of an annuity of 
$1 per year, the factor representing the present value of $1 per annum 
for 21 years at 5% is ascertained to be 12.821, and the factor 
representing the present value of $1 per annum for 63 years at 5% is 
19.075. The portion of the cost of the lease ($100,000) attributable to 
the remaining term of the original lease (21 years) is 67.21% or $67,210 
determined as follows:

12.821/19.075 or 67.21%.


[[Page 205]]


    (6) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. Lessee A constructs a building on land leased from lessor 
B. The construction is commenced on August 1, 1958, and is completed and 
placed in service on December 31, 1958, at which time A has 15 years 
remaining on his lease with an option to renew for an additional 20 
years. Lessee A computes his taxable income on a calendar year basis. 
Lessee A was not, on July 28, 1958, under a binding legal obligation to 
erect the building. The building has an estimated useful life of 30 
years. A is not related to B. Since the portion of the term of the lease 
(without regard to any renewals) remaining upon completion of the 
building (15 years) is less than 60 percent of the estimated useful life 
of the building (60 percent of 30 years, or 18 years), the term of the 
lease shall be treated as including the remaining portion of the 
original lease period and the renewal period, or 35 years. Since the 
estimated useful life of the building (30 years) is less than 35 years, 
the cost of the building shall, in accord with paragraph (b)(3) of this 
section, be depreciated under the provisions of section 167, over its 
estimated useful life. If, however, lessee A establishes, as of the 
close of the taxable year 1958, it is more probable that the lease will 
not be renewed than that it will be renewed, then in such case the 
remaining term of the lease shall be treated as including only the 15-
year period remaining in the original lease. Since this is less than the 
estimated useful life of the building, the remaining cost of the 
building would be amortized over such 15-year period under the 
provisions of section 162 and the regulations thereunder.
    Example 2. Assume the same facts as in Example 1, except that A has 
21 years remaining on his lease with an option to renew for an 
additional 10 years. Section 178(a) and paragraph (b)(1) of this section 
do not apply since the term of the lease remaining on the date of 
completion of the building (21 years) is not less than 60 percent of the 
estimated useful life of the building (60 percent of 30 years, or 18 
years).
    Example 3. Assume the same facts as in Example 1, except that A has 
no renewal option until July 1, 1961, when lessor B grants A an option 
to renew the lease for a 10-year period. Because there is no option to 
renew the lease, the term of the lease is, for the taxable years 1959 
and 1960 and for the first six months of the taxable year 1961, 
determined without regard to section 178(a). However, as of July 1, 
1961, the date the renewal option is granted, section 178(a) and 
paragraph (b)(1) of this section become applicable since the portion of 
the term of the lease remaining upon completion of the building (15 
years) was less than 60 percent of the estimated useful life of the 
building (60 percent of 30 years, or 18 years). As of July 1, 1961, the 
term of the lease shall be treated as including the remaining portion of 
the original lease period (12\1/2\ years) and the 10-year renewal 
period, or 22\1/2\ years, unless lessee A can establish that, as of the 
close of 1961, it is more probable that the lease will not be renewed 
than that it will be.
    Example 4. On January 1, 1959, lessee A pays $10,000 to acquire a 
lease for 20 years with two options exercisable by him to renew for 
periods of 5 years each. Of the total $10,000 cost to acquire the lease, 
$7,000 was paid for the original 20-year lease period and the balance of 
$3,000 was paid for the renewal options. Since the $7,000 cost of 
acquiring the initial lease is less than 75 percent of the $10,000 cost 
of the lease ($7,500), the term of the lease shall be treated as 
including the original lease period and the 2 renewal periods, or 30 
years. However, if lessee A establishes that, as of the close of the 
taxable year 1959, it is more probable that the lease will not be 
renewed than that it will be renewed, the term of the lease shall be 
treated as including only the original lease period, or 20 years.
    Example 5. Assume the same facts as in Example 4, except that the 
portion of the total cost ($10,000) paid for the 20-year original lease 
period is $8,000. Since the $8,000 cost of acquiring the original lease 
is not less than 75 percent of the $10,000 cost of the lease ($7,500), 
section 178(a) and paragraph (b)(1) of this section do not apply.

    (c) Application of section 178(a) where lessee gives notice to 
lessor of intention to exercise option. (1) If the lessee has given 
notice to the lessor of his intention to renew, extend, or continue a 
lease, the lessee shall, for purposes of applying the provisions of 
section 178(a) and paragraph (b)(1) of this section, take into account 
such renewal or extension in determining the portion of the term of the 
lease remaining upon the completion of the improvements or on the date 
of the acquisition of the lease.
    (2) The application of the provisions of this paragraph may be 
illustrated by the following examples:

    Example 1. Lessee A constructs a building on land leased from lessor 
B. The construction was commenced on September 1, 1958, and was 
completed and placed in service on December 31, 1958. Lessee A was not, 
on July 28, 1958, under a binding legal obligation to erect the 
building. A and B are not related. At the time the building was 
completed (December 31, 1958), lessee A had 3 years remaining on his 
lease with 2 options to renew for

[[Page 206]]

periods of 20 years each. The estimated useful life of the building is 
50 years. Prior to completion of the building, lessee A gives notice to 
lessor B of his intention to exercise the first 20-year option. 
Therefore, the portion of the term of the lease remaining on January 1, 
1959, shall be the 3 years remaining in the original lease period plus 
the 20-year renewal period, or 23 years. Since the term of the lease 
remaining upon completion of the building (23 years) is less than 60 
percent of the estimated useful life of the building (60 percent of 50 
years, or 30 years), the provisions of section 178(a) and paragraph 
(b)(1) of this section are applicable. Accordingly, the term of the 
lease shall be treated as including the aggregate of the remaining term 
of the original lease (23 years) and the second 20-year renewal period 
or 43 years, unless lessee A establishes that it is more probable that 
the lease will not be renewed, extended, or continued under the second 
20-year option than that it will be so renewed, extended, or continued 
under such option. If this is established by lessee A, then the term of 
the lease shall be treated as including only the remaining portion of 
the original lease period and the first 20-year renewal period, or 23 
years.
    Example 2. Assume the same facts as in Example 1, except that the 
estimated useful life of the building is 30 years. Since the term of the 
lease remaining upon completion of the building (23 years) is not less 
than 60 percent of the estimated life of the building (60 percent of 30 
years, or 18 years), the provisions of section 178(a) and paragraph 
(b)(1) of this section do not apply.
    Example 3. If in Examples 1 and (2, the lessee failed to give notice 
of his intention to exercise the renewal option, the renewal period 
would not be taken into account in computing the percentage requirements 
under section 178(a) and paragraph (b)(1) of this section. Thus, unless 
lessee A establishes the required probability, the provisions of section 
178(a) and paragraph (b)(1) of this section would apply in both examples 
since the term of the lease remaining upon completion of the building (3 
years) is less than 60 percent of the estimated useful life of the 
building in either example (60 percent of 50 years, or 30 years; 60 
percent of 30 years, or 18 years).

    (d) Application of section 178 where lessee is related to lessor. 
(1)(i) If the lessee and lessor are related persons within the meaning 
of section 178(b)(2) and Sec. 1.178-2 at any time during the taxable 
year, the lease shall be treated as including a period of not less 
duration than the remaining estimated useful life of improvements made 
by the lessee on leased property for purposes of determining the amount 
of deduction allowable to the lessee for such taxable year for 
depreciation or amortization in respect of any building erected or other 
improvements made on leased property. If the lessee and lessor cease to 
be related persons during any taxable year, then for the immediately 
following and subsequent taxable years during which they continue to be 
unrelated, the amount allowable to the lessee as a deduction shall be 
determined without reference to section 178(b) and in accordance with 
section 178(a) or section 178(c), whichever is applicable.
    (ii) Although the related lessee and lessor rule of section 178(b) 
and Sec. 1.178-2 does not apply in determining the period over which 
the cost of acquiring a lease may be amortized, the relationship between 
a lessee and lessor will be a significant factor in applying section 178 
(a) and (c) in cases in which the lease may be renewed, extended, or 
continued pursuant to an option or options exercisable by the lessee.
    (2) The application of the provisions of this paragraph may be 
illustrated by the following examples:

    Example 1. Lessee A constructs a building on land leased from lessor 
B. The construction was commenced on August 1, 1958, and was completed 
and put in service on December 31, 1958. Lessee A was not on July 28, 
1958, under a binding legal obligation to erect the building. On the 
completion date of the building, lessee A had 20 years remaining in his 
original lease period with an option to renew for an additional 20 
years. The building has an estimated useful life of 50 years. During the 
taxable years 1959 and 1960, A and B are related persons within the 
meaning of section 178(b)(2) and Sec. 1.178-2, but they are not related 
persons at any time during the taxable year 1961 or during any 
subsequent taxable year. Since A and B are related persons during the 
taxable years 1959 and 1960, the term of the lease shall, for each of 
those years, be treated as 50 years. Section 178(a) and paragraph (b)(1) 
of this section become applicable in the taxable year 1961 since A and B 
are not related persons at any time during that year and because the 
portion of the original lease period remaining at the time the building 
was completed (20 years) is less than 60 percent of the estimated useful 
life of the building (60 percent of 50 years, or 30 years). Thus, the 
term of the lease shall, beginning on January 1, 1961, be treated as 
including the remaining portion of the original lease period (18 years) 
and the renewal period (20 years), or 38 years, unless lessee A can 
establish that, as of the close of the taxable year 1961 or any 
subsequent taxable

[[Page 207]]

year, it is more probable that the lease will not be renewed than that 
it will be renewed.
    Example 2. Assume the same facts as in Example 1, except that the 
estimated useful life of the building is 30 years. During the taxable 
years 1959 and 1960, the term of the lease shall be treated as 30 years. 
For the taxable year 1961, however, neither section 178(a) nor section 
178(b) apply since the percentage requirement of section 178(a) and 
paragraph (b) of this section are not satisfied and A and B are not 
related persons within the meaning of section 178(b)(2) and Sec. 1.178-
2.

[T.D. 6520, 25 FR 13689, Dec. 24, 1960]



Sec. 1.178-2  Related lessee and lessor.

    (a) For purposes of section 178 and Sec. 1.178-1, a lessor and 
lessee shall be considered to be related persons if:
    (1) The lessor and lessee are members of an affiliated group, as 
defined in section 1504 and the regulations thereunder; or
    (2) The relationship between the lessor and lessee is one described 
in section 267(b), except that the phrase ``80 percent or more'' shall 
be substituted for the phrase ``more than 50 percent'' wherever such 
phrase appears in section 267(b).
    (b) In the application of section 267(b) for purposes of section 
178, the rules provided in section 267(c) shall apply, except that the 
family of an individual shall include only his spouse, ancestors, and 
lineal descendants. Thus, if the lessee is the brother or sister of the 
lessor, the lessee and lessor will not be considered to be related 
persons for purposes of section 178 and Sec. 1.178-1. If the lessor 
leases property to a corporation of which he owns 80 percent or more in 
value of the outstanding stock, the lessor and lessee shall be 
considered to be related persons. On the other hand, if the lessor 
leases property to a corporation of which he owns less than 80 percent 
in value of the outstanding stock and his brother owns the remaining 
stock, the lessor and lessee will not be considered to be related 
persons.
    (c) If a relationship described in section 267(b) exists 
independently of family status, the brother-sister exception does not 
apply. For example, if the lessor leases property to the fiduciary of a 
trust of which he is the grantor, the lessor and lessee will be 
considered to be related persons for purposes of section 178. This 
result obtains whether or not the fiduciary is the brother or sister of 
the lessor since the disqualifying relationship exists because of the 
grantor-fiduciary status and not because of family status.

[T.D. 6520, 25 FR 13691, Dec. 24, 1960]



Sec. 1.178-3  Reasonable certainty test.

    (a) In any case in which neither section 178 (a) nor (b) applies, 
the determination as to the amount of the deduction allowable to a 
lessee for any taxable year for depreciation or amortization in respect 
of any building erected, or other improvements made, on leased property, 
or in respect of any cost of acquiring a lease, shall be made with 
reference to the original term of the lease (excluding any period for 
which the lease may subsequently be renewed, extended, or continued 
pursuant to an option exercisable by the lessee) unless the lease has 
been renewed, extended, or continued, or the facts show with reasonable 
certainty that the lease will be renewed, extended, or continued. In a 
case in which the facts show with reasonable certainty that the lease 
will be renewed, extended, or continued, the term of the lease shall, 
beginning with the taxable year in which such reasonable certainty is 
shown, be treated as including the period or periods for which it is 
reasonably certain that the lease will be renewed, extended, or 
continued. If the lessee has given notice to the lessor of his intention 
to renew, extend, or continue a lease, the lease shall be considered as 
renewed, extended, or continued for the periods specified in the notice. 
See paragraph (c) of Sec. 1.178-1.
    (b) The reasonable certainty test is applicable to each option to 
which the lease is subject. Thus, in a case of two successive options, 
the facts in a particular taxable year may show with reasonable 
certainty that the lease will be renewed pursuant to an exercise of only 
the first option; and, beginning with such year, the term of the lease 
will be treated as including the first option, but not the second. If in 
a subsequent taxable year the facts show with reasonable certainty that 
the second option will also be exercised, the term of the lease shall, 
beginning with such subsequent taxable year, be treated as including 
both options. Although

[[Page 208]]

the related lessee and lessor rule of section 178(b) and paragraph (d) 
of Sec. 1.178-1 does not apply in determining the period over which the 
cost of acquiring a lease may be amortized, the relationship between the 
lessee and lessor will be a significant factor in determining whether 
the ``reasonable certainty'' rule of section 178(c) and this section 
applies.
    (c) The application of the provisions of this section may be 
illustrated by the following examples:

    Example 1. Corporation A leases land from lessor B for a period of 
30 years beginning with January 1, 1958. Corporation A and lessor B are 
not related persons. The lease provides that Corporation A will have two 
renewal options of 5 years each at the same annual rental as specified 
in the lease for the initial 30 years. Corporation A constructs a 
factory building on the leased land at a cost of $100,000. Corporation A 
was not, on July 28, 1958, under a binding legal obligation to erect the 
building. The construction was commenced on August 1, 1958, and was 
completed and placed in service on December 31, 1958. On January 1, 
1959, Corporation A has 29 years remaining in the initial term of the 
lease. The estimated useful life of the building on January 1, 1959, is 
40 years. The location of the leased property is particularly suitable 
for Corporation A's business and the annual rental of the property is 
lower than A would have to pay for other suitable property. No factors 
are present which establish that these conditions will not continue to 
exist beyond the initial term of the lease. Since the period remaining 
in the initial term of the lease on January 1, 1959 (29 years) is not 
less than 60 percent of the estimated useful life of the building (60 
percent of 40 years, or 24 years), the provisions of section 178(a) and 
paragraph (b)(1) of Sec. 1.178-1 do not apply, and since Corporation A 
and lessor B are not related, section 178(b) and paragraph (d) of Sec. 
1.178-1 do not apply. However, since the facts show with reasonable 
certainty that Corporation A will renew the lease for the period of the 
two options (10 years), the cost of the building shall be amortized over 
the term of the lease, including the two renewal options, or 39 years.
    Example 2. Assume the same facts as in Example 1, except that a term 
of 30 years is the longest period that lessor B is willing to lease the 
unimproved property; that there was no agreement that Corporation A will 
have any renewal options; and that any other location would be as 
suitable for Corporation A's business as the leased property. Since the 
facts do not show with reasonable certainty that the initial term of the 
lease will be renewed, extended, or continued, Corporation A shall 
amortize the cost of the building over the remaining term of the lease, 
or 29 years.

[T.D. 6520, 25 FR 13691, Dec. 24, 1960]



Sec. 1.179-0  Table of contents for section 179 expensing rules.

    This section lists captioned paragraphs contained in Sec. Sec. 
1.179-1 through 1.179-6.

      Sec. 1.179-1 Election to Expense Certain Depreciable Assets

    (a) In general.
    (b) Cost subject to expense.
    (c) Proration not required.
    (1) In general.
    (2) Example.
    (d) Partial business use.
    (1) In general.
    (2) Example.
    (3) Additional rules that may apply.
    (e) Change in use; recapture.
    (1) In general.
    (2) Predominant use.
    (3) Basis; application with section 1245.
    (4) Carryover of disallowed deduction.
    (5) Example.
    (f) Basis.
    (1) In general.
    (2) Special rules for partnerships and S corporations.
    (3) Special rules with respect to trusts and estates which are 
partners or S corporation shareholders.
    (g) Disallowance of the section 38 credit.
    (h) Partnerships and S corporations.
    (1) In general.
    (2) Example.
    (i) Leasing of section 179 property.
    (1) In general.
    (2) Noncorporate lessor.
    (j) Application of sections 263 and 263A.
    (k) Cross references.

   Sec. 1.179-2 Limitations on Amount Subject to Section 179 Election

    (a) In general.
    (b) Dollar limitation.
    (1) In general.
    (2) Excess section 179 property.
    (3) Application to partnerships.
    (i) In general.
    (ii) Example.
    (iii) Partner's share of section 179 expenses.
    (iv) Taxable year.
    (v) Example.
    (4) S corporations.
    (5) Joint returns.
    (i) In general.
    (ii) Joint returns filed after separate returns.
    (iii) Example.
    (6) Married individuals filing separately.
    (i) In general.

[[Page 209]]

    (ii) Example.
    (7) Component members of a controlled group.
    (i) In general.
    (ii) Statement to be filed.
    (iii) Revocation.
    (c) Taxable income limitation.
    (1) In general.
    (2) Application to partnerships and partners.
    (i) In general.
    (ii) Taxable year.
    (iii) Example.
    (iv) Taxable income of a partnership.
    (v) Partner's share of partnership taxable income.
    (3) S corporations and S corporation shareholders.
    (i) In general.
    (ii) Taxable income of an S corporation.
    (iii) Shareholder's share of S corporation taxable income.
    (4) Taxable income of a corporation other than an S corporation.
    (5) Ordering rule for certain circular problems.
    (i) In general.
    (ii) Example.
    (6) Active conduct by the taxpayer of a trade or business.
    (i) Trade or business.
    (ii) Active conduct.
    (iii) Example.
    (iv) Employees.
    (7) Joint returns.
    (i) In general.
    (ii) Joint returns filed after separate returns.
    (8) Married individuals filing separately.
    (d) Examples.

             Sec. 1.179-3 Carryover of Disallowed Deduction

    (a) In general.
    (b) Deduction of carryover of disallowed deduction.
    (1) In general.
    (2) Cross references.
    (c) Unused section 179 expense allowance.
    (d) Example.
    (e) Recordkeeping requirement and ordering rule.
    (f) Dispositions and other transfers of section 179 property.
    (1) In general.
    (2) Recapture under section 179(d)(10).
    (g) Special rules for partnerships and S corporations.
    (1) In general.
    (2) Basis adjustment.
    (3) Dispositions and other transfers of section 179 property by a 
partnership or an S corporation.
    (4) Example.
    (h) Special rules for partners and S corporation shareholders.
    (1) In general.
    (2) Dispositions and other transfers of a partner's interest in a 
partnership or a shareholder's interest in an S corporation.
    (3) Examples.

                        Sec. 1.179-4 Definitions

    (a) Section 179 property.
    (b) Section 38 property.
    (c) Purchase.
    (d) Cost.
    (e) Placed in service.
    (f) Controlled group of corporations and component member of 
controlled group.

            Sec. 1.179-5 Time and Manner of Making Election

    (a) Election.
    (b) Revocation.
    (c) Section 179 property placed in service by the taxpayer in a 
taxable year beginning after 2002 and before 2008.
    (d) Election or revocation must not be made in any other manner.

                     Sec. 1.179-6 Effective dates.

    (a) In general.
    (b) Section 179 property placed in service by the taxpayer in a 
taxable year beginning after 2002 and before 2008.
    (c) Application of Sec. 1.179-5(d).

[T.D. 8455, 57 FR 61316, Dec. 24, 1992, as amended by T.D. 9146, 69 FR 
46983, Aug. 4, 2004; T.D. 9209, 70 FR 40191, July 13, 2005]



Sec. 1.179-1  Election to expense certain depreciable assets.

    (a) In general. Section 179(a) allows a taxpayer to elect to expense 
the cost (as defined in Sec. 1.179-4(d)), or a portion of the cost, of 
section 179 property (as defined in Sec. 1.179-4(a)) for the taxable 
year in which the property is placed in service (as defined in Sec. 
1.179-4(e)). The election is not available for trusts, estates, and 
certain noncorporate lessors. See paragraph (i)(2) of this section for 
rules concerning noncorporate lessors. However, section 179(b) provides 
certain limitations on the amount that a taxpayer may elect to expense 
in any one taxable year. See Sec. Sec. 1.179-2 and 1.179-3 for rules 
relating to the dollar and taxable income limitations and the carryover 
of disallowed deduction rules. For rules describing the time and manner 
of making an election under section 179, see Sec. 1.179-5. For the 
effective date, see Sec. 1.179-6.
    (b) Cost subject to expense. The expense deduction under section 179 
is allowed for the entire cost or a portion of the cost of one or more 
items of section 179 property. This expense deduction is

[[Page 210]]

subject to the limitations of section 179(b) and Sec. 1.179-2. The 
taxpayer may select the properties that are subject to the election as 
well as the portion of each property's cost to expense.
    (c) Proration not required--(1) In general. The expense deduction 
under section 179 is determined without any proration based on--
    (i) The period of time the section 179 property has been in service 
during the taxable year; or
    (ii) The length of the taxable year in which the property is placed 
in service.
    (2) Example. The following example illustrates the provisions of 
paragraph (c)(1) of this section.

    Example. On December 1, 1991, X, a calendar-year corporation, 
purchases and places in service section 179 property costing $20,000. 
For the taxable year ending December 31, 1991, X may elect to claim a 
section 179 expense deduction on the property (subject to the 
limitations imposed under section 179(b)) without proration of its cost 
for the number of days in 1991 during which the property was in service.

    (d) Partial business use--(1) In general. If a taxpayer uses section 
179 property for trade or business as well as other purposes, the 
portion of the cost of the property attributable to the trade or 
business use is eligible for expensing under section 179 provided that 
more than 50 percent of the property's use in the taxable year is for 
trade or business purposes. The limitations of section179(b) and Sec. 
1.179-2 are applied to the portion of the cost attributable to the trade 
or business use.
    (2) Example. The following example illustrates the provisions of 
paragraph (d)(1) of this section.

    Example. A purchases section 179 property costing $10,000 in 1991 
for which 80 percent of its use will be in A's trade or business. The 
cost of the property adjusted to reflect the business use of the 
property is $8,000 (80 percent x $10,000). Thus, A may elect to expense 
up to $8,000 of the cost of the property (subject to the limitations 
imposed under section 179(b) and Sec. 1.179-2).

    (3) Additional rules that may apply. If a section 179 election is 
made for ``listed property'' within the meaning of section 280F(d)(4) 
and there is personal use of the property, section 280F(d)(1), which 
provides rules that coordinate section 179 with the section 280F 
limitation on the amount of depreciation, may apply. If section 179 
property is no longer predominantly used in the taxpayer's trade or 
business, paragraphs (e) (1) through (4) of this section, relating to 
recapture of the section 179 deduction, may apply.
    (e) Change in use; recapture--(1) In general. If a taxpayer's 
section 179 property is not used predominantly in a trade or business of 
the taxpayer at any time before the end of the property's recovery 
period, the taxpayer must recapture in the taxable year in which the 
section 179 property is not used predominantly in a trade or business 
any benefit derived from expensing such property. The benefit derived 
from expensing the property is equal to the excess of the amount 
expensed under this section over the total amount that would have been 
allowable for prior taxable years and the taxable year of recapture as a 
deduction under section 168 (had section 179 not been elected) for the 
portion of the cost of the property to which the expensing relates 
(regardless of whether such excess reduced the taxpayer's tax 
liability). For purposes of the preceding sentence (i) the ``amount 
expensed under this section'' shall not include any amount that was not 
allowed as a deduction to a taxpayer because the taxpayer's aggregate 
amount of allowable section 179 expenses exceeded the section 179(b) 
dollar limitation, and (ii) in the case of an individual who does not 
elect to itemize deductions under section 63(g) in the taxable year of 
recapture, the amount allowable as a deduction under section 168 in the 
taxable year of recapture shall be determined by treating property used 
in the production of income other than rents or royalties as being 
property used for personal purposes. The amount to be recaptured shall 
be treated as ordinary income for the taxable year in which the property 
is no longer used predominantly in a trade or business of the taxpayer. 
For taxable years following the year of recapture, the taxpayer's 
deductions under section 1688(a) shall be determined as if no section 
179 election with respect to the property had been made. However, see 
section 280F(d)(1) relating to the coordination of section 179 with the 
limitation on

[[Page 211]]

the amount of depreciation for luxury automobiles and where certain 
property is used for personal purposes. If the recapture rules of both 
section 280F(b)(2) and this paragraph (e)(1) apply to an item of section 
179 property, the amount of recapture for such property shall be 
determined only under the rules of section 280F(b)(2).
    (2) Predominant use. Property will be treated as not used 
predominantly in a trade or business of the taxpayer if 50 percent or 
more of the use of such property during any taxable year within the 
recapture period is for a use other than in a trade or business of the 
taxpayer. If during any taxable year of the recapture period the 
taxpayer disposes of the property (other than in a disposition to which 
section 1245(a) applies) or ceases to use the property in a trade or 
business in a manner that had the taxpayer claimed a credit under 
section 38 for such property such disposition or cessation in use would 
cause recapture under section 47, the property will be treated as not 
used in a trade or business of the taxpayer. However, for purposes of 
applying the recapture rules of section 47 pursuant to the preceding 
sentence, converting the use of the property from use in trade or 
business to use in the production of income will be treated as a 
conversion to personal use.
    (3) Basis; application with section 1245. The basis of property with 
respect to which there is recapture under paragraph (e)(1) of this 
section shall be increased immediately before the event resulting in 
such recapture by the amount recaptured. If section 1245(a) applies to a 
disposition of property, there is no recapture under paragraph (e)(1) of 
this section.
    (4) Carryover of disallowed deduction. See Sec. 1.179-3 for rules 
on applying the recapture provisions of this paragraph (e) when a 
taxpayer has a carryover of disallowed deduction.
    (5) Example. The following example illustrates the provisions of 
paragraphs (e)(1) through (e)(4) of this section.

    Example. A, a calendar-year taxpayer, purchases and places in 
service on January 1, 1991, section 179 property costing $15,000. The 
property is 5-year property for section 168 purposes and is the only 
item of depreciable property placed in service by A during 1991. A 
properly elects to expense $10,000 of the cost and elects under section 
168(b)(5) to depreciate the remaining cost under the straight-line 
method. On January 1, 1992, A converts the property from use in A's 
business to use for the production of income, and A uses the property in 
the latter capacity for the entire year. A elects to itemize deductions 
for 1992. Because the property was not predominantly used in A's trade 
or business in 1992, A must recapture any benefit derived from expensing 
the property under section 179. Had A not elected to expense the $10,000 
in 1991, A would have been entitled to deduct, under section 168, 10 
percent of the $10,000 in 1991, and 20 percent of the $10,000 in 1992. 
Therefore, A must include $7,000 in ordinary income for the 1992 taxable 
year, the excess of $10,000 (the section 179 expense amount) over $3,000 
(30 percent of $10,000).

    (f) Basis--(1) In general. A taxpayer who elects to expense under 
section 179 must reduce the depreciable basis of the section 179 
property by the amount of the section 179 expense deduction.
    (2) Special rules for partnerships and S corporations. Generally, 
the basis of a partnership or S corporation's section 179 property must 
be reduced to reflect the amount of section 179 expense elected by the 
partnership or S corporation. This reduction must be made in the basis 
of partnership or S corporation property even if the limitations of 
section 179(b) and Sec. 1.179-2 prevent a partner in a partnership or a 
shareholder in an S corporation from deducting all or a portion of the 
amount of the section 179 expense allocated by the partnership or S 
corporation. See Sec. 1.179-3 for rules on applying the basis 
provisions of this paragraph (f) when a person has a carryover of 
disallowed deduction.
    (3) Special rules with respect to trusts and estates which are 
partners or S corporation shareholders. Since the section 179 election 
is not available for trusts or estates, a partner or S corporation 
shareholder that is a trust or estate may not deduct its allocable share 
of the section 179 expense elected by the partnership or S corporation. 
The partnership or S corporation's basis in section 179 property shall 
not be reduced to reflect any portion of the section 179 expense that is 
allocable to the trust or estate. Accordingly, the partnership or S 
corporation may claim a depreciation deduction under section 168 or a

[[Page 212]]

section 38 credit (if available) with respect to any depreciable basis 
resulting from the trust or estate's inability to claim its allocable 
portion of the section 179 expense.
    (g) Disallowance of the section 38 credit. If a taxpayer elects to 
expense under section 179, no section 38 credit is allowable for the 
portion of the cost expensed. In addition, no section 38 credit shall be 
allowed under section 48(d) to a lessee of property for the portion of 
the cost of the property that the lessor expensed under section 179.
    (h) Partnerships and S corporations--(1) In general. In the case of 
property purchased and placed in service by a partnership or an S 
corporation, the determination of whether the property is section 179 
property is made at the partnership or S corporation level. The election 
to expense the cost of section 179 property is made by the partnership 
or the S corporation. See sections 703(b), 1363(c), 6221, 6231(a)(3), 
6241, and 6245.
    (2) Example. The following example illustrates the provisions of 
paragraph (h)(1) of this section.

    Example. A owns certain residential rental property as an 
investment. A and others form ABC partnership whose function is to rent 
and manage such property. A and ABC partnership file their income tax 
returns on a calendar-year basis. In 1991, ABC partnership purchases and 
places in service office furniture costing $20,000 to be used in the 
active conduct of ABC's business. Although the office furniture is used 
with respect to an investment activity of A, the furniture is being used 
in the active conduct of ABC's trade or business. Therefore, because the 
determination of whether property is section 179 property is made at the 
partnership level, the office furniture is section 179 property and ABC 
may elect to expense a portion of its cost under section 179.

    (i) Leasing of section 179 property--(1) In general. A lessor of 
section 179 property who is treated as the owner of the property for 
Federal tax purposes will be entitled to the section 179 expense 
deduction if the requirements of section 179 and the regulations 
thereunder are met. These requirements will not be met if the lessor 
merely holds the property for the production of income. For certain 
leases entered into prior to January 1, 1984, the safe harbor provisions 
of section 168(f)(8) apply in determining whether an agreement is 
treated as a lease for Federal tax purposes.
    (2) Noncorporate lessor. In determining the class of taxpayers 
(other than an estate or trust) for which section 179 is applicable, 
section 179(d)(5) provides that if a taxpayer is a noncorporate lessor 
(i.e., a person who is not a corporation and is a lessor), the taxpayer 
shall not be entitled to claim a section 179 expense for section 179 
property purchased and leased by the taxpayer unless the taxpayer has 
satisfied all of the requirements of section 179(d)(5) (A) or (B).
    (j) Application of sections 263 and 263A. Under section 
263(a)(1)(G), expenditures for which a deduction is allowed under 
section 179 and this section are excluded from capitalization under 
section 263(a). Under this paragraph (j), amounts allowed as a deduction 
under section 179 and this section are excluded from the application of 
the uniform capitalization rules of section 263A.
    (k) Cross references. See section 453(i) and the regulations 
thereunder with respect to installment sales of section 179 property. 
See section 1033(g)(3) and the regulations thereunder relating to 
condemnation of outdoor advertising displays. See section 1245(a) and 
the regulations thereunder with respect to recapture rules for section 
179 property.

[T.D. 8121, 52 FR 410, Jan. 6, 1987, as amended by T.D. 8455, 57 FR 
61316, Dec. 24, 1992]



Sec. 1.179-2  Limitations on amount subject to section 179 election.

    (a) In general. Sections 179(b) (1) and (2) limit the aggregate cost 
of section 179 property that a taxpayer may elect to expense under 
section 179 for any one taxable year (dollar limitation). See paragraph 
(b) of this section. Section 179(b)(3)(A) limits the aggregate cost of 
section 179 property that a taxpayer may deduct in any taxable year 
(taxable income limitation). See paragraph (c) of this section. Any cost 
that is elected to be expensed but that is not currently deductible 
because of the taxable income limitation may be carried forward to the 
next taxable year (carryover of disallowed deduction). See Sec. 1.179-3 
for rules relating to carryovers of disallowed deductions. See also 
sections 280F(a), (b), and (d)(1)

[[Page 213]]

relating to the coordination of section 179 with the limitations on the 
amount of depreciation for luxury automobiles and other listed property. 
The dollar and taxable income limitations apply to each taxpayer and not 
to each trade or business in which the taxpayer has an interest.
    (b) Dollar limitation--(1) In general. The aggregate cost of section 
179 property that a taxpayer may elect to expense under section 179 for 
any taxable year beginning in 2003 and thereafter is $25,000 ($100,000 
in the case of taxable years beginning after 2002 and before 2008 under 
section 179(b)(1), indexed annually for inflation under section 
179(b)(5) for taxable years beginning after 2003 and before 2008), 
reduced (but not below zero) by the amount of any excess section 179 
property (described in paragraph (b)(2) of this section) placed in 
service during the taxable year.
    (2) Excess section 179 property. The amount of any excess section 
179 property for a taxable year equals the excess (if any) of--
    (i) The cost of section 179 property placed in service by the 
taxpayer in the taxable year; over
    (ii) $200,000 ($400,000 in the case of taxable years beginning after 
2002 and before 2008 under section 179(b)(2), indexed annually for 
inflation under section 179(b)(5) for taxable years beginning after 2003 
and before 2008).
    (3) Application to partnerships--(i) In general. The dollar 
limitation of this paragraph (b) applies to the partnership as well as 
to each partner. In applying the dollar limitation to a taxpayer that is 
a partner in one or more partnerships, the partner's share of section 
179 expenses allocated to the partner from each partnership is 
aggregated with any nonpartnership section 179 expenses of the taxpayer 
for the taxable year. However, in determining the excess section 179 
property placed in service by a partner in a taxable year, the cost of 
section 179 property placed in service by the partnership is not 
attributed to any partner.
    (ii) Example. The following example illustrates the provisions of 
paragraph (b)(3)(i) of this section.

    Example. During 1991, CD, a calendar-year partnership, purchases and 
places in service section 179 property costing $150,000 and elects under 
section 179(c) and Sec. 1.179-5 to expense $10,000 of the cost of that 
property. CD properly allocates to C, a calendar-year taxpayer and a 
partner in CD, $5,000 of section 179 expenses (C's distributive share of 
CD's section 179 expenses for 1991). In applying the dollar limitation 
to C for 1991, C must include the $5,000 of section 179 expenses 
allocated from CD. However, in determining the amount of any excess 
section 179 property C placed in service during 1991, C does not include 
any of the cost of section 179 property placed in service by CD, 
including the $5,000 of cost represented by the $5,000 of section 179 
expenses allocated to C by the partnership.

    (iii) Partner's share of section 179 expenses. Section 704 and the 
regulations thereunder govern the determination of a partner's share of 
a partnership's section 179 expenses for any taxable year. However, no 
allocation among partners of the section 179 expenses may be modified 
after the due date of the partnership return (without regard to 
extensions of time) for the taxable year for which the election under 
section 179 is made.
    (iv) Taxable year. If the taxable years of a partner and the 
partnership do not coincide, then for purposes of section 179, the 
amount of the partnership's section 179 expenses attributable to a 
partner for a taxable year is determined under section 706 and the 
regulations thereunder (generally the partner's distributive share of 
partnership section 179 expenses for the partnership year that ends with 
or within the partner's taxable year).
    (v) Example. The following example illustrates the provisions of 
paragraph (b)(3)(iv) of this section.

    Example. AB partnership has a taxable year ending January 31. A, a 
partner of AB, has a taxable year ending December 31. AB purchases and 
places in service section 179 property on March 10, 1991, and elects to 
expense a portion of the cost of that property under section 179. Under 
section 706 and Sec. 1.706-1(a)(1), A will be unable to claim A's 
distributive share of any of AB's section 179 expenses attributable to 
the property placed in service on March 10, 1991, until A's taxable year 
ending December 31, 1992.

    (4) S Corporations. Rules similar to those contained in paragraph 
(b)(3) of this section apply in the case of S corporations (as defined 
in section 1361(a))

[[Page 214]]

and their shareholders. Each shareholder's share of the section 179 
expenses of an S corporation is determined under section 1366.
    (5) Joint returns--(i) In General. A husband and wife who file a 
joint income tax return under section 6013(a) are treated as one 
taxpayer in determining the amount of the dollar limitation under 
paragraph (b)(1) of this section, regardless of which spouse purchased 
the property or placed it in service.
    (ii) Joint returns filed after separate returns. In the case of a 
husband and wife who elect under section 6013(b) to file a joint income 
tax return for a taxable year after the time prescribed by law for 
filing the return for such taxable year has expired, the dollar 
limitation under paragraph (b)(1) of this section is the lesser of--
    (A) The dollar limitation (as determined under paragraph (b)(5)(i) 
of this section); or
    (B) The aggregate cost of section 179 property elected to be 
expensed by the husband and wife on their separate returns.
    (iii) Example. The following example illustrates the provisions of 
paragraph (b)(5)(ii) of this section.

    Example. During 1991, Mr. and Mrs. B, both calendar-year taxpayers, 
purchase and place in service section 179 property costing $100,000. On 
their separate returns for 1991, Mr. B elects to expense $3,000 of 
section 179 property as an expense and Mrs. B elects to expense $4,000. 
After the due date of the return they elect under section 6013(b) to 
file a joint income tax return for 1991. The dollar limitation for their 
joint income tax return is $7,000, the lesser of the dollar limitation 
($10,000) or the aggregate cost elected to be expensed under section 179 
on their separate returns ($3,000 elected by Mr. B plus $4,000 elected 
by Mrs. B, or $7,000).

    (6) Married individuals filing separately--(i) In general. In the 
case of an individual who is married but files a separate income tax 
return for a taxable year, the dollar limitation of this paragraph (b) 
for such taxable year is the amount that would be determined under 
paragraph (b)(5)(i) of this section if the individual filed a joint 
income tax return under section 6013(a) multiplied by either the 
percentage elected by the individual under this paragraph (b)(6) or 50 
percent. The election in the preceding sentence is made in accordance 
with the requirements of section 179(c) and Sec. 1.179-5. However, the 
amount determined under paragraph (b)(5)(i) of this section must be 
multiplied by 50 percent if either the individual or the individual's 
spouse does not elect a percentage under this paragraph (b)(6) or the 
sum of the percentages elected by the individual and the individual's 
spouse does not equal 100 percent. For purposes of this paragraph 
(b)(6), marital status is determined under section 7703 and the 
regulations thereunder.
    (ii) Example. The following example illustrates the provisions of 
paragraph (b)(6)(i) of this section.

    Example. Mr. and Mrs. D, both calendar-year taxpayers, file separate 
income tax returns for 1991. During 1991, Mr. D places $195,000 of 
section 179 property in service and Mrs. D places $9,000 of section 179 
property in service. Neither of them elects a percentage under paragraph 
(b)(6)(i) of this section. The 1991 dollar limitation for both Mr. D and 
Mrs. D is determined by multiplying by 50 percent the dollar limitation 
that would apply had they filed a joint income tax return. Had Mr. and 
Mrs. D filed a joint return for 1991, the dollar limitation would have 
been $6,000, $10,000 reduced by the excess section 179 property they 
placed in service during 1991 ($195,000 placed in service by Mr. D plus 
$9,000 placed in service by Mrs. D less $200,000, or $4,000). Thus, the 
1991 dollar limitation for Mr. and Mrs. D is $3,000 each ($6,000 
multiplied by 50 percent).

    (7) Component members of a controlled group--(i) In general. 
Component members of a controlled group (as defined in Sec. 1.179-4(f)) 
on December 31 are treated as one taxpayer in applying the dollar 
limitation of sections 179(b) (1) and (2) and this paragraph (b). The 
expense deduction may be taken by any one component member or allocated 
(for the taxable year of each member that includes that December 31) 
among the several members in any manner. Any allocation of the expense 
deduction must be pursuant to an allocation by the common parent 
corporation if a consolidated return is filed for all component members 
of the group, or in accordance with an agreement entered into by the 
members of the group if

[[Page 215]]

separate returns are filed. If a consolidated return is filed by some 
component members of the group and separate returns are filed by other 
component members, the common parent of the group filing the 
consolidated return must enter into an agreement with those members that 
do not join in filing the consolidated return allocating the amount 
between the group filing the consolidated return and the other component 
members of the controlled group that do not join in filing the 
consolidated return. The amount of the expense allocated to any 
component member, however, may not exceed the cost of section 179 
property actually purchased and placed in service by the member in the 
taxable year. If the component members have different taxable years, the 
term taxable year in sections 179(b) (1) and (2) means the taxable year 
of the member whose taxable year begins on the earliest date.
    (ii) Statement to be filed. If a consolidated return is filed, the 
common parent corporation must file a separate statement attached to the 
income tax return on which the election is made to claim an expense 
deduction under section 179. See Sec. 1.179-5. If separate returns are 
filed by some or all component members of the group, each component 
member not included in a consolidated return must file a separate 
statement attached to the income tax return on which an election is made 
to claim a deduction under section 179. The statement must include the 
name, address, employer identification number, and the taxable year of 
each component member of the controlled group, a copy of the allocation 
agreement signed by persons duly authorized to act on behalf of the 
component members, and a description of the manner in which the 
deduction under section 179 has been divided among the component 
members.
    (iii) Revocation. If a consolidated return is filed for all 
component members of the group, an allocation among such members of the 
expense deduction under section 179 may not be revoked after the due 
date of the return (including extensions of time) of the common parent 
corporation for the taxable year for which an election to take an 
expense deduction is made. If some or all of the component members of 
the controlled group file separate returns for taxable years including a 
particular December 31 for which an election to take the expense 
deduction is made, the allocation as to all members of the group may not 
be revoked after the due date of the return (including extensions of 
time) of the component member of the controlled group whose taxable year 
that includes such December 31 ends on the latest date.
    (c) Taxable income limitation--(1) In general. The aggregate cost of 
section 179 property elected to be expensed under section 179 that may 
be deducted for any taxable year may not exceed the aggregate amount of 
taxable income of the taxpayer for such taxable year that is derived 
from the active conduct by the taxpayer of any trade or business during 
the taxable year. For purposes of section 179(b)(3) and this paragraph 
(c), the aggregate amount of taxable income derived from the active 
conduct by an individual, a partnership, or an S corporation of any 
trade or business is computed by aggregating the net income (or loss) 
from all of the trades or businesses actively conducted by the 
individual, partnership, or S corporation during the taxable year. Items 
of income that are derived from the active conduct of a trade or 
business include section 1231 gains (or losses) from the trade or 
business and interest from working capital of the trade or business. 
Taxable income derived from the active conduct of a trade or business is 
computed without regard to the deduction allowable under section 179, 
any section 164(f) deduction, any net operating loss carryback or 
carryforward, and deductions suspended under any section of the Code. 
See paragraph (c)(6) of this section for rules on determining whether a 
taxpayer is engaged in the active conduct of a trade or business for 
this purpose.
    (2) Application to partnerships and partners--(i) In general. The 
taxable income limitation of this paragraph (c) applies to the 
partnership as well as to each partner. Thus, the partnership may not 
allocate to its partners as a section 179 expense deduction for any 
taxable year more than the partnership's taxable income limitation for

[[Page 216]]

that taxable year, and a partner may not deduct as a section 179 expense 
deduction for any taxable year more than the partner's taxable income 
limitation for that taxable year.
    (ii) Taxable year. If the taxable year of a partner and the 
partnership do not coincide, then for purposes of section 179, the 
amount of the partnership's taxable income attributable to a partner for 
a taxable year is determined under section 706 and the regulations 
thereunder (generally the partner's distributive share of partnership 
taxable income for the partnership year that ends with or within the 
partner's taxable year).
    (iii) Example. The following example illustrates the provisions of 
paragraph (c)(2)(ii) of this section.

    Example. AB partnership has a taxable year ending January 31. A, a 
partner of AB, has a taxable year ending December 31. For AB's taxable 
year ending January 31, 1992, AB has taxable income from the active 
conduct of its trade or business of $100,000, $90,000 of which was 
earned during 1991. Under section 706 and Sec. 1.706-1(a)(1), A 
includes A's entire share of partnership taxable income in computing A's 
taxable income limitation for A's taxable year ending December 31, 1992.

    (iv) Taxable income of a partnership. The taxable income (or loss) 
derived from the active conduct by a partnership of any trade or 
business is computed by aggregating the net income (or loss) from all of 
the trades or businesses actively conducted by the partnership during 
the taxable year. The net income (or loss) from a trade or business 
actively conducted by the partnership is determined by taking into 
account the aggregate amount of the partnership's items described in 
section 702(a) (other than credits, tax-exempt income, and guaranteed 
payments under section 707(c)) derived from that trade or business. For 
purposes of determining the aggregate amount of partnership items, 
deductions and losses are treated as negative income. Any limitation on 
the amount of a partnership item described in section 702(a) which may 
be taken into account for purposes of computing the taxable income of a 
partner shall be disregarded in computing the taxable income of the 
partnership.
    (v) Partner's share of partnership taxable income. A taxpayer who is 
a partner in a partnership and is engaged in the active conduct of at 
least one of the partnership's trades or businesses includes as taxable 
income derived from the active conduct of a trade or business the amount 
of the taxpayer's allocable share of taxable income derived from the 
active conduct by the partnership of any trade or business (as 
determined under paragraph (c)(2)(iv) of this section).
    (3) S corporations and S corporation shareholders--(i) In general. 
Rules similar to those contained in paragraphs (c)(2) (i) and (ii) of 
this section apply in the case of S corporations (as defined in section 
1361(a)) and their shareholders. Each shareholder's share of the taxable 
income of an S corporation is determined under section 1366.
    (ii) Taxable income of an S corporation. The taxable income (or 
loss) derived from the active conduct by an S corporation of any trade 
or business is computed by aggregating the net income (or loss) from all 
of the trades or businesses actively conducted by the S corporation 
during the taxable year. The net income (or loss) from a trade or 
business actively conducted by an S corporation is determined by taking 
into account the aggregate amount of the S corporation's items described 
in section 1366(a) (other than credits, tax-exempt income, and 
deductions for compensation paid to an S corporation's shareholder-
employees) derived from that trade or business. For purposes of 
determining the aggregate amount of S corporation items, deductions and 
losses are treated as negative income. Any limitation on the amount of 
an S corporation item described in section 1366(a) which may be taken 
into account for purposes of computing the taxable income of a 
shareholder shall be disregarded in computing the taxable income of the 
S corporation.
    (iii) Shareholder's share of S corporation taxable income. Rules 
similar to those contained in paragraph (c)(2)(v) and (c)(6)(ii) of this 
section apply to a taxpayer who is a shareholder in an S corporation and 
is engaged in the active conduct of the S corporation's trades or 
businesses.

[[Page 217]]

    (4) Taxable income of a corporation other than an S corporation. The 
aggregate amount of taxable income derived from the active conduct by a 
corporation other than an S corporation of any trade or business is the 
amount of the corporation's taxable income before deducting its net 
operating loss deduction and special deductions (as reported on the 
corporation's income tax return), adjusted to reflect those items of 
income or deduction included in that amount that were not derived by the 
corporation from a trade or business actively conducted by the 
corporation during the taxable year.
    (5) Ordering rule for certain circular problems--(i) In general. A 
taxpayer who elects to expense the cost of section 179 property (the 
deduction of which is subject to the taxable income limitation) also may 
have to apply another Internal Revenue Code section that has a 
limitation based on the taxpayer's taxable income. Except as provided in 
paragraph (c)(1) of this section, this section provides rules for 
applying the taxable income limitation under section 179 in such a case. 
First, taxable income is computed for the other section of the Internal 
Revenue Code. In computing the taxable income of the taxpayer for the 
other section of the Internal Revenue Code, the taxpayer's section 179 
deduction is computed by assuming that the taxpayer's taxable income is 
determined without regard to the deduction under the other Internal 
Revenue Code section. Next, after reducing taxable income by the amount 
of the section 179 deduction so computed, a hypothetical amount of 
deduction is determined for the other section of the Internal Revenue 
Code. The taxable income limitation of the taxpayer under section 
179(b)(3) and this paragraph (c) then is computed by including that 
hypothetical amount in determining taxable income.
    (ii) Example. The following example illustrates the ordering rule 
described in paragraph (c)(5)(i) of this section.

    Example. X, a calendar-year corporation, elects to expense $10,000 
of the cost of section 179 property purchased and placed in service 
during 1991. Assume X's dollar limitation is $10,000. X also gives a 
charitable contribution of $5,000 during the taxable year. X's taxable 
income for purposes of both sections 179 and 170(b)(2), but without 
regard to any deduction allowable under either section 179 or section 
170, is $11,000. In determining X's taxable income limitation under 
section 179(b)(3) and this paragraph (c), X must first compute its 
section 170 deduction. However, section 170(b)(2) limits X's charitable 
contribution to 10 percent of its taxable income determined by taking 
into account its section 179 deduction. Paragraph (c)(5)(i) of this 
section provides that in determining X's section 179 deduction for 1991, 
X first computes a hypothetical section 170 deduction by assuming that 
its section 179 deduction is not affected by the section 170 deduction. 
Thus, in computing X's hypothetical section 170 deduction, X's taxable 
income limitation under section 179 is $11,000 and its section 179 
deduction is $10,000. X's hypothetical section 170 deduction is $100 (10 
percent of $1,000 ($11,000 less $10,000 section 179 deduction)). X's 
taxable income limitation for section 179 purposes is then computed by 
deducting the hypothetical charitable contribution of $100 for 1991. 
Thus, X's section 179 taxable income limitation is $10,900 ($11,000 less 
hypothetical $100 section 170 deduction), and its section 179 deduction 
for 1991 is $10,000. X's section 179 deduction so calculated applies for 
all purposes of the Code, including the computation of its actual 
section 170 deduction.

    (6) Active conduct by the taxpayer of a trade or business--(i) Trade 
or business. For purposes of this section and Sec. 1.179-4(a), the term 
trade or business has the same meaning as in section 162 and the 
regulations thereunder. Thus, property held merely for the production of 
income or used in an activity not engaged in for profit (as described in 
section 183) does not qualify as section 179 property and taxable income 
derived from property held for the production of income or from an 
activity not engaged in for profit is not taken into account in 
determining the taxable income limitation.
    (ii) Active conduct. For purposes of this section, the determination 
of whether a trade or business is actively conducted by the taxpayer is 
to be made from all the facts and circumstances and is to be applied in 
light of the purpose of the active conduct requirement of section 
179(b)(3)(A). In the context of section 179, the purpose of the active 
conduct requirement is to prevent a passive investor in a trade or 
business from deducting section 179 expenses against taxable income 
derived from that trade or business. Consistent with this purpose, a 
taxpayer generally is considered to actively conduct a

[[Page 218]]

trade or business if the taxpayer meaningfully participates in the 
management or operations of the trade or business. Generally, a partner 
is considered to actively conduct a trade or business of the partnership 
if the partner meaningfully participates in the management or operations 
of the trade or business. A mere passive investor in a trade or business 
does not actively conduct the trade or business.
    (iii) Example. The following example illustrates the provisions of 
paragraph (c)(6)(ii) of this section.

    Example. A owns a salon as a sole proprietorship and employs B to 
operate it. A periodically meets with B to review developments relating 
to the business. A also approves the salon's annual budget that is 
prepared by B. B performs all the necessary operating functions, 
including hiring beauticians, acquiring the necessary beauty supplies, 
and writing the checks to pay all bills and the beauticians' salaries. 
In 1991, B purchased, as provided for in the salon's annual budget, 
equipment costing $9,500 for use in the active conduct of the salon. 
There were no other purchases of section 179 property during 1991. A's 
net income from the salon, before any section 179 deduction, totaled 
$8,000. A also is a partner in PRS, a calendar-year partnership, which 
owns a grocery store. C, a partner in PRS, runs the grocery store for 
the partnership, making all the management and operating decisions. PRS 
did not purchase any section 179 property during 1991. A's allocable 
share of partnership net income was $6,000. Based on the facts and 
circumstances, A meaningfully participates in the management of the 
salon. However, A does not meaningfully participate in the management or 
operations of the trade or business of PRS. Under section 179(b)(3)(A) 
and this paragraph (c), A's aggregate taxable income derived from the 
active conduct by A of any trade or business is $8,000, the net income 
from the salon.

    (iv) Employees. For purposes of this section, employees are 
considered to be engaged in the active conduct of the trade or business 
of their employment. Thus, wages, salaries, tips, and other compensation 
(not reduced by unreimbursed employee business expenses) derived by a 
taxpayer as an employee are included in the aggregate amount of taxable 
income of the taxpayer under paragraph (c)(1) of this section.
    (7) Joint returns--(i) In general. The taxable income limitation of 
this paragraph (c) is applied to a husband and wife who file a joint 
income tax return under section 6013(a) by aggregating the taxable 
income of each spouse (as determined under paragraph (c)(1) of this 
section).
    (ii) Joint returns filed after separate returns. In the case of a 
husband and wife who elect under section 6013(b) to file a joint income 
tax return for a taxable year after the time prescribed by law for 
filing the return for such taxable year, the taxable income limitation 
of this paragraph (c) for the taxable year for which the joint return is 
filed is determined under paragraph (c)(7)(i) of this section.
    (8) Married individuals filing separately. In the case of an 
individual who is married but files a separate tax return for a taxable 
year, the taxable income limitation for that individual is determined 
under paragraph (c)(1) of this section by treating the husband and wife 
as separate taxpayers.
    (d) Examples. The following examples illustrate the provisions of 
paragraphs (b) and (c) of this section.

    Example 1. (i) During 1991, PRS, a calendar-year partnership, 
purchases and places in service $50,000 of section 179 property. The 
taxable income of PRS derived from the active conduct of all its trades 
or businesses (as determined under paragraph (c)(1) of this section) is 
$8,000.
    (ii) Under the dollar limitation of paragraph (b) of this section, 
PRS may elect to expense $10,000 of the cost of section 179 property 
purchased in 1991. Assume PRS elects under section 179( c) and Sec. 
1.179-5 to expense $10,000 of the cost of section 179 property purchased 
in 1991.
    (iii) Under the taxable income limitation of paragraph (c) of this 
section, PRS may allocate to its partners as a deduction only $8,000 of 
the cost of section 179 property in 1991. Under section 179(b)(3)(B) and 
Sec. 1.179-3(a), PRS may carry forward the remaining $2,000 it elected 
to expense, which would have been deductible under section 179(a) for 
1991 absent the taxable income limitation.
    Example 2. (i) The facts are the same as in Example 1, except that 
on December 31, 1991, PRS allocates to A, a calendar-year taxpayer and a 
partner in PRS, $7,000 of section 179 expenses and $2,000 of taxable 
income. A was engaged in the active conduct of a trade or business of 
PRS during 1991.
    (ii) In addition to being a partner in PRS, A conducts a business as 
a sole proprietor. During 1991, A purchases and places in service 
$201,000 of section 179 property in connection with the sole 
proprietorship. A's 1991 taxable income derived from the active conduct 
of this business is $6,000.

[[Page 219]]

    (iii) Under the dollar limitation, A may elect to expense only 
$9,000 of the cost of section 179 property purchased in 1991, the 
$10,000 limit reduced by $1,000 (the amount by which the cost of section 
179 property placed in service during 1991 ($201,000) exceeds $200,000). 
Under paragraph (b)(3)(i) of this section, the $7,000 of section 179 
expenses allocated from PRS is subject to the $9,000 limit. Assume that 
A elects to expense $2,000 of the cost of section 179 property purchased 
by A's sole proprietorship in 1991. Thus, A has elected to expense under 
section 179 an amount equal to the dollar limitation for 1991 ($2,000 
elected to be expensed by A's sole proprietorship plus $7,000, the 
amount of PRS's section 179 expenses allocated to A in 1991).
    (iv) Under the taxable income limitation, A may only deduct $8,000 
of the cost of section 179 property elected to be expensed in 1991, the 
aggregate taxable income derived from the active conduct of A's trades 
or businesses in 1991 ($2,000 from PRS and $6,000 from A's sole 
proprietorship). The entire $2,000 of taxable income allocated from PRS 
is included by A as taxable income derived from the active conduct by A 
of a trade or business because it was derived from the active conduct of 
a trade or business by PRS and A was engaged in the active conduct of a 
trade or business of PRS during 1991. Under section 179(b)(3)(B) and 
Sec. 1.179-3(a), A may carry forward the remaining $1,000 A elected to 
expense, which would have been deductible under section 179(a) for 1991 
absent the taxable income limitation.

[T.D. 8455, 57 FR 61318, Dec. 24, 1992, as amended by T.D. 9146, 69 FR 
46983, Aug. 4, 2004; T.D. 9209, 70 FR 40191, July 13, 2005]



Sec. 1.179-3  Carryover of disallowed deduction.

    (a) In general. Under section 179(b)(3)(B), a taxpayer may carry 
forward for an unlimited number of years the amount of any cost of 
section 179 property elected to be expensed in a taxable year but 
disallowed as a deduction in that taxable year because of the taxable 
income limitation of section 179(b)(3)(A) and Sec. 1.179-2(c) 
(``carryover of disallowed deduction''). This carryover of disallowed 
deduction may be deducted under section 179(a) and Sec. 1.179-1(a) in a 
future taxable year as provided in paragraph (b) of this section.
    (b) Deduction of carryover of disallowed deduction--(1) In general. 
The amount allowable as a deduction under section 179(a) and Sec. 
1.179-1(a) for any taxable year is increased by the lesser of--
    (i) The aggregate amount disallowed under section 179(b)(3)(A) and 
Sec. 1.179-2(c) for all prior taxable years (to the extent not 
previously allowed as a deduction by reason of this section); or
    (ii) The amount of any unused section 179 expense allowance for the 
taxable year (as described in paragraph (c) of this section).
    (2) Cross references. See paragraph (f) of this section for rules 
that apply when a taxpayer disposes of or otherwise transfers section 
179 property for which a carryover of disallowed deduction is 
outstanding. See paragraph (g) of this section for special rules that 
apply to partnerships and S corporations and paragraph (h) of this 
section for special rules that apply to partners and S corporation 
shareholders.
    (c) Unused section 179 expense allowance. The amount of any unused 
section 179 expense allowance for a taxable year equals the excess (if 
any) of--
    (1) The maximum cost of section 179 property that the taxpayer may 
deduct under section 179 and Sec. 1.179-1 for the taxable year after 
applying the limitations of section 179(b) and Sec. 1.179-2; over
    (2) The amount of section 179 property that the taxpayer actually 
elected to expense under section 179 and Sec. 1.179-1(a) for the 
taxable year.
    (d) Example. The following example illustrates the provisions of 
paragraphs (b) and (c) of this section.

    Example. A, a calendar-year taxpayer, has a $3,000 carryover of 
disallowed deduction for an item of section 179 property purchased and 
placed in service in 1991. In 1992, A purchases and places in service an 
item of section 179 property costing $25,000. A's 1992 taxable income 
from the active conduct of all A's trades or businesses is $100,000. A 
elects, under section 179(c) and Sec. 1.179-5, to expense $8,000 of the 
cost of the item of section 179 property purchased in 1992. Under 
paragraph (b) of this section, A may deduct $2,000 of A's carryover of 
disallowed deduction from 1991 (the lesser of A's total outstanding 
carryover of disallowed deductions ($3,000), or the amount of any unused 
section 179 expense allowance for 1992 ($10,000 limit less $8,000 
elected to be expensed, or $2,000)). For 1993, A has a $1,000 carryover 
of disallowed deduction for the item of section 179 property purchased 
and placed in service in 1991.


[[Page 220]]


    (e) Recordkeeping requirement and ordering rule. The properties and 
the apportionment of cost that will be subject to a carryover of 
disallowed deduction are selected by the taxpayer in the year the 
properties are placed in service. This selection must be evidenced on 
the taxpayer's books and records and be applied consistently in 
subsequent years. If no selection is made, the total carryover of 
disallowed deduction is apportioned equally over the items of section 
179 property elected to be expensed for the taxable year. For this 
purpose, the taxpayer treats any section 179 expense amount allocated 
from a partnership (or an S corporation) for a taxable year as one item 
of section 179 property. If the taxpayer is allowed to deduct a portion 
of the total carryover of disallowed deduction under paragraph (b) of 
this section, the taxpayer must deduct the cost of section 179 property 
carried forward from the earliest taxable year.
    (f) Dispositions and other transfers of section 179 property--(1) In 
general. Upon a sale or other disposition of section 179 property, or a 
transfer of section 179 property in a transaction in which gain or loss 
is not recognized in whole or in part (including transfers at death), 
immediately before the transfer the adjusted basis of the section 179 
property is increased by the amount of any outstanding carryover of 
disallowed deduction with respect to the property. This carryover of 
disallowed deduction is not available as a deduction to the transferor 
or the transferee of the section 179 property.
    (2) Recapture under section 179(d)(10). Under Sec. 1.179-1(e), if a 
taxpayer's section 179 property is subject to recapture under section 
179(d)(10), the taxpayer must recapture the benefit derived from 
expensing the property. Upon recapture, any outstanding carryover of 
disallowed deduction with respect to the property is no longer available 
for expensing. In determining the amount subject to recapture under 
section 179(d)(10) and Sec. 1.179-1(e), any outstanding carryover of 
disallowed deduction with respect to that property is not treated as an 
amount expensed under section 179.
    (g) Special rules for partnerships and S corporations--(1) In 
general. Under section 179(d)(8) and Sec. 1.179-2(c), the taxable 
income limitation applies at the partnership level as well as at the 
partner level. Therefore, a partnership may have a carryover of 
disallowed deduction with respect to the cost of its section 179 
property. Similar rules apply to S corporations. This paragraph (g) 
provides special rules that apply when a partnership or an S corporation 
has a carryover of disallowed deduction.
    (2) Basis adjustment. Under Sec. 1.179-1(f)(2), the basis of a 
partnership's section 179 property must be reduced to reflect the amount 
of section 179 expense elected by the partnership. This reduction must 
be made for the taxable year for which the election is made even if the 
section 179 expense amount, or a portion thereof, must be carried 
forward by the partnership. Similar rules apply to S corporations.
    (3) Dispositions and other transfers of section 179 property by a 
partnership or an S corporation. The provisions of paragraph (f) of this 
section apply in determining the treatment of any outstanding carryover 
of disallowed deduction with respect to section 179 property disposed 
of, or transferred in a nonrecognition transaction, by a partnership or 
an S corporation.
    (4) Example. The following example illustrates the provisions of 
this paragraph (g).

    Example. ABC, a calendar-year partnership, owns and operates a 
restaurant business. During 1992, ABC purchases and places in service 
two items of section 179 property--a cash register costing $4,000 and 
office furniture costing $6,000. ABC elects to expense under section 
179(c) the full cost of the cash register and the office furniture. For 
1992, ABC has $6,000 of taxable income derived from the active conduct 
of its restaurant business. Therefore, ABC may deduct only $6,000 of 
section 179 expenses and must carry forward the remaining $4,000 of 
section 179 expenses at the partnership level. ABC must reduce the 
adjusted basis of the section 179 property by the full amount elected to 
be expensed. However, ABC may not allocate to its partners any portion 
of the carryover of disallowed deduction until ABC is able to deduct it 
under paragraph (b) of this section.

    (h) Special rules for partners and S corporation shareholders--(1) 
In general. Under section 179(d)(8) and Sec. 1.179-2(c), a partner may 
have a carryover of disallowed deduction with respect to the

[[Page 221]]

cost of section 179 property elected to be expensed by the partnership 
and allocated to the partner. A partner who is allocated section 179 
expenses from a partnership must reduce the basis of his or her 
partnership interest by the full amount allocated regardless of whether 
the partner may deduct for the taxable year the allocated section 179 
expenses or is required to carry forward all or a portion of the 
expenses. Similar rules apply to S corporation shareholders.
    (2) Dispositions and other transfers of a partner's interest in a 
partnership or a shareholder's interest in an S corporation. A partner 
who disposes of a partnership interest, or transfers a partnership 
interest in a transaction in which gain or loss is not recognized in 
whole or in part (including transfers of a partnership interest at 
death), may have an outstanding carryover of disallowed deduction of 
section 179 expenses allocated from the partnership. In such a case, 
immediately before the transfer the partner's basis in the partnership 
interest is increased by the amount of the partner's outstanding 
carryover of disallowed deduction with respect to the partnership 
interest. This carryover of disallowed deduction is not available as a 
deduction to the transferor or transferee partner of the section 179 
property. Similar rules apply to S corporation shareholders.
    (3) Examples. The following examples illustrate the provisions of 
this paragraph (h).

    Example 1. (i) G is a general partner in GD, a calendar-year 
partnership, and is engaged in the active conduct of GD's business. 
During 1991, GD purchases and places section 179 property in service and 
elects to expense a portion of the cost of the property under section 
179. GD allocates $2,500 of section 179 expenses and $15,000 of taxable 
income (determined without regard to the section 179 deduction) to G. 
The income was derived from the active conduct by GD of a trade or 
business.
    (ii) In addition to being a partner in GD, G conducts a business as 
a sole proprietor. During 1991, G purchases and places in service office 
equipment costing $25,000 and a computer costing $10,000 in connection 
with the sole proprietorship. G elects under section 179(c) and Sec. 
1.179-5 to expense $7,500 of the cost of the office equipment. G has a 
taxable loss (determined without regard to the section 179 deduction) 
derived from the active conduct of this business of $12,500.
    (iii) G has no other taxable income (or loss) derived from the 
active conduct of a trade or business during 1991. G's taxable income 
limitation for 1991 is $2,500 ($15,000 taxable income allocated from GD 
less $12,500 taxable loss from the sole proprietorship). Therefore, G 
may deduct during 1991 only $2,500 of the $10,000 of section 179 
expenses. G notes on the appropriate books and records that G expenses 
the $2,500 of section 179 expenses allocated from GD and carries forward 
the $7,500 of section 179 expenses with respect to the office equipment 
purchased by G's sole proprietorship.
    (iv) On January 1, 1992, G sells the office equipment G's sole 
proprietorship purchased and placed in service in 1991. Under paragraph 
(f) of this section, immediately before the sale G increases the 
adjusted basis of the office equipment by $7,500, the amount of the 
outstanding carryover of disallowed deduction with respect to the office 
equipment.
    Example 2. (i) Assume the same facts as in Example 1, except that G 
notes on the appropriate books and records that G expenses $2,500 of 
section 179 expenses relating to G's sole proprietorship and carries 
forward the remaining $5,000 of section 179 expenses relating to G's 
sole proprietorship and $2,500 of section 179 expenses allocated from 
GD.
    (ii) On January 1, 1992, G sells G's partnership interest to A. 
Under paragraph (h)(2) of this section, immediately before the sale G 
increases the adjusted basis of G's partnership interest by $2,500, the 
amount of the outstanding carryover of disallowed deduction with respect 
to the partnership interest.

[T.D. 8455, 57 FR 61321, Dec. 24, 1992]



Sec. 1.179-4  Definitions.

    The following definitions apply for purposes of section 179 and 
Sec. Sec. 1.179-1 through 1.179-6:
    (a) Section 179 property. The term section 179 property means any 
tangible property described in section 179(d)(1) that is acquired by 
purchase for use in the active conduct of the taxpayer's trade or 
business (as described in Sec. 1.179-2(c)(6)). For taxable years 
beginning after 2002 and before 2008, the term section 179 property 
includes computer software described in section 179(d)(1) that is placed 
in service by the taxpayer in a taxable year beginning after 2002 and 
before 2008 and is acquired by purchase for use in the active conduct of 
the taxpayer's trade or business (as described in 1.179-2(c)(6)). For 
purposes of this paragraph (a), the term trade or business has the same

[[Page 222]]

meaning as in section 162 and the regulations under section 162.
    (b) Section 38 property. The term section 38 property shall have the 
same meaning assigned to it in section 48(a) and the regulations 
thereunder.
    (c) Purchase. (1)(i) Except as otherwise provided in paragraph 
(d)(2) of this section, the term purchase means any acquisition of the 
property, but only if all the requirements of paragraphs (c)(1) (ii), 
(iii), and (iv) of this section are satisfied.
    (ii) Property is not acquired by purchase if it is acquired from a 
person whose relationship to the person acquiring it would result in the 
disallowance of losses under section 267 or 707(b). The property is 
considered not acquired by purchase only to the extent that losses would 
be disallowed under section 267 or 707(b). Thus, for example, if 
property is purchased by a husband and wife jointly from the husband's 
father, the property will be treated as not acquired by purchase only to 
the extent of the husband's interest in the property. However, in 
applying the rules of section 267 (b) and (c) for this purpose, section 
267(c)(4) shall be treated as providing that the family of an individual 
will include only his spouse, ancestors, and lineal descendants. For 
example, a purchase of property from a corporation by a taxpayer who 
owns, directly or indirectly, more than 50 percent in value of the 
outstanding stock of such corporation does not qualify as a purchase 
under section 179(d)(2); nor does the purchase of property by a husband 
from his wife. However, the purchase of section 179 property by a 
taxpayer from his brother or sister does qualify as a purchase for 
purposes of section 179(d)(2).
    (iii) The property is not acquired by purchase if acquired from a 
component member of a controlled group of corporations (as defined in 
paragraph (g) of this section) by another component member of the same 
group.
    (iv) The property is not acquired by purchase if the basis of the 
property in the hands of the person acquiring it is determined in whole 
or in part by reference to the adjusted basis of such property in the 
hands of the person from whom acquired, or is determined under section 
1014(a), relating to property acquired from a decedent. For example, 
property acquired by gift or bequest does not qualify as property 
acquired by purchase for purposes of section 179(d)(2); nor does 
property received in a corporate distribution the basis of which is 
determined under section 301(d)(2)(B), property acquired by a 
corporation in a transaction to which section 351 applies, property 
acquired by a partnership through contribution (section 723), or 
property received in a partnership distribution which has a carryover 
basis under section 732(a)(1).
    (2) Property deemed to have been acquired by a new target 
corporation as a result of a section 338 election (relating to certain 
stock purchases treated as asset acquisitions) will be considered 
acquired by purchase.
    (d) Cost. The cost of section 179 property does not include so much 
of the basis of such property as is determined by reference to the basis 
of other property held at any time by the taxpayer. For example, X 
Corporation purchases a new drill press costing $10,000 in November 1984 
which qualifies as section 179 property, and is granted a trade-in 
allowance of $2,000 on its old drill press. The old drill press had a 
basis of $1,200. Under the provisions of sections 1012 and 1031(d), the 
basis of the new drill press is $9,200 ($1,200 basis of oil drill press 
plus cash expended of $8,000). However, only $8,000 of the basis of the 
new drill press qualifies as cost for purposes of the section 179 
expense deduction; the remaining $1,200 is not part of the cost because 
it is determined by reference to the basis of the old drill press.
    (e) Placed in service. The term placed in service means the time 
that property is first placed by the taxpayer in a condition or state of 
readiness and availability for a specifically assigned function, whether 
for use in a trade or business, for the production of income, in a tax-
exempt activity, or in a personal activity. See Sec. 1.46-3(d)(2) for 
examples regarding when property shall be considered in a condition or 
state of readiness and availability for a specifically assigned 
function.
    (f) Controlled group of corporations and component member of 
controlled group.

[[Page 223]]

The terms controlled group of corporations and component member of a 
controlled group of corporations shall have the same meaning assigned to 
those terms in section 1563 (a) and (b), except that the phrase ``more 
than 50 percent'' shall be substituted for the phrase ``at least 80 
percent'' each place it appears in section 1563(a)(1).

[T.D. 8121, 52 FR 413, Jan. 6, 1987. Redesignated by T.D. 8455, 57 FR 
61321, 61323, Dec. 24, 1992, as amended by T.D. 9146, 69 FR 46984, Aug. 
4, 2004; T.D. 9209, 70 FR 40191, July 13, 2005]



Sec. 1.179-5  Time and manner of making election.

    (a) Election. A separate election must be made for each taxable year 
in which a section 179 expense deduction is claimed with respect to 
section 179 property. The election under section 179 and Sec. 1.179-1 
to claim a section 179 expense deduction for section 179 property shall 
be made on the taxpayer's first income tax return for the taxable year 
to which the election applies (whether or not the return is timely) or 
on an amended return filed within the time prescribed by law (including 
extensions) for filing the return for such taxable year. The election 
shall be made by showing as a separate item on the taxpayer's income tax 
return the following items:
    (1) The total section 179 expense deduction claimed with respect to 
all section 179 property selected, and
    (2) The portion of that deduction allocable to each specific item.

The person shall maintain records which permit specific identification 
of each piece of section 179 property and reflect how and from whom such 
property was acquired and when such property was placed in service. 
However, for this purpose a partner (or an S corporation shareholder) 
treats partnership (or S corporation) section 179 property for which 
section 179 expenses are allocated from a partnership (or an S 
corporation) as one item of section 179 property. The election to claim 
a section 179 expense deduction under this section, with respect to any 
property, is irrevocable and will be binding on the taxpayer with 
respect to such property for the taxable year for which the election is 
made and for all subsequent taxable years, unless the Commissioner 
consents to the revocation of the election. Similarly, the selection of 
section 179 property by the taxpayer to be subject to the expense 
deduction and apportionment scheme must be adhered to in computing the 
taxpayer's taxable income for the taxable year for which the election is 
made and for all subsequent taxable years, unless consent to change is 
given by the Commissioner.
    (b) Revocation. Any election made under section 179, and any 
specification contained in such election, may not be revoked except with 
the consent of the Commissioner. Such consent will be granted only in 
extraordinary circumstances. Requests for consent must be filed with the 
Commissioner of Internal Revenue, Washington, DC 20224. The request must 
include the name, address, and taxpayer identification number of the 
taxpayer and must be signed by the taxpayer or his duly authorized 
representative. It must be accompanied by a statement showing the year 
and property involved, and must set forth in detail the reasons for the 
request.
    (c) Section 179 property placed in service by the taxpayer in a 
taxable year beginning after 2002 and before 2008--(1) In general. For 
any taxable year beginning after 2002 and before 2008, a taxpayer is 
permitted to make or revoke an election under section 179 without the 
consent of the Commissioner on an amended Federal tax return for that 
taxable year. This amended return must be filed within the time 
prescribed by law for filing an amended return for such taxable year.
    (2) Election--(i) In general. For any taxable year beginning after 
2002 and before 2008, a taxpayer is permitted to make an election under 
section 179 on an amended Federal tax return for that taxable year 
without the consent of the Commissioner. Thus, the election under 
section 179 and Sec. 1.179-1 to claim a section 179 expense deduction 
for section 179 property may be made on an amended Federal tax return 
for the taxable year to which the election applies. The amended Federal 
tax return must include the adjustment to taxable income for the section 
179 election and any collateral adjustments to taxable

[[Page 224]]

income or to the tax liability (for example, the amount of depreciation 
allowed or allowable in that taxable year for the item of section 179 
property to which the election pertains). Such adjustments must also be 
made on amended Federal tax returns for any affected succeeding taxable 
years.
    (ii) Specifications of elections. Any election under section 179 
must specify the items of section 179 property and the portion of the 
cost of each such item to be taken into account under section 179(a). 
Any election under section 179 must comply with the specification 
requirements of section 179(c)(1)(A), Sec. 1.179-1(b), and Sec. 1.179-
5(a). If a taxpayer elects to expense only a portion of the cost basis 
of an item of section 179 property for a taxable year beginning after 
2002 and before 2008 (or did not elect to expense any portion of the 
cost basis of the item of section 179 property), the taxpayer is 
permitted to file an amended Federal tax return for that particular 
taxable year and increase the portion of the cost of the item of section 
179 property to be taken into account under section 179(a) (or elect to 
expense any portion of the cost basis of the item of section 179 
property if no prior election was made) without the consent of the 
Commissioner. Any such increase in the amount expensed under section 179 
is not deemed to be a revocation of the prior election for that 
particular taxable year.
    (3) Revocation--(i) In general. Section 179(c)(2) permits the 
revocation of an entire election or specification, or a portion of the 
selected dollar amount of a specification. The term specification in 
section 179(c)(2) refers to both the selected specific item of section 
179 property subject to a section 179 election and the selected dollar 
amount allocable to the specific item of section 179 property. Any 
portion of the cost basis of an item of section 179 property subject to 
an election under section 179 for a taxable year beginning after 2002 
and before 2008 may be revoked by the taxpayer without the consent of 
the Commissioner by filing an amended Federal tax return for that 
particular taxable year. The amended Federal tax return must include the 
adjustment to taxable income for the section 179 revocation and any 
collateral adjustments to taxable income or to the tax liability (for 
example, allowable depreciation in that taxable year for the item of 
section 179 property to which the revocation pertains). Such adjustments 
must also be made on amended Federal tax returns for any affected 
succeeding taxable years. Reducing or eliminating a specified dollar 
amount for any item of section 179 property with respect to any taxable 
year beginning after 2002 and before 2008 results in a revocation of 
that specified dollar amount.
    (ii) Effect of revocation. Such revocation, once made, shall be 
irrevocable. If the selected dollar amount reflects the entire cost of 
the item of section 179 property subject to the section 179 election, a 
revocation of the entire selected dollar amount is treated as a 
revocation of the section 179 election for that item of section 179 
property and the taxpayer is unable to make a new section 179 election 
with respect to that item of property. If the selected dollar amount is 
a portion of the cost of the item of section 179 property, revocation of 
a selected dollar amount shall be treated as a revocation of only that 
selected dollar amount. The revoked dollars cannot be the subject of a 
new section 179 election for the same item of property.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (c):

    Example 1. Taxpayer, a sole proprietor, owns and operates a jewelry 
store. During 2003, Taxpayer purchased and placed in service two items 
of section 179 property--a cash register costing $4,000 (5-year MACRS 
property) and office furniture costing $10,000 (7-year MACRS property). 
On his 2003 Federal tax return filed on April 15, 2004, Taxpayer elected 
to expense under section 179 the full cost of the cash register and, 
with respect to the office furniture, claimed the depreciation 
allowable. In November 2004, Taxpayer determines it would have been more 
advantageous to have made an election under section 179 to expense the 
full cost of the office furniture rather than the cash register. 
Pursuant to paragraph (c)(1) of this section, Taxpayer is permitted to 
file an amended Federal tax return for 2003 revoking the section 179 
election for the cash register, claiming the depreciation allowable in 
2003 for the cash register, and making an election to expense under 
section 179 the cost of the office furniture. The amended return must 
include an

[[Page 225]]

adjustment for the depreciation previously claimed in 2003 for the 
office furniture, an adjustment for the depreciation allowable in 2003 
for the cash register, and any other collateral adjustments to taxable 
income or to the tax liability. In addition, once Taxpayer revokes the 
section 179 election for the entire cost basis of the cash register, 
Taxpayer can no longer expense under section 179 any portion of the cost 
of the cash register.
    Example 2. Taxpayer, a sole proprietor, owns and operates a machine 
shop that does specialized repair work on industrial equipment. During 
2003, Taxpayer purchased and placed in service one item of section 179 
property--a milling machine costing $135,000. On Taxpayer's 2003 Federal 
tax return filed on April 15, 2004, Taxpayer elected to expense under 
section 179 $5,000 of the cost of the milling machine and claimed 
allowable depreciation on the remaining cost. Subsequently, Taxpayer 
determines it would have been to Taxpayer's advantage to have elected to 
expense $100,000 of the cost of the milling machine on Taxpayer's 2003 
Federal tax return. In November 2004, Taxpayer files an amended Federal 
tax return for 2003, increasing the amount of the cost of the milling 
machine that is to be taken into account under section 179(a) to 
$100,000, decreasing the depreciation allowable in 2003 for the milling 
machine, and making any other collateral adjustments to taxable income 
or to the tax liability. Pursuant to paragraph (c)(2)(ii) of this 
section, increasing the amount of the cost of the milling machine to be 
taken into account under section 179(a) supplements the portion of the 
cost of the milling machine that was already taken into account by the 
original section 179 election made on the 2003 Federal tax return and no 
revocation of any specification with respect to the milling machine has 
occurred.
    Example 3. Taxpayer, a sole proprietor, owns and operates a real 
estate brokerage business located in a rented storefront office. During 
2003, Taxpayer purchases and places in service two items of section 179 
property--a laptop computer costing $2,500 and a desktop computer 
costing $1,500. On Taxpayer's 2003 Federal tax return filed on April 15, 
2004, Taxpayer elected to expense under section 179 the full cost of the 
laptop computer and the full cost of the desktop computer. Subsequently, 
Taxpayer determines it would have been to Taxpayer's advantage to have 
originally elected to expense under section 179 only $1,500 of the cost 
of the laptop computer on Taxpayer's 2003 Federal tax return. In 
November 2004, Taxpayer files an amended Federal tax return for 2003 
reducing the amount of the cost of the laptop computer that was taken 
into account under section 179(a) to $1,500, claiming the depreciation 
allowable in 2003 on the remaining cost of $1,000 for that item, and 
making any other collateral adjustments to taxable income or to the tax 
liability. Pursuant to paragraph (c)(3)(ii) of this section, the $1,000 
reduction represents a revocation of a portion of the selected dollar 
amount and no portion of those revoked dollars may be the subject of a 
new section 179 election for the laptop computer.
    Example 4. Taxpayer, a sole proprietor, owns and operates a 
furniture making business. During 2003, Taxpayer purchases and places in 
service one item of section 179 property--an industrial-grade cabinet 
table saw costing $5,000. On Taxpayer's 2003 Federal tax return filed on 
April 15, 2004, Taxpayer elected to expense under section 179 $3,000 of 
the cost of the saw and, with respect to the remaining $2,000 of the 
cost of the saw, claimed the depreciation allowable. In November 2004, 
Taxpayer files an amended Federal tax return for 2003 revoking the 
selected $3,000 amount for the saw, claiming the depreciation allowable 
in 2003 on the $3,000 cost of the saw, and making any other collateral 
adjustments to taxable income or to the tax liability. Subsequently, in 
December 2004, Taxpayer files a second amended Federal tax return for 
2003 selecting a new dollar amount of $2,000 for the saw, including an 
adjustment for the depreciation previously claimed in 2003 on the 
$2,000, and making any other collateral adjustments to taxable income or 
to the tax liability. Pursuant to paragraph (c)(2)(ii) of this section, 
Taxpayer is permitted to select a new selected dollar amount to expense 
under section 179 encompassing all or a part of the initially non-
elected portion of the cost of the elected item of section 179 property. 
However, no portion of the revoked $3,000 may be the subject of a new 
section 179 dollar amount selection for the saw. In December 2005, 
Taxpayer files a third amended Federal tax return for 2003 revoking the 
entire selected $2,000 amount with respect to the saw, claiming the 
depreciation allowable in 2003 for the $2,000, and making any other 
collateral adjustments to taxable income or to the tax liability. 
Because Taxpayer elected to expense, and subsequently revoke, the entire 
cost basis of the saw, the section 179 election for the saw has been 
revoked and Taxpayer is unable to make a new section 179 election with 
respect to the saw.

    (d) Election or revocation must not be made in any other manner. Any 
election or revocation specified in this section must be made in the 
manner prescribed in paragraphs (a), (b), and (c) of this section. Thus, 
this election or revocation must not be made by the taxpayer in any 
other manner (for example, an election or a revocation of an election 
cannot be made through a request under section 446(e) to change the 
taxpayer's method of accounting), except as otherwise expressly provided 
by the

[[Page 226]]

Internal Revenue Code, the regulations under the Code, or other guidance 
published in the Internal Revenue Bulletin.

[T.D. 8121, 52 FR 414, Jan. 6, 1987. Redesignated by T.D. 8455, 57 FR 
61321, 61323, Dec. 24, 1992, as amended by T.D. 9146, 69 FR 46984, Aug. 
4, 2004; T.D. 9209, 70 FR 40191, July 13, 2005]



Sec. 1.179-6  Effective dates.

    (a) In general. Except as provided in paragraphs (b) and (c) of this 
section, the provisions of Sec. Sec. 1.179-1 through 1.179-5 apply for 
property placed in service by the taxpayer in taxable years ending after 
January 25, 1993. However, a taxpayer may apply the provisions of 
Sec. Sec. 1.179-1 through 1.179-5 to property placed in service by the 
taxpayer after December 31, 1986, in taxable years ending on or before 
January 25, 1993. Otherwise, for property placed in service by the 
taxpayer after December 31, 1986, in taxable years ending on or before 
January 25, 1993, the final regulations under section 179 as in effect 
for the year the property was placed in service apply, except to the 
extent modified by the changes made to section 179 by the Tax Reform Act 
of 1986 (100 Stat. 2085), the Technical and Miscellaneous Revenue Act of 
1988 (102 Stat. 3342) and the Revenue Reconciliation Act of 1990 (104 
Stat. 1388-400). For that property, a taxpayer may apply any reasonable 
method that clearly reflects income in applying the changes to section 
179, provided the taxpayer consistently applies the method to the 
property.
    (b) Section 179 property placed in service by the taxpayer in a 
taxable year beginning after 2002 and before 2008. The provisions of 
Sec. 1.179-2(b)(1) and (b)(2)(ii), the second sentence of Sec. 1.179-
4(a), and the provisions of Sec. 1.179-5(c), reflecting changes made to 
section 179 by the Jobs and Growth Tax Relief Reconciliation Act of 2003 
(117 Stat. 752) and the American Jobs Creation Act of 2004 (118 Stat. 
1418), apply for property placed in service in taxable years beginning 
after 2002 and before 2008.
    (c) Application of Sec. 1.179-5(d). Section 1.179-5(d) applies on 
or after July 12, 2005.

[T.D. 9146, 69 FR 46985, Aug. 4, 2004. Redesignated and amended by T.D. 
9209, 70 FR 40192, July 13, 2005]



Sec. 1.179A-1  Recapture of deduction for qualified clean-fuel 
vehicle property and qualified clean-fuel vehicle refueling property.

    (a) In general. If a recapture event occurs with respect to a 
taxpayer's qualified clean-fuel vehicle property or qualified clean-fuel 
vehicle refueling property, the taxpayer must include the recapture 
amount in taxable income for the taxable year in which the recapture 
event occurs.
    (b) Recapture event--(1) Qualified clean-fuel vehicle property--(i) 
In general. A recapture event occurs if, within 3 full years from the 
date a vehicle of which qualified clean-fuel vehicle property is a part 
is placed in service, the property ceases to be qualified clean-fuel 
vehicle property. Property ceases to be qualified clean-fuel vehicle 
property if--
    (A) The vehicle is modified by the taxpayer so that it may no longer 
be propelled by a clean-burning fuel;
    (B) The vehicle is used by the taxpayer in a manner described in 
section 50(b);
    (C) The vehicle otherwise ceases to qualify as property defined in 
section 179A(c); or
    (D) The taxpayer receiving the deduction under section 179A sells or 
disposes of the vehicle and knows or has reason to know that the vehicle 
will be used in a manner described in paragraph (b)(1)(i) (A), (B), or 
(C) of this section.
    (ii) Exception for disposition. Except as provided in paragraph 
(b)(1)(i)(D) of this section, a sale or other disposition (including a 
disposition by reason of an accident or other casualty) of qualified 
clean-fuel vehicle property is not a recapture event.
    (2) Qualified clean-fuel vehicle refueling property--(i) In general. 
A recapture event occurs if, at any time before the end of its recovery 
period, the property ceases to be qualified clean-fuel vehicle refueling 
property. Property ceases to

[[Page 227]]

be qualified clean-fuel vehicle refueling property if--
    (A) The property no longer qualifies as property described in 
section 179A(d);
    (B) The property is no longer used predominantly in a trade or 
business (property will be treated as no longer used predominantly in a 
trade or business if 50 percent or more of the use of the property in a 
taxable year is for use other than in a trade or business);
    (C) The property is used by the taxpayer in a manner described in 
section 50(b); or
    (D) The taxpayer receiving the deduction under section 179A sells or 
disposes of the property and knows or has reason to know that the 
property will be used in a manner described in paragraph (b)(2)(i) (A), 
(B), or (C) of this section.
    (ii) Exception for disposition. Except as provided in paragraph 
(b)(2)(i)(D) of this section, a sale or other disposition (including a 
disposition by reason of an accident or other casualty) of qualified 
clean-fuel vehicle refueling property is not a recapture event.
    (c) Recapture date--(1) Qualified clean-fuel vehicle property. The 
recapture date is the actual date of the recapture event unless an event 
described in paragraph (b)(1)(i)(B) of this section occurs, in which 
case the recapture date is the first day of the recapture year.
    (2) Qualified clean-fuel vehicle refueling property. The recapture 
date is the actual date of the recapture event unless the recapture 
occurs as a result of an event described in paragraph (b)(2)(i) (B) or 
(C) of this section, in which case the recapture date is the first day 
of the recapture year.
    (d) Recapture amount--(1) Qualified clean-fuel vehicle property. The 
recapture amount is equal to the benefit of the section 179A deduction 
allowable multiplied by the recapture percentage. The recapture 
percentage is--
    (i) 100, if the recapture date is within the first full year after 
the date the vehicle is placed in service;
    (ii) 66\2/3\, if the recapture date is within the second full year 
after the date the vehicle is placed in service; or
    (iii) 33\1/3\, if the recapture date is within the third full year 
after the date the vehicle is placed in service.
    (2) Qualified clean-fuel vehicle refueling property. The recapture 
amount is equal to the benefit of the section 179A deduction allowable 
multiplied by the following fraction. The numerator of the fraction 
equals the total recovery period for the property minus the number of 
recovery years prior to, but not including, the recapture year. The 
denominator of the fraction equals the total recovery period.
    (e) Basis adjustment. As of the first day of the taxable year in 
which the recapture event occurs, the basis of the vehicle of which 
qualified clean-fuel vehicle property is a part or the basis of 
qualified clean-fuel vehicle refueling property is increased by the 
recapture amount. For a vehicle or refueling property that is of a 
character that is subject to an allowance for depreciation, this 
increase in basis is recoverable over its remaining recovery period 
beginning as of the first day of the taxable year in which the recapture 
event occurs.
    (f) Application of section 1245 for sales and other dispositions. 
For purposes of section 1245, the amount of the deduction allowable 
under section 179A(a) with respect to any property that is (or has been) 
of a character subject to an allowance for depreciation is treated as a 
deduction allowed for depreciation under section 167. Therefore, upon a 
sale or other disposition of depreciable qualified clean-fuel vehicle 
refueling property or a depreciable vehicle of which qualified clean-
fuel vehicle property is a part, section 1245 will apply to any gain 
recognized to the extent the basis of the depreciable property or 
vehicle was reduced under section 179A(e)(6) net of any basis increase 
described in paragraph (e) of this section.
    (g) Examples. The following examples illustrate the provisions of 
this section:

    Example 1. A, a calendar-year taxpayer, purchases and places in 
service for personal use on January 1, 1995, a clean-fuel vehicle, a 
portion of which is qualified clean-fuel vehicle property, costing 
$25,000. The qualified clean-fuel vehicle property costs $11,000. On A's 
1995 federal income tax return, A claims a section 179A deduction of 
$2,000. On January 2, 1996, A sells the vehicle to an unrelated third 
party who subsequently converts the vehicle into a gasoline-propelled 
vehicle on October 15, 1996. There is no recapture

[[Page 228]]

upon the sale of the vehicle by A provided A did not know or have reason 
to know that the purchaser intended to convert the vehicle to a 
gasoline-propelled vehicle.
    Example 2. B, a calendar-year taxpayer, purchases and places in 
service for personal use on October 11, 1994, a clean-fuel vehicle 
costing $20,000, a portion of which is qualified clean-fuel vehicle 
property. The qualified clean-fuel vehicle property costs $10,000. On 
B's 1994 federal income tax return, B claims a deduction of $2,000, 
which reduces B's gross income by $2,000. The basis of the vehicle is 
reduced to $18,000 ($20,000-$2,000). On January 31, 1996, B sells the 
vehicle to a tax-exempt entity. Because B knowingly sold the vehicle to 
a tax-exempt entity described in section 50(b) in the second full year 
from the date the vehicle was placed in service, B must recapture $1,333 
($2,000 x 66\2/3\ percent). This recapture amount increases B's gross 
income by $1,333 on B's 1996 federal income tax return and is added to 
the basis of the motor vehicle as of January 1, 1996, the beginning of 
the taxable year of recapture.
    Example 3. X, a calendar-year taxpayer, purchases and places in 
service for its business use on January 1, 1994, qualified clean-fuel 
vehicle refueling property costing $400,000. Assume this property has a 
5-year recovery period. On X's 1994 federal income tax return, X claims 
a deduction of $100,000, which reduces X's gross income by $100,000. The 
basis of the property is reduced to $300,000 ($400,000-$100,000) prior 
to any adjustments for depreciation. In 1996, more than 50 percent of 
the use of the property is other than in X's trade or business.
    Because the property is no longer used predominantly in X's 
business, X must recapture three-fifths of the section 179A deduction or 
$60,000 ($100,000x(5-2)/5 = $60,000) and include that amount in gross 
income on its 1996 federal income tax return. The recapture amount of 
$60,000 is added to the basis of the property as of January 1, 1996, the 
beginning of the taxable year of recapture, and to the extent the 
property remains depreciable, the adjusted basis is recoverable over the 
remaining recovery period.
    Example 4. X, a calendar-year taxpayer, purchases and places in 
service for business use on January 1, 1994, qualified clean-fuel 
vehicle refueling property costing $350,000. Assume this property has a 
5-year recovery period. On X's 1994 federal income tax return, X claims 
a deduction of $100,000, which reduces X's gross income by $100,000. The 
basis of the property is reduced to $250,000 ($350,000-$100,000) prior 
to any adjustments for depreciation. In 1995, X converts the property to 
store and dispense gasoline. Because the property is no longer used as 
qualified clean-fuel vehicle refueling property in 1995, X must 
recapture four-fifths of the section 179A deduction or $80,000 
($100,000x(5-1)/5 = $80,000) and include that amount in gross income on 
its 1995 federal income tax return. The recapture amount of $80,000 is 
added to the basis of the property as of January 1, 1995, the beginning 
of the taxable year of recapture, and to the extent the property remains 
depreciable, the adjusted basis is recoverable over the remaining 
recovery period.
    Example 5. The facts are the same as in Example 4. In 1996, X sells 
the refueling property for $351,000, recognizing a gain from this sale. 
Under paragraph (f) of this section, section 1245 will apply to any gain 
recognized on the sale of depreciable property to the extent the basis 
of the property was reduced by the section 179A deduction net of any 
basis increase from recapture of the section 179A deduction. 
Accordingly, the gain from the sale of the property is subject to 
section 1245 to the extent of the depreciation allowance for the 
property plus the deduction allowed under section 179A ($100,000), less 
the previous recapture amount ($80,000). Any remaining amount of gain 
may be subject to other applicable provisions of the Internal Revenue 
Code.

    (h) Effective date. This section is effective on October 14, 1994. 
If the recapture date is before the effective date of this section, a 
taxpayer may use any reasonable method to recapture the benefit of any 
deduction allowable under section 179A(a) consistent with section 179A 
and its legislative history. For this purpose, the recapture date is 
defined in paragraph (c) of this section.

[T.D. 8606, 60 FR 39651, Aug. 3, 1995]



Sec. 1.179B-1T  Deduction for capital costs incurred in complying with Environmental Protection Agency sulfur regulations (temporary).

    (a) Scope and definitions--(1) Scope. This section provides the 
rules for determining the amount of the deduction allowable under 
section 179B(a) for qualified capital costs paid or incurred by a small 
business refiner to comply with the highway diesel fuel sulfur control 
requirements of the Environmental Protection Agency (EPA). This section 
also provides rules for making elections under section 179B.
    (2) Definitions. For purposes of section 179B and this section, the 
following definitions apply:
    (i) The applicable EPA regulations are the EPA regulations 
establishing the highway diesel fuel sulfur control program (40 CFR part 
80, subpart I).

[[Page 229]]

    (ii) The average daily domestic refinery run for a refinery is the 
lesser of--
    (A) The total amount of crude oil input (in barrels) to the 
refinery's domestic processing units during the 1-year period ending on 
December 31, 2002, divided by 365; or
    (B) The total amount of refined petroleum product (in barrels) 
produced by the refinery's domestic processing units during such 1-year 
period divided by 365.
    (iii) The aggregate average domestic daily refinery run for a 
refiner is the sum of the average daily domestic refinery runs for all 
refineries that were owned by the refiner or a related person on April 
1, 2003.
    (iv) Cooperative owner is a person that--
    (A) Directly holds an ownership interest in a cooperative small 
business refiner, as defined in paragraph (a)(2)(v) of this section; and
    (B) Is a cooperative to which part 1 of subchapter T of the Internal 
Revenue Code (Code) applies.
    (v) Cooperative small business refiner is a small business refiner 
that is a cooperative to which part 1 of subchapter T of the Code 
applies.
    (vi) Low sulfur diesel fuel has the meaning prescribed in section 
45H(c)(5).
    (vii) Qualified capital costs are qualified costs as defined in 
section 45H(c)(2) that are properly chargeable to capital account.
    (viii) Related person has the meaning prescribed in section 
613A(d)(3) and the regulations under section 613A(d)(3).
    (ix) Small business refiner has the meaning prescribed in section 
45H(c)(1).
    (b) Section 179B deduction--(1) In general. Section 179B(a) allows a 
deduction with respect to the qualified capital costs paid or incurred 
by a small business refiner (the section 179B deduction). The deduction 
is allowable with respect to the qualified capital costs paid or 
incurred during a taxable year only if the small business refiner makes 
an election under paragraph (d) of this section for the taxable year. 
The certification requirement in section 45H(e) (relating to the 
certification required to support a credit under section 45H) does not 
apply for purposes of the section 179B deduction. Accordingly, the 
section 179B deduction is allowable with respect to the qualified 
capital costs of an electing small business refiner even if the refiner 
never obtains a certification under section 45H(e) with respect to those 
costs.
    (2) Computation of section 179B deduction--(i) In general. Except as 
provided in paragraphs (b)(2)(ii) and (c)(3) of this section, a small 
business refiner that makes an election under paragraph (d) of this 
section for a taxable year is allowed a section 179B deduction in an 
amount equal to 75 percent of qualified capital costs that are paid or 
incurred by the small business refiner during the taxable year.
    (ii) Reduced percentage. A small business refiner's section 179B 
deduction is reduced if the refiner's aggregate average daily domestic 
refinery run is in excess of 155,000 barrels. In that case, the number 
of percentage points used in computing the deduction under paragraph 
(b)(2)(i) of this section (75) is reduced (not below zero) by the 
product of 75 and the ratio of the excess barrels to 50,000 barrels.
    (3) Example. The application of this paragraph (b) is illustrated by 
the following example:

    Example. (i) A, an accrual method taxpayer, is a small business 
refiner with a taxable year ending December 31. On April 1, 2003, A owns 
a refinery with an average daily domestic refinery run (that is, an 
average daily run during calendar year 2002) of 100,000 barrels and a 
person related to A owns a refinery with an average daily domestic 
refinery run of 85,000 barrels. These are the only domestic refineries 
owned by A and persons related to A. A's aggregate average daily 
domestic refinery run for the two refineries is 185,000 barrels. A 
incurs qualified capital costs of $10 million in the taxable year ended 
December 31, 2007. The costs are incurred with respect to property that 
is placed in service in year 2008. A makes the election under paragraph 
(d) of this section for the 2007 taxable year.
    (ii) Because A's aggregate average daily domestic refinery run is 
185,000 barrels, the percentage of the qualified capital costs that is 
deductible under section 179B(a) is reduced from 75 percent to 30 
percent (75 percent reduced by 75 percent multiplied by 0.6 ((185,000 
barrels minus 155,000 barrels)/50,000 barrels)). Thus, for 2007, A's 
deduction under section 179B(a) is $3,000,000 ($10,000,000 qualified 
capital costs multiplied by .30).


[[Page 230]]


    (c) Effect on basis--(1) In general. If qualified capital costs are 
included in the basis of property, the basis of the property is reduced 
by the amount of the section 179B deduction allowed with respect to such 
costs.
    (2) Treatment as depreciation. If qualified capital costs are 
included in the basis of depreciable property, the amount of the section 
179B deduction allowed with respect to such costs is treated as a 
depreciation deduction for purposes of section 1245.
    (d) Election to deduct qualified capital costs--(1) In general--(i) 
Section 179B election. This paragraph (d) prescribes rules for the 
election to deduct the qualified capital costs paid or incurred by a 
small business refiner during a taxable year (the section 179B 
election). A small business refiner making the section 179B election for 
a taxable year consents to, and agrees to apply, all of the provisions 
of section 179B and this section to qualified capital costs paid or 
incurred by the refiner during the taxable year. The section 179B 
election for a taxable year applies with respect to all qualified 
capital costs paid or incurred by the small business refiner during that 
taxable year.
    (ii) Year-by-year election. A separate section 179B election must be 
made for each taxable year in which the taxpayer seeks to deduct 
qualified capital costs under section 179B. A small business refiner may 
make the section 179B election for some taxable years and not for other 
taxable years.
    (iii) Elections for cooperative small business refiners. See 
paragraph (e) of this section for the rules applicable to the election 
provided under section 179B(e), relating to the election to allocate the 
section 179B deduction to cooperative owners of a cooperative small 
business refiner (the section 179B(e) election).
    (2) Time and manner for making section 179B election--(i) Time for 
making election. Except as provided in paragraph (d)(2)(iii) of this 
section, a taxpayer's section 179B election for a taxable year must be 
made by the due date (including extensions) for filing the taxpayer's 
Federal income tax return for the taxable year.
    (ii) Manner of making election--(A) In general. Except as provided 
in paragraph (d)(2)(iii) of this section, the section 179B election for 
a taxable year is made by claiming a section 179B deduction on the 
taxpayer's original Federal income tax return for the taxable year and 
attaching the statement described in paragraph (d)(2)(ii)(B) of this 
section to the return. The section 179B election with respect to 
qualified capital costs paid or incurred by a partnership is made by the 
partnership and the section 179B election with respect to qualified 
capital costs paid or incurred by an S corporation is made by the S 
corporation. In the case of qualified capital costs paid or incurred by 
the members of a consolidated group (within the meaning of Sec. 1.1502-
1(h)), the section 179B election with respect to such costs is made for 
each member by the common parent of the group.
    (B) Information required in election statement. The election 
statement attached to the taxpayer's return must contain the following 
information:
    (1) The name and identification number of the small business 
refiner.
    (2) The amount of the qualified capital costs paid or incurred 
during the taxable year for which the election is made.
    (3) The aggregate average daily domestic refinery run (as determined 
under paragraph (a)(2)(iii) of this section).
    (4) The date by which the small business refiner must comply with 
the applicable EPA regulations. If this date is not June 1, 2006, the 
statement also must explain why compliance is not required by June 1, 
2006.
    (5) The calculation of the section 179B deduction for the taxable 
year.
    (6) For each property that will have its basis reduced on account of 
the section 179B deduction for the taxable year, a description of the 
property, the amount included in the basis of the property on account of 
qualified capital costs paid or incurred during the taxable year, and 
the amount of the basis reduction to that property on account of the 
section 179B deduction for the taxable year.
    (iii) Except as otherwise expressly provided by the Code, the 
regulations under the Code, or other guidance published in the Internal 
Revenue Bulletin, a section 179B election is valid

[[Page 231]]

only if made at the time and in the manner prescribed in this paragraph 
(d)(2). For example, except as otherwise expressly provided, the 179B 
election cannot be made for a taxable year to which this section applies 
through a request under section 446(e) to change the taxpayer's method 
of accounting.
    (3) Revocation of election. An election made under this paragraph 
(d) may not be revoked without the prior written consent of the 
Commissioner of Internal Revenue. To seek the Commissioner's consent, 
the taxpayer must submit a request for a private letter ruling (for 
further guidance, see, for example, Rev. Proc. 2008-1 (2008-1 IRB 1) and 
Sec. 601.601(d)(2)(ii)(b) of this chapter).
    (4) Failure to make election. If a small business refiner does not 
make the section 179B election for a taxable year at the time and in the 
manner prescribed in paragraph (d)(2) of this section, no deduction is 
allowed for the qualified capital costs that the refiner paid or 
incurred during the year. Instead these qualified capital costs are 
chargeable to a capital account in that taxable year, the basis of the 
property to which these costs are capitalized is not reduced on account 
of section 179B, and the amount of depreciation allowable for the 
property attributable to these costs is determined by reference to these 
costs unreduced by section 179B.
    (5) Elections for taxable years ending before June 26, 2008. This 
section does not apply to section 179B elections for taxable years 
ending before June 26, 2008. The rules for making the section 179B 
election for a taxable year ending before June 26, 2008 are provided in 
Notice 2006-47 (2006-20 IRB 892). See Sec. 601.601(d)(2)(ii)(b) of this 
chapter.
    (e) Election under section 179B(e) to allocate section 179B 
deduction to cooperative owners--(1) In general. A cooperative small 
business refiner may elect to allocate part or all of its cooperative 
owners' ratable shares of the section 179B deduction for a taxable year 
to the cooperative owners (the section 179B(e) election). The section 
179B deduction allocated to a cooperative owner is equal to the 
cooperative owner's ratable share of the total section 179B deduction 
allocated. A cooperative owner's ratable share is determined for this 
purpose on the basis of the cooperative owner's ownership interest in 
the cooperative small business refiner during the cooperative small 
business refiner's taxable year. If the cooperative owners' interests 
vary during the year, the cooperative small business refiner shall 
determine the owners' ratable shares under a consistently applied method 
that reasonably takes into account the owners' varying interests during 
the taxable year.
    (2) Cooperative small business refiner denied section 1382 deduction 
for allocated portion. In computing taxable income under section 1382, a 
cooperative small business refiner must reduce its section 179B 
deduction for the taxable year by an amount equal to the section 179B 
deduction allocated under this paragraph (e) to the refiner's 
cooperative owners for the taxable year.
    (3) Time and manner for making election--(i) Time for making 
election. The section 179B(e) election for a taxable year must be made 
by the due date (including extensions) for filing the cooperative small 
business refiner's Federal income tax return for the taxable year.
    (ii) Manner of making election. The section 179B(e) election for a 
taxable year is made by attaching a statement to the cooperative small 
business refiner's Federal income tax return for the taxable year. The 
election statement must contain the following information:
    (A) The name and identification number of the cooperative small 
business refiner.
    (B) The amount of the section 179B deduction allowable to the 
cooperative small business refiner for the taxable year (determined 
before the application of section 179B(e) and this paragraph (e)).
    (C) The name and identification number of each cooperative owner to 
which the cooperative small business refiner is allocating all or some 
of the section 179B deduction.
    (D) The amount of the section 179B deduction that is allocated to 
each cooperative owner listed in response to paragraph (e)(3)(ii)(C) of 
this section.
    (4) Irrevocable election. A section 179B(e) election for a taxable 
year, once made, is irrevocable for that taxable year.

[[Page 232]]

    (5) Written notice to owners. A cooperative small business refiner 
that makes a section 179B(e) election for a taxable year must notify 
each cooperative owner of the amount of the section 179B deduction that 
is allocated to that cooperative owner. This notification must be 
provided in a written notice that is mailed by the cooperative small 
business refiner to its cooperative owner before the due date (including 
extensions) of the cooperative small business refiner's Federal income 
tax return for the election year. In addition, the cooperative small 
business refiner must report the amount of the cooperative owner's 
section 179B deduction on Form 1099-PATR, ``Taxable Distributions 
Received From Cooperatives,'' issued to the cooperative owner. If Form 
1099-PATR is revised or renumbered, the amount of the cooperative 
owner's section 179B deduction must be reported on the revised or 
renumbered form.
    (f) Effective/applicability date--(1) In general. This section 
applies to taxable years ending on or after June 26, 2008.
    (2) Application to taxable years ending before June 26, 2008. A 
small business refiner may apply this section to a taxable year ending 
before June 26, 2008, provided that the small business refiner applies 
all provisions in this section, with the modifications described in 
paragraph (f)(3) of this section, to the taxable year.
    (3) Modifications applicable to taxable years ending before June 26, 
2008. The following modifications to the rules of this section apply to 
a small business refiner that applies those rules to a taxable year 
ending before June 26, 2008:
    (i) Rules relating to section 179B election. The section 179B 
election for a taxable year ending before June 26, 2008 may be made 
under the rules provided in Notice 2006-47, rather than under the rules 
set forth in paragraph (d) of this section.
    (ii) Rules relating to section 179B(e) election. A section 179B(e) 
election for a taxable year ending before June 26, 2008 will be treated 
as satisfying the requirements of paragraph (f) if the cooperative small 
business refiner has calculated its tax liability in a manner consistent 
with the election and has used any reasonable method consistent with the 
principles of section 179B(e) to inform the Internal Revenue Service 
that an election has been made under section 179B(e) and to inform 
cooperative owners of the amount of the section 179B deduction they have 
been allocated.
    (4) Expiration date. The applicability of Sec. 179B-1T expires on 
June 24, 2011.

[T.D. 9404, 73 FR 36422, June 27, 2008]



Sec. 1.179C-1  Election to expense certain refineries.

    (a) Scope and definitions--(1) Scope. This section provides the 
rules for determining the deduction allowable under section 179C(a) for 
the cost of any qualified refinery property. The provisions of this 
section apply only to a taxpayer that elects to apply section 179C in 
the manner prescribed under paragraph (d) of this section.
    (2) Definitions. For purposes of section 179C and this section, the 
following definitions apply:
    (i) Applicable environmental laws are any applicable federal, state, 
or local environmental laws.
    (ii) Qualified fuels has the meaning set forth in section 45K(c).
    (iii) Cost is the unadjusted depreciable basis (as defined in Sec. 
1.168(b)-1(a)(3), but without regard to the reduction in basis for any 
portion of the basis the taxpayer properly elects to treat as an expense 
under section 179C and this section) of the property.
    (iv) Throughput is a volumetric rate measuring the flow of crude 
oil, qualified fuels, or, in the case of property placed in service 
after October 3, 2008, and before January 1, 2014, shale or tar sands, 
processed over a given period of time, typically referenced on the basis 
of barrels per calendar day.
    (v) Barrels per calendar day is the amount of fuels that a facility 
can process under usual operating conditions, expressed in terms of 
capacity during a 24-hour period and reduced to account for down time 
and other limitations.
    (vi) United States has the same meaning as that term is defined in 
section 7701(a)(9).
    (b) Qualified refinery property--(1) In general. Qualified refinery 
property is

[[Page 233]]

any property that meets the requirements set forth in paragraphs (b)(2) 
through (b)(7) of this section.
    (2) Description of qualified refinery property--(i) In general. 
Property that comprises any portion of a qualified refinery may be 
qualified refinery property. For purposes of section 179C and this 
section, a qualified refinery is any refinery located in the United 
States that--
    (A) In the case of property placed in service after August 8, 2005, 
and on or before October 3, 2008, is designed to serve the primary 
purpose of processing liquid fuel from crude oil or qualified fuels; or
    (B) In the case of property placed in service after October 3, 2008, 
and before January 1, 2014, is designed to serve the primary purpose of 
processing liquid fuel from crude oil, qualified fuels, or directly from 
shale or tar sands.
    (ii) Nonqualified refinery property. Refinery property is not 
qualified refinery property for purposes of this paragraph (b)(2) if--
    (A) The primary purpose of the refinery property is for use as a 
topping plant, asphalt plant, lube oil facility, crude or product 
terminal, or blending facility; or
    (B) The refinery property is built solely to comply with consent 
decrees or projects mandated by Federal, State, or local governments.
    (3) Original use--(i) In general. For purposes of the deduction 
allowable under section 179C(a), refinery property will meet the 
requirements of this paragraph (b)(3) if the original use of the 
property commences with the taxpayer. Except as provided in paragraph 
(b)(3)(ii) of this section, original use means the first use to which 
the property is put, whether or not that use corresponds to the use of 
the property by the taxpayer. Thus, if a taxpayer incurs capital 
expenditures to recondition or rebuild property acquired or owned by the 
taxpayer, only the capital expenditures incurred by the taxpayer to 
recondition or rebuild the property acquired or owned by the taxpayer 
satisfy the original use requirement. However, the cost of reconditioned 
or rebuilt property acquired by a taxpayer does not satisfy the original 
use requirement. Whether property is reconditioned or rebuilt property 
is a question of fact. For purposes of this paragraph (b)(3)(i), 
acquired or self-constructed property that contains used parts will be 
treated as reconditioned or rebuilt only if the cost of the used parts 
is more than 20 percent of the total cost of the property.
    (ii) Sale-leaseback. If any new portion of a qualified refinery is 
originally placed in service by a person after August 8, 2005, and is 
sold to a taxpayer and leased back to the person by the taxpayer within 
three months after the date the property was originally placed in 
service by the person, the taxpayer-lessor is considered the original 
user of the property.
    (4) Placed-in-service date--(i) In general. Refinery property will 
meet the requirements of this paragraph (b)(4) if the property is placed 
in service by the taxpayer after August 8, 2005, and before January 1, 
2014.
    (ii) Sale-leaseback. If a new portion of refinery property is 
originally placed in service by a person after August 8, 2005, and is 
sold to a taxpayer and leased back to the person by the taxpayer within 
three months after the date the property was originally placed in 
service by the person, the property is treated as originally placed in 
service by the taxpayer-lessor not earlier than the date on which the 
property is used by the lessee under the leaseback.
    (5) Production capacity--(i) In general. Refinery property is 
considered qualified refinery property if--
    (A) It enables the existing qualified refinery to increase the total 
volume output, determined without regard to asphalt or lube oil, by at 
least 5 percent on an average daily basis;
    (B) In the case of property placed in service after August 8, 2005, 
and on or before October 3, 2008, it enables the existing qualified 
refinery to increase the percentage of total throughput attributable to 
processing qualified fuels to a rate that is at least 25 percent of 
total throughput on an average daily basis; or
    (C) In the case of property placed in service after October 3, 2008, 
and before January 1, 2014, it enables the existing qualified refinery 
to increase the percentage of total throughput attributable to 
processing qualified fuels,

[[Page 234]]

shale, or tar sands to a rate that is at least 25 percent of total 
throughput on an average daily basis.
    (ii) When production capacity is tested. The production capacity 
requirement of this paragraph (b)(5) is determined as of the date the 
property is placed in service by the taxpayer. Any reasonable method may 
be used to determine the appropriate baseline for measuring capacity 
increases and to demonstrate and substantiate that the capacity of the 
existing qualified refinery has been sufficiently increased.
    (iii) Multi-stage projects. In the case of multi-stage projects, a 
taxpayer must satisfy the reporting requirements of paragraph (f)(2) of 
this section, sufficient to establish that the production capacity 
requirements of this paragraph (b)(5) will be met as a result of the 
taxpayer's overall plan.
    (6) Applicable environmental laws--(i) In general. The environmental 
compliance requirement applies only with respect to refinery property, 
or any portion of refinery property, that is placed in service after 
August 8, 2005. A refinery's failure to meet applicable environmental 
laws with respect to a portion of the refinery that was in service prior 
to August 8, 2005 will not disqualify a taxpayer from making the 
election under section 179C(a) with respect to otherwise qualifying 
refinery property.
    (ii) Waiver under the Clean Air Act. Refinery property must comply 
with the Clean Air Act, notwithstanding any waiver received by the 
taxpayer under that Act.
    (7) Construction of property--(i) In general. Qualified property 
will meet the requirements of this paragraph (b)(7) if no written 
binding contract for the construction of the property was in effect 
before June 14, 2005, and if--
    (A) The construction of the property is subject to a written binding 
contract entered into before January 1, 2010;
    (B) The property is placed in service before January 1, 2010; or
    (C) In the case of self-constructed property, the construction of 
the property began after June 14, 2005, and before January 1, 2010.
    (ii) Definition of binding contract--(A) In general. A contract is 
binding only if it is enforceable under state law against the taxpayer 
or a predecessor, and does not limit damages to a specified amount (for 
example, by use of a liquidated damages provision). For this purpose, a 
contractual provision that limits damages to an amount equal to at least 
5 percent of the total contract price will not be treated as limiting 
damages to a specified amount. In determining whether a contract limits 
damages, the fact that there may be little or no damages because the 
contract price does not significantly differ from fair market value will 
not be taken into account.
    (B) Conditions. A contract is binding even if subject to a 
condition, as long as the condition is not within the control of either 
party or the predecessor of either party. A contract will continue to be 
binding if the parties make insubstantial changes in its terms and 
conditions, or if any term is to be determined by a standard beyond the 
control of either party. A contract that imposes significant obligations 
on the taxpayer or a predecessor will be treated as binding, 
notwithstanding the fact that insubstantial terms remain to be 
negotiated by the parties to the contract.
    (C) Options. An option to either acquire or sell property is not a 
binding contract.
    (D) Supply agreements. A binding contract does not include a supply 
or similar agreement if the payment amount and design specification of 
the property to be purchased have not been specified.
    (E) Components. A binding contract to acquire one or more components 
of a larger property will not be treated as a binding contract to 
acquire the larger property. If a binding contract to acquire a 
component does not satisfy the requirements of this paragraph (b)(7), 
the component is not qualified refinery property.
    (iii) Self-constructed property--(A) In general. Except as provided 
in paragraph (b)(7)(iii)(B) of this section, if a taxpayer manufactures, 
constructs, or produces property for use by the taxpayer in its trade or 
business (or for the production of income by the taxpayer), the 
construction of property

[[Page 235]]

rules in this paragraph (b)(7) are treated as met for qualified refinery 
property if the taxpayer begins manufacturing, constructing, or 
producing the property after June 14, 2005, and before January 1, 2010. 
Property that is manufactured, constructed, or produced for the taxpayer 
by another person under a written binding contract (as defined in 
paragraph (b)(7)(ii) of this section) that is entered into prior to the 
manufacture, construction, or production of the property for use by the 
taxpayer in its trade or business (or for the production of income) is 
considered to be manufactured, constructed, or produced by the taxpayer.
    (B) When construction begins. For purposes of this paragraph 
(b)(7)(iii), construction of property generally begins when physical 
work of a significant nature begins. Physical work does not include 
preliminary activities such as planning or designing, securing 
financing, exploring, or researching. The determination of when physical 
work of a significant nature begins depends on the facts and 
circumstances.
    (C) Components of self-constructed property--(1) Acquired 
components. If a binding contract (as defined in paragraph (b)(7)(ii) of 
this section) to acquire a component of self-constructed property is in 
effect on or before June 14, 2005, the component does not satisfy the 
requirements of paragraph (b)(7)(i) of this section, and is not 
qualified refinery property. However, if construction of the self-
constructed property begins after June 14, 2005, the self-constructed 
property may be qualified refinery property if it meets all other 
requirements of section 179C and this section (including paragraph 
(b)(7)(i) of this section), even though the component is not qualified 
refinery property. If the construction of self-constructed property 
begins before June 14, 2005, neither the self-constructed property nor 
any component related to the self-constructed property is qualified 
refinery property. If the component is acquired before January 1, 2010, 
but the construction of the self-constructed property begins after 
December 31, 2009, the component may qualify as qualified refinery 
property even if the self-constructed property is not qualified refinery 
property.
    (2) Self-constructed components. If the manufacture, construction, 
or production of a component fails to meet any of the requirements of 
paragraph (b)(7)(iii) of this section, the component is not qualified 
refinery property. However, if the manufacture, construction, or 
production of a component fails to meet any of the requirements provided 
in paragraph (b)(7)(iii) of this section, but the construction of the 
self-constructed property begins after June 14, 2005, the self 
constructed property may qualify as qualified refinery property if it 
meets all other requirements of section 179C and this section (including 
paragraph (b)(7)(i) of this section). If the construction of the self-
constructed property begins before June 14, 2005, neither the self-
constructed property nor any components related to the self-constructed 
property are qualified refinery property. If the component was self-
constructed before January 1, 2010, but the construction of the self-
constructed property begins after December 31, 2009, the component may 
qualify as qualified refinery property, although the self-constructed 
property is not qualified refinery property.
    (c) Computation of expense deduction for qualified refinery 
property. In general, the allowable deduction under paragraph (d) of 
this section for qualified refinery property is determined by 
multiplying by 50 percent the cost of the qualified refinery property 
paid or incurred by the taxpayer.
    (d) Election--(1) In general. A taxpayer may make an election to 
deduct as an expense 50 percent of the cost of any qualified refinery 
property. A taxpayer making this election takes the 50 percent deduction 
for the taxable year in which the qualified refinery property is placed 
in service.
    (2) Time and manner for making election--(i) Time for making 
election. An election specified in this paragraph (d) generally must be 
made not later than the due date (including extensions) for filing the 
original Federal income tax return for the taxable year in which the 
qualified refinery property is placed in service by the taxpayer.
    (ii) Manner of making election. The taxpayer makes an election under 
section 179C(a) and this paragraph (d) by

[[Page 236]]

entering the amount of the deduction at the appropriate place on the 
taxpayer's timely filed original Federal income tax return for the 
taxable year in which the qualified refinery property is placed in 
service, and attaching a report as specified in paragraph (f) of this 
section to the taxpayer's timely filed original federal income tax 
return for the taxable year in which the qualified refinery property is 
placed in service.
    (3) Revocation of election--(i) In general. An election made under 
section 179C(a) and this paragraph (d), and any specification contained 
in such election, may not be revoked except with the consent of the 
Commissioner of Internal Revenue.
    (ii) Revocation prior to the revocation deadline. A taxpayer is 
deemed to have requested, and to have been granted, the consent of the 
Commissioner to revoke an election under section 179C(a) and this 
paragraph (d) if the taxpayer revokes the election before the revocation 
deadline. The revocation deadline is 24 months after the due date 
(including extensions) for filing the taxpayer's Federal income return 
for the taxable year for which the election applies. An election under 
section 179C(a) and this paragraph (d) is revoked by attaching a 
statement to an amended return for the taxable year for which the 
election applies. The statement must specify the name and address of the 
refinery for which the election applies and the amount deducted on the 
taxpayer's original Federal income tax return for the taxable year for 
which the election applies.
    (iii) Revocation after the revocation deadline. An election under 
section 179C(a) and this paragraph (d) may not be revoked after the 
revocation deadline. The revocation deadline may not be extended under 
Sec. 301.9100-1.
    (iv) Revocation by cooperative taxpayer. A taxpayer that has made an 
election to allocate the section 179C deduction to cooperative owners 
under section 179C(g) and paragraph (e) of this section may not revoke 
its election under section 179C(a).
    (e) Election to allocate section 179C deduction to cooperative 
owners--(1) In general. If a cooperative taxpayer makes an election 
under section 179C(g) and this paragraph (e), the cooperative taxpayer 
may elect to allocate all, some, or none of the deduction allowable 
under section 179C(a) for that taxable year to the cooperative owner(s). 
This allocation is equal to the cooperative owner(s)' ratable share of 
the total amount allocated, determined on the basis of each cooperative 
owner's ownership interest in the cooperative taxpayer. For purposes of 
this section, a cooperative taxpayer is an organization to which part I 
of subchapter T applies, and in which another organization to which part 
I of subchapter T applies (cooperative owner) directly holds an 
ownership interest. No deduction shall be allowed under section 1382 for 
any amount allocated under this paragraph (e).
    (2) Time and manner for making election--(i) Time for making 
election. A cooperative taxpayer must make the election under section 
179C(g) and this paragraph (e) by the due date (including extensions) 
for filing the cooperative taxpayer's original Federal income tax return 
for the taxable year to which the cooperative taxpayer's election under 
section 179C(a) and paragraph (d) of this section applies.
    (ii) Manner of making election. An election under this paragraph (e) 
is made by attaching to the cooperative taxpayer's timely filed Federal 
income tax return for the taxable year (including extensions) to which 
the cooperative taxpayer's election under section 179C(a) and paragraph 
(d) of this section applies a statement providing the following 
information:
    (A) The name and taxpayer identification number of the cooperative 
taxpayer.
    (B) The amount of the deduction allowable to the cooperative 
taxpayer for the taxable year to which the election under section 
179C(a) and paragraph (d) of this section applies.
    (C) The name and taxpayer identification number of each cooperative 
owner to which the cooperative taxpayer is allocating all or some of the 
deduction allowable.
    (D) The amount of the allowable deduction that is allocated to each 
cooperative owner listed in paragraph (e)(2)(ii)(C) of this section.

[[Page 237]]

    (3) Written notice to owners. If any portion of the deduction 
allowable under section 179C(a) is allocated to a cooperative owner, the 
cooperative taxpayer must notify the cooperative owner of the amount of 
the deduction allocated to the cooperative owner in a written notice, 
and on Form 1099-PATR, ``Taxable Distributions Received from 
Cooperatives.'' This notice must be provided on or before the due date 
(including extensions) of the cooperative taxpayer's original federal 
income tax return for the taxable year for which the cooperative 
taxpayer's election under section 179C(a) and paragraph (d) of this 
section applies.
    (4) Irrevocable election. A section 179C(g) election, once made, is 
irrevocable.
    (f) Reporting requirement--(1) In general. A taxpayer may not claim 
a deduction under section 179C(a) for any taxable year unless the 
taxpayer files a report with the Secretary containing information with 
respect to the operation of the taxpayer's refineries.
    (2) Information to be included in the report. The taxpayer must 
specify--
    (i) The name and address of the refinery;
    (ii) Under which production capacity requirement under section 
179C(e) and paragraph (b)(5)(i)(A), (B), and (C) of this section the 
taxpayer's qualified refinery qualifies;
    (iii) Whether the refinery is qualified refinery property under 
section 179C(d) and paragraph (b)(2) of this section, sufficient to 
establish that the primary purpose of the refinery is to process liquid 
fuel from crude oil, qualified fuels, or directly from shale or tar 
sands.
    (iv) The total cost basis of the qualified refinery property at 
issue for the taxpayer's current taxable year; and
    (v) The depreciation treatment of the capitalized portion of the 
qualified refinery property.
    (3) Time and manner for submitting report--(i) Time for submitting 
report. The taxpayer is required to submit the report specified in this 
paragraph (f) not later than the due date (including extensions) of the 
taxpayer's Federal income tax return for the taxable year in which the 
qualified refinery property is placed in service.
    (ii) Manner of submitting report. The taxpayer must attach the 
report specified in this paragraph (f) to the taxpayer's timely filed 
original Federal income tax return for the taxable year in which the 
qualified refinery property is placed in service.
    (g) Effective/applicability date. This section is applicable for 
taxable years ending on or after August 22, 2011. For taxable years 
ending before August 22, 2011, taxpayers may apply the proposed 
regulations published on July 9, 2008, or, in the alternative, may apply 
these final regulations.

[T.D. 9547, 76 FR 52558, Aug. 23, 2011]



Sec. 1.180-1  Expenditures by farmers for fertilizer, etc.

    (a) In general. A taxpayer engaged in the business of farming may 
elect, for any taxable year beginning after December 31, 1959, to treat 
as deductible expenses those expenditures otherwise chargeable to 
capital account which are paid or incurred by him during the taxable 
year for the purchase or acquisition of fertilizer, lime, ground 
limestone, marl, or other materials to enrich, neutralize, or condition 
land used in farming, and those expenditures otherwise chargeable to 
capital account paid or incurred for the application of such items and 
materials to such land. No election is required to be made for those 
expenditures which are not capital in nature. Section 180, Sec. 1.180-
2, and this section are not applicable to those expenses which are 
deductible under section 162 and the regulations thereunder or which are 
subject to the method described in section 175 and the regulations 
thereunder.
    (b) Land used in farming. For purposes of section 180(a) and of 
paragraph (a) of this section, the term land used in farming means land 
used (before or simultaneously with the expenditures described in such 
section and such paragraph) by the taxpayer or his tenant for the 
production of crops, fruits, or other agricultural products or for the 
sustenance of livestock. See section 180(b). Expenditures for the 
initial preparation of land never previously used for farming purposes 
by the taxpayer or his tenant (although chargeable to capital account) 
are not subject to the election. The principles stated in

[[Page 238]]

Sec. Sec. 1.175-3 and 1.175-4 are equally applicable under this section 
in determining whether the taxpayer is engaged in the business of 
farming and whether the land is used in farming.

(74 Stat. 1001, 26 U.S.C. 180)

[T.D. 6548, 26 FR 1486, Feb. 22, 1961]



Sec. 1.180-2  Time and manner of making election and revocation.

    (a) Election. The claiming of a deduction on the taxpayer's return 
for an amount to which section 180 applies for amounts (otherwise 
chargeable to capital account) expended for fertilizer, lime, etc., 
shall constitute an election under section 180 and paragraph (a) of 
Sec. 1.180-1. Such election shall be effective only for the taxable 
year for which the deduction is claimed.
    (b) Revocation. Once the election is made for any taxable year such 
election may not be revoked without the consent of the district director 
for the district in which the taxpayer's return is required to be filed. 
Such requests for consent shall be in writing and signed by the taxpayer 
or his authorized representative and shall set forth:
    (1) The name and address of the taxpayer;
    (2) The taxable year to which the revocation of the election is to 
apply;
    (3) The amount of expenditures paid or incurred during the taxable 
year, or portions thereof (where applicable), previously taken as a 
deduction on the return in respect of which the revocation of the 
election is to be applicable; and
    (4) The reasons for the request to revoke the election.

(74 Stat. 1001, 26 U.S.C. 180)

[T.D. 6548, 26 FR 1486, Feb. 22, 1961]



Sec. 1.181-0  Table of contents.

    This section lists the table of contents for Sec. Sec. 1.181-1 
through 1.181-6.

  Sec. 1.181-1 Deduction for qualified film and television production 
                                 costs.

    (a) Deduction.
    (1) In general.
    (2) Owner.
    (3) Production costs.
    (4) Aggregate production costs.
    (5) Pre-amendment production.
    (6) Post-amendment production.
    (7) Initial release or broadcast.
    (8) Special rule.
    (b) Limit on amount of aggregate production costs and amount of 
deduction.
    (1) In general.
    (i) Pre-amendment production.
    (ii) Post-amendment production.
    (iii) Special rules.
    (2) Higher limit for productions in certain areas.
    (i) In general.
    (ii) Significantly paid or incurred for live action productions.
    (iii) Significantly paid or incurred for animated productions.
    (iv) Significantly paid or incurred for productions incorporating 
both live action and animation.
    (v) Establishing qualification.
    (vi) Allocation.
    (c) Effect on depreciation or amortization of a qualified film or 
television production.
    (1) Pre-amendment production.
    (2) Post-amendment production.

           Sec. 1.181-2 Election to deduct production costs.

    (a) Election.
    (1) In general.
    (2) Exception.
    (b) Time of making election.
    (1) In general.
    (2) Special rule.
    (3) Six-month extension.
    (c) Manner of making election.
    (1) In general.
    (2) Information required.
    (i) Initial election.
    (ii) Subsequent taxable years.
    (3) Deductions by more than one person.
    (d) Revocation of election.
    (1) In general.
    (2) Consent granted.

         Sec. 1.181-3 Qualified film or television production.

    (a) In general.
    (b) Production.
    (1) In general.
    (2) Special rules for television productions.
    (3) Exception for certain sexually explicit productions.
    (c) Compensation.
    (d) Qualified compensation.
    (e) Special rule for acquired productions.
    (f) Other definitions.
    (1) Actors.
    (2) Production personnel.
    (3) United States.

                      Sec. 1.181-4 Special rules.

    (a) Recapture.
    (1) Applicability.
    (i) In general.
    (ii) Special rule.
    (2) Principal photography not commencing prior to the date of 
expiration of section 181.

[[Page 239]]

    (3) Amount of recapture.
    (b) Recapture under section 1245.

                         Sec. 1.181-5 Examples.

               Sec. 1.181-6 Effective/applicability date.

    (a) In general.
    (b) Pre-effective date productions.

[T.D. 9551, 76 FR 60724, Sept. 30, 2011, as amended by T.D. 9603, 77 FR 
72924, Dec. 7, 2012]



Sec. 1.181-1  Deduction for qualified film and television production 
costs.

    (a) Deduction--(1) In general. (i) An owner (as defined in paragraph 
(a)(2) of this section) of any film or television production 
(production, as defined in Sec. 1.181-3(b)) that the owner reasonably 
expects will be, upon completion, a qualified film or television 
production (as defined in Sec. 1.181-3(a)) may elect to treat 
production costs paid or incurred by that owner (subject to the limits 
imposed under paragraph (b) of this section) as an expense that is 
deductible for the taxable year in which the costs are paid (for an 
owner who uses the cash receipts and disbursements method of accounting) 
or incurred (for an owner who uses an accrual method of accounting). The 
deduction under section 181 is subject to recapture if the owner's 
expectations are later determined to be inaccurate.
    (ii) This section provides rules for determining the owner of a 
production, the production costs (as defined in paragraph (a)(3) of this 
section), the maximum amount of aggregate production costs (as defined 
in paragraph (a)(4) of this section) that may be paid or incurred for a 
pre-amendment production (as defined in paragraph (a)(5) of this 
section) for which the owner makes an election under section 181, and 
the maximum amount of aggregate production costs that may be claimed as 
a deduction for a post-amendment production (as defined in paragraph 
(a)(6) of this section) for which the owner makes an election under 
section 181. Section 1.181-2 provides rules for making the election 
under section 181. Section 1.181-3 provides definitions and rules 
concerning qualified film and television productions. Section 1.181-4 
provides special rules, including rules for recapture of the deduction. 
Section 1.181-5 provides examples of the application of Sec. Sec. 
1.181-1 through 1.181-4, while Sec. 1.181-6 provides the effective date 
of Sec. Sec. 1.181-1 through 1.181-5.
    (2) Owner. (i) For purposes of this section and Sec. Sec. 1.181-2 
through 1.181-6, an owner of a production is any person that is required 
under section 263A to capitalize the costs of producing the production 
into the cost basis of the production, or that would be required to do 
so if section 263A applied to that person.
    (ii) Further, a person that acquires a finished or partially-
finished production is treated as an owner of that production for 
purposes of this section and Sec. Sec. 1.181-2 through 1.181-6, but 
only if the production is acquired prior to its initial release or 
broadcast (as defined in paragraph (a)(7) of this section). Moreover, a 
person that acquires only a limited license or right to exploit a 
production, or receives an interest or profit participation in a 
production, as compensation for services, is not an owner of the 
production for purposes of this section and Sec. Sec. 1.181-2 through 
1.181-6.
    (3) Production costs. (i) For purposes of this section and 
Sec. Sec. 1.181-2 through 1.181-6, the term production costs means all 
costs that are paid or incurred by an owner in producing a production 
that are required, absent the provisions of section 181, to be 
capitalized under section 263A, or that would be required to be 
capitalized if section 263A applied to the owner, and, if applicable, 
all costs that are paid or incurred by an owner in acquiring a 
production prior to its initial release or broadcast. Production costs 
include, but are not limited to, participations and residuals paid or 
incurred, compensation paid or incurred for services, compensation paid 
or incurred for property rights, non-compensation costs, and costs paid 
or incurred in connection with obtaining financing for the production 
(for example, premiums paid or incurred to obtain a completion bond for 
the production).
    (ii) Production costs do not include costs paid or incurred to 
distribute or exploit a production (including advertising and print 
costs).
    (iii) Production costs do not include the costs to prepare a new 
release or

[[Page 240]]

new broadcast of an existing production after the initial release or 
broadcast of the production (for example, the preparation of a DVD 
release of a theatrically-released film, or the preparation of an edited 
version of a theatrically-released film for television broadcast). Costs 
paid or incurred to prepare a new release or a new broadcast of a 
production after its initial release or broadcast, therefore, are not 
taken into account for purposes of paragraph (b)(1) of this section, and 
may not be deducted under this paragraph (a).
    (iv) If a pre-amendment production is acquired from any person prior 
to its initial release or broadcast, the acquiring person must use as 
its initial aggregate costs the greater of--
    (A) The cost of acquisition; or
    (B) The seller's aggregate production costs.
    (v) Production costs do not include costs that the owner has 
deducted or begun to amortize prior to the taxable year the owner makes 
an election under Sec. 1.181-2 for the production (for example, costs 
described in Sec. 1.181-2(a)(2)). These costs, however, are included in 
aggregate production costs to the extent they would have been treated as 
production costs by the owner notwithstanding this paragraph (a)(3)(v).
    (4) Aggregate production costs. The term aggregate production costs 
means all production costs described in paragraph (a)(3) of this section 
paid or incurred by any person, whether paid or incurred directly by an 
owner or indirectly on behalf of an owner.
    (5) Pre-amendment production. The term pre-amendment production 
means a qualified film or television production commencing after October 
22, 2004, and before January 1, 2008.
    (6) Post-amendment production. The term post-amendment production 
means a qualified film or television production commencing on or after 
January 1, 2008.
    (7) Initial release or broadcast. Solely for purposes of this 
section and Sec. Sec. 1.181-2 through 1.181-6, the term initial release 
or broadcast means the first commercial exhibition or broadcast of a 
production to an audience. However, the term ``initial release or 
broadcast'' does not include limited exhibition prior to commercial 
exhibition to general audiences if the limited exhibition is primarily 
for purposes of publicity, marketing to potential purchasers or 
distributors, determining the need for further production activity, or 
raising funds for the completion of production. For example, the term 
initial release or broadcast does not include exhibition to a test 
audience to determine the need for further production activity, or 
exhibition at a film festival for promotional purposes, if the 
exhibition precedes commercial exhibition to general audiences.
    (8) Special rule. The provisions of this paragraph (a) apply 
notwithstanding the treatment of participations and residuals permitted 
under the income forecast method in section 167(g)(7)(D).
    (b) Limit on amount of aggregate production costs and amount of 
deduction--(1) In general--(i) Pre-amendment production. Except as 
provided under paragraph (b)(2) of this section, no deduction is allowed 
under section 181 for any pre-amendment production, the aggregate 
production costs of which exceed $15,000,000. See also paragraph 
(a)(3)(iv) of this section. For a pre-amendment production for which the 
aggregate production costs do not exceed $15,000,000 (or, if applicable 
under paragraph (b)(2) of this section, $20,000,000), an owner may 
deduct under section 181 all of the production costs paid or incurred by 
that owner.
    (ii) Post-amendment production. Section 181 permits a deduction for 
the first $15,000,000 (or, if applicable under paragraph (b)(2) of this 
section, $20,000,000) of the aggregate production costs of any post-
amendment production.
    (iii) Special rules. The owner's deduction under section 181 is 
limited to the owner's acquisition costs of the production plus any 
further production costs paid or incurred by the owner. The deduction 
under section 181 is not available for any portion of the acquisition 
costs, and any subsequent production costs, of a production with an 
initial release or broadcast that is prior to the date of acquisition.
    (2) Higher limit for productions in certain areas--(i) In general. 
This section is applied by substituting $20,000,000 for

[[Page 241]]

$15,000,000 in paragraph (b)(1) of this section for any production the 
aggregate production costs of which are significantly paid or incurred 
in an area eligible for designation as--
    (A) A low income community under section 45D; or
    (B) A distressed county or isolated area of distress by the Delta 
Regional Authority established under 7 U.S.C. section 2009aa-1.
    (ii) Significantly paid or incurred for live action productions. The 
aggregate production costs of a live action production are significantly 
paid or incurred within one or more areas specified in paragraph 
(b)(2)(i) of this section if--
    (A) At least 20 percent of the aggregate production costs paid or 
incurred in connection with first-unit principal photography for the 
production are paid or incurred in connection with first-unit principal 
photography that takes place in such areas; or
    (B) At least 50 percent of the total number of days of first-unit 
principal photography for the production consists of days during which 
first-unit principal photography takes place in such areas.
    (iii) Significantly paid or incurred for animated productions. For 
purposes of an animated production, the aggregate production costs of 
the production are significantly paid or incurred within one or more 
areas specified in paragraph (b)(2)(i) of this section if--
    (A) At least 20 percent of the aggregate production costs paid or 
incurred in connection with keyframe animation, in-between animation, 
animation photography, and the recording of voice acting performances 
for the production are paid or incurred in connection with such 
activities that take place in such areas; or
    (B) At least 50 percent of the total number of days of keyframe 
animation, in-between animation, animation photography, and the 
recording of voice acting performances for the production consists of 
days during which such activities take place in such areas.
    (iv) Significantly paid or incurred for productions incorporating 
both live action and animation. For purposes of a production 
incorporating both live action and animation, the aggregate production 
costs of the production are significantly paid or incurred within one or 
more areas specified in paragraph (b)(2)(i) of this section if--
    (A) At least 20 percent of the aggregate production costs paid or 
incurred in connection with first-unit principal photography, keyframe 
animation, in-between animation, animation photography, and the 
recording of voice acting performances for the production are paid or 
incurred in connection with such activities that take place in such 
areas; or
    (B) At least 50 percent of the total number of days of first-unit 
principal photography, keyframe animation, in-between animation, 
animation photography, and the recording of voice acting performances 
for the production consists of days during which such activities take 
place in such areas.
    (v) Establishing qualification. An owner intending to utilize the 
higher aggregate production costs limit under this paragraph (b)(2) must 
establish qualification under this paragraph (b)(2).
    (vi) Allocation. Solely for purposes of determining whether a 
production qualifies for the higher production cost limit (for pre-
amendment productions) or deduction limit (for post-amendment 
productions) provided under this paragraph (b)(2), compensation to 
actors (as defined in Sec. 1.181-3(f)(1)), directors, producers, and 
other relevant production personnel (as defined in Sec. 1.181-3 (f)(2)) 
is allocated entirely to first-unit principal photography.
    (c) Effect on depreciation or amortization of a qualified film or 
television production--(1) Pre-amendment production. Except as provided 
in Sec. Sec. 1.181-1(a)(3)(v) and 1.181-2(a)(2), an owner that elects 
to deduct production costs under section 181 for a pre-amendment 
production may not deduct production costs for that production under any 
provision of the Internal Revenue Code other than section 181 unless the 
recapture requirements of Sec. 1.181-4(a) apply to the production.
    (2) Post-amendment production. Amounts not allowable as a deduction 
under section 181 for a post-amendment

[[Page 242]]

production may be deducted under any other applicable provision of the 
Code.

[T.D. 9551, 76 FR 60724, Sept. 30, 2011, as amended by T.D. 9552, 76 FR 
64817, Oct. 19, 2011; T.D. 9603, 77 FR 72924, Dec. 7, 2012]



Sec. 1.181-2  Election to deduct production costs.

    (a) Election--(1) In general. Except as provided in paragraph (a)(2) 
of this section, an owner may make an election under section 181 to 
deduct production costs of a production only if that owner has not 
deducted in a previous taxable year any production costs for that 
production under any provision of the Internal Revenue Code (Code) other 
than section 181.
    (2) Exception. An owner may make an election under section 181 
despite prior deductions under any other provision of the Code for 
amortization of the costs of acquiring or developing screenplays, 
scripts, story outlines, motion picture production rights to books and 
plays, and other similar properties for purposes of potential future 
development or production of a production, if such costs were paid or 
incurred before the first taxable year for which an election may be made 
under Sec. 1.181-2(b) and are included in aggregate production costs.
    (b) Time of making election--(1) In general. The election to deduct 
production costs for a production under section 181 must be made by the 
due date (including any extension) for filing the owner's Federal income 
tax return for the first taxable year in which:
    (i) Any aggregate production costs have been paid or incurred;
    (ii) The owner reasonably expects (based on all of the facts and 
circumstances) that the production will be set for production and will, 
upon completion, be a qualified film or television production; and
    (iii) For any pre-amendment production, the owner reasonably expects 
(based on all of the facts and circumstances) that the aggregate 
production costs paid or incurred for the pre-amendment production will, 
at no time, exceed the applicable aggregate production costs limit set 
forth under Sec. 1.181-1(b)(1)(i) or (b)(2).
    (2) Special rule. If paragraph (b)(1) of this section is not 
satisfied until a taxable year subsequent to the taxable year in which 
any aggregate production costs were first paid or incurred, the owner 
must make the election for the taxable year in which paragraph (b)(1) of 
this section is first satisfied, and any production costs paid or 
incurred prior to the taxable year in which the owner makes the election 
and not deducted in a prior taxable year are treated as production costs 
(except costs described in Sec. 1.181-2(a)(2)) that are deductible 
under Sec. 1.181-1(a)(1)(i) for the taxable year paragraph (b)(1) of 
this section is first satisfied and the election is made.
    (3) Six-month extension. See Sec. 301.9100-2 for a six-month 
extension of time to make the election in certain circumstances.
    (c) Manner of making election--(1) In general. An owner must make 
the election under section 181 separately for each production. For a 
production owned by an entity, the election must be made by the entity. 
For example, if the production is owned by a partnership or S 
corporation, the partnership or S corporation must make the election.
    (2) Information required--(i) Initial election. For each production 
to which the election applies, the owner must attach a statement to the 
owner's Federal income tax return for the taxable year of the election 
stating that the owner is making an election under section 181 and 
providing--
    (A) The name (or other unique identifying designation) of the 
production;
    (B) The date aggregate production costs were first paid or incurred 
for the production;
    (C) The amount of aggregate production costs paid or incurred for 
the production during the taxable year (including costs described in 
Sec. Sec. 1.181-1(a)(3)(v) and 1.181-2(b)(2));
    (D) The amount of qualified compensation (as defined in Sec. 1.181-
3(d)) paid or incurred for the production during the taxable year 
(including costs described in Sec. 1.181-2(b)(2));
    (E) The amount of compensation (as defined in Sec. 1.181-3(c)) paid 
or incurred for the production during the taxable year (including costs 
described in Sec. 1.181-2(b)(2));

[[Page 243]]

    (F) If the owner expects that the aggregate production costs of the 
production will be significantly paid or incurred in (or, if applicable, 
if a significant portion of the total number of days of first-unit 
principal photography will occur in) one or more of the areas specified 
in Sec. 1.181-1(b)(2)(i), the identity of the area or areas, the amount 
of aggregate production costs paid or incurred (or the number of days of 
first-unit principal photography engaged in) for the applicable 
activities described in Sec. 1.181-1(b)(2)(ii), (b)(2)(iii), or 
(b)(2)(iv), as applicable, that took place within such areas (including 
costs described in Sec. Sec. 1.181-1(a)(3)(v) and 1.181-2(b)(2)), and 
the aggregate production costs paid or incurred (or the total number of 
days of first-unit principal photography engaged in) for such activities 
(whether or not they took place in such areas), for the taxable year 
(including costs described in Sec. Sec. 1.181-1(a)(3)(v) and 1.181-
2(b)(2));
    (G) A declaration that the owner reasonably expects (based on all of 
the facts and circumstances at the time the election is made) both that 
the production will be set for production (or has been set for 
production) and will be a qualified film or television production; and
    (H) For any pre-amendment production, a declaration that the owner 
reasonably expects (based on all of the facts and circumstances at the 
time the election is made) that the aggregate production costs paid or 
incurred for the pre-amendment production will not, at any time, exceed 
the applicable aggregate production costs limit set forth under Sec. 
1.181-1(b)(1)(i) or (b)(2).
    (ii) Subsequent taxable years. If the owner pays or incurs 
additional production costs in any taxable year subsequent to the 
taxable year for which production costs are first deducted under section 
181, the owner must attach a statement to its Federal income tax return 
for that subsequent taxable year providing--
    (A) The name (or other unique identifying designation) of the 
production that was used in the initial election, and any revised name 
(or unique identifying designation) subsequently used for the 
production;
    (B) The date the aggregate production costs were first paid or 
incurred for the production;
    (C) The amount of aggregate production costs paid or incurred for 
the production during the current taxable year;
    (D) The amount of qualified compensation paid or incurred for the 
production during the current taxable year;
    (E) The amount of compensation paid or incurred for the production 
during the current taxable year, and the aggregate amount of 
compensation paid or incurred for the production in all prior taxable 
years;
    (F) If the owner expects that the aggregate production costs of the 
production will be significantly paid or incurred in (or, if applicable, 
if a significant portion of the total number of days of first-unit 
principal photography will occur in) one or more of the areas specified 
in Sec. 1.181-1(b)(2)(i), the identity of the area or areas, the amount 
of aggregate production costs paid or incurred (or the number of days of 
first-unit principal photography engaged in) for the applicable 
activities described in Sec. 1.181-1(b)(2)(ii), (b)(2)(iii), or 
(b)(2)(iv), as applicable, that took place within such areas, and the 
aggregate production costs paid or incurred (or the number of days of 
first-unit principal photography engaged in) for such activities 
(whether or not they took place in such areas), for the current taxable 
year;
    (G) A declaration that the owner continues to reasonably expect 
(based on all of the facts and circumstances at the end of the current 
taxable year) both that the production will be set for production (or 
has been set for production) and will be a qualified film or television 
production; and
    (H) For any pre-amendment production, a declaration that the owner 
continues to reasonably expect (based on all of the facts and 
circumstances at the end of the current taxable year) that the aggregate 
production costs paid or incurred for the pre-amendment production will 
not, at any time, exceed the applicable aggregate production costs limit 
set forth under Sec. 1.181-1(b)(1)(i) or (b)(2).

[[Page 244]]

    (3) Deductions by more than one person. If more than one person will 
claim deductions under section 181 with respect to the production for 
the taxable year, each person claiming the deduction (but not the 
members of an entity who are issued a Schedule K-1 by the entity with 
respect to their interest in the production) must provide a list of the 
names and taxpayer identification numbers of all such persons, the 
dollar amount that each such person will deduct under section 181, and 
the information required by paragraph (c)(2) of this section for all 
such persons. Notwithstanding the preceding sentence, whether or not 
multiple persons form a partnership with respect to the production will 
be determined in accordance with Sec. 301.7701-3 of this chapter.
    (d) Revocation of election--(1) In general. An owner may revoke an 
election made under this section only with the consent of the 
Commissioner. Except as provided in paragraph (d)(2) of this section, an 
owner seeking consent to revoke an election made under this section must 
submit a letter ruling request, other than a Form 3115, ``Application 
for Change in Accounting Method,'' under the appropriate revenue 
procedure. See, for example, Rev. Proc. 2011-1, 2011-1 CB 1 (updated 
annually) (see Sec. 601.601(d)(2)(ii)(b) of this chapter).
    (2) Consent granted. The Commissioner grants consent to an owner to 
revoke an election under this section for a particular production if the 
owner--
    (i) Complies with the recapture provisions of Sec. 1.181-4(a)(3) on 
a timely filed (including any extension) original Federal income tax 
return for the taxable year of the revocation; and
    (ii) Attaches a statement to that Federal income tax return that 
includes the name of the production that was in the owner's original 
election statement, and any revised name (or other unique identifying 
designation) of the production, and a statement that the owner revokes 
the election under section 181 for that production, pursuant to Sec. 
1.181-2(d)(2).

[T.D. 9551, 76 FR 60726, Sept. 30, 2011]



Sec. 1.181-3  Qualified film or television production.

    (a) In general. The term qualified film or television production 
means any production (as defined in paragraph (b) of this section) for 
which not less than 75 percent of the aggregate amount of compensation 
(as defined in paragraph (c) of this section) paid or incurred for the 
production is qualified compensation (as defined in paragraph (d) of 
this section).
    (b) Production--(1) In general. Except as provided in paragraph 
(b)(3) of this section, for purposes of this section and Sec. Sec. 
1.181-1, 1.181-2, 1.181-4, 1.181-5, and 1.181-6, the term production 
means any motion picture film or video tape (including digital video) 
production the production costs of which are subject to capitalization 
under section 263A, or that would be subject to capitalization if 
section 263A applied to the owner of the production. If, prior to its 
initial release or broadcast, a person acquires a completed motion 
picture film or video tape (including digital video) that the seller was 
entitled to treat as a production under this paragraph (b)(1), then the 
new owner may treat the acquired asset as a production within the 
meaning of this paragraph (b)(1).
    (2) Special rules for television productions. Each episode of a 
television series is a separate production to which the rules, limits, 
and election requirements of this section and Sec. Sec. 1.181-1, 1.181-
2, 1.181-4, 1.181-5, and 1.181-6 apply. An owner may elect to deduct 
production costs under section 181 only for the first 44 episodes of a 
television series (including pilot episodes). A television series may 
include more than one season of programming.
    (3) Exception for certain sexually explicit productions. A 
production does not include property for which records are required to 
be maintained under 18 U.S.C. 2257.
    (c) Compensation. The term compensation means, for purposes of this 
section and Sec. 1.181-2(c)(2), all amounts paid or incurred either 
directly by the owner or indirectly on the owner's behalf for services 
performed by actors (as defined in paragraph (f)(1) of this section), 
directors, producers, and other production personnel (as defined in

[[Page 245]]

paragraph (f)(2) of this section) for the production. Examples of 
indirect payments paid or incurred on the owner's behalf are payments by 
a partner on behalf of an owner that is a partnership, payments by a 
shareholder on behalf of an owner that is a corporation, and payments by 
a contract producer on behalf of the owner. Payments for services are 
all elements of compensation as provided for in Sec. Sec. 1.263A-
1(e)(2)(i)(B) and (e)(3)(ii)(D). Compensation is not limited to wages 
reported on Form W-2, ``Wage and Tax Statement,'' and includes 
compensation paid or incurred to independent contractors. However, 
solely for purposes of paragraph (a) of this section, the term 
``compensation'' does not include participations and residuals (as 
defined in section 167(g)(7)(B)). See Sec. 1.181-1(a)(3) for additional 
rules concerning participations and residuals.
    (d) Qualified compensation. The term qualified compensation means, 
for purposes of this section and Sec. 1.181-2(c)(2), all compensation 
(as defined in paragraph (c) of this section) paid or incurred for 
services performed in the United States (as defined in paragraph (f)(3) 
of this section) by actors, directors, producers, and other production 
personnel for the production. A service is performed in the United 
States for purposes of this paragraph (d) if the principal photography 
to which the compensated service relates occurs within the United States 
and the person performing the service is physically present in the 
United States. For purposes of an animated film or animated television 
production, the location where production activities such as keyframe 
animation, in-between animation, animation photography, and the 
recording of voice acting performances are performed is considered in 
lieu of the location of principal photography. For purposes of a 
production incorporating both live action and animation, the location 
where production activities such as keyframe animation, in-between 
animation, animation photography, and the recording of voice acting 
performances for the production is considered in addition to the 
location of principal photography.
    (e) Special rule for acquired productions. A person who acquires a 
production from a prior owner must take into account all compensation 
paid or incurred by or on behalf of the seller and any previous owners 
in determining if the production is a qualified film or television 
production as defined in paragraph (a) of this section. Any owner that 
elects to deduct as production costs the costs of acquiring a production 
and any subsequent production costs must obtain from the seller detailed 
records concerning the compensation paid or incurred for the production 
and, for a pre-amendment production, concerning aggregate production 
costs, in order to demonstrate the eligibility of the production under 
section 181.
    (f) Other definitions. The following definitions apply for purposes 
of this section and Sec. Sec. 1.181-1, 1.181-2, 1.181-4, 1.181-5, and 
1.181-6:
    (1) Actors. The term actors means players, newscasters, or any other 
persons who are compensated for their performance or appearance in a 
production.
    (2) Production personnel. The term production personnel means 
persons who are compensated for providing services directly related to 
the production, such as writers, choreographers, composers, casting 
agents, camera operators, set designers, lighting technicians, and make-
up artists.
    (3) United States. The term United States means the 50 states, the 
District of Columbia, the territorial waters of the continental United 
States, the airspace or space over the continental United States and its 
territorial waters, and the seabed and subsoil of those submarine areas 
that are adjacent to the territorial waters of the continental United 
States and over which the United States has exclusive rights, in 
accordance with international law, for the exploration and exploitation 
of natural resources. The term ``United States'' does not include 
possessions and territories of the United States (or the airspace or 
space over these areas).

[T.D. 9551, 76 FR 60727, Sept. 30, 2011]



Sec. 1.181-4  Special rules.

    (a) Recapture--(1) Applicability--(i) In general. The requirements 
of this paragraph (a) apply notwithstanding

[[Page 246]]

whether an owner has satisfied the revocation requirements of Sec. 
1.181-2(d). An owner that claimed a deduction under section 181 for a 
production in any taxable year in an amount in excess of the amount that 
would be allowable as a deduction for that year in the absence of 
section 181 must recapture the excess amount as provided for in 
paragraph (a)(3) of this section for the production in the first taxable 
year for which--
    (A) For any pre-amendment production, the aggregate production costs 
of the production exceed the applicable aggregate production costs limit 
under Sec. 1.181-1(b)(1)(i) or (b)(2);
    (B) For any pre-amendment production, the owner no longer reasonably 
expects (based on all of the facts and circumstances at the end of the 
current taxable year) that the aggregate production costs of the 
production will not, at any time, exceed the applicable aggregate 
production costs limit set forth under Sec. 1.181-1(b)(1)(i) or (b)(2);
    (C) The owner no longer reasonably expects (based on all of the 
facts and circumstances at the end of the current taxable year) either 
that the production will be set for production or that the production 
will be a qualified film or television production; or
    (D) The owner revokes the election pursuant to Sec. 1.181-2(d).
    (ii) Special rule. An owner that claimed a deduction under section 
181 and disposes of the production prior to its initial release or 
broadcast must recapture the entire amount specified under paragraph 
(a)(3) of this section in the year the owner disposes of the production 
before computing gain or loss from the disposition.
    (2) Principal photography not commencing prior to the date of 
expiration of section 181. If an owner claims a deduction under section 
181 for a production for which principal photography does not commence 
prior to the date of expiration of section 181, the owner must recapture 
deductions as provided for in paragraph (a)(3) of this section in the 
owner's taxable year that includes the date of expiration of section 
181.
    (3) Amount of recapture. An owner subject to the recapture 
requirements under this section must, for the taxable year in which 
recapture is required, include in the owner's gross income as ordinary 
income and add to the owner's adjusted basis in the property--
    (i) For a production that is placed in service in a taxable year 
prior to the taxable year for which recapture is required, the 
difference between the aggregate amount the owner claimed as a deduction 
under section 181 for the production for all such prior taxable years 
and the aggregate depreciation deductions that would have been allowable 
for the production for such prior taxable years (or that the owner could 
have elected to deduct in the taxable year that the production was 
placed in service) for the production under the owner's method of 
accounting; or
    (ii) For a production that has not been placed in service, the 
aggregate amount claimed as a deduction under section 181 for the 
production for all such prior taxable years.
    (b) Recapture under section 1245. For purposes of recapture under 
section 1245, any deduction allowed under section 181 is treated as a 
deduction allowable for amortization.

[T.D. 9551, 76 FR 60728, Sept. 30, 2011]



Sec. 1.181-5  Examples.

    The following examples illustrate the application of Sec. Sec. 
1.181-1 through 1.181-4:

    Example 1. X, a corporation that uses an accrual method of 
accounting and files Federal income tax returns on a calendar-year 
basis, is a producer of films. X is the owner (within the meaning of 
Sec. 1.181-1(a)(2)) of film ABC. X incurs production costs in year 1, 
but does not commence principal photography for film ABC until year 2. 
In year 1, X reasonably expects, based on all of the facts and 
circumstances, that film ABC will be set for production and will be a 
qualified film or television production. Provided that X satisfies all 
other requirements of Sec. Sec. 1.181-1 through 1.181-4 and Sec. 
1.181-6, X may deduct in year 1 the production costs for film ABC that X 
incurred in year 1.
    Example 2. The facts are the same as in Example 1. In year 2, X 
begins, but does not complete, principal photography for film ABC. Most 
of the scenes that X films in year 2 are shot outside the United States 
and, as of December 31, year 2, less than 75 percent of the total 
compensation paid for film ABC is qualified compensation. Nevertheless, 
X still reasonably expects, based on all of the facts and circumstances, 
that film ABC will be a qualified film or television production.

[[Page 247]]

Provided that X satisfies all other requirements of Sec. Sec. 1.181-1 
through 1.181-4 and Sec. 1.181-6, X may deduct in year 2 the production 
costs for film ABC that X incurred in year 2.
    Example 3. The facts are the same as in Example 2. In year 3, X 
continues, but does not complete, production of film ABC. Due to changes 
in the expected production costs of film ABC, X no longer expects film 
ABC to qualify under section 181. X files a statement with its return 
for year 3 identifying the film and stating that X revokes its election 
under section 181. X includes in income in year 3 the deductions claimed 
in year 1 and in year 2 as provided for in Sec. 1.181-4(a)(3). X has 
successfully revoked its election pursuant to Sec. 1.181-2(d).

[T.D. 9551, 76 FR 60729, Sept. 30, 2011]



Sec. 1.181-6  Effective/applicability date.

    (a) In general. Except as otherwise provided in this section, 
Sec. Sec. 1.181-1 through 1.181-5 apply to productions the first day of 
principal photography for which occurs on or after September 29, 2011. 
Paragraphs 1.181-1(a)(1)(ii), (a)(6), (b)(1)(ii), (b)(2)(vi), and (c)(2) 
of Sec. 1.181-1 apply to productions to which section 181 is applicable 
and for which the first day of principal photography or in-between 
animation occurs on or after December 7, 2012.
    (b) Pre-effective date productions. For any taxable year for which 
the period of limitation on refund or credit under section 6511 has not 
expired, the owner may apply Sec. Sec. 1.181-1 through 1.181-5 to any 
production to which section 181 applies and for which the first day of 
principal photography (or in-between animation) occurred before December 
7, 2012, provided the owner applies all relevant provisions of 
Sec. Sec. 1.181-1 through 1.181-5 to the production.

[T.D. 9603, 77 FR 72924, Dec. 7, 2012]



Sec. 1.182-1  Expenditures by farmers for clearing land; in general.

    Under section 182, a taxpayer engaged in the business of farming may 
elect, in the manner provided in Sec. 1.182-6, to deduct certain 
expenditures paid or incurred by him in any taxable year beginning after 
December 31, 1962, in the clearing of land. The expenditures to which 
the election applies are all expenditures paid or incurred during the 
taxable year in clearing land for the purpose of making the ``land 
suitable for use in farming'' (as defined in Sec. 1.182-4) which are 
not otherwise deductible (exclusive of expenditures for or in connection 
with depreciable items referred to in paragraph (b)(1) of Sec. 1.182-
3), but only if such expenditures are made in furtherance of the 
taxpayer's business of farming. The term expenditures to which the 
election applies also includes a reasonable allowance for depreciation 
(not otherwise allowable) on equipment used in the clearing of land 
provided such equipment, if used in the carrying on of a trade or 
business, would be subject to the allowance for depreciation under 
section 167. (See paragraph (c) of Sec. 1.182-3.) (See section 175 and 
the regulations thereunder for deductibility of certain expenditures for 
treatment or moving of earth by a farmer where the land already 
qualifies as land used in farming as defined in Sec. 1.175-4.) The 
amount deductible for any taxable year is limited to the lesser of 
$5,000 or 25 percent of the taxable income derived from farming (as 
defined in paragraph (a)(2) of Sec. 1.182-5) during the taxable year. 
Expenditures paid or incurred in a taxable year in excess of the amount 
deductible under section 182 for such taxable year shall be treated as 
capital expenditures and shall constitute an adjustment to the basis of 
the land under section 1016(a).

[T.D. 6794, 30 FR 790, Jan. 26, 1965]



Sec. 1.182-2  Definition of ``the business of farming.''

    Under section 182, the election to deduct expenditures incurred in 
the clearing of land is applicable only to a taxpayer who is engaged in 
``the business of farming'' during the taxable year. A taxpayer is 
engaged in the business of farming if he cultivates, operates, or 
manages a farm for gain or profit, either as owner or tenant. For 
purposes of section 182, a taxpayer who receives a rental (either in 
cash or in kind) which is based upon farm production is engaged in the 
business of farming. However, a taxpayer who receives a fixed rental 
(without reference to production) is engaged in the business of farming 
only if he participates to a material extent in the operation or 
management of the farm. A taxpayer engaged in forestry or the growing of 
timber is not thereby engaged in the

[[Page 248]]

business of farming. A person cultivating or operating a farm for 
recreation or pleasure rather than for profit is not engaged in the 
business of farming. For purposes of section 182 and this section, the 
term farm is used in its ordinary, accepted sense and includes stock, 
dairy, poultry, fish, fruit, and truck farms, and also plantations, 
ranches, ranges, and orchards. A fish farm is an area where fish are 
grown or raised, as opposed to merely caught or harvested; that is, an 
area where they are artificially fed, protected, cared for, etc. A 
taxpayer is engaged in ``the business of farming'' if he is a member of 
a partnership engaged in the business of farming. See Sec. 1.702-1.

[T.D. 6794, 30 FR 790, Jan. 26, 1965]



Sec. 1.182-3  Definition, exceptions, etc., relating to deductible 
expenditures.

    (a) Clearing of land. (1) For purposes of section 182, the term 
clearing of land includes (but is not limited to):
    (i) The removal of rocks, stones, trees, stumps, brush or other 
natural impediments to the use of the land in farming through blasting, 
cutting, burning, bulldozing, plowing, or in any other way;
    (ii) The treatment or moving of earth, including the construction, 
repair or removal of nondepreciable earthen structures, such as dikes or 
levies, if the purpose of such treatment or moving of earth is to 
protect, level, contour, terrace, or condition the land so as to permit 
its use as farming land; and
    (iii) The diversion of streams and watercourses, including the 
construction of nondepreciable drainage facilities, provided that the 
purpose is to remove or divert water from the land so as to make it 
available for use in farming.
    (2) The following are examples of land clearing activities:
    (i) The cutting of trees, the blasting of the resulting stumps, and 
the burning of the residual undergrowth;
    (ii) The leveling of land so as to permit irrigation or planting;
    (iii) The removal of salt or other minerals which might inhibit 
cultivation of the soil;
    (iv) The draining and filling in of a swamp or marsh; and
    (v) The diversion of a stream from one watercourse to another.
    (b) Expenditures not allowed as a deduction under section 182. (1) 
Section 182 applies only to expenditures for nondepreciable items. 
Accordingly, a taxpayer may not deduct expenditures for the purchase, 
construction, installation, or improvement of structures, appliances, or 
facilities which are of a character which is subject to the allowance 
for depreciation under section 167 and the regulations thereunder. 
Expenditures in respect of such depreciable property include those for 
materials, supplies, wages, fuel, freight, and the moving of earth, paid 
or incurred with respect to tanks, reservoirs, pipes, conduits, canals, 
dams, wells, or pumps constructed of masonry, concrete, tile, metal, 
wood, or other nonearthen material.
    (2) Expenditures which are deductible without regard to section 182 
are not deductible under section 182. Thus, such expenditures are 
deductible without being subject to the limitations imposed by section 
182(b) and Sec. 1.182-5. For example, section 182 does not apply to the 
ordinary and necessary expenses incurred in the business of farming 
which are deductible under section 162 even though they might otherwise 
be considered to be clearing of land expenditures. Section 182 also does 
not apply to interest (deductible under section 163) nor to taxes 
(deductible under section 164). Similarly, section 182 does not apply to 
any expenditures (whether or not currently deductible) paid or incurred 
for the purpose of soil or water conservation in respect of land used in 
farming, or for the prevention of erosion of land used in farming, 
within the meaning of section 175 and the regulations thereunder, nor to 
expenditures deductible under section 180 and the regulations 
thereunder, relating to expenditures for fertilizer, etc.
    (c) Depreciation. In addition to expenditures for the activities 
described in paragraph (a) of this section, there also shall be treated 
as an expenditure to which section 182 applies a reasonable allowance 
for depreciation not otherwise deductible on property of the taxpayer 
which is used in the clearing of land for the purpose of making such

[[Page 249]]

land suitable for use in farming, provided the property is property 
which, if used in a trade or business, would be subject to the allowance 
for depreciation under section 167. Depreciation allowable as a 
deduction under section 182 is limited to the portion of depreciation 
which is attributable to the use of the property in the clearing of 
land. The depreciation shall be computed in accordance with section 167 
and the regulations thereunder. To the extent an amount representing a 
reasonable allowance for depreciation with respect to property used in 
clearing land is treated as an expenditure to which section 182 applies, 
such depreciation shall, for purposes of chapter 1 of the Code, be 
treated as an amount allowed under section 167 for depreciation. Thus, 
if a deduction is allowed for depreciation under section 182 in respect 
of property used in clearing land, proper adjustment to the basis of the 
property so used shall be made under section 1016(a).

[T.D. 6794, 30 FR 791, Jan. 26, 1965]



Sec. 1.182-4  Definition of ``land suitable for use in farming'', etc.

    For purposes of section 182, the term land suitable for use in 
farming means land which, as a result of the land clearing activities 
described in paragraph (a) of Sec. 1.182-3, could be used by the 
taxpayer or his tenant for the production of crops, fruits, or other 
agricultural products, including fish, or for the sustenance of 
livestock. The term livestock includes cattle, hogs, horses, mules, 
donkeys, sheep, goats, captive fur-bearing animals, chickens, turkeys, 
pigeons, and other poultry. Land used for the sustenance of livestock 
includes land used for grazing such livestock. Expenditures are 
considered to be for the purpose of making land suitable for use in 
farming by the taxpayer or his tenant only if made to prepare the land 
which is cleared for use by the taxpayer or his tenant in farming. Thus, 
if the taxpayer pays or incurs expenditures to clear land for the 
purpose of sale (whether or not for use in farming by the purchaser) or 
to be held by the taxpayer or his tenant other than for use in farming, 
section 182 does not apply to such expenditures. Whether the land is 
cleared for the purpose of making it suitable for use in farming by the 
taxpayer or his tenant, is a question of fact which must be resolved on 
the basis of all the relevant facts and circumstances. For purposes of 
section 182, it is not necessary that the land cleared actually be used 
in farming following the clearing activities. However, the fact that 
following the clearing operation, the land is used by the taxpayer or 
his tenant in the business of farming will, in most cases, constitute 
evidence that the purpose of the clearing was to make land suitable for 
use in farming by the taxpayer or his tenant. On the other hand, if the 
land cleared is sold or converted to nonfarming use soon after the 
taxpayer has completed his clearing activities, there will be a 
presumption that the expenditures were not made for the purpose of 
making the land suitable for use in farming by the taxpayer or his 
tenant. Other factors which will be considered in determining the 
taxpayer's purpose for clearing the land are, for example, the acreage, 
location, and character of the land cleared, the nature of the 
taxpayer's farming operation, and the use to which adjoining or nearby 
land is put.

[T.D. 6794, 30 FR 791, Jan. 26, 1965]



Sec. 1.182-5  Limitation.

    (a) Limitation--(1) General rule. The amount of land clearing 
expenditures which the taxpayer may deduct under section 182 in any one 
taxable year is limited to the lesser of $5,000 or 25 percent of his 
``taxable income derived from farming''. Expenditures in excess of the 
applicable limitation are to be charged to the capital account and 
constitute additions to the taxpayer's basis in the land.
    (2) Definition of ``taxable income derived from farming''. For 
purposes of section 182, the term taxable income derived from farming 
means the gross income derived from the business of farming reduced by 
the deductions attributable to such gross income. Gross income derived 
from the business of farming is the gross income of the taxpayer derived 
from the production of crops, fruits, or other agricultural products, 
including fish, or from livestock (including livestock held for draft, 
breeding or dairy purposes). It

[[Page 250]]

does not include gains from sales of assets such as farm machinery or 
gains from the disposition of land. The deductions attributable to the 
business of farming are all the deductions allowed by Chapter 1 of the 
Code (other than the deduction allowed by section 182) for expenditures 
or charges (including depreciation and amortization) paid or incurred in 
connection with the production or raising of crops, fruits, or other 
agricultural products, including fish, or livestock. However, the 
deduction under section 1202 (relating to the capital gains deduction) 
attributable to gain on the sale or other disposition of assets (other 
than draft, breeding, or dairy stock), and the net operating loss 
deduction (computed under section 172) shall not be taken into account 
in computing ``taxable income derived from farming.'' Similarly, 
deductible losses on the sale, disposition, destruction, condemnation, 
or abandonment of assets (other than draft, breeding, or dairy stock) 
shall not be considered as deductions attributable to the business of 
farming. A taxpayer shall compute his gross income from farming in 
accordance with his accounting method used in determining gross income. 
(See the regulations under section 61 relating to accounting methods 
used by farmers in determining gross income.)
    (b) Examples. The provisions of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. For the taxable year 1963, A, who uses the cash receipts 
and disbursements method of accounting, incurs expenditures to which 
section 182 applies in the amount of $2,000 and makes the election under 
section 182. A has the following items of income and deductions (without 
regard to section 182 expenditures).

Income:
  Proceeds from sale of his 1963 yield of corn......   $10,000
  Proceeds from sales of milk.......................     8,000
  Gain from disposition of old breeding cows........       500
  Gain from sale of tractor.........................       100
  Gain from sale of farmland........................     5,000
  Interest on loan to brother.......................       100
                                                     ----------
                                                        23,700
                                                     ==========
Deductions:
  Cost of labor.....................................     4,000
  Cost of feed......................................     3,000
  Depreciation on farm equipment and buildings......     2,500
  Cost of maintenance, fuel, etc....................     2,000
  Interest paid, mortgage on farm buildings.........     1,000
  Interest paid, personal loan......................       500
  Loss on destruction of barn.......................     2,000
  Loss on sale of truck.............................       300
  Section 1202 deduction--gain on sale of cows             250
   (500x1/2)........................................
  Section 1202 deduction--net gain on disposition of     1,400
   section 1231 property, other than cows [$2,800
   ($5,100-$2,300) x \1/2\ ]........................
                                                        ------   $16,950
                                                               ---------
  Net income before section 182 deduction...........  ........     6,750
 


For purposes of computing taxable income derived from farming under 
section 182, the following items of income and deductions are not taken 
into account:

Income:
  Gain from the sale of tractor.......................     $100
  Gain from the sale of farmland......................    5,000
  Interest on loan to brother.........................      100
                                                         ------   $5,200
Deductions:
  Interest paid, personal loan........................     $500
  Loss on destruction of barn.........................    2,000
  Loss on sale of truck...............................      300
  Section 1202 deduction--Net gain from disposition of    1,400
   1231 assets other than cows........................
                                                         ------   $4,200
 

    A's ``taxable income derived from farming'' for purposes of section 
182 is $5,750; income of $18,500 ($23,700-$5,200), less deductions of 
$12,750 ($16,950-$4,200). A may deduct $1,437.50 (25% of $5,750) under 
section 182. The excess expenditures in the amount of $562.50 are to be 
charged to capital account and serve to increase the taxpayer's basis of 
the land.
    Example 2. Assume the same facts as in Example 1 and in addition, 
assume that A is allowed a deduction for a net operating loss carryback 
from the taxable year 1966 in the amount of $3,000. The net operating 
loss deduction will not be taken into account in computing A's ``taxable 
income derived from farming'' for 1963 Accordingly, A will not be 
required to recompute such taxable income for purposes of applying the 
limitation on the deduction provided in section 182 and the deduction of 
$1,437.50 will not be reduced.

[T.D. 6794, 30 FR 791, Jan. 26, 1965]



Sec. 1.182-6  Election to deduct land clearing expenditures.

    (a) Manner of making election. The election to deduct expenditures 
for land clearing provided by section 182(a) shall be made by means of a 
statement attached to the taxpayer's income tax return for the taxable 
year for which such election is to apply. The statement shall include 
the name and address of the taxpayer, shall be signed by the taxpayer 
(or his duly authorized

[[Page 251]]

representative), and shall be filed not later than the time prescribed 
by law for filing the income tax return (including extensions thereof) 
for the taxable year for which the election is to apply. The statement 
shall also set forth the amount and description of the expenditures for 
land clearing claimed as a deduction under section 182, and shall 
include a computation of ``taxable income derived from farming'', if the 
amount of such income is not the same as the net income from farming 
shown on Schedule F of Form 1040, increased by the amount of the 
deduction claimed under section 182.
    (b) Scope of election. An election under section 182(a) shall apply 
only to the taxable year for which made. However, once made, an election 
applies to all expenditures described in Sec. 1.182-3 paid or incurred 
during the taxable year, and is binding for such taxable year unless the 
district director consents to a revocation of such election. Requests 
for consent to revoke an election under section 182 shall be made by 
means of a letter to the district director for the district in which the 
taxpayer is required to file his return, setting forth the taxpayer's 
name, address and identification number, the year for which it is 
desired to revoke the election, and the reasons therefor. However, 
consent will not be granted where the only reason therefor is a change 
in tax consequences.

[T.D. 6794, 30 FR 791, Jan. 26, 1965]



Sec. 1.183-1  Activities not engaged in for profit.

    (a) In general. Section 183 provides rules relating to the allowance 
of deductions in the case of activities (whether active or passive in 
character) not engaged in for profit by individuals and electing small 
business corporations, creates a presumption that an activity is engaged 
in for profit if certain requirements are met, and permits the taxpayer 
to elect to postpone determination of whether such presumption applies 
until he has engaged in the activity for at least 5 taxable years, or, 
in certain cases, 7 taxable years. Whether an activity is engaged in for 
profit is determined under section 162 and section 212 (1) and (2) 
except insofar as section 183(d) creates a presumption that the activity 
is engaged in for profit. If deductions are not allowable under sections 
162 and 212 (1) and (2), the deduction allowance rules of section 183(b) 
and this section apply. Pursuant to section 641(b), the taxable income 
of an estate or trust is computed in the same manner as in the case of 
an individual, with certain exceptions not here relevant. Accordingly, 
where an estate or trust engages in an activity or activities which are 
not for profit, the rules of section 183 and this section apply in 
computing the allowable deductions of such trust or estate. No inference 
is to be drawn from the provisions of section 183 and the regulations 
thereunder that any activity of a corporation (other than an electing 
small business corporation) is or is not a business or engaged in for 
profit. For rules relating to the deductions that may be taken into 
account by taxable membership organizations which are operated primarily 
to furnish services, facilities, or goods to members, see section 277 
and the regulations thereunder. For the definition of an activity not 
engaged in for profit, see Sec. 1.183-2. For rules relating to the 
election contained in section 183(e), see Sec. 1.183-3.
    (b) Deductions allowable--(1) Manner and extent. If an activity is 
not engaged in for profit, deductions are allowable under section 183(b) 
in the following order and only to the following extent:
    (i) Amounts allowable as deductions during the taxable year under 
Chapter 1 of the Code without regard to whether the activity giving rise 
to such amounts was engaged in for profit are allowable to the full 
extent allowed by the relevant sections of the Code, determined after 
taking into account any limitations or exceptions with respect to the 
allowability of such amounts. For example, the allowability-of-interest 
expenses incurred with respect to activities not engaged in for profit 
is limited by the rules contained in section 163(d).
    (ii) Amounts otherwise allowable as deductions during the taxable 
year under Chapter 1 of the Code, but only if such allowance does not 
result in an adjustment to the basis of property, determined as if the 
activity giving rise to such amounts was engaged in for

[[Page 252]]

profit, are allowed only to the extent the gross income attributable to 
such activity exceeds the deductions allowed or allowable under 
subdivision (i) of this subparagraph.
    (iii) Amounts otherwise allowable as deductions for the taxable year 
under Chapter 1 of the Code which result in (or if otherwise allowed 
would have resulted in) an adjustment to the basis of property, 
determined as if the activity giving rise to such deductions was engaged 
in for profit, are allowed only to the extent the gross income 
attributable to such activity exceeds the deductions allowed or 
allowable under subdivisions (i) and (ii) of this subparagraph. 
Deductions falling within this subdivision include such items as 
depreciation, partial losses with respect to property, partially 
worthless debts, amortization, and amortizable bond premium.
    (2) Rule for deductions involving basis adjustments--(i) In general. 
If deductions are allowed under subparagraph (1)(iii) of this paragraph, 
and such deductions are allowed with respect to more than one asset, the 
deduction allowed with respect to each asset shall be determined 
separately in accordance with the computation set forth in subdivision 
(ii) of this subparagraph.
    (ii) Basis adjustment fraction. The deduction allowed under 
subparagraph (1)(iii) of this paragraph is computed by multiplying the 
amount which would have been allowed, had the activity been engaged in 
for profit, as a deduction with respect to each particular asset which 
involves a basis adjustment, by the basis adjustment fraction:
    (a) The numerator of which is the total of deductions allowable 
under subparagraph (1)(iii) of this paragraph, and
    (b) The denominator of which is the total of deductions which 
involve basis adjustments which would have been allowed with respect to 
the activity had the activity been engaged in for profit.

The amount resulting from this computation is the deduction allowed 
under subparagraph (1)(iii) of this paragraph with respect to the 
particular asset. The basis of such asset is adjusted only to the extent 
of such deduction.
    (3) Examples. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples:

    Example 1. A, an individual, maintains a herd of dairy cattle, which 
is an ``activity not engaged in for profit'' within the meaning of 
section 183(c). A sold milk for $1,000 during the year. During the year 
A paid $300 State taxes on gasoline used to transport the cows, milk, 
etc., and paid $1,200 for feed for the cows. For the year A also had a 
casualty loss attributable to this activity of $500. A determines the 
amount of his allowable deductions under section 183 as follows:
    (i) First, A computes his deductions allowable under subparagraph 
(1)(i) of this paragraph as follows:

State gasoline taxes specifically allowed under section             $300
 164(a)(5) without regard to whether the activity is engaged
 in for profit...............................................
Casualty loss specifically allowed under section 165(c)(3)           400
 without regard to whether the activity is engaged in for
 profit ($500 less $100 limitation)..........................
                                                              ----------
Deductions allowable under subparagraph (1)(i) of this               700
 paragraph...................................................
 

    (ii) Second, A computes his deductions allowable under subparagraph 
(1)(ii) of this paragraph (deductions which would be allowed under 
chapter 1 of the Code if the activity were engaged in for profit and 
which do not involve basis adjustments) as follows:
    Maximum amount of deductions allowable under subparagraph (1)(ii) of 
this paragraph:

Income from milk sales.......................................     $1,000
                                                              ==========
Gross income from activity...................................      1,000
Less: deductions allowable under subparagraph (1)(i) of this         700
 paragraph...................................................
                                                              ----------
Maximum amount of deductions allowable under subparagraph            300
 (1)(ii) of this paragraph...................................
                                                              ==========
Feed for cows................................................      1,200
Deduction allowed under subparagraph (1)(ii) of this                 300
 paragraph...................................................
 

    $900 of the feed expense is not allowed as a deduction under section 
183 because the total feed expense ($1,200) exceeds the maximum amount 
of deductions allowable under subparagraph (1)(ii) of this paragraph 
($300). In view of these circumstances, it is not necessary to determine 
deductions allowable under subparagraph (1)(iii) of this paragraph which 
would be allowable under chapter 1 of the Code if the activity were 
engaged in for profit and which involve basis adjustment (the $100 of 
casualty loss not allowable under subparagraph (1)(i) of this paragraph 
because of the limitation in section 165(c)(3)) because none of such 
amount will be allowed as a deduction under section 183.
    Example 2. Assume the same facts as in Example 1, except that A also 
had income from sales of hay grown on the farm of $1,200 and

[[Page 253]]

that depreciation of $750 with respect to a barn, and $650 with respect 
to a tractor would have been allowed with respect to the activity had it 
been engaged in for profit. A determines the amount of his allowable 
deductions under section 183 as follows:
    (i) First, A computes his deductions allowable under subparagraph 
(1)(i) of this paragraph as follows:

State gasoline taxes specifically allowed under section             $300
 164(a)(5) without regard to whether the activity is engaged
 in for profit...............................................
Casualty loss specifically allowed under section 165(c)(3)           400
 without regard to whether the activity is engaged in for
 profit ($500 less $100 limitation)..........................
                                                              ----------
Deductions allowable under subparagraph (1)(i) of this               700
 paragraph...................................................
 

    (ii) Second, A computes his deductions allowable under subparagraph 
(1)(ii) of this paragraph (deductions which would be allowable under 
chapter 1 of the Code if the activity were engaged in for profit and 
which do not involve basis adjustments) as follows:
    Maximum amount of deductions allowable under subparagraph (1)(ii) of 
this paragraph:

Income from milk sales.......................................     $1,000
Income from hay sales........................................      1,200
                                                              ----------
Gross income from activity...................................      2,200
Less: deductions allowable under subparagraph (1)(i) of this         700
 paragraph...................................................
                                                              ----------
Maximum amount of deductions allowable under subparagraph          1,500
 (1)(ii) of this paragraph...................................
                                                              ==========
Feed for cows................................................      1,200
 


The entire $1,200 of expenses relating to feed for cows is allowable as 
a deduction under subparagraph (1)(ii) of this paragraph, since it does 
not exceed the maximum amount of deductions allowable under such 
subparagraph.
    (iii) Last, A computes the deductions allowable under subparagraph 
(1)(iii) of this paragraph (deductions which would be allowable under 
chapter 1 of the Code if the activity were engaged in for profit and 
which involve basis adjustments) as follows:
    Maximum amount of deductions allowable under subparagraph (1)(iii) 
of this paragraph:

Gross income from farming.........................  .........     $2,200
Less: Deductions allowed under subparagraph (1)(i)       $700  .........
 of this paragraph................................
Deductions allowed under subparagraph (1)(ii) of        1,200      1,900
 this paragraph...................................
                                                   ---------------------
Maximum amount of deductions allowable under        .........        300
 subparagraph (1)(iii) of this paragraph..........
 

    (iv) Since the total of A's deductions under chapter 1 of the Code 
(determined as if the activity was engaged in for profit) which involve 
basis adjustments ($750 with respect to barn, $650 with respect to 
tractor, and $100 with respect to limitation on casualty loss) exceeds 
the maximum amount of the deductions allowable under subparagraph 
(1)(iii) of this paragraph ($300), A computes his allowable deductions 
with respect to such assets as follows:

A first computes his basis adjustment fraction under subparagraph 
(2)(ii) of this paragraph as follows:

The numerator of the fraction is the maximum of deductions          $300
 allowable under subparagraph (1)(iii) of this paragraph
 which involve basis adjustments.............................
The denominator of the fraction is the total of deductions         1,500
 that involve basis adjustments which would have been allowed
 with respect to the activity had the activity been engaged
 in for profit...............................................
 

The basis adjustment fraction is then applied to the amount of each 
deduction which would have been allowable if the activity were engaged 
in for profit and which involves a basis adjustment as follows:

Depreciation allowed with respect to barn (300/1,500x$750)...       $150
Depreciation allowed with respect to tractor (300/1,500x$650)        130
Deduction allowed with respect to limitation on casualty loss         20
 (300/1,500x$100)............................................
 

    The basis of the barn and of the tractor are adjusted only by the 
amount of depreciation actually allowed under section 183 with respect 
to each (as determined by the above computation). The basis of the asset 
with regard to which the casualty loss was suffered is adjusted only to 
the extent of the amount of the casualty loss actually allowed as a 
deduction under subparagraph (1) (i) and (iii) of this paragraph.

    (4) Rule for capital gains and losses--(i) In general. For purposes 
of section 183 and the regulations thereunder, the gross income from any 
activity not engaged in for profit includes the total of all capital 
gains attributable to such activity determined without regard to the 
section 1202 deduction. Amounts attributable to an activity not engaged 
in for profit which would be allowable as a deduction under section 
1202, without regard to section 183, shall be allowable as a deduction 
under section 183(b)(1) in accordance with the rules stated in this 
subparagraph.
    (ii) Cases where deduction not allowed under section 183. No 
deduction is allowable under section 183(b)(1) with respect to capital 
gains attributable to an activity not engaged in for profit if:
    (a) Without regard to section 183 and the regulations thereunder, 
there is no excess of net long-term capital gain over net short-term 
capital loss for the year, or

[[Page 254]]

    (b) There is no excess of net long-term capital gain attributable to 
the activity over net short-term capital loss attributable to the 
activity.
    (iii) Allocation of deduction. If there is:
    (a) An excess of net long-term capital gain over net short-term 
capital loss attributable to an activity not engaged in for profit, and
    (b) Such an excess attributable to all activities, determined 
without regard to section 183 and the regulations thereunder, the 
deduction allowable under section 183(b)(1) attributable to capital 
gains with respect to each activity not engaged in for profit (with 
respect to which there is an excess of net long-term capital gain over 
net short-term capital loss for the year) shall be an amount equal to 
the deduction allowable under section 1202 for the taxable year 
(determined without regard to section 183) multiplied by a fraction the 
numerator of which is the excess of the net long-term capital gain 
attributable to the activity over the net short-term capital loss 
attributable to the activity and the denominator of which is an amount 
equal to the total excess of net long-term capital gain over net short-
term capital loss for all activities with respect to which there is such 
excess. The amount of the total section 1202 deduction allowable for the 
year shall be reduced by the amount determined to be allocable to 
activities not engaged in for profit and accordingly allowed as a 
deduction under section 183(b)(1).
    (iv) Example. The provisions of this subparagraph may be illustrated 
by the following example:

    Example. A, an individual who uses the cash receipts and 
disbursement method of accounting and the calendar year as the taxable 
year, has three activities not engaged in for profit. For his taxable 
year ending on December 31, 1973, A has a $200 net long-term capital 
gain from activity No. 1, a $100 net short-term capital loss from 
activity No. 2, and a $300 net long-term capital gain from activity No. 
3. In addition, A has a $500 net long-term capital gain from another 
activity which he engages in for profit. A computes his deductions for 
capital gains for calendar year 1973 as follows:
    Section 1202 deduction without regard to section 183 is determined 
as follows:

Net long-term capital gain from activity No. 1...............       $200
Net long-term capital gain from activity No. 3...............        300
Net long-term capital gain from activity engaged in for              500
 profit......................................................
                                                              ----------
    Total net long-term capital gain from all activities.....      1,000
Less: Net short-term capital loss attributable to activity           100
 No. 2.......................................................
                                                              ----------
Aggregate net long-term capital gain over net short-term             900
 capital loss from all activities............................
                                                              ==========
Section 1202 deduction determined without regard to section         $450
 183 (one-half of $900)......................................
                                                              ==========
 

    Allocation of the total section 1202 deduction among A's various 
activities:

Portion allocable to activity No. 1 which is deductible under         90
 section 183(b)(1) (Excess net long-term capital gain
 attributable to activity No. 1 ($200) over total excess net
 long-term capital gain attributable to all of A's activities
 with respect to which there is such an excess ($1,000) times
 amount of section 1202 deduction ($450))....................
Portion allocable to activity No. 3 which is deductible under        135
 section 183(b)(1) (Excess net long-term capital gain
 attributable to activity No. 3 ($300) over total excess net
 long-term capital gain attributable to all of A's activities
 with respect to which there is such an excess ($1,000) times
 amount of section 1202 deduction ($450))....................
Portion allocable to all activities engaged in for profit            225
 (total section 1202 deduction ($450) less section 1202
 deduction allowable to activities Nos. 1 and 3 ($225))......
                                                              ----------
    Total section 1202 deduction deductible under sections           450
     1202 and 183(b)(1)......................................
                                                              ==========
 


    (c) Presumption that activity is engaged in for profit--(1) In 
general. If for:
    (i) Any 2 of 7 consecutive taxable years, in the case of an activity 
which consists in major part of the breeding, training, showing, or 
racing of horses, or
    (ii) Any 2 of 5 consecutive taxable years, in the case of any other 
activity, the gross income derived from an activity exceeds the 
deductions attributable to such activity which would be allowed or 
allowable if the activity were engaged in for profit, such activity is 
presumed, unless the Commissioner establishes to the contrary, to be 
engaged in for profit. For purposes of this determination the deduction 
permitted by section 1202 shall not be taken into account. Such 
presumption applies with respect to the second profit year and all years 
subsequent to the second profit year within the 5- or 7-year period 
beginning with the first profit year. This presumption arises only if 
the activity is substantially the same

[[Page 255]]

activity for each of the relevant taxable years, including the taxable 
year in question. If the taxpayer does not meet the requirements of 
section 183(d) and this paragraph, no inference that the activity is not 
engaged in for profit shall arise by reason of the provisions of section 
183. For purposes of this paragraph, a net operating loss deduction is 
not taken into account as a deduction. For purposes of this subparagraph 
a short taxable year constitutes a taxable year.
    (2) Examples. The provisions of subparagraph (1) of this paragraph 
may be illustrated by the following examples, in each of which it is 
assumed that the taxpayer has not elected, in accordance with section 
183(e), to postpone determination of whether the presumption described 
in section 183(d) and this paragraph is applicable.

    Example 1. For taxable years 1970-74, A, an individual who uses the 
cash receipts and disbursement method of accounting and the calendar 
year as the taxable year, is engaged in the activity of farming. In 
taxable years 1971, 1973, and 1974, A's deductible expenditures with 
respect to such activity exceed his gross income from the activity. In 
taxable years 1970 and 1972 A has income from the sale of farm produce 
of $30,000 for each year. In each of such years A had expenses for feed 
for his livestock of $10,000, depreciation of equipment of $10,000, and 
fertilizer cost of $5,000 which he elects to take as a deduction. A also 
has a net operating loss carryover to taxable year 1970 of $6,000. A is 
presumed, for taxable years 1972, 1973, and 1974, to have engaged in the 
activity of farming for profit, since for 2 years of a 5-consecutive-
year period the gross income from the activity ($30,000 for each year) 
exceeded the deductions (computed without regard to the net operating 
loss) which are allowable in the case of the activity ($25,000 for each 
year).
    Example 2. For the taxable years 1970 and 1971, B, an individual who 
uses the cash receipts and disbursement method of accounting and the 
calendar year as taxable year, engaged in raising pure-bred Charolais 
cattle for breeding purposes. The operation showed a loss during 1970. 
At the end of 1971, B sold a substantial portion of his herd and the 
cattle operation showed a profit for that year. For all subsequent 
relevant taxable years B continued to keep a few Charolais bulls at 
stud. In 1972, B started to raise Tennessee Walking Horses for breeding 
and show purposes, utilizing substantially the same pasture land, barns, 
and (with structural modifications) the same stalls. The Walking Horse 
operations showed a small profit in 1973 and losses in 1972 and 1974 
through 1976.
    (i) Assuming that under paragraph (d)(1) of this section the raising 
of cattle and raising of horses are determined to be separate 
activities, no presumption that the Walking Horse operation was carried 
on for profit arises under section 183(d) and this paragraph since this 
activity was not the same activity that generated the profit in 1971 and 
there are not, therefore, 2 profit years attributable to the horse 
activity.
    (ii) Assuming the same facts as in (i) above, if there were no stud 
fees received in 1972 with respect to Charolais bulls, but for 1973 stud 
fees with respect to such bulls exceed deductions attributable to 
maintenance of the bulls in that year, the presumption will arise under 
section 183(d) and this paragraph with respect to the activity of 
raising and maintaining Charolais cattle for 1973 and for all subsequent 
years within the 5-year period beginning with taxable year 1971, since 
the activity of raising and maintaining Charolais cattle is the same 
activity in 1971 and in 1973, although carried on by B on a much reduced 
basis and in a different manner. Since it has been assumed that the 
horse and cattle operations are separate activities, no presumption will 
arise with respect to the Walking Horse operation because there are not 
2 profit years attributable to such horse operation during the period in 
question.
    (iii) Assuming, alternatively, that the raising of cattle and 
raising of horses would be considered a single activity under paragraph 
(d)(1) of this section, B would receive the benefit of the presumption 
beginning in 1973 with respect to both the cattle and horses since there 
were profits in 1971 and 1973. The presumption would be effective 
through 1977 (and longer if there is an excess of income over deductions 
in this activity in 1974, 1975, 1976, or 1977 which would extend the 
presumption) if, under section 183(d) and subparagraph (3) of this 
paragraph, it was determined that the activity consists in major part of 
the breeding, training, showing, or racing of horses. Otherwise, the 
presumption would be effective only through 1975 (assuming no excess of 
income over deductions in this activity in 1974 or 1975 which would 
extend the presumption).

    (3) Activity which consists in major part of the breeding, training, 
showing, or racing of horses. For purposes of this paragraph an activity 
consists in major part of the breeding, training, showing, or racing of 
horses for the taxable year if the average of the portion of 
expenditures attributable to breeding, training, showing, and racing of 
horses for the 3 taxable years preceding the taxable year (or, in the 
case of an activity

[[Page 256]]

which has not been conducted by the taxpayer for 3 years, for so long as 
it has been carried on by him) was at least 50 percent of the total 
expenditures attributable to the activity for such prior taxable years.
    (4) Transitional rule. In applying the presumption described in 
section 183(d) and this paragraph, only taxable years beginning after 
December 31, 1969, shall be taken into account. Accordingly, in the case 
of an activity referred to in subparagraph (1) (i) or (ii) of this 
paragraph, section 183(d) does not apply prior to the second profitable 
taxable year beginning after December 31, 1969, since taxable years 
prior to such date are not taken into account.
    (5) Cross reference. For rules relating to section 183(e) which 
permits a taxpayer to elect to postpone determination of whether any 
activity shall be presumed to be ``an activity engaged in for profit'' 
by operation of the presumption described in section 183(d) and this 
paragraph until after the close of the fourth taxable year (sixth 
taxable year, in the case of activity which consists in major part of 
breeding, training, showing, or racing of horses) following the taxable 
year in which the taxpayer first engages in the activity, see Sec. 
1.183-3.
    (d) Activity defined--(1) Ascertainment of activity. In order to 
determine whether, and to what extent, section 183 and the regulations 
thereunder apply, the activity or activities of the taxpayer must be 
ascertained. For instance, where the taxpayer is engaged in several 
undertakings, each of these may be a separate activity, or several 
undertakings may constitute one activity. In ascertaining the activity 
or activities of the taxpayer, all the facts and circumstances of the 
case must be taken into account. Generally, the most significant facts 
and circumstances in making this determination are the degree of 
organizational and economic interrelationship of various undertakings, 
the business purpose which is (or might be) served by carrying on the 
various undertakings separately or together in a trade or business or in 
an investment setting, and the similarity of various undertakings. 
Generally, the Commissioner will accept the characterization by the 
taxpayer of several undertakings either as a single activity or as 
separate activities. The taxpayer's characterization will not be 
accepted, however, when it appears that his characterization is 
artificial and cannot be reasonably supported under the facts and 
circumstances of the case. If the taxpayer engages in two or more 
separate activities, deductions and income from each separate activity 
are not aggregated either in determining whether a particular activity 
is engaged in for profit or in applying section 183. Where land is 
purchased or held primarily with the intent to profit from increase in 
its value, and the taxpayer also engages in farming on such land, the 
farming and the holding of the land will ordinarily be considered a 
single activity only if the farming activity reduces the net cost of 
carrying the land for its appreciation in value. Thus, the farming and 
holding of the land will be considered a single activity only if the 
income derived from farming exceeds the deductions attributable to the 
farming activity which are not directly attributable to the holding of 
the land (that is, deductions other than those directly attributable to 
the holding of the land such as interest on a mortgage secured by the 
land, annual property taxes attributable to the land and improvements, 
and depreciation of improvements to the land).
    (2) Rules for allocation of expenses. If the taxpayer is engaged in 
more than one activity, an item of deduction or income may be allocated 
between two or more of these activities. Where property is used in 
several activities, and one or more of such activities is determined not 
to be engaged in for profit, deductions relating to such property must 
be allocated between the various activities on a reasonable and 
consistently applied basis.
    (3) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. (i) A, an individual, owns a small house located near the 
beach in a resort community. Visitors come to the area for recreational 
purposes during only 3 months of the year. During the remaining 9 months 
of the year houses such as A's are not rented. Customarily, A arranges 
that the house will be leased for 2 months of 3-month recreational 
season to vacationers and reserves

[[Page 257]]

the house for his own vacation during the remaining month of the 
recreational season. In 1971, A leases the house for 2 months for $1,000 
per month and actually uses the house for his own vacation during the 
other month of the recreational season. For 1971, the expenses 
attributable to the house are $1,200 interest, $600 real estate taxes, 
$600 maintenance, $300 utilities, and $1,200 which would have been 
allowed as depreciation had the activity been engaged in for profit. 
Under these facts and circumstances, A is engaged in a single activity, 
holding the beach house primarily for personal purposes, which is an 
``activity not engaged in for profit'' within the meaning of section 
183(c). See paragraph (b)(9) of Sec. 1.183-2.
    (ii) Since the $1,200 of interest and the $600 of real estate taxes 
are specifically allowable as deductions under sections 163 and 164(a) 
without regard to whether the beach house activity is engaged in for 
profit, no allocation of these expenses between the uses of the beach 
house is necessary. However, since section 262 specifically disallows 
personal, living, and family expenses as deductions, the maintenance and 
utilities expenses and the depreciation from the activity must be 
allocated between the rental use and the personal use of the beach 
house. Under the particular facts and circumstances, \2/3\ (2 months of 
rental use over 3 months of total use) of each of these expenses are 
allocated to the rental use, and \1/3\ (1 month of personal use over 3 
months of total use) of each of these expenses are allocated to the 
personal use as follows:

------------------------------------------------------------------------
                                              Rental use 2/ Personal use
                                              3-- expenses      1/3--
                                              allocable to    expenses
                                                 section    allocable to
                                                183(b)(2)    section 262
------------------------------------------------------------------------
Maintenance expense $600....................          $400          $200
Utilities expense $300......................           200           100
Depreciation $1,200.........................           800           400
                                             ---------------------------
    Total...................................         1,400           700
------------------------------------------------------------------------


The $700 of expenses and depreciation allocated to the personal use of 
the beach house are disallowed as a deduction under section 262. In 
addition, the allowability of each of the expenses and the depreciation 
allocated to section 183(b)(2) is determined under paragraph (b)(1) (ii) 
and (iii) of this section. Thus, the maximum amount allowable as a 
deduction under section 183(b)(2) is $200 ($2,000 gross income from 
activity, less $1,800 deductions under section 183(b)(1)). Since the 
amounts described in section 183(b)(2) ($1,400) exceed the maximum 
amount allowable ($200), and since the amounts described in paragraph 
(b)(1)(ii) of this section ($600) exceed such maximum amount allowable 
($200), none of the depreciation (an amount described in paragraph 
(b)(1)(iii) of this section) is allowable as a deduction.

    (e) Gross income from activity not engaged in for profit defined. 
For purposes of section 183 and the regulations thereunder, gross income 
derived from an activity not engaged in for profit includes the total of 
all gains from the sale, exchange, or other disposition of property, and 
all other gross receipts derived from such activity. Such gross income 
shall include, for instance, capital gains, and rents received for the 
use of property which is held in connection with the activity. The 
taxpayer may determine gross income from any activity by subtracting the 
cost of goods sold from the gross receipts so long as he consistently 
does so and follows generally accepted methods of accounting in 
determining such gross income.
    (f) Rule for electing small business corporations. Section 183 and 
this section shall be applied at the corporate level in determining the 
allowable deductions of an electing small business corporation.

[T.D. 7198, 37 FR 13680, July 13, 1972]



Sec. 1.183-2  Activity not engaged in for profit defined.

    (a) In general. For purposes of section 183 and the regulations 
thereunder, the term activity not engaged in for profit means any 
activity other than one with respect to which deductions are allowable 
for the taxable year under section 162 or under paragraph (1) or (2) of 
section 212. Deductions are allowable under section 162 for expenses of 
carrying on activities which constitute a trade or business of the 
taxpayer and under section 212 for expenses incurred in connection with 
activities engaged in for the production or collection of income or for 
the management, conservation, or maintenance of property held for the 
production of income. Except as provided in section 183 and Sec. 1.183-
1, no deductions are allowable for expenses incurred in connection with 
activities which are not engaged in for profit. Thus, for example, 
deductions are not allowable under section 162 or 212 for activities 
which are carried on primarily as a sport, hobby, or for recreation. The 
determination whether an activity is engaged in for

[[Page 258]]

profit is to be made by reference to objective standards, taking into 
account all of the facts and circumstances of each case. Although a 
reasonable expectation of profit is not required, the facts and 
circumstances must indicate that the taxpayer entered into the activity, 
or continued the activity, with the objective of making a profit. In 
determining whether such an objective exists, it may be sufficient that 
there is a small chance of making a large profit. Thus it may be found 
that an investor in a wildcat oil well who incurs very substantial 
expenditures is in the venture for profit even though the expectation of 
a profit might be considered unreasonable. In determining whether an 
activity is engaged in for profit, greater weight is given to objective 
facts than to the taxpayer's mere statement of his intent.
    (b) Relevant factors. In determining whether an activity is engaged 
in for profit, all facts and circumstances with respect to the activity 
are to be taken into account. No one factor is determinative in making 
this determination. In addition, it is not intended that only the 
factors described in this paragraph are to be taken into account in 
making the determination, or that a determination is to be made on the 
basis that the number of factors (whether or not listed in this 
paragraph) indicating a lack of profit objective exceeds the number of 
factors indicating a profit objective, or vice versa. Among the factors 
which should normally be taken into account are the following:
    (1) Manner in which the taxpayer carries on the activity. The fact 
that the taxpayer carries on the activity in a businesslike manner and 
maintains complete and accurate books and records may indicate that the 
activity is engaged in for profit. Similarly, where an activity is 
carried on in a manner substantially similar to other activities of the 
same nature which are profitable, a profit motive may be indicated. A 
change of operating methods, adoption of new techniques or abandonment 
of unprofitable methods in a manner consistent with an intent to improve 
profitability may also indicate a profit motive.
    (2) The expertise of the taxpayer or his advisors. Preparation for 
the activity by extensive study of its accepted business, economic, and 
scientific practices, or consultation with those who are expert therein, 
may indicate that the taxpayer has a profit motive where the taxpayer 
carries on the activity in accordance with such practices. Where a 
taxpayer has such preparation or procures such expert advice, but does 
not carry on the activity in accordance with such practices, a lack of 
intent to derive profit may be indicated unless it appears that the 
taxpayer is attempting to develop new or superior techniques which may 
result in profits from the activity.
    (3) The time and effort expended by the taxpayer in carrying on the 
activity. The fact that the taxpayer devotes much of his personal time 
and effort to carrying on an activity, particularly if the activity does 
not have substantial personal or recreational aspects, may indicate an 
intention to derive a profit. A taxpayer's withdrawal from another 
occupation to devote most of his energies to the activity may also be 
evidence that the activity is engaged in for profit. The fact that the 
taxpayer devotes a limited amount of time to an activity does not 
necessarily indicate a lack of profit motive where the taxpayer employs 
competent and qualified persons to carry on such activity.
    (4) Expectation that assets used in activity may appreciate in 
value. The term profit encompasses appreciation in the value of assets, 
such as land, used in the activity. Thus, the taxpayer may intend to 
derive a profit from the operation of the activity, and may also intend 
that, even if no profit from current operations is derived, an overall 
profit will result when appreciation in the value of land used in the 
activity is realized since income from the activity together with the 
appreciation of land will exceed expenses of operation. See, however, 
paragraph (d) of Sec. 1.183-1 for definition of an activity in this 
connection.
    (5) The success of the taxpayer in carrying on other similar or 
dissimilar activities. The fact that the taxpayer has engaged in similar 
activities in the past and converted them from unprofitable to 
profitable enterprises may indicate

[[Page 259]]

that he is engaged in the present activity for profit, even though the 
activity is presently unprofitable.
    (6) The taxpayer's history of income or losses with respect to the 
activity. A series of losses during the initial or start-up stage of an 
activity may not necessarily be an indication that the activity is not 
engaged in for profit. However, where losses continue to be sustained 
beyond the period which customarily is necessary to bring the operation 
to profitable status such continued losses, if not explainable, as due 
to customary business risks or reverses, may be indicative that the 
activity is not being engaged in for profit. If losses are sustained 
because of unforeseen or fortuitous circumstances which are beyond the 
control of the taxpayer, such as drought, disease, fire, theft, weather 
damages, other involuntary conversions, or depressed market conditions, 
such losses would not be an indication that the activity is not engaged 
in for profit. A series of years in which net income was realized would 
of course be strong evidence that the activity is engaged in for profit.
    (7) The amount of occasional profits, if any, which are earned. The 
amount of profits in relation to the amount of losses incurred, and in 
relation to the amount of the taxpayer's investment and the value of the 
assets used in the activity, may provide useful criteria in determining 
the taxpayer's intent. An occasional small profit from an activity 
generating large losses, or from an activity in which the taxpayer has 
made a large investment, would not generally be determinative that the 
activity is engaged in for profit. However, substantial profit, though 
only occasional, would generally be indicative that an activity is 
engaged in for profit, where the investment or losses are comparatively 
small. Moreover, an opportunity to earn a substantial ultimate profit in 
a highly speculative venture is ordinarily sufficient to indicate that 
the activity is engaged in for profit even though losses or only 
occasional small profits are actually generated.
    (8) The financial status of the taxpayer. The fact that the taxpayer 
does not have substantial income or capital from sources other than the 
activity may indicate that an activity is engaged in for profit. 
Substantial income from sources other than the activity (particularly if 
the losses from the activity generate substantial tax benefits) may 
indicate that the activity is not engaged in for profit especially if 
there are personal or recreational elements involved.
    (9) Elements of personal pleasure or recreation. The presence of 
personal motives in carrying on of an activity may indicate that the 
activity is not engaged in for profit, especially where there are 
recreational or personal elements involved. On the other hand, a profit 
motivation may be indicated where an activity lacks any appeal other 
than profit. It is not, however, necessary that an activity be engaged 
in with the exclusive intention of deriving a profit or with the 
intention of maximizing profits. For example, the availability of other 
investments which would yield a higher return, or which would be more 
likely to be profitable, is not evidence that an activity is not engaged 
in for profit. An activity will not be treated as not engaged in for 
profit merely because the taxpayer has purposes or motivations other 
than solely to make a profit. Also, the fact that the taxpayer derives 
personal pleasure from engaging in the activity is not sufficient to 
cause the activity to be classified as not engaged in for profit if the 
activity is in fact engaged in for profit as evidenced by other factors 
whether or not listed in this paragraph.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. The taxpayer inherited a farm from her husband in an area 
which was becoming largely residential, and is now nearly all so. The 
farm had never made a profit before the taxpayer inherited it, and the 
farm has since had substantial losses in each year. The decedent from 
whom the taxpayer inherited the farm was a stockbroker, and he also left 
the taxpayer substantial stock holdings which yield large income from 
dividends. The taxpayer lives on an area of the farm which is set aside 
exclusively for living purposes. A farm manager is employed to operate 
the farm, but modern methods are not used in operating the farm. The 
taxpayer was born and raised on a farm, and expresses a strong 
preference for living on a farm. The taxpayer's activity of farming, 
based on all

[[Page 260]]

the facts and circumstances, could be found not to be engaged in for 
profit.
    Example 2. The taxpayer is a wealthy individual who is greatly 
interested in philosophy. During the past 30 years he has written and 
published at his own expense several pamphlets, and he has engaged in 
extensive lecturing activity, advocating and disseminating his ideas. He 
has made a profit from these activities in only occasional years, and 
the profits in those years were small in relation to the amounts of the 
losses in all other years. The taxpayer has very sizable income from 
securities (dividends and capital gains) which constitutes the principal 
source of his livelihood. The activity of lecturing, publishing 
pamphlets, and disseminating his ideas is not an activity engaged in by 
the taxpayer for profit.
    Example 3. The taxpayer, very successful in the business of 
retailing soft drinks, raises dogs and horses. He began raising a 
particular breed of dogs many years ago in the belief that the breed was 
in danger of declining, and he has raised and sold the dogs in each year 
since. The taxpayer recently began raising and racing thoroughbred 
horses. The losses from the taxpayer's dog and horse activities have 
increased in magnitude over the years, and he has not made a profit on 
these operations during any of the last 15 years. The taxpayer generally 
sells the dogs only to friends, does not advertise the dogs for sale, 
and shows the dogs only infrequently. The taxpayer races his horses only 
at the ``prestige'' tracks at which he combines his racing activities 
with social and recreational activities. The horse and dog operations 
are conducted at a large residential property on which the taxpayer also 
lives, which includes substantial living quarters and attractive 
recreational facilities for the taxpayer and his family. Since (i) the 
activity of raising dogs and horses and racing the horses is of a 
sporting and recreational nature, (ii) the taxpayer has substantial 
income from his business activities of retailing soft drinks, (iii) the 
horse and dog operations are not conducted in a businesslike manner, and 
(iv) such operations have a continuous record of losses, it could be 
determined that the horse and dog activities of the taxpayer are not 
engaged in for profit.
    Example 4. The taxpayer inherited a farm of 65 acres from his 
parents when they died 6 years ago. The taxpayer moved to the farm from 
his house in a small nearby town, and he operates it in the same manner 
as his parents operated the farm before they died. The taxpayer is 
employed as a skilled machine operator in a nearby factory, for which he 
is paid approximately $8,500 per year. The farm has not been profitable 
for the past 15 years because of rising costs of operating farms in 
general, and because of the decline in the price of the produce of this 
farm in particular. The taxpayer consults the local agent of the State 
agricultural service from time to time, and the suggestions of the agent 
have generally been followed. The manner in which the farm is operated 
by the taxpayer is substantially similar to the manner in which farms of 
similar size, and which grow similar crops in the area, are operated. 
Many of these other farms do not make profits. The taxpayer does much of 
the required labor around the farm himself, such as fixing fences, 
planting crops, etc. The activity of farming could be found, based on 
all the facts and circumstances, to be engaged in by the taxpayer for 
profit.
    Example 5. A, an independent oil and gas operator, frequently 
engages in the activity of searching for oil on undeveloped and 
unexplored land which is not near proven fields. He does so in a manner 
substantially similar to that of others who engage in the same activity. 
The chances, based on the experience of A and others who engaged in this 
activity, are strong that A will not find a commercially profitable oil 
deposit when he drills on land not established geologically to be proven 
oil bearing land. However, on the rare occasions that these activities 
do result in discovering a well, the operator generally realizes a very 
large return from such activity. Thus, there is a small chance that A 
will make a large profit from his soil exploration activity. Under these 
circumstances, A is engaged in the activity of oil drilling for profit.
    Example 6. C, a chemist, is employed by a large chemical company and 
is engaged in a wide variety of basic research projects for his 
employer. Although he does no work for his employer with respect to the 
development of new plastics, he has always been interested in such 
development and has outfitted a workshop in his home at his own expense 
which he uses to experiment in the field. He has patented several 
developments at his own expense but as yet has realized no income from 
his inventions or from such patents. C conducts his research on a 
regular, systematic basis, incurs fees to secure consultation on his 
projects from time to time, and makes extensive efforts to ``market'' 
his developments. C has devoted substantial time and expense in an 
effort to develop a plastic sufficiently hard, durable, and malleable 
that it could be used in lieu of sheet steel in many major applications, 
such as automobile bodies. Although there may be only a small chance 
that C will invent new plastics, the return from any such development 
would be so large that it induces C to incur the costs of his 
experimental work. C is sufficiently qualified by his background that 
there is some reasonable basis for his experimental activities. C's 
experimental work does not involve substantial personal or recreational 
aspects and is conducted in an effort to find practical applications for 
his work. Under these circumstances, C may

[[Page 261]]

be found to be engaged in the experimental activities for profit.

[T.D. 7198, 37 FR 13683, July 13, 1972]



Sec. 1.183-3  Election to postpone determination with respect to 
the presumption described in section 183(d). [Reserved]



Sec. 1.183-4  Taxable years affected.

    The provisions of section 183 and the regulations thereunder shall 
apply only with respect to taxable years beginning after December 31, 
1969. For provisions applicable to prior taxable years, see section 270 
and Sec. 1.270-1.

[T.D. 7198, 37 FR 13685, July 13, 1972]



Sec. 1.186-1  Recoveries of damages for antitrust violations, etc.

    (a) Allowance of deduction. Under section 186, when a compensatory 
amount which is included in gross income is received or accrued during a 
taxable year for a compensable injury, a deduction is allowed in an 
amount equal to the lesser of (1) such compensatory amount, or (2) the 
unrecovered losses sustained as a result of such compensable injury.
    (b) Compensable injury--(1) In general. For purposes of this 
section, the term compensable injury means any of the injuries described 
in subparagraph (2), (3), or (4) of this paragraph.
    (2) Patent infringement. An injury sustained as a result of an 
infringement of a patent issued by the United States (whether or not 
issued to the taxpayer or another person or persons) constitutes a 
compensable injury. The term patent issued by the United States means 
any patent issued or granted by the United States under the authority of 
the Commissioner of Patents pursuant to 35 U.S.C. 153.
    (3) Breach of contract or of fiduciary duty or relationship. An 
injury sustained as a result of a breach of contract (including an 
injury sustained by a third party beneficiary) or a breach of fiduciary 
duty or relationship constitutes a compensable injury.
    (4) Injury suffered under certain antitrust law violations. An 
injury sustained in business, or to property, by reason of any conduct 
forbidden in the antitrust laws for which a civil action may be brought 
under section 4 of the Act of October 15, 1914 (15 U.S.C. 15), commonly 
known as the Clayton Act, constitutes a compensable injury.
    (c) Compensatory amount--(1) In general. For purposes of this 
section, the term, compensatory amount means any amount received or 
accrued during the taxable year as damages as a result of an award in, 
or in settlement of, a civil action for recovery for a compensable 
injury, reduced by any amounts paid or incurred in the taxable year in 
securing such award or settlement. The term compensatory amount includes 
only amounts compensating for actual economic injury. Thus, additional 
amounts representing punitive, exemplary, or treble damages are not 
included within the term. Where, for example, a taxpayer recovers treble 
damages under section 4 of the Clayton Act, only one-third of the 
recovery representing economic injury constitutes a compensatory amount. 
In the absence of any indication to the contrary, amounts received in 
settlement of an action shall be deemed to be a recovery for an actual 
economic injury except to the extent such settlement amounts exceed 
actual damages claimed by the taxpayer in such action.
    (2) Interest on a compensatory amount. Interest attributable to a 
compensatory amount shall not be included within the term compensatory 
amount.
    (3) Settlement of a civil action for damages--(i) Necessity for an 
action. The term compensatory amount does not include an amount received 
or accrued in settlement of a claim for a compensable injury if the 
amount is received or accrued prior to institution of an action. An 
action shall be considered as instituted upon completion of service of 
process, in accordance with the laws and rules of the court in which the 
action has been commenced or to which the action has been removed, upon 
all defendants who pay or incur an obligation to pay a compensatory 
amount.
    (ii) Specifications of the parties. If an action for a compensable 
injury is settled, the specifications of the parties will generally 
determine compensatory amounts unless such specifications are not 
reasonably supported by the facts and circumstances of the case. For 
example, the parties may provide that the sum of $1,000 represents 
actual

[[Page 262]]

damages sustained as the result of antitrust violations and that the 
total amount of the settlement after the trebling of damages is $3,000. 
In such case, only the sum of $1,000 would be a compensatory amount. In 
the absence of specifications of the parties, the complaint filed by the 
taxpayer may be considered in determining what portion of the amount of 
the settlement is a compensatory amount.
    (4) Amounts paid or incurred in securing the award or settlement. 
For purposes of this section, the term amounts paid or incurred in the 
taxable year in securing such award or settlement shall include legal 
expenses such as attorney's fees, witness fees, accountant fees, and 
court costs. Expenses incurred in securing a recovery of both a 
compensatory amount and other amounts from the same action shall be 
allocated among such amounts in the ratio each of such amounts bears to 
the total recovery. For instance, where a taxpayer incurs attorney's 
fees and other expenses of $3,000 in recovering $10,000 as a 
compensatory amount, $5,000 as a return of capital, and $25,000 as 
punitive damages from the same action, the taxpayer shall allocate $750 
of the expenses to the compensatory amount (10,000/40,000x3,000), $375 
to the return of capital (5,000/40,000x3,000), and $1,875 to the 
punitive damages (25,000/40,000x 3,000).
    (d) Unrecovered losses--(1) In general. For purposes of this 
section, the term unrecovered losses sustained as a result of such 
compensable injury means the sum of the amounts of the net operating 
losses for each taxable year in whole or in part within the injury 
period, to the extent that such net operating losses are attributable to 
such compensable injury, reduced by (i) the sum of any amounts of such 
net operating losses which were allowed as a net operating loss 
carryback or carryover for any prior taxable year under the provisions 
of section 172, and (ii) the sum of any amounts allowed as deductions 
under section 186 (a) and this section for all prior taxable years with 
respect to the same compensable injury. Accordingly, a deduction is 
permitted under section 186(a) and this section with respect to net 
operating losses whether or not the period for carryover under section 
172 has expired.
    (2) Injury period. For purposes of this section, the term injury 
period means (i) with respect to an infringement of a patent, the period 
during which the infringement of the patent continued, (ii) with respect 
to a breach of contract or breach of fiduciary duty or relationship, the 
period during which amounts would have been received or accrued but for 
such breach of contract or breach of fiduciary duty or relationship, or 
(iii) with respect to injuries sustained by reason of a violation of 
section 4 of the Clayton Act, the period during which such injuries were 
sustained. The injury period will be determined on the basis of the 
facts and circumstances of the taxpayer's situation. The injury period 
may include a periods before and after the period covered by the civil 
action instituted.
    (3) Net operating losses attributable to compensable injuries. A net 
operating loss for any taxable year shall be treated as attributable 
(whether actually attributable or not) to a compensable injury to the 
extent the compensable injury is sustained during the taxable year. For 
purposes of determining the extent of the compensable injury sustained 
during a taxable year, a judgment for a compensable injury apportioning 
the amount of the recovery (not reduced by any amounts paid or incurred 
in securing such recovery) to specific taxable years within the injury 
period will be conclusive. If a judgment for a compensable injury does 
not apportion the amount of the recovery to specific taxable years 
within the injury period, the amount of the recovery will be prorated 
among the years within the injury period in the proportion that the net 
operating loss sustained in each of such years bear to the total net 
operating losses sustained for all such years. If an action is settled, 
the specifications of the parties will generally determine the 
apportionment of the amount of the recovery unless such specifications 
are not reasonably supported by the facts and circumstances of the case. 
In the absence of specifications of the parties, the amount of the 
recovery will be prorated among the years within the injury period in 
the proportion that the net operating loss

[[Page 263]]

sustained in each of such years bears to the total net operating losses 
sustained for all such years.
    (4) Application of losses attributable to a compensable injury. If 
only a portion of a net operating loss for any taxable year is 
attributable to a compensable injury, such portion shall (in applying 
section 172 for purposes of this section) be considered to be a separate 
net operating loss for such year to be applied after the other portion 
of such net operating loss. If, for example, in the year of the 
compensable injury the net operating loss was $1,000 and the amount of 
the compensable injury was $600, the amount of $400 not attributable to 
the compensable injury would be used first to offset profits in the 
carryover or carryback periods as prescribed by section 172. After the 
amount not attributable to the compensable injury is used to offset 
profits in other years, then the amount attributable to the compensable 
injury will be applied against profits in the carryover or carryback 
periods.
    (e) Effect on net operating loss carryovers--(1) In general. Under 
section 186 (e) if for the taxable year in which a compensatory amount 
is received or accrued any portion of the net operating loss carryovers 
to such year is attributable to the compensable injury for which such 
amount is received or accrued, such portion of the net operating loss 
carryovers must be reduced by the excess, if any, of (i) the amount 
computed under section 186(e)(1) with respect to such compensatory 
amount, over (ii) the amount computed under section 186(e)(2) with 
respect to such compensable injury.
    (2) Amount computed under section 186(e)(1). The amount computed 
under section 186(e)(1) is equal to the deduction allowed under section 
186(a) with respect to the compensatory amount received or accrued for 
the taxable year.
    (3) Amount computed under section 186(e)(2). The amount computed 
under section 186(e)(2) is equal to that portion of the unrecovered 
losses sustained as a result of the compensable injury with respect to 
which, as of the beginning of the taxable year, the period for carryover 
under section 172 has expired without benefit to the taxpayer, but only 
to the extent that such portion of the unrecovered losses did not reduce 
an amount computed under section 186(e)(1) for any prior taxable year.
    (4) Increase in income under section 172(b)(2). If there is a 
reduction for any taxable year under subparagraph (1) of this paragraph 
in the portion of the net operating loss carryovers to such year 
attributable to a compensable injury, then, solely for purposes of 
determining the amount of such portion which may be carried to 
subsequent taxable years, the income of such taxable year, as computed 
under section 172(b)(2), shall be increased by the amount of the 
reduction computed under subparagraph (1) of this paragraph, for such 
year.
    (f) Illustration. The provisions of section 186 and this section may 
be illustrated by the following example:

    Example. (i) As of the beginning of his taxable year 1969, taxpayer 
A has a net operating loss carryover from his taxable year 1966 of $550 
of which $250 is attributable to a compensable injury. In addition, he 
has a net operating loss attributable to the compensable injury of $150 
with respect to which the period for carryover under section 172 has 
expired without benefit to the taxpayer. In 1969, he receives a $100 
compensatory amount with respect to that injury and he has $75 in other 
income. Thus, A has gross income of $175 and he is entitled to a $100 
deduction (the compensatory amount received) under section 186(a) and 
this section since this amount is less than the unrecovered losses 
sustained as a result of the compensable injury ($250+$150=$400). No 
portion of the net operating loss carryover to the current taxable year 
attributable to the compensable injury is reduced under section 186(e) 
since the amount determined under section 186(e)(1) ($100) does not 
exceed the amount determined under section 186(e)(2) ($150). Therefore, 
A applies a net operating loss carryover of $550 against his remaining 
income of $75 and retains a net operating loss carryover of $475 to 
following years of which amount $250 remains attributable to the 
compensable injury. In addition, he retains $50 of net operating losses 
attributable to the compensable injury with respect to which the period 
for carryover under section 172 has expired without benefit to the 
taxpayer.
    (ii) In 1970, A receives a $200 compensatory amount with respect to 
the same compensable injury and has $75 of other income. Thus, A has 
gross income of $275 and he is entitled to a $200 deduction (the 
compensatory amount received) under section 186(a)

[[Page 264]]

and this section since this amount is less than the remaining 
unrecovered loss sustained as a result of the compensable injury 
($250+$50=$300). The net operating loss carryover to the current taxable 
year of $250 attributable to the compensable injury is reduced under 
section 186(e) by $150, which is the excess of the amount determined 
under section 186(e)(1) ($200) over the amount determined under section 
186(e)(2) ($50). Therefore, A applies net operating loss carryovers of 
$325 ($225 not attributable to the compensable injury, +$100 
attributable to such injury) against his remaining income of $75. A 
retains net operating loss carryovers of $250 for following years, of 
which amount $100 is attributable to the compensable injury. A has used 
all of his net operating losses attributable to the compensable injury 
with respect to which the period for carryover under section 172 has 
expired without benefit to the taxpayer.
    (iii) In 1971, A receives a $200 compensatory amount with respect to 
the same compensable injury and has $75 of other income. Thus, A has 
gross income of $275 and he is entitled to a $100 deduction (the amount 
of unrecovered losses) under section 186(a) and this section since this 
amount is less than the compensatory amount received ($200). The net 
operating loss carryover to the current taxable year of $100 
attributable to the compensable injury is reduced under section 186(e) 
by $100, which is the excess of the amount determined under section 
186(e)(1) ($100) over the amount determined under section 186(e)(2) 
($0). Therefore, A applies net operating loss carryovers of $150 against 
his remaining income of $175 ($100 compensatory amount plus $75 other 
income) which leaves $25 taxable income. No net operating loss carryover 
remains for following years.

    (g) Effective date. The provisions of this section are applicable as 
to compensatory amounts received or accrued in taxable years beginning 
after December 31, 1968, even though the compensable injury was 
sustained in taxable years beginning before such date.

[T.D. 7220, 37 FR 24744, Nov. 21, 1972]



Sec. 1.187-1  Amortization of certain coal mine safety equipment.

    (a) Allowance of deduction--(1) In general. Under section 187(a), 
every person, at his election, shall be entitled to a deduction with 
respect to the amortization of the adjusted basis (for determining gain) 
of any certified coal mine safety equipment (as defined in Sec. 1.187-
2), based on a period of 60 months. Such 60-month period shall, at the 
election of the taxpayer, begin either with the month following the 
month in which such equipment was placed in service or with the 
succeeding taxable year. For rules as to making or discontinuing the 
election, see paragraphs (b) and (c) of this section. For the 
computation of the adjusted basis (for determining gain) of any 
certified coal mine safety equipment, see paragraph (b) of Sec. 1.187-
2.
    (2) Amount of deduction. (i) Such amortization deduction shall be an 
amount, with respect to each month of such 60-month period which falls 
within the taxable year, equal to the adjusted basis for determining 
gain of the certified coal mine safety equipment at the end of such 
month divided by the number of months (including the month for which the 
deduction is computed) remaining in such 60-month period. Such adjusted 
basis at the end of any month shall be computed without regard to the 
amortization deduction for such month. The total amortization deduction 
with respect to any certified coal mine safety equipment for a 
particular taxable year is the sum of the amortization deductions 
allowable for each month of the 60-month period which falls within such 
taxable year.
    (ii) If any certified coal mine safety equipment is sold or 
exchanged or otherwise disposed of during a particular month, then the 
amortization deduction (if any) allowable to the transferor in respect 
of that month shall be that portion of the amount to which such person 
would be entitled for a full month which the number of days in such 
month during which the equipment was held by such person bears to the 
total number of days in such month.
    (3) Effect on other deductions. (i) The amortization deduction 
provided by section 187(a) with respect to any month shall be in lieu of 
the depreciation deduction which would otherwise be allowable with 
respect to such equipment under section 167 for such month.
    (ii) If the adjusted basis of such coal mine safety equipment as 
computed under section 1011 for purposes other than the amortization 
deduction provided by section 187(a) is in excess of the adjusted basis, 
as computed under

[[Page 265]]

paragraph (b) of Sec. 1.187-2, then such excess shall be recovered 
through depreciation deductions under the rules of section 167. See 
section 187(e), and paragraph (b)(2) of Sec. 1.187-2.
    (iii) See section 179 and paragraph (e)(1)(ii) of Sec. 1.179-1 for 
additional first-year depreciation in respect of certified coal mine 
safety equipment.
    (4) Special rules. (i) If the assets of a corporation which has 
elected to take the amortization deduction under section 187(a) are 
acquired by another corporation in a transaction to which section 381 
(relating to carryovers in certain corporate acquisitions) applies, the 
acquiring corporation is to be treated as if it were the transferor or 
distributor corporation for purposes of this section.
    (ii) For the right of estates and trusts to take the amortization 
deduction provided by section 187 see section 642(f) and Sec. 1.642(f)-
1.
    (iii) For the allowance of the amortization deduction in the case of 
coal mine safety equipment of partnerships see section 703 and Sec. 
1.703-1.
    (iv) In the case of certified coal mine safety equipment held by one 
person for life with the remainder to another person, the amortization 
deduction under section 187(a) shall be computed as if the life tenant 
were the absolute owner of the property and shall be allowable to the 
life tenant during his life.
    (5) Effective date. The provisions of this paragraph shall apply to 
taxable years ending after December 31, 1969.
    (6) Meaning of terms. Except as otherwise provided in Sec. 1.187-2, 
all terms used in section 187 and the regulations thereunder shall have 
the meaning provided by this section and Sec. 1.187-2.
    (b) Election of amortization--(1) In general. Under section 187(b), 
an election by the taxpayer to make amortization deductions with respect 
to any certified coal mine safety equipment and to begin the 60-month 
amortization period shall be made by a statement to that effect attached 
to his return for the taxable year in which falls the first month of the 
60-month amortization period so elected. Such statement shall include 
the following information:
    (i) A description clearly identifying each piece of certified coal 
mine safety equipment for which an amortization deduction is claimed;
    (ii) The date on which such equipment was ``placed in service'' (see 
paragraph (a)(2)(i) of Sec. 1.187-2);
    (iii) The date on which the amortization period began;
    (iv) The total costs paid or incurred in the acquisition and 
installation of such equipment;
    (v) A computation showing the adjusted basis (as defined in 
paragraph (b) of Sec. 1.187-2) of the equipment as of the beginning of 
the amortization period;
    (vi) In the case of electric face equipment which is newly acquired 
by the taxpayer, a statement that the equipment has been certified by 
the Secretary of the Interior or the Director of the Bureau of Mines as 
being permissible within the meaning of section 305(a)(2) of the Federal 
Coal Mine Health and Safety Act of 1969; and
    (vii) In the case of property placed in service in connection with 
used electric face equipment (within the meaning of paragraph (a)(2)(ii) 
of Sec. 1.187-2), a statement that such property has resulted in the 
used electric face equipment becoming permissible and a copy of the 
notification that such property is permissible.
    (2) Late certification. If, 90 days before the date on which the 
return described in this paragraph is due, a piece of coal mine safety 
equipment has not been certified as permissible by the Secretary of the 
Interior or the Director of the Bureau of Mines, then the election may 
be made by a statement in an amended income tax return for the taxable 
year in which falls the first month of the 60-month amortization period 
so elected. The statement and amended return in such case must be filed 
not later than 90 days after the date the equipment is certified as 
permissible by the Secretary of the Interior or the Director of the 
Bureau of Mines. Amended income tax returns or claims for credit or 
refund should also be filed at this time for other taxable years which 
are within the amortization period and which are subsequent to the 
taxable year for which the election is made. Nothing in this paragraph 
shall be construed as extending the time specified in section 6511 
within which a claim for credit or refund may be filed.

[[Page 266]]

    (3) Other requirements and considerations. No method of making the 
election provided for in section 187(a) other than that prescribed in 
this section shall be permitted on or after August 11, 1971. A taxpayer 
who does not elect in the manner prescribed in this section to take 
amortization deductions with respect to certified coal mine safety 
equipment shall not be entitled to such deductions. In the case of a 
taxpayer who has elected prior to August 11, 1971 the statement required 
by subparagraph (1) of this paragraph shall be attached to his income 
tax return for his taxable year in which August 11, 1971 occurs.
    (c) Election to discontinue or revoke amortization--(1) Election to 
discontinue. (i) Under section 187(c), if a taxpayer has elected to take 
the amortization deduction provided by section 187(a) with respect to 
any certified coal mine safety equipment, he may, after such election 
and prior to the expiration of the 60-month amortization period, elect 
to discontinue the amortization deduction for the remainder of the 60-
month period for such equipment.
    (ii) An election to discontinue the amortization deduction shall be 
made by a statement in writing filed with the District Director or with 
the director of the Internal Revenue Service center with whom the return 
of the taxpayer is required to be filed for its taxable year in which 
falls the first month for which the election terminates. In addition, a 
copy of such statement shall be attached to the taxpayer's income tax 
return filed for such taxable year. Such statement shall specify the 
month as of the beginning of which the taxpayer elects to discontinue 
such deductions, and shall be filed before the beginning of the month 
specified therein. In addition, such notice shall contain a description 
clearly identifying the certified coal mine safety equipment with 
respect to which the taxpayer elects to discontinue the amortization 
deduction. If the taxpayer so elects to discontinue the amortization 
deduction, he shall not be entitled to any further amortization 
deductions under section 187 with respect to such equipment.
    (2) Revocation of elections made prior to August 11, 1971. If before 
August 11, 1971 an election under section 187(a) has been made, consent 
is hereby given for the taxpayer to revoke such election without the 
consent of the Commissioner. Such election may be revoked by filing a 
notice of revocation on or before November 9, 1971. Such notice shall be 
in the form and shall be filed in the manner required by subparagraph 
(1)(ii) of this paragraph. If such revocation is for a period which 
falls within one or more taxable years for which an income tax return 
has been filed, an amended income tax return shall be filed for any 
taxable year in which a deduction was taken under section 187 on or 
before November 9, 1971.
    (3) Depreciation subsequent to discontinuance or in the case of 
revocation of amortization. (i) A taxpayer who elects in the manner 
prescribed under subparagraph (1) of this section to discontinue 
amortization deductions under section 187(a) or under subparagraph (2) 
of this paragraph to revoke an election made prior to August 11, 1971 
with respect to an item of certified coal mine safety equipment may be 
entitled to a deduction for depreciation with respect to such equipment. 
See section 167 and the regulations thereunder.
    (ii) In the case of an election to discontinue an amortization 
deduction under section 187, the deduction for depreciation shall be 
computed beginning with the first month as to which such amortization 
deduction is not applicable, and shall be based upon the adjusted basis 
(see section 1011 and the regulations thereunder) of the property as of 
the beginning of such month. Such depreciation deduction shall be based 
upon the remaining portion of the period authorized under section 167 
for the facility, as determined as of the first day of the first month 
as of which the amortization deduction is not applicable.
    (iii) In the case of a revocation of an election under section 187 
referred to in paragraph (c)(2) of this section the deduction for 
depreciation shall begin as of the time such depreciation deduction 
would have been taken but for the election under section 187. See 
subparagraph (2) of this section for rules as to filing amended returns 
for years for

[[Page 267]]

which amortization deductions have been taken.
    (d) Examples. This section may be illustrated by the following 
examples:

    Example 1. On September 30, 1970, the X Corporation, which uses the 
calendar year as its taxable year, places in service a piece of coal 
mine safety equipment required as a result of the Federal Coal Mine 
Health and Safety Act of 1969 which is certified as indicated in 
paragraph (a) of Sec. 1.187-2. The cost of the equipment is $120,000. 
On its income tax return filed for 1970, the corporation elects to take 
the amortization deductions allowed by section 187(a) with respect to 
the equipment and to begin the 60-month amortization period with October 
1970, the month following the month in which it was placed in service. 
The adjusted basis at the end of October 1970 (determined without regard 
to the amortization deduction allowed by section 187(a) for that month) 
is $120,000. The allowable amortization deduction with respect to such 
equipment for the taxable year 1970 is $6,000, computed as follows:

Monthly amortization deductions:
  October: $120,000 divided by 60............................     $2,000
  November: $118,000 ($120,000 minus $2,000) divided by 59...      2,000
  December: $116,000 ($118,000 minus $2,000) divided by 58...      2,000
                                                              ----------
    Total amortization deduction for 1970....................      6,000
 

    Example 2. Assume the same facts as in Example 1. Assume further 
that on May 20, 1972, X properly files notice of its election to 
discontinue the amortization deductions with the month of June 1972. The 
adjusted basis of the equipment as of June 1, 1972 (assuming no capital 
additions or improvements) is $80,000, computed as follows: Yearly 
amortization deductions computed in accordance with Example 1:

1970.........................................................     $6,000
1971.........................................................     24,000
1972 (for the first 5 months)................................     10,000
                                                              ----------
    Total amortization deductions for 20 months..............     40,000
                                                              ==========
Adjusted basis at beginning of amortization period...........    120,000
  Less: Amortization deductions..............................     40,000
                                                              ----------
Adjusted basis as of June 1, 1972............................     80,000
 


Beginning as of June 1, 1972, the deduction for depreciation under 
section 167 is allowable with respect to the property on its adjusted 
basis of $80,000.
    Example 3. Assume the same facts as in Example 1, except that on its 
income tax return filed in 1970, X does not elect to take amortization 
deductions allowed by section 187(a) but that on its income tax return 
filed for 1971 X elects to begin the amortization period as of January 
1, 1971, the taxable year succeeding the taxable year the equipment was 
placed in service. Assume further that the only adjustment to basis for 
the period October 1, 1970, to January 1, 1971, is $3,000 for 
depreciation (the amount allowable, of which $2,000 is for additional 
first year depreciation under section 179) for the last 3 months of 
1970. The adjusted basis (for determining gain) for purposes of section 
187 as of that date is $120,000 less $3,000 or $117,000.

[T.D. 7137, 36 FR 14733, Aug. 11, 1971; 36 FR 16656, Aug. 25, 1971]



Sec. 1.187-2  Definitions.

    (a) Certified coal mine safety equipment--(1) In general--(i) The 
term certified coal mine safety equipment means property which:
    (a) Is electric face equipment (within the meaning of section 305 of 
the Federal Coal Mine Health and Safety Act of 1969) required in order 
to meet the requirements of section 305(a)(2) of such Act,
    (b) The Secretary of the Interior or the Director of the Bureau of 
Mines certifies is permissible within the meaning of such section 
305(a)(2), and
    (c) Is placed in service (as defined in subparagraph (2)(i) of this 
paragraph) before January 1, 1975.
    (ii) In addition, property placed in service in connection with any 
used electric face equipment which the Secretary of the Interior or the 
Director of the Bureau of Mines certifies makes such used electric face 
equipment permissible shall be treated as a separate item of certified 
coal mine safety equipment. See subparagraph (2)(ii) of this paragraph.
    (2) Meaning of terms. (i) For purposes of subparagraph (1)(i)(c) of 
this paragraph, the term placed in service shall have the meaning 
assigned to such term in paragraph (d) of Sec. 1.46-3.
    (ii) For purposes of subparagraph (1)(ii) of this paragraph, the 
term property includes those costs of converting existing nonpermissible 
electric face equipment to a permissible condition which are chargeable 
to capital account under the principles of Sec. 1.1016-2. Property is 
considered to be placed in service in connection with used electric face 
equipment (which was not permissible) if its use causes such electric 
face equipment to be certified as permissible.
    (b) Adjusted basis--(1) In general. The basis upon which the 
deduction with

[[Page 268]]

respect to amortization allowed by section 187 is to be computed with 
respect to any item of certified coal mine safety equipment shall be the 
adjusted basis provided in section 1011 for the purpose of determining 
gain on the sale or other disposition of such property (see part II 
(section 1011 and following) subchapter O, chapter 1 of the Code) 
computed as of the first day of the amortization period. For an example 
showing the determination of the adjusted basis referred to in the 
preceding sentence in the case where the amortization period begins with 
the taxable year succeeding the taxable year in which the property is 
placed in service see Example 3 in paragraph (d) of Sec. 1.187-1.
    (2) Capital additions. The adjusted basis of any certified coal mine 
safety equipment, with respect to which an election is made under 
section 187(b), shall not be increased, for purposes of section 187, for 
amounts chargeable to the capital account for additions or improvements 
after the amortization period has begun. However, nothing contained in 
this section or Sec. 1.187-1 shall be deemed to disallow a deduction 
for depreciation for such capital additions. Thus, for example, if a 
taxpayer places a piece of certified coal mine safety equipment in 
service in 1971 and in 1972 makes improvements to it the expenditures 
for which are chargeable to the capital account, such improvements shall 
not increase the adjusted basis of the equipment for purposes of 
computing the amortization deduction allowed by section 187(a). However, 
the depreciation deduction provided by section 167 shall be allowed with 
respect to such improvements in accordance with the principles of 
section 167.

[T.D. 7137, 36 FR 14734, Aug. 11, 1971; 36 FR 19251, Oct. 1, 1971]



Sec. 1.188-1  Amortization of certain expenditures for qualified 
on-the-job training and child care facilities.

    (a) Allowance of deduction--(1) In general. Under section 188, at 
the election of the taxpayer, any eligible expenditure (as defined in 
paragraph (d)(1) of this section) made by such taxpayer to acquire, 
construct, reconstruct, or rehabilitate section 188 property (as defined 
in paragraph (d)(2) of this section) shall be allowable as a deduction 
ratably over a period of 60 months. Such 60-month period shall begin 
with the month in which such property is placed in service. For rules 
for making the election, see paragraph (b) of this section. For rules 
relating to the termination of an election, see paragraph (c) of this 
section.
    (2) Amount of deduction--(i) In general. For each eligible 
expenditure attributable to an item of section 188 property the 
amortization deduction shall be an amount, with respect to each month of 
the 60-month amortization period which falls within the taxable year, 
equal to the elgible expenditure divided by 60. The total amortization 
deduction with respect to each item of section 188 property for a 
particular taxable year is the sum of the amortization deductions 
allowable for each month of the 60-month period which falls within such 
taxable year. The total amortization deduction under section 188 for a 
particular taxable year is the sum of the amortization deductions 
allowable with respect to each item of section 188 property for that 
taxable year.
    (ii) Separate amortization period for each expenditure. Each 
eligible expenditure attributable to an item of section 188 property to 
which an election relates shall be amortized over a 60-month period 
beginning with the month in which the item of section 188 property is 
placed in service. Thus, if a taxpayer makes an eligible expenditure for 
an addition to, or improvement of, section 188 property, such 
expenditure must be amortized over a separate 60-month period beginning 
with the month in which the section 188 property is placed in service.
    (iii) Separate items. The determination of what constitutes a 
separate item of section 188 property is to be made on the basis of the 
facts and circumstances of each individual case. Additions or 
improvements to an existing item of section 188 property are treated as 
a separate item of section 188 property. In general, each item of 
personal property is a separate item of property and each building, or 
separate element or structural component thereof, is a separate item of 
property. For purposes of subdivisions (i) and (ii)

[[Page 269]]

of this subparagraph, two or more items of property may be treated as a 
single item of property if such items (A) are placed in service within 
the same month of the taxable year, (B) have same estimated useful life, 
and (C) are to be used in a functionally related manner in the operation 
of a qualified on-the-job training or child care facility or are 
integrally related facilities (described in paragraph (d) (3) or (4) of 
this section.
    (iv) Disposition of property or termination of election. If an item 
of section 188 property is sold or exchanged or otherwise disposed of 
(or if the item of property ceases to be used as section 188 property by 
the taxpayer) during a particular month, then the amortization deduction 
(if any) allowable to the taxpayer in respect of that item for that 
month shall be an amount which bears the same ratio to the amount to 
which the taxpayer would be entitled for a full month as the number of 
days in such month during which the property was held by him (or used by 
him as section 188 property) bears to the total number of days in such 
month.
    (3) Effect on other deductions. The amortization deduction provided 
by section 188(a) with respect to any month shall be in lieu of any 
depreciation deduction which would otherwise be allowable under sections 
167 or 179 with respect to that portion of the adjusted basis of the 
property attributable to an adjustment under section 1016(a)(1) made on 
account of an eligible expenditure.
    (4) Depreciation with respect to property ceasing to be used as 
section 188 property. A taxpayer is entitled to a deduction for the 
depreciation (to the extent allowable under section 167) of property 
with respect to which the election under section 188 is terminated under 
the provisions of paragraph (c) of this section. The deduction for 
depreciation shall begin with the date of such termination and shall be 
computed on the adjusted basis of the property as of such date. The 
depreciation deduction shall be based upon the estimated remaining 
useful life and salvage value authorized under section 167 for the 
property as of the termination date.
    (5) Investment credit not to be allowed. Any property with respect 
to which an election has been made under section 188(a) shall not be 
treated as section 38 property within the meaning of section 48(a).
    (6) Special rules--(i) Life estates. In the case of section 188 
property held by one person for life with the remainder to another 
person, the amortization deduction under section 188(a) shall be 
computed as if the life tenant were the absolute owner of the property 
and shall be allowable to the life tenant during his life.
    (ii) Certain corporate acquistions. If the assets of a corporation 
which has elected to take the amortization deduction under section 
188(a) are acquired by another corporation in a transaction to which 
section 381(a) (relating to carryovers in certain corporate 
acquisitions) applies, the acquiring corporation is to be treated as if 
it were the distributor or transferor corporation for purposes of this 
section.
    (iii) Estates and trusts. For the allowance of the amortization 
deduction in the case of estates and trusts, see section 642(f) and 
Sec. 1.642(f)-(1).
    (iv) Partnerships. For the allowance of the amortization deduction 
in the case of partnerships, see section 703 and Sec. 1.703-1.
    (b) Time and manner of making election--(1) In general. Except as 
otherwise provided in subparagraph (2) of this paragraph, an election to 
amortize an eligible expenditure under section 188 shall be made by 
attaching, to the taxpayer's income tax return for the taxable period 
for which the deduction is first allowable to such taxpayer, a written 
statement containing:
    (i) A description clearly identifying each item of property (or two 
or more items of property treated as a single item) forming a part of a 
qualified on-the-job training or child care facility to which the 
election relates. e.g., building, classroom equipment, etc.;
    (ii) The date on which the eligible expenditure was made for such 
item of property (or the period during which eligible expenditures were 
made for two or more items of property treated as a single item of 
property);

[[Page 270]]

    (iii) The date on which such item of property was ``placed in 
service'' (see paragraph (d)(5) of this section);
    (iv) The amount of the eligible expenditure of such item of property 
(or the total amount of expenditures for two or more items of property 
treated as a single item); and
    (v) The annual amortization deduction claimed with respect to such 
item of property.

If the taxpayer does not file a timely return (taking into account 
extensions of the time for filing) for the taxable year for which the 
election is first to be made, the election shall be filed at the time 
the taxpayer files his first return for that 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 the taxable year of election.
    (2) Special rule. With respect to any return filed before (90 days 
after the date on which final regulations are filed with the Office of 
the Federal Register), the election to amortize an eligible expenditure 
for section 188 property shall be made by a statement on, or attached 
to, the income tax return (or an amended return) for the taxable year, 
indicating that an election is being made under section 188 and setting 
forth information to identify the election and the facility or 
facilities to which it applies. An election made under the provisions of 
this subparagraph, must be made not later than (i) the time, including 
extensions thereof, prescribed by law for filing the income tax return 
for the first taxable year for which the election is being made or (ii) 
before (90 days after the date on which final regulations under section 
188 are filed with the Office of the Federal Register), whichever is 
later. Nothing in this subparagraph shall be construed as extending the 
time specified in section 6511 within which a claim for credit or refund 
may be filed.
    (3) No other method of making election. No method for making the 
election under section 188(a) other than the method prescribed in this 
paragraph shall be permitted. If an election to amortize section 188 
property is not made within the time and in the manner prescribed in 
this paragraph, no election may be made (by the filing of an amended 
return or in any other manner) with respect to such section 188 
property.
    (4) Effect of election. An election once made may not be revoked by 
a taxpayer with respect to any item of section 188 property to which the 
election relates. The election of the amortization deducted for an item 
of section 188 property shall not affect the taxpayer's right to elect 
or not to elect the amortization deduction as to other items of section 
188 property even though the items are part of the same facility. For 
rules relating to the termination of an election other than by 
revocation by the taxpayer, see paragraph (c) of this section.
    (c) Termination of election. If the specific use of an item of 
section 188 property in connection with a qualified on-the-job training 
or child care facility is discontinued, the election made with respect 
to that item of property shall be terminated. The termination shall be 
effective with respect to such item of property as of the earliest date 
on which the taxpayer's specific use of the item is no longer in 
connection with the operation of a qualified on-the-job training or 
child care facility. If a facility ceases to meet the applicable 
requirements of paragraph (d)(3) of this section, relating to qualified 
on-the-job training facilities, or paragraph (d)(4) of this section, 
relating to qualified child care facilities, the election or elections 
made with respect to the items of section 188 property comprising such 
facility shall be terminated. The termination shall be effective with 
respect to such items of poperty as of the earliest date on which the 
facility is no longer qualified under the applicable rules. For rules 
relating to depreciation with respect to property ceasing to be used as 
section 188 property, see paragraph (a)(4) of this section.
    (d) Definitions and special requirements--(1) Eligible expenditure. 
For purposes of this section, the term eligible expenditure means an 
expenditure:
    (i) Chargeable to capital account;

[[Page 271]]

    (ii) Made after December 31, 1971, and before January 1, 1982, to 
acquire, construct, reconstruct, or rehabilitate section 188 property 
which is a qualified child care center facility (or, made after December 
31, 1971, and before January 1, 1977, to acquire, construct, 
reconstruct, or rehabilitate section 188 property which is a qualified 
on-the-job training facility); and
    (iii) For which, but only to the extent that, a grant or other 
reimbursement excludable from gross income is not, directly or 
indirectly, payable to, or for the benefit of, the taxpayer with respect 
to such expenditure under any job training or child care program 
established or funded by the United States, a State, or any 
instrumentality of the foregoing, or the District of Columbia.

For purposes of this subparagraph, an expenditure is considered to be 
made when actually paid by a taxpayer who computes his taxable income 
under the cash receipts and disbursements method or when the obligation 
therefore is incurred by a taxpayer who computes his taxable income 
under the accrual method. See subparagraph (5) of this paragraph for the 
determination of when section 188 property is placed in service for 
purposes of beginning the 60-month amortization period.
    (2) Section 188 property. Section 188 property is tangible property 
which is:
    (i) Of a character subject to depreciation;
    (ii) Located within the United States; and
    (iii) Specifically used as an integral part of a qualified on-the-
job training facility (as defined in subparagraph (3) of this paragraph) 
or as an integral part of a qualified child care center facility (as 
defined in subparagraph (4) of this paragraph.)
    (3) Qualified on-the-job training facility. A qualified on-the-job 
training facility is a facility specifically used by an employer as an 
on-the-job training facility in connection with an occupational training 
program for his employees or prospective employees provided that with 
respect to such program:
    (i) All of the following requirements are met:
    (A) There is offered at the training facility a systematic program 
comprised of work and training and related instruction;
    (B) The occupation, together with a listing of its basic skills, and 
the estimated schedule of time for accomplishments of such skills, are 
clearly identified;
    (C) The content of the training is adequate to qualify the employee, 
or prospective employee, for the occupation for which the individual is 
being trained;
    (D) The skills are to be imparted by competent instructors;
    (E) Upon completion of the training, placement is to be based 
primarily upon the skills learned through the training program;
    (F) The period of training is not less than the time necessary to 
acquire minimum job skills nor longer than the usual period of training 
for the same occupation; and
    (G) There is reasonable certainty that employment will be available 
with the employer in the occupation for which the training is provided; 
or
    (ii) The employer has entered into an agreement with the United 
States, or a State agency, under the provisions of the Manpower 
Development and Training Act of 1962, as amended and supplemented (42 
U.S.C. 2571 et seq.), the Economic Opportunity Act of 1964, as amended 
and supplemented (42 U.S.C. 2701 et seq.), section 432(b)(1) of the 
Social Security Act, as amended and supplemented (42 U.S.C. 632(b)(1)), 
the National Apprenticeship Act of 1937, as amended and supplemented (29 
U.S.C. 50 et seq.), or other similar Federal statute.

A facility consists of a building or any portion of a building and its 
structural components in which training is conducted, and equipment or 
other personal property necessary to teach a trainee the basic skills 
required for satisfactory performance in the occupation for which the 
training is being given. A facility also includes a building or portion 
of a building which provides essential services for trainees during the 
course of the training program, such as a dormitory or dining hall. For 
purposes of this section, a facility is considered to be specifically 
used as an on-the-job training facility if such facility is actually 
used for such

[[Page 272]]

purposes and is not used in a significant manner for any purpose other 
than job training or the furnishing of essential services for trainees 
such as meals and lodging. For purposes of the preceding sentence if a 
facility is used 20 percent of the time for a purpose other than on-the-
job training or providing trainees with essential services, it would not 
satisfy the significant use test. Thus, a production facility is not an 
on-the-job training facility for purposes of section 188 simply because 
new employees receive training on the machines they will be using as 
fully productive employees. A facility is considered to be used by an 
employer in connection with an occupational training program for his 
employees or prospective employees if at least 80 percent of the 
trainees participating in the program are employees or prospective 
employees. For purposes of this section, a prospective employee is a 
trainee with respect to whom it is reasonably expected that the trainee 
will be employed by the employer upon successful completion of the 
training program.
    (4) Qualified child care facility. A qualified child care facility 
is a facility which is:
    (i) Particulary suited to provide child care services and 
specifically used by an employer to provide such services primarily for 
his employees' children;
    (ii) Operated as a licensed or approved facility under applicable 
local law, if any, relating to the day care of children; and
    (iii) If directly or indirectly funded to any extent by the United 
States, established and operated in compliance with the requirements 
contained in Part 71 of title 45 of the Code of Federal Regulations, 
relating to Federal Interagency Day Care Requirements. For purposes of 
this subparagraph, a facility consists of the buildings, or portions or 
structural components thereof, in which children receive such personal 
care protection, and supervision in the absence of their parents as may 
be required to meet their needs, and the equipment or other personal 
property necessary to render such services. Whether or not a facility, 
or any component property thereof, is particularly suited for the needs 
of the children being cared for depends upon the facts and circumstances 
of each individual case. Generally, a building and its structural 
component, or a room therein, and equipment are particulary suitable for 
furnishing child care service if they are designed or adapted for such 
use or satisfy requirements under local law for such use as a condition 
to granting a license for the operation of the facility. For example, 
such property includes special kitchen or toilet facilities connected to 
the building or room in which the services are rendered and equipment 
such as children's desks, chairs, and play or instructional equipment. 
Such property would not include general purpose rooms used for many 
purposes (for example, a room used as an employee recreation center 
during the evening) nor would it include a room or a part of a room 
which is simply screened off for use by children during the day. For 
purposes of this section, a facility is considered to be specifically 
used as a child care facility if such facility is actually used for such 
purpose and is not used in a significant manner for any purpose other 
than child care. For purposes of this subparagraph, a child care 
facility is used by an employer to provide child care services primarily 
for children of employees of the employer if, for any month, no more 
than 20 percent of the average daily enrolled or attending children for 
such month are other than children of such employees.
    (5) Placed in service. For purposes of section 188 and this section, 
the term placed in service shall have the meaning assigned to such term 
in paragraph (d) of Sec. 1.46-3.
    (6) Employees. For purposes of section 188 and this section, the 
terms employees and prospective employees include employees and 
prospective employees of a member of a controlled group of corporations 
(within the meaning of section 1563) of which the taxpayer is a member.
    (e) Effective date. The provisions of section 188 and this section 
apply to taxable years ending after December 31, 1971.

[T.D. 7599, 44 FR 14549, Mar. 13, 1979]

[[Page 273]]



Sec. 1.190-1  Expenditures to remove architectural and transportation 
barriers to the handicapped and elderly.

    (a) In general. Under section 190 of the Internal Revenue Code of 
1954, a taxpayer may elect, in the manner provided in Sec. 1.190-3 of 
this chapter, to deduct certain amounts paid or incurred by him in any 
taxable year beginning after December 31, 1976, and before January 1, 
1980, for qualified architectural and transportation barrier removal 
expenses (as defined in Sec. 1.190-2(b) of this chapter). In the case 
of a partnership, the election shall be made by the partnership. The 
election applies to expenditures paid or incurred during the taxable 
year which (but for the election) are chargeable to capital account.
    (b) Limitation. The maximum deduction for a taxpayer (including an 
affiliated group of corporations filing a consolidated return) for any 
taxable year is $25,000. The $25,000 limitation applies to a partnership 
and to each partner. Expenditures paid or incurred in a taxable year in 
excess of the amount deductible under section 190 for such taxable year 
are capital expenditures and are adjustments to basis under section 
1016(a). A partner must combine his distributive share of the 
partnership's deductible expenditures (after application of the $25,000 
limitation at the partnership level) with that partner's distributive 
share of deductible expenditures from any other partnership plus that 
partner's own section 190 expenditures, if any (if he makes the election 
with respect to his own expenditures), and apply the partner's $25,000 
limitation to the combined total to determine the aggregate amount 
deductible by that partner. In so doing, the partner may allocate the 
partner's $25,000 limitation among the partner's own section 190 
expenditures and the partner's distributive share of partnership 
deductible expenditures in any manner. If such allocation results in all 
or a portion of the partner's distributive share of a partnership's 
deductible expenditures not being an allowable deduction by the partner, 
the partnership may capitalize such unallowable portion by an 
appropriate adjustment to the basis of the relevant partnership property 
under section 1016. For purposes of adjustments to the basis of 
properties held by a partnership, however, it shall be presumed that 
each partner's distributive share of partnership deductible expenditures 
(after application of the $25,000 limitation at the partnership level) 
was allowable in full to the partner. This presumption can be rebutted 
only by clear and convincing evidence that all or any portion of a 
partner's distributive share of the partnership section 190 deduction 
was not allowable as a deduction to the partner because it exceeded that 
partner's $25,000 limitation as allocated by him. For example, suppose 
for 1978 A's distributive share of the ABC partnership's deductible 
section 190 expenditures (after application of the $25,000 limitation at 
the partnership level) is $15,000. A also made section 190 expenditures 
of $20,000 in 1978 which he elects to deduct. A allocates $10,000 of his 
$25,000 limitation to his distributive share of the ABC expenditures and 
$15,000 to his own expenditures. A may capitalize the excess $5,000 of 
his own expenditures. In addition, if ABC obtains from A evidence which 
meets the requisite burden of proof, it may capitalize the $5,000 of A's 
distributive share which is not allowable as a deduction to A.

[T.D. 7634, 44 FR 43270, July 24, 1979]



Sec. 1.190-2  Definitions.

    For purposes of section 190 and the regulations thereunder:
    (a) Architectural and transportation barrier removal expenses. The 
term architectural and transportation barrier removal expenses means 
expenditures for the purpose of making any facility, or public 
transportation vehicle, owned or leased by the taxpayer for use in 
connection with his trade or business more accessible to, or usable by, 
handicapped individuals or elderly individuals. For purposes of this 
section:
    (1) The term facility means all or any portion of buildings, 
structures, equipment, roads, walks, parking lots, or similar real or 
personal property.
    (2) The term public transportation vehicle means a vehicle, such as 
a bus, a railroad car, or other conveyance, which provides to the public 
general or

[[Page 274]]

special transportation service (including such service rendered to the 
customers of a taxpayer who is not in the trade or business of rendering 
transportation services).
    (3) The term handicapped individual means any individual who has:
    (i) A physical or mental disability (including, but not limited to, 
blindness or deafness) which for such individual constitutes or results 
in a functional limitation to employment, or
    (ii) A physical or mental impairment (including, but not limited to, 
a sight or hearing impairment) which substantially limits one or more of 
such individual's major life activities, such as performing manual 
tasks, walking, speaking, breathing, learning, or working.
    (4) The term elderly individual means an individual age 65 or over.
    (b) Qualified architectual and transportation barrier removal 
expense--(1) In general. The term qualified architectural and 
transportation barrier removal expense means an architectural or 
transportation barrier removal expense (as defined in paragraph (a) of 
this section) with respect to which the taxpayer establishes, to the 
satisfaction of the Commissioner or his delegate, that the resulting 
removal of any such barrier conforms a facility or public transportation 
vehicle to all the requirements set forth in one or more of paragraphs 
(b) (2) through (22) of this section or in one or more of the 
subdivisions of paragraph (b) (20) or (21). Such term includes only 
expenses specifically attributable to the removal of an existing 
architectural or transportation barrier. It does not include any part of 
any expense paid or incurred in connection with the construction or 
comprehensive renovation of a facility or public transportation vehicle 
or the normal replacement of depreciable property. Such term may include 
expenses of construction, as, for example, the construction of a ramp to 
remove the barrier posed for wheelchair users by steps. Major portions 
of the standards set forth in this paragraph were adapted from 
``American National Standard Specifications for Making Buildings and 
Facilities Accessible to, and Usable by, the Physically Handicapped'' 
(1971), the copyright for which is held by the American National 
Standards Institute, 1430 Broadway, New York, New York 10018.
    (2) Grading. The grading of ground, even contrary to existing 
topography, shall attain a level with a normal entrance to make a 
facility accessible to individuals with physical disabilities.
    (3) Walks. (i) A public walk shall be at least 48 inches wide and 
shall have a gradient not greater than 5 percent. A walk of maximum or 
near maximum grade and of considerable length shall have level areas at 
regular intervals. A walk or driveway shall have a nonslip surface.
    (ii) A walk shall be of a continuing common surface and shall not be 
interrupted by steps or abrupt changes in level.
    (iii) Where a walk crosses a walk, a driveway, or a parking lot, 
they shall blend to a common level. However, the preceding sentence does 
not require the elimination of those curbs which are a safety feature 
for the handicapped, particularly the blind.
    (iv) An inclined walk shall have a level platform at the top and at 
the bottom. If a door swings out onto the platform toward the walk, such 
platform shall be at least 5 feet deep and 5 feet wide. If a door does 
not swing onto the platform or toward the walk, such platform shall be 
at least 3 feet deep and 5 feet wide. A platform shall extend at least 1 
foot beyond the strike jamb side of any doorway.
    (4) Parking lots. (i) At least one parking space that is accessible 
and approximate to a facility shall be set aside and identified for use 
by the handicapped.
    (ii) A parking space shall be open on one side to allow room for 
individuals in wheelchairs and individuals on braces or crutches to get 
in and out of an automobile onto a level surface which is suitable for 
wheeling and walking.
    (iii) A parking space for the handicapped, when placed between two 
conventional diagonal or head-on parking spaces, shall be at least 12 
feet wide.
    (iv) A parking space shall be positioned so that individuals in 
wheelchairs and individuals on braces or crutches need not wheel or walk 
behind parked cars.

[[Page 275]]

    (5) Ramps. (i) A ramp shall not have a slope greater than 1 inch 
rise in 12 inches.
    (ii) A ramp shall have at least one handrail that is 32 inches in 
height, measured from the surface of the ramp, that is smooth, and that 
extends 1 foot beyond the top and bottom of the ramp. However, the 
preceding sentence does not require a handrail extension which is itself 
a hazard.
    (iii) A ramp shall have a nonslip surface.
    (iv) A ramp shall have a level platform at the top and at the 
bottom. If a door swings out onto the platform or toward the ramp, such 
platform shall be at least 5 feet deep and 5 feet wide. If a door does 
not swing onto the platform or toward the ramp, such platform shall be 
at least 3 feet deep and 5 feet wide. A platform shall extend at least 1 
foot beyond the strike jamb side of any doorway.
    (v) A ramp shall have level platforms at not more than 30-foot 
intervals and at any turn.
    (vi) A curb ramp shall be provided at an intersection. The curb ramp 
shall not be less than 4 feet wide; it shall not have a slope greater 
than 1 inch rise in 12 inches. The transition between the two surfaces 
shall be smooth. A curb ramp shall have a nonslip surface.
    (6) Entrances. A building shall have at least one primary entrance 
which is usable by individuals in wheelchairs and which is on a level 
accessible to an elevator.
    (7) Doors and doorways. (i) A door shall have a clear opening of no 
less than 32 inches and shall be operable by a single effort.
    (ii) The floor on the inside and outside of a doorway shall be level 
for a distance of at least 5 feet from the door in the direction the 
door swings and shall extend at least 1 foot beyond the strike jamb side 
of the doorway.
    (iii) There shall be no sharp inclines or abrupt changes in level at 
a doorway. The threshold shall be flush with the floor. The door closer 
shall be selected, placed, and set so as not to impair the use of the 
door by the handicapped.
    (8) Stairs. (i) Stairsteps shall have round nosing of between 1 and 
1\1/2\ inch radius.
    (ii) Stairs shall have a handrail 32 inches high as measured from 
the tread at the face of the riser.
    (iii) Stairs shall have at least one handrail that extends at least 
18 inches beyond the top step and beyond the bottom step. The preceding 
sentence does not require a handrail extension which is itself a hazard.
    (iv) Steps shall have risers which do not exceed 7 inches.
    (9) Floors. (i) Floors shall have a nonslip surface.
    (ii) Floors on a given story of a building shall be of a common 
level or shall be connected by a ramp in accordance with subparagraph 
(5) of this paragraph.
    (10) Toilet rooms. (i) A toilet room shall have sufficient space to 
allow traffic of individuals in wheelchairs.
    (ii) A toilet room shall have at least one toilet stall that:
    (A) Is at least 36 inches wide;
    (B) Is at least 56 inches deep;
    (C) Has a door, if any, that is at least 32 inches wide and swings 
out;
    (D) Has handrails on each side, 33 inches high and parallel to the 
floor, 1\1/2\ inches in outside diameter, 1\1/2\ inches clearance 
between rail and wall, and fastened securely at ends and center; and
    (E) Has a water closet with a seat 19 to 20 inches from the finished 
floor.
    (iii) A toilet room shall have, in addition to or in lieu of a 
toilet stall described in (ii), at least one toilet stall that:
    (A) Is at least 66 inches wide;
    (B) Is at least 60 inches deep;
    (C) Has a door, if any, that is at least 32 inches wide and swings 
out;
    (D) Has a handrail on one side, 33 inches high and parallel to the 
floor, 1\1/2\ inches in outside diameter, 1\1/2\ inches clearance 
between rail and wall, and fastened securely at ends and center; and
    (E) Has a water closet with a seat 19 to 20 inches from the finished 
floor, centerline located 18 inches from the side wall on which the 
handrail is located.
    (iv) A toilet room shall have lavatories with narrow aprons. Drain 
pipes and hot water pipes under a lavatory shall be covered or 
insulated.

[[Page 276]]

    (v) A mirror and a shelf above a lavatory shall be no higher than 40 
inches above the floor, measured from the top of the shelf and the 
bottom of the mirror.
    (vi) A toilet room for men shall have wall-mounted urinals with the 
opening of the basin 15 to 19 inches from the finished floor or shall 
have floor-mounted urinals that are level with the main floor of the 
toilet room.
    (vii) Towel racks, towel dispensers, and other dispensers and 
disposal units shall be mounted no higher than 40 inches from the floor.
    (11) Water fountains. (i) A water fountain and a cooler shall have 
upfront spouts and controls.
    (ii) A water fountain and a cooler shall be hand-operated or hand-
and-foot-operated.
    (iii) A water fountain mounted on the side of a floor-mounted cooler 
shall not be more than 30 inches above the floor.
    (iv) A wall-mounted, hand-operated water cooler shall be mounted 
with the basin 36 inches from the floor.
    (v) A water fountain shall not be fully recessed and shall not be 
set into an alcove unless the alcove is at least 36 inches wide.
    (12) Public telephones. (i) A public telephone shall be placed so 
that the dial and the headset can be reached by individuals in 
wheelchairs.
    (ii) A public telephone shall be equipped for those with hearing 
disabilities and so identified with instructions for use.
    (iii) Coin slots of public telephones shall be not more than 48 
inches from the floor.
    (13) Elevators. (i) An elevator shall be accessible to, and usable 
by the handicapped or the elderly on the levels they use to enter the 
building and all levels and areas normally used.
    (ii) Cab size shall allow for the turning of a wheelchair. It shall 
measure at least 54 by 68 inches.
    (iii) Door clear opening width shall be at least 32 inches.
    (iv) All essential controls shall be within 48 to 54 inches from cab 
floor. Such controls shall be usable by the blind and shall be tactilely 
identifiable.
    (14) Controls. Switches and controls for light, heat, ventilation, 
windows, draperies, fire alarms, and all similar controls of frequent or 
essential use, shall be placed within the reach of individuals in 
wheelchairs. Such switches and controls shall be no higher than 48 
inches from the floor.
    (15) Identification. (i) Raised letters or numbers shall be used to 
identify a room or an office. Such identification shall be placed on the 
wall to the right or left of the door at a height of 54 inches to 66 
inches, measured from the finished floor.
    (ii) A door that might prove dangerous if a blind person were to 
exit or enter by it (such as a door leading to a loading platform, 
boiler room, stage, or fire escape) shall be tactilely identifiable.
    (16) Warning signals. (i) An audible warning signal shall be 
accompanied by a simultaneous visual signal for the benefit of those 
with hearing disabilities.
    (ii) A visual warning signal shall be accompanied by a simultaneous 
audible signal for the benefit of the blind.
    (17) Hazards. Hanging signs, ceiling lights, and similar objects and 
fixtures shall be placed at a minimum height of 7 feet, measured from 
the floor.
    (18) International accessibility symbol. The international 
accessibility symbol (see illustration) shall be displayed on routes to 
and at wheelchair-accessible entrances to facilities and public 
transportation vehicles.

[[Page 277]]

[GRAPHIC] [TIFF OMITTED] TC10OC91.000

    (19) Additional standards for rail facilities. (i) A rail facility 
shall contain a fare control area with at least one entrance with a 
clear opening at least 36 inches wide.
    (ii) A boarding platform edge bordering a drop-off or other 
dangerous condition shall be marked with a warning device consisting of 
a strip of floor material differing in color and texture from the 
remaining floor surface. The gap between boarding platform and vehicle 
doorway shall be minimized.
    (20) Standards for buses. (i) A bus shall have a level change 
mechanism (e.g., lift or ramp) to enter the bus and sufficient clearance 
to permit a wheelchair user to reach a secure location.
    (ii) A bus shall have a wheelchair securement device. However, the 
preceding sentence does not require a wheelchair securement device which 
is itself a barrier or hazard.
    (iii) The vertical distance from a curb or from street level to the 
first front door step shall not exceed 8 inches; the riser height for 
each front doorstep after the first step up from the curb or street 
level shall also not exceed 8 inches; and the tread depth of steps at 
front and rear doors shall be no less than 12 inches.
    (iv) A bus shall contain clearly legible signs that indicate that 
seats in the front of the bus are priority seats for handicapped or 
elderly persons, and that encourage other passengers to make such seats 
available to handicapped and elderly persons who wish to use them.
    (v) Handrails and stanchions shall be provided in the entranceway to 
the bus in a configuration that allows handicapped and elderly persons 
to grasp such assists from outside the bus while starting to board and 
to continue to use such assists throughout the boarding and fare 
collection processes. The configuration of the passenger assist system 
shall include a rail across the front of the interior of the bus located 
to allow passengers to lean against it while paying fares. Overhead 
handrails shall be continuous except for a gap at the rear doorway.
    (vi) Floors and steps shall have nonslip surfaces. Step edges shall 
have a band of bright contrasting color running the full width of the 
step.
    (vii) A stepwell immediately adjacent to the driver shall have, when 
the door is open, at least 2 foot-candles of illumination measured on 
the step tread. Other stepwells shall have, at all times, at least 2 
foot-candles of illumination measured on the step tread.
    (viii) The doorways of the bus shall have outside lighting that 
provides at least 1 foot-candle of illumination on the street surface 
for a distance of 3 feet from all points on the bottom step tread edge. 
Such lighting shall be located below window level and shall be shielded 
to protect the eyes of entering and exiting passengers.

[[Page 278]]

    (ix) The fare box shall be located as far forward as practicable and 
shall not obstruct traffic in the vestibule.
    (21) Standards for rapid and light rail vehicles. (i) Passenger 
doorways on the vehicle sides shall have clear openings at least 32 
inches wide.
    (ii) Audible or visual warning signals shall be provided to alert 
handicapped and elderly persons of closing doors.
    (iii) Handrails and stanchions shall be sufficient to permit safe 
boarding, onboard circulation, seating and standing assistance, and 
unboarding by handicapped and elderly persons. On a levelentry vehicle, 
handrails, stanchions, and seats shall be located so as to allow a 
wheelchair user to enter the vehicle and position the wheelchair in a 
location which does not obstruct the movement of other passengers. On a 
vehicle that requires the use of steps in the boarding process, 
handrails and stanchions shall be provided in the entranceway to the 
vehicle in a configuration that allows handicapped and elderly persons 
to grasp such assists from outside the vehicle while starting to board, 
and to continue using such assists throughout the boarding process.
    (iv) Floors shall have nonslip surfaces. Step edges on a light rail 
vehicle shall have a band of bright contrasting color running the full 
width of the step.
    (v) A stepwell immediately adjacent to the driver shall have, when 
the door is open, at least 2 foot-candles of illumination measured on 
the step tread. Other stepwells shall have, at all times, at least 2 
foot-candles of illumination measured on the step tread.
    (vi) Doorways on a light rail vehicle shall have outside lighting 
that provides at least 1 foot-candle of illumination on the street 
surface for a distance of 3 feet from all points on the bottom step 
tread edge. Such lighting shall be located below window level and shall 
be shielded to protect the eyes of entering and exiting passengers.
    (22) Other barrier removals. The provisions of this subparagraph 
apply to any barrier which would not be removed by compliance with 
paragraphs (b)(2) through (21) of this section. The requirements of this 
subparagraph are:
    (i) A substantial barrier to the access to or use of a facility or 
public transportation vehicle by handicapped or elderly individuals is 
removed;
    (ii) The barrier which is removed had been a barrier for one or more 
major classes of such individuals (such as the blind, deaf, or 
wheelchair users); and
    (iii) The removal of that barrier is accomplished without creating 
any new barrier that significantly impairs access to or use of the 
facility or vehicle by such class or classes.

[T.D. 7634, 44 FR 43270, July 24, 1979]



Sec. 1.190-3  Election to deduct architectural and transportation 
barrier removal expenses.

    (a) Manner of making election. The election to deduct expenditures 
for removal of architectural and transportation barriers provided by 
section 190(a) shall be made by claiming the deduction as a separate 
item identified as such on the taxpayer's income tax return for the 
taxable year for which such election is to apply (or, in the case of a 
partnership, to the return of partnership income for such year). For the 
election to be valid, the return must be filed not later than the time 
prescribed by law for filing the return (including extensions thereof) 
for the taxable year for which the election is to apply.
    (b) Scope of election. An election under section 190(a) shall apply 
to all expenditures described in Sec. 1.190-2 (or in the case of a 
taxpayer whose architectural and transportation barrier removal expenses 
exceed $25,000 for the taxable year, to the $25,000 of such expenses 
with respect to which the deduction is claimed) paid or incurred during 
the taxable year for which made and shall be irrevocable after the date 
by which any such election must have been made.
    (c) Records to be kept. In any case in which an election is made 
under section 190(a), the taxpayer shall have available, for the period 
prescribed by paragraph (e) of Sec. 1.6001-1 of this chapter (Income 
Tax Regulations), records and documentation, including architectural 
plans and blueprints, contracts, and any building permits, of all the 
facts necessary to determine the amount of any deduction to which he is

[[Page 279]]

entitled by reason of the election, as well as the amount of any 
adjustment to basis made for expenditures in excess of the amount 
deductible under section 190.

[T.D. 7634, 44 FR 13273, July 24, 1979]



Sec. 1.193-1  Deduction for tertiary injectant expenses.

    (a) In general. Subject to the limitations and restrictions of 
paragraphs (c) and (d) of this section, there shall be allowed as a 
deduction from gross income an amount equal to the qualified tertiary 
injectant expenses of the taxpayer. This deduction is allowed for the 
later of:
    (1) The taxable year in which the injectant is injected, or
    (2) The taxable year in which the expenses are paid or incurred.
    (b) Definitions--(1) Qualified tertiary injectant expenses. Except 
as otherwise provided in this section, the term qualified tertiary 
injectant expense means any cost paid or incurred for any tertiary 
injectant which is used as part of a tertiary recovery method.
    (2) Tertiary recovery method. Tertiary recovery method means:
    (i) Any method which is described in subparagraphs (1) through (9) 
of section 212.78(c) of the June 1979 energy regulations (as defined by 
section 4996(b)(8)(C)),
    (ii) Any method for which the taxpayer has obtained the approval of 
the Associate Chief Counsel (Technical), under section 4993(d)(1)(B) for 
purposes of Chapter 45 of the Internal Revenue Code,
    (iii) Any method which is approved in the regulations under section 
4993(d)(1)(B), or
    (iv) Any other method to provide tertiary enhanced recovery for 
which the taxpayer obtains the approval of the Associate Chief Counsel 
(Technical) for purposes of section 193.
    (c) Special rules for hydrocarbons--(1) In general. If an injectant 
contains more than an insignificant amount of recoverable hydrocarbons, 
the amount deductible under section 193 and paragraph (a) of this 
section shall be limited to the cost of the injectant reduced by the 
lesser of:
    (i) The fair market value of the hydrocarbon component in the form 
in which it is recovered, or
    (ii) The cost to the taxpayer of the hydrocarbon component of the 
injectant. Price levels at the time of injection are to be used in 
determining the fair market value of the recoverable hydrocarbons.
    (2) Presumption of recoverability. Except to the extent that the 
taxpayer can demonstrate otherwise, all hydrocarbons shall be presumed 
recoverable and shall be presumed to have the same value on recovery 
that they would have if separated from the other components of the 
injectant before injection. Estimates based on generally accepted 
engineering practices may provide evidence of limitations on the amount 
or value of recoverable hydrocarbons.
    (3) Significant amount. For purposes of section 193 and this 
section, an injectant contains more than an insignificant amount of 
recoverable hydrocarbons if the fair market value of the recoverable 
hydrocarbon component of the injectant, in the form in which it is 
recovered, equals or exceeds 25 percent of the cost of the injectant.
    (4) Hydrocarbon defined. For purposes of section 193 and this 
section, the term hydrocarbon means all forms of natural gas and crude 
oil (which includes oil recovered from sources such as oil shale and 
condensate).
    (5) Injectant defined. For purposes of applying this paragraph (c), 
an injectant is the substance or mixture of substances injected at a 
particular time. Substances injected at different times are not treated 
as components of a single injectant even if the injections are part of a 
single tertiary recovery process.
    (d) Application with other deductions. No deduction shall be allowed 
under section 193 and this section for any expenditure:
    (1) With respect to which the taxpayer has made an election under 
section 263(c) or
    (2) With respect to which a deduction is allowed or allowable under 
any other provision of chapter 1 of the Code.
    (e) Examples. The application of this section may be illustrated by 
the following examples:


[[Page 280]]


    Example 1. B, a calendar year taxpayer why uses the cash receipts 
and disbursements method of accounting, uses an approved tertiary 
recovery method for the enhanced recovery of crude oil from one of B's 
oil properties. During 1980, B pays $100x for a tertiary injectant which 
contains 1,000y units of hydrocarbon; if separated from the other 
components of the injectant before injection, the hydrocarbons would 
have a fair market value of $80x. B uses this injectant during the 
recovery effort during 1981. B has not made any election under section 
263(c) with respect to the expenditures for the injectant, and no 
section of chapter 1 of the Code other than section 193 allows a 
deduction for the expenditure. B is unable to demonstrate that the value 
of the injected hydrocarbons recovered during production will be less 
than $80x. B's deduction under section 193 is limited to the excess of 
the cost for the injectant over the fair market value of the hydrocarbon 
component expected to be recovered ($100x-$80x=$20x). B may claim the 
deduction only for 1981, the year of the injection.
    Example 2. Assume the same facts as in Example 1 except that through 
engineering studies B has shown that 700y units or 70 percent of the 
hydrocarbon injected is nonrecoverable. The recoverable hydrocarbons 
have a fair market value of $24x (30 percent of $80x). The recoverable 
hydrocarbon portion of the injectant is 24 percent of the cost of the 
injectant ($24x divided by $100x). The injectant does not contain a 
significant amount of recoverable hydrocarbons. B may claim a deduction 
for $100x, the entire cost of the injectant.
    Example 3. Assume the same facts as in Example 1 except that through 
laboratory studies B has shown that because of chemical changes in the 
course of production the injected hydrocarbons that are recovered will 
have a fair market value of only $40x. B may claim a deduction for $60x, 
the excess of the cost of the injectant ($100x) over the fair market 
value of the recoverable hydrocarbons ($40x).
    Example 4. B prepares an injectant from crude oil and certain non-
hydrocarbon materials purchased by B. The total cost of the injectant to 
B is $100x, of which $24x is attributable to the crude oil. The fair 
market value of the crude oil used in the injectant is $27x. B is unable 
to demonstrate that the value of the crude oil from the injectant that 
will be recovered is less than $27x. The injectant contains more than an 
insignificant amount of recoverable hydrocarbons because the value of 
the recoverable crude oil ($27x) exceeds $25x (25 percent of $100x, the 
cost of the injectant). Because the cost to B of the hydrocarbon 
component of the injectant ($24x) is less than the fair market value of 
the hydrocarbon component in the form in which it is recovered ($27x), 
the cost rather than the value is taken into account in the adjustment 
required under paragraph (c)(1) of this section. B's deduction under 
section 193 is limited to the excess of the cost of the injectant over 
the cost of the hydrocarbon component ($100x-$24x=$76x).

(Secs. 193 and 7805, Internal Revenue Code of 1954, 94 Stat. 286, 26 
U.S.C. 193; 68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7980, 49 FR 39052, Oct. 3, 1984]



Sec. 1.194-1  Amortization of reforestation expenditures.

    (a) In general. Section 194 allows a taxpayer to elect to amortize 
over an 84-month period, up to $10,000 of reforestation expenditures (as 
defined in Sec. 1.194-3(c)) incurred by the taxpayer in a taxable year 
in connection with qualified timber property (as defined in Sec. 1.194-
3(a)). The election is not available to trusts. Only those reforestation 
expenditures which result in additions to capital accounts after 
December 31, 1979 are eligible for this special amortization.
    (b) Determination of amortization period. The amortization period 
must begin on the first day of the first month of the last half of the 
taxable year during which the taxpayer incurs the reforestation 
expenditures. For example, the 84-month amortization period begins on 
July 1 of a taxable year for a calendar year taxpayer, regardless of 
whether the reforestation expenditures are incurred in January or 
December of that taxable year. Therefore, a taxpayer will be allowed to 
claim amortization deductions for only six months of each of the first 
and eighth taxable years of the period over which the reforestation 
expenditures will be amortized.
    (c) Recapture. If a taxpayer disposes of qualified timber property 
within ten years of the year in which the amortizable basis was created 
and the taxpayer has claimed amortization deductions under section 194, 
part or all of any gain on the disposition may be recaptured as ordinary 
income. See section 1245.

[T.D. 7927, 48 FR 55849, Dec. 16, 1983]

[[Page 281]]



Sec. 1.194-2  Amount of deduction allowable.

    (a) General rule. The allowable monthly deduction with respect to 
reforestation expenditures made in a taxable year is determined by 
dividing the amount of reforestation expenditures made in such taxable 
year (after applying the limitations of paragraph (b) of this section) 
by 84. In order to determine the total allowable amortization deduction 
for a given month, a taxpayer should add the monthly amortization 
deductions computed under the preceding sentence for qualifying 
expenditures made by the taxpayer in the taxable year and the preceding 
seven taxable years.
    (b) Dollar limitation--(1) Maximum amount subject to election. A 
taxpayer may elect to amortize up to $10,000 of qualifying reforestation 
expenditures each year under section 194. However, the maximum 
amortizable amount is $5,000 in the case of a married individual (as 
defined in section 143) filing a separate return. No carryover or 
carryback of expenditures in excess of $10,000 is permitted. The maximum 
annual amortization deduction for expenditures incurred in any taxable 
year is $1,428.57 ($10,000/7). The maximum deduction in the first and 
eighth taxable years of the amortization period is one-half that amount, 
or $714.29, because of the half-year convention provided in Sec. 1.194-
1(b). Total deductions for any one year under this section will reach 
$10,000 only if a taxpayer incurs and elects to amortize the maximum 
$10,000 of expenditures each year over an 8-year period.
    (2) Allocation of amortizable basis among taxpayer's timber 
properties. The limit of $10,000 on amortizable reforestation 
expenditures applies to expenditures paid or incurred during a taxable 
year on all of the taxpayer's timber properties. A taxpayer who incurs 
more than $10,000 in qualifying expenditures in connection with more 
than one qualified timber property during a taxable year may select the 
properties for which section 194 amortization will be elected as well as 
the manner in which the $10,000 limitation on amortizable basis is 
allocated among such properties. For example, A incurred $10,000 of 
qualifying reforestation expenditures on each of four properties in 
1981. A may elect under section 194 to amortize $2,500 of the amount 
spent on each property, $5,000 of the amount spent on any two 
properties, the entire $10,000 spent on any one property, or A may 
allocate the $10,000 maximum amortizable basis among some or all of the 
properties in any other manner.
    (3) Basis--(i) In general. Except as provided in paragraph 
(b)(3)(ii) of this section, the basis of a taxpayer's interest in 
qualified timber property for which an election is made under section 
194 shall be adjusted to reflect the amount of the section 194 
amortization deduction allowable to the taxpayer.
    (ii) Special rule for trusts. Although a trust may be a partner of a 
partnership, income beneficiary of an estate, or (for taxable years 
beginning after December 31, 1982) shareholder of an S corporation, it 
may not deduct its allocable share of a section 194 amortization 
deduction allowable to such a partnership, estate, or S corporation. In 
addition, the basis of the interest held by the partnership, estate, or 
S corporation in the qualified timber property shall not be adjusted to 
reflect the portion of the section 194 amortization deduction that is 
allocable to the trust.
    (4) Allocation of amortizable basis among component members of a 
controlled group. Component members of a controlled group (as defined in 
Sec. 1.194-3(d)) on a December 31 shall be treated as one taxpayer in 
applying the $10,000 limitation of paragraph (b)(1) of this section. The 
amortizable basis may be allocated to any one such member or allocated 
(for the taxable year of each such member which includes such December 
31) among the several members in any manner, Provided That the amount of 
amortizable basis allocated to any member does not exceed the amount of 
amortizable basis actually acquired by the member in the taxable year. 
The allocation is to be made (i) by the common parent corporation if a 
consolidated return is filed for all component members of the group, or 
(ii) in accordance with an agreement entered into by the members of the 
group if

[[Page 282]]

separate returns are filed. If a consolidated return is filed by some 
component members of the group and separate returns are filed by other 
component members, then the common parent of the group filing the 
consolidated return shall enter into an agreement with those members who 
do not join in filing the consolidated return allocating the amount 
between the group filing the return and the other component members of 
the controlled group who do not join in filing the consolidated return. 
If a consolidated return is filed, the common parent corporation shall 
file a separate statement attached to the income tax return on which an 
election is made to amortize reforestation costs under section 194. See 
Sec. 1.194-4. If separate returns are filed by some or all component 
members of the group, each component member to which is allocated any 
part of the deduction under section 194 shall file a separate statement 
attached to the income tax return in which an election is made to 
amortize reforestation expenditures. See Sec. 1.194-4. Such statement 
shall include the name, address, employer identification number, and the 
taxable year of each component member of the controlled group, a copy of 
the allocation agreement signed by persons duly authorized to act on 
behalf of those members who file separate returns, and a description of 
the manner in which the deduction under section 194 has been divided 
among them.
    (5) Partnerships--(i) Election to be made by partnership. A 
partnership makes the election to amortize qualified reforestation 
expenditures of the partnership. See section 703(b).
    (ii) Dollar limitations applicable to partnerships. The dollar 
limitations of section 194 apply to the partnership as well as to each 
partner. Thus, a partnership may not elect to amortize more than $10,000 
of reforestation expenditures under section 194 in any taxable year.
    (iii) Partner's share of amortizable basis. Section 704 and the 
regulations thereunder shall govern the determination of a partner's 
share of a partnership's amortizable reforestation expenditures for any 
taxable year.
    (iv) Dollar limitation applicable to partners. A partner shall in no 
event be entitled in any taxable year to claim a deduction for 
amortization based on more than $10,000 ($5,000 in the case of a married 
taxpayer who files a separate return) of amortizable basis acquired in 
such taxable year regardless of the source of the amortizable basis. In 
the case of a partner who is a member of two or more partnerships that 
elect under section 194, the partner's aggregate share of partnership 
amortizable basis may not exceed $10,000 or $5,000, whichever is 
applicable. In the case of a member of a partnership that elects under 
section 194 who also has separately acquired qualified timber property, 
the aggregate of the member's partnership and non-partnership 
amortizable basis may not exceed $10,000 or $5,000 whichever is 
applicable.
    (6) S corporations. For taxable years beginning after December 31, 
1982, rules similar to those contained in paragraph (b)(5) (ii) and (iv) 
of this section shall apply in the case of S corporations (as defined in 
section 1361(a)) and their shareholders.
    (7) Estates. Estates may elect to amortize in each taxable year up 
to a maximum of $10,000 of qualifying reforestation expenditures under 
section 194. Any amortizable basis acquired by an estate shall be 
apportioned between the estate and the income beneficiary on the basis 
of the income of the estate allocable to each. The amount of amortizable 
basis apportioned from an estate to a beneficiary shall be taken into 
account in determining the $10,000 (or $5,000) amount of amortizable 
basis allowable to such beneficiary under this section.
    (c) Life tenant and remainderman. If property is held by one person 
for life with remainder to another person, the life tenant is entitled 
to the full benefit of any amortization allowable under section 194 on 
qualifying expenditures he or she makes. Any remainder interest in the 
property is ignored for this purpose.

[T.D. 7927, 48 FR 55849, Dec. 16, 1983]



Sec. 1.194-3  Definitions.

    (a) Qualified timber property. The term qualified timber property 
means property located in the United States which will

[[Page 283]]

contain trees in significant commercial quantities. The property may be 
a woodlot or other site but must consist of at least one acre which is 
planted with tree seedlings in the manner normally used in forestation 
or reforestation. The property must be held by the taxpayer for the 
growing and cutting of timber which will either be sold for use in, or 
used by the taxpayer in, the commercial production of timber products. A 
taxpayer does not have to own the property in order to be eligible to 
elect to amortize costs attributable to it under section 194. Thus, a 
taxpayer may elect to amortize qualifying reforestation expenditures 
incurred by such taxpayer on leased qualified timber property. Qualified 
timber property does not include property on which the taxpayer has 
planted shelter belts (for which current deductions are allowed under 
section 175) or ornamental trees, such as Christmas trees.
    (b) Amortizable basis. The term amortizable basis means that portion 
of the basis of qualified timber property which is attributable to 
reforestation expenditures.
    (c) Reforestation expenditures--(1) In general. The term 
reforestation expenditures means direct costs incurred to plant or seed 
for forestation or reforestation purposes. Qualifying expenditures 
include amounts spent for site preparation, seed or seedlings, and labor 
and tool costs, including depreciation on equipment used in planting or 
seeding. Only those costs which must be capitalized and are included in 
the adjusted basis of the property qualify as reforestation 
expenditures. Costs which are currently deductible do not qualify.
    (2) Cost-sharing programs. Any expenditures for which the taxpayer 
has been reimbursed under any governmental reforestation cost-sharing 
program do not qualify as reforestation expenditures unless the amounts 
reimbursed have been included in the gross income of the taxpayer.
    (d) Definitions of controlled group of corporations and component 
member of controlled group. For purposes of section 194, the terms 
controlled group of corporations and component member of a controlled 
group of corporations shall have the same meaning assigned to those 
terms in section 1563 (a) and (b), except that the phrase ``more than 50 
percent'' shall be substituted for the phrase ``at least 80 percent'' 
each place it appears in section 1563(a)(1).

[T.D. 7927, 48 FR 55850, Dec. 16, 1983]



Sec. 1.194-4  Time and manner of making election.

    (a) In general. Except as provided in paragraph (b) of this section, 
an election to amortize reforestation expenditures under section 194 
shall be made by entering the amortization deduction claimed at the 
appropriate place on the taxpayer's income tax return for the year in 
which the expenditures were incurred, and by attaching a statement to 
such return. The statement should state the amounts of the expenditures, 
describe the nature of the expenditures, and give the date on which each 
was incurred. The statement should also state the type of timber being 
grown and the purpose for which it is being grown. A separate statement 
must be included for each property for which reforestation expenditures 
are being amortized under section 194. The election may only be made on 
a timely return (taking into account extensions of the time for filing) 
for the taxable year in which the amortizable expenditures were made.
    (b) Special rule. With respect to any return filed before March 15, 
1984, on which a taxpayer was eligible to, but did not make an election 
under section 194, the election to amortize reforestation expenditures 
under section 194 may be made by a statement on, or attached to, the 
income tax return (or an amended return) for the taxable year, 
indicating that an election is being made under section 194 and setting 
forth the information required under paragraph (a) of this section. An 
election made under the provisions of this paragraph (b) must be made 
not later than,
    (1) The time prescribed by law (including extensions thereof) for 
filing the income tax return for the year in which the reforestation 
expenditures were made, or
    (2) March 15, 1984, whichever is later. Nothing in this paragraph 
shall be construed as extending the time specified

[[Page 284]]

in section 6511 within which a claim for credit or refund may be filed.
    (c) Revocation. An application for consent to revoke an election 
under section 194 shall be in writing and shall be addressed to the 
Commissioner of Internal Revenue, Washington, DC 20224. The application 
shall set forth the name and address of the taxpayer, state the taxable 
years for which the election was in effect, and state the reason for 
revoking the election. The application shall be signed by the taxpayer 
or a duly authorized representative of the taxpayer and shall be filed 
at least 90 days prior to the time prescribed by law (without regard to 
extensions thereof) for filing the income tax return for the first 
taxable year for which the election is to terminate. Ordinarily, the 
request for consent to revoke the election will not be granted if it 
appears from all the facts and circumstances that the only reason for 
the desired change is to obtain a tax advantage.

[T.D. 7927, 48 FR 55851, Dec. 16, 1983]



Sec. 1.195-1  Election to amortize start-up expenditures.

    (a) In general. Under section 195(b), a taxpayer may elect to 
amortize start-up expenditures as defined in section 195(c)(1). In the 
taxable year in which a taxpayer begins an active trade or business, an 
electing taxpayer may deduct an amount equal to the lesser of the amount 
of the start-up expenditures that relate to the active trade or 
business, or $5,000 (reduced (but not below zero) by the amount by which 
the start-up expenditures exceed $50,000). The remainder of the start-up 
expenditures is deductible ratably over the 180-month period beginning 
with the month in which the active trade or business begins. All start-
up expenditures that relate to the active trade or business are 
considered in determining whether the start-up expenditures exceed 
$50,000, including expenditures incurred on or before October 22, 2004.
    (b) Time and manner of making election. A taxpayer is deemed to have 
made an election under section 195(b) to amortize start-up expenditures 
as defined in section 195(c)(1) for the taxable year in which the active 
trade or business to which the expenditures relate begins. A taxpayer 
may choose to forgo the deemed election by affirmatively electing to 
capitalize its start-up expenditures on a timely filed Federal income 
tax return (including extensions) for the taxable year in which the 
active trade or business to which the expenditures relate begins. The 
election either to amortize start-up expenditures under section 195(b) 
or to capitalize start-up expenditures is irrevocable and applies to all 
start-up expenditures that are related to the active trade or business. 
A change in the characterization of an item as a start-up expenditure is 
a change in method of accounting to which sections 446 and 481(a) apply 
if the taxpayer treated the item consistently for two or more taxable 
years. A change in the determination of the taxable year in which the 
active trade or business begins also is treated as a change in method of 
accounting if the taxpayer amortized start-up expenditures for two or 
more taxable years.
    (c) Examples. The following examples illustrate the application of 
this section:

    Example 1. Expenditures of $5,000 or less. Corporation X, a calendar 
year taxpayer, incurs $3,000 of start-up expenditures after October 22, 
2004, that relate to an active trade or business that begins on July 1, 
2011. Under paragraph (b) of this section, Corporation X is deemed to 
have elected to amortize start-up expenditures under section 195(b) in 
2011. Therefore, Corporation X may deduct the entire amount of the 
start-up expenditures in 2011, the taxable year in which the active 
trade or business begins.
    Example 2. Expenditures of more than $5,000 but less than or equal 
to $50,000. The facts are the same as in Example 1 except that 
Corporation X incurs start-up expenditures of $41,000. Under paragraph 
(b) of this section, Corporation X is deemed to have elected to amortize 
start-up expenditures under section 195(b) in 2011. Therefore, 
Corporation X may deduct $5,000 and the portion of the remaining $36,000 
that is allocable to July through December of 2011 ($36,000/180 x 6 = 
$1,200) in 2011, the taxable year in which the active trade or business 
begins. Corporation X may amortize the remaining $34,800 ($36,000 - 
$1,200 = $34,800) ratably over the remaining 174 months.
    Example 3. Subsequent change in the characterization of an item. The 
facts are the same as in Example 2 except that Corporation X determines 
in 2013 that Corporation X incurred $10,000 for an additional start-up 
expenditure

[[Page 285]]

erroneously deducted in 2011 under section 162 as a business expense. 
Under paragraph (b) of this section, Corporation X is deemed to have 
elected to amortize start-up expenditures under section 195(b) in 2011, 
including the additional $10,000 of start-up expenditures. Corporation X 
is using an impermissible method of accounting for the additional 
$10,000 of start-up expenditures and must change its method under Sec. 
1.446-1(e) and the applicable general administrative procedures in 
effect in 2013.
    Example 4. Subsequent redetermination of year in which business 
begins. The facts are the same as in Example 2 except that, in 2012, 
Corporation X deducted the start-up expenditures allocable to January 
through December of 2012 ($36,000/180 x 12 = $2,400). In addition, in 
2013 it is determined that Corporation X actually began business in 
2012. Under paragraph (b) of this section, Corporation X is deemed to 
have elected to amortize start-up expenditures under section 195(b) in 
2012. Corporation X impermissibly deducted start-up expenditures in 
2011, and incorrectly determined the amount of start-up expenditures 
deducted in 2012. Therefore, Corporation X is using an impermissible 
method of accounting for the start-up expenditures and must change its 
method under Sec. 1.446-1(e) and the applicable general administrative 
procedures in effect in 2013.
    Example 5. Expenditures of more than $50,000 but less than or equal 
to $55,000. The facts are the same as in Example 1 except that 
Corporation X incurs start-up expenditures of $54,500. Under paragraph 
(b) of this section, Corporation X is deemed to have elected to amortize 
start-up expenditures under section 195(b) in 2011. Therefore, 
Corporation X may deduct $500 ($5,000 - $4,500) and the portion of the 
remaining $54,000 that is allocable to July through December of 2011 
($54,000/180 x 6 = $1,800) in 2011, the taxable year in which the active 
trade or business begins. Corporation X may amortize the remaining 
$52,200 ($54,000 - $1,800 = $52,200) ratably over the remaining 174 
months.
    Example 6. Expenditures of more than $55,000. The facts are the same 
as in Example 1 except that Corporation X incurs start-up expenditures 
of $450,000. Under paragraph (b) of this section, Corporation X is 
deemed to have elected to amortize start-up expenditures under section 
195(b) in 2011. Therefore, Corporation X may deduct the amounts 
allocable to July through December of 2011 ($450,000/180 x 6 = $15,000) 
in 2011, the taxable year in which the active trade or business begins. 
Corporation X may amortize the remaining $435,000 ($450,000 - $15,000 = 
$435,000) ratably over the remaining 174 months.

    (d) Effective/applicability date. This section applies to start-up 
expenditures paid or incurred after August 16, 2011. However, taxpayers 
may apply all the provisions of this section to start-up expenditures 
paid or incurred after October 22, 2004, provided that the period of 
limitations on assessment of tax for the year the election under 
paragraph (b) of this section is deemed made has not expired. For start-
up expenditures paid or incurred on or before September 8, 2008, 
taxpayers may instead apply Sec. 1.195-1, as in effect prior to that 
date (Sec. 1.195-1 as contained in 26 CFR part 1 edition revised as of 
April 1, 2008).

[T.D. 9542, 76 FR 50888, Aug. 17, 2011]



Sec. 1.197-0  Table of contents.

    This section lists the headings that appear in Sec. 1.197-2.

  Sec. 1.197-2 Amortization of goodwill and certain other intangibles.

    (a) Overview.
    (1) In general.
    (2) Section 167(f) property.
    (3) Amounts otherwise deductible.
    (b) Section 197 intangibles; in general.
    (1) Goodwill.
    (2) Going concern value.
    (3) Workforce in place.
    (4) Information base.
    (5) Know-how, etc.
    (6) Customer-based intangibles.
    (7) Supplier-based intangibles.
    (8) Licenses, permits, and other rights granted by governmental 
units.
    (9) Covenants not to compete and other similar arrangements.
    (10) Franchises, trademarks, and trade names.
    (11) Contracts for the use of, and term interests in, other section 
197 intangibles.
    (12) Other similar items.
    (c) Section 197 intangibles; exceptions.
    (1) Interests in a corporation, partnership, trust, or estate.
    (2) Interests under certain financial contracts.
    (3) Interests in land.
    (4) Certain computer software.
    (i) Publicly available.
    (ii) Not acquired as part of trade or business.
    (iii) Other exceptions.
    (iv) Computer software defined.
    (5) Certain interests in films, sound recordings, video tapes, 
books, or other similar property.
    (6) Certain rights to receive tangible property or services.
    (7) Certain interests in patents or copyrights.
    (8) Interests under leases of tangible property.

[[Page 286]]

    (i) Interest as a lessor.
    (ii) Interest as a lessee.
    (9) Interests under indebtedness.
    (i) In general.
    (ii) Exceptions.
    (10) Professional sports franchises.
    (11) Mortgage servicing rights.
    (12) Certain transaction costs.
    (13) Rights of fixed duration or amount.
    (d) Amortizable section 197 intangibles.
    (1) Definition.
    (2) Exception for self-created intangibles.
    (i) In general.
    (ii) Created by the taxpayer.
    (A) Defined.
    (B) Contracts for the use of intangibles.
    (C) Improvements and modifications.
    (iii) Exceptions.
    (3) Exception for property subject to anti-churning rules.
    (e) Purchase of a trade or business.
    (1) Goodwill or going concern value.
    (2) Franchise, trademark, or trade name.
    (i) In general.
    (ii) Exceptions.
    (3) Acquisitions to be included.
    (4) Substantial portion.
    (5) Deemed asset purchases under section 338.
    (6) Mortgage servicing rights.
    (7) Computer software acquired for internal use.
    (f) Computation of amortization deduction.
    (1) In general.
    (2) Treatment of contingent amounts.
    (i) Amounts added to basis during 15-year period.
    (ii) Amounts becoming fixed after expiration of 15-year period.
    (iii) Rules for including amounts in basis.
    (3) Basis determinations for certain assets.
    (i) Covenants not to compete.
    (ii) Contracts for the use of section 197 intangibles; acquired as 
part of a trade or business.
    (A) In general.
    (B) Know-how and certain information base.
    (iii) Contracts for the use of section 197 intangibles; not acquired 
as part of a trade or business.
    (iv) Applicable rules.
    (A) Franchises, trademarks, and trade names.
    (B) Certain amounts treated as payable under a debt instrument.
    (1) In general.
    (2) Rights granted by governmental units.
    (3) Treatment of other parties to transaction.
    (4) Basis determinations in certain transactions.
    (i) Certain renewal transactions.
    (ii) Transactions subject to section 338 or 1060.
    (iii) Certain reinsurance transactions.
    (g) Special rules.
    (1) Treatment of certain dispositions.
    (i) Loss disallowance rules.
    (A) In general.
    (B) Abandonment or worthlessness.
    (C) Certain nonrecognition transfers.
    (ii) Separately acquired property.
    (iii) Disposition of a covenant not to compete.
    (iv) Taxpayers under common control.
    (A) In general.
    (B) Treatment of disallowed loss.
    (2) Treatment of certain nonrecognition and exchange transactions.
    (i) Relationship to anti-churning rules.
    (ii) Treatment of nonrecognition and exchange transactions 
generally.
    (A) Transfer disregarded.
    (B) Application of general rule.
    (C) Transactions covered.
    (iii) Certain exchanged-basis property.
    (iv) Transfers under section 708(b)(1).
    (A) In general.
    (B) Termination by sale or exchange of interest.
    (C) Other terminations.
    (3) Increase in the basis of partnership property under section 
732(b), 734(b), 743(b), or 732(d).
    (4) Section 704(c) allocations.
    (i) Allocations where the intangible is amortizable by the 
contributor.
    (ii) Allocations where the intangible is not amortizable by the 
contributor.
    (5) Treatment of certain insurance contracts acquired in an 
assumption reinsurance transaction.
    (i) In general.
    (ii) Determination of adjusted basis of amortizable section 197 
intangible resulting from an assumption reinsurance transaction.
    (A) In general.
    (B) Amount paid or incurred by acquirer (reinsurer) under the 
assumption reinsurance transaction.
    (C) Amount required to be capitalized under section 848 in 
connection with the transaction.
    (1) In general.
    (2) Required capitalization amount.
    (3) General deductions allocable to the assumption reinsurance 
transaction.
    (4) Treatment of a capitalization shortfall allocable to the 
reinsurance agreement.
    (i) In general.
    (ii) Treatment of additional capitalized amounts as the result of an 
election under Sec. 1.848-2(g)(8).
    (5) Cross references and special rules.
    (D) Examples
    (E) Effective/applicability date.
    (iii) Application of loss disallowance rule upon a disposition of an 
insurance contract acquired in an assumption reinsurance transaction.
    (A) Disposition.
    (1) In general.

[[Page 287]]

    (2) Treatment of indemnity reinsurance transactions.
    (B) Loss.
    (C) Examples.
    (iv) Effective dates.
    (A) In general.
    (B) Application to pre-effective date acquisitions and dispositions.
    (C) Change in method of accounting.
    (1) In general.
    (2) Acquisitions and dispositions on or after effective date.
    (3) Acquisitions and dispositions before the effective date.
    (6) Amounts paid or incurred for a franchise, trademark, or trade 
name.
    (7) Amounts properly taken into account in determining the cost of 
property that is not a section 197 intangible.
    (8) Treatment of amortizable section 197 intangibles as depreciable 
property.
    (h) Anti-churning rules.
    (1) Scope and purpose.
    (i) Scope.
    (ii) Purpose.
    (2) Treatment of section 197(f)(9) intangibles.
    (3) Amounts deductible under section 1253(d) or Sec. 1.162-11.
    (4) Transition period.
    (5) Exceptions.
    (6) Related person.
    (i) In general.
    (ii) Time for testing relationships.
    (iii) Certain relationships disregarded.
    (iv) De minimis rule.
    (A) In general.
    (B) Determination of beneficial ownership interest.
    (7) Special rules for entities that owned or used property at any 
time during the transition period and that are no longer in existence.
    (8) Special rules for section 338 deemed acquisitions.
    (9) Gain-recognition exception.
    (i) Applicability.
    (ii) Effect of exception.
    (iii) Time and manner of election.
    (iv) Special rules for certain entities.
    (v) Effect of nonconforming elections.
    (vi) Notification requirements.
    (vii) Revocation.
    (viii) Election Statement.
    (ix) Determination of highest marginal rate of tax and amount of 
other Federal income tax on gain.
    (A) Marginal rate.
    (1) Noncorporate taxpayers.
    (2) Corporations and tax-exempt entities.
    (B) Other Federal income tax on gain.
    (x) Coordination with other provisions.
    (A) In general.
    (B) Section 1374.
    (C) Procedural and administrative provisions.
    (D) Installment method.
    (xi) Special rules for persons not otherwise subject to Federal 
income tax.
    (10) Transactions subject to both anti-churning and nonrecognition 
rules.
    (11) Avoidance purpose.
    (12) Additional partnership anti-churning rules
    (i) In general.
    (ii) Section 732(b) adjustments. [Reserved]
    (iii) Section 732(d) adjustments.
    (iv) Section 734(b) adjustments. [Reserved]
    (v) Section 743(b) adjustments.
    (vi) Partner is or becomes a user of partnership intangible.
    (A) General rule.
    (B) Anti-churning partner.
    (C) Effect of retroactive elections.
    (vii) Section 704(c) elections.
    (A) Allocations where the intangible is amortizable by the 
contributor.
    (B) Allocations where the intangible is not amortizable by the 
contributor.
    (viii) Operating rule for transfers upon death.
    (i) Reserved
    (j) General anti-abuse rule.
    (k) Examples.
    (l) Effective dates.
    (1) In general.
    (2) Application to pre-effective date acquisitions.
    (3) Application of regulation project REG-209709-94 to pre-effective 
date acquisitions.
    (4) Change in method of accounting.
    (i) In general.
    (ii) Application to pre-effective date transactions.
    (iii) Automatic change procedures.

[T.D. 8867, 65 FR 3826, Jan. 25, 2000, as amended by T.D. 9257, 71 FR 
17996, Apr. 10, 2006; T.D. 9377, 73 FR 3869, Jan. 23, 2008]



Sec. 1.197-1T  Certain elections for intangible property (temporary).

    (a) In general. This section provides rules for making the two 
elections under section 13261 of the Omnibus Budget Reconciliation Act 
of 1993 (OBRA '93). Paragraph (c) of this section provides rules for 
making the section 13261(g)(2) election (the retroactive election) to 
apply the intangibles provisions of OBRA '93 to property acquired after 
July 25, 1991, and on or before August 10, 1993 (the date of enactment 
of OBRA '93). Paragraph (d) of this section provides rules for making 
the section 13261(g)(3) election (binding contract election) to apply 
prior law to property acquired pursuant to a written binding contract in 
effect on August 10, 1993, and at all times thereafter before the date 
of acquisition. The provisions of this section apply

[[Page 288]]

only to property for which an election is made under paragraph (c) or 
(d) of this section.
    (b) Definitions and special rules--(1) Intangibles provisions of 
OBRA '93. The intangibles provisions of OBRA '93 are sections 167(f) and 
197 of the Internal Revenue Code (Code) and all other pertinent 
provisions of section 13261 of OBRA '93 (e.g., the amendment of section 
1253 in the case of a franchise, trademark, or trade name).
    (2) Transition period property. The transition period property of a 
taxpayer is any property that was acquired by the taxpayer after July 
25, 1991, and on or before August 10, 1993.
    (3) Eligible section 197 intangibles. The eligible section 197 
intangibles of a taxpayer are any section 197 intangibles that--
    (i) Are transition period property; and
    (ii) Qualify as amortizable section 197 intangibles (within the 
meaning of section 197(c)) if an election under section 13261(g)(2) of 
OBRA '93 applies.
    (4) Election date. The election date is the date (determined after 
application of section 7502(a)) on which the taxpayer files the original 
or amended return to which the election statement described in paragraph 
(e) of this section is attached.
    (5) Election year. The election year is the taxable year of the 
taxpayer that includes August 10, 1993.
    (6) Common control. A taxpayer is under common control with the 
electing taxpayer if, at any time after August 2, 1993, and on or before 
the election date (as defined in paragraph (b)(4) of this section), the 
two taxpayers would be treated as a single taxpayer under section 
41(f)(1) (A) or (B).
    (7) Applicable convention for sections 197 and 167(f) intangibles. 
For purposes of computing the depreciation or amortization deduction 
allowable with respect to transition period property described in 
section 167(f) (1) or (3) or with respect to eligible section 197 
intangibles--
    (i) Property acquired at any time during the month is treated as 
acquired as of the first day of the month and is eligible for 
depreciation or amortization during the month; and
    (ii) Property is not eligible for depreciation or amortization in 
the month of disposition.
    (8) Application to adjustment to basis of partnership property under 
section 734(b) or 743(b). Any increase in the basis of partnership 
property under section 734(b) (relating to the optional adjustment to 
basis of undistributed partnership property) or section 743(b) (relating 
to the optional adjustment to the basis of partnership property) will be 
taken into account under this section by a partner as if the increased 
portion of the basis were attributable to the partner's acquisition of 
the underlying partnership property on the date the distribution or 
transfer occurs. For example, if a section 754 election is in effect 
and, as a result of its acquisition of a partnership interest, a 
taxpayer obtains an increased basis in an intangible held through the 
partnership, the increased portion of the basis in the intangible will 
be treated as an intangible asset newly acquired by that taxpayer on the 
date of the transaction.
    (9) Former member. A former member of a consolidated group is a 
corporation that was a member of the consolidated group at any time 
after July 25, 1991, and on or before August 2, 1993, but that is not 
under common control with the common parent of the group for purposes of 
paragraph (c)(1)(ii) of this section.
    (c) Retroactive election--(1) Effect of election--(i) On taxpayer. 
Except as provided in paragraph (c)(1)(v) of this section, if a taxpayer 
makes the retroactive election, the intangibles provisions of OBRA '93 
will apply to all the taxpayer's transition period property. Thus, for 
example, section 197 will apply to all the taxpayer's eligible section 
197 intangibles.
    (ii) On taxpayers under common control. If a taxpayer makes the 
retroactive election, the election applies to each taxpayer that is 
under common control with the electing taxpayer. If the retroactive 
election applies to a taxpayer under common control, the intangibles 
provisions of OBRA '93 apply to that taxpayer's transition period 
property in the same manner as if that taxpayer had itself made the 
retroactive election. However, a retroactive election that applies to a 
non-

[[Page 289]]

electing taxpayer under common control is not treated as an election by 
that taxpayer for purposes of re-applying the rule of this paragraph 
(c)(1)(ii) to any other taxpayer.
    (iii) On former members of consolidated group. A retroactive 
election by the common parent of a consolidated group applies to 
transition period property acquired by a former member while it was a 
member of the consolidated group and continues to apply to that property 
in each subsequent consolidated or separate return year of the former 
member.
    (iv) On transferred assets--(A) In general. If property is 
transferred in a transaction described in paragraph (c)(1)(iv)(C) of 
this section and the intangibles provisions of OBRA '93 applied to such 
property in the hands of the transferor, the property remains subject to 
the intangibles provisions of OBRA '93 with respect to so much of its 
adjusted basis in the hands of the transferee as does not exceed its 
adjusted basis in the hands of the transferor. The transferee is not 
required to apply the intangibles provisions of OBRA '93 to any other 
transition period property that it owns, however, unless such provisions 
are otherwise applicable under the rules of this paragraph (c)(1).
    (B) Transferee election. If property is transferred in a transaction 
described in paragraph (c)(1)(iv)(C)(1) of this section and the 
transferee makes the retroactive election, the transferor is not 
required to apply the intangibles provisions of OBRA '93 to any of its 
transition period property (including the property transferred to the 
transferee in the transaction described in paragraph (c)(1)(iv)(C)(1) of 
this section), unless such provisions are otherwise applicable under the 
rules of this paragraph (c)(1).
    (C) Transactions covered. This paragraph (c)(1)(iv) applies to--
    (1) Any transaction described in section 332, 351, 361, 721, 731, 
1031, or 1033; and
    (2) Any transaction between corporations that are members of the 
same consolidated group immediately after the transaction.
    (D) Exchanged basis property. In the case of a transaction involving 
exchanged basis property (e.g., a transaction subject to section 1031 or 
1033)--
    (1) Paragraph (c)(1)(iv)(A) of this section shall not apply; and
    (2) If the intangibles provisions of OBRA '93 applied to the 
property by reference to which the exchanged basis is determined (the 
predecessor property), the exchanged basis property becomes subject to 
the intangibles provisions of OBRA '93 with respect to so much of its 
basis as does not exceed the predecessor property's basis.
    (E) Acquisition date. For purposes of paragraph (b)(2) of this 
section (definition of transition period property), property (other than 
exchanged basis property) acquired in a transaction described in 
paragraph (c)(1)(iv)(C)(1) of this section generally is treated as 
acquired when the transferor acquired (or was treated as acquiring) the 
property (or predecessor property). However, if the adjusted basis of 
the property in the hands of the transferee exceeds the adjusted basis 
of the property in the hands of the transferor, the property, with 
respect to that excess basis, is treated as acquired at the time of the 
transfer. The time at which exchanged basis property is considered 
acquired is determined by applying similar principles to the 
transferee's acquisition of predecessor property.
    (v) Special rule for property of former member of consolidated 
group--(A) Intangibles provisions inapplicable for certain periods. If a 
former member of a consolidated group makes a retroactive election 
pursuant to paragraph (c)(1)(i) of this section or if an election 
applies to the former member under the common control rule of paragraph 
(c)(1)(ii) of this section, the intangibles provisions of OBRA '93 
generally apply to all transition period property of the former member. 
The intangibles provisions of OBRA '93 do not apply, however, to the 
transition period property of a former member (including a former member 
that makes or is bound by a retroactive election) during the period 
beginning immediately after July 25, 1991, and ending immediately before 
the earlier of--
    (1) The first day after July 25, 1991, that the former member was 
not a member of a consolidated group; or

[[Page 290]]

    (2) The first day after July 25, 1991, that the former member was a 
member of a consolidated group that is otherwise required to apply the 
intangibles provisions of OBRA '93 to its transition period property 
(e.g., because the common control election under paragraph (c)(1)(ii) of 
this section applies to the group).
    (B) Subsequent adjustments. See paragraph (c)(5) of this section for 
adjustments when the intangibles provisions of OBRA '93 first apply to 
the transition period property of the former member after the property 
is acquired.
    (2) Making the election--(i) Partnerships, S corporations, estates, 
and trusts. Except as provided in paragraph (c)(2)(ii) of this section, 
in the case of transition period property of a partnership, S 
corporation, estate, or trust, only the entity may make the retroactive 
election for purposes of paragraph (c)(1)(i) of this section.
    (ii) Partnerships for which a section 754 election is in effect. In 
the case of increased basis that is treated as transition period 
property of a partner under paragraph (b)(8) of this section, only that 
partner may make the retroactive election for purposes of paragraph 
(c)(1)(i) of this section.
    (iii) Consolidated groups. An election by the common parent of a 
consolidated group applies to members and former members as described in 
paragraphs (c)(1)(ii) and (iii) of this section. Further, for purposes 
of paragraph (c)(1)(ii) of this section, an election by the common 
parent is not treated as an election by any subsidiary member. A 
retroactive election cannot be made by a corporation that is a 
subsidiary member of a consolidated group on August 10, 1993, but an 
election can be made on behalf of the subsidiary member under paragraph 
(c)(1)(ii) of this section (e.g., by the common parent of the group). 
See paragraph (c)(1)(iii) of this section for rules concerning the 
effect of the common parent's election on transition period property of 
a former member.
    (3) Time and manner of election--(i) Time. In general, the 
retroactive election must be made by the due date (including extensions 
of time) of the electing taxpayer's Federal income tax return for the 
election year. If, however, the taxpayer's original Federal income tax 
return for the election year is filed before April 14, 1994, the 
election may be made by amending that return no later than September 12, 
1994.
    (ii) Manner. The retroactive election is made by attaching the 
election statement described in paragraph (e) of this section to the 
taxpayer's original or amended income tax return for the election year. 
In addition, the taxpayer must--
    (A) Amend any previously filed return when required to do so under 
paragraph (c)(4) of this section; and
    (B) Satisfy the notification requirements of paragraph (c)(6) of 
this section.
    (iii) Effect of nonconforming elections. An attempted election that 
does not satisfy the requirements of this paragraph (c)(3) (including an 
attempted election made on a return for a taxable year prior to the 
election year) is not valid.
    (4) Amended return requirements--(i) Requirements. A taxpayer 
subject to this paragraph (c)(4) must amend all previously filed income 
tax returns as necessary to conform the taxpayer's treatment of 
transition period property to the treatment required under the 
intangibles provisions of OBRA '93. See paragraph (c)(5) of this section 
for certain adjustments that may be required on the amended returns 
required under this paragraph (c)(4) in the case of certain consolidated 
group member dispositions and tax-free transactions.
    (ii) Applicability. This paragraph (c)(4) applies to a taxpayer if--
    (A) The taxpayer makes the retroactive election; or
    (B) Another person's retroactive election applies to the taxpayer or 
to any property acquired by the taxpayer.
    (5) Adjustment required with respect to certain consolidated group 
member dispositions and tax-free transactions--(i) Application. This 
paragraph (c)(5) applies to transition period property if the 
intangibles provisions of OBRA '93 first apply to the property while it 
is held by the taxpayer but do not apply to the property for some period 
(the ``interim period'') after the property is acquired (or considered 
acquired) by

[[Page 291]]

the taxpayer. For example, this paragraph (c)(5) may apply to transition 
period property held by a former member of a consolidated group if a 
retroactive election is made by or on behalf of the former member but is 
not made by the consolidated group. See paragraph (c)(1)(v) of this 
section.
    (ii) Required adjustment to income. If this paragraph (c)(5) 
applies, an adjustment must be taken into account in computing taxable 
income of the taxpayer for the taxable year in which the intangibles 
provisions of OBRA '93 first apply to the property. The amount of the 
adjustment is equal to the difference for the transition period property 
between--
    (A) The sum of the depreciation, amortization, or other cost 
recovery deductions that the taxpayer (and its predecessors) would have 
been permitted if the intangibles provisions of OBRA '93 applied to the 
property during the interim period; and
    (B) The sum of the depreciation, amortization, or other cost 
recovery deductions that the taxpayer (and its predecessors) claimed 
during that interim period.
    (iii) Required adjustment to basis. The taxpayer also must make a 
corresponding adjustment to the basis of its transition period property 
to reflect any adjustment to taxable income with respect to the property 
under this paragraph (c)(5).
    (6) Notification requirements--(i) Notification of commonly 
controlled taxpayers. A taxpayer that makes the retroactive election 
must provide written notification of the retroactive election (on or 
before the election date) to each taxpayer that is under common control 
with the electing taxpayer.
    (ii) Notification of certain former members, former consolidated 
groups, and transferees. This paragraph (c)(6)(ii) applies to a common 
parent of a consolidated group that makes or is notified of a 
retroactive election that applies to transition period property of a 
former member, a corporation that makes or is notified of a retroactive 
election that affects any consolidated group of which the corporation is 
a former member, or a taxpayer that makes or is notified of a 
retroactive election that applies to transition period property the 
taxpayer transfers in a transaction described in paragraph (c)(1)(iv)(C) 
of this section. Such common parent, former member, or transferor must 
provide written notification of the retroactive election to any affected 
former member, consolidated group, or transferee. The written 
notification must be provided on or before the election date in the case 
of an election by the common parent, former member, or transferor, and 
within 30 days of the election date in the case of an election by a 
person other than the common parent, former member, or transferor.
    (7) Revocation. Once made, the retroactive election may be revoked 
only with the consent of the Commissioner.
    (8) Examples. The following examples illustrate the application of 
this paragraph (c).

    Example 1. (i) X is a partnership with 5 equal partners, A through 
E. X acquires in 1989, as its sole asset, intangible asset M. X has a 
section 754 election in effect for all relevant years. F, an unrelated 
individual, purchases A's entire interest in the X partnership in 
January 1993 for $700. At the time of F's purchase, X's inside basis for 
M is $2,000, and its fair market value is $3,500.
    (ii) Under section 743(b), X makes an adjustment to increase F's 
basis in asset M by $300, the difference between the allocated purchase 
price and M's inside basis ($700-$400=$300). Under paragraphs (b)(8) and 
(c)(2)(ii) of this section, if F makes the retroactive election, the 
section 743(b) basis increase of $300 in M is an amortizable section 197 
intangible even though asset M is not an amortizable section 197 
intangible in the hands of X. F's increase in the basis of asset M is 
amortizable over 15 years beginning with the month of F's acquisition of 
the partnership interest. With respect to the remaining $400 of basis, F 
is treated as stepping into A's shoes and continues A's amortization (if 
any) in asset M. F's retroactive election applies to all other 
intangibles acquired by F or a taxpayer under common control with F.
    Example 2. A, a calendar year taxpayer, is under common control with 
B, a June 30 fiscal year taxpayer. A files its original election year 
Federal income tax return on March 15, 1994, and does not make either 
the retroactive election or the binding contract election. B files its 
election year tax return on September 15, 1994, and makes the 
retroactive election. B is required by paragraph (c)(6)(i) of this 
section to notify A of its election. Even though A had already filed its

[[Page 292]]

election year return, A is bound by B's retroactive election under the 
common control rules. Additionally, if A had made a binding contract 
election, it would have been negated by B's retroactive election. 
Because of B's retroactive election, A must comply with the requirements 
of this paragraph (c), and file amended returns for the election year 
and any affected prior years as necessary to conform the treatment of 
transition period property to the treatment required under the 
intangibles provisions of OBRA '93.
    Example 3. (i) P and Y, calendar year taxpayers, are the common 
parents of unrelated calendar year consolidated groups. On August 15, 
1991, S, a subsidiary member of the P group, acquires a section 197 
intangible with an unadjusted basis of $180. Under prior law, no 
amortization or depreciation was allowed with respect to the acquired 
intangible. On November 1, 1992, a member of the Y group acquires the S 
stock in a taxable transaction. On the P group's 1993 consolidated 
return, P makes the retroactive election. The P group also files amended 
returns for its affected prior years. Y does not make the retroactive 
election for the Y group.
    (ii) Under paragraph (c)(1)(iii) of this section, a retroactive 
election by the common parent of a consolidated group applies to all 
transition period property acquired by a former member while it was a 
member of the group. The section 197 intangible acquired by S is 
transition period property that S, a former member of the P group, 
acquired while a member of the P group. Thus, P's election applies to 
the acquired asset. P must notify S of the election pursuant to 
paragraph (c)(6)(ii) of this section.
    (iii) S amortizes the unadjusted basis of its eligible section 197 
intangible ($180) over the 15-year amortization period using the 
applicable convention beginning as of the first day of the month of 
acquisition (August 1, 1991). Thus, the P group amends its 1991 
consolidated tax return to take into account $5 of amortization ($180/15 
years x \5/12\ year = $5) for S.
    (iv) For 1992, S is entitled to $12 of amortization ($180/15). 
Assume that under Sec. 1.1502-76, $10 of S's amortization for 1992 is 
allocated to the P group's consolidated return and $2 is allocated to 
the Y group's return. The P group amends its 1992 consolidated tax 
return to reflect the $10 deduction for S. The Y group must amend its 
1992 return to reflect the $2 deduction for S.
    Example 4. (i) The facts are the same as in Example 3, except that 
the retroactive election is made for the Y group, not for the P group.
    (ii) The Y group amends its 1992 consolidated return to claim a 
section 197 deduction of $2 ($180/15 years x 2/12 year = $2) for S.
    (iii) Under paragraph (c)(1)(ii) of this section, the retroactive 
election by Y applies to all transition period property acquired by S. 
However, under paragraph (c)(1)(v)(A) of this section, the intangibles 
provisions of OBRA '93 do not apply to S's transition period property 
during the period when it held such property as a member of P group. 
Instead, these provisions become applicable to S's transition period 
property beginning on November 1, 1992, when S becomes a member of Y 
group.
    (iv) Because the P group did not make the retroactive election, 
there is an interim period during which the intangibles provisions of 
OBRA '93 do not apply to the asset acquired by S. Thus, under paragraph 
(c)(5) of this section, the Y group must take into account in computing 
taxable income in 1992 an adjustment equal to the difference between the 
section 197 deduction that would have been permitted if the intangibles 
provisions of OBRA '93 applied to the property for the interim period 
(i.e., the period for which S was included in the P group's 1991 and 
1992 consolidated returns) and any amortization or depreciation 
deductions claimed by S for the transferred intangible for that period. 
The retroactive election does not affect the P group, and the P group is 
not required to amend its returns.
    Example 5. The facts are the same as in Example 3, except that both 
P and Y make the retroactive election. P must notify S of its election 
pursuant to paragraph (c)(6)(ii) of this section. Further, both the P 
and Y groups must file amended returns for affected prior years. Because 
there is no period of time during which the intangibles provisions of 
OBRA '93 do not apply to the asset acquired by S, the Y group is 
permitted no adjustment under paragraph (c)(5) of this section for the 
asset.

    (d) Binding contract election--(1) General rule--(i) Effect of 
election. If a taxpayer acquires property pursuant to a written binding 
contract in effect on August 10, 1993, and at all times thereafter 
before the acquisition (an eligible acquisition) and makes the binding 
contract election with respect to the contract, the law in effect prior 
to the enactment of OBRA '93 will apply to all property acquired 
pursuant to the contract. A separate binding contract election must be 
made with respect to each eligible acquisition to which the law in 
effect prior to the enactment of OBRA '93 is to apply.
    (ii) Taxpayers subject to retroactive election. A taxpayer may not 
make the binding contract election if the taxpayer or a person under 
common control with the taxpayer makes the retroactive election under 
paragraph (c) of this section.

[[Page 293]]

    (iii) Revocation. A binding contract election, once made, may be 
revoked only with the consent of the Commissioner.
    (2) Time and manner of election--(i) Time. In general, the binding 
contract election must be made by the due date (including extensions of 
time) of the electing taxpayer's Federal income tax return for the 
election year. If, however, the taxpayer's original Federal income tax 
return for the election year is filed before April 14, 1994, the 
election may be made by amending that return no later than September 12, 
1994.
    (ii) Manner. The binding contract election is made by attaching the 
election statement described in paragraph (e) of this section to the 
taxpayer's original or amended income tax return for the election year.
    (iii) Effect of nonconforming election. An attempted election that 
does not satisfy the requirements of this paragraph (d)(2) is not valid.
    (e) Election statement--(1) Filing requirements. For an election 
under paragraph (c) or (d) of this section to be valid, the electing 
taxpayer must:
    (i) File (with its Federal income tax return for the election year 
and with any affected amended returns required under paragraph (c)(4) of 
this section) a written election statement, as an attachment to Form 
4562 (Depreciation and Amortization), that satisfies the requirements of 
paragraph (e)(2) of this section; and
    (ii) Forward a copy of the election statement to the Statistics 
Branch (QAM:S:6111), IRS Ogden Service Center, ATTN: Chief, Statistics 
Branch, P.O. Box 9941, Ogden, UT 84409.
    (2) Content of the election statement. The written election 
statement must include the information in paragraphs (e)(2) (i) through 
(vi) and (ix) of this section in the case of a retroactive election, and 
the information in paragraphs (e)(2) (i) and (vii) through (ix) of this 
section in the case of a binding contract election. The required 
information should be arranged and identified in accordance with the 
following order and numbering system--
    (i) The name, address and taxpayer identification number (TIN) of 
the electing taxpayer (and the common parent if a consolidated return is 
filed).
    (ii) A statement that the taxpayer is making the retroactive 
election.
    (iii) Identification of the transition period property affected by 
the retroactive election, the name and TIN of the person from which the 
property was acquired, the manner and date of acquisition, the basis at 
which the property was acquired, and the amount of depreciation, 
amortization, or other cost recovery under section 167 or any other 
provision of the Code claimed with respect to the property.
    (iv) Identification of each taxpayer under common control (as 
defined in paragraph (b)(6) of this section) with the electing taxpayer 
by name, TIN, and Internal Revenue Service Center where the taxpayer's 
income tax return is filed.
    (v) If any persons are required to be notified of the retroactive 
election under paragraph (c)(6) of this section, identification of such 
persons and certification that written notification of the election has 
been provided to such persons.
    (vi) A statement that the transition period property being amortized 
under section 197 is not subject to the anti-churning rules of section 
197(f)(9).
    (vii) A statement that the taxpayer is making the binding contract 
election.
    (viii) Identification of the property affected by the binding 
contract election, the name and TIN of the person from which the 
property was acquired, the manner and date of acquisition, the basis at 
which the property was acquired, and whether any of the property is 
subject to depreciation under section 167 or to amortization or other 
cost recovery under any other provision of the Code.
    (ix) The signature of the taxpayer or an individual authorized to 
sign the taxpayer's Federal income tax return.
    (f) Effective date. These regulations are effective March 15, 1994.

[T.D. 8528, 59 FR 11920, Mar. 15, 1994, as amended by T.D. 9377, 73 FR 
3869, Jan. 23, 2008]



Sec. 1.197-2  Amortization of goodwill and certain other intangibles.

    (a) Overview--(1) In general. Section 197 allows an amortization 
deduction

[[Page 294]]

for the capitalized costs of an amortizable section 197 intangible and 
prohibits any other depreciation or amortization with respect to that 
property. Paragraphs (b), (c), and (e) of this section provide rules and 
definitions for determining whether property is a section 197 
intangible, and paragraphs (d) and (e) of this section provide rules and 
definitions for determining whether a section 197 intangible is an 
amortizable section 197 intangible. The amortization deduction under 
section 197 is determined by amortizing basis ratably over a 15-year 
period under the rules of paragraph (f) of this section. Section 197 
also includes various special rules pertaining to the disposition of 
amortizable section 197 intangibles, nonrecognition transactions, anti-
churning rules, and anti-abuse rules. Rules relating to these provisions 
are contained in paragraphs (g), (h), and (j) of this section. Examples 
demonstrating the application of these provisions are contained in 
paragraph (k) of this section. The effective date of the rules in this 
section is contained in paragraph (l) of this section.
    (2) Section 167(f) property. Section 167(f) prescribes rules for 
computing the depreciation deduction for certain property to which 
section 197 does not apply. See Sec. 1.167(a)-14 for rules under 
section 167(f) and paragraphs (c)(4), (6), (7), (11), and (13) of this 
section for a description of the property subject to section 167(f).
    (3) Amounts otherwise deductible. Section 197 does not apply to 
amounts that are not chargeable to capital account under paragraph 
(f)(3) (relating to basis determinations for covenants not to compete 
and certain contracts for the use of section 197 intangibles) of this 
section and are otherwise currently deductible. For this purpose, an 
amount described in Sec. 1.162-11 is not currently deductible if, 
without regard to Sec. 1.162-11, such amount is properly chargeable to 
capital account.
    (b) Section 197 intangibles; in general. Except as otherwise 
provided in paragraph (c) of this section, the term section 197 
intangible means any property described in section 197(d)(1). The 
following rules and definitions provide guidance concerning property 
that is a section 197 intangible unless an exception applies:
    (1) Goodwill. Section 197 intangibles include goodwill. 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.
    (2) Going concern value. Section 197 intangibles include going 
concern value. Going concern value is the additional value that attaches 
to property by reason 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, but does not include any of the 
intangibles described in any other provision of this paragraph (b). 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 any period if the acquired trade or business were not available 
or operational.
    (3) Workforce in place. Section 197 intangibles include workforce in 
place. Workforce in place (sometimes referred to as agency force or 
assembled workforce) includes the composition of a workforce (for 
example, the experience, education, or training of a workforce), the 
terms and conditions of employment whether contractual or otherwise, and 
any other value placed on employees or any of their attributes. Thus, 
the amount paid or incurred for workforce in place includes, for 
example, any portion of the purchase price of an acquired trade or 
business attributable to the existence of a highly-skilled workforce, an 
existing employment contract (or contracts), or a relationship with 
employees or consultants (including, but not limited to, any key 
employee contract or relationship). Workforce in place does not include 
any covenant not to compete or other similar arrangement described in 
paragraph (b)(9) of this section.
    (4) Information base. Section 197 intangibles include any 
information base,

[[Page 295]]

including a customer-related information base. For this purpose, an 
information base includes business books and records, operating systems, 
and any other information base (regardless of the method of recording 
the information) and a customer-related information base is any 
information base that includes lists or other information with respect 
to current or prospective customers. Thus, the amount paid or incurred 
for information base includes, for example, any portion of the purchase 
price of an acquired trade or business attributable to the intangible 
value of technical manuals, training manuals or programs, data files, 
and accounting or inventory control systems. Other examples include the 
cost of acquiring customer lists, subscription lists, insurance 
expirations, patient or client files, or lists of newspaper, magazine, 
radio, or television advertisers.
    (5) Know-how, etc. Section 197 intangibles include any patent, 
copyright, formula, process, design, pattern, know-how, format, package 
design, computer software (as defined in paragraph (c)(4)(iv) of this 
section), or interest in a film, sound recording, video tape, book, or 
other similar property. (See, however, the exceptions in paragraph (c) 
of this section.)
    (6) Customer-based intangibles. Section 197 intangibles include any 
customer-based intangible. A customer-based intangible is any 
composition of market, market share, or other value resulting from the 
future provision of goods or services pursuant to contractual or other 
relationships in the ordinary course of business with customers. Thus, 
the amount paid or incurred for customer-based intangibles includes, for 
example, any portion of the purchase price of an acquired trade or 
business attributable to the existence of a customer base, a circulation 
base, an undeveloped market or market growth, insurance in force, the 
existence of a qualification to supply goods or services to a particular 
customer, a mortgage servicing contract (as defined in paragraph (c)(11) 
of this section), an investment management contract, or other 
relationship with customers involving the future provision of goods or 
services. (See, however, the exceptions in paragraph (c) of this 
section.) In addition, customer-based intangibles include the deposit 
base and any similar asset of a financial institution. Thus, the amount 
paid or incurred for customer-based intangibles also includes any 
portion of the purchase price of an acquired financial institution 
attributable to the value represented by existing checking accounts, 
savings accounts, escrow accounts, and other similar items of the 
financial institution. However, any portion of the purchase price of an 
acquired trade or business attributable to accounts receivable or other 
similar rights to income for goods or services provided to customers 
prior to the acquisition of a trade or business is not an amount paid or 
incurred for a customer-based intangible.
    (7) [Reserved] For further guidance, see Sec. 1.197-2T(b)(7).
    (8) Licenses, permits, and other rights granted by governmental 
units. Section 197 intangibles include any license, permit, or other 
right granted by a governmental unit (including, for purposes of section 
197, an agency or instrumentality thereof) even if the right is granted 
for an indefinite period or is reasonably expected to be renewed for an 
indefinite period. These rights include, for example, a liquor license, 
a taxi-cab medallion (or license), an airport landing or takeoff right 
(sometimes referred to as a slot), a regulated airline route, or a 
television or radio broadcasting license. The issuance or renewal of a 
license, permit, or other right granted by a governmental unit is 
considered an acquisition of the license, permit, or other right. (See, 
however, the exceptions in paragraph (c) of this section, including the 
exceptions in paragraph (c)(3) of this section for an interest in land, 
paragraph (c)(6) of this section for certain rights to receive tangible 
property or services, paragraph (c)(8) of this section for an interest 
under a lease of tangible property, and paragraph (c)(13) of this 
section for certain rights granted by a governmental unit. See paragraph 
(b)(10) of this section for the treatment of franchises.)
    (9) Covenants not to compete and other similar arrangements. Section 
197 intangibles include any covenant not to

[[Page 296]]

compete, or agreement having substantially the same effect, entered into 
in connection with the direct or indirect acquisition of an interest in 
a trade or business or a substantial portion thereof. For purposes of 
this paragraph (b)(9), an acquisition may be made in the form of an 
asset acquisition (including a qualified stock purchase that is treated 
as a purchase of assets under section 338), a stock acquisition or 
redemption, and the acquisition or redemption of a partnership interest. 
An agreement requiring the performance of services for the acquiring 
taxpayer or the provision of property or its use to the acquiring 
taxpayer does not have substantially the same effect as a covenant not 
to compete to the extent that the amount paid under the agreement 
represents reasonable compensation for the services actually rendered or 
for the property or use of the property actually provided.
    (10) Franchises, trademarks, and trade names. (i) Section 197 
intangibles include any franchise, trademark, or trade name. The term 
franchise has the meaning given in section 1253(b)(1) and includes any 
agreement that provides one of the parties to the agreement with the 
right to distribute, sell, or provide goods, services, or facilities, 
within a specified area. The term trademark includes any word, name, 
symbol, or device, or any combination thereof, adopted and used to 
identify goods or services and distinguish them from those provided by 
others. The term trade name includes any name used to identify or 
designate a particular trade or business or the name or title used by a 
person or organization engaged in a trade or business. A license, 
permit, or other right granted by a governmental unit is a franchise if 
it otherwise meets the definition of a franchise. A trademark or trade 
name includes any trademark or trade name arising under statute or 
applicable common law, and any similar right granted by contract. The 
renewal of a franchise, trademark, or trade name is treated as an 
acquisition of the franchise, trademark, or trade name.
    (ii) Notwithstanding the definitions provided in paragraph 
(b)(10)(i) of this section, any amount that is paid or incurred on 
account of a transfer, sale, or other disposition of a franchise, 
trademark, or trade name and that is subject to section 1253(d)(1) is 
not included in the basis of a section 197 intangible. (See paragraph 
(g)(6) of this section.)
    (11) Contracts for the use of, and term interests in, section 197 
intangibles. Section 197 intangibles include any right under a license, 
contract, or other arrangement providing for the use of property that 
would be a section 197 intangible under any provision of this paragraph 
(b) (including this paragraph (b)(11)) after giving effect to all of the 
exceptions provided in paragraph (c) of this section. Section 197 
intangibles also include any term interest (whether outright or in 
trust) in such property.
    (12) Other similar items. Section 197 intangibles include any other 
intangible property that is similar in all material respects to the 
property specifically described in section 197(d)(1)(C)(i) through (v) 
and paragraphs (b)(3) through (7) of this section. (See paragraph (g)(5) 
of this section for special rules regarding certain reinsurance 
transactions.)
    (c) Section 197 intangibles; exceptions. The term section 197 
intangible does not include property described in section 197(e). The 
following rules and definitions provide guidance concerning property to 
which the exceptions apply:
    (1) Interests in a corporation, partnership, trust, or estate. 
Section 197 intangibles do not include an interest in a corporation, 
partnership, trust, or estate. Thus, for example, amortization under 
section 197 is not available for the cost of acquiring stock, 
partnership interests, or interests in a trust or estate, whether or not 
the interests are regularly traded on an established market. (See 
paragraph (g)(3) of this section for special rules applicable to 
property of a partnership when a section 754 election is in effect for 
the partnership.)
    (2) Interests under certain financial contracts. Section 197 
intangibles do not include an interest under an existing futures 
contract, foreign currency contract, notional principal contract, 
interest rate swap, or other similar financial contract, whether or not 
the

[[Page 297]]

interest is regularly traded on an established market. However, this 
exception does not apply to an interest under a mortgage servicing 
contract, credit card servicing contract, or other contract to service 
another person's indebtedness, or an interest under an assumption 
reinsurance contract. (See paragraph (g)(5) of this section for the 
treatment of assumption reinsurance contracts. See paragraph (c)(11) of 
this section and Sec. 1.167(a)-14(d) for the treatment of mortgage 
servicing rights.)
    (3) Interests in land. Section 197 intangibles do not include any 
interest in land. For this purpose, an interest in land includes a fee 
interest, life estate, remainder, easement, mineral right, timber right, 
grazing right, riparian right, air right, zoning variance, and any other 
similar right, such as a farm allotment, quota for farm commodities, or 
crop acreage base. An interest in land does not include an airport 
landing or takeoff right, a regulated airline route, or a franchise to 
provide cable television service. The cost of acquiring a license, 
permit, or other land improvement right, such as a building construction 
or use permit, is taken into account in the same manner as the 
underlying improvement.
    (4) Certain computer software--(i) Publicly available. Section 197 
intangibles do not include any interest in computer software that is (or 
has been) readily available to the general public on similar terms, is 
subject to a nonexclusive license, and has not been substantially 
modified. Computer software will be treated as readily available to the 
general public if the software may be obtained on substantially the same 
terms by a significant number of persons that would reasonably be 
expected to use the software. This requirement can be met even though 
the software is not available through a system of retail distribution. 
Computer software will not be considered to have been substantially 
modified if the cost of all modifications to the version of the software 
that is readily available to the general public does not exceed the 
greater of 25 percent of the price at which the unmodified version of 
the software is readily available to the general public or $2,000. For 
the purpose of determining whether computer software has been 
substantially modified--
    (A) Integrated programs acquired in a package from a single source 
are treated as a single computer program; and
    (B) Any cost incurred to install the computer software on a system 
is not treated as a cost of the software. However, the costs for 
customization, such as tailoring to a user's specifications (other than 
embedded programming options) are costs of modifying the software.
    (ii) Not acquired as part of trade or business. Section 197 
intangibles do not include an interest in computer software that is not 
acquired as part of a purchase of a trade or business.
    (iii) Other exceptions. For other exceptions applicable to computer 
software, see paragraph (a)(3) of this section (relating to otherwise 
deductible amounts) and paragraph (g)(7) of this section (relating to 
amounts properly taken into account in determining the cost of property 
that is not a section 197 intangible).
    (iv) Computer software defined. For purposes of this section, 
computer software is any program or routine (that is, any sequence of 
machine-readable code) that is designed to cause a computer to perform a 
desired function or set of functions, and the documentation required to 
describe and maintain that program or routine. It includes all forms and 
media in which the software is contained, whether written, magnetic, or 
otherwise. Computer programs of all classes, for example, operating 
systems, executive systems, monitors, compilers and translators, 
assembly routines, and utility programs as well as application programs, 
are included. Computer software also includes any incidental and 
ancillary rights that are necessary to effect the acquisition of the 
title to, the ownership of, or the right to use the computer software, 
and that are used only in connection with that specific computer 
software. Such incidental and ancillary rights are not included in the 
definition of trademark or trade name under paragraph (b)(10)(i) of this 
section. For example, a trademark or trade name that is ancillary to the 
ownership or use of a specific computer

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software program in the taxpayer's trade or business and is not acquired 
for the purpose of marketing the computer software is included in the 
definition of computer software and is not included in the definition of 
trademark or trade name. Computer software does not include any data or 
information base described in paragraph (b)(4) of this section unless 
the data base or item is in the public domain and is incidental to a 
computer program. For this purpose, a copyrighted or proprietary data or 
information base is treated as in the public domain if its availability 
through the computer program does not contribute significantly to the 
cost of the program. For example, if a word-processing program includes 
a dictionary feature used to spell-check a document or any portion 
thereof, the entire program (including the dictionary feature) is 
computer software regardless of the form in which the feature is 
maintained or stored.
    (5) Certain interests in films, sound recordings, video tapes, 
books, or other similar property. Section 197 intangibles do not include 
any interest (including an interest as a licensee) in a film, sound 
recording, video tape, book, or other similar property (such as the 
right to broadcast or transmit a live event) if the interest is not 
acquired as part of a purchase of a trade or business. A film, sound 
recording, video tape, book, or other similar property includes any 
incidental and ancillary rights (such as a trademark or trade name) that 
are necessary to effect the acquisition of title to, the ownership of, 
or the right to use the property and are used only in connection with 
that property. Such incidental and ancillary rights are not included in 
the definition of trademark or trade name under paragraph (b)(10)(i) of 
this section. For purposes of this paragraph (c)(5), computer software 
(as defined in paragraph (c)(4)(iv) of this section) is not treated as 
other property similar to a film, sound recording, video tape, or book. 
(See section 167 for amortization of excluded intangible property or 
interests.)
    (6) Certain rights to receive tangible property or services. Section 
197 intangibles do not include any right to receive tangible property or 
services under a contract or from a governmental unit if the right is 
not acquired as part of a purchase of a trade or business. Any right 
that is described in the preceding sentence is not treated as a section 
197 intangible even though the right is also described in section 
197(d)(1)(D) and paragraph (b)(8) of this section (relating to certain 
governmental licenses, permits, and other rights) and even though the 
right fails to meet one or more of the requirements of paragraph (c)(13) 
of this section (relating to certain rights of fixed duration or 
amount). (See Sec. 1.167(a)-14(c) (1) and (3) for applicable rules.)
    (7) Certain interests in patents or copyrights. Section 197 
intangibles do not include any interest (including an interest as a 
licensee) in a patent, patent application, or copyright that is not 
acquired as part of a purchase of a trade or business. A patent or 
copyright includes any incidental and ancillary rights (such as a 
trademark or trade name) that are necessary to effect the acquisition of 
title to, the ownership of, or the right to use the property and are 
used only in connection with that property. Such incidental and 
ancillary rights are not included in the definition of trademark or 
trade name under paragraph (b)(10)(i) of this section. (See Sec. 
1.167(a)-14(c)(4) for applicable rules.)
    (8) Interests under leases of tangible property--(i) Interest as a 
lessor. Section 197 intangibles do not include any interest as a lessor 
under an existing lease or sublease of tangible real or personal 
property. In addition, the cost of acquiring an interest as a lessor in 
connection with the acquisition of tangible property is taken into 
account as part of the cost of the tangible property. For example, if a 
taxpayer acquires a shopping center that is leased to tenants operating 
retail stores, any portion of the purchase price attributable to 
favorable lease terms is taken into account as part of the basis of the 
shopping center and in determining the depreciation deduction allowed 
with respect to the shopping center. (See section 167(c)(2).)
    (ii) Interest as a lessee. Section 197 intangibles do not include 
any interest as a lessee under an existing lease of tangible real or 
personal property. For

[[Page 299]]

this purpose, an airline lease of an airport passenger or cargo gate is 
a lease of tangible property. The cost of acquiring such an interest is 
taken into account under section 178 and Sec. 1.162-11(a). If an 
interest as a lessee under a lease of tangible property is acquired in a 
transaction with any other intangible property, a portion of the total 
purchase price may be allocable to the interest as a lessee based on all 
of the relevant facts and circumstances.
    (9) Interests under indebtedness--(i) In general. Section 197 
intangibles do not include any interest (whether as a creditor or 
debtor) under an indebtedness in existence when the interest was 
acquired. Thus, for example, the value attributable to the assumption of 
an indebtedness with a below-market interest rate is not amortizable 
under section 197. In addition, the premium paid for acquiring a debt 
instrument with an above-market interest rate is not amortizable under 
section 197. See section 171 for rules concerning the treatment of 
amortizable bond premium.
    (ii) Exceptions. For purposes of this paragraph (c)(9), an interest 
under an existing indebtedness does not include the deposit base (and 
other similar items) of a financial institution. An interest under an 
existing indebtedness includes mortgage servicing rights, however, to 
the extent the rights are stripped coupons under section 1286.
    (10) Professional sports franchises. Section 197 intangibles do not 
include any franchise to engage in professional baseball, basketball, 
football, or any other professional sport, and any item (even though 
otherwise qualifying as a section 197 intangible) acquired in connection 
with such a franchise.
    (11) Mortgage servicing rights. Section 197 intangibles do not 
include any right described in section 197(e)(7) (concerning rights to 
service indebtedness secured by residential real property that are not 
acquired as part of a purchase of a trade or business). (See Sec. 
1.167(a)-14(d) for applicable rules.)
    (12) Certain transaction costs. Section 197 intangibles do not 
include any fees for professional services and any transaction costs 
incurred by parties to a transaction in which all or any portion of the 
gain or loss is not recognized under part III of subchapter C of the 
Internal Revenue Code.
    (13) Rights of fixed duration or amount. (i) Section 197 intangibles 
do not include any right under a contract or any license, permit, or 
other right granted by a governmental unit if the right--
    (A) Is acquired in the ordinary course of a trade or business (or an 
activity described in section 212) and not as part of a purchase of a 
trade or business;
    (B) Is not described in section 197(d)(1)(A), (B), (E), or (F);
    (C) Is not a customer-based intangible, a customer-related 
information base, or any other similar item; and
    (D) Either--
    (1) Has a fixed duration of less than 15 years; or
    (2) Is fixed as to amount and the adjusted basis thereof is properly 
recoverable (without regard to this section) under a method similar to 
the unit-of-production method.
    (ii) See Sec. 1.167(a)-14(c)(2) and (3) for applicable rules.
    (d) Amortizable section 197 intangibles--(1) Definition. Except as 
otherwise provided in this paragraph (d), the term amortizable section 
197 intangible means any section 197 intangible acquired after August 
10, 1993 (or after July 25, 1991, if a valid retroactive election under 
Sec. 1.197-1T has been made), and held in connection with the conduct 
of a trade or business or an activity described in section 212.
    (2) Exception for self-created intangibles--(i) In general. Except 
as provided in paragraph (d)(2)(iii) of this section, amortizable 
section 197 intangibles do not include any section 197 intangible 
created by the taxpayer (a self-created intangible).
    (ii) Created by the taxpayer--(A) Defined. A section 197 intangible 
is created by the taxpayer to the extent the taxpayer makes payments or 
otherwise incurs costs for its creation, production, development, or 
improvement, whether the actual work is performed by the taxpayer or by 
another person under a contract with the taxpayer entered into before 
the contracted creation, production, development, or improvement occurs. 
For example, a technological process developed specifically for a 
taxpayer under an arrangement

[[Page 300]]

with another person pursuant to which the taxpayer retains all rights to 
the process is created by the taxpayer.
    (B) Contracts for the use of intangibles. A section 197 intangible 
is not a self-created intangible to the extent that it results from the 
entry into (or renewal of) a contract for the use of an existing section 
197 intangible. Thus, for example, the exception for self-created 
intangibles does not apply to capitalized costs, such as legal and other 
professional fees, incurred by a licensee in connection with the entry 
into (or renewal of) a contract for the use of know-how or similar 
property.
    (C) Improvements and modifications. If an existing section 197 
intangible is improved or otherwise modified by the taxpayer or by 
another person under a contract with the taxpayer, the existing 
intangible and the capitalized costs (if any) of the improvements or 
other modifications are each treated as a separate section 197 
intangible for purposes of this paragraph (d).
    (iii) Exceptions. (A) The exception for self-created intangibles 
does not apply to any section 197 intangible described in section 
197(d)(1)(D) (relating to licenses, permits or other rights granted by a 
governmental unit), 197(d)(1)(E) (relating to covenants not to compete), 
or 197(d)(1)(F) (relating to franchises, trademarks, and trade names). 
Thus, for example, capitalized costs incurred in the development, 
registration, or defense of a trademark or trade name do not qualify for 
the exception and are amortized over 15 years under section 197.
    (B) The exception for self-created intangibles does not apply to any 
section 197 intangible created in connection with the purchase of a 
trade or business (as defined in paragraph (e) of this section).
    (C) If a taxpayer disposes of a self-created intangible and 
subsequently reacquires the intangible in an acquisition described in 
paragraph (h)(5)(ii) of this section, the exception for self-created 
intangibles does not apply to the reacquired intangible.
    (3) Exception for property subject to anti-churning rules. 
Amortizable section 197 intangibles do not include any property to which 
the anti-churning rules of section 197(f)(9) and paragraph (h) of this 
section apply.
    (e) Purchase of a trade or business. Several of the exceptions in 
section 197 apply only to property that is not acquired in (or created 
in connection with) a transaction or series of related transactions 
involving the acquisition of assets constituting a trade or business or 
a substantial portion thereof. Property acquired in (or created in 
connection with) such a transaction or series of related transactions is 
referred to in this section as property acquired as part of (or created 
in connection with) a purchase of a trade or business. For purposes of 
section 197 and this section, the applicability of the limitation is 
determined under the following rules:
    (1) Goodwill or going concern value. An asset or group of assets 
constitutes a trade or business or a substantial portion thereof if 
their use would constitute a trade or business under section 1060 (that 
is, if goodwill or going concern value could under any circumstances 
attach to the assets). See Sec. 1.1060-1(b)(2). For this purpose, all 
the facts and circumstances, including any employee relationships that 
continue (or covenants not to compete that are entered into) as part of 
the transfer of the assets, are taken into account in determining 
whether goodwill or going concern value could attach to the assets.
    (2) Franchise, trademark, or trade name--(i) In general. The 
acquisition of a franchise, trademark, or trade name constitutes the 
acquisition of a trade or business or a substantial portion thereof.
    (ii) Exceptions. For purposes of this paragraph (e)(2)--
    (A) A trademark or trade name is disregarded if it is included in 
computer software under paragraph (c)(4) of this section or in an 
interest in a film, sound recording, video tape, book, or other similar 
property under paragraph (c)(5) of this section;
    (B) A franchise, trademark, or trade name is disregarded if its 
value is nominal or the taxpayer irrevocably disposes of it immediately 
after its acquisition; and
    (C) The acquisition of a right or interest in a trademark or trade 
name is

[[Page 301]]

disregarded if the grant of the right or interest is not, under the 
principles of section 1253, a transfer of all substantial rights to such 
property or of an undivided interest in all substantial rights to such 
property.
    (3) Acquisitions to be included. The assets acquired in a 
transaction (or series of related transactions) include only assets 
(including a beneficial or other indirect interest in assets where the 
interest is of a type described in paragraph (c)(1) of this section) 
acquired by the taxpayer and persons related to the taxpayer from 
another person and persons related to that other person. For purposes of 
this paragraph (e)(3), persons are related only if their relationship is 
described in section 267(b) or 707(b) or they are engaged in trades or 
businesses under common control within the meaning of section 41(f)(1).
    (4) Substantial portion. The determination of whether acquired 
assets constitute a substantial portion of a trade or business is to be 
based on all of the facts and circumstances, including the nature and 
the amount of the assets acquired as well as the nature and amount of 
the assets retained by the transferor. The value of the assets acquired 
relative to the value of the assets retained by the transferor is not 
determinative of whether the acquired assets constitute a substantial 
portion of a trade or business.
    (5) Deemed asset purchases under section 338. A qualified stock 
purchase that is treated as a purchase of assets under section 338 is 
treated as a transaction involving the acquisition of assets 
constituting a trade or business only if the direct acquisition of the 
assets of the corporation would have been treated as the acquisition of 
assets constituting a trade or business or a substantial portion 
thereof.
    (6) Mortgage servicing rights. Mortgage servicing rights acquired in 
a transaction or series of related transactions are disregarded in 
determining for purposes of paragraph (c)(11) of this section whether 
the assets acquired in the transaction or transactions constitute a 
trade or business or substantial portion thereof.
    (7) Computer software acquired for internal use. Computer software 
acquired in a transaction or series of related transactions solely for 
internal use in an existing trade or business is disregarded in 
determining for purposes of paragraph (c)(4) of this section whether the 
assets acquired in the transaction or series of related transactions 
constitute a trade or business or substantial portion thereof.
    (f) Computation of amortization deduction--(1) In general. Except as 
provided in paragraph (f)(2) of this section, the amortization deduction 
allowable under section 197(a) is computed as follows:
    (i) The basis of an amortizable section 197 intangible is amortized 
ratably over the 15-year period beginning on the later of--
    (A) The first day of the month in which the property is acquired; or
    (B) In the case of property held in connection with the conduct of a 
trade or business or in an activity described in section 212, the first 
day of the month in which the conduct of the trade or business or the 
activity begins.
    (ii) Except as otherwise provided in this section, basis is 
determined under section 1011 and salvage value is disregarded.
    (iii) Property is not eligible for amortization in the month of 
disposition.
    (iv) The amortization deduction for a short taxable year is based on 
the number of months in the short taxable year.
    (2) Treatment of contingent amounts--(i) Amounts added to basis 
during 15-year period. Any amount that is properly included in the basis 
of an amortizable section 197 intangible after the first month of the 
15-year period described in paragraph (f)(1)(i) of this section and 
before the expiration of that period is amortized ratably over the 
remainder of the 15-year period. For this purpose, the remainder of the 
15-year period begins on the first day of the month in which the basis 
increase occurs.
    (ii) Amounts becoming fixed after expiration of 15-year period. Any 
amount that is not properly included in the basis of an amortizable 
section 197 intangible until after the expiration of

[[Page 302]]

the 15-year period described in paragraph (f)(1)(i) of this section is 
amortized in full immediately upon the inclusion of the amount in the 
basis of the intangible.
    (iii) Rules for including amounts in basis. See Sec. Sec. 1.1275-
4(c)(4) and 1.483-4(a) for rules governing the extent to which 
contingent amounts payable under a debt instrument given in 
consideration for the sale or exchange of an amortizable section 197 
intangible are treated as payments of principal and the time at which 
the amount treated as principal is included in basis. See Sec. 1.461-
1(a)(1) and (2) for rules governing the time at which other contingent 
amounts are taken into account in determining the basis of an 
amortizable section 197 intangible.
    (3) Basis determinations for certain assets--(i) Covenants not to 
compete. In the case of a covenant not to compete or other similar 
arrangement described in paragraph (b)(9) of this section (a covenant), 
the amount chargeable to capital account includes, except as provided in 
this paragraph (f)(3), all amounts that are required to be paid pursuant 
to the covenant, whether or not any such amount would be deductible 
under section 162 if the covenant were not a section 197 intangible.
    (ii) Contracts for the use of section 197 intangibles; acquired as 
part of a trade or business--(A) In general. Except as provided in this 
paragraph (f)(3), any amount paid or incurred by the transferee on 
account of the transfer of a right or term interest described in 
paragraph (b)(11) of this section (relating to contracts for the use of, 
and term interests in, section 197 intangibles) by the owner of the 
property to which such right or interest relates and as part of a 
purchase of a trade or business is chargeable to capital account, 
whether or not such amount would be deductible under section 162 if the 
property were not a section 197 intangible.
    (B) Know-how and certain information base. The amount chargeable to 
capital account with respect to a right or term interest described in 
paragraph (b)(11) of this section is determined without regard to the 
rule in paragraph (f)(3)(ii)(A) of this section if the right or interest 
relates to property (other than a customer-related information base) 
described in paragraph (b)(4) or (5) of this section and the acquiring 
taxpayer establishes that--
    (1) The transfer of the right or interest is not, under the 
principles of section 1235, a transfer of all substantial rights to such 
property or of an undivided interest in all substantial rights to such 
property; and
    (2) The right or interest was transferred for an arm's-length 
consideration.
    (iii) Contracts for the use of section 197 intangibles; not acquired 
as part of a trade or business. The transfer of a right or term interest 
described in paragraph (b)(11) of this section by the owner of the 
property to which such right or interest relates but not as part of a 
purchase of a trade or business will be closely scrutinized under the 
principles of section 1235 for purposes of determining whether the 
transfer is a sale or exchange and, accordingly, whether amounts paid on 
account of the transfer are chargeable to capital account. If under the 
principles of section 1235 the transaction is not a sale or exchange, 
amounts paid on account of the transfer are not chargeable to capital 
account under this paragraph (f)(3).
    (iv) Applicable rules--(A) Franchises, trademarks, and trade names. 
For purposes of this paragraph (f)(3), section 197 intangibles described 
in paragraph (b)(11) of this section do not include any property that is 
also described in paragraph (b)(10) of this section (relating to 
franchises, trademarks, and trade names).
    (B) Certain amounts treated as payable under a debt instrument--(1) 
In general. For purposes of applying any provision of the Internal 
Revenue Code to a person making payments of amounts that are otherwise 
chargeable to capital account under this paragraph (f)(3) and are 
payable after the acquisition of the section 197 intangible to which 
they relate, such amounts are treated as payable under a debt instrument 
given in consideration for the sale or exchange of the section 197 
intangible.
    (2) Rights granted by governmental units. For purposes of applying 
any provision of the Internal Revenue Code to any amounts that are 
otherwise

[[Page 303]]

chargeable to capital account with respect to a license, permit, or 
other right described in paragraph (b)(8) of this section (relating to 
rights granted by a governmental unit or agency or instrumentality 
thereof) and are payable after the acquisition of the section 197 
intangible to which they relate, such amounts are treated, except as 
provided in paragraph (f)(4)(i) of this section (relating to renewal 
transactions), as payable under a debt instrument given in consideration 
for the sale or exchange of the section 197 intangible.
    (3) Treatment of other parties to transaction. No person shall be 
treated as having sold, exchanged, or otherwise disposed of property in 
a transaction for purposes of any provision of the Internal Revenue Code 
solely by reason of the application of this paragraph (f)(3) to any 
other party to the transaction.
    (4) Basis determinations in certain transactions--(i) Certain 
renewal transactions. The costs paid or incurred for the renewal of a 
franchise, trademark, or trade name or any license, permit, or other 
right granted by a governmental unit or an agency or instrumentality 
thereof are amortized over the 15-year period that begins with the month 
of renewal. Any costs paid or incurred for the issuance, or earlier 
renewal, continue to be taken into account over the remaining portion of 
the amortization period that began at the time of the issuance, or 
earlier renewal. Any amount paid or incurred for the protection, 
expansion, or defense of a trademark or trade name and chargeable to 
capital account is treated as an amount paid or incurred for a renewal.
    (ii) Transactions subject to section 338 or 1060. In the case of a 
section 197 intangible deemed to have been acquired as the result of a 
qualified stock purchase within the meaning of section 338(d)(3), the 
basis shall be determined pursuant to section 338(b)(5) and the 
regulations thereunder. In the case of a section 197 intangible acquired 
in an applicable asset acquisition within the meaning of section 
1060(c), the basis shall be determined pursuant to section 1060(a) and 
the regulations thereunder.
    (iii) Certain reinsurance transactions. See paragraph (g)(5)(ii) of 
this section for special rules regarding the adjusted basis of an 
insurance contract acquired through an assumption reinsurance 
transaction.
    (g) Special rules--(1) Treatment of certain dispositions--(i) Loss 
disallowance rules--(A) In general. No loss is recognized on the 
disposition of an amortizable section 197 intangible if the taxpayer has 
any retained intangibles. The retained intangibles with respect to the 
disposition of any amortizable section 197 intangible (the transferred 
intangible) are all amortizable section 197 intangibles, or rights to 
use or interests (including beneficial or other indirect interests) in 
amortizable section 197 intangibles (including the transferred 
intangible) that were acquired in the same transaction or series of 
related transactions as the transferred intangible and are retained 
after its disposition. Except as otherwise provided in paragraph 
(g)(1)(iv)(B) of this section, the adjusted basis of each of the 
retained intangibles is increased by the product of--
    (1) The loss that is not recognized solely by reason of this rule; 
and
    (2) A fraction, the numerator of which is the adjusted basis of the 
retained intangible on the date of the disposition and the denominator 
of which is the total adjusted bases of all the retained intangibles on 
that date.
    (B) Abandonment or worthlessness. The abandonment of an amortizable 
section 197 intangible, or any other event rendering an amortizable 
section 197 intangible worthless, is treated as a disposition of the 
intangible for purposes of this paragraph (g)(1), and the abandoned or 
worthless intangible is disregarded (that is, it is not treated as a 
retained intangible) for purposes of applying this paragraph (g)(1) to 
the subsequent disposition of any other amortizable section 197 
intangible.
    (C) Certain nonrecognition transfers. The loss disallowance rule in 
paragraph (g)(1)(i)(A) of this section also applies when a taxpayer 
transfers an amortizable section 197 intangible from an acquired trade 
or business in a transaction in which the intangible is transferred 
basis property and, after the

[[Page 304]]

transfer, retains other amortizable section 197 intangibles from the 
trade or business. Thus, for example, the transfer of an amortizable 
section 197 intangible to a corporation in exchange for stock in the 
corporation in a transaction described in section 351, or to a 
partnership in exchange for an interest in the partnership in a 
transaction described in section 721, when other amortizable section 197 
intangibles acquired in the same transaction are retained, followed by a 
sale of the stock or partnership interest received, will not avoid the 
application of the loss disallowance provision to the extent the 
adjusted basis of the transferred intangible at the time of the sale 
exceeds its fair market value at that time.
    (ii) Separately acquired property. Paragraph (g)(1)(i) of this 
section does not apply to an amortizable section 197 intangible that is 
not acquired in a transaction or series of related transactions in which 
the taxpayer acquires other amortizable section 197 intangibles (a 
separately acquired intangible). Consequently, a loss may be recognized 
upon the disposition of a separately acquired amortizable section 197 
intangible. However, the termination or worthlessness of only a portion 
of an amortizable section 197 intangible is not the disposition of a 
separately acquired intangible. For example, neither the loss of several 
customers from an acquired customer list nor the worthlessness of only 
some information from an acquired data base constitutes the disposition 
of a separately acquired intangible.
    (iii) Disposition of a covenant not to compete. If a covenant not to 
compete or any other arrangement having substantially the same effect is 
entered into in connection with the direct or indirect acquisition of an 
interest in one or more trades or businesses, the disposition or 
worthlessness of the covenant or other arrangement will not be 
considered to occur until the disposition or worthlessness of all 
interests in those trades or businesses. For example, a covenant not to 
compete entered into in connection with the purchase of stock continues 
to be amortized ratably over the 15-year recovery period (even after the 
covenant expires or becomes worthless) unless all the trades or 
businesses in which an interest was acquired through the stock purchase 
(or all the purchaser's interests in those trades or businesses) also 
are disposed of or become worthless.
    (iv) Taxpayers under common control--(A) In general. Except as 
provided in paragraph (g)(1)(iv)(B) of this section, all persons that 
would be treated as a single taxpayer under section 41(f)(1) are treated 
as a single taxpayer under this paragraph (g)(1). Thus, for example, a 
loss is not recognized on the disposition of an amortizable section 197 
intangible by a member of a controlled group of corporations (as defined 
in section 41(f)(5)) if, after the disposition, another member retains 
other amortizable section 197 intangibles acquired in the same 
transaction as the amortizable section 197 intangible that has been 
disposed of.
    (B) Treatment of disallowed loss. If retained intangibles are held 
by a person other than the person incurring the disallowed loss, only 
the adjusted basis of intangibles retained by the person incurring the 
disallowed loss is increased, and only the adjusted basis of those 
intangibles is included in the denominator of the fraction described in 
paragraph (g)(1)(i)(A) of this section. If none of the retained 
intangibles are held by the person incurring the disallowed loss, the 
loss is allowed ratably, as a deduction under section 197, over the 
remainder of the period during which the intangible giving rise to the 
loss would have been amortizable, except that any remaining disallowed 
loss is allowed in full on the first date on which all other retained 
intangibles have been disposed of or become worthless.
    (2) Treatment of certain nonrecognition and exchange transactions--
(i) Relationship to anti-churning rules. This paragraph (g)(2) provides 
rules relating to the treatment of section 197 intangibles acquired in 
certain transactions. If these rules apply to a section 197(f)(9) 
intangible (within the meaning of paragraph (h)(1)(i) of this section), 
the intangible is, notwithstanding its treatment under this paragraph 
(g)(2), treated as an amortizable section 197 intangible only to the 
extent permitted under paragraph (h) of this section.

[[Page 305]]

    (ii) Treatment of nonrecognition and exchange transactions 
generally--(A) Transfer disregarded. If a section 197 intangible is 
transferred in a transaction described in paragraph (g)(2)(ii)(C) of 
this section, the transfer is disregarded in determining--
    (1) Whether, with respect to so much of the intangible's basis in 
the hands of the transferee as does not exceed its basis in the hands of 
the transferor, the intangible is an amortizable section 197 intangible; 
and
    (2) The amount of the deduction under section 197 with respect to 
such basis.
    (B) Application of general rule. If the intangible described in 
paragraph (g)(2)(ii)(A) of this section was an amortizable section 197 
intangible in the hands of the transferor, the transferee will continue 
to amortize its adjusted basis, to the extent it does not exceed the 
transferor's adjusted basis, ratably over the remainder of the 
transferor's 15-year amortization period. If the intangible was not an 
amortizable section 197 intangible in the hands of the transferor, the 
transferee's adjusted basis, to the extent it does not exceed the 
transferor's adjusted basis, cannot be amortized under section 197. In 
either event, the intangible is treated, with respect to so much of its 
adjusted basis in the hands of the transferee as exceeds its adjusted 
basis in the hands of the transferor, in the same manner for purposes of 
section 197 as an intangible acquired from the transferor in a 
transaction that is not described in paragraph (g)(2)(ii)(C) of this 
section. The rules of this paragraph (g)(2)(ii) also apply to any 
subsequent transfers of the intangible in a transaction described in 
paragraph (g)(2)(ii)(C) of this section.
    (C) Transactions covered. The transactions described in this 
paragraph (g)(2)(ii)(C) are--
    (1) Any transaction described in section 332, 351, 361, 721, or 731; 
and
    (2) Any transaction between corporations that are members of the 
same consolidated group immediately after the transaction.
    (iii) Certain exchanged-basis property. This paragraph (g)(2)(iii) 
applies to property that is acquired in a transaction subject to section 
1031 or 1033 and is permitted to be acquired without recognition of gain 
(replacement property). Replacement property is treated as if it were 
the property by reference to which its basis is determined (the 
predecessor property) in determining whether, with respect to so much of 
its basis as does not exceed the basis of the predecessor property, the 
replacement property is an amortizable section 197 intangible and the 
amortization period under section 197 with respect to such basis. Thus, 
if the predecessor property was an amortizable section 197 intangible, 
the taxpayer will amortize the adjusted basis of the replacement 
property, to the extent it does not exceed the adjusted basis of the 
predecessor property, ratably over the remainder of the 15-year 
amortization period for the predecessor property. If the predecessor 
property was not an amortizable section 197 intangible, the adjusted 
basis of the replacement property, to the extent it does not exceed the 
adjusted basis of the predecessor property, may not be amortized under 
section 197. In either event, the replacement property is treated, with 
respect to so much of its adjusted basis as exceeds the adjusted basis 
of the predecessor property, in the same manner for purposes of section 
197 as property acquired from the transferor in a transaction that is 
not subject to section 1031 or 1033.
    (iv) Transfers under section 708(b)(1)--(A) In general. Paragraph 
(g)(2)(ii) of this section applies to transfers of section 197 
intangibles that occur or are deemed to occur by reason of the 
termination of a partnership under section 708(b)(1).
    (B) Termination by sale or exchange of interest. In applying 
paragraph (g)(2)(ii) of this section to a partnership that is terminated 
pursuant to section 708(b)(1)(B) (relating to deemed terminations from 
the sale or exchange of an interest), the terminated partnership is 
treated as the transferor and the new partnership is treated as the 
transferee with respect to any section 197 intangible held by the 
terminated partnership immediately preceding the termination. (See 
paragraph (g)(3) of this section for the treatment of increases in the 
bases of property of the terminated partnership under section 743(b).)

[[Page 306]]

    (C) Other terminations. In applying paragraph (g)(2)(ii) of this 
section to a partnership that is terminated pursuant to section 
708(b)(1)(A) (relating to cessation of activities by a partnership), the 
terminated partnership is treated as the transferor and the distributee 
partner is treated as the transferee with respect to any section 197 
intangible held by the terminated partnership immediately preceding the 
termination.
    (3) Increase in the basis of partnership property under section 
732(b), 734(b), 743(b), or 732(d). Any increase in the adjusted basis of 
a section 197 intangible under sections 732(b) or 732(d) (relating to a 
partner's basis in property distributed by a partnership), section 
734(b) (relating to the optional adjustment to the basis of 
undistributed partnership property after a distribution of property to a 
partner), or section 743(b) (relating to the optional adjustment to the 
basis of partnership property after transfer of a partnership interest) 
is treated as a separate section 197 intangible. For purposes of 
determining the amortization period under section 197 with respect to 
the basis increase, the intangible is treated as having been acquired at 
the time of the transaction that causes the basis increase, except as 
provided in Sec. 1.743-1(j)(4)(i)(B)(2). The provisions of paragraph 
(f)(2) of this section apply to the extent that the amount of the basis 
increase is determined by reference to contingent payments. For purposes 
of the effective date and anti-churning provisions (paragraphs (l)(1) 
and (h) of this section) for a basis increase under section 732(d), the 
intangible is treated as having been acquired by the transferee partner 
at the time of the transfer of the partnership interest described in 
section 732(d).
    (4) Section 704(c) allocations--(i) Allocations where the intangible 
is amortizable by the contributor. To the extent that the intangible was 
an amortizable section 197 intangible in the hands of the contributing 
partner, a partnership may make allocations of amortization deductions 
with respect to the intangible to all of its partners under any of the 
permissible methods described in the regulations under section 704(c). 
See Sec. 1.704-3.
    (ii) Allocations where the intangible is not amortizable by the 
contributor. To the extent that the intangible was not an amortizable 
section 197 intangible in the hands of the contributing partner, the 
intangible is not amortizable under section 197 by the partnership. 
However, if a partner contributes a section 197 intangible to a 
partnership and the partnership adopts the remedial allocation method 
for making section 704(c) allocations of amortization deductions, the 
partnership generally may make remedial allocations of amortization 
deductions with respect to the contributed section 197 intangible in 
accordance with Sec. 1.704-3(d). See paragraph (h)(12) of this section 
to determine the application of the anti-churning rules in the context 
of remedial allocations.
    (5) Treatment of certain insurance contracts acquired in an 
assumption reinsurance transaction--(i) In general. Section 197 
generally applies to insurance and annuity contracts acquired from 
another person through an assumption reinsurance transaction. See Sec. 
1.809-5(a)(7)(ii) for the definition of assumption reinsurance. The 
transfer of insurance or annuity contracts and the assumption of related 
liabilities deemed to occur by reason of a section 338 election for a 
target insurance company is treated as an assumption reinsurance 
transaction. The transfer of a reinsurance contract by a reinsurer 
(transferor) to another reinsurer (acquirer) is treated as an assumption 
reinsurance transaction if the transferor's obligations are extinguished 
as a result of the transaction.
    (ii) Determination of adjusted basis of amortizable section 197 
intangible resulting from an assumption reinsurance transaction--(A) In 
general. Section 197(f)(5) determines the basis of an amortizable 
section 197 intangible for insurance or annuity contracts acquired in an 
assumption reinsurance transaction. The basis of such intangible is the 
excess, if any, of--
    (1) The amount paid or incurred by the acquirer (reinsurer) under 
the assumption reinsurance transaction; over
    (2) The amount, if any, required to be capitalized under section 848 
in connection with such transaction.

[[Page 307]]

    (B) Amount paid or incurred by acquirer (reinsurer) under the 
assumption reinsurance transaction. The amount paid or incurred by the 
acquirer (reinsurer) under the assumption reinsurance transaction is--
    (1) In a deemed asset sale resulting from an election under section 
338, the amount of the adjusted grossed-up basis (AGUB) allocable 
thereto (see Sec. Sec. 1.338-6 and 1.338-11(b)(2));
    (2) In an applicable asset acquisition within the meaning of section 
1060, the amount of the consideration allocable thereto (see Sec. Sec. 
1.338-6, 1.338-11(b)(2), and 1.1060-1(c)(5)); and
    (3) In any other transaction, the excess of the increase in the 
reinsurer's tax reserves resulting from the transaction (computed in 
accordance with sections 807, 832(b)(4)(B), and 846) over the value of 
the net assets received from the ceding company in the transaction.
    (C) Amount required to be capitalized under section 848 in 
connection with the transaction--(1) In general. The amount required to 
be capitalized under section 848 for specified insurance contracts (as 
defined in section 848(e)) acquired in an assumption reinsurance 
transaction is the lesser of--
    (i) The reinsurer's required capitalization amount for the 
assumption reinsurance transaction; or
    (ii) The reinsurer's general deductions (as defined in section 
848(c)(2)) allocable to the transaction.
    (2) Required capitalization amount. The reinsurer determines the 
required capitalization amount for an assumption reinsurance transaction 
by multiplying the net positive or net negative consideration for the 
transaction by the applicable percentage set forth in section 848(c)(1) 
for the category of specified insurance contracts acquired in the 
transaction. See Sec. 1.848-2(g)(5). If more than one category of 
specified insurance contracts is acquired in an assumption reinsurance 
transaction, the required capitalization amount for each category is 
determined as if the transfer of the contracts in that category were 
made under a separate assumption reinsurance transaction. See Sec. 
1.848-2(f)(7).
    (3) General deductions allocable to the assumption reinsurance 
transaction. The reinsurer determines the general deductions allocable 
to the assumption reinsurance transaction in accordance with the 
procedure set forth in Sec. 1.848-2(g)(6). Accordingly, the reinsurer 
must allocate its general deductions to the amount required under 
section 848(c)(1) on specified insurance contracts that the reinsurer 
has issued directly before determining the general deductions allocable 
to the assumption reinsurance transaction. For purposes of allocating 
its general deductions under Sec. 1.848-2(g)(6), the reinsurer includes 
premiums received on the acquired specified insurance contracts after 
the assumption reinsurance transaction in determining the amount 
required under section 848(c)(1) on specified insurance contracts that 
the reinsurer has issued directly. If the reinsurer has entered into 
multiple reinsurance agreements during the taxable year, the reinsurer 
determines the general deductions allocable to each reinsurance 
agreement (including the assumption reinsurance transaction) by 
allocating the general deductions allocable to reinsurance agreements 
under Sec. 1.848-2(g)(6) to each reinsurance agreement with a positive 
required capitalization amount.
    (4) Treatment of a capitalization shortfall allocable to the 
reinsurance agreement--(i) In general. The reinsurer determines any 
capitalization shortfall allocable to the assumption reinsurance 
transaction in the manner provided in Sec. Sec. 1.848-2(g)(4) and 
1.848-2(g)(7). If the reinsurer has a capitalization shortfall allocable 
to the assumption reinsurance transaction, the ceding company must 
reduce the net negative consideration (as determined under Sec. 1.848-
2(f)(2)) for the transaction by the amount described in Sec. 1.848-
2(g)(3) unless the parties make the election provided in Sec. 1.848-
2(g)(8) to determine the amounts capitalized under section 848 in 
connection with the transaction without regard to the general deductions 
limitation of section 848(c)(2).
    (ii) Treatment of additional capitalized amounts as the result of an 
election under Sec. 1.848-2(g)(8). The additional amounts capitalized 
by the reinsurer as the result of the election under Sec. 1.848-2(g)(8)

[[Page 308]]

reduce the adjusted basis of any amortizable section 197 intangible with 
respect to specified insurance contracts acquired in the assumption 
reinsurance transaction. If the additional capitalized amounts exceed 
the adjusted basis of the amortizable section 197 intangible, the 
reinsurer must reduce its deductions under section 805 or section 832 by 
the amount of such excess. The additional capitalized amounts are 
treated as specified policy acquisition expenses attributable to the 
premiums and other consideration on the assumption reinsurance 
transaction and are deducted ratably over a 120-month period as provided 
under section 848(a)(2).
    (5) Cross references and special rules. In general, for rules 
applicable to the determination of specified policy acquisition 
expenses, net premiums, and net consideration, see section 848(c) and 
(d), and Sec. 1.848-2(a) and (f). However, the following special rules 
apply for purposes of this paragraph (g)(5)(ii)(C)--
    (i) The amount required to be capitalized under section 848 in 
connection with the assumption reinsurance transaction cannot be less 
than zero;
    (ii) For purposes of determining the company's general deductions 
under section 848(c)(2) for the taxable year of the assumption 
reinsurance transaction, the reinsurer takes into account a tentative 
amortization deduction under section 197(a) as if the entire amount paid 
or incurred by the reinsurer for the specified insurance contracts were 
allocated to an amortizable section 197 intangible with respect to 
insurance contracts acquired in an assumption reinsurance transaction; 
and
    (iii) Any reduction of specified policy acquisition expenses 
pursuant to an election under Sec. 1.848-2(i)(4) (relating to an 
assumption reinsurance transaction with an insolvent insurance company) 
is disregarded.
    (D) Examples. The following examples illustrate the principles of 
this paragraph (g)(5)(ii):

    Example 1. (i) Facts. On January 15, 2006, P acquires all of the 
stock of T, an insurance company, in a qualified stock purchase and 
makes a section 338 election for T. T issues individual life insurance 
contracts which are specified insurance contracts as defined in section 
848(e)(1). P and new T are calendar year taxpayers. Under Sec. Sec. 
1.338-6 and 1.338-11(b)(2), the amount of AGUB allocated to old T's 
individual life insurance contracts is $300,000. On the acquisition 
date, the tax reserves for old T's individual life insurance contracts 
are $2,000,000. After the acquisition date, new T receives $1,000,000 of 
net premiums with respect to new and renewal individual life insurance 
contracts and incurs $100,000 of general deductions under section 
848(c)(2) through December 31, 2006. New T engages in no other 
reinsurance transactions other than the assumption reinsurance 
transaction treated as occurring by reason of the section 338 election.
    (ii) Analysis. The transfer of insurance contracts and the 
assumption of related liabilities deemed to occur by reason of the 
election under section 338 is treated as an assumption reinsurance 
transaction. New T determines the adjusted basis under section 197(f)(5) 
for the life insurance contracts acquired in the assumption reinsurance 
transaction as follows. The amount paid or incurred for the individual 
life insurance contracts is $300,000. To determine the amount required 
to be capitalized under section 848 in connection with the assumption 
reinsurance transaction, new T compares the required capitalization 
amount for the assumption reinsurance transaction with the general 
deductions allocable to the transaction. The required capitalization 
amount for the assumption reinsurance transaction is $130,900, which is 
determined by multiplying the $1,700,000 net positive consideration for 
the transaction ($2,000,000 reinsurance premium less $300,000 ceding 
commission) by the applicable percentage under section 848(c)(1) for the 
acquired individual life insurance contracts (7.7 percent). To determine 
its general deductions, new T takes into account a tentative 
amortization deduction under section 197(a) as if the entire amount paid 
or incurred for old T's individual life insurance contracts ($300,000) 
were allocable to an amortizable section 197 intangible with respect to 
insurance contracts acquired in the assumption reinsurance transaction. 
Accordingly, for the year of the assumption reinsurance transaction, new 
T is treated as having general deductions under section 848(c)(2) of 
$120,000 ($100,000 + $300,000/15). Under Sec. 1.848-2(g)(6), these 
general deductions are first allocated to the $77,000 capitalization 
requirement for new T's directly written business ($1,000,000 x .077). 
Thus, $43,000 ($120,000 - $77,000) of the general deductions are 
allocable to the assumption reinsurance transaction. Because the general 
deductions allocable to the assumption reinsurance transaction ($43,000) 
are less than the required capitalization amount for the transaction 
($130,900), new T has a capitalization shortfall of $87,900 ($130,900 - 
$43,000) with regard to the transaction. Under Sec. 1.848-2(g), this 
capitalization shortfall would cause old T to reduce the net negative 
consideration taken into account with respect to the assumption

[[Page 309]]

reinsurance transaction by $1,141,558 ($87,900 / .077) unless the 
parties make the election under Sec. 1.848-2(g)(8) to capitalize 
specified policy acquisition expenses in connection with the assumption 
reinsurance transaction without regard to the general deductions 
limitation. If the parties make the election, the amount capitalized by 
new T under section 848 in connection with the assumption reinsurance 
transaction would be $130,900. The $130,900 capitalized by new T under 
section 848 would reduce new T's adjusted basis of the amortizable 
section 197 intangible with respect to the specified insurance contracts 
acquired in the assumption reinsurance transaction. Accordingly, new T 
would have an adjusted basis under section 197(f)(5) with respect to the 
individual life insurance contracts acquired from old T of $169,100 
($300,000 - $130,900). New T's actual amortization deduction under 
section 197(a) with respect to the amortizable section 197 intangible 
for insurance contracts acquired in the assumption reinsurance 
transaction would be $11,273 ($169,100 / 15).
    Example 2. (i) Facts. The facts are the same as Example 1, except 
that T only issues accident and health insurance contracts that are 
qualified long-term care contracts under section 7702B. Under section 
7702B(a)(5), T's qualified long-term care insurance contracts are 
treated as guaranteed renewable accident and health insurance contracts, 
and, therefore, are considered specified insurance contracts under 
section 848(e)(1). Under Sec. Sec. 1.338-6 and 1.338-11(b)(2), the 
amount of AGUB allocable to T's qualified long-term care insurance 
contracts is $250,000. The amount of T's tax reserves for the qualified 
long-term care contracts on the acquisition date is $7,750,000. 
Following the acquisition, new T receives net premiums of $500,000 with 
respect to qualified long-term care contracts and incurs general 
deductions of $75,000 through December 31, 2006.
    (ii) Analysis. The transfer of insurance contracts and the 
assumption of related liabilities deemed to occur by reason of the 
election under section 338 is treated as an assumption reinsurance 
transaction. New T determines the adjusted basis under section 197(f)(5) 
for the insurance contracts acquired in the assumption reinsurance 
transaction as follows. The amount paid or incurred for the insurance 
contracts is $250,000. To determine the amount required to be 
capitalized under section 848 in connection with the assumption 
reinsurance transaction, new T compares the required capitalization 
amount for the assumption reinsurance transaction with the general 
deductions allocable to the transaction. The required capitalization 
amount for the assumption reinsurance transaction is $577,500, which is 
determined by multiplying the $7,500,000 net positive consideration for 
the transaction ($7,750,000 reinsurance premium less $250,000 ceding 
commission) by the applicable percentage under section 848(c)(1) for the 
acquired insurance contracts (7.7 percent). To determine its general 
deductions, new T takes into account a tentative amortization deduction 
under section 197(a) as if the entire amount paid or incurred for old 
T's insurance contracts ($250,000) were allocable to an amortizable 
section 197 intangible with respect to insurance contracts acquired in 
the assumption reinsurance transaction. Accordingly, for the year of the 
assumption reinsurance transaction, new T is treated as having general 
deductions under section 848(c)(2) of $91,667 ($75,000 + $250,000/15). 
Under Sec. 1.848-2(g)(6), these general deductions are first allocated 
to the $38,500 capitalization requirement for new T's directly written 
business ($500,000 x .077). Thus, $53,167 ($91,667 - $38,500) of general 
deductions are allocable to the assumption reinsurance transaction. 
Because the general deductions allocable to the assumption reinsurance 
transaction ($53,167) are less than the required capitalization amount 
for the transaction ($577,500), new T has a capitalization shortfall of 
$524,333 ($577,500 - $53,167) with regard to the transaction. Under 
Sec. 1.848-2(g), this capitalization shortfall would cause old T to 
reduce the net negative consideration taken into account with respect to 
the assumption reinsurance transaction by $6,809,519 ($524,333 / .077) 
unless the parties make the election under Sec. 1.848-2(g)(8) to 
capitalize specified policy acquisition expenses in connection with the 
assumption reinsurance transaction without regard to the general 
deductions limitation. If the parties make the election, the amount 
capitalized by new T under section 848 in connection with the assumption 
reinsurance transaction would increase from $53,167 to $577,500. 
Pursuant to paragraph (g)(5)(ii)(C)(4) of this section, the additional 
$524,333 ($577,500 - $53,167) capitalized by new T under section 848 
would reduce new T's adjusted basis of the amortizable section 197 
intangible with respect to the insurance contracts acquired in the 
assumption reinsurance transaction. Accordingly, new T's adjusted basis 
of the section 197 intangible with regard to the insurance contracts is 
reduced from $196,833 ($250,000 - $53,167) to $0. Because the additional 
$524,333 capitalized pursuant to the Sec. 1.848-2(g)(8) election 
exceeds the $196,833 adjusted basis of the section 197 intangible before 
the reduction, new T is required to reduce its deductions under section 
805 by the $327,500 ($524,333 - $196,833).

    (E) Effective/applicability date. This section applies to 
acquisitions and dispositions of insurance contracts on or after April 
10, 2006.
    (iii) Application of loss disallowance rule upon a disposition of an 
insurance

[[Page 310]]

contract acquired in an assumption reinsurance transaction. The 
following rules apply for purposes of applying the loss disallowance 
rules of section 197(f)(1)(A) to the disposition of a section 197(f)(5) 
intangible. For this purpose, a section 197(f)(5) intangible is an 
amortizable section 197 intangible the basis of which is determined 
under section 197(f)(5).
    (A) Disposition--(1) In general. A disposition of a section 197 
intangible is any event as a result of which, absent section 197, 
recovery of basis is otherwise allowed for Federal income tax purposes.
    (2) Treatment of indemnity reinsurance transactions. The transfer 
through indemnity reinsurance of the right to the future income from the 
insurance contracts to which a section 197(f)(5) intangible relates does 
not preclude the recovery of basis by the ceding company, provided that 
sufficient economic rights relating to the reinsured contracts are 
transferred to the reinsurer. However, the ceding company is not 
permitted to recover basis in an indemnity reinsurance transaction if it 
has a right to experience refunds reflecting a significant portion of 
the future profits on the reinsured contracts, or if it retains an 
option to reacquire a significant portion of the future profits on the 
reinsured contracts through the exercise of a recapture provision. In 
addition, the ceding company is not permitted to recover basis in an 
indemnity reinsurance transaction if the reinsurer assumes only a 
limited portion of the ceding company's risk relating to the reinsured 
contracts (excess loss reinsurance).
    (B) Loss. The loss, if any, recognized by a taxpayer on the 
disposition of a section 197(f)(5) intangible equals the amount by which 
the taxpayer's adjusted basis in the section 197(f)(5) intangible 
immediately before the disposition exceeds the amount, if any, that the 
taxpayer receives from another person for the future income right from 
the insurance contracts to which the section 197(f)(5) intangible 
relates. In determining the amount of the taxpayer's loss on the 
disposition of a section 197(f)(5) intangible through a reinsurance 
transaction, any effect of the transaction on the amounts capitalized by 
the taxpayer as specified policy acquisition expenses under section 848 
is disregarded.
    (C) Examples. The following examples illustrate the principles of 
this paragraph (g)(5)(iii):

    Example 1. (i) Facts. In a prior taxable year, as a result of a 
section 338 election with respect to T, new T was treated as purchasing 
all of old T's insurance contracts that were in force on the acquisition 
date in an assumption reinsurance transaction. Under Sec. Sec. 1.338-6 
and 1.338-11(b)(2), the amount of AGUB allocable to the future income 
right from the purchased insurance contracts was $15, net of the amounts 
required to be capitalized under section 848 as a result of the 
assumption reinsurance transaction. At the beginning of the current 
taxable year, as a result of amortization deductions allowed by section 
197(a), new T's adjusted basis in the section 197(f)(5) intangible 
resulting from the assumption reinsurance transaction is $12. During the 
current taxable year, new T enters into an indemnity reinsurance 
agreement with R, another insurance company, in which R assumes 100 
percent of the risk relating to the insurance contracts to which the 
section 197(f)(5) intangible relates. In the indemnity reinsurance 
transaction, R agrees to pay new T a ceding commission of $10 in 
exchange for the future profits on the underlying reinsured policies. 
Under the indemnity reinsurance agreement, new T continues to administer 
the reinsured policies, but transfers investment assets equal to the 
required reserves for the reinsured policies together with all future 
premiums to R. The indemnity reinsurance agreement does not contain an 
experience refund provision or a provision allowing new T to terminate 
the reinsurance agreement at its sole option. New T retains the 
insurance licenses and other amortizable section 197 intangibles 
acquired in the deemed asset sale and continues to underwrite and issue 
new insurance contracts.
    (ii) Analysis. The indemnity reinsurance agreement constitutes a 
disposition of the section 197(f)(5) intangible because it involves the 
transfer of sufficient economic rights attributable to the insurance 
contracts to which the section 197(f)(5) intangible relates such that 
recovery of basis is allowed. For purposes of applying the loss 
disallowance rules of section 197(f)(1) and paragraph (g) of this 
section, new T's loss is $2 (new T's adjusted basis in the section 
197(f)(5) intangible immediately before the disposition ($12) less the 
ceding commission ($10)). Therefore, new T applies $10 of the adjusted 
basis in the section 197(f)(5) intangible against the amount received 
from R for the future income right on the reinsured policies and 
increases its basis in the amortizable

[[Page 311]]

section 197 intangibles that it acquired and retained from the deemed 
asset sale by $2, the amount of the disallowed loss. The amount of new 
T's disallowed loss under section 197(f)(1)(A) is determined without 
regard to the effect of the indemnity reinsurance transaction on the 
amounts capitalized by new T as specified policy acquisition expenses 
under section 848.
    Example 2. (i) Facts. Assume the same facts as in Example 1, except 
that under the indemnity reinsurance agreement R agrees to pay new T a 
ceding commission of $5 with respect to the underlying reinsured 
contracts. In addition, under the indemnity reinsurance agreement, new T 
is entitled to an experience refund equal to any future profits on the 
reinsured contracts in excess of the ceding commission plus an annual 
risk charge. New T also has a right to recapture the business at any 
time after R has recovered an amount equal to the ceding commission.
    (ii) Analysis. The indemnity reinsurance agreement between new T and 
R does not represent a disposition because it does not involve the 
transfer of sufficient economic rights with respect to the future income 
on the reinsured contracts. Therefore, new T may not recover its basis 
in the section 197(f)(5) intangible to which the contracts relate and 
must continue to amortize ratably the adjusted basis of the section 
197(f)(5) intangible over the remainder of the 15-year recovery period 
and cannot apply any portion of this adjusted basis to offset the ceding 
commission received from R in the indemnity reinsurance transaction.

    (iv) Effective dates--(A) In general--This paragraph (g)(5) applies 
to acquisitions and dispositions on or after April 10, 2006. For rules 
applicable to acquisitions and dispositions before that date, see Sec. 
1.197-2 in effect before that date (see 26 CFR part 1, revised April 1, 
2001).
    (B) Application to pre-effective date acquisitions and dispositions. 
A taxpayer may choose, on a transaction-by-transaction basis, to apply 
the provisions of this paragraph (g)(5) to property acquired and 
disposed of before April 10, 2006.
    (C) Change in method of accounting--(1) In general--A change in a 
taxpayer's treatment of all property acquired and disposed under 
paragraph (g)(5) is a change in method of accounting to which the 
provisions of sections 446 and 481 and the regulations thereunder apply.
    (2) Acquisitions and dispositions on or after effective date. A 
Taxpayer is granted the consent of the Commissioner under section 446(e) 
to change its method of accounting to comply with this paragraph (g)(5) 
for acquisitions and dispositions on or after April 10, 2006. The change 
must be made on a cut-off basis with no section 481(a) adjustment. 
Notwithstanding Sec. 1.446-1(e)(3), a taxpayer should not file a Form 
3115, ``Application for Change in Accounting Method,'' to obtain the 
consent of the Commissioner to change its method of accounting under 
this paragraph (g)(5)(iv)(C)(2). Instead, a taxpayer must make the 
change by using the new method on its federal income tax returns.
    (3) Acquisitions and dispositions before the effective date. For the 
first taxable year ending after April 10, 2006, a taxpayer is granted 
consent of the Commissioner to change its method of accounting for all 
property acquired in transactions described in paragraph (g)(5)(iv)(B) 
to comply with this paragraph (g)(5) unless the proper treatment of any 
such property is an issue under consideration in an examination, before 
an Appeals office, or before a Federal Court. (For the definition of 
when an issue is under consideration, see, Rev. Proc. 97-27 (1997-1 C.B. 
680); and, Sec. 601.601(d)(2) of this chapter). A taxpayer changing its 
method of accounting in accordance with this paragraph (g)(5)(iv)(C)(3) 
must follow the applicable administrative procedures for obtaining the 
Commissioner's automatic consent to a change in method of accounting 
(for further guidance, see, for example, Rev. Proc. 2002-9 (2002-1 C.B. 
327) as modified and clarified by Announcement 2002-17 (2002-1 C.B. 
561), modified and amplified by Rev. Proc. 2002-19 (2002-1 C.B. 696), 
and amplified, clarified and modified by Rev. Proc. 2002-54 (2002-2 C.B. 
432); and, Sec. 601.601(d)(2) of this chapter), except, for purposes of 
this paragraph (g)(5)(iv)(C)(3), any limitations in such administrative 
procedures for obtaining the automatic consent of the Commissioner shall 
not apply. However, if the taxpayer is under examination, before an 
appeals office, or before a Federal court, the taxpayer must provide a 
copy of the application to the examining agent(s), appeals officer, or 
counsel for the government, as appropriate,

[[Page 312]]

at the same time that it files the copy of the application with the 
National Office. The application must contain the name(s) and telephone 
number(s) of the examining agent(s), appeals officer, or counsel for the 
government, as appropriate. For purposes of From 3115, ``Application for 
Change in Accounting Method,'' the designated number for the automatic 
accounting method change authorized by this paragraph (g)(5)(iv)(C)(3) 
is ``98.'' A change in method of accounting in accordance with this 
paragraph (g)(5)(iv)(C)(3) requires an adjustment under section 481(a).
    (6) Amounts paid or incurred for a franchise, trademark, or trade 
name. If an amount to which section 1253(d) (relating to the transfer, 
sale, or other disposition of a franchise, trademark, or trade name) 
applies is described in section 1253(d)(1)(B) (relating to contingent 
serial payments deductible under section 162), the amount is not 
included in the adjusted basis of the intangible for purposes of section 
197. Any other amount, whether fixed or contingent, to which section 
1253(d) applies is chargeable to capital account under section 
1253(d)(2) and is amortizable only under section 197.
    (7) Amounts properly taken into account in determining the cost of 
property that is not a section 197 intangible. Section 197 does not 
apply to an amount that is properly taken into account in determining 
the cost of property that is not a section 197 intangible. The entire 
cost of acquiring the other property is included in its basis and 
recovered under other applicable Internal Revenue Code provisions. Thus, 
for example, section 197 does not apply to the cost of an interest in 
computer software to the extent such cost is included, without being 
separately stated, in the cost of the hardware or other tangible 
property and is consistently treated as part of the cost of the hardware 
or other tangible property.
    (8) Treatment of amortizable section 197 intangibles as depreciable 
property. An amortizable section 197 intangible is treated as property 
of a character subject to the allowance for depreciation under section 
167. Thus, for example, an amortizable section 197 intangible is not a 
capital asset for purposes of section 1221, but if used in a trade or 
business and held for more than one year, gain or loss on its 
disposition generally qualifies as section 1231 gain or loss. Also, an 
amortizable section 197 intangible is section 1245 property and section 
1239 applies to any gain recognized upon its sale or exchange between 
related persons (as defined in section 1239(b)).
    (h) Anti-churning rules--(1) Scope and purpose--(i) Scope. This 
paragraph (h) applies to section 197(f)(9) intangibles. For this 
purpose, section 197(f)(9) intangibles are goodwill and going concern 
value that was held or used at any time during the transition period and 
any other section 197 intangible that was held or used at any time 
during the transition period and was not depreciable or amortizable 
under prior law.
    (ii) Purpose. To qualify as an amortizable section 197 intangible, a 
section 197 intangible must be acquired after the applicable date (July 
25, 1991, if the acquiring taxpayer has made a valid retroactive 
election pursuant to Sec. 1.197-1T; August 10, 1993, in all other 
cases). The purpose of the anti-churning rules of section 197(f)(9) and 
this paragraph (h) is to prevent the amortization of section 197(f)(9) 
intangibles unless they are transferred after the applicable effective 
date in a transaction giving rise to a significant change in ownership 
or use. (Special rules apply for purposes of determining whether 
transactions involving partnerships give rise to a significant change in 
ownership or use. See paragraph (h)(12) of this section.) The anti-
churning rules are to be applied in a manner that carries out their 
purpose.
    (2) Treatment of section 197(f)(9) intangibles. Except as otherwise 
provided in this paragraph (h), a section 197(f)(9) intangible acquired 
by a taxpayer after the applicable effective date does not qualify for 
amortization under section 197 if--
    (i) The taxpayer or a related person held or used the intangible or 
an interest therein at any time during the transition period;
    (ii) The taxpayer acquired the intangible from a person that held 
the intangible at any time during the transition period and, as part of 
the transaction,

[[Page 313]]

the user of the intangible does not change; or
    (iii) The taxpayer grants the right to use the intangible to a 
person that held or used the intangible at any time during the 
transition period (or to a person related to that person), but only if 
the transaction in which the taxpayer grants the right and the 
transaction in which the taxpayer acquired the intangible are part of a 
series of related transactions.
    (3) Amounts deductible under section 1253(d) or Sec. 1.162-11. For 
purposes of this paragraph (h), deductions allowable under section 
1253(d)(2) or pursuant to an election under section 1253(d)(3) (in 
either case as in effect prior to the enactment of section 197) and 
deductions allowable under Sec. 1.162-11 are treated as deductions 
allowable for amortization under prior law.
    (4) Transition period. For purposes of this paragraph (h), the 
transition period is July 25, 1991, if the acquiring taxpayer has made a 
valid retroactive election pursuant to Sec. 1.197-1T and the period 
beginning on July 25, 1991, and ending on August 10, 1993, in all other 
cases.
    (5) Exceptions. The anti-churning rules of this paragraph (h) do not 
apply to--
    (i) The acquisition of a section 197(f)(9) intangible if the 
acquiring taxpayer's basis in the intangible is determined under section 
1014(a); or
    (ii) The acquisition of a section 197(f)(9) intangible that was an 
amortizable section 197 intangible in the hands of the seller (or 
transferor), but only if the acquisition transaction and the transaction 
in which the seller (or transferor) acquired the intangible or interest 
therein are not part of a series of related transactions.
    (6) Related person--(i) In general. Except as otherwise provided in 
paragraph (h)(6)(ii) of this section, a person is related to another 
person for purposes of this paragraph (h) if--
    (A) The person bears a relationship to that person that would be 
specified in section 267(b) (determined without regard to section 
267(e)) and, by substitution, section 267(f)(1), if those sections were 
amended by substituting 20 percent for 50 percent; or
    (B) The person bears a relationship to that person that would be 
specified in section 707(b)(1) if that section were amended by 
substituting 20 percent for 50 percent; or
    (C) The persons are engaged in trades or businesses under common 
control (within the meaning of section 41(f)(1) (A) and (B)).
    (ii) Time for testing relationships. Except as provided in paragraph 
(h)(6)(iii) of this section, a person is treated as related to another 
person for purposes of this paragraph (h) if the relationship exists--
    (A) In the case of a single transaction, immediately before or 
immediately after the transaction in which the intangible is acquired; 
and
    (B) In the case of a series of related transactions (or a series of 
transactions that together comprise a qualified stock purchase within 
the meaning of section 338(d)(3)), immediately before the earliest such 
transaction or immediately after the last such transaction.
    (iii) Certain relationships disregarded. In applying the rules in 
paragraph (h)(7) of this section, if a person acquires an intangible in 
a series of related transactions in which the person acquires stock 
(meeting the requirements of section 1504(a)(2)) of a corporation in a 
fully taxable transaction followed by a liquidation of the acquired 
corporation under section 331, any relationship created as part of such 
series of transactions is disregarded in determining whether any person 
is related to such acquired corporation immediately after the last 
transaction.
    (iv) De minimis rule--(A) In general. Two corporations are not 
treated as related persons for purposes of this paragraph (h) if--
    (1) The corporations would (but for the application of this 
paragraph (h)(6)(iv)) be treated as related persons solely by reason of 
substituting ``more than 20 percent'' for ``more than 50 percent'' in 
section 267(f)(1)(A); and
    (2) The beneficial ownership interest of each corporation in the 
stock of the other corporation represents less than 10 percent of the 
total combined voting power of all classes of stock entitled to vote and 
less than 10 percent of the

[[Page 314]]

total value of the shares of all classes of stock outstanding.
    (B) Determination of beneficial ownership interest. For purposes of 
this paragraph (h)(6)(iv), the beneficial ownership interest of one 
corporation in the stock of another corporation is determined under the 
principles of section 318(a), except that--
    (1) In applying section 318(a)(2)(C), the 50-percent limitation 
contained therein is not applied; and
    (2) Section 318(a)(3)(C) is applied by substituting ``20 percent'' 
for ``50 percent''.
    (7) Special rules for entities that owned or used property at any 
time during the transition period and that are no longer in existence. A 
corporation, partnership, or trust that owned or used a section 197 
intangible at any time during the transition period and that is no 
longer in existence is deemed, for purposes of determining whether a 
taxpayer acquiring the intangible is related to such entity, to be in 
existence at the time of the acquisition.
    (8) Special rules for section 338 deemed acquisitions. In the case 
of a qualified stock purchase that is treated as a deemed sale and 
purchase of assets pursuant to section 338, the corporation treated as 
purchasing assets as a result of an election thereunder (new target) is 
not considered the person that held or used the assets during any period 
in which the assets were held or used by the corporation treated as 
selling the assets (old target). Thus, for example, if a corporation 
(the purchasing corporation) makes a qualified stock purchase of the 
stock of another corporation after the transition period, new target 
will not be treated as the owner during the transition period of assets 
owned by old target during that period even if old target and new target 
are treated as the same corporation for certain other purposes of the 
Internal Revenue Code or old target and new target are the same 
corporation under the laws of the State or other jurisdiction of its 
organization. However, the anti-churning rules of this paragraph (h) may 
nevertheless apply to a deemed asset purchase resulting from a section 
338 election if new target is related (within the meaning of paragraph 
(h)(6) of this section) to old target.
    (9) Gain-recognition exception--(i) Applicability. A section 
197(f)(9) intangible qualifies for the gain-recognition exception if--
    (A) The taxpayer acquires the intangible from a person that would 
not be related to the taxpayer but for the substitution of 20 percent 
for 50 percent under paragraph (h)(6)(i)(A) of this section; and
    (B) That person (whether or not otherwise subject to Federal income 
tax) elects to recognize gain on the disposition of the intangible and 
agrees, notwithstanding any other provision of law or treaty, to pay for 
the taxable year in which the disposition occurs an amount of tax on the 
gain that, when added to any other Federal income tax on such gain, 
equals the gain on the disposition multiplied by the highest marginal 
rate of tax for that taxable year.
    (ii) Effect of exception. The anti-churning rules of this paragraph 
(h) apply to a section 197(f)(9) intangible that qualifies for the gain-
recognition exception only to the extent the acquiring taxpayer's basis 
in the intangible exceeds the gain recognized by the transferor.
    (iii) Time and manner of election. The election described in this 
paragraph (h)(9) must be made by the due date (including extensions of 
time) of the electing taxpayer's Federal income tax return for the 
taxable year in which the disposition occurs. The election is made by 
attaching an election statement satisfying the requirements of paragraph 
(h)(9)(viii) of this section to the electing taxpayer's original or 
amended income tax return for that taxable year (or by filing the 
statement as a return for the taxable year under paragraph (h)(9)(xi) of 
this section). In addition, the taxpayer must satisfy the notification 
requirements of paragraph (h)(9)(vi) of this section. The election is 
binding on the taxpayer and all parties whose Federal tax liability is 
affected by the election.
    (iv) Special rules for certain entities. In the case of a 
partnership, S corporation, estate or trust, the election under

[[Page 315]]

this paragraph (h)(9) is made by the entity rather than by its owners or 
beneficiaries. If a partnership or S corporation makes an election under 
this paragraph (h)(9) with respect to the disposition of a section 
197(f)(9) intangible, each of its partners or shareholders is required 
to pay a tax determined in the manner described in paragraph 
(h)(9)(i)(B) of this section on the amount of gain that is properly 
allocable to such partner or shareholder with respect to the 
disposition.
    (v) Effect of nonconforming elections. An attempted election that 
does not substantially comply with each of the requirements of this 
paragraph (h)(9) is disregarded in determining whether a section 
197(f)(9) intangible qualifies for the gain-recognition exception.
    (vi) Notification requirements. A taxpayer making an election under 
this paragraph (h)(9) with respect to the disposition of a section 
197(f)(9) intangible must provide written notification of the election 
on or before the due date of the return on which the election is made to 
the person acquiring the section 197 intangible. In addition, a 
partnership or S corporation making an election under this paragraph 
(h)(9) must attach to the Schedule K-1 furnished to each partner or 
shareholder a written statement containing all information necessary to 
determine the recipient's additional tax liability under this paragraph 
(h)(9).
    (vii) Revocation. An election under this paragraph (h)(9) may be 
revoked only with the consent of the Commissioner.
    (viii) Election Statement. An election statement satisfies the 
requirements of this paragraph (h)(9)(viii) if it is in writing and 
contains the information listed below. The required information should 
be arranged and identified in accordance with the following order and 
numbering system:
    (A) The name and address of the electing taxpayer.
    (B) Except in the case of a taxpayer that is not otherwise subject 
to Federal income tax, the taxpayer identification number (TIN) of the 
electing taxpayer.
    (C) A statement that the taxpayer is making the election under 
section 197(f)(9)(B).
    (D) Identification of the transaction and each person that is a 
party to the transaction or whose tax return is affected by the election 
(including, except in the case of persons not otherwise subject to 
Federal income tax, the TIN of each such person).
    (E) The calculation of the gain realized, the applicable rate of 
tax, and the amount of the taxpayer's additional tax liability under 
this paragraph (h)(9).
    (F) The signature of the taxpayer or an individual authorized to 
sign the taxpayer's Federal income tax return.
    (ix) Determination of highest marginal rate of tax and amount of 
other Federal income tax on gain--(A) Marginal rate. The following rules 
apply for purposes of determining the highest marginal rate of tax 
applicable to an electing taxpayer:
    (1) Noncorporate taxpayers. In the case of an individual, estate, or 
trust, the highest marginal rate of tax is the highest marginal rate of 
tax in effect under section 1, determined without regard to section 
1(h).
    (2) Corporations and tax-exempt entities. In the case of a 
corporation or an entity that is exempt from tax under section 501(a), 
the highest marginal rate of tax is the highest marginal rate of tax in 
effect under section 11, determined without regard to any rate that is 
added to the otherwise applicable rate in order to offset the effect of 
the graduated rate schedule.
    (B) Other Federal income tax on gain. The amount of Federal income 
tax (other than the tax determined under this paragraph (h)(9)) imposed 
on any gain is the lesser of--
    (1) The amount by which the taxpayer's Federal income tax liability 
(determined without regard to this paragraph (h)(9)) would be reduced if 
the amount of such gain were not taken into account; or
    (2) The amount of the gain multiplied by the highest marginal rate 
of tax for the taxable year.
    (x) Coordination with other provisions--(A) In general. The amount 
of gain subject to the tax determined under this paragraph (h)(9) is not 
reduced by any net operating loss deduction under section 172(a), any 
capital loss under section 1212, or any other similar loss or

[[Page 316]]

deduction. In addition, the amount of tax determined under this 
paragraph (h)(9) is not reduced by any credit of the taxpayer. In 
computing the amount of any net operating loss, capital loss, or other 
similar loss or deduction, or any credit that may be carried to any 
taxable year, any gain subject to the tax determined under this 
paragraph (h)(9) and any tax paid under this paragraph (h)(9) is not 
taken into account.
    (B) Section 1374. No provision of paragraph (h)(9)(iv) of this 
section precludes the application of section 1374 (relating to a tax on 
certain built-in gains of S corporations) to any gain with respect to 
which an election under this paragraph (h)(9) is made. In addition, 
neither paragraph (h)(9)(iv) nor paragraph (h)(9)(x)(A) of this section 
precludes a taxpayer from applying the provisions of section 1366(f)(2) 
(relating to treatment of the tax imposed by section 1374 as a loss 
sustained by the S corporation) in determining the amount of tax payable 
under paragraph (h)(9) of this section.
    (C) Procedural and administrative provisions. For purposes of 
subtitle F, the amount determined under this paragraph (h)(9) is treated 
as a tax imposed by section 1 or 11, as appropriate.
    (D) Installment method. The gain subject to the tax determined under 
paragraph (h)(9)(i) of this section may not be reported under the method 
described in section 453(a). Any such gain that would, but for the 
application of this paragraph (h)(9)(x)(D), be taken into account under 
section 453(a) shall be taken into account in the same manner as if an 
election under section 453(d) (relating to the election not to apply 
section 453(a)) had been made.
    (xi) Special rules for persons not otherwise subject to Federal 
income tax. If the person making the election under this paragraph 
(h)(9) with respect to a disposition is not otherwise subject to Federal 
income tax, the election statement satisfying the requirements of 
paragraph (h)(9)(viii) of this section must be filed with the 
Philadelphia Service Center. For purposes of this paragraph (h)(9) and 
subtitle F, the statement is treated as an income tax return for the 
calendar year in which the disposition occurs and as a return due on or 
before March 15 of the following year.
    (10) Transactions subject to both anti-churning and nonrecognition 
rules. If a person acquires a section 197(f)(9) intangible in a 
transaction described in paragraph (g)(2) of this section from a person 
in whose hands the intangible was an amortizable section 197 intangible, 
and immediately after the transaction (or series of transactions 
described in paragraph (h)(6)(ii)(B) of this section) in which such 
intangible is acquired, the person acquiring the section 197(f)(9) 
intangible is related to any person described in paragraph (h)(2) of 
this section, the intangible is, notwithstanding its treatment under 
paragraph (g)(2) of this section, treated as an amortizable section 197 
intangible only to the extent permitted under this paragraph (h). (See, 
for example, paragraph (h)(5)(ii) of this section.)
    (11) Avoidance purpose. A section 197(f)(9) intangible acquired by a 
taxpayer after the applicable effective date does not qualify for 
amortization under section 197 if one of the principal purposes of the 
transaction in which it is acquired is to avoid the operation of the 
anti-churning rules of section 197(f)(9) and this paragraph (h). A 
transaction will be presumed to have a principal purpose of avoidance if 
it does not effect a significant change in the ownership or use of the 
intangible. Thus, for example, if section 197(f)(9) intangibles are 
acquired in a transaction (or series of related transactions) in which 
an option to acquire stock is issued to a party to the transaction, but 
the option is not treated as having been exercised for purposes of 
paragraph (h)(6) of this section, this paragraph (h)(11) may apply to 
the transaction.
    (12) Additional partnership anti-churning rules--(i) In general. In 
determining whether the anti-churning rules of this paragraph (h) apply 
to any increase in the basis of a section 197(f)(9) intangible under 
section 732(b), 732(d), 734(b), or 743(b), the determinations are made 
at the partner level and each partner is treated as having owned and 
used the partner's proportionate share of partnership property. In 
determining whether the anti-churning rules of this

[[Page 317]]

paragraph (h) apply to any transaction under another section of the 
Internal Revenue Code, the determinations are made at the partnership 
level, unless under Sec. 1.701-2(e) the Commissioner determines that 
the partner level is more appropriate.
    (ii) Section 732(b) adjustments--(A) In general. The anti-churning 
rules of this paragraph (h) apply to any increase in the adjusted basis 
of a section 197(f)(9) intangible under section 732(b) to the extent 
that the basis increase exceeds the total unrealized appreciation from 
the intangible allocable to--
    (1) Partners other than the distributee partner or persons related 
to the distributee partner;
    (2) The distributee partner and persons related to the distributee 
partner if the distributed intangible is a section 197(f)(9) intangible 
acquired by the partnership on or before August 10, 1993, to the extent 
that--
    (i) The distributee partner and related persons acquired an interest 
or interests in the partnership after August 10, 1993;
    (ii) Such interest or interests were held after August 10, 1993, by 
a person or persons other than either the distributee partner or persons 
who were related to the distributee partner; and
    (iii) The acquisition of such interest or interests by such person 
or persons was not part of a transaction or series of related 
transactions in which the distributee partner (or persons related to the 
distributee partner) subsequently acquired such interest or interests; 
and
    (3) The distributee partner and persons related to the distributee 
partner if the distributed intangible is a section 197(f)(9) intangible 
acquired by the partnership after August 10, 1993, that is not 
amortizable with respect to the partnership, to the extent that--
    (i) The distributee partner and persons related to the distributee 
partner acquired an interest or interests in the partnership after the 
partnership acquired the distributed intangible;
    (ii) Such interest or interests were held after the partnership 
acquired the distributed intangible, by a person or persons other than 
either the distributee partner or persons who were related to the 
distributee partner; and
    (iii) The acquisition of such interest or interests by such person 
or persons was not part of a transaction or series of related 
transactions in which the distributee partner (or persons related to the 
distributee partner) subsequently acquired such interest or interests.
    (B) Effect of retroactive elections. For purposes of paragraph 
(h)(12)(ii)(A) of this section, references to August 10, 1993, are 
treated as references to July 25, 1991, if the relevant party made a 
valid retroactive election under Sec. 1.197-1T.
    (C) Intangible still subject to anti-churning rules. Notwithstanding 
paragraph (h)(12)(ii) of this section, in applying the provisions of 
this paragraph (h) with respect to subsequent transfers, the distributed 
intangible remains subject to the provisions of this paragraph (h) in 
proportion to a fraction (determined at the time of the distribution), 
as follows--
    (1) The numerator of which is equal to the sum of--
    (i) The amount of the distributed intangible's basis that is 
nonamortizable under paragraph (g)(2)(ii)(B) of this section; and
    (ii) The total unrealized appreciation inherent in the intangible 
reduced by the amount of the increase in the adjusted basis of the 
distributed intangible under section 732(b) to which the anti-churning 
rules do not apply; and
    (2) The denominator of which is the fair market value of such 
intangible.
    (D) Partner's allocable share of unrealized appreciation from the 
intangible. The amount of unrealized appreciation from an intangible 
that is allocable to a partner is the amount of taxable gain that would 
have been allocated to that partner if the partnership had sold the 
intangible immediately before the distribution for its fair market value 
in a fully taxable transaction.
    (E) Acquisition of partnership interest by contribution. Solely for 
purposes of paragraphs (h)(12)(ii)(A)(2) and (3) of this section, a 
partner who acquires an interest in a partnership in exchange for a 
contribution of property to the partnership is deemed to acquire a pro 
rata portion of that interest in the partnership from each person who is 
a partner in the partnership at the time

[[Page 318]]

of the contribution based on each partner's respective proportionate 
interest in the partnership.
    (iii) Section 732(d) adjustments. The anti-churning rules of this 
paragraph (h) do not apply to an increase in the basis of a section 
197(f)(9) intangible under section 732(d) if, had an election been in 
effect under section 754 at the time of the transfer of the partnership 
interest, the distributee partner would have been able to amortize the 
basis adjustment made pursuant to section 743(b).
    (iv) Section 734(b) adjustments--(A) In general. The anti-churning 
rules of this paragraph (h) do not apply to a continuing partner's share 
of an increase in the basis of a section 197(f)(9) intangible held by a 
partnership under section 734(b) to the extent that the continuing 
partner is an eligible partner.
    (B) Eligible partner. For purposes of this paragraph (h)(12)(iv), 
eligible partner means--
    (1) A continuing partner that is not the distributee partner or a 
person related to the distributee partner;
    (2) A continuing partner that is the distributee partner or a person 
related to the distributee partner, with respect to any section 
197(f)(9) intangible acquired by the partnership on or before August 10, 
1993, to the extent that--
    (i) The distributee partner's interest in the partnership was 
acquired after August 10, 1993;
    (ii) Such interest was held after August 10, 1993 by a person or 
persons who were not related to the distributee partner; and
    (iii) The acquisition of such interest by such person or persons was 
not part of a transaction or series of related transactions in which the 
distributee partner or persons related to the distributee partner 
subsequently acquired such interest; or
    (3) A continuing partner that is the distributee partner or a person 
related to the distributee partner, with respect to any section 
197(f)(9) intangible acquired by the partnership after August 10, 1993, 
that is not amortizable with respect to the partnership, to the extent 
that--
    (i) The distributee partner's interest in the partnership was 
acquired after the partnership acquired the relevant intangible;
    (ii) Such interest was held after the partnership acquired the 
relevant intangible by a person or persons who were not related to the 
distributee partner; and
    (iii) The acquisition of such interest by such person or persons was 
not part of a transaction or series of related transactions in which the 
distributee partner or persons related to the distributee partner 
subsequently acquired such interest.
    (C) Effect of retroactive elections. For purposes of paragraph 
(h)(12)(iv)(A) of this section, references to August 10, 1993, are 
treated as references to July 25, 1991, if the distributee partner made 
a valid retroactive election under Sec. 1.197-1T.
    (D) Partner's share of basis increase--(1) In general. Except as 
provided in paragraph (h)(12)(iv)(D)(2) of this section, for purposes of 
this paragraph (h)(12)(iv), a continuing partner's share of a basis 
increase under section 734(b) is equal to--
    (i) The total basis increase allocable to the intangible; multiplied 
by
    (ii) A fraction the numerator of which is the amount of the 
continuing partner's post-distribution capital account (determined 
immediately after the distribution in accordance with the capital 
accounting rules of Sec. 1.704-1(b)(2)(iv)), and the denominator of 
which is the total amount of the post-distribution capital accounts 
(determined immediately after the distribution in accordance with the 
capital accounting rules of Sec. 1.704-1(b)(2)(iv)) of all continuing 
partners.
    (2) Exception where partnership does not maintain capital accounts. 
If a partnership does not maintain capital accounts in accordance with 
Sec. 1.704-1(b)(2)(iv), then for purposes of this paragraph 
(h)(12)(iv), a continuing partner's share of a basis increase is equal 
to--
    (i) The total basis increase allocable to the intangible; multiplied 
by
    (ii) The partner's overall interest in the partnership as determined 
under Sec. 1.704-1(b)(3) immediately after the distribution.
    (E) Interests acquired by contribution--(1) Application of 
paragraphs

[[Page 319]]

(h)(12)(iv)(B) (2) and (3) of this section. Solely for purposes of 
paragraphs (h)(12)(iv)(B)(2) and (3) of this section, a partner who 
acquires an interest in a partnership in exchange for a contribution of 
property to the partnership is deemed to acquire a pro rata portion of 
that interest in the partnership from each person who is a partner in 
the partnership at the time of the contribution based on each such 
partner's proportionate interest in the partnership.
    (2) Special rule with respect to paragraph (h)(12)(iv)(B)(1) of this 
section. Solely for purposes of paragraph (h)(12)(iv)(B)(1) of this 
section, if a distribution that gives rise to an increase in the basis 
under section 734(b) of a section 197(f)(9) intangible held by the 
partnership is undertaken as part of a series of related transactions 
that include a contribution of the intangible to the partnership by a 
continuing partner, the continuing partner is treated as related to the 
distributee partner in analyzing the basis adjustment with respect to 
the contributed section 197(f)(9) intangible.
    (F) Effect of section 734(b) adjustments on partners' capital 
accounts. If one or more partners are subject to the anti-churning rules 
under this paragraph (h) with respect to a section 734(b) adjustment 
allocable to an intangible asset, taxpayers may use any reasonable 
method to determine amortization of the asset for book purposes, 
provided that the method used does not contravene the purposes of the 
anti-churning rules under section 197 and this paragraph (h). A method 
will be considered to contravene the purposes of the anti-churning rules 
if the effect of the book adjustments resulting from the method is such 
that any portion of the tax deduction for amortization attributable to 
the section 734 adjustment is allocated, directly or indirectly, to a 
partner who is subject to the anti-churning rules with respect to such 
adjustment.
    (v) Section 743(b) adjustments--(A) General rule. The anti-churning 
rules of this paragraph (h) do not apply to an increase in the basis of 
a section 197 intangible under section 743(b) if the person acquiring 
the partnership interest is not related to the person transferring the 
partnership interest. In addition, the anti-churning rules of this 
paragraph (h) do not apply to an increase in the basis of a section 197 
intangible under section 743(b) to the extent that--
    (1) The partnership interest being transferred was acquired after 
August 10, 1993, provided--
    (i) The section 197(f)(9) intangible was acquired by the partnership 
on or before August 10, 1993;
    (ii) The partnership interest being transferred was held after 
August 10, 1993, by a person or persons (the post-1993 person or 
persons) other than the person transferring the partnership interest or 
persons who were related to the person transferring the partnership 
interest; and
    (iii) The acquisition of such interest by the post-1993 person or 
persons was not part of a transaction or series of related transactions 
in which the person transferring the partnership interest or persons 
related to the person transferring the partnership interest acquired 
such interest; or
    (2) The partnership interest being transferred was acquired after 
the partnership acquired the section 197(f)(9) intangible, provided--
    (i) The section 197(f)(9) intangible was acquired by the partnership 
after August 10, 1993, and is not amortizable with respect to the 
partnership;
    (ii) The partnership interest being transferred was held after the 
partnership acquired the section 197(f)(9) intangible by a person or 
persons (the post-contribution person or persons) other than the person 
transferring the partnership interest or persons who were related to the 
person transferring the partnership interest; and
    (iii) The acquisition of such interest by the post-contribution 
person or persons was not part of a transaction or series of related 
transactions in which the person transferring the partnership interest 
or persons related to the person transferring the partnership interest 
acquired such interest.
    (B) Acquisition of partnership interest by contribution. Solely for 
purposes of paragraph (h)(12)(v)(A) (1) and (2) of this section, a 
partner who acquires an interest in a partnership in exchange for a 
contribution of property to the

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partnership is deemed to acquire a pro rata portion of that interest in 
the partnership from each person who is a partner in the partnership at 
the time of the contribution based on each such partner's proportionate 
interest in the partnership.
    (C) Effect of retroactive elections. For purposes of paragraph 
(h)(12)(v)(A) of this section, references to August 10, 1993, are 
treated as references to July 25, 1991, if the transferee partner made a 
valid retroactive election under Sec. 1.197-1T.
    (vi) Partner is or becomes a user of partnership intangible--(A) 
General rule. If, as part of a series of related transactions that 
includes a transaction described in paragraph (h)(12)(ii), (iii), (iv), 
or (v) of this section, an anti-churning partner or related person 
(other than the partnership) becomes (or remains) a direct user of an 
intangible that is treated as transferred in the transaction (as a 
result of the partners being treated as having owned their proportionate 
share of partnership assets), the anti-churning rules of this paragraph 
(h) apply to the proportionate share of such intangible that is treated 
as transferred by such anti-churning partner, notwithstanding the 
application of paragraph (h)(12)(ii), (iii), (iv), or (v) of this 
section.
    (B) Anti-churning partner. For purposes of this paragraph 
(h)(12)(vi), anti-churning partner means--
    (1) With respect to all intangibles held by a partnership on or 
before August 10, 1993, any partner, but only to the extent that
    (i) The partner's interest in the partnership was acquired on or 
before August 10, 1993, or
    (ii) The interest was acquired from a person related to the partner 
on or after August 10, 1993, and such interest was not held by any 
person other than persons related to such partner at any time after 
August 10, 1993 (disregarding, for this purpose, a person's holding of 
an interest if the acquisition of such interest was part of a 
transaction or series of related transactions in which the partner or 
persons related to the partner subsequently acquired such interest),
    (2) With respect to any section 197(f)(9) intangible acquired by a 
partnership after August 10, 1993, that is not amortizable with respect 
to the partnership, any partner, but only to the extent that
    (i) The partner's interest in the partnership was acquired on or 
before the date the partnership acquired the section 197(f)(9) 
intangible, or
    (ii) The interest was acquired from a person related to the partner 
on or after the date the partnership acquired the section 197(f)(9) 
intangible, and such interest was not held by any person other than 
persons related to such partner at any time after the date the 
partnership acquired the section 197(f)(9) intangible (disregarding, for 
this purpose, a person's holding of an interest if the acquisition of 
such interest was part of a transaction or series of related 
transactions in which the partner or persons related to the partner 
subsequently acquired such interest).
    (C) Effect of retroactive elections. For purposes of paragraph 
(h)(12)(vi)(B) of this section, references to August 10, 1993, are 
treated as references to July 25, 1991, if the relevant party made a 
valid retroactive election under Sec. 1.197-1T.
    (vii) Section 704(c) allocations--(A) Allocations where the 
intangible is amortizable by the contributor. The anti-churning rules of 
this paragraph (h) do not apply to the curative or remedial allocations 
of amortization with respect to a section 197(f)(9) intangible if the 
intangible was an amortizable section 197 intangible in the hands of the 
contributing partner (unless paragraph (h)(10) of this section applies 
so as to cause the intangible to cease to be an amortizable section 197 
intangible in the hands of the partnership).
    (B) Allocations where the intangible is not amortizable by the 
contributor. If a section 197(f)(9) intangible was not an amortizable 
section 197 intangible in the hands of the contributing partner, a non-
contributing partner generally may receive remedial allocations of 
amortization under section 704(c) that are deductible for Federal income 
tax purposes. However, such a partner may not receive remedial 
allocations of amortization under section 704(c) if that partner is 
related to the partner that contributed the intangible or if, as part

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of a series of related transactions that includes the contribution of 
the section 197(f)(9) intangible to the partnership, the contributing 
partner or related person (other than the partnership) becomes (or 
remains) a direct user of the contributed intangible. Taxpayers may use 
any reasonable method to determine amortization of the asset for book 
purposes, provided that the method used does not contravene the purposes 
of the anti-churning rules under section 197 and this paragraph (h). A 
method will be considered to contravene the purposes of the anti-
churning rules if the effect of the book adjustments resulting from the 
method is such that any portion of the tax deduction for amortization 
attributable to section 704(c) is allocated, directly or indirectly, to 
a partner who is subject to the anti-churning rules with respect to such 
adjustment.
    (viii) Operating rule for transfers upon death. For purposes of this 
paragraph (h)(12), if the basis of a partner's interest in a partnership 
is determined under section 1014(a), such partner is treated as 
acquiring such interest from a person who is not related to such 
partner, and such interest is treated as having previously been held by 
a person who is not related to such partner.
    (i) [Reserved]
    (j) General anti-abuse rule. The Commissioner will interpret and 
apply the rules in this section as necessary and appropriate to prevent 
avoidance of the purposes of section 197. If one of the principal 
purposes of a transaction is to achieve a tax result that is 
inconsistent with the purposes of section 197, the Commissioner will 
recast the transaction for Federal tax purposes as appropriate to 
achieve tax results that are consistent with the purposes of section 
197, in light of the applicable statutory and regulatory provisions and 
the pertinent facts and circumstances.
    (k) Examples.The following examples illustrate the application of 
this section:

    Example 1. Advertising costs. (i) Q manufactures and sells consumer 
products through a series of wholesalers and distributors. In order to 
increase sales of its products by encouraging consumer loyalty to its 
products and to enhance the value of the goodwill, trademarks, and trade 
names of the business, Q advertises its products to the consuming 
public. It regularly incurs costs to develop radio, television, and 
print advertisements. These costs generally consist of employee costs 
and amounts paid to independent advertising agencies. Q also incurs 
costs to run these advertisements in the various media for which they 
were developed.
    (ii) The advertising costs are not chargeable to capital account 
under paragraph (f)(3) of this section (relating to costs incurred for 
covenants not to compete, rights granted by governmental units, and 
contracts for the use of section 197 intangibles) and are currently 
deductible as ordinary and necessary expenses under section 162. 
Accordingly, under paragraph (a)(3) of this section, section 197 does 
not apply to these costs.
    Example 2. Computer software. (i) X purchases all of the assets of 
an existing trade or business from Y. One of the assets acquired is all 
of Y's rights in certain computer software previously used by Y under 
the terms of a nonexclusive license from the software developer. The 
software was developed for use by manufacturers to maintain a 
comprehensive accounting system, including general and subsidiary 
ledgers, payroll, accounts receivable and payable, cash receipts and 
disbursements, fixed asset accounting, and inventory cost accounting and 
controls. The developer modified the software for use by Y at a cost of 
$1,000 and Y made additional modifications at a cost of $500. The 
developer does not maintain wholesale or retail outlets but markets the 
software directly to ultimate users. Y's license of the software is 
limited to an entity that is actively engaged in business as a 
manufacturer.
    (ii) Notwithstanding these limitations, the software is considered 
to be readily available to the general public for purposes of paragraph 
(c)(4)(i) of this section. In addition, the software is not 
substantially modified because the cost of the modifications by the 
developer and Y to the version of the software that is readily available 
to the general public does not exceed $2,000. Accordingly, the software 
is not a section 197 intangible.
    Example 3. Acquisition of software for internal use. (i) B, the 
owner and operator of a worldwide package-delivery service, purchases 
from S all rights to software developed by S. The software will be used 
by B for the sole purpose of improving its package-tracking operations. 
B does not purchase any other assets in the transaction or any related 
transaction.
    (ii) Because B acquired the software solely for internal use, it is 
disregarded in determining for purposes of paragraph (c)(4)(ii) of this 
section whether the assets acquired in

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the transaction or series of related transactions constitute a trade or 
business or substantial portion thereof. Since no other assets were 
acquired, the software is not acquired as part of a purchase of a trade 
or business and under paragraph (c)(4)(ii) of this section is not a 
section 197 intangible.
    Example 4. Governmental rights of fixed duration. (i) City M 
operates a municipal water system. In order to induce X to locate a new 
manufacturing business in the city, M grants X the right to purchase 
water for 16 years at a specified price.
    (ii) The right granted by M is a right to receive tangible property 
or services described in section 197(e)(4)(B) and paragraph (c)(6) of 
this section and, thus, is not a section 197 intangible. This exclusion 
applies even though the right does not qualify for exclusion as a right 
of fixed duration or amount under section 197(e)(4)(D) and paragraph 
(c)(13) of this section because the duration exceeds 15 years and the 
right is not fixed as to amount. It is also immaterial that the right 
would not qualify for exclusion as a self-created intangible under 
section 197(c)(2) and paragraph (d)(2) of this section because it is 
granted by a governmental unit.
    Example 5. Separate acquisition of franchise. (i) S is a franchiser 
of retail outlets for specialty coffees. G enters into a franchise 
agreement (within the meaning of section 1253(b)(1)) with S pursuant to 
which G is permitted to acquire and operate a store using the S 
trademark and trade name at the location specified in the agreement. G 
agrees to pay S $100,000 upon execution of the agreement and also agrees 
to pay, throughout the term of the franchise, additional amounts that 
are deductible under section 1253(d)(1). The agreement contains detailed 
specifications for the construction and operation of the business, but G 
is not required to purchase from S any of the materials necessary to 
construct the improvements at the location specified in the franchise 
agreement.
    (ii) The franchise is a section 197 intangible within the meaning of 
paragraph (b)(10) of this section. The franchise does not qualify for 
the exclusion relating to self-created intangibles described in section 
197(c)(2) and paragraph (d)(2) of this section because the franchise is 
described in section 197(d)(1)(F). In addition, because the acquisition 
of the franchise constitutes the acquisition of an interest in a trade 
or business or a substantial portion thereof, the franchise may not be 
excluded under section 197(e)(4). Thus, the franchise is an amortizable 
section 197 intangible, the basis of which must be recovered over a 15-
year period. However, the amounts that are deductible under section 
1253(d)(1) are not subject to the provisions of section 197 by reason of 
section 197(f)(4)(C) and paragraph (b)(10)(ii) of this section.
    Example 6. Acquisition and amortization of covenant not to compete. 
(i) As part of the acquisition of a trade or business from C, B and C 
enter into an agreement containing a covenant not to compete. Under this 
agreement, C agrees that it will not compete with the business acquired 
by B within a prescribed geographical territory for a period of three 
years after the date on which the business is sold to B. In exchange for 
this agreement, B agrees to pay C $90,000 per year for each year in the 
term of the agreement. The agreement further provides that, in the event 
of a breach by C of his obligations under the agreement, B may terminate 
the agreement, cease making any of the payments due thereafter, and 
pursue any other legal or equitable remedies available under applicable 
law. The amounts payable to C under the agreement are not contingent 
payments for purposes of Sec. 1.1275-4. The present fair market value 
of B's rights under the agreement is $225,000. The aggregate 
consideration paid excluding any amount treated as interest or original 
issue discount under applicable provisions of the Internal Revenue Code, 
for all assets acquired in the transaction (including the covenant not 
to compete) exceeds the sum of the amount of Class I assets and the 
aggregate fair market value of all Class II, Class III, Class IV, Class 
V, and Class VI assets by $50,000. See Sec. 1.338-6(b) for rules for 
determining the assets in each class.
    (ii) Because the covenant is acquired in an applicable asset 
acquisition (within the meaning of section 1060(c)), paragraph 
(f)(4)(ii) of this section applies and the basis of B in the covenant is 
determined pursuant to section 1060(a) and the regulations thereunder. 
Under Sec. Sec. 1.1060-1(c)(2) and 1.338-6(c)(1), B's basis in the 
covenant cannot exceed its fair market value. Thus, B's basis in the 
covenant immediately after the acquisition is $225,000. This basis is 
amortized ratably over the 15-year period beginning on the first day of 
the month in which the agreement is entered into. All of the remaining 
consideration after allocation to the convenant and other Class VI 
assets ($50,000) is allocated to Class VII assets (goodwill and going 
concern value). See Sec. Sec. 1.1060-1(c)(2) and 1.338-6(b).
    Example 7. Stand-alone license of technology. (i) X is a 
manufacturer of consumer goods that does business throughout the world 
through subsidiary corporations organized under the laws of each country 
in which business is conducted. X licenses to Y, its subsidiary 
organized and conducting business in Country K, all of the patents, 
formulas, designs, and know-how necessary for Y to manufacture the same 
products that X manufactures in the United States. Assume that the 
license is not considered a sale or exchange under the principles of 
section 1235. The license is for a term of 18 years, and there are no 
facts to indicate that the license does not have a fixed duration. Y

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agrees to pay X a royalty equal to a specified, fixed percentage of the 
revenues obtained from selling products manufactured using the licensed 
technology. Assume that the royalty is reasonable and is not subject to 
adjustment under section 482. The license is not entered into in 
connection with any other transaction. Y incurs capitalized costs in 
connection with entering into the license.
    (ii) The license is a contract for the use of a section 197 
intangible within the meaning of paragraph (b)(11) of this section. It 
does not qualify for the exception in section 197(e)(4)(D) and paragraph 
(c)(13) of this section (relating to rights of fixed duration or amount 
because it does not have a term of less than 15 years, and the other 
exceptions in section 197(e) and paragraph (c) of this section are also 
inapplicable. Accordingly, the license is a section 197 intangible.
    (iii) The license is not acquired as part of a purchase of a trade 
or business. Thus, under paragraph (f)(3)(iii) of this section, the 
license will be closely scrutinized under the principles of section 1235 
for purposes of determining whether the transfer is a sale or exchange 
and, accordingly, whether the payments under the license are chargeable 
to capital account. Because the license is not a sale or exchange under 
the principles of section 1235, the royalty payments are not chargeable 
to capital account for purposes section 197. The capitalized costs of 
entering into the license are not within the exception under paragraph 
(d)(2) of this section for self-created intangibles, and thus are 
amortized under section 197.
    Example 8. License of technology and trademarks. (i) The facts are 
the same as in Example 7, except that the license also includes the use 
of the trademarks and trade names that X uses to manufacture and 
distribute its products in the United States. Assume that under the 
principles of section 1253 the transfer is not a sale or exchange of the 
trademarks and trade names or an undivided interest therein and that the 
royalty payments are described in section 1253(d)(1)(B).
    (ii) As in Example 7, the license is a section 197 intangible. 
Although the license conveys an interest in X's trademarks and trade 
names to Y, the transfer of the interest is disregarded for purposes of 
paragraph (e)(2) of this section unless the transfer is considered a 
sale or exchange of the trademarks and trade names or an undivided 
interest therein. Accordingly, the licensing of the technology and the 
trademarks and trade names is not treated as part of a purchase of a 
trade or business under paragraph (e)(2) of this section.
    (iii) Because the technology license is not part of the purchase of 
a trade or business, it is treated in the manner described in Example 7. 
The royalty payments for the use of the trademarks and trade names are 
deductible under section 1253(d)(1) and, under section 197(f)(4)(C) and 
paragraph (b)(10)(ii) of this section, are not chargeable to capital 
account for purposes of section 197. The capitalized costs of entering 
into the license are treated in the same manner as in example 7.
    Example 9. Disguised sale. (i) The facts are the same as in Example 
7, except that Y agrees to pay X, in addition to the contingent royalty, 
a fixed minimum royalty immediately upon entering into the agreement and 
there are sufficient facts present to characterize the transaction, for 
federal tax purposes, as a transfer of ownership of the intellectual 
property from X to Y.
    (ii) The purported license of technology is, in fact, an acquisition 
of an intangible described in section 197(d)(1)(C)(iii) and paragraph 
(b)(5) of this section (relating to know-how, etc.). As in Example 7, 
the exceptions in section 197(e) and paragraph (c) of this section do 
not apply to the transfer. Accordingly, the transferred property is a 
section 197 intangible. Y's basis in the transferred intangible includes 
the capitalized costs of entering into the agreement and the fixed 
minimum royalty payment payable at the time of the transfer. In 
addition, except to the extent that a portion of any payment will be 
treated as interest or original issue discount under applicable 
provisions of the Internal Revenue Code, all of the contingent payments 
under the purported license are properly chargeable to capital account 
for purposes of section 197 and this section. The extent to which such 
payments are treated as payments of principal and the time at which any 
amount treated as a payment of principal is taken into account in 
determining basis are determined under the rules of Sec. 1.1275-4(c)(4) 
or 1.483-4(a), whichever is applicable. Any contingent amount that is 
included in basis after the month in which the acquisition occurs is 
amortized under the rules of paragraph (f)(2)(i) or (ii) of this 
section.
    Example 10. License of technology and customer list as part of sale 
of a trade or business. (i) X is a computer manufacturer that produces, 
in separate operating divisions, personal computers, servers, and 
peripheral equipment. In a transaction that is the purchase of a trade 
or business for purposes of section 197, Y (who is unrelated to X) 
purchases from X all assets of the operating division producing personal 
computers, except for certain patents that are also used in the division 
manufacturing servers and customer lists that are also used in the 
division manufacturing peripheral equipment. As part of the transaction, 
X transfers to Y the right to use the retained patents and customer 
lists solely in connection with the manufacture and sale of personal 
computers. The transfer agreement requires annual royalty payments 
contingent on the use of the patents and also requires a payment for 
each use of the customer list. In addition, Y incurs capitalized

[[Page 324]]

costs in connection with entering into the licenses.
    (ii) The rights to use the retained patents and customer lists are 
contracts for the use of section 197 intangibles within the meaning of 
paragraph (b)(11) of this section. The rights do not qualify for the 
exception in 197(e)(4)(D) and paragraph (c)(13) of this section 
(relating to rights of fixed duration or amount) because they are 
transferred as part of a purchase of a trade or business and the other 
exceptions in section 197(e) and paragraph (c) of this section are also 
inapplicable. Accordingly, the licenses are section 197 intangibles.
    (iii) Because the right to use the retained patents is described in 
paragraph (b)(11) of this section and the right is transferred as part 
of a purchase of a trade or business, the treatment of the royalty 
payments is determined under paragraph (f)(3)(ii) of this section. In 
addition, however, the retained patents are described in paragraph 
(b)(5) of this section. Thus, the annual royalty payments are chargeable 
to capital account under the general rule of paragraph (f)(3)(ii)(A) of 
this section unless Y establishes that the license is not a sale or 
exchange under the principles of section 1235 and the royalty payments 
are an arm's length consideration for the rights transferred. If these 
facts are established, the exception in paragraph (f)(3)(ii)(B) of this 
section applies and the royalty payments are not chargeable to capital 
account for purposes of section 197. The capitalized costs of entering 
into the license are treated in the same manner as in Example 7.
    (iv) The right to use the retained customer list is also described 
in paragraph (b)(11) of this section and is transferred as part of a 
purchase of a trade or business. Thus, the treatment of the payments for 
use of the customer list is also determined under paragraph (f)(3)(ii) 
of this section. The customer list, although described in paragraph 
(b)(6) of this section, is a customer-related information base. Thus, 
the exception in paragraph (f)(3)(ii)(B) of this section does not apply. 
Accordingly, payments for use of the list are chargeable to capital 
account under the general rule of paragraph (f)(3)(ii)(A) of this 
section and are amortized under section 197. In addition, the 
capitalized costs of entering into the contract for use of the customer 
list are treated in the same manner as in Example 7.
    Example 11. Loss disallowance rules involving related persons. (i) 
Assume that X and Y are treated as a single taxpayer for purposes of 
paragraph (g)(1) of this section. In a single transaction, X and Y 
acquired from Z all of the assets used by Z in a trade or business. Z 
had operated this business at two locations, and X and Y each acquired 
the assets used by Z at one of the locations. Three years after the 
acquisition, X sold all of the assets it acquired, including amortizable 
section 197 intangibles, to an unrelated purchaser. The amortizable 
section intangibles are sold at a loss of $120,000.
    (ii) Because X and Y are treated as a single taxpayer for purposes 
of the loss disallowance rules of section 197(f)(1) and paragraph (g)(1) 
of this section, X's loss on the sale of the amortizable section 197 
intangibles is not recognized. Under paragraph (g)(1)(iv)(B) of this 
section, X's disallowed loss is allowed ratably, as a deduction under 
section 197, over the remainder of the 15-year period during which the 
intangibles would have been amortized, and Y may not increase the basis 
of the amortizable section 197 intangibles that it acquired from Z by 
the amount of X's disallowed loss.
    Example 12. Disposition of retained intangibles by related person. 
(i) The facts are the same as in Example 11, except that 10 years after 
the acquisition of the assets by X and Y and 7 years after the sale of 
the assets by X, Y sells all of the assets acquired from Z, including 
amortizable section 197 intangibles, to an unrelated purchaser.
    (ii) Under paragraph (g)(1)(iv)(B) of this section, X may recognize, 
on the date of the sale by Y, any loss that has not been allowed as a 
deduction under section 197. Accordingly, X recognizes a loss of 
$50,000, the amount obtained by reducing the loss on the sale of the 
assets at the end of the third year ($120,000) by the amount allowed as 
a deduction under paragraph (g)(1)(iv)(B) of this section during the 7 
years following the sale by X ($70,000).
    Example 13. Acquisition of an interest in partnership with no 
section 754 election. (i) A, B, and C each contribute $1,500 for equal 
shares in general partnership P. On January 1, 1998, P acquires as its 
sole asset an amortizable section 197 intangible for $4,500. P still 
holds the intangible on January 1, 2003, at which time the intangible 
has an adjusted basis to P of $3,000, and A, B, and C each have an 
adjusted basis of $1,000 in their partnership interests. D (who is not 
related to A) acquires A's interest in P for $1,600. No section 754 
election is in effect for 2003.
    (ii) Because there is no change in the basis of the intangible under 
section 743(b), D merely steps into the shoes of A with respect to the 
intangible. D's proportionate share of P's adjusted basis in the 
intangible is $1,000, which continues to be amortized over the 10 years 
remaining in the original 15-year amortization period for the 
intangible.
    Example 14. Acquisition of an interest in partnership with a section 
754 election. (i) The facts are the same as in Example 13, except that a 
section 754 election is in effect for 2003.
    (ii) Pursuant to paragraph (g)(3) of this section, for purposes of 
section 197, D is treated as if P owns two assets. D's proportionate 
share of P's adjusted basis in one asset is $1,000, which continues to 
be amortized over the 10 years remaining in the

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original 15-year amortization period. For the other asset, D's 
proportionate share of P's adjusted basis is $600 (the amount of the 
basis increase under section 743 as a result of the section 754 
election), which is amortized over a new 15-year period beginning 
January 2003. With respect to B and C, P's remaining $2,000 adjusted 
basis in the intangible continues to be amortized over the 10 years 
remaining in the original 15-year amortization period.
    Example 15. Payment to a retiring partner by partnership with a 
section 754 election. (i) The facts are the same as in Example 13, 
except that a section 754 election is in effect for 2003 and, instead of 
D acquiring A's interest in P, A retires from P. A, B, and C are not 
related to each other within the meaning of paragraph (h)(6) of this 
section. P borrows $1,600, and A receives a payment under section 736 
from P of such amount, all of which is in exchange for A's interest in 
the intangible asset owned by P. (Assume, for purposes of this example, 
that the borrowing by P and payment of such funds to A does not give 
rise to a disguised sale of A's partnership interest under section 
707(a)(2)(B).) P makes a positive basis adjustment of $600 with respect 
to the section 197 intangible under section 734(b).
    (ii) Pursuant to paragraph (g)(3) of this section, because of the 
section 734 adjustment, P is treated as having two amortizable section 
197 intangibles, one with a basis of $3,000 and a remaining amortization 
period of 10 years and the other with a basis of $600 and a new 
amortization period of 15 years.
    Example 16. Termination of partnership under section 708(b)(1)(B). 
(i) A and B are partners with equal shares in the capital and profits of 
general partnership P. P's only asset is an amortizable section 197 
intangible, which P had acquired on January 1, 1995. On January 1, 2000, 
the asset had a fair market value of $100 and a basis to P of $50. On 
that date, A sells his entire partnership interest in P to C, who is 
unrelated to A, for $50. At the time of the sale, the basis of each of A 
and B in their respective partnership interests is $25.
    (ii) The sale causes a termination of P under section 708(b)(1)(B). 
Under section 708, the transaction is treated as if P transfers its sole 
asset to a new partnership in exchange for the assumption of its 
liabilities and the receipt of all of the interests in the new 
partnership. Immediately thereafter, P is treated as if it is 
liquidated, with B and C each receiving their proportionate share of the 
interests in the new partnership. The contribution by P of its asset to 
the new partnership is governed by section 721, and the liquidating 
distributions by P of the interests in the new partnership are governed 
by section 731. C does not realize a basis adjustment under section 743 
with respect to the amortizable section 197 intangible unless P had a 
section 754 election in effect for its taxable year in which the 
transfer of the partnership interest to C occurred or the taxable year 
in which the deemed liquidation of P occurred.
    (iii) Under section 197, if P had a section 754 election in effect, 
C is treated as if the new partnership had acquired two assets from P 
immediately preceding its termination. Even though the adjusted basis of 
the new partnership in the two assets is determined solely under section 
723, because the transfer of assets is a transaction described in 
section 721, the application of sections 743(b) and 754 to P immediately 
before its termination causes P to be treated as if it held two assets 
for purposes of section 197. See paragraph (g)(3) of this section. B's 
and C's proportionate share of the new partnership's adjusted basis is 
$25 each in one asset, which continues to be amortized over the 10 years 
remaining in the original 15-year amortization period. For the other 
asset, C's proportionate share of the new partnership's adjusted basis 
is $25 (the amount of the basis increase resulting from the application 
of section 743 to the sale or exchange by A of the interest in P), which 
is amortized over a new 15-year period beginning in January 2000.
    (iv) If P did not have a section 754 election in effect for its 
taxable year in which the sale of the partnership interest by A to C 
occurred or the taxable year in which the deemed liquidation of P 
occurred, the adjusted basis of the new partnership in the amortizable 
section 197 intangible is determined solely under section 723, because 
the transfer is a transaction described in section 721, and P does not 
have a basis increase in the intangible. Under section 197(f)(2) and 
paragraph (g)(2)(ii) of this section, the new partnership continues to 
amortize the intangible over the 10 years remaining in the original 15-
year amortization period. No additional amortization is allowable with 
respect to this asset.
    Example 17. Disguised sale to partnership. (i) E and F are 
individuals who are unrelated to each other within the meaning of 
paragraph (h)(6) of this section. E has been engaged in the active 
conduct of a trade or business as a sole proprietor since 1990. E and F 
form EF Partnership. E transfers all of the assets of the business, 
having a fair market value of $100, to EF, and F transfers $40 of cash 
to EF. E receives a 60 percent interest in EF and the $40 of cash 
contributed by F, and F receives a 40 percent interest in EF, under 
circumstances in which the transfer by E is partially treated as a sale 
of property to EF under Sec. 1.707-3(b).
    (ii) Under Sec. 1.707-3(a)(1), the transaction is treated as if E 
had sold to EF a 40 percent interest in each asset for $40 and 
contributed the remaining 60 percent interest in each

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asset to EF in exchange solely for an interest in EF. Because E and EF 
are related persons within the meaning of paragraph (h)(6) of this 
section, no portion of any transferred section 197(f)(9) intangible that 
E held during the transition period (as defined in paragraph (h)(4) of 
this section) is an amortizable section 197 intangible pursuant to 
paragraph (h)(2) of this section. Section 197(f)(9)(F) and paragraph 
(g)(3) of this section do not apply to any portion of the section 197 
intangible in the hands of EF because the basis of EF in these assets 
was not increased under any of sections 732, 734, or 743.
    Example 18. Acquisition by related person in nonrecognition 
transaction. (i) A owns a nonamortizable intangible that A acquired in 
1990. In 2000, A sells a one-half interest in the intangible to B for 
cash. Immediately after the sale, A and B, who are unrelated to each 
other, form partnership P as equal partners. A and B each contribute 
their one-half interest in the intangible to P.
    (ii) P has a transferred basis in the intangible from A and B under 
section 723. The nonrecognition transfer rule under paragraph (g)(2)(ii) 
of this section applies to A's transfer of its one-half interest in the 
intangible to P, and consequently P steps into A's shoes with respect to 
A's nonamortizable transferred basis. The anti-churning rules of 
paragraph (h) of this section apply to B's transfer of its one-half 
interest in the intangible to P, because A, who is related to P under 
paragraph (h)(6) of this section immediately after the series of 
transactions in which the intangible was acquired by P, held B's one-
half interest in the intangible during the transition period. Pursuant 
to paragraph (h)(10) of this section, these rules apply to B's transfer 
of its one-half interest to P even though the nonrecognition transfer 
rule under paragraph (g)(2)(ii) of this section would have permitted P 
to step into B's shoes with respect to B's otherwise amortizable basis. 
Therefore, P's entire basis in the intangible is nonamortizable. 
However, if A (not B) elects to recognize gain under paragraph (h)(9) of 
this section on the transfer of each of the one-half interests in the 
intangible to B and P, then the intangible would be amortizable by P to 
the extent provided in section 197(f)(9)(B) and paragraph (h)(9) of this 
section.
    Example 19. Acquisition of partnership interest following formation 
of partnership. (i) The facts are the same as in Example 18 except that, 
in 2000, A formed P with an affiliate, S, and contributed the intangible 
to the partnership and except that in a subsequent year, in a 
transaction that is properly characterized as a sale of a partnership 
interest for Federal tax purposes, B purchases a 50 percent interest in 
P from A. P has a section 754 election in effect and holds no assets 
other than the intangible and cash.
    (ii) For the reasons set forth in Example 16 (iii), B is treated as 
if P owns two assets. B's proportionate share of P's adjusted basis in 
one asset is the same as A's proportionate share of P's adjusted basis 
in that asset, which is not amortizable under section 197. For the other 
asset, B's proportionate share of the remaining adjusted basis of P is 
amortized over a new 15-year period.
    Example 20. Acquisition by related corporation in nonrecognition 
transaction. (i) The facts are the same as Example 18, except that A and 
B form corporation P as equal owners.
    (ii) P has a transferred basis in the intangible from A and B under 
section 362. Pursuant to paragraph (h)(10) of this section, the 
application of the nonrecognition transfer rule under paragraph 
(g)(2)(ii) of this section and the anti-churning rules of paragraph (h) 
of this section to the facts of this Example 18 is the same as in 
Example 16. Thus, P's entire basis in the intangible is nonamortizable.
    Example 21. Acquisition from corporation related to purchaser 
through remote indirect interest. (i) X, Y, and Z are each corporations 
that have only one class of issued and outstanding stock. X owns 25 
percent of the stock of Y and Y owns 25 percent of the outstanding stock 
of Z. No other shareholder of any of these corporations is related to 
any other shareholder or to any of the corporations. On June 30, 2000, X 
purchases from Z section 197(f)(9) intangibles that Z owned during the 
transition period (as defined in paragraph (h)(4) of this section).
    (ii) Pursuant to paragraph (h)(6)(iv)(B) of this section, the 
beneficial ownership interest of X in Z is 6.25 percent, determined by 
treating X as if it owned a proportionate (25 percent) interest in the 
stock of Z that is actually owned by Y. Thus, even though X is related 
to Y and Y is related to Z, X and Z are not considered to be related for 
purposes of the anti-churning rules of section 197.
    Example 22. Gain recognition election. (i) B owns 25 percent of the 
stock of S, a corporation that uses the calendar year as its taxable 
year. No other shareholder of B or S is related to each other. S is not 
a member of a controlled group of corporations within the meaning of 
section 1563(a). S has section 197(f)(9) intangibles that it owned 
during the transition period. S has a basis of $25,000 in the 
intangibles. In 2001, S sells these intangibles to B for $75,000. S 
recognizes a gain of $50,000 on the sale and has no other items of 
income, deduction, gain, or loss for the year, except that S also has a 
net operating loss of $20,000 from prior years that it would otherwise 
be entitled to use in 2001 pursuant to section 172(b). S makes a valid 
gain recognition election pursuant to section 197(f)(9)(B) and paragraph 
(h)(9) of this section. In 2001, the highest marginal tax rate 
applicable to S is 35 percent. But for the election, all of S's taxable 
income would be taxed at a rate of 15 percent.

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    (ii) If the gain recognition election had not been made, S would 
have taxable income of $30,000 for 2001 and a tax liability of $4,500. 
If the gain were not taken into account, S would have no tax liability 
for the taxable year. Thus, the amount of tax (other than the tax 
imposed under paragraph (h)(9) of this section) imposed on the gain is 
also $4,500. The gain on the disposition multiplied by the highest 
marginal tax rate is $17,500 ($50,000 x .35). Accordingly, S's tax 
liability for the year is $4,500 plus an additional tax under paragraph 
(h)(9) of this section of $13,000 ($17,500--$4,500).
    (iii) Pursuant to paragraph (h)(9)(x)(A) of this section, S 
determines the amount of its net operating loss deduction in subsequent 
years without regard to the gain recognized on the sale of the section 
197 intangible to B. Accordingly, the entire $20,000 net operating loss 
deduction that would have been available in 2001 but for the gain 
recognition election may be used in 2002, subject to the limitations of 
section 172.
    (iv) B has a basis of $75,000 in the section 197(f)(9) intangibles 
acquired from S. As the result of the gain recognition election by S, B 
may amortize $50,000 of its basis under section 197. Under paragraph 
(h)(9)(ii) of this section, the remaining basis does not qualify for the 
gain-recognition exception and may not be amortized by B.
    Example 23. Section 338 election. (i) Corporation P makes a 
qualified stock purchase of the stock of T corporation from two 
shareholders in July 2000, and a section 338 election is made by P. No 
shareholder of either T or P owns stock in both of these corporations, 
and no other shareholder is related to any other shareholder of either 
corporation.
    (ii) Pursuant to paragraph (h)(8) of this section, in the case of a 
qualified stock purchase that is treated as a deemed sale and purchase 
of assets pursuant to section 338, the corporation treated as purchasing 
assets as a result of an election thereunder (new target) is not 
considered the person that held or used the assets during any period in 
which the assets were held or used by the corporation treated as selling 
the assets (old target). Because there are no relationships described in 
paragraph (h)(6) of this section among the parties to the transaction, 
any nonamortizable section 197(f)(9) intangible held by old target is an 
amortizable section 197 intangible in the hands of new target.
    (iii) Assume the same facts as set forth in paragraph (i) of this 
Example 23, except that one of the selling shareholders is an individual 
who owns 25 percent of the total value of the stock of each of the T and 
P corporation.
    (iv) Old target and new target (as these terms are defined in Sec. 
1.338-2(c)(17)) are members of a controlled group of corporations under 
section 267(b)(3), as modified by section 197(f)(9)(C)(i), and any 
nonamortizable section 197(f)(9) intangible held by old target is not an 
amortizable section 197 intangible in the hands of new target. However, 
a gain recognition election under paragraph (h)(9) of this section may 
be made with respect to this transaction.
    Example 24. Relationship created as part of public offering. (i) On 
January 1, 2001, Corporation X engages in a series of related 
transactions to discontinue its involvement in one line of business. X 
forms a new corporation, Y, with a nominal amount of cash. Shortly 
thereafter, X transfers all the stock of its subsidiary conducting the 
unwanted business (Target) to Y in exchange for 100 shares of Y common 
stock and a Y promissory note. Target owns a nonamortizable section 
197(f)(9) intangible. Prior to January 1, 2001, X and an underwriter (U) 
had entered into a binding agreement pursuant to which U would purchase 
85 shares of Y common stock from X and then sell those shares in a 
public offering. On January 6, 2001, the public offering closes. X and Y 
make a section 338(h)(10) election for Target.
    (ii) Pursuant to paragraph (h)(8) of this section, in the case of a 
qualified stock purchase that is treated as a deemed sale and purchase 
of assets pursuant to section 338, the corporation treated as purchasing 
assets as a result of an election thereunder (new target) is not 
considered the person that held or used the assets during any period in 
which the assets were held or used by the corporation treated as selling 
the assets (old target). Further, for purposes of determining whether 
the nonamortizable section 197(f)(9) intangible is acquired by new 
target from a related person, because the transactions are a series of 
related transactions, the relationship between old target and new target 
must be tested immediately before the first transaction in the series 
(the formation of Y) and immediately after the last transaction in the 
series (the sale to U and the public offering). See paragraph 
(h)(6)(ii)(B) of this section. Because there was no relationship between 
old target and new target immediately before the formation of Y (because 
the section 338 election had not been made) and only a 15% relationship 
between old target and new target immediately after, old target is not 
related to new target for purposes of applying the anti-churning rules 
of paragraph (h) of this section. Accordingly, Target may amortize the 
section 197 intangible.
    Example 25. Other transfers to controlled corporations. (i) In 2001, 
Corporation A transfers a section 197(f)(9) intangible that it held 
during the transition period to X, a newly formed corporation, in 
exchange for 15% of X's stock. As part of the same transaction, B 
transfers property to X in exchange for the remaining 85% of X stock.
    (ii) Because the acquisition of the intangible by X is part of a 
qualifying section 351

[[Page 328]]

exchange, under section 197(f)(2) and paragraph (g)(2)(ii) of this 
section, X is treated in the same manner as the transferor of the asset. 
Accordingly, X may not amortize the intangible. If, however, at the time 
of the exchange, B has a binding commitment to sell 25 percent of the X 
stock to C, an unrelated third party, the exchange, including A's 
transfer of the section 197(f)(9) intangible, would fail to qualify as a 
section 351 exchange. Because the formation of X, the transfers of 
property to X, and the sale of X stock by B are part of a series of 
related transactions, the relationship between A and X must be tested 
immediately before the first transaction in the series (the transfer of 
property to X) and immediately after the last transaction in the series 
(the sale of X stock to C). See paragraph (h)(6)(ii)(B) of this section. 
Because there was no relationship between A and X immediately before and 
only a 15% relationship immediately after, A is not related to X for 
purposes of applying the anti-churning rules of paragraph (h) of this 
section. Accordingly, X may amortize the section 197 intangible.
    Example 26. Relationship created as part of stock acquisition 
followed by liquidation. (i) In 2001, Partnership P purchases 100 
percent of the stock of Corporation X. P and X were not related prior to 
the acquisition. Immediately after acquiring the X stock, and as part of 
a series of related transactions, P liquidates X under section 331. In 
the liquidating distribution, P receives a section 197(f)(9) intangible 
that was held by X during the transition period.
    (ii) Because the relationship between P and X was created pursuant 
to a series of related transactions where P acquires stock (meeting the 
requirements of section 1504(a)(2)) in a fully taxable transaction 
followed by a liquidation under section 331, the relationship 
immediately after the last transaction in the series (the liquidation) 
is disregarded. See paragraph (h)(6)(iii) of this section. Accordingly, 
P is entitled to amortize the section 197(f)(9) intangible.
    Example 27. Section 743(b) adjustment with no change in user. (i) On 
January 1, 2001, A forms a partnership (PRS) with B in which A owns a 
40-percent, and B owns a 60-percent, interest in profits and capital. A 
contributes a nonamortizable section 197(f)(9) intangible with a value 
of $80 and an adjusted basis of $0 to PRS in exchange for its PRS 
interest and B contributes $120 cash. At the time of the contribution, 
PRS licenses the section 197(f)(9) intangible to A. On February 1, 2001, 
A sells its entire interest in PRS to C, an unrelated person, for $80. 
PRS has a section 754 election in effect.
    (ii) The section 197(f)(9) intangible contributed to PRS by A is not 
amortizable in the hands of PRS. Pursuant to section (g)(2)(ii) of this 
section, PRS steps into the shoes of A with respect to A's 
nonamortizable transferred basis in the intangible.
    (iii) When A sells the PRS interest to C, C will have a basis 
adjustment in the PRS assets under section 743(b) equal to $80. The 
entire basis adjustment will be allocated to the intangible because the 
only other asset held by PRS is cash. Ordinarily, under paragraph 
(h)(12)(v) of this section, the anti-churning rules will not apply to an 
increase in the basis of partnership property under section 743(b) if 
the person acquiring the partnership interest is not related to the 
person transferring the partnership interest. However, A is an anti-
churning partner under paragraph (h)(12)(vi)(B)(2)(i) of this section. 
As a result of the license agreement, A remains a direct user of the 
section 197(f)(9) intangible after the transfer to C. Accordingly, 
paragraph (h)(12)(vi)(A) of this section will cause the anti-churning 
rules to apply to the entire basis adjustment under section 743(b).
    Example 28. Distribution of section 197(f)(9) intangible to partner 
who acquired partnership interest prior to the effective date. (i) In 
1990, A, B, and C each contribute $150 cash to form general partnership 
ABC for the purpose of engaging in a consulting business and a software 
manufacturing business. The partners agree to share partnership profits 
and losses equally. In 2000, the partnership distributes the consulting 
business to A in liquidation of A's entire interest in ABC. The only 
asset of the consulting business is a nonamortizable intangible, which 
has a fair market value of $180 and a basis of $0. At the time of the 
distribution, the adjusted basis of A's interest in ABC is $150. A is 
not related to B or C. ABC does not have a section 754 election in 
effect.
    (ii) Under section 732(b), A's adjusted basis in the intangible 
distributed by ABC is $150, a $150 increase over the basis of the 
intangible in ABC's hands. In determining whether the anti-churning 
rules apply to any portion of the basis increase, A is treated as having 
owned and used A's proportionate share of partnership property. Thus, A 
is treated as holding an interest in the intangible during the 
transition period. Because the intangible was not amortizable prior to 
the enactment of section 197, the section 732(b) increase in the basis 
of the intangible may be subject to the anti-churning provisions. 
Paragraph (h)(12)(ii) of this section provides that the anti-churning 
provisions apply to the extent that the section 732(b) adjustment 
exceeds the total unrealized appreciation from the intangible allocable 
to partners other than A or persons related to A, as well as certain 
other partners whose purchase of their interests meet certain criteria. 
Because B and C are not related to A, and A's acquisition of its 
partnership interest does not satisfy the necessary criteria, the 
section 732(b) basis increase is subject to the anti-churning provisions 
to the extent

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that it exceeds B and C's proportionate share of the unrealized 
appreciation from the intangible. B and C's proportionate share of the 
unrealized appreciation from the intangible is $120 (2/3 of $180). This 
is the amount of gain that would be allocated to B and C if the 
partnership sold the intangible immediately before the distribution for 
its fair market value of $180. Therefore, $120 of the section 732(b) 
basis increase is not subject to the anti-churning rules. The remaining 
$30 of the section 732(b) basis increase is subject to the anti-churning 
rules. Accordingly, A is treated as having two intangibles, an 
amortizable section 197 intangible with an adjusted basis of $120 and a 
new amortization period of 15 years and a nonamortizable intangible with 
an adjusted basis of $30.
    (iii) In applying the anti-churning rules to future transfers of the 
distributed intangible, under paragraph (h)(12)(ii)(C) of this section, 
one-third of the intangible will continue to be subject to the anti-
churning rules, determined as follows: The sum of the amount of the 
distributed intangible's basis that is nonamortizable under paragraph 
(g)(2)(ii)(B) of this section ($0) and the total unrealized appreciation 
inherent in the intangible reduced by the amount of the increase in the 
adjusted basis of the distributed intangible under section 732(b) to 
which the anti-churning rules do not apply ($180-$120 = $60), over the 
fair market value of the distributed intangible ($180).
    Example 29. Distribution of section 197(f)(9) intangible to partner 
who acquired partnership interest after the effective date. (i) The 
facts are the same as in Example 28, except that B and C form ABC in 
1990. A does not acquire an interest in ABC until 1995. In 1995, A 
contributes $150 to ABC in exchange for a one-third interest in ABC. At 
the time of the distribution, the adjusted basis of A's interest in ABC 
is $150.
    (ii) As in Example 28, the anti-churning rules do not apply to the 
increase in the basis of the intangible distributed to A under section 
732(b) to the extent that it does not exceed the unrealized appreciation 
from the intangible allocable to B and C. Under paragraph (h)(12)(ii) of 
this section, the anti-churning provisions also do not apply to the 
section 732(b) basis increase to the extent of A's allocable share of 
the unrealized appreciation from the intangible because A acquired the 
ABC interest from an unrelated person after August 10, 1993, and the 
intangible was acquired by the partnership before A acquired the ABC 
interest. Under paragraph (h)(12)(ii)(E) of this section, A is deemed to 
acquire the ABC partnership interest from an unrelated person because A 
acquired the ABC partnership interest in exchange for a contribution to 
the partnership of property other than the distributed intangible and, 
at the time of the contribution, no partner in the partnership was 
related to A. Consequently, the increase in the basis of the intangible 
under section 732(b) is not subject to the anti-churning rules to the 
extent of the total unrealized appreciation from the intangible 
allocable to A, B, and C. The total unrealized appreciation from the 
intangible allocable to A, B, and C is $180 (the gain the partnership 
would have recognized if it had sold the intangible for its fair market 
value immediately before the distribution). Because this amount exceeds 
the section 732(b) basis increase of $150, the entire section 732(b) 
basis increase is amortizable.
    (iii) In applying the anti-churning rules to future transfers of the 
distributed intangible, under paragraph (h)(12)(ii)(C) of this section, 
one-sixth of the intangible will continue to be subject to the anti-
churning rules, determined as follows: The sum of the amount of the 
distributed intangible's basis that is nonamortizable under paragraph 
(g)(2)(ii)(B) of this section ($0) and the total unrealized appreciation 
inherent in the intangible reduced by the amount of the increase in the 
adjusted basis of the distributed intangible under section 732(b) to 
which the anti-churning rules do not apply ($180-$150 = $30), over the 
fair market value of the distributed intangible ($180).
    Example 30. Distribution of section 197(f)(9) intangible contributed 
to the partnership by a partner. (i) The facts are the same as in 
Example 29, except that C purchased the intangible used in the 
consulting business in 1988 for $60 and contributed the intangible to 
ABC in 1990. At that time, the intangible had a fair market value of 
$150 and an adjusted tax basis of $60. When ABC distributes the 
intangible to A in 2000, the intangible has a fair market value of $180 
and a basis of $60.
    (ii) As in Examples 28 and 29, the adjusted basis of the intangible 
in A's hands is $150 under section 732(b). However, the increase in the 
adjusted basis of the intangible under section 732(b) is only $90 ($150 
adjusted basis after the distribution compared to $60 basis before the 
distribution). Pursuant to paragraph (g)(2)(ii)(B) of this section, A 
steps into the shoes of ABC with respect to the $60 of A's adjusted 
basis in the intangible that corresponds to ABC's basis in the 
intangible and this portion of the basis is nonamortizable. B and C are 
not related to A, A acquired the ABC interest from an unrelated person 
after August 10, 1993, and the intangible was acquired by ABC before A 
acquired the ABC interest. Therefore, under paragraph (h)(12)(ii) of 
this section, the section 732(b) basis increase is amortizable to the 
extent of A, B, and C's allocable share of the unrealized appreciation 
from the intangible. The total unrealized appreciation from the 
intangible that is allocable to A, B, and C is $120. If ABC had sold the 
intangible immediately before the distribution to A for its

[[Page 330]]

fair market value of $180, it would have recognized gain of $120, which 
would have been allocated $10 to A, $10 to B, and $100 to C under 
section 704(c). Because A, B, and C's allocable share of the unrealized 
appreciation from the intangible exceeds the section 732(b) basis 
increase in the intangible, the entire $90 of basis increase is 
amortizable by A. Accordingly, after the distribution, A will be treated 
as having two intangibles, an amortizable section 197 intangible with an 
adjusted basis of $90 and a new amortization period of 15 years and a 
nonamortizable intangible with an adjusted basis of $60.
    (iii) In applying the anti-churning rules to future transfers of the 
distributed intangible, under paragraph (h)(12)(ii)(C) of this section, 
one-half of the intangible will continue to be subject to the anti-
churning rules, determined as follows: The sum of the amount of the 
distributed intangible's basis that is nonamortizable under paragraph 
(g)(2)(ii)(B) of this section ($60) and the total unrealized 
appreciation inherent in the intangible reduced by the amount of the 
increase in the adjusted basis of the distributed intangible under 
section 732(b) to which the anti-churning rules do not apply ($120-$90 = 
$30), over the fair market value of the distributed intangible ($180).
    Example 31. Partnership distribution causing section 734(b) basis 
adjustment to section 197(f)(9) intangible. (i) On January 1, 2001, A, 
B, and C form a partnership (ABC) in which each partner shares equally 
in capital and income, gain, loss, and deductions. On that date, A 
contributes a section 197(f)(9) intangible with a zero basis and a value 
of $150, and B and C each contribute $150 cash. A and B are related, but 
neither A nor B is related to C. ABC does not adopt the remedial 
allocation method for making section 704(c) allocations of amortization 
expenses with respect to the intangible. On December 1, 2004, when the 
value of the intangible has increased to $600, ABC distributes $300 to B 
in complete redemption of B's interest in the partnership. ABC has an 
election under section 754 in effect for the taxable year that includes 
December 1, 2004. (Assume that, at the time of the distribution, the 
basis of A's partnership interest remains zero, and the basis of each of 
B's and C's partnership interest remains $150.)
    (ii) Immediately prior to the distribution, the assets of the 
partnership are revalued pursuant to Sec. 1.704-1(b)(2)(iv)(f), so that 
the section 197(f)(9) intangible is reflected on the books of the 
partnership at a value of $600. B recognizes $150 of gain under section 
731(a)(1) upon the distribution of $300 in redemption of B's partnership 
interest. As a result, the adjusted basis of the intangible held by ABC 
increases by $150 under section 734(b). A does not satisfy any of the 
tests set forth under paragraph (h)(12)(iv)(B) and thus is not an 
eligible partner. C is not related to B and thus is an eligible partner 
under paragraph (h)(12)(iv)(B)(1) of this section. The capital accounts 
of A and C are equal immediately after the distribution, so, pursuant to 
paragraph (h)(12)(iv)(D)(1) of this section, each partner's share of the 
basis increase is equal to $75. Because A is not an eligible partner, 
the anti-churning rules apply to A's share of the basis increase. The 
anti-churning rules do not apply to C's share of the basis increase.
    (iii) For book purposes, ABC determines the amortization of the 
asset as follows: First, the intangible that is subject to adjustment 
under section 734(b) will be divided into three assets: the first, with 
a basis and value of $75 will be amortizable for both book and tax 
purposes; the second, with a basis and value of $75 will be amortizable 
for book, but not tax purposes; and a third asset with a basis of zero 
and a value of $450 will not be amortizable for book or tax purposes. 
Any subsequent revaluation of the intangible pursuant to Sec. 1.704-
1(b)(2)(iv)(f) will be made solely with respect to the third asset 
(which is not amortizable for book purposes). The book and tax 
attributes from the first asset (i.e., book and tax amortization) will 
be specially allocated to C. The book and tax attributes from the second 
asset (i.e., book amortization and non-amortizable tax basis) will be 
specially allocated to A. Upon disposition of the intangible, each 
partner's share of gain or loss will be determined first by allocating 
among the partners an amount realized equal to the book value of the 
intangible attributable to such partner, with any remaining amount 
realized being allocated in accordance with the partnership agreement. 
Each partner then will compare its share of the amount realized with its 
remaining basis in the intangible to arrive at the gain or loss to be 
allocated to such partner. This is a reasonable method for amortizing 
the intangible for book purposes, and the results in allocating the 
income, gain, loss, and deductions attributable to the intangible do not 
contravene the purposes of the anti-churning rules under section 197 or 
paragraph (h) of this section.

    (l) Effective dates--(1) In general. This section applies to 
property acquired after January 25, 2000, except that paragraph (c)(13) 
of this section (exception from section 197 for separately acquired 
rights of fixed duration or amount) applies to property acquired after 
August 10, 1993 (or July 25, 1991, if a valid retroactive election has 
been made under Sec. 1.197-1T), and paragraphs (h)(12)(ii), (iii), 
(iv), (v), (vi)(A), and (vii)(B) of this section (anti-churning rules 
applicable to partnerships) apply

[[Page 331]]

to partnership transactions occurring on or after November 20, 2000.
    (2) Application to pre-effective date acquisitions. A taxpayer may 
choose, on a transaction-by-transaction basis, to apply the provisions 
of this section and Sec. 1.167(a)-14 to property acquired (or 
partnership transactions occurring) after August 10, 1993 (or July 25, 
1991, if a valid retroactive election has been made under Sec. 1.197-
1T) and--
    (i) On or before January 25, 2000; or
    (ii) With respect to paragraphs (h)(12)(ii), (iii), (iv), (v), 
(vi)(A), and (vii)(B) of this section, before November 20, 2000.
    (3) Application of regulation project REG-209709-94 to pre-effective 
date acquisitions. A taxpayer may rely on the provisions of regulation 
project REG-209709-94 (1997-1 C.B. 731) for property acquired after 
August 10, 1993 (or July 25, 1991, if a valid retroactive election has 
been made under Sec. 1.197-1T) and on or before January 25, 2000.
    (4) Change in method of accounting--(i) In general. For the first 
taxable year ending after January 25, 2000, a taxpayer that has acquired 
property to which the exception in Sec. 1.197-2(c)(13) applies is 
granted consent of the Commissioner to change its method of accounting 
for such property to comply with the provisions of this section and 
Sec. 1.167(a)-14 unless the proper treatment of such property is an 
issue under consideration (within the meaning of Rev. Proc. 97-27 (1997-
21 IRB 10)(see Sec. 601.601(d)(2) of this chapter)) in an examination, 
before an Appeals office, or before a Federal court.
    (ii) Application to pre-effective date acquisitions. For the first 
taxable year ending after January 25, 2000, a taxpayer is granted 
consent of the Commissioner to change its method of accounting for all 
property acquired in transactions described in paragraph (l)(2) of this 
section to comply with the provisions of this section and Sec. 
1.167(a)-14 unless the proper treatment of any such property is an issue 
under consideration (within the meaning of Rev. Proc. 97-27 (1997-21 IRB 
10)(see Sec. 601.601(d)(2) of this chapter)) in an examination, before 
an Appeals office, or before a Federal court.
    (iii) Automatic change procedures. A taxpayer changing its method of 
accounting in accordance with this paragraph (l)(4) must follow the 
automatic change in accounting method provisions of Rev. Proc. 99-49 
(1999-52 IRB 725)(see Sec. 601.601(d)(2) of this chapter) except, for 
purposes of this paragraph (l)(4), the scope limitations in section 4.02 
of Rev. Proc. 99-49 (1999-52 IRB 725) are not applicable. However, if 
the taxpayer is under examination, before an appeals office, or before a 
Federal court, the taxpayer must provide a copy of the application to 
the examining agent(s), appeals officer, or counsel for the government, 
as appropriate, at the same time that it files the copy of the 
application with the National Office. The application must contain the 
name(s) and telephone number(s) of the examining agent(s), appeals 
officer, or counsel for the government, as appropriate.

[T.D. 8865, 65 FR 3827, Jan. 25, 2000; 65 FR 16318, Mar. 28, 2000; 65 FR 
60585, Oct. 12, 2000, as amended by T.D. 8907, 65 FR 69671, Nov. 20, 
2000; T.D. 8940, 66 FR 9929, Feb. 13, 2001; 66 FR 17363, Mar. 30, 2001; 
67 FR 22286, May 3, 2002; T.D. 9257, 71 FR 17996, Apr. 10, 2006; 73 FR 
3869, Jan. 23, 2008; T.D. 9533, 76 FR 39280, July 6, 2011]



Sec. 1.197-2T  Amortization of goodwill and certain other intangibles 
(temporary).

    (a) through (b)(6) [Reserved] For further guidance, see Sec. 1.197-
2(a) through (b)(6).
    (7) Supplier-based intangibles--(i) In general. Section 197 
intangibles include any supplier-based intangible. A supplier-based 
intangible is the value resulting from the future acquisition, pursuant 
to contractual or other relationships with suppliers in the ordinary 
course of business, of goods or services that will be sold or used by 
the taxpayer. Thus, the amount paid or incurred for supplier-based 
intangibles includes, for example, any portion of the purchase price of 
an acquired trade or business attributable to the existence of a 
favorable relationship with persons providing distribution services 
(such as favorable shelf or display space at a retail outlet), or the 
existence of favorable supply contracts. The amount paid or incurred for 
supplier-based intangibles does not include any amount required to be 
paid for the goods or services themselves pursuant

[[Page 332]]

to the terms of the agreement or other relationship. In addition, see 
the exceptions in Sec. 1.197-2(c), including the exception in Sec. 
1.197-2(c)(6) for certain rights to receive tangible property or 
services from another person.
    (ii) Effective/applicability date. This section applies to supplier-
based intangibles acquired after July 6, 2011.
    (iii) Expiration date. The applicability of this section expires on 
or before July 1, 2014.
    (b)(8) through (l) [Reserved] For further guidance, see Sec. 1.197-
2(b)(8) through (l).

[T.D. 9533, 76 FR 39280, July 6, 2011]



Sec. 1.199-0  Table of contents.

    This section lists the section headings that appear in Sec. Sec. 
1.199-1 through 1.199-9.

  Sec. 1.199-1 Income attributable to domestic production activities.

    (a) In general.
    (b) Taxable income and adjusted gross income.
    (1) In general.
    (2) Examples.
    (c) Qualified production activities income.
    (d) Allocation of gross receipts.
    (1) In general.
    (2) Reasonable method of allocation.
    (3) De minimis rules.
    (i) DPGR.
    (ii) Non-DPGR.
    (4) Example.
    (e) Certain multiple-year transactions.
    (1) Use of historical data.
    (2) Percentage of completion method.
    (3) Examples.

                     Sec. 1.199-2 Wage limitation.

    (a) Rules of application.
    (1) In general.
    (2) Wages paid by entity other than common law employer.
    (3) Requirement that wages must be reported on return filed with the 
Social Security Administration.
    (i) In general.
    (ii) Corrected return filed to correct a return that was filed 
within 60 days of the due date.
    (iii) Corrected return filed to correct a return that was filed 
later than 60 days after the due date.
    (4) Joint return.
    (b) Application in the case of a taxpayer with a short taxable year.
    (c) Acquisition or disposition of a trade or business (or major 
portion).
    (d) Non-duplication rule.
    (e) Definition of W-2 wages.
    (1) In general.
    (2) Limitation on W-2 wages for taxable years beginning after May 
17, 2006, the enactment date of the Tax Increase Prevention and 
Reconciliation Act of 2005.
    (i) In general.
    (ii) Wage expense safe harbor.
    (A) In general.
    (B) Wage expense included in cost of goods sold.
    (iii) Small business simplified overall method safe harbor.
    (iv) Examples.
    (3) Methods for calculating W-2 wages.

            Sec. 1.199-3 Domestic production gross receipts.

    (a) In general.
    (b) Related persons.
    (1) In general.
    (2) Exceptions.
    (c) Definition of gross receipts.
    (d) Determining domestic production gross receipts.
    (1) In general.
    (2) Special rules.
    (3) Exception.
    (4) Examples.
    (e) Definition of manufactured, produced, grown, or extracted.
    (1) In general.
    (2) Packaging, repackaging, labeling, or minor assembly.
    (3) Installing.
    (4) Consistency with section 263A.
    (5) Examples.
    (f) Definition of by the taxpayer.
    (1) In general.
    (2) Special rule for certain government contracts.
    (3) Subcontractor.
    (4) Examples.
    (g) Definition of in whole or in significant part.
    (1) In general.
    (2) Substantial in nature.
    (3) Safe harbor.
    (i) In general.
    (ii) Unadjusted depreciable basis.
    (iii) Computer software and sound recordings.
    (4) Special rules.
    (i) Contract with unrelated persons.
    (ii) Aggregation.
    (5) Examples.
    (h) Definition of United States.
    (i) Derived from the lease, rental, license, sale, exchange, or 
other disposition.
    (1) In general.
    (i) Definition.
    (ii) Lease income.
    (iii) Income substitutes.
    (iv) Exchange of property.
    (A) Taxable exchanges.
    (B) Safe harbor.
    (C) Eligible property.
    (2) Examples.

[[Page 333]]

    (3) Hedging transactions.
    (i) In general.
    (ii) Currency fluctuations.
    (iii) Effect of identification and nonidentification.
    (iv) Other rules.
    (4) Allocation of gross receipts.
    (i) Embedded services and non-qualified property.
    (A) In general.
    (B) Exceptions.
    (ii) Non-DPGR.
    (iii) Examples.
    (5) Advertising income.
    (i) In general.
    (ii) Exceptions.
    (A) Tangible personal property.
    (B) Computer software.
    (C) Qualified film.
    (iii) Examples.
    (6) Computer software.
    (i) In general.
    (ii) Gross receipts derived from services.
    (iii) Exceptions.
    (iv) Definitions and special rules.
    (A) Substantially identical software.
    (B) Safe harbor for computer software games.
    (C) Regular and ongoing basis.
    (D) Attribution.
    (E) Qualified computer software maintenance agreements.
    (F) Advertising income and product-placement income.
    (v) Examples.
    (7) Qualifying in-kind partnership for taxable years beginning after 
May 17, 2006, the enactment date of the Tax Increase Prevention and 
Reconciliation Act of 2005.
    (i) In general.
    (ii) Definition of qualifying in-kind partnership.
    (iii) Other rules.
    (iv) Example.
    (8) Partnerships owned by members of a single expanded affiliated 
group for taxable years beginning after May 17, 2006, the enactment date 
of the Tax Increase Prevention and Reconciliation Act of 2005.
    (i) In general.
    (ii) Attribution of activities.
    (A) In general.
    (B) Attribution between EAG partnerships.
    (C) Exceptions to attribution.
    (iii) Other rules.
    (iv) Examples.
    (9) Non-operating mineral interests.
    (j) Definition of qualifying production property.
    (1) In general.
    (2) Tangible personal property.
    (i) In general.
    (ii) Local law.
    (iii) Intangible property.
    (3) Computer software.
    (i) In general.
    (ii) Incidental and ancillary rights.
    (iii) Exceptions.
    (4) Sound recordings.
    (i) In general.
    (ii) Exception.
    (5) Tangible personal property with computer software or sound 
recordings.
    (i) Computer software and sound recordings.
    (ii) Tangible personal property.
    (k) Definition of qualified film.
    (1) In general.
    (2) Tangible personal property with a film.
    (i) Film not produced by a taxpayer.
    (ii) Film produced by a taxpayer.
    (A) Qualified film.
    (B) Nonqualified film.
    (3) Derived from a qualified film.
    (i) In general.
    (ii) Exceptions.
    (4) Compensation for services.
    (5) Determination of 50 percent.
    (6) Produced by the taxpayer.
    (7) Qualified film produced by the taxpayer--safe harbor.
    (i) Safe harbor.
    (ii) Determination of 50 percent.
    (8) Production pursuant to a contract.
    (9) Exception.
    (10) Examples.
    (l) Electricity, natural gas, or potable water.
    (1) In general.
    (2) Natural gas.
    (3) Potable water.
    (4) Exceptions.
    (i) Electricity.
    (ii) Natural gas.
    (iii) Potable water.
    (iv) De minimis exception.
    (A) DPGR.
    (B) Non-DPGR.
    (5) Example.
    (m) Definition of construction performed in the United States.
    (1) Construction of real property.
    (i) In general.
    (ii) Regular and ongoing basis.
    (A) In general.
    (B) New trade or business.
    (iii) De minimis exception.
    (A) DPGR.
    (B) Non-DPGR.
    (2) Activities constituting construction.
    (i) In general.
    (ii) Tangential services.
    (iii) Other construction activities.
    (iv) Administrative support services.
    (v) Exceptions.
    (3) Definition of real property.
    (4) Definition of infrastructure.
    (5) Definition of substantial renovation.
    (6) Derived from construction.
    (i) In general.
    (ii) Qualified construction warranty.
    (iii) Exceptions.
    (iv) Land safe harbor.
    (A) In general.

[[Page 334]]

    (B) Determining gross receipts and costs.
    (v) Examples.
    (n) Definition of engineering and architectural services.
    (1) In general.
    (2) Engineering services.
    (3) Architectural services.
    (4) Administrative support services.
    (5) Exceptions.
    (6) De minimis exception for performance of services in the United 
States.
    (i) DPGR.
    (ii) Non-DPGR.
    (7) Example.
    (o) Sales of certain food and beverages.
    (1) In general.
    (2) De minimis exception.
    (3) Examples.
    (p) Guaranteed payments.

  Sec. 1.199-4 Costs allocable to domestic production gross receipts.

    (a) In general.
    (b) Cost of goods sold allocable to domestic production gross 
receipts.
    (1) In general.
    (2) Allocating cost of goods sold.
    (i) In general.
    (ii) Gross receipts recognized in an earlier taxable year.
    (3) Special rules for imported items or services.
    (4) Rules for inventories valued at market or bona fide selling 
prices.
    (5) Rules applicable to inventories accounted for under the last-in, 
first-out (LIFO) inventory method.
    (i) In general.
    (ii) LIFO/FIFO ratio method.
    (iii) Change in relative base-year cost method.
    (6) Taxpayers using the simplified production method or simplified 
resale method for additional section 263A costs.
    (7) Examples.
    (c) Other deductions properly allocable to domestic production gross 
receipts or gross income attributable to domestic production gross 
receipts.
    (1) In general.
    (2) Treatment of net operating losses.
    (3) W-2 wages.
    (d) Section 861 method.
    (1) In general.
    (2) Deductions for charitable contributions.
    (3) Research and experimental expenditures.
    (4) Deductions allocated or apportioned to gross receipts treated as 
domestic production gross receipts.
    (5) Treatment of items from a pass-thru entity reporting qualified 
production activities income.
    (6) Examples.
    (e) Simplified deduction method.
    (1) In general.
    (2) Eligible taxpayer.
    (3) Total assets.
    (i) In general.
    (ii) Members of an expanded affiliated group.
    (4) Members of an expanded affiliated group.
    (i) In general.
    (ii) Exception.
    (iii) Examples.
    (f) Small business simplified overall method.
    (1) In general.
    (2) Qualifying small taxpayer.
    (3) Total costs for the current taxable year.
    (i) In general.
    (ii) Land safe harbor.
    (4) Members of an expanded affiliated group.
    (i) In general.
    (ii) Exception.
    (iii) Examples.
    (5) Trusts and estates.
    (g) Average annual gross receipts.
    (1) In general.
    (2) Members of an expanded affiliated group.

   Sec. 1.199-5 Application of section 199 to pass-thru entities for 
 taxable years beginning after May 17, 2006, the enactment date of the 
         Tax Increase Prevention and Reconciliation Act of 2005.

    (a) In general.
    (b) Partnerships.
    (1) In general.
    (i) Determination at partner level.
    (ii) Determination at entity level.
    (2) Disallowed losses or deductions.
    (3) Partner's share of paragraph (e)(1) wages.
    (4) Transition rule for definition of W-2 wages and for W-2 wage 
limitation.
    (5) Partnerships electing out of subchapter K.
    (6) Examples.
    (c) S corporations.
    (1) In general.
    (i) Determination at shareholder level.
    (ii) Determination at entity level.
    (2) Disallowed losses and deductions.
    (3) Shareholder's share of paragraph (e)(1) wages.
    (4) Transition rule for definition of W-2 wages and for W-2 wage 
limitation.
    (d) Grantor trusts.
    (e) Non-grantor trusts and estates.
    (1) Allocation of costs.
    (2) Allocation among trust or estate and beneficiaries.
    (i) In general.
    (ii) Treatment of items from a trust or estate reporting qualified 
production activities income.
    (3) Transition rule for definition of W-2 wages and for W-2 wage 
limitation.
    (4) Example.

[[Page 335]]

    (f) Gain or loss from the disposition of an interest in a pass-thru 
entity.
    (g) No attribution of qualified activities.

       Sec. 1.199-6 Agricultural and horticultural cooperatives.

    (a) In general.
    (b) Cooperative denied section 1382 deduction for portion of 
qualified payments.
    (c) Determining cooperative's qualified production activities income 
and taxable income.
    (d) Special rule for marketing cooperatives.
    (e) Qualified payment.
    (f) Specified agricultural or horticultural cooperative.
    (g) Written notice to patrons.
    (h) Additional rules relating to passthrough of section 199 
deduction.
    (i) W-2 wages.
    (j) Recapture of section 199 deduction.
    (k) Section is exclusive.
    (l) No double counting.
    (m) Examples.

                Sec. 1.199-7 Expanded affiliated groups.

    (a) In general.
    (1) Definition of expanded affiliated group.
    (2) Identification of members of an expanded affiliated group.
    (i) In general.
    (ii) Becoming or ceasing to be a member of an expanded affiliated 
group.
    (3) Attribution of activities.
    (i) In general.
    (ii) Special rule.
    (4) Examples.
    (5) Anti-avoidance rule.
    (b) Computation of expanded affiliated group's section 199 
deduction.
    (1) In general.
    (2) Example.
    (3) Net operating loss carrybacks and carryovers.
    (4) Losses used to reduce taxable income of expanded affiliated 
group.
    (i) In general.
    (ii) Examples.
    (c) Allocation of an expanded affiliated group's section 199 
deduction among members of the expanded affiliated group.
    (1) In general.
    (2) Use of section 199 deduction to create or increase a net 
operating loss.
    (d) Special rules for members of the same consolidated group.
    (1) Intercompany transactions.
    (2) Attribution of activities in the construction of real property 
and the performance of engineering and architectural services.
    (3) Application of the simplified deduction method and the small 
business simplified overall method.
    (4) Determining the section 199 deduction.
    (i) Expanded affiliated group consists of consolidated group and 
non-consolidated group members.
    (ii) Expanded affiliated group consists only of members of a single 
consolidated group.
    (5) Allocation of the section 199 deduction of a consolidated group 
among its members.
    (e) Examples.
    (f) Allocation of income and loss by a corporation that is a member 
of the expanded affiliated group for only a portion of the year.
    (1) In general.
    (2) Coordination with rules relating to the allocation of income 
under Sec. 1.1502-76(b).
    (g) Total section 199 deduction for a corporation that is a member 
of an expanded affiliated group for some or all of its taxable year.
    (1) Member of the same expanded affiliated group for the entire 
taxable year.
    (2) Member of the expanded affiliated group for a portion of the 
taxable year.
    (3) Example.
    (h) Computation of section 199 deduction for members of an expanded 
affiliated group with different taxable years.
    (1) In general.
    (2) Example.

                       Sec. 1.199-8 Other rules.

    (a) In general.
    (b) Individuals.
    (c) Trade or business requirement.
    (1) In general.
    (2) Individuals.
    (3) Trusts and estates.
    (d) Coordination with alternative minimum tax.
    (e) Nonrecognition transactions.
    (1) In general.
    (i) Sections 351, 721, and 731.
    (ii) Exceptions.
    (A) Section 708(b)(1)(B).
    (B) Transfers by reason of death.
    (2) Section 1031 exchanges.
    (3) Section 381 transactions.
    (f) Taxpayers with a 52-53 week taxable year.
    (g) Section 481(a) adjustments.
    (h) Disallowed losses or deductions.
    (i) Effective dates.
    (1) In general.
    (2) Pass-thru entities.
    (3) Non-consolidated EAG members.
    (4) Computer software.
    (5) Tax Increase Prevention and Reconciliation Act of 2005.
    (6) Losses used to reduce taxable income of expanded affiliated 
group.
    (7) Agricultural and horticultural cooperatives.
    (8) Qualified film produced by the taxpayer.
    (9) Expanded affiliated groups.

[[Page 336]]

   Sec. 1.199-9 Application of section 199 to pass-thru entities for 
taxable years beginning on or before May 17, 2006, the enactment date of 
       the Tax Increase Prevention and Reconciliation Act of 2005.

    (a) In general.
    (b) Partnerships.
    (1) In general.
    (i) Determination at partner level.
    (ii) Determination at entity level.
    (2) Disallowed losses or deductions.
    (3) Partner's share of W-2 wages.
    (4) Transition percentage rule for W-2 wages.
    (5) Partnerships electing out of subchapter K.
    (6) Examples.
    (c) S corporations.
    (1) In general.
    (i) Determination at shareholder level.
    (ii) Determination at entity level.
    (2) Disallowed losses or deductions.
    (3) Shareholder's share of W-2 wages.
    (4) Transition percentage rule for W-2 wages.
    (d) Grantor trusts.
    (e) Non-grantor trusts and estates.
    (1) Allocation of costs.
    (2) Allocation among trust or estate and beneficiaries.
    (i) In general.
    (ii) Treatment of items from a trust or estate reporting qualified 
production activities income.
    (3) Beneficiary's share of W-2 wages.
    (4) Transition percentage rule for W-2 wages.
    (5) Example.
    (f) Gain or loss from the disposition of an interest in a pass-thru 
entity.
    (g) Section 199(d)(1)(A)(iii) wage limitation and tiered structures.
    (1) In general.
    (2) Share of W-2 wages.
    (3) Example.
    (h) No attribution of qualified activities.
    (i) Qualifying in-kind partnership.
    (1) In general.
    (2) Definition of qualifying in-kind partnership.
    (3) Special rules for distributions.
    (4) Other rules.
    (5) Example.
    (j) Partnerships owned by members of a single expanded affiliated 
group.
    (1) In general.
    (2) Attribution of activities.
    (i) In general.
    (ii) Attribution between EAG partnerships.
    (iii) Exception to attribution.
    (3) Special rules for distributions.
    (4) Other rules.
    (5) Examples.
    (k) Effective dates.

[T.D. 9263, 71 FR 31283, June 1, 2006, as amended by T.D. 9293, 71 FR 
61665, Oct. 19, 2006; T.D. 9317, 72 FR 12971, Mar. 20, 2007; T.D. 9381, 
73 FR 8800, Feb. 15, 2008; 73 FR 12270, Mar. 7, 2008]



Sec. 1.199-1  Income attributable to domestic production activities.

    (a) In general. A taxpayer may deduct an amount equal to 9 percent 
(3 percent in the case of taxable years beginning in 2005 or 2006, and 6 
percent in the case of taxable years beginning in 2007, 2008, or 2009) 
of the lesser of the taxpayer's qualified production activities income 
(QPAI) (as defined in paragraph (c) of this section) for the taxable 
year, or the taxpayer's taxable income for the taxable year (or, in the 
case of an individual, adjusted gross income). The amount of the 
deduction allowable under this paragraph (a) for any taxable year cannot 
exceed 50 percent of the W-2 wages of the employer for the taxable year 
(as determined under Sec. 1.199-2). The provisions of this section 
apply solely for purposes of section 199 of the Internal Revenue Code.
    (b) Taxable income and adjusted gross income--(1) In general. For 
purposes of paragraph (a) of this section, the definition of taxable 
income under section 63 applies, except that taxable income (or 
alternative minimum taxable income, if applicable) is determined without 
regard to section 199 and without regard to any amount excluded from 
gross income pursuant to section 114 or pursuant to section 101(d) of 
the American Jobs Creation Act of 2004, Public Law 108-357 (118 Stat. 
1418) (Act). In the case of individuals, adjusted gross income for the 
taxable year is determined after applying sections 86, 135, 137, 219, 
221, 222, and 469, and without regard to section 199 and without regard 
to any amount excluded from gross income pursuant to section 114 or 
pursuant to section 101(d) of the Act. For purposes of determining the 
tax imposed by section 511, paragraph (a) of this section is applied 
using unrelated business taxable income. Except as provided in Sec. 
1.199-7(c)(2), the deduction under section 199 is not taken into account 
in computing any net operating loss or the amount of any net operating 
loss carryback or carryover.

[[Page 337]]

    (2) Examples. The following examples illustrate the application of 
this paragraph (b):

    Example 1. X, a corporation that is not part of an expanded 
affiliated group (EAG) (as defined in Sec. 1.199-7), engages in 
production activities that generate QPAI and taxable income (without 
taking into account the deduction under this section and an NOL 
deduction) of $600 in 2010. During 2010, X incurs W-2 wages as defined 
in Sec. 1.199-2(e) of $300. X has an NOL carryover to 2010 of $500. X's 
deduction under this section for 2010 is $9 (.09 x (lesser of QPAI of 
$600 and taxable income of $100 ($600 taxable income--$500 NOL)). 
Because the wage limitation is $150 (50% x $300), X's deduction is not 
limited.
    Example 2. (i) Facts. X, a corporation that is not part of an EAG, 
engages in production activities that generate QPAI and taxable income 
(without taking into account the deduction under this section and an NOL 
deduction) of $100 in 2010. X has an NOL carryover to 2010 of $500 that 
reduces its taxable income for 2010 to $0. X's deduction under this 
section for 2010 is $0 (.09 x (lesser of QPAI of $100 and taxable income 
of $0)).
    (ii) Carryover to 2011. X's taxable income for purposes of 
determining its NOL carryover to 2011 is $100. Accordingly, X's NOL 
carryover to 2011 is $400 ($500 NOL carryover to 2010--$100 NOL used in 
2010).

    (c) Qualified production activities income. QPAI for any taxable 
year is an amount equal to the excess (if any) of the taxpayer's 
domestic production gross receipts (DPGR) (as defined in Sec. 1.199-3) 
over the sum of--
    (1) The cost of goods sold (CGS) that is allocable to such receipts; 
and
    (2) Other expenses, losses, or deductions (other than the deduction 
allowed under this section) that are properly allocable to such 
receipts. See Sec. Sec. 1.199-3 and 1.199-4.
    (d) Allocation of gross receipts--(1) In general. A taxpayer must 
determine the portion of its gross receipts for the taxable year that is 
DPGR and the portion of its gross receipts that is non-DPGR. Applicable 
Federal income tax principles apply to determine whether a transaction 
is, in substance, a lease, rental, license, sale, exchange, or other 
disposition the gross receipts of which may constitute DPGR (assuming 
all the other requirements of Sec. 1.199-3 are met), whether it is a 
service the gross receipts of which may constitute non-DPGR, or some 
combination thereof. For example, if a taxpayer leases qualifying 
production property (QPP) (as defined in Sec. 1.199-3(j)(1)) and in 
connection with that lease, also provides services, the taxpayer must 
allocate its gross receipts from the transaction using any reasonable 
method that is satisfactory to the Secretary based on all of the facts 
and circumstances and that accurately identifies the gross receipts that 
constitute DPGR and non-DPGR.
    (2) Reasonable method of allocation. Factors taken into 
consideration in determining whether the taxpayer's method of allocating 
gross receipts between DPGR and non-DPGR is reasonable include whether 
the taxpayer uses the most accurate information available; the 
relationship between the gross receipts and the method used; the 
accuracy of the method chosen as compared with other possible methods; 
whether the method is used by the taxpayer for internal management or 
other business purposes; whether the method is used for other Federal or 
state income tax purposes; the time, burden, and cost of using 
alternative methods; and whether the taxpayer applies the method 
consistently from year to year. Thus, if a taxpayer has the information 
readily available and can, without undue burden or expense, specifically 
identify whether the gross receipts derived from an item are DPGR, then 
the taxpayer must use that specific identification to determine DPGR. If 
a taxpayer does not have information readily available to specifically 
identify whether the gross receipts derived from an item are DPGR or 
cannot, without undue burden or expense, specifically identify whether 
the gross receipts derived from an item are DPGR, then the taxpayer is 
not required to use a method that specifically identifies whether the 
gross receipts derived from an item are DPGR.
    (3) De minimis rules--(i) DPGR. All of a taxpayer's gross receipts 
may be treated as DPGR if less than 5 percent of the taxpayer's total 
gross receipts are non-DPGR (after application of the exceptions 
provided in Sec. 1.199-3(i)(4)(i)(B), (l)(4)(iv)(A), (m)(1)(iii)(A), 
(n)(6)(i), and (o)(2) that may result in gross receipts being treated as 
DPGR). If the amount of the taxpayer's gross receipts that are non-DPGR 
equals or

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exceeds 5 percent of the taxpayer's total gross receipts, then, except 
as provided in paragraph (d)(3)(ii) of this section, the taxpayer is 
required to allocate all gross receipts between DPGR and non-DPGR in 
accordance with paragraph (d)(1) of this section. If a corporation is a 
member of an EAG, but is not a member of a consolidated group, then the 
determination of whether less than 5 percent of the taxpayer's total 
gross receipts are non-DPGR is made at the corporation level. If a 
corporation is a member of a consolidated group, then the determination 
of whether less than 5 percent of the taxpayer's total gross receipts 
are non-DPGR is made at the consolidated group level. In the case of an 
S corporation, partnership, trust (to the extent not described in Sec. 
1.199-5(d) or Sec. 1.199-9(d)) or estate, or other pass-thru entity, 
the determination of whether less than 5 percent of the pass-thru 
entity's total gross receipts are non-DPGR is made at the pass-thru 
entity level. In the case of an owner of a pass-thru entity, the 
determination of whether less than 5 percent of the owner's total gross 
receipts are non-DPGR is made at the owner level, taking into account 
all gross receipts of the owner from its other trade or business 
activities and the owner's share of the gross receipts of the pass-thru 
entity.
    (ii) Non-DPGR. All of a taxpayer's gross receipts may be treated as 
non-DPGR if less than 5 percent of the taxpayer's total gross receipts 
are DPGR (after application of the exceptions provided in Sec. 1.199-
3(i)(4)(ii), (l)(4)(iv)(B), (m)(1)(iii)(B), and (n)(6)(ii) that may 
result in gross receipts being treated as non-DPGR). If a corporation is 
a member of an EAG, but is not a member of a consolidated group, then 
the determination of whether less than 5 percent of the taxpayer's total 
gross receipts are DPGR is made at the corporation level. If a 
corporation is a member of a consolidated group, then the determination 
of whether less than 5 percent of the taxpayer's total gross receipts 
are DPGR is made at the consolidated group level. In the case of an S 
corporation, partnership, trust (to the extent not described in Sec. 
1.199-5(d) or Sec. 1.199-9(d)) or estate, or other pass-thru entity, 
the determination of whether less than 5 percent of the pass-thru 
entity's total gross receipts are DPGR is made at the pass-thru entity 
level. In the case of an owner of a pass-thru entity, the determination 
of whether less than 5 percent of the owner's total gross receipts are 
DPGR is made at the owner level, taking into account all gross receipts 
of the owner from its other trade or business activities and the owner's 
share of the gross receipts of the pass-thru entity.
    (4) Example. The following example illustrates the application of 
this paragraph (d):

    Example. X derives its gross receipts from the sale of gasoline 
refined by X within the United States and the sale of refined gasoline 
that X acquired by purchase from an unrelated person. If at least 5% of 
X's gross receipts are derived from gasoline refined by X within the 
United States (that qualify as DPGR if all the other requirements of 
Sec. 1.199-3 are met) and at least 5% of X's gross receipts are derived 
from the resale of the acquired gasoline (that do not qualify as DPGR), 
then X does not qualify for the de minimis rules under paragraphs 
(d)(3)(i) and (ii) of this section, and X must allocate its gross 
receipts between the gross receipts derived from the sale of gasoline 
refined by X within the United States and the gross receipts derived 
from the resale of the acquired gasoline. If less than 5% of X's gross 
receipts are derived from the resale of the acquired gasoline, then, X 
may either allocate its gross receipts between the gross receipts 
derived from the gasoline refined by X within the United States and the 
gross receipts derived from the resale of the acquired gasoline, or, 
pursuant to paragraph (d)(3)(i) of this section, X may treat all of its 
gross receipts derived from the sale of the refined gasoline as DPGR. If 
X's gross receipts attributable to the gasoline refined by X within the 
United States constitute less than 5% of X's total gross receipts, then, 
X may either allocate its gross receipts between the gross receipts 
derived from the gasoline refined by X within the United States and the 
gross receipts derived from the resale of the acquired gasoline, or, 
pursuant to paragraph (d)(3)(ii) of this section, X may treat all of its 
gross receipts derived from the sale of the refined gasoline as non-
DPGR.

    (e) Certain multiple-year transactions--(1) Use of historical data. 
If a taxpayer recognizes and reports gross receipts from advance 
payments or other similar payments on a Federal income tax return for a 
taxable year, then the taxpayer's use of historical data in making an 
allocation of gross receipts from

[[Page 339]]

the transaction between DPGR and non-DPGR may constitute a reasonable 
method. If a taxpayer makes allocations using historical data, and 
subsequently updates the data, then the taxpayer must use the more 
recent or updated data, starting in the taxable year in which the update 
is made.
    (2) Percentage of completion method. A taxpayer using a percentage 
of completion method under section 460 must determine the ratio of DPGR 
and non-DPGR using a reasonable method that is satisfactory to the 
Secretary based on all of the facts and circumstances that accurately 
identifies the gross receipts that constitute DPGR. See paragraph (d)(2) 
of this section for the factors taken into consideration in determining 
whether the taxpayer's method is reasonable.
    (3) Examples. The following examples illustrate the application of 
this paragraph (e):

    Example 1. On December 1, 2007, X, a calendar year accrual method 
taxpayer, sells for $100 a one-year computer software maintenance 
agreement that provides for (i) computer software updates that X expects 
to produce in the United States, and (ii) customer support services. At 
the end of 2007, X uses a reasonable method that is satisfactory to the 
Secretary based on all of the facts and circumstances to allocate 60% of 
the gross receipts ($60) to the computer software updates and 40% ($40) 
to the customer support services. X treats the $60 as DPGR in 2007. At 
the expiration of the one-year agreement on November 30, 2008, no 
computer software updates are provided by X. Pursuant to paragraph 
(e)(1) of this section, because X used a reasonable method that is 
satisfactory to the Secretary based on all of the facts and 
circumstances to identify gross receipts as DPGR, X is not required to 
make any adjustments to its 2007 Federal income tax return (for example, 
by amended return) or in 2008 for the $60 that was properly treated as 
DPGR in 2007, even though no computer software updates were provided 
under the contract.
    Example 2. X manufactures automobiles within the United States and 
sells 5-year extended warranties to customers. The sales price of the 
warranty is based on historical data that determines what repairs and 
services are performed on an automobile during the 5-year period. X 
sells the 5-year warranty to Y for $1,000 in 2007. Under X's method of 
accounting, X recognizes warranty revenue when received. Using 
historical data, X concludes that 60% of the gross receipts attributable 
to a 5-year warranty will be derived from the sale of parts (QPP) that X 
manufactures within the United States, and 40% will be derived from the 
sale of purchased parts X did not manufacture and non-qualifying 
services. X's method of allocating its gross receipts with respect to 
the 5-year warranty between DPGR and non-DPGR is a reasonable method 
that is satisfactory to the Secretary based on all of the facts and 
circumstances. Therefore, X properly treats $600 as DPGR in 2007.
    Example 3. The facts are the same as in Example 2 except that in 
2009 X updates its historical data. The updated historical data show 
that 50% of the gross receipts attributable to a 5-year warranty will be 
derived from the sale of parts (QPP) that X manufactures within the 
United States and 50% will be derived from the sale of purchased parts X 
did not manufacture and non-qualifying services. In 2009, X sells a 5-
year warranty for $1,000 to Z. Under all of the facts and circumstances, 
X's method of allocation is still a reasonable method. Relying on its 
updated historical data, X properly treats $500 as DPGR in 2009.
    Example 4. The facts are the same as in Example 2 except that Y pays 
for the 5-year warranty over time ($200 a year for 5 years). Under X's 
method of accounting, X recognizes each $200 payment as it is received. 
In 2009, X updates its historical data and the updated historical data 
show that 50% of the gross receipts attributable to a 5-year warranty 
will be derived from the sale of QPP that X manufactures within the 
United States and 50% will be derived from the sale of purchased parts X 
did not manufacture and non-qualifying services. Under all of the facts 
and circumstances, X's method of allocation is still a reasonable 
method. When Y makes its $200 payment for 2009, X, relying on its 
updated historical data, properly treats $100 as DPGR in 2009.

[T.D. 9263, 71 FR 31283, June 1, 2006; 72 FR 5, Jan. 3, 2007, as amended 
by T.D. 9381, 73 FR 8801, Feb. 15, 2008]



Sec. 1.199-2  Wage limitation.

    (a) Rules of application--(1) In general. The provisions of this 
section apply solely for purposes of section 199 of the Internal Revenue 
Code. The amount of the deduction allowable under Sec. 1.199-1(a) 
(section 199 deduction) to a taxpayer for any taxable year shall not 
exceed 50 percent of the W-2 wages (as defined in paragraph (e) of this 
section) of the taxpayer. For this purpose, except as provided in 
paragraph (a)(3) of this section and paragraph (b) of this section, the 
Forms W-2, ``Wage and Tax Statement,'' used in determining the amount of 
W-2 wages are those issued

[[Page 340]]

for the calendar year ending during the taxpayer's taxable year for 
wages paid to employees (or former employees) of the taxpayer for 
employment by the taxpayer. For purposes of this section, employees of 
the taxpayer are limited to employees of the taxpayer as defined in 
section 3121(d)(1) and (2) (that is, officers of a corporate taxpayer 
and employees of the taxpayer under the common law rules). See paragraph 
(a)(3) of this section for the requirement that W-2 wages must have been 
included in a return filed with the Social Security Administration (SSA) 
within 60 days after the due date (including extensions) of the return.
    (2) Wages paid by entity other than common law employer. In 
determining W-2 wages, a taxpayer may take into account any wages paid 
by another entity and reported by the other entity on Forms W-2 with the 
other entity as the employer listed in Box c of the Forms W-2, provided 
that the wages were paid to employees of the taxpayer for employment by 
the taxpayer. If the taxpayer is treated as an employer described in 
section 3401(d)(1) because of control of the payment of wages (that is, 
the taxpayer is not the common law employer of the payee of the wages), 
the payment of wages may not be included in determining W-2 wages of the 
taxpayer. If the taxpayer is paying wages as an agent of another entity 
to individuals who are not employees of the taxpayer, the wages may not 
be included in determining the W-2 wages of the taxpayer.
    (3) Requirement that wages must be reported on return filed with the 
Social Security Administration--(i) In general. The term W-2 wages shall 
not include any amount that is not properly included in a return filed 
with SSA on or before the 60th day after the due date (including 
extensions) for such return. Under Sec. 31.6051-2 of this chapter, each 
Form W-2 and the transmittal Form W-3, ``Transmittal of Wage and Tax 
Statements,'' together constitute an information return to be filed with 
SSA. Similarly, each Form W-2c, ``Corrected Wage and Tax Statement,'' 
and the transmittal Form W-3 or W-3c, ``Transmittal of Corrected Wage 
and Tax Statements,'' together constitute an information return to be 
filed with SSA. In determining whether any amount has been properly 
included in a return filed with SSA on or before the 60th day after the 
due date (including extensions) for such return, each Form W-2 together 
with its accompanying Form W-3 shall be considered a separate 
information return and each Form W-2c together with its accompanying 
Form W-3 or Form W-3c shall be considered a separate information return. 
Section 31.6071(a)-1(a)(3) of this chapter provides that each 
information return in respect of wages as defined in the Federal 
Insurance Contributions Act or of income tax withheld from wages which 
is required to be made under Sec. 31.6051-2 of this chapter shall be 
filed on or before the last day of February (March 31 if filed 
electronically) of the year following the calendar year for which it is 
made, except that if a tax return under Sec. 31.6011(a)-5(a) of this 
chapter is filed as a final return for a period ending prior to December 
31, the information statement shall be filed on or before the last day 
of the second calendar month following the period for which the tax 
return is filed. Corrected Forms W-2 are required to be filed with SSA 
on or before the last day of February (March 31 if filed electronically) 
of the year following the year in which the correction is made, except 
that if a tax return under Sec. 31.6011(a)-5(a) is filed as a final 
return for a period ending prior to December 31 for the period in which 
the correction is made, the corrected Forms W-2 are required to be filed 
by the last day of the second calendar month following the period for 
which the final return is filed.
    (ii) Corrected return filed to correct a return that was filed 
within 60 days of the due date. If a corrected information return 
(Return B) is filed with SSA on or before the 60th day after the due 
date (including extensions) of Return B to correct an information return 
(Return A) that was filed with SSA on or before the 60th day after the 
due date (including extensions) of the information return (Return A) and 
paragraph (a)(3)(iii) of this section does not apply, then the wage 
information on Return B must be included in determining W-2 wages. If a 
corrected information return (Return D) is filed with SSA later than the 
60th day after the due date

[[Page 341]]

(including extensions) of Return D to correct an information return 
(Return C) that was filed with SSA on or before the 60th day after the 
due date (including extensions) of the information return (Return C), 
then if Return D reports an increase (or increases) in wages included in 
determining W-2 wages from the wage amounts reported on Return C, then 
such increase (or increases) on Return D shall be disregarded in 
determining W-2 wages (and only the wage amounts on Return C may be 
included in determining W-2 wages). If Return D reports a decrease (or 
decreases) in wages included in determining W-2 wages from the amounts 
reported on Return C, then, in determining W-2 wages, the wages reported 
on Return C must be reduced by the decrease (or decreases) reflected on 
Return D.
    (iii) Corrected return filed to correct a return that was filed 
later than 60 days after the due date. If an information return (Return 
F) is filed to correct an information return (Return E) that was not 
filed with SSA on or before the 60th day after the due date (including 
extensions) of Return E, then Return F (and any subsequent information 
returns filed with respect to Return E) will not be considered filed on 
or before the 60th day after the due date (including extensions) of 
Return F (or the subsequent corrected information return). Thus, if a 
Form W-2c (or corrected Form W-2) is filed to correct a Form W-2 that 
was not filed with SSA on or before the 60th day after the due date 
(including extensions) of the information return including the Form W-2 
(or to correct a Form W-2c relating to an information return including a 
Form W-2 that had not been filed with SSA on or before the 60th day 
after the due date (including extensions) of the information return 
including the Form W-2), then the information return including this Form 
W-2c (or corrected Form W-2) shall not be considered to have been filed 
with SSA on or before the 60th day after the due date (including 
extensions) for this information return including the Form W-2c (or 
corrected Form W-2), regardless of when the information return including 
the Form W-2c (or corrected Form W-2) is filed.
    (4) Joint return. An individual and his or her spouse are considered 
one taxpayer for purposes of determining the amount of W-2 wages for a 
taxable year, provided that they file a joint return for the taxable 
year. Thus, an individual filing as part of a joint return may include 
the wages of employees of his or her spouse in determining W-2 wages, 
provided the employees are employed in a trade or business of the spouse 
and the other requirements of this section are met. However, a married 
taxpayer filing a separate return from his or her spouse for the taxable 
year may not include the wages of employees of the taxpayer's spouse in 
determining the taxpayer's W-2 wages for the taxable year.
    (b) Application in the case of a taxpayer with a short taxable year. 
In the case of a taxpayer with a short taxable year, subject to the 
rules of paragraph (a) of this section, the W-2 wages of the taxpayer 
for the short taxable year shall include only those wages paid during 
the short taxable year to employees of the taxpayer, only those elective 
deferrals (within the meaning of section 402(g)(3)) made during the 
short taxable year by employees of the taxpayer and only compensation 
actually deferred under section 457 during the short taxable year with 
respect to employees of the taxpayer. The Secretary shall have the 
authority to issue published guidance setting forth the method that is 
used to calculate W-2 wages in case of a taxpayer with a short taxable 
year. See paragraph (e)(3) of this section.
    (c) Acquisition or disposition of a trade or business (or major 
portion). If a taxpayer (a successor) acquires a trade or business, the 
major portion of a trade or business, or the major portion of a separate 
unit of a trade or business from another taxpayer (a predecessor), then, 
for purposes of computing the respective section 199 deduction of the 
successor and of the predecessor, the W-2 wages paid for that calendar 
year shall be allocated between the successor and the predecessor based 
on whether the wages are for employment by the successor or for 
employment by the predecessor. Thus, in this situation, the W-2 wages 
are allocated based

[[Page 342]]

on whether the wages are for employment for a period during which the 
employee was employed by the predecessor or for employment for a period 
during which the employee was employed by the successor, regardless of 
which permissible method for Form W-2 reporting is used.
    (d) Non-duplication rule. Amounts that are treated as W-2 wages for 
a taxable year under any method shall not be treated as W-2 wages of any 
other taxable year. Also, an amount shall not be treated as W-2 wages by 
more than one taxpayer.
    (e) Definition of W-2 wages--(1) In general. Under section 
199(b)(2), the term W-2 wages means, with respect to any person for any 
taxable year of such person, the sum of the amounts described in section 
6051(a)(3) and (8) paid by such person with respect to employment of 
employees by such person during the calendar year ending during such 
taxable year. Thus, the term W-2 wages includes the total amount of 
wages as defined in section 3401(a); the total amount of elective 
deferrals (within the meaning of section 402(g)(3)); the compensation 
deferred under section 457; and for taxable years beginning after 
December 31, 2005, the amount of designated Roth contributions (as 
defined in section 402A).
    (2) Limitation on W-2 wages for taxable years beginning after May 
17, 2006, the enactment date of the Tax Increase Prevention and 
Reconciliation Act of 2005--(i) In general. The term W-2 wages includes 
only amounts described in paragraph (e)(1) of this section (paragraph 
(e)(1) wages) that are properly allocable to domestic production gross 
receipts (DPGR) (as defined in Sec. 1.199-3) for purposes of section 
199(c)(1). A taxpayer may determine the amount of paragraph (e)(1) wages 
that is properly allocable to DPGR using any reasonable method that is 
satisfactory to the Secretary based on all of the facts and 
circumstances.
    (ii) Wage expense safe harbor--(A) In general. A taxpayer using 
either the section 861 method of cost allocation under Sec. 1.199-4(d) 
or the simplified deduction method under Sec. 1.199-4(e) may determine 
the amount of paragraph (e)(1) wages that is properly allocable to DPGR 
for a taxable year by multiplying the amount of paragraph (e)(1) wages 
for the taxable year by the ratio of the taxpayer's wage expense 
included in calculating qualified production activities income (QPAI) 
(as defined in Sec. 1.199-1(c)) for the taxable year to the taxpayer's 
total wage expense used in calculating the taxpayer's taxable income (or 
adjusted gross income, if applicable) for the taxable year, without 
regard to any wage expense disallowed by section 465, 469, 704(d), or 
1366(d). A taxpayer that uses the section 861 method of cost allocation 
under Sec. 1.199-4(d) or the simplified deduction method under Sec. 
1.199-4(e) to determine QPAI must use the same expense allocation and 
apportionment methods that it uses to determine QPAI to allocate and 
apportion wage expense for purposes of this safe harbor. For purposes of 
this paragraph (e)(2)(ii), the term wage expense means wages (that is, 
compensation paid by the employer in the active conduct of a trade or 
business to its employees) that are properly taken into account under 
the taxpayer's method of accounting.
    (B) Wage expense included in cost of goods sold. For purposes of 
paragraph (e)(2)(ii)(A) of this section, a taxpayer may determine its 
wage expense included in cost of goods sold (CGS) using any reasonable 
method that is satisfactory to the Secretary based on all of the facts 
and circumstances, such as using the amount of direct labor included in 
CGS or using section 263A labor costs (as defined in Sec. 1.263A-
1(h)(4)(ii)) included in CGS.
    (iii) Small business simplified overall method safe harbor. A 
taxpayer that uses the small business simplified overall method under 
Sec. 1.199-4(f) may use the small business simplified overall method 
safe harbor for determining the amount of paragraph (e)(1) wages that is 
properly allocable to DPGR. Under this safe harbor, the amount of 
paragraph (e)(1) wages that is properly allocable to DPGR is equal to 
the same proportion of paragraph (e)(1) wages that the amount of DPGR 
bears to the taxpayer's total gross receipts.
    (iv) Examples. The following examples illustrate the application of 
this paragraph (e)(2). See Sec. 1.199-5(e)(4) for an example of the 
application of paragraph

[[Page 343]]

(e)(2)(ii) of this section to a trust or estate. The examples read as 
follows:

    Example 1. Section 861 method and no EAG. (i) Facts. X, a United 
States corporation that is not a member of an expanded affiliated group 
(EAG) (as defined in Sec. 1.199-7) or an affiliated group as defined in 
the regulations under section 861, engages in activities that generate 
both DPGR and non-DPGR. X's taxable year ends on April 30, 2011. For X's 
taxable year ending April 30, 2011, X has $3,000 of paragraph (e)(1) 
wages reported on 2010 Forms W-2. All of X's production activities that 
generate DPGR are within Standard Industrial Classification (SIC) 
Industry Group AAA (SIC AAA). All of X's production activities that 
generate non-DPGR are within SIC Industry Group BBB (SIC BBB). X is able 
to specifically identify CGS allocable to DPGR and to non-DPGR. X incurs 
$900 of research and experimentation expenses (R&E) that are deductible 
under section 174, $300 of which are performed with respect to SIC AAA 
and $600 of which are performed with respect to SIC BBB. None of the R&E 
is legally mandated R&E as described in Sec. 1.861-17(a)(4) and none of 
the R&E is included in CGS. X incurs section 162 selling expenses that 
are not includible in CGS and are definitely related to all of X's gross 
income. For X's taxable year ending April 30, 2011, the adjusted basis 
of X's assets is $50,000, $40,000 of which generate gross income 
attributable to DPGR and $10,000 of which generate gross income 
attributable to non-DPGR. For X's taxable year ending April 30, 2011, 
the total square footage of X's headquarters is 8,000 square feet, of 
which 2,000 square feet is set aside for domestic production activities. 
For its taxable year ending April 30, 2011, X's taxable income is $1,380 
based on the following Federal income tax items:

DPGR (all from sales of products within SIC AAA).............     $3,000
Non-DPGR (all from sales of products within SIC BBB).........      3,000
CGS allocable to DPGR (includes $200 of wage expense)........      (600)
CGS allocable to non-DPGR (includes $600 of wage expense)....    (1,800)
Section 162 selling expenses (includes $600 of wage expense).      (840)
Section 174 R&E-SIC AAA (includes $100 of wage expense)......      (300)
Section 174 R&E-SIC BBB (includes $200 of wage expense)......      (600)
Interest expense (not included in CGS).......................      (300)
Headquarters overhead expense (includes $100 of wage expense)      (180)
                                                              ----------
    X's taxable income.......................................      1,380
 

    (ii) X's QPAI. X allocates and apportions its deductions to gross 
income attributable to DPGR under the section 861 method in Sec. 1.199-
4(d). In this case, the section 162 selling expenses and overhead 
expense are definitely related to all of X's gross income. Based on the 
facts and circumstances of this specific case, apportionment of the 
section 162 selling expenses between DPGR and non-DPGR on the basis of 
X's gross receipts is appropriate. In addition, based on the facts and 
circumstances of this specific case, apportionment of the headquarters 
overhead expense between DPGR and non-DPGR on the basis of the square 
footage of X's headquarters is appropriate. For purposes of apportioning 
R&E, X elects to use the sales method as described in Sec. 1.861-17(c). 
X elects to apportion interest expense under the tax book value method 
of Sec. 1.861-9T(g). X has $2,400 of gross income attributable to DPGR 
(DPGR of $3,000 - CGS of $600 allocated based on X's books and records). 
X's QPAI for its taxable year ending April 30, 2011, is $1,395, as shown 
in the following table:

DPGR (all from sales of products within SIC AAA)............     $3,000
CGS allocable to DPGR.......................................       (600)
Section 162 selling expenses ($840 x ($3,000 DPGR/$6,000           (420)
 total gross receipts)).....................................
Section 174 R&E-SIC AAA.....................................       (300)
Interest expense (not included in CGS) ($300 x ($40,000 (X's       (240)
 DPGR assets)/$50,000 (X's total assets)))..................
Headquarters overhead expense ($180 x (2,000 square feet            (45)
 attributable to DPGR activity/total 8,000 square feet))....
                                                             -----------
    X's QPAI................................................      1,395
 

    (iii) W-2 wages. X chooses to use the wage expense safe harbor under 
paragraph (e)(2)(ii) of this section to determine its W-2 wages, as 
shown in the following steps:
    (A) Step one. X determines that $625 of wage expense were taken into 
account in determining its QPAI in paragraph (ii) of this Example 1, as 
shown in the following table:

CGS wage expense............................................       $200
Section 162 selling expenses wage expense ($600 x ($3,000           300
 DPGR/$6,000 total gross receipts)).........................
Section 174 R&E-SIC AAA wage expense........................        100
Headquarters overhead wage expense ($100 x (2,000 square             25
 feet attributable to DPGR activity/8,000 total square
 feet)).....................................................
                                                             -----------
    Total wage expense taken into account...................        625
 

    (B) Step two. X determines that $1,042 of the $3,000 in paragraph 
(e)(1) wages are properly allocable to DPGR, and are therefore W-2 
wages, as shown in the following calculation:
Step one wage expense/X's total wage expense for taxable year ending 
          April 30, 2011 x X's paragraph (e)(1) wages
$625/$1,800 x $3,000 = $1,042
    (iv) Section 199 deduction determination. X's tentative deduction 
under Sec. 1.199-1(a) (section 199 deduction) is $124 (.09 x (lesser of 
QPAI of $1,395 or taxable income of $1,380)) subject to the wage 
limitation under section 199(b)(1) (W-2 wage limitation) of $521 (50% x 
$1,042). Accordingly, X's section 199 deduction for its taxable year 
ending April 30, 2011, is $124.

[[Page 344]]

    Example 2. Section 861 method and EAG. (i) Facts. The facts are the 
same as in Example 1 except that X owns stock in Y, a United States 
corporation, equal to 75% of the total voting power of the stock of Y 
and 80% of the total value of the stock of Y. X and Y are not members of 
an affiliated group as defined in section 1504(a). Accordingly, the 
rules of Sec. 1.861-14T do not apply to X's and Y's selling expenses, 
R&E, and charitable contributions. X and Y are, however, members of an 
affiliated group for purposes of allocating and apportioning interest 
expense (see Sec. 1.861-11T(d)(6)) and are also members of an EAG. Y's 
taxable year ends April 30, 2011. For Y's taxable year ending April 30, 
2011, Y has $2,000 of paragraph (e)(1) wages reported on 2010 Forms W-2. 
For Y's taxable year ending April 30, 2011, the adjusted basis of Y's 
assets is $50,000, $20,000 of which generate gross income attributable 
to DPGR and $30,000 of which generate gross income attributable to non-
DPGR. All of Y's activities that generate DPGR are within SIC Industry 
Group AAA (SIC AAA). All of Y's activities that generate non-DPGR are 
within SIC Industry Group BBB (SIC BBB). None of X's and Y's sales are 
to each other. Y is not able to specifically identify CGS allocable to 
DPGR and non-DPGR. In this case, because CGS is definitely related under 
the facts and circumstances to all of Y's gross receipts, apportionment 
of CGS between DPGR and non-DPGR based on gross receipts is appropriate. 
For Y's taxable year ending April 30, 2011, the total square footage of 
Y's headquarters is 8,000 square feet, of which 2,000 square feet is set 
aside for domestic production activities. Y incurs section 162 selling 
expenses that are not includible in CGS and are definitely related to 
all of Y's gross income. For Y's taxable year ending April 30, 2011, Y's 
taxable income is $1,710 based on the following Federal income tax 
items:

DPGR (all from sales of products within SIC AAA)............     $3,000
Non-DPGR (all from sales of products within SIC BBB)........      3,000
CGS allocated to DPGR (includes $300 of wage expense).......     (1,200)
CGS allocated to non-DPGR (includes $300 of wage expense)...     (1,200)
Section 162 selling expenses (includes $300 of wage expense)       (840)
Section 174 R&E-SIC AAA (includes $20 of wage expense)......       (100)
Section 174 R&E-SIC BBB (includes $60 of wage expense)......       (200)
Interest expense (not included in CGS and not subject to           (500)
 Sec. 1.861-10T)..........................................
Charitable contributions....................................        (50)
Headquarters overhead expense (includes $40 of wage expense)       (200)
                                                             -----------
    Y's taxable income......................................      1,710
 

    (ii) QPAI. (A) X's QPAI. Determination of X's QPAI is the same as in 
Example 1 except that interest is apportioned to gross income 
attributable to DPGR based on the combined adjusted bases of X's and Y's 
assets. See Sec. 1.861-11T(c). Accordingly, X's QPAI for its taxable 
year ending April 30, 2011, is $1,455, as shown in the following table:

DPGR (all from sales of products within SIC AAA)............     $3,000
CGS allocated to DPGR.......................................       (600)
Section 162 selling expenses ($840 x ($3,000 DPGR/$6,000           (420)
 total gross receipts)).....................................
Section 174 R&E-SIC AAA.....................................       (300)
Interest expense (not included in CGS and not subject to           (180)
 Sec. 1.861-10T) ($300 x ($60,000 (tax book value of X's
 and Y's DPGR assets)/$100,000 (tax book value of X's and
 Y's total assets)))........................................
Headquarters overhead expense ($180 x (2,000 square feet            (45)
 attributable to DPGR activity/total 8,000 square feet))....
                                                             -----------
    X's QPAI................................................      1,455
 

    (B) Y's QPAI. Y makes the same elections under the section 861 
method as does X. Y has $1,800 of gross income attributable to DPGR 
(DPGR of $3,000-CGS of $1,200 allocated based on Y's gross receipts). 
Y's QPAI for its taxable year ending April 30, 2011, is $905, as shown 
in the following table:

DPGR (all from sales of products within SIC AAA)............     $3,000
CGS allocated to DPGR.......................................     (1,200)
Section 162 selling expenses ($840 x ($3,000 DPGR/$6,000           (420)
 total gross receipts)).....................................
Section 174 R&E-SIC AAA.....................................       (100)
Interest expense (not included in CGS and not subject to           (300)
 Sec. 1.861-10T) ($500 x ($60,000 (tax book value of X's
 and Y's DPGR assets)/$100,000 (tax book value of X's and
 Y's total assets)))........................................
Charitable contributions (not included in CGS) ($50 x               (25)
 ($1,800 gross income attributable to DPGR/$3,600 total
 gross income)).............................................
Headquarters overhead expense ($200 x (2,000 square feet            (50)
 attributable to DPGR activity/total 8,000 square feet))....
                                                             -----------
    Y's QPAI................................................        905
 

    (iii) W-2 wages. (A) X's W-2 wages. X's W-2 wages are $1,042, the 
same as in Example 1.
    (B) Y's W-2 wages. Y chooses to use the wage expense safe harbor 
under paragraph (e)(2)(ii) of this section to determine its W-2 wages, 
as shown in the following steps:
    (1) Step one. Y determines that $480 of wage expense were taken into 
account in determining its QPAI in paragraph (ii)(B) of this Example 2, 
as shown in the following table:

CGS wage expense............................................       $300
Section 162 selling expenses wage expense ($300 x ($3,000           150
 DPGR/$6,000 total gross receipts)).........................
Section 174 R&E-SIC AAA wage expense........................         20
Headquarters overhead wage expense ($40 x (2,000 square feet         10
 attributable to DPGR activity/8,000 total square feet))....
                                                             -----------
    Total wage expense taken into account...................        480
 


[[Page 345]]

    (2) Step two. Y determines that $941 of the $2,000 paragraph (e)(1) 
wages are properly allocable to DPGR, and are therefore W-2 wages, as 
shown in the following calculation:
Step one wage expense/Y's total wage expense for taxable year ending 
          April 30, 2011 x Y's paragraph (e)(1) wages
$480/$1,020 x $2,000 = $941
    (iv) Section 199 deduction determination. The section 199 deduction 
of the X and Y EAG is determined by aggregating the separately 
determined taxable income, QPAI, and W-2 wages of X and Y. See Sec. 
1.199-7(b). Accordingly, the X and Y EAG's tentative section 199 
deduction is $212 (.09 x (lesser of combined QPAI of X and Y of $2,360 
(X's QPAI of $1,455 plus Y's QPAI of $905) or combined taxable incomes 
of X and Y of $3,090 (X's taxable income of $1,380 plus Y's taxable 
income of $1,710)) subject to the combined W-2 wage limitation of X and 
Y of $992 (50% x ($1,042 (X's W-2 wages) + $941 (Y's W-2 wages)))). 
Accordingly, the X and Y EAG's section 199 deduction is $212. The $212 
is allocated to X and Y in proportion to their QPAI. See Sec. 1.199-
7(c).
    Example 3. Simplified deduction method. (i) Facts. Z, a corporation 
that is not a member of an EAG, engages in activities that generate both 
DPGR and non-DPGR. Z is able to specifically identify CGS allocable to 
DPGR and to non-DPGR. Z's taxable year ends on April 30, 2011. For Z's 
taxable year ending April 30, 2011, Z has $3,000 of paragraph (e)(1) 
wages reported on 2010 Forms W-2, and Z's taxable income is $1,380 based 
on the following Federal income tax items:

DPGR.........................................................     $3,000
Non-DPGR.....................................................      3,000
CGS allocable to DPGR (includes $200 of wage expense)........      (600)
CGS allocable to non-DPGR (includes $600 of wage expense)....    (1,800)
Expenses, losses, or deductions (deductions) (includes $1,000    (2,220)
 of wage expense)............................................
                                                              ----------
    Z's taxable income.......................................      1,380
 

    (ii) Z's QPAI. Z uses the simplified deduction method under Sec. 
1.199-4(e) to apportion deductions between DPGR and non-DPGR. Z's QPAI 
for its taxable year ending April 30, 2011, is $1,290, as shown in the 
following table:

DPGR.........................................................     $3,000
CGS allocable to DPGR........................................      (600)
Deductions apportioned to DPGR ($2,220 x ($3,000 DPGR/$6,000     (1,110)
 total gross receipts))......................................
                                                              ----------
    Z's QPAI.................................................      1,290
 

    (iii) W-2 wages. Z chooses to use the wage expense safe harbor under 
paragraph (e)(2)(ii) of this section to determine its W-2 wages, as 
shown in the following steps:
    (A) Step one. Z determines that $700 of wage expense were taken into 
account in determining its QPAI in paragraph (ii) of this Example 3, as 
shown in the following table:

Wage expense included in CGS allocable to DPGR...............       $200
Wage expense included in deductions ($1,000 in wage expense x        500
 ($3,000 DPGR/$6,000 total gross receipts))..................
                                                              ----------
Wage expense allocable to DPGR...............................        700
 

    (B) Step two. Z determines that $1,167 of the $3,000 paragraph 
(e)(1) wages are properly allocable to DPGR, and are therefore W-2 
wages, as shown in the following calculation:
Step one wage expense / Z's total wage expense for taxable year ending 
          April 30, 2011 x Z's paragraph (e)(1) wages
$700 / $1,800 x $3,000 = $1,167
    (iv) Section 199 deduction determination. Z's tentative section 199 
deduction is $116 (.09 x (lesser of QPAI of $1,290 or taxable income of 
$1,380)) subject to the W-2 wage limitation of $584 (50% x $1,167). 
Accordingly, Z's section 199 deduction for its taxable year ending April 
30, 2011, is $116.
    Example 4. Small business simplified overall method. (i) Facts. Z, a 
corporation that is not a member of an EAG, engages in activities that 
generate both DPGR and non-DPGR. Z's taxable year ends on April 30, 
2011. For Z's taxable year ending April 30, 2011, Z has $3,000 of 
paragraph (e)(1) wages reported on 2010 Forms W-2, and Z's taxable 
income is $1,380 based on the following Federal income tax items:

DPGR.........................................................     $3,000
Non-DPGR.....................................................      3,000
CGS and deductions...........................................    (4,620)
                                                              ----------
    Z's taxable income.......................................      1,380
 

    (ii) Z's QPAI. Z uses the small business simplified overall method 
under Sec. 1.199-4(f) to apportion CGS and deductions between DPGR and 
non-DPGR. Z's QPAI for its taxable year ending April 30, 2011, is $690, 
as shown in the following table:

DPGR.........................................................     $3,000
CGS and deductions apportioned to DPGR ($4,620 x ($3,000 DPGR/   (2,310)
 $6,000 total gross receipts))...............................
                                                              ----------
    Z's QPAI.................................................        690
 

    (iii) W-2 wages. Z's W-2 wages under paragraph (e)(2)(iii) of this 
section are $1,500, as shown in the following calculation:

$3,000 in paragraph (e)(1) wages x ($3,000 DPGR/$6,000 total      $1,500
 gross receipts).............................................
 

    (iv) Section 199 deduction determination. Z's tentative section 199 
deduction is $62 (.09 x (lesser of QPAI of $690 or taxable income of 
$1,380)) subject to the W-2 wage limitation of $750 (50% x $1,500). 
Accordingly, Z's section 199 deduction for its taxable year ending April 
30, 2011, is $62.
    Example 5. Corporation uses employees of non-consolidated EAG 
member. (i) Facts. Corporations S and B are the only members of a single 
EAG but are not members of a consolidated group. S and B are both 
calendar year

[[Page 346]]

taxpayers. All the activities described in this Example 5 take place 
during the same taxable year and they are the only activities of S and 
B. S and B each use the section 861 method described in Sec. 1.199-4(d) 
for allocating and apportioning their deductions. B is a manufacturer 
but has only three employees of its own. S employs the remainder of the 
personnel who perform the manufacturing activities for B. S's only 
receipts are from supplying employees to B. In 2010, B manufactures 
qualifying production property (QPP) (as defined in Sec. 1.199-
3(j)(1)), using its three employees and S's employees, and sells the QPP 
for $10,000,000. B's total CGS and other deductions are $6,000,000, 
including $1,000,000 paid to S for the use of S's employees and $100,000 
paid to its own employees. B reports the $100,000 paid to its employees 
on the 2010 Forms W-2 issued to its employees. S pays its employees 
$800,000 that is reported on the 2010 Forms W-2 issued to the employees.
    (ii) B's W-2 wages. In determining its W-2 wages, B utilizes the 
wage expense safe harbor described in paragraph (e)(2)(ii) of this 
section. The entire $100,000 paid by B to its employees is included in 
B's wage expense included in calculating its QPAI and is the only wage 
expense used in calculating B's taxable income. Thus, under the wage 
expense safe harbor described in paragraph (e)(2)(ii) of this section, 
B's W-2 wages are $100,000 ($100,000 (paragraph (e)(1) wages) x 
($100,000 (wage expense used in calculating B's QPAI)/$100,000 (wage 
expense used in calculating B's taxable income))).
    (iii) S's W-2 wages. In determining its W-2 wages, S utilizes the 
wage expense safe harbor described in paragraph (e)(2)(ii) of this 
section. Because S's $1,000,000 in receipts from B do not qualify as 
DPGR and are S's only gross receipts, none of the $800,000 paid by S to 
its employees is included in S's wage expense included in calculating 
its QPAI. However, the entire $800,000 is included in calculating S's 
taxable income. Thus, under the wage expense safe harbor described in 
paragraph (e)(2)(ii)(A) of this section, S's W-2 wages are $0 ($800,000 
(paragraph (e)(1) wages) x ($0 (wage expense used in calculating S's 
QPAI)/$800,000 (wage expense used in calculating S's taxable income))).
    (iv) Determination of EAG's section 199 deduction. The section 199 
deduction of the S and B EAG is determined by aggregating the separately 
determined taxable income or loss, QPAI, and W-2 wages of S and B. See 
Sec. 1.199-7(b). B's taxable income and QPAI are each $4,000,000 
($10,000,000 DPGR - $6,000,000 CGS and other deductions). S's taxable 
income is $200,000 ($1,000,000 gross receipts - $800,000 total 
deductions). S's QPAI is $0 ($0 DPGR - $0 CGS and other deductions). B's 
W-2 wages (as calculated in paragraph (ii) of this Example 5) are 
$100,000 and S's W-2 wages (as calculated in paragraph (iii) of this 
Example 5) are $0. The EAG's tentative section 199 deduction is $360,000 
(.09 x (lesser of combined QPAI of $4,000,000 (B's QPAI of $4,000,000 + 
S's QPAI of $0) or combined taxable income of $4,200,000 (B's taxable 
income of $4,000,000 + S's taxable income of $200,000))) subject to the 
W-2 wage limitation of $50,000 (50% x ($100,000 (B's W-2 wages) + $0 
(S's W-2 wages))). Accordingly, the S and B EAG's section 199 deduction 
for 2010 is $50,000. The $50,000 is allocated to S and B in proportion 
to their QPAI. See Sec. 1.199-7(c). Because S has no QPAI, the entire 
$50,000 is allocated to B.
    Example 6. Corporation using employees of consolidated EAG member. 
The facts are the same as in Example 5 except that B and S are members 
of the same consolidated group. Ordinarily, as demonstrated in Example 
5, S's $1,000,000 of receipts would not be DPGR and its $800,000 paid to 
its employees would not be W-2 wages (because the $800,000 would not be 
properly allocable to DPGR). However, because S and B are members of the 
same consolidated group, Sec. 1.1502-13(c)(1)(i) provides that the 
separate entity attributes of S's intercompany items or B's 
corresponding items, or both, may be redetermined in order to produce 
the same effect as if S and B were divisions of a single corporation. If 
S and B were divisions of a single corporation, S and B would have QPAI 
and taxable income of $4,200,000 ($10,000,000 DPGR received from the 
sale of the QPP - $5,800,000 CGS and other deductions) and, under the 
wage expense safe harbor described in paragraph (e)(2)(ii) of this 
section, would have $900,000 of W-2 wages ($900,000 (combined paragraph 
(e)(1) wages of S and B) x ($900,000 (wage expense used in calculating 
QPAI)/$900,000 (wage expense used in calculating taxable income))). The 
single corporation would have a tentative section 199 deduction equal to 
9% of $4,200,000, or $378,000, subject to the W-2 wage limitation of 50% 
of $900,000, or $450,000. Thus, the single corporation would have a 
section 199 deduction of $378,000. To obtain this same result for the 
consolidated group, S's $1,000,000 of receipts from the intercompany 
transaction are redetermined as DPGR. Thus, S's $800,000 paid to its 
employees are costs properly allocable to DPGR and S's W-2 wages are 
$800,000. Accordingly, the consolidated group has QPAI and taxable 
income of $4,200,000 ($11,000,000 DPGR (from the sale of the QPP and the 
redetermined intercompany transaction) - $6,800,000 CGS and other 
deductions) and W-2 wages of $900,000. The consolidated group's section 
199 deduction is $378,000, the same as the single corporation. However, 
for purposes of allocating the section 199 deduction between S and B, 
the redetermination of S's income as DPGR under Sec. 1.1502-13(c)(1)(i) 
is not taken into account. See Sec. 1.199-7(d)(5). Accordingly, the 
consolidated group's entire section 199 deduction of $378,000 is 
allocated to B.


[[Page 347]]


    (3) Methods for calculating W-2 wages. The Secretary may provide by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter) for methods to be used in 
calculating W-2 wages, including W-2 wages for short taxable years. For 
example, see Rev. Proc. 2006-22 (2006-23 I.R.B. 1033). (see Sec. 
601.601(d)(2) of this chapter).

[T.D. 9263, 71 FR 31283, June 1, 2006, as amended by T.D. 9293, 71 FR 
61665, Oct. 19, 2006; T.D. 9263, 72 FR 5, Jan. 3, 2007; T.D. 9381, 73 FR 
8801, Feb. 15, 2008]



Sec. 1.199-3  Domestic production gross receipts.

    (a) In general. The provisions of this section apply solely for 
purposes of section 199 of the Internal Revenue Code (Code). Domestic 
production gross receipts (DPGR) are the gross receipts (as defined in 
paragraph (c) of this section) of the taxpayer that are--
    (1) Derived from any lease, rental, license, sale, exchange, or 
other disposition (as defined in paragraph (i) of this section) of--
    (i) Qualifying production property (QPP) (as defined in paragraph 
(j)(1) of this section) that is manufactured, produced, grown, or 
extracted (MPGE) (as defined in paragraph (e) of this section) by the 
taxpayer (as defined in paragraph (f) of this section) in whole or in 
significant part (as defined in paragraph (g) of this section) within 
the United States (as defined in paragraph (h) of this section);
    (ii) Any qualified film (as defined in paragraph (k) of this 
section) produced by the taxpayer; or
    (iii) Electricity, natural gas, or potable water (as defined in 
paragraph (l) of this section) (collectively, utilities) produced by the 
taxpayer in the United States;
    (2) Derived from, in the case of a taxpayer engaged in the active 
conduct of a construction trade or business, construction of real 
property (as defined in paragraph (m) of this section) performed in the 
United States by the taxpayer in the ordinary course of such trade or 
business; or
    (3) Derived from, in the case of a taxpayer engaged in the active 
conduct of an engineering or architectural services trade or business, 
engineering or architectural services (as defined in paragraph (n) of 
this section) performed in the United States by the taxpayer in the 
ordinary course of such trade or business with respect to the 
construction of real property in the United States.
    (b) Related persons--(1) In general. DPGR does not include any gross 
receipts of the taxpayer derived from property leased, licensed, or 
rented by the taxpayer for use by any related person. A person is 
treated as related to another person if both persons are treated as a 
single employer under either section 52(a) or (b) (without regard to 
section 1563(b)), or section 414(m) or (o). Any other person is an 
unrelated person for purposes of Sec. Sec. 1.199-1 through 1.199-9.
    (2) Exceptions. Notwithstanding paragraph (b)(1) of this section, 
gross receipts derived from any QPP or qualified film leased or rented 
by the taxpayer to a related person may qualify as DPGR if the QPP or 
qualified film is held for sublease or rent, or is subleased or rented, 
by the related person to an unrelated person for the ultimate use of the 
unrelated person. Similarly, notwithstanding paragraph (b)(1) of this 
section, gross receipts derived from the license of QPP or a qualified 
film to a related person for reproduction and sale, exchange, lease, 
rental, or sublicense to an unrelated person for the ultimate use of the 
unrelated person may qualify as DPGR.
    (c) Definition of gross receipts. The term gross receipts means the 
taxpayer's receipts for the taxable year that are recognized under the 
taxpayer's methods of accounting used for Federal income tax purposes 
for the taxable year. If the gross receipts are recognized in an 
intercompany transaction within the meaning of Sec. 1.1502-13, see also 
Sec. 1.199-7(d). For this purpose, gross receipts include total sales 
(net of returns and allowances) and all amounts received for services. 
In addition, gross receipts include any income from investments and from 
incidental or outside sources. For example, gross receipts include 
interest (including original issue discount and tax-exempt interest 
within the meaning of section 103), dividends, rents, royalties, and 
annuities, regardless of whether the amounts are derived in the ordinary

[[Page 348]]

course of the taxpayer's trade of business. Gross receipts are not 
reduced by cost of goods sold (CGS) or by the cost of property sold if 
such property is described in section 1221(a)(1), (2), (3), (4), or (5). 
Gross receipts do not include the amounts received in repayment of a 
loan or similar instrument (for example, a repayment of the principal 
amount of a loan held by a commercial lender) and, except to the extent 
of gain recognized, do not include gross receipts derived from a non-
recognition transaction, such as a section 1031 exchange. Finally, gross 
receipts do not include amounts received by the taxpayer with respect to 
sales tax or other similar state and local taxes if, under the 
applicable state or local law, the tax is legally imposed on the 
purchaser of the good or service and the taxpayer merely collects and 
remits the tax to the taxing authority. If, in contrast, the tax is 
imposed on the taxpayer under the applicable law, then gross receipts 
include the amounts received that are allocable to the payment of such 
tax.
    (d) Determining domestic production gross receipts--(1) In general. 
For purposes of Sec. Sec. 1.199-1 through 1.199-9, a taxpayer 
determines, using any reasonable method that is satisfactory to the 
Secretary based on all of the facts and circumstances, whether gross 
receipts qualify as DPGR on an item-by-item basis (and not, for example, 
on a division-by-division, product line-by-product line, or transaction-
by-transaction basis).
    (i) The term item means the property offered by the taxpayer in the 
normal course of the taxpayer's business for lease, rental, license, 
sale, exchange, or other disposition (for purposes of this paragraph 
(d), collectively referred to as disposition) to customers, if the gross 
receipts from the disposition of such property qualify as DPGR; or
    (ii) If paragraph (d)(1)(i) of this section does not apply to the 
property, then any component of the property described in paragraph 
(d)(1)(i) of this section is treated as the item, provided that the 
gross receipts from the disposition of the property described in 
paragraph (d)(1)(i) of this section that are attributable to such 
component qualify as DPGR. Each component that meets the requirements 
under this paragraph (d)(1)(ii) must be treated as a separate item and a 
component that meets the requirements under this paragraph (d)(1)(ii) 
may not be combined with a component that does not meet these 
requirements.
    (2) Special rules. The following special rules apply for purposes of 
paragraph (d)(1) of this section:
    (i) For purposes of paragraph (d)(1)(i) of this section, in no event 
may a single item consist of two or more properties unless those 
properties are offered for disposition, in the normal course of the 
taxpayer's business, as a single item (regardless of how the properties 
are packaged).
    (ii) In the case of property customarily sold by weight or by 
volume, the item is determined using the custom of the industry (for 
example, barrels of oil).
    (iii) In the case of construction activities and services or 
engineering and architectural services, a taxpayer may use any 
reasonable method that is satisfactory to the Secretary based on all of 
the facts and circumstances to determine what construction activities 
and services or engineering or architectural services constitute an 
item.
    (3) Exception. If a taxpayer MPGE QPP within the United States or 
produces a qualified film or produces utilities in the United States 
that it disposes of, and the taxpayer leases, rents, licenses, 
purchases, or otherwise acquires property that contains or may contain 
the QPP, qualified film, or the utilities (or a portion thereof), and 
the taxpayer cannot reasonably determine, without undue burden and 
expense, whether the acquired property contains any of the original QPP, 
qualified film, or utilities MPGE or produced by the taxpayer, then the 
taxpayer is not required to determine whether any portion of the 
acquired property qualifies as an item for purposes of paragraph (d)(1) 
of this section. Therefore, the gross receipts derived from the 
disposition of the acquired property may be treated as non-DPGR. 
Similarly, the preceding sentences shall apply if the taxpayer can 
reasonably determine that the acquired property contains QPP, a 
qualified film, or utilities (or a portion thereof) MPGE or produced by

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the taxpayer, but cannot reasonably determine, without undue burden or 
expense, how much, or what type, grade, etc., of the QPP, qualified 
film, or utilities MPGE or produced by the taxpayer the acquired 
property contains.
    (4) Examples. The following examples illustrate the application of 
paragraph (d) of this section:

    Example 1. Q manufactures leather and rubber shoe soles in the 
United States. Q imports shoe uppers, which are the parts of the shoe 
above the sole. Q manufactures shoes for sale by sewing or otherwise 
attaching the soles to the imported uppers. Q offers the shoes for sale 
to customers in the normal course of Q's business. If the gross receipts 
derived from the sale of the shoes do not qualify as DPGR under this 
section, then under paragraph (d)(1)(ii) of this section, Q must treat 
the sole as the item if the gross receipts derived from the sale of the 
sole qualify as DPGR under this section.
    Example 2. The facts are the same as in Example 1 except that Q also 
buys some finished shoes from unrelated persons and resells them to 
retail shoe stores. Q offers all shoes (manufactured and purchased) for 
sale to customers, in the normal course of Q's business, in individual 
pairs, and requires no minimum quantity order. Q ships the shoes in 
boxes, each box containing as many as 50 pairs of shoes. A full, or 
partially full, box may contain some shoes that Q manufactured, and some 
that Q purchased. Under paragraph (d)(2)(i) of this section, Q cannot 
treat a box of 50 (or fewer) pairs of shoes as an item, because Q offers 
the shoes for sale in the normal course of Q's business in individual 
pairs.
    Example 3. R manufactures toy cars in the United States. R also 
purchases cars that were manufactured by unrelated persons. R offers the 
cars for sale to customers, in the normal course of R's business, in 
sets of three, and requires no minimum quantity order. R sells the 
three-car sets to toy stores. A three-car set may contain some cars 
manufactured by R and some cars purchased by R. If the gross receipts 
derived from the sale of the three-car sets do not qualify as DPGR under 
this section, then, under paragraph (d)(1)(ii) of this section, R must 
treat a toy car in the three-car set as the item, provided the gross 
receipts derived from the sale of the toy car qualify as DPGR under this 
section.
    Example 4. The facts are the same as Example 3 except that R offers 
the toy cars for sale individually to customers in the normal course of 
R's business, rather than in sets of three. R's customers resell the 
individual toy cars at three for $10. Frequently, this results in retail 
customers purchasing three individual cars in one transaction. In 
determining R's DPGR, under paragraph (d)(2)(i) of this section, each 
toy car is an item and R cannot treat three individual toy cars as one 
item, because the individual toy cars are not offered for sale in sets 
of three by R in the normal course of R's business.
    Example 5. The facts are the same as in Example 3 except that R 
offers the toy cars for sale to customers in the normal course of R's 
business both individually and in sets of three. The results are the 
same as Example 3 with respect to the three-car sets. The results are 
the same as in Example 4 with respect to the individual toy cars that 
are not included in the three-car sets and offered for sale 
individually. Thus, R has two items, an individual toy car and a set of 
three toy cars.
    Example 6. S produces television sets in the United States. S also 
produces the same model of television set outside the United States. In 
both cases, S packages the sets one to a box. S sells the television 
sets to large retail consumer electronics stores. S requires that its 
customers purchase a minimum of 100 television sets per order. With 
respect to a particular order by a customer of 100 television sets, some 
were manufactured by S in the United States, and some were manufactured 
by S outside the United States. Under paragraph (d)(2)(i) of this 
section, a minimum order of 100 television sets is the item provided 
that the gross receipts derived from the sale of the 100 television sets 
qualify as DPGR.
    Example 7. T produces in bulk form in the United States the active 
ingredient for a pharmaceutical product. T sells the active ingredient 
in bulk form to FX, a foreign corporation. This sale qualifies as DPGR 
assuming all the other requirements of this section are met. FX uses the 
active ingredient to produce the finished dosage form drug. FX sells the 
drug in finished dosage to T, which sells the drug to customers. Assume 
that T knows how much of the active ingredient is in the finished 
dosage. Under paragraph (d)(1)(ii) of this section, if T's gross 
receipts derived from the sale of the finished dosage do not qualify as 
DPGR under this section, then T must treat the active ingredient 
component as the item because the gross receipts attributable to the 
active ingredient qualify as DPGR under this section. The exception in 
paragraph (d)(3) of this section does not apply because T can reasonably 
determine without undue burden or expense that the finished dosage 
contains the active ingredient and the quantity of the active ingredient 
in the finished dosage.
    Example 8. U produces steel within the United States and sells its 
steel to a variety of customers, including V, an unrelated person, who 
uses the steel for the manufacture of equipment. V also purchases steel 
from other steel producers. For its steel operations, U purchases 
equipment from V that

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may contain steel produced by U. U sells the equipment after 5 years. If 
U cannot reasonably determine without undue burden and expense whether 
the equipment contains any steel produced by U, then, under paragraph 
(d)(3) of this section, U may treat the gross receipts derived from sale 
of the equipment as non-DPGR.
    Example 9. The facts are the same as in Example 8 except that U 
knows that the equipment purchased from V does contain some amount of 
steel produced by U. If U cannot reasonably determine without undue 
burden and expense how much steel produced by U the equipment contains, 
then, under paragraph (d)(3) of this section, U may treat the gross 
receipts derived from sale of the equipment as non-DPGR.
    Example 10. W manufactures sunroofs, stereos, and tires within the 
United States. W purchases automobiles from unrelated persons and 
installs the manufactured components in the automobiles. W, in the 
normal course of W's business, sells the automobiles with the components 
to customers. If the gross receipts derived from the sale of the 
automobiles with the components do not qualify as DPGR under this 
section, then under paragraph (d)(1)(ii) of this section, W must treat 
each component (sunroofs, stereos, and tires) that it manufactures as a 
separate item if the gross receipts derived from the sale of each 
component qualify as DPGR under this section.
    Example 11. X manufacturers leather soles within the United States. 
X purchases shoe uppers, metal eyelets, and laces. X manufactures shoes 
by sewing or otherwise attaching the soles to the uppers; attaching the 
metal eyelets to the shoes; and threading the laces through the eyelets. 
X, in the normal course of X's business, sells the shoes to customers. 
If the gross receipts derived from the sale of the shoes do not qualify 
as DPGR under this section, then under paragraph (d)(1)(ii) of this 
section, X must treat the sole as the item if the gross receipts derived 
from the sale of the sole qualify as DPGR under this section. X may not 
treat the shoe upper, metal eyelets or laces as part of the item because 
under paragraph (d)(1)(ii) of this section the sole is the component 
that is treated as the item.
    Example 12. Y manufactures glass windshields for automobiles within 
the United States. Y purchases automobiles from unrelated persons and 
installs the windshields in the automobiles. Y, in the normal course of 
Y's business, sells the automobiles with the windshields to customers. 
If the automobiles with the windshields do not meet the requirements for 
being an item, then, under paragraph (d)(1)(ii) of this section, Y must 
treat each windshield that it manufactures as an item if the gross 
receipts derived from the sale of the windshield qualify as DPGR under 
this section. Y may not treat any other portion of the automobile as 
part of the item because under paragraph (d)(1)(ii) of this section the 
windshield is the component.

    (e) Definition of manufactured, produced, grown, or extracted--(1) 
In general. Except as provided in paragraphs (e)(2) and (3) of this 
section, the term MPGE includes manufacturing, producing, growing, 
extracting, installing, developing, improving, and creating QPP; making 
QPP out of scrap, salvage, or junk material as well as from new or raw 
material by processing, manipulating, refining, or changing the form of 
an article, or by combining or assembling two or more articles; 
cultivating soil, raising livestock, fishing, and mining minerals. The 
term MPGE also includes storage, handling, or other processing 
activities (other than transportation activities) within the United 
States related to the sale, exchange, or other disposition of 
agricultural products, provided the products are consumed in connection 
with or incorporated into the MPGE of QPP, whether or not by the 
taxpayer. Pursuant to paragraph (f)(1) of this section, the taxpayer 
must have the benefits and burdens of ownership of the QPP under Federal 
income tax principles during the period the MPGE activity occurs in 
order for gross receipts derived from the MPGE of QPP to qualify as 
DPGR.
    (2) Packaging, repackaging, labeling, or minor assembly. If a 
taxpayer packages, repackages, labels, or performs minor assembly of QPP 
and the taxpayer engages in no other MPGE activity with respect to that 
QPP, the taxpayer's packaging, repackaging, labeling, or minor assembly 
does not qualify as MPGE with respect to that QPP.
    (3) Installing. If a taxpayer installs QPP and engages in no other 
MPGE activity with respect to the QPP, the taxpayer's installing 
activity does not qualify as an MPGE activity. Notwithstanding paragraph 
(i)(4)(i)(B)(4) of this section, if the taxpayer installs QPP MPGE by 
the taxpayer and, except as provided in paragraph (f)(2) of this 
section, the taxpayer has the benefits and burdens of ownership of the 
QPP under Federal income tax principles during the period the installing 
activity occurs, then the portion of the installing

[[Page 351]]

activity that relates to the QPP is an MPGE activity.
    (4) Consistency with section 263A. A taxpayer that has MPGE QPP for 
the taxable year should treat itself as a producer under section 263A 
with respect to the QPP unless the taxpayer is not subject to section 
263A. A taxpayer that currently is not properly accounting for its 
production activities under section 263A, and wishes to change its 
method of accounting to comply with the producer requirements of section 
263A, must follow the applicable administrative procedures issued under 
Sec. 1.446-1(e)(3)(ii) for obtaining the Commissioner's consent to a 
change in accounting method (for further guidance, for example, see Rev. 
Proc. 97-27 (1997-1 C.B. 680), or Rev. Proc. 2002-9 (2002-1 C.B. 327), 
whichever applies (see Sec. 601.601(d)(2) of this chapter)).
    (5) Examples. The following examples illustrate the application of 
this paragraph (e):

    Example 1. A, B, and C are unrelated persons and are not 
cooperatives to which Part I of subchapter T of the Code applies. B 
grows agricultural products in the United States and sells them to A, 
who owns agricultural storage bins in the United States. A stores the 
agricultural products and has the benefits and burdens of ownership 
under Federal income tax principles of the agricultural products while 
they are being stored. A sells the agricultural products to C, who 
processes them into refined agricultural products in the United States. 
The gross receipts from A's, B's, and C's activities are DPGR from the 
MPGE of QPP.
    Example 2. The facts are the same as in Example 1 except that B 
grows the agricultural products outside the United States and C 
processes them into refined agricultural products outside the United 
States. Pursuant to paragraph (e)(1) of this section, the gross receipts 
derived by A from its sale of the agricultural products to C are DPGR 
from the MPGE of QPP within the United States. B's and C's respective 
MPGE activities occur outside the United States and, therefore, their 
respective gross receipts are non-DPGR.
    Example 3. Y is hired to reconstruct and refurbish unrelated 
customers' tangible personal property. As part of the reconstruction and 
refurbishment, Y installs purchased replacement parts that constitute 
QPP in the customers' property. Y's installation of purchased 
replacement parts does not qualify as MPGE pursuant to paragraph (e)(3) 
of this section because Y did not MPGE the replacement parts.
    Example 4. The facts are the same as in Example 3 except that Y 
manufactures the replacement parts it uses for the reconstruction and 
refurbishment of customers' tangible personal property. Y has the 
benefits and burdens of ownership under Federal income tax principles of 
the replacement parts during the reconstruction and refurbishment 
activity and while installing the parts. Y's gross receipts derived from 
the MPGE of the replacement parts and Y's gross receipts derived from 
the installation of the replacement parts, which is an MPGE activity 
pursuant to paragraph (e)(3) of this section, are DPGR (assuming all the 
other requirements of this section are met).
    Example 5. Z MPGE QPP within the United States. The following 
activities are performed by Z as part of the MPGE of the QPP while Z has 
the benefits and burdens of ownership under Federal income tax 
principles: materials analysis and selection, subcontractor inspections 
and qualifications, testing of component parts, assisting customers in 
their review and approval of the QPP, routine production inspections, 
product documentation, diagnosis and correction of system failure, and 
packaging for shipment to customers. Because Z MPGE the QPP, these 
activities performed by Z are part of the MPGE of the QPP.
    Example 6. X purchases automobiles from unrelated persons and 
customizes them by adding ground effects, spoilers, custom wheels, 
specialized paint and decals, sunroofs, roof racks, and similar 
accessories. X does not manufacture any of the accessories. X's activity 
is minor assembly under paragraph (e)(2) of this section which is not an 
MPGE activity.
    Example 7. Y manufactures furniture in the United States that it 
sells to unrelated persons. Y also engraves customers' names on pens and 
pencils purchased from unrelated persons and sells the pens and pencils 
to such customers. Although Y's sales of furniture qualify as DPGR if 
all the other requirements of this section are met, Y must determine 
whether its gross receipts derived from the sale of the pens and pencils 
qualify as DPGR. Y's status as a manufacturer of furniture in the United 
States does not carry over to its other activities.
    Example 8. X produces computer software within the United States. In 
2007, X enters into an agreement with Y, an unrelated person, under 
which X will manage Y's networks using computer software that X 
produced. Pursuant to the terms of the agreement, X also provides to Y 
for Y's use on Y's own hardware computer software that X produced 
(additional computer software). Assume that, based on all of the facts 
and circumstances, the transaction between X and Y relating to the 
additional computer software is a lease or sale of the additional 
computer software. Y pays X monthly fees of $100

[[Page 352]]

under the agreement during 2007. No separate charge for the additional 
computer software is stated in the agreement or in the monthly invoices 
that X provides to Y. The portion of X's gross receipts that is derived 
from the lease or sale of the additional computer software is DPGR 
(assuming all the other requirements of this section are met).

    (f) Definition of by the taxpayer--(1) In general. With the 
exception of the rules applicable to an expanded affiliated group (EAG) 
under Sec. 1.199-7, qualifying in-kind partnerships under paragraph 
(i)(7) of this section and Sec. 1.199-9(i), EAG partnerships under 
paragraph (i)(8) of this section and Sec. 1.199-9(j), and government 
contracts under paragraph (f)(2) of this section, only one taxpayer may 
claim the deduction under Sec. 1.199-1(a) with respect to any 
qualifying activity under paragraphs (e)(1), (k)(1), and (l)(1) of this 
section performed in connection with the same QPP, or the production of 
a qualified film or utilities. If one taxpayer performs a qualifying 
activity under paragraph (e)(1), (k)(1), or (l)(1) of this section 
pursuant to a contract with another party, then only the taxpayer that 
has the benefits and burdens of ownership of the QPP, qualified film, or 
utilities under Federal income tax principles during the period in which 
the qualifying activity occurs is treated as engaging in the qualifying 
activity.
    (2) Special rule for certain government contracts. Gross receipts 
derived from the MPGE of QPP in whole or in significant part within the 
United States will be treated as gross receipts derived from the lease, 
rental, license, sale, exchange, or other disposition of QPP MPGE by the 
taxpayer in whole or in significant part within the United States 
notwithstanding the requirements of paragraph (f)(1) of this section 
if--
    (i) The QPP is MPGE by the taxpayer within the United States 
pursuant to a contract with the Federal government; and
    (ii) The Federal Acquisition Regulation (Title 48, Code of Federal 
Regulations) requires that title or risk of loss with respect to the QPP 
be transferred to the Federal government before the MPGE of the QPP is 
completed.
    (3) Subcontractor. If a taxpayer (subcontractor) enters into a 
contract or agreement to MPGE QPP on behalf of a taxpayer to which 
paragraph (f)(2) of this section applies, and the QPP under the contract 
or agreement is subject to paragraph (f)(2)(ii) of this section, then, 
notwithstanding the requirements of paragraph (f)(1) of this section, 
the subcontractor's gross receipts derived from the MPGE of the QPP in 
whole or in significant part within the United States will be treated as 
gross receipts derived from the lease, rental, license, sale, exchange, 
or other disposition of QPP MPGE by the subcontractor in whole or in 
significant part within the United States.
    (4) Examples. The following examples illustrate the application of 
this paragraph (f):

    Example 1. X designs machines that it uses in its trade or business. 
X contracts with Y, an unrelated person, for the manufacture of the 
machines. The contract between X and Y is a fixed-price contract. The 
contract specifies that the machines will be manufactured in the United 
States using X's design. X owns the intellectual property attributable 
to the design and provides it to Y with a restriction that Y may only 
use it during the manufacturing process and has no right to exploit the 
intellectual property. The contract specifies that Y controls the 
details of the manufacturing process while the machines are being 
produced; Y bears the risk of loss or damage during manufacturing of the 
machines; and Y has the economic loss or gain upon the sale of the 
machines based on the difference between Y's costs and the fixed price. 
Y has legal title during the manufacturing process and legal title to 
the machines is not transferred to X until final manufacturing of the 
machines has been completed. Based on all of the facts and 
circumstances, pursuant to paragraph (f)(1) of this section Y has the 
benefits and burdens of ownership of the machines under Federal income 
tax principles during the period the manufacturing occurs and, as a 
result, Y is treated as the manufacturer of the machines.
    Example 2. X designs and engineers machines that it sells to 
customers. X contracts with Y, an unrelated person, for the manufacture 
of the machines. The contract between X and Y is a cost-reimbursable 
type contract. Assume that X has the benefits and burdens of ownership 
of the machines under Federal income tax principles during the period 
the manufacturing occurs except that legal title to the machines is not 
transferred to X until final manufacturing of the machines is completed. 
Based on all of the facts and circumstances, X is treated as the 
manufacturer of the machines under paragraph (f)(1) of this section.

[[Page 353]]

    Example 3. X manufactures machines within the United States pursuant 
to a contract with the Federal government and the Federal Acquisition 
Regulation requires that the title or risk of loss with respect to the 
machines be transferred to the Federal government before X completes 
manufacture of the machines. X subcontracts with Y, an unrelated person, 
for the manufacture of components for the machines that Y manufactures 
within the United States. Assume that the machines manufactured by X, 
and the components for the machines manufactured by Y, are QPP. Both the 
machines and components are subject to the Federal Acquisition 
Regulation that requires title or risk of loss with respect to the 
machines and components be transferred to the Federal government before 
manufacturing of the machines and components are complete. Under 
paragraph (f)(2) of this section, the gross receipts derived by X from 
the manufacture within the United States of the machines for the Federal 
government are treated as having been derived from the lease, rental, 
license, sale, exchange, or other disposition of the machines 
manufactured by X in whole or in significant part within the United 
States. Under paragraph (f)(3) of this section, the gross receipts 
derived by Y from the manufacture within the United States of the 
components for X are also treated as having been derived from the lease, 
rental, license, sale, exchange, or other disposition of the components 
manufactured by Y in whole or in significant part within the United 
States.

    (g) Definition of in whole or in significant part--(1) In general. 
QPP must be MPGE in whole or in significant part by the taxpayer and in 
whole or in significant part within the United States to qualify under 
section 199(c)(4)(A)(i)(I). If a taxpayer enters into a contract with an 
unrelated person for the unrelated person to MPGE QPP for the taxpayer 
and the taxpayer has the benefits and burdens of ownership of the QPP 
under applicable Federal income tax principles during the period the 
MPGE activity occurs, then, pursuant to paragraph (f)(1) of this 
section, the taxpayer is considered to MPGE the QPP under this section. 
The unrelated person must perform the MPGE activity on behalf of the 
taxpayer in whole or in significant part within the United States in 
order for the taxpayer to satisfy the requirements of this paragraph 
(g)(1).
    (2) Substantial in nature. QPP will be treated as MPGE in 
significant part by the taxpayer within the United States for purposes 
of paragraph (g)(1) of this section if the MPGE of the QPP by the 
taxpayer within the United States is substantial in nature taking into 
account all of the facts and circumstances, including the relative value 
added by, and relative cost of, the taxpayer's MPGE activity within the 
United States, the nature of the QPP, and the nature of the MPGE 
activity that the taxpayer performs within the United States. The MPGE 
of a key component of QPP does not, in itself, meet the substantial-in-
nature requirement with respect to the QPP under this paragraph (g)(2). 
In the case of tangible personal property (as defined in paragraph 
(j)(2) of this section), research and experimental activities under 
section 174 and the creation of intangible assets are not taken into 
account in determining whether the MPGE of QPP is substantial in nature 
for any QPP other than computer software (as defined in paragraph (j)(3) 
of this section) and sound recordings (as defined in paragraph (j)(4) of 
this section). Thus, for example, a taxpayer may take into account its 
design and development activities when determining whether its MPGE of 
computer software is substantial in nature.
    (3) Safe harbor--(i) In general. A taxpayer will be treated as 
having MPGE QPP in whole or in significant part within the United States 
for purposes of paragraph (g)(1) of this section if, in connection with 
the QPP, the direct labor and overhead of such taxpayer to MPGE the QPP 
within the United States account for 20 percent or more of the 
taxpayer's CGS of the QPP, or in a transaction without CGS (for example, 
a lease, rental, or license) account for 20 percent or more of the 
taxpayer's unadjusted depreciable basis (as defined in paragraph 
(g)(3)(ii) of this section) in the QPP. For taxpayers subject to section 
263A, overhead is all costs required to be capitalized under section 
263A except direct materials and direct labor. For taxpayers not subject 
to section 263A, overhead may be computed using any reasonable method 
that is satisfactory to the Secretary based on all of the facts and 
circumstances, but may not include any cost, or amount of any cost, that 
would not be required to be capitalized under section 263A if the 
taxpayer were subject to section 263A.

[[Page 354]]

Research and experimental expenditures under section 174 and the costs 
of creating intangible assets are not taken into account in determining 
direct labor or overhead for any tangible personal property. However, 
for a special rule regarding computer software and sound recordings, see 
paragraph (g)(3)(iii) of this section. In the case of tangible personal 
property (as defined in paragraph (j)(2) of this section), research and 
experimental expenditures under section 174 and any other costs incurred 
in the creation of intangible assets may be excluded from CGS or 
unadjusted depreciable basis for purposes of determining whether the 
taxpayer meets the safe harbor under this paragraph (g)(3).
    (ii) Unadjusted depreciable basis. The term unadjusted depreciable 
basis means the basis of property for purposes of section 1011 without 
regard to any adjustments described in section 1016(a)(2) and (3). This 
basis does not reflect the reduction in basis for--
    (A) Any portion of the basis the taxpayer properly elects to treat 
as an expense under section 179 or 179C; or
    (B) Any adjustments to basis provided by other provisions of the 
Code and the regulations under the Code (for example, a reduction in 
basis by the amount of the disabled access credit pursuant to section 
44(d)(7)).
    (iii) Computer software and sound recordings. In determining direct 
labor and overhead under paragraph (g)(3)(i) of this section, the costs 
of direct labor and overhead for developing computer software as 
described in Rev. Proc. 2000-50 (2000-1 C.B. 601) (see Sec. 
601.601(d)(2) of this chapter), research and experimental expenditures 
under section 174, and any other costs of creating intangible assets for 
computer software and sound recordings are treated as direct labor and 
overhead. These costs must be included in the taxpayer's CGS or 
unadjusted depreciable basis of computer software and sound recordings 
for purposes of determining whether the taxpayer meets the safe harbor 
under paragraph (g)(3)(i) of this section. If the taxpayer expects to 
lease, rent, license, sell, exchange, or otherwise dispose of computer 
software or sound recordings over more than one taxable year, the costs 
of developing computer software as described in Rev. Proc. 2000-50 
(2000-1 C.B. 601), research and experimental expenditures under section 
174, and any other costs of creating intangible assets for computer 
software and sound recordings must be allocated over the estimated 
number of units that the taxpayer expects to lease, rent, license, sell, 
exchange, or otherwise dispose of.
    (4) Special rules--(i) Contract with an unrelated person. If a 
taxpayer enters into a contract with an unrelated person for the 
unrelated person to MPGE QPP within the United States for the taxpayer, 
and the taxpayer is considered to MPGE the QPP pursuant to paragraph 
(f)(1) of this section, then, for purposes of the substantial-in-nature 
requirement under paragraph (g)(2) of this section and the safe harbor 
under paragraph (g)(3)(i) of this section, the taxpayer's MPGE or 
production activities or direct labor and overhead shall include both 
the taxpayer's MPGE or production activities or direct labor and 
overhead to MPGE the QPP within the United States as well as the MPGE or 
production activities or direct labor and overhead of the unrelated 
person to MPGE the QPP within the United States under the contract.
    (ii) Aggregation. In determining whether the substantial-in-nature 
requirement under paragraph (g)(2) of this section or the safe harbor 
under paragraph (g)(3)(i) of this section is met at the time the 
taxpayer disposes of an item of QPP--
    (A) An EAG member must take into account all of the previous MPGE or 
production activities or direct labor and overhead of the other members 
of the EAG;
    (B) An EAG partnership (as defined in paragraph (i)(8) of this 
section and Sec. 1.199-9(j)) must take into account all of the previous 
MPGE or production activities or direct labor and overhead of all 
members of the EAG in which the partners of the EAG partnership are 
members (as well as the previous MPGE or production activities of any 
other EAG partnerships owned by members of the same EAG);
    (C) A member of an EAG in which the partners of an EAG partnership 
are members must take into account all of

[[Page 355]]

the previous MPGE or production activities or direct labor and overhead 
of the EAG partnership (as well as those of any other members of the EAG 
and any previous MPGE or production activities of any other EAG 
partnerships owned by members of the same EAG); and
    (D) A partner of a qualifying in-kind partnership (as defined in 
paragraph (i)(7) of this section and Sec. 1.199-9(i)) must take into 
account all of the previous MPGE or production activities or direct 
labor and overhead of the qualifying in-kind partnership.
    (5) Examples. The following examples illustrate the application of 
this paragraph (g):

    Example 1. X purchases from Y, an unrelated person, unrefined oil 
extracted outside the United States. X refines the oil in the United 
States. The refining of the oil by X is an MPGE activity that is 
substantial in nature.
    Example 2. X purchases gemstones and precious metal from outside the 
United States and then uses these materials to produce jewelry within 
the United States by cutting and polishing the gemstones, melting and 
shaping the metal, and combining the finished materials. X's MPGE 
activities are substantial in nature under paragraph (g)(2) of this 
section. Therefore, X has MPGE the jewelry in significant part within 
the United States.
    Example 3. (i) Facts. X operates an automobile assembly plant in the 
United States. In connection with such activity, X purchases assembled 
engines, transmissions, and certain other components from Y, an 
unrelated person, and X assembles all of the component parts into an 
automobile. X also conducts stamping, machining, and subassembly 
operations, and X uses tools, jigs, welding equipment, and other 
machinery and equipment in the assembly of automobiles. On a per-unit 
basis, X 's selling price and costs of such automobiles are as follows:
Selling price: $ 2,500
Cost of goods sold:
 Material--Acquired from Y: $ 1,475
 Direct labor and overhead: $325
 Total cost of goods sold: $1,800
Gross profit: $700
Administrative and selling expenses: $300
Taxable income: $400
    (ii) Analysis. Although X's direct labor and overhead are less than 
20% of total CGS ($325/$1,800, or 18%) and X is not within the safe 
harbor under paragraph (g)(3)(i) of this section, the activities 
conducted by X in connection with the assembly of an automobile are 
substantial in nature under paragraph (g)(2) of this section taking into 
account the nature of X's activity and the relative value of X's 
activity. Therefore, X's automobiles will be treated as MPGE in 
significant part by X within the United States for purposes of paragraph 
(g)(1) of this section.
    Example 4. X imports into the United States QPP that is partially 
manufactured. Assume that X completes the manufacture of the QPP within 
the United States and X's completion of the manufacturing of the QPP 
within the United States satisfies the in-whole-or-in-significant-part 
requirement under paragraph (g)(1) of this section. Therefore, X's gross 
receipts from the lease, rental, license, sale, exchange, or other 
disposition of the QPP qualify as DPGR if all other applicable 
requirements under this section are met.
    Example 5. X manufactures QPP in significant part within the United 
States and exports the QPP for further manufacture outside the United 
States. X retains title to the QPP while the QPP is being further 
manufactured outside the United States. Assuming X meets all the 
requirements under this section for the QPP after the further 
manufacturing, X's gross receipts derived from the lease, rental, 
license, sale, exchange, or other disposition of the QPP will be 
considered DPGR, regardless of whether the QPP is imported back into the 
United States prior to the lease, rental, license, sale, exchange, or 
other disposition of the QPP.
    Example 6. X is a retailer within the United States that sells 
cigars and pipe tobacco that X purchases from an unrelated person. While 
being displayed and offered for sale by X, the cigars and pipe tobacco 
age on X's shelves in a room with controlled temperature and humidity. 
Although X's cigars and pipe tobacco may become more valuable as they 
age, the gross receipts derived by X from the sale of the cigars and 
pipe tobacco are non-DPGR because the aging of the cigars and pipe 
tobacco while being displayed and offered for sale by X does not qualify 
as an MPGE activity that is substantial in nature.
    Example 7. X incurs $1,000,000 in computer software development 
costs in direct labor and overhead to develop computer software. X 
begins producing the computer software and expects to license one 
million copies of the computer software. In determining its direct labor 
and overhead for the computer software under paragraph (g)(3)(i) of this 
section, X must allocate under paragraph (g)(3)(iii) of this section the 
$1,000,000 to the computer software X expects to produce. Thus, for each 
copy of the computer software produced by X, $1 ($1,000,000 in computer 
software development costs/one million estimated number of units to be 
licensed) in computer software development costs are treated as direct 
labor and overhead.
    Example 8. X creates computer software for microwave ovens. X also 
manufactures the

[[Page 356]]

electric motors used in the ovens. X purchases the other components of 
the microwave ovens from unrelated persons. X sells each microwave oven 
individually to customers. Assume that X's assembly of the finished 
microwave ovens is not minor assembly. To determine whether the 
manufacture of the microwave ovens satisfies the safe harbor under 
paragraph (g)(3)(i) of this section, X's direct labor and overhead 
include X's direct labor and overhead for creating the computer 
software, manufacturing the electric motors, and assembling the finished 
microwave ovens that are offered for sale.
    Example 9. X designs shirts within the United States, but X cuts and 
sews the shirts outside of the United States. Because X's design 
activity is the creation of an intangible, its design activity is not 
taken into account in determining whether the manufacture of the shirts 
is substantial in nature under paragraph (g)(2) of this section, and the 
costs X incurs in creating the design of the shirts are not direct labor 
or overhead under paragraph (g)(3)(i) of this section. Therefore, X has 
not MPGE the shirts in significant part within the United States.
    Example 10. X manufactures computer chips within the United States. 
X installs the computer chips that it manufactures in computers that X 
purchases from unrelated persons and sells the finished computers 
individually to customers. The computer chips are key components of the 
computers and the computers will not operate without them. The 
manufacture of the computer chips is not, in itself, substantial in 
nature with respect to the finished computers. Therefore, the taxpayer's 
MPGE activities must meet either the substantial-in-nature requirement 
under paragraph (g)(2) of this section, or the safe harbor under 
paragraph (g)(3) of this section, in order to qualify with respect to 
the finished computers.

    (h) Definition of United States. For purposes of this section, the 
term United States includes the 50 states, the District of Columbia, the 
territorial waters of the United States, and the seabed and subsoil of 
those submarine areas that are adjacent to the territorial waters of the 
United States and over which the United States has exclusive rights, in 
accordance with international law, with respect to the exploration and 
exploitation of natural resources. The term United States does not 
include possessions and territories of the United States or the airspace 
or space over the United States and these areas.
    (i) Derived from the lease, rental, license, sale, exchange, or 
other disposition--(1) In general--(i) Definition. The term derived from 
the lease, rental, license, sale, exchange, or other disposition is 
defined as, and limited to, the gross receipts directly derived from the 
lease, rental, license, sale, exchange, or other disposition of QPP, a 
qualified film, or utilities, even if the taxpayer has already 
recognized gross receipts from a previous lease, rental, license, sale, 
exchange, or other disposition of the same QPP, qualified film, or 
utilities. Applicable Federal income tax principles apply to determine 
whether a transaction is, in substance, a lease, rental, license, sale, 
exchange, or other disposition, whether it is a service, or whether it 
is some combination thereof.
    (ii) Lease income. The financing and interest components of a lease 
of QPP or a qualified film are considered to be derived from the lease 
of such QPP or qualified film. However, any portion of the lease income 
that is attributable to services or non-qualified property as defined in 
paragraph (i)(4) of this section is not derived from the lease of QPP or 
a qualified film.
    (iii) Income substitutes. The proceeds from business interruption 
insurance, governmental subsidies, and governmental payments not to 
produce are treated as gross receipts derived from the lease, rental, 
license, sale, exchange, or other disposition to the extent that they 
are substitutes for gross receipts that would qualify as DPGR.
    (iv) Exchange of property--(A) Taxable exchanges. Except as provided 
in paragraph (i)(1)(iv)(B) of this section, the value of property 
received by a taxpayer in a taxable exchange of QPP MPGE in whole or in 
significant part by the taxpayer within the United States, a qualified 
film produced by the taxpayer, or utilities produced by the taxpayer 
within the United States is DPGR for the taxpayer (assuming all the 
other requirements of this section are met). However, unless the 
taxpayer meets all of the requirements under this section with respect 
to any further MPGE by the taxpayer of the QPP or any further production 
by the taxpayer of the film or utilities received in the taxable 
exchange, any gross receipts derived from the sale by the taxpayer of 
the property received in the taxable exchange are non-DPGR, because the

[[Page 357]]

taxpayer did not MPGE or produce such property, even if the property was 
QPP, a qualified film, or utilities in the hands of the other party to 
the transaction.
    (B) Safe harbor. For purposes of paragraph (i)(1)(iv)(A) of this 
section, the gross receipts derived by the taxpayer from the sale of 
eligible property (as defined in paragraph (i)(1)(iv)(C) of this 
section) received in a taxable exchange, net of any adjustments between 
the parties involved in the taxable exchange to account for differences 
in the eligible property exchanged (for example, location differentials 
and product differentials), may be treated as the value of the eligible 
property received by the taxpayer in the taxable exchange. For purposes 
of the preceding sentence, the taxable exchange is deemed to occur on 
the date of the sale of the eligible property received in the taxable 
exchange by the taxpayer, to the extent the sale occurs no later than 
the last day of the month following the month in which the exchanged 
eligible property is received by the taxpayer. In addition, if the 
taxpayer engages in any further MPGE or production activity with respect 
to the eligible property received in the taxable exchange, then, unless 
the taxpayer meets the in-whole-or-in-significant-part requirement under 
paragraph (g)(1) of this section with respect to the property sold, for 
purposes of this paragraph (i)(1)(iv)(B), the taxpayer must also value 
the property sold without taking into account the gross receipts 
attributable to the further MPGE or production activity.
    (C) Eligible property. For purposes of paragraph (i)(1)(iv)(B) of 
this section, eligible property is--
    (1) Oil, natural gas (as described in paragraph (l)(2) of this 
section), or petrochemicals, or products derived from oil, natural gas, 
or petrochemicals; or
    (2) Any other property or product designated by publication in the 
Internal Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this 
chapter).
    (2) Examples. The following examples illustrate the application of 
paragraph (i)(1) of this section:

    Example 1. X MPGE QPP in whole or in significant part within the 
United States and uses the QPP in its business. After several years X 
sells the QPP that it MPGE to Y. The gross receipts derived from the 
sale of the QPP to Y are DPGR (assuming all the other requirements of 
this section are met).
    Example 2. X MPGE QPP within the United States and sells the QPP to 
Y, an unrelated person. Y leases the QPP for 3 years to Z, a taxpayer 
unrelated to both X and Y, and shortly after Y enters into the lease 
with Z, X repurchases the QPP from Y subject to the lease. At the end of 
the lease term, Z purchases the QPP from X. X's proceeds derived from 
the sale of the QPP to Y, from the lease to Z (including any financing 
and interest components of the lease), and from the sale of the QPP to Z 
all qualify as DPGR (assuming all the other requirements of this section 
are met).
    Example 3. X MPGE QPP within the United States and sells the QPP to 
Y, an unrelated person, for $25,000. X finances Y's purchase of the QPP 
and receives total payments of $35,000, of which $10,000 relates to 
interest and finance charges. The $25,000 qualifies as DPGR, but the 
$10,000 in interest and finance charges do not qualify as DPGR because 
the $10,000 is not derived from the MPGE of QPP within the United 
States, but rather from X's lending activity.
    Example 4. Cable company X charges subscribers $15 a month for its 
basic cable television. Y, an unrelated person, produces a qualified 
film within the meaning of paragraph (k)(1) of this section that it 
licenses to X for $.10 per subscriber per month. The gross receipts 
derived by Y are derived from the license of a qualified film produced 
by Y and are DPGR (assuming all the other requirements of this section 
are met).
    Example 5. X manufactures cars within the United States. X also 
manufactures replacement parts within the United States. The replacement 
parts are QPP under paragraph (j)(1) of this section. X offers extended 
warranties to its customers. X sells a car to Y. Y purchases an extended 
warranty and brings the car to X's service department for maintenance. X 
repairs the car and replaces damaged parts with replacement parts that X 
manufactured within the United States. The portion of X's gross receipts 
derived from the sale of the extended warranty relating to the 
manufactured parts are DPGR.

    (3) Hedging transactions--(i) In general. For purposes of this 
section, provided that the risk being hedged relates to QPP described in 
section 1221(a)(1) or relates to property described in section 
1221(a)(8) consumed in an activity giving rise to DPGR, and provided 
that the transaction is a hedging transaction within the meaning of 
section 1221(b)(2)(A) and Sec. 1.1221-2(b) and is properly identified 
as a

[[Page 358]]

hedging transaction in accordance with Sec. 1.1221-2(f), then--
    (A) In the case of a hedge of purchases of property described in 
section 1221(a)(1), gain or loss on the hedging transaction must be 
taken into account in determining CGS;
    (B) In the case of a hedge of sales of property described in section 
1221(a)(1), gain or loss on the hedging transaction must be taken into 
account in determining DPGR; and
    (C) In the case of a hedge of purchases of property described in 
section 1221(a)(8), gain or loss on the hedging transaction must be 
taken into account in determining DPGR.
    (ii) Currency fluctuations. For purposes of this section, in the 
case of a transaction that manages the risk of currency fluctuations, 
the determination of whether the transaction is a hedging transaction 
within the meaning of Sec. 1.1221-2(b) is made without regard to 
whether the transaction is a section 988 transaction. See Sec. 1.1221-
2(a)(4). The preceding sentence applies only to the extent that Sec. 
1.988-5(b) does not apply.
    (iii) Effect of identification and nonidentification. If a taxpayer 
does not make an identification that satisfies all of the requirements 
of Sec. 1.1221-2(f) but the taxpayer has no reasonable grounds for 
treating the transaction as other than a hedging transaction, then a 
loss from the transaction is taken into account under this paragraph 
(i)(3). If the inadvertent identification rule of Sec. 1.1221-
2(g)(1)(ii) or the inadvertent error rule of Sec. 1.1221-2(g)(2)(ii) 
applies, then the taxpayer is treated as not having identified the 
transaction as a hedging transaction or as having identified the 
transaction as a hedging transaction, as the case may be. If a taxpayer 
identifies a transaction as a hedging transaction in accordance with 
Sec. 1.1221-2(f)(1), then--
    (A) That identification is binding with respect to loss for purposes 
of this paragraph (i)(3), whether or not all of the requirements of 
Sec. 1.1221-2(f) are satisfied and whether or not the transaction is in 
fact a hedging transaction within the meaning of section 1221(b)(2)(A) 
and Sec. 1.1221-2(b), and
    (B) This paragraph (i)(3) does not apply to require gain to be taken 
into account in determining CGS or DPGR, if the transaction is not in 
fact a hedging transaction within the meaning of section 1221(b)(2)(A) 
and Sec. 1.1221-2(b).
    (iv) Other rules. See Sec. 1.1221-2(e) for rules applicable to 
hedging by members of a consolidated group and Sec. 1.446-4 for rules 
regarding the timing of income, deductions, gains, or losses with 
respect to hedging transactions.
    (4) Allocation of gross receipts--(i) Embedded services and non-
qualified property--(A) In general. Except as otherwise provided in 
paragraph (i)(4)(i)(B), paragraph (m) (relating to construction), and 
paragraph (n) (relating to engineering and architectural services) of 
this section, gross receipts derived from the performance of services do 
not qualify as DPGR. In the case of an embedded service, that is, a 
service the price of which, in the normal course of the taxpayer's 
business, is not separately stated from the amount charged for the 
lease, rental, license, sale, exchange, or other disposition of QPP, a 
qualified film, or utilities, DPGR include only the gross receipts 
derived from the lease, rental, license, sale, exchange, or other 
disposition of QPP, a qualified film, or utilities (assuming all the 
other requirements of this section are met) and not any receipts 
attributable to the embedded service. In addition, DPGR does not include 
the gross receipts derived from the lease, rental, license, sale, 
exchange, or other disposition of property that does not meet all of the 
requirements under this section (non-qualified property). The allocation 
of the gross receipts attributable to the embedded services or non-
qualified property will be deemed to be reasonable if the allocation 
reflects the fair market value of the embedded services or non-qualified 
property. For example, gross receipts derived from the lease, rental, 
license, sale, exchange, or other disposition of a replacement part that 
is non-qualified property does not qualify as DPGR. In addition, see 
Sec. 1.199-1(e) for other instances when an allocation of gross 
receipts attributable to embedded services or non-qualified property 
will be deemed reasonable.
    (B) Exceptions. There are six exceptions to the rules under 
paragraph

[[Page 359]]

(i)(4)(i)(A) of this section regarding embedded services and non-
qualified property. A taxpayer may include in DPGR, if all the other 
requirements of this section are met with respect to the underlying item 
of QPP, qualified films, or utilities to which the embedded services or 
non-qualified property relate, the gross receipts derived from--
    (1) A qualified warranty, that is, a warranty (other than a computer 
software maintenance agreement described in paragraph (i)(4)(i)(B)(5) of 
this section) that is provided in connection with the lease, rental, 
license, sale, exchange, or other disposition of QPP, a qualified film, 
or utilities if, in the normal course of the taxpayer's business--
    (i) The price for the warranty is not separately stated from the 
amount charged for the lease, rental, license, sale, exchange, or other 
disposition of the QPP, qualified film, or utilities; and
    (ii) The warranty is neither separately offered by the taxpayer nor 
separately bargained for with customers (that is, a customer cannot 
purchase the QPP, qualified film, or utilities without the warranty);
    (2) A qualified delivery, that is, a delivery or distribution 
service that is provided in connection with the lease, rental, license, 
sale, exchange, or other disposition of QPP if, in the normal course of 
the taxpayer's business--
    (i) The price for the delivery or distribution service is not 
separately stated from the amount charged for the lease, rental, 
license, sale, exchange, or other disposition of the QPP; and
    (ii) The delivery or distribution service is neither separately 
offered by the taxpayer nor separately bargained for with customers 
(that is, a customer cannot purchase the QPP without the delivery or 
distribution service);
    (3) A qualified operating manual, that is, a manual of instructions 
(including electronic instructions) that is provided in connection with 
the lease, rental, license, sale, exchange, or other disposition of QPP, 
a qualified film or utilities if, in the normal course of the taxpayer's 
business--
    (i) The price for the manual is not separately stated from the 
amount charged for the lease, rental, license, sale, exchange, or other 
disposition of the QPP, qualified film, or utilities;
    (ii) The manual is neither separately offered by the taxpayer nor 
separately bargained for with customers (that is, a customer cannot 
purchase the QPP, qualified film, or utilities without the manual); and
    (iii) The manual is not provided in connection with a training 
course for customers;
    (4) A qualified installation, that is, an installation service 
(including minor assembly) for tangible personal property that is 
provided in connection with the lease, rental, license, sale, exchange, 
or other disposition of the tangible personal property if, in the normal 
course of the taxpayer's business--
    (i) The price for the installation service is not separately stated 
from the amount charged for the lease, rental, license, sale, exchange, 
or other disposition of the tangible personal property; and
    (ii) The installation is neither separately offered by the taxpayer 
nor separately bargained for with customers (that is, a customer cannot 
purchase the tangible personal property without the installation 
service);
    (5) Services performed pursuant to a qualified computer software 
maintenance agreement. A qualified computer software maintenance 
agreement is an agreement provided in connection with the lease, rental, 
license, sale, exchange, or other disposition of the computer software 
that entitles the customer to receive future updates, cyclical releases, 
rewrites of the underlying software, or customer support services for 
the computer software if, in the normal course of the taxpayer's 
business--
    (i) The price for the agreement is not separately stated from the 
amount charged for the lease, rental, license, sale, exchange, or other 
disposition of the computer software; and
    (ii) The agreement is neither separately offered by the taxpayer nor 
separately bargained for with customers (that is, a customer cannot 
purchase the computer software without the agreement); and
    (6) A de minimis amount of gross receipts from embedded services and 
non-qualified property for each item of

[[Page 360]]

QPP, qualified films, or utilities. For purposes of the preceding 
sentence, a de minimis amount of gross receipts from embedded services 
and non-qualified property is less than 5 percent of the total gross 
receipts derived from the lease, rental, license, sale, exchange, or 
other disposition of each item of QPP, qualified films, or utilities. In 
the case of gross receipts derived from the lease, rental, license, 
sale, exchange, or other disposition of QPP, a qualified film, or 
utilities that are received over a period of time (for example, a multi-
year lease or installment sale), this de minimis exception is applied by 
taking into account the total gross receipts for the entire period 
derived (and to be derived) from the lease, rental, license, sale, 
exchange, or other disposition of the item of QPP, qualified films, or 
utilities. For purposes of the preceding sentence, if a taxpayer treats 
gross receipts as DPGR under this de minimis exception, then the 
taxpayer must treat the gross receipts recognized in each taxable year 
consistently as DPGR. The gross receipts that the taxpayer treats as 
DPGR under paragraphs (i)(4)(i)(B)(1), (2), (3), (4), and (5) and 
(l)(4)(iv)(A) of this section are treated as DPGR for purposes of 
applying this de minimis exception. This de minimis exception does not 
apply if the price of a service or non-qualified property is separately 
stated by the taxpayer, or if the service or non-qualified property is 
separately offered or separately bargained for with the customer (that 
is, the customer can purchase the QPP, qualified film, or utilities 
without the service or non-qualified property).
    (ii) Non-DPGR. All of a taxpayer's gross receipts derived from the 
lease, rental, license, sale, exchange or other disposition of an item 
of QPP, qualified films, or utilities may be treated as non-DPGR if less 
than 5 percent of the taxpayer's total gross receipts derived from the 
lease, rental, license, sale, exchange or other disposition of that item 
are DPGR. In the case of gross receipts derived from the lease, rental, 
license, sale, exchange, or other disposition of QPP, a qualified film, 
and utilities that are received over a period of time (for example, a 
multi-year lease or installment sale), this paragraph (i)(4)(ii) is 
applied by taking into account the total gross receipts for the entire 
period derived (and to be derived) from the lease, rental, license, 
sale, exchange, or other disposition of the item of QPP, qualified 
films, or utilities. For purposes of the preceding sentence, if a 
taxpayer treats gross receipts as non-DPGR under this de minimis 
exception, then the taxpayer must treat the gross receipts recognized in 
each taxable year consistently as non-DPGR.
    (iii) Examples. The following examples illustrate the application of 
this paragraph (i)(4):

    Example 1. X MPGE QPP within the United States. As part of the sale 
of the QPP to Z, X trains Z's employees on how to use and operate the 
QPP. No other services or property are provided to Z in connection with 
the sale of the QPP to Z. In the normal course of X's business, the QPP 
and training services are separately stated in the sales contract. 
Because, in the normal course of the X's business, the training services 
are separately stated, the training services are not treated as embedded 
services under the de minimis exception in paragraph (i)(4)(i)(B)(6) of 
this section.
    Example 2. The facts are the same as in Example 1 except that, in 
the normal course of X's business, the training services are not 
separately stated in the sales contract and the customer cannot purchase 
the QPP without the training services. If the gross receipts for the 
embedded training services are less than 5% of the gross receipts 
derived from the sale of X's QPP to Z, after applying the exceptions 
under paragraphs (i)(4)(i)(B)(1) through (5) of this section, then the 
gross receipts may be included in DPGR under the de minimis exception in 
paragraph (i)(4)(i)(B)(6) of this section.
    Example 3. X MPGE QPP within the United States. As part of the sale 
of the QPP to retailers, X charges a fee for delivering the QPP. In the 
normal course of X's business, the price of the QPP and the delivery fee 
are separately stated in X's sales contracts. Because, in the normal 
course of X's business, the delivery fee is separately stated, the 
delivery fee does not qualify as DPGR under the qualified delivery 
exception in paragraph (i)(4)(i)(B)(2) of this section or the de minimis 
exception under paragraph (i)(4)(i)(B)(6) of this section. The result 
would be the same even if the retailer's customers cannot purchase the 
QPP without paying the delivery fee.
    Example 4. (i) Facts. X manufactures industrial sewing machines 
within the United States that X offers for sale individually to 
customers. X enters into a single, lump-sum

[[Page 361]]

priced contract with Y, an unrelated person, and the contract has the 
following terms: X will manufacture industrial sewing machines within 
the United States for Y; X will deliver the industrial sewing machines 
to Y; X will provide a one-year warranty on the industrial sewing 
machines; X will provide operating manuals with the industrial sewing 
machines; X will provide 100 hours of training and training manuals to 
Y's employees on the use and maintenance of the industrial sewing 
machines; X will provide purchased spare parts for the industrial sewing 
machines; and X will provide a 3-year service agreement for the 
industrial sewing machines. In the normal course of X's business, none 
of the services or property described above are separately stated, 
separately offered or separately bargained for.
    (ii) Analysis. The receipts for the manufacture of the industrial 
sewing machines are DPGR under paragraphs (e)(1) and (g) of this section 
(assuming all the other requirements of this section are met). X may 
include in DPGR the gross receipts derived from delivering the 
industrial sewing machines, which is a qualified delivery under 
paragraph (i)(4)(i)(B)(2) of this section; the gross receipts derived 
from the one-year warranty, which is a qualified warranty under 
paragraph (i)(4)(i)(B)(1) of this section; and the gross receipts 
derived from the operating manuals, which is a qualified operating 
manual under paragraph (i)(4)(i)(B)(3) of this section. If the gross 
receipts allocable to each industrial sewing machine for the embedded 
services consisting of the employee training and 3-year service 
agreement, and for the non-qualified property consisting of the 
purchased spare parts and the employee training manuals, which are not 
qualified operating manuals, are in total less than 5% of the gross 
receipts derived from the sale of each industrial sewing machine to Y 
(after applying the exceptions under paragraphs (i)(4)(i)(B)(1) through 
(5) of this section), then those gross receipts may be included in DPGR 
under the de minimis exception in paragraph (i)(4)(i)(B)(6) of this 
section. If, however, the gross receipts allocable to each industrial 
sewing machine for the embedded services and non-qualified property 
consisting of employee training, the 3-year service agreement, purchased 
spare parts, and employee training manuals equal or exceed, in total, 5% 
of the gross receipts derived from the sale of each industrial sewing 
machine to Y (after applying the exceptions under paragraphs 
(i)(4)(i)(B)(1) through (5) of this section), then those gross receipts 
do not qualify as DPGR under the de minimis exception in paragraph 
(i)(4)(i)(B)(6) of this section (and X must allocate gross receipts 
between DPGR and non-DPGR under Sec. 1.199-1(d)(1)).

    (5) Advertising income--(i) In general. Except as provided in 
paragraph (i)(5)(ii) of this section, gross receipts derived from the 
lease, rental, license, sale, exchange, or other disposition of QPP, a 
qualified film, or utilities do not include advertising income and 
product-placement income.
    (ii) Exceptions--(A) Tangible personal property. A taxpayer's gross 
receipts that are derived from the lease, rental, license, sale, 
exchange, or other disposition of newspapers, magazines, telephone 
directories, periodicals, and other similar printed publications that 
are MPGE in whole or in significant part within the United States 
include advertising income from advertisements placed in those media, 
but only if the gross receipts, if any, derived from the lease, rental, 
license, sale, exchange, or other disposition of the newspapers, 
magazines, telephone directories, or periodicals are (or would be) DPGR.
    (B) Computer software. A taxpayer's gross receipts that are derived 
from the lease, rental, license, sale, exchange, or other disposition of 
computer software that is MPGE in whole or in significant part within 
the United States include advertising income and product-placement 
income with respect to that computer software, but only if the gross 
receipts, if any, derived from the lease, rental, license, sale, 
exchange, or other disposition of computer software are (or would be) 
DPGR. For this purpose, advertising income and product-placement income 
mean compensation for placing or integrating advertising or a product 
into the computer software. This paragraph (i)(5)(ii)(B) does not extend 
to the exceptions provided in paragraph (i)(6)(iii) of this section. See 
paragraph (i)(6)(iv)(F) of this section.
    (C) Qualified film. A taxpayer's gross receipts that are derived 
from the lease, rental, license, sale, exchange, or other disposition of 
a qualified film include advertising income and product-placement income 
with respect to that qualified film, but only if the gross receipts, if 
any, derived from the lease, rental, license, sale, exchange, or other 
disposition of a qualified film are (or would be) DPGR. For this 
purpose, advertising income and product-placement income mean 
compensation for

[[Page 362]]

placing or integrating advertising or a product into the qualified film.
    (iii) Examples. The following examples illustrate the application of 
this paragraph (i)(5):

    Example 1. X MPGE, and sells, newspapers within the United States. 
X's gross receipts from the newspapers include gross receipts derived 
from the sale of newspapers to customers and payments from advertisers 
to publish display advertising or classified advertisements in X's 
newspapers. X's gross receipts described above are DPGR derived from the 
sale of X's newspapers.
    Example 2. The facts are the same as in Example 1 except that X 
disposes of the newspapers free of charge to customers, rather than 
selling them. X's gross receipts from the display advertising or 
classified advertisements are DPGR.
    Example 3. X produces two live television programs that are 
qualified films. X licenses the first television program to Y's 
television station and X licenses the second television program to Z's 
television station. Z broadcasts the second television program on its 
station. Both television programs contain product placements and 
advertising for which X received compensation. X and Y are unrelated 
persons. X and Z are non-consolidated members of an EAG. The gross 
receipts derived by X from licensing the first television program to Y 
are DPGR. As a result, pursuant to paragraph (i)(5)(ii)(C) of this 
section, all of X's product placement and advertising income for the 
first television program is treated as gross receipts that are derived 
from the license of the qualified film. The gross receipts derived by X 
from licensing the second television program to Z are non-DPGR under 
paragraph (b)(1) of this section. Paragraph (b)(2) of this section does 
not apply because Z's broadcast of the second television program on Z's 
television station is not a lease, rental, license, sale, exchange, or 
other disposition of the second television program. As a result, 
pursuant to paragraph (i)(5)(ii)(C) of this section, none of X's product 
placement and advertising income for the second television program is 
treated as gross receipts derived from the qualified film.
    Example 4. The facts are the same as in Example 3 except that Z 
sublicenses to an unrelated person the television program instead of 
broadcasting the television program on its station. The gross receipts 
derived by X from licensing the television program to Z are DPGR under 
paragraph (b)(2) of this section. As a result, pursuant to paragraph 
(i)(5)(ii)(C) of this section, X's product placement and advertising 
income for the television program licensed to Z is treated as gross 
receipts derived from the qualified film. In addition, Z's receipts from 
the sublicense of the qualified film are DPGR under Sec. 1.199-
7(a)(3)(i).
    Example 5. X produces television programs that are qualified films. 
X licenses the qualified films to Y, an unrelated person, and the 
license agreement provides that X will receive advertising time slots as 
part of its payments from Y under the license agreement. X's gross 
receipts derived from the license of the qualified films to Y include 
income attributable to the advertising time slots and are DPGR under 
paragraph (b)(2) of this section.

    (6) Computer software--(i) In general. DPGR include the gross 
receipts of the taxpayer that are derived from the lease, rental, 
license, sale, exchange, or other disposition of computer software MPGE 
by the taxpayer in whole or in significant part within the United 
States. Such gross receipts qualify as DPGR even if the customer 
provides the computer software to its employees or others over the 
Internet.
    (ii) Gross receipts derived from services. Gross receipts derived 
from customer and technical support, telephone and other 
telecommunication services, online services (such as Internet access 
services, online banking services, providing access to online electronic 
books, newspapers, and journals), and other similar services do not 
constitute gross receipts derived from a lease, rental, license, sale, 
exchange, or other disposition of computer software.
    (iii) Exceptions. Notwithstanding paragraph (i)(6)(ii) of this 
section, if a taxpayer derives gross receipts from providing customers 
access to computer software MPGE in whole or in significant part by the 
taxpayer within the United States for the customers' direct use while 
connected to the Internet or any other public or private communications 
network (online software), then such gross receipts will be treated as 
being derived from the lease, rental, license, sale, exchange, or other 
disposition of computer software only if--
    (A) The taxpayer also derives, on a regular and ongoing basis in the 
taxpayer's business, gross receipts from the lease, rental, license, 
sale, exchange, or other disposition to customers that are not related 
persons (as defined in paragraph (b)(1) of this section) of computer 
software that--
    (1) Has only minor or immaterial differences from the online 
software;

[[Page 363]]

    (2) Has been MPGE by the taxpayer in whole or in significant part 
within the United States; and
    (3) Has been provided to such customers either affixed to a tangible 
medium (for example, a disk or DVD) or by allowing them to download the 
computer software from the Internet; or
    (B) Another person derives, on a regular and ongoing basis in its 
business, gross receipts from the lease, rental, license, sale, 
exchange, or other disposition of substantially identical software (as 
described in paragraph (i)(6)(iv)(A) of this section) (as compared to 
the taxpayer's online software) to its customers pursuant to an activity 
described in paragraph (i)(6)(iii)(A)(3) of this section.
    (iv) Definitions and special rules--(A) Substantially identical 
software. For purposes of paragraph (i)(6)(iii)(B) of this section, 
substantially identical software is computer software that--
    (1) From a customer's perspective, has the same functional result as 
the online software described in paragraph (i)(6)(iii) of this section; 
and
    (2) Has a significant overlap of features or purpose with the online 
software described in paragraph (i)(6)(iii) of this section.
    (B) Safe harbor for computer software games. For purposes of 
paragraph (i)(6)(iv)(A) of this section, all computer software games are 
deemed to be substantially identical software. For example, computer 
software sports games are deemed to be substantially identical to 
computer software card games.
    (C) Regular and ongoing basis. For purposes of paragraph (i)(6)(iii) 
of this section, in the case of a newly-formed trade or business or a 
taxpayer in its first taxable year, the taxpayer is considered to be 
engaged in an activity described in paragraph (i)(6)(iii) of this 
section on a regular and ongoing basis if the taxpayer reasonably 
expects that it will engage in the activity on a regular and ongoing 
basis.
    (D) Attribution. For purposes of paragraph (i)(6)(iii)(A) of this 
section--
    (1) All members of an expanded affiliated group (as defined in Sec. 
1.199-7(a)(1)) are treated as a single taxpayer; and
    (2) In the case of an EAG partnership (as defined in Sec. 1.199-
3T(i)(8)), the EAG partnership and all members of the EAG to which the 
EAG partnership's partners belong are treated as a single taxpayer.
    (E) Qualified computer software maintenance agreements. Paragraph 
(i)(4)(i)(B)(5) of this section does not apply if the computer software 
is online software under paragraph (i)(6)(iii) of this section.
    (F) Advertising income and product-placement income. Paragraph 
(i)(5)(ii)(B) of this section does not apply if the computer software is 
online software under paragraph (i)(6)(iii) of this section. If a 
taxpayer provides a customer with access to online software in 
conjunction with providing computer software to such customer either 
affixed to a tangible medium or by download, paragraph (i)(5)(ii)(B) of 
this section will only apply to compensation for the placement or 
integration of advertising or a product into the computer software 
transferred to such customer either affixed to the tangible medium or by 
download.
    (v) Examples. The following examples illustrate the application of 
this paragraph (i)(6):

    Example 1. L is a bank and produces computer software within the 
United States that enables its customers to receive online banking 
services for a fee. Under paragraph (i)(6)(ii) of this section, gross 
receipts derived from online banking services are attributable to a 
service and do not constitute gross receipts derived from a lease, 
rental, license, sale, exchange, or other disposition of computer 
software. Therefore, L's gross receipts derived from the online banking 
services are non-DPGR.
    Example 2. M is an Internet auction company that produces computer 
software within the United States that enables its customers to 
participate in Internet auctions for a fee. Under paragraph (i)(6)(ii) 
of this section, gross receipts derived from online auction services are 
attributable to a service and do not constitute gross receipts derived 
from a lease, rental, license, sale, exchange, or other disposition of 
computer software. M's activities constitute the provision of online 
services. Therefore, M's gross receipts derived from the Internet 
auction services are non-DPGR.
    Example 3. N provides telephone services, voicemail services, and e-
mail services. N produces computer software within the United States 
that runs all of these services. Under paragraph (i)(6)(ii) of this 
section,

[[Page 364]]

gross receipts derived from telephone and related telecommunication 
services are attributable to a service and do not constitute gross 
receipts derived from a lease, rental, license, sale, exchange, or other 
disposition of computer software. Therefore, N's gross receipts derived 
from the telephone and other telecommunication services are non-DPGR.
    Example 4. O produces tax preparation computer software within the 
United States. O derives, on a regular and ongoing basis in its 
business, gross receipts from both the sale to customers that are 
unrelated persons of O's computer software that has been affixed to a 
compact disc as well as from the sale to customers of O's computer 
software that customers have downloaded from the Internet. O also 
derives gross receipts from providing customers access to the computer 
software for the customers' direct use while connected to the Internet. 
The computer software sold on compact disc or by download has only minor 
or immaterial differences from the online software, and O does not 
provide any other goods or services in connection with the online 
software. Under paragraph (i)(6)(iii)(A) of this section, O's gross 
receipts derived from providing access to the online software will be 
treated as derived from the lease, rental, license, sale, exchange, or 
other disposition of computer software and are DPGR (assuming all the 
other requirements of this section are met).
    Example 5. The facts are the same as in Example 4, except that O 
does not sell the tax preparation computer software to customers affixed 
to a compact disc or by download. In addition, one of O's competitors, 
P, derives, on a regular and ongoing basis in its business, gross 
receipts from the sale to customers of P's substantially identical tax 
preparation computer software that has been affixed to a compact disc as 
well as from the sale to customers of P's substantially identical tax 
preparation computer software that customers have downloaded from the 
Internet. Under paragraph (i)(6)(iii)(B) of this section, O's gross 
receipts derived from providing access to its tax preparation online 
software will be treated as derived from the lease, rental, license, 
sale, exchange, or other disposition of computer software and are DPGR 
(assuming all the other requirements of this section are met).
    Example 6. Q produces payroll management computer software within 
the United States. For a fee, Q provides customers access to the payroll 
management computer software for the customers' direct use while 
connected to the Internet. This is Q's sole method of providing access 
to its payroll management computer software to customers. In conjunction 
with the payroll management computer software, Q provides storage of 
customers' data and telephone support. One of Q's competitors, R, 
derives, on a regular and ongoing basis in its business, gross receipts 
from the sale to customers of R's substantially identical payroll 
management software that has been affixed to a compact disc as well as 
from the sale to customers of R's substantially identical payroll 
management software that customers have downloaded from the Internet. 
Under paragraph (i)(6)(iii)(B) of this section, Q's gross receipts 
derived from providing access to its payroll management online software 
will be treated as derived from the lease, rental, license, sale, 
exchange, or other disposition of computer software and are DPGR 
(assuming all the other requirements of this section are met). However, 
Q's gross receipts derived from the fees that are properly allocable to 
the storage of customers' data and telephone support are non-DPGR.
    Example 7. The facts are the same as in Example 6, except that R 
produces inventory computer software, not payroll management computer 
software. R's inventory computer software is not substantially identical 
software as defined in paragraph (i)(6)(iv)(A) of this section because 
R's inventory software, from a customer's perspective, does not have the 
same functional result as Q's payroll management computer software and 
does not have significant overlap of features or purpose with Q's 
payroll management computer software. No other person provides 
substantially identical software to customers affixed to a compact disc 
or by download. Under paragraph (i)(6)(ii) of this section, gross 
receipts derived from providing access to Q's payroll online software do 
not constitute gross receipts derived from a lease, rental, license, 
sale, exchange or other disposition of payroll computer software. 
Therefore, Q's gross receipts derived from the payroll management 
computer software are non-DPGR.
    Example 8. S produces computer software games within the United 
States. S derives, on a regular and ongoing basis in its business, gross 
receipts from both the sale to customers that are not related to S of 
S's computer software games that have been affixed to a compact disc as 
well as from the sale to customers of S's computer software games that 
customers have downloaded from the Internet. S also derives gross 
receipts from providing customers access to the computer software games 
for the customers' direct use while connected to the Internet (online 
software games). The computer software games sold on compact disc or by 
download have only minor or immaterial differences from the online 
software games, and S does not provide any other goods or services in 
connection with the online software games. Under paragraph 
(i)(6)(iii)(A) of this section, S's gross receipts derived from 
providing customers access to its online software games will be treated 
as derived from the lease, rental, license, sale, exchange, or other 
disposition of computer software and

[[Page 365]]

are DPGR (assuming all the other requirements of this section are met).
    Example 9. The facts are the same as in Example 8, except S's gross 
receipts also include advertising income from integrating advertisers' 
logos into the computer software games. Under paragraph (i)(5)(ii)(B) of 
this section, for S's computer software games sold affixed to a compact 
disc or by download, S's advertising income is treated as gross receipts 
derived from the sale of the computer software games and, therefore, is 
DPGR (assuming all the other requirements of this section are met). 
However, under paragraphs (i)(5)(i) and (i)(6)(iv)(F) of this section, 
for S's online software games, S's advertising income is not derived 
from the lease, rental, license, sale, exchange, or other disposition of 
computer software and, therefore, is non-DPGR.

    (7) Qualifying in-kind partnership for taxable years beginning after 
May 17, 2006, the enactment date of the Tax Increase Prevention and 
Reconciliation Act of 2005--(i) In general. If a partnership is a 
qualifying in-kind partnership described in paragraph (i)(7)(ii) of this 
section, then each partner is treated as having MPGE or produced the 
property MPGE or produced by the partnership that is distributed to that 
partner. If a partner of a qualifying in-kind partnership derives gross 
receipts from the lease, rental, license, sale, exchange, or other 
disposition of the property that was MPGE or produced by the qualifying 
in-kind partnership and distributed to that partner, then, provided such 
partner is a partner of the qualifying in-kind partnership at the time 
the partner disposes of the property, the partner is treated as 
conducting the MPGE or production activities previously conducted by the 
qualifying in-kind partnership with respect to that property. With 
respect to a lease, rental, or license, the partner is treated as having 
disposed of the property on the date or dates on which it takes into 
account its gross receipts derived from the lease, rental, or license 
under its method of accounting. With respect to a sale, exchange, or 
other disposition, the partner is treated as having disposed of the 
property on the date it ceases to own the property for Federal income 
tax purposes, even if no gain or loss is taken into account.
    (ii) Definition of qualifying in-kind partnership. For purposes of 
this paragraph (i)(7), a qualifying in-kind partnership is a partnership 
engaged solely in--
    (A) The extraction, refining, or processing of oil, natural gas (as 
described in paragraph (l)(2) of this section), petrochemicals, or 
products derived from oil, natural gas, or petrochemicals in whole or in 
significant part within the United States;
    (B) The production or generation of electricity in the United 
States; or
    (C) An activity or industry designated by the Secretary by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter).
    (iii) Other rules. Except as provided in this paragraph (i)(7), a 
qualifying in-kind partnership is treated the same as other partnerships 
for purposes of section 199. Accordingly, a qualifying in-kind 
partnership is subject to the rules of this section regarding the 
application of section 199 to pass-thru entities, including application 
of the section 199(d)(1)(A)(iii) rule for determining a partner's share 
of the amounts described in Sec. 1.199-2(e)(1) (paragraph (e)(1) wages) 
from the partnership under Sec. 1.199-5(b)(3). In determining whether a 
qualifying in-kind partnership or its partners MPGE QPP in whole or in 
significant part within the United States, see paragraphs (g)(2) and (3) 
of this section.
    (iv) Example. The following example illustrates the application of 
this paragraph (i)(7). Assume that PRS and X are calendar year 
taxpayers. The example reads as follows:

    Example. X, Y, and Z are partners in PRS, a qualifying in-kind 
partnership described in paragraph (i)(7)(ii) of this section. X, Y, and 
Z are corporations. In 2007, PRS distributes oil to X that PRS derived 
from its oil extraction. PRS incurred $600 of CGS extracting the oil 
distributed to X, and X's adjusted basis in the distributed oil is $600. 
X incurs $200 of CGS in refining the oil within the United States. In 
2007, X, while it is a partner in PRS, sells the oil to a customer for 
$1,500. X is treated as having disposed of the property on the date it 
ceases to own the property for Federal income tax purposes. Under 
paragraph (i)(7)(i) of this section, X is treated as having extracted 
the oil. The extraction and refining of the oil each qualify as an MPGE 
activity under paragraph (e)(1) of this section. Therefore, X's $1,500 
of gross receipts qualify as DPGR. X subtracts from the $1,500 of DPGR 
the $600 of CGS incurred

[[Page 366]]

by PRS and the $200 of refining costs it incurred. Thus, X's QPAI is 
$700 for 2007.

    (8) Partnerships owned by members of a single expanded affiliated 
group for taxable years beginning after May 17, 2006, the enactment date 
of the Tax Increase Prevention and Reconciliation Act of 2005--(i) In 
general. For purposes of this section, if all of the interests in the 
capital and profits of a partnership are owned by members of a single 
EAG at all times during the taxable year of the partnership (EAG 
partnership), then the EAG partnership and all members of that EAG are 
treated as a single taxpayer for purposes of section 199(c)(4) during 
that taxable year.
    (ii) Attribution of activities--(A) In general. If a member of an 
EAG (disposing member) derives gross receipts from the lease, rental, 
license, sale, exchange, or other disposition of property that was MPGE 
or produced by an EAG partnership, all the partners of which are members 
of the same EAG to which the disposing member belongs at the time that 
the disposing member disposes of such property, then the disposing 
member is treated as conducting the MPGE or production activities 
previously conducted by the EAG partnership with respect to that 
property. The previous sentence applies only for those taxable years in 
which the disposing member is a member of the EAG of which all the 
partners of the EAG partnership are members for the entire taxable year 
of the EAG partnership. With respect to a lease, rental, or license, the 
disposing member is treated as having disposed of the property on the 
date or dates on which it takes into account its gross receipts from the 
lease, rental, or license under its method of accounting. With respect 
to a sale, exchange, or other disposition, the disposing member is 
treated as having disposed of the property on the date it ceases to own 
the property for Federal income tax purposes, even if no gain or loss is 
taken into account. Likewise, if an EAG partnership derives gross 
receipts from the lease, rental, license, sale, exchange, or other 
disposition of property that was MPGE or produced by a member (or 
members) of the same EAG (the producing member) to which all the 
partners of the EAG partnership belong at the time that the EAG 
partnership disposes of such property, then the EAG partnership is 
treated as conducting the MPGE or production activities previously 
conducted by the producing member with respect to that property. The 
previous sentence applies only for those taxable years in which the 
producing member is a member of the EAG of which all the partners of the 
EAG partnership are members for the entire taxable year of the EAG 
partnership. With respect to a lease, rental, or license, the EAG 
partnership is treated as having disposed of the property on the date or 
dates on which it takes into account its gross receipts derived from the 
lease, rental, or license under its method of accounting. With respect 
to a sale, exchange, or other disposition, the EAG partnership is 
treated as having disposed of the property on the date it ceases to own 
the property for Federal income tax purposes, even if no gain or loss is 
taken into account. See paragraph (i)(8)(iv) Example 3 of this section.
    (B) Attribution between EAG partnerships. If an EAG partnership 
(disposing partnership) derives gross receipts from the lease, rental, 
license, sale, exchange, or other disposition of property that was MPGE 
or produced by another EAG partnership (producing partnership), then the 
disposing partnership is treated as conducting the MPGE or production 
activities previously conducted by the producing partnership with 
respect to that property, provided that each of these partnerships (the 
producing partnership and the disposing partnership) is owned for its 
entire taxable year in which the disposing partnership disposes of such 
property by members of the same EAG. With respect to a lease, rental, or 
license, the disposing partnership is treated as having disposed of the 
property on the date or dates on which it takes into account its gross 
receipts from the lease, rental, or license under its method of 
accounting. With respect to a sale, exchange, or other disposition, the 
disposing partnership is treated as having disposed of the property on 
the date it ceases to own the property for Federal income tax purposes, 
even if no gain or loss is taken into account.

[[Page 367]]

    (C) Exceptions to attribution. Attribution of activities does not 
apply for purposes of the construction of real property under paragraph 
(m)(1) of this section and the performance of engineering and 
architectural services under paragraphs (n)(2) and (3) of this section, 
respectively.
    (iii) Other rules. Except as provided in this paragraph (i)(8), an 
EAG partnership is treated the same as other partnerships for purposes 
of section 199. Accordingly, an EAG partnership is subject to the rules 
of this section regarding the application of section 199 to pass-thru 
entities, including the section 199(d)(1)(A)(iii) rule under Sec. 
1.199-5(b)(3). In determining whether a member of an EAG or an EAG 
partnership MPGE QPP in whole or in significant part within the United 
States or produced a qualified film or produced utilities within the 
United States, see paragraphs (g)(2) and (3) of this section and Example 
5 of paragraph (i)(8)(iv) of this section.
    (iv) Examples. The following examples illustrate the rules of this 
paragraph (i)(8). Assume that PRS, X, Y, and Z all are calendar year 
taxpayers. The examples read as follows:

    Example 1. Contribution. X and Y are the only partners in PRS, a 
partnership, for PRS's entire 2007 taxable year. X and Y are both 
members of a single EAG for the entire 2007 year. In 2007, X MPGE QPP 
within the United States and contributes the QPP to PRS. In 2007, PRS 
sells the QPP for $1,000. Under this paragraph (i)(8), PRS is treated as 
having MPGE the QPP within the United States, and PRS's $1,000 gross 
receipts constitute DPGR. PRS, X, and Y must apply the rules of this 
section regarding the application of section 199 to pass-thru entities 
with respect to the activity of PRS, including the section 
199(d)(1)(A)(iii) rule for determining a partner's share of the 
paragraph (e)(1) wages from the partnership under Sec. 1.199-5(b)(3).
    Example 2. Sale. X, Y, and Z are the only members of a single EAG 
for the entire 2007 year. X and Y each own 50% of the capital and 
profits interests in PRS, a partnership, for PRS's entire 2007 taxable 
year. In 2007, PRS MPGE QPP within the United States and then sells the 
QPP to X for $6,000, its fair market value at the time of the sale. 
PRS's gross receipts of $6,000 qualify as DPGR. In 2007, X sells the QPP 
to customers for $10,000, incurring selling expenses of $2,000. Under 
paragraph (i)(8)(ii)(A) of this section, X is treated as having MPGE the 
QPP within the United States, and X's $10,000 of gross receipts qualify 
as DPGR. PRS, X and Y must apply the rules of this section regarding the 
application of section 199 to pass-thru entities with respect to the 
activity of PRS, including application of the section 199(d)(1)(A)(iii) 
rule for determining a partner's share of the paragraph (e)(1) wages 
from the partnership under Sec. 1.199-5(b)(3). The results would be the 
same if PRS sold the QPP to Z rather than to X. However, if PRS did sell 
the QPP to Z, and Z was not a member of the EAG for PRS's entire taxable 
year, the activities previously conducted by PRS with respect to the QPP 
would not be attributed to Z, and none of Z's $10,000 of gross receipts 
would qualify as DPGR.
    Example 3. Lease. X, Y, and Z are the only members of a single EAG 
for the entire 2007 year. X and Y each own 50% of the capital and 
profits interests in PRS, a partnership, for PRS's entire 2007 taxable 
year. In 2007, PRS MPGE QPP within the United States and then sells the 
QPP to X for $6,000, its fair market value at the time of the sale. 
PRS's gross receipts of $6,000 qualify as DPGR. In 2007, X rents the QPP 
it acquired from PRS to customers unrelated to X. X takes the gross 
receipts attributable to the rental of the QPP into account under its 
method of accounting in 2007 and 2008. On July 1, 2008, X ceases to be a 
member of the same EAG to which Y, the other partner in PRS, belongs. 
For 2007, X is treated as having MPGE the QPP within the United States 
under paragraph (i)(8)(ii)(A) of this section, and its gross receipts 
derived from the rental of the QPP qualify as DPGR. For 2008, however, 
because X and Y, partners in PRS, are no longer members of the same EAG 
for the entire year, the gross rental receipts X takes into account in 
2008 do not qualify as DPGR.
    Example 4. Distribution. X and Y are the only partners in PRS, a 
partnership, for PRS's entire 2007 taxable year. X and Y are both 
members of a single EAG for the entire 2007 year. In 2007, PRS MPGE QPP 
within the United States, incurring $600 of CGS, and then distributes 
the QPP to X. X's adjusted basis in the QPP is $600. X incurs $200 of 
CGS to further MPGE the QPP within the United States. In 2007, X sells 
the QPP for $1,500 to an unrelated customer. X is treated as having 
disposed of the QPP on the date it ceases to own the QPP for Federal 
income tax purposes. Under paragraph (i)(8)(ii)(A) of this section, X is 
treated as having MPGE the QPP within the United States, and X's $1,500 
of gross receipts qualify as DPGR.
    Example 5. Multiple sales. (i) Facts. X and Y are the only partners 
in PRS, a partnership, for PRS's entire 2007 taxable year. X and Y are 
both non-consolidated members of a single EAG for the entire 2007 year. 
PRS produces in bulk form in the United States the active ingredient for 
a drug. Assume that PRS's own MPGE activity with respect to the active 
ingredient is not substantial in

[[Page 368]]

nature, taking into account all of the facts and circumstances, and 
PRS's direct labor and overhead to MPGE the active ingredient within the 
United States are $15 and account for 15% of PRS's $100 CGS of the 
active ingredient. In 2007, PRS sells the active ingredient in bulk form 
to X. X uses the active ingredient to produce the finished dosage form 
drug. Assume that X's own MPGE activity with respect to the finished 
dosage form drug is not substantial in nature, taking into account all 
of the facts and circumstances, and X's direct labor and overhead to 
MPGE the finished dosage form drug within the United States are $12 and 
account for 10% of X's $120 CGS of the drug. In 2007, X sells the 
finished dosage form drug to Y and Y sells the finished dosage form drug 
to customers. Assume that Y's own MPGE activity with respect to the 
finished dosage form drug is not substantial in nature, taking into 
account all of the facts and circumstances, and Y incurs $2 of direct 
labor and overhead and Y's CGS in selling the finished dosage form drug 
to customers is $130.
    (ii) Analysis. PRS's gross receipts from the sale of the active 
ingredient to X are non-DPGR because PRS's MPGE activity is not 
substantial in nature and PRS does not satisfy the safe harbor described 
in paragraph (g)(3) of this section because PRS's direct labor and 
overhead account for less than 20% of PRS's CGS of the active 
ingredient. X's gross receipts from the sale of the finished dosage form 
drug to Y are DPGR because X is considered to have MPGE the finished 
dosage form drug in significant part in the United States pursuant to 
the safe harbor described in paragraph (g)(3) of this section because 
the $27 ($15 + $12) of direct labor and overhead incurred by PRS and X 
equals or exceeds 20% of X's total CGS ($120) of the finished dosage 
form drug at the time X disposes of the finished dosage form drug to Y. 
Similarly, Y's gross receipts from the sale of the finished dosage form 
drug to customers are DPGR because Y is considered to have MPGE the 
finished dosage form drug in significant part in the United States 
pursuant to the safe harbor described in paragraph (g)(3) of this 
section because the $29 ($15 + $12 + $2) of direct labor and overhead 
incurred by PRS, X, and Y equals or exceeds 20% of Y's total CGS ($130) 
of the finished dosage form drug at the time Y disposes of the finished 
dosage form drug to Y's customers.
    (9) Non-operating mineral interests. DPGR does not include gross 
receipts derived from non-operating mineral interests (for example, 
interests other than operating mineral interests within the meaning of 
Sec. 1.614-2(b)).
    (j) Definition of qualifying production property--(1) In general. 
QPP means--
    (i) Tangible personal property (as defined in paragraph (j)(2) of 
this section);
    (ii) Computer software (as defined in paragraph (j)(3) of this 
section); and
    (iii) Sound recordings (as defined in paragraph (j)(4) of this 
section).
    (2) Tangible personal property--(i) In general. The term tangible 
personal property is any tangible property other than land, real 
property described in paragraph (m)(3) of this section, and any property 
described in paragraph (j)(3), (j)(4), (k)(1), or (l) of this section. 
For purposes of the preceding sentence, tangible personal property also 
includes any gas (other than natural gas described in paragraph (l)(2) 
of this section), chemical, and similar property, for example, steam, 
oxygen, hydrogen, and nitrogen. Property such as machinery, printing 
presses, transportation and office equipment, refrigerators, grocery 
counters, testing equipment, display racks and shelves, and neon and 
other signs that are contained in or attached to a building constitutes 
tangible personal property for purposes of this paragraph (j)(2)(i). 
Except as provided in paragraphs (j)(5)(ii) and (k)(2)(i) of this 
section, computer software, sound recordings, and qualified films are 
not treated as tangible personal property regardless of whether they are 
affixed to a tangible medium. However, the tangible medium to which such 
property may be affixed (for example, a videocassette, a computer 
diskette, or other similar tangible item) is tangible personal property.
    (ii) Local law. In determining whether property is tangible personal 
property, local law is not controlling.
    (iii) Intangible property. The term tangible personal property does 
not include property in a form other than in a tangible medium. For 
example, mass-produced books are tangible personal property, but neither 
the rights to the underlying manuscript nor an online version of the 
book is tangible personal property.
    (3) Computer software--(i) In general. The term computer software 
means any program or routine or any sequence of machine-readable code 
that is designed to cause a computer to perform a desired function or 
set of functions, and

[[Page 369]]

the documentation required to describe and maintain that program or 
routine. Thus, for example, an electronic book available online or for 
download is not computer software. For purposes of this paragraph 
(j)(3), computer software also includes the machine-readable code for 
video games and similar programs, for equipment that is an integral part 
of other property, and for typewriters, calculators, adding and 
accounting machines, copiers, duplicating equipment, and similar 
equipment, regardless of whether the code is designed to operate on a 
computer (as defined in section 168(i)(2)(B)). Computer programs of all 
classes, for example, operating systems, executive systems, monitors, 
compilers and translators, assembly routines, and utility programs, as 
well as application programs, are included. Except as provided in 
paragraph (j)(5) of this section, if the medium in which the software is 
contained, whether written, magnetic, or otherwise, is tangible, then 
such medium is considered tangible personal property for purposes of 
this section.
    (ii) Incidental and ancillary rights. Computer software also 
includes any incidental and ancillary rights that are necessary to 
effect the acquisition of the title to, the ownership of, or the right 
to use the computer software, and that are used only in connection with 
that specific computer software. Such incidental and ancillary rights 
are not included in the definition of trademark or trade name under 
Sec. 1.197-2(b)(10)(i). For example, a trademark or trade name that is 
ancillary to the ownership or use of a specific computer software 
program in the taxpayer's trade or business and is not acquired for the 
purpose of marketing the computer software is included in the definition 
of computer software and is not included in the definition of trademark 
or trade name.
    (iii) Exceptions. Computer software does not include any data or 
information base unless the data or information base is in the public 
domain and is incidental to a computer program. For this purpose, a 
copyrighted or proprietary data or information base is treated as in the 
public domain if its availability through the computer program does not 
contribute significantly to the cost of the program. For example, if a 
word-processing program includes a dictionary feature that may be used 
to spell-check a document or any portion thereof, then the entire 
program (including the dictionary feature) is computer software 
regardless of the form in which the dictionary feature is maintained or 
stored.
    (4) Sound recordings--(i) In general. The term sound recordings 
means any works that result from the fixation of a series of musical, 
spoken, or other sounds under section 168(f)(4). The definition of sound 
recordings is limited to the master copy of the recordings (or other 
copy from which the holder is licensed to make and produce copies), and, 
except as provided in paragraph (j)(5) of this section, if the medium 
(such as compact discs, tapes, or other phonorecordings) in which the 
sounds may be embodied is tangible, then the medium is considered 
tangible personal property for purposes of paragraph (j)(2) of this 
section.
    (ii) Exception. The term sound recordings does not include the 
creation of copyrighted material in a form other than a sound recording, 
such as lyrics or music composition.
    (5) Tangible personal property with computer software or sound 
recordings--(i) Computer software and sound recordings. If a taxpayer 
MPGE in whole or in significant part computer software or sound 
recordings within the United States that is affixed or added to tangible 
personal property (for example, a computer diskette, or an appliance), 
whether or not the taxpayer MPGE such tangible personal property in 
whole or in significant part within the United States, then for purposes 
of this section--
    (A) The computer software and the tangible personal property may be 
treated by the taxpayer as computer software. If the taxpayer treats the 
computer software and the tangible personal property as computer 
software, activities the cost of which are described in Rev. Proc. 2000-
50 (2000-1 C.B. 601), activities giving rise to research and 
experimental expenditures under section 174, and the creation of 
intangible assets for computer software are considered in determining 
whether

[[Page 370]]

the taxpayer's MPGE activity is substantial in nature under paragraph 
(g)(2) of this section. In determining direct labor and overhead under 
paragraph (g)(3)(i) of this section, the costs of direct labor and 
overhead for developing the computer software as described in Rev. Proc. 
2000-50 (2000-1 C.B. 601), research and experimental expenditures under 
section 174, and any other costs of creating intangible assets for the 
computer software are treated as direct labor and overhead. These costs 
must be included in the taxpayer's CGS of the computer software for 
purposes of determining whether the taxpayer meets the safe harbor under 
paragraph (g)(3)(i) of this section. However, any costs under section 
174, and the costs to create intangible assets, attributable to the 
tangible personal property are not considered in determining whether the 
taxpayer's activity is substantial in nature under paragraph (g)(2) of 
this section and are not direct labor and overhead under paragraph 
(g)(3)(i) of this section; and
    (B) The sound recordings and the tangible personal property with the 
sound recordings may be treated by the taxpayer as sound recordings. If 
the taxpayer treats the sound recordings and the tangible personal 
property as sound recordings, activities giving rise to research and 
experimental expenditures under section 174 and the creation of 
intangible assets for sound recordings are considered in determining 
whether the taxpayer's MPGE activity is substantial in nature under 
paragraph (g)(2) of this section. In determining direct labor and 
overhead under paragraph (g)(3)(i) of this section, research and 
experimental expenditures under section 174 and any other costs of 
creating intangible assets for sound recordings are treated as direct 
labor and overhead. These costs must be included in the taxpayer's CGS 
of sound recordings for purposes of determining whether the taxpayer 
meets the safe harbor under paragraph (g)(3)(i) of this section. 
However, any costs under section 174, and the costs to create intangible 
assets, attributable to the tangible personal property are not 
considered in determining whether the taxpayer's activity is substantial 
in nature under paragraph (g)(2) of this section and are not direct 
labor and overhead under paragraph (g)(3)(i) of this section.
    (ii) Tangible personal property. If a taxpayer MPGE tangible 
personal property (for example, a computer diskette or an appliance) in 
whole or in significant part within the United States but not the 
computer software or sound recordings that is affixed or added to such 
tangible personal property, then for purposes of this section the 
tangible personal property with the computer software or sound 
recordings may be treated by the taxpayer as tangible personal property 
under paragraph (j)(2) of this section. Any costs under section 174, and 
the costs to create intangible assets, attributable to the tangible 
personal property are not considered in determining whether the 
taxpayer's activity is substantial in nature under paragraph (g)(2) of 
this section and are not direct labor or overhead under paragraph 
(g)(3)(i) of this section. For purposes of paragraph (g)(3) of this 
section, the taxpayer's CGS (or unadjusted depreciable basis, if 
applicable) for each item of tangible personal property includes the 
taxpayer's cost of leasing, renting, licensing, buying, or otherwise 
acquiring the computer software or sound recordings.
    (k) Definition of qualified film--(1) In general. The term qualified 
film means any motion picture film or video tape under section 
168(f)(3), or live or delayed television programming (film), if not less 
than 50 percent of the total compensation relating to the production of 
such film is compensation for services performed in the United States by 
actors, production personnel, directors, and producers. For purposes of 
this paragraph (k), the term actors includes players, newscasters, or 
any other persons who are compensated for their performance or 
appearance in a film. For purposes of this paragraph (k), the term 
production personnel includes writers, choreographers and composers who 
are compensated for providing services during the production of a film, 
as well as casting agents, camera operators, set designers, lighting 
technicians, make-up artists, and other persons who are compensated for 
providing services that are directly related to the production of

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the film. Except as provided in paragraph (k)(2) of this section, the 
definition of a qualified film does not include tangible personal 
property embodying the qualified film, such as DVDs or videocassettes.
    (2) Tangible personal property with a film--(i) Film not produced by 
a taxpayer. If a taxpayer MPGE tangible personal property (for example, 
a DVD) in whole or in significant part in the United States and a film 
not produced by a taxpayer is affixed to the tangible personal property, 
then the taxpayer may treat the tangible personal property with the 
affixed film as tangible personal property, regardless of whether the 
film is a qualified film. The determination of whether the gross 
receipts of such a taxpayer derived from the lease, rental, license, 
sale, exchange, or other disposition of the tangible personal property 
with the affixed film are DPGR is made under the rules of this section. 
For purposes of paragraph (g)(2) of this section, in determining whether 
the taxpayer's MPGE activity is substantial in nature, the taxpayer must 
consider the value of the licensed film. For purposes of paragraph 
(g)(3) of this section, the taxpayer's CGS (or unadjusted depreciable 
basis, as applicable) for each item of tangible personal property 
includes the taxpayer's cost of leasing, renting, licensing, buying, or 
otherwise acquiring the film.
    (ii) Film produced by a taxpayer. If a taxpayer produces a film and 
the film is affixed to tangible personal property (for example, a DVD), 
then for purposes of this section--
    (A) Qualified film. If the film is a qualified film, the taxpayer 
may treat the tangible personal property, whether or not the taxpayer 
MPGE such tangible personal property, to which the qualified film is 
affixed as part of the qualified film; and
    (B) Nonqualified film. If the film is not a qualified film 
(nonqualified film), a taxpayer cannot treat the tangible personal 
property to which the nonqualified film is affixed as part of the 
nonqualified film.
    (3) Derived from a qualified film--(i) In general. DPGR include the 
gross receipts of a taxpayer that are derived from any lease, rental, 
license, sale, exchange, or other disposition of any qualified film 
produced by such taxpayer.
    (ii) Exceptions. The showing of a qualified film (for example, in a 
movie theater or by broadcast on a television station) by a taxpayer is 
not a lease, rental, license, sale, exchange, or other disposition of 
the qualified film by such taxpayer. Ticket sales for viewing a 
qualified film do not constitute DPGR because the gross receipts are not 
derived from the lease, rental, license, sale, exchange, or other 
disposition of a qualified film. Because a taxpayer that merely writes a 
screenplay or other similar material is not considered to have produced 
a qualified film under paragraph (k)(1) of this section, the amounts 
that the taxpayer receives from the sale of the script or screenplay, 
even if the script is developed into a qualified film, are not gross 
receipts derived from a qualified film. In addition, revenue from the 
sale of film-themed merchandise is revenue from the sale of tangible 
personal property and not gross receipts derived from a qualified film. 
Gross receipts derived from a license of the right to use or exploit the 
film characters are not gross receipts derived from a qualified film.
    (4) Compensation for services. For purposes of this paragraph (k), 
the term compensation for services means all payments for services 
performed by actors, production personnel, directors, and producers 
relating to the production of the film, including participations and 
residuals. Payments for services include all elements of compensation as 
provided for in Sec. 1.263A-1(e)(2)(i)(B) and (3)(ii)(D). Compensation 
for services is not limited to W-2 wages and includes compensation paid 
to independent contractors. In the case of a taxpayer that uses the 
income forecast method of section 167(g) and capitalizes participations 
and residuals into the adjusted basis of the qualified film, the 
taxpayer must use the same estimate of participations and residuals in 
determining compensation for services. In the case of a taxpayer that 
excludes participations and residuals from the adjusted basis of the 
qualified film under section 167(g)(7)(D)(i), the taxpayer must use the 
amount expected to be paid as participations and residuals based on

[[Page 372]]

the total forecasted income used in determining income forecast 
depreciation in determining compensation for services.
    (5) Determination of 50 percent. The not-less-than-50-percent-of-
the-total-compensation requirement under paragraph (k)(1) of this 
section is calculated using a fraction. The numerator of the fraction is 
the compensation for services performed in the United States and the 
denominator is the total compensation for services regardless of where 
the production activities are performed. A taxpayer may use any 
reasonable method that is satisfactory to the Secretary based on all of 
the facts and circumstances, including all historic information 
available, to determine the compensation for services performed in the 
United States and the total compensation for services regardless of 
where the production activities are performed. Among the factors to be 
considered in determining whether a taxpayer's method of allocating 
compensation is reasonable is whether the taxpayer uses that method 
consistently from one taxable year to another.
    (6) Produced by the taxpayer. A qualified film will be treated as 
produced by the taxpayer for purposes of Sec. 199(c)(4)(A)(i)(II) if 
the production activity performed by the taxpayer is substantial in 
nature within the meaning of paragraph (g)(2) of this section. The 
special rules of paragraph (g)(4) of this section regarding a contract 
with an unrelated person and aggregation apply in determining whether 
the taxpayer's production activity is substantial in nature. Paragraphs 
(g)(2) and (4) of this section are applied by substituting the term 
qualified film for QPP and disregarding the requirement that the 
production activity must be within the United States. The production 
activity of the taxpayer must consist of more than the minor or 
immaterial combination or assembly of two or more components of a film. 
For purposes of paragraph (g)(2) of this section, the relative value 
added by affixing trademarks or trade names as defined in Sec. 1.197-
2(b)(10)(i) will be treated as zero.
    (7) Qualified film produced by the taxpayer--safe harbor. A film 
will be treated as a qualified film under paragraph (k)(1) of this 
section and produced by the taxpayer under paragraph (k)(6) of this 
section (qualified film produced by the taxpayer) if the taxpayer meets 
the requirements of paragraphs (k)(7)(i) and (ii) of this section. A 
taxpayer that chooses to use this safe harbor must apply all the 
provisions of this paragraph (k)(7).
    (i) Safe harbor. A film will be treated as a qualified film produced 
by the taxpayer if not less than 50 percent of the total compensation 
for services paid by the taxpayer is compensation for services performed 
in the United States and the taxpayer satisfies the safe harbor in 
paragraph (g)(3) of this section. The special rules of paragraph (g)(4) 
of this section regarding a contract with an unrelated person and 
aggregation apply in determining whether the taxpayer satisfies 
paragraph (g)(3) of this section. Paragraphs (g)(3) and (4) of this 
section are applied by substituting the term qualified film for QPP but 
not disregarding the requirement that the direct labor and overhead of 
the taxpayer to produce the qualified film must be within the United 
States. Paragraph (g)(3)(ii)(A) of this section includes any election 
under section 181.
    (ii) Determination of 50 percent. The not-less-than-50-percent-of-
the-total-compensation requirement under paragraph (k)(7)(i) of this 
section is calculated using a fraction. The numerator of the fraction is 
the compensation for services paid by the taxpayer for services 
performed in the United States and the denominator is the total 
compensation for services paid by the taxpayer regardless of where the 
production activities are performed. For purposes of this paragraph 
(k)(7)(ii), the term paid by the taxpayer includes amounts that are 
treated as paid by the taxpayer under paragraph (g)(4) of this section. 
A taxpayer may use any reasonable method that is satisfactory to the 
Secretary based on all of the facts and circumstances, including all 
historic information available, to determine the compensation for 
services paid by the taxpayer for services performed in the United 
States and the total compensation for services paid by the taxpayer 
regardless of where the production activities are

[[Page 373]]

performed. Among the factors to be considered in determining whether a 
taxpayer's method of allocating compensation is reasonable is whether 
the taxpayer uses that method consistently from one taxable year to 
another.
    (8) Production pursuant to a contract. With the exception of the 
rules applicable to an expanded affiliated group (EAG) under Sec. 
1.199-7 and EAG partnerships under Sec. 1.199-3(i)(8), only one 
taxpayer may claim the deduction under Sec. 1.199-1(a) with respect to 
any activity related to the production of a qualified film performed in 
connection with the same qualified film. If one taxpayer performs a 
production activity pursuant to a contract with another party, then only 
the taxpayer that has the benefits and burdens of ownership of the 
qualified film under Federal income tax principles during the period in 
which the production activity occurs is treated as engaging in the 
production activity.
    (9) Exception. A qualified film does not include property with 
respect to which records are required to be maintained under 18 U.S.C. 
2257. Section 2257 of title 18 requires maintenance of certain records 
with respect to any book, magazine, periodical, film, videotape, or 
other matter that--
    (i) Contains one or more visual depictions made after November 1, 
1990, of actual sexually explicit conduct; and
    (ii) Is produced in whole or in part with materials that have been 
mailed or shipped in interstate or foreign commerce, or is shipped or 
transported or is intended for shipment or transportation in interstate 
or foreign commerce.
    (10) Examples. The following examples illustrate the application of 
this paragraph (k):

    Example 1. X produces a qualified film and duplicates the film onto 
purchased DVDs. X sells the DVDs with the qualified film to customers. 
Under paragraph (k)(2)(ii)(A) of this section, X treats the DVD with the 
qualified film as a qualified film. Accordingly, X's gross receipts 
derived from the sale of the qualified film to customers are DPGR 
(assuming all the other requirements of this section are met).
    Example 2. The facts are the same as in Example 1 except that the 
film is a nonqualified film because the film does not satisfy the not-
less-than-50-percent-of-the-total-compensation requirement under (k)(1) 
of this section and X manufactures the DVDs in the United States. Under 
paragraph (k)(2)(ii)(B) of this section, X cannot treat the DVD as part 
of the nonqualified film. X's gross receipts (not including the gross 
receipts attributable to the nonqualified film) derived from the sale of 
the tangible personal property are DPGR (assuming all the other 
requirements of this section are met).
    Example 3. X produces live television programs that are qualified 
films. X shows the programs on its own television station. X sells 
advertising time slots to advertisers for the television programs. 
Because showing a qualified film on a television station is not a lease, 
rental, license, sale, exchange, or other disposition pursuant to 
paragraph (k)(3)(ii) of this section, the advertising income X receives 
from advertisers is not derived from the lease, rental, license, sale, 
exchange, or other disposition of the qualified films and is non-DPGR.
    Example 4. The facts are the same as in Example 3 except that X also 
licenses the qualified films to Y, an unrelated cable company that 
broadcasts X's qualified films. As part of the license agreement, X can 
sell advertising time slots. Because X's gross receipts from Y are 
derived from the licensing of qualified films pursuant to paragraph 
(k)(3)(i) of this section, X's gross receipts derived from licensing the 
qualified film are DPGR. In addition, the gross receipts derived from 
the advertising income X receives that is related to the qualified films 
licensed to Y is DPGR pursuant to paragraph (i)(5)(ii) of this section. 
Because showing a qualified film on a television station is not a lease, 
rental, license, sale, exchange, or other disposition pursuant to 
paragraph (k)(3)(ii) of this section, the portion of the advertising 
income X derives from advertisers for the qualified films it broadcasts 
on its own television station is not derived from the lease, rental, 
license, sale, exchange, or other disposition of the qualified films and 
is non-DPGR.
    Example 5. X produces a qualified film and contracts with Y, an 
unrelated person, to duplicate the film onto DVDs. Y manufactures blank 
DVDs within the United States, duplicates X's film onto the DVDs in the 
United States, and sells the DVDs with the qualified film to X who then 
sells them to customers. Y has all of the benefits and burdens of 
ownership under Federal income tax principles of the DVDs during the 
MPGE and duplication process. Assume Y's activities relating to 
manufacture of the blank DVDs and duplicating the film onto the DVDs 
collectively satisfy the safe harbor under paragraph (g)(3) of this 
section. Y's gross receipts from manufacturing the DVDs and duplicating 
the film onto the DVDs are DPGR (assuming all the other requirements of 
this section are met). X's gross receipts from the sale of the DVDs

[[Page 374]]

to customers are DPGR (assuming all the other requirements of this 
section are met).
    Example 6. X creates a television program in the United States that 
includes scenes from films licensed by X from unrelated persons Y and Z. 
Assume that Y and Z produced the films licensed by X. The not-less-than-
50-percent-of-the-total-compensation requirement under paragraph (k)(1) 
of this section is determined by reference to all compensation for 
services paid in the production of the television program, including the 
films licensed by X from Y and Z, and is calculated using a fraction as 
described in paragraph (k)(5) of this section. The numerator of the 
fraction is the compensation for services performed in the United States 
and the denominator is the total compensation for services regardless of 
where the production activities are performed. However, for purposes of 
calculating the denominator, in determining the total compensation paid 
by Y and Z, X need only include the total compensation paid by Y and Z 
to actors, production personnel, directors, and producers for the 
production of the scenes used by X in creating its television program.

    (l) Electricity, natural gas, or potable water--(1) In general. DPGR 
include gross receipts derived from any lease, rental, license, sale, 
exchange, or other disposition of utilities produced by the taxpayer in 
the United States if all other requirements of this section are met. In 
the case of an integrated producer that both produces and delivers 
utilities, see paragraph (l)(4) of this section that describes certain 
gross receipts that do not qualify as DPGR.
    (2) Natural gas. The term natural gas includes only natural gas 
extracted from a natural deposit and does not include, for example, 
methane gas extracted from a landfill. In the case of natural gas, 
production activities include all activities involved in extracting 
natural gas from the ground and processing the gas into pipeline quality 
gas.
    (3) Potable water. The term potable water means unbottled drinking 
water. In the case of potable water, production activities include the 
acquisition, collection, and storage of raw water (untreated water), 
transportation of raw water to a water treatment facility, and treatment 
of raw water at such a facility. Gross receipts attributable to any of 
these activities are included in DPGR if all other requirements of this 
section are met.
    (4) Exceptions--(i) Electricity. Gross receipts attributable to the 
transmission of electricity from the generating facility to a point of 
local distribution and gross receipts attributable to the distribution 
of electricity to customers are non-DPGR.
    (ii) Natural gas. Gross receipts attributable to the transmission of 
pipeline quality gas from a natural gas field (or, if treatment at a 
natural gas processing plant is necessary to produce pipeline quality 
gas, from a natural gas processing plant) to a local distribution 
company's citygate (or to another customer) are non-DPGR. Likewise, 
gross receipts of a local gas distribution company attributable to 
distribution from the citygate to the local customers are non-DPGR.
    (iii) Potable water. Gross receipts attributable to the storage of 
potable water after completion of treatment of the potable water, as 
well as gross receipts attributable to the transmission and distribution 
of potable water, are non-DPGR.
    (iv) De minimis exception--(A) DPGR. Notwithstanding paragraphs 
(l)(4)(i), (ii), and (iii) of this section, if less than 5 percent of a 
taxpayer's gross receipts derived from a sale, exchange, or other 
disposition of utilities are attributable to the transmission or 
distribution of the utilities and the storage of potable water after 
completion of treatment of the potable water, then the gross receipts 
derived from the lease, rental, license, sale, exchange, or other 
disposition of the utilities that are attributable to the transmission 
and distribution of the utilities and the storage of potable water after 
completion of treatment of the potable water may be treated as being 
DPGR (assuming all other requirements of this section are met). In the 
case of gross receipts derived from the lease, rental, license, sale, 
exchange, or other disposition of utilities that are received over a 
period of time (for example, a multi-year lease or installment sale), 
this de minimis exception is applied by taking into account the total 
gross receipts for the entire period derived (and to be derived) from 
the lease, rental, license, sale, exchange, or other disposition of the 
utilities. For purposes of the preceding sentence, if a taxpayer treats

[[Page 375]]

gross receipts as DPGR under this de minimis exception, then the 
taxpayer must treat the gross receipts recognized in each taxable year 
consistently as DPGR.
    (B) Non-DPGR. If less than 5 percent of a taxpayer's gross receipts 
derived from a sale, exchange, or other disposition of utilities are 
DPGR, then the gross receipts derived from the sale, exchange, or other 
disposition of the utilities may be treated as non-DPGR. In the case of 
gross receipts derived from the lease, rental, license, sale, exchange, 
or other disposition of utilities that are received over a period of 
time (for example, a multi-year lease or installment sale), this de 
minimis exception is applied by taking into account the total gross 
receipts for the entire period derived (and to be derived) from the 
lease, rental, license, sale, exchange, or other disposition of the 
utilities. For purposes of the preceding sentence, if a taxpayer treats 
gross receipts as non-DPGR under this de minimis exception, then the 
taxpayer must treat the gross receipts recognized in each taxable year 
consistently as non-DPGR.
    (5) Example. The following example illustrates the application of 
this paragraph (l):

    Example. X owns a wind turbine in the United States that generates 
electricity and Y owns a high voltage transmission line that passes near 
X's wind turbine and ends near the system of local distribution lines of 
Z. X sells the electricity produced at the wind turbine to Z and 
contracts with Y to transmit the electricity produced at the wind 
turbine to Z who sells the electricity to customers using Z's 
distribution network. The gross receipts received by X from the sale of 
electricity produced at the wind turbine are DPGR. The gross receipts of 
Y derived from transporting X's electricity to Z are non-DPGR under 
paragraph (l)(4)(i) of this section. Likewise, the gross receipts of Z 
derived from distributing the electricity are non-DPGR under paragraph 
(l)(4)(i) of this section. If X made direct sales of electricity to 
customers in Z's service area and Z receives remuneration for the 
distribution of electricity, the gross receipts of Z are non-DPGR under 
paragraph (l)(4)(i) of this section. If X, Y, and Z are related persons 
(as defined in paragraph (b) of this section), then X, Y, and Z must 
allocate gross receipts among the production activities (that are DPGR), 
and the transmission and distribution activities (that are non-DPGR).

    (m) Definition of construction performed in the United States--(1) 
Construction of real property--(i) In general. The term construction 
means activities and services relating to the construction or erection 
of real property (as defined in paragraph (m)(3) of this section) in the 
United States by a taxpayer that, at the time the taxpayer constructs 
the real property, is engaged in a trade or business (but not 
necessarily its primary, or only, trade or business) that is considered 
construction for purposes of the North American Industry Classification 
System (NAICS) on a regular and ongoing basis. A trade or business that 
is considered construction under the NAICS means a construction activity 
under the two-digit NAICS code of 23 and any other construction activity 
in any other NAICS code provided the construction activity relates to 
the construction of real property such as NAICS code 213111 (drilling 
oil and gas wells) and 213112 (support activities for oil and gas 
operations). For purposes of this paragraph (m), the term construction 
project means the construction activities and services treated as the 
item under paragraph (d)(2)(iii) of this section. Tangible personal 
property (for example, appliances, furniture, and fixtures) that is sold 
as part of a construction project is not considered real property for 
purposes of this paragraph (m)(1)(i). In determining whether property is 
real property, the fact that property is real property under local law 
is not controlling. Conversely, property may be real property for 
purposes of this paragraph (m)(1)(i) even though under local law the 
property is considered tangible personal property.
    (ii) Regular and ongoing basis--(A) In general. For purposes of 
paragraph (m)(1)(i) of this section, a taxpayer engaged in a 
construction trade or business will be considered to be engaged in such 
trade or business on a regular and ongoing basis if the taxpayer derives 
gross receipts from an unrelated person by selling or exchanging the 
constructed real property described in paragraph (m)(3) of this section 
within 60 months of the date on which construction is complete (for 
example, on the date a certificate of occupancy is issued for the 
property).

[[Page 376]]

    (B) New trade or business. In the case of a newly-formed trade or 
business or a taxpayer in its first taxable year, the taxpayer is 
considered to be engaged in a trade or business on a regular and ongoing 
basis if the taxpayer reasonably expects that it will engage in a trade 
or business on a regular and ongoing basis.
    (iii) De minimis exception--(A) DPGR. For purposes of paragraph 
(m)(1)(i) of this section, if less than 5 percent of the total gross 
receipts derived by a taxpayer from a construction project (as described 
in paragraph (m)(1)(i) of this section) are derived from activities 
other than the construction of real property in the United States (for 
example, from non-construction activities or the sale of tangible 
personal property or land), then the total gross receipts derived by the 
taxpayer from the project may be treated as DPGR from construction. If a 
taxpayer applies the land safe harbor under paragraph (m)(6)(iv) of this 
section, for a construction project (as described in paragraph (m)(1)(i) 
of this section), then the gross receipts excluded under the land safe 
harbor are excluded in determining total gross receipts under this 
paragraph (m)(1)(iii)(A). If a taxpayer does not apply the land safe 
harbor and uses any reasonable method (for example, an appraisal of the 
land) to allocate gross receipts attributable to the land to non-DPGR, 
then a taxpayer applies this paragraph (m)(1)(iii)(A) by excluding such 
gross receipts derived from the sale, exchange, or other disposition of 
the land from total gross receipts. In the case of gross receipts 
derived from construction that are received over a period of time (for 
example, an installment sale), this de minimis exception is applied by 
taking into account the total gross receipts for the entire period 
derived (and to be derived) from construction. For purposes of the 
preceding sentence, if a taxpayer treats gross receipts as DPGR under 
this de minimis exception, then the taxpayer must treat the gross 
receipts recognized in each taxable year consistently as DPGR.
    (B) Non-DPGR. For purposes of paragraph (m)(1)(i) of this section, 
if less than 5 percent of the total gross receipts derived by a taxpayer 
from a construction project qualify as DPGR, then the total gross 
receipts derived by the taxpayer from the construction project may be 
treated as non-DPGR. In the case of gross receipts derived from 
construction that are received over a period of time (for example, an 
installment sale), this de minimis exception is applied by taking into 
account the total gross receipts for the entire period derived (and to 
be derived) from construction. For purposes of the preceding sentence, 
if a taxpayer treats gross receipts as non-DPGR under this de minimis 
exception, then the taxpayer must treat the gross receipts recognized in 
each taxable year consistently as non-DPGR.
    (2) Activities constituting construction--(i) In general.
    Activities constituting construction are activities performed in 
connection with a project to erect or substantially renovate real 
property, including activities performed by a general contractor or that 
constitute activities typically performed by a general contractor, for 
example, activities relating to management and oversight of the 
construction process such as approvals, periodic inspection of the 
progress of the construction project, and required job modifications.
    (ii) Tangential services. Activities constituting construction do 
not include tangential services such as hauling trash and debris, and 
delivering materials, even if the tangential services are essential for 
construction. However, if the taxpayer performing construction also, in 
connection with the construction project, provides tangential services 
such as delivering materials to the construction site and removing its 
construction debris, then the gross receipts derived from the tangential 
services are DPGR.
    (iii) Other construction activities. Improvements to land that are 
not capitalizable to the land (for example, landscaping) and painting 
are activities constituting construction only if these activities are 
performed in connection with other activities (whether or not by the 
same taxpayer) that constitute the erection or substantial renovation of 
real property and provided the taxpayer meets the requirements

[[Page 377]]

under paragraph (m)(1) of this section. Services such as grading, 
demolition (including demolition of structures under section 280B), 
clearing, excavating, and any other activities that physically transform 
the land are activities constituting construction only if these services 
are performed in connection with other activities (whether or not by the 
same taxpayer) that constitute the erection or substantial renovation of 
real property and provided the taxpayer meets the requirements under 
paragraph (m)(1) of this section. A taxpayer engaged in these activities 
must make a reasonable inquiry or a reasonable determination as to 
whether the activity relates to the erection or substantial renovation 
of real property in the United States. Construction activities also 
include activities relating to drilling an oil or gas well and mining 
and include any activities the cost of which are intangible drilling and 
development costs within the meaning of Sec. 1.612-4 or development 
expenditures for a mine or natural deposit under section 616.
    (iv) Administrative support services. If the taxpayer performing 
construction activities also provides, in connection with the 
construction project, administrative support services (for example, 
billing and secretarial services) incidental and necessary to such 
construction project, then these administrative support services are 
considered construction activities.
    (v) Exceptions. The lease, license, or rental of equipment, for 
example, bulldozers, generators, or computers, for use in the 
construction of real property is not a construction activity under this 
paragraph (m)(2). The term construction does not include any activity 
that is within the definition of engineering and architectural services 
under paragraph (n) of this section.
    (3) Definition of real property. The term real property means 
buildings (including items that are structural components of such 
buildings), inherently permanent structures (as defined in Sec. 1.263A-
8(c)(3)) other than machinery (as defined in Sec. 1.263A-8(c)(4)) 
(including items that are structural components of such inherently 
permanent structures), inherently permanent land improvements, oil and 
gas wells, and infrastructure (as defined in paragraph (m)(4) of this 
section). For purposes of the preceding sentence, an entire utility 
plant including both the shell and the interior will be treated as an 
inherently permanent structure. Property produced by a taxpayer that is 
not real property in the hands of that taxpayer, but that may be 
incorporated into real property by another taxpayer, is not treated as 
real property by the producing taxpayer (for example, bricks, nails, 
paint, and windowpanes). For purposes of this paragraph (m)(3), 
structural components of buildings and inherently permanent structures 
include property such as walls, partitions, doors, wiring, plumbing, 
central air conditioning and heating systems, pipes and ducts, elevators 
and escalators, and other similar property.
    (4) Definition of infrastructure. The term infrastructure includes 
roads, power lines, water systems, railroad spurs, communications 
facilities, sewers, sidewalks, cable, and wiring. The term also includes 
inherently permanent oil and gas platforms.
    (5) Definition of substantial renovation. The term substantial 
renovation means the renovation of a major component or substantial 
structural part of real property that materially increases the value of 
the property, substantially prolongs the useful life of the property, or 
adapts the property to a new or different use.
    (6) Derived from construction--(i) In general. Assuming all the 
requirements of this section are met, DPGR derived from the construction 
of real property performed in the United States includes the proceeds 
from the sale, exchange, or other disposition of real property 
constructed by the taxpayer in the United States (whether or not the 
property is sold immediately after construction is completed and whether 
or not the construction project is completed). DPGR derived from the 
construction of real property includes compensation for the performance 
of construction services by the taxpayer in the United States. DPGR 
derived from the construction of real property includes gross receipts 
derived from materials and supplies consumed in the construction project 
or that become part of the constructed real property,

[[Page 378]]

assuming all the requirements of this section are met.
    (ii) Qualified construction warranty. DPGR derived from the 
construction of real property includes gross receipts from any qualified 
construction warranty, that is, a warranty that is provided in 
connection with the constructed real property if, in the normal course 
of the taxpayer's business--
    (A) The price for the construction warranty is not separately stated 
from the amount charged for the constructed real property; and
    (B) The construction warranty is neither separately offered by the 
taxpayer nor separately bargained for with customers (that is, the 
customer cannot purchase the constructed real property without the 
construction warranty).
    (iii) Exceptions. DPGR derived from the construction of real 
property performed in the United States does not include gross receipts 
derived from the sale, exchange, or other disposition of real property 
acquired by the taxpayer even if the taxpayer originally constructed the 
property. In addition, DPGR derived from the construction of real 
property does not include gross receipts from the lease or rental of 
real property constructed by the taxpayer or, except as provided in 
paragraph (m)(2)(iii) of this section, gross receipts derived from the 
sale or other disposition of land (including zoning, planning, 
entitlement costs, and other costs capitalized to the land).
    (iv) Land safe harbor--(A) In general. For purposes of paragraph 
(m)(6)(i) of this section, a taxpayer may allocate gross receipts 
between the gross receipts derived from the sale, exchange, or other 
disposition of real property constructed by the taxpayer and the gross 
receipts derived from the sale, exchange, or other disposition of land 
by reducing its costs related to DPGR under Sec. 1.199-4 by the costs 
of the land and any other costs capitalized to the land (collectively, 
land costs) (including zoning, planning, entitlement costs, and other 
costs capitalized to the land (except costs for activities listed in 
paragraph (m)(2)(iii) of this section) and land costs in any common 
improvements as defined in section 2.01 of Rev. Proc. 92-29 (1992-1 C.B. 
748) (see Sec. 601.601(d)(2) of this chapter)) and by reducing its DPGR 
by those land costs plus a percentage. Generally, the percentage is 
based on the number of months that elapse between the date the taxpayer 
acquires the land (not including any options to acquire the land) and 
ends on the date the taxpayer sells each item of real property on the 
land. However, a taxpayer will be deemed, for purposes of this paragraph 
(m)(6)(iv)(A), to acquire the land on the date the taxpayer entered into 
an option agreement to acquire the land if the taxpayer acquired the 
land pursuant to such option agreement and the purchase price of the 
land under the option agreement does not approximate the fair market 
value of the land. In the case of a sale or disposition of land between 
related persons (as defined in paragraph (b)(1) of this section) for 
less than fair market value, for purposes of determining the percentage, 
the purchaser or transferee of the land must include the months during 
which the land was held by the seller or transferor. The percentage is 5 
percent for land held not more than 60 months, 10 percent for land held 
more than 60 months but not more than 120 months, and 15 percent for 
land held more than 120 months but not more than 180 months. Land held 
by a taxpayer for more than 180 months is not eligible for the safe 
harbor under this paragraph (m)(6)(iv)(A).
    (B) Determining gross receipts and costs. In the case of a taxpayer 
that uses the small business simplified overall method of cost 
allocation under Sec. 1.199-4(f), gross receipts derived from the sale, 
exchange, or other disposition of land, and costs attributable to the 
land, pursuant to the land safe harbor under paragraph (m)(6)(iv)(A) of 
this section, are not taken into account for purposes of computing QPAI 
under Sec. Sec. 1.199-1 through 1.199-9 except that the gross receipts 
are taken into account for determining eligibility for that method of 
cost allocation. All other taxpayers must treat the gross receipts 
derived from the sale, exchange, or other disposition of land, pursuant 
to the land safe harbor under paragraph (m)(6)(iv)(A) of this section, 
as non-DPGR. In the case of a pass-thru entity, if the pass-thru entity

[[Page 379]]

would be eligible to use the small business simplified overall method of 
cost allocation if the method were applied at the pass-thru entity 
level, then the gross receipts derived from the sale, exchange, or other 
disposition of land, and costs allocated to the land, pursuant to the 
land safe harbor under paragraph (m)(6)(iv)(A) of this section, are not 
taken into account by the pass-thru entity or its owner or owners for 
purposes of computing QPAI under Sec. Sec. 1.199-1 through 1.199-9. For 
purposes of the preceding sentence, in determining whether the pass-thru 
entity would be eligible for the small business simplified overall 
method of cost allocation, the gross receipts excluded pursuant to the 
land safe harbor under paragraph (m)(6)(iv)(A) of this section are taken 
into account for determining eligibility for that method of cost 
allocation. All other pass-thru entities (including all trusts and 
estates described in Sec. Sec. 1.199-5(e) and 1.199-9(e)) must treat 
the gross receipts attributable to the sale, exchange, or other 
disposition of land, pursuant to the land safe harbor under paragraph 
(m)(6)(iv)(A) of this section, as non-DPGR.
    (v) Examples. The following examples illustrate the application of 
this paragraph (m)(6):

    Example 1. A, who is in the trade or business of construction under 
NAICS code 23 on a regular and ongoing basis, purchases a building in 
the United States and retains B, an unrelated person, to oversee a 
substantial renovation of the building (within the meaning of paragraph 
(m)(5) of this section). Although not licensed as a general contractor, 
B performs general contractor level work and activities relating to 
management and oversight of the construction process such as approvals, 
periodic inspection of the progress of the construction project, and 
required job modifications. B retains C (a general contractor) to 
oversee day-to-day operations and hire subcontractors. C hires D (a 
subcontractor) to install a new electrical system in the building as 
part of that substantial renovation. The amounts that B receives from A 
for construction services, the amounts that C receives from B for 
construction services, and the amounts that D receives from C for 
construction services qualify as DPGR under paragraph (m)(6)(i) of this 
section provided B, C, and D meet all of the requirements of paragraph 
(m)(1) of this section. The gross receipts that A receives from the 
subsequent sale of the building do not qualify as DPGR because A did not 
engage in any activity constituting construction under paragraph (m)(2) 
of this section even though A is in the trade or business of 
construction. The results would be the same if A, B, C, and D were 
members of the same EAG under Sec. 1.199-7(a). However, if A, B, C, and 
D were members of the same consolidated group, see Sec. 1.199-7(d)(2).
    Example 2. X is engaged as an electrical contractor under NAICS code 
238210 on a regular and ongoing basis. X purchases the wires, conduits, 
and other electrical materials that it installs in construction projects 
in the United States. In a particular construction project, all of the 
wires, conduits, and other electrical materials installed by X for the 
operation of that building are considered structural components of the 
building. X's gross receipts derived from installing that property are 
derived from the construction of real property under paragraph (m)(1) of 
this section. In addition, pursuant to paragraph (m)(6)(i) of this 
section, X's gross receipts derived from the purchased materials qualify 
as DPGR because the wires, conduits, and other electrical materials are 
consumed during the construction of the building or become structural 
components of the building.
    Example 3. X is engaged in a trade or business on a regular and 
ongoing basis that is considered construction under the two-digit NAICS 
code of 23. X buys unimproved land in the United States. X gets the land 
zoned for residential housing through an entitlement process. X grades 
the land and sells the land to home builders who construct houses on the 
land. The gross receipts that X derives from the sale of the land that 
are attributable to the grading qualify as DPGR under paragraphs 
(m)(2)(iii) and (6)(i) of this section because those services are 
undertaken in connection with a construction project in the United 
States. X's gross receipts derived from the land including capitalized 
costs of entitlements (including zoning) do not qualify as DPGR under 
paragraph (m)(6)(i) of this section because the gross receipts are not 
derived from the construction of real property.
    Example 4. The facts are the same as in Example 3 except that X 
constructs roads, sewers, and sidewalks, and installs power and water 
lines on the land. X conveys the roads, sewers, sidewalks, and power and 
water lines to the local government and utilities. The gross receipts 
that X derives from the sale of lots that are attributable to grading, 
and the construction of the roads, sewers, sidewalks, and power and 
water lines (that qualify as infrastructure under paragraph (m)(4) of 
this section) are DPGR. X's gross receipts derived from the land 
including capitalized costs of entitlements (including zoning) do not 
qualify as DPGR under paragraph (m)(6)(i) of this section because the 
gross receipts are not derived from the construction of real property.

[[Page 380]]

    Example 5. (i) Facts. X, who is engaged in the trade or business of 
construction under NAICS code 23 on a regular and ongoing basis, 
constructs housing that is real property under paragraph (m)(3) of this 
section. On June 1, 2007, X pays $50,000,000 and acquires 1,000 acres of 
land that X will develop as a new housing development. In November 2007, 
after the expenditure of $10,000,000 for entitlement costs, X receives 
permits to begin construction. After this expenditure, X's land costs 
total $60,000,000. The development consists of 1,000 houses to be built 
on half-acre lots over 5 years. On January 31, 2012, the first house is 
sold for $300,000. Construction costs for each house are $170,000. 
Common improvements consisting of streets, sidewalks, sewer lines, 
playgrounds, clubhouses, tennis courts, and swimming pools that X is 
contractually obligated or required by law to provide cost $55,000 per 
lot. The common improvements of $55,000 per lot include $30,000 in land 
costs underlying the common improvements.
    (ii) Land safe harbor. Pursuant to the land safe harbor under 
paragraph (m)(6)(iv) of this section, X calculates the basis for each 
house sold as $195,000 (total costs of $255,000 ($170,000 in 
construction costs plus $55,000 in common improvements (including 
$30,000 in land costs) plus $30,000 in land costs for the lot), which 
are reduced by land costs of $60,000). X calculates the DPGR for each 
house sold by taking the gross receipts of $300,000 and reducing that 
amount by land costs of $60,000 plus a percentage of $60,000. As X 
acquired the land on June 1, 2007, for each house sold on the land 
between January 31, 2012, and June 1, 2012, the percentage reduction for 
X is 5% because X has held the land for not more than 60 months from the 
date of acquisition. Thus, X's DPGR for each house is $237,000 
($300,000-$60,000-$3,000) with costs for each house of $195,000 
($255,000-$60,000). For each house sold on the land between June 2, 2012 
and June 1, 2017, the percentage reduction for X is 10% because X has 
held the land for more than 60 months but not more than 120 months from 
the date of acquisition. Thus, of the $300,000 of gross receipts, X's 
DPGR for each house is $234,000 ($300,000-$60,000-$6,000) with costs for 
each house of $195,000 ($255,000-$60,000).
    Example 6. The facts are the same as in Example 5 except that on 
December 31, 2007, after X received the permits to begin construction, X 
sold the entitled land to Y, an unrelated corporation, for $75,000,000. 
Y is engaged in a trade or business on a regular and ongoing basis that 
is considered construction under NAICS code 23. Y subsequently incurred 
the construction costs and the costs of the common improvements, and Y 
sold the houses. Because X did not perform any construction activities, 
none of X's $75,000,000 in gross receipts derived from Y are DPGR and 
none of X's costs are allocable to DPGR. Pursuant to the land safe 
harbor under paragraph (m)(6)(iv) of this section, Y calculates the 
basis for each house sold as $195,000 (total costs of $270,000 ($170,000 
in construction costs plus $62,500 in common improvements (including 
$37,500 in land costs) plus $37,500 in land costs for the lot), which 
are reduced by land costs of $75,000). Y calculates the DPGR for each 
house sold by taking the gross receipts of $300,000 and reducing that 
amount by land costs of $75,000 plus a percentage of $75,000. As Y 
acquired the land on December 31, 2007, for the houses sold on the land 
between January 31, 2012, and December 31, 2012, the percentage 
reduction for Y is 5% because Y held the land for not more than 60 
months from the date of acquisition. Thus, of the $300,000 of gross 
receipts, the DPGR for each house is $221,250 ($300,000-$75,000-$3,750) 
with costs for each house of $195,000. For the houses sold on the land 
between January 1, 2013, and December 31, 2017, the percentage reduction 
for Y is 10% because Y held the land for more than 60 months but not 
more than 120 months from the date of acquisition. Thus, of the $300,000 
of gross receipts, the DPGR for each house is $217,500 ($300,000-
$75,000-$7,500) with costs for each house of $195,000. The results would 
be the same if X and Y were members of the same EAG, provided X and Y 
were not members of the same consolidated group.
    Example 7. The facts are the same as in Example 6 except that Y is a 
member of the same consolidated group as X. Pursuant to Sec. 1.1502-
13(c)(1)(ii), Y's holding period in the land includes the period of time 
X held the land. In order to produce the same effect as if X and Y were 
divisions of a single corporation (see Sec. 1.1502-13(c)(1)(i)), for 
each house sold between January 31, 2012, and June 1, 2012, Y's DPGR are 
redetermined to be $237,000, the same as X's DPGR for houses sold 
between January 31, 2012, and June 1, 2012, in Example 5. Y's costs for 
each house do not have to be redetermined because Y's costs are 
$195,000, the same as the costs would be if X and Y were divisions of a 
single corporation. For each house sold between June 2, 2012, and June 
1, 2017, Y's DPGR are redetermined to be $234,000, the same as X's DPGR 
for each house sold between June 2, 2012, and June 1, 2017, in Example 
5. Y's costs for each house do not have to be redetermined because Y's 
costs are $195,000, the same as the costs would be if X and Y were 
divisions of a single corporation.
    Example 8. X, who is engaged in the trade or business of 
construction under NAICS code 23 on a regular and ongoing basis, 
purchases land for development and builds an office building on the 
land. Y enters into a contract with X to purchase the office building. 
As part of the contract, X is required to furnish the office space with 
desks, chairs, and lamps. Upon completion of the sale of the building, X 
uses the land safe harbor

[[Page 381]]

under paragraph (m)(6)(iv) of this section to account for the land. 
After application of the land safe harbor, X uses the de minimis 
exception under paragraph (m)(1)(iii)(A) of this section in determining 
whether the gross receipts derived from the sale of the desks, chairs, 
and lamps qualify as DPGR. If the gross receipts derived from the sale 
of the desks, chairs, and lamps are less than 5% of the total gross 
receipts derived by X from the sale of the furnished office building 
(excluding any gross receipts taken into account under the land safe 
harbor pursuant to paragraph (m)(6)(iv)(B) of this section), then all of 
the gross receipts derived from the sale of the furnished office 
building, after the reduction under the land safe harbor, may be treated 
as DPGR.

    (n) Definition of engineering and architectural services--(1) In 
general. DPGR include gross receipts derived from engineering or 
architectural services performed in the United States for a construction 
project described in paragraph (m)(1)(i) of this section. At the time 
the taxpayer performs the engineering or architectural services, the 
taxpayer must be engaged in a trade or business (but not necessarily its 
primary, or only, trade or business) that is considered engineering or 
architectural services for purposes of the NAICS, for example NAICS 
codes 541330 (engineering services) or 541310 (architectural services), 
on a regular and ongoing basis. In the case of a newly-formed trade or 
business or a taxpayer in its first taxable year, a taxpayer is 
considered to be engaged in a trade or business on a regular and ongoing 
basis if the taxpayer reasonably expects that it will engage in a trade 
or business on a regular and ongoing basis. DPGR include gross receipts 
derived from engineering or architectural services, including 
feasibility studies for a construction project in the United States, 
even if the planned construction project is not undertaken or is not 
completed.
    (2) Engineering services. Engineering services in connection with 
any construction project include any professional services requiring 
engineering education, training, and experience and the application of 
special knowledge of the mathematical, physical, or engineering sciences 
to those professional services such as consultation, investigation, 
evaluation, planning, design, or responsible supervision of construction 
(for the purpose of assuring compliance with plans, specifications, and 
design) or erection, in connection with any construction project.
    (3) Architectural services. Architectural services in connection 
with any construction project include the offering or furnishing of any 
professional services such as consultation, planning, aesthetic and 
structural design, drawings and specifications, or responsible 
supervision of construction (for the purpose of assuring compliance with 
plans, specifications, and design) or erection, in connection with any 
construction project.
    (4) Administrative support services. If the taxpayer performing 
engineering or architectural services also provides administrative 
support services (for example, billing and secretarial services) 
incidental and necessary to such engineering or architectural services, 
then these administrative support services are considered engineering or 
architectural services.
    (5) Exceptions. Engineering or architectural services do not include 
post-construction services such as annual audits and inspections.
    (6) De minimis exception for performance of services in the United 
States--(i) DPGR. If less than 5 percent of the total gross receipts 
derived by a taxpayer from engineering or architectural services 
performed in the United States for a construction project (described in 
paragraph (m)(1)(i) of this section) are derived from services not 
relating to a construction project (for example, the services are 
performed outside the United States or in connection with property other 
than real property), then the total gross receipts derived by the 
taxpayer may be treated as DPGR from engineering or architectural 
services performed in the United States for the construction project. In 
the case of gross receipts derived from engineering or architectural 
services that are received over a period of time (for example, an 
installment sale), this de minimis exception is applied by taking into 
account the total gross receipts for the entire period derived (and to 
be derived) from engineering or architectural services. For purposes of 
the preceding sentence, if a taxpayer treats gross receipts as DPGR 
under

[[Page 382]]

this de minimis exception, then the taxpayer must treat the gross 
receipts recognized in each taxable year consistently as DPGR.
    (ii) Non-DPGR. If less than 5 percent of the total gross receipts 
derived by a taxpayer from engineering or architectural services 
performed in the United States for a construction project qualify as 
DPGR, then the total gross receipts derived by the taxpayer from 
engineering or architectural services performed in the United States for 
the construction project may be treated as non-DPGR. In the case of 
gross receipts derived from engineering or architectural services that 
are received over a period of time (for example, an installment sale), 
this de minimis exception is applied by taking into account the total 
gross receipts for the entire period derived (and to be derived) from 
engineering or architectural services. For purposes of the preceding 
sentence, if a taxpayer treats gross receipts as non-DPGR under this de 
minimis exception, then the taxpayer must treat the gross receipts 
recognized in each taxable year consistently as non-DPGR.
    (7) Example. The following example illustrates the application of 
this paragraph (n):

    Example. X is engaged in the trade or business of providing 
engineering services under NAICS code 541330 on a regular and ongoing 
basis. Y buys unimproved land. Y hires X to provide engineering services 
for roads, sewers, sidewalks, and power and water lines that qualify as 
infrastructure under paragraph (m)(4) of this section and that will be 
constructed on Y's land. X's gross receipts from engineering services 
for the infrastructure are DPGR. X's gross receipts from engineering 
services relating to land (except as provided in paragraph (m)(2)(iii) 
of this section) do not qualify as DPGR under paragraph (n)(1) of this 
section because the gross receipts are not derived from engineering 
services for a construction project described in paragraph (m)(1)(i) of 
this section.

    (o) Sales of certain food and beverages--(1) In general. DPGR does 
not include gross receipts of the taxpayer that are derived from the 
sale of food or beverages prepared by the taxpayer at a retail 
establishment. A retail establishment is defined as tangible property 
(both real and personal) owned, leased, occupied, or otherwise used by 
the taxpayer in its trade or business of selling food or beverages to 
the public at which retail sales are made. In addition, a facility that 
prepares food and beverages for take out service or delivery is a retail 
establishment (for example, a caterer). If a taxpayer's facility is a 
retail establishment, then, for purposes of this section, the taxpayer 
may allocate its gross receipts between the gross receipts derived from 
the retail sale of the food and beverages prepared and sold at the 
retail establishment (that are non-DPGR) and gross receipts derived from 
the wholesale sale of the food and beverages prepared and sold at the 
retail establishment (that are DPGR assuming all the other requirements 
of section 199 are met). Wholesale sales are defined as food and 
beverages held for resale by the purchaser. The exception for sales of 
certain food and beverages also applies to food and beverages for non-
human consumption. A retail establishment does not include the bonded 
premises of a distilled spirits plant or wine cellar, or the premises of 
a brewery (other than a tavern on the brewery premises). See Chapter 51 
of title 26 of the United States Code and the implementing regulations 
thereunder.
    (2) De minimis exception. A taxpayer may treat a facility at which 
food or beverages are prepared as not being a retail establishment if 
less than 5 percent of the gross receipts derived from the sale of food 
or beverages at that facility during the taxable year are attributable 
to retail sales.
    (3) Examples. The following examples illustrate the application of 
this paragraph (o):

    Example 1. X buys coffee beans and roasts those beans at a facility 
in the United States, the only activity of which is the roasting and 
packaging of coffee beans. X sells the roasted coffee beans through a 
variety of unrelated third-party vendors and also sells roasted coffee 
beans at X's retail establishments. At X's retail establishments, X 
prepares brewed coffee and other foods. To the extent that the gross 
receipts of X's retail establishments are derived from the sale of 
coffee beans roasted at the facility, the receipts are DPGR (assuming 
all the other requirements of this section are met). To the extent the 
gross receipts of X's retail establishments are derived from the retail 
sale of brewed coffee or food prepared at the retail

[[Page 383]]

establishments, the receipts are non-DPGR. However, pursuant to Sec. 
1.199-1(d)(1)(ii), X must allocate part of the receipts from the retail 
sale of the brewed coffee as DPGR to the extent of the value of the 
coffee beans that were roasted at the facility and that were used to 
brew coffee.
    Example 2. Y operates a bonded winery within the United States. 
Bottles of wine produced by Y at the bonded winery are sold to consumers 
at the taxpaid premises. Pursuant to paragraph (o)(1) of this section, 
the bonded premises is not considered a retail establishment and is 
treated as separate and apart from the taxpaid premises, which is 
considered a retail establishment for purposes of paragraph (o)(1) of 
this section. Accordingly, the wine produced by Y in the bonded premises 
and sold by Y from the taxpaid premises is not considered to have been 
produced at a retail establishment, and the gross receipts derived from 
the sales of the wine are DPGR (assuming all the other requirements of 
this section are met).

    (p) Guaranteed payments. DPGR does not include guaranteed payments 
under section 707(c). Thus, partners, including partners in partnerships 
described in paragraphs (i)(7) and (8) of this section and Sec. 1.199-
9(i) and (j), may not treat guaranteed payments as DPGR. See Sec. Sec. 
1.199-5(b)(6) Example 5 and 1.199-9(b)(6) Example 5.

[T.D. 9263, 71 FR 31283, June 1, 2006, as amended by T.D. 9293, 71 FR 
61669, Oct. 19, 2006; T.D. 9263, 72 FR 5, Jan. 3, 2007; T.D. 9317, 72 FR 
12971, Mar. 20, 2007; T.D. 9381, 73 FR 8804, Feb. 15, 2008; T.D. 9384, 
73 FR 12270, Mar. 7, 2008]



Sec. 1.199-4  Costs allocable to domestic production gross receipts.

    (a) In general. The provisions of this section apply solely for 
purposes of section 199 of the Internal Revenue Code (Code). To 
determine its qualified production activities income (QPAI) (as defined 
in Sec. 1.199-1(c)) for a taxable year, a taxpayer must subtract from 
its domestic production gross receipts (DPGR) (as defined in Sec. 
1.199-3(a)) the cost of goods sold (CGS) allocable to DPGR and other 
expenses, losses, or deductions (deductions), other than the deduction 
allowed under section 199, that are properly allocable to such receipts. 
Paragraph (b) of this section provides rules for determining CGS 
allocable to DPGR. Paragraph (c) of this section provides rules for 
determining the deductions that are properly allocable to DPGR. 
Paragraph (d) of this section provides that a taxpayer generally must 
determine deductions allocable to DPGR or to gross income attributable 
to DPGR using Sec. Sec. 1.861-8 through 1.861-17 and Sec. Sec. 1.861-
8T through 1.861-14T (the section 861 regulations), subject to the rules 
in paragraph (d) of this section (the section 861 method). Paragraph (e) 
of this section provides that certain taxpayers may apportion deductions 
to DPGR using the simplified deduction method. Paragraph (f) of this 
section provides a small business simplified overall method that a 
qualifying small taxpayer may use to apportion CGS and deductions to 
DPGR.
    (b) Cost of goods sold allocable to domestic production gross 
receipts--(1) In general. When determining its QPAI, a taxpayer must 
subtract from DPGR the CGS allocable to DPGR. A taxpayer determines its 
CGS allocable to DPGR in accordance with this paragraph (b) or, if 
applicable, paragraph (f) of this section. In the case of a sale, 
exchange, or other disposition of inventory, CGS is equal to beginning 
inventory plus purchases and production costs incurred during the 
taxable year and included in inventory costs, less ending inventory. CGS 
is determined under the methods of accounting that the taxpayer uses to 
compute taxable income. See sections 263A, 471, and 472. If section 263A 
requires a taxpayer to include additional section 263A costs (as defined 
in Sec. 1.263A-1(d)(3)) in inventory, additional section 263A costs 
must be included in determining CGS. CGS allocable to DPGR also includes 
inventory valuation adjustments such as writedowns under the lower of 
cost or market method. In the case of a sale, exchange, or other 
disposition (including, for example, theft, casualty, or abandonment) of 
non-inventory property, CGS for purposes of this section includes the 
adjusted basis of the property. CGS allocable to DPGR for a taxable year 
may include the inventory cost and adjusted basis of qualifying 
production property (QPP) (as defined in Sec. 1.199-3(j)(1)), a 
qualified film (as defined in Sec. 1.199-3(k)(1)), or electricity, 
natural gas, and potable water (as defined in Sec. 1.199-3(l)) 
(collectively, utilities) that will generate (or have generated) DPGR 
notwithstanding that

[[Page 384]]

the gross receipts attributable to the sale, lease, rental, license, 
exchange, or other disposition of the QPP, qualified film, or utilities 
will be, or have been, included in the computation of gross income for a 
different taxable year. For example, advance payments that are DPGR may 
be included in gross income under Sec. 1.451-5(b)(1)(i) in a different 
taxable year than the related CGS allocable to that DPGR. If gross 
receipts are treated as DPGR pursuant to Sec. 1.199-1(d)(3)(i) or Sec. 
1.199-3(i)(4)(i)(B)(6), (l)(4)(iv)(A), (m)(1)(iii)(A), (n)(6)(i), or 
(o)(2), then CGS must be allocated to such DPGR. Similarly, if gross 
receipts are treated as non-DPGR pursuant to Sec. 1.199-1(d)(3)(ii) or 
Sec. 1.199-3(i)(4)(ii), (l)(4)(iv)(B), (m)(1)(iii)(B), or (n)(6)(ii), 
then CGS must be allocated to such non-DPGR. See Sec. 1.199-3(m)(6)(iv) 
for rules relating to treatment of certain costs in the case of a 
taxpayer that uses the land safe harbor under that paragraph.
    (2) Allocating cost of goods sold--(i) In general. A taxpayer must 
use a reasonable method that is satisfactory to the Secretary based on 
all of the facts and circumstances to allocate CGS between DPGR and non-
DPGR. Whether an allocation method is reasonable is based on all of the 
facts and circumstances including whether the taxpayer uses the most 
accurate information available; the relationship between CGS and the 
method used; the accuracy of the method chosen as compared with other 
possible methods; whether the method is used by the taxpayer for 
internal management or other business purposes; whether the method is 
used for other Federal or state income tax purposes; the availability of 
costing information; the time, burden, and cost of using alternative 
methods; and whether the taxpayer applies the method consistently from 
year to year. Depending on the facts and circumstances, reasonable 
methods may include methods based on gross receipts, number of units 
sold, number of units produced, or total production costs. Ordinarily, 
if a taxpayer uses a method to allocate gross receipts between DPGR and 
non-DPGR, then the use of a different method to allocate CGS that is not 
demonstrably more accurate than the method used to allocate gross 
receipts will not be considered reasonable. However, if a taxpayer has 
information readily available to specifically identify CGS allocable to 
DPGR and can specifically identify that amount without undue burden or 
expense, CGS allocable to DPGR is that amount irrespective of whether 
the taxpayer uses another allocation method to allocate gross receipts 
between DPGR and non-DPGR. A taxpayer that does not have information 
readily available to specifically identify CGS allocable to DPGR and 
that cannot, without undue burden or expense, specifically identify that 
amount is not required to use a method that specifically identifies CGS 
allocable to DPGR.
    (ii) Gross receipts recognized in an earlier taxable year. If a 
taxpayer (other than a taxpayer that uses the small business simplified 
overall method of paragraph (f) of this section) recognizes and reports 
gross receipts on a Federal income tax return for a taxable year, and 
incurs CGS related to such gross receipts in a subsequent taxable year, 
then regardless of whether the gross receipts ultimately qualify as 
DPGR, the taxpayer must allocate the CGS to--
    (A) DPGR if the taxpayer identified the related gross receipts as 
DPGR in the prior taxable year; or
    (B) Non-DPGR if the taxpayer identified the related gross receipts 
as non-DPGR in the prior taxable year or if the taxpayer recognized 
under the taxpayer's methods of accounting those gross receipts in a 
taxable year to which section 199 does not apply.
    (3) Special rules for imported items or services. The cost of any 
item or service brought into the United States (as defined in Sec. 
1.199-3(h)) without an arm's length transfer price may not be treated as 
less than its value immediately after it entered the United States for 
purposes of determining the CGS to be used in the computation of QPAI. 
Similarly, the adjusted basis of leased or rented property that gives 
rise to DPGR that has been brought into the United States (as defined in 
Sec. 1.199-3(h)) without an arm's length transfer price may not be 
treated as less than its value immediately after it entered the United 
States. When an item or service is imported into the United States that

[[Page 385]]

had been exported by the taxpayer for further manufacture, the increase 
in cost may not exceed the difference between the value of the property 
when exported and the value of the property when imported back into the 
United States after further manufacture. For this purpose, the value of 
property is its customs value as defined in section 1059A(b)(1).
    (4) Rules for inventories valued at market or bona fide selling 
prices. If part of CGS is attributable to inventory valuation 
adjustments, then CGS allocable to DPGR includes inventory adjustments 
to QPP that is MPGE in whole or in significant part within the United 
States, a qualified film produced by the taxpayer, or utilities produced 
by the taxpayer in the United States. Accordingly, taxpayers that value 
inventory under Sec. 1.471-4 (inventories at cost or market, whichever 
is lower) or Sec. 1.471-2(c) (subnormal goods at bona fide selling 
prices) must allocate a proper share of such adjustments (for example, 
writedowns) to DPGR based on a reasonable method that is satisfactory to 
the Secretary based on all of the facts and circumstances. Factors taken 
into account in determining whether the method is reasonable include 
whether the taxpayer uses the most accurate information available; the 
relationship between the adjustment and the allocation base chosen; the 
accuracy of the method chosen as compared with other possible methods; 
whether the method is used by the taxpayer for internal management or 
other business purposes; whether the method is used for other Federal or 
state income tax purposes; the time, burden, and cost of using 
alternative methods; and whether the taxpayer applies the method 
consistently from year to year. If a taxpayer has information readily 
available to specifically identify the proper amount of inventory 
valuation adjustments allocable to DPGR, then the taxpayer must allocate 
that amount to DPGR. A taxpayer that does not have information readily 
available to specifically identify the proper amount of inventory 
valuation adjustments allocable to DPGR and that cannot, without undue 
burden or expense, specifically identify the proper amount of inventory 
valuation adjustments allocable to DPGR, is not required to use a method 
that specifically identifies inventory valuations adjustments to DPGR.
    (5) Rules applicable to inventories accounted for under the last-in, 
first-out (LIFO) inventory method--(i) In general. This paragraph 
applies to inventories accounted for using the specific goods last-in, 
first-out (LIFO) method or the dollar-value LIFO method. Whenever a 
specific goods grouping or a dollar-value pool contains QPP, qualified 
films, or utilities that produces DPGR and goods that do not, the 
taxpayer must allocate CGS attributable to that grouping or pool between 
DPGR and non-DPGR using a reasonable method that is satisfactory to the 
Secretary based on all of the facts and circumstances. Whether a method 
of allocating CGS between DPGR and non-DPGR is reasonable must be 
determined in accordance with paragraph (b)(2) of this section. In 
addition, this paragraph (b)(5) provides methods that a taxpayer may use 
to allocate CGS for inventories accounted for using the LIFO method. If 
a taxpayer uses the LIFO/FIFO ratio method provided in paragraph 
(b)(5)(ii) of this section or the change in relative base-year cost 
method provided in paragraph (b)(5)(iii) of this section, then the 
taxpayer must use that method for all inventory accounted for under the 
LIFO method.
    (ii) LIFO/FIFO ratio method. A taxpayer using the specific goods 
LIFO method or the dollar-value LIFO method may use the LIFO/FIFO ratio 
method. The LIFO/FIFO ratio method is applied with respect to all LIFO 
inventory of a taxpayer on a grouping-by-grouping or pool-by-pool basis. 
Under the LIFO/FIFO ratio method, a taxpayer computes the CGS of a 
grouping or pool allocable to DPGR by multiplying the CGS of QPP, 
qualified films, or utilities in the grouping or pool that produced DPGR 
computed using the first-in, first-out (FIFO) method by the LIFO/FIFO 
ratio of the grouping or pool. The LIFO/FIFO ratio of a grouping or pool 
is equal to the total CGS of the grouping or pool computed using the 
LIFO method over the total CGS of the grouping or pool computed using 
the FIFO method.

[[Page 386]]

    (iii) Change in relative base-year cost method. A taxpayer using the 
dollar-value LIFO method may use the change in relative base-year cost 
method. The change in relative base-year cost method is applied with 
respect to all LIFO inventory of a taxpayer on a pool-by-pool basis. The 
change in relative base-year cost method determines the CGS allocable to 
DPGR by increasing or decreasing the total production costs (section 471 
costs and additional section 263A costs) of QPP, a qualified film, or 
utilities that generate DPGR by a portion of any increment or 
liquidation of the dollar-value pool. The portion of an increment or 
liquidation allocable to DPGR is determined by multiplying the LIFO 
value of the increment or liquidation (expressed as a positive number) 
by the ratio of the change in total base-year cost (expressed as a 
positive number) of the QPP, qualified film, or utilities that will 
generate DPGR in ending inventory to the change in total base-year cost 
(expressed as a positive number) of all goods in the ending inventory. 
The portion of an increment or liquidation allocable to DPGR may be zero 
but cannot exceed the amount of the increment or liquidation. Thus, a 
ratio in excess of 1.0 must be treated as 1.0.
    (6) Taxpayers using the simplified production method or simplified 
resale method for additional section 263A costs. A taxpayer that uses 
the simplified production method or simplified resale method to allocate 
additional section 263A costs, as defined in Sec. 1.263A-1(d)(3), to 
ending inventory must follow the rules in paragraph (b)(2) of this 
section to determine the amount of additional section 263A costs 
allocable to DPGR. Allocable additional section 263A costs include 
additional section 263A costs included in beginning inventory as well as 
additional section 263A costs incurred during the taxable year. 
Ordinarily, if a taxpayer uses the simplified production method or the 
simplified resale method, the additional section 263A costs should be 
allocated in the same proportion as section 471 costs are allocated.
    (7) Examples. The following examples illustrate the application of 
this paragraph (b) and assume that the taxpayer does not use the small 
business simplified overall method provided in paragraph (f) of this 
section:

    Example 1. Advance payments. T, a calendar year taxpayer, is a 
manufacturer of furniture in the United States. Under its method of 
accounting, T includes advance payments and other gross receipts derived 
from the sale of furniture in gross income when the payments are 
received. In December 2007, T receives an advance payment of $5,000 from 
X with respect to an order of furniture to be manufactured for a total 
price of $20,000. In 2008, T produces and sells the furniture to X. In 
2008, T incurs $14,000 of section 471 and additional section 263A costs 
to produce the furniture ordered by X. T receives the remaining $15,000 
of the contract price from X in 2008. Assuming that in 2007, T can 
reasonably determine that all the requirements of Sec. Sec. 1.199-1 and 
1.199-3 will be met with respect to the furniture, the advance payment 
qualifies as DPGR in 2007. Assuming further that all the requirements of 
Sec. Sec. 1.199-1 and 1.199-3 are met with respect to the furniture in 
2008, the remaining $15,000 of the contract price must be included in 
income and DPGR when received by T in 2008. T must include the $14,000 
it incurred to produce the furniture in CGS and CGS allocable to DPGR in 
2008. See Sec. 1.199-4(b)(2)(ii) for rules regarding gross receipts and 
costs recognized in different taxable years.
    Example 2. Use of standard cost method. X, a calendar year taxpayer, 
manufactures item A in a factory located in the United States and item B 
in a factory located in Country Y. Item A is produced by X within the 
United States and the sale of A generates DPGR. X uses the FIFO 
inventory method to account for its inventory and determines the cost of 
item A using a standard cost method. At the beginning of its 2007 
taxable year, X's inventory contains 2,000 units of item A at a standard 
cost of $5 per unit. X did not incur significant cost variances in 
previous taxable years. During the 2007 taxable year, X produces 8,000 
units of item A at a standard cost of $6 per unit. X determines that 
with regard to its production of item A it has incurred a significant 
cost variance. When X reallocates the cost variance to the units of item 
A that it has produced, the production cost of item A is $7 per unit. X 
sells 7,000 units of item A during the taxable year. X can identify from 
its books and records that CGS related to the sales of item A during the 
taxable year are $45,000 ((2,000 x $5) + (5,000 x $7)). Accordingly, X 
has CGS allocable to DPGR of $45,000.
    Example 3. Change in relative base-year cost method. (i) Y elects, 
beginning with the calendar year 2007, to compute its inventories using 
the dollar-value, LIFO method under section 472. Y establishes a pool 
for items A and B. Y produces item A within the United

[[Page 387]]

States and the sales of item A generate DPGR. Y does not produce item B 
within the United States and the sale of item B does not generate DPGR. 
The composition of the inventory for the pool at the base date, January 
1, 2007, is as follows:

----------------------------------------------------------------------------------------------------------------
                              Item                                     Unit          Unit cost      Total cost
----------------------------------------------------------------------------------------------------------------
A...............................................................           2,000           $5.00         $10,000
B...............................................................           1,250            4.00           5,000
 
    Total.......................................................  ..............  ..............          15,000
----------------------------------------------------------------------------------------------------------------

    (ii) Y uses a standard cost method to allocate all direct and 
indirect costs (section 471 and additional section 263A costs) to the 
units of item A and item B that it produces. During 2007, Y incurs 
$52,500 of section 471 costs and additional section 263A costs to 
produce 10,000 units of item A and $114,000 of section 471 costs and 
additional section 263A costs to produce 20,000 units of item B.
    (iii) The closing inventory of the pool at December 31, 2007, 
contains 3,000 units of item A and 2,500 units of item B. The closing 
inventory of the pool at December 31, 2007, shown at base-year and 
current-year cost is as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                   Current-year
              Item                   Quantity     Base-year cost      Amount           cost           Amount
----------------------------------------------------------------------------------------------------------------
A...............................           3,000           $5.00         $15,000           $5.25         $15,750
B...............................           2,500            4.00          10,000            5.70          14,250
                                 -------------------------------------------------------------------------------
    Totals......................  ..............  ..............          25,000  ..............          30,000
----------------------------------------------------------------------------------------------------------------

    (iv) The base-year cost of the closing LIFO inventory at December 
31, 2007, amounts to $25,000, and exceeds the $15,000 base-year cost of 
the opening inventory for the taxable year by $10,000 (the increment 
stated at base-year cost). The increment valued at current-year cost is 
computed by multiplying the increment stated at base-year cost by the 
ratio of the current-year cost of the pool to total base-year cost of 
the pool (that is, $30,000/$25,000, or 120%). The increment stated at 
current-year cost is $12,000 ($10,000 x 120%).
    (v) The change in relative base-year cost of item A is $5,000 
($15,000-$10,000). The change in relative base-year cost (the increment 
stated at base-year cost) of the total inventory is $10,000 ($25,000-
$15,000). The ratio of the change in base-year cost of item A to the 
change in base-year cost of the total inventory is 50% ($5,000/$10,000).
    (vi) CGS allocable to DPGR is $46,500, computed as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Current-year production costs related    ..............         $52,500
 to DPGR...............................
Less:
    Increment stated at current-year            $12,000  ...............
     cost..............................
    Ratio..............................             50%  ...............
    Total..............................  ..............          (6,000)
                                        --------------------------------
        Total..........................  ..............          46,500
------------------------------------------------------------------------

    Example 4. Change in relative base-year cost method. (i) The facts 
are the same as in Example 3 except that, during the calendar year 2008, 
Y experiences an inventory decrement. During 2008, Y incurs $66,000 of 
section 471 costs and additional section 263A costs to produce 12,000 
units of item A and $150,000 of section 471 costs and additional section 
263A costs to produce 25,000 units of item B.
    (ii) The closing inventory of the pool at December 31, 2008, 
contains 2,000 units of item A and 2,500 units of item B. The closing 
inventory of the pool at December 31, 2008, shown at base-year and 
current-year cost is as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                   Current-year
              Item                   Quantity     Base-year cost      Amount           cost           Amount
----------------------------------------------------------------------------------------------------------------
A...............................           2,000           $5.00         $10,000           $5.50         $11,000

[[Page 388]]

 
B...............................           2,500            4.00          10,000            6.00          15,000
                                 -------------------------------------------------------------------------------
    Totals......................  ..............  ..............          20,000  ..............          26,000
----------------------------------------------------------------------------------------------------------------

    (iii) The base-year cost of the closing LIFO inventory at December 
31, 2008, amounts to $20,000, and is less than the $25,000 base-year 
cost of the opening inventory for that taxable year by $5,000 (the 
decrement stated at base-year cost). This liquidation is reflected by 
reducing the most recent layer of increment. The LIFO value of the 
inventory at December 31, 2008 is:

----------------------------------------------------------------------------------------------------------------
                                                                     Base cost         Index        LIFO value
----------------------------------------------------------------------------------------------------------------
January 1, 2008, base cost......................................         $15,000            1.00         $15,000
December 31, 2008, increment....................................           5,000            1.20           6,000
                                                                 -----------------------------------------------
    Total.......................................................  ..............  ..............          21,000
----------------------------------------------------------------------------------------------------------------

    (iv) The change in relative base-year cost of item A is $5,000 
($15,000-$10,000). The change in relative base-year cost of the total 
inventory is $5,000 ($25,000-$20,000). The ratio of the change in base-
year cost of item A to the change in base-year cost of the total 
inventory is 100% ($5,000/$5,000).
    (v) CGS allocable to DPGR is $72,000, computed as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Current-year production costs related to  ..............         $66,000
 DPGR...................................
Plus:
    LIFO value of decrement.............          $6,000  ..............
    Ratio...............................            100%  ..............
    Total...............................  ..............           6,000
                                         -------------------------------
        Total...........................  ..............          72,000
------------------------------------------------------------------------

    Example 5. LIFO/FIFO ratio method. (i) The facts are the same as in 
Example 3 except that Y uses the LIFO/FIFO ratio method to determine its 
CGS allocable to DPGR.
    (ii) Y's CGS related to item A on a FIFO basis is $46,750 ((2,000 
units at $5) + (7,000 units at $5.25)).
    (iii) Y's total CGS computed on a LIFO basis is $154,500 (beginning 
inventory of $15,000 plus total production costs of $166,500 less ending 
inventory of $27,000).
    (iv) Y's total CGS computed on a FIFO basis is $151,500 (beginning 
inventory of $15,000 plus total production costs of $166,500 less ending 
inventory of $30,000).
    (v) The ratio of Y's CGS computed using the LIFO method to its CGS 
computed using the FIFO method is 102% ($154,500/$151,500). Y's CGS 
related to DPGR computed using the LIFO/FIFO ratio method is $47,685 
($46,750 x 102%).
    Example 6. LIFO/FIFO ratio method. (i) The facts are the same as in 
Example 4 except that Y uses the LIFO/FIFO ratio method to compute CGS 
allocable to DPGR.
    (ii) Y's CGS related to item A on a FIFO basis is $70,750 ((3,000 
units at $5.25) + (10,000 units at $5.50)).
    (iii) Y's total CGS computed on a LIFO basis is $222,000 (beginning 
inventory of $27,000 plus total production costs of $216,000 less ending 
inventory of $21,000).
    (iv) Y's total CGS computed on a FIFO basis is $220,000 (beginning 
inventory of $30,000 plus total production costs of $216,000 less ending 
inventory of $26,000).
    (v) The ratio of Y's CGS computed using the LIFO method to its CGS 
computed using the FIFO method is 101% ($222,000/$220,000). Y's CGS 
related to DPGR computed using the LIFO/FIFO ratio method is $71,457 
($70,750 x 101%).

    (c) Other deductions properly allocable to domestic production gross 
receipts or gross income attributable to domestic production gross 
receipts--(1) In general. In determining its QPAI, a taxpayer must 
subtract from its DPGR, in addition to its CGS allocable to DPGR, the 
deductions that are properly allocable to DPGR. A taxpayer generally 
must allocate and apportion these deductions using the rules of the 
section 861 method. In lieu of the section 861 method,

[[Page 389]]

certain taxpayers may apportion these deductions using the simplified 
deduction method provided in paragraph (e) of this section. Paragraph 
(f) of this section provides a small business simplified overall method 
that may be used by a qualifying small taxpayer, as defined in that 
paragraph. A taxpayer using the simplified deduction method or the small 
business simplified overall method must use that method for all 
deductions. A taxpayer eligible to use the small business simplified 
overall method may choose at any time for any taxable year to use the 
small business simplified overall method, the simplified deduction 
method, or the section 861 method for a taxable year. A taxpayer 
eligible to use the simplified deduction method may choose at any time 
for any taxable year to use the simplified deduction method or the 
section 861 method for a taxable year.
    (2) Treatment of net operating losses. A deduction under section 172 
for a net operating loss is not allocated or apportioned to DPGR or 
gross income attributable to DPGR.
    (3) W-2 wages. Although only W-2 wages as described in Sec. 1.199-2 
are taken into account in computing the W-2 wage limitation, all wages 
paid (or incurred in the case of an accrual method taxpayer) in a 
taxpayer's trade or business during the taxable year are taken into 
account in computing QPAI for that taxable year.
    (d) Section 861 method--(1) In general. Under the section 861 
method, a taxpayer must allocate and apportion its deductions using the 
allocation and apportionment rules provided under the section 861 
regulations under which section 199 is treated as an operative section 
described in Sec. 1.861-8(f). Accordingly, the taxpayer applies the 
rules of the section 861 regulations to allocate and apportion 
deductions (including, if applicable, its distributive share of 
deductions from pass-thru entities) to gross income attributable to 
DPGR. Gross receipts that are allocable to land under the safe harbor 
provided in Sec. 1.199-3(m)(6)(iv) are treated as non-DPGR. See Sec. 
1.199-3(m)(6)(iv)(B). If the taxpayer applies the allocation and 
apportionment rules of the section 861 regulations for section 199 and 
another operative section, then the taxpayer must use the same method of 
allocation and the same principles of apportionment for purposes of all 
operative sections (subject to the rules provided in paragraphs (c)(2) 
and (d)(2) and (3) of this section). See Sec. 1.861-8(f)(2)(i).
    (2) Deductions for charitable contributions. Deductions for 
charitable contributions (as allowed under section 170 and section 
873(b)(2) or 882(c)(1)(B)) must be ratably apportioned between gross 
income attributable to DPGR and gross income attributable to non-DPGR 
based on the relative amounts of gross income.
    (3) Research and experimental expenditures. Research and 
experimental expenditures must be allocated and apportioned in 
accordance with Sec. 1.861-17 without taking into account the exclusive 
apportionment rule of Sec. 1.861-17(b).
    (4) Deductions allocated or apportioned to gross receipts treated as 
domestic production gross receipts. If gross receipts are treated as 
DPGR pursuant to Sec. 1.199-1(d)(3)(i) or Sec. 1.199-3(i)(4)(i)(B)(6), 
(l)(4)(iv)(A), (m)(1)(iii)(A), (n)(6)(i), or (o)(2), then deductions 
must be allocated or apportioned to the gross income attributable to 
such DPGR. Similarly, if gross receipts are treated as non-DPGR pursuant 
to Sec. 1.199-1(d)(3)(ii) or Sec. 1.199-3(i)(4)(ii), (l)(4)(iv)(B), 
(m)(1)(iii)(B), or (n)(6)(ii), then deductions must be allocated or 
apportioned to the gross income attributable to such non-DPGR.
    (5) Treatment of items from a pass-thru entity reporting qualified 
production activities income. If, pursuant to Sec. 1.199-5(e)(2) or 
Sec. 1.199-9(e)(2), or to the authority granted in Sec. 1.199-
5(b)(1)(ii) or (c)(1)(ii), or Sec. 1.199-9(b)(1)(ii) or (c)(1)(ii), a 
taxpayer must combine QPAI and W-2 wages from a partnership, S 
corporation, trust (to the extent not described in Sec. 1.199-5(d) or 
Sec. 1.199-9(d)) or estate with the taxpayer's total QPAI and W-2 wages 
from other sources, then for purposes of apportioning the taxpayer's 
interest expense under this paragraph (d), the taxpayer's interest in 
such partnership (and, where relevant in apportioning the taxpayer's 
interest expense, the partnership's assets), the taxpayer's shares in 
such S corporation, or the taxpayer's interest in such trust shall be 
disregarded.

[[Page 390]]

    (6) Examples. The following examples illustrate the operation of the 
section 861 method. Assume in the following examples that all 
corporations are calendar year taxpayers, that all taxpayers have 
sufficient W-2 wages as defined in Sec. 1.199-2(e) so that the section 
199 deduction is not limited under section 199(b)(1), and that, with 
respect to the allocation and apportionment of interest expense, Sec. 
1.861-10T does not apply.

    Example 1. Section 861 method and no EAG. (i) Facts. X, a United 
States corporation that is not a member of an expanded affiliated group 
(EAG) (as defined in Sec. 1.199-7), engages in activities that generate 
both DPGR and non-DPGR. All of X's production activities that generate 
DPGR are within Standard Industrial Classification (SIC) Industry Group 
AAA (SIC AAA). All of X's production activities that generate non-DPGR 
are within SIC Industry Group BBB (SIC BBB). X is able to specifically 
identify CGS allocable to DPGR and to non-DPGR. X incurs $900 of 
research and experimentation expenses (R&E) that are deductible under 
section 174, $300 of which are performed with respect to SIC AAA and 
$600 of which are performed with respect to SIC BBB. None of the R&E is 
legally mandated R&E as described in Sec. 1.861-17(a)(4) and none of 
the R&E is included in CGS. X incurs section 162 selling expenses that 
are not includible in CGS and are definitely related to all of X's gross 
income. For 2010, the adjusted basis of X's assets is $5,000, $4,000 of 
which generates gross income attributable to DPGR and $1,000 of which 
generates gross income attributable to non-DPGR. For 2010, X's taxable 
income is $1,380 based on the following Federal income tax items:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (all from sales of products within SIC AAA).......          $3,000
Non-DPGR (all from sales of products within SIC BBB)...           3,000
CGS allocable to DPGR..................................            (600)
CGS allocable to non-DPGR..............................          (1,800)
Section 162 selling expenses...........................            (840)
Section 174 R&E-SIC AAA................................            (300)
Section 174 R&E-SIC BBB................................            (600)
Interest expense (not included in CGS).................            (300)
Charitable contributions...............................            (180)
                                                        ----------------
X's taxable income.....................................           1,380
------------------------------------------------------------------------

    (ii) X's QPAI. X allocates and apportions its deductions to gross 
income attributable to DPGR under the section 861 method of this 
paragraph (d). In this case, the section 162 selling expenses are 
definitely related to all of X's gross income. Based on the facts and 
circumstances of this specific case, apportionment of those expenses 
between DPGR and non-DPGR on the basis of X's gross receipts is 
appropriate. For purposes of apportioning R&E, X elects to use the sales 
method as described in Sec. 1.861-17(c). X elects to apportion interest 
expense under the tax book value method of Sec. 1.861-9T(g). X has 
$2,400 of gross income attributable to DPGR (DPGR of $3,000--CGS of $600 
allocated based on X's books and records). X's QPAI for 2010 is $1,320, 
as shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (all from sales of products within SIC AAA).......          $3,000
CGS allocable to DPGR..................................            (600)
Section 162 selling expenses ($840 x ($3,000 DPGR/                 (420)
 $6,000 total gross receipts)).........................
Interest expense (not included in CGS) ($300 x ($4,000             (240)
 (X's DPGR assets)/ $5,000 (X's total assets)))........
Charitable contributions (not included in CGS) ($180 x             (120)
 ($2,400 gross income attributable to DPGR/$3,600 total
 gross income))........................................
Section 174 R&E-SIC AAA................................            (300)
                                                        ----------------
    X's QPAI...........................................           1,320
------------------------------------------------------------------------


[[Page 391]]

    (iii) Section 199 deduction determination. X's tentative deduction 
under Sec. 1.199-1(a) is $119 (.09 x (lesser of QPAI of $1,320 and 
taxable income of $1,380)). Because the facts of this example assume 
that X's W-2 wages as defined in Sec. 1.199-2(e) are sufficient to 
avoid a limitation on the section 199 deduction, X's section 199 
deduction for 2010 is $119.
    Example 2. Section 861 method and EAG. (i) Facts. The facts are the 
same as in Example 1 except that X owns stock in Y, a United States 
corporation, equal to 75% of the total voting power of stock of Y and 
80% of the total value of stock in Y. X and Y are not members of an 
affiliated group as defined in section 1504(a). Accordingly, the rules 
of Sec. 1.861-14T do not apply to X's and Y's selling expenses, R&E, 
and charitable contributions. X and Y are, however, members of an 
affiliated group for purposes of allocating and apportioning interest 
expense (see Sec. 1.861-11T(d)(6)) and are also members of an EAG. For 
2010, the adjusted basis of Y's assets is $45,000, $21,000 of which 
generates gross income attributable to DPGR and $24,000 of which 
generates gross income attributable to non-DPGR. All of Y's activities 
that generate DPGR are within SIC Industry Group AAA (SIC AAA). All of 
Y's activities that generate non-DPGR are within SIC Industry Group BBB 
(SIC BBB). None of X's and Y's sales are to each other. Y is not able to 
specifically identify CGS allocable to DPGR and non-DPGR. In this case, 
because CGS is definitely related under the facts and circumstances to 
all of Y's gross receipts, apportionment of CGS between DPGR and non-
DPGR based on gross receipts is appropriate. For 2010, Y's taxable 
income is $1,910 based on the following Federal income tax items:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (all from sales of products within SIC AAA).......          $3,000
Non-DPGR (all from sales of products within SIC BBB)...           3,000
CGS allocated to DPGR..................................          (1,200)
CGS allocated to non-DPGR..............................          (1,200)
Section 162 selling expenses...........................            (840)
Section 174 R&E-SIC AAA................................            (100)
Section 174 R&E-SIC BBB................................            (200)
Interest expense (not included in CGS and not subject              (500)
 to Sec. 1.861-10T)..................................
Charitable contributions...............................             (50)
                                                        ----------------
    Y's taxable income.................................           1,910
------------------------------------------------------------------------

    (ii) QPAI. (A) X's QPAI. Determination of X's QPAI is the same as in 
Example 1 except that interest is apportioned to gross income 
attributable to DPGR based on the combined adjusted bases of X's and Y's 
assets. See Sec. 1.861-11T(c). Accordingly, X's QPAI for 2010 is 
$1,410, as shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (all from sales of products within SIC AAA).......          $3,000
CGS allocated to DPGR..................................            (600)
Section 162 selling expenses ($840 x ($3,000 DPGR/                 (420)
 $6,000 total gross receipts)).........................
Interest expense (not included in CGS and not subject              (150)
 to Sec. 1.861-10T) ($300 x ($25,000 (tax book value
 of X's and Y's DPGR assets)/$50,000 (tax book value of
 X's and Y's total assets)))...........................
Charitable contributions (not included in CGS) ($180 x             (120)
 ($2,400 gross income attributable to DPGR/$3,600 total
 gross income))........................................
Section 174 R&E-SIC AAA................................            (300)
                                                        ----------------
    X's QPAI...........................................           1,410
------------------------------------------------------------------------

    (B) Y's QPAI. Y makes the same elections under the section 861 
method as does X. Y has $1,800 of gross income attributable to DPGR 
(DPGR of $3,000--CGS of $1,200 allocated based on Y's gross receipts). 
Y's QPAI for 2010 is $1,005, as shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (all from sales of products within SIC AAA).......          $3,000
CGS allocated to DPGR..................................          (1,200)

[[Page 392]]

 
Section 162 selling expenses ($840 x ($3,000 DPGR/                 (420)
 $6,000 total gross receipts)).........................
Interest expense (not included in CGS and not subject              (250)
 to Sec. 1.861-10T) ($500 x ($25,000 (tax book value
 of X's and Y's DPGR assets)/$50,000 (tax book value of
 X's and Y's total assets)))...........................
Charitable contributions (not included in CGS) ($50 x               (25)
 ($1,800 gross income attributable to DPGR/$3,600 total
 gross income))........................................
Section 174 R&E-SIC AAA................................            (100)
                                                        ----------------
    Y's QPAI...........................................           1,005
------------------------------------------------------------------------

    (iii) Section 199 deduction determination. The section 199 deduction 
of the X and Y EAG is determined by aggregating the separately 
determined QPAI, taxable income, and W-2 wages of X and Y. See Sec. 
1.199-7(b). Accordingly, the X and Y EAG's tentative section 199 
deduction is $217 (.09 x (lesser of combined taxable incomes of X and Y 
of $3,290 (X's taxable income of $1,380 plus Y's taxable income of 
$1,910) and combined QPAI of $2,415 (X's QPAI of $1,410 plus Y's QPAI of 
$1,005)). Because the facts of this example assume that the W-2 wages of 
X and Y are sufficient to avoid a limitation on the section 199 
deduction, X and Y EAG's section 199 deduction for 2010 is $217. The 
$217 is allocated to X and Y in proportion to their QPAI. See Sec. 
1.199-7(c).

    (e) Simplified deduction method--(1) In general. An eligible 
taxpayer may use the simplified deduction method to apportion deductions 
between DPGR and non-DPGR. The simplified deduction method does not 
apply to CGS. Under the simplified deduction method, a taxpayer's 
deductions (except the net operating loss deduction as provided in 
paragraph (c)(2) of this section) are ratably apportioned between DPGR 
and non-DPGR based on relative gross receipts. Accordingly, the amount 
of deductions for the current taxable year apportioned to DPGR is equal 
to the same proportion of the total deductions for the current taxable 
year that the amount of DPGR bears to total gross receipts. Gross 
receipts that are allocable to land under the safe harbor provided in 
Sec. 1.199-3(m)(6)(iv) are treated as non-DPGR. See Sec. 1.199-
3(m)(6)(iv)(B). Whether a trust (to the extent not described in Sec. 
1.199-5(d) or Sec. 1.199-9(d)) or an estate may use the simplified 
deduction method is determined at the trust or estate level. If a trust 
or estate qualifies to use the simplified deduction method, the 
simplified deduction method must be applied at the trust or estate 
level, taking into account the trust's or estate's DPGR, non-DPGR, and 
other items from all sources, including its distributive or allocable 
share of those items of any lower-tier entity, prior to any charitable 
or distribution deduction. Whether the owner of a pass-thru entity may 
use the simplified deduction method is determined at the level of the 
entity's owner. If the owner of a pass-thru entity qualifies and uses 
the simplified deduction method, then the simplified deduction method is 
applied at the level of the owner of the pass-thru entity taking into 
account the owner's DPGR, non-DPGR, and other items from all sources 
including its distributive or allocable share of those items of the 
pass-thru entity.
    (2) Eligible taxpayer. For purposes of this paragraph (e), an 
eligible taxpayer is--
    (i) A taxpayer that has average annual gross receipts (as defined in 
paragraph (g) of this section) of $100,000,000 or less; or
    (ii) A taxpayer that has total assets (as defined in paragraph 
(e)(3) of this section) of $10,000,000 or less.
    (3) Total assets--(i) In general. For purposes of the simplified 
deduction method, total assets means the total assets the taxpayer has 
at the end of the taxable year. In the case of a C corporation, the 
corporation's total assets at the end of the taxable year is the amount 
required to be reported on Schedule L of Form 1120, ``United States 
Corporation Income Tax Return,'' in accordance with the Form 1120 
instructions.
    (ii) Members of an expanded affiliated group. To compute the total 
assets of an EAG, the total assets at the end of the taxable year of 
each corporation that is a member of the EAG at the end of the taxable 
year that ends with or

[[Page 393]]

within the taxable year of the computing member (as described in Sec. 
1.199-7(h)) are aggregated. For purposes of this paragraph, a 
consolidated group is treated as one member of the EAG.
    (4) Members of an expanded affiliated group--(i) In general. Whether 
the members of an EAG may use the simplified deduction method is 
determined by reference to all the members of the EAG. If the average 
annual gross receipts of the EAG are less than or equal to $100,000,000 
or the total assets of the EAG are less than or equal to $10,000,000, 
then each member of the EAG may individually determine whether to use 
the simplified deduction method, regardless of the cost allocation 
method used by the other members.
    (ii) Exception. Notwithstanding paragraph (e)(4)(i) of this section, 
all members of the same consolidated group must use the same cost 
allocation method.
    (iii) Examples. The following examples illustrate the application of 
paragraph (e) of this section:

    Example 1. Corporations X, Y, and Z are the only three members of an 
EAG. Neither X, Y, nor Z is a member of a consolidated group. X, Y, and 
Z have average annual gross receipts of $20,000,000, $70,000,000, and 
$5,000,000, respectively. X, Y, and Z each have total assets at the end 
of the taxable year of $5,000,000. Because the average annual gross 
receipts of the EAG are less than or equal to $100,000,000, each of X, 
Y, and Z may use either the simplified deduction method or the section 
861 method.
    Example 2. The facts are the same as in Example 1 except that X and 
Y are members of the same consolidated group. X, Y, and Z may use either 
the simplified deduction method or the section 861 method. However, X 
and Y must use the same cost allocation method.
    Example 3. The facts are the same as in Example 1 except that Z's 
average annual gross receipts are $15,000,000. Because the average 
annual gross receipts of the EAG are greater than $100,000,000 and the 
total assets of the EAG at the end of the taxable year are greater than 
$10,000,000, X, Y, and Z must each use the section 861 method.

    (f) Small business simplified overall method--(1) In general. A 
qualifying small taxpayer may use the small business simplified overall 
method to apportion CGS and deductions between DPGR and non-DPGR. Under 
the small business simplified overall method, a taxpayer's total costs 
for the current taxable year (as defined in paragraph (f)(3) of this 
section) are apportioned between DPGR and non-DPGR based on relative 
gross receipts. Accordingly, the amount of total costs for the current 
taxable year apportioned to DPGR is equal to the same proportion of 
total costs for the current taxable year that the amount of DPGR bears 
to total gross receipts. Total gross receipts for this purpose do not 
include gross receipts that are allocated to land under the land safe 
harbor provided in Sec. 1.199-3(m)(6)(iv). See Sec. 1.199-
3(m)(6)(iv)(B).
    (2) Qualifying small taxpayer. Except as provided in paragraph 
(f)(5), for purposes of this paragraph (f), a qualifying small taxpayer 
is--
    (i) A taxpayer that has average annual gross receipts (as defined in 
paragraph (g) of this section) of $5,000,000 or less;
    (ii) A taxpayer that is engaged in the trade or business of farming 
that is not required to use the accrual method of accounting under 
section 447; or
    (iii) A taxpayer that is eligible to use the cash method as provided 
in Rev. Proc. 2002-28 (2002-1 C.B. 815) (that is, certain taxpayers with 
average annual gross receipts of $10,000,000 or less that are not 
prohibited from using the cash method under section 448, including 
partnerships, S corporations, C corporations, or individuals). See Sec. 
601.601(d)(2) of this chapter.
    (3) Total costs for the current taxable year--(i) In general. For 
purposes of the small business simplified overall method, total costs 
for the current taxable year means the total CGS and deductions 
(excluding the net operating loss deduction as provided in paragraph 
(c)(2) of this section) for the current taxable year. Total costs for 
the current taxable year are determined under the methods of accounting 
that the taxpayer uses to compute taxable income.
    (ii) Land safe harbor. A taxpayer that uses the land safe harbor 
provided in Sec. 1.199-3(m)(6)(iv) must reduce total costs for the 
current taxable year by the costs of land and any other costs 
capitalized to the land (except costs for activities listed in Sec. 
1.199-3(m)(2)(iii)) prior to applying the small business

[[Page 394]]

simplified overall method. See Sec. 1.199-3(m)(6)(iv)(B). For example, 
if a taxpayer has $1,000 of total costs for the current taxable year and 
$600 of such costs is attributable to land under the land safe harbor, 
then only $400 of such costs is apportioned between DPGR and non-DPGR 
under the small business simplified overall method.
    (4) Members of an expanded affiliated group--(i) In general. Whether 
the members of an EAG may use the small business simplified overall 
method is determined by reference to all the members of the EAG. If the 
average annual gross receipts of the EAG are less than or equal to 
$5,000,000, the EAG (viewed as a single corporation) is engaged in the 
trade or business of farming that is not required to use the accrual 
method of accounting under section 447, or the EAG (viewed as a single 
corporation) is eligible to use the cash method as provided in Rev. 
Proc. 2002-28, then each member of the EAG may individually determine 
whether to use the small business simplified overall method, regardless 
of the cost allocation method used by the other members.
    (ii) Exception. Notwithstanding paragraph (f)(4)(i) of this section, 
all members of the same consolidated group must use the same cost 
allocation method.
    (iii) Examples. The following examples illustrate the application of 
paragraph (f) of this section:

    Example 1. Corporations L, M, and N are the only three members of an 
EAG. Neither L, M, nor N is a member of a consolidated group. L, M, and 
N have average annual gross receipts for the current taxable year of 
$1,000,000, $1,500,000, and $2,000,000, respectively. Because the 
average annual gross receipts of the EAG are less than or equal to 
$5,000,000, each of L, M, and N may use the small business simplified 
overall method, the simplified deduction method, or the section 861 
method.
    Example 2. The facts are the same as in Example 1 except that M and 
N are members of the same consolidated group. L, M, and N may use the 
small business simplified overall method, the simplified deduction 
method, or the section 861 method. However, M and N must use the same 
cost allocation method.
    Example 3. The facts are the same as in Example 1 except that N has 
average annual gross receipts of $4,000,000. Unless the EAG, viewed as a 
single corporation, is engaged in the trade or business of farming that 
is not required to use the accrual method of accounting under section 
447, or the EAG, viewed as a single corporation, is eligible to use the 
cash method as provided in Rev. Proc. 2002-28, because the average 
annual gross receipts of the EAG are greater than $5,000,000, L, M, and 
N are all ineligible to use the small business simplified overall 
method.

    (5) Trusts and estates. Trusts and estates under Sec. Sec. 1.199-
5(e) and 1.199-9(e) may not use the small business simplified overall 
method.
    (g) Average annual gross receipts--(1) In general. For purposes of 
the simplified deduction method and the small business simplified 
overall method, average annual gross receipts means the average annual 
gross receipts of the taxpayer (including gross receipts attributable to 
the sale, exchange, or other disposition of land under the land safe 
harbor provided in Sec. 1.199-3(m)(6)(iv)) for the 3 taxable years (or, 
if fewer, the taxable years during which the taxpayer was in existence) 
preceding the current taxable year, even if one or more of such taxable 
years began before the effective date of section 199. In the case of any 
taxable year of less than 12 months (a short taxable year), the gross 
receipts shall be annualized by multiplying the gross receipts for the 
short period by 12 and dividing the result by the number of months in 
the short period.
    (2) Members of an expanded affiliated group. To compute the average 
annual gross receipts of an EAG, the gross receipts, for the entire 
taxable year, of each corporation that is a member of the EAG at the end 
of its taxable year that ends with or within the taxable year of the 
computing member are aggregated. For purposes of this paragraph, a 
consolidated group is treated as one member of the EAG.

[T.D. 9263, 71 FR 31283, June 1, 2006; 72 FR 5, Jan. 3, 2007; as amended 
by T.D. 9381, 73 FR 8806, Feb. 15, 2008]

[[Page 395]]



Sec. 1.199-5  Application of section 199 to pass-thru entities for 
taxable years beginning after May 17, 2006, the enactment date of 

the Tax Increase Prevention and Reconciliation Act of 2005.

    (a) In general. The provisions of this section apply solely for 
purposes of section 199 of the Internal Revenue Code (Code).
    (b) Partnerships--(1) In general--(i) Determination at partner 
level. The deduction with respect to the qualified production activities 
of the partnership allowable under Sec. 1.199-1(a) (section 199 
deduction) is determined at the partner level. As a result, each partner 
must compute its deduction separately. The section 199 deduction has no 
effect on the adjusted basis of the partner's interest in the 
partnership. Except as provided by publication pursuant to paragraph 
(b)(1)(ii) of this section, for purposes of this section, each partner 
is allocated, in accordance with sections 702 and 704, its share of 
partnership items (including items of income, gain, loss, and 
deduction), cost of goods sold (CGS) allocated to such items of income, 
and gross receipts that are included in such items of income, even if 
the partner's share of CGS and other deductions and losses exceeds 
domestic production gross receipts (DPGR) (as defined in Sec. 1.199-
3(a)). A partnership may specially allocate items of income, gain, loss, 
or deduction to its partners, subject to the rules of section 704(b) and 
the supporting regulations. Guaranteed payments under section 707(c) are 
not considered allocations of partnership income for purposes of this 
section. Guaranteed payments under section 707(c) are deductions by the 
partnership that must be taken into account under the rules of Sec. 
1.199-4. See Sec. 1.199-3(p) and paragraph (b)(6) Example 5 of this 
section. Except as provided in paragraph (b)(1)(ii) of this section, to 
determine its section 199 deduction for the taxable year, a partner 
aggregates its distributive share of such items, to the extent they are 
not otherwise disallowed by the Code, with those items it incurs outside 
the partnership (whether directly or indirectly) for purposes of 
allocating and apportioning deductions to DPGR and computing its 
qualified production activities income (QPAI) (as defined in Sec. 
1.199-1(c)).
    (ii) Determination at entity level. The Secretary may, by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), permit a partnership to calculate 
a partner's share of QPAI and W-2 wages as defined in Sec. 1.199-
2(e)(2) (W-2 wages) at the entity level, instead of allocating to the 
partner, in accordance with sections 702 and 704, the partner's share of 
partnership items (including items of income, gain, loss, and deduction) 
and amounts described in Sec. 1.199-2(e)(1) (paragraph (e)(1) wages). 
If a partnership does calculate QPAI at the entity level--
    (A) Each partner is allocated its share of QPAI (subject to the 
limitations of paragraph (b)(2) of this section) and W-2 wages from the 
partnership, which are combined with the partner's QPAI and W-2 wages 
from other sources, if any;
    (B) For purposes of computing the partner's QPAI under Sec. Sec. 
1.199-1 through 1.199-8, a partner does not take into account the items 
from the partnership (for example, a partner does not take into account 
items from the partnership in determining whether a threshold or de 
minimis rule applies or in allocating and apportioning deductions) in 
calculating its QPAI from other sources;
    (C) A partner generally does not recompute its share of QPAI from 
the partnership using another method; however, the partner might have to 
adjust its share of QPAI from the partnership to take into account 
certain disallowed losses or deductions, or the allowance of suspended 
losses or deductions; and
    (D) A partner's distributive share of QPAI from a partnership may be 
less than zero.
    (2) Disallowed losses or deductions. Except as provided by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), losses or deductions of a 
partnership are taken into account in computing the partner's QPAI for a 
taxable year only if, and to the extent that, the partner's distributive 
share of those losses or deductions from all of the

[[Page 396]]

partnership's activities is not disallowed by section 465, 469, or 
704(d), or any other provision of the Code. If only a portion of the 
partner's distributive share of the losses or deductions from a 
partnership is allowed for a taxable year, a proportionate share of 
those allowed losses or deductions that are allocated to the 
partnership's qualified production activities, determined in a manner 
consistent with sections 465, 469, and 704(d), and any other applicable 
provision of the Code, is taken into account in computing QPAI for that 
taxable year. To the extent that any of the disallowed losses or 
deductions are allowed in a later taxable year under section 465, 469, 
or 704(d), or any other provision of the Code, the partner takes into 
account a proportionate share of those allowed losses or deductions that 
are allocated to the partnership's qualified production activities in 
computing the partner's QPAI for that later taxable year. Losses or 
deductions of the partnership that are disallowed for taxable years 
beginning on or before December 31, 2004, however, are not taken into 
account in a later taxable year for purposes of computing the partner's 
QPAI for that later taxable year, whether or not the losses or 
deductions are allowed for other purposes.
    (3) Partner's share of paragraph (e)(1) wages. Under section 
199(d)(1)(A)(iii), a partner's share of paragraph (e)(1) wages of a 
partnership for purposes of determining the partner's wage limitation 
under section 199(b)(1) (W-2 wage limitation) equals the partner's 
allocable share of those wages. Except as provided by publication in the 
Internal Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this 
chapter), the partnership must allocate the amount of paragraph (e)(1) 
wages among the partners in the same manner it allocates wage expense 
among those partners. The partner must add its share of the paragraph 
(e)(1) wages from the partnership to the partner's paragraph (e)(1) 
wages from other sources, if any. The partner (other than a partner that 
itself is a partnership or S corporation) then must calculate its W-2 
wages by determining the amount of the partner's total paragraph (e)(1) 
wages properly allocable to DPGR. If the partner is a partnership or S 
corporation, the partner must allocate its paragraph (e)(1) wages 
(including the paragraph (e)(1) wages from a lower-tier partnership) 
among its partners or shareholders in the same manner it allocates wage 
expense among those partners or shareholders. See Sec. 1.199-2(e)(2) 
for the computation of W-2 wages and for the proper allocation of any 
such wages to DPGR.
    (4) Transition rule for definition of W-2 wages and for W-2 wage 
limitation. If a partnership and any partner in that partnership have 
different taxable years, only one of which begins after May 17, 2006, 
the definition of W-2 wages of the partnership and the section 
199(d)(1)(A)(iii) rule for determining a partner's share of wages from 
that partnership is determined under the law applicable to partnerships 
based on the beginning date of the partnership's taxable year. Thus, for 
example, for the taxable year of a partnership beginning on or before 
May 17, 2006, a partner's share of W-2 wages from the partnership is 
determined under section 199(d)(1)(A)(iii) as in effect for taxable 
years beginning on or before May 17, 2006, even if the taxable year of 
that partner in which those wages are taken into account begins after 
May 17, 2006.
    (5) Partnerships electing out of subchapter K. For purposes of 
Sec. Sec. 1.199-1 through 1.199-8, the rules of this paragraph (b) 
apply to all partnerships, including those partnerships electing under 
section 761(a) to be excluded, in whole or in part, from the application 
of subchapter K of chapter 1 of the Code.
    (6) Examples. The following examples illustrate the application of 
this paragraph (b). Assume that each partner has sufficient adjusted 
gross income or taxable income so that the section 199 deduction is not 
limited under section 199(a)(1)(B). Assume also that the partnership and 
each of its partners (whether individual or corporate) are calendar year 
taxpayers. The examples read as follows:

    Example 1. Section 861 method with interest expense. (i) Partnership 
Federal income tax items. X and Y, unrelated United States corporations, 
are each 50% partners in PRS, a

[[Page 397]]

partnership that engages in production activities that generate both 
DPGR and non-DPGR. X and Y share all items of income, gain, loss, 
deduction, and credit equally. Both X and Y are engaged in a trade or 
business. PRS is not able to identify from its books and records CGS 
allocable to DPGR and non-DPGR. In this case, because CGS is definitely 
related under the facts and circumstances to all of PRS's gross 
receipts, apportionment of CGS between DPGR and non-DPGR based on gross 
receipts is appropriate. For 2010, the adjusted basis of PRS's business 
assets is $5,000, $4,000 of which generate gross income attributable to 
DPGR and $1,000 of which generate gross income attributable to non-DPGR. 
For 2010, PRS has the following Federal income tax items:

DPGR.........................................................     $3,000
Non-DPGR.....................................................      3,000
CGS..........................................................      3,240
Section 162 selling expenses.................................      1,200
Interest expense (not included in CGS).......................        300
 

    (ii) Allocation of PRS's Federal income tax items. X and Y each 
receive the following distributive share of PRS's Federal income tax 
items, as determined under the principles of Sec. 1.704-1(b)(1)(vii):

Gross income attributable to DPGR ($1,500 (DPGR) - $810             $690
 (allocable CGS))............................................
Gross income attributable to non-DPGR ($1,500 (non-DPGR) -           690
 $810 (allocable CGS)).......................................
Section 162 selling expenses.................................        600
Interest expense (not included in CGS).......................        150
 

    (iii) Determination of QPAI. (A) X's QPAI. Because the section 199 
deduction is determined at the partner level, X determines its QPAI by 
aggregating its distributive share of PRS's Federal income tax items 
with all other such items from all other, non-PRS-related activities. 
For 2010, X does not have any other such items. For 2010, the adjusted 
basis of X's non-PRS assets, all of which are investment assets, is 
$10,000. X's only gross receipts for 2010 are those attributable to the 
allocation of gross income from PRS. X allocates and apportions its 
deductible items to gross income attributable to DPGR under the section 
861 method of Sec. 1.199-4(d). In this case, the section 162 selling 
expenses are not included in CGS and are definitely related to all of 
PRS's gross income. Based on the facts and circumstances of this 
specific case, apportionment of those expenses between DPGR and non-DPGR 
on the basis of PRS's gross receipts is appropriate. X elects to 
apportion its distributive share of interest expense under the tax book 
value method of Sec. 1.861-9T(g). X's QPAI for 2010 is $366, as shown 
in the following table:

DPGR........................................................     $1,500
CGS allocable to DPGR.......................................       (810)
Section 162 selling expenses ($600 x ($1,500 DPGR/$3,000           (300)
 total gross receipts)).....................................
Interest expense (not included in CGS) ($150 x ($2,000 (X's         (24)
 share of PRS's DPGR assets)/$12,500 (X's non-PRS assets
 ($10,000) + X's share of PRS assets ($2,500))))............
                                                             -----------
    X's QPAI................................................        366
 

    (B) Y's QPAI. (1) For 2010, in addition to the activities of PRS, Y 
engages in production activities that generate both DPGR and non-DPGR. Y 
is able to identify from its books and records CGS allocable to DPGR and 
to non-DPGR. For 2010, the adjusted basis of Y's non-PRS assets 
attributable to its production activities that generate DPGR is $8,000 
and to other production activities that generate non-DPGR is $2,000. Y 
has no other assets. Y has the following Federal income tax items 
relating to its non-PRS activities:

Gross income attributable to DPGR ($1,500 (DPGR) - $900             $600
 (allocable CGS))............................................
Gross income attributable to non-DPGR ($3,000 (other gross         1,380
 receipts) -$1,620 (allocable CGS))..........................
Section 162 selling expenses.................................        540
Interest expense (not included in CGS).......................         90
 

    (2) Y determines its QPAI in the same general manner as X. However, 
because Y has other trade or business activities outside of PRS, Y must 
aggregate its distributive share of PRS's Federal income tax items with 
its own such items. Y allocates and apportions its deductible items to 
gross income attributable to DPGR under the section 861 method of Sec. 
1.199-4(d). In this case, Y's distributive share of PRS's section 162 
selling expenses, as well as those selling expenses from Y's non-PRS 
activities, are definitely related to all of its gross income. Based on 
the facts and circumstances of this specific case, apportionment of 
those expenses between DPGR and non-DPGR on the basis of Y's gross 
receipts (including Y's share of PRS's gross receipts) is appropriate. Y 
elects to apportion its distributive share of interest expense under the 
tax book value method of Sec. 1.861-9T(g). Y has $1,290 of gross income 
attributable to DPGR ($3,000 DPGR ($1,500 from PRS and $1,500 from non-
PRS activities)--$1,710 CGS ($810 from PRS and $900 from non-PRS 
activities)). Y's QPAI for 2010 is $642, as shown in the following 
table:

DPGR ($1,500 from PRS and $1,500 from non-PRS activities)....     $3,000
CGS allocable to DPGR ($810 from PRS and $900 from non-PRS       (1,710)
 activities).................................................
Section 162 selling expenses ($1,140 ($600 from PRS and $540       (456)
 from non-PRS activities) x $3,000 ($1,500 PRS DPGR + $1,500
 non-PRS DPGR)/$7,500 ($3,000 PRS total gross receipts +
 $4,500 non-PRS total gross receipts)).......................

[[Page 398]]

 
Interest expense (not included in CGS) ($240 ($150 from PRS        (192)
 and $90 from non-PRS activities) x $10,000 (Y's non-PRS DPGR
 assets ($8,000) + Y's share of PRS DPGR assets ($2,000))/
 $12,500 (Y's non-PRS assets ($10,000) + Y's share of PRS
 assets ($2,500)))...........................................
                                                              ----------
    Y's QPAI.................................................        642
 

    (iv) Determination of section 199 deduction. X's tentative section 
199 deduction is $33 (.09 x $366, that is, QPAI determined at the 
partner level) subject to the W-2 wage limitation (50% of W-2 wages). 
Y's tentative section 199 deduction is $58 (.09 x $642) subject to the 
W-2 wage limitation.
    Example 2. Section 861 method with R&E expense. (i) Partnership 
Federal income tax items. X and Y, unrelated United States corporations 
each of which is engaged in a trade or business, are partners in PRS, a 
partnership that engages in production activities that generate both 
DPGR and non-DPGR. Neither X nor Y is a member of an affiliated group. X 
and Y share all items of income, gain, loss, deduction, and credit 
equally. All of PRS's domestic production activities that generate DPGR 
are within Standard Industrial Classification (SIC) Industry Group AAA 
(SIC AAA). All of PRS's production activities that generate non-DPGR are 
within SIC Industry Group BBB (SIC BBB). PRS is not able to identify 
from its books and records CGS allocable to DPGR and to non-DPGR. In 
this case, because CGS is definitely related under the facts and 
circumstances to all of PRS's gross receipts, apportionment of CGS 
between DPGR and non-DPGR based on gross receipts is appropriate. PRS 
incurs $900 of research and experimentation expenses (R&E) that are 
deductible under section 174, $300 of which are performed with respect 
to SIC AAA and $600 of which are performed with respect to SIC BBB. None 
of the R&E is legally mandated R&E as described in Sec. 1.861-17(a)(4) 
and none is included in CGS. For 2010, PRS has the following Federal 
income tax items:

DPGR (all from sales of products within SIC AAA).............     $3,000
Non-DPGR (all from sales of products within SIC BBB).........      3,000
CGS..........................................................      2,400
Section 162 selling expenses.................................        840
Section 174 R&E-SIC AAA......................................        300
Section 174 R&E-SIC BBB......................................        600
 

    (ii) Allocation of PRS's Federal income tax items. X and Y each 
receive the following distributive share of PRS's Federal income tax 
items, as determined under the principles of Sec. 1.704-1(b)(1)(vii):

Gross income attributable to DPGR ($1,500 (DPGR) - $600             $900
 (CGS))......................................................
Gross income attributable to non-DPGR ($1,500 (other gross           900
 receipts) - $600 (CGS)).....................................
Section 162 selling expenses.................................        420
Section 174 R&E-SIC AAA......................................        150
Section 174 R&E-SIC BBB......................................        300
 

    (iii) Determination of QPAI. (A) X's QPAI. Because the section 199 
deduction is determined at the partner level, X determines its QPAI by 
aggregating its distributive share of PRS's Federal income tax items 
with all other such items from all other, non-PRS-related activities. 
For 2010, X does not have any other such tax items. X's only gross 
receipts for 2010 are those attributable to the allocation of gross 
income from PRS. As stated, all of PRS's domestic production activities 
that generate DPGR are within SIC AAA. X allocates and apportions its 
deductible items to gross income attributable to DPGR under the section 
861 method of Sec. 1.199-4(d). In this case, the section 162 selling 
expenses are definitely related to all of PRS's gross income. Based on 
the facts and circumstances of this specific case, apportionment of 
those expenses between DPGR and non-DPGR on the basis of PRS's gross 
receipts is appropriate. For purposes of apportioning R&E, X elects to 
use the sales method as described in Sec. 1.861-17(c). Because X has no 
direct sales of products, and because all of PRS's SIC AAA sales 
attributable to X's share of PRS's gross income generate DPGR, all of 
X's share of PRS's section 174 R&E attributable to SIC AAA is taken into 
account for purposes of determining X's QPAI. Thus, X's total QPAI for 
2010 is $540, as shown in the following table:

DPGR (all from sales of products within SIC AAA).............     $1,500
CGS..........................................................      (600)
Section 162 selling expenses ($420) x ($1,500 DPGR/$3,000          (210)
 total gross receipts))......................................
Section 174 R&E-SIC AAA......................................      (150)
                                                              ----------
    X's QPAI.................................................        540
 

    (B) Y's QPAI. (1) For 2010, in addition to the activities of PRS, Y 
engages in domestic production activities that generate both DPGR and 
non-DPGR. With respect to those non-PRS activities, Y is not able to 
identify from its books and records CGS allocable to DPGR and to non-
DPGR. In this case, because non-PRS CGS is definitely related under the 
facts and circumstances to all of Y's non-PRS gross receipts, 
apportionment of non-PRS CGS between DPGR and non-DPGR based on Y's non-
PRS gross receipts is appropriate. For 2010, Y has the following non-PRS 
Federal income tax items:

DPGR (from sales of products within SIC AAA).................     $1,500
DPGR (from sales of products within SIC BBB).................      1,500
Non-DPGR (from sales of products within SIC BBB).............      3,000
CGS (allocated to DPGR within SIC AAA).......................        750
CGS (allocated to DPGR within SIC BBB).......................        750
CGS (allocated to non-DPGR within SIC BBB)...................      1,500
Section 162 selling expenses.................................        540
Section 174 R&E-SIC AAA......................................        300
Section 174 R&E-SIC BBB......................................        450
 


[[Page 399]]

    (2) Because Y has DPGR as a result of activities outside PRS, Y must 
aggregate its distributive share of PRS's Federal income tax items with 
such items from all its other, non-PRS-related activities. Y allocates 
and apportions its deductible items to gross income attributable to DPGR 
under the section 861 method of Sec. 1.199-4(d). In this case, the 
section 162 selling expenses are definitely related to all of Y's gross 
income. Based on the facts and circumstances of the specific case, 
apportionment of such expenses between DPGR and non-DPGR on the basis of 
Y's gross receipts (including Y's share of PRS's gross receipts) is 
appropriate. For purposes of apportioning R&E, Y elects to use the sales 
method as described in Sec. 1.861-17(c).
    (3) With respect to sales that generate DPGR, Y has gross income of 
$2,400 ($4,500 DPGR ($1,500 from PRS and $3,000 from non-PRS activities) 
- $2,100 CGS ($600 from sales of products by PRS and $1,500 from non-PRS 
activities)). Because all of the sales in SIC AAA generate DPGR, all of 
Y's share of PRS's section 174 R&E attributable to SIC AAA and the 
section 174 R&E attributable to SIC AAA that Y incurs in its non-PRS 
activities are taken into account for purposes of determining Y's QPAI. 
Because only a portion of the sales within SIC BBB generate DPGR, only a 
portion of the section 174 R&E attributable to SIC BBB is taken into 
account in determining Y's QPAI. Thus, Y's QPAI for 2010 is $1,282, as 
shown in the following table:

DPGR ($4,500 DPGR ($1,500 from PRS and $3,000 from non-PRS       $4,500
 activities))...............................................
CGS ($600 from sales of products by PRS and $1,500 from non-     (2,100)
 PRS activities)............................................
Section 162 selling expenses ($960 ($420 from PRS + $540           (480)
 from non-PRS activities) x ($4,500 DPGR/$9,000 total gross
 receipts)).................................................
Section 174 R&E-SIC AAA ($150 from PRS and $300 from non-PRS       (450)
 activities)................................................
Section 174 R&E-SIC BBB ($750 ($300 from PRS + $450 from non-      (188)
 PRS activities) x ($1,500 DPGR/$6,000 total gross receipts
 allocated to SIC BBB ($1,500 from PRS + $4,500 from non-PRS
 activities))...............................................
                                                             -----------
    Y's QPAI................................................      1,282
 

    (iv) Determination of section 199 deduction. X's tentative section 
199 deduction is $49 (.09 x $540, that is, QPAI determined at the 
partner level) subject to the W-2 wage limitation (50% of W-2 wages). 
Y's tentative section 199 deduction is $115 (.09 x $1,282) subject to 
the W-2 wage limitation.
    Example 3. Partnership with special allocations. (i) In general. X 
and Y are unrelated corporate partners in PRS and each is engaged in a 
trade or business. PRS is a partnership that engages in a domestic 
production activity and other activities. In general, X and Y share all 
partnership items of income, gain, loss, deduction, and credit equally, 
except that 80% of the wage expense of PRS and 20% of PRS's other 
expenses are specially allocated to X. Under all the facts and 
circumstances, these special allocations have substantial economic 
effect under section 704(b). In the 2010 taxable year, PRS's only wage 
expense is $2,000 for marketing, which is not included in CGS. PRS has 
$8,000 of gross receipts ($6,000 of which is DPGR), $4,000 of CGS 
($3,500 of which is allocable to DPGR), and $3,000 of deductions 
(comprised of $2,000 of wage expense for marketing and $1,000 of other 
expenses). X qualifies for and uses the simplified deduction method 
under Sec. 1.199-4(e). Y does not qualify to use that method and, 
therefore, must use the section 861 method under Sec. 1.199-4(d). In 
the 2010 taxable year, X has gross receipts attributable to non-
partnership trade or business activities of $1,000 and wage expense of 
$200. None of X's non-PRS gross receipts is DPGR. For purposes of this 
Example 3, with regard to both X and PRS, paragraph (e)(1) wages equal 
wage expense for the 2010 taxable year.
    (ii) Allocation and apportionment of costs. Under the partnership 
agreement, X's distributive share of the Federal income tax items of PRS 
is $1,250 of gross income attributable to DPGR ($3,000 DPGR-$1,750 
allocable CGS), $750 of gross income attributable to non-DPGR ($1,000 
non-DPGR-$250 allocable CGS), and $1,800 of deductions (comprised of X's 
special allocations of $1,600 of wage expense ($2,000 x 80%) for 
marketing and $200 of other expenses ($1,000 x 20%)). Under the 
simplified deduction method, X apportions $1,200 of other deductions to 
DPGR ($2,000 ($1,800 from the partnership and $200 from non-partnership 
activities) x ($3,000 DPGR/$5,000 total gross receipts)). Accordingly, 
X's QPAI is $50 ($3,000 DPGR - $1,750 CGS-$1,200 of deductions). X has 
$1,800 of paragraph (e)(1) wages ($1,600 (X's 80% share) from PRS + $200 
(X's own non-PRS paragraph (e)(1) wages)). To calculate its W-2 wages, X 
must determine how much of this $1,800 is properly allocable under Sec. 
1.199-2(e)(2) to X's total DPGR (including X's share of DPGR from PRS). 
Thus, X's tentative section 199 deduction for the 2010 taxable year is 
$5 (.09 x $50), subject to the W-2 wage limitation (50% of X's W-2 
wages).
    Example 4. Partnership with no paragraph (e)(1) wages. (i) Facts. A 
and B, both individuals, are partners in PRS. PRS is a partnership that 
engages in manufacturing activities that generate both DPGR and non-
DPGR. A and B share all items of income, gain, loss, deduction, and 
credit equally. For the 2010 taxable year, PRS has total gross receipts 
of $2,000 ($1,000 of which is DPGR), CGS of $400 and deductions of $800. 
PRS has no paragraph (e)(1) wages. Each partner's distributive share of 
PRS's Federal income tax items is $500 DPGR, $500 non-DPGR, $200 CGS, 
and $400 of deductions. A has trade or business activities outside of 
PRS (non-PRS activities). With respect to those activities,

[[Page 400]]

A has total gross receipts of $1,000 ($500 of which is DPGR), CGS of 
$400 (including $50 of paragraph (e)(1) wages), and deductions of $200 
for the 2010 taxable year. B has no trade or business activities outside 
of PRS. A and B each use the small business simplified overall method 
under Sec. 1.199-4(f).
    (ii) A's QPAI. A's total CGS and deductions apportioned to DPGR 
equal $600 (($1,200 ($200 PRS CGS + $400 non-PRS CGS + $400 PRS 
deductions + $200 non-PRS trade or business deductions)) x ($1,000 total 
DPGR ($500 from PRS + $500 from non-PRS activities)/$2,000 total gross 
receipts ($1,000 from PRS + $1,000 from non-PRS activities))). 
Accordingly, A's QPAI is $400 ($1,000 DPGR ($500 from PRS + $500 from 
non-PRS activities) - $600 CGS and deductions).
    (iii) A's W-2 wages and section 199 deduction. A has $50 of 
paragraph (e)(1) wages ($0 from PRS + $50 from A's non-PRS activities). 
To calculate A's W-2 wages, A determines, under a reasonable method 
satisfactory to the Secretary, that $40 of this $50 is properly 
allocable under Sec. 1.199-2(e)(2) to A's DPGR from PRS and non-PRS 
activities. A's tentative section 199 deduction is $36 (.09 x $400), 
subject to the W-2 wage limitation of $20 (50% of W-2 wages of $40). 
Thus, A's section 199 deduction is $20.
    (iv) B's QPAI and section 199 deduction. B's CGS and deductions 
apportioned to DPGR equal $300 (($200 PRS CGS + $400 PRS deductions) x 
($500 DPGR from PRS /$1,000 total gross receipts from PRS)). 
Accordingly, B's QPAI is $200 ($500 DPGR - $300 CGS and deductions). B's 
tentative section 199 deduction is $18 (.09 x $200), subject to the W-2 
wage limitation. In this case, however, the limitation is $0, because B 
has no paragraph (e)(1) wages. Thus, B's section 199 deduction is $0.
    Example 5. Guaranteed payment. (i) Facts. The facts are the same as 
in Example 4, except that in 2010 PRS also makes a guaranteed payment of 
$200 to A for services rendered by A (see section 707(c)), and PRS 
incurs $200 of wage expense for employees' salary, which is included 
within the $400 of CGS (in this case the wage expense of $200 equals 
PRS's paragraph (e)(1) wages). The guaranteed payment is taxable to A as 
ordinary income and is properly deducted by PRS under section 162. 
Pursuant to Sec. 1.199-3(p), A may not treat any part of this payment 
as DPGR. Accordingly, PRS has total gross receipts of $2,000 ($1,000 of 
which is DPGR), CGS of $400 (including $200 of wage expense) and 
deductions of $1,000 (including the $200 guaranteed payment) for the 
2010 taxable year. Each partner's distributive share of the items of the 
partnership is $500 DPGR, $500 non-DPGR, $200 CGS (including $100 of 
wage expense), and $500 of deductions.
    (ii) A's QPAI and W-2 wages. A's total CGS and deductions 
apportioned to DPGR equal $591 ($1,300 ($200 PRS CGS + $400 non-PRS CGS 
+ $500 PRS deductions + $200 non-PRS trade or business deductions) x 
($1,000 total DPGR ($500 from PRS + $500 from non-PRS activities)/$2,200 
total gross receipts ($1,000 from PRS + $200 guaranteed payment + $1,000 
from non-PRS activities))). Accordingly, A's QPAI is $409 ($1,000 DPGR-
$591 CGS and other deductions). A's total paragraph (e)(1) wages are 
$150 ($100 from PRS + $50 from non-PRS activities). To calculate its W-2 
wages, A must determine how much of this $150 is properly allocable 
under Sec. 1.199-2(e)(2) to A's total DPGR from PRS and non-PRS 
activities. A's tentative section 199 deduction is $37 (.09 x $409), 
subject to the W-2 wage limitation (50% of W-2 wages).
    (iii) B's QPAI and W-2 wages. B's QPAI is $150 ($500 DPGR-$350 CGS 
and other deductions). B has $100 of paragraph (e)(1) wages (all from 
PRS). To calculate its W-2 wages, B must determine how much of this $100 
is properly allocable under Sec. 1.199-2(e)(2) to B's total DPGR. B's 
tentative section 199 deduction is $14 (.09 x $150), subject to the W-2 
wage limitation (50% of B's W-2 wages).

    (c) S corporations--(1) In general--(i) Determination at shareholder 
level. The section 199 deduction with respect to the qualified 
production activities of an S corporation is determined at the 
shareholder level. As a result, each shareholder must compute its 
deduction separately. The section 199 deduction has no effect on the 
adjusted basis of a shareholder's stock in an S corporation. Except as 
provided by publication pursuant to paragraph (c)(1)(ii) of this 
section, for purposes of this section, each shareholder is allocated, in 
accordance with section 1366, its pro rata share of S corporation items 
(including items of income, gain, loss, and deduction), CGS allocated to 
such items of income, and gross receipts included in such items of 
income, even if the shareholder's share of CGS and other deductions and 
losses exceeds DPGR. Except as provided by publication under paragraph 
(c)(1)(ii) of this section, to determine its section 199 deduction for 
the taxable year, the shareholder aggregates its pro rata share of such 
items, to the extent they are not otherwise disallowed by the Code, with 
those items it incurs outside the S corporation (whether directly or 
indirectly) for purposes of allocating and apportioning deductions to 
DPGR and computing its QPAI.
    (ii) Determination at entity level. The Secretary may, by 
publication in the Internal Revenue Bulletin (see

[[Page 401]]

Sec. 601.601(d)(2)(ii)(b) of this chapter), permit an S corporation to 
calculate a shareholder's share of QPAI and W-2 wages at the entity 
level, instead of allocating to the shareholder, in accordance with 
section 1366, the shareholder's pro rata share of S corporation items 
(including items of income, gain, loss, and deduction) and paragraph 
(e)(1) wages. If an S corporation does calculate QPAI at the entity 
level--
    (A) Each shareholder is allocated its share of QPAI (subject to the 
limitations of paragraph (c)(2) of this section) and W-2 wages from the 
S corporation, which are combined with the shareholder's QPAI and W-2 
wages from other sources, if any;
    (B) For purposes of computing the shareholder's QPAI under 
Sec. Sec. 1.199-1 through 1.199-8, a shareholder does not take into 
account the items from the S corporation (for example, a shareholder 
does not take into account items from the S corporation in determining 
whether a threshold or de minimis rule applies or in allocating and 
apportioning deductions) in calculating its QPAI from other sources;
    (C) A shareholder generally does not recompute its share of QPAI 
from the S corporation using another method; however, the shareholder 
might have to adjust its share of QPAI from the S corporation to take 
into account certain disallowed losses or deductions, or the allowance 
of suspended losses or deductions; and
    (D) A shareholder's share of QPAI from an S corporation may be less 
than zero.
    (2) Disallowed losses or deductions. Except as provided by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), losses or deductions of the S 
corporation are taken into account in computing the shareholder's QPAI 
for a taxable year only if, and to the extent that, the shareholder's 
pro rata share of the losses or deductions from all of the S 
corporation's activities is not disallowed by section 465, 469, or 
1366(d), or any other provision of the Code. If only a portion of the 
shareholder's share of the losses or deductions from an S corporation is 
allowed for a taxable year, a proportionate share of those allowed 
losses or deductions that are allocated to the S corporation's qualified 
production activities, determined in a manner consistent with sections 
465, 469, and 1366(d), and any other applicable provision of the Code, 
is taken into account in computing QPAI for that taxable year. To the 
extent that any of the disallowed losses or deductions are allowed in a 
later taxable year under section 465, 469, or 1366(d), or any other 
provision of the Code, the shareholder takes into account a 
proportionate share of those allowed losses or deductions that are 
allocated to the S corporation's qualified production activities in 
computing the shareholder's QPAI for that later taxable year. Losses or 
deductions of the S corporation that are disallowed for taxable years 
beginning on or before December 31, 2004, however, are not taken into 
account in a later taxable year for purposes of computing the 
shareholder's QPAI for that later taxable year, whether or not the 
losses or deductions are allowed for other purposes.
    (3) Shareholder's share of paragraph (e)(1) wages. Under section 
199(d)(1)(A)(iii), an S corporation shareholder's share of the paragraph 
(e)(1) wages of the S corporation for purposes of determining the 
shareholder's W-2 wage limitation equals the shareholder's allocable 
share of those wages. Except as provided by publication in the Internal 
Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this chapter), the S 
corporation must allocate the paragraph (e)(1) wages among the 
shareholders in the same manner it allocates wage expense among those 
shareholders. The shareholder then must add its share of the paragraph 
(e)(1) wages from the S corporation to the shareholder's paragraph 
(e)(1) wages from other sources, if any, and then must determine the 
portion of those total paragraph (e)(1) wages allocable to DPGR to 
compute the shareholder's W-2 wages. See Sec. 1.199-2(e)(2) for the 
computation of W-2 wages and for the proper allocation of such wages to 
DPGR.
    (4) Transition rule for definition of W-2 wages and for W-2 wage 
limitation. If an S corporation and any of its shareholders have 
different taxable years, only one of which begins after May 17, 2006, 
the definition of W-2 wages of the

[[Page 402]]

S corporation and the section 199(d)(1)(A)(iii) rule for determining a 
shareholder's share of wages from that S corporation is determined under 
the law applicable to S corporations based on the beginning date of the 
S corporation's taxable year. Thus, for example, for the short taxable 
year of an S corporation beginning after May 17, 2006, and ending in 
2006, a shareholder's share of W-2 wages from the S corporation is 
determined under section 199(d)(1)(A)(iii) for taxable years beginning 
after May 17, 2006, even if that shareholder's taxable year began on or 
before May 17, 2006.
    (d) Grantor trusts. To the extent that the grantor or another person 
is treated as owning all or part (the owned portion) of a trust under 
sections 671 through 679, such person (owner) computes its QPAI with 
respect to the owned portion of the trust as if that QPAI had been 
generated by activities performed directly by the owner. Similarly, for 
purposes of the W-2 wage limitation, the owner of the trust takes into 
account the owner's share of the paragraph (e)(1) wages of the trust 
that are attributable to the owned portion of the trust. The provisions 
of paragraph (e) of this section do not apply to the owned portion of a 
trust.
    (e) Non-grantor trusts and estates--(1) Allocation of costs. The 
trust or estate calculates each beneficiary's share (as well as the 
trust's or estate's own share, if any) of QPAI and W-2 wages from the 
trust or estate at the trust or estate level. The beneficiary of a trust 
or estate may not recompute its share of QPAI or W-2 wages from the 
trust or estate by using another method to reallocate the trust's or 
estate's qualified production costs or paragraph (e)(1) wages, or 
otherwise. Except as provided in paragraph (d) of this section, the QPAI 
of a trust or estate must be computed by allocating expenses described 
in section 199(d)(5) in one of two ways, depending on the classification 
of those expenses under Sec. 1.652(b)-3. Specifically, directly 
attributable expenses within the meaning of Sec. 1.652(b)-3 are 
allocated pursuant to Sec. 1.652(b)-3, and expenses not directly 
attributable within the meaning of Sec. 1.652(b)-3 (other expenses) are 
allocated under the simplified deduction method of Sec. 1.199-4(e) 
(unless the trust or estate does not qualify to use the simplified 
deduction method, in which case it must use the section 861 method of 
Sec. 1.199-4(d) with respect to such other expenses). For this purpose, 
depletion and depreciation deductions described in section 642(e) and 
amortization deductions described in section 642(f) are treated as other 
expenses described in section 199(d)(5). Also for this purpose, the 
trust's or estate's share of other expenses from a lower-tier pass-thru 
entity is not directly attributable to any class of income (whether or 
not those other expenses are directly attributable to the aggregate 
pass-thru gross income as a class for purposes other than section 199). 
A trust or estate may not use the small business simplified overall 
method for computing its QPAI. See Sec. 1.199-4(f)(5).
    (2) Allocation among trust or estate and beneficiaries--(i) In 
general. The QPAI of a trust or estate (which will be less than zero if 
the CGS and deductions allocated and apportioned to DPGR exceed the 
trust's or estate's DPGR) and W-2 wages of a trust or estate are 
allocated to each beneficiary and to the trust or estate based on the 
relative proportion of the trust's or estate's distributable net income 
(DNI), as defined by section 643(a), for the taxable year that is 
distributed or required to be distributed to the beneficiary or is 
retained by the trust or estate. For this purpose, the trust or estate's 
DNI is determined with regard to the separate share rule of section 
663(c), but without regard to section 199. To the extent that the trust 
or estate has no DNI for the taxable year, any QPAI and W-2 wages are 
allocated entirely to the trust or estate. A trust or estate is allowed 
the section 199 deduction in computing its taxable income to the extent 
that QPAI and W-2 wages are allocated to the trust or estate. A 
beneficiary of a trust or estate is allowed the section 199 deduction in 
computing its taxable income based on its share of QPAI and W-2 wages 
from the trust or estate, which are aggregated with the beneficiary's 
QPAI and W-2 wages from other sources, if any.
    (ii) Treatment of items from a trust or estate reporting qualified 
production activities income. When, pursuant to this

[[Page 403]]

paragraph (e), a taxpayer must combine QPAI and W-2 wages from a trust 
or estate with the taxpayer's total QPAI and W-2 wages from other 
sources, the taxpayer, when applying Sec. Sec. 1.199-1 through 1.199-8 
to determine the taxpayer's total QPAI and W-2 wages from such other 
sources, does not take into account the items from such trust or estate. 
Thus, for example, a beneficiary of an estate that receives QPAI from 
the estate does not take into account the beneficiary's distributive 
share of the estate's gross receipts, gross income, or deductions when 
the beneficiary determines whether a threshold or de minimis rule 
applies or when the beneficiary allocates and apportions deductions in 
calculating its QPAI from other sources. Similarly, in determining the 
portion of the beneficiary's paragraph (e)(1) wages from other sources 
that is attributable to DPGR (thus, the W-2 wages from other sources), 
the beneficiary does not take into account DPGR and non-DPGR from the 
trust or estate.
    (3) Transition rule for definition of W-2 wages and for W-2 wage 
limitation. The definition of W-2 wages of a trust or estate and the 
section 199(d)(1)(A)(iii) rule for determining the respective shares of 
wages from that trust or estate, and thus the beneficiary's share of W-2 
wages from that trust or estate, is determined under the law applicable 
to pass-thru entities based on the beginning date of the taxable year of 
the trust or estate, regardless of the beginning date of the taxable 
year of the beneficiary.
    (4) Example. The following example illustrates the application of 
this paragraph (e). Assume that the partnership, trust, and trust 
beneficiary all are calendar year taxpayers. The example reads as 
follows:

    Example. (i) Computation of DNI and inclusion and deduction amounts. 
(A) Trust's distributive share of partnership items. Trust, a complex 
trust, is a partner in PRS, a partnership that engages in activities 
that generate DPGR and non-DPGR. In 2010, PRS distributes $10,000 cash 
to Trust. PRS properly allocates (in the same manner as wage expense) 
paragraph (e)(1) wages of $3,000 to Trust. Trust's distributive share of 
PRS items, which are properly included in Trust's DNI, is as follows:

Gross income attributable to DPGR ($15,000 DPGR-$5,000 CGS       $10,000
 (including wage expense of $1,000)).........................
Gross income attributable to non-DPGR ($5,000 other gross          5,000
 receipts-$0 CGS)............................................
Selling expenses attributable to DPGR (includes wage expense       3,000
 of $2,000)..................................................
Other expenses (includes wage expense of $1,000).............      2,000
 

    (B) Trust's direct activities. In addition to its cash distribution 
in 2010 from PRS, Trust directly has the following items which are 
properly included in Trust's DNI:

Dividends....................................................    $10,000
Tax-exempt interest..........................................     10,000
Rents from commercial real property operated by Trust as a        10,000
 business....................................................
Real estate taxes............................................      1,000
Trustee commissions..........................................      3,000
State income and personal property taxes.....................      5,000
Wage expense for rental business (direct paragraph (e)(1)          2,000
 wages)......................................................
Other business expenses......................................      1,000
 

    (C) Allocation of deductions under Sec. 1.652(b)-3. (1) Directly 
attributable expenses. In computing Trust's DNI for the taxable year, 
the distributive share of expenses of PRS are directly attributable 
under Sec. 1.652(b)-3(a) to the distributive share of income of PRS. 
Accordingly, the $5,000 of CGS, $3,000 of selling expenses, and $2,000 
of other expenses are subtracted from the gross receipts from PRS 
($20,000), resulting in net income from PRS of $10,000. With respect to 
the Trust's direct expenses, $1,000 of the trustee commissions, the 
$1,000 of real estate taxes, and the $2,000 of wage expense are directly 
attributable under Sec. 1.652(b)-3(a) to the rental income.
    (2) Non-directly attributable expenses. Under Sec. 1.652(b)-3(b), 
the trustee must allocate a portion of the sum of the balance of the 
trustee commissions ($2,000), state income and personal property taxes 
($5,000), and the other business expenses ($1,000) to the $10,000 of 
tax-exempt interest. The portion to be attributed to tax-exempt interest 
is $2,222 ($8,000 x ($10,000 tax exempt interest/$36,000 gross receipts 
net of direct expenses)), resulting in $7,778 ($10,000-$2,222) of net 
tax-exempt interest. Pursuant to its authority recognized under Sec. 
1.652(b)-3(b), the trustee allocates the entire amount of the remaining 
$5,778 of trustee commissions, state income and personal property taxes, 
and other business expenses to the $6,000 of net rental income, 
resulting in $222 ($6,000-$5,778) of net rental income.
    (D) Amounts included in taxable income. For 2010, Trust has DNI of 
$28,000 (net dividend income of $10,000 + net PRS income of $10,000 + 
net rental income of $222 + net tax-exempt income of $7,778). Pursuant 
to Trust's governing instrument, Trustee distributes 50%, or $14,000, of 
that DNI to B, an individual who is a discretionary beneficiary of 
Trust. Assume that there are no separate shares under Trust, and no 
distributions are made

[[Page 404]]

to any other beneficiary that year. Consequently, with respect to the 
$14,000 distribution B receives from Trust, B properly includes in B's 
gross income $5,000 of income from PRS, $111 of rents, and $5,000 of 
dividends, and properly excludes from B's gross income $3,889 of tax-
exempt interest. Trust includes $20,222 in its adjusted total income and 
deducts $10,111 under section 661(a) in computing its taxable income.
    (ii) Section 199 deduction. (A) Simplified deduction method. For 
purposes of computing the section 199 deduction for the taxable year, 
assume Trust qualifies for the simplified deduction method under Sec. 
1.199-4(e). The determination of Trust's QPAI under the simplified 
deduction method requires multiple steps to allocate costs. First, the 
Trust's expenses directly attributable to DPGR under Sec. 1.652(b)-3(a) 
are subtracted from the Trust's DPGR. In this step, the directly 
attributable $5,000 of CGS and selling expenses of $3,000 are subtracted 
from the $15,000 of DPGR from PRS. Second, the Trust's expenses directly 
attributable under Sec. 1.652(b)-3(a) to non-DPGR from a trade or 
business are subtracted from the Trust's trade or business non-DPGR. In 
this step, $4,000 of Trust expenses directly allocable to the real 
property rental activity ($1,000 of real estate taxes, $1,000 of Trustee 
commissions, and $2,000 of wages) are subtracted from the $10,000 of 
rental income. Third, Trust must identify the portion of its other 
expenses that is attributable to Trust's trade or business activities, 
if any, because expenses not attributable to trade or business 
activities are not taken into account in computing QPAI. In this step, 
in this example, the portion of the trustee commissions not directly 
attributable to the rental operation ($2,000) is directly attributable 
to non-trade or business activities. In addition, the state income and 
personal property taxes are not directly attributable under Sec. 
1.652(b)-3(a) to either trade or business or non-trade or business 
activities, so the portion of those taxes not attributable to either the 
PRS interests or the rental operation is not a trade or business expense 
and, thus, is not taken into account in computing QPAI. The portion of 
the state income and personal property taxes that is treated as an other 
trade or business expense is $3,000 ($5,000 x $30,000 total trade or 
business gross receipts/$50,000 total gross receipts). Fourth, Trust 
then allocates its other trade or business expenses (not directly 
attributable under Sec. 1.652(b)-3(a)) between DPGR and non-DPGR on the 
basis of its total gross receipts from the conduct of a trade or 
business ($20,000 from PRS + $10,000 rental income). Thus, Trust 
combines its non-directly attributable (other) business expenses ($2,000 
from PRS + $4,000 ($1,000 of other business expenses + $3,000 of income 
and property taxes allocated to a trade or business) from its own 
activities) and then apportions this total ($6,000) between DPGR and 
other receipts on the basis of Trust's total trade or business gross 
receipts ($6,000 of such expenses x $15,000 DPGR/$30,000 total trade or 
business gross receipts = $3,000). Thus, for purposes of computing 
Trust's and B's section 199 deduction, Trust's QPAI is $4,000 ($7,000 
($15,000 DPGR-$5,000 CGS-$3,000 selling expenses)-$3,000). Because the 
distribution of Trust's DNI to B equals one-half of Trust's DNI, Trust 
and B each has QPAI from PRS for purposes of the section 199 deduction 
of $2,000. B has $1,000 of QPAI from non-Trust activities that is added 
to the $2,000 QPAI from Trust for a total of $3,000 of QPAI.
    (B) W-2 wages. For the 2010 taxable year, Trust chooses to use the 
wage expense safe harbor under Sec. 1.199-2(e)(2)(ii) to determine its 
W-2 wages. For its taxable year ending December 31, 2010, Trust has 
$5,000 ($3,000 from PRS + $2,000 of Trust) of paragraph (e)(1) wages 
reported on 2010 Forms W-2. Trust's W-2 wages are $2,917, as shown in 
the following table:

Wage expense included in CGS directly attributable to DPGR...     $1,000
Wage expense included in selling expense directly                  2,000
 attributable to DPGR........................................
Wage expense included in non-directly attributable deductions        500
 ($1,000 in wage expense x ($15,000 DPGR/$30,000 total trade
 or business gross receipts))................................
                                                              ----------
    Wage expense allocable to DPGR...........................      3,500
    W-2 wages (($3,500 of wage expense allocable to DPGR/         $2,917
     $6,000 of total wage expense) x $5,000 in paragraph
     (e)(1) wages)...........................................
 

    (C) Section 199 deduction computation. (1) B's computation. B is 
eligible to use the small business simplified overall method. Assume 
that B has sufficient adjusted gross income so that the section 199 
deduction is not limited under section 199(a)(1)(B). Because the $14,000 
Trust distribution to B equals one-half of Trust's DNI, B has W-2 wages 
from Trust of $1,459 (50% x $2,917). B has W-2 wages of $100 from trade 
or business activities outside of Trust and attributable to DPGR 
(computed without regard to B's interest in Trust pursuant to Sec. 
1.199-2(e)) for a total of $1,559 of W-2 wages. B has $1,000 of QPAI 
from non-Trust activities that is added to the $2,000 QPAI from Trust 
for a total of $3,000 of QPAI. B's tentative deduction is $270 (.09 x 
$3,000), limited under the W-2 wage limitation to $780 (50% x $1,559 W-2 
wages). Accordingly, B's section 199 deduction for 2010 is $270.
    (2) Trust's computation. Trust has sufficient adjusted gross income 
so that the section 199 deduction is not limited under section 
199(a)(1)(B). Because the $14,000 Trust distribution to B equals one-
half of Trust's DNI, Trust has W-2 wages of $1,459 (50% x $2,917). 
Trust's tentative deduction is $180 (.09 x $2,000 QPAI), limited under 
the W-2 wage

[[Page 405]]

limitation to $730 (50% x $1,459 W-2 wages). Accordingly, Trust's 
section 199 deduction for 2010 is $180.

    (f) Gain or loss from the disposition of an interest in a pass-thru 
entity. DPGR generally does not include gain or loss recognized on the 
sale, exchange, or other disposition of an interest in a pass-thru 
entity. However, with respect to a partnership, if section 751(a) or (b) 
applies, then gain or loss attributable to assets of the partnership 
giving rise to ordinary income under section 751(a) or (b), the sale, 
exchange, or other disposition of which would give rise to DPGR, is 
taken into account in computing the partner's section 199 deduction. 
Accordingly, to the extent that cash or property received by a partner 
in a sale or exchange of all or part of its partnership interest is 
attributable to unrealized receivables or inventory items within the 
meaning of section 751(c) or (d), respectively, and the sale or exchange 
of the unrealized receivable or inventory items would give rise to DPGR 
if sold, exchanged, or otherwise disposed of by the partnership, the 
cash or property received by the partner is taken into account by the 
partner in determining its DPGR for the taxable year. Likewise, to the 
extent that a distribution of property to a partner is treated under 
section 751(b) as a sale or exchange of property between the partnership 
and the distributee partner, and any property deemed sold or exchanged 
would give rise to DPGR if sold, exchanged, or otherwise disposed of by 
the partnership, the deemed sale or exchange of the property must be 
taken into account in determining the partnership's and distributee 
partner's DPGR to the extent not taken into account under the qualifying 
in-kind partnership rules. See Sec. Sec. 1.751-1(b) and 1.199-3(i)(7).
    (g) No attribution of qualified activities. Except as provided in 
Sec. 1.199-3(i)(7) regarding qualifying in-kind partnerships and Sec. 
1.199-3(i)(8) regarding EAG partnerships, an owner of a pass-thru entity 
is not treated as conducting the qualified production activities of the 
pass-thru entity, and vice versa. This rule applies to all partnerships, 
including partnerships that have elected out of subchapter K under 
section 761(a). Accordingly, if a partnership manufactures QPP within 
the United States, or produces a qualified film or produces utilities in 
the United States, and distributes or leases, rents, licenses, sells, 
exchanges, or otherwise disposes of such property to a partner who then, 
without performing its own qualifying activity, leases, rents, licenses, 
sells, exchanges, or otherwise disposes of such property, then the 
partner's gross receipts from this latter lease, rental, license, sale, 
exchange, or other disposition are treated as non-DPGR. In addition, if 
a partner manufactures QPP within the United States, or produces a 
qualified film or produces utilities in the United States, and 
contributes or leases, rents, licenses, sells, exchanges, or otherwise 
disposes of such property to a partnership which then, without 
performing its own qualifying activity, leases, rents, licenses, sells, 
exchanges, or otherwise disposes of such property, then the 
partnership's gross receipts from this latter disposition are treated as 
non-DPGR.

[T.D. 9381, 73 FR 8806, Feb. 15, 2008]



Sec. 1.199-6  Agricultural and horticultural cooperatives.

    (a) In general. A patron who receives a qualified payment (as 
defined in paragraph (e) of this section) from a specified agricultural 
or horticultural cooperative (cooperative) (as defined in paragraph (f) 
of this section) is allowed a deduction under Sec. 1.199-1(a) (section 
199 deduction) for the taxable year the qualified payment is received 
for the portion of the cooperative's section 199 deduction passed 
through to the patron and identified by the cooperative in a written 
notice mailed to the person during the payment period described in 
section 1382(d). The provisions of this section apply solely for 
purposes of section 199 of the Internal Revenue Code (Code).
    (b) Cooperative denied section 1382 deduction for portion of 
qualified payments. A cooperative must reduce its section 1382 deduction 
by an amount equal to the portion of any qualified payment that is 
attributable to the cooperative's section 199 deduction passed through 
to the patron.
    (c) Determining cooperative's qualified production activities income 
and taxable income. For purposes of determining its

[[Page 406]]

section 199 deduction, the cooperative's qualified production activities 
income (QPAI) (as defined in Sec. 1.199-1(c)) and taxable income are 
computed without taking into account any deduction allowable under 
section 1382(b) or (c) (relating to patronage dividends, per-unit retain 
allocations, and nonpatronage distributions).
    (d) Special rule for marketing cooperatives. In the case of a 
cooperative engaged in the marketing of agricultural and/or 
horticultural products described in paragraph (f) of this section, the 
cooperative is treated as having manufactured, produced, grown, or 
extracted (MPGE) (as defined in Sec. 1.199-3(e)) in whole or in 
significant part (as defined in Sec. 1.199-3(g)) within the United 
States (as defined in Sec. 1.199-3(h)) any agricultural or 
horticultural products marketed by the cooperative that its patrons have 
MPGE.
    (e) Qualified payment. The term qualified payment means any amount 
of a patronage dividend or per-unit retain allocation, as described in 
section 1385(a)(1) or (3) received by a patron from a cooperative, that 
is attributable to the portion of the cooperative's QPAI, for which the 
cooperative is allowed a section 199 deduction. For this purpose, 
patronage dividends and per-unit retain allocations include any advances 
on patronage and per-unit retains paid in money during the taxable year.
    (f) Specified agricultural or horticultural cooperative. A specified 
agricultural or horticultural cooperative means a cooperative to which 
Part I of subchapter T of the Code applies and the cooperative has MPGE 
in whole or significant part within the United States any agricultural 
or horticultural product, or has marketed agricultural or horticultural 
products. For this purpose, agricultural or horticultural products also 
include fertilizer, diesel fuel, and other supplies used in agricultural 
or horticultural production.
    (g) Written notice to patrons. In order for a patron to qualify for 
the section 199 deduction, paragraph (a) of this section requires that 
the cooperative identify in a written notice the patron's portion of the 
section 199 deduction that is attributable to the portion of the 
cooperative's QPAI for which the cooperative is allowed a section 199 
deduction. This written notice must be mailed by the cooperative to its 
patrons no later than the 15th day of the ninth month following the 
close of the taxable year. The cooperative may use the same written 
notice, if any, that it uses to notify patrons of their respective 
allocations of patronage dividends, or may use a separate timely written 
notice(s) to comply with this section. The cooperative must report the 
amount of the patron's section 199 deduction on Form 1099-PATR, 
``Taxable Distributions Received From Cooperatives,'' issued to the 
patron.
    (h) Additional rules relating to passthrough of section 199 
deduction. The cooperative may, at its discretion, pass through all, 
some, or none of the section 199 deduction to its patrons. A cooperative 
member of a federated cooperative may pass through the section 199 
deduction it receives from the federated cooperative to its member 
patrons. Patrons may claim the section 199 deduction for the taxable 
year in which they receive the written notice from the cooperative 
informing them of the section 199 amount without regard to the taxable 
income limitation under Sec. 1.199-1(a) and (b).
    (i) W-2 wages. The W-2 wage limitation described in Sec. 1.199-2 
shall be applied at the cooperative level whether or not the cooperative 
chooses to pass through some or all of the section 199 deduction. Any 
section 199 deduction that has been passed through by a cooperative to 
its patrons is not subject to the W-2 wage limitation a second time at 
the patron level.
    (j) Recapture of section 199 deduction. If the amount of the section 
199 deduction that was passed through to patrons exceeds the amount 
allowable as a section 199 deduction as determined on audit or reported 
on an amended return, then recapture of the excess will occur at the 
cooperative level in the taxable year the cooperative took the excess 
section 199 deduction amount into account.
    (k) Section is exclusive. This section is the exclusive method for 
cooperatives and their patrons to compute the amount of the section 199 
deduction. Thus, a patron may not deduct any amount with respect to a 
patronage

[[Page 407]]

dividend or a per-unit retain allocation unless the requirements of this 
section are satisfied.
    (l) No double counting. A qualified payment received by a patron of 
a cooperative is not taken into account by the patron for purposes of 
section 199.
    (m) Examples. The following examples illustrate the application of 
this section:

    Example 1. (i) Cooperative X markets corn grown by its members 
within the United States for sale to retail grocers. For its calendar 
year ended December 31, 2007, Cooperative X has gross receipts of 
$1,500,000, all derived from the sale of corn grown by its members 
within the United States. Cooperative X pays $370,000 for its members' 
corn and its W-2 wages (as defined in Sec. 1.199-2(e)) for 2007 total 
$130,000. Cooperative X has no other costs. Patron A is a member of 
Cooperative X. Patron A is a cash basis taxpayer and files Federal 
income tax returns on a calendar year basis. All corn grown by Patron A 
in 2007 is sold through Cooperative X and Patron A is eligible to share 
in patronage dividends paid by Cooperative X for that year.
    (ii) Cooperative X is a cooperative described in paragraph (f) of 
this section. Accordingly, this section applies to Cooperative X and its 
patrons and all of Cooperative X's gross receipts from the sale of its 
patrons' corn qualify as domestic production gross receipts (as defined 
Sec. 1.199-3(a)). Cooperative X's QPAI is $1,000,000. Cooperative X's 
section 199 deduction for its taxable year 2007 is $60,000 (.06 x 
$1,000,000). Because this amount is less than 50% of Cooperative X's W-2 
wages, the entire amount is allowed as a section 199 deduction subject 
to the rules of section 199(d)(3) and this section.
    Example 2. (i) The facts are the same as in Example 1 except that 
Cooperative X decides to pass its entire section 199 deduction through 
to its members. Cooperative X declares a patronage dividend for its 2007 
taxable year of $1,000,000, which it pays on March 15, 2008. Pursuant to 
paragraph (g) of this section, Cooperative X notifies members in written 
notices that accompany the patronage dividend notification that it is 
allocating to them the section 199 deduction it is entitled to claim in 
the taxable year 2007. On March 15, 2008, Patron A receives a $10,000 
patronage dividend that is a qualified payment under paragraph (e) of 
this section from Cooperative X. In the notice that accompanies the 
patronage dividend, Patron A is designated a $600 section 199 deduction. 
Under paragraph (a) of this section, Patron A must claim a $600 section 
199 deduction for the taxable year ending December 31, 2008, without 
regard to the taxable income limitation under Sec. 1.199-1(a) and (b). 
Cooperative X must report the amount of Patron A's section 199 deduction 
on Form 1099-PATR, ``Taxable Distributions Received From Cooperatives,'' 
issued to Patron A for the calendar year 2008.
    (ii) Under paragraph (b) of this section, Cooperative X is required 
to reduce its patronage dividend deduction of $1,000,000 by the $60,000 
section 199 deduction passed through to members (whether or not 
Cooperative X pays patronage on book or Federal income tax net 
earnings). As a consequence, Cooperative X is entitled to a patronage 
dividend deduction for the taxable year ending December 31, 2007, in the 
amount of $940,000 ($1,000,000 - $60,000) and to a section 199 deduction 
in the amount of $60,000 ($1,000,000 x .06). Its taxable income for 2007 
is $0.
    Example 3. (i) The facts are the same as in Example 1 except that 
Cooperative X paid out $500,000 to its patrons as advances on expected 
patronage net earnings. In 2007, Cooperative X pays its patrons a 
$500,000 ($1,000,000-$500,000 already paid) patronage dividend in cash 
or a combination of cash and qualified written notices of allocation. 
Under paragraph (b) of this section and section 1382, Cooperative X is 
allowed a patronage dividend deduction of $440,000 ($500,000-$60,000 
section 199 deduction), whether patronage net earnings are distributed 
on book or Federal income tax net earnings.
    (ii) The patrons will have received a gross amount of $1,000,000 in 
qualified payments under paragraph (e) of this section from Cooperative 
X ($500,000 paid during the taxable year as advances and the additional 
$500,000 paid as patronage dividends). If Cooperative X passes through 
its entire section 199 deduction to its members by providing the notice 
required by paragraph (g) of this section, then the patrons will be 
allowed a $60,000 section 199 deduction, resulting in a net $940,000 
taxable distribution from Cooperative X. Pursuant to paragraph (l) of 
this section, the $1,000,000 received by the patrons from Cooperative X 
is not taken into account for purposes of section 199 in the hands of 
the patrons.

[T.D. 9263, 71 FR 31283, June 1, 2006; 72 FR 6, Jan. 3, 2007; T.D. 9317, 
72 FR 12973, Mar. 20, 2007]



Sec. 1.199-7  Expanded affiliated groups.

    (a) In general. The provisions of this section apply solely for 
purposes of section 199 of the Internal Revenue Code (Code). All members 
of an expanded affiliated group (EAG) are treated as a single 
corporation for purposes of section 199. Notwithstanding the preceding 
sentence, except as otherwise provided in the Code and regulations (see, 
for example, sections 199(c)(7) and

[[Page 408]]

267, Sec. 1.199-3(b), paragraph (a)(3) of this section, and the 
consolidated return regulations), each member of an EAG is a separate 
taxpayer that computes its own taxable income or loss, qualified 
production activities income (QPAI) (as defined in Sec. 1.199-1(c)), 
and W-2 wages (as defined in Sec. 1.199-2(e)). If members of an EAG are 
also members of a consolidated group, see paragraph (d) of this section.
    (1) Definition of expanded affiliated group. An EAG is an affiliated 
group as defined in section 1504(a), determined by substituting more 
than 50 percent for at least 80 percent each place it appears and 
without regard to section 1504(b)(2) and (4).
    (2) Identification of members of an expanded affiliated group--(i) 
In general. A corporation must determine if it is a member of an EAG on 
a daily basis.
    (ii) Becoming or ceasing to be a member of an expanded affiliated 
group. If a corporation becomes or ceases to be a member of an EAG, the 
corporation is treated as becoming or ceasing to be a member of the EAG 
at the end of the day on which its status as a member changes.
    (3) Attribution of activities--(i) In general. If a member of an EAG 
(the disposing member) derives gross receipts (as defined in Sec. 
1.199-3(c)) from the lease, rental, license, sale, exchange, or other 
disposition (as defined in Sec. 1.199-3(i)) of qualifying production 
property (QPP) (as defined in Sec. 1.199-3(j)) that was manufactured, 
produced, grown or extracted (MPGE) (as defined in Sec. 1.199-3(e)), in 
whole or in significant part (as defined in Sec. 1.199-3(g)) in the 
United States (as defined in Sec. 1.199-3(h)), a qualified film (as 
defined in Sec. 1.199-3(k)), or electricity, natural gas, or potable 
water (as defined in Sec. 1.199-3(l)) (collectively, utilities) that 
was produced in the United States, such property was MPGE or produced by 
another corporation (or corporations), and the disposing member is a 
member of the same EAG as the other corporation (or corporations) at the 
time that the disposing member disposes of the QPP, qualified film, or 
utilities, then the disposing member is treated as conducting the 
previous activities conducted by such other corporation (or 
corporations) with respect to the QPP, qualified film, or utilities in 
determining whether its gross receipts are domestic production gross 
receipts (DPGR) (as defined in Sec. 1.199-3(a)). With respect to a 
lease, rental, or license, the disposing member is treated as having 
disposed of the QPP, qualified film, or utilities on the date or dates 
on which it takes into account the gross receipts derived from the 
lease, rental, or license under its methods of accounting. With respect 
to a sale, exchange, or other disposition, the disposing member is 
treated as having disposed of the QPP, qualified film, or utilities on 
the date on which it ceases to own the QPP, qualified film, or utilities 
for Federal income tax purposes, even if no gain or loss is taken into 
account.
    (ii) Special rule. Attribution of activities does not apply for 
purposes of the construction of real property under Sec. 1.199-3(m) or 
the performance of engineering and architectural services under Sec. 
1.199-3(n). A member of an EAG must engage in a construction activity 
under Sec. 1.199-3(m)(2), provide engineering services under Sec. 
1.199-3(n)(2), or provide architectural services under Sec. 1.199-
3(n)(3) in order for the member's gross receipts to be derived from 
construction, engineering, or architectural services.
    (4) Examples. The following examples illustrate the application of 
paragraph (a)(3) of this section. Assume that all taxpayers are calendar 
year taxpayers. The examples are as follows:

    Example 1. Corporations M and N are members of the same EAG. M is 
engaged solely in the trade or business of manufacturing furniture in 
the United States that it sells to unrelated persons. N is engaged 
solely in the trade or business of engraving companies' names on pens 
and pencils purchased from unrelated persons and then selling the pens 
and pencils to such companies. For purposes of this example, assume that 
if N was not a member of an EAG, its activities would not qualify as 
MPGE. Accordingly, although M's sales of the furniture qualify as DPGR 
(assuming all the other requirements of Sec. 1.199-3 are met), N's 
sales of the engraved pens and pencils do not qualify as DPGR because 
neither N nor another member of the EAG MPGE the pens and pencils.
    Example 2. For the entire 2007 year, Corporations A and B are 
members of the same EAG. A is engaged solely in the trade or business of 
MPGE machinery in the United

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States. A and B each own 45% of partnership C and unrelated persons own 
the remaining 10%. C is engaged solely in the trade or business of MPGE 
the same type of machinery in the United States as A. In 2007, B 
purchases and then resells the machinery MPGE in 2007 by A and C. B also 
resells machinery it purchases from unrelated persons. If only B's 
activities were considered, B would not qualify for the deduction under 
Sec. 1.199-1(a) (section 199 deduction). However, because at the time B 
disposes of the machinery B is a member of the EAG that includes A, B is 
treated as conducting A's previous MPGE activities in determining 
whether B's gross receipts from the sale of the machinery MPGE by A are 
DPGR. C is not a member of the EAG and thus C's MPGE activities are not 
attributed to B in determining whether B's gross receipts from the sale 
of the machinery MPGE by C are DPGR. Accordingly, B's gross receipts 
attributable to its sale of the machinery it purchases from A are DPGR 
(assuming all the other requirements of Sec. 1.199-3 are met). B's 
gross receipts attributable to its sale of the machinery it purchases 
from C and from the unrelated persons are non-DPGR because no member of 
the EAG MPGE the machinery and because C does not qualify as an EAG 
partnership.
    Example 3. The facts are the same as in Example 2 except that rather 
than reselling the machinery, B rents the machinery to unrelated persons 
and B takes the gross receipts attributable to the rental of the 
machinery into account under its methods of accounting in 2007, 2008, 
and 2009. In addition, as of the close of business on December 31, 2008, 
A and B cease to be members of the same EAG. With respect to the 
machinery acquired from C and the unrelated persons, B's gross receipts 
attributable to the rental of the machinery in 2007, 2008, and 2009 are 
non-DPGR because no member of the EAG MPGE the machinery and because C 
does not qualify as an EAG partnership. With respect to machinery 
acquired from A, B's gross receipts in 2007 and 2008 attributable to the 
rental of the machinery are DPGR because at the time B takes into 
account the gross receipts derived from the rental of the machinery 
under its methods of accounting, B is a member of the same EAG as A and 
B is treated as conducting A's previous MPGE activities. However, with 
respect to the rental receipts in 2009, because A and B are not members 
of the same EAG in 2009, B's rental receipts are non-DPGR.
    Example 4. For the entire 2007 year, Corporation P owns over 50% of 
the stock of Corporation S. In 2007, P MPGE QPP in the United States and 
transfers the QPP to S. On February 28, 2008, P disposes of stock of S, 
reducing P's ownership of S below 50% and P and S cease to be members of 
the same EAG. On June 30, 2008, S sells the QPP to an unrelated person. 
Unless P's transfer of the QPP to S took place in a transaction to which 
section 381(a) applies (see Sec. 1.199-8(e)(3)), because S is not a 
member of the same EAG as P on June 30, 2008, S is not treated as 
conducting the activities conducted by P in determining if S's receipts 
are DPGR, notwithstanding that P and S were members of the same EAG when 
P MPGE the QPP and when P transferred the QPP to S.
    Example 5. For the entire 2007 year, Corporations X and Y are 
unrelated corporations. In 2007, X MPGE QPP in the United States and 
sells the QPP to Y. On August 31, 2008, X acquires over 50% of the stock 
of Y, thus making X and Y members of the same EAG. On November 30, 2008, 
Y sells the QPP to an unrelated person. Because X and Y are members of 
the same EAG on November 30, 2008, Y is treated as conducting the 
activities conducted by X in 2007 in determining if Y's receipts are 
DPGR, notwithstanding that X and Y were not members of the same EAG when 
X MPGE the QPP nor when X sold the QPP to Y.

    (5) Anti-avoidance rule. If a transaction between members of an EAG 
is engaged in or structured with a principal purpose of qualifying for, 
or increasing the amount of, the section 199 deduction of the EAG or the 
portion of the section 199 deduction allocated to one or more members of 
the EAG, adjustments must be made to eliminate the effect of the 
transaction on the computation of the section 199 deduction.
    (b) Computation of expanded affiliated group's section 199 
deduction--(1) In general. The section 199 deduction for an EAG is 
determined by the EAG by aggregating each member's taxable income or 
loss, QPAI, and W-2 wages, if any. For purposes of this determination, a 
member's QPAI may be positive or negative. A member's taxable income or 
loss and QPAI shall be determined by reference to the member's methods 
of accounting.
    (2) Example. The following example illustrates the application of 
paragraph (b)(1) of this section:

    Example. Corporations X, Y, and Z, calendar year taxpayers, are the 
only members of an EAG and are not members of a consolidated group. X 
has taxable income of $50,000, QPAI of $15,000, and W-2 wages of $1,000. 
Y has taxable income of ($20,000), QPAI of ($1,000), and W-2 wages of 
$750. Z has $0 taxable income and $0 QPAI, but has W-2 wages of $2,000. 
In determining the EAG's section 199 deduction, the EAG aggregates each 
member's taxable income or loss, QPAI, and

[[Page 410]]

W-2 wages. Accordingly, the EAG has taxable income of $30,000 ($50,000 + 
($20,000) + $0), QPAI of $14,000 ($15,000 + ($1,000) + $0), and W-2 
wages of $3,750 ($1,000 + $750 + $2,000).

    (3) Net operating loss carrybacks and carryovers. In determining the 
taxable income of an EAG, if a member of an EAG has a net operating loss 
(NOL) carryback or carryover to the taxable year, then the amount of the 
NOL used to offset taxable income cannot exceed the taxable income of 
that member.
    (4) Losses used to reduce taxable income of expanded affiliated 
group--(i) In general. The amount of an NOL sustained by any member of 
an EAG that is used in the year sustained in determining an EAG's 
taxable income limitation under section 199(a)(1)(B) is not treated as 
an NOL carryover or NOL carryback to any taxable year in determining the 
taxable income limitation under section 199(a)(1)(B). For purposes of 
this paragraph (b)(4), an NOL is considered to be used if it reduces an 
EAG's aggregate taxable income, regardless of whether the use of the NOL 
actually reduces the amount of the section 199 deduction that the EAG 
would otherwise derive. An NOL is not considered to be used to the 
extent that it reduces an EAG's aggregate taxable income to an amount 
less than zero. If more than one member of an EAG has an NOL used in the 
same taxable year to reduce the EAG's taxable income, the members' 
respective NOLs are deemed used in proportion to the amount of their 
NOLs.
    (ii) Examples. The following examples illustrate the application of 
this paragraph (b)(4). For purposes of these examples, assume that all 
relevant parties have sufficient W-2 wages so that the section 199 
deduction is not limited under section 199(b)(1). The examples read as 
follows:

    Example 1. (i) Facts. Corporations A and B are the only two members 
of an EAG. A and B are both calendar year taxpayers, and they do not 
join in the filing of a consolidated Federal income tax return. Neither 
A nor B had taxable income or loss prior to 2010. In 2010, A has QPAI 
and taxable income of $1,000, and B has QPAI of $1,000 and an NOL of 
$1,500. In 2011, A has QPAI of $2,000 and taxable income of $1,000 and B 
has QPAI of $2,000 and taxable income prior to the NOL deduction allowed 
under section 172 of $2,000.
    (ii) Section 199 deduction for 2010. In determining the EAG's 
section 199 deduction for 2010, A's $1,000 of QPAI and B's $1,000 of 
QPAI are aggregated, as are A's $1,000 of taxable income and B's $1,500 
NOL. Thus, for 2010, the EAG has QPAI of $2,000 and taxable income of 
($500). The EAG's section 199 deduction for 2010 is 9% of the lesser of 
its QPAI or its taxable income. Because the EAG has a taxable loss in 
2010, the EAG's section 199 deduction is $0.
    (iii) Section 199 deduction for 2011. In determining the EAG's 
section 199 deduction for 2011, A's $2,000 of QPAI and B's $2,000 of 
QPAI are aggregated, giving the EAG QPAI of $4,000. Also, $1,000 of B's 
NOL from 2010 was used in 2010 to reduce the EAG's taxable income to $0. 
The remaining $500 of B's 2010 NOL is not considered to have been used 
in 2010 because it reduced the EAG's taxable income below $0. 
Accordingly, for purposes of determining the EAG's taxable income 
limitation under section 199(a)(1)(B) in 2011, B is deemed to have only 
a $500 NOL carryover from 2010 to offset a portion of its 2011 taxable 
income. Thus, B's taxable income in 2011 is $1,500 which is aggregated 
with A's $1,000 of taxable income. The EAG's taxable income limitation 
in 2011 is $2,500. The EAG's section 199 deduction is 9% of the lesser 
of its QPAI of $4,000 or its taxable income of $2,500. Thus, the EAG's 
section 199 deduction in 2011 is 9% of $2,500, or $225. The results 
would be the same if neither A nor B had QPAI in 2010.
    Example 2. The facts are the same as in Example 1 except that in 
2010 B was not a member of the same EAG as A, but instead was a member 
of an EAG with Corporation X, which had QPAI and taxable income of 
$1,000 in 2010, and had neither taxable income nor loss in any other 
year. There were no other members of the EAG in 2010 besides B and X, 
and B and X did not file a consolidated Federal income tax return. As 
$1,000 of B's NOL was used in 2010 to reduce the B and X EAG's taxable 
income to $0, B is considered to have only a $500 NOL carryover from 
2010 to offset a portion of its 2011 taxable income for purposes of the 
taxable income limitation under section 199(a)(1)(B), just as in Example 
1. Accordingly, the results for the A and B EAG in 2011 are the same as 
in Example 1.
    Example 3. The facts are the same as in Example 1 except that B is 
not a member of any EAG in 2011. Because $1,000 of B's NOL was used in 
2010 to reduce the EAG's taxable income to $0, B is considered to have 
only a $500 NOL carryover from 2010 to offset a portion of its 2011 
taxable income for purposes of the taxable income limitation under 
section 199(a)(1)(B), just as in Example 1. Thus, for purposes of 
determining B's taxable income limitation in 2011, B is considered to 
have taxable income of $1,500, and B has a section 199 deduction of 9% 
of $1,500, or $135.

[[Page 411]]

    Example 4. Corporations A, B, and C are the only members of an EAG. 
A, B, and C are all calendar year taxpayers, and they do not join in the 
filing of a consolidated Federal income tax return. None of the EAG 
members (A, B, or C) had taxable income or loss prior to 2010. In 2010, 
A has QPAI of $2,000 and taxable income of $1,000, B has QPAI of $1,000 
and an NOL of $1,000, and C has QPAI of $1,000 and an NOL of $3,000. In 
2011, prior to the NOL deduction allowed under section 172, A and B each 
has taxable income of $200 and C has taxable income of $5,000. In 
determining the EAG's section 199 deduction for 2010, A's QPAI of 
$2,000, B's QPAI of $1,000, and C's QPAI of $1,000 are aggregated, as 
are A's taxable income of $1,000, B's NOL of $1,000, and C's NOL of 
$3,000. Thus, for 2010, the EAG has QPAI of $4,000 and taxable income of 
($3,000). In determining the EAG's taxable income limitation under 
section 199(a)(1)(B) in 2011, $1,000 of B's and C's aggregate NOLs in 
2010 of $4,000 are considered to have been used in 2010 to reduce the 
EAG's taxable income to $0, in proportion to their NOLs. Thus, $250 of 
B's NOL from 2010 ($1,000 x $1,000/$4,000) and $750 of C's NOL from 2010 
($1,000 x $3,000/$4,000) are deemed to have been used in 2010. The 
remaining $750 of B's NOL and the remaining $2,250 of C's NOL are not 
deemed to have been used because so doing would have reduced the EAG's 
taxable income in 2010 below $0. Accordingly, for purposes of 
determining the EAG's taxable income limitation in 2011, B is deemed to 
have a $750 NOL carryover from 2010 and C is deemed to have a $2,250 NOL 
carryover from 2010. Thus, for purposes of determining the EAG's taxable 
income limitation, B's taxable income in 2011 is $0 and C's taxable 
income in 2011 is $2,750, which are aggregated with A's $200 taxable 
income. B's unused NOL carryover from 2010 cannot be used to reduce 
either A's or C's 2011 taxable income. Thus, the EAG's taxable income 
limitation in 2011 is $2,950, A's taxable income of $200 plus B's 
taxable income of $0 plus C's taxable income of $2,750.
    (c) Allocation of an expanded affiliated group's section 199 
deduction among members of the expanded affiliated group--(1) In 
general. An EAG's section 199 deduction as determined in paragraph 
(b)(1) of this section is allocated among the members of the EAG in 
proportion to each member's QPAI, regardless of whether the EAG member 
has taxable income or loss or W-2 wages for the taxable year. For this 
purpose, if a member has negative QPAI, the QPAI of the member shall be 
treated as zero.
    (2) Use of section 199 deduction to create or increase a net 
operating loss. Notwithstanding Sec. 1.199-1(b), if a member of an EAG 
has some or all of the EAG's section 199 deduction allocated to it under 
paragraph (c)(1) of this section and the amount allocated exceeds the 
member's taxable income (determined prior to allocation of the section 
199 deduction), the section 199 deduction will create an NOL for the 
member. Similarly, if a member of an EAG, prior to the allocation of 
some or all of the EAG's section 199 deduction to the member, has an NOL 
for the taxable year, the portion of the EAG's section 199 deduction 
allocated to the member will increase the member's NOL.
    (d) Special rules for members of the same consolidated group--(1) 
Intercompany transactions. In the case of an intercompany transaction 
between consolidated group members S and B (as the terms intercompany 
transaction, S, and B are defined in Sec. 1.1502-13(b)(1)), S takes the 
intercompany transaction into account in computing the section 199 
deduction at the same time and in the same proportion as S takes into 
account the income, gain, deduction, or loss from the intercompany 
transaction under Sec. 1.1502-13.
    (2) Attribution of activities in the construction of real property 
and the performance of engineering and architectural services. 
Notwithstanding paragraph (a)(3)(ii) of this section, a disposing member 
(as described in paragraph (a)(3)(i) of this section) is treated as 
conducting the previous activities conducted by each other member of its 
consolidated group with respect to the construction of real property 
under Sec. 1.199-3(m) and the performance of engineering and 
architectural services under Sec. 1.199-3(n), but only with respect to 
activities performed during the period of consolidation.
    (3) Application of the simplified deduction method and the small 
business simplified overall method. For purposes of applying the 
simplified deduction method under Sec. 1.199-4(e) and the small 
business simplified overall method under Sec. 1.199-4(f), a 
consolidated group determines its QPAI using its members' DPGR, non-
DPGR, cost of goods sold (CGS), and all other deductions, expenses, or 
losses (deductions), determined after application of Sec. 1.1502-13.

[[Page 412]]

    (4) Determining the section 199 deduction--(i) Expanded affiliated 
group consists of consolidated group and non-consolidated group members. 
In determining the section 199 deduction, if an EAG includes 
corporations that are members of the same consolidated group and 
corporations that are not members of the same consolidated group, the 
consolidated taxable income or loss, QPAI, and W-2 wages, if any, of the 
consolidated group (and not the separate taxable income or loss, QPAI, 
and W-2 wages of the members of the consolidated group), are aggregated 
with the taxable income or loss, QPAI, and W-2 wages, if any, of the 
non-consolidated group members. For example, if A, B, C, S1, and S2 are 
members of the same EAG, and A, S1, and S2 are members of the same 
consolidated group (the A consolidated group), then the A consolidated 
group is treated as one member of the EAG. Accordingly, the EAG is 
considered to have three members, the A consolidated group, B, and C. 
The consolidated taxable income or loss, QPAI, and W-2 wages, if any, of 
the A consolidated group are aggregated with the taxable income or loss, 
QPAI, and W-2 wages, if any, of B and C in determining the EAG's section 
199 deduction.
    (ii) Expanded affiliated group consists only of members of a single 
consolidated group. If all the members of an EAG are members of the same 
consolidated group, the consolidated group's section 199 deduction is 
determined using the consolidated group's consolidated taxable income or 
loss, QPAI, and W-2 wages, rather than the separate taxable income or 
loss, QPAI, and W-2 wages of its members.
    (5) Allocation of the section 199 deduction of a consolidated group 
among its members. The section 199 deduction of a consolidated group (or 
the section 199 deduction allocated to a consolidated group that is a 
member of an EAG) is allocated to the members of the consolidated group 
in proportion to each consolidated group member's QPAI, regardless of 
whether the consolidated group member has separate taxable income or 
loss or W-2 wages for the taxable year. In allocating the section 199 
deduction of a consolidated group among its members, any redetermination 
of a corporation's receipts, CGS, or other deductions from an 
intercompany transaction under Sec. 1.1502-13(c)(1)(i) or (c)(4) for 
purposes of section 199 is not taken into account. Also, for purposes of 
this allocation, if a consolidated group member has negative QPAI, the 
QPAI of the member shall be treated as zero.
    (e) Examples. The following examples illustrate the application of 
paragraphs (a) through (d) of this section:

    Example 1. Corporations X and Y are members of the same EAG but are 
not members of a consolidated group. All the activities described in 
this example take place during the same taxable year. X and Y each use 
the section 861 method described in Sec. 1.199-4(d) for allocating and 
apportioning their deductions. X incurs $5,000 in costs in manufacturing 
a machine, all of which are capitalized. X is entitled to a $1,000 
depreciation deduction for the machine in the current taxable year. X 
rents the machine to Y for $1,500. Y uses the machine in manufacturing 
QPP within the United States. Y incurs $1,400 of CGS in manufacturing 
the QPP. Y sells the QPP to unrelated persons for $7,500. Pursuant to 
section 199(c)(7) and Sec. 1.199-3(b), X's rental income is non-DPGR 
(and its related costs are not attributable to DPGR). Accordingly, Y has 
$4,600 of QPAI (Y's $7,500 DPGR received from unrelated persons-Y's 
$1,400 CGS allocable to such receipts-Y's $1,500 of rental expense), X 
has $0 of QPAI, and the EAG has $4,600 of QPAI.
    Example 2. The facts are the same as in Example 1 except that X and 
Y are members of the same consolidated group. Pursuant to section 
199(c)(7) and Sec. 1.199-3(b), X's rental income ordinarily would not 
be DPGR (and its related costs would not be allocable to DPGR). However, 
because X and Y are members of the same consolidated group, Sec. 
1.1502-13(c)(1)(i) provides that the separate entity attributes of X's 
intercompany items or Y's corresponding items, or both, may be 
redetermined in order to produce the same effect as if X and Y were 
divisions of a single corporation. If X and Y were divisions of a single 
corporation, X and Y would have QPAI of $5,100 ($7,500 DPGR received 
from unrelated persons-$1,400 CGS allocable to such receipts-$1,000 
depreciation deduction). To obtain this same result for the consolidated 
group, X's rental income is redetermined as DPGR, which results in the 
consolidated group having $9,000 of DPGR (the sum of Y's DPGR of $7,500 
+ X's DPGR of $1,500) and $3,900 of costs allocable to DPGR (the sum of 
Y's $1,400 CGS + Y's $1,500 rental expense + X's $1,000 depreciation 
expense). For purposes of determining how much of the consolidated 
group's section 199 deduction is allocated to X and Y, pursuant to 
paragraph

[[Page 413]]

(d)(5) of this section, the redetermination of X's rental income as DPGR 
under Sec. 1.1502-13(c)(1)(i) is not taken into account (X's costs are 
considered to be allocable to DPGR because they are allocable to the 
consolidated group deriving DPGR). Accordingly, for this purpose, X is 
deemed to have ($1,000) of QPAI (X's $0 DPGR-X's $1,000 depreciation 
deduction). Because X is deemed to have negative QPAI, also pursuant to 
paragraph (d)(5) of this section, X's QPAI is treated as zero. Y has 
$4,600 of QPAI (Y's $7,500 DPGR-Y's $1,400 CGS allocable to such 
receipts-Y's $1,500 of rental expense). Accordingly, X is allocated $0/
($0 + $4,600) of the consolidated group's section 199 deduction and Y is 
allocated $4,600/($0 + $4,600) of the consolidated group's section 199 
deduction.
    Example 3. Corporations P and S are members of the same EAG but are 
not members of a consolidated group. P and S each use the section 861 
method for allocating and apportioning their deductions and are both 
calendar year taxpayers. In 2007, P incurs $1,000 in research and 
development expenses in creating an intangible asset and deducts these 
expenses in 2007. P anticipates that it will license the intangible 
asset to S. On January 1, 2008, P licenses the intangible asset to S for 
$2,500. S uses the intangible asset in manufacturing QPP within the 
United States. S incurs $2,000 of additional costs in manufacturing the 
QPP. On December 31, 2008, S sells the QPP to unrelated persons for 
$10,000. Because on December 31, 2007, P anticipates that it will 
license the intangible asset to S, a related person, and also because 
the intangible asset is not QPP, P's license receipts from S will be 
non-DPGR. Accordingly, P's research and development expenses in 2007 are 
not attributable to DPGR. In 2008, S has $5,500 of QPAI (S's $10,000 
DPGR received from unrelated persons-S's $2,000 additional costs in 
manufacturing the QPP-S's $2,500 of license expense), P has $0 of QPAI, 
and the EAG has $5,500 of QPAI.
    Example 4. (i) Determination of consolidated group's QPAI. The facts 
are the same as in Example 3 except that P and S are members of the same 
consolidated group. Pursuant to section 199(c)(7) and Sec. 1.199-3(b), 
and also because the intangible asset is not QPP, P's license income 
ordinarily would not be DPGR (and its related costs would not be 
allocable to DPGR). However, because P and S are members of the same 
consolidated group, Sec. 1.1502-13(c)(1)(i) provides that the separate 
entity attributes of P's intercompany items or S's corresponding items, 
or both, may be redetermined in order to produce the same effect as if P 
and S were divisions of a single corporation. If P and S were divisions 
of a single corporation, in 2007 the single corporation would have 
$1,000 of expenses allocable to the anticipated DPGR from the sale of 
the QPP to unrelated persons, resulting in a negative QPAI (from this 
individual item) of $1,000. In 2008, the single corporation would have 
QPAI of $8,000 ($10,000 DPGR received from unrelated persons-$2,000 
additional costs in manufacturing the QPP). To obtain this same result 
for the consolidated group, P's license income from S is redetermined as 
DPGR. P's research and development expenses are allocable to DPGR. This 
results in the consolidated group having negative QPAI in 2007 (from the 
research and development expense) of $1,000. In 2008, the consolidated 
group has $12,500 of DPGR (the sum of S's DPGR of $10,000 + P's DPGR of 
$2,500) and $4,500 of costs allocable to DPGR (the sum of S's $2,000 
additional costs + S's $2,500 license expense), resulting in $8,000 of 
QPAI in 2008.
    (ii) Allocation of deduction. Since the consolidated group has no 
QPAI in 2007, there is no section 199 deduction to be allocated between 
P and S in 2007. In 2008, the consolidated group has $8,000 of QPAI and, 
assuming that the group has positive taxable income and W-2 wages, the 
consolidated group will have a section 199 deduction. For purposes of 
determining how much of the consolidated group's section 199 deduction 
is allocated to P and S, pursuant to paragraph (d)(5) of this section, 
the redetermination of P's license income as DPGR under Sec. 1.1502-
13(c)(1)(i) is not taken into account. Accordingly, for purposes of 
allocating the consolidated group's section 199 deduction between P and 
S, P is deemed to have $0 DPGR and $0 QPAI in 2008. S has $5,500 of QPAI 
(S's $10,000 DPGR - S's $2,000 in additional costs allocable to such 
receipts - S's $2,500 of license expense). Accordingly, P is allocated 
$0/($0 + $5,500) of the consolidated group's section 199 deduction in 
2008 and S is allocated $5,500/($0 + $5,500) of the consolidated group's 
section 199 deduction.
    Example 5. (i) Facts. Corporations A and B are the only two members 
of an EAG but are not members of a consolidated group. A and B each file 
Federal income tax returns on a calendar year basis. The average annual 
gross receipts of the EAG are less than or equal to $100,000,000 and A 
and B each use the simplified deduction method under Sec. 1.199-4(e). 
In 2007, A MPGE televisions within the United States. A has $10,000,000 
of DPGR from sales of televisions to unrelated persons and $2,000,000 of 
DPGR from sales of televisions to B. In addition, A has gross receipts 
from computer consulting services with unrelated persons of $3,000,000. 
A has CGS of $6,000,000. A is able to determine from its books and 
records that $4,500,000 of its CGS are attributable to televisions sold 
to unrelated persons and $1,500,000 are attributable to televisions sold 
to B (see Sec. 1.199-4(b)(2)). A has other deductions of $4,000,000. A 
has no other items of income, gain, or deductions. In 2007, B sells the 
televisions it purchased from A to unrelated persons for $4,100,000. B 
also pays $100,000 for administrative services

[[Page 414]]

performed in 2007. B has no other items of income, gain, or deductions.
    (ii) QPAI. (A) A's QPAI. In order to determine A's QPAI, A subtracts 
its $6,000,000 CGS from its $12,000,000 DPGR. Under the simplified 
deduction method, A then apportions its remaining $4,000,000 of 
deductions to DPGR in proportion to the ratio of its DPGR to total gross 
receipts. Thus, of A's $4,000,000 of deductions, $3,200,000 is 
apportioned to DPGR ($4,000,000 x $12,000,000/$15,000,000). Accordingly, 
A's QPAI is $2,800,000 ($12,000,000 DPGR-$6,000,000 CGS-$3,200,000 
deductions apportioned to its DPGR).
    (B) B's QPAI. Although B did not MPGE the televisions it sold, 
pursuant to paragraph (a)(3) of this section, B is treated as conducting 
A's MPGE of the televisions in determining whether B's gross receipts 
are DPGR. Thus, B has $4,100,000 of DPGR. In order to determine B's 
QPAI, B subtracts its $2,000,000 CGS from its $4,100,000 DPGR. Under the 
simplified deduction method, B then apportions its remaining $100,000 of 
deductions to DPGR in proportion to the ratio of its DPGR to total gross 
receipts. Thus, because B has no other gross receipts, all of B's 
$100,000 of deductions is apportioned to DPGR ($100,000 x $4,100,000/
$4,100,000). Accordingly, B's QPAI is $2,000,000 ($4,100,000 DPGR-
$2,000,000 CGS-$100,000 deductions apportioned to its DPGR).
    Example 6. (i) Facts. The facts are the same as in Example 5 except 
that A and B are members of the same consolidated group, B does not sell 
the televisions purchased from A until 2008, and B's $100,000 paid for 
administrative services are paid in 2008 for services performed in 2008. 
In addition, in 2008, A has $3,000,000 in gross receipts from computer 
consulting services with unrelated persons and $1,000,000 in related 
deductions.
    (ii) Consolidated group's 2007 QPAI. The consolidated group's DPGR 
and total gross receipts in 2007 are $10,000,000 and $13,000,000, 
respectively, because, pursuant to paragraph (d)(1) of this section and 
Sec. 1.1502-13, the sale of the televisions from A to B is not taken 
into account in 2007. In order to determine the consolidated group's 
QPAI, the consolidated group subtracts its $4,500,000 CGS from the 
televisions sold to unrelated persons from its $10,000,000 DPGR. Under 
the simplified deduction method, the consolidated group apportions its 
remaining $4,000,000 of deductions to DPGR in proportion to the ratio of 
its DPGR to total gross receipts. Thus, $3,076,923 ($4,000,000 x 
$10,000,000/$13,000,000) is allocated to DPGR. Accordingly, the 
consolidated group's QPAI for 2007 is $2,423,077 ($10,000,000 DPGR-
$4,500,000 CGS-$3,076,923 deductions apportioned to its DPGR).
    (iii) Allocation of consolidated group's 2007 section 199 deduction 
to its members. Because B's only activity during 2007 is the purchase of 
televisions from A, B has no DPGR or deductions and thus, no QPAI, in 
2007. Accordingly, the entire section 199 deduction in 2007 for the 
consolidated group will be allocated to A.
    (iv) Consolidated group's 2008 QPAI. Pursuant to paragraph (d)(1) of 
this section and Sec. 1.1502-13(c), A's sale of televisions to B in 
2007 is taken into account in 2008 when B sells the televisions to 
unrelated persons. However, because A and B are members of a 
consolidated group, Sec. 1.1502-13(c)(1)(i) provides that the separate 
entity attributes of A's intercompany items or B's corresponding items, 
or both, may be redetermined in order to produce the same effect as if A 
and B were divisions of a single corporation. Accordingly, A's 
$2,000,000 of gross receipts are redetermined to be non-DPGR and as not 
being gross receipts for purposes of allocating costs between DPGR and 
non-DPGR, and B's $2,000,000 CGS are redetermined to be not allocable to 
DPGR. Notwithstanding that A's receipts are redetermined to be non-DPGR 
and as not being gross receipts for purposes of allocating costs between 
DPGR and non-DPGR, A's CGS are still considered to be allocable to DPGR 
because they are allocable to the consolidated group deriving DPGR. 
Accordingly, the consolidated group's DPGR in 2008 is $4,100,000 from 
B's sales of televisions, and its total receipts are $7,100,000 
($4,100,000 DPGR plus $3,000,000 non-DPGR from A's computer consulting 
services). To determine the consolidated group's QPAI, the consolidated 
group subtracts A's $1,500,000 CGS from the televisions sold to B from 
its $4,100,000 DPGR. Under the simplified deduction method, the 
consolidated group apportions its remaining $1,100,000 of deductions 
($1,000,000 from A and $100,000 from B) to DPGR in proportion to the 
consolidated group's ratio of its DPGR to total gross receipts. Thus, 
$635,211 ($1,100,000 x $4,100,000/$7,100,000) is allocated to DPGR. 
Accordingly, the consolidated group's QPAI for 2008 is $1,964,789 
($4,100,000 DPGR-$1,500,000 CGS-$635,211 deductions apportioned to its 
DPGR), the same QPAI that would result if A and B were divisions of a 
single corporation.
    (v) Allocation of consolidated group's 2008 section 199 deduction to 
its members. (A) A's QPAI. For purposes of allocating the consolidated 
group's section 199 deduction to its members, pursuant to paragraph 
(d)(5) of this section, the redetermination of A's $2,000,000 in 
receipts is disregarded. Accordingly, for this purpose, A's DPGR are 
$2,000,000 (receipts from the sale of televisions to B taken into 
account in 2008) and its total receipts are $5,000,000 ($2,000,000 DPGR 
+ $3,000,000 non-DPGR from its computer consulting services). In 
determining A's QPAI, A subtracts its $1,500,000 CGS from the 
televisions sold to B from its $2,000,000 DPGR. Under the simplified 
deduction method, A apportions its remaining $1,000,000 of

[[Page 415]]

deductions in proportion to the ratio of its DPGR to total receipts. 
Thus, $400,000 ($1,000,000 x $2,000,000/$5,000,000) is allocated to 
DPGR. Thus, A's QPAI is $100,000 ($2,000,000 DPGR-$1,500,000 CGS-
$400,000 deductions allocated to its DPGR).
    (B) B's QPAI. B's DPGR and its total gross receipts are each 
$4,100,000. For purposes of allocating the consolidated group's section 
199 deduction to its members, pursuant to paragraph (d)(5) of this 
section, the redetermination of B's $2,000,000 CGS as not allocable to 
DPGR is disregarded. In determining B's QPAI, B subtracts its $2,000,000 
CGS from the televisions purchased from A from its $4,100,000 DPGR. 
Under the simplified deduction method, B apportions its remaining 
$100,000 deductions in proportion to the ratio of its DPGR to total 
receipts. Thus, all $100,000 ($100,000 x $4,100,000/$4,100,000) is 
allocated to DPGR. Thus, B's QPAI is $2,000,000 ($4,100,000 DPGR-
$2,000,000 CGS-$100,000 deductions allocated to its DPGR).
    (C) Allocation to A and B. Pursuant to paragraph (d)(5) of this 
section, the consolidated group's section 199 deduction for 2008 is 
allocated $100,000/($100,000 + $2,000,000) to A and $2,000,000/($100,000 
+ $2,000,000) to B.
    Example 7. Corporations S and B are members of the same consolidated 
group that files its Federal income tax returns on a calendar year 
basis. In 2007, S manufactures office furniture for B to use in B's 
corporate headquarters and S sells the office furniture to B. S and B 
have no other activities in the taxable year. If S and B were not 
members of a consolidated group, S's gross receipts from the sale of the 
office furniture to B would be DPGR (assuming all the other requirements 
of Sec. 1.199-3 are met) and S's CGS or other deductions, expenses, or 
losses from the sale to B would be allocable to S's DPGR. However, 
because S and B are members of a consolidated group, the separate entity 
attributes of S's intercompany items or B's corresponding items, or 
both, may be redetermined under Sec. 1.1502-13(c)(1)(i) or (c)(4) in 
order to produce the same effect as if S and B were divisions of a 
single corporation. If S and B were divisions of a single corporation, 
there would be no DPGR with respect to the office furniture because 
there would be no lease, rental, license, sale, exchange, or other 
disposition of the furniture by the single corporation (and no CGS or 
other deductions allocable to DPGR). Thus, in order to produce the same 
effect as if S and B were divisions of a single corporation, S's gross 
receipts are redetermined as non-DPGR. Accordingly, the consolidated 
group has no DPGR (and no CGS or other deductions allocated or 
apportioned to DPGR) and receives no section 199 deduction in 2007.
    Example 8. (i) Facts. A and B are members of the same consolidated 
group that files its Federal income tax returns on a calendar year 
basis. On January 1, 2007, A MPGE QPP which is 10-year recovery property 
for $100 and depreciates it under the straight-line method. On January 
1, 2009, A sells the property to B for $130. Under section 168(i)(7), B 
is treated as A for purposes of section 168 to the extent B's $130 basis 
does not exceed A's adjusted basis at the time of the sale. B's 
additional basis is treated as new 10-year recovery property for which B 
elects the straight-line method of recovery. (To simplify the example, 
the half-year convention is disregarded.)
    (ii) Depreciation; intercompany gain. A claims $10 of depreciation 
for each taxable year 2007 and 2008 and has an $80 basis at the time of 
the sale to B. Thus, A has a $50 intercompany gain from its sale to B. 
For each taxable year 2009 through 2016, B has $10 of depreciation with 
respect to $80 of its basis (the portion of its $130 basis not exceeding 
A's adjusted basis) and $5 of depreciation with respect to the $50 of 
its additional basis that exceeds A's adjusted basis. For each taxable 
year 2017 and 2018, B has $5 of depreciation with respect to the $50 of 
its additional basis that exceeds A's adjusted basis.
    (iii) Timing. A's $50 gain is taken into account to reflect the 
difference for each consolidated return year between B's depreciation 
taken into account with respect to the property and the depreciation 
that would have been taken into account if A and B were divisions of a 
single corporation. For each taxable year 2009 through 2016, B takes 
into account $15 of depreciation rather than the $10 of depreciation 
that would have been taken into account if A and B were divisions of a 
single corporation. For each taxable year 2017 and 2018, B takes into 
account $5 of depreciation rather than the $0 of depreciation that would 
have been taken into account if A and B were divisions of a single 
corporation (the QPP would have been fully depreciated after the 2016 
taxable year if A and B were divisions of a single corporation). Thus, A 
takes $5 of gain into account in each of the 2009 through 2018 taxable 
years (10% of its $50 gain). Pursuant to Sec. 1.199-7(d)(1), A takes 
its sale to B into account in computing the section 199 deduction at the 
same time and in the same proportion as A takes into account the income, 
gain, deduction, or loss from the intercompany transaction under Sec. 
1.1502-13. Thus, in each taxable year 2009 through 2018, A takes into 
account $13 of gross receipts (10% of its $130 gross receipts) from the 
sale to B. The group's income in each taxable year 2009 through 2016 is 
a $10 loss ($5 gain-$15 depreciation), the same net amount it would have 
been if A and B were divisions of a single corporation. The group's 
income in each taxable year 2017 and 2018 is $0 ($5 gain-$5 
depreciation), the same net amount it would have been if A and B were 
divisions of a single corporation.

[[Page 416]]

    (iv) Attributes. If A and B were not members of a consolidated 
group, A's gross receipts on the sale of the QPP to B would be DPGR 
(assuming all the other requirements of Sec. 1.199-3 are met). However, 
because A and B are members of a consolidated group, the separate entity 
attributes of A's DPGR may be redetermined under Sec. 1.1502-
13(c)(1)(i) or (c)(4) in order to produce the same effect as if A and B 
were divisions of a single corporation. If A and B were divisions of a 
single corporation, there would be no DPGR with respect to the QPP 
because there would be no lease, rental, license, sale, exchange, or 
other disposition of the QPP by the single corporation (and no CGS or 
other deductions allocable to DPGR). Thus, in order to produce the same 
effect as if A and B were divisions of a single corporation, A's $13 of 
gross receipts taken into account in each year is redetermined as non-
DPGR. Accordingly, the consolidated group has no DPGR (and no CGS or 
other deductions allocable or apportioned to DPGR) and receives no 
section 199 deduction.
    Example 9. Corporations X, Y, and Z are members of the same EAG but 
are not members of a consolidated group. X, Y, and Z each files Federal 
income tax returns on a calendar year basis. Assume that the EAG has W-2 
wages in excess of the section 199(b) wage limitation. Prior to 2007, X 
had no taxable income or loss. In 2007, X has $0 of taxable income and 
$2,000 of QPAI, Y has $4,000 of taxable income and $3,000 of QPAI, and Z 
has $4,000 of taxable income and $5,000 of QPAI. Accordingly, the EAG 
has taxable income of $8,000, the sum of X's taxable income of $0, Y's 
taxable income of $4,000, and Z's taxable income of $4,000. The EAG has 
QPAI of $10,000, the sum of X's QPAI of $2,000, Y's QPAI of $3,000, and 
Z's QPAI of $5,000. Because X's, Y's, and Z's taxable years all began in 
2007, the transition percentage under section 199(a)(2) is 6%. Thus, the 
EAG's section 199 deduction for 2007 is $480 (6% of the lesser of the 
EAG's taxable income of $8,000 or the EAG's QPAI of $10,000). Pursuant 
to paragraph (c)(1) of this section, the $480 section 199 deduction is 
allocated to X, Y, and Z in proportion to their respective amounts of 
QPAI, that is $96 to X ($480 x $2,000/$10,000), $144 to Y ($480 x 
$3,000/$10,000), and $240 to Z ($480 x $5,000/$10,000). Although X's 
taxable income for 2007 determined prior to allocation of a portion of 
the EAG's section 199 deduction to it was $0, pursuant to paragraph 
(c)(2) of this section X will have an NOL for 2007 equal to $96. Because 
X's NOL for 2007 cannot be carried back to a previous taxable year, X's 
NOL carryover to 2008 will be $96.
    Example 10. (i) Facts. Corporation P owns all of the stock of 
Corporations S and B. P, S, and B file a consolidated Federal income tax 
return on a calendar year basis. P, S, and B each uses the section 861 
method for allocating and apportioning their deductions. In 2010, S MPGE 
QPP in the United States at a cost of $1,000. On November 30, 2010, S 
sells the QPP to B for $2,500. On February 28, 2011, P sells 60% of the 
stock of B to X, an unrelated person. On June 30, 2011, B sells the QPP 
to U, another unrelated person, for $3,000.
    (ii) Consolidated group's 2010 QPAI. Because S and B are members of 
a consolidated group in 2010, pursuant to Sec. 1.199-7(d)(1) and Sec. 
1.1502-13, neither S's $1,500 of gain on the sale of QPP to B nor S's 
$2,500 gross receipts from the sale are taken into account in 2010. 
Accordingly, neither S nor B has QPAI in 2010.
    (iii) Consolidated group's 2011 QPAI. B becomes a nonmember of the 
consolidated group at the end of the day on February 28, 2011, the date 
on which P sells 60% of the B stock to X. Under Sec. 1.199-7(d)(1) and 
Sec. 1.1502-13(d), S takes the intercompany transaction into account 
immediately before B becomes a nonmember of the consolidated group. 
Pursuant to Sec. 1.1502-13(d)(1)(ii)(A)(1), because the QPP is owned by 
B, a nonmember of the consolidated group immediately after S's gain is 
taken into account, B is treated as selling the QPP to a nonmember for 
$2,500, B's adjusted basis in the property, immediately before B becomes 
a nonmember of the consolidated group. Accordingly, immediately before B 
becomes a nonmember of the consolidated group, S takes into account 
$1,500 of QPAI (S's $2,500 DPGR received from B-S's $1,000 cost of MPGE 
the QPP).
    (iv) B's 2011 QPAI. Pursuant to Sec. 1.1502-13(d)(2)(i)(B), the 
attributes of B's corresponding item, that is, its sale of the QPP to U, 
are determined as if the S division (but not the B division) were 
transferred by the P, S, and B consolidated group (treated as a single 
corporation) to an unrelated person. Thus, S's activities in MPGE the 
QPP before the intercompany sale of the QPP to B continue to affect the 
attributes of B's sale of the QPP. As such, B is treated as having MPGE 
the QPP. Accordingly, upon its sale of the QPP, B has $500 of QPAI (B's 
$3,000 DPGR received from U minus B's $2,500 cost of MPGE the QPP).
    Example 11. Corporation X is the common parent of a consolidated 
group, consisting of X and Y, which has filed a consolidated Federal 
income tax return for many years. Corporation P is the common parent of 
a consolidated group, consisting of P and S, which has filed a 
consolidated Federal income tax return for many years. The X and P 
consolidated groups each file their consolidated Federal income tax 
returns on a calendar year basis. X, Y, P and S are members of the same 
EAG in 2008. In 2007, the X consolidated group incurred a consolidated 
net operating loss (CNOL) of $25,000, none of which was carried back and 
used to offset taxable income of prior taxable years. Neither P nor S 
(nor the P consolidated group) has ever incurred

[[Page 417]]

an NOL. In 2008, the X consolidated group has (prior to the deduction 
under section 172) taxable income of $8,000 and the P consolidated group 
has taxable income of $20,000. The X consolidated group uses $8,000 of 
its CNOL from 2007 to offset the X consolidated group's taxable income 
in 2008. None of the X consolidated group's remaining CNOL may be used 
to offset taxable income of the P consolidated group under paragraph 
(b)(3) of this section. Accordingly, for purposes of determining the 
EAG's section 199 deduction, the EAG has taxable income of $20,000 (the 
X consolidated group's taxable income (after the deduction under section 
172) of $0 plus the P consolidated group's taxable income of $20,000).

    (f) Allocation of income and loss by a corporation that is a member 
of the expanded affiliated group for only a portion of the year--(1) In 
general. A corporation that becomes or ceases to be a member of an EAG 
during its taxable year must allocate its taxable income or loss, QPAI, 
and W-2 wages between the portion of the taxable year that it is a 
member of the EAG and the portion of the taxable year that it is not a 
member of the EAG. This allocation of items is made by using the pro 
rata allocation method described in this paragraph (f)(1). Under the pro 
rata allocation method, an equal portion of a corporation's taxable 
income or loss, QPAI, and W-2 wages for the taxable year is assigned to 
each day of the corporation's taxable year. Those items assigned to 
those days that the corporation was a member of the EAG are then 
aggregated.
    (2) Coordination with rules relating to the allocation of income 
under Sec. 1.1502-76(b). If Sec. 1.1502-76(b) (relating to items 
included in a consolidated return) applies to a corporation that is a 
member of an EAG, then any allocation of items required under this 
paragraph (f) is made only after the allocation of the corporation's 
items pursuant to Sec. 1.1502-76(b).
    (g) Total section 199 deduction for a corporation that is a member 
of an expanded affiliated group for some or all of its taxable year--(1) 
Member of the same expanded affiliated group for the entire taxable 
year. If a corporation is a member of the same EAG for its entire 
taxable year, the corporation's section 199 deduction for the taxable 
year is the amount of the section 199 deduction allocated to the 
corporation by the EAG under paragraph (c)(1) of this section.
    (2) Member of the expanded affiliated group for a portion of the 
taxable year. If a corporation is a member of an EAG only for a portion 
of its taxable year and is either not a member of any EAG or is a member 
of another EAG, or both, for another portion of the taxable year, the 
corporation's section 199 deduction for the taxable year is the sum of 
its section 199 deductions for each portion of the taxable year.
    (3) Example. The following example illustrates the application of 
paragraphs (f) and (g) of this section:

    Example. (i) Facts. Corporations X and Y, calendar year 
corporations, are members of the same EAG for the entire 2010 taxable 
year. Corporation Z, also a calendar year corporation, is a member of 
the EAG of which X and Y are members for the first half of 2010 and not 
a member of any EAG for the second half of 2010. During the 2010 taxable 
year, neither X, Y, nor Z joins in the filing of a consolidated Federal 
income tax return. Assume that X, Y, and Z each has W-2 wages in excess 
of the section 199(b) wage limitation for all relevant periods. In 2010, 
X has taxable income of $2,000 and QPAI of $600, Y has a taxable loss of 
$400 and QPAI of ($200), and Z has taxable income of $1,400 and QPAI of 
$2,400.
    (ii) Analysis. Pursuant to the pro rata allocation method, $700 of 
Z's 2010 taxable income and $1,200 of Z's 2010 QPAI are allocated to the 
first half of the 2010 taxable year (the period in which Z is a member 
of the EAG) and $700 of Z's 2010 taxable income and $1,200 of Z's 2010 
QPAI are allocated to the second half of the 2010 taxable year (the 
period in which Z is not a member of any EAG). Accordingly, in 2010, the 
EAG has taxable income of $2,300 (X's $2,000 + Y's ($400) + Z's $700) 
and QPAI of $1,600 (X's $600 + Y's ($200) + Z's $1,200). The EAG's 
section 199 deduction for 2010 is therefore $144 (9% of the lesser of 
the EAG's $2,300 of taxable income or $1,600 of QPAI). Pursuant to Sec. 
1.199-7(c)(1), this $144 deduction is allocated to X, Y, and Z in 
proportion to their respective QPAI. Accordingly, X is allocated $48 of 
the EAG's section 199 deduction, Y is allocated $0 of the EAG's section 
199 deduction, and Z is allocated $96 of the EAG's section 199 
deduction. For the second half of 2010, Z has taxable income of $700 and 
QPAI of $1,200. Therefore, for the second half of 2010, Z has a section 
199 deduction of $63 (9% of the lesser of its $700 taxable income or 
$1,200 QPAI for the second half of 2010). Accordingly, X's 2010 section 
199 deduction is $48, Y's 2010 section 199 deduction is $0, and Z's 2010 
section 199 deduction

[[Page 418]]

is $159, the sum of the $96 section 199 deduction of the EAG allocated 
to Z for the first half of 2010 and Z's $63 section 199 deduction for 
the second half of 2010.

    (h) Computation of section 199 deduction for members of an expanded 
affiliated group with different taxable years--(1) In general. If 
members of an EAG have different taxable years, in determining the 
section 199 deduction of a member (the computing member), the computing 
member is required to take into account the taxable income or loss, 
determined without regard to the section 199 deduction, QPAI, and W-2 
wages of each other group member that are both--
    (i) Attributable to the period that each other member of the EAG and 
the computing member are members of the EAG; and
    (ii) Taken into account in a taxable year that begins after the 
effective date of section 199 and such taxable year ends with or within 
the taxable year of the computing member with respect to which the 
section 199 deduction is computed.
    (2) Example. The following example illustrates the application of 
this paragraph (h):

    Example. (i) Corporations X, Y, and Z are members of the same EAG. 
Neither X, Y, nor Z is a member of a consolidated group. X and Y are 
calendar year taxpayers and Z is a June 30 fiscal year taxpayer. Z came 
into existence on July 1, 2007. Each corporation has taxable income that 
exceeds its QPAI and has sufficient W-2 wages to avoid the limitation 
under section 199(b). For the taxable year ending December 31, 2007, X's 
QPAI is $8,000 and Y's QPAI is ($6,000). For its taxable year ending 
June 30, 2008, Z's QPAI is $2,000.
    (ii) In computing X's and Y's respective section 199 deductions for 
their taxable years ending December 31, 2007, X's and Y's taxable 
income, QPAI, and W-2 wages from their respective taxable years ending 
December 31, 2007, are aggregated. The EAG's QPAI for this purpose is 
$2,000 (X's QPAI of $8,000 + Y's QPAI of ($6,000)). Because the taxable 
years of the computing members, X and Y, began in 2007, the transition 
percentage under section 199(a)(2) is 6%. Accordingly, the EAG's section 
199 deduction is $120 ($2,000 x .06). The $120 deduction is allocated to 
each of X and Y in proportion to their respective QPAI as a percentage 
of the QPAI of each member of the EAG that was taken into account in 
computing the EAG's section 199 deduction. Pursuant to paragraph (c)(1) 
of this section, in allocating the section 199 deduction between X and 
Y, because Y's QPAI is negative, Y's QPAI is treated as being $0. 
Accordingly, X's section 199 deduction for its taxable year ending 
December 31, 2007, is $120 ($120 x $8,000/($8,000 + $0)). Y's section 
199 deduction for its taxable year ending December 31, 2007, is $0 ($120 
x $0/($8,000 + $0)).
    (iii) In computing Z's section 199 deduction for its taxable year 
ending June 30, 2008, X's and Y's items from their respective taxable 
years ending December 31, 2007, are taken into account. Therefore, X's 
and Y's taxable income or loss, determined without regard to the section 
199 deduction, QPAI, and W-2 wages from their taxable years ending 
December 31, 2007, are aggregated with Z's taxable income or loss, QPAI, 
and W-2 wages from its taxable year ending June 30, 2008. The EAG's QPAI 
is $4,000 (X's QPAI of $8,000 + Y's QPAI of ($6,000) + Z's QPAI of 
$2,000). Because the taxable year of the computing member, Z, began in 
2007, the transition percentage under section 199(a)(2) is 6%. 
Accordingly, the EAG's section 199 deduction is $240 ($4,000 x .06). A 
portion of the $240 deduction is allocated to Z in proportion to its 
QPAI as a percentage of the QPAI of each member of the EAG that was 
taken into account in computing the EAG's section 199 deduction. 
Pursuant to paragraph (c)(1) of this section, in allocating a portion of 
the $240 deduction to Z, because Y's QPAI is negative, Y's QPAI is 
treated as being $0. Z's section 199 deduction for its taxable year 
ending June 30, 2008, is $48 ($240 x $2,000/($8,000 + $0 + $2,000)).

[T.D. 9263, 71 FR 31283, June 1, 2006, as amended by T.D. 9293, 71 FR 
61679, Oct. 19, 2006; 72 FR 6, Jan. 3, 2007; T.D. 9381, 73 FR 8813, Feb. 
15, 2008; T.D. 9384, 73 FR 12271, Mar. 7, 2008]



Sec. 1.199-8  Other rules.

    (a) In general. The provisions of this section apply solely for 
purposes of section 199 of the Internal Revenue Code (Code). When 
calculating the deduction under Sec. 1.199-1(a) (section 199 
deduction), taxpayers are required to make numerous allocations under 
Sec. Sec. 1.199-1 through 1.199-9. In making these allocations, 
taxpayers may use any reasonable method that is satisfactory to the 
Secretary based on all of the facts and circumstances, unless the 
regulations under Sec. Sec. 1.199-1 through 1.199-9 specify a method. A 
change in a taxpayer's method of allocating or apportioning gross 
receipts, cost of goods sold (CGS), expenses, losses, or deductions 
(deductions) does not constitute a change in method of accounting to 
which the provisions of sections 446 and 481 and the

[[Page 419]]

regulations thereunder apply. For purposes of Sec. Sec. 1.199-1 through 
1.199-9, use of terms such as payment, paid, incurred, or paid or 
incurred is not intended to provide any specific rule based upon the use 
of one term versus another. In general, the use of the term payment, 
paid, incurred, or paid or incurred is intended to convey the 
appropriate standard under the taxpayer's method of accounting.
    (b) Individuals. In the case of an individual, the section 199 
deduction is equal to the applicable percentage of the lesser of the 
taxpayer's qualified production activities income (QPAI) (as defined in 
Sec. 1.199-1(c)) for the taxable year, or adjusted gross income (AGI) 
for the taxable year determined after applying sections 86, 135, 137, 
219, 221, 222, and 469, and without regard to section 199.
    (c) Trade or business requirement--(1) In general. Sections 1.199-1 
through 1.199-9 are applied by taking into account only items that are 
attributable to the actual conduct of a trade or business.
    (2) Individuals. An individual engaged in the actual conduct of a 
trade or business must apply Sec. Sec. 1.199-1 through 1.199-9 by 
taking into account in computing QPAI only items that are attributable 
to that trade or business (or trades or businesses) and any items 
allocated from a pass-thru entity engaged in a trade or business. 
Compensation received by an individual employee for services performed 
as an employee is not considered gross receipts for purposes of 
computing QPAI under Sec. Sec. 1.199-1 through 1.199-9. Similarly, any 
costs or expenses paid or incurred by an individual employee with 
respect to those services performed as an employee are not considered 
CGS or deductions of that employee for purposes of computing QPAI under 
Sec. Sec. 1.199-1 through 1.199-9.
    (3) Trusts and estates. For purposes of this paragraph (c), a trust 
or estate is treated as an individual.
    (d) Coordination with alternative minimum tax. For purposes of 
determining alternative minimum taxable income (AMTI) under section 55, 
a taxpayer that is not a corporation must deduct an amount equal to 9 
percent (3 percent in the case of taxable years beginning in 2005 or 
2006, and 6 percent in the case of taxable years beginning in 2007, 
2008, or 2009) of the lesser of the taxpayer's QPAI for the taxable 
year, or the taxpayer's taxable income for the taxable year, determined 
without regard to the section 199 deduction (or in the case of an 
individual, AGI). For purposes of determining AMTI in the case of a 
corporation (including a corporation subject to tax under section 
511(a)), a taxpayer must deduct an amount equal to 9 percent (3 percent 
in the case of taxable years beginning in 2005 or 2006, and 6 percent in 
the case of taxable years beginning in 2007, 2008, or 2009) of the 
lesser of the taxpayer's QPAI for the taxable year, or the taxpayer's 
AMTI for the taxable year, determined without regard to the section 199 
deduction. For purposes of computing AMTI, QPAI is determined without 
regard to any adjustments under sections 56 through 59. In the case of 
an individual or a non-grantor trust or estate, AGI and taxable income 
are also determined without regard to any adjustments under sections 56 
through 59. The amount of the deduction allowable under this paragraph 
(d) for any taxable year cannot exceed 50 percent of the W-2 wages of 
the employer for the taxable year (as determined under Sec. 1.199-2). 
The section 199 deduction is not taken into account in determining the 
amount of the alternative tax net operating loss deduction (ATNOL) 
allowed under section 56(a)(4). For example, assume that for the 
calendar year 2007, a corporation has both AMTI (before the NOL 
deduction and before the section 199 deduction) and QPAI of $1,000,000, 
and has an ATNOL carryover to 2007 of $5,000,000. Assume that the 
taxpayer has W-2 wages in excess of the section 199(b) wage limitation. 
Under section 56(d), the ATNOL deduction for 2007 is $900,000 (90 
percent of $1,000,000), reducing AMTI to $100,000. The taxpayer must 
then further reduce the AMTI by the section 199 deduction of $6,000 (six 
percent of the lesser of $1,000,000 or $100,000) to $94,000. The ATNOL 
carryover to 2008 is $4,100,000.
    (e) Nonrecognition transactions--(1) In general--(i) Sections 351, 
721, and 731. Except as provided for an EAG partnership (as defined in 
Sec. Sec. 1.199-3(i)(8) and 1.199-9(j)) and an expanded affiliated

[[Page 420]]

group (EAG) (as defined in Sec. 1.199-7), if property is transferred by 
the taxpayer to an entity in a transaction to which section 351 or 721 
applies, then whether the gross receipts derived by the entity are 
domestic production gross receipts (DPGR) (as defined in Sec. 1.199-3) 
shall be determined based solely on the activities performed by the 
entity without regard to the activities performed by the taxpayer prior 
to the contribution of the property to the entity. Except as provided 
for a qualifying in-kind partnership (as defined in Sec. Sec. 1.199-
3(i)(7) and 1.199-9(i)) and an EAG partnership, if property is 
transferred by a partnership to a partner in a transaction to which 
section 731 applies, then whether gross receipts derived by the partner 
are DPGR shall be determined based on the activities performed by the 
partner without regard to the activities performed by the partnership 
before the distribution of the property to the partner.
    (ii) Exceptions--(A) Section 708(b)(1)(B). If property is deemed to 
be contributed by a partnership (transferor partnership) to another 
partnership (transferee partnership) as a result of a termination under 
section 708(b)(1)(B), then the transferee partnership shall be treated 
as performing those activities performed by the transferor partnership 
with respect to the transferred property of the transferor partnership.
    (B) Transfers by reason of death. If property is transferred upon or 
by reason of the death of an individual (decedent), then the decedent's 
successor(s) in interest shall be treated as having performed those 
activities performed by or deemed to have been performed (pursuant to 
Sec. 1.199-3(i)(7) or Sec. 1.199-9(i)) by the decedent with respect to 
the transferred property. For this purpose, a transfer shall include 
without limitation the passing of the property by bequest, contractual 
provision, beneficiary designation, or operation of law, and successor 
in interest shall include without limitation the decedent's heirs or 
legatees, the decedent's estate or trust, or the beneficiary or 
beneficiaries of the decedent's estate or trust.
    (2) Section 1031 exchanges. If a taxpayer exchanges property for 
replacement property in a transaction to which section 1031 applies, 
then whether the gross receipts derived from the lease, rental, license, 
sale, exchange, or other disposition of the replacement property are 
DPGR shall be determined based solely on the activities performed by the 
taxpayer with respect to the replacement property.
    (3) Section 381 transactions. If a corporation (the acquiring 
corporation) acquires the assets of another corporation (the target 
corporation) in a transaction to which section 381(a) applies, then the 
acquiring corporation shall be treated as performing those activities of 
the target corporation with respect to the acquired assets of the target 
corporation. Therefore, to the extent that the acquired assets of the 
target corporation would have given rise to DPGR if leased, rented, 
licensed, sold, exchanged, or otherwise disposed of by the target 
corporation, such assets will give rise to DPGR if leased, rented, 
licensed, sold, exchanged, or otherwise disposed of by the acquiring 
corporation (assuming all the other requirements of Sec. 1.199-3 are 
met).
    (f) Taxpayers with a 52-53 week taxable year. For purposes of 
applying Sec. 1.441-2(c)(1) in the case of a taxpayer using a 52-53 
week taxable year, any reference in section 199(a)(2) (the phase-in 
rule), Sec. Sec. 1.199-1 through 1.199-9 to a taxable year beginning 
after a particular calendar year means a taxable year beginning after 
December 31st of that year. Similarly, any reference to a taxable year 
beginning in a particular calendar year means a taxable year beginning 
after December 31st of the preceding calendar year. For example, a 52-53 
week taxable year that begins on December 26, 2006, is deemed to begin 
on January 1, 2007, and the transition percentage for that taxable year 
is 6 percent.
    (g) Section 481(a) adjustments. For purposes of determining QPAI, a 
section 481(a) adjustment, whether positive or negative, taken into 
account by a taxpayer during the taxable year that is solely 
attributable to either the taxpayer's gross receipts, CGS, or deductions 
must be allocated or apportioned between DPGR and non-DPGR using

[[Page 421]]

the methods used by a taxpayer to allocate or apportion gross receipts, 
CGS, and deductions between DPGR and non-DPGR for the current taxable 
year. See Sec. Sec. 1.199-1 and 1.199-4 for rules related to the 
allocation and apportionment of gross receipts, CGS, and deductions, 
respectively. For example, if a taxpayer changes its method of 
accounting for inventories from the last-in, first-out (LIFO) method to 
the first-in, first-out (FIFO) method and the taxpayer uses the small 
business simplified overall method to apportion CGS between DPGR and 
non-DPGR, the taxpayer is required to apportion the resulting section 
481(a) adjustment, whether positive or negative, between DPGR and non-
DPGR using the small business simplified overall method. If a section 
481(a) adjustment is not solely attributable to either gross receipts, 
CGS, or deductions (for example, the taxpayer changes its overall method 
of accounting from an accrual method to the cash method) and the section 
481(a) adjustment cannot be specifically identified with either gross 
receipts, CGS, or deductions, then the section 481(a) adjustment, 
whether positive or negative, must be attributed to, or among, gross 
receipts, CGS, or deductions using any reasonable method that is 
satisfactory to the Secretary based on all of the facts and 
circumstances, and then allocated or apportioned between DPGR and non-
DPGR using the same methods the taxpayer uses to allocate or apportion 
gross receipts, CGS, or deductions between DPGR and non-DPGR for the 
taxable year or taxable years that the section 481(a) adjustment is 
taken into account. Factors taken into consideration in determining 
whether the method is reasonable include whether the taxpayer uses the 
most accurate information available; the relationship between the 
section 481(a) adjustment and the apportionment base chosen; the 
accuracy of the method chosen as compared with other possible methods; 
and the time, burden, and cost of using alternative methods. If a 
section 481(a) adjustment is spread over more than one taxable year, 
then a taxpayer must attribute the section 481(a) adjustment among gross 
receipts, CGS, or deductions, as applicable, in the same amount for each 
taxable year within the spread period. For example, if a taxpayer, using 
a reasonable method that is satisfactory to the Secretary based on all 
of the facts and circumstances, determines that a section 481(a) 
adjustment that is required to be spread over four taxable years should 
be attributed half to gross receipts and half to deductions, then the 
taxpayer must attribute the section 481(a) adjustment half to gross 
receipts and half to deductions in each of the four taxable years of the 
spread period. Further, if such taxpayer uses the simplified deduction 
method to apportion deductions between DPGR and non-DPGR in the first 
taxable year of the spread period, then the taxpayer must use the 
simplified deduction method to apportion half the section 481(a) 
adjustment for that taxable year between DPGR and non-DPGR for that 
taxable year. Similarly, if in the second taxable year of the spread 
period the taxpayer uses the section 861 method to apportion and 
allocate costs between DPGR and non-DPGR, then the taxpayer must use the 
section 861 method to allocate and apportion half the section 481(a) 
adjustment for that taxable year between DPGR and non-DPGR for that 
taxable year.
    (h) Disallowed losses or deductions. Except as provided by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), losses or deductions of a 
taxpayer that otherwise would be taken into account in computing the 
taxpayer's section 199 deduction are taken into account only if and to 
the extent the deductions are not disallowed by section 465 or 469, or 
any other provision of the Code. If only a portion of the taxpayer's 
share of the losses or deductions is allowed for a taxable year, the 
proportionate share of those allowable losses or deductions that are 
allocated to the taxpayer's qualified production activities, determined 
in a manner consistent with sections 465 and 469, and any other 
applicable provision of the Code, is taken into account in computing 
QPAI for purposes of the section 199 deduction for that taxable year. To 
the extent that any of the disallowed losses or deductions are allowed 
in a later year,

[[Page 422]]

the taxpayer takes into account a proportionate share of those losses or 
deductions in computing it QPAI for that later taxable year. Losses or 
deductions of the taxpayer that are disallowed for taxable years 
beginning on or before December 31, 2004, are not taken into account in 
a later year for purposes of computing the taxpayer's QPAI and the wage 
limitation of section 199(d)(1)(A)(iii) under Sec. 1.199-9 for that 
taxable year, regardless of whether the losses or deductions are allowed 
for other purposes. For taxpayers that are partners in partnerships, see 
Sec. Sec. 1.199-5(b)(2) and 1.199-9(b)(2). For taxpayers that are 
shareholders in S corporations, see Sec. Sec. 1.199-5(c)(2) and 
1.199(c)(2).
    (i) Effective dates--(1) In general. Section 199 applies to taxable 
years beginning after December 31, 2004. Sections 1.199-1 through 1.199-
8 are applicable for taxable years beginning on or after June 1, 2006. 
For a taxable year beginning on or before May 17, 2006, the enactment 
date of the Tax Increase Prevention and Reconciliation Act of 2005 (Pub. 
L. 109-222, 120 Stat. 345), a taxpayer may apply Sec. Sec. 1.199-1 
through 1.199-9 provided that the taxpayer applies all provisions in 
Sec. Sec. 1.199-1 through 1.199-9 to the taxable year. For a taxable 
year beginning after May 17, 2006, and before June 1, 2006, a taxpayer 
may apply Sec. Sec. 1.199-1 through 1.199-8 provided that the taxpayer 
applies all provisions in Sec. Sec. 1.199-1 through 1.199-8 to the 
taxable year. For a taxpayer who chooses not to rely on these final 
regulations for a taxable year beginning before June 1, 2006, the 
guidance under section 199 that applies to such taxable year is 
contained in Notice 2005-14 (2005-1 C.B. 498) (see Sec. 601.601(d)(2) 
of this chapter). In addition, a taxpayer also may rely on the 
provisions of REG-105847-05 (2005-47 I.R.B. 987) (see Sec. 
601.601(d)(2) of this chapter) for a taxable year beginning before June 
1, 2006. If Notice 2005-14 and REG-105847-05 include different rules for 
the same particular issue, then a taxpayer may rely on either the rule 
set forth in Notice 2005-14 or the rule set forth in REG-105847-05. 
However, if REG-105847-05 includes a rule that was not included in 
Notice 2005-14, then a taxpayer is not permitted to rely on the absence 
of a rule in Notice 2005-14 to apply a rule contrary to REG-105847-05. 
For taxable years beginning after May 17, 2006, and before June 1, 2006, 
a taxpayer may not apply Notice 2005-14, REG-105847-05, or any other 
guidance under section 199 in a manner inconsistent with amendments made 
to section 199 by section 514 of the Tax Increase Prevention and 
Reconciliation Act of 2005.
    (2) Pass-thru entities. In determining the deduction under section 
199, items arising from a taxable year of a partnership, S corporation, 
estate, or trust beginning before January 1, 2005, shall not be taken 
into account for purposes of section 199(d)(1).
    (3) Non-consolidated EAG members. A member of an EAG that is not a 
member of a consolidated group may apply paragraph (i)(1) of this 
section without regard to how other members of the EAG apply paragraph 
(i)(1) of this section.
    (4) Computer software. Section 1.199-3(i)(5)(ii)(B) and (i)(6)(ii) 
through (v) are applicable for taxable years beginning on or after March 
20, 2007. A taxpayer may apply Sec. 1.199-3(i)(5)(ii)(B) and (i)(6)(ii) 
through (v) to taxable years beginning after December 31, 2004, and 
before March 20, 2007.
    (5) Tax Increase Prevention and Reconciliation Act of 2005. Sections 
1.199-2(e)(2), 1.199-3(i)(7) and (8), and 1.199-5 are applicable for 
taxable years beginning on or after October 19, 2006. A taxpayer may 
apply Sec. Sec. 1.199-2(e)(2), 1.199-3(i)(7) and (8), and 1.199-5 to 
taxable years beginning after May 17, 2006, and before October 19, 2006, 
regardless of whether the taxpayer otherwise relied upon Notice 2005-14 
(2005-1 CB 498) (see Sec. 601.601(d)(2)(ii)(b) of this chapter), the 
provisions of REG-105847-05 (2005-2 CB 987), or Sec. Sec. 1.199-1 
through 1.199-8.
    (6) Losses used to reduce taxable income of expanded affiliated 
group. Section 1.199-7(b)(4) is applicable for taxable years beginning 
on or after February 15, 2008. For taxable years beginning on or after 
October 19, 2006, and before February 15, 2008, see Sec. 1.199-7T(b)(4) 
(see 26 CFR part 1 revised as of April 1, 2007).
    (7) Agricultural and horticultural cooperatives. Section 1.199-6(c) 
is applicable for taxable years beginning on or after March 20, 2007. A 
taxpayer may

[[Page 423]]

apply Sec. 1.199-(6)(c) to taxable years beginning after December 31, 
2004, and before March 20, 2007.
    (8) Qualified film produced by the taxpayer. Section 1.199-3(k) is 
applicable to taxable years beginning on or after March 7, 2008. A 
taxpayer may apply Sec. 1.199-3(k) to taxable years beginning after 
December 31, 2004, and before March 7, 2008. However, for taxable years 
beginning before June 1, 2006, a taxpayer may rely on Sec. 1.199-3(k) 
only if the taxpayer does not apply Notice 2005-14 (2005-1 CB 498) (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter) or REG-105847-05 (2005-2 CB 
987) (see Sec. 601.601(d)(2)(ii)(b) of this chapter) to the taxable 
year.
    (9) Expanded affiliated groups. Section 1.199-7(e), Example 10, 
(f)(1), and (g)(3) are applicable to taxable years beginning on or after 
March 7, 2008. A taxpayer may apply Sec. 1.199-7(e), Example 10, to 
taxable years beginning after December 31, 2004, and before March 7, 
2008.

[T.D. 9263, 71 FR 31283, June 1, 2006, as amended by T.D. 9293, 71 FR 
61680, Oct. 19, 2006; T.D. 9263,72 FR 6, Jan. 3, 2007; T.D. 9317, 72 FR 
12973, Mar. 20, 2007; T.D. 9381, 73 FR 8814, Feb. 15, 2008; T.D. 9384, 
73 FR 12272, Mar. 7, 2008; T.D. 9381, 73 FR 16519, Mar. 28, 2008]



Sec. 1.199-9  Application of section 199 to pass-thru entities for 
taxable years beginning on or before May 17, 2006, the enactment date 

of the Tax Increase Prevention and Reconciliation Act of 2005.

    (a) In general. The provisions of this section apply solely for 
purposes of section 199 of the Internal Revenue Code (Code).
    (b) Partnerships--(1) In general--(i) Determination at partner 
level. The deduction with respect to the qualified production activities 
of the partnership allowable under Sec. 1.199-1(a) (section 199 
deduction) is determined at the partner level. As a result, each partner 
must compute its deduction separately. The section 199 deduction has no 
effect on the adjusted basis of the partner's interest in the 
partnership. Except as provided by publication pursuant to paragraph 
(b)(1)(ii) of this section, for purposes of this section, each partner 
is allocated, in accordance with sections 702 and 704, its share of 
partnership items (including items of income, gain, loss, and 
deduction), cost of goods sold (CGS) allocated to such items of income, 
and gross receipts that are included in such items of income, even if 
the partner's share of CGS and other deductions and losses exceeds 
domestic production gross receipts (DPGR) (as defined in Sec. 1.199-
3(a)) and regardless of the amount of the partner's share of W-2 wages 
(as defined in Sec. 1.199-2(e)) of the partnership for the taxable 
year. A partnership may specially allocate items of income, gain, loss, 
or deduction to its partners, subject to the rules of section 704(b) and 
the supporting regulations. Guaranteed payments under section 707(c) are 
not considered allocations of partnership income for purposes of this 
section. Guaranteed payments under section 707(c) are deductions by the 
partnership that must be taken into account under the rules of Sec. 
1.199-4. See Sec. 1.199-3(p) and paragraph (b)(6) Example 5 of this 
section. Except as provided in paragraph (b)(1)(ii) of this section, to 
determine its section 199 deduction for the taxable year, a partner 
aggregates its distributive share of such items, to the extent they are 
not otherwise disallowed by the Code, with those items it incurs outside 
the partnership (whether directly or indirectly) for purposes of 
allocating and apportioning deductions to DPGR and computing its 
qualified production activities income (QPAI) (as defined in Sec. 
1.199-1(c)).
    (ii) Determination at entity level. The Secretary may, by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), permit a partnership to calculate 
a partner's share of QPAI at the entity level, instead of allocating, in 
accordance with sections 702 and 704, the partner's share of partnership 
items (including items of income, gain, loss, and deduction). If a 
partnership does calculate QPAI at the entity level--
    (A) The partner is allocated its share of QPAI and W-2 wages (as 
defined in Sec. 1.199-2(e)), which (subject to the limitations of 
paragraph (b)(2) of this section and section 199(d)(1)(A)(iii), 
respectively) are combined with the partner's QPAI and W-2 wages from 
other sources;
    (B) For purposes of computing the partner's QPAI under Sec. Sec. 
1.199-1 through

[[Page 424]]

1.199-9, a partner does not take into account the items from the 
partnership (for example, a partner does not take into account items 
from the partnership in determining whether a threshold or de minimis 
rule applies or in allocating and apportioning deductions) in 
calculating its QPAI from other sources;
    (C) A partner generally does not recompute its share of QPAI from 
the partnership using another method; however, the partner might have to 
adjust its share of QPAI from the partnership to take into account 
certain disallowed losses or deductions, or the allowance of suspended 
losses or deductions; and
    (D) A partner's distributive share of QPAI from a partnership may be 
less than zero.
    (2) Disallowed losses or deductions. Except as provided by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), losses or deductions of a 
partnership that otherwise would be taken into account in computing the 
partner's section 199 deduction for a taxable year are taken into 
account in that year only if and to the extent the partner's 
distributive share of those losses or deductions from all of the 
partnership's activities is not disallowed by section 465, 469, or 
704(d), or any other provision of the Code. If only a portion of the 
partner's distributive share of the losses or deductions is allowed for 
a taxable year, a proportionate share of those allowable losses or 
deductions that are allocated to the partnership's qualified production 
activities, determined in a manner consistent with sections 465, 469, 
and 704(d), and any other applicable provision of the Code, is taken 
into account in computing QPAI and the wage limitation of section 
199(d)(1)(A)(iii) for that taxable year. To the extent that any of the 
disallowed losses or deductions are allowed in a later taxable year, the 
partner takes into account a proportionate share of those losses or 
deductions in computing its QPAI for that later taxable year. Losses or 
deductions of the partnership that are disallowed for taxable years 
beginning on or before December 31, 2004, are not taken into account in 
a later taxable year for purposes of computing the partner's QPAI or the 
wage limitation of section 199(d)(1)(A)(iii) for that taxable year, 
regardless of whether the losses or deductions are allowed for other 
purposes.
    (3) Partner's share of W-2 wages. Under section 199(d)(1)(A)(iii), a 
partner's share of W-2 wages of a partnership for purposes of 
determining the partner's section 199(b) wage limitation is the lesser 
of the partner's allocable share of those wages (without regard to 
section 199(d)(1)(A)(iii)), or 2 times 3 percent of the QPAI computed by 
taking into account only the items of the partnership allocated to the 
partner for the taxable year of the partnership. Except as provided by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), this QPAI calculation is 
performed by the partner using the same cost allocation method that the 
partner uses in calculating the partner's section 199 deduction. The 
partnership must allocate W-2 wages (prior to the application of the 
wage limitation) among the partners in the same manner as wage expense. 
The partner must add the partner's share of the W-2 wages from the 
partnership, as limited by section 199(d)(1)(A)(iii), to the partner's 
W-2 wages from other sources, if any. If QPAI, computed by taking into 
account only the items of the partnership allocated to the partner for 
the taxable year (as required by the wage limitation of section 
199(d)(1)(A)(iii)) is not greater than zero, then the partner may not 
take into account any W-2 wages of the partnership in applying the wage 
limitation of Sec. 1.199-2 (but the partner will, nevertheless, 
aggregate its distributive share of partnership items including wage 
expense with those items not from the partnership in computing its QPAI 
when determining its section 199 deduction). See Sec. 1.199-2 for the 
computation of W-2 wages, and paragraph (g) of this section for rules 
regarding pass-thru entities in a tiered structure.
    (4) Transition percentage rule for W-2 wages. With regard to 
partnerships, for purposes of section 199(d)(1)(A)(iii)(II) the 
transition percentages determined under section 199(a)(2) shall be 
determined by reference to the partnership's taxable year. Thus, if a 
partner uses a

[[Page 425]]

calendar year taxable year, and owns an interest in a partnership that 
has a taxable year ending on April 30, the partner's section 
199(d)(1)(A)(iii) wage limitation for the partnership's taxable year 
beginning on May 1, 2006, would be calculated using 3 percent, even 
though the partner includes the partner's distributive share of 
partnership items from that taxable year on the partner's 2007 Federal 
income tax return.
    (5) Partnerships electing out of subchapter K. For purposes of 
Sec. Sec. 1.199-1 through 1.199-9, the rules of this paragraph (b) 
apply to all partnerships, including those partnerships electing under 
section 761(a) to be excluded, in whole or in part, from the application 
of subchapter K of chapter 1 of the Code.
    (6) Examples. The following examples illustrate the application of 
this paragraph (b). Assume that each partner has sufficient adjusted 
gross income or taxable income so that the section 199 deduction is not 
limited under section 199(a)(1)(B); that the partnership and each of its 
partners (whether individual or corporate) are calendar year taxpayers; 
and that the amount of the partnership's W-2 wages equals wage expense 
for each taxable year. The examples are as follows:

    Example 1. Section 861 method with interest expense. (i) Partnership 
Federal income tax items. X and Y, unrelated United States corporations, 
are each 50% partners in PRS, a partnership that engages in production 
activities that generate both DPGR and non-DPGR. X and Y share all items 
of income, gain, loss, deduction, and credit 50% each. Both X and Y are 
engaged in a trade or business. PRS is not able to specifically identify 
CGS allocable to DPGR and non-DPGR. In this case, because CGS is 
definitely related under the facts and circumstances to all of PRS's 
gross income, apportionment of CGS between DPGR and non-DPGR based on 
gross receipts is appropriate. For 2006, the adjusted basis of PRS's 
business assets is $5,000, $4,000 of which generate gross income 
attributable to DPGR and $1,000 of which generate gross income 
attributable to non-DPGR. For 2006, PRS has the following Federal income 
items:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR....................................................          $3,000
Non-DPGR................................................           3,000
CGS (includes $200 of W-2 wages)........................           3,240
Section 162 selling expenses (includes $300 of W-2                 1,200
 wages).................................................
Interest expense (not included in CGS)..................             300
------------------------------------------------------------------------

    (ii) Allocation of PRS's items of income, gain, loss, deduction, or 
credit. X and Y each receive the following distributive share of PRS's 
items of income, gain, loss, deduction or credit, as determined under 
the principles of Sec. 1.704-1(b)(1)(vii):

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Gross income attributable to DPGR ($1,500 (DPGR) - $810             $690
 (allocable CGS, includes $50 of W-2 wages))............
Gross income attributable to non-DPGR ($1,500 (non-DPGR)             690
 - $810 (allocable CGS, includes $50 of W-2 wages)).....
Section 162 selling expenses (includes $150 of W-2                   600
 wages).................................................
Interest expense (not included in CGS)..................             150
------------------------------------------------------------------------

    (iii) Determination of QPAI. (A) X's QPAI. Because the section 199 
deduction is determined at the partner level, X determines its QPAI by 
aggregating, to the extent necessary, its distributive share of PRS's 
Federal income tax items with all other such items from all other, non-
PRS-related activities. For 2006, X does not have any other such items. 
For 2006, the adjusted basis of X's non-PRS assets, all of which are 
investment assets, is $10,000. X's only gross receipts for 2006 are 
those attributable to the allocation of gross income from PRS. X 
allocates and apportions its deductible items to gross income 
attributable to DPGR under the section 861 method of Sec. 1.199-4(d). 
In this case, the section 162 selling expenses (including W-2 wages) are 
definitely related to all of PRS's gross receipts. Based on the facts 
and circumstances of this specific case, apportionment of those expenses 
between DPGR and non-DPGR on the basis of PRS's gross receipts is 
appropriate. X elects to apportion its distributive share of interest 
expense under the tax book value method of Sec. 1.861-

[[Page 426]]

9T(g). X's QPAI for 2006 is $366, as shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR...................................................          $1,500
CGS allocable to DPGR (includes $50 of W-2 wages)......            (810)
Section 162 selling expenses (includes $75 of W-2                  (300)
 wages) ($600 x $1,500/$3,000).........................
Interest expense (not included in CGS) ($150 x $2,000               (24)
 (X's share of PRS's DPGR assets)/$12,500 (X's non-PRS
 assets ($10,000) and X's share of PRS assets
 ($2,500)))............................................
                                                        ----------------
X's QPAI...............................................             366
------------------------------------------------------------------------

    (B) Y's QPAI. (1) For 2006, in addition to the activities of PRS, Y 
engages in production activities that generate both DPGR and non-DPGR. Y 
is able to specifically identify CGS allocable to DPGR and to non-DPGR. 
For 2006, the adjusted basis of Y's non-PRS assets attributable to its 
production activities that generate DPGR is $8,000 and to other 
production activities that generate non-DPGR is $2,000. Y has no other 
assets. Y has the following Federal income tax items relating to its 
non-PRS activities:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Gross income attributable to DPGR ($1,500 (DPGR) - $900             $600
 (allocable CGS, includes $70 of W-2 wages))............
Gross income attributable to non-DPGR ($3,000 (other               1,380
 gross receipts) - $1,620 (allocable CGS, includes $150
 of W-2 wages)).........................................
Section 162 selling expenses (includes $30 of W-2 wages)             540
Interest expense (not included in CGS)..................              90
------------------------------------------------------------------------

    (2) Y determines its QPAI in the same general manner as X. However, 
because Y has other trade or business activities outside of PRS, Y must 
aggregate its distributive share of PRS's Federal income tax items with 
its own such items. Y allocates and apportions its deductible items to 
gross income attributable to DPGR under the section 861 method of Sec. 
1.199-4(d). In this case, Y's distributive share of PRS's section 162 
selling expenses (including W-2 wages), as well as those selling 
expenses from Y's non-PRS activities, are definitely related to all of 
its gross income. Based on the facts and circumstances of this specific 
case, apportionment of those expenses between DPGR and non-DPGR on the 
basis of Y's gross receipts is appropriate. Y elects to apportion its 
distributive share of interest expense under the tax book value method 
of Sec. 1.861-9T(g). Y has $1,290 of gross income attributable to DPGR 
($3,000 DPGR ($1,500 from PRS and $1,500 from non-PRS activities)--
$1,710 CGS ($810 from PRS and $900 from non-PRS activities)). Y's QPAI 
for 2006 is $642, as shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR ($1,500 from PRS and $1,500 from non-PRS                    $3,000
 activities)...........................................
CGS allocable to DPGR ($810 from PRS and $900 from non-          (1,710)
 PRS activities) (includes $120 of W-2 wages)..........
Section 162 selling expenses (includes $180 of W-2                 (456)
 wages) ($1,140 ($600 from PRS and $540 from non-PRS
 activities) x ($1,500 PRS DPGR + $1,500 non-PRS DPGR)/
 ($3,000 PRS total gross receipts + $4,500 non-PRS
 total gross receipts))................................
Interest expense (not included in CGS) ($240 ($150 from            (192)
 PRS and $90 from non-PRS activities) x $10,000 (Y's
 non-PRS DPGR assets ($8,000) and Y's share of PRS DPGR
 assets ($2,000))/$12,500 (Y's non-PRS assets ($10,000)
 and Y's share of PRS assets ($2,500)))................
                                                        ----------------
Y's QPAI...............................................             642
------------------------------------------------------------------------


[[Page 427]]

    (iv) PRS W-2 wages allocated to X and Y under section 
199(d)(1)(A)(iii). Solely for purposes of calculating the PRS W-2 wages 
that are allocated to them under section 199(d)(1)(A)(iii) for purposes 
of the wage limitation of section 199(b), X and Y must separately 
determine QPAI taking into account only the items of PRS allocated to 
them. X and Y must use the same methods of allocation and apportionment 
that they use to determine their QPAI in paragraphs (iii)(A) and (B) of 
this Example 1, respectively. Accordingly, X and Y must apportion 
deductible section 162 selling expenses that include W-2 wage expense on 
the basis of gross receipts, and must apportion interest expense 
according to the tax book value method of Sec. 1.861-9T(g).
    (A) QPAI of X and Y, solely for this purpose, is determined by 
allocating and apportioning each partner's share of PRS expenses to each 
partner's share of PRS gross income of $690 attributable to DPGR ($1,500 
DPGR-$810 CGS, apportioned based on gross receipts). Thus, QPAI of X and 
Y solely for this purpose is $270, as shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR...................................................          $1,500
CGS allocable to DPGR..................................            (810)
Section 162 selling expenses (including W-2 wages)                 (300)
 ($600 x ($1,500/$3,000))..............................
Interest expense (not included in CGS) ($150 x $2,000              (120)
 (partner's share of adjusted basis of PRS's DPGR
 assets)/$2,500 (partner's share of adjusted basis of
 total PRS assets))....................................
                                                        ----------------
QPAI...................................................             270
------------------------------------------------------------------------

    (B) X's and Y's shares of PRS's W-2 wages determined under section 
199(d)(1)(A)(iii) for purposes of the wage limitation of section 199(b) 
are $16, the lesser of $250 (partner's allocable share of PRS's W-2 
wages ($100 included in total CGS, and $150 included in selling 
expenses) and $16 (2 x ($270 x .03)).
    (v) Section 199 deduction determination. (A) X's tentative section 
199 deduction is $11 (.03 x $366 (that is, QPAI determined at partner 
level)) subject to the wage limitation of $8 (50% x $16). Accordingly, 
X's section 199 deduction for 2006 is $8.
    (B) Y's tentative section 199 deduction is $19 (.03 x $642 (that is, 
QPAI determined at the partner level) subject to the wage limitation of 
$133 (50% x ($16 from PRS and $250 from non-PRS activities)). 
Accordingly, Y's section 199 deduction for 2006 is $19.
    Example 2. Section 861 method with R&E expense. (i) Partnership 
items of income, gain, loss, deduction or credit. X and Y, unrelated 
United States corporations each of which is engaged in a trade or 
business, are partners in PRS, a partnership that engages in production 
activities that generate both DPGR and non-DPGR. Neither X nor Y is a 
member of an affiliated group. X and Y share all items of income, gain, 
loss, deduction, and credit 50% each. All of PRS's domestic production 
activities that generate DPGR are within Standard Industrial 
Classification (SIC) Industry Group AAA (SIC AAA). All of PRS's 
production activities that generate non-DPGR are within SIC Industry 
Group BBB (SIC BBB). PRS is not able to specifically identify CGS 
allocable to DPGR and to non-DPGR and, therefore, apportions CGS to DPGR 
and non-DPGR based on its gross receipts. PRS incurs $900 of research 
and experimentation expenses (R&E) that are deductible under section 
174, $300 of which are performed with respect to SIC AAA and $600 of 
which are performed with respect to SIC BBB. None of the R&E is legally 
mandated R&E as described in Sec. 1.861-17(a)(4) and none is included 
in CGS. PRS incurs section 162 selling expenses (that include W-2 wage 
expense) that are not includible in CGS and are definitely related to 
all of PRS's gross income. For 2006, PRS has the following Federal 
income tax items:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (all from sales of products within SIC AAA)........          $3,000
Non-DPGR (all from sales of products within SIC BBB)....           3,000
CGS (includes $200 of W-2 wages)........................           2,400
Section 162 selling expenses (includes $100 of W-2                   840
 wages).................................................
Section 174 R&E-SIC AAA.................................             300
Section 174 R&E-SIC BBB.................................             600
------------------------------------------------------------------------

    (ii) Allocation of PRS's items of income, gain, loss, deduction, or 
credit. X and Y each receive the following distributive share of PRS's 
items of income, gain, loss, deduction, or credit, as determined under 
the principles of Sec. 1.704-1(b)(1)(vii):

[[Page 428]]



------------------------------------------------------------------------
 
------------------------------------------------------------------------
Gross income attributable to DPGR ($1,500 (DPGR)-$600               $900
 (CGS, includes $50 of W-2 wages))......................
Gross income attributable to non-DPGR ($1,500 (other                 900
 gross receipts)-$600 (CGS, includes $50 of W-2 wages)).
Section 162 selling expenses (includes $50 of W-2 wages)             420
Section 174 R&E-SIC AAA.................................             150
Section 174 R&E-SIC BBB.................................             300
------------------------------------------------------------------------

    (iii) Determination of QPAI. (A) X's QPAI. Because the section 199 
deduction is determined at the partner level, X determines its QPAI by 
aggregating, to the extent necessary, its distributive shares of PRS's 
Federal income tax items with all other such items from all other, non-
PRS-related activities. For 2006, X does not have any other such tax 
items. X's only gross receipts for 2006 are those attributable to the 
allocation of gross income from PRS. As stated, all of PRS's domestic 
production activities that generate DPGR are within SIC AAA. X allocates 
and apportions its deductible items to gross income attributable to DPGR 
under the section 861 method of Sec. 1.199-4(d). In this case, the 
section 162 selling expenses (including W-2 wages) are definitely 
related to all of PRS's gross income. Based on the facts and 
circumstances of this specific case, apportionment of those expenses 
between DPGR and non-DPGR on the basis of PRS's gross receipts is 
appropriate. For purposes of apportioning R&E, X elects to use the sales 
method as described in Sec. 1.861-17(c). Because X has no direct sales 
of products, and because all of PRS's SIC AAA sales attributable to X's 
share of PRS's gross income generate DPGR, all of X's share of PRS's 
section 174 R&E attributable to SIC AAA is taken into account for 
purposes of determining X's QPAI. Thus, X's total QPAI for 2006 is $540, 
as shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (all from sales of products within SIC AAA).......          $1,500
CGS (includes $50 of W-2 wages)........................            (600)
Section 162 selling expenses (including W-2 wages)                 (210)
 ($420 x ($1,500 DPGR/$3,000 total gross receipts))....
Section 174 R&E-SIC AAA................................            (150)
                                                        ----------------
X's QPAI...............................................             540
------------------------------------------------------------------------

    (B) Y's QPAI. (1) For 2006, in addition to the activities of PRS, Y 
engages in domestic production activities that generate both DPGR and 
non-DPGR. With respect to those non-PRS activities, Y is not able to 
specifically identify CGS allocable to DPGR and to non-DPGR. In this 
case, because CGS is definitely related under the facts and 
circumstances to all of Y's non-PRS gross receipts, apportionment of CGS 
between DPGR and non-DPGR based on Y's non-PRS gross receipts is 
appropriate. For 2006, Y has the following non-PRS Federal income tax 
items:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (from sales of products within SIC AAA)............          $1,500
DPGR (from sales of products within SIC BBB)............           1,500
Non-DPGR (from sales of products within SIC BBB)........           3,000
CGS (allocated to DPGR within SIC AAA) (includes $56 of              750
 W-2 wages).............................................
CGS (allocated to DPGR within SIC BBB) (includes $56 of              750
 W-2 wages).............................................
CGS (allocated to non-DPGR within SIC BBB) (includes               1,500
 $113 of W-2 wages).....................................
Section 162 selling expenses (includes $30 of W-2 wages)             540
Section 174 R&E-SIC AAA.................................             300
Section 174 R&E-SIC BBB.................................             450
------------------------------------------------------------------------

    (2) Because Y has DPGR as a result of activities outside PRS, Y must 
aggregate its distributive share of PRS's Federal income tax items with 
such items from all its other, non-PRS-related activities. Y allocates 
and apportions its deductible items to gross income attributable to DPGR 
under the section 861 method of Sec. 1.199-4(d). In this case, the 
section 162 selling expenses (including W-2 wages) are definitely 
related to all of Y's

[[Page 429]]

gross income. Based on the facts and circumstances of the specific case, 
apportionment of such expenses between DPGR and non-DPGR on the basis of 
Y's gross receipts is appropriate. For purposes of apportioning R&E, Y 
elects to use the sales method as described in Sec. 1.861-17(c).
    (3) With respect to sales that generate DPGR, Y has gross income of 
$2,400 ($4,500 DPGR ($1,500 from PRS and $3,000 from non-PRS activities) 
-$2,100 CGS ($600 from sales of products by PRS and $1,500 from non-PRS 
activities)). Because all of the sales in SIC AAA generate DPGR, all of 
Y's share of PRS's section 174 R&E attributable to SIC AAA and the 
section 174 R&E attributable to SIC AAA that Y incurs in its non-PRS 
activities are taken into account for purposes of determining Y's QPAI. 
Because only a portion of the sales within SIC BBB generate DPGR, only a 
portion of the section 174 R&E attributable to SIC BBB is taken into 
account in determining Y's QPAI. Thus, Y's QPAI for 2006 is $1,282, as 
shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR ($4,500 DPGR ($1,500 from PRS and $3,000 from non-          $4,500
 PRS activities))......................................
CGS ($600 from sales of products by PRS and $1,500 from          (2,100)
 non-PRS activities)...................................
Section 162 selling expenses (including W-2 wages)                 (480)
 ($420 from PRS + $540 from non-PRS activities) x
 ($4,500 DPGR/$9,000 total gross receipts).............
Section 174 R&E-SIC AAA ($150 from PRS and $300 from               (450)
 non-PRS activities)...................................
Section 174 R&E-SIC BBB ($300 from PRS + $450 from non-            (188)
 PRS activities) x ($1,500 DPGR/$6,000 total gross
 receipts allocated to SIC BBB ($1,500 from PRS and
 $4,500 from non-PRS activities))......................
                                                        ----------------
  Y's QPAI.............................................           1,282
------------------------------------------------------------------------

    (iv) PRS W-2 wages allocated to X and Y under section 
199(d)(1)(A)(iii). Solely for purposes of calculating the PRS W-2 wages 
that are allocated to X and Y under section 199(d)(1)(A)(iii) for 
purposes of the wage limitation of section 199(b), X and Y must 
separately determine QPAI taking into account only the items of PRS 
allocated to them. X and Y must use the same methods of allocation and 
apportionment that they use to determine their QPAI in paragraphs 
(iii)(A) and (B) of this Example 2, respectively. Accordingly, X and Y 
must apportion section 162 selling expenses that include W-2 wage 
expense on the basis of gross receipts, and apportion section 174 R&E 
expense under the sales method as described in Sec. 1.861-17(c).
    (A) QPAI of X and Y, solely for this purpose, is determined by 
allocating and apportioning each partner's share of PRS expenses to each 
partner's share of PRS gross income of $900 attributable to DPGR ($1,500 
DPGR--$600 CGS, allocated based on PRS's gross receipts). Because all of 
PRS's SIC AAA sales generate DPGR, all of X's and Y's shares of PRS's 
section 174 R&E attributable to SIC AAA is taken into account for 
purposes of determining X's and Y's QPAI. None of PRS's section 174 R&E 
attributable to SIC BBB is taken into account because PRS has no DPGR 
within SIC BBB. Thus, X and Y each has QPAI, solely for this purpose, of 
$540, as shown below:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
DPGR (all from sales of products within SIC AAA).......          $1,500
CGS (includes $50 of W-2 wages)........................            (600)
Section 162 selling expenses (including W-2 wages)                 (210)
 ($420 x $1,500/$3,000)................................
Section 174 R&E-SIC AAA................................            (150)
                                                        ----------------
QPAI...................................................             540
------------------------------------------------------------------------

    (B) X's and Y's shares of PRS's W-2 wages determined under section 
199(d)(1)(A)(iii) for purposes of the wage limitation of section 199(b) 
are $32, the lesser of $150 (partner's allocable share of PRS's W-2 
wages ($100 included in CGS, and $50 included in selling expenses)) and 
$32 (2 x ($540 x .03)).
    (v) Section 199 deduction determination. (A) X's tentative section 
199 deduction is $16 (.03 x $540 (QPAI determined at partner level)) 
subject to the wage limitation of $16 (50% x $32). Accordingly, X's 
section 199 deduction for 2006 is $16.
    (B) Y's tentative section 199 deduction is $38 (.03 x $1,282 (QPAI 
determined at partner

[[Page 430]]

level) subject to the wage limitation of $144 (50% x $287 ($32 from PRS 
+ $255 from non-PRS activities)). Accordingly, Y's section 199 deduction 
for 2006 is $38.
    Example 3. Partnership with special allocations. (i) In general. X 
and Y are unrelated corporate partners in PRS and each is engaged in a 
trade or business. PRS is a partnership that engages in a domestic 
production activity and other activities. In general, X and Y share all 
partnership items of income, gain, loss, deduction, and credit equally, 
except that 80% of the wage expense of PRS and 20% of PRS's other 
expenses are specially allocated to X (substantial economic effect under 
section 704(b) is presumed). In the 2006 taxable year, PRS's only wage 
expense is $2,000 for marketing, which is not included in CGS. PRS has 
$8,000 of gross receipts ($6,000 of which is DPGR), $4,000 of CGS 
($3,500 of which is allocable to DPGR), and $3,000 of deductions 
(comprised of $2,000 of wages for marketing and $1,000 of other 
expenses). X qualifies for and uses the simplified deduction method 
under Sec. 1.199-4(e). Y does not qualify to use that method and, 
therefore, must use the section 861 method under Sec. 1.199-4(d). In 
the 2006 taxable year, X has gross receipts attributable to non-
partnership trade or business activities of $1,000 and wages of $200. 
None of X's non-PRS gross receipts is DPGR.
    (ii) Allocation and apportionment of costs. Under the partnership 
agreement, X's distributive share of the items of PRS is $1,250 of gross 
income attributable to DPGR ($3,000 DPGR x $1,750 allocable CGS), $750 
of gross income attributable to non-DPGR ($1,000 non-DPGR x $250 
allocable CGS), and $1,800 of deductions (comprised of X's special 
allocations of $1,600 of wage expense ($2,000 x 80%) for marketing and 
$200 of other expenses ($1,000 x 20%)). Under the simplified deduction 
method, X apportions $1,200 of other deductions to DPGR ($2,000 ($1,800 
from the partnership and $200 from non-partnership activities) x ($3,000 
DPGR/$5,000 total gross receipts)). Accordingly, X's QPAI is $50 ($3,000 
DPGR x $1,750 CGS x $1,200 of deductions). However, in determining the 
section 199(d)(1)(A)(iii) wage limitation, QPAI is computed taking into 
account only the items of PRS allocated to X for the taxable year of 
PRS. Thus, X apportions $1,350 of deductions to DPGR ($1,800 x ($3,000 
DPGR/$4,000 total gross receipts from PRS)). Accordingly, X's QPAI for 
purposes of the section 199(d)(1)(A)(iii) wage limitation is $0 ($3,000 
DPGR x $1,750 CGS x $1,350 of deductions). X's share of PRS's W-2 wages 
is $0, the lesser of $1,600 (X's 80% allocable share of $2,000 of wage 
expense for marketing) and $0 (2 x ($0 QPAI x .03)). X's tentative 
deduction is $2 ($50 QPAI x .03), subject to the section 199(b)(1) wage 
limitation of $100 (50% x $200 ($0 of PRS-related W-2 wages + $200 of 
non-PRS W-2 wages)). Accordingly, X's section 199 deduction for the 2006 
taxable year is $2.
    Example 4. Partnership with no W-2 wages. (i) Facts. A, an 
individual, and B, an individual, are partners in PRS. PRS is a 
partnership that engages in manufacturing activities that generate both 
DPGR and non-DPGR. A and B share all items of income, gain, loss, 
deduction, and credit equally. In the 2006 taxable year, PRS has total 
gross receipts of $2,000 ($1,000 of which is DPGR), CGS of $400 and 
deductions of $800. PRS has no W-2 wages. A and B each use the small 
business simplified overall method under Sec. 1.199-4(f). A has trade 
or business activities outside of PRS. With respect to those activities, 
A has total gross receipts of $1,000 ($500 of which is DPGR), CGS of 
$400 (including $50 of W-2 wages) and deductions of $200 for the 2006 
taxable year. B has no trade or business activities outside of PRS and 
pays $0 of W-2 wages directly for the 2006 taxable year. A's 
distributive share of the items of the partnership is $500 DPGR, $500 
non-DPGR, $200 CGS, and $400 of deductions.
    (ii) Section 199(d)(1)(A)(iii) wage limitation. A's CGS and 
deductions apportioned to DPGR from PRS equal $300 (($200 CGS + $400 of 
other deductions) x ($500 DPGR/$1,000 total gross receipts)). 
Accordingly, for purposes of the wage limitation of section 
199(d)(1)(A)(iii), A's QPAI is $200 ($500 DPGR x $300 CGS and other 
deductions). A's share of partnership W-2 wages after application of the 
section 199(d)(1)(A)(iii) limitation is $0, the lesser of $0 (A's 50% 
allocable share of PRS's $0 of W-2 wages) or $12 (2 x ($200 QPAI x 
.03)). B's share of PRS's W-2 wages also is $0.
    (iii) Section 199 deduction computation. A's total CGS and 
deductions apportioned to DPGR equal $600 (($200 PRS CGS + $400 outside 
trade or business CGS + $400 PRS deductions + $200 outside trade or 
business deductions) x ($1,000 total DPGR ($500 from PRS + $500 from 
outside trade or business)/$2,000 total gross receipts ($1,000 from PRS 
+ $1,000 from outside trade or business)). Accordingly, A's QPAI is $400 
($1,000 DPGR x $600 CGS and deductions). A's tentative deduction is $12 
($400 QPAI x .03), subject to the section 199(b)(1) wage limitation of 
$25 (50% x $50 total W-2 wages). A's section 199 deduction for the 2006 
taxable year is $12. B's total section 199 deduction for the 2006 
taxable year is $0 because B has no W-2 wages for the 2006 taxable year.
    Example 5. Guaranteed payment. (i) Facts. The facts are the same as 
Example 4 except that in 2006 PRS also makes a guaranteed payment of 
$200 to A for services, and PRS pays $200 of W-2 wages to PRS employees, 
which is included within the $400 of CGS. See section 707(c). This 
guaranteed payment is taxable to A as ordinary income and is properly 
deducted by PRS under section 162. Pursuant to Sec. 1.199-3(p), A may 
not treat any

[[Page 431]]

part of this payment as DPGR. Accordingly, PRS has total gross receipts 
of $2,000 ($1,000 of which is DPGR), CGS of $400 (including $200 of W-2 
wages) and deductions of $1,000 (including the $200 guaranteed payment) 
for the 2006 taxable year. A's distributive share of the items of the 
partnership is $500 DPGR, $500 non-DPGR, $200 CGS, and $500 of 
deductions.
    (ii) Section 199(d)(1)(A)(iii) wage limitation. A's CGS and 
deductions apportioned to DPGR from PRS equal $350 (($200 CGS + $500 of 
other deductions) x ($500 DPGR/$1,000 total gross receipts)). 
Accordingly, for purposes of the wage limitation of section 
199(d)(1)(A)(iii), A's QPAI is $150 ($500 DPGR x $350 CGS and other 
deductions). A's share of partnership W-2 wages after application of the 
section 199(d)(1)(A)(iii) limitation is $9, the lesser of $100 (A's 50% 
allocable share of PRS's $200 of W-2 wages) or $9 (2 x ($150 QPAI x 
.03)). B's share of PRS's W-2 wages after application of section 
199(d)(1)(A)(iii) also is $9.
    (iii) A's section 199 deduction computation. A's total CGS and 
deductions apportioned to DPGR equal $591 (($200 PRS CGS + $400 outside 
trade or business CGS + $500 PRS deductions + $200 outside trade or 
business deductions) x ($1,000 total DPGR ($500 from PRS + $500 from 
outside trade or business)/$2,200 total gross receipts ($1,000 from PRS 
+ $200 guaranteed payment + $1,000 from outside trade or business)). 
Accordingly, A's QPAI is $409 ($1,000 DPGR x $591 CGS and other 
deductions). A's tentative deduction is $12 ($409 QPAI x .03), subject 
to the section 199(b)(1) wage limitation of $30 (50% x $59 ($9 PRS W-2 
wages $50 + W-2 wages from A's trade or business activities outside of 
PRS)). A's section 199 deduction for the 2006 taxable year is $12.
    (iv) B's section 199 deduction computation. B's QPAI is $150 ($500 
DPGR x $350 CGS and other deductions). B's tentative deduction is $5 
($150 QPAI x .03), subject to the section 199(b)(1) wage limitation of 
$5 (50% x $9). Assuming that B engages in no other activities generating 
DPGR, B's section 199 deduction for the 2006 taxable year is $5.

    (c) S corporations--(1) In general--(i) Determination at shareholder 
level. The section 199 deduction with respect to the qualified 
production activities of an S corporation is determined at the 
shareholder level. As a result, each shareholder must compute its 
deduction separately. The section 199 deduction will have no effect on 
the basis of a shareholder's stock in an S corporation. Except as 
provided by publication pursuant to paragraph (c)(1)(ii) of this 
section, for purposes of this section, each shareholder is allocated, in 
accordance with section 1366, its pro rata share of S corporation items 
(including items of income, gain, loss, and deduction), CGS allocated to 
such items of income, and gross receipts included in such items of 
income, even if the shareholder's share of CGS and other deductions and 
losses exceeds DPGR, and regardless of the amount of the shareholder's 
share of the W-2 wages of the S corporation for the taxable year. Except 
as provided by publication under paragraph (c)(1)(ii) of this section, 
to determine its section 199 deduction for the taxable year, the 
shareholder aggregates its pro rata share of such items, to the extent 
they are not otherwise disallowed by the Code, with those items it 
incurs outside the S corporation (whether directly or indirectly) for 
purposes of allocating and apportioning deductions to DPGR and computing 
its QPAI.
    (ii) Determination at entity level. The Secretary may, by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), permit an S corporation to 
calculate a shareholder's share of QPAI at the entity level, instead of 
allocating, in accordance with section 1366, the shareholder's pro rata 
share of S corporation items (including items of income, gain, loss, and 
deduction). If an S corporation does calculate QPAI at the entity 
level--
    (A) Each shareholder is allocated its share of QPAI and W-2 wages, 
which (subject to the limitations under paragraph (c)(2) of this section 
and section 199(d)(1)(A)(iii), respectively) are combined with the 
shareholder's QPAI and W-2 wages from other sources;
    (B) For purposes of computing the shareholder's QPAI under 
Sec. Sec. 1.199-1 through 1.199-9, a shareholder does not take into 
account the items from the S corporation (for example, a shareholder 
does not take into account items from the S corporation in determining 
whether a threshold or de minimis rule applies or in allocating and 
apportioning deductions) in calculating its QPAI from other sources;
    (C) A shareholder generally does not recompute its share of QPAI 
from the S corporation using another method; however, the shareholder 
might have to adjust its share of QPAI from the S

[[Page 432]]

corporation to take into account certain disallowed losses or 
deductions, or the allowance of suspended losses or deductions; and
    (D) A shareholder's share of QPAI from an S corporation may be less 
than zero.
    (2) Disallowed losses or deductions. Except as provided by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter), losses or deductions of the S 
corporation that otherwise would be taken into account in computing the 
shareholder's section 199 deduction for a taxable year are taken into 
account in that year only if and to the extent the shareholder's pro 
rata share of the losses or deductions from all of the S corporation's 
activities is not disallowed by section 465, 469, or 1366(d), or any 
other provision of the Code. If only a portion of the shareholder's 
share of the losses or deductions is allowed for a taxable year, a 
proportionate share of those allowable losses or deductions that are 
allocated to the S corporation's qualified production activities, 
determined in a manner consistent with sections 465, 469, and 1366(d), 
and any other applicable provision of the Code, is taken into account in 
computing the QPAI and the wage limitation of section 199(d)(1)(A)(iii) 
for that taxable year. To the extent that any of the disallowed losses 
or deductions are allowed in a later taxable year, the shareholder takes 
into account a proportionate share of those losses or deductions in 
computing its QPAI for that later taxable year. Losses or deductions of 
the S corporation that are disallowed for taxable years beginning on or 
before December 31, 2004, are not taken into account in a later taxable 
year for purposes of computing the shareholder's QPAI or the wage 
limitation of section 199(d)(1)(A)(iii) for that taxable year, 
regardless of whether the losses or deductions are allowed for other 
purposes.
    (3) Shareholder's share of W-2 wages. Under section 
199(d)(1)(A)(iii), an S corporation shareholder's share of the W-2 wages 
of the S corporation for purposes of determining the shareholder's 
section 199(b) limitation is the lesser of the shareholder's allocable 
share of those wages (without regard to section 199(d)(1)(A)(iii)), or 2 
times 3 percent of the QPAI computed by taking into account only the 
items of the S corporation allocated to the shareholder for the taxable 
year of the S corporation. Except as provided by publication in the 
Internal Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this 
chapter), this QPAI calculation is performed by the shareholder using 
the same cost allocation method that the shareholder uses in calculating 
the shareholder's section 199 deduction. The S corporation must allocate 
W-2 wages (prior to the application of the wage limitation) among the 
shareholders in the same manner as wage expense. The shareholder must 
add the shareholder's share of W-2 wages from the S corporation, as 
limited by section 199(d)(1)(A)(iii), to the shareholder's W-2 wages 
from other sources, if any. If QPAI, computed by taking into account 
only the items of the S corporation allocated to the shareholder for the 
taxable year (as required by the wage limitation of section 
199(d)(1)(A)(iii)), is not greater than zero, then the shareholder may 
not take into account any W-2 wages of the S corporation in applying the 
wage limitation of Sec. 1.199-2 (but the shareholder will, 
nevertheless, aggregate its distributive share of S corporation items 
including wage expense with those items not from the S corporation in 
computing its QPAI when determining its section 199 deduction). See 
Sec. 1.199-2 for the computation of W-2 wages, and paragraph (g) of 
this section for rules regarding pass-thru entities in a tiered 
structure.
    (4) Transition percentage rule for W-2 wages. With regard to S 
corporations, for purposes of section 199(d)(1)(A)(iii)(II) the 
transition percentages determined under section 199(a)(2) shall be 
determined by reference to the S corporation's taxable year. Thus, if an 
S corporation shareholder uses a calendar year taxable year, and owns 
stock in an S corporation that has a taxable year ending on April 30, 
the shareholder's section 199(d)(1)(A)(iii) wage limitation for the S 
corporation's taxable year beginning on May 1, 2006, would be calculated 
using 3 percent, even though the shareholder includes the shareholder's 
pro

[[Page 433]]

rata share of S corporation items from that taxable year on the 
shareholder's 2007 Federal income tax return.
    (d) Grantor trusts. To the extent that the grantor or another person 
is treated as owning all or part (the owned portion) of a trust under 
sections 671 through 679, such person (owner) computes its QPAI with 
respect to the owned portion of the trust as if that QPAI had been 
generated by activities performed directly by the owner. Similarly, for 
purposes of the section 199(b) wage limitation, the owner of the trust 
takes into account the owner's share of the W-2 wages of the trust that 
are attributable to the owned portion of the trust. The section 
199(d)(1)(A)(iii) wage limitation is not applicable to the owned portion 
of the trust. The provisions of paragraph (e) of this section do not 
apply to the owned portion of a trust.
    (e) Non-grantor trusts and estates--(1) Allocation of costs. The 
trust or estate calculates each beneficiary's share (as well as the 
trust's or estate's own share, if any) of QPAI and W-2 wages from the 
trust or estate at the trust or estate level. The beneficiary of a trust 
or estate is not permitted to use another cost allocation method to 
recompute its share of QPAI from the trust or estate or to reallocate 
the costs of the trust or estate. Except as provided in paragraph (d) of 
this section, the QPAI of a trust or estate must be computed by 
allocating expenses described in section 199(d)(5) in one of two ways, 
depending on the classification of those expenses under Sec. 1.652(b)-
3. Specifically, directly attributable expenses within the meaning of 
Sec. 1.652(b)-3 are allocated pursuant to Sec. 1.652(b)-3, and 
expenses not directly attributable within the meaning of Sec. 1.652(b)-
3 (other expenses) are allocated under the simplified deduction method 
of Sec. 1.199-4(e) (unless the trust or estate does not qualify to use 
the simplified deduction method, in which case it must use the section 
861 method of Sec. 1.199-4(d) with respect to such other expenses). For 
this purpose, depletion and depreciation deductions described in section 
642(e) and amortization deductions described in section 642(f) are 
treated as other expenses described in section 199(d)(5). Also for this 
purpose, the trust's or estate's share of other expenses from a lower-
tier pass-thru entity is not directly attributable to any class of 
income (whether or not those other expenses are directly attributable to 
the aggregate pass-thru gross income as a class for purposes other than 
section 199). A trust or estate may not use the small business 
simplified overall method for computing its QPAI. See Sec. 1.199-
4(f)(5).
    (2) Allocation among trust or estate and beneficiaries--(i) In 
general. The QPAI of a trust or estate (which will be less than zero if 
the CGS and deductions allocated and apportioned to DPGR exceed the 
trust's or estate's DPGR) and W-2 wages of a trust or estate are 
allocated to each beneficiary and to the trust or estate based on the 
relative proportion of the trust's or estate's distributable net income 
(DNI), as defined by section 643(a), for the taxable year that is 
distributed or required to be distributed to the beneficiary or is 
retained by the trust or estate. For this purpose, the trust or estate's 
DNI is determined with regard to the separate share rule of section 
663(c), but without regard to section 199. To the extent that the trust 
or estate has no DNI for the taxable year, any QPAI and W-2 wages are 
allocated entirely to the trust or estate. A trust or estate is allowed 
the section 199 deduction in computing its taxable income to the extent 
that QPAI and W-2 wages are allocated to the trust or estate. A 
beneficiary of a trust or estate is allowed the section 199 deduction in 
computing its taxable income based on its share of QPAI and W-2 wages 
from the trust or estate, which (subject to the wage limitation as 
described in paragraph (e)(3) of this section) are aggregated with the 
beneficiary's QPAI and W-2 wages from other sources, if any.
    (ii) Treatment of items from a trust or estate reporting qualified 
production activities income. When, pursuant to this paragraph (e), a 
taxpayer must combine QPAI and W-2 wages from a trust or estate with the 
taxpayer's total QPAI and W-2 wages from other sources, the taxpayer, 
when applying Sec. Sec. 1.199-1 through 1.199-9 to determine the 
taxpayer's total QPAI and W-2 wages from such other sources, does not 
take into account the items from such trust or estate. Thus, for 
example,

[[Page 434]]

a beneficiary of an estate that receives QPAI from the estate does not 
take into account the beneficiary's distributive share of the estate's 
gross receipts, gross income, or deductions when the beneficiary 
determines whether a threshold or de minimis rule applies or when the 
beneficiary allocates and apportions deductions in calculating its QPAI 
from other sources.
    (3) Beneficiary's share of W-2 wages. The trust or estate must 
compute each beneficiary's share of W-2 wages from the trust or estate 
in accordance with section 199(d)(1)(A)(iii), as if the beneficiary were 
a partner in a partnership. The application of section 199(d)(1)(A)(iii) 
to each trust and estate therefore means that if QPAI, computed by 
taking into account only the items of the trust or estate allocated to 
the beneficiary for the taxable year, is not greater than zero, then the 
beneficiary may not take into account any W-2 wages of the trust or 
estate in applying the wage limitation of Sec. 1.199-2 (but the 
beneficiary will, nevertheless, aggregate its QPAI from the trust or 
estate with its QPAI from other sources when determining the 
beneficiary's section 199 deduction). See paragraph (g) of this section 
for rules applicable to pass-thru entities in a tiered structure.
    (4) Transition percentage rule for W-2 wages. With regard to trusts 
and estates, for purposes of section 199(d)(1)(A)(iii)(II), the 
transition percentages determined under section 199(a)(2) shall be 
determined by reference to the taxable year of the trust or estate.
    (5) Example. The following example illustrates the application of 
this paragraph (e) and paragraph (g) of this section. Assume that the 
partnership, trust, and trust beneficiary all are calendar year 
taxpayers.

    Example. (i) Computation of DNI and inclusion and deduction amounts. 
(A) Trust's distributive share of partnership items. Trust, a complex 
trust, is a partner in PRS, a partnership that engages in activities 
that generate DPGR and non-DPGR. In 2006, PRS distributes $10,000 cash 
to Trust. Trust's distributive share of PRS items, which are properly 
included in Trust's DNI, is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Gross income attributable to DPGR ($15,000 DPGR - $5,000         $10,000
 CGS (including W-2 wages of $1,000))...................
Gross income attributable to non-DPGR ($5,000 other                5,000
 gross receipts - $0 CGS)...............................
Selling expenses (includes W-2 wages of $2,000).........           3,000
Other expenses (includes W-2 wages of $1,000)...........           2,000
------------------------------------------------------------------------

    (B) Trust's direct activities. In addition to its cash distribution 
in 2006 from PRS, Trust also directly has the following items which are 
properly included in Trust's DNI:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Dividends...............................................         $10,000
Tax-exempt interest.....................................          10,000
Rents from commercial real property operated by Trust as          10,000
 a business.............................................
Real estate taxes.......................................           1,000
Trustee commissions.....................................           3,000
State income and personal property taxes................           5,000
W-2 wages for rental business...........................           2,000
Other business expenses.................................           1,000
------------------------------------------------------------------------

    (C) Allocation of deductions under Sec. 1.652(b)-3--(1) Directly 
attributable expenses. In computing Trust's DNI for the taxable year, 
the distributive share of expenses of PRS are directly attributable 
under Sec. 1.652(b)-3(a) to the distributive share of income of PRS. 
Accordingly, the $5,000 of CGS, $3,000 of selling expenses, and $2,000 
of other expenses are subtracted from the gross receipts from PRS 
($20,000), resulting in net income from PRS of $10,000. With respect to 
the Trust's direct expenses, $1,000 of the trustee commissions, the 
$1,000 of real estate taxes, and the $2,000

[[Page 435]]

of W-2 wages are directly attributable under Sec. 1.652(b)-3(a) to the 
rental income.
    (2) Non-directly attributable expenses. Under Sec. 1.652(b)-3(b), 
the trustee must allocate a portion of the sum of the balance of the 
trustee commissions ($2,000), state income and personal property taxes 
($5,000), and the other business expenses ($1,000) to the $10,000 of 
tax-exempt interest. The portion to be attributed to tax-exempt interest 
is $2,222 ($8,000 x ($10,000 tax exempt interest/$36,000 gross receipts 
net of direct expenses)), resulting in $7,778 ($10,000 - $2,222) of net 
tax-exempt interest. Pursuant to its authority recognized under Sec. 
1.652(b)-3(b), the trustee allocates the entire amount of the remaining 
$5,778 of trustee commissions, state income and personal property taxes, 
and other business expenses to the $6,000 of net rental income, 
resulting in $222 ($6,000 - $5,778) of net rental income.
    (D) Amounts included in taxable income. For 2006, Trust has DNI of 
$28,000 (net dividend income of $10,000 + net PRS income of $10,000 + 
net rental income of $222 + net tax-exempt income of $7,778). Pursuant 
to Trust's governing instrument, Trustee distributes 50%, or $14,000, of 
that DNI to B, an individual who is a discretionary beneficiary of 
Trust. Assume that there are no separate shares under Trust, and no 
distributions are made to any other beneficiary that year. Consequently, 
with respect to the $14,000 distribution B receives from Trust, B 
properly includes in B's gross income $5,000 of income from PRS, $111 of 
rents, and $5,000 of dividends, and properly excludes from B's gross 
income $3,889 of tax-exempt interest. Trust includes $20,222 in its 
adjusted total income and deducts $10,111 under section 661(a) in 
computing its taxable income.
    (ii) Section 199 deduction. (A) Simplified deduction method. For 
purposes of computing the section 199 deduction for the taxable year, 
assume Trust qualifies for the simplified deduction method under Sec. 
1.199-4(e). The determination of Trust's QPAI under the simplified 
deduction method requires multiple steps to allocate costs. First, the 
Trust's expenses directly attributable to DPGR under Sec. 1.652(b)-3(a) 
are subtracted from the Trust's DPGR. In this step, the directly 
attributable $5,000 of CGS and selling expenses of $3,000 are subtracted 
from the $15,000 of DPGR from PRS. Next, Trust must identify its other 
trade or business expenses directly related to non-DPGR trade or 
business income. In this example, the portion of the trustee commissions 
not directly attributable to the rental operation ($2,000), as well as 
the portion of the state income and personal property taxes not directly 
attributable to either the PRS interests or the rental operation, are 
not trade or business expenses and, thus, are ignored in computing QPAI. 
The portion of the state income and personal property taxes that is 
treated as other trade or business expenses is $3,000 ($5,000 x $30,000 
total trade or business gross receipts/$50,000 total gross receipts). 
Trust then allocates its other trade or business expenses on the basis 
of its total gross receipts from the conduct of a trade or business 
($20,000 from PRS + $10,000 rental income). Trust then combines its non-
directly attributable (other) business expenses ($2,000 from PRS + 
$4,000 ($1,000 of other expenses + $3,000 of income and property taxes) 
from its own activities) and then apportions this total between DPGR and 
other receipts on the basis of Trust's total trade or business gross 
receipts ($6,000 x $15,000 DPGR/$30,000 total trade or business gross 
receipts = $3,000). Thus, for purposes of computing Trust's and B's 
section 199 deduction, Trust's QPAI is $4,000 ($7,000 - $3,000). Because 
the distribution of Trust's DNI to B equals one-half of Trust's DNI, 
Trust and B each has QPAI from PRS for purposes of the section 199 
deduction of $2,000.
    (B) Section 199(d)(1)(A)(iii) wage limitation. The wage limitation 
under section 199(d)(1)(A)(iii) must be applied both at the Trust level 
and at B's level. After applying this limitation to the Trust's share of 
PRS's W-2 wages, Trust is allocated $330 of W-2 wages from PRS (the 
lesser of Trust's allocable share of PRS's W-2 wages ($4,000) or 2 x 3% 
of Trust's QPAI from PRS ($5,500)). Trust's QPAI from PRS for purposes 
of the section 199(d)(1)(A)(iii) limitation is determined by taking into 
account only the items of PRS allocated to Trust ($15,000 DPGR - ($5,000 
of CGS + $3,000 selling expenses + $1,500 of other expenses)). For this 
purpose, the $1,500 of other expenses is determined by multiplying 
$2,000 of other expenses from PRS by $15,000 of DPGR from PRS, divided 
by $20,000 of total gross receipts from PRS. Trust adds this $330 of W-2 
wages to Trust's own $2,000 of W-2 wages (thus, $2,330). Because the 
$14,000 Trust distribution to B equals one-half of Trust's DNI, Trust 
and B each has W-2 wages of $1,165. After applying the section 
199(d)(1)(A)(iii) wage limitation to B's share of the W-2 wages 
allocated from Trust, B has W-2 wages of $120 from Trust (lesser of 
$1,165 (allocable share of W-2 wages) or 2 x .03 x $2,000 (B's share of 
Trust's QPAI)). B has W-2 wages of $100 from non-Trust activities for a 
total of $220 of W-2 wages.
    (C) Section 199 deduction computation. (1) B's computation. B is 
eligible to use the small business simplified overall method. Assume 
that B has sufficient adjusted gross income so that the section 199 
deduction is not limited under section 199(a)(1)(B). B has $1,000 of 
QPAI from non-Trust activities that is added to the $2,000 QPAI from 
Trust for a total of $3,000 of QPAI. B's tentative deduction is $90 (.03 
x $3,000), but it is limited under section 199(b) to $110 (50% x $220 W-
2 wages). Accordingly, B's section 199 deduction for 2006 is $90.

[[Page 436]]

    (2) Trust's computation. Trust has sufficient adjusted gross income 
so that the section 199 deduction is not limited under section 
199(a)(1)(B). Trust's tentative deduction is $60 (.03 x $2,000 QPAI), 
but it is limited under section 199(b) to $583 (50% x $1,165 W-2 wages). 
Accordingly, Trust's section 199 deduction for 2006 is $60.

    (f) Gain or loss from the disposition of an interest in a pass-thru 
entity. DPGR generally does not include gain or loss recognized on the 
sale, exchange, or other disposition of an interest in a pass-thru 
entity. However, with respect to a partnership, if section 751(a) or (b) 
applies, then gain or loss attributable to assets of the partnership 
giving rise to ordinary income under section 751(a) or (b), the sale, 
exchange, or other disposition of which would give rise to DPGR, is 
taken into account in computing the partner's section 199 deduction. 
Accordingly, to the extent that cash or property received by a partner 
in a sale or exchange for all or part of its partnership interest is 
attributable to unrealized receivables or inventory items within the 
meaning of section 751(c) or (d), respectively, and the sale or exchange 
of the unrealized receivable or inventory items would give rise to DPGR 
if sold, exchanged, or otherwise disposed of by the partnership, the 
cash or property received by the partner is taken into account by the 
partner in determining its DPGR for the taxable year. Likewise, to the 
extent that a distribution of property to a partner is treated under 
section 751(b) as a sale or exchange of property between the partnership 
and the distributee partner, and any property deemed sold or exchanged 
would give rise to DPGR if sold, exchanged, or otherwise disposed of by 
the partnership, the deemed sale or exchange of the property must be 
taken into account in determining the partnership's and distributee 
partner's DPGR to the extent not taken into account under the qualifying 
in-kind partnership rules. See Sec. 1.751-1(b) and paragraph (i) of 
this section.
    (g) Section 199(d)(1)(A)(iii) wage limitation and tiered 
structures--(1) In general. If a pass-thru entity owns an interest, 
directly or indirectly, in one or more pass-thru entities, then the wage 
limitation of section 199(d)(1)(A)(iii) must be applied at each tier 
(that is, separately for each entity). For purposes of this wage 
limitation, references to pass-thru entities includes partnerships, S 
corporations, trusts (to the extent not described in paragraph (d) of 
this section) and estates. Thus, at each tier, the owner of a pass-thru 
entity (or the entity on behalf of the owner) calculates the amounts 
described in sections 199(d)(1)(A)(iii)(I) (owner's allocable share) and 
199(d)(1)(A)(iii)(II) (twice the applicable percentage of the owner's 
QPAI from that entity) separately with regard to its interest in that 
pass-thru entity.
    (2) Share of W-2 wages. For purposes of section 199(d)(1)(A)(iii) 
and section 199(b), the W-2 wages of the owner of an interest in a pass-
thru entity (upper-tier entity) that owns an interest in one or more 
pass-thru entities (lower-tier entities) are equal to the sum of the 
owner's allocable share of W-2 wages of the upper-tier entity, as 
limited in accordance with section 199(d)(1)(A)(iii), and the owner's 
own W-2 wages. The upper-tier entity's W-2 wages are equal to the sum of 
the upper-tier entity's allocable share of W-2 wages of the next lower-
tier entity, as limited in accordance with section 199(d)(1)(A)(iii), 
and the upper-tier entity's own W-2 wages. The W-2 wages of each lower-
tier entity in a tiered structure, in turn, is computed as described in 
the preceding sentence. Except as provided by publication in the 
Internal Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this 
chapter)--
    (i) An upper-tier entity may compute its share of QPAI attributable 
to items from a lower-tier entity solely for purposes of section 
199(d)(1)(A)(iii)(II) by applying either the section 861 method 
described in Sec. 1.199-4(d) or the simplified deduction method 
described in Sec. 1.199-4(e), provided the upper tier entity would 
otherwise qualify to use such method.
    (ii) Alternatively, the upper-tier entity (other than a trust or 
estate described in paragraph (e) of this section) may compute its share 
of QPAI attributable to items from a lower-tier entity solely for 
purposes of section 199(d)(1)(A)(iii)(II) by applying the small business 
simplified overall method described in Sec. 1.199-4(f), regardless of 
whether such upper-tier entity would

[[Page 437]]

otherwise qualify to use the small business simplified overall method.
    (3) Example. The following example illustrates the application of 
this paragraph (g). Assume that each partnership and each partner 
(whether or not an individual) is a calendar year taxpayer.

    Example. (i) In 2006, A, an individual, owns a 50% interest in a 
partnership, UTP, which in turn owns a 50% interest in another 
partnership, LTP. All partnership items are allocated in proportion to 
these ownership percentages. LTP has $900 DPGR, $450 CGS (which includes 
W-2 wages of $100), and $50 other deductions. Before taking into account 
its share of items from LTP, UTP has $500 DPGR, $500 CGS (which includes 
W-2 wages of $200), and $500 other deductions. UTP chooses to compute 
its share of QPAI attributable to items from LTP for purposes of section 
199(d)(1)(A)(iii)(II) by applying the small business simplified overall 
method described in Sec. 1.199-4(f). For purposes of the wage 
limitation of section 199(d)(1)(A)(iii), UTP's distributive share of 
LTP's QPAI is $200 ($450 DPGR - $250 CGS and other deductions).
    (ii) UTP's share of LTP's W-2 wages for purposes of the section 
199(d)(1)(A)(iii) limitation is $12, the lesser of $50 (UTP's 50% 
allocable share of LTP's $100 of W-2 wages) or $12 (2 x ($200 QPAI x 
.03)). After taking into account its share of items from LTP, UTP has 
$950 DPGR, $725 CGS, and $525 other deductions. A is eligible for and 
uses the simplified deduction method described in Sec. 1.199-4(e). For 
purposes of the wage limitation of section 199(d)(1)(A)(iii), A's 
distributive share of UTP's QPAI is ($151) ($475 DPGR - $363 CGS - $263 
other deductions). A's wage limitation under section 199(d)(1)(A)(iii) 
with respect to A's interest in UTP is $0, the lesser of $106 (A's 50% 
allocable share of UTP's $212 of W-2 wages) or $0 (because A's share of 
UTP's QPAI ($151), is less than zero).

    (h) No attribution of qualified activities. Except as provided in 
paragraph (i) of this section regarding qualifying in-kind partnerships 
and paragraph (j) of this section regarding EAG partnerships, an owner 
of a pass-thru entity is not treated as conducting the qualified 
production activities of the pass-thru entity, and vice versa. This rule 
applies to all partnerships, including partnerships that have elected 
out of subchapter K under section 761(a). Accordingly, if a partnership 
MPGE QPP within the United States, or produces a qualified film or 
produces utilities in the United States, and distributes or leases, 
rents, licenses, sells, exchanges, or otherwise disposes of such 
property to a partner who then, without performing its own qualifying 
MPGE or other production, leases, rents, licenses, sells, exchanges, or 
otherwise disposes of such property, then the partner's gross receipts 
from this latter lease, rental, license, sale, exchange, or other 
disposition are treated as non-DPGR. In addition, if a partner MPGE QPP 
within the United States, or produces a qualified film or produces 
utilities in the United States, and contributes or leases, rents, 
licenses, sells, exchanges, or otherwise disposes of such property to a 
partnership which then, without performing its own qualifying MPGE or 
other production, leases, rents, licenses, sells, exchanges, or 
otherwise disposes of such property, then the partnership's gross 
receipts from this latter disposition are treated as non-DPGR.
    (i) Qualifying in-kind partnership--(1) In general. If a partnership 
is a qualifying in-kind partnership described in paragraph (i)(2) of 
this section, then each partner is treated as MPGE or producing the 
property MPGE or produced by the partnership that is distributed to that 
partner. If a partner of a qualifying in-kind partnership derives gross 
receipts from the lease, rental, license, sale, exchange, or other 
disposition of the property that was MPGE or produced by the qualifying 
in-kind partnership, then, provided such partner is a partner of the 
qualifying in-kind partnership at the time the partner disposes of the 
property, the partner is treated as conducting the MPGE or production 
activities previously conducted by the qualifying in-kind partnership 
with respect to that property. With respect to a lease, rental, or 
license, the partner is treated as having disposed of the property on 
the date or dates on which it takes into account its gross receipts 
derived from the lease, rental, or license under its methods of 
accounting. With respect to a sale, exchange, or other disposition, the 
partner is treated as having disposed of the property on the date on 
which it ceases to own the property for Federal income tax purposes, 
even if no gain or loss is taken into account.

[[Page 438]]

    (2) Definition of qualifying in-kind partnership. For purposes of 
this paragraph (i), a qualifying in-kind partnership is a partnership 
engaged solely in--
    (i) The extraction, refining, or processing of oil, natural gas (as 
described in Sec. 1.199-3(l)(2)), petrochemicals, or products derived 
from oil, natural gas, or petrochemicals in whole or in significant part 
within the United States;
    (ii) The production or generation of electricity in the United 
States; or
    (iii) An activity or industry designated by the Secretary by 
publication in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter).
    (3) Special rules for distributions. If a qualifying in-kind 
partnership distributes property to a partner, then, solely for purposes 
of section 199(d)(1)(A)(iii)(II), the partnership is treated as having 
gross receipts in the taxable year of the distribution equal to the fair 
market value of the distributed property at the time of distribution to 
the partner and the deemed gross receipts are allocated to that partner, 
provided that the partner derives gross receipts from the distributed 
property (and takes into account such receipts under its method of 
accounting) during the taxable year of the partner with or within which 
the partnership's taxable year (in which the distribution occurs) ends. 
For rules for taking costs into account (such as costs included in the 
adjusted basis of the distributed property), see Sec. 1.199-4.
    (4) Other rules. Except as provided in this paragraph (i), a 
qualifying in-kind partnership is treated the same as other partnerships 
for purposes of section 199. Accordingly, a qualifying in-kind 
partnership is subject to the rules of this section regarding the 
application of section 199 to pass-thru entities, including application 
of the section 199(d)(1)(A)(iii) wage limitation under paragraph (b)(3) 
of this section. In determining whether a qualifying in-kind partnership 
or its partners MPGE QPP in whole or in significant part within the 
United States, see Sec. 1.199-3(g)(2) and (3).
    (5) Example. The following example illustrates the application of 
this paragraph (i). Assume that PRS and X are calendar year taxpayers.

    Example. X, Y and Z are partners in PRS, a qualifying in-kind 
partnership described in paragraph (i)(2) of this section. X, Y, and Z 
are corporations. In 2006, PRS distributes oil to X that PRS derived 
from its oil extraction. PRS incurred $600 of CGS, including $500 of W-2 
wages (as defined in Sec. 1.199-2(e)), extracting the oil distributed 
to X, and X's adjusted basis in the distributed oil is $600. The fair 
market value of the oil at the time of the distribution to X is $1,000. 
X incurs $200 of CGS, including $100 of W-2 wages, in refining the oil 
within the United States. In 2006, X, while it is a partner in PRS, 
sells the oil to a customer for $1,500, taking the gross receipts into 
account under its method of accounting in the same taxable year. Under 
paragraph (i)(1) of this section, X is treated as having extracted the 
oil. The extraction and refining of the oil qualify as an MPGE activity 
under Sec. 1.199-3(e)(1). Therefore, X's $1,500 of gross receipts 
qualify as DPGR. X subtracts from the $1,500 of DPGR the $600 of CGS 
incurred by PRS and the $200 of refining costs incurred by X. Thus, X's 
QPAI is $700 for 2006. In addition, PRS is treated as having $1,000 of 
DPGR solely for purposes of applying the wage limitation in section 
199(d)(1)(A)(iii) based on the applicable percentage of QPAI. 
Accordingly, X's share of PRS's W-2 wages determined under section 
199(d)(1)(A)(iii) is $24, the lesser of $500 (X's allocable share of 
PRS's W-2 wages included in CGS) and $24 (2 x ($400 ($1,000 deemed DPGR 
less $600 of CGS) x .03)). X adds the $24 of PRS W-2 wages to its $100 
of W-2 wages incurred in refining the oil for purposes of section 
199(b).

    (j) Partnerships owned by members of a single expanded affiliated 
group--(1) In general. For purposes of this section, if all of the 
interests in the capital and profits of a partnership are owned by 
members of a single EAG at all times during the taxable year of the 
partnership (EAG partnership), then the EAG partnership and all members 
of that EAG are treated as a single taxpayer for purposes of section 
199(c)(4) during that taxable year.
    (2) Attribution of activities--(i) In general. If a member of an EAG 
(disposing member) derives gross receipts from the lease, rental, 
license, sale, exchange, or other disposition of property that was MPGE 
or produced by an EAG partnership, all the partners of which are members 
of the same EAG to which the disposing member belongs at the time that 
the disposing member

[[Page 439]]

disposes of such property, then the disposing member is treated as 
conducting the MPGE or production activities previously conducted by the 
EAG partnership with respect to that property. The previous sentence 
applies only for those taxable years in which the disposing member is a 
member of the EAG of which all the partners of the EAG partnership are 
members for the entire taxable year of the EAG partnership. With respect 
to a lease, rental, or license, the disposing member is treated as 
having disposed of the property on the date or dates on which it takes 
into account its gross receipts from the lease, rental, or license under 
its methods of accounting. With respect to a sale, exchange, or other 
disposition, the disposing member is treated as having disposed of the 
property on the date on which it ceases to own the property for Federal 
income tax purposes, even if no gain or loss is taken into account. 
Likewise, if an EAG partnership derives gross receipts from the lease, 
rental, license, sale, exchange, or other disposition of property that 
was MPGE or produced by a member (or members) of the same EAG (the 
producing member) to which all the partners of the EAG partnership 
belong at the time that the EAG partnership disposes of such property, 
then the EAG partnership is treated as conducting the MPGE or production 
activities previously conducted by the producing member with respect to 
that property. The previous sentence applies only for those taxable 
years in which the producing member is a member of the EAG of which all 
the partners of the EAG partnership are members for the entire taxable 
year of the EAG partnership. With respect to a lease, rental, or 
license, the EAG partnership is treated as having disposed of the 
property on the date or dates on which it takes into account its gross 
receipts derived from the lease, rental, or license under its methods of 
accounting. With respect to a sale, exchange, or other disposition, the 
EAG partnership is treated as having disposed of the property on the 
date on which it ceases to own the property for Federal income tax 
purposes, even if no gain or loss is taken into account. See paragraph 
(j)(5) Example 3 of this section.
    (ii) Attribution between EAG partnerships. If an EAG partnership 
(disposing partnership) derives gross receipts from the lease, rental, 
license, sale, exchange, or other disposition of property that was MPGE 
or produced by another EAG partnership (producing partnership), then the 
disposing partnership is treated as conducting the MPGE or production 
activities previously conducted by the producing partnership with 
respect to that property, provided that the producing partnership and 
the disposing partnership are owned by members of the same EAG for the 
entire taxable year of the respective partnership in which the disposing 
partnership disposes of such property. With respect to a lease, rental, 
or license, the disposing partnership is treated as having disposed of 
the property on the date or dates on which it takes into account its 
gross receipts from the lease, rental, or license under its methods of 
accounting. With respect to a sale, exchange, or other disposition, the 
disposing partnership is treated as having disposed of the property on 
the date on which it ceases to own the property for Federal income tax 
purposes, even if no gain or loss is taken into account.
    (iii) Exceptions to attribution. Attribution of activities does not 
apply for purposes of the construction of real property under Sec. 
1.199-3(m)(1) and the performance of engineering and architectural 
services under Sec. 1.199-3(n)(2) and (3), respectively.
    (3) Special rules for distributions. If an EAG partnership 
distributes property to a partner, then, solely for purposes of section 
199(d)(1)(A)(iii)(II), the EAG partnership is treated as having gross 
receipts in the taxable year of the distribution equal to the fair 
market value of the property at the time of distribution to the partner 
and the deemed gross receipts are allocated to that partner, provided 
that the partner derives gross receipts from the distributed property 
(and takes such receipts into account under its methods of accounting) 
during the taxable year of the partner with or within which the 
partnership's taxable year (in which the distribution occurs) ends. For 
rules for taking costs into account (such as

[[Page 440]]

costs included in the adjusted basis of the distributed property), see 
Sec. 1.199-4.
    (4) Other rules. Except as provided in this paragraph (j), an EAG 
partnership is treated the same as other partnerships for purposes of 
section 199. Accordingly, an EAG partnership is subject to the rules of 
this section regarding the application of section 199 to pass-thru 
entities, including application of the section 199(d)(1)(A)(iii) wage 
limitation under paragraph (b)(3) of this section. In determining 
whether a member of an EAG or an EAG partnership MPGE QPP in whole or in 
significant part within the United States or produced a qualified film 
or produced utilities within the United States, see Sec. 1.199-3(g)(2) 
and (3) and Example 5 of paragraph (j)(5) of this section.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (j). Assume that PRS, X, Y, and Z all are calendar year 
taxpayers.

    Example 1. Contribution. X and Y are the only partners in PRS, a 
partnership, for PRS's entire 2006 taxable year. X and Y are both 
members of a single EAG for the entire 2006 year. In 2006, X MPGE QPP 
within the United States and contributes the property to PRS. In 2006, 
PRS sells the QPP for $1,000. Under this paragraph (j), PRS is treated 
as having MPGE the QPP within the United States, and PRS's $1,000 gross 
receipts constitute DPGR. PRS, X, and Y must apply the rules of this 
section regarding the application of section 199 to pass-thru entities 
with respect to the activity of PRS, including application of the 
section 199(d)(1)(A)(iii) wage limitation under paragraph (b)(3) of this 
section.
    Example 2. Sale. X, Y, and Z are the only members of a single EAG 
for the entire 2006 year. X and Y each own 50% of the capital and 
profits interests in PRS, a partnership, for PRS's entire 2006 taxable 
year. In 2006, PRS MPGE QPP within the United States and then sells the 
property to X for $6,000, its fair market value at the time of the sale. 
PRS's gross receipts of $6,000 qualify as DPGR. In 2006, X sells the QPP 
to customers for $10,000, incurring selling expenses of $2,000. Under 
this paragraph (j), X is treated as having MPGE the QPP within the 
United States, and X's $10,000 of gross receipts qualify as DPGR. PRS, X 
and Y must apply the rules of this section regarding the application of 
section 199 to pass-thru entities with respect to the activity of PRS, 
including application of the section 199(d)(1)(A)(iii) wage limitation 
under paragraph (b)(3) of this section. The results would be the same if 
PRS sold the property to Z rather than to X.
    Example 3. Lease. X, Y, and Z are the only members of a single EAG 
for the entire 2005 year. X and Y each own 50% of the capital and 
profits interests in PRS, a partnership, for PRS's entire 2005 taxable 
year. In 2005, PRS MPGE QPP within the United States and then sells the 
property to X for $6,000, its fair market value at the time of the sale. 
PRS's gross receipts of $6,000 qualify as DPGR. In 2005, X rents the QPP 
it acquired from PRS to customers unrelated to X. X takes the gross 
receipts attributable to the rental of the QPP into account under its 
methods of accounting in 2005 and 2006. On July 1, 2006, X ceases to be 
a member of the same EAG to which Y, the other partner in PRS, belongs. 
For 2005, X is treated as having MPGE the QPP in the United States, and 
its gross receipts derived from the rental of the QPP qualify as DPGR. 
For 2006, however, because X and Y, partners in PRS, are no longer 
members of the same EAG for the entire year, the gross rental receipts X 
takes into account in 2006 do not qualify as DPGR.
    Example 4. Distribution. X and Y are the only partners in PRS, a 
partnership, for PRS's entire 2006 taxable year. X and Y are both 
members of a single EAG for the entire 2006 year. In 2006, PRS MPGE QPP 
within the United States, incurring $600 of CGS, including $500 of W-2 
wages (as defined in Sec. 1.199-2(e)), and then distributes the QPP to 
X. X's adjusted basis in the QPP is $600. At the time of the 
distribution, the fair market value of the QPP is $1,000. X incurs $200 
of CGS, including $100 of W-2 wages, to further MPGE the QPP within the 
United States. In 2006, X sells the QPP for $1,500 to an unrelated 
customer and takes the gross receipts into account under its method of 
accounting in the same taxable year. Under paragraph (j)(1) of this 
section, X is treated as having MPGE the QPP within the United States, 
and X's $1,500 of gross receipts qualify as DPGR. In addition, PRS is 
treated as having DPGR of $1,000 solely for purposes of applying the 
wage limitation in section 199(d)(1)(A)(iii) based on the applicable 
percentage of QPAI.
    Example 5. Multiple sales. (i) Facts. X and Y are the only partners 
in PRS, a partnership, for PRS's entire 2006 taxable year. X and Y are 
both non-consolidated members of a single EAG for the entire 2006 year. 
PRS produces in bulk form in the United States the active ingredient for 
a pharmaceutical product. Assume that PRS's own MPGE activity with 
respect to the active ingredient is not substantial in nature, taking 
into account all of the facts and circumstances, and PRS's direct labor 
and overhead to MPGE the active ingredient within the United States are 
$15 and account for 15% of PRS's $100 CGS of the active ingredient. In 
2006, PRS sells the active ingredient in bulk form to X. X uses the 
active ingredient to produce the finished dosage form drug. Assume that 
X's own

[[Page 441]]

MPGE activity with respect to the finished dosage form drug is not 
substantial in nature, taking into account all of the facts and 
circumstances, and X's direct labor and overhead to MPGE the finished 
dosage form drug within the United States are $12 and account for 10% of 
X's $120 CGS of the finished dosage form drug. In 2006, X sells the 
finished dosage form drug in finished dosage to Y and Y sells the 
finished dosage form drug to customers. Assume that Y's own MPGE 
activity with respect to the finished dosage form drug is not 
substantial in nature, taking into account all of the facts and 
circumstances, and Y incurs $2 of direct labor and overhead and Y's CGS 
in selling the finished dosage form drug to customers is $130.
    (ii) Analysis. PRS's gross receipts from the sale of the active 
ingredient to X are non-DPGR because PRS's MPGE activity is not 
substantial in nature and PRS does not satisfy the safe harbor described 
in Sec. 1.199-3(g)(3) because PRS's direct labor and overhead account 
for less than 20% of PRS's CGS of the active ingredient. X's gross 
receipts from the sale of the finished dosage form drug to Y are DPGR 
because X is considered to have MPGE the finished dosage form drug in 
significant part in the United States pursuant to the safe harbor 
described in Sec. 1.199-3(g)(3) because the $27 ($15 + $12) of direct 
labor and overhead incurred by PRS and X equals or exceeds 20% of X's 
total CGS ($120) of the finished dosage form drug at the time X disposes 
of the drug to Y. Similarly, Y's gross receipts from the sale of the 
finished dosage form drug to customers are DPGR because Y is considered 
to have MPGE the drug in significant part in the United States pursuant 
to the safe harbor described in Sec. 1.199-3(g)(3) because the $29 ($15 
+ $12 + $2) of direct labor and overhead incurred by PRS, X, and Y 
equals or exceeds 20% of Y's total CGS ($130) of the finished dosage 
form drug at the time Y disposes of the finished dosage form drug to Y's 
customers.

    (k) Effective dates. Section 199 applies to taxable years beginning 
after December 31, 2004. In determining the deduction under section 199, 
items arising from a taxable year of a partnership, S corporation, 
estate, or trust beginning before January 1, 2005, shall not be taken 
into account for purposes of section 199(d)(1). Section 1.199-9 does not 
apply to taxable years beginning after May 17, 2006, the enactment date 
of the Tax Increase Prevention and Reconciliation Act of 2005 (Public 
Law 109-222, 120 Stat. 345). For taxable years beginning on or before 
May 17, 2006, a taxpayer must apply Sec. 1.199-9 if the taxpayer 
applies Sec. Sec. 1.199-1 through 1.199-8 to that taxable year. 
Notwithstanding the preceding sentence, a partnership or S corporation 
that is a qualifying small taxpayer under Sec. 1.199-4(f) of REG-
105847-05 (2005-47 I.R.B. 987) (see Sec. 601.601(d)(2) of this chapter) 
may use the small business simplified overall method to apportion CGS 
and deductions between DPGR and non-DPGR at the entity level under Sec. 
1.199-4(f) of REG-105847-05 for taxable years beginning on or before May 
17, 2006. If a taxpayer chooses not to rely on Sec. Sec. 1.199-1 
through 1.199-9 (as provided in Sec. 1.199-8(i)) for a taxable year 
beginning before June 1, 2006, the guidance under section 199 that 
applies to taxable years beginning before June 1, 2006, is contained in 
Notice 2005-14 (2005-1 C.B. 498) (see Sec. 601.601(d)(2) of this 
chapter). In addition, a taxpayer also may rely on the provisions of 
REG-105847-05 for taxable years beginning before June 1, 2006. If Notice 
2005-14 and REG-105847-05 include different rules for the same 
particular issue, then a taxpayer may rely on either the rule set forth 
in Notice 2005-14 or the rule set forth in REG-105847-05. However, if 
REG-105847-05 includes a rule that was not included in Notice 2005-14, 
then a taxpayer is not permitted to rely on the absence of a rule in 
Notice 2005-14 to apply a rule contrary to REG-105847-05. For taxable 
years beginning after May 17, 2006, and before June 1, 2006, a taxpayer 
may not apply Notice 2005-14, REG-105847-05, or any other guidance under 
section 199 in a manner inconsistent with amendments made to section 199 
by section 514 of the Tax Increase Prevention and Reconciliation Act of 
2005.

[T.D. 9263, 71 FR 31283, June 1, 2006; 72 FR 6, Jan. 3, 2007; as amended 
by T.D. 9381, 73 FR 8814, Feb. 15, 2008]

             Additional Itemized Deductions for Individuals



Sec. 1.211-1  Allowance of deductions.

    In computing taxable income under section 63(a), the deductions 
provided by sections 212, 213, 214, 215, 216, and 217 shall be allowed 
subject to the exceptions provided in Part IX, Subchapter B, Chapter 1 
of the Code (section 261 and following, relating to items not 
deductible).

[T.D. 6796, 30 FR 1037, Feb. 2, 1965]

[[Page 442]]



Sec. 1.212-1  Nontrade or nonbusiness expenses.

    (a) An expense may be deducted under section 212 only if:
    (1) It has been paid or incurred by the taxpayer during the taxable 
year (i) for the production or collection of income which, if and when 
realized, will be required to be included in income for Federal income 
tax purposes, or (ii) for the management, conservation, or maintenance 
of property held for the production of such income, or (iii) in 
connection with the determination, collection, or refund of any tax; and
    (2) It is an ordinary and necessary expense for any of the purposes 
stated in subparagraph (1) of this paragraph.
    (b) The term income for the purpose of section 212 includes not 
merely income of the taxable year but also income which the taxpayer has 
realized in a prior taxable year or may realize in subsequent taxable 
years; and is not confined to recurring income but applies as well to 
gains from the disposition of property. For example, if defaulted bonds, 
the interest from which if received would be includible in income, are 
purchased with the expectation of realizing capital gain on their 
resale, even though no current yield thereon is anticipated, ordinary 
and necessary expenses thereafter paid or incurred in connection with 
such bonds are deductible. Similarly, ordinary and necessary expenses 
paid or incurred in the management, conservation, or maintenance of a 
building devoted to rental purposes are deductible notwithstanding that 
there is actually no income therefrom in the taxable year, and 
regardless of the manner in which or the purpose for which the property 
in question was acquired. Expenses paid or incurred in managing, 
conserving, or maintaining property held for investment may be 
deductible under section 212 even though the property is not currently 
productive and there is no likelihood that the property will be sold at 
a profit or will otherwise be productive of income and even though the 
property is held merely to minimize a loss with respect thereto.
    (c) In the case of taxable years beginning before January 1, 1970, 
expenses of carrying on transactions which do not constitute a trade or 
business of the taxpayer and are not carried on for the production or 
collection of income or for the management, conservation, or maintenance 
of property held for the production of income, but which are carried on 
primarily as a sport, hobby, or recreation are not allowable as nontrade 
or nonbusiness expenses. The question whether or not a transaction is 
carried on primarily for the production of income or for the management, 
conservation, or maintenance of property held for the production or 
collection of income, rather than primarily as a sport, hobby, or 
recreation, is not to be determined solely from the intention of the 
taxpayer but rather from all the circumstances of the case. For example, 
consideration will be given to the record of prior gain or loss of the 
taxpayer in the activity, the relation between the type of activity and 
the principal occupation of the taxpayer, and the uses to which the 
property or what it produces is put by the taxpayer. For provisions 
relating to activities not engaged in for profit applicable to taxable 
years beginning after December 31, 1969, see section 183 and the 
regulations thereunder.
    (d) Expenses, to be deductible under section 212, must be ``ordinary 
and necessary''. Thus, such expenses must be reasonable in amount and 
must bear a reasonable and proximate relation to the production or 
collection of taxable income or to the management, conservation, or 
maintenance of property held for the production of income.
    (e) A deduction under section 212 is subject to the restrictions and 
limitations in part IX (section 261 and following), subchapter B, 
chapter 1 of the Code, relating to items not deductible. Thus, no 
deduction is allowable under section 212 for any amount allocable to the 
production or collection of one or more classes of income which are not 
includible in gross income, or for any amount allocable to the 
management, conservation, or maintenance of property held for the 
production of income which is not included in gross income. See section 
265. Nor does section 212 allow the deduction of any expenses which are 
disallowed by any of the provisions of subtitle A of the Code, even 
though such expenses may be paid or

[[Page 443]]

incurred for one of the purposes specified in section 212.
    (f) Among expenditures not allowable as deductions under section 212 
are the following: Commuter's expenses; expenses of taking special 
courses or training; expenses for improving personal appearance; the 
cost of rental of a safe-deposit box for storing jewelry and other 
personal effects; expenses such as those paid or incurred in seeking 
employment or in placing oneself in a position to begin rendering 
personal services for compensation, campaign expenses of a candidate for 
public office, bar examination fees and other expenses paid or incurred 
in securing admission to the bar, and corresponding fees and expenses 
paid or incurred by physicians, dentists, accountants, and other 
taxpayers for securing the right to practice their respective 
professions. See, however, section 162 and the regulations thereunder.
    (g) Fees for services of investment counsel, custodial fees, 
clerical help, office rent, and similar expenses paid or incurred by a 
taxpayer in connection with investments held by him are deductible under 
section 212 only if (1) they are paid or incurred by the taxpayer for 
the production or collection of income or for the management, 
conservation, or maintenance of investments held by him for the 
production of income; and (2) they are ordinary and necessary under all 
the circumstances, having regard to the type of investment and to the 
relation of the taxpayer to such investment.
    (h) Ordinary and necessary expenses paid or incurred in connection 
with the management, conservation, or maintenance of property held for 
use as a residence by the taxpayer are not deductible. However, ordinary 
and necessary expenses paid or incurred in connection with the 
management, conservation, or maintenance of property held by the 
taxpayer as rental property are deductible even though such property was 
formerly held by the taxpayer for use as a home.
    (i) Reasonable amounts paid or incurred by the fiduciary of an 
estate or trust on account of administration expenses, including 
fiduciaries' fees and expenses of litigation, which are ordinary and 
necessary in connection with the performance of the duties of 
administration are deductible under section 212, notwithstanding that 
the estate or trust is not engaged in a trade or business, except to the 
extent that such expenses are allocable to the production or collection 
of tax-exempt income. But see section 642 (g) and the regulations 
thereunder for disallowance of such deductions to an estate where such 
items are allowed as a deduction under section 2053 or 2054 in computing 
the net estate subject to the estate tax.
    (j) Reasonable amounts paid or incurred for the services of a 
guardian or committee for a ward or minor, and other expenses of 
guardians and committees which are ordinary and necessary, in connection 
with the production or collection of income inuring to the ward or 
minor, or in connection with the management, conservation, or 
maintenance of property, held for the production of income, belonging to 
the ward or minor, are deductible.
    (k) Expenses paid or incurred in defending or perfecting title to 
property, in recovering property (other than investment property and 
amounts of income which, if and when recovered, must be included in 
gross income), or in developing or improving property, constitute a part 
of the cost of the property and are not deductible expenses. Attorneys' 
fees paid in a suit to quiet title to lands are not deductible; but if 
the suit is also to collect accrued rents thereon, that portion of such 
fees is deductible which is properly allocable to the services rendered 
in collecting such rents. Expenses paid or incurred in protecting or 
asserting one's right to property of a decedent as heir or legatee, or 
as beneficiary under a testamentary trust, are not deductible.
    (l) Expenses paid or incurred by an individual in connection with 
the determination, collection, or refund of any tax, whether the taxing 
authority be Federal, State, or municipal, and whether the tax be 
income, estate, gift, property, or any other tax, are deductible. Thus, 
expenses paid or incurred by a taxpayer for tax counsel or expenses paid 
or incurred in connection with the preparation of his tax returns or in

[[Page 444]]

connection with any proceedings involved in determining the extent of 
his tax liability or in contesting his tax liability are deductible.
    (m) An expense (not otherwise deductible) paid or incurred by an 
individual in determining or contesting a liability asserted against him 
does not become deductible by reason of the fact that property held by 
him for the production of income may be required to be used or sold for 
the purpose of satisfying such liability.
    (n) Capital expenditures are not allowable as nontrade or 
nonbusiness expenses. The deduction of an item otherwise allowable under 
section 212 will not be disallowed simply because the taxpayer was 
entitled under Subtitle A of the Code to treat such item as a capital 
expenditure, rather than to deduct it as an expense. For example, see 
section 266. Where, however, the item may properly be treated only as a 
capital expenditure or where it was properly so treated under an option 
granted in Subtitle A of the Code, no deduction is allowable under 
section 212; and this is true regardless of whether any basis adjustment 
is allowed under any other provision of the Code.
    (o) The provisions of section 212 are not intended in any way to 
disallow expenses which would otherwise be allowable under section 162 
and the regulations thereunder. Double deductions are not permitted. 
Amounts deducted under one provision of the Internal Revenue Code of 
1954 cannot again be deducted under any other provision thereof.
    (p) Frustration of public policy. The deduction of a payment will be 
disallowed under section 212 if the payment is of a type for which a 
deduction would be disallowed under section 162(c), (f), or (g) and the 
regulations thereunder in the case of a business expense.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960; 25 FR 14021, Dec. 12, 1960, as 
amended by T.D. 7198, 37 FR 13685, July 13, 1972; T.D. 7345, 40 FR 7439, 
Feb. 20, 1975]



Sec. 1.213-1  Medical, dental, etc., expenses.

    (a) Allowance of deduction. (1) Section 213 permits a deduction of 
payments for certain medical expenses (including expenses for medicine 
and drugs). Except as provided in paragraph (d) of this section 
(relating to special rule for decedents) a deduction is allowable only 
to individuals and only with respect to medical expenses actually paid 
during the taxable year, regardless of when the incident or event which 
occasioned the expenses occurred and regardless of the method of 
accounting employed by the taxpayer in making his income tax return. 
Thus, if the medical expenses are incurred but not paid during the 
taxable year, no deduction for such expenses shall be allowed for such 
year.
    (2) Except as provided in subparagraphs (4)(i) and (5)(i) of this 
paragraph, only such medical expenses (including the allowable expenses 
for medicine and drugs) are deductible as exceed 3 percent of the 
adjusted gross income for the taxable year. For taxable years beginning 
after December 31, 1966, the amounts paid during the taxable year for 
insurance that constitute expenses paid for medical care shall, for 
purposes of computing total medical expenses, be reduced by the amount 
determined under subparagraph (5)(i) of this paragraph. For the amounts 
paid during the taxable year for medicine and drugs which may be taken 
into account in computing total medical expenses, see paragraph (b) of 
this section. For the maximum deduction allowable under section 213 in 
the case of certain taxable years, see paragraph (c) of this section. As 
to what constitutes ``adjusted gross income'', see section 62 and the 
regulations thereunder.
    (3)(i) For medical expenses paid (including expenses paid for 
medicine and drugs) to be deductible, they must be for medical care of 
the taxpayer, his spouse, or a dependent of the taxpayer and not be 
compensated for by insurance or otherwise. Expenses paid for the medical 
care of a dependent, as defined in section 152 and the regulations 
thereunder, are deductible under this section even though the dependent 
has gross income equal to or in excess of the amount determined pursuant 
to Sec. 1.151-2 applicable to the calendar year in which the taxable 
year of the taxpayer begins. Where such expenses are paid by two or more 
persons and the

[[Page 445]]

conditions of section 152(c) and the regulations thereunder are met, the 
medical expenses are deductible only by the person designated in the 
multiple support agreement filed by such persons and such deduction is 
limited to the amount of medical expenses paid by such person.
    (ii) An amount excluded from gross income under section 105 (c) or 
(d) (relating to amounts received under accident and health plans) and 
the regulations thereunder shall not constitute compensation for 
expenses paid for medical care. Exclusion of such amounts from gross 
income will not affect the treatment of expenses paid for medical care.
    (iii) The application of the rule allowing a deduction for medical 
expenses to the extent not compensated for by insurance or otherwise may 
be illustrated by the following example in which it is assumed that 
neither the taxpayer nor his wife has attained the age of 65:

    Example. Taxpayer H, married to W and having one dependent child, 
had adjusted gross income for 1956 of $3,000. During 1956 he paid $300 
for medical care, of which $100 was for treatment of his dependent child 
and $200 for an operation on W which was performed in September 1955. In 
1956 he received a payment of $50 for health insurance to cover a 
portion of the cost of W's operation performed during 1955. The 
deduction allowable under section 213 for the calendar year 1956, 
provided the taxpayer itemizes his deductions and does not compute his 
tax under section 3 by use of the tax table, is $160, computed as 
follows:

Payments in 1956 for medical care............................       $300
Less: Amount of insurance received in 1956...................         50
                                                              ----------
    Payments in 1956 for medical care not compensated for            250
     during 1956.............................................
Less: 3 percent of $3,000 (adjusted gross income)............         90
                                                              ----------
    Excess, allowable as a deduction for 1956................        160
 

    (4)(i) For taxable years beginning before January 1, 1967, where 
either the taxpayer or his spouse has attained the age of 65 before the 
close of the taxable year, the 3-percent limitation on the deduction for 
medical expenses does not apply with respect to expenses for medical 
care of the taxpayer or his spouse. Moreover, for taxable years 
beginning after December 31, 1959, and before January 1, 1967, the 3-
percent limitation on the deduction for medical expenses does not apply 
to amounts paid for the medical care of a dependent (as defined in sec. 
152) who is the mother or father of the taxpayer or his spouse and who 
has attained the age of 65 before the close of the taxpayer's taxable 
year. For taxable years beginning before January 1, 1964, and for 
taxable years beginning after December 31, 1966, all amounts paid by the 
taxpayer for medicine and drugs are subject to the 1-percent limitation 
provided by section 213(b). For taxable years beginning after December 
31, 1963, and before January 1, 1967, the 1-percent limitation provided 
by section 213(b) does not apply, under certain circumstances, to 
amounts paid by the taxpayer for medicine and drugs for the taxpayer and 
his spouse or for a dependent (as defined in sec. 152) who is the mother 
or father of the taxpayer or of his spouse. (For additional provisions 
relating to the 1-percent limitation with respect to medicine and drugs, 
see paragraph (b) of this section.) For taxable years beginning before 
January 1, 1967, whether or not the 3-percent or 1-percent limitation 
applies, the total medical expenses deductible under section 213 are 
subject to the limitations described in section 213(c) and paragraph (c) 
of this section and, where applicable, to the limitations described in 
section 213(g) and Sec. 1.213-2.
    (ii) The age of a taxpayer shall be determined as of the last day of 
his taxable year. In the event of the taxpayer's death, his taxable year 
shall end as of the date of his death. The age of a taxpayer's spouse 
shall be determined as of the last day of the taxpayer's taxable year, 
except that, if the spouse dies within such taxable year, her age shall 
be determined as of the date of her death. Likewise, the age of the 
taxpayer's dependent who is the mother or father of the taxpayer or of 
his spouse shall be determined as of the last day of the taxpayer's 
taxable year but not later than the date of death of such dependent.
    (iii) The application of subdivision (i) of this subparagraph may be 
illustrated by the following examples:


[[Page 446]]


    Example 1. Taxpayer A, who attained the age of 65 on February 22, 
1956, makes his return on the basis of the calendar year. During the 
year 1956, A had adjusted gross income of $8,000, and paid the following 
medical bills: (a) $560 (7 percent of adjusted gross income) for the 
medical care of himself and his spouse, and (b) $160 (2 percent of 
adjusted gross income) for the medical care of his dependent son. No 
part of these payments was for medicine and drugs nor compensated for by 
insurance or otherwise. The allowable deduction under section 213 for 
1956 is $560, the full amount of the medical expenses for the taxpayer 
and his spouse. No deduction is allowable for the amount of $160 paid 
for medical care of the dependent son since the amount of such payment 
(determined without regard to the payments for the care of the taxpayer 
and his spouse) does not exceed 3 percent of adjusted gross income.
    Example 2. H and W, who have a dependent child, made a joint return 
for the calendar year 1956. H became 65 years of age on August 15, 1956. 
The adjusted gross income of H and W in 1956 was $40,000 and they paid 
in such year the following amounts for medical care: (a) $3,000 for the 
medical care of H; (b) $2,000 for the medical care of W; and (c) $3,000 
for the medical care of the dependent child. No part of these payments 
was for medicine and drugs nor compensated for by insurance or 
otherwise. The allowable deduction under section 213 for medical 
expenses paid in 1956 is $6,800 computed as follows:

Payments for medical care of H and W in 1956.................     $5,000
Payments for medical care of the dependent in 1956     $3,000
Less: 3 percent of $40,000 (adjusted gross income)      1,200
                                                     --------      1,800
                                                              ----------
    Allowable deduction for 1956..................  .........      6,800
 

    Example 3. D and his wife, E, made a joint income tax return for the 
calendar year 1962, and reported adjusted gross income of $30,000. On 
December 13, 1962, D attained the age of 65. During the year 1962, D's 
father, F, who was 87 years of age, received over half of his support 
from, and was a dependent (as defined in section 152) of, D. However, D 
could not claim an exemption under section 151 for F because F had gross 
income from rents in 1962 of $800. D paid the following medical expenses 
in 1962, none of which were compensated for by insurance or otherwise: 
hospital and doctor bills for D and E, $6,500; hospital and doctor bills 
for F, $4,850; medicine and drugs for D and E, $225, and for F, $225. 
Since none of the medical expenses are subject to the 3-percent 
limitation, the amount of medical expenses to be taken into account 
(before computing the maximum deduction) is $11,500, computed as 
follows:

Hospital and doctor bills--for D and E............  .........     $6,500
Hospital and doctor bills--for F..................  .........      4,850
Medicine and drugs--for D and E...................       $225
Medicine and drugs--for F.........................       $225
                                                   -----------
    Total medicine and drugs......................        450
Less: 1 percent of adjusted gross income ($30,000)        300
                                                   -----------
Allowable expenses for medicine and drugs.........  .........       $150
                                                              ----------
    Total medical expenses taken into account.....  .........     11,500
 


Since an exemption cannot be claimed for F on the 1962 return of D and 
E, their deduction for medical expenses (assuming that section 213(g) 
does not apply) is limited to $10,000 for that year ($5,000 multiplied 
by the two exemptions allowed for D and E under section 151(b)). If 
these identical facts had occurred in a taxable year beginning before 
January 1, 1962, the medical expense deduction for D and E would, for 
such taxable year, be limited to $5,000 ($2,500 multiplied by the two 
exemptions allowed for D and E under section 151(b)). See paragraph (c) 
of this section.
    Example 4. Assume the same facts as in Example 3, except that D 
furnished the entire support of his father's twin sister, G, who had no 
gross income during 1962 and for whom D was entitled to a dependency 
exemption. In addition, D paid $4,800 to doctors and hospitals during 
1962 for the medical care of G. No part of the $4,800 was for medicine 
and drugs, and no amount was compensated for by insurance or otherwise. 
For purposes of the maximum limitation under section 213(c), the maximum 
deduction for medical expenses on the 1962 return of D and E is limited 
to $15,000 ($5,000 multiplied by 3, the number of exemptions allowed 
under section 151, exclusive of the exemptions for old age or 
blindness). If these identical facts had occurred in a taxable year 
beginning before January 1, 1962, the medical expense deduction for D 
and E would, for such taxable year, be limited to $7,500 ($2,500 
multiplied by the three exemptions allowed under section 151, exclusive 
of the exemptions for old age or blindness). The medical expenses to be 
taken into account by D and E for 1962 and the maximum deductions 
allowable for such expenses are $15,400 and $15,000, respectively, 
computed as follows:

Medical expenses per Example 3....................  .........    $11,500
Add: Expenses paid for G..........................     $4,800
Less: 3 percent of adjusted gross income ($30,000)        900
                                                     --------      3,900
                                                              ----------
    Total medical expenses taken into account................     15,400
Maximum deduction for 1962 ($5,000 multiplied by 3                15,000
 exemptions).................................................
                                                              ----------
Medical expenses not deductible..............................        400
 

    Example 5. Assume that the facts set forth in Example 3 had occurred 
in respect of the

[[Page 447]]

calendar year 1964 rather than the calendar year 1962. Since both D and 
his father, F, had attained the age of 65 before the close of the 
taxable year, the 1-percent limitation does not apply to the amounts 
paid for medicine and drugs for D, E, and F. Accordingly, the total 
medical expenses taken into account by D and E for 1964 would be $11,800 
(rather than $11,500 as in Example 3) computed as follows:

Hospital and doctor bills--for D and E......................      $6,500
Hospital and doctor bills--for F............................       4,350
Medicine and drugs--for D and E.............................         225
Medicine and drugs--for F...................................         225
                                                             -----------
  Total medical expenses taken into account.................      11,800
 

    (5)(i) For taxable years beginning after December 31, 1966, there 
may be deducted without regard to the 3-percent limitation the lesser 
of--(a) One-half of the amounts paid during the taxable year for 
insurance which constitute expenses for medical care for the taxpayer, 
his spouse, and dependents; or (b) $150.
    (ii) The application of subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example. H and W made a joint return for the calendar year 1967. The 
adjusted gross income of H and W for 1967 was $10,000 and they paid in 
such year $370 for medical care of which amount $350 was paid for 
insurance which constitutes medical care for H and W. No part of the 
payment was for medicine and drugs or was compensated for by insurance 
or otherwise. The allowable deduction under section 213 for medical 
expenses paid in 1967 is $150, computed as follows:

(1) Lesser of $175 (one-half of amounts paid for insurance) or      $150
 $150...........................................................
(2) Payments for medical care...................    $370  ......  ......
(3) Less line 1.................................     150  ......  ......
                                                 --------
(4) Medical expenses to be taken into account under 3-      $220
 percent limitation (line 2 minus line 3)...............
(5) Less: 3 percent of $10,000 (adjusted gross income)..     300
                                                         --------
(6) Excess allowable as a deduction for 1967 (excess of line 4         0
 over line 5)...................................................
                                                                 -------
(7) Allowable medical expense deduction for 1967 (line 1 plus       $150
 line 6)........................................................
 

    (b) Limitation with respect to medicine and drugs--(1) Taxable years 
beginning before January 1, 1964. (i) Amounts paid during taxable years 
beginning before January 1, 1964, for medicine and drugs are to be taken 
into account in computing the allowable deduction for medical expenses 
paid during the taxable year only to the extent that the aggregate of 
such amounts exceeds 1 percent of the adjusted gross income for the 
taxable year. Thus, if the aggregate of the amounts paid for medicine 
and drugs exceeds 1 percent of adjusted gross income, the excess is 
added to other medical expenses for the purpose of computing the medical 
expense deduction. The application of this subdivision may be 
illustrated by the following example:

    Example. The taxpayer, a single individual with no dependents, had 
an adjusted gross income of $6,000 for the calendar year 1956. During 
1956, he paid a doctor $300 for medical services, a hospital $100 for 
hospital care, and also spent $100 for medicine and drugs. These 
payments were not compensated for by insurance or otherwise. The 
deduction allowable under section 213 for the calendar year 1956 is 
$260, computed as follows:
    Payments for medical care in 1956:

Doctor..........................................................    $300
Hospital........................................................     100
Medicine and drugs......................................    $100
Less: 1 percent of $6,000 (adjusted gross income).......      60      40
                                                         ---------------
  Total medical expenses taken into account.....................     440
Less: 3 percent of $6,000 (adjusted gross income)...............     180
                                                                 -------
Allowable deduction for 1956....................................     260
 

    (ii) For taxable years beginning before January 1, 1964, the 1-
percent limitation is applicable to all amounts paid by a taxpayer 
during the taxable year for medicine and drugs. Moreover, this 
limitation applies regardless of the fact that the amounts paid are for 
medicine and drugs for the taxpayer, his spouse, or dependent parent 
(the mother or father of the taxpayer or of his spouse) who has attained 
the age of 65 before the close of the taxable year. In a case where 
either a taxpayer or his spouse has attained the age of 65 and the 
taxpayer pays an amount in excess of 1 percent of adjusted gross income 
for medicine and drugs for himself, his spouse, and his dependents, it 
is necessary to apportion the 1 percent of adjusted gross income (the 
portion which is not taken into account as expenses paid for medical 
care) between the taxpayer and his spouse on the one hand and his 
dependents on the other. The part of the 1 percent allocable to the 
taxpayer and his spouse is an amount which bears the same ratio to 1 
percent of his adjusted gross income which the amount paid for medicine 
and drugs for the taxpayer and his spouse bears to the total amount paid 
for medicine and

[[Page 448]]

drugs for the taxpayer, his spouse, and his dependents. The balance of 
the 1 percent shall be allocated to his dependents. The amount paid for 
medicine and drugs in excess of the allocated part of the 1 percent 
shall be taken into account as payments for medical care for the 
taxpayer and his spouse on the one hand and his dependents on the other, 
respectively. A similar apportionment must be made in the case of a 
dependent parent (65 years of age or over) of the taxpayer or his 
spouse. The application of this subdivision (ii) may be illustrated by 
the following example:

    Example. H and W, who have a dependent child, made a joint return 
for the calendar year 1956. H became 65 years of age on September 15, 
1956. The adjusted gross income of H and W for 1956 is $10,000. During 
the year, H and W paid the following amounts for medical care: (i) 
$1,000 for doctors and hospital expenses and $180 for medicine and drugs 
for themselves; and (ii) $500 for doctors and hospital expenses and $140 
for medicine and drugs for the dependent child. These payments were not 
compensated for by insurance or otherwise. The deduction allowable under 
section 213(a)(2) for medical expenses paid in 1956 is $1,420, computed 
as follows:

H and W:
  Payments for doctors and hospital.  ..........  ..........   $1,000.00
  Payments for medicine and drugs...  ..........     $180.00  ..........
  Less: Limitation for medicine and   ..........       56.25      123.75
   drugs (see computation below)....
                                                 -----------------------
    Medical expenses for H and W to   ..........  ..........    1,123.75
     be taken into account..........
Dependent:
  Payments for doctors and hospital.  ..........      500.00  ..........
    Payments for medicine and drugs.     $140.00  ..........  ..........
    Less: Limitation for medicine          43.75       96.25
     and drugs (see computation
     below).........................
                                     ------------------------
    Total medical expenses..........  ..........      596.25
  Less: 3 percent of $10,000          ..........      300.00
   (adjusted gross income)..........
                                                 ------------
  Medical expenses for the dependent  ..........  ..........      296.25
   to be taken into account.........
    Allowable deductions for 1956...  ..........  ..........    1,420.00
                                                             -----------
Payments for medicine and drugs:
  H and W...........................  ..........  ..........      180.00
  Dependent.........................  ..........  ..........      140.00
                                                             -----------
    Total payments..................  ..........  ..........      320.00
  Less: 1 percent of $10,000          ..........  ..........      100.00
   (adjusted gross income)..........
  Payments to be taken into account.  ..........  ..........       20.00
                                                             -----------
Allocation of 1-percent exclusion:
  H and W (180/320x$100)............  ..........  ..........       56.25
  Dependent (140/320x$100)..........  ..........  ..........       43.75
                                                             -----------
    Total...........................  ..........  ..........      100.00

    (2) Taxable years beginning after December 31, 1963. (i) Except as 
otherwise provided in subdivision (ii) of this subparagraph, amounts 
paid during taxable years beginning after December 31, 1963, for 
medicine and drugs are to be taken into account in computing the 
allowable deduction for medical expenses paid during the taxable year 
only to the extent that the aggregate of such amounts exceeds 1 percent 
of the adjusted gross income for the taxable year. Thus, if the 
aggregate of the amounts paid for medicine and drugs which are subject 
to the 1-percent limitation exceeds 1 percent of adjusted gross income, 
the excess is added to other medical expenses for the purpose of 
computing the medical expense deduction.
    (ii) The 1-percent limitation provided by section 213 does not apply 
to amounts paid by a taxpayer during a taxable year beginning after 
December 31, 1963, and before January 1, 1967, for medicine and drugs 
for the medical care of the taxpayer and his spouse if either has 
attained the age of 65 before the close of the taxable year. Moreover, 
for taxable years beginning after December 31, 1963, and before January 
1, 1967, the 1-percent limitation with respect to medicine and drugs 
does not apply to amounts paid for the medical

[[Page 449]]

care of a dependent (as defined in sec. 152) who is the mother or father 
of the taxpayer or of his spouse and who has attained the age of 65 
before the close of the taxpayer's taxable year. Amounts paid for 
medicine and drugs which are not subject to the limitation on medicine 
and drugs are added to other medical expenses of a taxpayer and his 
spouse or the dependent (as the case may be) for the purpose of 
computing the medical expense deduction.
    (iii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. H and W, who have a dependent child, C, were both under 
65 years of age at the close of the calendar year 1964 and made a joint 
return for that calendar year. During the year 1964, H's mother, M, 
attained the age of 65, and was a dependent (as defined in section 152) 
of H. The adjusted gross income of H and W in 1964 was $12,000. During 
1964 H and W paid the following amounts for medical care: (i) $600 for 
doctors and hospital expenses and $120 for medicine and drugs for 
themselves; (ii) $350 for doctors and hospital expenses and $60 for 
medicine and drugs for C; and (iii) $400 for doctors and hospital 
expenses and $100 for medicine and drugs for M. These payments were not 
compensated for by insurance or otherwise. The deduction allowable under 
section 213(a) (1) for medical expenses paid in 1964 is $1,150, computed 
as follows:

H, W, and C:
  Payments for doctors and hospital.....................   $950
  Payments for medicine and drugs...............    $180
  Less: 1 percent of $12,000 (adjusted gross         120      60
   income)......................................
                                                 ----------------
    Total medical expenses..............................   1,010
  Less: 3 percent of $12,000 (adjusted gross income)....     360
                                                         --------
    Medical expenses of H, W, and C to be taken into account....   $650
M:
  Payments for doctors and hospitals....................     400
  Payments for medicine and drugs.......................     100
                                                         --------
    Medical expenses of M to be taken into account..............     500
                                                                 -------
  Allowable deduction for 1964..................................   1,150
 

    Example 2. H and W, who have a dependent child, C, made a joint 
return for the calendar year 1964, and reported adjusted gross income of 
$12,000. H became 65 years of age on January 23, 1964. F, the 87 year 
old father of W, was a dependent of H. During 1964, H and W paid the 
following amounts for medical care: (i) $400 for doctors and hospital 
expenses and $75 for medicine and drugs for H; (ii) $200 for doctors and 
hospital expenses and $100 for medicine and drugs for W; (iii) $200 for 
doctors and hospital expenses and $175 for medicine and drugs for C; and 
(iv) $700 for doctors and hospital expenses and $150 for medicine and 
drugs for F. These payments were not compensated for by insurance or 
otherwise. The deduction allowable under section 213(a) (2) for medical 
expenses paid in 1964 is $1,625, computed as follows:

H and W:
  Payments for doctors and hospital.....................    $600
  Payments for medicine and drugs.......................     175
                                                         --------
    Medical expenses for H and W to be taken into         ......    $775
     account............................................
F:
  Payments for doctors and hospital.....................     700
  Payments for medicine and drugs.......................     150
                                                         --------
    Medical expenses for F to be taken into account.....  ......     850
C:
  Payments for doctors and hospital.............  ......     200
  Payments for medicine and drugs...............    $175
  Less: 1 percent of $12,000 (adjusted gross         120      55
   income)......................................
                                                 ----------------
    Total medical expenses......................  ......    255
  Less: 3 percent of $12,000 (adjusted gross income)....     360
                                                         --------
    Medical expenses for C to be taken into account.............       0
                                                                 -------
    Allowable deduction for 1964................................   1,625
 

    Example 3. Assume the same facts as example (2) except that the 
calendar year of the return is 1967 and the amounts paid for medical 
care were paid during 1967. The deduction allowable under section 213(a) 
for medical expenses paid in 1967 is $1,520, computed as follows:

Payments for doctors and hospitals:
  H...................................     $400
  W...................................      200
  C...................................      200
  F...................................      700
                                         ------  .....   $1,500
Payments for medicine and drugs:
  H...................................       75
  W...................................      100
  C...................................      175
  F...................................      150
                                           ----  $500
Less: 1 percent of $12,000 (adjusted gross         120      380
 income).......................................
                                                ----------------
Medical expenses to be taken into account......  .....  .......   $1,880
Less: 3 percent of $12,000 (adjusted gross       .....  .......      360
 income).......................................
                                                                --------
Allowable medical expense deduction for 1967...  .....  .......    1,520
 

    (3) Definition of medicine and drugs. For definition of medicine and 
drugs, see paragraph (e) (2) of this section.

[[Page 450]]

    (c) Maximum limitations. (1) For taxable years beginning after 
December 31, 1966, there shall be no maximum limitation on the amount of 
the deduction allowable for payment of medical expenses.
    (2) Except as provided in section 213(g) and Sec. 1.213-2 (relating 
to maximum limitations with respect to certain aged and disabled 
individuals for taxable years beginning before January 1, 1967), for 
taxable years beginning after December 31, 1961, and before January 1, 
1967, the maximum deduction allowable for medical expenses paid in any 
one taxable year is the lesser of:
    (i) $5,000 multiplied by the number of exemptions allowed under 
section 151 (exclusive of exemptions allowed under section 151(c) for a 
taxpayer or spouse attaining the age of 65, or section 151(d) for a 
taxpayer who is blind or a spouse who is blind);
    (ii) $10,000, if the taxpayer is single, not the head of a household 
(as defined in section 1(b) (2)) and not a surviving spouse (as defined 
in section 2(b)), or is married and files a separate return; or
    (iii) $20,000 if the taxpayer is married and files a joint return 
with his spouse under section 6013, or is the head of a household (as 
defined in section 1(b) (2)), or a surviving spouse (as defined in 
section 2(b)).
    (3) The application of subparagraph (2) of this paragraph may be 
illustrated by the following example:

    Example. H and W made a joint return for the calendar year 1962 and 
were allowed five exemptions (exclusive of exemptions under sec. 151 (c) 
and (d)), one for each taxpayer and three for their dependents. The 
adjusted gross income of H and W in 1962 was $80,000. They paid during 
such year $26,000 for medical care, no part of which is compensated for 
by insurance or otherwise. The deduction allowable under section 213 for 
the calendar year 1962 is $20,000, computed as follows:

Payments for medical care in 1962............................    $26,000
Less: 3 percent of $80,000 (adjusted gross income)...........      2,400
                                                              ----------
Excess of medical expenses in 1962 over 3 percent of adjusted     23,600
 gross income................................................
Allowable deduction for 1962 ($5,000 multiplied by five           20,000
 exemptions allowed under sec. 151 (b) and (e) but not in
 excess of $20,000)..........................................
 

    (4) Except as provided in section 213(g) and Sec. 1.213-2 (relating 
to certain aged and disabled individuals), for taxable years beginning 
before January 1, 1962, the maximum deduction allowable for medical 
expenses paid in any 1 taxable year is the lesser of:
    (i) $2,500 multiplied by the number of exemptions allowed under 
section 151 (exclusive of exemptions allowed under section 151(c) for a 
taxpayer or spouse attaining the age of 65, or section 151(d) for a 
taxpayer who is blind or a spouse who is blind);
    (ii) $5,000, if the taxpayer is single, not the head of a household 
(as defined in section 1(b) (2)) and not a surviving spouse (as defined 
in section 2(b)) or is married and files a separate return; or
    (iii) $10,000, if the taxpayer is married and files a joint return 
with his spouse under section 6013, or is head of a household (as 
defined in section 1(b) (2)), or a surviving spouse (as defined in 
section 2(b)).
    (5) For the maximum deduction allowable for taxable years beginning 
before January 1, 1967, if the taxpayer or his spouse is age 65 or over 
and is disabled, see Sec. 1.213-2.
    (d) Special rule for decedents. (1) For the purpose of section 213 
(a), expenses for medical care of the taxpayer which are paid out of his 
estate during the 1-year period beginning with the day after the date of 
his death shall be treated as paid by the taxpayer at the time the 
medical services were rendered. However, no credit or refund of tax 
shall be allowed for any taxable year for which the statutory period for 
filing a claim has expired. See section 6511 and the regulations 
thereunder.
    (2) The rule prescribed in subparagraph (1) of this paragraph shall 
not apply where the amount so paid is allowable under section 2053 as a 
deduction in computing the taxable estate of the decedent unless there 
is filed in duplicate (i) a statement that such amount has not been 
allowed as a deduction under section 2053 in computing the taxable 
estate of the decedent and (ii) a waiver of the right to have such 
amount allowed at any time as a deduction under section 2053. The 
statement and waiver shall be filed with or for association with the 
return, amended return, or claim for credit or refund for the decedent 
for any taxable year for which such an amount is claimed as a deduction.

[[Page 451]]

    (e) Definitions--(1) General. (i) The term medical care includes the 
diagnosis, cure, mitigation, treatment, or prevention of disease. 
Expenses paid for ``medical care'' shall include those paid for the 
purpose of affecting any structure or function of the body or for 
transportation primarily for and essential to medical care. See 
subparagraph (4) of this paragraph for provisions relating to medical 
insurance.
    (ii) Amounts paid for operations or treatments affecting any portion 
of the body, including obstetrical expenses and expenses of therapy or 
X-ray treatments, are deemed to be for the purpose of affecting any 
structure or function of the body and are therefore paid for medical 
care. Amounts expended for illegal operations or treatments are not 
deductible. Deductions for expenditures for medical care allowable under 
section 213 will be confined strictly to expenses incurred primarily for 
the prevention or alleviation of a physical or mental defect or illness. 
Thus, payments for the following are payments for medical care: hospital 
services, nursing services (including nurses' board where paid by the 
taxpayer), medical, laboratory, surgical, dental and other diagnostic 
and healing services, X-rays, medicine and drugs (as defined in 
subparagraph (2) of this paragraph, subject to the 1-percent limitation 
in paragraph (b) of this section), artificial teeth or limbs, and 
ambulance hire. However, an expenditure which is merely beneficial to 
the general health of an individual, such as an expenditure for a 
vacation, is not an expenditure for medical care.
    (iii) Capital expenditures are generally not deductible for Federal 
income tax purposes. See section 263 and the regulations thereunder. 
However, an expenditure which otherwise qualifies as a medical expense 
under section 213 shall not be disqualified merely because it is a 
capital expenditure. For purposes of section 213 and this paragraph, a 
capital expenditure made by the taxpayer may qualify as a medical 
expense, if it has as its primary purpose the medical care (as defined 
in subdivisions (i) and (ii) of this subparagraph) of the taxpayer, his 
spouse, or his dependent. Thus, a capital expenditure which is related 
only to the sick person and is not related to permanent improvement or 
betterment of property, if it otherwise qualifies as an expenditure for 
medical care, shall be deductible; for example, an expenditure for eye 
glasses, a seeing eye dog, artificial teeth and limbs, a wheel chair, 
crutches, an inclinator or an air conditioner which is detachable from 
the property and purchased only for the use of a sick person, etc. 
Moreover, a capital expenditure for permanent improvement or betterment 
of property which would not ordinarily be for the purpose of medical 
care (within the meaning of this paragraph) may, nevertheless, qualify 
as a medical expense to the extent that the expenditure exceeds the 
increase in the value of the related property, if the particular 
expenditure is related directly to medical care. Such a situation could 
arise, for example, where a taxpayer is advised by a physician to 
install an elevator in his residence so that the taxpayer's wife who is 
afflicted with heart disease will not be required to climb stairs. If 
the cost of installing the elevator is $1,000 and the increase in the 
value of the residence is determined to be only $700, the difference of 
$300, which is the amount in excess of the value enhancement, is 
deductible as a medical expense. If, however, by reason of this 
expenditure, it is determined that the value of the residence has not 
been increased, the entire cost of installing the elevator would qualify 
as a medical expense. Expenditures made for the operation or maintenance 
of a capital asset are likewise deductible medical expenses if they have 
as their primary purpose the medical care (as defined in subdivisions 
(i) and (ii) of this subparagraph) of the taxpayer, his spouse, or his 
dependent. Normally, if a capital expenditure qualifies as a medical 
expense, expenditures for the operation or maintenance of the capital 
asset would also qualify provided that the medical reason for the 
capital expenditure still exists. The entire amount of such operation 
and maintenance expenditures qualifies, even if none or only a portion 
of the original cost of the capital asset itself qualified.
    (iv) Expenses paid for transportation primarily for and essential to 
the rendition of the medical care are expenses

[[Page 452]]

paid for medical care. However, an amount allowable as a deduction for 
``transportation primarily for and essential to medical care'' shall not 
include the cost of any meals and lodging while away from home receiving 
medical treatment. For example, if a doctor prescribes that a taxpayer 
go to a warm climate in order to alleviate a specific chronic ailment, 
the cost of meals and lodging while there would not be deductible. On 
the other hand, if the travel is undertaken merely for the general 
improvement of a taxpayer's health, neither the cost of transportation 
nor the cost of meals and lodging would be deductible. If a doctor 
prescribes an operation or other medical care, and the taxpayer chooses 
for purely personal considerations to travel to another locality (such 
as a resort area) for the operation or the other medical care, neither 
the cost of transportation nor the cost of meals and lodging (except 
where paid as part of a hospital bill) is deductible.
    (v) The cost of in-patient hospital care (including the cost of 
meals and lodging therein) is an expenditure for medical care. The 
extent to which expenses for care in an institution other than a 
hospital shall constitute medical care is primarily a question of fact 
which depends upon the condition of the individual and the nature of the 
services he receives (rather than the nature of the institution). A 
private establishment which is regularly engaged in providing the types 
of care or services outlined in this subdivision shall be considered an 
institution for purposes of the rules provided herein. In general, the 
following rules will be applied:
    (a) Where an individual is in an institution because his condition 
is such that the availability of medical care (as defined in 
subdivisions (i) and (ii) of this subparagraph) in such institution is a 
principal reason for his presence there, and meals and lodging are 
furnished as a necessary incident to such care, the entire cost of 
medical care and meals and lodging at the institution, which are 
furnished while the individual requires continual medical care, shall 
constitute an expense for medical care. For example, medical care 
includes the entire cost of institutional care for a person who is 
mentally ill and unsafe when left alone. While ordinary education is not 
medical care, the cost of medical care includes the cost of attending a 
special school for a mentally or physically handicapped individual, if 
his condition is such that the resources of the institution for 
alleviating such mental or physical handicap are a principal reason for 
his presence there. In such a case, the cost of attending such a special 
school will include the cost of meals and lodging, if supplied, and the 
cost of ordinary education furnished which is incidental to the special 
services furnished by the school. Thus, the cost of medical care 
includes the cost of attending a special school designed to compensate 
for or overcome a physical handicap, in order to qualify the individual 
for future normal education or for normal living, such as a school for 
the teaching of braille or lip reading. Similarly, the cost of care and 
supervision, or of treatment and training, of a mentally retarded or 
physically handicapped individual at an institution is within the 
meaning of the term medical care.
    (b) Where an individual is in an institution, and his condition is 
such that the availability of medical care in such institution is not a 
principal reason for his presence there, only that part of the cost of 
care in the institution as is attributable to medical care (as defined 
in subdivisions (i) and (ii) of this subparagraph) shall be considered 
as a cost of medical care; meals and lodging at the institution in such 
a case are not considered a cost of medical care for purposes of this 
section. For example, an individual is in a home for the aged for 
personal or family considerations and not because he requires medical or 
nursing attention. In such case, medical care consists only of that part 
of the cost for care in the home which is attributable to medical care 
or nursing attention furnished to him; his meals and lodging at the home 
are not considered a cost of medical care.
    (c) It is immaterial for purposes of this subdivision whether the 
medical care is furnished in a Federal or State institution or in a 
private institution.

[[Page 453]]

    (vi) See section 262 and the regulations thereunder for disallowance 
of deduction for personal living, and family expenses not falling within 
the definition of medical care.
    (2) Medicine and drugs. The term medicine and drugs shall include 
only items which are legally procured and which are generally accepted 
as falling within the category of medicine and drugs (whether or not 
requiring a prescription). Such term shall not include toiletries or 
similar preparations (such as toothpaste, shaving lotion, shaving cream, 
etc.) nor shall it include cosmetics (such as face creams, deodorants, 
hand lotions, etc., or any similar preparation used for ordinary 
cosmetic purposes) or sundry items. Amounts expended for items which, 
under this subparagraph, are excluded from the term medicine and drugs 
shall not constitute amounts expended for ``medical care''.
    (3) Status as spouse or dependent. In the case of medical expenses 
for the care of a person who is the taxpayer's spouse or dependent, the 
deduction under section 213 is allowable if the status of such person as 
``spouse'' or ``dependent'' of the taxpayer exists either at the time 
the medical services were rendered or at the time the expenses were 
paid. In determining whether such status as ``spouse'' exists, a 
taxpayer who is legally separated from his spouse under a decree of 
separate maintenance is not considered as married. Thus, payments made 
in June 1956 by A, for medical services rendered in 1955 to B, his wife, 
may be deducted by A for 1956 even though, before the payments were 
made, B may have died or in 1956 secured a divorce. Payments made in 
July 1956 by C, for medical services rendered to D in 1955 may be 
deducted by C for 1956 even though C and D were not married until June 
1956.
    (4) Medical insurance. (i)(a) For taxable years beginning after 
December 31, 1966, expenditures for insurance shall constitute expenses 
paid for medical care only to the extent that such amounts are paid for 
insurance covering expenses of medical care referred to in subparagraph 
(1) of this paragraph. In the case of an insurance contract under which 
amounts are payable for other than medical care (as, for example, a 
policy providing an indemnity for loss of income or for loss of life, 
limb, or sight):
    (1) No amount shall be treated as paid for insurance covering 
expenses of medical care referred to in subparagraph (1) of this 
paragraph unless the charge for such insurance is either separately 
stated in the contract or furnished to the policyholder by the insurer 
in a separate statement,
    (2) The amount taken into account as the amount paid for such 
medical insurance shall not exceed such charge, and
    (3) No amount shall be treated as paid for such medical insurance if 
the amount specified in the contract (or furnished to the policyholder 
by the insurer in a separate statement) as the charge for such insurance 
is unreasonably large in relation to the total charges under the 
contract.

For purposes of the preceding sentence, amounts will be considered 
payable for other than medical care under the contract if the contract 
provides for the waiver of premiums upon the occurrence of an event. In 
determining whether a separately stated charge for insurance covering 
expenses of medical care is unreasonably large in relation to the total 
premium, the relationship of the coverages under the contract together 
with all of the facts and circumstances shall be considered. In 
determining whether a contract constitutes an ``insurance'' contract it 
is irrelevant whether the benefits are payable in cash or in services. 
For example, amounts paid for hospitalization insurance, for membership 
in an association furnishing cooperative or so-called free-choice 
medical service, or for group hospitalization and clinical care are 
expenses paid for medical care. Premiums paid under Part B, title XVIII 
of the Social Security Act (42 U.S.C. 1395j-1395w), relating to 
supplementary medical insurance benefits for the aged, are amounts paid 
for insurance covering expenses of medical care. Taxes imposed by any 
governmental unit do not, however, constitute amounts paid for such 
medical insurance.
    (b) For taxable years beginning after December 31, 1966, subject to 
the rules of (a) of this subdivision, premiums

[[Page 454]]

paid during a taxable year by a taxpayer under the age of 65 for 
insurance covering expenses of medical care for the taxpayer, his 
spouse, or a dependent after the taxpayer attains the age of 65 are to 
be treated as expenses paid during the taxable year for insurance 
covering expenses of medical care if the premiums for such insurance are 
payable (on a level payment basis) under the contract:
    (1) For a period of 10 years or more, or
    (2) Until the year in which the taxpayer attains the age of 65 (but 
in no case for a period of less than 5 years).

For purposes of this subdivision (b), premiums will be considered 
payable on a level payment basis if the total premium under the contract 
is payable in equal annual or more frequent installments. Thus, a total 
premium of $10,000 payable over a period of 10 years at $1,000 a year 
shall be considered payable on a level payment basis.
    (ii) For taxable years beginning before January 1, 1967, expenses 
paid for medical care shall include amounts paid for accident or health 
insurance. In determining whether a contract constitutes an 
``insurance'' contract it is irrelevant whether the benefits are payable 
in cash or in services. For example, amounts paid for hospitalization 
insurance, for membership in an association furnishing cooperative or 
so-called free-choice medical service, or for group hospitalization and 
clinical care are expenses paid for medical care.
    (f) Exclusion of amounts allowed for care of certain dependents. 
Amounts taken into account under section 44A in computing a credit for 
the care of certain dependents shall not be treated as expenses paid for 
medical care.
    (g) Reimbursement for expenses paid in prior years. (1) Where 
reimbursement, from insurance or otherwise, for medical expenses is 
received in a taxable year subsequent to a year in which a deduction was 
claimed on account of such expenses, the reimbursement must be included 
in gross income in such subsequent year to the extent attributable to 
(and not in excess of) deductions allowed under section 213 for any 
prior taxable year. See section 104, relating to compensation for 
injuries or sickness, and section 105(b), relating to amounts expended 
for medical care, and the regulations thereunder, with regard to amounts 
in excess of or not attributable to deductions allowed.
    (2) If no medical expense deduction was taken in an earlier year, 
for example, if the standard deduction under section 141 was taken for 
the earlier year, the reimbursement received in the taxable year for the 
medical expense of the earlier year is not includible in gross income.
    (3) In order to allow the same aggregate medical expense deductions 
as if the reimbursement received in a subsequent year or years had been 
received in the year in which the payments for medical care were made, 
the following rules shall be followed:
    (i) If the amount of the reimbursement is equal to or less than the 
amount which was deducted in a prior year, the entire amount of the 
reimbursement shall be considered attributable to the deduction taken in 
such prior year (and hence includible in gross income); or
    (ii) If the amount of the reimbursement received in such subsequent 
year or years is greater than the amount which was deducted for the 
prior year, that portion of the reimbursement received which is equal in 
amount to the deduction taken in the prior year shall be considered as 
attributable to such deduction (and hence includible in gross income); 
but
    (iii) If the deduction for the prior year would have been greater 
but for the limitations on the maximum amount of such deduction provided 
by section 213 (c), then the amount of the reimbursement attributable to 
such deduction (and hence includible in gross income) shall be the 
amount of the reimbursement received in a subsequent year or years 
reduced by the amount disallowed as a deduction because of the maximum 
limitation, but not in excess of the deduction allowed for the previous 
year.
    (4) The application of subparagraphs (1), (2), and (3) of this 
paragraph may be illustrated by the following examples. Examples 1 and 2 
reflect the maximum

[[Page 455]]

limitation on the medical expense deduction applicable to taxable years 
beginning after December 31, 1961. Examples 3 and 4 reflect the maximum 
limitation on the medical expense deduction applicable to taxable years 
beginning prior to January 1, 1962. For explanation of such maximum 
medical expense limitations, see paragraph (c) of this section.

    Example 1. Taxpayer A, a single individual (not the head of a 
household and not a surviving spouse) with one dependent, is entitled to 
two exemptions under the provisions of section 151. He had an adjusted 
gross income of $35,000 for the calendar year 1962. During 1962 he paid 
$16,000 for medical care. A received no reimbursement for such medical 
expenses in 1962, but in 1963 he received $6,000 upon an insurance 
policy covering the medical expenses which he paid in 1962. A was 
allowed a deduction of $10,000 (the maximum) from his adjusted gross 
income for 1962. The amount which A must include in his gross income for 
1963 is $1,050, and the amount to be excluded from gross income for 1963 
is $4,950, computed as follows:

Payments for medical care in 1962 (not reimbursed in 1962)...    $16,000
Less: 3 percent of $35,000 (adjusted gross income)...........      1,050
                                                              ----------
    Excess of medical expenses not reimbursed in 1962 over 3      10,000
     percent of adjusted gross income........................
Allowable deduction for 1962.................................     10,000
                                                              ----------
Amount by which the medical deductions for 1962 would have         4,950
 been greater than $10,000 but for the limitations on the
 maximum amount provided by section 213......................
                                                              ==========
Reimbursement received in 1963...............................     $6,000
Less: Amount by which the medical deduction for 1962 would         4,950
 have been greater than $10,000 but for the limitation on the
 maximum amount provided by section 213......................
                                                              ----------
Reimbursement received in 1963 reduced by the amount by which      1,050
 the medical deduction for 1962 would have been greater than
 $10,000 but for the limitations on the maximum amount
 provided by section 213.....................................
Amount attributed to medical deduction taken for 1962........      1,050
Amount to be included in gross income for 1963...............      1,050
Amount to be excluded from gross income for 1963 ($6,000 less      4,950
 $1,050).....................................................
 

    Example 2. Assuming that A, in example (1), received $15,000 in 1963 
as reimbursement for the medical expenses which he paid in 1962, the 
amount which A must include in his gross income for 1963 is $10,000, and 
the amount to be excluded from gross income for 1963 is $5,000, computed 
as follows:

Reimbursement received in 1963...............................    $15,000
Less: Amount by which the medical deduction for 1962 would         4,950
 have been greater than $10,000 but for the limitations on
 the maximum amount provided by section 213..................
                                                              ----------
    Reimbursement received in 1963 reduced by the amount by       10,050
     which the medical deduction for 1962 would have been
     greater than $10,000 but for the limitations on the
     maximum amount provided by section 213..................
Deduction allowable for 1962.................................     10,000
Amount of reimbursement received in 1963 to be included in        10,000
 gross income for 1963 as attributable to deduction allowable
 for 1962....................................................
Amount to be excluded from gross income for 1963 ($15,000          5,000
 less $10,000)...............................................
 

    Example 3. Taxpayer A, a single individual (not the head of a 
household and not a surviving spouse) with one dependent, is entitled to 
two exemptions under the provisions of section 151. He had an adjusted 
gross income of $35,000 for the calendar year 1956. During 1956 he paid 
$9,000 for medical care. A received no reimbursement for such medical 
expenses in 1956, but in 1957 he received $6,000 upon an insurance 
policy covering the medical expenses which he paid in 1956. A was 
allowed a deduction of $5,000 (the maximum) from his adjusted gross 
income for 1956. The amount which A must include in his gross income for 
1957 is $3,050 and the amount to be excluded from gross income for 1957 
is $2,950, computed as follows:

Payments for medical care in 1956 (not reimbursed in 1956)...     $9,000
Less: 3 percent of $35,000 (adjusted gross income)...........      1,050
                                                              ----------
    Excess of medical expenses not reimbursed in 1956 over 3       7,950
     percent of adjusted gross income........................
Allowable deduction for 1956.................................      5,000
                                                              ----------
    Amount by which the medical deductions for 1956 would          2,950
     have been greater than $5,000 but for the limitations on
     the maximum amount provided by section 213..............
                                                              ==========
Reimbursement received in 1957...............................      6,000
Less: Amount by which the medical deduction for 1956 would         2,950
 have been greater than $5,000 but for the limitations on the
 maximum amount provided by section 213......................
                                                              ----------
    Reimbursement received in 1957 reduced by the amount by        8,050
     which the medical deduction for 1956 would have been
     greater than $5,000 but for the limitations on the
     maximum amount provided by section 213..................
    Amount attributed to medical deduction taken for 1956....      3,050
    Amount to be included in gross income for 1957...........      3,050
    Amount to be excluded from gross income for 1957 ($6,000       2,950
     less $3,050)............................................
 

    Example 4. Assuming that A, in example (3), received $8,000 in 1957 
as reimbursement for the medical expenses which he paid in 1956, the 
amount which A must include in his

[[Page 456]]

gross income for 1957 is $5,000 and the amount to be excluded from gross 
income for 1957 is $3,000 computed as follows:

Reimbursement received in 1957...............................     $8,000
Less: Amount by which the medical deduction for 1956 would         2,950
 have been greater than $5,000 but for the limitations on the
 maximum amount provided by section 213......................
                                                              ----------
    Reimbursement received in 1957 reduced by the amount by        5,050
     which the medical deduction for 1956 would have been
     greater than $5,000 but for the limitations on the
     maximum amount provided by section 213..................
Deduction allowable for 1956.................................      5,000
Amount of reimbursement received in 1957 to be included in         5,000
 gross income for 1957 as attributable to deduction allowable
 for 1956....................................................
Amount to be excluded from gross income for 1957 ($8,000 less      3,000
 $5,000).....................................................
 

    (h) Substantiation of deductions. In connection with claims for 
deductions under section 213, the taxpayer shall furnish the name and 
address of each person to whom payment for medical expenses was made and 
the amount and date of the payment thereof in each case. If payment was 
made in kind, such fact shall be so reflected. Claims for deductions 
must be substantiated, when requested by the district director, by a 
statement or itemized invoice from the individual or entity to which 
payment for medical expenses was made showing the nature of the service 
rendered, and to or for whom rendered; the nature of any other item of 
expense and for whom incurred and for what specific purpose, the amount 
paid therefor and the date of the payment thereof; and by such other 
information as the district director may deem necessary.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960]

    Editorial Note: For Federal Register citations affecting Sec. 
1.213-1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 1.215-1  Periodic alimony, etc., payments.

    (a) A deduction is allowable under section 215 with respect to 
periodic payments in the nature of, or in lieu of, alimony or an 
allowance for support actually paid by the taxpayer during his taxable 
year and required to be included in the income of the payee wife or 
former wife, as the case may be, under section 71. As to the amounts 
required to be included in the income of such wife or former wife, see 
section 71 and the regulations thereunder. For definition of husband and 
wife see section 7701(a) (17).
    (b) The deduction under section 215 is allowed only to the obligor 
spouse. It is not allowed to an estate, trust, corporation, or any other 
person who may pay the alimony obligation of such obligor spouse. The 
obligor spouse, however, is not allowed a deduction for any periodic 
payment includible under section 71 in the income of the wife or former 
wife, which payment is attributable to property transferred in discharge 
of his obligation and which, under section 71(d) or section 682, is not 
includible in his gross income.
    (c) The following examples, in which both H and W file their income 
tax returns on the basis of a calendar year, illustrate cases in which a 
deduction is or is not allowed under section 215:

    Example 1. Pursuant to the terms of a decree of divorce, H, in 1956, 
transferred securities valued at $100,000 in trust for the benefit of W, 
which fully discharged all his obligations to W. The periodic payments 
made by the trust to W are required to be included in W's income under 
section 71. Such payments are stated in section 71(d) not to be 
includible in H's income and, therefore, under section 215 are not 
deductible from his income.
    Example 2. A decree of divorce obtained by W from H incorporated a 
previous agreement of H to establish a trust, the trustees of which were 
instructed to pay W $5,000 a year for the remainder of her life. The 
court retained jurisdiction to order H to provide further payments if 
necessary for the support of W. In 1956 the trustee paid to W $4,000 
from the income of the trust and $1,000 from the corpus of the trust. 
Under the provisions of sections 71 and 682(b), W would include $5,000 
in her income for 1956. H would not include any part of the $5,000 in 
his income nor take a deduction therefor. If H had paid the $1,000 to W 
pursuant to court order rather than allowing the trustees to pay it out 
of corpus, he would have been entitled to a deduction of $1,000 under 
the provisions of section 215.

    (d) For other examples, see sections 71 and 682 and the regulations 
thereunder.



Sec. 1.215-1T  Alimony, etc., payments (temporary).

    Q-1 What information is required by the Internal Revenue Service 
when an

[[Page 457]]

alimony or separate maintenance payment is claimed as a deduction by a 
payor?
    A-1 The payor spouse must include on his/her first filed return of 
tax (Form 1040) for the taxable year in which the payment is made the 
payee's social security number, which the payee is required to furnish 
to the payor. For penalties applicable to a payor spouse who fails to 
include such information on his/her return of tax or to a payee spouse 
who fails to furnish his/her social security number to the payor spouse, 
see section 6676.

(98 Stat. 798, 26 U.S.C. 1041(d)(4); 98 Stat. 802, 26 U.S.C. 
152(e)(2)(A); 98 Stat. 800, 26 U.S.C. 215(c); 68A Stat. 917, 26 U.S.C. 
7805)

[T.D. 7973, 49 FR 34458, Aug. 31, 1984]



Sec. 1.216-1  Amounts representing taxes and interest paid to 
cooperative housing corporation.

    (a) General rule. A tenant-stockholder of a cooperative housing 
corporation may deduct from his gross income amounts paid or accrued 
within his taxable year to a cooperative housing corporation 
representing his proportionate share of:
    (1) The real estate taxes allowable as a deduction to the 
corporation under section 164 which are paid or incurred by the 
corporation before the close of the taxable year of the tenant-
stockholder on the houses (or apartment building) and the land on which 
the houses (or apartment building) are situated, or
    (2) The interest allowable as a deduction to the corporation under 
section 163 which is paid or incurred by the corporation before the 
close of the taxable year of the tenant-stockholder on its indebtedness 
contracted in the acquisition, construction, alteration, rehabilitation, 
or maintenance of the houses (or apartment building), or in the 
acquisition of the land on which the houses (or apartment building) are 
situated.
    (b) Limitation. The deduction allowable under section 216 shall not 
exceed the amount of the tenant-stockholder's proportionate share of the 
taxes and interest described therein. If a tenant-stockholder pays or 
incurs only a part of his proportionate share of such taxes and interest 
to the corporation, only the amount so paid or incurred which represents 
taxes and interest is allowable as a deduction under section 216. If a 
tenant-stockholder pays an amount, or incurs an obligation for an 
amount, to the corporation on account of such taxes and interest and 
other items, such as maintenance, overhead expenses, and reduction of 
mortgage indebtedness, the amount representing such taxes and interest 
is an amount which bears the same ratio to the total amount of the 
tenant-stockholder's payment or liability, as the case may be, as the 
total amount of the tenant-stockholder's proportionate share of such 
taxes and interest bears to the total amount of the tenant-stockholder's 
proportionate share of the taxes, interest, and other items on account 
of which such payment is made or liability incurred. No deduction is 
allowable under section 216 for that part of amounts representing the 
taxes or interest described in that section which are deductible by a 
tenant-stockholder under any other provision of the Code.
    (c) Disallowance of deduction for certain payments to the 
corporation. For taxable years beginning after December 31, 1986, no 
deduction shall be allowed to a stockholder during any taxable year for 
any amount paid or accrued to a cooperative housing corporation (in 
excess of the stockholder's proportionate share of the items described 
in paragraphs (a) (1) and (2) of this section) which is allocable to 
amounts that are paid or incurred at any time by the cooperative housing 
corporation and which is chargeable to the corporation's capital 
account. Examples of expenditures chargeable to the corporation's 
capital account include the cost of paving a community parking lot, the 
purchase of a new boiler or roof, and the payment of the principal of 
the corporation's building mortgage. The adjusted basis of the 
stockholder's stock in such corporation shall be increased by the amount 
of such disallowance. This paragraph may be illustrated by the following 
example:

    Example. The X corporation is a cooperative housing corporation 
within the meaning of section 216. In 1988 X uses $275,000 that it 
received from its shareholders in such year to purchase and place in 
service a new boiler.

[[Page 458]]

The $275,000 will be chargeable to the corporation's capital account. A 
owns 10% of the shares of X and uses in a trade or business the dwelling 
unit appurtenant to A's shares and was responsible for paying 10% of the 
cost of the boiler. A is thus responsible for $27,500 of the cost of the 
boiler, which amount A will not be able to deduct currently. A will, 
however, add the $27,500 to A's basis for A's shares in X.

    (d) Tenant-stockholder's proportionate share--(1) General rule. The 
tenant-stockholder's proportionate share is that proportion which the 
stock of the cooperative housing corporation owned by the tenant-
stockholder is of the total outstanding stock of the corporation, 
including any stock held by the corporation. For taxable years beginning 
after December 31, 1969, if the cooperative housing corporation had 
issued stock to a governmental unit, as defined in paragraph (g) of this 
section, then in determining the total outstanding stock of the 
corporation, the governmental unit shall be deemed to hold the number of 
shares that it would have held, with respect to the apartments or houses 
it is entitled to occupy, if it had been a tenant-stockholder. That is, 
the number of shares the governmental unit is deemed to hold is 
determined in the same manner as if stock had been issued to it as a 
tenant-stockholder. For example, if a cooperative housing corporation 
requires each tenant-stockholder to buy one share of stock for each one 
thousand dollars of value of the apartment he is entitled to occupy, a 
governmental unit shall be deemed to hold one share of stock for each 
one thousand dollars of value of the apartments it is entitled to 
occupy, regardless of the number of shares formally issued to it.
    (2) Special rule--(i) In general. For taxable years beginning after 
December 31, 1986, if a cooperative housing corporation allocates to 
each tenant-stockholder a portion of the real estate taxes or interest 
(or both) that reasonably reflects the cost to the corporation of the 
taxes or interest attributable to each tenant-stockholder's dwelling 
unit (and the unit's share of the common areas), the cooperative housing 
corporation may elect to treat the amounts so allocated as the tenant-
stockholders' proportionate shares.
    (ii) Time and manner of making election. The election referred to in 
paragraph (d)(2)(i) of this section is effective only if, by January 31 
of the year following the first calendar year that includes any period 
to which the election applies, the cooperative housing corporation 
furnishes to each person that is a tenant-stockholder during that period 
a written statement showing the amount of real estate taxes or interest 
(or both) allocated to the tenant-stockholder with respect to the 
tenant-stockholder's dwelling unit or units and share of common areas 
for that period. The election must be made by attaching a statement to 
the corporation's timely filed tax return (taking extensions into 
account) for the first taxable year for which the election is to be 
effective. The statement must contain the name, address, and taxpayer 
identification number of the cooperative housing corporation, identify 
the election as an election under section 216(b)(3)(B)(ii) of the Code, 
indicate whether the election is being made with respect to the 
allocation of real estate taxes or interest (or both), and include a 
description of the method of allocation being elected. The election 
applies for the taxable year and succeeding taxable years. It is 
revocable only with the consent of the Commissioner and will be binding 
on all tenant-stockholders.
    (iii) Reasonable allocation. It is reasonable to allocate to each 
tenant-stockholder a portion of the real estate taxes or interest (or 
both) that bears the same ratio to the cooperative housing corporation's 
total interest or real estate taxes as the fair market value of each 
dwelling unit (including the unit's share of the common areas) bears to 
the fair market value of all the dwelling units with respect to which 
stock is outstanding (including stock held by the corporation) at the 
time of allocation. If real estate taxes are separately assessed on each 
dwelling unit by the relevant taxing authority, an allocation of real 
estates taxes to tenant-stockholders based on separate assessments is a 
reasonable allocation. If one or more of the tenant-stockholders prepays 
any portion of the principal of the indebtedness and gives rise to 
interest,

[[Page 459]]

an allocation of interest to those tenant-stockholders will be a 
reasonable allocation of interest if the allocation is reduced to 
reflect the reduction in the debt service attributable to the 
prepayment. In addition, similar kinds of allocations may also be 
reasonable, depending on the facts and circumstances.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. The X Corporation is a cooperative housing corporation 
within the meaning of section 216. In 1970, it acquires a building 
containing 40 category A apartments and 25 category B apartments, for 
$750,000. The value of each category A apartment is $12,500, and of each 
category B apartment is $10,000. X values each share of stock issued 
with respect to the category A apartments at $125, and sells 4,000 
shares of its stock, along with the right to occupy the 40 category A 
apartments, to 40 tenant-stockholders for $500,000. X also sells 1,000 
shares of nonvoting stock to G, a State housing authority qualifying as 
a governmental unit under paragraph (f) of this section, for $250,000. 
The purchase of this stock gives G the right to occupy all the category 
B apartments. G is deemed to hold the number of shares that it would 
have held if it had been a tenant-stockholder. G is therefore deemed to 
own 2,000 shares of stock of X. All stockholders are required to pay a 
specified part of the corporation's expenses. F, one of the tenant-
stockholders, purchased 100 shares of the category A stock for $12,500 
in order to obtain a right to occupy a category A apartment. Since there 
are 6,000 total shares deemed outstanding, F's proportionate share is 1/
60 (100/6,000).
    Example 2. The X Corporation is a cooperative housing corporation 
within the meaning of section 216. In 1960 it acquired a housing 
development containing 100 detached houses, each house having the same 
value. X issued one share of stock to each of 100 tenant-stockholders, 
each share carrying the right to occupy one of the houses. In 1971 X 
redeemed 40 of its 100 shares. It then sold to G, a municipal housing 
authority qualifying as a governmental unit under paragraph (f) of this 
section, 1,000 shares of preferred stock and the right to occupy the 40 
houses with respect to which the stock had been redeemed. X sold the 
preferred stock to G for an amount equal to the cost of redeeming the 40 
shares. G also agreed to pay 40 percent of X's expenses. For purposes of 
determining the total stock which X has outstanding, G is deemed to hold 
40 shares of X.
    Example 3. The X Corporation is a cooperative housing corporation 
within the meaning of section 216. In 1987, it acquires for $1,000,000 a 
building containing 10 category A apartments, 10 category B apartments, 
and 10 category C apartments. The value of each category A apartment is 
$20,000, of each category B apartment is $30,000 and of each category C 
apartment is $50,000. X issues 1 share of stock to each of the 30 
tenant-stockholders, each share carrying the right to occupy one of the 
apartments. X allocates the real estate taxes and interest to the 
tenant-stockholders on the basis of the fair market value of their 
respective apartments. Since the total fair market value of all of the 
apartments is $1,000,000, the allocation of taxes and interest to each 
tenant-stockholder that has the right to occupy a category A apartment 
is 2/100 ($20,000/$1,000,000). Similarly, the allocation of taxes and 
interest to each tenant-stockholder who has a right to occupy a category 
B apartment is 3/100 ($30,000/$1,000,000) and of a category C apartment 
is 5/100 ($50,000/$1,000,000). X may elect in accordance with the rules 
described in paragraph (d)(2) of this section to treat the amounts so 
allocated as each tenant-stockholder's proportionate share of real 
estate taxes and interest.
    Example 4. The Y Corporation is a cooperative housing corporation 
within the meaning of section 216. In 1987, it acquires a housing 
development containing 5 detached houses for $1,500,000, incurring an 
indebtedness of $1,000,000 for the purchase of the property. Each house 
is valued at $300,000, although the shares appurtenant to those houses 
have been sold to tenant-stockholders for $100,000. Y issues one share 
of stock to each of the five tenant-stockholders, each share carrying 
the right to occupy one of the houses. A, a tenant-stockholder, prepays 
all of the corporation's indebtedness allocable to A's house. The 
periodic charges payable to Y by A are reduced commensurately with the 
reduction in Y's debt service. Because no part of the indebtedness 
remains outstanding with respect to A's house, A's share of the interest 
expense is $0. The other four tenant-stockholders do not prepay their 
share of the indebtedness. Accordingly, \1/4\ of the interest is 
allocated to each of the tenant-stockholders other than A. Y may elect 
in accordance with the rules described in paragraph (d)(2) of this 
section to treat the amounts so allocated as each tenant-stockholder's 
proportionate share of interest.
    Example 5. The Z Corporation is a cooperative housing corporation 
within the meaning of section 216. In 1987, it acquires a building 
containing 10 apartments. One of the apartments is occupied by a senior 
citizen. Under local law, a senior citizen who owns and occupies a 
residential apartment is entitled to a $500 reduction in local property 
taxes assessed upon the apartment. As a result, Z corporation is 
eligible under local law for a reduction in local property taxes 
assessed

[[Page 460]]

upon the building. Z's real estate tax assessment for the year would 
have been $10,000, however, with the senior citizen reduction, the 
assessment is $9,500. The proprietary lease provides for a reduced 
maintenance fee to the senior citizen tenant-stockholder in accordance 
with the real estate tax reduction. Accordingly, each apartment owner is 
assessed $1,000 for local real estate taxes, except the senior citizen 
tenant-stockholder, who is assessed $500. Z may elect in accordance with 
the rules described in paragraph (d)(2) of this section to treat the 
amounts so allocated as each tenant-stockholder's proportionate share of 
taxes.

    (e) Cooperative housing corporation. In order to qualify as a 
``cooperative housing corporation'' under section 216, the requirements 
of subparagraphs (1) through (4) of this paragraph must be met.
    (1) One class of stock. The corporation shall have one and only one 
class of stock outstanding. However, a special classification of 
preferred stock, in a nominal amount not exceeding $100, issued to a 
Federal housing agency or other governmental agency solely for the 
purpose of creating a security device on the mortgage indebtedness of 
the corporation, shall be disregarded for purposes of determining 
whether the corporation has one class of stock outstanding and such 
agency will not be considered a stockholder for purposes of section 216 
and this section. Furthermore, for taxable years beginning after 
December 31, 1969, a special class of stock issued to a governmental 
unit, as defined in paragraph (g) of this section, shall also be 
disregarded for purposes of this paragraph in determining whether the 
corporation has one class of stock outstanding.
    (2) Right of occupancy. Each stockholder of the corporation, whether 
or not the stockholder qualifies as a tenant-stockholder under section 
216(b)(2) and paragraph (f) of this section, must be entitled to occupy 
for dwelling purposes an apartment in a building or a unit in a housing 
development owned or leased by such corporation. The stockholder is not 
required to occupy the premises. The right as against the corporation to 
occupy the premises is sufficient. Such right must be conferred on each 
stockholder solely by reasons of his or her ownership of stock in the 
corporation. That is, the stock must entitle the owner thereof either to 
occupy the premises or to a lease of the premises. The fact that the 
right to continue to occupy the premises is dependent upon the payment 
of charges to the corporation in the nature of rentals or assessments is 
immaterial. For taxable years beginning after December 31, 1986, the 
fact that, by agreement with the cooperative housing corporation, a 
person or his nominee may not occupy the house or apartment without the 
prior approval of such corporation will not be taken into account for 
purposes of this paragraph in the following cases.
    (i) In any case where a person acquires stock of the cooperative 
housing corporation by operation of law, by inheritance, or by 
foreclosure (or by instrument in lieu of foreclosure),
    (ii) In any case where a person other than an individual acquires 
stock in the cooperative housing corporation, and
    (iii) In any case where the person from whom the corporation has 
acquired the apartments or houses (or leaseholds therein) acquires any 
stock of the cooperative housing corporation from the corporation not 
later than one year after the date on which the apartments or houses (or 
leaseholds therein) are transferred to the corporation by such person. 
For purposes of the preceding sentence, paragraphs (e)(2) (i) and (ii) 
of this section will not apply to acquisitions of stock by foreclosure 
by the person from whom the corporation has acquired the apartments or 
houses (or leaseholds therein).
    (3) Distributions. None of the stockholders of the corporation may 
be entitled, either conditionally or unconditionally, except upon a 
complete or partial liquidation of the corporation, to receive any 
distribution other than out of earnings and profits of the corporation.
    (4) Gross income. Eighty percent or more of the gross income of the 
corporation for the taxable year of the corporation in which the taxes 
and interest are paid or incurred must be derived from the tenant-
stockholders. For purposes of the 80-percent test, in taxable years 
beginning after December 31, 1969, gross income attributable

[[Page 461]]

to any house or apartment which a governmental unit is entitled to 
occupy, pursuant to a lease or stock ownership, shall be disregarded.
    (f) Tenant-stockholder. The term tenant-stockholder means a person 
that is a stockholder in a cooperative housing corporation, as defined 
in section 216(b)(1) and paragraph (e) of this section, and whose stock 
is fully paid up in an amount at least equal to an amount shown to the 
satisfaction of the district director as bearing a reasonable 
relationship to the portion of the fair market value, as of the date of 
the original issuance of the stock, of the corporation's equity in the 
building and the land on which it is situated that is attributable to 
the apartment or housing unit which such person is entitled to occupy 
(within the meaning of paragraph (e)(2) of this section). 
Notwithstanding the preceding sentence, for taxable years beginning 
before January 1, 1987, tenant-stockholders include only individuals, 
certain lending institutions, and certain persons from whom the 
cooperative housing corporation has acquired the apartments or houses 
(or leaseholds thereon).
    (g) Governmental unit. For purposes of section 216(b) and this 
section, the term governmental unit means the United States or any of 
its possessions, a State or any political subdivision thereof, or any 
agency or instrumentality of the foregoing empowered to acquire shares 
in a cooperative housing corporation for the purpose of providing 
housing facilities.
    (h) Examples. The application of section 216(a) and (b) and this 
section may be illustrated by the following examples, which refer to 
apartments but which are equally applicable to housing units:

    Example 1. The X Corporation is a cooperative housing corporation 
within the meaning of section 216. In 1970, at a total cost of $200,000, 
it purchased a site and constructed thereon a building with 15 
apartments. The fair market value of the land and building was $200,000 
at the time of completion of the building. The building contains five 
category A apartment units, each of equal value, and 10 category B 
apartment units. The total value of all of the category A apartment 
units is $100,000. The total value of all of the category B apartments 
is also $100,000. Upon completion of the building, the X Corporation 
mortgaged the land and building for $100,000, and sold its total 
authorized capital stock for $100,000. The stock attributable to the 
category A apartments was purchased by five individuals, each of whom 
paid $10,000 for 100 shares, or $100 a share. Each certificate for 100 
shares of such stock provides that the holder thereof is entitled to a 
lease of a particular apartment in the building for a specified term of 
years. The stock attributable to the category B apartments was purchased 
by a governmental unit for $50,000. Since the shares sold to the tenant-
stockholders are valued at $100 per share, the governmental unit is 
deemed to hold a total of 500 shares. The certificate of such stock 
provides that the governmental unit is entitled to a lease of all of the 
category B apartments. All leases provide that the lessee shall pay his 
proportionate part of the corporation's expenses. In 1970 the original 
owner of 100 shares of stock attributable to the category A apartments 
and to the lease to apartment No. 1 made a gift of the stock and lease 
to A, an individual. The taxable year of A and of the X Corporation is 
the calendar year. The corporation computes its taxable income on an 
accrual method, while A computes his taxable income on the cash receipts 
and disbursements method. In 1971, the X Corporation incurred expenses 
aggregating $13,800, including $4,000 for the real estate taxes on the 
land and building, and $5,000 for the interest on the mortgage. In 1972, 
A pays the X Corporation $1,380, representing his proportionate part of 
the expenses incurred by the corporation. The entire gross income of the 
X Corporation for 1971 was derived from the five tenant-stockholders and 
from the governmental unit. A is entitled under section 216 to a 
deduction of $900 in computing his taxable income for 1972. The 
deduction is computed as follows:

Shares of X Corporation owned by A...........................        100
Shares of X Corporation owned by four other tenant-                  400
 stockholders................................................
Shares of X Corporation deemed owned by governmental unit....        500
                                                              ----------
      Total shares of X Corporation outstanding..............      1,000
                                                              ==========
A's proportionate share of the stock of X Corporation (100/         1/10
 1,000)......................................................
Expenses incurred by X Corporation:
  Real estate taxes...............................     $4,000  .........
  Interest........................................      5,000  .........
  Other...........................................      4,800  .........
                                                   -----------
       Total......................................  .........    $13,800
                                                              ----------
Amount paid by A.............................................      1,380
A's proportionate share of real estate taxes and interest           $900
 based on his stock ownership (1/10 of $9,000)...............
A's proportionate share of total corporate expenses based on       1,380
 his stock ownership (1/10 of $13,800).......................
Amount of A's payment representing real estate taxes and            $900
 interest (900/1,380 of $1,380)..............................

[[Page 462]]

 
A's allowable deduction......................................       $900
 


Since the stock which A acquired by gift was fully paid up by his donor 
in an amount equal to the portion of the fair market value, as of the 
date of the original issuance of the stock, of the corporation's equity 
in the land and building which is attributable to apartment No. 1, the 
requirement of section 216 in this regard is satisfied. The fair market 
value at the time of the gift of the corporation's equity attributable 
to the apartment is immaterial.
    Example 2. The facts are the same as in Example 1 except that the 
building constructed by the X Corporation contained, in addition to the 
15 apartments, business space on the ground floor, which the corporation 
rented at $2,400 for the calendar year 1971. The corporation deducted 
the $2,400 from its expenses in determining the amount of the expenses 
to be prorated among its tenant-stockholders. The amount paid by A to 
the corporation in 1972 is $1,140 instead of $1,380. More than 80 
percent of the gross income of the corporation for 1971 was derived from 
tenant-stockholders. A is entitled under section 216 to a deduction of 
$743.48 in computing his taxable income for 1972. The deduction is 
computed as follows:

Expenses incurred by X Corporation............   $13,800.00  ...........
Less: Rent from business space................     2,400.00  ...........
                                               -------------
Expenses to be prorated among tenant-stockholders..........   $11,400.00
                                                            ------------
Amount paid by A...........................................     1,140.00
A's proportionate share of real estate taxes and interest         900.00
 based on his stock ownership (1/10 of $9,000).............
A's proportionate share of total corporate expenses based       1,380.00
 on his stock ownership (1/10 of $13,800)..................
Amount of A's payment representing real estate taxes and          743.48
 interest (900/1380 of $1,140).............................
A's allowable deduction....................................       743.48
 


Since the portion of A's payment allocable to real estate taxes and 
interest is only $743.48, that amount instead of $900 is allowable as a 
deduction in computing A's taxable income for 1972.
    Example 3. The facts are the same as in Example 1 except that the 
amount paid by A to the X Corporation in 1972 is $1,000 instead of 
$1,380. A is entitled under section 216 to a deduction of $652.17 in 
computing his taxable income for 1972. The deduction is computed as 
follows:

Amount paid by A...........................................    $1,000.00
A's proportionate share of real estate taxes and interest         900.00
 based on his stock ownership (1/10 of $9,000).............
A's proportionate share of total corporate expenses based       1,380.00
 on his stock ownership (1/10 of $13,800)..................
Amount of A's payment representing real estate taxes and          652.17
 interest (900/1380 of $1,000).............................
A's allowable deduction....................................       652.17
 


Since the portion of A's payment allocable to real estate taxes and 
interest is only $652.17, that amount instead of $900 is allowable as a 
deduction in computing A's taxable income for 1972.
    Example 4. The facts are the same as in Example 1 except that X 
Corporation leases recreational facilities from Y Corporation for use by 
the tenant-stockholders of X. Under the terms of the lease, X is 
obligated to pay an annual rental of $5,000 plus all real estate taxes 
assessed against the facilities. In 1971 X paid, in addition to the 
$13,800 of expenses enumerated in Example 1, $5,000 rent and $1,000 real 
estate taxes. In 1972 A pays the X Corporation $2,000, no part of which 
is refunded to him in 1972. A is entitled under section 216 to a 
deduction of $900 in computing his taxable income for 1972. The 
deduction is computed as follows:

Expenses to be prorated among tenant-stockholders..........      $19,800
Amount paid by A...........................................        2,000
A's proportionate share of real estate taxes and interest            900
 based on his stock ownership (1/10 of $9,000).............
A's proportionate share of total corporate expenses based          1,980
 on his stock ownership (1/10 of $19,800)..................
Amount of A's payment representing real estate taxes and             900
 interest (900/1,980 of $1,980)............................
A's allowable deduction....................................          900
 


The $1,000 of real estate taxes assessed against the recreational 
facilities constitutes additional rent and hence is not deductible by A 
as taxes under section 216. A's allowable deduction is limited to his 
proportionate share of real estate taxes and interest based on stock 
ownership and cannot be increased by the payment of an amount in excess 
of his proportionate share.

[T.D. 7092, 36 FR 4597, Mar. 10, 1971; 36 FR 4985, Mar. 16, 1971, as 
amended by T.D. 8316, 55 FR 42004, Oct. 17, 1990]



Sec. 1.216-2  Treatment as property subject to depreciation.

    (a) General rule. For taxable years beginning after December 31, 
1961, stock in a cooperative housing corporation (as defined by section 
216(b) (1) and paragraph (c) of Sec. 1.216-1) owned by a tenant-
stockholder (as defined by section 216(b) (2) and paragraph (d) of Sec. 
1.216-1) who uses the proprietary lease or right of tenancy, which was 
conferred on him solely by reason of his ownership of such stock, in a 
trade or business or for the production of income shall be treated as 
property subject to the allowance for depreciation under section 167(a) 
in the manner and to the extent prescribed in this section.

[[Page 463]]

    (b) Determination of allowance for depreciation--(1) In general. 
Subject to the special rules provided in subparagraphs (2) and (3) of 
this paragraph and the limitation provided in paragraph (c) of this 
section, the allowance for depreciation for the taxable year with 
respect to stock of a tenant-stockholder, subject to the extent provided 
in this section to an allowance for depreciation, shall be determined:
    (i) By computing the amount of depreciation (amortization in the 
case of a leasehold) which would be allowable under one of the methods 
of depreciation prescribed in section 167(b) and the regulations 
thereunder (in paragraph (a) of Sec. 1.162-11 and Sec. 1.167(a)-4 in 
the case of a leasehold) in respect of the depreciable (amortizable) 
real property owned by the cooperative housing corporation in which such 
tenant-stockholder has a proprietary lease or right of tenancy,
    (ii) By reducing the amount of depreciation (amortization) so 
computed in the same ratio as the rentable space in such property which 
is not subject to a proprietary lease or right of tenancy by reason of 
stock ownership but which is held for rental purposes bears to the total 
rentable space in such property, and
    (iii) By computing such tenant-stockholder's proportionate share of 
such annual depreciation (amortization), so reduced.

As used in this section, the terms depreciation and depreciable real 
property include amortization and amortizable leasehold of real 
property. As used in this section, the tenant-stockholder's 
proportionate share is that proportion which stock of the cooperative 
housing corporation owned by the tenant-stockholder is of the total 
outstanding stock of the corporation, including any stock held by the 
corporation. In order to determine whether a tenant-stockholder may use 
one of the methods of depreciation prescribed in section 167(b) (2), 
(3), or (4) for purposes of subdivision (i) of this subparagraph, the 
limitations provided in section 167(c) on the use of such methods of 
depreciation shall be applied with respect to the depreciable real 
property owned by the cooperative housing corporation in which the 
tenant-stockholder has a proprietary lease or right of tenancy, rather 
than with respect to the stock in the cooperative housing corporation 
owned by the tenant-stockholder or with respect to the proprietary lease 
or right of tenancy conferred on the tenant-stockholder by reason of his 
ownership of such stock. The allowance for depreciation determined under 
this subparagraph shall be properly adjusted where only a portion of the 
property occupied under a proprietary lease or right of tenancy is used 
in a trade or business or for the production of income.
    (2) Stock acquired subsequent to first offering. Except as provided 
in subparagraph (3), in the case of a tenant-stockholder who purchases 
stock other than as part of the first offering of stock by the 
corporation, the basis of the depreciable real property for purposes of 
the computation required by subparagraph (1)(i) of this paragraph shall 
be the amount obtained by:
    (i) Multiplying the taxpayer's cost per share by the total number of 
outstanding shares of stock of the corporation, including any shares 
held by the corporation,
    (ii) Adding thereto the mortgage indebtedness to which such 
depreciable real property is subject on the date of purchase of such 
stock, and
    (iii) Subtracting from the sum so obtained the portion thereof not 
properly allocable as of the date such stock was purchased to the 
depreciable real property owned by the cooperative housing corporation 
in which such tenant-stockholder has a proprietary lease or right of 
tenancy.

In order to prevent an overstatement or understatement of the basis of 
the depreciable real property for purposes of the computation required 
by subparagraph (1)(i) of this paragraph, appropriate adjustment for 
purposes of the computations described in subdivisions (i) and (ii) of 
this subparagraph shall be made in respect of prepayments and 
delinquencies on account of the corporation's mortgage indebtedness. 
Thus, for purposes of subdivision (i) of this subparagraph, the 
taxpayer's cost per share shall be reduced by an amount determined by 
dividing the

[[Page 464]]

total mortgage indebtedness prepayments in respect of the shares 
purchased by the taxpayer by the number of such shares. For purposes of 
subdivision (ii) of this subparagraph, the mortgage indebtedness shall 
be increased by the sum of all prepayments applied in reduction of the 
mortgage indebtedness and shall be decreased by any amount due under the 
terms of the mortgage and unpaid.
    (3) Conversion subsequent to date of acquisition. In the case of a 
tenant-stockholder whose proprietary lease or right of tenancy is 
converted, in whole or in part, to use in a trade or business or for the 
production of income on a date subsequent to the date on which he 
acquired the stock conferring on him such lease or right of tenancy, the 
basis of the depreciable real property for purposes of the computation 
required by subparagraph (1)(i) of this paragraph shall be the fair 
market value of such depreciable real property on the date of the 
conversion if the fair market value is less than the adjusted basis of 
such property in the hands of the cooperative housing corporation 
provided in section 1011 without taking into account any adjustment for 
depreciation required by section 1016(a)(2). Such fair market value 
shall be deemed to be equal to the adjusted basis of such property, 
taking into account adjustments required by section 1016(a)(2) computed 
as if the corporation had used the straight line method of depreciation, 
in the absence of evidence establishing that the fair market value so 
attributed to the property is unrealistic. In the case of a tenant-
stockholder who purchases stock other than as part of the first offering 
of stock of the corporation, and at a later date converts his 
proprietary lease to use for business or production of income:
    (i) The adjusted basis of the cooperative housing corporation's 
depreciable real property without taking into account any adjustment for 
depreciation shall be the amount determined in accordance with 
subdivisions (i), (ii), and (iii) of subparagraph (2) of this paragraph, 
and
    (ii) The fair market value shall be deemed to be equal to such 
adjusted basis reduced by the amount of depreciation, computed under the 
straight line method, which would have been allowable in respect of 
depreciable real property having a cost or other basis equal to the 
amount representing such adjusted basis in the absence of evidence 
establishing that the fair market value so attributed to the property is 
unrealistic.
    (c) Limitation. If the allowance for depreciation for the taxable 
year determined in accordance with the provisions of paragraph (b) of 
this section exceeds the adjusted basis (provided in section 1011) of 
the stock described in paragraph (a) of this section allocable to the 
tenant-stockholder's proprietary lease or right of tenancy used in a 
trade or business or for the production of income, such excess is not 
allowable as a deduction. For taxable years beginning after December 31, 
1986, such excess, subject to the provisions of this paragraph (c), is 
allowable as a deduction for depreciation in the succeeding taxable 
year. To determine the portion of the adjusted basis of such stock which 
is allocable to such proprietary lease or right of tenancy, the adjusted 
basis is reduced by taking into account the same factors as are taken 
into account under paragraph (b)(1) of this section in determining the 
allowance for depreciation.
    (d) Examples. The provisions of section 216(c) and this section may 
be illustrated by the following examples:

    Example 1. The Y corporation, a cooperative housing corporation 
within the meaning of section 216, in 1961 purchased a site and 
constructed thereon a building with 10 apartments at a total cost of 
$250,000 ($200,000 being allocable to the building and $50,000 being 
allocable to the land). Such building was completed on January 1, 1962, 
and at that time had an estimated useful life of 50 years, with an 
estimated salvage value of $20,000. Each apartment is of equal value. 
Upon completion of the building, Y corporation mortgaged the land and 
building for $150,000 and sold its total authorized capital stock, 
consisting of 1000 shares of common stock, for $100,000. The stock was 
purchased by 10 individuals each of whom paid $10,000 for 100 shares. 
Each certificate for 100 shares provides that the holder thereof is 
entitled to a proprietary lease of a particular apartment in the 
building. Each lease provides that the lessee shall pay his 
proportionate share of the corporation's expenses including an amount on 
account of the curtailment of Y's mortgage indebtedness. B, a calendar 
year taxpayer, is the original owner of 100

[[Page 465]]

shares of stock in Y corporation. On January 1, 1962, B subleases his 
apartment for a term of 5 years. B's stock in Y corporation is treated 
as property subject to the allowance for depreciation under section 
167(a), and B, who uses the straight line method of depreciation for 
purposes of the computation prescribed by paragraph (b)(1)(i) of this 
section, computes the allowance for depreciation for the taxable year 
1962 with respect to such stock as follows:

Y's basis in the building...................................    $200,000
Less: Estimated salvage value...............................     $20,000
                                                             -----------
      Y's basis for depreciation............................    $180,000
                                                             ===========
Annual straight line depreciation on Y's building (1/50 of        $3,600
 $180,000)..................................................
Proportion of outstanding shares of stock of Y corporation          1/10
 (1,000) owned by B (100)...................................
B's proportionate share of annual depreciation (1/10 of             $360
 $3,600)....................................................
Depreciation allowance for 1962 with respect to B's stock           $360
 (if the limitation in paragraph (c) of this section is not
 applicable)................................................
 

    Example 2. The facts are the same as in Example 1 except that the 
building constructed by Y corporation contained, in addition to the 10 
apartments, space on the ground floor for 2 stores which were rented to 
persons who do not have a proprietary lease of such space by reason of 
stock ownership. Y corporation's building has a total area of 16,000 
square feet, the 10 apartments in such building have an area of 10,000 
square feet, and the 2 stores on the ground floor have an area of 2,000 
square feet. Thus, the total rentable space in Y corporation's building 
is 12,000 square feet. B, who uses the straight line method of 
depreciation for purposes of the computation prescribed by paragraph 
(b)(1)(i) of this section, computes the allowance for depreciation for 
the taxable year 1962 with respect to his stock in Y corporation as 
follows:

Y's basis in the building...................................    $200,000
Less: Estimated salvage value...............................      20,000
                                                             -----------
    Y's basis for depreciation..............................     180,000
                                                             ===========
Annual straight line depreciation on Y's building (1/50 of         3,600
 $180,000)..................................................
Less: Amount representing rentable space not subject to              600
 proprietary lease but held for rental purposes over total
 rentable space 2,000/12,000 (of $3,600)....................
                                                             -----------
    Annual depreciation, as reduced.........................       3,000
                                                             ===========
B's proportionate share of annual depreciation (1/10 of              300
 $3,000)....................................................
Depreciation allowance for 1962 with respect to B's stock            300
 (if the limitation in paragraph (c) of this section is not
 applicable)................................................
 

    Example 3. The facts are the same as in Example 1 except that B 
occupies his apartment from January 1, 1962, until December 31, 1966, 
and that on January 1, 1967, B sells his stock to C, an individual, for 
$15,000. C thereby obtains a proprietary lease from Y corporation with 
the same rights and obligations as B's lease provided. Y corporation's 
records disclose that its outstanding mortgage indebtedness is $135,000 
on January 1, 1967. C, a physician, uses the entire apartment solely as 
an office. C's stock in Y corporation is treated as property subject to 
the allowance for depreciation under section 167(a), and C, who uses the 
straight line method of depreciation for purposes of the computation 
prescribed by paragraph (b)(1)(i) of this section, computes the 
allowance for depreciation for the taxable year 1967 with respect to 
such stock as follows:

Price paid for each share of stock in Y corporation                 $150
 purchased by C on 1-1-67 ($15,000/100).....................
                                                             ===========
Per share price paid by C multiplied by total shares of          150,000
 stock in Y corporation outstanding on 1-1-67 ($150x1,000)..
Y's mortgage indebtedness outstanding on 1-1-67.............     135,000
                                                             -----------
                                                                 285,000
Less: Amount attributable to land (assumed to be \1/5\ of         57,000
 $285,000)..................................................
                                                             -----------
                                                                 228,000
Less: Estimated salvage value...............................      20,000
                                                             -----------
Basis of Y's building for purposes of computing C's              208,000
 depreciation...............................................
                                                             ===========
Annual straight line depreciation (1/45 of $208,000)........    4,622.22
C's proportionate share of annual depreciation (1/10 of           462.22
 $4,622.22).................................................
Depreciation allowance for 1967 with respect to C's stock         462.22
 (if the limitation in paragraph (c) of this section is not
 applicable)................................................
 


[T.D. 6725, 29 FR 5665, Apr. 29, 1964, as amended by T.D. 8316, 55 FR 
42006, Oct. 17, 1990]



Sec. 1.217-1  Deduction for moving expenses paid or incurred in 
taxable years beginning before January 1, 1970.

    (a) Allowance of deduction--(1) In general. Section 217(a) allows a 
deduction from gross income for moving expenses paid or incurred by the 
taxpayer during the taxable year in connection with the commencement of 
work as an employee at a new principal place of work. Except as provided 
in section 217, no deduction is allowable for any expenses incurred by 
the taxpayer in connection with moving himself, the members of his 
family or household, or household goods and personal effects. The 
deduction allowable under this section is only for expenses incurred 
after December 31, 1963, in taxable years ending after such date and 
beginning before January 1, 1970, except in cases

[[Page 466]]

where a taxpayer makes an election under paragraph (g) of Sec. 1.217-2 
with respect to moving expenses paid or incurred before January 1, 1971, 
in connection with the commencement of work by such taxpayer as an 
employee at a new principal place of work of which such taxpayer has 
been notified by his employer on or before December 19, 1969. To qualify 
for the deduction the expenses must meet the definition of the term 
``moving expenses'' provided in section 217(b); the taxpayer must meet 
the conditions set forth in section 217(c); and, if the taxpayer 
receives a reimbursement or other expense allowance for an item of 
expense, the deduction for the portion of the expense reimbursed is 
allowable only to the extent that such reimbursement or other expense 
allowance is included in his gross income as provided in section 217(e). 
The deduction is allowable only to a taxpayer who pays or incurs moving 
expenses in connection with his commencement of work as an employee and 
is not allowable to a taxpayer who pays or incurs such expenses in 
connection with his commencement of work as a self-employed individual. 
The term employee as used in this section has the same meaning as in 
Sec. 31.3401(c)-1 of this chapter (Employment Tax Regulations). All 
references to section 217 in this section are to section 217 prior to 
the effective date of section 231 of the Tax Reform Act of 1969 (83 
Stat. 577).
    (2) Commencement of work. To be deductible, the moving expenses must 
be paid or incurred by the taxpayer in connection with the commencement 
of work by him at a new principal place of work (see paragraph (c)(3) of 
this section for a discussion of the term principal place of work). 
While it is not necessary that the taxpayer have a contract or 
commitment of employment prior to his moving to a new location, the 
deduction is not allowable unless employment actually does occur. The 
term commencement includes (i) the beginning of work by a taxpayer for 
the first time or after a substantial period of unemployment or part-
time employment, (ii) the beginning of work by a taxpayer for a 
different employer, or (iii) the beginning of work by a taxpayer for the 
same employer at a new location. To qualify as being in connection with 
the commencement of work, the move for which moving expenses are 
incurred must bear a reasonable proximity both in time and place to such 
commencement. In general, moving expenses incurred within one year of 
the date of the commencement of work are considered to be reasonably 
proximate to such commencement. Moving expenses incurred in relocating 
the taxpayer's residence to a location which is farther from his new 
principal place of work than was his former residence are not generally 
to be considered as incurred in connection with such commencement of 
work. For example, if A is transferred by his employer from place X to 
place Y and A's old residence while he worked at place X is 25 miles 
from Y, A will not generally be entitled to deduct moving expenses in 
moving to a new residence 40 miles from Y even though the minimum 
distance limitation contained in section 217(c)(1) is met. If, however, 
A is required, as a condition of his employment, to reside at a 
particular place, or if such residency will result in an actual decrease 
in his commuting time or expense, the expenses of the move may be 
considered as incurred in connection with his commencement of work at 
place Y.
    (b) Definition of moving expenses--(1) In general. Section 217(b) 
defines the term moving expenses to mean only the reasonable expenses 
(i) of moving household goods and personal effects from the taxpayer's 
former residence to his new residence, and (ii) of traveling (including 
meals and lodging) from the taxpayer's former residence to his new place 
of residence. The test of deductibility thus is whether the expenses are 
reasonable and are incurred for the items set forth in (i) and (ii) 
above.
    (2) Reasonable expenses. (i) The term moving expenses includes only 
those expenses which are reasonable under the circumstances of the 
particular move. Generally, expenses are reasonable only if they are 
paid or incurred for movement by the shortest and most direct route 
available from the taxpayer's former residence to his new residence by 
the conventional mode or modes of transportation actually used

[[Page 467]]

and in the shortest period of time commonly required to travel the 
distance involved by such mode. Expenses paid or incurred in excess of a 
reasonable amount are not deductible. Thus, if moving or travel 
arrangements are made to provide a circuitous route for scenic, 
stopover, or other similar reasons, the additional expenses resulting 
therefrom are not deductible since they do not meet the test of 
reasonableness.
    (ii) The application of this subparagraph may be illustrated by the 
following example:

    Example. A, an employee of the M Company works and maintains his 
principal residence in Boston, Massachusetts. Upon receiving orders from 
his employer that he is to be transferred to M's Los Angeles, California 
office, A motors to Los Angeles with his family with stopovers at 
various cities between Boston and Los Angeles to visit friends and 
relatives. In addition, A detours into Mexico for sight-seeing. Because 
of the stopovers and tour into Mexico, A's travel time and distance are 
increased over what they would have been had he proceeded directly to 
Los Angeles. To the extent that A's route of travel between Boston and 
Los Angeles is in a generally southwesterly direction it may be said 
that he is traveling by the shortest and most direct route available by 
motor vehicle. Since A's excursion into Mexico is away from the usual 
Boston-Los Angeles route, the portion of the expenses paid or incurred 
attributable to such excursion is not deductible. Likewise, that portion 
of the expenses attributable to A's delays en route not necessitated by 
reasons of rest or repair of his vehicle are not deductible.

    (3) Expenses of moving household goods and personal effects. 
Expenses of moving household goods and personal effects include expenses 
of transporting such goods and effects owned by the taxpayer or a member 
of his household from the taxpayer's former residence to his new 
residence, and expenses of packing, crating and in-transit storage and 
insurance for such goods and effects. Expenses paid or incurred in 
moving household goods and personal effects to a taxpayer's new 
residence from a place other than his former residence are allowable, 
but only to the extent that such expenses do not exceed the amount which 
would be allowable had such goods and effects been moved from the 
taxpayer's former residence. Examples of items not deductible as moving 
expenses include, but are not limited to, storage charges (other than 
in-transit), costs incurred in the acquisition of property, costs 
incurred and losses sustained in the disposition of property, penalties 
for breaking leases, mortgage penalties, expenses of refitting rugs or 
draperies, expenses of connecting or disconnecting utilities, losses 
sustained on the disposal of memberships in clubs, tuition fees, and 
similar items.
    (4) Expenses of traveling. Expenses of traveling include the cost of 
transportation and of meals and lodging en route (including the date of 
arrival) of both the taxpayer and members of his household, who have 
both the taxpayer's former residence and the taxpayer's new residence as 
their principal place of abode, from the taxpayer's former residence to 
his new place of residence. Expenses of traveling do not include, for 
example: living or other expenses of the taxpayer and members of his 
household following their date of arrival at the new place of residence 
and while they are waiting to enter the new residence or waiting for 
their household goods to arrive; expenses in connection with house or 
apartment hunting; living expenses preceding the date of departure for 
the new place of residence; expenses of trips for purposes of selling 
property; expenses of trips to the former residence by the taxpayer 
pending the move by his family to the new place of residence; or any 
allowance for depreciation. The deduction for traveling expenses is 
allowable for only one trip made by the taxpayer and members of his 
household; however, it is not necessary that the taxpayer and all 
members of his household travel together or at the same time.
    (5) Residence. The term former residence refers to the taxpayer's 
principal residence before his departure for his new principal place of 
work. The term new residence refers to the taxpayer's principal 
residence within the general location of his new principal place of 
work. Thus, neither term includes other residences owned or maintained 
by the taxpayer or members of his family or seasonal residences such as 
a summer beach cottage. Whether or not property is used by the taxpayer 
as his residence, and whether or not property

[[Page 468]]

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. Property used by the taxpayer 
as his principal residence may include a houseboat, a house trailer, or 
similar dwelling. The term new place of residence generally includes the 
area within which the taxpayer might reasonably be expected to commute 
to his new principal place of work. The application of the terms former 
residence, new residence and new place of residence as defined in this 
paragraph and as used in section 217(b)(1) may be illustrated in the 
following manner: Expenses of moving household goods and personal 
effects are moving expenses when paid or incurred for transporting such 
items from the taxpayer's former residence to the taxpayer's new 
residence (such as from one street address to another). Expenses of 
traveling, on the other hand, are limited to those incurred between the 
taxpayer's former residence (a geographic point) and his new place of 
residence (a commuting area) up to and including the date of arrival. 
The date of arrival is the day the taxpayer secures lodging within that 
commuting area, even if on a temporary basis.
    (6) Individuals other than taxpayer. In addition to the expenses set 
forth in section 217(b)(1) which are attributable to the taxpayer alone, 
the same type of expenses attributable to certain individuals other than 
the taxpayer, if paid or incurred by the taxpayer, are deductible. Those 
other individuals must (i) be members of the taxpayer's household, and 
(ii) have both the taxpayer's former residence and his new residence as 
their principal place of abode. A member of the taxpayer's household may 
not be, for example, a tenant residing in the taxpayer's residence, nor 
an individual such as a servant, governess, chauffeur, nurse, valet, or 
personal attendant.
    (c) Conditions for allowance--(1) In general. Section 217(c) 
provides two conditions which must be satisfied in order for a deduction 
of moving expenses to be allowed under section 217(a). The first is a 
minimum distance requirement prescribed by section 217(c)(1), and the 
second is a minimum period of employment requirement prescribed by 
section 217(c)(2).
    (2) Minimum distance. For purposes of applying the minimum distance 
requirement of section 217(c)(1) all taxpayers are divided into one or 
the other of the following categories: taxpayers having a former 
principal place of work, and taxpayers not having a former principal 
place of work. In this latter category are individuals who are seeking 
full-time employment for the first time (for example, recent high school 
or college graduates), or individuals who are re-entering the labor 
force after a substantial period of unemployment or part-time 
employment.
    (i) In the case of a taxpayer having a former principal place of 
work, section 217(c)(1)(A) provides that no deduction is allowable 
unless the distance between his new principal place of work and his 
former residence exceeds by at least 20 miles the distance between his 
former principal place of work and such former residence.
    (ii) In the case of a taxpayer not having a former principal place 
of work, section 217(c)(1)(B) provides that no deduction is allowable 
unless the distance between his new principal place of work and his 
former residence is at least 20 miles.
    (iii) For purposes of measuring distances under section 217(c)(1) 
all computations are to be made on the basis of a straight-line 
measurement.
    (3) Principal place of work. (i) A taxpayer's ``principal place of 
work'' usually is the place at which he spends most of his working time. 
Generally, where a taxpayer performs services as an employee, his 
principal place of work is his employer's plant, office, shop, store or 
other property. However, a taxpayer may have a principal place of work 
even if there is no one place at which he spends a substantial portion 
of his working time. In such case, the taxpayer's principal place of 
work is the place at which his business activities are centered--for 
example, because he reports there for work, or is otherwise required 
either by his employer or the nature of his employment to ``base'' his 
employment there. Thus, while a member of a railroad crew, for example, 
may spend most of his working time aboard a train, his principal

[[Page 469]]

place of work is his home terminal, station, or other such central point 
where he reports in, checks out, or receives instructions. In those 
cases where the taxpayer is employed by a number of employers on a 
relatively short-term basis, and secures employment by means of a union 
hall system (such as a construction or building trades worker), the 
taxpayer's principal place of work would be the union hall.
    (ii) In cases where a taxpayer has more than one employment (i.e., 
more than one employer at any particular time) his principal place of 
work is usually determined with reference to his principal employment. 
The location of a taxpayer's principal place of work is necessarily a 
question of fact which must be determined on the basis of the particular 
circumstances in each case. The more important factors to be considered 
in making a factual determination regarding the location of a taxpayer's 
principal place of work are (a) the total time ordinarily spent by the 
taxpayer at each place, (b) the degree of the taxpayer's business 
activity at each place, and (c) the relative significance of the 
financial return to the taxpayer from each place.
    (iii) In general, a place of work is not considered to be the 
taxpayer's principal place of work for purposes of this section if the 
taxpayer maintains an inconsistent position, for example, by claiming an 
allowable deduction under section 162 (relating to trade or business 
expenses) for traveling expenses ``while away from home'' with respect 
to expenses incurred while he is not away from such place of work and 
after he has incurred moving expenses for which a deduction is claimed 
under this section.
    (4) Minimum period of employment. Under section 217(c)(2), no 
deduction is allowed unless, during the 12-month period immediately 
following the taxpayer's arrival in the general location of his new 
principal place of work, he is a full-time employee, in such general 
location, during at least 39 weeks.
    (i) The 12-month period and the 39-week period set forth in section 
217(c)(2) are measured from the date of the taxpayer's arrival in the 
general location of his new principal place of work. Generally, the 
taxpayer's date of arrival is the date of the termination of the last 
trip preceding the taxpayer's commencement of work on a regular basis, 
regardless of the date on which the taxpayer's family or household goods 
and effects arrive.
    (ii) It is not necessary that the taxpayer remain in the employ of 
the same employer for 39 weeks, but only that he be employed in the same 
general location of his new principal place of work during such period. 
The general location of the new principal place of work refers to the 
area within which an individual might reasonably be expected to commute 
to such place of work, and will usually be the same area as is known as 
the new place of residence; see paragraph (b)(5) of this section.
    (iii) Only a week during which the taxpayer is a full-time employee 
qualifies as a week of work for purposes of the 39-week requirement of 
section 217(c)(2). Whether an employee is a full-time employee during 
any particular week depends upon the customary practices of the 
occupation in the geographic area in which the taxpayer works. In the 
case of occupations where employment is on a seasonal basis, weeks 
occuring in the off-season when no work is required or available (as the 
case may be) may be counted as weeks of full-time employment only if the 
employee's contract or agreement of employment covers the off-season 
period and the off-season period is less than 6 months. Thus, a school 
teacher whose employment contract covers a 12-month period and who 
teaches on a full-time basis for more than 6 months in fulfillment of 
such contract is considered a full-time employee during the entire 12-
month period. A taxpayer will not be deemed as other than a full-time 
employee during any week merely because of periods of involuntary 
temporary absence from work, such as those due to illness, strikes, 
shutouts, layoffs, natural disasters, etc.
    (iv) In the case of taxpayers filing a joint return, either spouse 
may satisfy this 39-week requirement. However, weeks worked by one 
spouse may not be added to weeks worked by the other spouse in order to 
satisfy such requirement.

[[Page 470]]

    (v) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. A is an electrician residing in New York City. Having 
heard of the possibility of better employment prospects in Denver, 
Colorado, he moves himself, his family and his household goods and 
personal effects, at his own expense, to Denver where he secures 
employment with the M Aircraft Corporation. After working full-time for 
30 weeks his job is terminated, and he subsequently moves to and secures 
employment in Los Angeles, California, which employment lasts for more 
than 39 weeks. Since A was not employed in the general location of his 
new principal place of employment while in Denver for at least 39 weeks, 
no deduction is allowable for moving expenses paid or incurred between 
New York City and Denver. A will be allowed to deduct only those moving 
expenses attributable to his move from Denver to Los Angeles, assuming 
all other conditions of section 217 are met.
    Example 2. Assume the same facts as in Example 1, except that B, A's 
wife, secures employment in Denver at the same time as A, and that she 
continues to work in Denver for at least 9 weeks after A's departure for 
Los Angeles. Since she has met the 39-week requirement in Denver, and 
assuming all other requirements of section 217 are met, the moving 
expenses paid by A attributable to the move from New York City to Denver 
will be allowed as a deduction, provided A and B filed a joint return.
    Example 3. Assume the same facts as in Example 1, except that B, A's 
wife, secures employment in Denver on the same day that A departs for 
Los Angeles, and continues to work in Denver for 9 weeks thereafter. 
Since neither A (who has worked 30 weeks) nor B (who has worked 9 weeks) 
has independently satisfied the 39-week requirement, no deduction for 
moving expenses attributable to the move from New York City to Denver is 
allowable.

    (d) Rules for application of section 217(c)(2)--(1) Inapplicability 
of 39-week test to reimbursed expenses. (i) Paragraph (1) of section 
217(d) provides that the 39-week employment condition of section 
217(c)(2) does not apply to any moving expense item to the extent that 
the taxpayer receives reimbursement or other allowance from his employer 
for such item. A reimbursement or other allowance to an employee for 
expenses of moving, in the absence of a specific allocation by the 
employer, is allocated first to items deductible under section 217(a) 
and then, if a balance remains, to items not so deductible.
    (ii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. A, a recent college graduate, with his residence in 
Washington, DC, is hired by the M Corporation in San Francisco, 
California. Under the terms of the employment contract, M agrees to 
reimburse A for three-fifths of his moving expenses from Washington to 
San Francisco. A moves to San Francisco, and pays $1,000 for expenses 
incurred, for which he is reimbursed $600 by M. After working for M for 
a period of 3 months, A becomes dissatisfied with the job and returns to 
Washington to continue his education. Since he has failed to satisfy the 
39-week requirement of section 217(c)(2) the expenses totaling $400 for 
which A has received no reimbursement are not deductible. Under the 
special rule of section 217(d)(1), however, the deduction for the $600 
reimbursed moving expenses is not disallowed by reason of section 
217(c)(2).
    Example 2. B, a self-employed accountant, who works and resides in 
Columbus, Ohio, is hired by the N Company in St. Petersburg, Florida. 
Pursuant to its policy with respect to newly hired employees, N agrees 
to reimburse B to the extent of $1,000 of the expenses incurred by him 
in connection with his move to St. Petersburg, allocating $700 for the 
items specified in section 217(b)(1), and $300 for ``temporary living 
expenses.'' B moves to St. Petersburg, and incurs $800 of ``moving 
expenses'' and $300 of ``temporary living expenses'' in St. Petersburg. 
B receives reimbursement of $1,000 from N, which amount is included in 
his gross income. Assuming B fails to satisfy the 39-week test of 
section 217(c)(2), he will nevertheless be allowed to deduct $700 as a 
moving expense. On the other hand, had N made no allocation between 
deductible and non-deductible items, B would have been allowed to deduct 
$800 since, in the absence of a specific allocation of the reimbursement 
by N, it is presumed that the reimbursement was for items specified in 
section 217(b)(1) to the extent thereof.

    (2) Election of deduction before 39-week test is satisfied. (i) 
Paragraph (2) of section 217(d) provides a special rule which applies in 
those cases where a taxpayer paid or incurred, in a particular taxable 
year, moving expenses which would be deductible in that taxable year 
except for the fact that the 39-week employment condition of section 
217(c)(2) has not been satisfied before the time prescribed by law 
(including extensions thereof) for filing the return

[[Page 471]]

for such taxable year. The rule provides that where a taxpayer has paid 
or incurred moving expenses and as of the date prescribed by section 
6072 for filing his return for such taxable year, including extensions 
thereof as may be allowed under section 6081, there remains unexpired a 
sufficient portion of the 12-month period so that it is still possible 
for the taxpayer to satisfy the 39-week requirement, then the taxpayer 
may elect to claim a deduction for such moving expenses on the return 
for such taxable year. The election shall be exercised by taking the 
deduction on the return filed within the time prescribed by section 6072 
(including extensions as may be allowed under section 6081). It is not 
necessary that the taxpayer wait until the date prescribed by law for 
filing his return in order to make the election. He may make the 
election on an early return based upon the facts known on the date such 
return is filed. However, an election made on an early return will 
become invalid if, as of the date prescribed by law for filing the 
return, it is not possible for the taxpayer to satisfy the 39-week 
requirement.
    (ii) In the event that a taxpayer does not elect to claim a 
deduction for moving expenses on the return for the taxable year in 
which such expenses were paid or incurred in accordance with (i) of this 
subparagraph, and the 39-week employment condition of section 217(c)(2) 
(as well as all other requirements of section 217) is subsequently 
satisfied, then the taxpayer may file an amended return for the taxable 
year in which such moving expenses were paid or incurred on which he may 
claim a deduction under section 217. The taxpayer may, in lieu of filing 
an amended return, file a claim for refund based upon the deduction 
allowable under section 217.
    (iii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. A is transferred by his employer, M, from Boston, 
Massachusetts, to Cleveland, Ohio, and begins working there on November 
1, 1964, followed by his family and household goods and personal effects 
on November 15, 1964. Moving expenses are paid or incurred by A in 1964 
in connection with this move. On April 15, 1965, when A files his income 
tax return for the year 1964, A has been a full-time employee in 
Cleveland for approximately 24 weeks. Notwithstanding the fact that as 
of April 15, 1965, A has not satisfied the 39-week employment condition 
of section 217(c)(2) he may nevertheless elect to claim his 1964 moving 
expenses on his 1964 income tax return since there is still sufficient 
time remaining before November 1, 1965, within which to satisfy the 39-
week requirement.
    Example 2. Assume the facts are the same as in Example 1, except 
that as of April 15, 1965, A has left the employ of M, and is in the 
process of seeking further employment in Cleveland. Since, under these 
conditions, A may be unsure whether or not he will be able to satisfy 
the 39-week requirement by November 1, 1965, he may not wish to avail 
himself of the election provided by section 217(d)(2). In such event, A 
may wait until he has actually satisfied the 39-week requirement, at 
which time he may file an amended return claiming as a deduction the 
moving expenses paid or incurred in 1964. A may, in lieu of filing an 
amended return, file a claim for refund based upon a deduction for such 
expenses. Should A fail to satisfy the 39-week requirement on or before 
November 1, 1965, no deduction is allowable for moving expenses incurred 
in 1964.

    (3) Recapture of deduction where 39-week test is not met. Paragraph 
(3) of section 217(d) provides a special rule which applies in cases 
where a taxpayer has deducted moving expenses under the election 
provided in section 217(d)(2) prior to his satisfying the 39-week 
employment condition of section 217(c)(2), and the 39-week test is not 
satisfied during the taxable year immediately following the taxable year 
in which the expenses were deducted. In such cases an amount equal to 
the expenses which were deducted must be included in the taxpayer's 
gross income for the taxable year immediately following the taxable year 
in which the expenses were deducted. In the event the taxpayer has 
deducted moving expenses under the election provided in section 
217(d)(2) for the taxable year, and subsequently files an amended return 
for such year on which he eliminates such deduction, such expenses will 
not be deemed to have been deducted for purposes of the recapture rule 
of the preceding sentence.
    (e) Disallowance of deduction with respect to reimbursements not 
included in gross income. Section 217(e) provides that no deduction 
shall be allowed under section 217 for any item to the

[[Page 472]]

extent that the taxpayer receives reimbursement or other expense 
allowance for such item unless the amount of such reimbursement or other 
expense allowance is included in his gross income. A reimbursement or 
other allowance to an employee for expenses of moving, in the absence of 
a specific allocation by the employer, is allocated first to items 
deductible under section 217(a) and then, if a balance remains, to items 
not so deductible. For purposes of this section, moving services 
furnished in-kind, directly or indirectly, by a taxpayer's employer to 
the taxpayer or members of his household are considered as being a 
reimbursement or other allowance received by the taxpayer for moving 
expenses. If a taxpayer pays or incurs moving expenses and either prior 
or subsequent thereto receives reimbursement or other expense allowance 
for such item, no deduction is allowed for such moving expenses unless 
the amount of the reimbursement or other expense allowance is included 
in his gross income in the year in which such reimbursement or other 
expense allowance is received. In those cases where the reimbursement or 
other expense allowance is received by a taxpayer for an item of moving 
expense subsequent to his having claimed a deduction for such item, and 
such reimbursement or other expense allowance is properly excluded from 
gross income in the year in which received, the taxpayer must file an 
amended return for the taxable year in which the moving expenses were 
deducted and decrease such deduction by the amount of the reimbursement 
or other expense allowance not included in gross income. This does not 
mean, however, that a taxpayer has an option to include or not include 
in his gross income an amount received as reimbursement or other expense 
allowance in connection with his move as an employee. This question 
remains one which must be resolved under section 61(a) (relating to the 
definition of gross income).

[T.D. 6796, 30 FR 1038, Feb. 2, 1965, as amended by T.D. 7195, 37 FR 
13535, July 11, 1972]



Sec. 1.217-2  Deduction for moving expenses paid or incurred in 
taxable years beginning after December 31, 1969.

    (a) Allowance of deduction--(1) In general. Section 217(a) allows a 
deduction from gross income for moving expenses paid or incurred by the 
taxpayer during the taxable year in connection with his commencement of 
work as an employee or as a self-employed individual at a new principal 
place of work. For purposes of this section, amounts are considered as 
being paid or incurred by an individual whether goods or services are 
furnished to the taxpayer directly (by an employer, a client, a 
customer, or similar person) or indirectly (paid to a third party on 
behalf of the taxpayer by an employer, a client, a customer, or similar 
person). A cash basis taxpayer will treat moving expenses as being paid 
for purposes of section 217 and this section in the year in which the 
taxpayer is considered to have received such payment under section 82 
and Sec. 1.82-1. No deduction is allowable under section 162 for any 
expenses incurred by the taxpayer in connection with moving from one 
residence to another residence unless such expenses are deductible under 
section 162 without regard to such change in residence. To qualify for 
the deduction under section 217 the expenses must meet the definition of 
the term moving expenses provided in section 217(b) and the taxpayer 
must meet the conditions set forth in section 217(c). The term employee 
as used in this section has the same meaning as in Sec. 31.3401(c)-1 of 
this chapter (Employment Tax Regulations). The term self-employed 
individual as used in this section is defined in paragraph (f)(1) of 
this section.
    (2) Expenses paid in a taxable year other than the taxable year in 
which reimbursement representing such expenses is received. In general, 
moving expenses are deductible in the year paid or incurred. If a 
taxpayer who uses the cash receipts and disbursements method of 
accounting receives reimbursement for a moving expense in a taxable year 
other than the taxable year the taxpayer pays such expense, he may elect 
to deduct such expense in the taxable year that he receives such 
reimbursement, rather than the taxable year

[[Page 473]]

when he paid such expense in any case where:
    (i) The expense is paid in a taxable year prior to the taxable year 
in which the reimbursement is received, or
    (ii) The expense is paid in the taxable year immediately following 
the taxable year in which the reimbursement is received, provided that 
such expense is paid on or before the due date prescribed for filing the 
return (determined with regard to any extension of time for such filing) 
for the taxable year in which the reimbursement is received.

An election to deduct moving expenses in the taxable year that the 
reimbursement is received shall be made by claiming the deduction on the 
return, amended return, or claim for refund for the taxable year in 
which the reimbursement is received.
    (3) Commencement of work. (i) To be deductible the moving expenses 
must be paid or incurred by the taxpayer in connection with his 
commencement of work at a new principal place of work (see paragraph 
(c)(3) of this section for a discussion of the term principal place of 
work). Except for those expenses described in section 217(b)(1) (C) and 
(D) it is not necessary for the taxpayer to have made arrangements to 
work prior to his moving to a new location; however, a deduction is not 
allowable unless employment or self-employment actually does occur. The 
term commencement includes (a) the beginning of work by a taxpayer as an 
employee or as a self-employed individual for the first time or after a 
substantial period of unemployment or part-time employment, (b) the 
beginning of work by a taxpayer for a different employer or in the case 
of a self-employed individual in a new trade or business, or (c) the 
beginning of work by a taxpayer for the same employer or in the case of 
a self-employed individual in the same trade or business at a new 
location. To qualify as being in connection with the commencement of 
work, the move must bear a reasonable proximity both in time and place 
to such commencement at the new principal place of work. In general, 
moving expenses incurred within 1 year of the date of the commencement 
of work are considered to be reasonably proximate in time to such 
commencement. Moving expenses incurred after the 1-year period may be 
considered reasonably proximate in time if it can be shown that 
circumstances existed which prevented the taxpayer from incurring the 
expenses of moving within the 1-year period allowed. Whether 
circumstances existed which prevented the taxpayer from incurring the 
expenses of moving within the period allowed is dependent upon the facts 
and circumstances of each case. The length of the delay and the fact 
that the taxpayer may have incurred part of the expenses of the move 
within the 1-year period allowed shall be taken into account in 
determining whether expenses incurred after such period are allowable. 
In general, a move is not considered to be reasonably proximate in place 
to the commencement of work at the new princpal place of work where the 
distance between the taxpayer's new residence and his new principal 
place of work exceeds the distance between his former residence and his 
new principal place of work. A move to a new residence which does not 
satisfy this test may, however, be considered reasonably proximate in 
place to the commencement of work if the taxpayer can demonstrate, for 
example, that he is required to live at such residence as a condition of 
employment or that living at such residence will result in an actual 
decrease in commuting time or expense. For example, assume that in 1977 
A is transferred by his employer to a new principal place of work and 
the distance between his former residence and his new principal place of 
work is 35 miles greater than was the distance between his former 
residence and his former principal place of work. However, the distance 
between his new residence and his new principal place of work is 10 
miles greater than was the distance between his former residence and his 
new principal place of work. Although the minimum distance requirement 
of section 217(c)(1) is met the expenses of moving to the new residence 
are not considered as incurred in connection with A's commencement of 
work at his new principal place of work since the new residence is not 
proximate in place to the new place of work.

[[Page 474]]

If, however, A can demonstrate, for example, that he is required to live 
at such new residence as a condition of employment or if living at such 
new residence will result in an actual decrease in commuting time or 
expense, the expenses of the move may be considered as incurred in 
connection with A's commencement of work at his new principal place of 
work.
    (ii) The provisions of subdivision (i) of this subparagraph may be 
illustrated by the following examples:

    Example 1. Assume that A is tranferred by his employer from Boston, 
MA, to Washington, DC. A moves to a new residence in Washington, DC, and 
commences work on February 1, 1971. A's wife and his two children remain 
in Boston until June 1972 in order to allow A's children to complete 
their grade school education in Boston. On June 1, 1972, A sells his 
home in Boston and his wife and children move to the new residence in 
Washington, DC. The expenses incurred on June 1, 1972, in selling the 
old residence and in moving A's family, their household goods, and 
personal effects to the new residence in Washington are allowable as a 
deduction although they were incurred 16 months after the date of the 
commencement of work by A since A has moved to and established a new 
residence in Washington, DC, and thus incurred part of the total 
expenses of the move prior to the expiration of the 1-year period.
    Example 2. Assume that A is transferred by his employer from 
Washington, DC, to Baltimore, MD. A commences work on January 1, 1971, 
in Baltimore. A commutes from his residence in Washington to his new 
principal place of work in Baltimore for a period of 18 months. On July 
1, 1972, A decides to move to and establish a new residence in 
Baltimore. None of the moving expenses otherwise allowable under section 
217 may be deducted since A neither incurred the expenses within 1 year 
nor has shown circumstances under which he was prevented from moving 
within such period.

    (b) Definition of moving expenses--(1) In general. Section 217(b) 
defines the term moving expenses to mean only the reasonable expenses 
(i) of moving household goods and personal effects from the taxpayer's 
former residence to his new residence, (ii) of traveling (including 
meals and lodging) from the taxpayer's former residence to his new place 
of residence, (iii) of traveling (including meals and lodging), after 
obtaining employment, from the taxpayer's former residence to the 
general location of his new principal place of work and return, for the 
principal purpose of searching for a new residence, (iv) of meals and 
lodging while occupying temporary quarters in the general location of 
the new principal place of work during any period of 30 consecutive days 
after obtaining employment, or (v) of a nature constituting qualified 
residence sale, purchase, or lease expenses. Thus, the test of 
deductibility is whether the expenses are reasonable and are incurred 
for the items set forth in subdivisions (i) through (v) of this 
subparagraph.
    (2) Reasonable expenses. (i) The term moving expenses includes only 
those expenses which are reasonable under the circumstances of the 
particular move. Expenses paid or incurred in excess of a reasonable 
amount are not deductible. Generally, expenses paid or incurred for 
movement of household goods and personal effects or for travel 
(including meals and lodging) are reasonable only to the extent that 
they are paid or incurred for such movement or travel by the shortest 
and most direct route available from the former residence to the new 
residence by the conventional mode or modes of transportation actually 
used and in the shortest period of time commonly required to travel the 
distance involved by such mode. Thus, if moving or travel arrangements 
are made to provide a circuitous route for scenic, stopover, or other 
similar reasons, additional expenses resulting therefrom are not 
deductible since they are not reasonable nor related to the commencement 
of work at the new principal place of work. In addition, expenses paid 
or incurred for meals and lodging while traveling from the former 
residence to the new place of residence or to the general location of 
the new principal place of work and return or occupying temporary 
quarters in the general location of the new principal place of work are 
reasonable only if under the facts and circumstances involved such 
expenses are not lavish or extravagant.
    (ii) The application of this subparagraph may be illustrated by the 
following example:

    Example. A, an employee of the M Company works and maintains his 
residence in Boston, MA. Upon receiving orders from his employer that he 
is to be transferred to M's Los

[[Page 475]]

Angeles, CA, office, A motors to Los Angeles with his family with 
stopovers at various cities between Boston and Los Angeles to visit 
friends and relatives. In addition, A detours into Mexico for 
sightseeing. Because of the stopovers and tour into Mexico, A's travel 
time and distance are increased over what they would have been had he 
proceeded directly to Los Angeles. To the extent that A's route of 
travel between Boston and Los Angeles is in a generally southwesterly 
direction it may be said that he is traveling by the shortest and most 
direct route available by motor vehicle. Since A's excursion into Mexico 
is away from the usual Boston-Los Angeles route, the portion of the 
expenses paid or incurred attributable to such excursion is not 
deductible. Likewise, that portion of the expenses attributable to A's 
delay en route in visiting personal friends and sightseeing are not 
deductible.

    (3) Expense of moving household goods and personal effects. Expenses 
of moving household goods and personal effects include expenses of 
transporting such goods and effects from the taxpayer's former residence 
to his new residence, and expenses of packing, crating, and in-transit 
storage and insurance for such goods and effects. Such expenses also 
include any costs of connecting or disconnecting utilities required 
because of the moving of household goods, appliances, or personal 
effects. Expenses of storing and insuring household goods and personal 
effects constitute in-transit expenses if incurred within any 
consecutive 30-day period after the day such goods and effects are moved 
from the taxpayer's former residence and prior to delivery at the 
taxpayer's new residence. Expenses paid or incurred in moving household 
goods and personal effects to the taxpayer's new residence from a place 
other than his former residence are allowable, but only to the extent 
that such expenses do not exceed the amount which would be allowable had 
such goods and effects been moved from the taxpayer's former residence. 
Expenses of moving household goods and personal effects do not include, 
for example, storage charges (other than in-transit), costs incurred in 
the acquisition of property, costs incurred and losses sustained in the 
disposition of property, penalties for breaking leases, mortgage 
penalties, expenses of refitting rugs or draperies, losses sustained on 
the disposal of memberships in clubs, tuition fees, and similar items. 
The above expenses may, however, be described in other provisions of 
section 217(b) and if so a deduction may be allowed for them subject to 
the allowable dollar limitations.
    (4) Expenses of traveling from the former residence to the new place 
of residence. Expenses of traveling from the former residence to the new 
place of residence include the cost of transportation and of meals and 
lodging en route (including the date of arrival) from the taxpayer's 
former residence to his new place of residence. Expenses of meals and 
lodging incurred in the general location of the former residence within 
1 day after the former residence is no longer suitable for occupancy 
because of the removal of household goods and personal effects shall be 
considered as expenses of traveling for purposes of this subparagraph. 
The date of arrival is the day the taxpayer secures lodging at the new 
place of residence, even if on a temporary basis. Expenses of traveling 
from the taxpayer's former residence to his new place of residence do 
not include, for example, living or other expenses following the date of 
arrival at the new place of residence and while waiting to enter the new 
residence or waiting for household goods to arrive, expenses in 
connection with house or apartment hunting, living expenses preceding 
date of departure for the new place of residence (other than expenses of 
meals and lodging incurred within 1 day after the former residence is no 
longer suitable for occupancy), expenses of trips for purposes of 
selling property, expenses of trips to the former residence by the 
taxpayer pending the move by his family to the new place of residence, 
or any allowance for depreciation. The above expenses may, however, be 
described in other provisions of section 217(b) and if so a deduction 
may be allowed for them subject to the allowable dollar limitations. The 
deduction for traveling expenses from the former residence to the new 
place of residence is allowable for only one trip made by the taxpayer 
and members of his household; however, it is not necessary that the 
taxpayer and all members of his household travel together or at the same 
time.

[[Page 476]]

    (5) Expenses of traveling for the principal purpose of looking for a 
new residence. Expenses of traveling, after obtaining employment, from 
the former residence to the general location of the new principal place 
of work and return, for the principal purpose of searching for a new 
residence include the cost of transportation and meals and lodging 
during such travel and while at the general location of the new place of 
work for the principal purpose of searching for a new residence. 
However, such expenses do not include, for example, expenses of meals 
and lodging of the taxpayer and members of his household before 
departing for the new principal place of work, expenses for trips for 
purposes of selling property, expenses of trips to the former residence 
by the taxpayer pending the move by his family to the place of 
residence, or any allowance for depreciation. The above expenses may, 
however, be described in other provisions of section 217(b) and if so a 
deduction may be allowed for them. The deduction for expenses of 
traveling for the principal purpose of looking for a new residence is 
not limited to any number of trips by the taxpayer and by members of his 
household. In addition, the taxpayer and all members of his household 
need not travel together or at the same time. Moreover, a trip need not 
result in acquisition of a lease of property or purchase of property. An 
employee is considered to have obtained employment in the general 
location of the new principal place of work after he has obtained a 
contract or agreement of employment. A self-employed individual is 
considered to have obtained employment when he has made substantial 
arrangements to commence work at the new principal place of work (see 
paragraph (f)(2) of this section for a discussion of the term made 
substantial arrangements to commence to work).
    (6) Expenses of occupying temporary quarters. Expenses of occupying 
temporary quarters include only the cost of meals and lodging while 
occupying temporary quarters in the general location of the new 
principal place of work during any period of 30 consecutive days after 
the taxpayer has obtained employment in such general location. Thus, 
expenses of occupying temporary quarters do not include, for example, 
the cost of entertainment, laundry, transportation, or other personal, 
living family expenses, or expenses of occupying temporary quarters in 
the general location of the former place of work. The 30 consecutive day 
period is any one period of 30 consecutive days which can begin, at the 
option of the taxpayer, on any day after the day the taxpayer obtains 
employment in the general location of the new principal place of work.
    (7) Qualified residence sale, purchase, or lease expenses. Qualified 
residence sale, purchase, or lease expenses (hereinafter ``qualified 
real estate expenses'') are only reasonable amounts paid or incurred for 
any of the following purposes:
    (i) Expenses incident to the sale or exchange by the taxpayer or his 
spouse of the taxpayer's former residence which, but for section 217 (b) 
and (e), would be taken into account in determining the amount realized 
on the sale or exchange of the residence. These expenses include real 
estate commissions, attorneys' fees, title fees, escrow fees, so called 
``points'' or loan placement charges which the seller is required to 
pay, State transfer taxes and similar expenses paid or incurred in 
connection with the sale or exchange. No deduction, however, is 
permitted under section 217 and this section for the cost of physical 
improvements intended to enhance salability by improving the condition 
or appearance of the residence.
    (ii) Expenses incident to the purchase by the taxpayer or his spouse 
of a new residence in the general location of the new principal place of 
work which, but for section 217 (b) and (e), would be taken into account 
in determining either the adjusted basis of the new residence or the 
cost of a loan. These expenses include attorney's fees, escrow fees, 
appraisal fees, title costs, so-called ``points'' or loan placement 
charges not representing payments or prepayments of interest, and 
similar expenses paid or incurred in connection with the purchase of the 
new residence. No deduction, however, is permitted under section 217 and 
this section for any portion of real estate taxes or insurance, so-
called ``points'' or loan

[[Page 477]]

placement charges which are, in essence, prepayments of interest, or the 
purchase price of the residence.
    (iii) Expenses incident to the settlement of an unexpired lease held 
by the taxpayer or his spouse on property used by the taxpayer as his 
former residence. These expenses include consideration paid to a lessor 
to obtain a release from a lease, attorneys' fees, real estate 
commissions, or similar expenses incident to obtaining a release from a 
lease or to obtaining an assignee or a sublessee such as the difference 
between rent paid under a primary lease and rent received under a 
sublease. No deduction, however, is permitted under section 217 and this 
section for the cost of physical improvement intended to enhance 
marketability of the leasehold by improving the condition or appearance 
of the residence.
    (iv) Expenses incident to the acquisition of a lease by the taxpayer 
or his spouse. These expenses include the cost of fees or commissions 
for obtaining a lease, a sublease, or an assignment of an interest in 
property used by the taxpayer as his new residence in the general 
location of the new principal place of work. No deduction, however, is 
permitted under section 217 and this section for payments or prepayments 
of rent or payments representing the cost of a security or other similar 
deposit.

Qualified real estate expenses do not include losses sustained on the 
disposition of property or mortgage penalties, to the extent that such 
penalties are otherwise deductible as interest.
    (8) Residence. The term former residence refers to the taxpayer's 
principal residence before his departure for his new principal place of 
work. The term new residence refers to the taxpayer's principal 
residence within the general location of his new principal place of 
work. Thus, neither term includes other residences owned or maintained 
by the taxpayer or members of his family or seasonal residences such as 
a summer beach cottage. Whether or not property is used by the taxpayer 
as his principal residence depends upon all the facts and circumstances 
in each case. Property used by the taxpayer as his principal residence 
may include a houseboat, a housetrailer, or similar dwelling. The term 
new place of residence generally includes the area within which the 
taxpayer might reasonably be expected to commute to his new principal 
place of work.
    (9) Dollar limitations. (i) Expenses described in subparagraphs (A) 
and (B) of section 217(b)(1) are not subject to an overall dollar 
limitation. Thus, assuming all other requirements of section 217 are 
satisfied, a taxpayer who, in connection with his commencement of work 
at a new principal place of work, pays or incurs reasonable expenses of 
moving household goods and personal effects from his former residence to 
his new place of residence and reasonable expenses of traveling, 
including meals and lodging, from his former residence to his new place 
of residence is permitted to deduct the entire amount of these expenses.
    (ii) Expenses described in subparagraphs (C), (D), and (E) of 
section 217(b)(1) are subject to an overall dollar limitation for each 
commencement of work of 3,000 ($2,500 in the case of a commencement of 
work in a taxable year beginning before January 1, 1977), of which the 
expenses described in subparagraphs (C) and (D) of section 217(b)(1) 
cannot exceed $1,500 ($1,000 in the case of a commencement of work in a 
taxable year beginning before January 1, 1977). The dollar limitation 
applies to the amount of expenses paid or incurred in connection with 
each commencement of work and not to the amount of expenses paid or 
incurred in each taxable year. Thus, for example, a taxpayer who paid or 
incurred $2,000 of expenses described in subparagraphs (C), (D), and (E) 
of section 217(b)(1) in taxable year 1977 in connection with his 
commencement of work at a principal place of work and paid or incurred 
an additional $2,000 of such expenses in taxable year 1978 in connection 
with the same commencement of work is permitted to deduct the $2,000 of 
such expenses paid or incurred in taxable year 1977 and only $1,000 of 
such expenses paid or incurred in taxable year 1978.
    (iii) A taxpayer who pays or incurs expenses described in 
subparagraphs (C), (D), and (E) of section 217(b)(1) in connection with 
the same commencement of work may choose to deduct

[[Page 478]]

any combination of such expenses within the dollar amounts specified in 
subdivision (ii) of this subparagraph. For example, a taxpayer who pays 
or incurs such expenses in connection with the same commencement of work 
may either choose to deduct: (a) Expenses described in subparagraphs (C) 
and (D) of section 217(b)(1) to the extent of $1,500 ($1,000 in the case 
of a commencement of work in a taxable year beginning before January 1, 
1977) before deducting any of the expenses described in subparagraph (E) 
of such section, or (b) expenses described in subparagraph (E) of 
section 217(b)(1) to the extent of $3,000 ($2,500 in the case of a 
commencement of work in a taxable year beginning before January 1, 1977) 
before deducting any of the expenses described in subparagraphs (C) and 
(D) of such section.
    (iv) For the purpose of computing the dollar limitation contained in 
subparagraph (A) of section 217(b)(3) a commencement of work by a 
taxpayer at a new principal place of work and a commencement of work by 
his spouse at a new principal place of work which are in the same 
general location constitute a single commencement of work. Two principal 
places of work are treated as being in the same general location where 
the taxpayer and his spouse reside together and commute to their 
principal places of work. Two principal places of work are not treated 
as being in the same general location where, as of the close of the 
taxable year, the taxpayer and his spouse have not shared the same new 
residence nor made specific plans to share the same new residence within 
a determinable time. Under such circumstances, the separate 
commencements of work by a taxpayer and his spouse will be considered 
separately in assigning the dollar limitations and expenses to the 
appropriate return in the manner described in subdivisions (v) and (vi) 
of this subparagraph.
    (v) Moving expenses (described in subparagraphs (C), (D), and (E) of 
section 217(b)(1)), paid or incurred with respect to the commencement of 
work by both a husband and wife which is considered a single 
commencement of work under subdivision (iv) of this subparagraph are 
subject to an overall dollar limitation of $3,000 ($2,500 in the case of 
a commencement of work in a taxable year beginning before January 1, 
1977), per move of which the expenses described in subparagraphs (C) and 
(D) of section 217(b)(1) cannot exceed $1,500 ($1,000 in the case of a 
commencement of work in a taxable year beginning before January 1, 
1977). If separate returns are filed with respect to the commencement of 
work by both a husband and wife which is considered a single 
commencement of work under subdivision (iv) of this subparagraph, moving 
expenses (described in subparagraphs (C), (D), and (E) of section 
217(b)(1)) are subject to an overall dollar limitation of $1,500 ($1,250 
in the case of a commencement of work in a taxable year beginning before 
January 1, 1977), per move of which the expenses described in 
subparagraphs (C) and (D) of section 217(b)(1) cannot exceed $750 ($500 
in the case of a commencement of work in a taxable year beginning before 
January 1, 1977) with respect to each return. Where moving expenses are 
paid or incurred in more than 1 taxable year with respect to a single 
commencement of work by a husband and wife they shall, for purposes of 
applying the dollar limitations to such move, be subject to a $3,000 and 
$1,500 limitation ($2,500 and $1,000, respectively, in the case of a 
commencement of work in a taxable year beginning before January 1, 1977) 
for all such years that they file a joint return and shall be subject to 
a separate $1,500 and $750 limitation ($1,250 and $500, respectively, in 
the case of a commencement of work in a taxable year beginning before 
January 1, 1977) for all such years that they file separate returns. If 
a joint return is filed for the first taxable year moving expenses are 
paid or incurred with respect to a move but separate returns are filed 
in a subsequent year, the unused portion of the amount which may be 
deducted shall be allocated equally between the husband and wife in the 
later year. If separate returns are filed for the first taxable year 
such moving expenses are paid or incurred but a joint return is filed in 
a subsequent year, the deductions claimed on their separate returns 
shall be aggregated for purposes of determining the unused

[[Page 479]]

portion of the amount which may be deducted in the later year.
    (vi) The application of subdivisions (iv) and (v) of this 
subparagraph may be illustrated by the following examples:

    Example 1. A, who was transferred by his employer, effective January 
15, 1977, moved from Boston, MA, to Washington, DC. A's wife was 
transferred by her employer, effective January 15, 1977, from Boston, 
MA, to Baltimore, MD. A and his wife reside together at the same new 
residence. A and his wife are cash basis taxpayers and file a joint 
return for taxable year 1977. Because A and his wife reside together at 
the new residence, the commencement of work by both is considered a 
single commencement of work under subdivision (iv) of this subparagraph. 
They are permitted to deduct with respect to their commencement of work 
in Washington and Baltimore up to $3,000 of the expenses described in 
subparagraphs (C), (D), and (E) of section 217(b)(1) of which the 
expenses described in subparagraphs (C) and (D) of such section cannot 
exceed $1,500.
    Example 2. Assume the same facts as in Example 1 except that for 
taxable year 1977, A and his wife file separate returns. Because A and 
his wife reside together, the commencement of work by both is considered 
a single commencement of work under subdivision (iv) of this 
subparagraph. A is permitted to deduct with respect to his commencement 
of work in Washington up to $1,500 of the expenses described in 
subparagraphs (C), (D), and (E) of section 217(b)(1) of which the 
expenses described in subparagraphs (C) and (D) cannot exceed $750. A is 
not permitted to deduct any of the expenses described in subparagraphs 
(C), (D), and (E) of section 217(b)(1) paid by his wife in connection 
with her commencement of work at a new principal place of work. A's wife 
is permitted to deduct with respect to her commencement of work in 
Baltimore up to $1,500 of the expenses described in subparagraphs (C), 
(D), and (E) of section 217(b)(1) that are paid by her of which the 
expenses described in subparagraphs (C) and (D) cannot exceed $750. A's 
wife is not permitted to deduct any of the expenses described in 
subparagraphs (C), (D), and (E) of section 217(b)(1) paid by A in 
connection with his commencement of work in Washington, DC.
    Example 3. Assume the same facts as in Example 1 except that A and 
his wife take up separate residences in Washington and Baltimore, do not 
reside together during the entire taxable year, and have no specific 
plans to reside together. The commencement of work by A in Washington, 
DC, and by his wife in Baltimore are considered separate commencements 
of work since their principal places of work are not treated as being in 
the same general location. If A and his wife file a joint return for 
taxable year 1977, the moving expenses described in subparagraphs (C), 
(D), and (E) of section 217(b)(1) paid in connection with the 
commencement of work by A in Washington, DC, and his wife in Baltimore, 
MD, are subject to an overall limitation of $6,000 of which the expenses 
described in subparagrahs (C) and (D) cannot exceed $3,000. If A and his 
wife file separate returns for taxable year 1977, A may deduct up to 
$3,000 of the expenses described in subparagraphs (C), (D), and (E) of 
which the expenses described in subparagraphs (C) and (D) cannot exceed 
$1,500. A's wife may deduct up to $3,000 of the expenses described in 
subparagraphs (C), (D), and (E) of which the expenses described in 
subparagraphs (C) and (D) cannot exceed $1,500.

    (10) Individuals other than taxpayer. (i) In addition to the 
expenses set forth in subparagraphs (A) through (D) of section 217(b)(1) 
attributable to the taxpayer alone, the same type of expenses 
attributable to certain individuals other than the taxpayer, if paid or 
incurred by the taxpayer, are deductible. These other individuals must 
be members of the taxpayer's household, and have both the taxpayer's 
former residence and his new residence as their principal place of 
abode. A member of the taxpayer's household includes any individual 
residing at the taxpayer's residence who is neither a tenant nor an 
employee of the taxpayer. Thus, for example, a member of the taxpayer's 
household may not be an individual such as a servant, governess, 
chauffeur, nurse, valet, or personal attendant. However, for purposes of 
this paragraph, a tenant or employee will be considered a member of the 
taxpayer's household where the tenant or employee is a dependent of the 
taxpayer as defined in section 152.
    (ii) In addition to the expenses set forth in section 217(b)(2) paid 
or incurred by the taxpayer attributable to property sold, purchased, or 
leased by the taxpayer alone, the same type of expenses paid or incurred 
by the taxpayer attributable to property sold, purchased, or leased by 
the taxpayer's spouse or by the taxpayer and his spouse are deductible 
providing such property is used by the taxpayer as his principal place 
of residence.
    (c) Conditions for allowance--(1) In general. Section 217(c) 
provides two conditions which must be satisfied in

[[Page 480]]

order for a deduction of moving expenses to be allowed under section 
217(a). The first is a minimum distance condition prescribed by section 
217(c)(1), and the second is a minimum period of employment condition 
prescribed by section 217(c)(2).
    (2) Minimum distance. For purposes of applying the minimum distance 
condition of section 217(c)(1) all taxpayers are divided into one or the 
other of the following categories: Taxpayers having a former principal 
place of work, and taxpayers not having a former principal place of 
work. Included in this latter category are individuals who are seeking 
fulltime employment for the first time either as an employee or on a 
self- employed basis (for example, recent high school or college 
graduates), or individuals who are reentering the labor force after a 
substantial period of unemployment or part-time employment.
    (i) In the case of a taxpayer having a former principal place of 
work, section 217(c)(1)(A) provides that no deduction is allowable 
unless the distance between the former residence and the new principal 
place of work exceeds by at least 35 miles (50 miles in the case of 
expenses paid or incurred in taxable years beginning before January 1, 
1977) the distance between the former residence and the former principal 
place of work.
    (ii) In the case of a taxpayer not having a former principal place 
of work, section 217(c)(1)(B) provides that no deduction is allowable 
unless the distance between the former residence and the new principal 
place of work is at least 35 miles (50 miles in the case of expenses 
paid or incurred in taxable years beginning before January 1, 1977).
    (iii) For purposes of measuring distances under section 217(c)(1) 
the distance between two geographic points is measured by the shortest 
of the more commonly traveled routes between such points. The shortest 
of the more commonly traveled routes refers to the line of travel and 
the mode or modes of transportation commonly used to go between two 
geographic points comprising the shortest distance between such points 
irrespective of the route used by the taxpayer.
    (3) Principal place of work. (i) A taxpayer's principal place of 
work usually is the place where he spends most of his working time. The 
principal place of work of a taxpayer who performs services as an 
employee is his employer's plant, office, shop, store, or other 
property. The principal place of work of a taxpayer who is self-employed 
is the plant, office, shop, store, or other property which serves as the 
center of his business activities. However, a taxpayer may have a 
principal place of work even if there is no one place where he spends a 
substantial portion of his working time. In such case, the taxpayer's 
principal place of work is the place where his business activities are 
centered--for example, because he reports there for work, or is required 
either by his employer or the nature of his employment to ``base'' his 
employment there. Thus, while a member of a railroad crew may spend most 
of his working time aboard a train, his principal place of work is his 
home terminal, station, or other such central point where he reports in, 
checks out, or receives instructions. The principal place of work of a 
taxpayer who is employed by a number of employers on a relatively short-
term basis, and secures employment by means of a union hall system (such 
as a construction or building trades worker) would be the union hall.
    (ii) Where a taxpayer has more than one employment (i.e., the 
taxpayer is employed by more than one employer, or is self-employed in 
more than one trade or business, or is an employee and is self-employed 
at any particular time) his principal place of work is determined with 
reference to his principal employment. The location of a taxpayer's 
principal place of work is a question of fact determined on the basis of 
the particular circumstances in each case. The more important factors to 
be considered in making this determination are (a) the total time 
ordinarily spent by the taxpayer at each place, (b) the degree of the 
taxpayer's business activity at each place, and (c) the relative 
significance of the financial return to the taxpayer from each place.

[[Page 481]]

    (iii) Where a taxpayer maintains inconsistent positions by claiming 
a deduction for expenses of meals and lodging while away from home 
(incurred in the general location of the new principal place of work) 
under section 162 (relating to trade or business expenses) and by 
claiming a deduction under this section for moving expenses incurred in 
connection with the commencement of work at such place of work, it will 
be a question of facts and circumstances as to whether such new place of 
work will be considered a principal place of work, and accordingly, 
which category of deductions he will be allowed.
    (4) Minimum period of employment. (i) Under section 217(c)(2) no 
deduction is allowed unless:
    (a) Where a taxpayer is an employee, during the 12-month period 
immediately following his arrival in the general location of the new 
principal place of work, he is a full-time employee, in such general 
location, during at least 39 weeks, or
    (b) Where a taxpayer is a self-employed individual (including a 
taxpayer who is also an employee, but is unable to satisfy the 
requirements of the 39-week test of (a) of this subdivision (i)), during 
the 24-month period immediately following his arrival in the general 
location of the new principal place of work, he is a full-time employee 
or performs services as a self-employed individual on a full-time basis, 
in such general location, during at least 78 weeks, of which not less 
than 39 weeks are during the 12-month period referred to above.

Where a taxpayer works as an employee and at the same time performs 
services as a self-employed individual his principal employment 
(determined according to subdivision (i) of subparagraph (3) of this 
paragraph) governs whether the 39-week or 78-week test is applicable.
    (ii) The 12-month period and the 39- week period set forth in 
subparagraph (A) of section 217(c)(2) and the 12- and 24-month periods 
as well as 39- and 78- week periods set forth in subparagraph (B) of 
such section are measured from the date of the taxpayer's arrival in the 
general location of the new principal place of work. Generally, date of 
arrival is the date of the termination of the last trip preceding the 
taxpayer's commencement of work on a regular basis and is not the date 
the taxpayer's family or household goods and effects arrive.
    (iii) The taxpayer need not remain in the employ of the same 
employer or remain self-employed in the same trade or business for the 
required number of weeks. However, he must be employed in the same 
general location of the new principal place of work during such period. 
The general location of the new principal place of work refers to a 
general commutation area and is usually the same area as the ``new place 
of residence''; see paragraph (b)(8) of this section.
    (iv) Only those weeks during which the taxpayer is a full-time 
employee or during which he performs services as a self-employed 
individual on a full-time basis qualify as a week of work for purposes 
of the minimum period of employment condition of section 217(c)(2).
    (a) Whether an employee is a full-time employee during any 
particular week depends upon the customary practices of the occupation 
in the geographic area in which the taxpayer works. Where employment is 
on a seasonal basis, weeks occurring in the off-season when no work is 
required or available may be counted as weeks of full-time employment 
only if the employee's contract or agreement of employment covers the 
off-season period and such period is less than 6 months. Thus, for 
example, a schoolteacher whose employment contract covers a 12-month 
period and who teaches on a full-time basis for more than 6 months is 
considered a full-time employee during the entire 12-month period. A 
taxpayer will be treated as a full-time employee during any week of 
involuntary temporary absence from work because of illness, strikes, 
shutouts, layoffs, natural disasters, etc. A taxpayer will, also, be 
treated as a full-time employee during any week in which he voluntarily 
absents himself from work for leave or vacation provided for in his 
contract or agreement of employment.
    (b) Whether a taxpayer performs services as a self-employed 
individual on a full-time basis during any particular week depends on 
the practices

[[Page 482]]

of the trade or business in the geographic area in which the taxpayer 
works. For example, a self-employed dentist maintaining office hours 4 
days a week is considered to perform services as a self-employed 
individual on a full-time basis providing it is not unusual for other 
self-employed dentists in the geographic area in which the taxpayer 
works to maintain office hours only 4 days a week. Where a trade or 
business is seasonal, weeks occurring during the off-season when no work 
is required or available may be counted as weeks of performance of 
services on a full-time basis only if the off-season is less than 6 
months and the taxpayer performs services on a full-time basis both 
before and after the off-season. For example, a taxpayer who owns and 
operates a motel at a beach resort is considered to perform services as 
a self-employed individual on a full-time basis if the motel is closed 
for a period not exceeding 6 months during the off-season and if he 
performs services on a full-time basis as the operator of a motel both 
before and after the off-season. A taxpayer will be treated as 
performing services as a self-employed individual on a full-time basis 
during any week of involuntary temporary absence from work because of 
illness, strikes, natural disasters, etc.
    (v) Where taxpayers file a joint return, either spouse may satisfy 
the minimum period of employment condition. However, weeks worked by one 
spouse may not be added to weeks worked by the other spouse in order to 
satisfy such condition. The taxpayer seeking to satisfy the minimum 
period of employment condition must satisfy the condition applicable to 
him. Thus, if a taxpayer is subject to the 39-week condition and his 
spouse is subject to the 78-week condition and the taxpayer satisfies 
the 39-week condition, his spouse need not satisfy the 78-week 
condition. On the other hand, if the taxpayer does not satisfy the 39-
week condition, his spouse in such case must satisfy the 78-week 
condition.
    (vi) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. A is an electrician residing in New York City. He moves 
himself, his family, and his household goods and personal effects, at 
his own expense, to Denver where he commences employment with the M 
Aircraft Corporation. After working full-time for 30 weeks he 
voluntarily leaves his job, and he subsequently moves to and commences 
employment in Los Angeles, CA, which employment lasts for more than 39 
weeks. Since A was not employed in the general location of his new 
principal place of employment in Denver for at least 39 weeks, no 
deduction is allowable for moving expenses paid or incurred between New 
York City and Denver. A will be allowed to deduct only those moving 
expenses attributable to his move from Denver to Los Angeles, assuming 
all other conditions of section 217 are met.
    Example 2. Assume the same facts as in Example 1, except that A's 
wife commences employment in Denver at the same time as A, and that she 
continues to work in Denver for at least 9 weeks after A's departure for 
Los Angeles. Since she has met the 39-week requirement in Denver, and 
assuming all other requirements of section 217 are met, the moving 
expenses paid by A attributable to the move from New York City to Denver 
will be allowed as a deduction, provided A and his wife file a joint 
return. If A and his wife file separate returns moving expenses paid by 
A's wife attributable to the move from New York City to Denver will be 
allowed as a deduction on A's wife's return.
    Example 3. Assume the same facts as in Example 1, except that A's 
wife commences employment in Denver on the same day that A departs for 
Los Angeles, and continues to work in Denver for 9 weeks thereafter. 
Since neither A (who has worked 30 weeks) nor his wife (who has worked 9 
weeks) has independently satisfied the 39-week requirement, no deduction 
for moving expenses attributable to the move from New York City to 
Denver is allowable.

    (d) Rules for application of section 217(c)(2)--(1) Inapplicability 
of minimum period of employment condition in certain cases. Section 
217(d)(1) provides that the minimum period of employment condition of 
section 217(c)(2) does not apply in the case of a taxpayer who is unable 
to meet such condition by reason of:
    (i) Death or disability, or
    (ii) Involuntary separation (other than for willfull misconduct) 
from the service of an employer or separation by reason of transfer for 
the benefit of an employer after obtaining full-time employment in which 
the taxpayer could reasonably have been expected to satisfy such 
condition.

[[Page 483]]


For purposes of subdivision (i) of this paragraph disability shall be 
determined according to the rules in section 72(m)(7) and Sec. 1.72-
17(f). Subdivision (ii) of this subparagraph applies only where the 
taxpayer has obtained full-time employment in which he could reasonably 
have been expected to satisfy the minimum period of employment 
condition. A taxpayer could reasonably have been expected to satisfy the 
minimum period of employment condition if at the time he commences work 
at the new principal place of work he could have been expected, based 
upon the facts known to him at such time, to satisfy such condition. 
Thus, for example, if the taxpayer at the time of transfer was not 
advised by his employer that he planned to transfer him within 6 months 
to another principal place of work, the taxpayer could, in the absence 
of other factors, reasonably have been expected to satisfy the minimum 
employment period condition at the time of the first transfer. On the 
other hand, a taxpayer could not reasonably have been expected to 
satisfy the minimum employment condition if at the time of the 
commencement of the move he knew that his employer's retirement age 
policy would prevent his satisfying the minimum employment period 
condition.
    (2) Election of deduction before minimum period of employment 
condition is satisfied. (i) Paragraph (2) of section 217(d) provides a 
rule which applies where a taxpayer paid or incurred, in a taxable year, 
moving expenses which would be deductible in that taxable year except 
that the minimum period of employment condition of section 217(c)(2) has 
not been satisfied before the time prescribed by law for filing the 
return for such taxable year. The rule provides that where a taxpayer 
has paid or incurred moving expenses and as of the date prescribed by 
section 6072 for filing his return for such taxable year (determined 
with regard to extensions of time for filing) there remains unexpired a 
sufficient portion of the 12-month or the 24-month period so that it is 
still possible for the taxpayer to satisfy the applicable period of 
employment condition, the taxpayer may elect to claim a deduction for 
such moving expenses on the return for such taxable year. The election 
is exercised by taking the deduction on the return.
    (ii) Where a taxpayer does not elect to claim a deduction for moving 
expenses on the return for the taxable year in which such expenses were 
paid or incurred in accordance with subdivision (i) of this subparagraph 
and the applicable minimum period of employment condition of section 
217(c)(2) (as well as all other requirements of section 217) is 
subsequently satisfied, the taxpayer may file an amended return or a 
claim for refund for the taxable year such moving expenses were paid or 
incurred on which he may claim a deduction under section 217.
    (iii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. A is transferred by his employer from Boston, MA, to 
Cleveland, OH. He begins working there on November 1, 1970. Moving 
expenses are paid by A in 1970 in connection with this move. On April 
15, 1971, when he files his income tax return for the year 1970, A has 
been a full-time employee in Cleveland for approximately 24 weeks. 
Although he has not satisfied the 39-week employment condition at this 
time, A may elect to claim his 1970 moving expenses on his 1970 income 
tax return as there is still sufficient time remaining before November 
1, 1971, to satisfy such condition.
    Example 2. Assume the same facts as in Example 1, except that on 
April 15, 1971, A has voluntarily left his employer and is looking for 
other employment in Cleveland. A may not be sure he will be able to meet 
the 39-week employment condition by November 1, 1971. Thus, he may if he 
wishes wait until such condition is met and file an amended return 
claiming as a deduction the expenses paid in 1970. Instead of filing an 
amended return A may file a claim for refund based on a deduction for 
such expenses. If A fails to meet the 39-week employment condition on or 
before November 1, 1971, no deduction is allowable for such expenses.
    Example 3. B is a self-employed accountant. He moves from Rochester, 
NY, to New York, NY, and begins to work there on December 1, 1970. 
Moving expenses are paid by B in 1970 and 1971 in connection with this 
move. On April 15, 1971, when he files his income tax return for the 
year 1970, B has been performing services as a self-employed individual 
on a full-time basis in New York City for approximately 20 weeks. 
Although he has not satisfied the 78-week employment condition at this 
time, A may elect to claim his 1970 moving expenses on his 1970 income 
tax

[[Page 484]]

return as there is still sufficient time remaining before December 1, 
1972, to satisfy such condition. On April 15, 1972, when he files his 
income tax return for the year 1971, B has been performing services as a 
self-employed individual on a full-time basis in New York City for 
approximately 72 weeks. Although he has not met the 78-week employment 
condition at this time, B may elect to claim his 1971 moving expenses on 
his 1971 income tax return as there is still sufficient time remaining 
before December 1, 1972, to satisfy such requirement.

    (3) Recapture of deduction. Paragraph (3) of section 217(d) provides 
a rule which applies where a taxpayer has deducted moving expenses under 
the election provided in section 217(d)(2) prior to satisfying the 
applicable minimum period of employment condition and such condition 
cannot be satisfied at the close of a subsequent taxable year. In such 
cases an amount equal to the expenses deducted must be included in the 
taxpayer's gross income for the taxable year in which the taxpayer is no 
longer able to satisfy such minimum period of employment condition. 
Where the taxpayer has deducted moving expenses under the election 
provided in section 217(d)(2) for the taxable year and subsequently 
files an amended return for such year on which he does not claim the 
deduction, such expenses are not treated as having been deducted for 
purposes of the recapture rule of the preceding sentence.
    (e) Denial of double benefit--(1) In general. Section 217(e) 
provides a rule for computing the amount realized and the basis where 
qualified real estate expenses are allowed as a deduction under section 
217(a).
    (2) Sale or exchange of residence. Section 217(e) provides that the 
amount realized on the sale or exchange of a residence owned by the 
taxpayer, by the taxpayer's spouse, or by the taxpayer and his spouse 
and used by the taxpayer as his principal place of residence is not 
decreased by the amount of any expenses described in subparagraph (A) of 
section 217(b)(2) and deducted under section 217(a). For the purposes of 
section 217(e) and of this paragraph the term amount realized'' has the 
same meaning as under section 1001(b) and the regulations thereunder. 
Thus, for example, if the taxpayer sells a residence used as his 
principal place of residence and real estate commissions or similar 
expenses described in subparagraph (A) of section 217(b)(2) are deducted 
by him pursuant to section 217(a), the amount realized on the sale of 
the residence is not reduced by the amount of such real estate 
commissions or such similar expenses described in subparagraph (A) of 
section 217(b)(2).
    (3) Purchase of a residence. Section 217(e) provides that the basis 
of a residence purchased or received in exchange for other property by 
the taxpayer, by the taxpayer's spouse, or by the taxpayer and his 
spouse and used by the taxpayer as his principal place of residence is 
not increased by the amount of any expenses described in subparagraph 
(B) of section 217(b)(2) and deducted under section 217(a). For the 
purposes of section 217(e) and of this paragraph the term basis has the 
same meaning as under section 1011 and the regulations thereunder. Thus, 
for example, if a taxpayer purchases a residence to be used as his 
principal place of residence and attorneys' fees or similar expenses 
described in subparagraph (B) of section 217(b)(2) are deducted pursuant 
to section 217(a), the basis of such residence is not increased by the 
amount of such attorneys' fees or such similar expenses described in 
subparagraph (B) of section 217(b)(2).
    (4) Inapplicability of section 217(e). (i) Section 217(e) and 
subparagraphs (1) through (3) of this paragraph do not apply to any 
expenses with respect to which an amount is included in gross income 
under section 217(d)(3). Thus, the amount of any expenses described in 
subparagraph (A) of section 217(b)(2) deducted in the year paid or 
incurred pursuant to the election under section 217(d)(2) and 
subsequently recaptured pursuant to section 217(d)(3) may be taken into 
account in computing the amount realized on the sale or exchange of the 
residence described in such subparagraph. Also, the amount of expenses 
described in subparagraph (B) of section 217(b)(2) deducted in the year 
paid or incurred pursuant to such election under section 217(d)(2) and 
subsequently recaptured pursuant to section 217(d)(3) may be taken into 
account as an adjustment to the basis of

[[Page 485]]

the residence described in such subparagraph.
    (ii) The application of subdivision (i) of this subparagraph may be 
illustrated by the following examples:

    Example 1. A was notified of his transfer effective December 15, 
1972, from Seattle, WA, to Philadelphia, PA. In connection with the 
transfer A sold his house in Seattle on November 10, 1972. Expenses 
incident to the sale of the house of $2,500 were paid by A prior to or 
at the time of the closing of the contract of sale on December 10, 1972. 
The amount realized on the sale of the house was $47,500 and the 
adjusted basis of the house was $30,000. Pursuant to the election 
provided in section 217(d)(2), A deducted the expenses of moving from 
Seattle to Philadelphia including the expenses incident to the sale of 
his former residence in taxable year 1972. Dissatisfied with his 
position with his employer in Philadelphia, A took a position with an 
employer in Chicago, IL, on July 15, 1973. Since A was no longer able to 
satisfy the minimum period employment condition at the close of taxable 
year 1973 he included an amount equal to the amount deducted as moving 
expenses including the expenses incident to the sale of his former 
residence in gross income for taxable year 1973. A is permitted to 
decrease the amount realized on the sale of the house by the amount of 
the expenses incident to the sale of the house deducted from gross 
income and subsequently included in gross income. Thus, the amount 
realized on the sale of the house is decreased from $47,500 to $45,000 
and thus, the gain on the sale of the house is reduced from $17,500 to 
$15,000. A is allowed to file an amended return or a claim for refund in 
order to reflect the recomputation of the amount realized.
    Example 2. B, who is self-employed decided to move from Washington, 
DC, to Los Angeles, CA. In connection with the commencement of work in 
Los Angeles on March 1, 1973, B purchased a house in a suburb of Los 
Angeles for $65,000. Expenses incident to the purchase of the house in 
the amount of $1,500 were paid by B prior to or at the time of the 
closing of the contract of sale on September 15, 1973. Pursuant to the 
election provided in section 217(d)(2), B deducted the expenses of 
moving from Washington to Los Angeles including the expenses incident to 
the purchase of his new residence in taxable year 1973. Dissatisfied 
with his prospects in Los Angeles, B moved back to Washington on July 1, 
1974. Since B was no longer able to satisfy the minimum period of 
employment condition at the close of taxable year 1974 he included an 
amount equal to the amount deducted as moving expenses incident to the 
purchase of the former residence in gross income for taxable year 1974. 
B is permitted to increase the basis of the house by the amount of the 
expenses incident to the purchase of the house deducted from gross 
income and subsequently included in gross income. Thus, the basis of the 
house is increased to $66,500.

    (f) Rules for self-employed individuals--(1) Definition. Section 
217(f)(1) defines the term self-employed individual for purposes of 
section 217 to mean an individual who performs personal services either 
as the owner of the entire interest in an unincorporated trade or 
business or as a partner in a partnership carrying on a trade or 
business. The term self-employed individual does not include the 
semiretired, part-time students, or other similarly situated taxpayers 
who work only a few hours each week. The application of this 
subparagraph may be illustrated by the following example:

    Example. A is the owner of the entire interest in an unincorporated 
construction business. A hires a manager who performs all of the daily 
functions of the business including the negotiation of contracts with 
customers, the hiring and firing of employees, the purchasing of 
materials used on the projects, and other similar services. A and his 
manager discuss the operations of the business about once a week over 
the telephone. Otherwise A does not perform any managerial services for 
the business. For the purposes of section 217, A is not considered to be 
a self-employed individual.

    (2) Rule for application of subsection (b)(1) (C) and (D). Section 
217(f)(2) provides that for purposes of subparagraphs (C) and (D) of 
section 217(b)(1) an individual who commences work at a new principal 
place of work as a self-employed individual is treated as having 
obtained employment when he has made substantial arrangements to 
commence such work. Whether the taxpayer has made substantial 
arrangements to commence work at a new principal place of work is 
determined on the basis of all the facts and circumstances in each case. 
The factors to be considered in this determination depend upon the 
nature of the taxpayer's trade or business and include such 
considerations as whether the taxpayer has: (i) Leased or purchased a 
plant, office, shop, store, equipment, or other property to be used in 
the trade or business, (ii) made arrangements to purchase inventory or 
supplies to be used in connection with the operation

[[Page 486]]

of the trade or business, (iii) entered into commitments with 
individuals to be employed in the trade or business, and (iv) made 
arrangements to contact customers or clients in order to advertise the 
business in the general location of the new principal place of work. The 
application of this subparagraph may be illustrated by the following 
examples:

    Example 1. A, a partner in a growing chain of drug stores decided to 
move from Houston, TX, to Dallas, TX, in order to open a drug store in 
Dallas. A made several trips to Dallas for the purpose of looking for a 
site for the drug store. After the signing of a lease on a building in a 
shopping plaza, suppliers were contacted, equipment was purchased, and 
employees were hired. Shortly before the opening of the store A and his 
wife moved from Houston to Dallas and took up temporary quarters in a 
motel until the time their apartment was available. By the time he and 
his wife took up temporary quarters in the motel A was considered to 
have made substantial arrangements to commence work at the new principal 
place of work.
    Example 2. B, who is a partner in a securities brokerage firm in New 
York, NY, decided to move to Rochester, NY, to become the resident 
partner in the firm's new Rochester office. After a lease was signed on 
an office in downtown Rochester B moved to Rochester and took up 
temporary quarters in a motel until his apartment became available. 
Before the opening of the office B supervised the decoration of the 
office, the purchase of equipment and supplies necessary for the 
operation of the office, the hiring of personnel for the office, as well 
as other similar activities. By the time B took up temporary quarters in 
the motel he was considered to have made substantial arrangements to 
commence to work at the new principal place of work.
    Example 3. C, who is about to complete his residency in 
ophthalmology at a hospital in Pittsburgh, PA, decided to fly to 
Philadelphia, PA, for the purpose of looking into opportunities for 
practicing in that city. Following his arrival in Philadelphia C decided 
to establish his practice in that city. He leased an office and an 
apartment. At the time he departed Pittsburgh for Philadelphia C was not 
considered to have made substantial arrangements to commence work at the 
new principal place of work, and, therefore, is not allowed to deduct 
expenses described in subparagraph (C) of section 217(b)(1) (relating to 
expenses of traveling (including meals and lodging), after obtaining 
employment, from the former residence to the general location of the new 
principal place of work and return, for the principal purpose of 
searching for a new residence).

    (g) Rules for members of the Armed Forces of the United States--(1) 
In general. The rules in paragraphs (a)(1) and (2), (b), and (e) of this 
section apply to moving expenses paid or incurred by members of the 
Armed Forces of the United States on active duty who move pursuant to a 
military order and incident to a permament change of station, except as 
provided in this paragraph (g). However, if the moving expenses are not 
paid or incurred incident to a permanent change of station, this 
paragraph (g) does not apply, but all other paragraphs of this section 
do apply. The provisions of this paragraph apply to taxable years 
beginning December 31, 1975.
    (2) Treatment of services or reimbursement provided by Government--
(i) Services in kind. The value of any moving or storage services 
furnished by the United States Government to members of the Armed 
Forces, their spouses, or their dependents in connection with a 
permanent change of station is not includible in gross income. The 
Secretary of Defense and (in cases involving members of the peacetime 
Coast Guard) the Secretary of Transportation are not required to report 
or withhold taxes with respect to those services. Services furnished by 
the Government include services rendered directly by the Government or 
rendered by a third party who is compensated directly by the Government 
for the services.
    (ii) Reimbursements. The following rules apply to reimbursements or 
allowances by the Government to members of the Armed Forces, their 
spouses, or their dependents for moving or storage expenses paid or 
incurred by them in connection with a permanent change of station. If 
the reimbursement or allowance exceeds the actual expenses paid or 
incurred, the excess is includible in the gross income of the member, 
and the Secretary of Defense or Secretary of Transportation must report 
the excess as payment of wages and withhold income taxes under section 
3402 and the employee taxes under section 3102 with respect to that 
excess. If the reimbursemet or allowance does not exceed the actual 
expenses, the reimbursement or allowance in not

[[Page 487]]

includible in gross income, and no reporting or withholding by the 
Secretary of Defense or Secretary of Transportation is required. If the 
actual expenses, as limited by paragraph (b)(9) of this section, exceed 
the reimbursement of allowance, the member may deduct the excess if the 
other requirements of this section, as modified by this paragraph, are 
met. The determination of the limitation on actual expenses under 
paragraph (b)(9) of this section is made without regard to any services 
in kind furnished by the Government.
    (3) Permanent change of station. For purposes of this section, the 
term permanent change of station includes the following situations.
    (i) A move from home to the first post of duty when appointed, 
reappointed, reinstated, or inducted.
    (ii) A move from the last post of duty to home or a nearer point in 
the United States in connection with retirement, discharge, resignation, 
separation under honorable conditions, transfer, relief from active 
duty, temporary disability retirement, or transfer to a Fleet Reserve, 
if such move occurs within 1 year of such termination of active duty or 
within the period prescribed by the Joint Travel Regulations promulgated 
under the authority contained in sections 404 through 411 of title 37 of 
the United States Code.
    (iii) A move from one permanent post of duty to another permanent 
post of duty at a different duty station, even if the member separates 
from the Armed Forces immediately or shortly after the move.

The term permanent, post of duty, duty station, and honorable have the 
meanings given them in appropriate Department of Defense or Department 
of Transportation rules and regulations.
    (4) Storage expenses. This paragraph applies to storage expenses as 
well as to moving expenses described in paragraph (b)(1) of this 
section. the term storage expenses means the cost of storing personal 
effects of members of the Armed Forces, their spouses, and their 
dependents.
    (5) Moves of spouses and dependents. (i) The following special rule 
applies for purposes of paragraphs (b)(9) and (10) of this section, if 
the spouse or dependents of a member of the Armed Forces move to or from 
a different location than does the member. In this case, the spouse is 
considered to have commenced work as an employee at a new principal 
place of work that is within the same general location as the location 
to which the member moves.
    (ii) The following special rule applies for purposes of this 
paragraph to moves by spouses or dependents of members of the Armed 
Forces who die, are imprisoned, or desert while on active duty. In these 
cases, a move to a member's place of enlistment or induction or the 
member's, spouse's, or dependent's home of record or nearer point in the 
United States is considered incident to a permanent change of station.
    (6) Disallowance of deduction. No deduction is allowed under this 
section for any moving or storage expense reimbursed by an allowance 
that is excluded from gross income.
    (h) Special rules for foreign moves--(1) Increase in limitations. In 
the case of a foreign move (as defined in paragraph (h)(3) of this 
section), paragraph (b)(6) of this section shall be applied by 
substituting ``90 consecutive'' for ``30 consecutive'' each time it 
appears. Paragraph (b)(9) (ii), (iii) and (v) of this section shall be 
applied by substituting ``$6,000'' for ``$3,000'' each time it appears 
and by substituting ``$4,500'' for ``$1,500'' each time it appears. 
Paragraph (b)(9)(ii) of this section shall be applied by substituting 
``$5,000'' for ``$2,000'' each time it appears and by substituting 
``1979'' for ``1977'' and ``1980'' for ``1978'' each time they appear in 
the last sentence. Paragraph (b)(9)(v) of this section shall be applied 
by substituting ``$2,250'' for ``$750'' each time it appears. Paragraph 
(b)(9)(vi) of this section does not apply.
    (2) Allowance of certain storage fees. In the case of a foreign 
move, for purposes of this section, the moving expenses described in 
paragraph (b)(3) of this section shall include the reasonable expenses 
of moving household goods and personal effects to and from storage, and 
of storing such goods and effects for part or all of the period during 
which the new place of work continues to be the taxpayer's principal 
place of work.

[[Page 488]]

    (3) Foreign move. For purposes of this paragraph, the term foreign 
move means a move in connection with the commencement of work by the 
taxpayer at a new principal place of work located outside the United 
States. Thus, a move from the United States to a foreign country or from 
one foreign country to another foreign country qualifies as a foreign 
move. A move within a foreign country also qualifies as a foreign move. 
A move from a foreign country to the United States does not qualify as a 
foreign move.
    (4) United States. For purposes of this paragraph, the term United 
States includes the possessions of the United States.
    (5) Effective date. The provisions of this paragraph apply to 
expenses paid or incurred in taxable years beginning after December 31, 
1978. The paragraph also applies to the expenses paid or incurred in the 
taxable year beginning during 1978 of taxpayers who do not make an 
election pursuant to section 209(c) of the Foreign Earned Income Act of 
1978 (Pub. L. 95-615, 92 Stat. 3109) to have section 911 under prior law 
apply to that taxable year.
    (i) Allowance of deductions in case of retirees or decedents who 
were working abroad--(1) In general. In the case of any qualified 
retiree moving expenses or qualified survivor moving expenses, this 
section (other than paragraph (h)) shall be applied to such expenses as 
if they were incurred in connection with the commencement of work by the 
taxpayer as an employee at a new principal place of work located within 
the United States and the limitations of paragraph (c)(4) of this 
section (relating to the minimum period of employment) shall not apply.
    (2) Qualified retiree moving expenses. For purposes of this 
paragraph, the term qualified retiree moving expenses means any moving 
expenses which are incurred by an individual whose former principal 
place of work and former residence were outside the United States and 
which are incurred for a move to a new residence in the United States in 
connection with the bona fide retirement of the individual. Bona fide 
retirement means the permanent withdrawal from gainful full-time 
employment and self-employment. An individual who at the time of 
withdrawal from gainful full-time employment or self-employment, intends 
the withdrawal to be permanent shall be considered to be a bona fide 
retiree even though the individual ultimately resumes gainful full-time 
employment or self-employment. An individual's intention may be 
evidenced by relevant facts and circumstances which include the age and 
health of the individual, the customary retirement age of employees 
engaged in similar work, whether the individual is receiving a 
retirement allowance under a pension annuity, retirement or similar fund 
or system, and the length of time before resuming full-time employment 
or self-employment.
    (3) Qualified survivor moving expenses. (i) For purposes of this 
paragraph, the term qualified survivor moving expenses means any moving 
expenses:
    (A) Which are paid or incurred by the spouse or any dependent (as 
defined in section 152) of any decedent who (as of the time of his 
death) had a principal place of work outside the United States, and
    (B) Which are incurred for a move which begins within 6 months after 
the death of the decedent and which is to a residence in the United 
States from a former residence outside the United States which (as of 
the time of the decedent's death) was the residence of such decedent and 
the individual paying or incurring the expense.
    (ii) For purposes of paragraph (i)(3) (i) (B) of this section, a 
move begins when:
    (A) The taxpayer contracts for the moving of his or her household 
goods and personal effects to a residence in the United States but only 
if the move is completed within a reasonable time thereafter;
    (B) The taxpayer's household goods and personal effects are packed 
and in transit to a residence in the United States; or
    (C) The taxpayer leaves the former residence to travel to a new 
place of residence in the United States.
    (4) United States. For purposes of this paragraph, the term United 
States includes the possessions of the United States.
    (5) Effective date. The provisions of this paragraph apply to 
expenses paid

[[Page 489]]

or incurred in taxable years beginning after December 31, 1978. The 
paragraph also applies to the expenses paid or incurred in the taxable 
year beginning during 1978 of taxpayers who do not make an election 
pursuant to section 209(c) of the Foreign Earned Income Act of 1978 
(Pub. L. 95-615, 92 Stat. 3109) to have section 911 under prior law 
apply to that taxable year.
    (j) Effective date--(1) In general. This section, except as provided 
in subparagraphs (2) and (3) of this paragraph, is applicable to items 
paid or incurred in taxable years beginning after December 31, 1969.
    (2) Reimbursement not included in gross income. This section does 
not apply to items to the extent that the taxpayer received or accrued 
in a taxable year beginning before January 1, 1970, a reimbursement or 
other expense allowance for such items which was not included in his 
gross income.
    (3) Election in cases of expenses paid or incurred before January 1, 
1971, in connection with certain moves--(i) In general. A taxpayer who 
was notified by his employer on or before December 19, 1969, of a 
transfer to a new principal place of work and who pays or incurs moving 
expenses after December 31, 1969, but before January 1, 1971, in 
connection with such transfer may elect to have the rules governing 
moving expenses in effect prior to the effective date of section 231 of 
the Tax Reform Act of 1969 (83 Stat. 577) govern such expenses. If such 
election is made, this section and section 82 and the regulations 
thereunder do not apply to such expenses. A taxpayer is considered to 
have been notified on or before December 19, 1969, by his employer of a 
transfer, for example, if before such date the employer has sent a 
notice to all employees or a reasonably defined group of employees, 
which includes such taxpayer, of a relocation of the operations of such 
employer from one plant or facility to another plant or facility. An 
employee who is transferred to a new principal place of work for the 
benefit of his employer and who makes an election under this paragraph 
is permitted to exclude amounts received or accrued, directly or 
indirectly, as payment for or reimbursement of expenses of moving 
household goods and personal effects from the former residence to the 
new residence and of traveling (including meals and lodging) from the 
former residence to the new place of residence. Such exclusion is 
limited to amounts received or accrued, directly or indirectly, as a 
payment for or reimbursement of the expenses described above. Amounts in 
excess of actual expenses paid or incurred must be included in gross 
income. No deduction is allowable under section 217 for expenses 
representing amounts excluded from gross income. Also, an employee who 
is transferred to a new principal place of work which is less than 50 
miles but at least 20 miles farther from his former residence than was 
his former principal place of work and who is not reimbursed, either 
directly or indirectly, for the expenses described above is permitted to 
deduct such expenses providing all of the requirements of section 217 
and the regulations thereunder prior to the effective date of section 
231 of the Tax Reform Act of 1969 (83 Stat. 577) are satisfied.
    (ii) Election made before the date of publication of this notice as 
a Treasury decision. An election under this subparagraph made before the 
date of publication of this notice as a Treasury decision shall be made 
pursuant to the procedure prescribed in temporary income tax regulations 
relating to treatment of payments of expenses of moving from one 
residence to another residence (Part 13 of this chapter) T.D. 7032 (35 
FR 4330), approved Mar. 11, 1970.
    (iii) Election made on or after the date of publication of this 
notice as a Treasury decision. An election made under this subparagraph 
on or after the date of publication of this notice as a Treasury 
decision shall be made not later than the time, including extensions 
thereof, prescribed by law for filing the income tax return for the year 
in which the expenses were paid or 30 days after the date of publication 
of this notice as a Treasury decision, whichever occurs last. The 
election shall be made by a statement attached to the return (or the 
amended return) for the taxable year, setting forth the following 
information:
    (a) The items to which the election relates;
    (b) The amount of each item;

[[Page 490]]

    (c) The date each item was paid or incurred; and
    (d) The date the taxpayer was informed by his employer of his 
transfer to the new principal place of work.
    (iv) Revocation of election. An election made in accordance with 
this subparagraph is revocable upon the filing by the taxpayer of an 
amended return or a claim for refund with the district director, or the 
director of the Internal Revenue service center with whom the election 
was filed not later than the time prescribed by law, including 
extensions thereof, for the filing of a claim for refund with respect to 
the items to which the election relates.

[T.D. 7195, 37 FR 13535, July 11, 1972, 37 FR 14230, July 18, 1972 as 
amended by T.D. 7578 43 FR 59355, Dec. 20, 1978; T.D. 7605, 44 FR 18970, 
Mar. 30, 1979; T.D. 7689, 45 FR 20796, Mar. 31, 1980; T.D. 7810, 47 FR 
6003, Feb. 10, 1982; T.D. 8607, 60 FR 40077, Aug. 7, 1995]



Sec. 1.219-1  Deduction for retirement savings.

    (a) In general. Subject to the limitations and restrictions of 
paragraph (b) and the special rules of paragraph (c)(3) of this section, 
there shall be allowed a deduction under section 62 from gross income of 
amounts paid for the taxable year of an individual on behalf of such 
individual to an individual retirement account described in section 
408(a), for an individual retirement annuity described in section 
408(b), or for a retirement bond described in section 409. The deduction 
described in the preceding sentence shall be allowed only to the 
individual on whose behalf such individual retirement account, 
individual retirement annuity, or retirement bond is maintained. The 
first sentence of this paragraph shall apply only in the case of a 
contribution of cash. A contribution of property other than cash is not 
allowable as a deduction under this section. In the case of a retirement 
bond, a deduction will not be allowed if the bond is redeemed within 12 
months of its issue date.
    (b) Limitations and restrictions--(1) Maximum deduction. The amount 
allowable as a deduction under section 219(a) to an individual for any 
taxable year cannot exceed an amount equal to 15 percent of the 
compensation includible in the gross income of the individual for such 
taxable year, or $1,500, whichever is less.
    (2) Restrictions--(i) Individuals covered by certain other plans. No 
deduction is allowable under section 219(a) to an individual for the 
taxable year if for any part of such year:
    (A) He was an active participant in:
    (1) A plan described in section 401(a) which includes a trust exempt 
from tax under section 501(a),
    (2) An annuity plan described in section 403(a),
    (3) A qualified bond purchase plan described in section 405(a), or
    (4) A retirement plan established for its employees by the United 
States, by a State or political subdivision thereof, or by an agency or 
instrumentality of any of the foregoing, or
    (B) Amounts were contributed by his employer for an annuity contract 
described in section 403(b) (whether or not the individual's rights in 
such contract are nonforfeitable).
    (ii) Contributions after age 70\1/2\. No deduction is allowable 
under section 219 (a) to an individual for the taxable year of the 
individual, if he has attained the age of 70\1/2\ before the close of 
such taxable year.
    (iii) Rollover contributions. No deduction is allowable under 
section 219 for any taxable year of an individual with respect to a 
rollover contribution described in section 402(a)(5), 402(a)(7), 
403(a)(4), 403(b)(8), 408(d)(3), or 409(b)(3)(C).
    (3) Amounts contributed under endowment contracts. (i) For any 
taxable year, no deduction is allowable under section 219(a) for amounts 
paid under an endowment contract described in Sec. 1.408-3(e) which is 
allocable under subdivision (ii) of this subparagraph to the cost of 
life insurance.
    (ii) For any taxable year, the cost of current life insurance 
protection under an endowment contract described in paragraph (b)(3)(i) 
of this section is the product of the net premium cost, as determined by 
the Commissioner, and the excess, if any, of the death benefit payable 
under the contract during the policy year beginning in the taxable year 
over the cash value of the contract at the end of such policy year.

[[Page 491]]

    (iii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. A, an individual who is otherwise entitled to the maximum 
deduction allowed under section 219, purchases, at age 20, an endowment 
contract described in Sec. 1.408-3(e) which provides for the payment of 
an annuity of $100 per month, at age 65, with a minimum death benefit of 
$10,000, and an annual premium of $220. The cash value at the end of the 
first policy year is 0. The net premium cost, as determined by the 
Commissioner, for A's age is $1.61 per thousand dollars of life 
insurance protection. The cost of current life insurance protection is 
$16.10 ($1.61 x 10). A's maximum deduction under section 219 with 
respect to amounts paid under the endowment contract for the taxable 
year in which the first policy year begins is $203.90 ($220 - $16.10).
    Example 2. Assume the same facts as in Example 1, except that the 
cash value at the end of the second policy year is $200 and the net 
premium cost is $1.67 per thousand for A's age. The cost of current life 
insurance protection is $16.37 ($1.67 x 9.8). A's maximum deduction 
under section 219 with respect to amounts paid under the endowment 
contract for the taxable year in which the second policy year begins is 
$203.63 ($220 - $16.37).

    (c) Definitions and special rules--(1) Compensation. For purposes of 
this section, the term compensation means wages, salaries, professional 
fees, or other amounts derived from or received for personal service 
actually rendered (including, but not limited to, commissions paid 
salesmen, compensation for services on the basis of a percentage of 
profits, commissions on insurance premiums, tips, and bonuses) and 
includes earned income, as defined in section 401 (c) (2), but does not 
include amounts derived from or received as earnings or profits from 
property (including, but not limited to, interest and dividends) or 
amounts not includible in gross income.
    (2) Active participant. For the definition of active participant, 
see Sec. 1.219-2.
    (3) Special rules. (i) The maximum deduction allowable under section 
219(b)(1) is computed separately for each individual. Thus, if a husband 
and wife each has compensation of $10,000 for the taxable year and they 
are each otherwise eligible to contribute to an individual retirement 
account and they file a joint return, then the maximum amount allowable 
as a deduction under section 219 is $3,000, the sum of the individual 
maximums of $1,500. However, if, for example, the husband has 
compensation of $20,000, the wife has no compensation, each is otherwise 
eligible to contribute to an individual retirement account for the 
taxable year, and they file a joint return, the maximum amount allowable 
as a deduction under section 219 is $1,500.
    (ii) Section 219 is to be applied without regard to any community 
property laws. Thus, if, for example, a husband and wife, who are 
otherwise eligible to contribute to an individual retirement account, 
live in a community property jurisdiction and the husband alone has 
compensation of $20,000 for the taxable year, then the maximum amount 
allowable as a deduction under section 219 is $1,500.
    (4) Employer contributions. For purposes of this chapter, any amount 
paid by an employer to an individual retirement account or for an 
individual retirement annuity or retirement bond constitutes the payment 
of compensation to the employee (other than a self-employed individual 
who is an employee within the meaning of section 401(c)(1)) includible 
in his gross income, whether or not a deduction for such payment is 
allowable under section 219 to such employee after the application of 
section 219(b). Thus, an employer will be entitled to a deduction for 
compensation paid to an employee for amounts the employer contributes on 
the employee's behalf to an individual retirement account, for an 
individual retirement annuity, or for a retirement bond if such 
deduction is otherwise allowable under section 162.

[T.D. 7714, 45 FR 52788, Aug. 8, 1980]



Sec. 1.219-2  Definition of active participant.

    (a) In general. This section defines the term active participant for 
individuals who participate in retirement plans described in section 
219(b)(2). Any individual who is an active participant in such a plan is 
not allowed a deduction under section 219(a) for contributions to an 
individual retirement account.
    (b) Defined benefit plans--(1) In general. Except as provided in 
subparagraphs (2), (3) and (4) of this paragraph,

[[Page 492]]

an individual is an active participant in a defined benefit plan if for 
any portion of the plan year ending with or within such individual's 
taxable year he is not excluded under the eligibility provisions of the 
plan. An individual is not an active participant in a particular taxable 
year merely because the individual meets the plan's eligibility 
requirements during a plan year beginning in that particular taxable 
year but ending in a later taxable year of the individual. However, for 
purposes of this section, an individual is deemed not to satisfy the 
eligibility provisions for a particular plan year if his compensation is 
less than the minimum amount of compensation needed under the plan to 
accrue a benefit. For example, assume a plan is integrated with Social 
Security and only those individuals whose compensation exceeds a certain 
amount accrue benefits under the plan. An individual whose compensation 
for the plan year ending with or within his taxable year is less than 
the amount necessary under the plan to accrue a benefit is not an active 
participant in such plan.
    (2) Rules for plans maintained by more than one employer. In the 
case of a defined benefit plan described in section 413(a) and funded at 
least in part by service-related contributions, e.g., so many cents-per-
hour, an individual is an active participant if an employer is 
contributing or is required to contribute to the plan an amount based on 
that individual's service taken into account for the plan year ending 
with or within the individual's taxable year. The general rule in 
paragraph (b)(1) of this section applies in the case of plans described 
in section 413(a) and funded only on some non-service-related unit, 
e.g., so many cents-per-ton of coal.
    (3) Plans in which accruals for all participants have ceased. In the 
case of a defined benefit plan in which accruals for all participants 
have ceased, an individual in such a plan is not an active participant. 
However, any benefit that may vary with future compensation of an 
individual provides additional accruals. For example, a plan in which 
future benefit accruals have ceased, but the actual benefit depends upon 
final average compensation will not be considered as one in which 
accruals have ceased.
    (4) No accruals after specified age. An individual in a defined 
benefit plan who accrues no additional benefits in a plan year ending 
with or within such individual's taxable year by reason of attaining a 
specified age is not an active participant by reason of his 
participation in that plan.
    (c) Money purchase plan. An individual is an active participant in a 
money purchase plan if under the terms of the plan employer 
contributions must be allocated to the individual's account with respect 
to the plan year ending with or within the individual's taxable year. 
This rule applies even if an individual is not employed at any time 
during the individual's taxable year.
    (d) Profit-sharing and stock-bonus plans--(1) In general. This 
paragraph applies to profit-sharing and stock bonus plans. An individual 
is an active participant in such plans in a taxable year if a forfeiture 
is allocated to his account as of a date in such taxable year. An 
individual is also an active participant in a taxable year in such plans 
if an employer contribution is added to the participant's account in 
such taxable year. A contribution is added to a participant's account as 
of the later of the following two dates: the date the contribution is 
made or the date as of which it is allocated. Thus, if a contribution is 
made in an individual's taxable year 2 and allocated as of a date in 
individual's taxable year 1, the later of the relevant dates is the date 
the contribution is made. Consequently, the individual is an active 
participant in year 2 but not in year 1 as a result of that 
contribution.
    (2) Special rule. An individual is not an active participant for a 
particular taxable year by reason of a contribution made in such year 
allocated to a previous year if such individual was an active 
participant in such previous year by reason of a prior contribution that 
was allocated as of a date in such previous year.
    (e) Employee contributions. If an employee makes a voluntary or 
mandatory contribution to a plan described in

[[Page 493]]

paragraphs (b), (c), or (d) of this section, such employee is an active 
participant in the plan for the taxable year in which such contribution 
is made.
    (f) Certain individuals not active participants. For purposes of 
this section, an individual is not an active participant under a plan 
for any taxable year of such individual for which such individual 
elects, pursuant to the plan, not to participate in such plan.
    (g) Retirement savings for married individuals. The provisions of 
this section apply in determining whether an individual or his spouse is 
an active participant in a plan for purposes of section 220 (relating to 
retirement savings for certain married individuals).
    (h) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. The X Corporation maintains a defined benefit plan which 
has the following rules on participation and accrual of benefits. Each 
employee who has attained the age of 25 or has completed one year of 
service is a participant in the plan. The plan further provides that 
each participant shall receive upon retirement $12 per month for each 
year of service in which the employee completes 1,000 hours of service. 
The plan year is the calendar year. B, a calendar-year taxpayer, enters 
the plan on January 2, 1980, when he is 27 years of age. Since B has 
attained the age of 25, he is a participant in the plan. However, B 
completes less than 1,000 hours of service in 1980 and 1981. Although B 
is not accruing any benefits under the plan in 1980 and 1981, he is an 
active participant under section 219(b)(2) because he is a participant 
in the plan. Thus, B cannot make deductible contributions to an 
individual retirement arrangement for his taxable years of 1980 and 
1981.
    Example 2. The Y Corporation maintains a profit-sharing plan for its 
employees. The plan year of the plan is the calendar year. C is a 
calendar-year taxpayer and a participant in the plan. On June 30, 1980, 
the employer makes a contribution for 1980 which as allocated on July 
31, 1980. In 1981 the employer makes a second contribution for 1980, 
allocated as of December 31, 1980. Under the general rule stated in 
Sec. 1.219-2(d)(1), C is an active participant in 1980. Under the 
special rule stated in Sec. 1.219-2(d)(2), however, C is not an active 
participant in 1981 by reason of that contribution made in 1981.

    (i) Effective date. The provisions set forth in this section are 
effective for taxable years beginning after December 31, 1978.

[T.D. 7714, 45 FR 52789, Aug. 8, 1980]



Sec. 1.221-1  Deduction for interest paid on qualified education 
loans after December 31, 2001.

    (a) In general--(1) Applicability. Under section 221, an individual 
taxpayer may deduct from gross income certain interest paid by the 
taxpayer during the taxable year on a qualified education loan. See 
paragraph (b)(4) of this section for rules on payments of interest by 
third parties. The rules of this section are applicable to periods 
governed by section 221 as amended in 2001, which relates to deductions 
for interest paid on qualified education loans after December 31, 2001, 
in taxable years ending after December 31, 2001, and on or before 
December 31, 2010. For rules applicable to interest due and paid on 
qualified education loans after January 21, 1999, if paid before January 
1, 2002, see Sec. 1.221-2. Taxpayers also may apply Sec. 1.221-2 to 
interest due and paid on qualified education loans after December 31, 
1997, but before January 21, 1999. To the extent that the effective date 
limitation (sunset) of the 2001 amendment remains in force unchanged, 
section 221 before amendment in 2001, to which Sec. 1.221-2 relates, 
also applies to interest due and paid on qualified education loans in 
taxable years beginning after December 31, 2010.
    (2) Example. The following example illustrates the rules of this 
paragraph (a). In the example, assume that the institution the student 
attends is an eligible educational institution, the loan is a qualified 
education loan, the student is legally obligated to make interest 
payments under the terms of the loan, and any other applicable 
requirements, if not otherwise specified, are fulfilled. The example is 
as follows:

    Example. Effective dates. Student A begins to make monthly interest 
payments on her loan beginning January 1, 1997. Student A continues to 
make interest payments in a timely fashion. However, under the effective 
date provisions of section 221, no deduction is allowed for interest 
Student A pays prior to January 1, 1998. Student A may deduct interest 
due and paid on the loan after December 31, 1997. Student A may apply 
the rules of Sec. 1.221-2 to interest due and paid during the period 
beginning January 1, 1998, and ending

[[Page 494]]

January 20, 1999. Interest due and paid during the period January 21, 
1999, and ending December 31, 2001, is deductible under the rules of 
Sec. 1.221-2, and interest paid after December 31, 2001, is deductible 
under the rules of this section.

    (b) Eligibility--(1) Taxpayer must have a legal obligation to make 
interest payments. A taxpayer is entitled to a deduction under section 
221 only if the taxpayer has a legal obligation to make interest 
payments under the terms of the qualified education loan.
    (2) Claimed dependents not eligible--(i) In general. An individual 
is not entitled to a deduction under section 221 for a taxable year if 
the individual is a dependent (as defined in section 152) for whom 
another taxpayer is allowed a deduction under section 151 on a Federal 
income tax return for the same taxable year (or, in the case of a fiscal 
year taxpayer, the taxable year beginning in the same calendar year as 
the individual's taxable year).
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (b)(2):

    Example 1. Student not claimed as dependent. Student B pays $750 of 
interest on qualified education loans during 2003. Student B's parents 
are not allowed a deduction for her as a dependent for 2003. Assuming 
fulfillment of all other relevant requirements, Student B may deduct 
under section 221 the $750 of interest paid in 2003.
    Example 2. Student claimed as dependent. Student C pays $750 of 
interest on qualified education loans during 2003. Only Student C has 
the legal obligation to make the payments. Student C's parent claims him 
as a dependent and is allowed a deduction under section 151 with respect 
to Student C in computing the parent's 2003 Federal income tax. Student 
C is not entitled to a deduction under section 221 for the $750 of 
interest paid in 2003. Because Student C's parent was not legally 
obligated to make the payments, Student C's parent also is not entitled 
to a deduction for the interest.

    (3) Married taxpayers. If a taxpayer is married as of the close of a 
taxable year, he or she is entitled to a deduction under this section 
only if the taxpayer and the taxpayer's spouse file a joint return for 
that taxable year.
    (4) Payments of interest by a third party--(i) In general. If a 
third party who is not legally obligated to make a payment of interest 
on a qualified education loan makes a payment of interest on behalf of a 
taxpayer who is legally obligated to make the payment, then the taxpayer 
is treated as receiving the payment from the third party and, in turn, 
paying the interest.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (b)(4):

    Example 1. Payment by employer. Student D obtains a qualified 
education loan to attend college. Upon Student D's graduation from 
college, Student D works as an intern for a non-profit organization 
during which time Student D's loan is in deferment and Student D makes 
no interest payments. As part of the internship program, the non-profit 
organization makes an interest payment on behalf of Student D after the 
deferment period. This payment is not excluded from Student D's income 
under section 108(f) and is treated as additional compensation 
includible in Student D's gross income. Assuming fulfillment of all 
other requirements of section 221, Student D may deduct this payment of 
interest for Federal income tax purposes.
    Example 2. Payment by parent. Student E obtains a qualified 
education loan to attend college. Upon graduation from college, Student 
E makes legally required monthly payments of principal and interest. 
Student E's mother makes a required monthly payment of interest as a 
gift to Student E. A deduction for Student E as a dependent is not 
allowed on another taxpayer's tax return for that taxable year. Assuming 
fulfillment of all other requirements of section 221, Student E may 
deduct this payment of interest for Federal income tax purposes.

    (c) Maximum deduction. The amount allowed as a deduction under 
section 221 for any taxable year may not exceed $2,500.
    (d) Limitation based on modified adjusted gross income--(1) In 
general. The deduction allowed under section 221 is phased out ratably 
for taxpayers with modified adjusted gross income between $50,000 and 
$65,000 ($100,000 and $130,000 for married individuals who file a joint 
return). Section 221 does not allow a deduction for taxpayers with 
modified adjusted gross income of $65,000 or above ($130,000 or above 
for married individuals who file a joint return). See paragraph (d)(3) 
of this section for inflation adjustment of amounts in this paragraph 
(d)(1).
    (2) Modified adjusted gross income defined. The term modified 
adjusted gross income means the adjusted gross income (as defined in 
section 62) of the taxpayer for the taxable year increased

[[Page 495]]

by any amount excluded from gross income under section 911, 931, or 933 
(relating to income earned abroad or from certain United States 
possessions or Puerto Rico). Modified adjusted gross income must be 
determined under this section after taking into account the inclusions, 
exclusions, deductions, and limitations provided by sections 86 (social 
security and tier 1 railroad retirement benefits), 135 (redemption of 
qualified United States savings bonds), 137 (adoption assistance 
programs), 219 (deductible qualified retirement contributions), and 469 
(limitation on passive activity losses and credits), but before taking 
into account the deductions provided by sections 221 and 222 (qualified 
tuition and related expenses).
    (3) Inflation adjustment. For taxable years beginning after 2002, 
the amounts in paragraph (d)(1) of this section will be increased for 
inflation occurring after 2001 in accordance with section 221(f)(1). If 
any amount adjusted under section 221(f)(1) is not a multiple of $5,000, 
the amount will be rounded to the next lowest multiple of $5,000.
    (e) Definitions--(1) Eligible educational institution. In general, 
an eligible educational institution means any college, university, 
vocational school, or other postsecondary educational institution 
described in section 481 of the Higher Education Act of 1965 (20 U.S.C. 
1088), as in effect on August 5, 1997, and certified by the U.S. 
Department of Education as eligible to participate in student aid 
programs administered by the Department, as described in section 
25A(f)(2) and Sec. 1.25A-2(b). For purposes of this section, an 
eligible educational institution also includes an institution that 
conducts an internship or residency program leading to a degree or 
certificate awarded by an institution, a hospital, or a health care 
facility that offers postgraduate training.
    (2) Qualified higher education expenses--(i) In general. Qualified 
higher education expenses means the cost of attendance (as defined in 
section 472 of the Higher Education Act of 1965, 20 U.S.C. 1087ll, as in 
effect on August 4, 1997), at an eligible educational institution, 
reduced by the amounts described in paragraph (e)(2)(ii) of this 
section. Consistent with section 472 of the Higher Education Act of 
1965, a student's cost of attendance is determined by the eligible 
educational institution and includes tuition and fees normally assessed 
a student carrying the same academic workload as the student, an 
allowance for room and board, and an allowance for books, supplies, 
transportation, and miscellaneous expenses of the student.
    (ii) Reductions. Qualified higher education expenses are reduced by 
any amount that is paid to or on behalf of a student with respect to 
such expenses and that is--
    (A) A qualified scholarship that is excludable from income under 
section 117;
    (B) An educational assistance allowance for a veteran or member of 
the armed forces under chapter 30, 31, 32, 34 or 35 of title 38, United 
States Code, or under chapter 1606 of title 10, United States Code;
    (C) Employer-provided educational assistance that is excludable from 
income under section 127;
    (D) Any other amount that is described in section 25A(g)(2)(C) 
(relating to amounts excludable from gross income as educational 
assistance);
    (E) Any otherwise includible amount excluded from gross income under 
section 135 (relating to the redemption of United States savings bonds);
    (F) Any otherwise includible amount distributed from a Coverdell 
education savings account and excluded from gross income under section 
530(d)(2); or
    (G) Any otherwise includible amount distributed from a qualified 
tuition program and excluded from gross income under section 
529(c)(3)(B).
    (3) Qualified education loan--(i) In general. A qualified education 
loan means indebtedness incurred by a taxpayer solely to pay qualified 
higher education expenses that are--
    (A) Incurred on behalf of a student who is the taxpayer, the 
taxpayer's spouse, or a dependent (as defined in section 152) of the 
taxpayer at the time the taxpayer incurs the indebtedness;
    (B) Attributable to education provided during an academic period, as 
described in section 25A and the regulations thereunder, when the 
student is

[[Page 496]]

an eligible student as defined in section 25A(b)(3) (requiring that the 
student be a degree candidate carrying at least half the normal full-
time workload); and
    (C) Paid or incurred within a reasonable period of time before or 
after the taxpayer incurs the indebtedness.
    (ii) Reasonable period. Except as otherwise provided in this 
paragraph (e)(3)(ii), what constitutes a reasonable period of time for 
purposes of paragraph (e)(3)(i)(C) of this section generally is 
determined based on all the relevant facts and circumstances. However, 
qualified higher education expenses are treated as paid or incurred 
within a reasonable period of time before or after the taxpayer incurs 
the indebtedness if--
    (A) The expenses are paid with the proceeds of education loans that 
are part of a Federal postsecondary education loan program; or
    (B) The expenses relate to a particular academic period and the loan 
proceeds used to pay the expenses are disbursed within a period that 
begins 90 days prior to the start of that academic period and ends 90 
days after the end of that academic period.
    (iii) Related party. A qualified education loan does not include any 
indebtedness owed to a person who is related to the taxpayer, within the 
meaning of section 267(b) or 707(b)(1). For example, a parent or 
grandparent of the taxpayer is a related person. In addition, a 
qualified education loan does not include a loan made under any 
qualified employer plan as defined in section 72(p)(4) or under any 
contract referred to in section 72(p)(5).
    (iv) Federal issuance or guarantee not required. A loan does not 
have to be issued or guaranteed under a Federal postsecondary education 
loan program to be a qualified education loan.
    (v) Refinanced and consolidated indebtedness--(A) In general. A 
qualified education loan includes indebtedness incurred solely to 
refinance a qualified education loan. A qualified education loan 
includes a single, consolidated indebtedness incurred solely to 
refinance two or more qualified education loans of a borrower.
    (B) Treatment of refinanced and consolidated indebtedness. 
[Reserved]
    (4) Examples. The following examples illustrate the rules of this 
paragraph (e):

    Example 1. Eligible educational institution. University F is a 
postsecondary educational institution described in section 481 of the 
Higher Education Act of 1965. The U.S. Department of Education has 
certified that University F is eligible to participate in federal 
financial aid programs administered by that Department, although 
University F chooses not to participate. University F is an eligible 
educational institution.
    Example 2. Qualified higher education expenses. Student G receives a 
$3,000 qualified scholarship for the 2003 fall semester that is 
excludable from Student G's gross income under section 117. Student G 
receives no other forms of financial assistance with respect to the 2003 
fall semester. Student G's cost of attendance for the 2003 fall 
semester, as determined by Student G's eligible educational institution 
for purposes of calculating a student's financial need in accordance 
with section 472 of the Higher Education Act, is $16,000. For the 2003 
fall semester, Student G has qualified higher education expenses of 
$13,000 (the cost of attendance as determined by the institution 
($16,000) reduced by the qualified scholarship proceeds excludable from 
gross income ($3,000)).
    Example 3. Qualified education loan. Student H borrows money from a 
commercial bank to pay qualified higher education expenses related to 
his enrollment on a half-time basis in a graduate program at an eligible 
educational institution. Student H uses all the loan proceeds to pay 
qualified higher education expenses incurred within a reasonable period 
of time after incurring the indebtedness. The loan is not federally 
guaranteed. The commercial bank is not related to Student H within the 
meaning of section 267(b) or 707(b)(1). Student H's loan is a qualified 
education loan within the meaning of section 221.
    Example 4. Qualified education loan. Student I signs a promissory 
note for a loan on August 15, 2003, to pay for qualified higher 
education expenses for the 2003 fall and 2004 spring semesters. On 
August 20, 2003, the lender disburses loan proceeds to Student I's 
college. The college credits them to Student I's account to pay 
qualified higher education expenses for the 2003 fall semester, which 
begins on August 25, 2003. On January 26, 2004, the lender disburses 
additional loan proceeds to Student I's college. The college credits 
them to Student I's account to pay qualified higher education expenses 
for the 2004 spring semester, which began on January 12, 2004. Student 
I's qualified higher education expenses for the two semesters are paid 
within a reasonable period of time, as the first loan disbursement 
occurred within the 90 days prior to the start of the fall 2003 semester

[[Page 497]]

and the second loan disbursement occurred during the spring 2004 
semester.
    Example 5. Qualified education loan. The facts are the same as in 
Example 4 except that in 2005 the college is not an eligible educational 
institution because it loses its eligibility to participate in certain 
federal financial aid programs administered by the U.S. Department of 
Education. The qualification of Student I's loan, which was used to pay 
for qualified higher education expenses for the 2003 fall and 2004 
spring semesters, as a qualified education loan is not affected by the 
college's subsequent loss of eligibility.
    Example 6. Mixed-use loans. Student J signs a promissory note for a 
loan secured by Student J's personal residence. Student J will use part 
of the loan proceeds to pay for certain improvements to Student J's 
residence and part of the loan proceeds to pay qualified higher 
education expenses of Student J's spouse. Because Student J obtains the 
loan not solely to pay qualified higher education expenses, the loan is 
not a qualified education loan.

    (f) Interest--(1) In general. Amounts paid on a qualified education 
loan are deductible under section 221 if the amounts are interest for 
Federal income tax purposes. For example, interest includes--
    (i) Qualified stated interest (as defined in Sec. 1.1273-1(c)); and
    (ii) Original issue discount, which generally includes capitalized 
interest. For purposes of section 221, capitalized interest means any 
accrued and unpaid interest on a qualified education loan that, in 
accordance with the terms of the loan, is added by the lender to the 
outstanding principal balance of the loan.
    (2) Operative rules for original issue discount--(i) In general. The 
rules to determine the amount of original issue discount on a loan and 
the accruals of the discount are in sections 163(e), 1271 through 1275, 
and the regulations thereunder. In general, original issue discount is 
the excess of a loan's stated redemption price at maturity (all payments 
due under the loan other than qualified stated interest payments) over 
its issue price (the amount loaned). Although original issue discount 
generally is deductible as it accrues under section 163(e) and Sec. 
1.163-7, original issue discount on a qualified education loan is not 
deductible until paid. See paragraph (f)(3) of this section to determine 
when original issue discount is paid.
    (ii) Treatment of loan origination fees by the borrower. If a loan 
origination fee is paid by the borrower other than for property or 
services provided by the lender, the fee reduces the issue price of the 
loan, which creates original issue discount (or additional original 
issue discount) on the loan in an amount equal to the fee. See Sec. 
1.1273-2(g). For an example of how a loan origination fee is taken into 
account, see Example 2 of paragraph (f)(4) of this section.
    (3) Allocation of payments. See Sec. Sec. 1.446-2(e) and 1.1275-
2(a) for rules on allocating payments between interest and principal. In 
general, these rules treat a payment first as a payment of interest to 
the extent of the interest that has accrued and remains unpaid as of the 
date the payment is due, and second as a payment of principal. The 
characterization of a payment as either interest or principal under 
these rules applies regardless of how the parties label the payment 
(either as interest or principal). Accordingly, the taxpayer may deduct 
the portion of a payment labeled as principal that these rules treat as 
a payment of interest on the loan, including any portion attributable to 
capitalized interest or loan origination fees.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (f). In the examples, assume that the institution the student 
attends is an eligible educational institution, the loan is a qualified 
education loan, the student is legally obligated to make interest 
payments under the terms of the loan, and any other applicable 
requirements, if not otherwise specified, are fulfilled. The examples 
are as follows:
    Example 1. Capitalized interest. Interest on Student K's loan 
accrues while Student K is in school, but Student K is not required to 
make any payments on the loan until six months after he graduates or 
otherwise leaves school. At that time, the lender capitalizes all 
accrued but unpaid interest and adds it to the outstanding principal 
amount of the loan. Thereafter, Student K is required to make monthly 
payments of interest and principal on the loan. The interest payable on 
the loan, including the capitalized interest, is original issue 
discount. See section 1273 and the regulations thereunder. Therefore, in 
determining the total amount of interest paid on the loan each taxable 
year, Student K may deduct any payments

[[Page 498]]

that Sec. 1.1275-2(a) treats as payments of interest, including any 
principal payments that are treated as payments of capitalized interest. 
See paragraph (f)(3) of this section.
    Example 2. Allocation of payments. The facts are the same as in 
Example 1, except that, in addition, the lender charges Student K a loan 
origination fee, which is not for any property or services provided by 
the lender. Under Sec. 1.1273-2(g), the loan origination fee reduces 
the issue price of the loan, which reduction increases the amount of 
original issue discount on the loan by the amount of the fee. The amount 
of original issue discount (which includes the capitalized interest and 
loan origination fee) that accrues each year is determined under section 
1272 and Sec. 1.1272-1. In effect, the loan origination fee accrues 
over the entire term of the loan. Because the loan has original issue 
discount, the payment ordering rules in Sec. 1.1275-2(a) must be used 
to determine how much of each payment is interest for federal tax 
purposes. See paragraph (f)(3) of this section. Under Sec. 1.1275-2(a), 
each payment (regardless of its designation by the parties as either 
interest or principal) generally is treated first as a payment of 
original issue discount, to the extent of the original issue discount 
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. 
Therefore, in determining the total amount of interest paid on the 
qualified education loan for a taxable year, Student K may deduct any 
payments that the parties label as principal but that are treated as 
payments of original issue discount under Sec. 1.1275-2(a).

    (g) Additional Rules--(1) Payment of interest made during period 
when interest payment not required. Payments of interest on a qualified 
education loan to which this section is applicable are deductible even 
if the payments are made during a period when interest payments are not 
required because, for example, the loan has not yet entered repayment 
status or is in a period of deferment or forbearance.
    (2) Denial of double benefit. No deduction is allowed under this 
section for any amount for which a deduction is allowable under another 
provision of Chapter 1 of the Internal Revenue Code. No deduction is 
allowed under this section for any amount for which an exclusion is 
allowable under section 108(f) (relating to cancellation of 
indebtedness).
    (3) Examples. The following examples illustrate the rules of this 
paragraph (g). In the examples, assume that the institution the student 
attends is an eligible educational institution, the loan is a qualified 
education loan, and the student is legally obligated to make interest 
payments under the terms of the loan:

    Example 1. Voluntary payment of interest before loan has entered 
repayment status. Student L obtains a loan to attend college. The terms 
of the loan provide that interest accrues on the loan while Student L 
earns his undergraduate degree but that Student L is not required to 
begin making payments of interest until six full calendar months after 
he graduates or otherwise leaves school. Nevertheless, Student L 
voluntarily pays interest on the loan during 2003, while enrolled in 
college. Assuming all other relevant requirements are met, Student L is 
allowed a deduction for interest paid while attending college even 
though the payments were made before interest payments were required.
    Example 2. Voluntary payment during period of deferment or 
forbearance. The facts are the same as in Example 2, except that Student 
L makes no payments on the loan while enrolled in college. Student L 
graduates in June 2003 and begins making monthly payments of principal 
and interest on the loan in January 2004, as required by the terms of 
the loan. In August 2004, Student L enrolls in graduate school on a 
full-time basis. Under the terms of the loan, Student L may apply for 
deferment of the loan payments while Student L is enrolled in graduate 
school. Student L applies for and receives a deferment on the 
outstanding loan. However, Student L continues to make some monthly 
payments of interest during graduate school. Student L may deduct 
interest paid on the loan during the period beginning in January 2004, 
including interest paid while Student L is enrolled in graduate school.

    (h) Effective date. This section is applicable to periods governed 
by section 221 as amended in 2001, which relates to interest paid on a 
qualified education loan after December 31, 2001, in taxable years 
ending after December 31, 2001, and on or before December 31, 2010.

[T.D. 9125, 69 FR 25492, May 7, 2004]



Sec. 1.221-2  Deduction for interest due and paid on qualified 
education loans before January 1, 2002.

    (a) In general. Under section 221, an individual taxpayer may deduct 
from gross income certain interest due and paid by the taxpayer during 
the taxable year on a qualified education loan. The deduction is allowed 
only with respect to interest due and paid on a qualified education loan 
during the

[[Page 499]]

first 60 months that interest payments are required under the terms of 
the loan. See paragraph (e) of this section for rules relating to the 
60-month rule. See paragraph (b)(4) of this section for rules on 
payments of interest by third parties. The rules of this section are 
applicable to interest due and paid on qualified education loans after 
January 21, 1999, if paid before January 1, 2002. Taxpayers also may 
apply the rules of this section to interest due and paid on qualified 
education loans after December 31, 1997, but before January 21, 1999. To 
the extent that the effective date limitation (``sunset'') of the 2001 
amendment remains in force unchanged, section 221 before amendment in 
2001, to which this section relates, also applies to interest due and 
paid on qualified education loans in taxable years beginning after 
December 31, 2010. For rules applicable to periods governed by section 
221 as amended in 2001, which relates to deductions for interest paid on 
qualified education loans after December 31, 2001, in taxable years 
ending after December 31, 2001, and before January 1, 2011, see Sec. 
1.221-1.
    (b) Eligibility--(1) Taxpayer must have a legal obligation to make 
interest payments. A taxpayer is entitled to a deduction under section 
221 only if the taxpayer has a legal obligation to make interest 
payments under the terms of the qualified education loan.
    (2) Claimed dependents not eligible--(i) In general. An individual 
is not entitled to a deduction under section 221 for a taxable year if 
the individual is a dependent (as defined in section 152) for whom 
another taxpayer is allowed a deduction under section 151 on a Federal 
income tax return for the same taxable year (or, in the case of a fiscal 
year taxpayer, the taxable year beginning in the same calendar year as 
the individual's taxable year).
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (b)(2):

    Example 1. Student not claimed as dependent. Student A pays $750 of 
interest on qualified education loans during 1998. Student A's parents 
are not allowed a deduction for her as a dependent for 1998. Assuming 
fulfillment of all other relevant requirements, Student A may deduct the 
$750 of interest paid in 1998 under section 221.
    Example 2. Student claimed as dependent. Student B pays $750 of 
interest on qualified education loans during 1998. Only Student B has 
the legal obligation to make the payments. Student B's parent claims him 
as a dependent and is allowed a deduction under section 151 with respect 
to Student B in computing the parent's 1998 Federal income tax. Student 
B may not deduct the $750 of interest paid in 1998 under section 221. 
Because Student B's parent was not legally obligated to make the 
payments, Student B's parent also may not deduct the interest.

    (3) Married taxpayers. If a taxpayer is married as of the close of a 
taxable year, he or she is entitled to a deduction under this section 
only if the taxpayer and the taxpayer's spouse file a joint return for 
that taxable year.
    (4) Payments of interest by a third party--(i) In general. If a 
third party who is not legally obligated to make a payment of interest 
on a qualified education loan makes a payment of interest on behalf of a 
taxpayer who is legally obligated to make the payment, then the taxpayer 
is treated as receiving the payment from the third party and, in turn, 
paying the interest.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (b)(4):

    Example 1. Payment by employer. Student C obtains a qualified 
education loan to attend college. Upon Student C's graduation from 
college, Student C works as an intern for a non-profit organization 
during which time Student C's loan is in deferment and Student C makes 
no interest payments. As part of the internship program, the non-profit 
organization makes an interest payment on behalf of Student C after the 
deferment period. This payment is not excluded from Student C's income 
under section 108(f) and is treated as additional compensation 
includible in Student C's gross income. Assuming fulfillment of all 
other requirements of section 221, Student C may deduct this payment of 
interest for Federal income tax purposes.
    Example 2. Payment by parent. Student D obtains a qualified 
education loan to attend college. Upon graduation from college, Student 
D makes legally required monthly payments of principal and interest. 
Student D's mother makes a required monthly payment of interest as a 
gift to Student D. A deduction for Student D as a dependent is not 
allowed on another taxpayer's tax return for that taxable year. Assuming 
fulfillment of all other requirements of section 221, Student D may 
deduct this payment of interest for Federal income tax purposes.


[[Page 500]]


    (c) Maximum deduction. In any taxable year beginning before January 
1, 2002, the amount allowed as a deduction under section 221 may not 
exceed the amount determined in accordance with the following table:

------------------------------------------------------------------------
                                                               Maximum
                 Taxable year beginning in                    deduction
------------------------------------------------------------------------
1998.......................................................       $1,000
1999.......................................................        1,500
2000.......................................................        2,000
2001.......................................................        2,500
------------------------------------------------------------------------

    (d) Limitation based on modified adjusted gross income--(1) In 
general. The deduction allowed under section 221 is phased out ratably 
for taxpayers with modified adjusted gross income between $40,000 and 
$55,000 ($60,000 and $75,000 for married individuals who file a joint 
return). Section 221 does not allow a deduction for taxpayers with 
modified adjusted gross income of $55,000 or above ($75,000 or above for 
married individuals who file a joint return).
    (2) Modified adjusted gross income defined. The term modified 
adjusted gross income means the adjusted gross income (as defined in 
section 62) of the taxpayer for the taxable year increased by any amount 
excluded from gross income under section 911, 931, or 933 (relating to 
income earned abroad or from certain United States possessions or Puerto 
Rico). Modified adjusted gross income must be determined under this 
section after taking into account the inclusions, exclusions, 
deductions, and limitations provided by sections 86 (social security and 
tier 1 railroad retirement benefits), 135 (redemption of qualified 
United States savings bonds), 137 (adoption assistance programs), 219 
(deductible qualified retirement contributions), and 469 (limitation on 
passive activity losses and credits), but before taking into account the 
deduction provided by section 221.
    (e) 60-month rule--(1) In general. A deduction for interest paid on 
a qualified education loan is allowed only for payments made during the 
first 60 months that interest payments are required on the loan. The 60-
month period begins on the first day of the month that includes the date 
on which interest payments are first required and ends 60 months later, 
unless the 60-month period is suspended for periods of deferment or 
forbearance within the meaning of paragraph (e)(3) of this section. The 
60-month period continues to run regardless of whether the required 
interest payments are actually made. The date on which the first 
interest payment is required is determined under the terms of the loan 
agreement or, in the case of a loan issued or guaranteed under a federal 
postsecondary education loan program (such as loan programs under title 
IV of the Higher Education Act of 1965 (20 U.S.C. 1070) and titles VII 
and VIII of the Public Health Service Act (42 U.S.C. 292., and 42 U.S.C. 
296)) under applicable Federal regulations. For a discussion of 
interest, see paragraph (h) of this section. For special rules relating 
to loan refinancings, consolidated loans, and collapsed loans, see 
paragraph (i) of this section.
    (2) Loans that entered repayment status prior to January 1, 1998. In 
the case of any qualified education loan that entered repayment status 
prior to January 1, 1998, section 221 allows no deduction for interest 
paid during the portion of the 60-month period described in paragraph 
(e)(1) of this section that occurred prior to January 1, 1998. Section 
221 allows a deduction only for interest due and paid during that 
portion, if any, of the 60-month period remaining after December 31, 
1997.
    (3) Periods of deferment or forbearance. The 60-month period 
described in paragraph (e)(1) of this section generally is suspended for 
any period when interest payments are not required on a qualified 
education loan because the lender has granted the taxpayer a period of 
deferment or forbearance (including postponement in anticipation of 
cancellation). However, in the case of a qualified education loan that 
is not issued or guaranteed under a Federal postsecondary education loan 
program, the 60-month period will be suspended under this paragraph 
(e)(3) only if the promissory note contains conditions substantially 
similar to the conditions for deferment or forbearance established by 
the U.S. Department of Education for Federal student loan programs under 
title IV of the Higher Education Act of 1965, such as half-time study at 
a postsecondary educational

[[Page 501]]

institution, study in an approved graduate fellowship program or in an 
approved rehabilitation program for the disabled, inability to find 
full-time employment, economic hardship, or the performance of services 
in certain occupations or federal programs, and the borrower satisfies 
one of those conditions. For any qualified education loan, the 60-month 
period is not suspended if under the terms of the loan interest 
continues to accrue while the loan is in deferment or forbearance and 
either--
    (i) In the case of deferment, the taxpayer agrees to pay interest 
currently during the deferment period; or
    (ii) In the case of forbearance, the taxpayer agrees to make reduced 
payments, or payments of interest only, during the forbearance period.
    (4) Late payments. A deduction is allowed for a payment of interest 
required in one month but actually made in a subsequent month prior to 
the expiration of the 60-month period. A deduction is not allowed for a 
payment of interest required in one month but actually made in a 
subsequent month after the expiration of the 60-month period. A late 
payment made during a period of deferment or forbearance is treated, 
solely for purposes of determining whether it is made during the 60-
month period, as made on the date it is due.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (e). In the examples, assume that the institution the student 
attends is an eligible educational institution, the loan is a qualified 
education loan and is issued or guaranteed under a federal postsecondary 
education loan program, the student is legally obligated to make 
interest payments under the terms of the loan, the interest payments 
occur after December 31, 1997, but before January 1, 2002, and with 
respect to any period after December 31, 1997, but before January 21, 
1999, the taxpayer elects to apply the rules of this section. The 
examples are as follows:

    Example 1. Payment prior to 60-month period. Student E obtains a 
loan to attend college. The terms of the loan provide that interest 
accrues on the loan while Student E earns his undergraduate degree but 
that Student E is not required to begin making payments of interest 
until six full calendar months after he graduates. Nevertheless, Student 
E voluntarily pays interest on the loan while attending college. Student 
E is not allowed a deduction for interest paid during that period, 
because those payments were made prior to the start of the 60-month 
period. Similarly, Student E would not be allowed a deduction for any 
interest paid during the six month grace period after graduation when 
interest payments are not required.
    Example 2. Deferment option not exercised. The facts are the same as 
in Example 1 except that Student E makes no payments on the loan while 
enrolled in college. Student E graduates in June 1999, and is required 
to begin making monthly payments of principal and interest on the loan 
in January 2000. The 60-month period described in paragraph (e)(1) of 
this section begins in January 2000. In August 2000, Student E enrolls 
in graduate school on a full-time basis. Under the terms of the loan, 
Student E may apply for deferment of the loan payments while enrolled in 
graduate school. However, Student E elects not to apply for deferment 
and continues to make required monthly payments on the loan during 
graduate school. Assuming fulfillment of all other relevant 
requirements, Student E may deduct interest paid on the loan during the 
60-month period beginning in January 2000, including interest paid while 
enrolled in graduate school.
    Example 3. Late payment, within 60-month period. The facts are the 
same as in Example 2 except that, after the loan enters repayment status 
in January 2000, Student E makes no interest payments until March 2000. 
In March 2000, Student E pays interest required for the months of 
January, February, and March 2000. Assuming fulfillment of all other 
relevant requirements, Student E may deduct the interest paid in March 
for the months of January, February, and March because the interest 
payments are required under the terms of the loan and are paid within 
the 60-month period, even though the January and February interest 
payments may be late.
    Example 4. Late payment during deferment but within 60-month period. 
The terms of Student F's loan require her to begin making monthly 
payments of interest on the loan in January 2000. The 60-month period 
described in paragraph (e)(1) of this section begins in January 2000. 
Student F fails to make the required interest payments for the months of 
November and December 2000. In January 2001, Student F enrolls in 
graduate school on a half-time basis. Under the terms of the loan, 
Student F obtains a deferment of the loan payments due while enrolled in 
graduate school. The deferment becomes effective January 1, 2001. In 
March 2001, while the loan is in deferment, Student F pays the interest 
due for the months of November and December 2000. Assuming fulfillment 
of all

[[Page 502]]

other relevant requirements, Student F may deduct interest paid in March 
2001, for the months of November and December 2000, because the late 
interest payments are treated, solely for purposes of determining 
whether they were made during the 60-month period, as made in November 
and December 2000.
    Example 5. 60-month period. The terms of Student G's loan require 
him to begin making monthly payments of interest on the loan in November 
1999. The 60-month period described in paragraph (e)(1) of this section 
begins in November 1999. In January 2000, Student G enrolls in graduate 
school on a half-time basis. As permitted under the terms of the loan, 
Student G applies for deferment of the loan payments due while enrolled 
in graduate school. While awaiting formal approval from the lender of 
his request for deferment, Student G pays interest due for the month of 
January 2000. In February 2000, the lender approves Student G's request 
for deferment, effective as of January 1, 2000. Assuming fulfillment of 
all other relevant requirements, Student G may deduct interest paid in 
January 2000, prior to his receipt of the lender's approval, even though 
the deferment was retroactive to January 1, 2000. As of February 2000, 
there are 57 months remaining in the 60-month period for that loan. 
Because Student G is not required to make interest payments during the 
period of deferment, the 60-month period is suspended. After January 
2000, Student G may not deduct any voluntary payments of interest made 
during the period of deferment.
    Example 6. 60-month period. The terms of Student H's loan require 
her to begin making monthly payments of interest on the loan in November 
1999. The 60-month period described in paragraph (e)(1) of this section 
begins in November 1999. In January 2000, Student H enrolls in graduate 
school on a half-time basis. As permitted under the terms of the loan, 
Student H applies to make reduced payments of principal and interest 
while enrolled in graduate school. After the lender approves her 
application, Student H pays principal and interest due for the month of 
January 2000 at the reduced rate. Assuming fulfillment of all other 
relevant requirements, Student H may deduct interest paid in January 
2000. As of February 2000, there are 57 months remaining in the 60-month 
period for that loan.
    Example 7. Reduction of 60-month period for months prior to January 
1, 1998. The first payment of interest on a loan is due in January 1997. 
Thereafter, interest payments are required on a monthly basis. The 60-
month period described in paragraph (e)(1) of this section for this loan 
begins on January 1, 1997, the first day of the month that includes the 
date on which the first interest payment is required. However, the 
borrower may not deduct interest paid prior to January 1, 1998, under 
the effective date provisions of section 221. Assuming fulfillment of 
all other relevant requirements, the borrower may deduct interest due 
and paid on the loan during the 48 months beginning on January 1, 1998 
(unless such period is extended for periods of deferment or forbearance 
under paragraph (e)(3) of this section).

    (f) Definitions--(1) Eligible educational institution. In general, 
an eligible educational institution means any college, university, 
vocational school, or other post-secondary educational institution 
described in section 481 of the Higher Education Act of 1965, 20 U.S.C. 
1088, as in effect on August 5, 1997, and certified by the U.S. 
Department of Education as eligible to participate in student aid 
programs administered by the Department, as described in section 
25A(f)(2) and Sec. 1.25A-2(b). For purposes of this section, an 
eligible educational institution also includes an institution that 
conducts an internship or residency program leading to a degree or 
certificate awarded by an institution, a hospital, or a health care 
facility that offers postgraduate training.
    (2) Qualified higher education expenses--(i) In general. Qualified 
higher education expenses means the cost of attendance (as defined in 
section 472 of the Higher Education Act of 1965, 20 U.S.C. 1087ll, as in 
effect on August 4, 1997), at an eligible educational institution, 
reduced by the amounts described in paragraph (f)(2)(ii) of this 
section. Consistent with section 472 of the Higher Education Act of 
1965, a student's cost of attendance is determined by the eligible 
educational institution and includes tuition and fees normally assessed 
a student carrying the same academic workload as the student, an 
allowance for room and board, and an allowance for books, supplies, 
transportation, and miscellaneous expenses of the student.
    (ii) Reductions. Qualified higher education expenses are reduced by 
any amount that is paid to or on behalf of a student with respect to 
such expenses and that is--
    (A) A qualified scholarship that is excludable from income under 
section 117;
    (B) An educational assistance allowance for a veteran or member of 
the armed forces under chapter 30, 31, 32, 34 or 35 of title 38, United 
States Code, or

[[Page 503]]

under chapter 1606 of title 10, United States Code;
    (C) Employer-provided educational assistance that is excludable from 
income under section 127;
    (D) Any other amount that is described in section 25A(g)(2)(C) 
(relating to amounts excludable from gross income as educational 
assistance);
    (E) Any otherwise includible amount excluded from gross income under 
section 135 (relating to the redemption of United States savings bonds); 
or
    (F) Any otherwise includible amount distributed from a Coverdell 
education savings account and excluded from gross income under section 
530(d)(2).
    (3) Qualified education loan--(i) In general. A qualified education 
loan means indebtedness incurred by a taxpayer solely to pay qualified 
higher education expenses that are--
    (A) Incurred on behalf of a student who is the taxpayer, the 
taxpayer's spouse, or a dependent (as defined in section 152) of the 
taxpayer at the time the taxpayer incurs the indebtedness;
    (B) Attributable to education provided during an academic period, as 
described in section 25A and the regulations thereunder, when the 
student is an eligible student as defined in section 25A(b)(3) 
(requiring that the student be a degree candidate carrying at least half 
the normal full-time workload); and
    (C) Paid or incurred within a reasonable period of time before or 
after the taxpayer incurs the indebtedness.
    (ii) Reasonable period. Except as otherwise provided in this 
paragraph (f)(3)(ii), what constitutes a reasonable period of time for 
purposes of paragraph (f)(3)(i)(C) of this section generally is 
determined based on all the relevant facts and circumstances. However, 
qualified higher education expenses are treated as paid or incurred 
within a reasonable period of time before or after the taxpayer incurs 
the indebtedness if--
    (A) The expenses are paid with the proceeds of education loans that 
are part of a federal postsecondary education loan program; or
    (B) The expenses relate to a particular academic period and the loan 
proceeds used to pay the expenses are disbursed within a period that 
begins 90 days prior to the start of that academic period and ends 90 
days after the end of that academic period.
    (iii) Related party. A qualified education loan does not include any 
indebtedness owed to a person who is related to the taxpayer, within the 
meaning of section 267(b) or 707(b)(1). For example, a parent or 
grandparent of the taxpayer is a related person. In addition, a 
qualified education loan does not include a loan made under any 
qualified employer plan as defined in section 72(p)(4) or under any 
contract referred to in section 72(p)(5).
    (iv) Federal issuance or guarantee not required. A loan does not 
have to be issued or guaranteed under a federal postsecondary education 
loan program to be a qualified education loan.
    (v) Refinanced and consolidated indebtedness--(A) In general. A 
qualified education loan includes indebtedness incurred solely to 
refinance a qualified education loan. A qualified education loan 
includes a single, consolidated indebtedness incurred solely to 
refinance two or more qualified education loans of a borrower.
    (B) Treatment of refinanced and consolidated indebtedness. 
[Reserved]
    (4) Examples. The following examples illustrate the rules of this 
paragraph (f):

    Example 1. Eligible educational institution. University J is a 
postsecondary educational institution described in section 481 of the 
Higher Education Act of 1965. The U.S. Department of Education has 
certified that University J is eligible to participate in federal 
financial aid programs administered by that Department, although 
University J chooses not to participate. University J is an eligible 
educational institution.
    Example 2. Qualified higher education expenses. Student K receives a 
$3,000 qualified scholarship for the 1999 fall semester that is 
excludable from Student K's gross income under section 117. Student K 
receives no other forms of financial assistance with respect to the 1999 
fall semester. Student K's cost of attendance for the 1999 fall 
semester, as determined by Student K's eligible educational institution 
for purposes of calculating a student's financial need in accordance 
with section 472 of the Higher Education Act, is $16,000. For the 1999 
fall semester, Student K has qualified higher education expenses of 
$13,000 (the cost of attendance as determined by the institution 
($16,000) reduced by the qualified scholarship proceeds excludable from 
gross income ($3,000)).

[[Page 504]]

    Example 3. Qualified education loan. Student L borrows money from a 
commercial bank to pay qualified higher education expenses related to 
his enrollment on a half-time basis in a graduate program at an eligible 
educational institution. Student L uses all the loan proceeds to pay 
qualified higher education expenses incurred within a reasonable period 
of time after incurring the indebtedness. The loan is not federally 
guaranteed. The commercial bank is not related to Student L within the 
meaning of section 267(b) or 707(b)(1). Student L's loan is a qualified 
education loan within the meaning of section 221.
    Example 4. Qualified education loan. Student M signs a promissory 
note for a loan on August 15, 1999, to pay for qualified higher 
education expenses for the 1999 fall and 2000 spring semesters. On 
August 20, 1999, the lender disburses loan proceeds to Student M's 
college. The college credits them to Student M's account to pay 
qualified higher education expenses for the 1999 fall semester, which 
begins on August 23, 1999. On January 25, 2000, the lender disburses 
additional loan proceeds to Student M's college. The college credits 
them to Student M's account to pay qualified higher education expenses 
for the 2000 spring semester, which began on January 10, 2000. Student 
M's qualified higher education expenses for the two semesters are paid 
within a reasonable period of time, as the first loan disbursement 
occurred within the 90 days prior to the start of the fall 1999 
semester, and the second loan disbursement occurred during the spring 
2000 semester.
    Example 5. Qualified education loan. The facts are the same as in 
Example 4, except that in 2001 the college is not an eligible 
educational institution because it loses its eligibility to participate 
in certain federal financial aid programs administered by the U.S. 
Department of Education. The qualification of Student M's loan, which 
was used to pay for qualified higher education expenses for the 1999 
fall and 2000 spring semesters, as a qualified education loan is not 
affected by the college's subsequent loss of eligibility.
    Example 6. Mixed-use loans. Student N signs a promissory note for a 
loan that is secured by Student N's personal residence. Student N will 
use part of the loan proceeds to pay for certain improvements to Student 
N's residence and part of the loan proceeds to pay qualified higher 
education expenses of Student N's spouse. Because Student N obtains the 
loan not solely to pay qualified higher education expenses, the loan is 
not a qualified education loan.

    (g) Denial of double benefit. No deduction is allowed under this 
section for any amount for which a deduction is allowable under another 
provision of Chapter 1 of the Internal Revenue Code. No deduction is 
allowed under this section for any amount for which an exclusion is 
allowable under section 108(f) (relating to cancellation of 
indebtedness).
    (h) Interest--(1) In general. Amounts paid on a qualified education 
loan are deductible under section 221 if the amounts are interest for 
Federal income tax purposes. For example, interest includes--
    (i) Qualified stated interest (as defined in Sec. 1.1273-1(c)); and
    (ii) Original issue discount, which generally includes capitalized 
interest. For purposes of section 221, capitalized interest means any 
accrued and unpaid interest on a qualified education loan that, in 
accordance with the terms of the loan, is added by the lender to the 
outstanding principal balance of the loan.
    (2) Operative rules for original issue discount--(i) In general. The 
rules to determine the amount of original issue discount on a loan and 
the accruals of the discount are in sections 163(e), 1271 through 1275, 
and the regulations thereunder. In general, original issue discount is 
the excess of a loan's stated redemption price at maturity (all payments 
due under the loan other than qualified stated interest payments) over 
its issue price (the amount loaned). Although original issue discount 
generally is deductible as it accrues under section 163(e) and Sec. 
1.163-7, original issue discount on a qualified education loan is not 
deductible until paid. See paragraph (h)(3) of this section to determine 
when original issue discount is paid.
    (ii) Treatment of loan origination fees by the borrower. If a loan 
origination fee is paid by the borrower other than for property or 
services provided by the lender, the fee reduces the issue price of the 
loan, which creates original issue discount (or additional original 
issue discount) on the loan in an amount equal to the fee. See Sec. 
1.1273-2(g). For an example of how a loan origination fee is taken into 
account, see Example 2 of paragraph (h)(4) of this section.
    (3) Allocation of payments. See Sec. Sec. 1.446-2(e) and 1.1275-
2(a) for rules on allocating payments between interest and principal. In 
general, these rules treat

[[Page 505]]

a payment first as a payment of interest to the extent of the interest 
that has accrued and remains unpaid as of the date the payment is due, 
and second as a payment of principal. The characterization of a payment 
as either interest or principal under these rules applies regardless of 
how the parties label the payment (either as interest or principal). 
Accordingly, the taxpayer may deduct the portion of a payment labeled as 
principal that these rules treat as a payment of interest on the loan, 
including any portion attributable to capitalized interest or loan 
origination fees.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (h). In the examples, assume that the institution the student 
attends is an eligible educational institution, the loan is a qualified 
education loan, the student is legally obligated to make interest 
payments under the terms of the loan, and any other applicable 
requirements, if not otherwise specified, are fulfilled. The examples 
are as follows:

    Example 1. Capitalized interest. Interest on Student O's qualified 
education loan accrues while Student O is in school, but Student O is 
not required to make any payments on the loan until six months after he 
graduates or otherwise leaves school. At that time, the lender 
capitalizes all accrued but unpaid interest and adds it to the 
outstanding principal amount of the loan. Thereafter, Student O is 
required to make monthly payments of interest and principal on the loan. 
The interest payable on the loan, including the capitalized interest, is 
original issue discount. Therefore, in determining the total amount of 
interest paid on the qualified education loan during the 60-month period 
described in paragraph (e)(1) of this section, Student O may deduct any 
payments that Sec. 1.1275-2(a) treats as payments of interest, 
including any principal payments that are treated as payments of 
capitalized interest. See paragraph (h)(3) of this section.
    Example 2. Allocation of payments. The facts are the same as in 
Example 1 of this paragraph (h)(4), except that, in addition, the lender 
charges Student O a loan origination fee, which is not for any property 
or services provided by the lender. Under Sec. 1.1273-2(g), the loan 
origination fee reduces the issue price of the loan, which reduction 
increases the amount of original issue discount on the loan by the 
amount of the fee. The amount of original issue discount (which includes 
the capitalized interest and loan origination fee) that accrues each 
year is determined under section Sec. 1272 and Sec. 1.1272-1. In 
effect, the loan origination fee accrues over the entire term of the 
loan. Because the loan has original issue discount, the payment ordering 
rules in Sec. 1.1275-2(a) must be used to determine how much of each 
payment is interest for federal tax purposes. See paragraph (h)(3) of 
this section. Under Sec. 1.1275-2(a), each payment (regardless of its 
designation by the parties as either interest or principal) generally is 
treated first as a payment of original issue discount, to the extent of 
the original issue discount 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. Therefore, in determining the total amount of 
interest paid on the qualified education loan during the 60-month period 
described in paragraph (e)(1) of this section, Student O may deduct any 
payments that the parties label as principal but that are treated as 
payments of original issue discount under Sec. 1.1275-2(a). The 60-
month period does not begin in the month in which the lender charges 
Student O the loan origination fee.

    (i) Special rules regarding 60-month limitation--(1) Refinancing. A 
qualified education loan and all indebtedness incurred solely to 
refinance that loan constitute a single loan for purposes of calculating 
the 60-month period described in paragraph (e)(1) of this section.
    (2) Consolidated loans. A consolidated loan is a single loan that 
refinances more than one qualified education loan of a borrower. For 
consolidated loans, the 60-month period described in paragraph (e)(1) of 
this section begins on the latest date on which any of the underlying 
loans entered repayment status and includes any subsequent month in 
which the consolidated loan is in repayment status.
    (3) Collapsed loans. A collapsed loan is two or more qualified 
education loans of a single taxpayer that constitute a single qualified 
education loan for loan servicing purposes and for which the lender or 
servicer does not separately account. For a collapsed loan, the 60-month 
period described in paragraph (e)(1) of this section begins on the 
latest date on which any of the underlying loans entered repayment 
status and includes any subsequent month in which any of the underlying 
loans is in repayment status.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (i):


[[Page 506]]


    Example 1. Refinancing. Student P obtains a qualified education loan 
to pay for an undergraduate degree at an eligible educational 
institution. After graduation, Student P is required to make monthly 
interest payments on the loan beginning in January 2000. Student P makes 
the required interest payments for 15 months. In April 2001, Student P 
borrows money from another lender exclusively to repay the first 
qualified education loan. The new loan requires interest payments to 
start immediately. At the time Student P must begin interest payments on 
the new loan, which is a qualified education loan, there are 45 months 
remaining of the original 60-month period referred to in paragraph 
(e)(1) of this section.
    Example 2. Collapsed loans. To finance his education, Student Q 
obtains four separate qualified education loans from Lender R. The loans 
enter repayment status, and their respective 60-month periods described 
in paragraph (e)(1) of this section begin, in July, August, September, 
and December of 1999. After all of Student Q's loans have entered 
repayment status, Lender R informs Student Q that Lender R will transfer 
all four loans to Lender S. Following the transfer, Lender S treats the 
loans as a single loan for loan servicing purposes. Lender S sends 
Student Q a single statement that shows the total principal and 
interest, and does not keep separate records with respect to each loan. 
With respect to the single collapsed loan, the 60-month period described 
in paragraph (e)(1) of this section begins in December 1999.

    (j) Effective date. This section is applicable to interest due and 
paid on qualified education loans after January 21, 1999, if paid before 
January 1, 2002. Taxpayers also may apply this section to interest due 
and paid on qualified education loans after December 31, 1997, but 
before January 21, 1999. This section also applies to interest due and 
paid on qualified education loans in a taxable year beginning after 
December 31, 2010.

[T.D. 9125, 69 FR 25492, May 7, 2004]

                   Special Deductions for Corporations



Sec. 1.241-1  Allowance of special deductions.

    A corporation, in computing its taxable income, is allowed as 
deductions the items specified in Part VIII (section 242 and following), 
Subchapter B, Chapter 1 of the Code, in addition to the deductions 
provided in part VI (section 161 and following) Subchapter B, Chapter 1 
of the Code.



Sec. 1.242-1  Deduction for partially tax-exempt interest.

    A corporation is allowed a deduction under section 242(a) in an 
amount equal to certain interest received on obligations of the United 
States, or an obligation of corporations organized under Acts of 
Congress which are instrumentalities of the United States. The interest 
for which a deduction shall be allowed is interest which is included in 
gross income and which is exempt from normal tax under the act, as 
amended and supplemented, which authorized the issuance of the 
obligations. The deduction allowed by section 242(a) is allowed only for 
the purpose of computing normal tax, and therefore, no deduction is 
allowed for such interest in the computation of any surtax imposed by 
Subtitle A of the Internal Revenue Code of 1954.

[T.D. 7100, 36 FR 5333, Mar. 20, 1971]



Sec. 1.243-1  Deduction for dividends received by corporations.

    (a)(1) A corporation is allowed a deduction under section 243 for 
dividends received from a domestic corporation which is subject to 
taxation under Chapter 1 of the Internal Revenue Code of 1954.
    (2) Except as provided in section 243(c) and in section 246, the 
deduction is:
    (i) For the taxable year, an amount equal to 85 percent of the 
dividends received from such domestic corporations during the taxable 
year (other than dividends to which subdivision (ii) or (iii) of this 
subparagraph applies).
    (ii) For a taxable year beginning after September 2, 1958, an amount 
equal to 100 percent of the dividends received from such domestic 
corporations if at the time of receipt of such dividends the recipient 
corporation is a Federal licensee under the Small Business Investment 
Act of 1958 (15 U.S.C. ch. 14B). However, to claim the deduction 
provided by section 243(a)(2) the company must file with its return a 
statement that it was a Federal licensee under the Small Business 
Investment Act of 1958 at the time of the receipt of the dividends.
    (iii) For a taxable year ending after December 31, 1963, an amount 
equal to

[[Page 507]]

100 percent of the dividends received which are qualifying dividends, as 
defined in section 243(b) and Sec. 1.243-4.
    (3) To determine the amount of the distribution to a recipient 
corporation and the amount of the dividend, see Sec. Sec. 1.301-1 and 
1.316-1.
    (b) For limitation on the dividends received deduction, see section 
246 and the regulations thereunder.

[T.D. 6992, 34 FR 817, Jan. 18, 1969]



Sec. 1.243-2  Special rules for certain distributions.

    (a) Dividends paid by mutual savings banks, etc. In determining the 
deduction provided in section 243(a), any amount allowed as a deduction 
under section 591 (relating to deduction for dividends paid by mutual 
savings banks, cooperative banks, and domestic building and loan 
associations) shall not be considered as a dividend.
    (b) Dividends received from regulated investment companies. In 
determining the deduction provided in section 243(a), dividends received 
from a regulated investment company shall be subject to the limitations 
provided in section 854.
    (c) Dividends received from real estate investment trusts. See 
section 857(c) and paragraph (d) of Sec. 1.857-6 for special rules 
which deny a deduction under section 243 in the case of dividends 
received from a real estate investment trust with respect to a taxable 
year for which such trust is taxable under Part II, Subchapter M, 
Chapter 1 of the Code.
    (d) Dividends received on preferred stock of a public utility. The 
deduction allowed by section 243(a) shall be determined without regard 
to any dividends described in section 244 (relating to dividends on the 
preferred stock of a public utility). That is, such deduction shall be 
determined without regard to any dividends received on the preferred 
stock of a public utility which is subject to taxation under Chapter 1 
of the Code and with respect to which a deduction is allowed by section 
247 (relating to dividends paid on certain preferred stock of public 
utilities). For a deduction with respect to such dividends received on 
the preferred stock of a public utility, see section 244. If a deduction 
for dividends paid is not allowable to the distributing corporation 
under section 247 with respect to the dividends on its preferred stock, 
such dividends received from a domestic public utility corporation 
subject to taxation under Chapter 1 of the Code are includible in 
determining the deduction allowed by section 243(a).

[T.D. 6598, 27 FR 4092, Apr. 28, 1962, as amended by T.D. 6992, 34 FR 
817, Jan. 18, 1969; T.D. 7767, 46 FR 11264, Feb. 6, 1981]



Sec. 1.243-3  Certain dividends from foreign corporations.

    (a) In general. (1) In determining the deduction provided in section 
243(a), section 243(d) provides that a dividend received from a foreign 
corporation after December 31, 1959, shall be treated as a dividend from 
a domestic corporation which is subject to taxation under chapter 1 of 
the Code, but only to the extent that such dividend is out of earnings 
and profits accumulated by a domestic corporation during a period with 
respect to which such domestic corporation was subject to taxation under 
Chapter 1 of the Code (or corresponding provisions of prior law). Thus, 
for example, if a domestic corporation accumulates earnings and profits 
during a period or periods with respect to which it is subject to 
taxation under Chapter 1 of the Code (or corresponding provisions of 
prior law) and subsequently such domestic corporation reincorporates in 
a foreign country, any dividends paid out of such earnings and profits 
after such reincorporation are eligible for the deduction provided in 
section 243(a) (1) and (2).
    (2) Section 243(d) and this section do not apply to dividends paid 
out of earnings and profits accumulated (i) by a corporation organized 
under the China Trade Act, 1922, (ii) by a domestic corporation during 
any period with respect to which such corporation was exempt from 
taxation under section 501 (relating to certain charitable, etc. 
organizations) or 521 (relating to farmers' cooperative associations), 
or (iii) by a domestic corporation during any period to which section 
931 (relating to income from sources within possessions of the United 
States), as in effect for taxable years beginning before January 1, 
1976, applied.

[[Page 508]]

    (b) Establishing separate earnings and profits accounts. A foreign 
corporation shall, for purposes of section 243(d), maintain a separate 
account for earnings and profits to which it succeeds which were 
accumulated by a domestic corporation, and such foreign corporation 
shall treat such earnings and profits as having been accumulated during 
the accounting periods in which earned by such domestic corporation. 
Such foreign corporation shall also maintain such a separate account for 
the earnings and profits, or deficit in earnings and profits, 
accumulated by it or accumulated by any other corporations to the 
earnings and profits of which it succeeds.
    (c) Effect of dividends on earnings and profits accounts. Dividends 
paid out of the accumulated earnings and profits (see section 316(a)(1) 
of such foreign corporation shall be treated as having been paid out of 
the most recently accumulated earnings and profits of such corporation. 
A deficit in an earnings and profits account for any accounting period 
shall reduce the most recently accumulated earnings and profits for a 
prior accounting period in such account. If there are no accumulated 
earnings and profits in an earnings and profits account because of a 
deficit incurred in a prior accounting period, such deficit must be 
restored before earnings and profits can be accumulated in a subsequent 
accounting period. If a dividend is paid out of earnings and profits of 
a foreign corporation which maintains two or more accounts (established 
under the provisions of paragraph (b) of this section) with respect to 
two or more accounting periods ending on the same day, then the portion 
of such dividend considered as paid out of each account shall be the 
same proportion of the total dividend as the amount of earnings and 
profits in that account bears to the sum of the earnings and profits in 
all such accounts.
    (d) Illustration. The application of the principles of this section 
in the determination of the amount of the dividends received deduction 
may be illustrated by the following example:

    Example. On December 31, 1960, corporation X, a calendar-year 
corporation organized in the United States on January 1, 1958, 
consolidated with corporation Y, a foreign corporation organized on 
January 1, 1958, which used an annual accounting period based on the 
calendar year, to form corporation Z, a foreign corporation not engaged 
in trade or business within the United States. Corporation Z is a 
wholly-owned subsidiary of corporation M, a domestic corporation. On 
January 1, 1961, corporation Z's accumulated earnings and profits of 
$31,000 are, under the provisions of paragraph (b) of this section, 
maintained in separate earnings and profits accounts containing the 
following amounts:

------------------------------------------------------------------------
                                                     Domestic   Foreign
      Earnings and profits accumulated for--         corp. X    corp. Y
------------------------------------------------------------------------
1958..............................................   ($1,000)    $11,000
1959..............................................     10,000      9,000
1960..............................................      5,000    (3,000)
------------------------------------------------------------------------

    Corporation Z had earnings and profits of $10,000 in each of the 
years 1961, 1962, and 1963 and makes distributions with respect to its 
stock to corporation M for such years in the following amounts:

1961.........................................................    $14,000
1962.........................................................     23,000
1963.........................................................     16,000
 

    (1) For 1961, a deduction of $3,400 is allowable to M with respect 
to the $14,000 distribution from Z, computed as follows:

(i) Dividend from current year earnings and profits (1961)...    $10,000
(ii) Dividend from earnings and profits of corporation X           4,000
 accumulated for 1960........................................
(iii) Deduction: 85 percent of $4,000 (the amount distributed      3,400
 from the accumulated earnings and profits of corporation X).
 

    (2) For 1962, a deduction of $6,970 is allowable to corporation M 
with respect to the $23,000 distribution from corporation Z, computed as 
follows:

(i) Dividend from current year earnings and profits (1962)..    $10,000
(ii) Dividend from earnings and profits of
 corporation X accumulated for:
    1960........................................     $1,000
    1959: $9,000 (i.e., $10,000 - $1,000) divided by $15,000       7,200
     (i.e., $9,000+$9,000-$3,000) multiplied by $12,000
     (i.e., $23,000-$11,000)................................
                                                 ------------
      Total.....................................      8,200
(iii) Dividend from earnings and profits of
 corporation Y accumulated for:
    1959: $6,000/$15,000x$12,000............................      4,800
(iv) Deduction: 85 percent of $8,200 (the amount  ..........       6,970
 distributed from the accumulated earnings and
 profits of corporation X)......................
 

    (3) For 1963, a deduction of $1,530 is allowable to M with respect 
to the $16,000 distribution from Z, computed as follows:

(i) Dividend from current year earnings and profits (1963)...    $10,000

[[Page 509]]

 
(ii) Dividend from earnings and profits of corporation X
 accumulated for 1959:
  Earnings and profits remaining after 1962 distribution           1,800
   (i.e., $9,000-$7,200).....................................
(iii) Dividend from earnings and profits of corporation Y
 accumulated for 1959:
  Earnings and profits remaining after 1962 distribution           1,200
   (i.e., $6,000-$4,800).....................................
  1958.......................................................      8,000
(iv) Deduction: 85 percent of $1,800 (the amount distributed       1,530
 from the accumulated earnings and profits of corporation X).
 


[T.D. 6830, 30 FR 8045, June 23, 1965, as amended by T.D. 9194, 70 FR 
18928, Apr. 11, 2005]



Sec. 1.243-4  Qualifying dividends.

    (a) Definition of qualifying dividends--(1) General. For purposes of 
section 243(a)(3), the term qualifying dividends means dividends 
received by a corporation if:
    (i) At the close of the day the dividends are received, such 
corporation is a member of the same affiliated group of corporations (as 
defined in paragraph (b) of this section) as the corporation 
distributing the dividends,
    (ii) An election by such affiilated group under section 243(b)(2) 
and paragraph (c) of this section is effective for the taxable years of 
its members which include such day, and
    (iii) The dividends are distributed out of earnings and profits 
specified in subparagraph (2) of this paragraph.
    (2) Earnings and profits. The earnings and profits specified in this 
subparagraph are earnings and profits of a taxable year of the 
distributing corporation (or a predecessor corporation) which satisfies 
each of the following conditions:
    (i) Such year must end after December 31, 1963;
    (ii) On each day of such year the distributing corporation (or the 
predecessor corporation) and the corporation receiving the dividends 
must have been members of the affiliated group of which the distributing 
corporation and the corporation receiving the dividends are members on 
the day the dividends are received; and
    (iii) An election under section 1562 (relating to the election of 
multiple surtax exmptions) was never effective (or is no longer 
effective pursuant to section 1562(c)) for such year.
    (3) Special rule for insurance companies. Notwithstanding the 
provisions of subparagraph (2) of this paragraph, if an insurance 
company subject to taxation under section 802 or 821 distributes a 
dividend out of earnings and profits of a taxable year with respect to 
which the company would have been a component member of a controlled 
group of corporations within the meaning of section 1563 were it not for 
the application of section 1563(b)(2)(D), such dividend shall not be 
treated as a qualifying dividend unless an election under section 
243(b)(2) is effective for such taxable year.
    (4) Predecessor corporations. For purposes of this paragraph, a 
corporation shall be considered to be a predecessor corporation with 
respect to a distributing corporation if the distributing corporation 
succeeds to the earnings and profits of such corporation, for example, 
as the result of a transaction to which section 381(a) applies. A 
distributing corporation shall, for purposes of this section, maintain, 
in respect of each predecessor corporation, a separate account for 
earnings and profits to which it succeeds, and such earnings and profits 
shall be considered to be earnings and profits of the predecessor's 
taxable year in which the earnings and profits were accumulated.
    (5) Mere change in form. (i) For purposes of subparagraph (2)(ii) of 
this paragraph, the affiliated group in existence during the taxable 
year out of the earnings and profits of which the dividend is 
distributed shall not be considered as a different group from that in 
existence on the day on which the dividend is received merely because:
    (a) The common parent corporation has undergone a mere change in 
identity, form, or place of organization (within the meaning of section 
368(a)(1)(F)), or
    (b) A newly organized corporation (the ``acquiring corporation'') 
has acquired substantially all of the outstanding stock of the common 
parent corporation (the ``acquired corporation'') solely in exchange for 
stock of such acquiring corporation, and the stockholders (immediately 
before the acquisition) of the acquired corporation, as a result of 
owning stock of the acquired corporation, own (immediately after the 
acquisition) all of the

[[Page 510]]

outstanding stock of the acquiring corporation.

If a transaction described in the preceding sentence has occurred, the 
acquiring corporation shall be treated as having been a member of the 
affiliated group for the entire period during which the acquired 
corporation was a member of such group.
    (ii) For purposes of subdivision (i) (b) of this subparagraph, if 
immediately before the acquisition:
    (a) The stockholders of the acquired corporation also owned all of 
the outstanding stock of another corporation (the ``second 
corporation''), and
    (b) Stock of the acquired corporation and of the second corporation 
could be acquired or transferred only as a unit (hereinafter referred to 
as the ``limitation on transferability''), then the second corporation 
shall be treated as an acquired corporation and such second corporation 
shall be treated as having been a member of the affiliated group for the 
entire period (while such group was in existence) during which the 
limitation on transferability was in existence, and if the second 
corporation is itself the common parent corporation of an affiliated 
group (the ``second group'') any other member of the second group shall 
be treated as having been a member of the affiliated group for the 
entire period during which it was a member of the second group while the 
limitation on transferability existed. For purposes of (a) of this 
subdivision and subdivision (i)(b) of this subparagraph, if the 
limitation on transferability of stock of the acquired corporation and 
the second corporation is achieved by using a voting trust, then the 
stock owned by the trust shall be considered as owned by the holders of 
the beneficial interests in the trust.
    (6) Source of distributions. In determining from what year's 
earnings and profits a dividend is treated as having been distributed 
for purposes of this section, the principles of paragraph (a) of Sec. 
1.316-2 shall apply. A dividend shall be considered to be distributed, 
first, out of the earnings and profits of the taxable year which 
includes the date the dividend is distributed, second, out of the 
earnings and profits accumulated for the immediately preceding taxable 
year, third, out of the earnings and profits accumulated for the second 
preceding taxable year, etc. A deficit in an earnings and profits 
account for any taxable year shall reduce the most recently accumulated 
earnings and profits for a prior year in such account. If there are no 
accumulated earnings and profits in an earnings and profits account 
because of a deficit incurred in a prior year, such deficit must be 
restored before earnings and profits can be accumulated in a subsequent 
year. If a dividend is distributed out of separate earnings and profits 
accounts (established under the provisions of subparagraph (4) of this 
paragraph) for two or more taxable years ending on the same day, then 
the portion of such dividend considered as distributed out of each 
account shall be the same proportion of the total dividend as the amount 
of earnings and profits in that account bears to the sum of the earnings 
and profits in all such accounts.
    (7) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On March 1, 1965, corporation P, a publicly owned 
corporation, acquires all of the stock of corporation S and continues to 
hold the stock throughout the remainder of 1965 and all of 1966. P and S 
are domestic corporations which file separate returns on the basis of a 
calendar year. The affiliated group consisting of P and S makes an 
election under section 243(b)(2) which is effective for the 1966 taxable 
years of P and S. A multiple surtax exemption election under section 
1562 is not effective for their 1965 taxable years. On February 1, 1966, 
S distributes $50,000 with respect to its stock which is received by P 
on the same date. S had earnings and profits of $40,000 for 1966 
(computed without regard to distributions during 1966). S also had 
earnings and profits accumulated for 1965 of $70,000. Since $40,000 was 
distributed out of earnings and profits for 1966 and since each of the 
conditions prescribed in subparagraphs (1) and (2) of this paragraph is 
satisfied, P is entitled to a 100-percent dividends received deduction 
with respect to $40,000 of the $50,000 distribution. However, since 
$10,000 was distributed out of earnings and profits accumulated for 
1965, and since on each day of 1965 S and P were not members of the 
affiliated group of which S and P were members on February 1, 1966, 
$10,000 of the $50,000 distribution does not satisfy the condition 
specified in subparagraph (2)(ii) of this paragraph and thus does not 
qualify for the 100-percent dividends received deduction.
    Example 2. Assume the same facts as in Example 1, except that 
corporation P acquires

[[Page 511]]

all the stock of corporation S on January 1, 1965, and sells such stock 
on November 1, 1966. Since $10,000 is distributed out of earnings and 
profits for 1965, and since each of the conditions prescribed in 
subparagraphs (1) and (2) of this paragraph is satisfied, P is entitled 
to a 100-percent dividends received deduction with respect to $10,000 of 
the $50,000 distribution. However, since $40,000 of the $50,000 
distribution was made out of earnings and profits of S for its 1966 
taxable year, and on each day of such year S and P were not members of 
the affiliated group of which S and P were members on February 1, 1966, 
$40,000 of the distribution does not satisfy the condition specified in 
subparagraph (2)(ii) of this paragraph and thus does not qualify for the 
100-percent dividends received deduction.
    Example 3. Assume the same facts as in Example 1, except that 
corporation P acquires all the stock of corporation S on January 1, 
1965, and that a multiple surtax exemption election under section 1562 
is effective for P's and S's 1965 taxable years. Further assume that the 
section 1562 election is terminated effective with respect to their 1966 
taxable years, and that an election under section 243(b) (2) is 
effective for such taxable years. Since $10,000 of the February 1, 1966, 
distribution was made out of earnings and profits of S for its 1965 
taxable year and since a multiple surtax exemption election is effective 
for such year, $10,000 of the distribution does not satisfy the 
condition specified in subparagraph (2) (iii) of this paragraph and thus 
does not qualify for the 100-percent dividends received deduction. 
However, the portion of the distribution which was distributed out of 
earnings and profits of S's 1966 year ($40,000) qualifies for the 100-
percent dividends received deduction.
    Example 4. Assume the same facts as in Example 1, except that 
corporation P acquires all the stock of corporation S on January 1, 
1965, and that S is a life insurance company subject to taxation under 
section 802. Accordingly, S would have been a member of a controlled 
group of corporations except for the application of section 
1563(b)(2)(D). Since $10,000 of the distribution was made out of 
earnings and profits of S for its 1965 taxable year, and since with 
respect to such year an election under section 243(b)(2) was not 
effective, $10,000 of the distribution is not a qualifying dividend by 
reason of subparagraph (3) of this paragraph. On the other hand, the 
portion of the distribution which was distributed out of earnings and 
profits for S's 1966 year ($40,000) does qualify for the 100-percent 
dividends received deduction because the distribution was out of 
earnings and profits of a year for which an election under section 
243(b) (2) is effective, and because the other conditions specified in 
subparagraphs (1) and (2) of this paragraph are satisfied. However, if P 
were also a life insurance company subject to taxation under section 
802, then subparagraph (3) of this paragraph would not result in the 
disqualification of the portion of the distribution made out of S's 1965 
earnings and profits because S would be a component member of an 
insurance group of corporations (as defined in section 1563(a)(4)), 
consisting of P and S, with respect to its 1965 year.
    Example 5. Corporation X owns all the stock of corporation Y from 
January 1, 1965, through December 31, 1969. X and Y are domestic 
corporations which file separate returns on the basis of a calendar 
year. On June 30, 1965, Y acquired all the stock of domestic corporation 
Z, a calendar year taxpayer, and on December 31, 1967, Y acquired the 
assets of Z in a transaction to which section 381(a) applied. A multiple 
surtax exemption election under section 1562, was not effective for any 
taxable year of X, Y, or Z, and an election under section 243(b)(2) is 
effective for the 1968 and 1969 taxable years of X and Y. On January 1, 
1968, Y's accumulated earnings and profits are, under the provisions of 
subparagraph (4) of this paragraph, maintained in separate earnings and 
profits accounts containing the following amounts:

------------------------------------------------------------------------
                                                       Corp       Corp
       Earnings and profits accumulated for        ---------------------
                                                        Y          Z
------------------------------------------------------------------------
1964..............................................    $60,000    $40,000
1965..............................................     30,000     15,000
1966..............................................    (5,000)      2,000
1967..............................................     12,000      6,000
------------------------------------------------------------------------

    Corporation Y had earnings and profits of $10,000 in each of the 
years 1968 and 1969, and made distributions during such years in the 
following amounts:

  1968.......................................................    $29,000
  1969.......................................................     31,000
 

    (i) The source of the 1968 distribution, determined in accordance 
with the rules of subparagraph (6) of this paragraph, is as follows:

(a) Dividend from Y's current year's earnings and profits        $10,000
 (1968)......................................................
(b) Dividend from earnings and profits of Y accumulated for       12,000
 1967........................................................
(c) Dividend from earnings and profits of Z accumulated for:.
    1967.....................................................      6,000
    1966.....................................................      1,000
                                                              ----------
                                                                  29,000
 

    Since the 1968 dividend is considered paid out of earnings and 
profits of Y's 1968 and 1967 years, and Z's 1967 and 1966 years, and 
since each of these years satisfies each of the conditions specified in 
subparagraph (2) of this paragraph, X is entitled to a 100-percent 
dividends received deduction with respect to the entire 1968 
distribution of $29,000 from Y.
    (ii) The source of the 1969 distribution of $31,000, determined in 
accordance with the

[[Page 512]]

rules of subparagraph (6) of this paragraph, is as follows:

(a) Dividend from Y's current year's earnings and profits        $10,000
 (1969)......................................................
(b) Dividend from earnings and profits of Z accumulated for        1,000
 1966 (1966 earnings and profits remaining after 1968
 distribution, i.e., $2,000-$1,000...........................
(c) Dividend from earnings and profits of Y and Z accumulated
 for 1965:
    Corporation Y: $25,000 (i.e., $30,000-$5,000 deficit)         12,500
     divided by $40,000 (i.e., the sum of the 1965 earnings
     and profits of Y and Z) multiplied by $20,000 (the
     portion of the distribution from the 1965 earnings and
     profits of Y and Z).....................................
    Corporation Z: $15,000 divided by $40,000 multiplied by        7,500
     $20,000.................................................
                                                              ----------
                                                                  31,000
 

    The sum of the dividends from Y's 1969 year ($10,000), Z's 1966 year 
($1,000), and Y's 1965 year ($12,500), or $23,500, qualifies for the 
100-percent dividends received deduction. However, the dividends paid 
out of Z's 1965 year ($7,500) do not qualify because on each day of 1965 
Z and X were not members of the affiliated group of which Y (the 
distributing corporation) and X (the corporation receiving the 
dividends) were members on the day in 1969 when the dividends were 
received by X.

    (b) Definition of affiliated group. For purposes of this section and 
Sec. 1.243-5, the term affiliated group shall have the meaning assigned 
to it by section 1504(a), except that insurance companies subject to 
taxation under section 802 or 821 shall be treated as includible 
corporations (notwithstanding section 1504(b)(2)), and the provisions of 
section 1504(c) shall not apply.
    (c) Election--(1) Manner and time of making election--(i) General. 
The election provided by section 243(b)(2) shall be made for an 
affiliated group by the common parent corporation and shall be made for 
a particular taxable year of the common parent corporation. Such 
election may not be made for any taxable year of the common parent 
corporation for which a multiple surtax exemption election under section 
1562 is effective. The election shall be made by means of a statement, 
signed by any person who is duly authorized to act on behalf of the 
common parent corporation, stating that the affiliated group elects 
under section 243(b)(2) for such taxable year. The statement shall be 
filed with the district director for the internal revenue district in 
which is located the principal place of business or principal office or 
agency of the common parent. The statement shall set forth the name, 
address, taxpayer account number, and taxable year of each corporation 
(including wholly-owned subsidiaries) that is a member of the affiliated 
group at the time the election is filed. The statement may be filed at 
any time, provided that, with respect to each corporation the tax 
liability of which for its matching taxable year of election (or for any 
subsequent taxable year) would be increased because of the election, at 
the time of filing there is at least 1 year remaining in the statutory 
period (including any extensions thereof) for the assessment of a 
deficiency against such corporation for such year. (If there is less 
than 1 year remaining with respect to any taxable year, the district 
director for the internal revenue district in which is located the 
principal place of business or principal office or agency of the 
corporation will ordinarily, upon request, enter into an agreement to 
extend such statutory period for assessment and collection of 
deficiencies.
    (ii) Information statement by common parent. If a corporation 
becomes a member of the affiliated group after the date on which the 
election is filed and during its matching taxable year of election, then 
the common parent shall file, within 60 days after such corporation 
becomes a member of the affiliated group, an additional statement 
containing the name, address, taxpayer account number, and taxable year 
of such corporation. Such additional statement shall be filed with the 
internal revenue officer with whom the election was filed.
    (iii) Definition of matching taxable year of election. For purposes 
of this paragraph and paragraphs (d) and (e) of this section, the term 
matching taxable year of election shall mean the taxable year of each 
member (including the common parent corporation) of the electing 
affiliated group which includes the last day of the taxable year of the 
common parent corporation for which an election by the affiiliated group 
is made under section 243(b)(2).
    (2) Consents by subsidiary corporations--(i) General. Each 
corporation (other than the common parent corporation) which is a member 
of the

[[Page 513]]

electing affiliated group (including any member which joins in the 
filing of a consolidated return) at any time during its matching taxable 
year of election must consent to such election in the manner and time 
provided in subdivision (ii) or (iii) of this subparagraph, whichever is 
applicable.
    (ii) Wholly owned subsidiary. If all of the stock of a corporation 
is owned by a member or members of the affiliated group on each day of 
such corporation's matching taxable year of election, then such 
corporation (referred to in this paragraph as a ``wholly owned 
subsidiary'') shall be deemed to consent to such election.
    (iii) Other members. The consent of each member of the affiliated 
group (other than a wholly owned subsidiary) shall be made by means of a 
statement, signed by any person who is duly authorized to act on behalf 
of the consenting member, stating that such member consents to the 
election under section 243(b)(2). The statement shall set forth the 
name, address, taxpayer account number, and taxable year of the 
consenting member and of the common parent corporation, and in the case 
of a statement filed after December 31, 1968, the identity of the 
internal revenue district in which is located the principal place of 
business or principal office or agency of the common parent corporation. 
The consent of more than one such member may be incorporated in a single 
statement. The statement (or statements) shall be attached to the 
election filed by the common parent corporation. The consent of a 
corporation that, after the date the election was filed and during its 
matching taxable year of election, either (a) becomes a member, or (b) 
ceases to be a wholly owned subsidiary but continues to be a member, 
shall be filed with the internal revenue officer with whom the election 
was filed and shall be filed on or before the date prescribed by law 
(including extensions of time) for the filing of the consenting member's 
income tax return for such taxable year, or on or before June 10, 1964, 
whichever is later.
    (iv) Statement attached to return. Each corporation that consents to 
an election by means of a statement described in subdivision (iii) of 
this subparagraph should attach a copy of the statement to its income 
tax return for its matching taxable year of election, or, if such return 
has already been filed, to its first income tax return filed on or after 
the date on which the statement is filed. However, if such return is 
filed on or before June 10, 1964, a copy of such statement should be 
filed on or before June 10, 1964, with the district director with whom 
such return is filed. Each wholly owned subsidiary should attach a 
statement to its income tax return for its matching taxable year of 
election, or, if such return has already been filed, to its first income 
tax return filed on or after the date on which the statement is filed 
stating that it is subject to an election under section 243(b)(2) and 
the taxable year to which the election applies, and setting forth the 
name, address, taxpayer account number, and taxable year of the common 
parent corporation, and in the case of a statement filed after December 
31, 1968, the identity of the internal revenue district in which is 
located the principal place of business or principal office or agency of 
the common parent corporation. However, if the due date for such return 
(including extensions of time) is before June 10, 1964, such statement 
should be filed on or before June 10, 1964, with the district director 
with whom such return is filed.
    (3) Information statement by member. If a corporation becomes a 
member of the affiliated group during a taxable year that begins after 
the last day of the common parent corporation's matching taxable year of 
election, then (unless such election has been terminated) such 
corporation should attach a statement to its income tax return for such 
taxable year stating that it is subject to an election under section 
243(b)(2) for such taxable year and setting forth the name, address, 
taxpayer account number, and taxable year of the common parent 
corporation, and the identity of the internal revenue district in which 
is located the principal place of business or principal office or agency 
of the common parent corporation. In the case of an affiliated group 
that made an election under the rules provided in Treasury Decision 
6721, approved April 8, 1964 (29 FR 4997, C.B. 1964-1 (Part 1), 625), 
such statement

[[Page 514]]

shall be filed, on or before March 15, 1969, with the district director 
for the internal revenue district in which is located such member's 
principal place of business or principal office or agency.
    (4) Years for which election effective--(i) General rule. An 
election under section 243(b)(2) by an affiliated group shall be 
effective:
    (a) In the case of each corporation which is a member of such group 
at any time during its matching taxable year of election, for such 
taxable year, and
    (b) In the case of each corporation which is a member of such group 
at any time during a taxable year ending after the last day of the 
common parent's taxable year of election but which does not include such 
last day, for such taxable year, unless the election is terminated under 
section 243(b)(4) and paragraph (e) of this section. Thus, the election 
has a continuing effect and need not be renewed annually.
    (ii) Special rule for certain taxable years ending in 1964. In the 
case of a taxable year of a member (other than the common parent 
corporation) of the affiliated group (a) which begins in 1963 and ends 
in 1964, and (b) for which an election is not effective under 
subdivision (i)(a) of this subparagraph, if an election under section 
243(b)(2) is effective for the taxable year of the common parent 
corporation which includes the last day of such taxable year of such 
member, then such election shall be effective for such taxable year of 
such member if such member files a separate consent with respect to such 
taxable year. However, in order for a dividend distributed by such 
member during such taxable year to meet the requirements of section 
243(b)(1), an election under section 243(b)(2) must be effective for the 
taxable year of each member of the affiliated group which includes the 
date such dividend is received. See section 243(b)(1)(A) and paragraph 
(a)(1) of this section. Accordingly, if the dividend is to qualify for 
the 100-percent dividends received deduction under section 243(a)(3), a 
consent must be filed under this subdivision by each member of the 
affiliated group with respect to its taxable year which includes the day 
the dividend is received (unless an election is effective for such 
taxable year under subdivision (i)(a) of this subparagraph). For 
purposes of this subdivision, a consent shall be made by means of a 
statement meeting the requirements of subparagraph (2)(iii) of this 
paragraph, and shall be attached to the election made by the common 
parent corporation for its taxable year which includes the last day of 
the taxable year of the member with respect to which the consent is 
made. A copy of the statement should be filed, within 60 days after such 
election is filed by the common parent corporation, with the district 
director with whom the consenting member filed its income tax return for 
such taxable year.
    (iii) Examples. The provisions of subdivision (ii) of this 
subparagraph, relating to the special rule for certain taxable years 
ending in 1964, may be illustrated by the following examples:

    Example 1. P Corporation owns all the stock of S-1 Corporation on 
each day of 1963, 1964, and 1965. P uses the calendar year as its 
taxable year and S-1 uses a fiscal year ending June 30 as its taxable 
year. P makes an election under section 243(b)(2) for 1964. Since S-1 is 
a wholly owned subsidiary for its taxable year ending June 30, 1965, it 
is deemed to consent to the election. However, in order for the election 
to be effective with respect to S-1's taxable year ending June 30, 1964, 
a statement specifying that S-1 consents to the election with respect to 
such taxable year and containing the information required in a statement 
of consent under subparagraph (2)(iii) of this paragraph must be 
attached to the election.
    Example 2. Assume the same facts as in Example 1, except that P also 
owns all the stock of S-2 Corporation on each day of 1963, 1964, and 
1965. S-2 uses a fiscal year ending May 31 as its taxable year. If S-1 
distributes a dividend to P on January 15, 1964, the dividend may 
qualify under section 243(a)(3) only if S-1 and S-2 both consent to the 
election made by P for 1964 with respect to their taxable years ending 
in 1964.
    Example 3. Assume the same facts as in Example 1, except that P uses 
a fiscal year ending on January 31 as its taxable year and makes an 
election under subparagraph (1) of this paragraph for its taxable year 
ending January 31, 1964. Since S-1's taxable year beginning in 1963 and 
ending in 1964 includes January 31, 1964, the last day of P's taxable 
year for which the election was made, the election is effective under 
subdivision (i)(a) of this subparagraph, for S-1's taxable year ending 
June 30, 1964. Accordingly, the special

[[Page 515]]

rule of subdivision (ii) of this subparagraph has no application.

    (d) Effect of election. For restrictions and limitations applicable 
to corporations which are members of an electing affiliated group on 
each day of their taxable years, see Sec. 1.243-5.
    (e) Termination of election--(1) In general. An election under 
section 243(b)(2) by an affiliated group may be terminated with respect 
to any taxable year of the common parent corporation after the matching 
taxable year of election of the common parent corporation. The election 
is terminated as a result of one of the occurrences described in 
subparagraph (2) or (3) of this paragraph. For years affected by 
termination, see subparagraph (4) of this paragraph.
    (2) Consent of members--(i) General. An election may be terminated 
for an affiliated group by its common parent corporation with respect to 
a taxable year of the common parent corporation provided each 
corporation (other than the common parent) that was a member of the 
affiliated group at any time during its taxable year that includes the 
last day of such year of the common parent (the ``matching taxable year 
of termination'') consents to such termination. The statement of 
termination may be filed by the common parent corporation at any time, 
provided that, with respect to each corporation the tax liability of 
which for its matching taxable year of termination (or for any 
subsequent taxable year) would be increased because of the termination, 
at the time of filing there is at least 1 year remaining in the 
statutory period (including any extensions thereof) for the assessment 
of a deficiency against such corporation for such year. (If there is 
less than 1 year remaining with respect to any taxable year, the 
district director for the internal revenue district in which is located 
the principal place of business or principal office or agency of the 
corporation will ordinarily, upon request, enter into agreement to 
extend such statutory period for assessment and collection of 
deficiencies.)
    (ii) Statements filed after December 31, 1968. With respect to 
statements of termination filed after December 31, 1968:
    (a) The statement shall be filed with the district director for the 
internal revenue district in which is located the principal place of 
business or principal office or agency of the common parent corporation;
    (b) The statement shall be signed by any person who is duly 
authorized to act on behalf of the common parent corporation and shall 
state that the affiliated group terminates the election under section 
243(b)(2) for such taxable year;
    (c) The statement shall set forth the name, address, taxpayer 
account number, and taxable year of each corporation (including wholly 
owned subsidiaries) which is a member of the affiliated group at the 
time the termination is filed; and
    (d) The consents to the termination shall be given in accordance 
with the rules prescribed in paragraph (c)(2) of this section, relating 
to manner and time for giving consents to an election under section 
243(b)(2).
    (3) Refusal by new member to consent--(i) Manner of giving refusal. 
If any corporation which is a new member of an affiliated group with 
respect to a taxable year of the common parent corporation (other than 
the matching taxable year of election of the common parent corporation) 
files a statement that it does not consent to an election under section 
243(b)(2) with respect to such taxable year, then such election shall 
terminate with respect to such taxable year. Such statement shall be 
signed by any person who is duly authorized to act on behalf of the new 
member, and shall be filed with the timely filed income tax return of 
such new member for its taxable year within which falls the last day of 
such taxable year of the common parent corporation. In the event of a 
termination under this subparagraph, each corporation (other than such 
new member) that is a member of the affiliated group at any time during 
its taxable year which includes such last day should, within 30 days 
after such new member files the statement of refusal to consent, notify 
the district director of such termination. Such notification should be 
filed with the district director for the internal revenue district in 
which is located the principal place of

[[Page 516]]

business or principal office or agency of the corporation.
    (ii) Corporation considered as new member. For purposes of 
subdivision (i) of this subparagraph, a corporation shall be considered 
to be a new member of an affiliated group of corporations with respect 
to a taxable year of the common parent corporation if such corporation:
    (a) Is a member of the affiliated group at any time during such 
taxable year of the common parent corporation, and
    (b) Was not a member of the affiliated group at any time during the 
common parent corporation's immediately preceding taxable year.
    (4) Effect of termination. A termination under subparagraph (2) or 
(3) of this paragraph is effective with respect to (i) the common parent 
corporation's taxable year referred to in the particular subparagraph 
under which the termination occurs, and (ii) the taxable years of the 
other members of the affiliated group which include the last day of such 
taxable year of the common parent. An election, once terminated, is no 
longer effective. Accordingly, the termination is also effective with 
respect to the succeeding taxable years of the members of the group. 
However, the affiliated group may make a new election in accordance with 
the provisions of section 243(b)(2) and paragraph (c) of this section.

[T.D. 6992, 34 FR 817, Jan. 18, 1969]



Sec. 1.243-5  Effect of election.

    (a) General--(1) Corporations subject to restrictions and 
limitations. If an election by an affiliated group under section 
243(b)(2) is effective with respect to a taxable year of the common 
parent corporation, then each corporation (including the common parent 
corporation) which is a member of such group on each day of its matching 
taxable year shall be subject to the restrictions and limitations 
prescribed by paragraphs (b), (c), and (d) of this section for such 
taxable year. For purposes of this section, the term matching taxable 
year shall mean the taxable year of each member (including the common 
parent corporation) of an affiliated group which includes the last day 
of a particular taxable year of the common parent corporation for which 
an election by the affiliated group under section 243(b)(2) is 
effective. If a corporation is a member of an affiliated group on each 
day of a short taxable year which does not include the last day of a 
taxable year of the common parent corporation, and if an election under 
section 243(b)(2) is effective for such short year, see paragraph (g) of 
this section. In the case of taxable years beginning in 1963 and ending 
in 1964 for which an election under section 243(b)(2) is effective under 
paragraph (c)(4)(ii) of Sec. 1.243-4, see paragraph (f)(9) of this 
section.
    (2) Members filing consolidated returns. The restrictions and 
limitations prescribed by this section shall apply notwithstanding the 
fact that some of the corporations which are members of the electing 
affiliated group (within the meaning of section 243(b)(5)) join in the 
filing of a consolidated return. Thus, for example, if an electing 
affiliated group includes one or more corporations taxable under section 
11 of the Code and two or more insurance companies taxable under section 
802 of the Code, and if the insurance companies join in the filing of a 
consolidated return, the amount of such companies' exemptions from 
estimated tax (for purposes of sections 6016 and 6655) shall be the 
amounts determined under paragraph (d)(5) of this section and not the 
amounts determined pursuant to the regulations under section 1502.
    (b) Multiple surtax exemption election--(1) General rule. If an 
election by an affiliated group under section 243(b)(2) is effective 
with respect to a taxable year of the common parent corporation, then no 
corporation which is a member of such affiliated group on each day of 
its matching taxable year may consent (or shall be deemed to consent) to 
an election under section 1562(a)(1), relating to election of multiple 
surtax exemptions, which would be effective for such matching taxable 
year. Thus, each corporation which is a component member of the 
controlled group of corporations with respect to its matching taxable 
year (determined by applying section 1563(b) without regard to paragraph 
(2)(D) thereof) shall determine its surtax exemption for such taxable

[[Page 517]]

year in accordance with section 1561 and the regulations thereunder.
    (2) Special rule for certain insurance companies. Under section 
243(b)(6)(A), if the provisions of subparagraph (1) of this paragraph 
apply with respect to the taxable year of an insurance company subject 
to taxation under section 802 or 821, then the surtax exemption of such 
insurance company for such taxable year shall be determined by applying 
part II (section 1561 and following), subchapter B, chapter 6 of the 
Code, with respect to such insurance company and the other corporations 
which are component members of the controlled group of corporations (as 
determined under section 1563 without regard to subsections (a)(4) and 
(b)(2)(D) thereof) of which such insurance company is a member, without 
regard to section 1563(a)(4) (relating to certain insurance companies 
treated as a separate controlled group) and section 1563(b)(2)(D) 
(relating to certain insurance companies treated as excluded members).
    (3) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. Throughout 1965 corporation M owns all the stock of 
corporations L-1, L-2, S-1, and S-2. M is a domestic mutual insurance 
company subject to tax under section 821 of the Code, L-1 and L-2 are 
domestic life insurance companies subject to tax under section 802 of 
the Code, and S-1 and S-2 are domestic corporations subject to tax under 
section 11 of the Code. Each corporation uses the calendar year as its 
taxable year. M makes a valid election under section 243(b)(2) for the 
affiliated group consisting of M, L-1, L-2, S-1, and S-2. If part II, 
subchapter B, chapter 6 of the Code were applied with respect to the 
1965 taxable years of the corporations without regard to section 
243(b)(6)(A), the following would result: S-1 and S-2 would be treated 
as component members of a controlled group of corporations on such date; 
L-1 and L-2 would be treated as component members of a separate 
controlled group on such date; and M would be treated as an excluded 
member. However, since section 243(b)(6)(A) requires that part II of 
subchapter B be applied without regard to section 1563(a)(4) and 
(b)(2)(D), for purposes of determining the surtax exemptions of M, L-1, 
L-2, S-1, and S-2 for their 1965 taxable years, such corporations are 
treated for purposes of such part II as component members of a single 
controlled group of corporations on December 31, 1965. Moreover, by 
reason of having made the election under section 243(b)(2), M, L-1, L-2, 
S-1, and S-2 cannot consent to multiple surtax exemption elections under 
section 1562 which would be effective for their 1965 taxable years. 
Thus, such corporations are limited to a single $25,000 surtax exemption 
for such taxable years (to be apportioned among such corporations in 
accordance with section 1561 and the regulations thereunder).

    (c) Foreign tax credit--(1) General. If an election by an affiliated 
group under section 243(b)(2) is effective with respect to a taxable 
year of the common parent corporation, then:
    (i) The credit under section 901 for taxes paid or accrued to any 
foreign country or possession of the United States shall be allowed to a 
corporation which is a member of such affiliated group for each day of 
its matching taxable year only if each other corporation which pays or 
accrues such foreign taxes to any foreign country or possession, and 
which is a member of such group on each day of its matching taxable 
year, does not deduct such taxes in computing its tax liability for its 
matching taxable year, and
    (ii) A corporation which is a member of such affiliated group on 
each day of its matching taxable year may use the overall limitation 
provided in section 904(a)(2) for such matching taxable year only if 
each other corporation which pays or accrues foreign taxes to any 
foreign country or possession, and which is a member of such group on 
each day of its matching taxable year, uses such limitation for its 
matching taxable year.
    (2) Consent of the Commissioner. In the absence of unusual 
circumstances, a request by a corporation for the consent of the 
Commissioner to the revocation of an election of the overall limitation, 
or to a new election of the overall limitation, for the purpose of 
satisfying the requirements of subparagraph (1)(ii) of this paragraph 
will be given favorable consideration, notwithstanding the fact that 
there has been no change in the basic nature of the corporation's 
business or changes in conditions in a foreign country which 
substantially affect the corporation's business. See paragraph (d)(3) of 
Sec. 1.904-1.
    (d) Other restrictions and limitations--(1) General rule. If an 
election by an affilated group under section 243(b)(2)

[[Page 518]]

is effective with respect to a taxable year of the common parent 
corporation, then, except to the extent that an apportionment plan 
adopted under paragraph (f) of this section for such taxable year 
provides otherwise with respect to a restriction or limitation described 
in this paragraph, the rules provided in subparagraphs (2), (3), (4), 
and (5) of this paragraph shall apply to each corporation which is a 
member of such affiliated group on each day of its matching taxable year 
for the purpose of computing the amount of such restriction or 
limitation for its matching taxable year. For purposes of this 
paragraph, each corporation which is a member of an electing affiliated 
group (including any member which joins in filing a consolidated return) 
shall be treated as a separate corporation for purposes of determining 
the amount of such restrictions and limitations.
    (2) Accumulated earnings credit--(i) General. Except as provided in 
subdivision (ii) of this subparagraph, in determining the minimum 
accumulated earnings credit under section 535(c)(2) (or the accumulated 
earnings credit of a mere holding or investment company under section 
535(c)(3) for each corporation which is a member of the affiliated group 
on each day of its matching taxable year, in lieu of the $150,000 amount 
($100,000 amount in the case of taxable years beginning before January 
1, 1975) mentioned in such sections there shall be substituted an amount 
equal to (a) $150,000 ($100,000 in the case of taxable years beginning 
before January 1, 1975), divided by (b) the number of such members.
    (ii) Allocation of excess. If, with respect to one or more members, 
the amount determined under subdivision (i) of this subparagraph exceeds 
the sum of (a) such member's accumulated earnings and profits as of the 
close of the preceding taxable year, plus (b) such member's earnings and 
profits for the taxable year which are retained (within the meaning of 
section 535(c)(1), then any such excess shall be subtracted from the 
amount determined under subdivision (i) of this subparagraph and shall 
be divided equally among those remaining members of the affiliated group 
that do not have such an excess (until no such excess remains to be 
divided among those remaining members that have not had such an excess). 
The excess so divided among such remaining members shall be added to the 
amount determined under subdivision (i) with respect to such members.
    (iii) Apportionment plan not allowed. An affiliated group may not 
adopt an apportionment plan, as provided in paragraph (f) of this 
section, with respect to the amounts computed under the provisions of 
this subparagraph.
    (iv) Example. The provisions of this subparagraph may be illustrated 
by the following example;

    Example. An affiliated group is composed of four member 
corporations, W, X, Y, and Z. The sum of the accumulated earnings and 
profits (as of the close of the preceding taxable year ending December 
31, 1975) plus the earnings and profits for the taxable year ending 
December 31, 1976 which are retained is $15,000, $75,000, $37,500, and 
$300,000 in the case of W, X, Y, and Z, respectively. The amounts 
determined under this subparagraph for W, X, Y, and Z are $15,000, 
$48,750, $37,500 and $48,750, respectively, computed as follows:

----------------------------------------------------------------------------------------------------------------
                                                                               Component members
                                                             ---------------------------------------------------
                                                                   W            X            Y            Z
----------------------------------------------------------------------------------------------------------------
Earnings and profits........................................      $15,000      $75,000      $37,500     $300,000
Amount computed under subpar. (1)...........................       37,500       37,500       37,500       37,500
Excess......................................................       22,500            0            0            0
Allocation of excess........................................  ...........        7,500        7,500        7,500
New excess..................................................  ...........  ...........        7,500  ...........
Reallocation of new excess..................................  ...........        3,750  ...........        3,750
                                                             ---------------------------------------------------
    Amount to be used for purposes of sec. 535(c) (2) and          15,000       48,750       37,500       48,750
     (3)....................................................
----------------------------------------------------------------------------------------------------------------

    (3) Mine exploration expenditures--(i) Limitation under section 
615(a). If the aggregate of the expenditures to which section 615(a) 
applies, which are paid or incurred by corporations which are members of 
the affiliated group on

[[Page 519]]

each day of their matching taxable years (during such taxable years) 
exceeds $100,000, then the deduction (or amount deferrable) under 
section 615 for any such member for its matching taxable year shall be 
limited to an amount equal to the amount which bears the same ratio to 
$100,000 as the amount deductible or deferrable by such member under 
section 615 (computed without regard to this subdivision) bears to the 
aggregate of the amounts deductible or deferrable under section 615 (as 
so computed) by all such members.
    (ii) Limitation under section 615(c). If the aggregate of the 
expenditures to which section 615(a) applies which are paid or incurred 
by the corporations which are members of such affiliated group on each 
day of their matching taxable years (during such taxable years) would, 
when added to the aggregate of the amounts deducted or deferred in prior 
taxable years which are taken into account by such corporations in 
applying the limitation of section 615(c), exceed $400,000, then section 
615 shall not apply to any such expenditure so paid or incurred by any 
such member to the extent such expenditure would exceed the amount which 
bears the same ratio to (a) the amount, if any, by which $400,000 
exceeds the amounts so deducted or deferred in prior years, as (b) such 
member's deduction (or amount deferrable) under section 615 (computed 
without regard to this subdivision) for such expenditures paid or 
incurred by such member during its matching taxable year, bears to (c) 
the aggregate of the amounts deductible or deferrable under section 615 
(as so computed) by all such members during their matching taxable 
years.
    (iii) Treatment of corporations filing consolidated returns. For 
purposes of making the computations under subdivisions (i) and (ii) of 
this subparagraph, a corporation which joins in the filing of a 
consolidated return shall be treated as if it filed a separate return.
    (iv) Estimate of exploration expenditures. If, on the date a 
corporation (which is a member of an affiliated group on each day of its 
matching taxable year) files its income tax return for such taxable 
year, it cannot be determined whether or not the $100,000 limitation 
prescribed by subdivision (i) of this subparagraph, or the $400,000 
limitation prescribed by subdivision (ii) of this subparagraph, will 
apply with respect to such taxable year, then such member shall, for 
purposes of such return, apply the provisions of such subdivisions (i) 
and (ii) with respect to such taxable year on the basis of an estimate 
of the aggregate of the exploration expenditures by all such members of 
the affiliated group for their matching taxable years. Such estimate 
shall be made on the basis of the facts and circumstances known at the 
time of such estimate. If an estimate is used by any such member of the 
affiliated group pursuant to this subdivision, and if the actual 
expenditures by all such members differ from the estimate, then each 
such member shall file as soon as possible an original or amended return 
reflecting an amended apportionment (either pursuant to an apportionment 
plan adopted under paragraph (f) of this section or pursuant to the 
application of the rule provided by subdivision (i) or (ii) of this 
subparagraph) based upon such actual expenditures.
    (v) Amount apportioned under apportionment plan. If an electing 
affiliated group adopts an apportionment plan as provided in paragraph 
(f) of this section with respect to the limitation under section 615(a) 
or 615(c), then the amount apportioned under such plan to any 
corporation which is a member of such group may not exceed the amount 
which such member could have deducted (or deferred) under section 615 
had such affiliated group not filed an election under section 243(b)(2).
    (4) Small business deductions of life insurance companies. In the 
case of a life insurance company taxable under section 802 which is a 
member of such affiliated group on each day of its matching taxable 
year, the small business deduction under sections 804(a)(4) and 
809(d)(10) shall not exceed an amount equal to $25,000 divided by the 
number of life insurance companies taxable under section 802 which are 
members of such group on each day of their matching taxable years.

[[Page 520]]

    (5) Estimated tax--(i) Exemption from estimated tax. Except as 
otherwise provided in subdivision (ii) of this subparagraph, the 
exemption from estimated tax (for purposes of estimated tax filing 
requirements under section 6016 and the addition to tax under section 
6655 for failure to pay estimated tax) of each corporation which is a 
member of such affiliated group on each day of its matching taxable year 
shall be (in lieu of the $100,000 amount specified in section 6016(a) 
and (b)(2)(A) and in section 6655(d)(1) and (e)(2)(A) an amount equal to 
$100,000 divided by the number of such members.
    (ii) Nonapplication to certain taxable years beginning in 1963 and 
ending in 1964. For purposes of this section, if a corporation has a 
taxable year beginning in 1963 and ending in 1964 the last day of the 
eighth month of which falls on or before April 10, 1964, then 
(notwithstanding the fact that an election under section 243(b)(2) is 
effective for such taxable year) subdivision (i) of this subparagraph 
shall not apply to such corporation for such taxable year. Thus, such 
corporation shall be entitled to a $100,000 exemption from estimated tax 
for such taxable year. Also, with respect to a taxable year described in 
the first sentence of this subdivision, any such corporation shall not 
be considered to be a member of the affiliated group for purposes of 
determining the number of members referred to in subdivision (i) of this 
subparagraph.
    (iii) Examples. The provisions of subdivision (i) of this 
subparagraph may be illustrated by the following examples:

    Example 1. Corporation P owns all the stock of corporation S-1 on 
each day of 1965. On March 1, 1965, P acquires all the stock of 
corporation S-2. Corporations P, S-1, and S-2 file separate returns on a 
calendar year basis. On March 31, 1965, the affiliated group consisting 
of P, S-1, and S-2 anticipates making an election under section 
243(b)(2) for P's 1965 taxable year. If the affiliated group does make a 
valid election under section 243(b)(2) for P's 1965 year, under 
subdivision (i) of this subparagraph the exemption from estimated tax of 
P for 1965, and the exemption from estimated tax of S-1 for 1965, will 
be (assuming an apportionment plan is not filed pursuant to paragraph 
(f) of this section) an amount equal to $50,000 ($100,000/2). (Since S-2 
is not a member of the affiliated group on each day of 1965, S-2's 
exemption from estimated tax will be determined for the year 1965 
without regard to subdivision (i) of this subparagraph, whether or not 
the affiliated group makes the election under section 243(b)(2).) P and 
S-1 file declarations of estimated tax on April 15, 1965, on such basis 
and make payments with respect to such declarations on such basis. Thus, 
if the affiliated group does make a valid election under section 
243(b)(2) for P's 1965 year, P and S-1 will not incur (as a result of 
the application of subdivision (i) of this subparagraph to their 1965 
years) additions to tax under section 6655 for failure to pay estimated 
tax.
    Example 2. Assume the same facts as in Example 1, except that, on 
March 31, 1965, S-1 anticipates that it will incur a loss for its 1965 
year. Accordingly, in anticipation of making an election under section 
243(b)(2) for P's 1965 year and adopting an apportionment plan under 
paragraph (f) of this section, P computes its estimated tax liability 
for 1965 on the basis of a $100,000 exemption, and S-1 computes its 
estimated tax liability for 1965 on the basis of a zero exemption. 
Assume S-1 incurs a loss for 1965 as anticipated. Thus, if P does make 
the election for 1965, and an apportionment plan is adopted apportioning 
$100,000 to P and zero to S-1 (for their 1965 years), P and S-1 will not 
incur (as a result of the application of subdivision (i) of this 
subparagraph to their 1965 years) additions to tax under section 6655 
for failure to pay estimated tax.
    Example 3. Assume the same facts as in Example 1, except that P and 
S-1 file declarations of estimated tax on April 15, 1965, on the basis 
of separate $100,000 exemptions from estimated tax for their 1965 years, 
and make payments with respect to such declarations on such basis. 
Assume that the affiliated group makes an election under section 
243(b)(2) for P's 1965 year. Under subdivision (i) of this subparagraph, 
P and S-1 are limited in the aggregate to a single $100,000 exemption 
from estimated tax for their 1965 years. The provisions of section 6655 
will be applied to the 1965 year of P and the 1965 year of S-1 on the 
basis of a $50,000 exemption from estimated tax for each corporation, 
unless a different apportionment of the $100,000 amount is adopted under 
paragraph (f) of this section. Since the election was made under section 
243(b)(2), regardless of whether or not the affiliated group anticipated 
making the election, P or S-1 (or both) may incur additions to tax under 
section 6655 for failure to pay estimated tax.

    (e) Effect of election for certain taxable years beginning in 1963 
and ending in 1964. If an election under section 243(b)(2) by an 
affiliated group is effective for a taxable year of a corporation

[[Page 521]]

under paragraph (c)(4)(ii) of Sec. 1.243-4 (relating to election for 
certain taxable years beginning in 1963 and ending in 1964), and if such 
corporation is a member of such group on each day of such taxable year, 
then the restrictions and limitations prescribed by paragraphs (b), (c), 
and (d) of this section shall apply to all such members having such 
taxable years (for such taxable years). For purposes of this paragraph, 
such paragraphs shall be applied with respect to such taxable years as 
if such taxable years included the last day of a taxable year of the 
common parent corporation for which an election was effective under 
section 243(b)(2), i.e., as if such taxable years were matching taxable 
years. For apportionment plans with respect to such taxable years, see 
paragraph (f) (9) of this section.
    (f) Apportionment plans--(1) In general. In the case of corporations 
which are members of an affiliated group of corporations on each day of 
their matching taxable years:
    (i) The $100,000 amount referred to in paragraph (d)(3)(i) of this 
section (relating to limitation under section 615(a)),
    (ii) The amount determined under paragraph (d)(3)(ii)(a) of this 
section (relating to limitation under section 615(c)),
    (iii) The $25,000 amount referred to in paragraph (d)(4) of this 
section (relating to small business deduction of life insurance 
companies), and
    (iv) The $100,000 amount referred to in paragraph (d)(5)(i) of this 
section (relating to exemption from estimated tax), may be apportioned 
among such members (for such taxable years) if the common parent 
corporation files an apportionment plan with respect to such taxable 
years in the manner provided in subparagraph (4) of this paragraph, and 
if all other members consent to the plan, in the manner provided in 
subparagraph (5) or (6) of this paragraph (whichever is applicable). The 
plan may provide for the apportionment to one or more of such members, 
in fixed dollar amounts, of one or more of the amounts referred to in 
subdivisions (i), (ii), (iii), and (iv) of this subparagraph, but in no 
event shall the sum of the amounts so apportioned in respect to any such 
subdivision exceed the amount referred to in such subdivision. See also 
paragraph (d)(3)(v) of this section, relating to the maximum amount that 
may be apportioned to a corporation under this subparagraph with respect 
to exploration expenditures to which section 615 applies.
    (2) Time for adopting plan. An affiliated group may adopt an 
apportionment plan with respect to the matching taxable years of its 
members only if, at the time such plan is sought to be adopted, there is 
at least 1 year remaining in the statutory period (including any 
extensions thereof) for the assessment of a deficiency against any 
corporation the tax liability of which for any taxable year would be 
increased by the adoption of such plan. (If there is less than 1 year 
remaining with respect to any taxable year, the district director for 
the internal revenue district in which is located the principal place of 
business or principal office or agency of the corporation will 
ordinarily, upon request, enter into an agreement to extend such 
statutory period for assessment and collection of deficiencies.)
    (3) Years for which effective. A valid apportionment plan with 
respect to matching taxable years of members of an affiliated group 
shall be effective for such matching taxable years, and for all 
succeeding matching taxable years of such members, unless the plan is 
amended in accordance with subparagraph (8) of this paragraph or is 
terminated. Thus, the apportionment plan (including any amendments 
thereof) has a continuing effect and need not be renewed annually. An 
apportionment plan with respect to a particular taxable year of the 
common parent shall terminate with respect to the taxable years of the 
members of the affiliated group which include the last day of a 
succeeding taxable year of the common parent if:
    (i) Any corporation which was a member of the affiliated group on 
each day of its matching taxable year which included the last day of the 
particular taxable year of the common parent is not a member of such 
group on each day of its taxable year which includes the last day of 
such succeeding taxable year of the common parent, or

[[Page 522]]

    (ii) Any corporation which was not a member of such group on each 
day of its taxable year which included the last day of the particular 
taxable year of the common parent is a member of such group on each day 
of its taxable year which includes the last day of such succeeding 
taxable year of the common parent.

An apportionment plan, once terminated, is no longer effective. 
Accordingly, unless a new apportionment plan is filed and consented to 
(or the section 243(b)(2) election is terminated) the amounts referred 
to in subparagraph (1) of this paragraph will be apportioned among the 
corporations which are members of the affiliated group on each day of 
their matching taxable years in accordance with the rules provided in 
paragraphs (d)(3)(i), (d)(3)(ii), (d)(4), and (d)(5)(i) of this section.
    (4) Filing of plan. The apportionment plan shall be in the form of a 
statement filed by the common parent corporation with the district 
director for the internal revenue district in which is located the 
principal place of business or principal office or agency of such common 
parent. The statement shall be signed by any person who is duly 
authorized to act on behalf of the common parent corporation and shall 
set forth the name, address, internal revenue district, taxpayer account 
number, and taxable year of each member to whom the common parent could 
apportion an amount under subparagraph (1) of this paragraph (or, in the 
case of an apportionment plan referred to in subparagraph (9) of this 
paragraph, each member to whom the common parent could apportion an 
amount under such subparagraph) and the amount (or amounts) apportioned 
to each such member under the plan.
    (5) Consent of wholly owned subsidiaries. If all the stock of a 
corporation which is a member of the affiliated group on each day of its 
matching taxable year is owned on each such day by another corporation 
(or corporations) which is a member of such group on each day of its 
matching taxable year, such corporation (hereinafter in this paragraph 
referred to as a ``wholly owned subsidiary'') shall be deemed to consent 
to the apportionment plan. Each wholly owned subsidiary should attach a 
copy of the plan filed by the common parent corporation to an income tax 
return, amended return, or claim for refund for its matching taxable 
year.
    (6) Consent of other members. The consent of each member (other than 
the common parent corporation and wholly owned subsidiaries) to an 
apportionment plan shall be in the form of a statement, signed by any 
person who is duly authorized to act on behalf of the member consenting 
to the plan, stating that such member consents to the plan. The consent 
of more than one such member may be incorporated in a single statement. 
The statement (or statements) shall be attached to the apportionment 
plan filed by the common parent corporation. The consent of any such 
member which, after the date the apportionment plan was filed and during 
its matching taxable year referred to in subparagraph (1) of this 
paragraph, ceases to be a wholly owned subsidiary but continues to be a 
member, shall be filled with the district director with whom the 
apportionment plan is filed (as soon as possible after it ceases to be a 
wholly owned subsidiary). Each consenting member should attach a copy of 
the apportionment plan filed by the common parent to an income tax 
return, amended return, or claim for refund for its matching taxable 
year which includes the last day of the taxable year of the common 
parent corporation for which the apportionment plan was filed.
    (7) Members of group filing consolidated return--(i) General rule. 
Except as provided in subdivision (ii) of this subparagraph, if the 
members of an affiliated group of corporations include one or more 
corporations taxable under section 11 of the Code and one or more 
insurance companies taxable under section 802 or 821 of the Code and if 
the affiliated group includes corporations which join in the filing of a 
consolidated return, then, for purposes of determining the amount to be 
apportioned to a corporation under an apportionment plan adopted under 
this paragraph, the corporations filing the consolidated return shall be 
treated as a single member.
    (ii) Consenting to an apportionment plan. For purposes of consenting 
to an

[[Page 523]]

apportionment plan under subparagraphs (5) and (6) of this paragraph, if 
the members of an affiliated group of corporations include corporations 
which join in the filing of a consolidated return, each corporation 
which joins in filing the consolidated return shall be treated as a 
separate member.
    (8) Amendment of plan. An apportionment plan, which is effective for 
the matching taxable years of members of an affiliated group, may be 
amended if an amended plan is filed (and consented to) within the time 
and in accordance with the rules prescribed in this paragraph for the 
adoption of an original plan with respect to such taxable years.
    (9) Certain taxable years beginning in 1963 and ending in 1964. In 
the case of corporations which are members of an affiliated group of 
corporations on each day of their taxable years referred to in paragraph 
(e) of this section:
    (i) The $100,000 amount referred to in paragraph (d)(3)(i) of this 
section (relating to limitation under section 615(a)),
    (ii) The amount determined under paragraph (d)(3)(ii)(a) of this 
section (relating to limitation under section 615(c)),
    (iii) The $25,000 amount referred to in paragraph (d)(4) of this 
section (relating to small business deduction of life insurance 
companies), and
    (iv) The $100,000 amount referred to in paragraph (d)(5)(i) of this 
section (relating to exemption from estimated tax), may be apportioned 
among such members (for such taxable years) if an apportionment plan is 
filed (and consented to) with respect to such taxable years in 
accordance with the rules provided in subparagraphs (2), (4), (5), (6), 
(7), and (8) of this paragraph. For purposes of this subparagraph, such 
subparagraphs shall be applied as if such taxable years included the 
last day of a taxable year of the common parent corporation, i.e., as if 
such taxable years were matching taxable years. An apportionment plan 
adopted under this subparagraph shall be effective only with respect to 
taxable years referred to in paragraph (e) of this section. The plan may 
provide for the apportionment to one or more of such members, in fixed 
dollar amounts, of one or more of the amounts referred to in 
subdivisions (i), (ii), (iii), and (iv) of this subparagraph, but in no 
event shall the sum of the amounts so apportioned in respect of any such 
subdivision exceed the amount referred to in such subdivision. See also 
paragraph (d)(3)(v) of this section, relating to the maximum amount that 
may be apportioned to a corporation under an apportionment plan 
described in this subparagraph with respect to exploration expenditures 
to which section 615 applies.
    (g) Short taxable years--(1) General. If:
    (i) The return of a corporation is for a short period (ending after 
December 31, 1963) on each day of which such corporation is a member of 
an affiliated group,
    (ii) The last day of the common parent's taxable year does not end 
with or within such short period, and
    (iii) An election under section 243(b)(2) by such group is effective 
under paragraph (c) (4) (i) of Sec. 1.243-4 for the taxable year of the 
common parent within which falls such short period, then the 
restrictions and limitations prescribed by section 243(b)(3) shall be 
applied in the manner provided in subparagraph (2) of this paragraph.
    (2) Manner of applying restrictions. In the case of a corporation 
described in subparagraph (1) of this paragraph having a short period 
described in such subparagraph:
    (i) Such corporation may not consent to an election under section 
1562, relating to election of multiple surtax exemptions, which would be 
effective for such short period;
    (ii) The credit under section 901 shall be allowed to such 
corporation for such short period if, and only if, each corporation, 
which pays or accrues foreign taxes and which is a member of the 
affiliated group on each day of its taxable year which includes the last 
day of the common parent's taxable year within which falls such short 
period, does not deduct such taxes in computing its tax liability for 
its taxable year which includes such last day;
    (iii) The overall limitation provided in section 904(a)(2) shall be 
allowed to such corporation for such short period if, and only if, each 
corporation, which pays or accrues foreign taxes and which is a member 
of the affiliated

[[Page 524]]

group on each day of its taxable year which includes the last day of the 
common parent's taxable year within which falls such short period, uses 
such limitation for its taxable year which includes such last day;
    (iv) The minimum accumulated earnings credit provided by section 
535(c)(2) (or in the case of a mere holding or investment company, the 
accumulated earnings credit provided by section 535(c)(3)) allowable for 
such short period shall be the amount computed by dividing (a) the 
amount (if any) by which $100,000 exceeds the aggregate of the 
accumulated earnings and profits of the corporations, which are members 
of the affiliated group on the last day of such short period, as of the 
close of their taxable years preceding the taxable year which includes 
the last day of such short period, by (b) the number of such members on 
the last day of such short period;
    (v) The deduction allowable under section 615(a) for such short 
period shall be limited to an amount equal to $100,000 divided by the 
number of corporations which are members of the affiliated group on the 
last day of such short period;
    (vi) If the expenditures to which section 615(a) applies which are 
paid or incurred by such corporation during such short period would, 
when added to the aggregate of the amounts deducted or deferred (in 
taxable years ending before the last day of such short period) which are 
taken into account in applying the limitation of section 615(c) by 
corporations which are members of the affiliated group on the last day 
of such short period exceed $400,000, then section 615 shall not apply 
to any such expenditure so paid or incurred by such corporation to the 
extent such expenditure would exceed an amount equal to (a) the amount 
(if any) by which $400,000 exceeds the aggregate of the amounts so 
deducted or deferred in such taxable years (computed as if each member 
filed a separate return), divided by (b) the number of corporations in 
the group which have taxable years ending on such last day;
    (vii) If such corporation is a life insurance company taxable under 
section 802, the small business deduction under sections 804(a)(4) and 
809(d)(10) shall not exceed an amount equal to (a) $25,000, divided by 
(b) the number of life insurance companies taxable under section 802 
which are members of the affiliated group on the last day of such short 
period; and
    (viii) The exemption from estimated tax (for purposes of estimated 
tax filing requirements under section 6016 and the addition to tax under 
section 6655 for failure to pay estimated tax) for such short period 
shall be an amount equal to $100,000 divided by the number of 
corporations which are members of the affiliated group on the last day 
of such short period.

[T.D. 6992, 34 FR 821, Jan. 18, 1969, as amended by T.D. 7376, 40 FR 
42745, Sept. 16, 1975]



Sec. 1.244-1  Deduction for dividends received on certain preferred 
stock.

    A corporation is allowed a deduction under section 244 for dividends 
received on certain preferred stock of certain public utility 
corporations subject to taxation under chapter 1 of the Code. The 
deduction is allowable only for dividends received on the preferred 
stock of a public utility with respect to which the deduction for 
dividends paid provided in section 247 (relating to dividends paid on 
certain preferred stock of public utilities) is allowable to the 
distributing corporation.



Sec. 1.244-2  Computation of deduction.

    (a) General rule. Section 244(a) provides a formula for the 
computation of the deduction for dividends received on the preferred 
stock of a public utility. For purposes of this computation, the normal 
tax rate referred to in section 244(a)(2)(B) shall be determined without 
regard to any additional tax imposed by section 1562(b). See section 
1562(b)(4). The deduction computed under section 244(a) is subject to 
the limitation provided in section 246.
    (b) Qualifying dividends. Section 244(b) provides that in the case 
of dividends received on the preferred stock of a public utility in 
taxable years ending after December 31, 1963, which are ``qualifying 
dividends''(as defined in section 243(b)(1), but determined without 
regard to section 243(c)(4)), the computation of the deduction for 
dividends received shall be made by applying the formula provided by 
section

[[Page 525]]

244(a) separately to such qualifying dividends. For such purposes, 100 
percent shall be used in lieu of the 85 percent specified in section 
244(a)(3).
    (c) Examples. The computation of the deduction provided in section 
244 may be illustrated by the following examples:

    Example 1. Corporation X, which files its income tax returns on the 
calendar year basis, received in 1965 $100,000 as dividends on the 
preferred stock of corporation Y, a public utility corporation which is 
subject to taxation under chapter 1 of the Code. The deduction provided 
in section 247 is allowable to Y, the distributing corporation, with 
respect to these dividends and they are not ``qualifying dividends''(as 
defined in section 243(b)(1) but determined without regard to section 
243(c)(4)). The corporation normal tax rate and the surtax rate for the 
calendar year 1965 are 22 percent and 26 percent, respectively. The 
deduction allowable to X under section 244(a) for the year 1965 with 
respect to these dividends is $60,208.33, computed as follows:

Dividends received on preferred stock of corporation Y....   $100,000.00
Less: The fraction specified in section 244(a)(2): 14/         29,166.67
 48x$100,000..............................................
                                                           -------------
Amount subject to 85-percent deduction....................     70,833.33
                                                           -------------
Deduction--85 percent of $70,833.33.......................     60,208.33
                                                           =============
 


The result would be the same if X or Y(or both) were subject to the 6-
percent additional tax imposed by section 1562(b) for 1965.
    Example 2. Assume the same facts as in Example 1 and also assume 
that in 1965 corporation X received $200,000 as dividends on the 
preferred stock of Corporation Z, a public utility corporation which is 
subject to taxation under chapter 1 of the Code. Assume further that 
such dividends are ``qualifying dividends'' (as defined in section 
243(b)(1) but determined without regard to section 243(c)(4)). The 
deduction provided in section 247 is allowable to Z, the distributing 
corporation, with respect to these dividends. The deduction allowable to 
X under section 244 for the year 1965 is $201,875, computed as follows:

Deduction allowable under section 244(a) with respect to      $60,208.33
 the dividend received from Y (see Example 1).............
Deduction allowable under section 244(b) with respect to      200,000.00
 the dividend received from Z: Qualifying dividends
 received on preferred stock of corporation Z.............
Less: The fraction specified in section 244(a)(2): 14/         58,333.33
 48x$200,000..............................................
                                                           -------------
Deduction.................................................    141,666.67
                                                           -------------
Deduction allowable under section 244 for 1965............    201,875.00
                                                           =============
 


[T.D. 6992, 34 FR 825, Jan. 18, 1969]



Sec. 1.245-1  Dividends received from certain foreign corporations.

    (a) General rule. (1) A corporation is allowed a deduction under 
section 245(a) for dividends received from a foreign corporation (other 
than a foreign personal holding company as defined in section 552) which 
is subject to taxation under chapter 1 of the Code if, for an 
uninterrupted period of not less than 36 months ending with the close of 
the foreign corporation's taxable year in which the dividends are paid, 
(i) the foreign corporation is engaged in trade or business in the 
United States, and (ii) 50 percent or more of the foreign corporation's 
entire gross income is effectively connected with the conduct of a trade 
or business in the United States by that corporation. If the foreign 
corporation has been in existence less than 36 months as of the close of 
the taxable year in which the dividends are paid, then the applicable 
uninterrupted period to be taken into consideration in lieu of the 
uninterrupted period of 36 or more months is the entire period such 
corporation has been in existence as of the close of such taxable year. 
An uninterrupted period which satisfied the twofold requirement with 
respect to business activity and gross income may start at a date later 
than the date on which the foreign corporation first commenced an 
uninterrupted period of engaging in trade or business within the United 
States, but the applicable uninterrupted period is in any event the 
longest uninterrupted period which satisfies such twofold requirement. 
The deduction under section 245(a) is allowable to any corporation, 
whether foreign or domestic, receiving dividends from a distributing 
corporation which meets the requirements of that section.
    (2) Any taxable year of a foreign corporation which falls within the 
uninterrupted period described in section 245(a)(2) shall not be taken 
into account in applying section 245(a)(2) and this paragraph if the 100 
percent dividends received deduction would be allowable under paragraph 
(b) of this section, whether or not in fact allowed, with respect to any 
dividends payable, whether or not in fact paid, out of the

[[Page 526]]

earnings and profits of such foreign corporation for that taxable year. 
Thus, in such case the foreign corporation shall be treated as having no 
earnings and profits for that taxable year for purposes of determining 
the dividends received deduction allowable under section 245(a) and this 
paragraph. However, that taxable year may be taken into account for 
purposes of determining whether the foreign corporation meets the 
requirements of section 245(a) that, for the uninterrupted period 
specified therein, the foreign corporation is engaged in trade or 
business in the United States and meets the 50 percent gross income 
requirement.
    (b) Dividends from wholly owned foreign subsidiaries. (1) A domestic 
corporation is allowed a deduction under section 245(b) for any taxable 
year beginning after December 31, 1966, for dividends received from a 
foreign corporation (other than a foreign personal holding company as 
defined in section 552) which is subject to taxation under Chapter 1 of 
the Code if:
    (i) The domestic corporation owns either directly or indirectly all 
of the outstanding stock of the foreign corporation during the entire 
taxable year of the domestic corporation in which the dividends are 
received, and
    (ii) The dividends are paid out of earnings and profits of a taxable 
year of the foreign corporation during which (a) the domestic 
corporation receiving the dividends owns directly or indirectly 
throughout such year all of the outstanding stock of the foreign 
corporation, and (b) all of the gross income of the foreign corporation 
from all sources is effectively connected for that year with the conduct 
of a trade or business in the United States by that corporation.
    (2) The deduction allowed by section 245(b) does not apply if an 
election under section 1562, relating to the privilege of a controlled 
group of corporations to elect multiple surtax exemptions, is effective 
for either the taxable year of the domestic corporation in which the 
dividends are received or the taxable year of the foreign corporation 
out of the earnings and profits of which the dividends are paid.
    (c) Rules of application. (1) Except as provided in section 246, the 
deduction provided by section 245 for any taxable year is the sum of the 
amounts computed under paragraphs (1) and (2) of section 245(a) plus, in 
the case of a domestic corporation for any taxable year beginning after 
December 31, 1966, the sum of the amounts computed under section 
245(b)(2).
    (2) To the extent that a dividend received from a foreign 
corporation is treated as a dividend from a domestic corporation in 
accordance with section 243(d) and Sec. 1.243-3, it shall not be 
treated as a dividend received from a foreign corporation for purposes 
of this section.
    (3) For purposes of section 245 (a) and (b), the amount of a 
distribution shall be determined under subparagraph (B) (without 
reference to subparagraph (C)) of section 301(b)(1).
    (4) In determining from what year's earnings and profits a dividend 
is treated as having been distributed for purposes of this section, the 
principles of paragraph (a) of Sec. 1.316-2 shall apply. A dividend 
shall be considered to be distributed, first, out of the earnings and 
profits of the taxable year which includes the date the dividend is 
distributed, second, out of the earnings and profits accumulated for the 
immediately preceding taxable year, third, out of the earnings and 
profits accumulated for the second preceding taxable year, etc. A 
deficit in an earnings and profits account for any taxable year shall 
reduce the most recently accumulated earnings and profits for a prior 
year in such account. If there are no accumulated earnings and profits 
in an earnings and profits account because of a deficit incurred in a 
prior year, such deficit must be restored before earnings and profits 
can be accumulated in a subsequent accounting year. See also paragraph 
(c) of Sec. 1.243-3 and paragraph (a)(6) of Sec. 1.243-4.
    (5) For purposes of this section the gross income of a foreign 
corporation for any period before its first taxable year beginning after 
December 31, 1966, which is from sources within the United States shall 
be treated as gross income which is effectively connected for that 
period with the conduct of a

[[Page 527]]

trade or business in the United States by that corporation.
    (6) For the determination of the source of income and the income 
which is effectively connected with the conduct of a trade or business 
in the United States, see sections 861 through 864, and the regulations 
thereunder.
    (d) Illustrations. The application of this section may be 
illustrated by the following examples:

    Example 1. Corporation A (a foreign corporation filing its income 
tax returns on a calendar year basis) whose stock is 100 percent owned 
by Corporation B (a domestic corporation filing its income tax returns 
on a calendar year basis) for the first time engaged in trade or 
business within the United States on January 1, 1943, and qualifies 
under section 245 for the entire period beginning on that date and 
ending on December 31, 1954. Corporation A had accumulated earnings and 
profits of $50,000 immediately prior to January 1, 1943, and had 
earnings and profits of $10,000 for each taxable year during the 
uninterrupted period from January 1, 1943, through December 31, 1954. It 
derived for the period from January 1, 1943, through December 31, 1953, 
90 percent of its gross income from sources within the United States and 
in 1954 derived 95 percent of its gross income from sources within the 
United States. During the calendar years 1943, 1944, 1945, 1946, and 
1947 Corporation A distributed in each year $15,000; during the calendar 
years 1948, 1949, 1950, 1951, 1952, and 1953 it distributed in each year 
$5,000; and during the year 1954, $50,000. An analysis of the 
accumulated earnings and profits under the above statement of facts 
discloses that at December 31, 1953, the accumulation amounted to 
$55,000, of which $25,000 was accumulated prior to the ``uninterrupted 
period'' and $30,000 was accumulated during the uninterrupted period. 
(See section 316(a) and paragraph (c) of this section.) For 1954 a 
deduction under section 245 of $31,025 ($8,075 on 1954 earnings of the 
foreign corporation, plus $22,950 from the $30,000 accumulation at 
December 31, 1953) for dividends received from a foreign corporation is 
allowable to Corporation B with respect to the $50,000 received from 
Corporation A, computed as follows:
    (i) $8,075, which is $8,500 (85 percent--the percent specified in 
section 243 for the calendar year 1954--of the $10,000 of earnings and 
profits of the taxable year) multiplied by 95 percent (the portion of 
the gross income of Corporation A derived during the taxable year 1954 
from sources within the United States), plus
    (ii) $22,950, which is $25,500 (85 percent--the percent specified in 
section 243 for the calendar year 1954--of $30,000, the part of the 
earnings and profits accumulated after the beginning of the 
uninterrupted period) multiplied by 90 percent (the portion of the gross 
income of Corporation A derived from sources within the United States 
during that portion of the uninterrupted period ending at the beginning 
of the taxable year 1954).
    Example 2. If in Example 1, Corporation A for the taxable year 1954 
had incurred a deficit of $10,000 (shown to have been incurred before 
December 31) the amount of the earnings and profits accumulated after 
the beginning of the uninterrupted period would be $20,000. If 
Corporation A had distributed $50,000 on December 31, 1954, the 
deduction under section 245 for dividends received from a foreign 
corporation allowable to Corporation B for 1954 would be $15,300, 
computed by multiplying $17,000 (85 percent--the percent specified in 
section 243 for the calendar year 1954--of $20,000 earnings and profits 
accumulated after the beginning of the uninterrupted period) by 90 
percent (the portion of the gross income of Corporation A derived from 
United States sources during that portion of the uninterrupted period 
ending at the beginning of the taxable year 1954).
    Example 3. Corporation A (a foreign corporation filing its income 
tax returns on a calendar year basis) whose stock is 100 percent owned 
by corporation B (a domestic corporation filing its income tax returns 
on a calendar year basis) for the first time engaged in trade or 
business within the United States on January 1, 1960, and qualifies 
under section 245 for the entire period beginning on that date and 
ending on December 31, 1963. In 1963, A derived 75 percent of its gross 
income from sources within the United States. A's earnings and profits 
for 1963 (computed as of the close of the taxable year without 
diminution by reason of any distributions made during the taxable year) 
are $200,000. On December 31, 1963, corporation A distributes to 
corporation B 100 shares of corporation C stock which have an adjusted 
basis in A's hands of $40,000 and a fair market value of $100,000. For 
purposes of computing the deduction under section 245 for dividends 
received from a foreign corporation, the amount of the distribution is 
$40,000. B is allowed a deduction under section 245 of $25,500, i.e., 
$34,000 ($40,000 multiplied by 85 percent, the percent specified in 
section 243 for 1963), multiplied by 75 percent (the portion of the 
gross income of corporation A derived during 1963 from sources within 
the United States).

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6752, 29 FR 
12701, Sept. 9, 1964, T.D. 6830; 30 FR 8046, June 23, 1965; T.D. 7293, 
38 FR 32793, Nov. 28, 1973]

[[Page 528]]



Sec. 1.246-1  Deductions not allowed for dividends from certain 
corporations.

    The deductions provided in sections 243 (relating to dividends 
received by corporations), 244 (relating to dividends received on 
certain preferred stock), and 245 (relating to dividends received from 
certain foreign corporations), are not allowable with respect to any 
dividend received from:
    (a) A corporation organized under the China Trade Act, 1922 (15 
U.S.C. ch. 4) (see section 941); or
    (b) A corporation which is exempt from tax under section 501 
(relating to certain charitable, etc., organizations) or section 521 
(relating to farmers' cooperative associations) for the taxable year of 
the corporation in which the distribution is made or for its next 
preceding taxable year; for
    (c) A corporation to which section 931 (relating to income from 
sources within possessions of the United States) applies for the taxable 
year of the corporation in which the distribution is made or for its 
next preceding taxable year; or
    (d) A real estate investment trust which, for its taxable year in 
which the distribution is made, is taxable under Part II, Subchapter M, 
Chapter 1 of the Code. See section 243(c)(3), paragraph (c) of Sec. 
1.243-2, section 857(c), and paragraph (d) of Sec. 1.857-6.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6598, 27 FR 
4092, Apr. 28, 1962; T.D. 7767, 46 FR 11264, Feb. 6, 1981]



Sec. 1.246-2  Limitation on aggregate amount of deductions.

    (a) General rule. The sum of the deductions allowed by sections 
243(a)(1) (relating to dividends received by corporations), 244(a) 
(relating to dividends received on certain preferred stock), and 245 
(relating to dividends received from certain foreign corporations), 
except as provided in section 246(b)(2) and in paragraph (b) of this 
section, is limited to 85 percent of the taxable income of the 
corporation. The taxable income of the corporation for this purpose is 
computed without regard to the net operating loss deduction allowed by 
section 172, the deduction for dividends paid on certain preferred stock 
of public utilities allowed by section 247, any capital loss carryback 
under section 1212(a)(1), and the deductions provided in sections 
243(a)(1), 244(a), and 245. For definition of the term taxable income, 
see section 63.
    (b) Effect of net operating loss. If the shareholder corporation has 
a net operating loss (as determined under sec. 172) for a taxable year, 
the limitation provided in section 246(b)(1) and in paragraph (a) of 
this section is not applicable for such taxable year. In that event, the 
deductions provided in sections 243(a)(1), 244(a), and 245 shall be 
allowable for all tax purposes to the shareholder corporation for such 
taxable year without regard to such limitation. If the shareholder 
corporation does not have a net operating loss for the taxable year, 
however, the limitation will be applicable for all tax purposes for such 
taxable year. In determining whether the shareholder corporation has a 
net operating loss for a taxable year under section 172, the deductions 
allowed by sections 243(a)(1), 244(a), and 245 are to be computed 
without regard to the limitation provided in section 246(b)(1) and in 
paragraph (a) of this section.

[T.D. 6992, 34 FR 825, Jan. 18, 1969, as amended by T.D. 7301, 39 FR 
963, Jan. 4, 1974]



Sec. 1.246-3  Exclusion of certain dividends.

    (a) In general. Corporate taxpayers are denied, in certain cases, 
the dividends-received deduction provided by section 243 (dividends 
received by corporations), section 244 (dividends received on certain 
preferred stock), and section 245 (dividends received from certain 
foreign corporations). The above-mentioned dividends-received deductions 
are denied, under section 246(c)(1), to corporate shareholders:
    (1) If the dividend is in respect of any share of stock which is 
sold or otherwise disposed of in any case where the taxpayer has held 
such share for 15 days or less; or
    (2) If and to the extent that the taxpayer is under an obligation to 
make corresponding payments with respect to substantially identical 
stock or securities. It is immaterial whether the obligation has arisen 
pursuant to a short sale or otherwise.

[[Page 529]]

    (b) Ninety-day rule for certain preference dividends. In the case of 
any stock having a preference in dividends, a special rule is provided 
by section 246(c)(2) in lieu of the 15-day rule described in section 
246(c)(1) and paragraph (a)(1) of this section. If the taxpayer receives 
dividends on such stock which are attributable to a period or periods 
aggregating in excess of 366 days, the holding period specified in 
section 246(c)(1)(A) shall be 90 days (in lieu of 15 days).
    (c) Definitions--(1) ``Otherwise disposed of''. As used in this 
section the term otherwise disposed of includes disposal by gift.
    (2) ``Substantially identical stock or securities''. The term 
substantially identical stock or securities is to be applied according 
to the facts and circumstances in each case. In general, the term has 
the same meaning as the corresponding terms in sections 1091 and 1233 
and the regulations thereunder. See paragraph (d)(1) of Sec. 1.1233-1.
    (3) Obligation to make corresponding payments. (i) Section 
246(c)(1)(B) of the Code denies the dividends-received deduction to a 
corporate taxpayer to the extent that such taxpayer is under an 
obligation, with respect to substantially identical stock or securities, 
to make payments corresponding to the dividend received. Thus, for 
example, where a corporate taxpayer is in both a ``long'' and ``short'' 
position with respect to the same stock on the date that such stock goes 
ex-dividend, the dividend received on the stock owned by the taxpayer 
will not be eligible for the dividends-received deduction to the extent 
that the taxpayer is obligated to make payments to cover the dividends 
with respect to its offsetting short position in the same stock. The 
dividends-received deduction is denied in such a case without regard to 
the length of time the taxpayer has held the stock on which such 
dividends are received.
    (ii) The provisions of subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example. Y Corporation owns 100 shares of the Z Corporation's common 
stock on January 1, 1959. Z Corporation on January 15, 1959, declares a 
dividend of $1.00 per share payable to shareholders of record on January 
30, 1959. On January 21, 1959, Y Corporation sells short 25 shares of 
the Z Corporation's common stock and remains in the short position on 
January 31, 1959, the day that Z Corporation's common stock goes ex-
dividend. Y Corporation is therefore obligated to make a payment to the 
lender of the 25 shares of Z Corporation's common stock which were sold 
short, corresponding to the $1.00 a share dividend that the lender would 
have received on those 25 shares, or $25.00. Therefore, $25.00 of the 
$100.00 that the Y Corporation receives as dividends from the Z 
Corporation with respect to the 100 shares of common stock in which it 
has a long position is not eligible for the dividends-received 
deduction.

    (d) Determination of holding period--(1) In general. Special rules 
are provided by paragraph (3) of section 246(c) for determining the 
period for which the taxpayer has held any share of stock for purposes 
of the restriction provided by such section. In computing the holding 
period the day of disposition but not the day of acquisition shall be 
taken into account. Also, there shall not be taken into account any day 
which is more than 15 days after the date on which the share of stock 
becomes ex-dividend. Thus, the holding period is automatically 
terminated at the end of such 15-day period without regard to how long 
the stock may be held after that date. In the case of stock qualifying 
under paragraph (2) of section 246(c) (as having preference in 
dividends) a 90-day period is substituted for the 15-day period 
prescribed in this subparagraph. Finally, section 1223(4), relating to 
holding periods in the case of wash sales, shall not apply. Therefore, 
tacking of the holding period of the stock disposed of to the holding 
period of the stock acquired where a wash sale occurs is not permitted 
for purposes of determining the holding period described in section 
246(c).
    (2) Special rules. Section 246(c) requires that the holding periods 
determined thereunder shall be appropriately reduced for any period that 
the taxpayer's stock holding is offset by a corresponding short position 
resulting from an option to sell, a contractual obligation to sell, or a 
short sale of, substantially identical stock or securities. The holding 
periods of stock held for a period of 15 days or less on the date such 
short position is created shall accordingly be reduced to the extent of 
such short position. Where the

[[Page 530]]

amount of stock acquired within such period exceeds the amount as to 
which the taxpayer establishes a short position, the stock the holding 
period of which must be reduced because of such short position shall be 
that most recently acquired within such period. If, on the date the 
short position is created, the amount of stock subject to the short 
position exceeds the amount, if any, of stock held by the taxpayer for 
15 days or less, the excess shares of stock sold short shall, to the 
extent thereof, postpone until the termination of the short position the 
commencement of the holding periods of subsequently acquired stock. 
Stock having a preference in dividends is also subject to the rules 
prescribed in this subparagraph, except that the 90-day period provided 
by paragraph (b) of this section shall apply in lieu of the 15-day 
period otherwise applicable. The rules prescribed in this subparagraph 
may be illustrated by the following examples:

    Example 1. L Company purchased 100 shares of Z Corporation's common 
stock during January 1959. On November 26, 1959, L Company purchased an 
additional 100 shares of the same stock. On December 1, 1959, Z 
Corporation declared a dividend payable on its common stock to 
shareholders of record on December 20, 1959. Also on December 1, L 
Company sold short 150 shares of Z Corporation's common stock. On 
December 16, 1959 (before the stock went ex-dividend), L Company closed 
its short sale with 150 shares purchased on that date. In determining, 
for purposes of section 246(c), whether L Company has held the 100 
shares of stock acquired on November 26 for a period in excess of 15 
days, the period of the short position (from December 2 through December 
16) shall be excluded. Thus, if on or before December 26, 1959, L 
Company sold the 100 shares of Z Corporation stock which it purchased on 
November 26, 1959, it would not be entitled to a dividends-received 
deduction for the dividends received on such shares because it would 
have held such shares for 15 days or less on the date of the sale. Since 
L Company had held the 100 shares acquired during January 1959 for more 
than 15 days on December 2, 1959, and since it was under no obligation 
to make payments corresponding to the dividends received thereon, 
section 246(c) is inapplicable to the dividends received with respect to 
those shares.
    Example 2. Assume the same facts as in Example 1 above except that 
the additional 100 shares of Z Corporation common stock were purchased 
by L Company on December 10, 1959, rather than November 26, 1959. In 
determining, for purposes of section 246(c), whether L Company has held 
such shares for a period in excess of 15 days, the period from December 
11, 1959, until December 16, 1959 (the date the short sale made on 
December 1 was closed), shall be excluded.

    (e) Effective date. The provisions of this section shall apply to 
stock acquired after December 31, 1957, or with respect to stock 
acquired before that date where the taxpayer has made a short sale of 
substantially identical stock or securities after that date.



Sec. 1.246-4  Dividends from a DISC or former DISC.

    The deduction provided in section 243 (relating to dividends 
received by corporations) is not allowable with respect to any dividend 
(whether in the form of a deemed or actual distribution or an amount 
treated as a dividend pursuant to section 995(c)) from a corporation 
which is a DISC or former DISC (as defined in section 992(a)(1) or (3) 
as the case may be) to the extent such dividend is from the 
corporation's accumulated DISC income (as defined in section 996(f)(1)) 
or previously taxed income (as defined in section 996(f)(2)) or is a 
deemed distribution pursuant to section 995(b)(1) in a taxable year for 
which the corporation qualifies (or is treated) as a DISC. To the extent 
that a dividend is paid out of earnings and profits which are not made 
up of accumulated DISC income or previously taxed income, the corporate 
recipient is entitled to the deduction provided in section 243 in the 
same manner and to the same extent as a dividend from a domestic 
corporation which is not a DISC or former DISC.

[T.D. 7283, 38 FR 20824, Aug. 3, 1973]



Sec. 1.246-5  Reduction of holding periods in certain situations.

    (a) In general. Under section 246(c)(4)(C), the holding period of 
stock for purposes of the dividends received deduction is appropriately 
reduced for any period in which a taxpayer has diminished its risk of 
loss by holding one or more other positions with respect to 
substantially similar or related property. This section provides rules 
for applying section 246(c)(4)(C).

[[Page 531]]

    (b) Definitions--(1) Substantially similar or related property. The 
term substantially similar or related property is applied according to 
the facts and circumstances in each case. In general, property is 
substantially similar or related to stock when--
    (i) The fair market values of the stock and the property primarily 
reflect the performance of--
    (A) A single firm or enterprise;
    (B) The same industry or industries; or
    (C) The same economic factor or factors such as (but not limited to) 
interest rates, commodity prices, or foreign-currency exchange rates; 
and
    (ii) Changes in the fair market value of the stock are reasonably 
expected to approximate, directly or inversely, changes in the fair 
market value of the property, a fraction of the fair market value of the 
property, or a multiple of the fair market value of the property.
    (2) Diminished risk of loss. A taxpayer has diminished its risk of 
loss on its stock by holding positions with respect to substantially 
similar or related property if changes in the fair market values of the 
stock and the positions are reasonably expected to vary inversely.
    (3) Position. For purposes of this section, a position with respect 
to property is an interest (including a futures or forward contract or 
an option) in property or any contractual right to a payment, whether or 
not severable from stock or other property. A position does not include 
traditional equity rights to demand payment from the issuer, such as the 
rights traditionally provided by mandatorily redeemable preferred stock.
    (4) Reasonable expectations. For purposes of paragraphs (b)(1)(i), 
(b)(2), or (c)(1)(vi) of this section, reasonable expectations are the 
expectations of a reasonable person, based on all the facts and 
circumstances at the later of the time the stock is acquired or the 
positions are entered into. Reasonable expectations include all explicit 
or implicit representations made with respect to the marketing or sale 
of the position.
    (c) Special rules--(1) Positions in more than one stock--(i) In 
general. This paragraph (c)(1) provides rules for the treatment of 
positions that reflect the value of more than one stock. In general, 
positions that reflect the value of a portfolio of stocks are treated 
under the rules of paragraphs (c)(1) (ii) through (iv) of this section, 
and positions that reflect the value of more than one stock but less 
than a portfolio are treated under the rules of paragraph (c)(1)(v) of 
this section. A portfolio for this purpose is any group of stocks of 20 
or more unrelated issuers. Paragraph (c)(1)(vi) of this section provides 
an anti-abuse rule.
    (ii) Portfolios. Notwithstanding paragraph (b)(1) of this section, a 
position reflecting the value of a portfolio of stocks is substantially 
similar or related to the stocks held by the taxpayer only if the 
position and the taxpayer's holdings substantially overlap as of the 
most recent testing date. A position may be substantially similar or 
related to a taxpayer's entire stock holdings or a portion of a 
taxpayer's stock holdings.
    (iii) Determining substantial overlap. This paragraph (c)(1)(iii) 
provides rules for determining whether a position and a taxpayer's stock 
holdings or a portion of a taxpayer's stock holdings substantially 
overlap. Paragraphs (c)(1)(iii) (A) through (C) of this section 
determine whether there is substantial overlap as of any testing date.
    (A) Step One. Construct a subportfolio (the Subportfolio) that 
consists of stock in an amount equal to the lesser of the fair market 
value of each stock represented in the position and the fair market 
value of the stock in the taxpayer's stock holdings. (The Subportfolio 
may contain fewer than 20 stocks.)
    (B) Step Two. If the fair market value of the Subportfolio is equal 
to or greater than 70 percent of the fair market value of the stocks 
represented in the position, the position and the Subportfolio 
substantially overlap.
    (C) Step Three. If the position does not substantially overlap with 
the Subportfolio, repeat Steps One and Two (paragraphs (c)(1)(iii)(A) 
and (B) of this section) reducing the size of the position. The largest 
percentage of the position that results in a substantial overlap is 
substantially similar or related to the Subportfolio determined

[[Page 532]]

with respect to that percentage of the position.
    (iv) Testing date. A testing date is any day on which the taxpayer 
purchases or sells any stock if the fair market value of the stock or 
the fair market value of substantially similar or related property is 
reflected in the position, any day on which the taxpayer changes the 
position, or any day on which the composition of the position changes.
    (v) Nonportfolio positions. A position that reflects the fair market 
value of more than one stock but not of a portfolio of stocks is treated 
as a separate position with respect to each of the stocks the value of 
which the position reflects.
    (vi) Anti-abuse rule. Notwithstanding paragraphs (c)(1)(i) through 
(v) of this section, a position that reflects the value of more than one 
stock is a position in substantially similar or related property to the 
appropriate portion of the taxpayer's stock holdings if--
    (A) Changes in the value of the position or the stocks reflected in 
the position are reasonably expected to virtually track (directly or 
inversely) changes in the value of the taxpayer's stock holdings, or any 
portion of the taxpayer's stock holdings and other positions of the 
taxpayer; and
    (B) The position is acquired or held as part of a plan a principal 
purpose of which is to obtain tax savings (including by deferring tax) 
the value of which is significantly in excess of the expected pre-tax 
economic profits from the plan.
    (2) Options--(i) Options that are significantly out of the money. 
For purposes of paragraph (b)(2) of this section, an option to sell that 
is significantly out of the money does not diminish the taxpayer's risk 
of loss on its stock unless the option is held as part of a strategy to 
substantially offset changes in the fair market value of the stock.
    (ii) Conversion rights. Notwithstanding paragraphs (b)(1) and (2) of 
this section, a taxpayer is treated as diminishing its risk of loss by 
holding substantially similar or related property if it engages in the 
following transactions or their substantial equivalents--
    (A) A short sale of common stock while holding convertible preferred 
stock of the same issuer and the price changes of the convertible 
preferred stock and the common stock are related;
    (B) A short sale of a convertible debenture while holding 
convertible preferred stock into which the debenture is convertible or 
common stock; or
    (C) A short sale of convertible preferred stock while holding common 
stock.
    (3) Stacking rule. If a taxpayer diminishes its risk of loss by 
holding a position in substantially similar or related property with 
respect to only a portion of the shares that the taxpayer holds in a 
particular stock, the holding period of those shares having the shortest 
holding period is reduced.
    (4) Guarantees, surety agreements, or similar arrangements. A 
taxpayer has diminished its risk of loss on stock by holding a position 
in substantially similar or related property if the taxpayer is the 
beneficiary of a guarantee, surety agreement, or similar arrangement and 
the guarantee, surety agreement, or similar arrangement provides for 
payments that will substantially offset decreases in the fair market 
value of the stock.
    (5) Hedges counted only once. A position established as a hedge of 
one outstanding position, transaction, or obligation of the taxpayer 
(other than stock) is not treated as diminishing the risk of loss with 
respect to any other position held by the taxpayer. In determining 
whether a position is established to hedge an outstanding position, 
transaction, or obligation of the taxpayer, substantial deference will 
be given to the relationships that are established in its books and 
records at the time the position is entered into.
    (6) Use of related persons or pass-through entities. Positions held 
by a party related to the taxpayer within the meaning of sections 267(b) 
or 707(b)(1) are treated as positions held by the taxpayer if the 
positions are held with a view to avoiding the application of this 
section or Sec. 1.1092(d)-2. In addition, a taxpayer is treated as 
diminishing its risk of loss by holding substantially similar or related 
property if the taxpayer holds an interest

[[Page 533]]

in, or is the beneficiary of, a pass-through entity, intermediary, or 
other arrangement with a view to avoiding the application of this 
section or Sec. 1.1092(d)-2.
    (7) Notional principal contracts. For purposes of this section, 
rights and obligations under notional principal contracts are considered 
separately even though payments with regard to those rights and 
obligations are generally netted for other purposes. Therefore, if a 
taxpayer is treated under the preceding sentence as receiving payments 
under a notional principal contract when the fair market value of the 
taxpayer's stock declines, the taxpayer has diminished its risk of loss 
by holding a position in substantially similar or related property 
regardless of the netting of the payments under the contract for any 
other purposes.
    (d) Examples. The following examples illustrate the provisions of 
this section:

    Example 1. General application to common stock. Corporation A and 
Corporation B are both automobile manufacturers. The fair market values 
of Corporation A and Corporation B common stock primarily reflect the 
value of the same industry. Because Corporation A and Corporation B 
common stock are affected not only by the general level of growth in the 
industry but also by individual corporate management decisions and 
corporate capital structures, changes in the fair market value of 
Corporation A common stock are not reasonably expected to approximate 
changes in the fair market value of the Corporation B common stock. 
Under paragraph (b)(1) of this section, Corporation A common stock is 
not substantially similar or related to Corporation B common stock.
    Example 2. Common stock value primarily reflects commodity price. 
Corporation C and Corporation D both hold gold as their primary asset, 
and historically changes in the fair market value of Corporation C 
common stock approximated changes in the fair market value of 
Corporation D common stock. Corporation M purchased Corporation C common 
stock and sold short Corporation D common stock. Corporation C common 
stock is substantially similar or related to Corporation D common stock 
because their fair market values primarily reflect the performance of 
the same economic factor, the price of gold, and changes in the fair 
market value of Corporation C common stock are reasonably expected to 
approximate changes in the fair market value of Corporation D common 
stock. It was reasonably expected that changes in the fair market values 
of the Corporation C common stock and the short position in Corporation 
D common stock would vary inversely. Thus, Corporation M has diminished 
its risk of loss on its Corporation C common stock for purposes of 
section 246(c)(4)(C) and this section by holding a position in 
substantially similar or related property.
    Example 3. Portfolios of stocks. (i) Corporation Z holds a portfolio 
of stocks and acquires a short position on a publicly traded index 
through a regulated futures contract (RFC) that reflects the value of a 
portfolio of stocks as defined in paragraph (c)(1)(i) of this section. 
The index reflects the fair market value of stocks A through T. The 
values of stocks reflected in the index and the values of the same 
stocks in Corporation Z's holdings are as follows:

------------------------------------------------------------------------
                                            Z's
                 Stock                   holdings    RFC    Subportfolio
------------------------------------------------------------------------
A......................................      $300     $300        $300
B......................................       300      300         300
C......................................        --      300          --
D......................................       400      500         400
E......................................       300      500         300
F......................................       300      500         300
G......................................       500      600         500
H......................................       300      300         300
I......................................        --      300          --
J......................................       400      450         400
K......................................       200      500         200
L......................................       200      400         200
M......................................       200      500         200
N......................................       100      200         100
O......................................        --      200          --
P......................................       200      200         200
Q......................................       100      300         100
R......................................       200      100         100
S......................................       100      100         100
T......................................       100      200         100
                                        --------------------------------
      Totals...........................    $4,200   $6,750      $4,100
------------------------------------------------------------------------

    (ii) The position is substantially similar or related to Z's stock 
holdings only if they substantially overlap. To determine whether they 
substantially overlap, Corporation Z must construct a Subportfolio of 
stocks with the lesser of the value of the stock as reflected in the RFC 
and its holdings. The Subportfolio is given in the rightmost column 
above. The value of the Subportfolio is 60.74 percent of the value of 
the stocks represented in the position ($4100/$6750), so the position 
and the Subportfolio do not substantially overlap.
    (iii) To determine whether any portion of the position substantially 
overlaps with any portion of the Z's stock holdings, the values of the 
stocks in the RFC are reduced for purposes of the above steps. Eighty 
percent of the position and the corresponding subportfolio (consisting 
of stocks with a value of the lesser of the stocks represented in Z's 
holdings and in 80 percent of the RFC) substantially overlap, computed 
as follows:

[[Page 534]]



------------------------------------------------------------------------
                                            Z's     80% of
                 Stock                   holdings    RFC    Subportfolio
------------------------------------------------------------------------
A......................................      $300     $240        $240
B......................................       300      240         240
C......................................        --      240          --
D......................................       400      400         400
E......................................       300      400         300
F......................................       300      400         300
G......................................       500      480         480
H......................................       300      240         240
I......................................        --      240          --
J......................................       400      360         360
K......................................       200      400         200
L......................................       200      320         200
M......................................       200      400         200
N......................................       100      160         100
O......................................        --      160          --
P......................................       200      160         160
Q......................................       100      240         100
R......................................       200       80          80
S......................................       100       80          80
T......................................       100      160         100
                                        --------------------------------
      Totals...........................    $4,200   $5,400      $3,780
------------------------------------------------------------------------

    (iv) Because $3,780 is 70 percent of $5,400, the Subportfolio 
substantially overlaps with 80 percent of the position. Under paragraph 
(c)(3) of this section, Z's stocks having the shortest holding period 
are treated as included in the Subportfolio. A larger portion of Z's 
stocks may be treated as substantially similar or related property under 
the anti-abuse rule of paragraph (c)(1)(vi) of this section.
    Example 4. Hedges counted only once. January 1, 1996, Corporation X 
owns a $100 million portfolio of stocks all of which would substantially 
overlap with a $100 million regulated futures contract (RFC) on a 
commonly used index (the Index). On January 15, Corporation X enters 
into a $100 million short position in an RFC on the Index with a March 
delivery date and enters into a $75 million long position in an RFC on 
the Index for June delivery. Also on January 15, 1996, Corporation X 
indicates in its books and records that the long and short RFC positions 
are intended to offset one another. Under paragraph (c)(5) of this 
section, $75 million of the short position in the RFC is not treated as 
diminishing the risk of loss on the stock portfolio and instead is 
treated as a straddle or a hedging transaction, as appropriate, with 
respect to the $75 million long position in the RFC, under section 1092. 
The remaining $25 million short position is treated as diminishing the 
risk of loss on the portfolio by holding a position in substantially 
similar or related property. The rules of paragraph (c)(1) determine how 
much of the portfolio is subject to this rule and the rules of paragraph 
(c)(3) determine which shares have their holding periods tolled.

    (e) Effective date--(1) In general. The provisions of this section 
apply to dividends received on or after March 17, 1995, on stock 
acquired after July 18, 1984.
    (2) Special rule for dividends received on certain stock. 
Notwithstanding paragraph (e)(1) of this section, this section applies 
to any dividends received by a taxpayer on stock acquired after July 18, 
1984, if the taxpayer has diminished its risk of loss by holding 
substantially similar or related property involving the following types 
of transactions--
    (i) The short sale of common stock when holding convertible 
preferred stock of the same issuer and the price changes of the two 
stocks are related, or the short sale of a convertible debenture while 
holding convertible preferred stock into which the debenture is 
convertible (or common stock), or a short sale of convertible preferred 
stock while holding common stock; or
    (ii) The acquisition of a short position in a regulated futures 
contract on a stock index, or the acquisition of an option to sell the 
regulated futures contract or the stock index itself, or the grant of a 
deep-in-the-money option to buy the regulated futures contract or the 
stock index while holding the stock of an investment company whose 
principal holdings mimic the performance of the stocks included in the 
stock index; or alternatively, while holding a portfolio composed of 
stocks that mimic the performance of the stocks included in the stock 
index.

[T.D. 8590, 60 FR 14638, Mar. 20, 1995]



Sec. 1.247-1  Deduction for dividends paid on preferred stock of 
public utilities.

    (a) Amount of deduction. (1) A deduction is provided in section 247 
for dividends paid during the taxable year by certain public utility 
corporations (see paragraph (b) of this section) on certain preferred 
stock (see paragraph (c) of this section). This deduction is an amount 
equal to the product of a specified fraction times the lesser of (i) the 
amount of the dividends paid during the taxable year by a public utility 
on its preferred stock (as defined in paragraph (c) of this section), or 
(ii) the taxable income of the public utility for such taxable year 
(computed without regard to the deduction allowed by section 247). The 
specified fraction for any

[[Page 535]]

taxable year is the fraction the numerator of which is 14 and the 
denominator of which is the sum of the corporation normal tax rate and 
the surtax rate for such taxable year specified in section 11. Since 
section 11 provides that for the calendar year 1954 the corporation 
normal tax rate is 30 percent and the surtax rate is 22 percent, the sum 
of the two tax rates is 52 percent and the specified fraction for the 
calendar year 1954 is 14/52. If, for example, section 11 should specify 
that the corporation's normal tax rate is 25 percent and the surtax rate 
is 22 percent for the calendar year, the sum of the two tax rates will 
be 47 percent and the specified fraction for the calendar year will be 
14/47. If Corporation A, a public utility which files its income tax 
return on the calendar year basis, pays $100,000 dividends on its 
preferred stock in the calendar year 1954 and if its taxable income for 
such year is greater than $100,000 the deduction allowable to 
Corporation A under section 247 for 1954 is $100,000 times 14/52, or 
$26,923.08. If in 1954 Corporation A's taxable income, computed without 
regard to the deduction provided in section 247, had been $90,000 (that 
is, less than the amount of the dividends which it paid on its preferred 
stock in that year), the deduction allowable under section 247 for 1954 
would have been $90,000 times 14/52, or $24,230.77.
    (2) For the purpose of determining the amount of the deduction 
provided in section 247(a) and in subparagraph (1) of this paragraph, 
the amount of dividends paid in a given taxable year shall not include 
any amount distributed in such year with respect to dividends unpaid and 
accumulated in any taxable year ending before October 1, 1942. If any 
distribution is made in the current taxable year with respect to 
dividends unpaid and accumulated for a prior taxable year, such 
distribution will be deemed to have been made with respect to the 
earliest year or years for which there are dividends unpaid and 
accumulated. Thus, if a public utility makes a distribution with respect 
to a prior taxable year, it shall be considered that such distribution 
was made with respect to the earliest year or years for which there are 
dividends unpaid and accumulated, whether or not the public utility 
states that the distribution was made with respect to such year or years 
and even though the public utility stated that the distribution was made 
with respect to a later year. Even though it has dividends unpaid and 
accumulated with respect to a taxable year ending before October 1, 
1942, a public utility may, however, include the dividends paid with 
respect to the current taxable year in computing the deduction under 
section 247. If there are no dividends unpaid and accumulated with 
respect to a taxable year ending before October 1, 1942, a public 
utility may include the dividends paid with respect to a prior taxable 
year which ended after October 1, 1942, in computing the deduction under 
section 247; such public utility in addition may include the dividends 
paid with respect to the current taxable year in computing the deduction 
under section 247. However, if local law or its own charter requires a 
public utility to pay all unpaid and accumulated dividends before any 
dividends can be paid with respect to the current taxable year, such 
public utility may not include any distribution in the current year in 
computing the deduction under section 247 to the extent that there are 
dividends unpaid and accumulated with respect to taxable years ending 
before October 1, 1942.
    (3) If a corporation which is engaged in one or more of the four 
types of business activities (called utility activities in this section) 
enumerated in section 247(b)(1) (the furnishing of telephone service or 
the sale of electrical energy, gas, or water) is also engaged in some 
other business that does not fall within any of the enumerated 
categories, the deduction under section 247 is allowable only for such 
portion of the amount computed under section 247(a) as is allocable to 
the income from utility activities. For this purpose, the allocation may 
be made on the basis of the ratio which the total income from the 
utility activities bears to total income from all sources (total income 
being considered either gross income or gross receipts, whichever method 
results in the higher deduction). However, if such an allocation reaches 
an inequitable result and the books of the corporation are so

[[Page 536]]

kept that the taxable income attributable to the utility activities can 
be readily determined, particularly where the books of the corporation 
are required by governmental bodies to be so kept for rate making or 
other purposes, the allocation may be made upon the basis of taxable 
income. No such apportionment will be required if the income from 
sources other than utility activities is less than 20 percent of the 
total income of the corporation, irrespective of the method used in 
determining such total income.
    (b) Public utility. As used in section 247 and this section, public 
utility means a corporation engaged in the furnishing of telephone 
service, or in the sale of electric energy, gas, or water if the rates 
charged by such corporation for such furnishing or sale, as the case may 
be, have been established or approved by a State or political 
subdivision thereof or by an agency or instrumentality of the United 
States or by a public utility or public service commission or other 
similar body of the District of Columbia or of any State or political 
subdivision thereof. If a schedule of rates has been filed with any of 
the above bodies having the power to disapprove such rates, then such 
rates shall be considered as established or approved rates even though 
such body has taken no action on the filed schedule. Rates fixed by 
contract between the corporation and the purchaser, except where the 
purchaser is the United States, a State, the District of Columbia, or an 
agency or political subdivision of the United States, a State, or the 
District of Columbia, shall not be considered as established or approved 
rates in those cases where they are not subject to direct control, or 
where no maximum rate for such contract rates has been established by 
the United States, a State, the District of Columbia, or by an agency or 
political subdivision thereof. The deduction provided in section 247 
will not be denied solely because part of the gross income of the 
corporation consists of revenue derived from such furnishing or sale at 
rates which are not so regulated, provided the corporation establishes 
to the satisfaction of the Commissioner (1) that the revenue from 
regulated rates and the revenue from unregulated rates are derived from 
the operation of a single interconnected and coordinated system within a 
single area or region in one or more States, or from the operation of 
more than one such system and (2) that the regulation to which it is 
subject in part of its operating territory in one such system is 
effective to control rates within the unregulated territory of the same 
system so that the rates within the unregulated territory have been and 
are substantially as favorable to users and consumers as are the rates 
within the regulated territory.
    (c) Preferred stock. (1) For the purposes of section 247 and this 
section, preferred stock means stock (i) which was issued before October 
1, 1942, (ii) the dividends in respect of which (during the whole of the 
taxable year, or the part of the taxable year after the actual date of 
the issue of such stock) were cumulative, nonparticipating as to current 
distributions, and payable in preference to the payment of dividends on 
other stock, and (iii) the rate of return on which is fixed and cannot 
be changed by a vote of the board of directors or by some similar 
method. However, if there are several classes of preferred stock, all of 
which meet the above requirements, the deduction provided in section 247 
shall not be denied in the case of a given class of preferred stock 
merely because there is another class of preferred stock whose dividends 
are to be paid before those of the given class of stock. Likewise, it is 
immaterial for the purposes of section 247 and this section whether the 
stock be voting or nonvoting stock.
    (2) Preferred stock issued on or after October 1, 1942, under 
certain circumstances will be considered as having been issued before 
October 1, 1942, for purposes of the deduction provided in section 247. 
If the new stock is issued on or after October 1, 1942, to refund or 
replace bonds or debentures which were issued before October 1, 1942, or 
to refund or replace other stock which was preferred stock within the 
meaning of section 247(b)(2) (or the corresponding provision of the 
Internal Revenue Code of 1939), such new stock shall be considered as 
having been

[[Page 537]]

issued before October 1, 1942. If preferred stock is issued to refund or 
replace stock which was preferred stock within the meaning of section 
247(b)(2) (or the corresponding provision of the Internal Revenue Code 
of 1939), it shall be immaterial whether the preferred stock so refunded 
or replaced was issued before, on, or after October 1, 1942. If stock 
issued on or after October 1, 1942, to refund or replace stock which was 
issued before October 1, 1942, and which was preferred stock within the 
meaning of section 247(b)(2) (or the corresponding provision of the 
Internal Revenue Code of 1939), is not itself preferred stock within the 
meaning of section 247(b)(2) (or the corresponding provision of the 
Internal Revenue Code of 1939), no stock issued to refund or replace 
such stock can be considered preferred stock for purposes of the 
deduction provided in section 247.
    (3) In the case of any preferred stock issued on or after October 1, 
1942, to refund or replace bonds or debentures issued before October 1, 
1942, or to refund or replace other stock which was preferred stock 
within the meaning of section 247(b)(2) (or the corresponding provision 
of the Internal Revenue Code of 1939), only that portion of the stock 
issued on or after October 1, 1942, will be considered as having been 
issued before October 1, 1942, the par or stated value of which does not 
exceed the par, stated, or face value of such bonds, debentures, or 
other preferred stock which the new stock was issued to refund or 
replace. In such case no shares of the new stock issued on or after 
October 1, 1942, shall be earmarked in determining the deduction 
allowable under section 247, but the appropriate allocable portion of 
the total amount of dividends paid on such stock will be considered as 
having been paid on stock which was issued before October 1, 1942.
    (4) The provisions of section 247(b)(2) may be illustrated by the 
following example:

    Example. A public utility has outstanding 1,000 bonds which were 
issued before October 1, 1942, and each of which has a face value of 
$100. On or after October 1, 1942, each of such bonds is retired in 
exchange for 1\1/10\ shares of preferred stock issued on or after 
October 1, 1942, and having a par value of $100 per share. Only \10/11\ 
of the dividends paid on the preferred stock thus issued in exchange for 
the bonds will be considered as having been paid on stock which was 
issued before October 1, 1942. Likewise, if preferred stock which is 
issued on or after October 1, 1942, has no par value but a stated value 
of $50 per share and such stock is issued in a ratio of three shares to 
one share to refund or replace preferred stock having a par value of 
$100 per share, only two-thirds of the dividends paid on the new shares 
of stock will be considered as having been paid on stock which was 
issued before October 1, 1942.

    (5) Whether or not preferred stock issued on or after October 1, 
1942, was issued to refund or replace bonds or debentures issued before 
October 1, 1942, or to refund or replace other preferred stock, is in 
each case a question of fact. Among the factors to be considered is 
whether such stock is new in an economic sense to the corporation or 
whether it was issued merely to take the place, directly or indirectly, 
of bonds, debentures, or other preferred stock of such corporation. It 
is not necessary that the new preferred stock be issued in exchange for 
such bonds, debentures, or other preferred stock. The mere fact that the 
bonds, debentures, or other preferred stock remain in existence for a 
short period of time after the issuance of the new stock (or were 
retired before the issuance of the new stock) does not necessarily mean 
that such new stock was not issued to refund or replace such bonds, 
debentures, or other preferred stock. It is necessary to consider the 
entire transaction, including the issuance of the new preferred stock, 
the date of such issuance, the retirement of the old bonds, debentures, 
or preferred stock, and the date of such retirement, in order to 
determine whether such new stock really was issued to take the place of 
bonds, debentures, or other preferred stock of the corporation or 
whether it represents something essentially new in an economic sense in 
the corporation's financial structure. If, for example, a public 
utility, which has outstanding bonds issued before October 1, 1942, 
issues new preferred stock on October 1, 1954, in order to secure funds 
with which to retire such bonds and with the money paid in for such 
stock retires the bonds on November 1, 1954, such stock may be 
considered as having been issued to refund or replace bonds

[[Page 538]]

issued before October 1, 1942. Whether the money used to retire the 
bonds can be traced back and identified as the money paid in for the 
stock will have evidentiary value, but will not be conclusive, in 
determining whether the stock was issued to refund or replace the bonds. 
Similarly, whether the amount of money used to retire the bonds was 
smaller than, equal to, or greater than that paid in for the stock, or 
whether the entire issue of bonds is retired, will be important, but not 
decisive, in making such determination.
    (6) Preferred stock issued on or after October 1, 1942, by a 
corporation to refund or replace bonds or debentures of a second 
corporation which were issued before October 1, 1942, or to refund or 
replace other preferred stock of such second corporation, may be 
considered as having been issued before October 1, 1942, if such new 
stock was issued (i) in a transaction which is a reorganization within 
the meaning of section 368(a) or the corresponding provisions of the 
Internal Revenue Code of 1939; or (ii) in a transaction to which section 
371 (relating to insolvency reorganizations), or the corresponding 
provisions of the Internal Revenue Code of 1939, is applicable; or (iii) 
in a transaction which is subject to the provisions of Part VI, 
Subchapter O, Chapter 1 of the Code (relating to exchanges and 
distributions in obedience to orders of the Securities and Exchange 
Commission) or to the corresponding provisions of the Internal Revenue 
Code of 1939. Whether the stock actually was issued to refund or replace 
bonds or debentures of the second corporation issued before October 1, 
1942, or to refund or replace preferred stock of such second 
corporation, shall be determined under the same principles as if only 
one corporation were involved. A corporation may issue stock to refund 
or replace its own bonds, debentures, or other preferred stock in a 
transaction which is a reorganization within the meaning of section 
368(a) or the corresponding provisions of the Internal Revenue Code of 
1939, in a transaction to which section 371 or the corresponding 
provisions of the Internal Revenue Code of 1939 is applicable, or in a 
transaction which is subject to the provisions of Part VI, Subchapter O, 
Chapter 1 of the Code, or to the corresponding provisions of the 
Internal Revenue Code of 1939. The provisions of this paragraph, in 
addition, are applicable in case a corporation issues stock on or after 
October 1, 1942, to refund or replace its own bonds, debentures, or 
other preferred stock even though the issuance of such stock may not 
fall within one of the categories enumerated above.
    (7) Even though stock issued on or after October 1, 1942, is 
considered as having been issued before October 1, 1942, by reason of 
having been issued to refund or replace bonds or debentures issued 
before October 1, 1942, or to refund or replace other preferred stock, 
such stock will not be deemed to be preferred stock within the meaning 
of section 247(b)(2), and no deduction will be allowable in respect of 
dividends paid on such stock, unless the stock fulfills all the other 
requirements of a preferred stock set forth in section 247(b)(2) and in 
this paragraph.



Sec. 1.248-1  Election to amortize organizational expenditures.

    (a) In general. Under section 248(a), a corporation may elect to 
amortize organizational expenditures as defined in section 248(b) and 
Sec. 1.248-1(b). In the taxable year in which a corporation begins 
business, an electing corporation may deduct an amount equal to the 
lesser of the amount of the organizational expenditures of the 
corporation, or $5,000 (reduced (but not below zero) by the amount by 
which the organizational expenditures exceed $50,000). The remainder of 
the organizational expenditures is deducted ratably over the 180-month 
period beginning with the month in which the corporation begins 
business. All organizational expenditures of the corporation are 
considered in determining whether the organizational expenditures exceed 
$50,000, including expenditures incurred on or before October 22, 2004.
    (b) Organizational expenditures defined. (1) Section 248(b) defines 
the term organizational expenditures. Such expenditures, for purposes of 
section 248 and this section, are those expenditures which are directly 
incident to the

[[Page 539]]

creation of the corporation. An expenditure, in order to qualify as an 
organizational expenditure, must be (i) incident to the creation of the 
corporation, (ii) chargeable to the capital account of the corporation, 
and (iii) of a character which, if expended incident to the creation of 
a corporation having a limited life, would be amortizable over such 
life. An expenditure which fails to meet each of these three tests may 
not be considered an organizational expenditure for purposes of section 
248 and this section.
    (2) The following are examples of organizational expenditures within 
the meaning of section 248 and this section: legal services incident to 
the organization of the corporation, such as drafting the corporate 
charter, by-laws, minutes of organizational meetings, terms of original 
stock certificates, and the like; necessary accounting services; 
expenses of temporary directors and of organizational meetings of 
directors or stockholders; and fees paid to the State of incorporation.
    (3) The following expenditures are not organizational expenditures 
within the meaning of section 248 and this section:
    (i) Expenditures connected with issuing or selling shares of stock 
or other securities, such as commissions, professional fees, and 
printing costs. This is so even where the particular issue of stock to 
which the expenditures relate is for a fixed term of years;
    (ii) Expenditures connected with the transfer of assets to a 
corporation.
    (4) Expenditures connected with the reorganization of a corporation, 
unless directly incident to the creation of a corporation, are not 
organizational expenditures within the meaning of section 248 and this 
section.
    (c) Time and manner of making election. A corporation is deemed to 
have made an election under section 248(a) to amortize organizational 
expenditures as defined in section 248(b) and Sec. 1.248-1(b) for the 
taxable year in which the corporation begins business. A corporation may 
choose to forgo the deemed election by affirmatively electing to 
capitalize its organizational expenditures on a timely filed Federal 
income tax return (including extensions) for the taxable year in which 
the corporation begins business. The election either to amortize 
organizational expenditures under section 248(a) or to capitalize 
organizational expenditures is irrevocable and applies to all 
organizational expenditures of the corporation. A change in the 
characterization of an item as an organizational expenditure is a change 
in method of accounting to which sections 446 and 481(a) apply if the 
corporation treated the item consistently for two or more taxable years. 
A change in the determination of the taxable year in which the 
corporation begins business also is treated as a change in method of 
accounting if the corporation amortized organizational expenditures for 
two or more taxable years.
    (d) Determination of when corporation begins business. The deduction 
allowed under section 248 must be spread over a period beginning with 
the month in which the corporation begins business. The determination of 
the date the corporation begins business presents a question of fact 
which must be determined in each case in light of all the circumstances 
of the particular case. The words ``begins business,'' however, do not 
have the same meaning as ``in existence.'' Ordinarily, a corporation 
begins business when it starts the business operations for which it was 
organized; a corporation comes into existence on the date of its 
incorporation. Mere organizational activities, such as the obtaining of 
the corporate charter, are not alone sufficient to show the beginning of 
business. If the activities of the corporation have advanced to the 
extent necessary to establish the nature of its business operations, 
however, it will be deemed to have begun business. For example, the 
acquisition of operating assets which are necessary to the type of 
business contemplated may constitute the beginning of business.
    (e) Examples. The following examples illustrate the application of 
this section:

    Example 1. Expenditures of $5,000 or less. Corporation X, a calendar 
year taxpayer, incurs $3,000 of organizational expenditures after 
October 22, 2004, and begins business on July 1, 2011. Under paragraph 
(c) of this section, Corporation X is deemed to have elected to amortize 
organizational expenditures under section 248(a) in 2011. Therefore, 
Corporation

[[Page 540]]

X may deduct the entire amount of the organizational expenditures in 
2011, the taxable year in which Corporation X begins business.
    Example 2. Expenditures of more than $5,000 but less than or equal 
to $50,000. The facts are the same as in Example 1 except that 
Corporation X incurs organizational expenditures of $41,000. Under 
paragraph (c) of this section, Corporation X is deemed to have elected 
to amortize organizational expenditures under section 248(a) in 2011. 
Therefore, Corporation X may deduct $5,000 and the portion of the 
remaining $36,000 that is allocable to July through December of 2011 
($36,000/180 x 6 = $1,200) in 2011, the taxable year in which 
Corporation X begins business. Corporation X may amortize the remaining 
$34,800 ($36,000 - $1,200 = $34,800) ratably over the remaining 174 
months.
    Example 3. Subsequent change in the characterization of an item. The 
facts are the same as in Example 2 except that Corporation X determines 
in 2013 that Corporation X incurred $10,000 for an additional 
organizational expenditure erroneously deducted in 2011 under section 
162 as a business expense. Under paragraph (c) of this section, 
Corporation X is deemed to have elected to amortize organizational 
expenditures under section 248(a) in 2011, including the additional 
$10,000 of organizational expenditures. Corporation X is using an 
impermissible method of accounting for the additional $10,000 of 
organizational expenditures and must change its method under Sec. 
1.446-1(e) and the applicable general administrative procedures in 
effect in 2013.
    Example 4. Subsequent redetermination of year in which business 
begins. The facts are the same as in Example 2 except that, in 2012, 
Corporation X deducted the organizational expenditures allocable to 
January through December of 2012 ($36,000/180 x 12 = $2,400). In 
addition, in 2013 it is determined that Corporation X actually began 
business in 2012. Under paragraph (c) of this section, Corporation X is 
deemed to have elected to amortize organizational expenditures under 
section 248(a) in 2012. Corporation X impermissibly deducted 
organizational expenditures in 2011, and incorrectly determined the 
amount of organizational expenditures deducted in 2012. Therefore, 
Corporation X is using an impermissible method of accounting for the 
organizational expenditures and must change its method under Sec. 
1.446-1(e) and the applicable general administrative procedures in 
effect in 2013.
    Example 5. Expenditures of more than $50,000 but less than or equal 
to $55,000. The facts are the same as in Example 1 except that 
Corporation X incurs organizational expenditures of $54,500. Under 
paragraph (c) of this section, Corporation X is deemed to have elected 
to amortize organizational expenditures under section 248(a) in 2011. 
Therefore, Corporation X may deduct $500 ($5,000 - $4,500) and the 
portion of the remaining $54,000 that is allocable to July through 
December of 2011 ($54,000/180 x 6 = $1,800) in 2011, the taxable year in 
which Corporation X begins business. Corporation X may amortize the 
remaining $52,200 ($54,000 - $1,800 = $52,200) ratably over the 
remaining 174 months.
    Example 6. Expenditures of more than $55,000. The facts are the same 
as in Example 1 except that Corporation X incurs organizational 
expenditures of $450,000. Under paragraph (c) of this section, 
Corporation X is deemed to have elected to amortize organizational 
expenditures under section 248(a) in 2011. Therefore, Corporation X may 
deduct the amounts allocable to July through December of 2011 ($450,000/
180 x 6 = $15,000) in 2011, the taxable year in which Corporation X 
begins business. Corporation X may amortize the remaining $435,000 
($450,000 - $15,000 = $435,000) ratably over the remaining 174 months.

    (f) Effective/applicability date. This section applies to 
organizational expenditures paid or incurred after August 16, 2011. 
However, taxpayers may apply all the provisions of this section to 
organizational expenditures paid or incurred after October 22, 2004, 
provided that the period of limitations on assessment of tax for the 
year the election under paragraph (c) of this section is deemed made has 
not expired. For organizational expenditures paid or incurred on or 
before September 8, 2008, taxpayers may instead apply Sec. 1.248-1, as 
in effect prior to that date (Sec. 1.248-1 as contained in 26 CFR part 
1 edition revised as of April 1, 2008).

[T.D. 9411, 73 FR 38913, July 8, 2008, as amended by T.D. 9542, 76 FR 
50889, Aug. 17, 2011]



Sec. 1.249-1  Limitation on deduction of bond premium on repurchase.

    (a) Limitation--(1) General rule. No deduction is allowed to the 
issuing corporation for any ``repurchase premium'' paid or incurred to 
repurchase a convertible obligation to the extent the repurchase premium 
exceeds a ``normal call premium.''
    (2) Exception. Under paragraph (e) of this section, the preceding 
sentence shall not apply to the extent the corporation demonstrates that 
such excess is attributable to the cost of borrowing and not to the 
conversion feature.
    (b) Obligations--(1) Definition. For purposes of this section, the 
term obligation means any bond, debenture,

[[Page 541]]

note, or certificate or other evidence of indebtedness.
    (2) Convertible obligation. Section 249 applies to an obligation 
which is convertible into the stock of the issuing corporation or a 
corporation which, at the time the obligation is issued or repurchased, 
is in control of or controlled by the issuing corporation. For purposes 
of this subparagraph, the term control has the meaning assigned to such 
term by section 368(c).
    (3) Comparable nonconvertible obligation. A nonconvertible 
obligation is comparable to a convertible obligation if both obligations 
are of the same grade and classification, with the same issue and 
maturity dates, and bearing the same rate of interest. The term 
comparable nonconvertible obligation does not include any obligation 
which is convertible into property.
    (c) Repurchase premium. For purposes of this section, the term 
repurchase premium means the excess of the repurchase price paid or 
incurred to repurchase the obligation over its adjusted issue price 
(within the meaning of Sec. 1.1275-1(b)) as of the repurchase date. For 
the general rules applicable to the deductibility of repurchase premium, 
see Sec. 1.163-7(c). This paragraph (c) applies to convertible 
obligations repurchased on or after March 2, 1998.
    (d) Normal call premium--(1) In general. Except as provided in 
subparagraph (2) of this paragraph, for purposes of this section, a 
normal call premium on a convertible obligation is an amount equal to a 
normal call premium on a nonconvertible obligation which is comparable 
to the convertible obligation. A normal call premium on a comparable 
nonconvertible obligation is a call premium specified in dollars under 
the terms of such obligation. Thus, if such a specified call premium is 
constant over the entire term of the obligation, the normal call premium 
is the amount specified. If, however, the specified call premium varies 
during the period the comparable nonconvertible obligation is callable 
or if such obligation is not callable over its entire term, the normal 
call premium is the amount specified for the period during the term of 
such comparable nonconvertible obligation which corresponds to the 
period during which the convertible obligation was repurchased.
    (2) One-year's interest rule. For a convertible obligation 
repurchased on or after March 2, 1998, a call premium specified in 
dollars under the terms of the obligation is considered to be a normal 
call premium on a nonconvertible obligation if the call premium 
applicable when the obligation is repurchased does not exceed an amount 
equal to the interest (including original issue discount) that otherwise 
would be deductible for the taxable year of repurchase (determined as if 
the obligation were not repurchased). The provisions of this 
subparagraph shall not apply if the amount of interest payable for the 
corporation's taxable year is subject under the terms of the obligation 
to any contingency other than repurchase prior to the close of such 
taxable year.
    (e) Exception--(1) In general. If a repurchase premium exceeds a 
normal call premium, the general rule of paragraph (a) (1) of this 
section does not apply to the extent that the corporation demonstrates 
to the satisfaction of the Commissioner or his delegate that such 
repurchase premium is attributable to the cost of borrowing and is not 
attributable to the conversion feature. For purposes of this paragraph, 
if a normal call premium cannot be established under paragraph (d) of 
this section, the amount thereof shall be considered to be zero.
    (2) Determination of the portion of a repurchase premium 
attributable to the cost of borrowing and not attributable to the 
conversion feature. (i) For purposes of subparagraph (1) of this 
paragraph, the portion of a repurchase premium which is attributable to 
the cost of borrowing and which is not attributable to the conversion 
feature is the amount by which the selling price of the convertible 
obligation increased between the dates it was issued and repurchased by 
reason of a decline in yields on comparable nonconvertible obligations 
traded on an established securities market or, if such comparable traded 
obligations do not exist, by reason of a decline in yields generally on 
nonconvertible obligations which are as nearly comparable as possible.

[[Page 542]]

    (ii) [Reserved] For further guidance, see Sec. 1.249-1T(e)(2)(ii).
    (iii) The relationship between selling price and yields in 
subdivision (i) of this subparagraph shall ordinarily be determined by 
means of standard bond tables.
    (f) Effective/applicability dates--(1) In general. Under section 
414(c) of the Tax Reform Act of 1969, the provisions of section 249 and 
this section shall apply to any repurchase of a convertible obligation 
occurring after April 22, 1969, other than a convertible obligation 
repurchased pursuant to a binding obligation incurred on or before April 
22, 1969, to repurchase such convertible obligation at a specified call 
premium. A binding obligation on or before such date may arise if, for 
example, the issuer irrevocably obligates itself, on or before such 
date, to repurchase the convertible obligation at a specified price 
after such date, or if, for example, the issuer, without regard to the 
terms of the convertible obligation, negotiates a contract which, on or 
before such date, irrevocably obligates the issuer to repurchase the 
convertible obligation at a specified price after such date. A binding 
obligation on or before such date does not include a privilege in the 
convertible obligation permitting the issuer to call such convertible 
obligation after such date, which privilege was not exercised on or 
before such date.
    (2) Effect on transactions not subject to this section. No 
inferences shall be drawn from the provisions of section 249 and this 
section as to the proper treatment of transactions not subject to such 
provisions because of the effective date limitations thereof. For 
provisions relating to repurchases of convertible bonds or other 
evidences of indebtedness to which section 249 and this section do not 
apply, see Sec. Sec. 1.163-3(c) and 1.163-4(c).
    (3) [Reserved] For further guidance, see Sec. 1.249-1T(f)(3).
    (g) Example. The provisions of this section may be illustrated by 
the following example:

    Example. On May 15, 1968, corporation A issues a callable 20-year 
convertible bond at face for $1,000 bearing interest at 10 percent per 
annum. The bond is convertible at any time into 2 shares of the common 
stock of corporation A. Under the terms of the bond, the applicable call 
price prior to May 15, 1975, is $1,100. On June 1, 1974, corporation A 
calls the bond for $1,100. Since the repurchase premium, $100 (i.e., 
$1,100 minus $1,000), was specified in dollars in the obligation and 
does not exceed 1 year's interest at the rate fixed in the obligation, 
the $100 is considered under paragraph (d) (2) of this section to be a 
normal call premium on a comparable nonconvertible obligation. 
Accordingly, A may deduct the $100 under Sec. 1.163-3(c).

[T.D. 7259, 38 FR 4254, Feb. 12, 1973, as amended by T.D. 8746, 62 FR 
68182, Dec. 31, 1997; T.D. 9533, 76 FR 39281, July 6, 2011]



Sec. 1.249-1T  Limitation on deduction of bond premium on repurchase 
(temporary).

    (a) through (e)(2)(i) [Reserved] For further guidance, see Sec. 
1.249-1(a) through (e)(2)(i).
    (ii) In determining the amount under Sec. 1.249-1(e)(2)(i), 
appropriate consideration shall be given to all factors affecting the 
selling price or yields of comparable nonconvertible obligations. Such 
factors include general changes in prevailing yields of comparable 
obligations between the dates the convertible obligation was issued and 
repurchased and the amount (if any) by which the selling price of the 
nonconvertible obligation was affected by reason of any change in the 
issuing corporation's credit quality or the credit quality of the 
obligation during such period (determined on the basis of widely 
published financial information or on the basis of other relevant facts 
and circumstances which reflect the relative credit quality of the 
corporation or the comparable obligation).
    (e)(2)(iii) through (f)(2) [Reserved] For further guidance, see 
Sec. 1.249-1(e)(2)(iii) through (f)(2).
    (3) Portion of repurchase premium attributable to cost of borrowing. 
Paragraph (e)(2)(ii) of this section applies to any repurchase of a 
convertible obligation occurring on or after July 6, 2011.
    (g) [Reserved] For further guidance, see Sec. 1.249-1(g).
    (h) Expiration date. The applicability of this section expires on or 
before July 1, 2014.

[T.D. 9533, 76 FR 39281, July 6, 2011]

[[Page 543]]

                          Items Not Deductible



Sec. 1.261-1  General rule for disallowance of deductions.

    In computing taxable income, no deduction shall be allowed, except 
as otherwise expressly provided in Chapter 1 of the Code, in respect of 
any of the items specified in Part IX (section 262 and following), 
Subchapter B, Chapter 1 of the Code, and the regulations thereunder.



Sec. 1.262-1  Personal, living, and family expenses.

    (a) In general. In computing taxable income, no deduction shall be 
allowed, except as otherwise expressly provided in chapter 1 of the 
Code, for personal, living, and family expenses.
    (b) Examples of personal, living, and family expenses. Personal, 
living, and family expenses are illustrated in the following examples:
    (1) Premiums paid for life insurance by the insured are not 
deductible. See also section 264 and the regulations thereunder.
    (2) The cost of insuring a dwelling owned and occupied by the 
taxpayer as a personal residence is not deductible.
    (3) Expenses of maintaining a household, including amounts paid for 
rent, water, utilities, domestic service, and the like, are not 
deductible. A taxpayer who rents a property for residential purposes, 
but incidentally conducts business there (his place of business being 
elsewhere) shall not deduct any part of the rent. If, however, he uses 
part of the house as his place of business, such portion of the rent and 
other similar expenses as is properly attributable to such place of 
business is deductible as a business expense.
    (4) Losses sustained by the taxpayer upon the sale or other 
disposition of property held for personal, living, and family purposes 
are not deductible. But see section 165 and the regulations thereunder 
for deduction of losses sustained to such property by reason of 
casualty, etc.
    (5) Expenses incurred in traveling away from home (which include 
transportation expenses, meals, and lodging) and any other 
transportation expenses are not deductible unless they qualify as 
expenses deductible under section 162, Sec. 1.162-2, and paragraph (d) 
of Sec. 1.162-5 (relating to trade or business expenses), section 170 
and paragraph (a)(2) of Sec. 1.170-2 or paragraph (g) of Sec. 1.170A-1 
(relating to charitable contributions), section 212 and Sec. 1.212-1 
(relating to expenses for production of income), section 213(e) and 
paragraph (e) of Sec. 1.213-1 (relating to medical expenses) or section 
217(a) and paragraph (a) of Sec. 1.217-1 (relating to moving expenses). 
The taxpayer's costs of commuting to his place of business or employment 
are personal expenses and do not qualify as deductible expenses. The 
costs of the taxpayer's lodging not incurred in traveling away from home 
are personal expenses and are not deductible unless they qualify as 
deductible expenses under section 217. Except as permitted under section 
162, 212, or 217, the costs of the taxpayer's meals not incurred in 
traveling away from home are personal expenses.
    (6) Amounts paid as damages for breach of promise to marry, and 
attorney's fees and other costs of suit to recover such damages, are not 
deductible.
    (7) Generally, attorney's fees and other costs paid in connection 
with a divorce, separation, or decree for support are not deductible by 
either the husband or the wife. However, the part of an attorney's fee 
and the part of the other costs paid in connection with a divorce, legal 
separation, written separation agreement, or a decree for support, which 
are properly attributable to the production or collection of amounts 
includible in gross income under section 71 are deductible by the wife 
under section 212.
    (8) The cost of equipment of a member of the armed services is 
deductible only to the extent that it exceeds nontaxable allowances 
received for such equipment and to the extent that such equipment is 
especially required by his profession and does not merely take the place 
of articles required in civilian life. For example, the cost of a sword 
is an allowable deduction in computing taxable income, but the cost of a 
uniform is not. However, amounts expended by a reservist for the 
purchase and maintenance of uniforms which may be worn only when on 
active duty for training for temporary

[[Page 544]]

periods, when attending service school courses, or when attending 
training assemblies are deductible except to the extent that nontaxable 
allowances are received for such amounts.
    (9) Expenditures made by a taxpayer in obtaining an education or in 
furthering his education are not deductible unless they qualify under 
section 162 and Sec. 1.162-5 (relating to trade or business expenses).
    (c) Cross references. Certain items of a personal, living, or family 
nature are deductible to the extent expressly provided under the 
following sections, and the regulations under those sections:
    (1) Section 163 (interest).
    (2) Section 164 (taxes).
    (3) Section 165 (losses).
    (4) Section 166 (bad debts).
    (5) Section 170 (charitable, etc., contributions and gifts).
    (6) Section 213 (medical, dental, etc., expenses).
    (7) Section 214 (expenses for care of certain dependents).
    (8) Section 215 (alimony, etc., payments).
    (9) Section 216 (amounts representing taxes and interest paid to 
cooperative housing corporation).
    (10) Section 217 (moving expenses).

[T.D. 6500, 25 FR 11402, Nov. 26, 1960, as amended by T.D. 6796, 30 FR 
1041, Feb. 2, 1965; T.D. 6918, 32 FR 6681, May 2, 1967; T.D. 7207, 37 FR 
20795, Oct. 4, 1972]



Sec. 1.263(a)-0  Table of contents.

    This section lists captioned paragraphs contained in Sec. Sec. 
1.263(a)-1 through 1.263(a)-5.

           Sec. 1.263(a)-1 Capital expenditures; in general.

    (a) through (h) [Reserved] For further guidance, see the table of 
contents for Sec. 1.263(a)-1T(a) through (h) under Sec. 1.263(a)-0T.

 Sec. 1.263(a)-2 Amounts paid to acquire or produce tangible property.

    (a) through (i) [Reserved] For further guidance, see the table of 
contents for Sec. 1.263(a)-2T(a) through (i) under Sec. 1.263(a)-0T.

       Sec. 1.263(a)-3 Amounts paid to improve tangible property.

    (a) through (q) [Reserved] For further guidance, see the table of 
contents for Sec. 1.263(a)-3T(a) though (q) under Sec. 1.263(a)-0T.

     Sec. 1.263(a)-4 Amounts paid to acquire or create intangibles.

    (a) Overview.
    (b) Capitalization with respect to intangibles.
    (1) In general.
    (2) Published guidance.
    (3) Separate and distinct intangible asset.
    (i) Definition.
    (ii) Creation or termination of contract rights.
    (iii) Amounts paid in performing services.
    (iv) Creation of computer software.
    (v) Creation of package design.
    (4) Coordination with other provisions of the Internal Revenue Code.
    (i) In general.
    (ii) Example.
    (c) Acquired intangibles.
    (1) In general.
    (2) Readily available software.
    (3) Intangibles acquired from an employee.
    (4) Examples.
    (d) Created intangibles.
    (1) In general.
    (2) Financial interests.
    (i) In general.
    (ii) Amounts paid to create, originate, enter into, renew or 
renegotiate.
    (iii) Renegotiate.
    (iv) Coordination with other provisions of this paragraph (d).
    (v) Coordination with Sec. 1.263(a)-5.
    (vi) Examples.
    (3) Prepaid expenses.
    (i) In general.
    (ii) Examples.
    (4) Certain memberships and privileges.
    (i) In general.
    (ii) Examples.
    (5) Certain rights obtained from a government agency.
    (i) In general.
    (ii) Examples.
    (6) Certain contract rights.
    (i) In general.
    (ii) Amounts paid to create, originate, enter into, renew or 
renegotiate.
    (iii) Renegotiate.
    (iv) Right.
    (v) De minimis amounts.
    (vi) Exception for lessee construction allowances.
    (vii) Examples.
    (7) Certain contract terminations.
    (i) In general.
    (ii) Certain break-up fees.
    (iii) Examples.
    (8) Certain benefits arising from the provision, production, or 
improvement of real property.
    (i) In general.
    (ii) Exclusions.
    (iii) Real property.
    (iv) Impact fees and dedicated improvements.

[[Page 545]]

    (v) Examples.
    (9) Defense or perfection of title to intangible property.
    (i) In general.
    (ii) Certain break-up fees.
    (iii) Example.
    (e) Transaction costs.
    (1) Scope of facilitate.
    (i) In general.
    (ii) Treatment of termination payments.
    (iii) Special rule for contracts.
    (iv) Borrowing costs.
    (v) Special rule for stock redemption costs of open-end regulated 
investment companies.
    (2) Coordination with paragraph (d) of this section.
    (3) Transaction.
    (4) Simplifying conventions.
    (i) In general.
    (ii) Employee compensation.
    (iii) De minimis costs.
    (iv) Election to capitalize.
    (5) Examples.
    (f) 12-month rule.
    (1) In general.
    (2) Duration of benefit for contract terminations.
    (3) Inapplicability to created financial interests and self-created 
amortizable section 197 intangibles.
    (4) Inapplicability to rights of indefinite duration.
    (5) Rights subject to renewal.
    (i) In general.
    (ii) Reasonable expectancy of renewal.
    (iii) Safe harbor pooling method.
    (6) Coordination with section 461.
    (7) Election to capitalize.
    (8) Examples.
    (g) Treatment of capitalized costs.
    (1) In general.
    (2) Financial instruments.
    (h) Special rules applicable to pooling.
    (1) In general.
    (2) Method of accounting.
    (3) Adopting or changing to a pooling method.
    (4) Definition of pool.
    (5) Consistency requirement.
    (6) Additional guidance pertaining to pooling.
    (7) Example.
    (i) [Reserved].
    (j) Application to accrual method taxpayers.
    (k) Treatment of related parties and indirect payments.
    (l) Examples.
    (m) Amortization.
    (n) Intangible interests in land [Reserved]
    (o) Effective date.
    (p) Accounting method changes.
    (1) In general.
    (2) Scope limitations.
    (3) Section 481(a) adjustment.

 Sec. 1.263(a)-5 Amounts paid or incurred to facilitate an acquisition 
of a trade or business, a change in the capital structure of a business 
                 entity, and certain other transactions.

    (a) General rule.
    (b) Scope of facilitate.
    (1) In general.
    (2) Ordering rules.
    (c) Special rules for certain costs.
    (1) Borrowing costs.
    (2) Costs of asset sales.
    (3) Mandatory stock distributions.
    (4) Bankruptcy reorganization costs.
    (5) Stock issuance costs of open-end regulated investment companies.
    (6) Integration costs.
    (7) Registrar and transfer agent fees for the maintenance of capital 
stock records.
    (8) Termination payments and amounts paid to facilitate mutually 
exclusive transactions.
    (d) Simplifying conventions.
    (1) In general.
    (2) Employee compensation.
    (i) In general.
    (ii) Certain amounts treated as employee compensation.
    (3) De minimis costs.
    (i) In general.
    (ii) Treatment of commissions.
    (4) Election to capitalize.
    (e) Certain acquisitive transactions.
    (1) In general.
    (2) Exception for inherently facilitative amounts.
    (3) Covered transactions.
    (f) Documentation of success-based fees.
    (g) Treatment of capitalized costs.
    (1) Tax-free acquisitive transactions [Reserved].
    (2) Taxable acquisitive transactions.
    (i) Acquirer.
    (ii) Target.
    (3) Stock issuance transactions [Reserved].
    (4) Borrowings.
    (5) Treatment of capitalized amounts by option writer.
    (h) Application to accrual method taxpayers.
    (i) [Reserved].
    (j) Coordination with other provisions of the Internal Revenue Code.
    (k) Treatment of indirect payments.
    (l) Examples.
    (m) Effective date.
    (n) Accounting method changes.
    (1) In general.
    (2) Scope limitations.
    (3) Section 481(a) adjustment.

[T.D. 9107, 69 FR 444, Jan. 5, 2004, as amended by T.D. 9564, 76 FR 
81100, Dec. 27, 2011]

[[Page 546]]



Sec. 1.263(a)-0T  Table of contents (temporary).

    This section lists the table of contents for Sec. Sec. 1.263(a)-1T, 
1.263(a)-2T, and 1.263(a)-3T.

     Sec. 1.263(a)-1T Capital expenditures; in general (temporary).

    (a) General rule for capital expenditures.
    (b) Coordination with section 263A.
    (c) Examples of capital expenditures.
    (d) Amounts paid to sell property.
    (1) In general.
    (2) Treatment of capitalized amount.
    (3) Examples.
    (e) Amount paid.
    (f) Accounting method changes.
    (g) Effective/applicability date.
    (1) In general.
    (2) Optional early application.
    (h) Expiration date.

 Sec. 1.263(a)-2T Amounts paid to acquire or produce tangible property 
                              (temporary).

    (a) Overview.
    (b) Definitions.
    (1) Amount paid.
    (2) Personal property.
    (3) Real property.
    (4) Produce.
    (c) Coordination with other provisions of the Internal Revenue Code.
    (1) In general.
    (2) Materials and supplies.
    (d) Acquired or produced tangible property.
    (1) Requirement to capitalize.
    (2) Examples.
    (e) Defense or perfection of title to property.
    (1) In general.
    (2) Examples.
    (f) Transaction costs.
    (1) In general.
    (2) Scope of facilitate.
    (i) In general.
    (ii) Inherently facilitative amounts.
    (iii) Special rule for acquisitions of real property.
    (A) In general.
    (B) Acquisitions of real and personal property in a single 
transaction.
    (iv) Employee compensation and overhead costs.
    (A) In general.
    (B) Election to capitalize.
    (3) Treatment of transaction costs.
    (i) In general.
    (ii) Treatment of inherently facilitative amounts.
    (4) Examples.
    (g) De minimis rule.
    (1) In general.
    (2) Exceptions to de minimis rule.
    (3) Additional rules.
    (4) Election to capitalize.
    (5) Materials and supplies.
    (6) Definition of applicable financial statement.
    (7) Application to consolidated group member.
    (8) Examples.
    (h) Treatment of capital expenditures.
    (i) Recovery of capitalized amounts.
    (1) In general.
    (2) Examples.
    (j) Accounting method changes.
    (k) Effective/applicability date.
    (1) In general.
    (2) Optional early application.
    (l) Expiration date.

Sec. 1.263(a)-3T Amounts paid to improve tangible property (temporary).

    (a) Overview.
    (b) Definitions.
    (1) Amount paid.
    (2) Personal property.
    (3) Real property.
    (4) Owner.
    (c) Coordination with other provisions of the Internal Revenue Code.
    (1) In general.
    (2) Materials and supplies.
    (3) Exception for amounts subject to de minimis rule.
    (4) Example.
    (d) Requirement to capitalize amounts paid for improvements.
    (e) Determining the unit of property.
    (1) In general.
    (2) Building.
    (i) In general.
    (ii) Application of improvement rules to a building.
    (A) Building structure.
    (B) Building system.
    (iii) Condominium.
    (A) In general.
    (B) Application of improvement rules to a condominium.
    (iv) Cooperative.
    (A) In general.
    (B) Application of improvement rules to a cooperative.
    (v) Leased building.
    (A) In general.
    (B) Application of improvement rules to a leased building.
    (1) Entire building.
    (2) Portion of building.
    (3) Property other than a building.
    (i) In general.
    (ii) Plant property.
    (A) Definition.
    (B) Unit of property for plant property.
    (iii) Network assets.
    (A) Definition.
    (B) Unit of property for network assets.
    (iv) Leased property other than buildings.
    (4) Improvements to property.
    (5) Additional rules.
    (i) Year placed in service.

[[Page 547]]

    (ii) Change in subsequent taxable year.
    (6) Examples.
    (f) Special rules for determining improvement costs.
    (1) Improvements to leased property.
    (i) In general.
    (ii) Lessee improvements.
    (A) Requirement to capitalize.
    (B) Unit of property for lessee improvements.
    (iii) Lessor improvements.
    (A) Requirement to capitalize.
    (B) Unit of property for lessor improvements.
    (iv) Examples.
    (2) Compliance with regulatory requirements.
    (3) Certain costs incurred during an improvement.
    (i) In general.
    (ii) Exception for individuals' residences.
    (4) Aggregate of related amounts.
    (g) Safe harbor for routine maintenance on property other than 
buildings.
    (1) In general.
    (2) Rotable and temporary spare parts.
    (3) Exceptions.
    (4) Class life.
    (5) Examples.
    (h) Capitalization of betterments.
    (1) In general.
    (2) Betterments to buildings.
    (3) Application of general rule.
    (i) Facts and circumstances.
    (ii) Unavailability of replacement parts.
    (iii) Appropriate comparison.
    (A) In general.
    (B) Normal wear and tear.
    (C) Particular event.
    (4) Examples.
    (i) Capitalization of restorations.
    (1) In general.
    (2) Restorations of buildings.
    (3) Rebuild to like-new condition.
    (4) Replacement of a major component or substantial structural part.
    (5) Examples.
    (j) Capitalization of amounts to adapt property to a new or 
different use.
    (1) In general.
    (2) Adapting buildings to new or different use.
    (3) Examples.
    (k) Optional regulatory accounting method.
    (1) In general.
    (2) Eligibility for regulatory accounting method.
    (3) Description of regulatory accounting method.
    (4) Examples.
    (l) Methods of accounting authorized in published guidance.
    (m) Treatment of capital expenditures.
    (n) Recovery of capitalized amounts.
    (o) Accounting method changes.
    (p) Effective/applicability date.
    (1) In general.
    (2) Optional early application.
    (q) Expiration date.

[T.D. 9564, 76 FR 81100, Dec. 27, 2011, as amended by 77 FR 74585, Dec. 
17, 2012]



Sec. 1.263(a)-1  Capital expenditures; in general.

    (a) through (c) [Reserved] For further guidance, see Sec. 
1.263(a)&1T(a) through (c).
    (d) through (h) [Reserved] For further guidance, see Sec. 1.263(a)-
1T(d) through (h).

[T.D. 9564, 76 FR 81101, Dec. 27, 2011]



Sec. 1.263(a)-1T  Capital expenditures; in general (temporary)--

    (a) General rule for capital expenditures. Except as provided in 
chapter 1 of the Internal Revenue Code, no deduction is allowed for--
    (1) Any amount paid for new buildings or for permanent improvements 
or betterments made to increase the value of any property or estate; or
    (2) Any amount paid in restoring property or in making good the 
exhaustion thereof for which an allowance is or has been made.
    (b) Coordination with section 263A. Section 263(a) generally 
requires taxpayers to capitalize an amount paid to acquire, produce, or 
improve real or personal tangible property. Section 263A generally 
prescribes the direct and indirect costs that must be capitalized to 
property produced by the taxpayer and property acquired for resale.
    (c) Examples of capital expenditures. The following amounts paid are 
examples of capital expenditures:
    (1) An amount paid to acquire or produce a unit of real or personal 
tangible property. See Sec. 1.263(a)-2T.
    (2) An amount paid to improve a unit of real or personal tangible 
property. See Sec. 1.263(a)-3T.
    (3) An amount paid to acquire or create intangibles. See Sec. 
1.263(a)-4.
    (4) An amount paid or incurred to facilitate an acquisition of a 
trade or business, a change in capital structure of a business entity, 
and certain other transactions. See Sec. 1.263(a)-5.
    (5) An amount paid to acquire or create interests in land, such as 
easements, life estates, mineral interests,

[[Page 548]]

timber rights, zoning variances, or other interests in land.
    (6) An amount assessed and paid under an agreement between 
bondholders or shareholders of a corporation to be used in a 
reorganization of the corporation or voluntary contributions by 
shareholders to the capital of the corporation for any corporate 
purpose. See section 118 and Sec. 1.118-1.
    (7) An amount paid by a holding company to carry out a guaranty of 
dividends at a specified rate on the stock of a subsidiary corporation 
for the purpose of securing new capital for the subsidiary and 
increasing the value of its stockholdings in the subsidiary. This amount 
must be added to the cost of the stock in the subsidiary.
    (d) Amounts paid to sell property--(1) In general. Commissions and 
other transaction costs paid to facilitate the sale of property 
generally must be capitalized. However, in the case of dealers in 
property, amounts paid to facilitate the sale of property are treated as 
ordinary and necessary business expenses. See Sec. 1.263(a)-5(g) for 
the treatment of amounts paid to facilitate the disposition of assets 
that constitute a trade or business.
    (2) Treatment of capitalized amount. Amounts capitalized under 
paragraph (d)(1) of this section are treated as a reduction in the 
amount realized and generally are taken into account either in the 
taxable year in which the sale occurs or in the taxable year in which 
the sale is abandoned if a loss deduction is permissible. The 
capitalized amount is not added to the basis of the property and is not 
treated as an intangible under Sec. 1.263(a)-4.
    (3) Examples. The following examples, which assume the sale is not 
an installment sale under section 453, illustrate the rules of this 
paragraph (d):

    Example 1. Sales costs of real property. X owns a parcel of real 
estate. X sells the real estate and pays legal fees, recording fees, and 
sales commissions to facilitate the sale. X must capitalize the fees and 
commissions and, in the taxable year of the sale, offset the fees and 
commissions against the amount realized from the sale of the real 
estate.
    Example 2. Sales costs of dealers. Assume the same facts as in 
Example 1, except that X is a dealer in real estate. The commissions and 
fees paid to facilitate the sale of the real estate are treated as 
ordinary and necessary business expenses under section 162.
    Example 3. Sales costs of personal property used in a trade or 
business. X owns a truck for use in X's trade or business. X decides to 
sell the truck on November 15, Year 1. X pays for an appraisal to 
determine a reasonable asking price. On February 15, Year 2, X sells the 
truck to Y. X is required to capitalize in Year 1 the amount paid to 
appraise the truck and, in Year 2, is required to offset the amount paid 
against the amount realized from the sale of the truck.
    Example 4. Costs of abandoned sale of personal property used in a 
trade or business. Assume the same facts as in Example 3, except that, 
instead of selling the truck on February 15, Year 2, X decides on that 
date not to sell the truck and takes the truck off the market. X is 
required to capitalize in Year 1 the amount paid to appraise the truck. 
However, X may treat the amount paid to appraise the truck as a loss 
under section 165 in Year 2 when the sale is abandoned.
    Example 5. Sales costs of personal property not used in a trade or 
business. Assume the same facts as in Example 3, except that X does not 
use the truck in X's trade or business, but instead uses it for personal 
purposes. X decides to sell the truck and on November 15, Year 1, X pays 
for an appraisal to determine a reasonable asking price. On February 15, 
Year 2, X sells the truck to Y. X is required to capitalize in Year 1 
the amount paid to appraise the truck and, in Year 2, is required to 
offset the amount paid against the amount realized from the sale of the 
truck.
    Example 6. Costs of abandoned sale of personal property not used in 
a trade or business. Assume the same facts as in Example 5, except that, 
instead of selling the truck on February 15, Year 2, X decides on that 
date not to sell the truck and takes the truck off the market. X is 
required to capitalize in Year 1 the amount paid to appraise the truck. 
Although the sale is abandoned in Year 2, X may not treat the amount 
paid to appraise the truck as a loss under section 165 because the truck 
was not used in X's trade or business or in a transaction entered into 
for profit.
    (e) Amount paid. In the case of a taxpayer using an accrual method 
of accounting, the terms amount paid and payment mean a liability 
incurred (within the meaning of Sec. 1.446-1(c)(1)(ii)). A liability 
may not be taken into account under this section prior to the taxable 
year during which the liability is incurred.
    (f) Accounting method changes. Except as otherwise provided in this 
section, a change to comply with this section is a change in method of 
accounting to

[[Page 549]]

which the provisions of sections 446 and 481, and the regulations 
thereunder apply. A taxpayer seeking to change to a method of accounting 
permitted in this section must secure the consent of the Commissioner in 
accordance with Sec. 1.446-1(e) and follow the administrative 
procedures issued under Sec. 1.446-1(e)(3)(ii) for obtaining the 
Commissioner's consent to change its accounting method.
    (g) Effective/applicability date--(1) In general. This section 
applies to taxable years beginning on or after January 1, 2014. Section 
1.263(a)-1 as contained in 26 CFR part 1 edition revised as of April 1, 
2011, applies to taxable years beginning before January 1, 2014.
    (2) Optional early application. A taxpayer may choose to apply this 
section to taxable years beginning on or after January 1, 2012.
    (h) Expiration date. The applicability of this section expires on 
December 23, 2014.

[T.D. 9564, 76 FR 81101, Dec. 27, 2011, as amended by 77 FR 74585, Dec. 
17, 2012]



Sec. 1.263(a)-2  Amounts paid to acquire or produce tangible property.

    (a) through (h) [Reserved] For further guidance, see Sec. Sec. 
1.263(a)-2T(a) through (h).
    (i) through (l) [Reserved] For further guidance, see Sec. Sec. 
1.263(a)-2T(i) through (l).

[T.D. 9564, 76 FR 81102, Dec. 27, 2011]



Sec. 1.263(a)-2T  Amounts paid to acquire or produce tangible property 
(temporary).

    (a) Overview. This section provides rules for applying section 
263(a) to amounts paid to acquire or produce a unit of real or personal 
property. Paragraph (b) of this section contains definitions. Paragraph 
(c) of this section contains the rules for coordinating this section 
with other provisions of the Internal Revenue Code. Paragraph (d) of 
this section provides the general requirement to capitalize amounts paid 
to acquire or produce a unit of real or personal property. Paragraph (e) 
of this section provides the requirement to capitalize amounts paid to 
defend or perfect title to real or personal property. Paragraph (f) of 
this section provides the rules for determining the extent to which 
taxpayers must capitalize transaction costs related to the acquisition 
of property. Paragraph (g) of this section provides a de minimis rule 
for certain amounts paid for the acquisition or production of property. 
Paragraphs (h) and (i) of this section address the treatment and 
recovery of capital expenditures. Paragraph (j) of this section provides 
for changes in methods of accounting to comply with this section, and 
paragraphs (k) and (l) of this section provide the effective, 
applicability, and expiration dates for the rules under this section.
    (b) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Amount paid. In the case of a taxpayer using an accrual method 
of accounting, the terms amount paid and payment mean a liability 
incurred (within the meaning of Sec. 1.446-1(c)(1)(ii)). A liability 
may not be taken into account under this section prior to the taxable 
year during which the liability is incurred.
    (2) Personal property means tangible personal property as defined in 
Sec. 1.48-1(c).
    (3) Real property means land and improvements thereto, such as 
buildings or other inherently permanent structures (including items that 
are structural components of the buildings or structures) that are not 
personal property as defined in paragraph (b)(2) of this section. Any 
property that constitutes other tangible property under Sec. 1.48-1(d) 
is treated as real property for purposes of this section. Local law is 
not controlling in determining whether property is real property for 
purposes of this section.
    (4) Produce means construct, build, install, manufacture, develop, 
create, raise, or grow. This definition is intended to have the same 
meaning as the definition used for purposes of section 263A(g)(1) and 
Sec. 1.263A-2(a)(1)(i), except that improvements are excluded from the 
definition in this paragraph (b)(4) and are separately defined and 
addressed in Sec. 1.263(a)-3T.
    (c) Coordination with other provisions of the Internal Revenue 
Code--(1) In general. Except as provided under the de minimis rule in 
paragraph (g) of this section, nothing in this section

[[Page 550]]

changes the treatment of any amount that is specifically provided for 
under any provision of the Internal Revenue Code or regulations 
thereunder other than section 162(a) or section 212 and the regulations 
under those sections. For example, see section 263A requiring taxpayers 
to capitalize the direct and indirect costs of producing property or 
acquiring property for resale. See also section 195 requiring taxpayers 
to capitalize certain costs as start-up expenditures.
    (2) Materials and supplies. Except as provided under the de minimis 
rule in paragraph (g) of this section, nothing in this section changes 
the treatment of amounts paid to acquire or produce property that is 
properly treated as materials and supplies under Sec. 1.162-3T.
    (d) Acquired or produced tangible property--(1) Requirement to 
capitalize. Except as provided in paragraph (g) of this section 
(providing the de minimis rule) and in Sec. 1.162-3T (relating to 
materials and supplies), a taxpayer must capitalize amounts paid to 
acquire or produce a unit of real or personal property (as determined 
under Sec. 1.263(a)-3T(e)), including leasehold improvement property, 
land and land improvements, buildings, machinery and equipment, and 
furniture and fixtures. Amounts paid to acquire or produce a unit of 
real or personal property include the invoice price, transaction costs 
as determined under paragraph (f) of this section, and costs for work 
performed prior to the date that the unit of property is placed in 
service by the taxpayer (without regard to any applicable convention 
under section 168(d)). A taxpayer also must capitalize amounts paid to 
acquire real or personal property for resale and to produce real or 
personal property. See section 263A for the costs required to be 
capitalized to property produced by the taxpayer or to property acquired 
for resale.
    (2) Examples. The rules of this section are illustrated by the 
following examples, in which it is assumed that the taxpayer does not 
apply the de minimis rule under paragraph (g) of this section:

    Example 1. Acquisition of personal property. X purchases new cash 
registers for use in its retail store located in leased space in a 
shopping mall. Assume each cash register is a unit of property as 
determined under Sec. 1.263(a)-3T(e) and is not a material or supply 
under Sec. 1.162-3T. X must capitalize under this paragraph (d)(1) the 
amount paid to acquire each cash register.
    Example 2. Acquisition of personal property that is a material or 
supply; coordination with Sec. 1.162-3T. X operates a fleet of 
aircraft. In Year 1, X acquires a stock of component parts, which it 
intends to use to maintain and repair its aircraft. X does not make 
elections under Sec. 1.162-3T(d) to treat the materials and supplies as 
capital expenditures. In Year 2, X uses the component parts in the 
repair and maintenance of its aircraft. Because the parts are materials 
and supplies under Sec. 1.162-3T, X is not required to capitalize the 
amounts paid for the parts under this paragraph (d)(1). Rather, X must 
apply the rules in Sec. 1.162-3T, governing the treatment of materials 
and supplies, to determine the treatment of these amounts.
    Example 3. Acquisition of unit of personal property; coordination 
with Sec. 1.162-3T. X operates a rental business that rents out a 
variety of small individual items to customers (rental items). X 
maintains a supply of rental items on hand to replace worn or damaged 
items. X purchases a large quantity of rental items to be used in its 
business. Assume that each of these rental items is a unit of property 
under Sec. 1.263(a)-3T(e). Also assume that a portion of the rental 
items are materials and supplies under Sec. 1.162-3T(c)(1). Under 
paragraph (d)(1) of this section, X must capitalize the amounts paid for 
the rental items that are not materials and supplies under Sec. 1.162-
3T(c)(1). However, X must apply the rules in Sec. 1.162-3T to determine 
the treatment of the rental items that are materials and supplies under 
Sec. 1.162-3T(c)(1).
    Example 4. Acquisition or production cost. X purchases and produces 
jigs, dies, molds, and patterns for use in the manufacture of X's 
products. Assume that each of these items is a unit of property as 
determined under Sec. 1.263(a)-3T(e) and is not a material and supply 
under Sec. 1.162-3T(c)(1). X is required to capitalize under paragraph 
(d)(1) of this section the amounts paid to acquire and produce the jigs, 
dies, molds, and patterns. See section 263A for the costs required to be 
capitalized to the property acquired or produced by X.
    Example 5. Acquisition of land. X purchases a parcel of undeveloped 
real estate. X must capitalize under paragraph (d)(1) of this section 
the amount paid to acquire the real estate. See paragraph (f) of this 
section for the treatment of amounts paid to facilitate the acquisition 
of real property.
    Example 6. Acquisition of building. X purchases a building. X must 
capitalize under paragraph (d)(1) of this section the amount paid to 
acquire the building. See paragraph (f) of this section for the 
treatment of

[[Page 551]]

amounts paid to facilitate the acquisition of real property.
    Example 7. Acquisition of property for resale and production of 
property for sale. X purchases goods for resale and produces other goods 
for sale. X must capitalize under paragraph (d)(1) of this section the 
amounts paid to acquire and produce the goods. See section 263A for the 
costs required to be capitalized to the property produced or property 
acquired for resale.
    Example 8. Production of building. X constructs a building. X must 
capitalize under paragraph (d)(1) of this section the amount paid to 
construct the building. See section 263A for the costs required to be 
capitalized to the real property produced by X.
    Example 9. Acquisition of assets constituting a trade or business. Y 
owns tangible and intangible assets that constitute a trade or business. 
X purchases all the assets of Y in a taxable transaction. X must 
capitalize under paragraph (d)(1) of this section the amount paid for 
the tangible assets of Y. See Sec. 1.263(a)-4 for the treatment of 
amounts paid to acquire intangibles and Sec. 1.263(a)-5 for the 
treatment of amounts paid to facilitate the acquisition of assets that 
constitute a trade or business. See section 1060 for special allocation 
rules for certain asset acquisitions.
    Example 10. Work performed prior to placing the property in service. 
In Year 1, X purchases a building for use as a business office. Prior to 
placing the building in service, X incurs costs to repair cement steps, 
refinish wood floors, patch holes in walls, and paint the interiors and 
exteriors of the building. In Year 2, X places the building in service 
and begins using the building as its business office. Assume that the 
work that X performs does not constitute an improvement to the building 
or its structural components under Sec. 1.263(a)-3T. Under Sec. 1.263-
3T(e)(2)(i), the building and its structural components is a single unit 
of property. Under paragraph (d)(1) of this section, the amounts paid 
must be capitalized as costs of acquiring the building because they were 
for work performed prior to X's placing the building in service.
    Example 11. Work performed prior to placing the property in service. 
In January Year 1, X purchases a new machine for use in an existing 
production line of its manufacturing business. Assume that the machine 
is a unit of property under Sec. 1.263(a)-3T(e) and is not a material 
or supply under Sec. 1.162-3T. After the machine is installed, X 
performs a critical test on the machine to ensure that it will operate 
in accordance with quality standards. On November 1, Year 1, the 
critical test is complete, and X places the machine in service on the 
production line. X performs periodic quality control testing after the 
machine is placed in service. Under paragraph (d)(1) of this section, 
the amounts paid for the installation and the critical test performed 
before the machine is placed in service must be capitalized as costs of 
acquiring the machine. However, amounts paid for periodic quality 
control testing after X placed the machine in service are not required 
to be capitalized as a cost of acquiring the machine.
    (e) Defense or perfection of title to property--(1) In general. 
Amounts paid to defend or perfect title to real or personal property are 
amounts paid to acquire or produce property within the meaning of this 
section and must be capitalized. See section 263A for the costs required 
to be capitalized to property produced by the taxpayer or to property 
acquired for resale.
    (2) Examples. The following examples illustrate the rule of 
paragraph (e):

    Example 1. Amounts paid to contest condemnation. X owns real 
property located in County. County files an eminent domain complaint 
condemning a portion of X's property to use as a roadway. X hires an 
attorney to contest the condemnation. The amounts that X paid to the 
attorney must be capitalized because they were to defend X's title to 
the property.
    Example 2. Amounts paid to invalidate ordinance. X is in the 
business of quarrying and supplying for sale sand and stone in a certain 
municipality. Several years after X establishes its business, the 
municipality in which it is located passes an ordinance that prohibits 
the operation of X's business. X incurs attorney's fees in a successful 
prosecution of a suit to invalidate the municipal ordinance. X 
prosecutes the suit to preserve its business activities and not to 
defend X's title in the property. Therefore, the attorney's fees that X 
paid are not required to be capitalized under paragraph (e)(1) of this 
section. See section 263A for the rules requiring direct and allocable 
indirect costs (including otherwise deductible costs) to be capitalized 
to property produced or property acquired for resale.
    Example 3. Amounts paid to challenge building line. The board of 
public works of a municipality establishes a building line across X's 
business property, adversely affecting the value of the property. X 
incurs legal fees in unsuccessfully litigating the establishment of the 
building line. The amounts X paid to the attorney must be capitalized 
because they were to defend X's title to the property.

    (f) Transaction costs--(1) In general. A taxpayer must capitalize 
amounts paid to facilitate the acquisition or production of real or 
personal property. See section 263A for the costs required to be 
capitalized to property produced by the taxpayer or to property acquired

[[Page 552]]

for resale. See Sec. 1.263(a)-5 for the treatment of amounts paid to 
facilitate the acquisition of assets that constitute a trade or 
business. See Sec. 1.167(a)-5 for allocations of facilitative costs 
between depreciable and non-depreciable property.
    (2) Scope of facilitate--(i) In general. Except as otherwise 
provided in this section, an amount is paid to facilitate the 
acquisition of real or personal property if the amount is paid in the 
process of investigating or otherwise pursuing the acquisition. Whether 
an amount is paid in the process of investigating or otherwise pursuing 
the acquisition is determined based on all of the facts and 
circumstances. In determining whether an amount is paid to facilitate an 
acquisition, the fact that the amount would (or would not) have been 
paid but for the acquisition is relevant but is not determinative. 
Amounts paid to facilitate an acquisition include, but are not limited 
to, inherently facilitative amounts specified in paragraph (f)(2)(ii) of 
this section.
    (ii) Inherently facilitative amounts. An amount is paid in the 
process of investigating or otherwise pursuing the acquisition of real 
or personal property if the amount is inherently facilitative. An amount 
is inherently facilitative if the amount is paid for--
    (A) Transporting the property (for example, shipping fees and moving 
costs);
    (B) Securing an appraisal or determining the value or price of 
property;
    (C) Negotiating the terms or structure of the acquisition and 
obtaining tax advice on the acquisition;
    (D) Application fees, bidding costs, or similar expenses;
    (E) Preparing and reviewing the documents that effectuate the 
acquisition of the property (for example, preparing the bid, offer, 
sales contract, or purchase agreement);
    (F) Examining and evaluating the title of property;
    (G) Obtaining regulatory approval of the acquisition or securing 
permits related to the acquisition, including application fees;
    (H) Conveying property between the parties, including sales and 
transfer taxes, and title registration costs;
    (I) Finders' fees or brokers' commissions, including amounts paid 
that are contingent on the successful closing of the acquisition;
    (J) Architectural, geological, engineering, environmental, or 
inspection services pertaining to particular properties; or
    (K) Services provided by a qualified intermediary or other 
facilitator of an exchange under section 1031.
    (iii) Special rule for acquisitions of real property--(A) In 
general. Except as provided in paragraph (f)(2)(ii) of this section 
(relating to inherently facilitative amounts), an amount paid by the 
taxpayer in the process of investigating or otherwise pursuing the 
acquisition of real property does not facilitate the acquisition if it 
relates to activities performed in the process of determining whether to 
acquire real property and which real property to acquire.
    (B) Acquisitions of real and personal property in a single 
transaction. An amount paid by the taxpayer in the process of 
investigating or otherwise pursuing the acquisition of personal property 
facilitates the acquisition of such personal property even if such 
property is acquired in a single transaction that also includes the 
acquisition of real property subject to the special rule set out in 
paragraph (f)(2)(iii)(A) of this section. A taxpayer may use a 
reasonable allocation to determine which costs facilitate the 
acquisition of personal property and which costs relate to the 
acquisition of real property and are subject to the special rule of 
paragraph (f)(2)(iii)(A) of this section.
    (iv) Employee compensation and overhead costs--(A) In general. For 
purposes of paragraph (f) of this section, amounts paid for employee 
compensation (within the meaning of Sec. 1.263(a)-4(e)(4)(ii)) and 
overhead are treated as amounts that do not facilitate the acquisition 
of real or personal property. See section 263A, however, for the 
treatment of employee compensation and overhead costs required to be 
capitalized to property produced by the taxpayer or to property acquired 
for resale.
    (B) Election to capitalize. A taxpayer may elect to treat amounts 
paid for employee compensation or overhead as

[[Page 553]]

amounts that facilitate the acquisition of property. The election is 
made separately for each acquisition and applies to employee 
compensation or overhead, or both. For example, a taxpayer may elect to 
treat overhead, but not employee compensation, as amounts that 
facilitate the acquisition of property. A taxpayer makes the election by 
treating the amounts to which the election applies as amounts that 
facilitate the acquisition in the taxpayer's timely filed original 
Federal income tax return (including extensions) for the taxable year 
during which the amounts are paid. In the case of an S corporation or a 
partnership, the election is made by the S corporation or by the 
partnership, and not by the shareholders or partners. A taxpayer may 
revoke an election made under this paragraph (f)(2)(iv)(B) with respect 
to each acquisition only by filing a request for a private letter ruling 
and obtaining the Commissioner's consent to revoke the election. The 
Commissioner may grant a request to revoke this election if the taxpayer 
can demonstrate good cause for the revocation. An election may not be 
made or revoked through the filing of an application for change in 
accounting method or, before obtaining the Commissioner's consent to 
make the late election or to revoke the election, by filing an amended 
Federal income tax return.
    (3) Treatment of transaction costs--(i) In general. All amounts paid 
to facilitate the acquisition or production of real or personal property 
are capital expenditures. Facilitative amounts allocable to real or 
personal property must be included in the basis of the property acquired 
or produced.
    (ii) Treatment of inherently facilitative amounts. Inherently 
facilitative amounts allocable to real or personal property are capital 
expenditures related to such property even if the property is not 
eventually acquired or produced. Inherently facilitative amounts 
allocable to real or personal property not acquired may be allocated to 
those properties and recovered as appropriate in accordance with the 
applicable provisions of the Internal Revenue Code and the regulations 
thereunder (for example, sections 165, 167, or 168). See paragraph (i) 
of this section for the recovery of capitalized amounts.
    (4) Examples. The following examples illustrate the rules of 
paragraph (f) of this section:

    Example 1. Broker's fees to facilitate an acquisition. X decides to 
purchase a building in which to relocate its offices and hires a real 
estate broker to find a suitable building. X pays fees to the broker to 
find property for X to acquire. Under paragraph (f)(2)(ii)(I) of this 
section, X must capitalize the amounts paid to the broker because these 
costs are inherently facilitative of the acquisition of real property.
    Example 2. Inspection and survey costs to facilitate an acquisition. 
X decides to purchase building A and pays amounts to third-party 
contractors for a termite inspection and an environmental survey of 
building A. Under paragraph (f)(2)(ii)(J) of this section, X must 
capitalize the amounts paid for the inspection and the survey of the 
building because these costs are inherently facilitative of the 
acquisition of real property.
    Example 3. Moving costs to facilitate an acquisition. X purchases 
all the assets of Y and, in connection with the purchase, hires a 
transportation company to move storage tanks from Y's plant to X's 
plant. Under paragraph (f)(2)(ii)(A) of this section, X must capitalize 
the amount paid to move the storage tanks from Y's plant to X's plant 
because this cost is inherently facilitative to the acquisition of 
personal property.
    Example 4. Geological and geophysical costs; coordination with other 
provisions. X is in the business of exploring, purchasing, and 
developing properties in the United States for the production of oil and 
gas. X considers acquiring a particular property but first incurs costs 
for the services of an engineering firm to perform geological and 
geophysical studies to determine if the property is suitable for oil or 
gas production. Assume that the amounts that X paid to the engineering 
firm constitute geological and geophysical expenditures under section 
167(h). Although the amounts that X paid for the geological and 
geophysical services are inherently facilitative to the acquisition of 
real property under paragraph (f)(2)(ii)(J) of this section, X is not 
required to include those amounts in the basis of the real property 
acquired. Rather, under paragraph (c) of this section, X must capitalize 
these costs separately and amortize such costs as required under section 
167(h) (addressing the amortization of geological and geophysical 
expenditures).
    Example 5. Scope of facilitate. X is in the business of providing 
legal services to clients. X is interested in acquiring a new conference 
table for its office. X hires and incurs fees for an interior designer 
to shop for, evaluate, and make recommendations to X regarding which new 
table to acquire. Under

[[Page 554]]

paragraphs (f)(1) and (2) of this section, X must capitalize the amounts 
paid to the interior designer to provide these services because they are 
paid in the process of investigating or otherwise pursuing the 
acquisition of personal property.
    Example 6. Transaction costs allocable to multiple properties. X, a 
retailer, wants to acquire land for the purpose of building a new 
distribution facility for its products. X considers various properties 
on highway A in state B. X incurs fees for the services of an architect 
to advise and evaluate the suitability of the sites for the type of 
facility that X intends to construct on the selected site. X must 
capitalize the architect fees as amounts paid to acquire land because 
these amounts are inherently facilitative to the acquisition of land 
under paragraph (f)(2)(ii)(J) of this section.
    Example 7. Transaction costs allocable to multiple properties. X, a 
retailer, wants to acquire land for the purpose of building a new 
distribution facility for its products. X considers various properties 
on highway A in state B. X incurs fees for the services of an architect 
to prepare preliminary floor plans for a building that X could construct 
at any of the sites. Under these facts, the architect's fees are not 
inherently facilitative to the acquisition of land under paragraph 
(f)(2)(iii)(J) of this section but are allocable as construction costs 
of the building under section 263A. Therefore, X does not capitalize the 
architect fees as amounts paid to acquire land but instead must 
capitalize these costs as indirect costs allocable to the production of 
property under section 263A.
    Example 8. Special rule for acquisitions of real property. X owns 
several retail stores. X decides to examine the feasibility of opening a 
new store in city A. In October, Year 1, X hires and incurs costs for a 
development consulting firm to study city A and perform market surveys, 
evaluate zoning and environmental requirements, and make preliminary 
reports and recommendations as to areas that X should consider for 
purposes of locating a new store. In December, Year 1, X continues to 
consider whether to purchase real property in city A and which property 
to acquire. X hires, and incurs fees for, an appraiser to perform 
appraisals on two different sites to determine a fair offering price for 
each site. In March, Year 2, X decides to acquire one of these two sites 
for the location of its new store. At the same time, X determines not to 
acquire the other site. Under paragraph (f)(2)(iii) of this section, X 
is not required to capitalize amounts paid to the development consultant 
in Year 1 because the amounts relate to activities performed in the 
process of determining whether to acquire real property and which real 
property to acquire and the amounts are not inherently facilitative 
costs under paragraph (f)(2)(ii) of this section. However, X must 
capitalize amounts paid to the appraiser in Year 1 because the appraisal 
costs are inherently facilitative costs under paragraph (f)(2)(ii)(B) of 
this section. In Year 2, X must include the appraisal costs allocable to 
property acquired in the basis of the property acquired and may recover 
the appraisal costs allocable to the property not acquired in accordance 
with paragraphs (f)(3)(ii) and (i) of this section.
    Example 9. Employee compensation and overhead. X, a freight carrier, 
maintains an acquisition department whose sole function is to arrange 
for the purchase of vehicles and aircraft from manufacturers or other 
parties to be used in its freight carrying business. As provided in 
paragraph (f)(2)(iv)(A) of this section, X is not required to capitalize 
any portion of the compensation paid to employees in its acquisition 
department or any portion of its overhead allocable to its acquisition 
department. However, under paragraph (f)(2)(iv)(B) of this section, X 
may elect to capitalize the compensation and overhead costs allocable to 
the acquisition of a vehicle or aircraft by treating these amounts as 
costs that facilitate the acquisition of that property in its timely 
filed original federal income tax return for the year the amounts are 
paid.

    (g) De minimis rule--(1) In general. Except as otherwise provided in 
this paragraph (g), a taxpayer is not required to capitalize under 
paragraph (d)(1) of this section nor treat as a material or supply under 
Sec. 1.162-3T(a) amounts paid for the acquisition or production 
(including any amounts paid to facilitate the acquisition or production) 
of a unit of property (as determined under Sec. 1.263(a)-3T(e)) or for 
the acquisition or production of any material or supply (as defined in 
Sec. 1.162-3T(c)(1)) if--
    (i) The taxpayer has an applicable financial statement (as defined 
in paragraph (g)(6) of this section);
    (ii) The taxpayer has at the beginning of the taxable year written 
accounting procedures treating as an expense for non-tax purposes the 
amounts paid for property costing less than a certain dollar amount;
    (iii) The taxpayer treats the amounts paid during the taxable year 
as an expense on its applicable financial statement in accordance with 
its written accounting procedures; and
    (iv) The total aggregate of amounts paid and not capitalized under 
paragraph (g)(1) of this section and Sec. 1.162-3T(f) (materials and 
supplies) for the

[[Page 555]]

taxable year are less than or equal to the greater of--
    (A) 0.1 percent of the taxpayer's gross receipts for the taxable 
year as determined for Federal income tax purposes; or
    (B) 2 percent of the taxpayer's total depreciation and amortization 
expense for the taxable year as determined in its applicable financial 
statement.
    (2) Exceptions to de minimis rule. The de minimis rule in paragraph 
(g)(1) of this section does not apply to the following:
    (i) Amounts paid for property that is or is intended to be included 
in inventory property; and
    (ii) Amounts paid for land.
    (3) Additional rules. Property to which a taxpayer applies the de 
minimis rule contained in paragraph (g) of this section is not treated 
upon sale or other disposition as a capital asset under section 1221 or 
as property used in the trade or business under section 1231. The cost 
of property to which a taxpayer properly applies the de minimis rule 
contained in paragraph (g) of this section is not required to be 
capitalized under section 263A to a separate unit of property but may be 
required to be capitalized as a cost of other property if incurred by 
reason of the production of the other property. See, for example, Sec. 
1.263A-1(e)(3)(ii)(R) requiring taxpayers to capitalize the cost of 
tools and equipment allocable to property produced or property acquired 
for resale.
    (4) Election to capitalize. A taxpayer may elect not to apply the de 
minimis rule contained in paragraph (g)(1) of this section. An election 
made under this paragraph (g)(4) may apply to any unit of property 
during the taxable year to which paragraph (g)(1) of this section would 
apply (but for the election under this paragraph (g)(4)). A taxpayer 
makes the election by capitalizing the amounts paid to acquire or 
produce the unit of property in the taxable year the amounts are paid 
and by beginning to recover the costs when the unit of property is 
placed in service by the taxpayer for the purposes of determining 
depreciation under the applicable provisions of the Internal Revenue 
Code and the regulations thereunder. A taxpayer must make this election 
on its timely filed original Federal income tax return (including 
extensions) for the taxable year the unit of property is placed in 
service by the taxpayer for the purposes of determining depreciation. In 
the case of an S corporation or a partnership, the election is made by 
the S corporation or by the partnership, and not by the shareholders or 
partners. A taxpayer may revoke an election made under this paragraph 
(g)(4) with respect to a unit of property only by filing a request for a 
private letter ruling and obtaining the Commissioner's consent to revoke 
the election. The Commissioner may grant a request to revoke this 
election if the taxpayer can demonstrate good cause for the revocation. 
An election may not be made or revoked through the filing of an 
application for change in accounting method or by filing an amended 
Federal income tax return.
    (5) Materials and supplies. A taxpayer must treat amounts paid to 
acquire or produce a unit of property that is a material or supply as 
defined under Sec. 1.162-3T(c)(1) under Sec. 1.162-3T unless the 
taxpayer elects under Sec. 1.162-3T(f) to apply the de minimis rule to 
that property under this paragraph (g). Property to which a taxpayer 
applies the de minimis rule contained in paragraph (g) of this section 
is not treated as a material or supply under Sec. 1.162-3T.
    (6) Definition of applicable financial statement. For purposes of 
this section (g), the taxpayer's applicable financial statement is the 
taxpayer's financial statement listed in paragraphs (g)(6)(i) through 
(iii) of this section that has the highest priority (including within 
paragraph (g)(6)(ii) of this section). The financial statements are, in 
descending priority--
    (i) A financial statement required to be filed with the Securities 
and Exchange Commission (SEC) (the 10-K or the Annual Statement to 
Shareholders);
    (ii) A certified audited financial statement that is accompanied by 
the report of an independent CPA (or in the case of a foreign entity, by 
the report of a similarly qualified independent professional), that is 
used for--
    (A) Credit purposes;

[[Page 556]]

    (B) Reporting to shareholders, partners, or similar persons; or
    (C) Any other substantial non-tax purpose; or
    (iii) A financial statement (other than a tax return) required to be 
provided to the federal or a state government or any federal or state 
agencies (other than the SEC or the Internal Revenue Service).
    (7) Application to consolidated group member. If the taxpayer is a 
member of a consolidated group for federal income tax purposes and the 
member's financial results are reported on the applicable financial 
statement (as defined in paragraph (g)(6) of this section) for the 
consolidated group then, for purposes of paragraphs (g)(1)(ii) and 
(g)(1)(iii) of this section, the written accounting procedures provided 
for the group and utilized for the group's applicable financial 
statement may be treated as the written accounting procedures of the 
member.
    (8) Examples. The following examples illustrate the rule of this 
paragraph (g):

    Example 1. De minimis rule. X purchases 10 printers at $200 each for 
a total cost of $2,000. Assume that each printer is a unit of property 
under Sec. 1.263(a)-3T(e) and is not a material or supply under Sec. 
1.162-3T. X has an applicable financial statement and a written policy 
at the beginning of the taxable year to expense amounts paid for 
property costing less than $500. X treats the amounts paid for the 
printers as an expense on its applicable financial statement. Assume 
that the total aggregate amounts treated as de minimis and not 
capitalized by X under paragraphs (g)(1)(i), (ii), and (iii) of this 
section, including the amounts paid for the printers, are less than or 
equal to the greater of 0.1 percent of total gross receipts or 2 percent 
of X's total financial statement depreciation under paragraph (g)(1)(iv) 
of this section. X is not required to capitalize the amounts paid for 
the 10 printers under paragraph (g)(1) of this section.
    Example 2. De minimis rule not met. X is a member of a consolidated 
group for federal income tax purposes. X's financial results are 
reported on the consolidated applicable financial statements for the 
affiliated group. X's affiliated group has a written policy at the 
beginning of Year 1, which is followed by X, to expense amounts paid for 
property costing less than $500. In Year 1, X pays $160,000 to purchase 
400 computers at $400 each. Assume that each computer is a unit of 
property under Sec. 1.263(a)-3T(e), is not a material or supply under 
Sec. 1.162-3T, and that X intends to treat the cost of only the 
computers as de minimis under paragraph (g)(1) of this section. X treats 
the amounts paid for the computers as an expense on the applicable 
financial statements for the affiliated group. For its Year 1 taxable 
year, X has gross receipts of $125,000,000 for Federal tax purposes and 
reports $7,000,000 of it's own depreciation and amortization expense on 
the affiliated group's applicable financial statement. Thus, in order to 
meet the criteria of paragraph (g)(1)(iv) of this section for Year 1, 
the total aggregate amounts paid and not capitalized by X under 
paragraphs (g)(1)(i), (ii), and (iii) of this section must be less than 
or equal to the greater of $125,000 (0.1 percent of X's total gross 
receipts of $125,000,000) or $140,000 (2 percent of X's total 
depreciation and amortization of $7,000,000). Because X pays $160,000 
for the computers and this amount exceeds $140,000, the greater of the 
two limitations provided in paragraph (g)(1)(iv) of this section, X may 
not apply the de minimis rule under paragraph (g)(1) of this section to 
the total amounts paid for the 400 computers.
    Example 3. De minimis rule; election to capitalize. Assume the same 
facts as in Example 2, except that X makes an election under paragraph 
(g)(4) of this section to capitalize $20,000, the amounts paid to 
acquire 50 of the 400 computers purchased in Year 1. Under these facts, 
the $140,000 paid by X in Year 1 for the remaining 350 computers 
qualifies for the de minimis rule under paragraph (g)(1) of this section 
because this amount is equal to 2 percent of X's total depreciation 
($140,000), the greater of the two amounts calculated under paragraph 
(g)(1)(iv) of this section. Accordingly, X is not required to capitalize 
the amounts paid to acquire the 350 computers in Year 1.
    Example 4. Election to apply de minimis rule to certain materials 
and supplies. (i) X is a corporation that provides consulting services 
to its customers. X has an applicable financial statement and a written 
policy at the beginning of the taxable year to expense amounts paid for 
property costing $500 or less. In Year 1, X purchases 200 computers at 
$500 each for a total cost of $100,000. Assume that each computer is a 
unit of property under Sec. 1.263(a)-3T(e) and is not a material or 
supply under Sec. 1.162-3T. In addition, X purchases 200 office chairs 
at $100 each for a total cost of $20,000 and 250 customized briefcases 
at $80 each for a total cost of $20,000. Assume that each office chair 
and each briefcase is a material or supply under Sec. 1.162-3T(c)(1). 
In Year 1, X also acquires 10 books at $100 each, which are also 
materials and supplies under Sec. 1.162-3T(c)(1). X makes the election 
under Sec. 1.162-3T(f) to apply the de minimis rule to the office 
chairs and briefcases, but does not make that election for the books and 
treats the books as materials and supplies in accordance with the 
provisions of Sec. 1.162-3T. X

[[Page 557]]

treats the amounts paid for the computers, office chairs, and briefcases 
as expenses on its applicable financial statement. Assume also that for 
Year 1, the amounts that X paid for the computers, office chairs, and 
briefcases are the only amounts that X intends to treat as de minimis 
costs not capitalized under paragraph (g)(1) of this section. For its 
Year 1 taxable year, X has gross receipts of $125,000,000 and reports 
$7,000,000 of depreciation and amortization on its applicable financial 
statement.
    (ii) In order to meet the requirements of paragraph (g)(1)(iv) of 
this section for Year 1, X's total aggregate amounts paid and not 
capitalized under paragraphs (g)(1)(i), (ii), and (iii) of this section 
must be less than or equal to the greater of $125,000 (0.1 percent of 
X's total gross receipts of $125,000,000) or $140,000 (2 percent of X's 
total depreciation and amortization of $7,000,000). X pays a total of 
$140,000 ($100,000 + $20,000 + $20,000) for the computers, office 
chairs, and briefcases. X is not required to include the amounts paid 
for the books in this computation because X has not elected under Sec. 
1.162-3T(f) to apply the de minimis rule to the books. Thus, the total 
aggregate amounts paid and not capitalized under paragraph (g)(1) of 
this section is equal to $140,000 (2 percent of X's total financial 
depreciation), the greater of the two limitations set out under 
paragraph (g)(1)(iv) of this section. Accordingly, under paragraph 
(g)(1) of this section, in Year 1, X may treat as de minimis and is not 
required to capitalize the $140,000 paid to acquire the computers, 
office chairs, and briefcases.

    (h) Treatment of capital expenditures. Amounts required to be 
capitalized under this section are capital expenditures and must be 
taken into account through a charge to capital account or basis, or in 
the case of property that is inventory in the hands of a taxpayer, 
through inclusion in inventory costs. See section 263A for the treatment 
of direct and certain indirect costs of producing property or acquiring 
property for resale.
    (i) Recovery of capitalized amounts--(1) In general. Amounts that 
are capitalized under this section are recovered through depreciation, 
cost of goods sold, or by an adjustment to basis at the time the 
property is placed in service, sold, used, or otherwise disposed of by 
the taxpayer. Cost recovery is determined by the applicable provisions 
of the Internal Revenue Code and regulations relating to the use, sale, 
or disposition of property.
    (2) Examples. The following examples illustrate the rule of 
paragraph (i)(1) of this section. Assume that X does not apply the de 
minimis rule under paragraph (g) of this section.

    Example 1. Recovery when property placed in service. X owns a 10-
unit apartment building. The refrigerator in one of the apartments stops 
functioning, and X purchases a new refrigerator to replace the old one. 
X pays for the acquisition, delivery, and installation of the new 
refrigerator. Assume that the refrigerator is the unit of property, as 
determined under Sec. 1.263(a)-3T(e), and is not a material or supply 
under Sec. 1.162-3T. Under paragraph (d)(1) of this section, X is 
required to capitalize the amounts paid for the acquisition, delivery, 
and installation of the refrigerator. Under paragraph (i) of this 
section, the capitalized amounts are recovered through depreciation, 
which begins when the refrigerator is placed in service by X.
    Example 2. Recovery when property used in the production of 
property. X operates a plant where it manufactures widgets. X purchases 
a tractor loader to move raw materials into and around the plant for use 
in the manufacturing process. Assume that the tractor loader is a unit 
of property, as determined under Sec. 1.263(a)-3T(e), and is not a 
material or supply under Sec. 1.162-3T. Under paragraph (d)(1) of this 
section, X is required to capitalize the amounts paid to acquire the 
tractor loader. Under paragraph (i) of this section, the capitalized 
amounts are recovered through depreciation, which begins when X places 
the tractor loader in service. However, because the tractor/loader is 
used in the production of property, under section 263A the cost recovery 
(that is, the depreciation) on the capitalized amounts must be 
capitalized to X's property produced, and, consequently, recovered 
through cost of goods sold. See Sec. 1.263A-1(e)(3)(ii)(I).

    (j) Accounting method changes. Except as otherwise provided in this 
section, a change to comply with this section is a change in method of 
accounting to which the provisions of sections 446 and 481, and the 
regulations thereunder apply. A taxpayer seeking to change to a method 
of accounting permitted in this section must secure the consent of the 
Commissioner in accordance with Sec. 1.446-1(e) and follow the 
administrative procedures issued under Sec. 1.446-1(e)(3)(ii) for 
obtaining the Commissioner's consent to change its accounting method.
    (k) Effective/applicability date--(1) In general. Except for 
paragraphs (f)(2)(iii), (f)(2)(iv), (f)(3)(ii), and (g) of this section, 
this section generally applies to taxable years beginning on or after 
January 1, 2014. Paragraphs

[[Page 558]]

(f)(2)(iii), (f)(2)(iv), (f)(3)(ii), and (g) of this section apply to 
amounts paid or incurred (to acquire or produce property) in taxable 
years beginning on or after January 1, 2014. Section 1.263(a)-2 as 
contained in 26 CFR part 1 edition revised as of April 1, 2011, applies 
to taxable years beginning before January 1, 2014.
    (2) Optional early application. Except for paragraphs (f)(2)(iii), 
(f)(2)(iv), (f)(3)(ii), and (g) of this section, a taxpayer may choose 
to apply this section to taxable years beginning on or after January 1, 
2012. A taxpayer may choose to apply paragraphs (f)(2)(iii), (f)(2)(iv), 
(f)(3)(ii), and (g) of this section to amounts paid or incurred (to 
acquire or produce property) in taxable years beginning on or after 
January 1, 2012.
    (l) Expiration Date. The applicability of this section expires on 
December 23, 2014.

[T.D. 9564, 76 FR 81102, Dec. 27, 2011, as amended by 77 FR 18687, Mar. 
28, 2012; 77 FR 74585, Dec. 17, 2012]



Sec. 1.263(a)-3  Amounts paid to improve tangible property.

    (a) and (b) [Reserved] For further guidance, see Sec. 1.263(a)-
3T(a) and (b).
    (c) through (q) [Reserved] For further guidance, see Sec. Sec. 
1.263(a)-3T(c) through (q).

[T.D. 9564, 76 FR 81107, Dec. 27, 2011]



Sec. 1.263(a)-3T  Amounts paid to improve tangible property 
(temporary).

    (a) Overview. This section provides rules for applying section 
263(a) to amounts paid to improve tangible property. Paragraph (b) of 
this section provides definitions. Paragraph (c) of this section 
provides rules for coordinating this section with other provisions of 
the Internal Revenue Code. Paragraph (d) of this section provides the 
requirement to capitalize amounts paid to improve tangible property and 
provides the general rules for determining whether a unit of property is 
improved. Paragraph (e) of this section provides the rules for 
determining the appropriate unit of property. Paragraph (f) of this 
section provides special rules for determining improvement costs in 
particular contexts. Paragraph (g) provides a safe harbor for routine 
maintenance costs. Paragraph (h) of this section provides rules for 
determining whether amounts paid result in betterments to the unit of 
property. Paragraph (i) of this section provides rules for determining 
whether amounts paid restore the unit of property. Paragraph (j) of this 
section provides rules for amounts paid to adapt the unit of property to 
a new or different use. Paragraph (k) of this section provides an 
optional regulatory accounting method. Paragraph (l) of this section 
provides for a repair allowance or other methods of accounting 
identified in published guidance. Paragraphs (m) through (o) of this 
section provide additional rules related to these provisions. Paragraphs 
(p) and (q) of this section provides the effective/applicability and 
expiration dates for the rules in this section.
    (b) Definitions. For purposes this section, the following 
definitions apply:
    (1) Amount paid. In the case of a taxpayer using an accrual method 
of accounting, the terms amounts paid and payment mean a liability 
incurred (within the meaning of Sec. 1.446-1(c)(1)(ii)). A liability 
may not be taken into account under this section prior to the taxable 
year during which the liability is incurred.
    (2) Personal property means tangible personal property as defined in 
Sec. 1.48-1(c).
    (3) Real property means land and improvements thereto, such as 
buildings or other inherently permanent structures (including items that 
are structural components of the buildings or structures) that are not 
personal property as defined in paragraph (b)(2) of this section. Any 
property that constitutes other tangible property under Sec. 1.48-1(d) 
is also treated as real property for purposes of this section. Local law 
is not controlling in determining whether property is real property for 
purposes of this section.
    (4) Owner means the taxpayer that has the benefits and burdens of 
ownership of the unit of property for Federal income tax purposes.
    (c) Coordination with other provisions of the Internal Revenue 
Code--(1) In general. Nothing in this section changes the treatment of 
any amount that is specifically provided for under any provision of the 
Internal Revenue Code or

[[Page 559]]

the regulations other than section 162(a) or section 212 and the 
regulations under those sections. For example, see section 263A 
requiring taxpayers to capitalize the direct and indirect costs of 
producing property or acquiring property for resale.
    (2) Materials and supplies. A material or supply as defined in Sec. 
1.162-3T(c)(1) that is acquired and used to improve a unit of tangible 
property is subject to this section and is not treated as a material or 
supply under Sec. 1.162-3T.
    (3) Exception for amounts subject to de minimis rule. A taxpayer is 
not required to capitalize amounts paid to acquire or produce units of 
property used in improvements under paragraph (d) of this section 
(including materials and supplies used in improvements) if these amounts 
are properly deducted under the de minimis rule of section Sec. 
1.263(a)-2(g).
    (3) Example. The following example illustrates the rules of this 
paragraph (c):

    Example. Railroad rolling stock. X is a railroad that properly 
treats amounts paid for the rehabilitation of railroad rolling stock as 
deductible expenses under section 263(d). X is not required to 
capitalize the amounts paid because nothing in this section changes the 
treatment of amounts specifically provided for under section 263(d).

    (d) Requirement to capitalize amounts paid for improvements. Except 
as provided in the optional regulatory accounting method in paragraph 
(k) of this section or under any other accounting method published in 
accordance with paragraph (l) of this section, a taxpayer generally must 
capitalize the aggregate of related amounts (as defined in paragraph 
(f)(4) of this section) paid to improve a unit of property owned by the 
taxpayer. However, see paragraph (f)(1) of this section for the 
treatment of amounts paid to improve leased property. See section 263A 
for the costs required to be capitalized to property produced by the 
taxpayer or to property acquired for resale; section 1016 for adding 
capitalized amounts to the basis of the unit of property; and section 
168 for the treatment of additions or improvements for depreciation 
purposes. For purposes of this section, a unit of property is improved 
if the amounts paid for activities performed after the property is 
placed in service by the taxpayer--
    (1) Result in a betterment to the unit of property (see paragraph 
(h) of this section);
    (2) Restore the unit of property (see paragraph (i) of this 
section); or
    (3) Adapt the unit of property to a new or different use (see 
paragraph (j) of this section).
    (e) Determining the unit of property--(1) In general. The unit of 
property rules in this paragraph (e) apply only for purposes of section 
263(a) and Sec. Sec. 1.263(a)-1T, 1.263(a)-2T, 1.263(a)-3T, and 1.162-
3T. Unless otherwise specified, the unit of property determination is 
based upon the functional interdependence standard provided in paragraph 
(e)(3)(i) of this section. However, special rules are provided for 
buildings (see paragraph (e)(2) of this section), plant property (see 
paragraph (e)(3)(ii) of this section), network assets (see paragraph 
(e)(3)(iii) of this section), leased property (see paragraph (e)(2)(v) 
of this section for leased buildings and paragraph (e)(3)(iv) of this 
section for leased property other than buildings), and improvements to 
property (see paragraph (e)(4) of this section). Additional rules are 
provided if a taxpayer has assigned different MACRS classes or 
depreciation methods to components of property or subsequently changes 
the class or depreciation method of a component or other item of 
property (see paragraph (e)(5) of this section). Property that is 
aggregated or subject to a general asset account election or accounted 
for in a multiple asset account (that is, pooled) may not be treated as 
a single unit of property.
    (2) Building--(i) In general. Except as otherwise provided in 
paragraphs (e)(4), (e)(5)(ii), and (f)(1)(ii)(B) of this section, in the 
case of a building (as defined in Sec. 1.48-1(e)(1)), each building and 
its structural components (as defined in Sec. 1.48-1(e)(2)) is a single 
unit of property (``building'').
    (ii) Application of improvement rules to a building. An amount is 
paid for an improvement to a building under paragraphs (d) and 
(f)(1)(iii) of this section if the amount paid results in an improvement 
under paragraph (h), (i), or (j) of this section to any of the 
following:

[[Page 560]]

    (A) Building structure. A building structure consists of the 
building (as defined in Sec. 1.48-1(e)(1)), and its structural 
components (as defined in Sec. 1.48-1(e)(2)), other than the structural 
components designated as buildings systems in paragraph (e)(2)(ii)(B) of 
this section.
    (B) Building system. Each of the following structural components (as 
defined in Sec. 1.48-1(e)(2)), including the components thereof, 
constitutes a building system that is separate from the building 
structure, and to which the improvement rules must be applied--
    (1) Heating, ventilation, and air conditioning (``HVAC'') systems 
(including motors, compressors, boilers, furnace, chillers, pipes, 
ducts, radiators);
    (2) Plumbing systems (including pipes, drains, valves, sinks, 
bathtubs, toilets, water and sanitary sewer collection equipment, and 
site utility equipment used to distribute water and waste to and from 
the property line and between buildings and other permanent structures);
    (3) Electrical systems (including wiring, outlets, junction boxes, 
lighting fixtures and associated connectors, and site utility equipment 
used to distribute electricity from property line to and between 
buildings and other permanent structures);
    (4) All escalators;
    (5) All elevators;
    (6) Fire-protection and alarm systems (including sensing devices, 
computer controls, sprinkler heads, sprinkler mains, associated piping 
or plumbing, pumps, visual and audible alarms, alarm control panels, 
heat and smoke detection devices, fire escapes, fire doors, emergency 
exit lighting and signage, and fire fighting equipment, such as 
extinguishers, hoses);
    (7) Security systems for the protection of the building and its 
occupants (including window and door locks, security cameras, recorders, 
monitors, motion detectors, security lighting, alarm systems, entry and 
access systems, related junction boxes, associated wiring and conduit);
    (8) Gas distribution system (including associated pipes and 
equipment used to distribute gas to and from property line and between 
buildings or permanent structures); and
    (9) Other structural components identified in published guidance in 
the Federal Register or in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2)(ii)(b) of this chapter) that are excepted from the 
building structure under paragraph (e)(2)(ii)(A) of this section and are 
specifically designated as building systems under this section.
    (iii) Condominium--(A) In general. In the case of a taxpayer that is 
the owner of an individual unit in a building with multiple units (such 
as a condominium), the unit of property is the individual unit owned by 
the taxpayer and the structural components (as defined in Sec. 1.48-
1(e)(2)) that are part of the unit (condominium).
    (B) Application of improvement rules to a condominium. An amount is 
paid for an improvement to a condominium under paragraph (d) of this 
section if the amount paid results in an improvement under paragraph 
(h), (i), or (j) of this section to the building structure (as defined 
in paragraph (e)(2)(ii)(A) of this section) that is part of the 
condominium or to the portion of any building system (as defined in 
paragraph (e)(2)(ii)(B) of this section) that is part of the 
condominium. In the case of the condominium management association, the 
association must apply the improvement rules to the building structure 
or to any building system as determined under paragraphs (e)(2)(ii)(A) 
and (e)(2)(ii)(B) of this section.
    (iv) Cooperative--(A) In general. In the case of a taxpayer that has 
an ownership interest in a cooperative housing corporation, the unit of 
property is the portion of the building in which the taxpayer has 
possessory rights and the structural components (as defined in Sec. 
1.48-1(e)(2)) that are part of the portion of the building subject to 
the taxpayer's possessory rights (cooperative).
    (B) Application of improvement rules to a cooperative. An amount is 
paid for an improvement to a cooperative under paragraph (d) of this 
section if the amount paid results in an improvement under paragraph 
(h), (i), or (j) of this section to the portion of the building 
structure (as defined in paragraph (e)(2)(ii)(A) of this section) in 
which

[[Page 561]]

the taxpayer has possessory rights or to the portion of any building 
system (as defined in paragraph (e)(2)(ii)(B) of this section) that is 
part of the portion of the building structure subject to the taxpayer's 
possessory rights. In the case of a cooperative housing corporation, the 
corporation must apply the improvement rules to the building structure 
or to any building system as determined under paragraphs (e)(2)(ii)(A) 
and (e)(2)(ii)(B) of this section.
    (v) Leased building--(A) In general. In the case of a taxpayer that 
is a lessee of all or a portion of a building (such as an office, floor, 
or certain square footage), the unit of property is each building and 
its structural components or the portion of each building subject to the 
lease and the structural components associated with the leased portion.
    (B) Application of improvement rules to a leased building. An amount 
is paid for an improvement to a leased building or a leased portion of a 
building under paragraphs (d) and (f)(1)(ii) of this section if the 
amount paid results in an improvement under paragraph (h), (i), or (j) 
of this section to any of the following:
    (1) Entire building. In the case of a taxpayer that is a lessee of 
an entire building, the building structure (as defined under paragraph 
(e)(2)(ii)(A) of this section) or any building system (as defined under 
paragraph (e)(2)(ii)(B) of this section) to which the expenditure 
relates.
    (2) Portion of a building. In the case of a taxpayer that is a 
lessee of a portion of a building (such as an office, floor, or certain 
square footage), the portion of the building structure (as defined under 
paragraph (e)(2)(ii)(A) of this section) subject to the lease or the 
portion of any building system (as defined under paragraph (e)(2)(ii)(B) 
of this section) associated with that portion of the leased building 
structure.
    (3) Property other than building--(i) In general. Except as 
otherwise provided in paragraphs (e)(3), (e)(4), (e)(5), and (f)(1) of 
this section, in the case of real or personal property other than 
property described in paragraph (e)(2) of this section, all the 
components that are functionally interdependent comprise a single unit 
of property. Components of property are functionally interdependent if 
the placing in service of one component by the taxpayer is dependent on 
the placing in service of the other component by the taxpayer.
    (ii) Plant property--(A) Definition. For purposes of this paragraph 
(e) of this section, the term plant property means functionally 
interdependent machinery or equipment, other than network assets, used 
to perform an industrial process, such as manufacturing, generation, 
warehousing, distribution, automated materials handling in service 
industries, or other similar activities.
    (B) Unit of property for plant property. In the case of plant 
property, the unit of property determined under the general rule of 
paragraph (e)(3)(i) of this section is further divided into smaller 
units comprised of each component (or group of components) that performs 
a discrete and major function or operation within the functionally 
interdependent machinery or equipment.
    (iii) Network assets--(A) Definition. For purposes of this paragraph 
(e), the term network assets means railroad track, oil and gas 
pipelines, water and sewage pipelines, power transmission and 
distribution lines, and telephone and cable lines that are owned or 
leased by taxpayers in each of those respective industries. The term 
includes, for example, trunk and feeder lines, pole lines, and buried 
conduit. It does not include property that would be included as building 
structure or building systems under paragraphs (e)(2)(ii)(A) and 
(e)(2)(ii)(B) of this section, nor does it include separate property 
that is adjacent to, but not part of a network asset, such as bridges, 
culverts, or tunnels.
    (B) Unit of property for network assets. In the case of network 
assets, the unit of property is determined by the taxpayer's particular 
facts and circumstances except as otherwise provided in published 
guidance in the Federal Register or in the Internal Revenue Bulletin 
(see Sec. 601.601(d)(2)(ii)(b) of this chapter). For these purposes, 
the functional interdependence standard provided in paragraph (e)(3)(i) 
of this section is not determinative.

[[Page 562]]

    (iv) Leased property other than buildings. In the case of a taxpayer 
that is a lessee of real or personal property other than property 
described in paragraph (e)(2) of this section, the unit of property for 
the leased property is determined under paragraphs (e)(3)(i), (ii), 
(iii), and (e)(5) of this section except that, after applying the 
applicable rules under those paragraphs, the unit of property may not be 
larger than the unit of leased property.
    (4) Improvements to property. An improvement to a unit of property, 
other than a lessee improvement as determined under paragraph (f)(1)(ii) 
of this section, is not a unit of property separate from the unit of 
property improved. For the unit of property for lessee improvements, see 
paragraph (f)(1)(ii)(B) of this section.
    (5) Additional rules--(i) Year placed in service. Notwithstanding 
the unit of property determination under paragraph (e)(3) of this 
section, a component (or a group of components) of a unit property must 
be treated as a separate unit of property if, at the time the unit of 
property is initially placed in service by the taxpayer, the taxpayer 
has properly treated the component as being within a different class of 
property under section 168(e) (MACRS classes) than the class of the unit 
of property of which the component is a part, or the taxpayer has 
properly depreciated the component using a different depreciation method 
than the depreciation method of the unit of property of which the 
component is a part.
    (ii) Change in subsequent taxable year. Notwithstanding the unit of 
property determination under paragraphs (e)(2), (3), (4), or (5)(i) of 
this section, in any taxable year after the unit of property is 
initially placed in service by the taxpayer, if the taxpayer or the 
Internal Revenue Service changes the treatment of that property (or any 
portion thereof) to a proper MACRS class or a proper depreciation method 
(for example, as a result of a cost segregation study or a change in the 
use of the property), then the taxpayer must change the unit of property 
determination for that property (or the portion thereof) under this 
section to be consistent with the change in treatment for depreciation 
purposes. Thus, for example, if a portion of a unit of property is 
properly reclassified to a MACRS class different from the MACRS class of 
the unit of property of which it was previously treated as a part, then 
the reclassified portion of the property should be treated as a separate 
unit of property for purposes of this section.
    (6) Examples. The rules of this paragraph (e) are illustrated by the 
following examples, in which it is assumed that the taxpayer has not 
made a general asset account election with regard to property or 
accounted for property in a multiple asset account. In addition, unless 
the facts specifically indicate otherwise, assume that the additional 
rules in paragraph (e)(5) of this section do not apply:

    Example 1. Building systems. X owns an office building that contains 
a HVAC system. The HVAC system incorporates ten roof-mounted units that 
service different parts of the building. The roof-mounted units are not 
connected and have separate controls and duct work that distribute the 
heated or cooled air to different spaces in the building's interior. X 
pays an amount for labor and materials for work performed on the roof-
mounted units. Under paragraph (e)(2)(i) of this section, X must treat 
the building and its structural components as a single unit of property. 
As provided under paragraph (e)(2)(ii) of this section, an amount is 
paid for an improvement to a building if it results in an improvement to 
the building structure or any designated building system. Under 
paragraph (e)(2)(ii)(B)(1) of this section, the entire HVAC system, 
including all of the roof-mounted units and their components, comprise a 
building system. Therefore, under paragraph (e)(2)(ii) of this section, 
if an amount paid by X for work on the roof-mounted units results in an 
improvement (for example, a betterment) to the HVAC system, X must treat 
this amount as an improvement to the building.
    Example 2. Building systems. X owns a building that it uses in its 
retail business. The building contains two elevator banks in different 
locations in its building. Each elevator bank contains three elevators. 
X pays an amount for labor and materials for work performed on the 
elevators. Under paragraph (e)(2)(i) of this section, X must treat the 
building and its structural components as a single unit of property. As 
provided under paragraph (e)(2)(ii) of this section, an amount is paid 
for an improvement to a building if it results in an improvement to the 
building structure or any designated building system. Under paragraph

[[Page 563]]

(e)(2)(ii)(B)(5) of this section, all of the elevators, including all 
their components, comprise a building system. Therefore, under paragraph 
(e)(2)(ii) of this section, if an amount paid by X for work on the 
elevators results in an improvement (for example, a betterment) to the 
entire elevator system, X must treat these amounts as an improvement to 
the building.
    Example 3. Building structure and systems; condominium. X owns a 
condominium unit in a condominium office building. X uses the 
condominium unit in its business of providing medical services. The 
condominium unit contains two restrooms, each of which contains a sink, 
a toilet, water and drainage pipes and bathroom fixtures. X pays an 
amount for labor and materials to perform work on the pipes, sinks, 
toilets, and plumbing fixtures that are part of the condominium unit. 
Under paragraph (e)(2)(iii) of this section, X must treat the individual 
unit that it owns, including the structural components that are part of 
that unit, as a single unit of property. As provided under paragraph 
(e)(2)(iii)(B) of this section, an amount is paid for an improvement to 
the condominium if it results in an improvement to the building 
structure that is part of the unit or to a portion of any designated 
building system that is part of the unit. Under paragraph 
(e)(2)(ii)(B)(2) of this section, the pipes, sinks, toilets, and 
plumbing fixtures that are part of X's unit comprise the plumbing system 
for the condominium unit. Therefore, under paragraph (e)(2)(iii) of this 
section, if an amount paid by X for work on pipes, sinks, toilets, and 
plumbing fixtures results in an improvement (for example, a betterment) 
to the portion of the plumbing system that is part of X's condominium 
unit, X must treat this amount as an improvement to the condominium.
    Example 4. Building structure and systems; property other than 
buildings. X, a manufacturer, owns a building adjacent to its 
manufacturing facility that contains office space and related facilities 
for X's employees that manage and administer X's manufacturing 
operations. The office building contains equipment, such as desks, 
chairs, computers, telephones, and bookshelves that are not building 
structure or building systems. X pays an amount to add an extension to 
the office building. Under paragraph (e)(2)(i) of this section, X must 
treat the building and its structural components as a single unit of 
property. As provided under paragraph (e)(2)(ii) of this section, an 
amount is paid for an improvement to a building if it results in an 
improvement to the building structure or any designated building system. 
Therefore, under paragraph (e)(2)(ii) of this section, if an amount paid 
by X for the addition of an extension to the office building results in 
an improvement (for example, a betterment) to the building structure, X 
must treat this amount as an improvement to the building. In addition, 
because the equipment contained within the office building constitutes 
property other than the building, the units of property for the office 
equipment are initially determined under the general rule in paragraph 
(e)(3)(i) of this section and are comprised of the groups of components 
that are functionally interdependent.
    Example 5. Plant property; discrete and major function. X is an 
electric utility company that operates a power plant to generate 
electricity. The power plant includes a structure that is not a building 
under Sec. 1.48-1(e)(1), four pulverizers that grind coal, one boiler 
that produces steam, one turbine that converts the steam into mechanical 
energy, and one generator that converts mechanical energy into 
electrical energy. In addition, the turbine contains a series of blades 
that cause the turbine to rotate when affected by the steam. Because the 
plant is composed of real and personal tangible property other than a 
building, the unit of property for the generating equipment is initially 
determined under the general rule in paragraph (e)(3)(i) of this section 
and is comprised of all the components that are functionally 
interdependent. Under this rule, the initial unit of property is the 
entire plant because the components of the plant are functionally 
interdependent. However, because the power plant is plant property under 
paragraph (e)(3)(ii) of this section, the initial unit of property is 
further divided into smaller units of property by determining the 
components (or groups of components) that perform discrete and major 
functions within the plant. Under this paragraph, X must treat the 
structure, the boiler, the turbine, and the generator each as a separate 
unit of property, and each of the four pulverizers as a separate unit of 
property because each of these components performs a discrete and major 
function within the power plant. X is not required to treat components, 
such as the turbine blades, as separate units of property because each 
of these components does not perform a discrete and major function 
within the plant.
    Example 6. Plant property; discrete and major function. X is engaged 
in a uniform and linen rental business. X owns and operates a plant that 
utilizes many different machines and equipment in an assembly line-like 
process to treat, launder, and prepare rental items for its customers. X 
utilizes two laundering lines in its plant, each of which can operate 
independently. One line is used for uniforms and another line is used 
for linens. Both lines incorporate several sorters, boilers, washers, 
dryers, ironers, folders, and waste water treatment systems. Because the 
laundering equipment contained within the plant is property other than a 
building, the unit of property for the laundering equipment is initially 
determined under the general rule in

[[Page 564]]

paragraph (e)(3)(i) of this section and is comprised of all the 
components that are functionally interdependent. Under this rule, the 
initial units of property are each laundering line because each line is 
functionally independent and is comprised of components that are 
functionally interdependent. However, because each line is comprised of 
plant property under paragraph (e)(3)(ii) of this section, X must 
further divide these initial units of property into smaller units of 
property by determining the components (or groups of components) that 
perform discrete and major functions within the line. Under paragraph 
(e)(3)(ii) of this section, X must treat each sorter, boiler, washer, 
dryer, ironer, folder, and waste water treatment system in each line as 
a separate unit of property because each of these components performs a 
discrete and major function within the line.
    Example 7. Plant property; industrial process. X operates a 
restaurant that prepares and serves food to retail customers. Within its 
restaurant, X has a large piece of equipment that uses an assembly line-
like process to prepare and cook tortillas that X serves to its 
customers. Because the tortilla-making equipment is property other than 
a building, the unit of property for the equipment is initially 
determined under the general rule in paragraph (e)(3)(i) of this section 
and is comprised of all the components that are functionally 
interdependent. Under this rule, the initial unit of property is the 
entire tortilla-making equipment because the various components of the 
equipment are functionally interdependent. The equipment is not plant 
property under paragraph (e)(3)(ii) of this section because the 
equipment is not used in an industrial process, as it performs a small-
scale function in X's retail restaurant operations. Thus, X is not 
required to further divide the equipment into separate units of property 
based on the components that perform discrete and major functions.
    Example 8. Personal property. X owns locomotives that it uses in its 
railroad business. Each locomotive consists of various components, such 
as an engine, generators, batteries and trucks. X acquired a locomotive 
with all its components and treated all the components of the locomotive 
as being within the same class of property under section 168(e) and 
depreciated all the components using the same depreciation method. 
Because X's locomotive is property other than a building, the initial 
unit of property is determined under the general rule in paragraph 
(e)(3)(i) of this section and is comprised of the components that are 
functionally interdependent. Under paragraph (e)(3)(i) of this section, 
the locomotive is a single unit of property because it consists entirely 
of components that are functionally interdependent.
    Example 9. Personal property. X provides legal services to its 
clients. X purchased a laptop computer and a printer for its employees 
to use in providing legal services. When X placed the computer and 
printer into service, X treated the computer and printer and all their 
components as being within the same class of property under section 
168(e) and depreciated all the components using the same depreciation 
method. Because the computer and printer are property other than a 
building, the initial units of property are determined under the general 
rule in paragraph (e)(3)(i) of this section and are comprised of the 
components that are functionally interdependent. Under paragraph 
(e)(3)(i) of this section, the computer and the printer are separate 
units of property because the computer and the printer are not 
components that are functionally interdependent (that is, the placing in 
service of the computer is not dependent on the placing in service of 
the printer).
    Example 10. Building structure and systems; leased building. X is a 
retailer of consumer products. X conducts its retail sales in a building 
that it leases from Y. The leased building consists of the building 
structure (including the floor, walls, and a roof) and various building 
systems, including a plumbing system, an electrical system, a HVAC 
system, a security system, and a fire protection and prevention system. 
X pays an amount for labor and materials to perform work on the HVAC 
system of the leased building. Under paragraph (e)(2)(v)(A) of this 
section, because X leases the entire building, X must treat the leased 
building and its structural components as a single unit of property. As 
provided under paragraph (e)(2)(v)(B) of this section, an amount is paid 
for an improvement to a leased building if it results in an improvement 
(for example, a betterment) to the leased building structure or to any 
building system within the leased building. Therefore, under paragraphs 
(e)(2)(v)(B)(1) and (e)(2)(ii)(B)(1) of this section, if an amount paid 
by X for work on the HVAC system results in an improvement to the 
heating and air conditioning system in the leased building, X must treat 
this amount as an improvement to the entire leased building.
    Example 11. Production of real property related to leased property. 
Assume the same facts as in Example 10, except that X receives a 
construction allowance from Y and X uses the construction allowance to 
build a driveway adjacent to the leased building. Assume that under the 
terms of the lease, X, the lessee, is treated as the owner of any 
property that it constructs on or nearby the leased building. Also 
assume that section 110 does not apply to the construction allowance. 
Finally, assume that the driveway is not plant property or a network 
asset. Because the construction of the driveway consists of the 
production of real property other than a building, all the components of 
the driveway

[[Page 565]]

that are functionally interdependent are a single unit of property under 
paragraphs (e)(3)(i) and (e)(3)(iv) of this section.
    Example 12. Leasehold improvements; construction allowance used for 
lessor-owned improvements. Assume the same facts as Example 11, except 
that under the terms of the lease Y, the lessor, is treated as the owner 
of any property constructed on the leased premises. Because Y, the 
lessor, is the owner of the driveway and the driveway is real property 
other than a building, all the components of the driveway that are 
functionally interdependent are a single unit of property under 
paragraph (e)(3)(i) of this section.
    Example 13. Buildings and structural components; leased office 
space. X provides consulting services to its clients. X conducts its 
consulting services business in two office spaces in the same building, 
each of which it leases from Y under separate lease agreements. Each 
office space contains a separate HVAC unit, which is part of the leased 
property. Both lease agreements provide that X is responsible for 
maintaining, repairing, and replacing the HVAC conditioning system that 
is part of the leased property. X pays amounts to perform work on the 
HVAC units in each office space. Because X leases two separate office 
spaces subject to two leases, X must treat the portion of the building 
structure and the structural components subject to each lease as a 
separate unit of property under paragraph (e)(2)(v)(A) of this section. 
As provided under paragraph (e)(2)(v)(B) of this section, an amount is 
paid for an improvement to a leased unit of property, if it results in 
an improvement to the leased portion of the building structure or the 
associated portion of any designated building system subject to each 
lease. Under paragraphs (e)(2)(v)(B)(1) and (e)(2)(ii)(B)(1) of this 
section, X must treat the HVAC unit associated with one leased office 
space as a building system of that leased space and the HVAC unit 
associated with the second leased office space as a building system of 
that second leased space. Thus, under paragraph (e)(2)(v)(B) of this 
section, if the amount paid by X for work on the HVAC unit in one leased 
space results in an improvement (for example, a betterment) to the HVAC 
system that is part of that one leased space, then X must treat the 
amount as an improvement to that one unit of leased property.
    Example 14. Leased property; personal property. X is engaged in the 
business of transporting passengers on private jet aircraft. To conduct 
its business, X leases several aircraft from Y. Assume that each 
aircraft is not plant property or a network asset. Under paragraph 
(e)(3)(iv) of this section (referencing paragraph (e)(3)(i) of this 
section), X must treat all of the components of each leased aircraft 
that are functionally interdependent as a single unit of property. Thus, 
X must treat each leased aircraft as a single unit of property.
    Example 15. Improvement property. (i) X is a retailer of consumer 
products. In Year 1, X purchases a building from Y, which X intends to 
use as a retail sales facility. Under paragraph (e)(2)(i) of this 
section, X must treat the building and its structural components as a 
single unit of property. As provided under paragraph (e)(2)(ii) of this 
section, an amount is paid for an improvement to a building if it 
results in an improvement to the building structure or any designated 
building system.
    (ii) In Year 2, X pays an amount to construct an extension to the 
building to be used for additional warehouse space. Assume that the 
extension involves the addition of walls, floors, roof, and doors, but 
does not include the addition or extension of any building systems 
described in paragraph (e)(2)(ii)(B) of this section. Also assume that 
the amount paid to build the extension results in a betterment to the 
building structure under paragraph (h) of this section, and is therefore 
treated as an amount paid for an improvement to the entire building 
under paragraph (e)(2)(ii) of this section. Accordingly, X capitalizes 
the amount paid as an improvement to the building under paragraph (d) of 
this section. Under paragraph (e)(4) of this section, the extension is 
not a unit of property separate from the building, the unit of property 
improved. Thus, to determine whether any future expenditure constitutes 
an improvement to the building under paragraph (e)(2)(ii), X must 
determine whether the expenditure constitutes an improvement to the 
building structure, including the building extension, or any of the 
designated building systems.
    Example 16. Personal property; additional rules. X is engaged in the 
business of transporting freight throughout the United States. To 
conduct its business, X owns a fleet of truck tractors and trailers. 
Each tractor and trailer is comprised of various components, including 
tires. X purchased a truck tractor with all of its components, including 
tires. The tractor tires have an average useful life to X of more than 
one year. At the time X placed the tractor in service, it treated the 
tractor tires as a separate asset for depreciation purposes under 
section 168. X properly treated the tractor (excluding the cost of the 
tires) as 3-year property and the tractor tires as 5-year property under 
section 168(e). Because X's tractor is property other than a building, 
the initial units of property for the tractor are determined under the 
general rule in paragraph (e)(3)(i) of this section, and are comprised 
of all the components that are functionally interdependent. Under this 
rule, X must treat the tractor, including its tires, as a single unit of 
property because the tractor and the tires are functionally 
interdependent (that is, the placing in service of

[[Page 566]]

the tires is dependent upon the placing in service of the tractor). 
However, under paragraph (e)(5)(i) of this section, X must treat the 
tractor and tires as separate units of property because X properly 
treated the tires as being within a different class of property under 
section 168(e).
    Example 17. Additional rules; change in subsequent year. X is 
engaged in the business of leasing nonresidential real property to 
retailers. In Year 1, X acquired and placed in service a building for 
use in its retail leasing operation. In Year 5, in order to accommodate 
the needs of a new lessee, X incurred costs to improve the building 
structure. X capitalized the costs of the improvement under paragraph 
(d) of this section and depreciated the improvement in accordance with 
section 168(i)(6) as nonresidential real property under section 168(e). 
In Year 7, X determined that the structural improvement made in Year 5 
qualified under section 168(e)(8) as qualified retail improvement 
property and, therefore, is 15-year property under section 168(e). In 
year 7, X changed its method of accounting to use a 15-year recovery 
period for the improvement. Under the additional rule of paragraph 
(e)(5)(ii) of this section, in Year 7, X must treat the improvement as a 
unit of property separate from the building.
    Example 18. Additional rules; change in subsequent year. In Year 1, 
X acquired and placed in service a building and parking lot for use in 
its retail operations. Under Sec. 1.263(a)-2T of the regulations, X 
capitalized the cost of the building and the parking lot and began 
depreciating the building and the parking lot as nonresidential real 
property under section 168(e). In Year 3, X completed a cost segregation 
study under which it properly determined that the parking lot qualifies 
as 15-year property under section 168(e). In Year 3, X changed its 
method of accounting to use a 15-year recovery period and the 150-
percent declining balance method of depreciation for the parking lot. 
Under the additional rule of paragraph (e)(5)(ii) of this section, in 
Year 3, X must treat the parking lot as a unit of property separate from 
the building.
    Example 19. Additional rules; change in subsequent year. In Year 1, 
X acquired and placed in service a building for use in its manufacturing 
business. X capitalized the costs allocable to the building's wiring 
separately from the building and depreciated the wiring as 7-year 
property under section 168(e). X capitalized the cost of the building 
and all other structural components of the building and began 
depreciating them as nonresidential real property under section 168(e). 
In Year 3, X completed a cost segregation study under which it properly 
determined that the wiring is a structural component of the building 
and, therefore, should have been depreciated as nonresidential real 
property. In Year 3, X changed its method of accounting to treat the 
wiring as nonresidential real property. Under the additional rule of 
paragraph (e)(5)(ii) of this section, in Year 3, X must change the unit 
of property for the wiring in a manner that is consistent with the 
change in treatment for depreciation purposes. Therefore, X must change 
the unit of property for the wiring to treat it as a structural 
component of the building, and as part of the building unit of property, 
in accordance with paragraph (e)(2)(i) of this section.

    (f) Special rules for determining improvement costs--(1) 
Improvements to leased property--(i) In general. This paragraph (f)(1) 
provides the exclusive rules for determining whether amounts paid by a 
taxpayer are for the improvement to a unit of leased property and must 
be capitalized. In the case of a leased building or a leased portion of 
a building, an amount results in an improvement to a unit of leased 
property if it results in an improvement to any of the properties 
designated under paragraph (e)(2)(ii) of this section (for lessor 
improvements) or under paragraph (e)(2)(v)(B) of this section (for 
lessee improvements except as provided in paragraph (f)(ii)(B) of this 
section). Section 1.263(a)-4 of the regulations does not apply to 
amounts paid for improvements to units of leased property or to amounts 
paid for the acquisition or production of leasehold improvement 
property.
    (ii) Lessee improvements--(A) Requirement to capitalize. A taxpayer 
lessee must capitalize the aggregate of related amounts that it pays to 
improve (as defined under paragraph (d) of this section) a unit of 
leased property except to the extent that section 110 applies to a 
construction allowance received by the lessee for the purpose of such 
improvement or where the improvement constitutes a substitute for rent. 
See Sec. 1.61-8(c) for the treatment of lessee expenditures that 
constitute a substitute for rent. A taxpayer lessee must also capitalize 
the aggregate of related amounts that a lessor pays to improve (as 
defined under paragraph (d) of this section) a unit of leased property 
if the lessee is the owner of the improvement except to the extent that 
section 110 applies to a construction allowance received by the lessee 
for the purpose of such improvement. An amount paid for a lessee 
improvement under this paragraph (f)(1)(ii)(A)

[[Page 567]]

is treated as an amount paid to acquire or produce a unit of real or 
personal property under Sec. 1.263(a)-2T(d)(1) of the regulations. See 
paragraph (e)(2)(v) of this section for the unit of property for a 
leased building and paragraph (e)(3)(iv) of this section for the unit of 
property for leased real or personal property other than a building.
    (B) Unit of property for lessee improvements. An amount capitalized 
as a lessee improvement under paragraph (f)(1)(ii)(A) of this section 
comprises a unit of property separate from the leased property being 
improved. However, an amount that a lessee pays to improve (as defined 
under paragraph (d) of this section) a lessee improvement under 
paragraph (f)(1)(ii)(A) is not a unit of property separate from such 
lessee improvement.
    (iii) Lessor improvements--(A) Requirement to capitalize. A taxpayer 
lessor must capitalize the aggregate of related amounts that it pays 
directly, or indirectly through a construction allowance to the lessee, 
to improve (as defined in paragraph (d) of this section) a unit of 
leased property where the lessor is the owner of the improvement or to 
the extent that section 110 applies to the construction allowance. A 
lessor must also capitalize the aggregate of related amounts that the 
lessee pays to improve a unit of property (as defined in paragraph (e) 
of this section) where the lessee's improvement constitutes a substitute 
for rent. See Sec. 1.61-8(c) for treatment of expenditures by lessees 
that constitute a substitute for rent. Amounts capitalized by the lessor 
under this paragraph (f)(1)(iii)(A) may not be capitalized by the 
lessee. See paragraphs (e)(2) of this section for the unit of property 
for a building and paragraph (e)(3) of this section for the unit of 
property for real or personal property other than a building.
    (B) Unit of property for lessor improvements. An amount capitalized 
as a lessor improvement under paragraph (f)(1)(iii)(A) of this section 
is not a unit of property separate from the unit of property improved. 
See paragraph (e)(4) of this section.
    (iv) Examples. The application of this paragraph (f)(1) is 
illustrated by the following examples, in which it is assumed that 
section 110 does not apply to the lessee.

    Example 1. Lessee improvements; additions to building. (i) T is a 
retailer of consumer products. In Year 1, T leases a building from L, 
which T intends to use as a retail sales facility. The leased building 
consists of the building structure under paragraph (e)(2)(ii)(A) of this 
section and various building systems under paragraph (e)(2)(ii)(B) of 
this section, including a plumbing system, an electrical system, and an 
HVAC system. Under the terms of the lease, T is permitted to improve the 
building at its own expense. Under paragraph (e)(2)(v)(A) of this 
section, because T leases the entire building, T must treat the leased 
building and its structural components as a single unit of property. As 
provided under paragraph (e)(2)(v)(B)(1) of this section, an amount is 
paid for an improvement to the entire leased building if it results in 
an improvement to the leased building structure or to any building 
system within the leased building. Therefore, under paragraphs 
(e)(2)(v)(B)(1) and (e)(2)(ii) of this section, if T pays an amount that 
improves the building structure, the plumbing system, the electrical 
system, or the HVAC system, then T must treat this amount as an 
improvement to the entire leased building.
    (ii) In Year 2, T pays an amount to construct an extension to the 
building to be used for additional warehouse space. Assume that this 
amount results in a betterment (as defined under paragraph (h) of this 
section) to T's leased building structure and does not affect any 
building systems. Accordingly, the amount that T pays for the building 
extension results in an improvement to the leased building structure, 
and thus, under paragraph (e)(2)(v)(B)(1) of this section, is treated as 
an improvement to the entire leased building under paragraph (d) of this 
section. Because T, the lessee, paid an amount to improve a unit of 
leased property, T is required to capitalize the amount paid for the 
building extension under paragraph (f)(1)(ii)(A) of this section. In 
addition, paragraph (f)(1)(ii)(A) of this section requires T to treat 
the amount paid for the improvement as the acquisition or production of 
a unit of property (leasehold improvement property) under Sec. 
1.263(a)-2T(d)(1). Moreover, under paragraph (f)(1)(ii)(B) of this 
section, the building extension is a unit of property separate from the 
unit of leased property (the building and its structural components).
    (iii) In Year 5, T pays an amount to add a larger door to the 
building extension that it constructed in Year 2 in order to accommodate 
the loading of larger products into the warehouse space. Assume that the 
amount paid to add the larger door results in a betterment under 
paragraph (h) of this section to the building structure extension, the 
unit of property under paragraph (f)(1)(ii)(B) of

[[Page 568]]

this section. As a result, T must capitalize the amounts paid to add the 
larger door as an improvement to T's unit of property (the building 
extension) under paragraph (d) of this section. In addition, because the 
amount that T paid to add the larger door is for an improvement to the 
building extension (a lessee improvement under paragraph (f)(1)(ii)(A)), 
the larger door is not a unit of property separate from the unit of 
property improved. See paragraphs (e)(4) and (f)(1)(ii)(B) of this 
section.
    Example 2. Lessee improvements; additions to certain structural 
components of buildings. (i) Assume the same facts as Example 1 except 
that in Year 2, T also pays an amount to construct an extension of the 
HVAC system into the building extension. Assume that the extension is a 
betterment under paragraph (h) of this section to the leased HVAC system 
(a building system under paragraph (e)(2)(ii)(B)(1) of this section). 
Accordingly, the amount that T pays for the extension of the HVAC system 
results in an improvement to a leased building system, the HVAC system, 
and thus, under paragraph (e)(2)(v)(B)(1) of this section, is treated as 
an improvement to the entire leased building under paragraph (d) of this 
section. Because T, the lessee, incurs costs to improve a unit of leased 
property, T is required to capitalize the costs of the improvement under 
paragraph (f)(1)(ii)(A) of this section. Under paragraph (f)(1)(ii)(B), 
the extension to the leased HVAC is a unit of property separate from the 
unit of leased property (the leased building and its structural 
components). In addition, under paragraph (f)(1)(ii)(A) of this section, 
T must treat the amount paid for the HVAC extension as the acquisition 
and production of a unit of property under Sec. 1.263(a)-2T(d)(1).
    (ii) In Year 5, T pays an amount to add an additional chiller to the 
portion of the HVAC system that it constructed in Year 2 in order to 
accommodate the climate control requirements for new product offerings. 
Assume that the amount paid for the chiller results in a betterment 
under paragraph (h) of this section to the HVAC system extension, the 
unit of property under paragraph (f)(1)(ii)(B) of this section. 
Accordingly, T must capitalize the amount paid to add the chiller as an 
improvement to T's unit of property (the HVAC system extension) under 
paragraph (d) of this section. In addition, because the amount that T 
paid to add the chiller is for an improvement to the HVAC system 
extension (a lessee improvement under paragraph (f)(1)(ii)(A) of this 
section), the chiller is not a unit of property separate from the unit 
of property improved. See paragraphs (f)(1)(ii)(B) and (e)(4) of this 
section.
    Example 3. Lessor Improvements; additions to building. (i) T is a 
retailer of consumer products. In Year 1, T leases a building from L, 
which T intends to use as a retail sales facility. Pursuant to the 
lease, L provides a construction allowance to T, which T intends to use 
to construct an extension to the retail sales facility for additional 
warehouse space. Assume that the amount paid for any improvement to the 
building does not exceed the construction allowance and that L is 
treated as the owner of any improvement to the building. Under paragraph 
(e)(2)(i) of this section, L must treat the leased building and its 
structural components as a single unit of property. As provided under 
paragraph (e)(2)(ii) of this section, an amount paid is for an 
improvement to the building if it results in an improvement to the 
building structure or to any building system.
    (ii) In Year 2, T uses L's construction allowance to construct an 
extension to the leased building to provide additional warehouse space 
in the building. Assume that the extension is a betterment (as defined 
under paragraph (h) of this section) to the building structure, and 
therefore, the amount paid for the extension results in an improvement 
to the building structure under paragraph (d) of this section. Under 
paragraph (f)(1)(iii)(A) of this section, L, the lessor and owner of the 
improvement, must capitalize the amounts paid to T to construct the 
extension to the retail sales facility. T is not permitted to capitalize 
the amounts paid for the lessor-owned improvement. Finally, under 
paragraph (f)(1)(iii)(B) of this section, the extension to L's building 
is not a unit of property separate from the building and its structural 
components.
    Example 4. Lessee property; personal property added to leased 
building. T is a retailer of consumer products. T leases a building from 
L, which T intends to use as a retail sales facility. Pursuant to the 
lease, L provides a construction allowance to T, which T uses to acquire 
and construct partitions for fitting rooms, counters, and shelving. 
Assume that each partition, counter, and shelving unit is a unit of 
property under paragraph (e)(3) of this section. Assume that for federal 
income tax purposes T is treated as the owner of any personal property 
that it acquires or constructs with the construction allowance and that 
the amounts paid for acquisition or construction of any personal 
property used in the leased property do not constitute a substitute for 
rent. T's expenditures for the partitions, counters, and shelving are 
not improvements to the leased property under paragraph (d) of this 
section, but rather constitute amounts paid to acquire or produce 
separate units of personal property under Sec. 1.263(a)-2T.
    Example 5. Lessor property; buildings on leased property. L is the 
owner of a parcel of unimproved real property that L leases to T. 
Pursuant to the lease, L provides a construction allowance to T of 
$500,000, which T agrees to use to construct a building costing not more 
than $500,000 on the leased real property and to lease the building from 
L

[[Page 569]]

after it is constructed. Assume that for Federal income tax purposes, L 
is treated as the owner of the building that T will construct. T uses 
the $500,000 to construct the building as required under the lease. The 
building consists of the building structure and the following building 
systems: (1) A plumbing system; (2) an electrical system; and (3) an 
HVAC system. Because L provides a construction allowance to T to 
construct a building, the total cost of the building equals $500,000, 
and L is treated as the owner of the building, under paragraph 
(f)(1)(iii)(A) of this section L must capitalize the amounts that it 
pays indirectly to acquire and produce the building under Sec. 
1.263(a)-2T(d)(1). Under paragraph (e)(2)(i) of this section, L must 
treat the building and its structural components as a single unit of 
property. Under paragraph (f)(1)(iii)(A) of this section, T, the lessee, 
may not capitalize the amounts paid (with the construction allowance 
received from L) for construction of the building.
    Example 6. Lessee contribution to construction costs. Assume the 
same facts as in Example 5, except T spends $600,000 to construct the 
building. T uses the $500,000 construction allowance provided by L plus 
$100,000 of its own funds to construct the building that L will own 
pursuant to the lease. Also assume that the additional $100,000 that T 
incurs is not a substitute for rent. For the reasons discussed in 
Example 5, L must capitalize the $500,000 it paid T to construct the 
building under Sec. 1.263(a)-2T(d)(1). In addition, because T spends 
its own funds to complete the building, T has a depreciable interest of 
$100,000 in the building and must capitalize the $100,000 it paid to 
construct the building as a leasehold improvement under Sec. 1.263(a)-
2T(d)(1) of the regulations. Under paragraph (e)(2)(i) of this section, 
L must treat the building as a single unit of property to the extent of 
its depreciable interest of $500,000 In addition, under paragraph 
(e)(2)(v)(A) of this section, T must also treat the building as a single 
unit of property to the extent of its depreciable interest of $100,000.

    (2) Compliance with regulatory requirements. For purposes of this 
section, a Federal, state, or local regulator's requirement that a 
taxpayer perform certain repairs or maintenance on a unit of property to 
continue operating the property is not relevant in determining whether 
the amount paid improves the unit of property.
    (3) Certain costs incurred during an improvement--(i) In general. A 
taxpayer must capitalize all the direct costs of an improvement and all 
the indirect costs (including, for example, otherwise deductible repair 
or component removal costs) that directly benefit or are incurred by 
reason of an improvement in accordance with the rules under section 
263A. Therefore, indirect costs that do not directly benefit and are not 
incurred by reason of an improvement are not required to be capitalized 
under section 263(a), regardless of whether they are made at the same 
time as an improvement.
    (ii) Exception for individuals' residences. A taxpayer who is an 
individual may capitalize amounts paid for repairs and maintenance that 
are made at the same time as capital improvements to units of property 
not used in the taxpayer's trade or business or for the production of 
income if the amounts are paid as part of a remodeling of the taxpayer's 
residence.
    (4) Aggregate of related amounts. For purposes of paragraph (d) of 
this section, the aggregate of related amounts paid to improve a unit of 
property may be incurred over a period of more than one taxable year. 
Whether amounts are related to the same improvement depends on the facts 
and circumstances of the activities being performed and whether the 
costs are incurred by reason of a single improvement or directly benefit 
a single improvement.
    (g) Safe harbor for routine maintenance on property other than 
buildings--(1) In general. An amount paid for routine maintenance 
performed on a unit of property other than a building or a structural 
component of a building is deemed not to improve that unit of property. 
Routine maintenance is the recurring activities that a taxpayer expects 
to perform as a result of the taxpayer's use of the unit of property to 
keep the unit of property in its ordinarily efficient operating 
condition. Routine maintenance activities include, for example, the 
inspection, cleaning, and testing of the unit of property, and the 
replacement of parts of the unit of property with comparable and 
commercially available and reasonable replacement parts. The activities 
are routine only if, at the time the unit of property is placed in 
service by the taxpayer, the taxpayer reasonably expects to perform the 
activities more than once during the class life (as defined in paragraph 
(g)(4) of this section) of the unit of property. Among the factors to be 
considered in

[[Page 570]]

determining whether a taxpayer is performing routine maintenance are the 
recurring nature of the activity, industry practice, manufacturers' 
recommendations, the taxpayer's experience, and the taxpayer's treatment 
of the activity on its applicable financial statement (as defined in 
paragraph (b)(4) of this section). With respect to a taxpayer that is a 
lessor of a unit of property, the taxpayer's use of the unit of property 
includes the lessee's use of the unit of property.
    (2) Rotable and temporary spare parts. Except as provided in 
paragraph (g)(3) of this section, for purposes of paragraph (g)(1) of 
this section, amounts paid for routine maintenance include routine 
maintenance performed on (and with regard to) rotable and temporary 
spare parts. But see Sec. 1.162-3T(a)(3), which provides generally that 
rotable and temporary spare parts are used or consumed by the taxpayer 
in the taxable year in which the taxpayer disposes of the parts.
    (3) Exceptions. Routine maintenance does not include the following:
    (i) Amounts paid for the replacement of a component of a unit of 
property and the taxpayer has properly deducted a loss for that 
component (other than a casualty loss under Sec. 1.165-7).
    (ii) Amounts paid for the replacement of a component of a unit of 
property and the taxpayer has properly taken into account the adjusted 
basis of the component in realizing gain or loss resulting from the sale 
or exchange of the component.
    (iii) Amounts paid for the repair of damage to a unit of property 
for which the taxpayer has taken a basis adjustment as a result of a 
casualty loss under section 165, or relating to a casualty event 
described in section 165.
    (iv) Amounts paid to return a unit of property to its ordinarily 
efficient operating condition, if the property has deteriorated to a 
state of disrepair and is no longer functional for its intended use.
    (v) Amounts paid for repairs, maintenance, or improvement of rotable 
and temporary spare parts to which the taxpayer applies the optional 
method of accounting for rotable and temporary spare parts under Sec. 
1.162-3T(e).
    (4) Class life. The class life of a unit of property is the recovery 
period prescribed for the property under sections 168(g)(2) and (3) for 
purposes of the alternative depreciation system, regardless of whether 
the property is depreciated under section 168(g). For purposes of 
determining class life under this section, section 168(g)(3)(A) 
(relating to tax-exempt use property subject to lease) does not apply. 
If the unit of property is comprised of more than one component with 
different class lives, then the class life of the unit of property is 
deemed to be the same as the component with the longest class life.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (g). Unless otherwise stated, assume that X has not applied 
the optional method of accounting for rotable and temporary spare parts 
under Sec. 1.162-3T(e):

    Example 1. Routine maintenance on component. (i) X is a commercial 
airline engaged in the business of transporting passengers and freight 
throughout the United States and abroad. To conduct its business, X owns 
or leases various types of aircraft. As a condition of maintaining its 
airworthiness certification for these aircraft, X is required by the 
Federal Aviation Administration (FAA) to establish and adhere to a 
continuous maintenance program for each aircraft within its fleet. These 
programs, which are designed by X and the aircraft's manufacturer and 
approved by the FAA, are incorporated into each aircraft's maintenance 
manual. The maintenance manuals require a variety of periodic 
maintenance visits at various intervals. One type of maintenance visit 
is an engine shop visit (ESV), which X expects to perform on its 
aircraft engines approximately every 4 years in order to keep its 
aircraft in its ordinarily efficient operating condition. In Year 1, X 
purchased a new aircraft, which included four new engines attached to 
the airframe. The four aircraft engines acquired with the aircraft are 
not materials or supplies under Sec. 1.162-3T(c)(1)(i) because they are 
acquired as part of a single unit of property, the aircraft. In Year 5, 
X performs its first ESV on the aircraft engines. The ESV includes 
disassembly, cleaning, inspection, repair, replacement, reassembly, and 
testing of the engine and its component parts. During the ESV, the 
engine is removed from the aircraft and shipped to an outside vendor who 
performs the ESV. If inspection or testing discloses a discrepancy in a 
part's conformity to the specifications in X's maintenance program, the 
part is repaired, or if necessary, replaced

[[Page 571]]

with a comparable and commercially available and reasonable replacement 
part. After the ESVs, the engines are returned to X to be reinstalled on 
another aircraft or stored for later installation. Assume that the unit 
of property for X's aircraft is the entire aircraft, including the 
aircraft engines, and that the class life for X's aircraft is 12 years. 
Assume that none of the exceptions set out in paragraph (g)(3) of this 
section applies to the costs of performing the ESVs.
    (ii) Because the ESVs involve the recurring activities that X 
expects to perform as a result of its use of the aircraft to keep the 
aircraft in ordinarily efficient operating condition, and consist of 
maintenance activities that X expects to perform more than once during 
the 12 year class life of the aircraft, X's ESVs are within the routine 
maintenance safe harbor under paragraph (g) of this section. 
Accordingly, the amounts paid for the ESVs are deemed not to improve the 
aircraft and are not required to be capitalized under paragraph (d) of 
this section.
    Example 2. Routine maintenance after class life. Assume the same 
facts as in Example 1, except that in year 15, X pays amounts to perform 
an ESV on one of the original aircraft engines, after the end of the 
class life of the aircraft. Because this ESV involves the same routine 
maintenance activities that were performed on aircraft engines in 
Example 1, this ESV also is within the routine maintenance safe harbor 
under paragraph (g) of this section. Accordingly, the amounts paid for 
this ESV, even though performed after the class life of the aircraft, 
are deemed not to improve the aircraft and are not required to be 
capitalized under paragraph (d) of this section.
    Example 3. Routine maintenance on rotable spare parts. (i) Assume 
the same facts as in Example 1, except that in addition to the four 
engines purchased as part of the aircraft, X separately purchases four 
additional new engines that X intends to use in its aircraft fleet to 
avoid operational downtime when ESVs are required to be performed on the 
engines previously installed on an aircraft. Later in Year 1, X installs 
these four engines on an aircraft in its fleet. In Year 5, X performs 
the first ESVs on these four engines. Assume that these ESVs involve the 
same routine maintenance activities that were performed on the engines 
in Example 1, and that none of the exceptions set out in paragraph 
(g)(3) of this section apply to these ESVs. After the ESVs were 
performed, these engines were reinstalled on other aircraft or stored 
for later installation.
    (ii) The additional aircraft engines are rotable spare parts because 
they were acquired separately from the aircraft, they are removable from 
the aircraft, and are repaired and reinstalled on other aircraft or 
stored for later installation. See Sec. 1.162-3T(c)(2) (definition of 
rotable and temporary spare parts). The class life of an engine is the 
same as the airframe, 12 years. Because the ESVs involve the recurring 
activities that X expects to perform as a result of its use of the 
engines to keep the engines in ordinarily efficient operating condition, 
and consist of maintenance activities that X expects to perform more 
than once during the 12 year class life of the engine, the ESVs fall 
within the routine maintenance safe harbor under paragraph (g) of this 
section. Accordingly, the amounts paid for the ESVs for the four 
additional engines are deemed not to improve these engines and are not 
required to be capitalized under paragraph (d) of this section. For the 
treatment of amounts paid to acquire the engines, see Sec. 1.162-3T(a).
    Example 4. Routine maintenance resulting from prior owner's use. (i) 
In January, Year 1, X purchases a used machine for use in its 
manufacturing operations. Assume that the machine is the unit of 
property and has a class life of 10 years. X places the machine in 
service in January, Year 1, and at that time, X expects to perform 
manufacturer recommended scheduled maintenance on the machine 
approximately every three years. The scheduled maintenance includes the 
cleaning and oiling of the machine, the inspection of parts for defects, 
and the replacement of minor items such as springs, bearings, and seals 
with comparable and commercially available and reasonable replacement 
parts. At the time X purchased the machine, the machine was approaching 
the end of a three-year scheduled maintenance period. As a result, in 
February, Year 1, X pays amounts to perform the manufacturer recommended 
scheduled maintenance. Assume that none of the exceptions set out in 
paragraph (g)(3) of this section apply to the amounts paid for the 
scheduled maintenance.
    (ii) The majority of X's costs do not qualify under the routine 
maintenance safe harbor in paragraph (g) of this section because the 
costs were incurred primarily as a result of the prior owner's use of 
the property and not X's use. X acquired the machine just before it had 
received its three-year scheduled maintenance. Accordingly, the amounts 
paid for the scheduled maintenance resulted from the prior owner's, and 
not the taxpayer's, use of the property and must be capitalized if those 
amounts result in a betterment under paragraph (h) of this section, 
including the amelioration of a material condition or defect, or 
otherwise result in an improvement under paragraph (d) of this section. 
See also section 263A and the regulations thereunder for the requirement 
to capitalize indirect costs (including otherwise deductible repair 
costs) that directly benefit or are incurred by reason of production 
activities.
    Example 5. Routine maintenance resulting from new owner's use. 
Assume the same facts as in Example 4, except that after X pays amounts 
for the maintenance in Year 1, X

[[Page 572]]

continues to operate the machine in its manufacturing business. In Year 
4, X pays amounts to perform the next scheduled manufacturer recommended 
maintenance on the machine. Assume that the scheduled maintenance 
activities performed are the same as those performed in Example 4 and 
that none of the exceptions set out in paragraph (g)(3) of this section 
apply to the amounts paid for the scheduled maintenance. Because the 
scheduled maintenance performed in Year 4 involves the recurring 
activities that X performs as a result of its use of the machine, keeps 
the machine in an ordinarily efficient operating condition, and consists 
of maintenance activities that X expects to perform more than once 
during the 10 year class life of the machine, X's scheduled maintenance 
costs are within the routine maintenance safe harbor under paragraph (g) 
of this section. Accordingly, the amounts paid for the scheduled 
maintenance in Year 4 are deemed not to improve the machine and are not 
required to be capitalized under paragraph (d) of this section. But see 
section 263A and the regulations thereunder for the requirement to 
capitalize indirect costs (including otherwise deductible repair costs) 
that directly benefit or are incurred by reason of production 
activities.
    Example 6. Routine maintenance; replacement of substantial 
structural part. X is in the business of producing commercial products 
for sale. As part of the production process, X places raw materials into 
lined containers in which a chemical reaction is used to convert raw 
materials into the finished product. The lining is a substantial 
structural part of the container, and comprises 60 percent of the total 
physical structure of the container. Assume that each container, 
including its lining, is the unit of property and that a container has a 
class life of 12 years. At the time that X placed the container into 
service, X was aware that approximately every three years, X would be 
required to replace the lining in the container with comparable and 
commercially available and reasonable replacement materials. At the end 
of that period, the container will continue to function, but will become 
less efficient and the replacement of the lining will be necessary to 
keep the container in an ordinarily efficient operating condition. In 
Year 1, X acquired 10 new containers and placed them into service. In 
Year 4, Year 7, Year 9, and Year 12, X pays amounts to replace the 
containers' linings with comparable and commercially available and 
reasonable replacement parts. Assume that none of the exceptions set out 
in paragraph (g)(3) of this section apply to the amounts paid for the 
replacement linings. Because the replacement of the linings involves 
recurring activities that X expects to perform as a result of its use of 
the containers to keep the containers in their ordinarily efficient 
operating condition, and consists of maintenance activities that X 
expects to perform more than once during the 12 year class lives of the 
containers, X's lining replacement costs are within the routine 
maintenance safe harbor under paragraph (g) of this section. 
Accordingly, the amounts that X paid for the replacement of the 
container linings are deemed not to improve the containers and are not 
required to be capitalized under paragraph (d) of this section. But see 
section 263A and the regulations thereunder for the requirement to 
capitalize indirect costs (including otherwise deductible repair costs) 
that directly benefit or are incurred by reason of production 
activities.
    Example 7. Routine maintenance once during class life. X is a Class 
I railroad that owns a fleet of freight cars. Assume that a freight car, 
including all its components, is a unit of property and has a class life 
of 14 years. At the time that X places a freight car into service, X 
expects to perform cyclical reconditioning to the car every 8 to 10 
years in order to keep the freight car in ordinarily efficient operating 
condition. During this reconditioning, X pays amounts to disassemble, 
inspect, and recondition or replace components of the freight car with 
comparable and commercially available and reasonable replacement parts. 
Ten years after X places the freight car in service, X pays amounts to 
perform a cyclical reconditioning on the car. Because X expects to 
perform the reconditioning only once during the 14 year class life of 
the freight car, the amounts X pays for the reconditioning do not 
qualify for the routine maintenance safe harbor under paragraph (g) of 
this section. Accordingly, X must capitalize the amounts paid for the 
reconditioning of the freight car if these amounts result in an 
improvement under paragraph (d) of this section.
    Example 8. Routine maintenance on non-rotable part. X is a towboat 
operator that owns and leases a fleet of towboats. Each towboat is 
equipped with two diesel-powered engines. Assume that each towboat, 
including its engines, is the unit of property and that a towboat has a 
class life of 18 years. At the time that X places its towboats into 
service, X is aware that approximately every three to four years, X will 
need to perform scheduled maintenance on the two towboat engines to keep 
the engines in their ordinarily efficient operating condition. This 
maintenance is completed while the engines are attached to the towboat 
and involves the cleaning and inspecting of the engines to determine 
which parts are within acceptable operating tolerances and can continue 
to be used, which parts must be reconditioned to be brought back to 
acceptable tolerances, and which parts must be replaced. Engine parts 
replaced during these procedures are replaced with comparable and 
commercially available and reasonable replacement parts. Assume the 
towboat engines are not rotable

[[Page 573]]

spare parts under Sec. 1.162-3T(c)(2). In Year 1, X acquired a new 
towboat, including its two engines, and placed the towboat into service. 
In Year 5, X pays amounts to perform scheduled maintenance on both 
engines in the towboat. Assume that none of the exceptions set out in 
paragraph (g)(3) of this section apply to the scheduled maintenance 
costs. Because the scheduled maintenance involves recurring activities 
that X expects to perform more than once during the 18 year class life 
of the towboat, the maintenance results from X's use of the towboat and 
the maintenance is performed to keep the towboat in an ordinarily 
efficient operating condition, the scheduled maintenance on X's towboat 
is within the routine maintenance safe harbor under paragraph (g) of 
this section. Accordingly, the amounts paid for the scheduled 
maintenance to its towboat engines in Year 5 are deemed not to improve 
the towboat and are not required to be capitalized under paragraph (d) 
of this section.
    Example 9. Routine maintenance with betterments. Assume the same 
facts as Example 8, except that in Year 9, X's towboat engines are due 
for another scheduled maintenance visit. At this time, X decides to 
upgrade the engines to increase their horsepower and propulsion, which 
would permit the towboats to tow heavier loads. Accordingly, in Year 9, 
X pays amounts to perform many of the same activities that it would 
perform during the typical scheduled maintenance activities such as 
cleaning, inspecting, reconditioning, and replacing minor parts, but at 
the same time, X incurs costs to upgrade certain engine parts to 
increase the towing capacity of the boats in excess of the capacity of 
the boats when X placed them in service. Both the scheduled maintenance 
procedures and the replacement of parts with new and upgraded parts are 
necessary to increase the horsepower of the engines and the towing 
capacity of the boat. Thus, the work done on the engines encompasses 
more than the recurring activities that X expected to perform as a 
result of its use of the towboats and did more than keep the towboat in 
its ordinarily efficient operating condition. In addition, under 
paragraph (f)(3)(i) of this section, the scheduled maintenance 
procedures directly benefit the upgrades. Therefore, the amounts that X 
paid in Year 9 for the maintenance and upgrade of the engines do not 
qualify for the routine maintenance safe harbor described under 
paragraph (g) of this section. These amounts must be capitalized if they 
result in a betterment under paragraph (h) of this section, including a 
material increase in the capacity of the towboat, or otherwise result in 
an improvement under paragraph (d) of this section.
    Example 10. Exceptions to routine maintenance. X owns and operates a 
farming and cattle ranch with an irrigation system that provides water 
for crops. Assume that each canal in the irrigation system is a single 
unit of property and has a class life of 20 years. At the time X placed 
the canals into service, X expected to have to perform major maintenance 
on the canals every 3 years to keep the canals in their ordinarily 
efficient operating condition. This maintenance includes draining the 
canals, and then cleaning, inspecting, repairing, reconditioning or 
replacing parts of the canal with comparable and commercially available 
and reasonable replacement parts. X placed the canals into service in 
Year 1 and did not perform any maintenance on the canals until Year 6. 
At that time, the canals had fallen into a state of disrepair and no 
longer functioned for irrigation. In Year 6, X pays amounts to drain the 
canals, and do extensive cleaning, repairing, reconditioning, and 
replacing parts of the canals with comparable and commercially available 
and reasonable replacement parts. Although the work performed on X's 
canals was similar to the activities that X expected to perform, but did 
not perform, every three years, the costs of these activities do not 
fall within the routine maintenance safe harbor. Specifically, under 
paragraph (g)(3)(iv) of this section, routine maintenance does not 
include activities that return a unit of property to its former ordinary 
efficient operating condition if the property has deteriorated to a 
state of disrepair and is no longer functional for its intended use. 
Accordingly, amounts that X pays for work performed on the canals in 
Year 6 must be capitalized if they result in improvements under 
paragraph (d) of this section (for example, restorations under paragraph 
(i) of this section).

    (h) Capitalization of betterments--(1) In general. A taxpayer must 
capitalize amounts paid that result in the betterment of a unit of 
property. An amount paid results in the betterment of a unit of property 
only if it--
    (i) Ameliorates a material condition or defect that either existed 
prior to the taxpayer's acquisition of the unit of property or arose 
during the production of the unit of property, whether or not the 
taxpayer was aware of the condition or defect at the time of acquisition 
or production;
    (ii) Results in a material addition (including a physical 
enlargement, expansion, or extension) to the unit of property; or
    (iii) Results in a material increase in capacity (including 
additional cubic or square space), productivity, efficiency, strength, 
or quality of the unit of property or the output of the unit of 
property.

[[Page 574]]

    (2) Betterments to buildings. In the case of a building, an amount 
results in a betterment to the unit of property if it results in a 
betterment to any of the properties designated in paragraphs (e)(2)(ii), 
(e)(2)(iii)(B), (e)(2)(iv)(B), or (e)(2)(v)(B) of this section.
    (3) Application of general rule--(i) Facts and circumstances. To 
determine whether an amount paid results in a betterment described in 
paragraph (h)(1) of this section, it is appropriate to consider all the 
facts and circumstances including, but not limited to, the purpose of 
the expenditure, the physical nature of the work performed, the effect 
of the expenditure on the unit of property, and the taxpayer's treatment 
of the expenditure on its applicable financial statement (as described 
in paragraph (b)(4) of this section).
    (ii) Unavailability of replacement parts. If a taxpayer needs to 
replace part of a unit of property that cannot practicably be replaced 
with the same type of part (for example, because of technological 
advancements or product enhancements), the replacement of the part with 
an improved, but comparable, part does not, by itself, result in a 
betterment to the unit of property.
    (iii) Appropriate comparison--(A) In general. In cases in which a 
particular event necessitates an expenditure, the determination of 
whether an expenditure results in a betterment of the unit of property 
is made by comparing the condition of the property immediately after the 
expenditure with the condition of the property immediately prior to the 
circumstances necessitating the expenditure.
    (B) Normal wear and tear. If the expenditure is made to correct the 
effects of normal wear and tear to the unit of property (including the 
amelioration of a condition or defect that existed prior to the 
taxpayer's acquisition of the unit of property resulting from normal 
wear and tear), the condition of the property immediately prior to the 
circumstances necessitating the expenditure is the condition of the 
property after the last time the taxpayer corrected the effects of 
normal wear and tear (whether the amounts paid were for maintenance or 
improvements) or, if the taxpayer has not previously corrected the 
effects of normal wear and tear, the condition of the property when 
placed in service by the taxpayer.
    (C) Particular event. If the expenditure is made as a result of a 
particular event, the condition of the property immediately prior to the 
circumstances necessitating the expenditure is the condition of the 
property immediately prior to the particular event.
    (4) Examples. The following examples illustrate the application of 
this paragraph (h) only and do not address whether capitalization is 
required under another provision of this section or another provision of 
the Internal Revenue Code (for example, section 263A):

    Example 1. Amelioration of pre-existing material condition or 
defect. In Year 1, X purchases a store located on a parcel of land that 
contained underground gasoline storage tanks left by prior occupants. 
Assume that the parcel of land is the unit of property. The tanks had 
leaked, causing soil contamination. X is not aware of the contamination 
at the time of purchase. In Year 2, X discovers the contamination and 
incurs costs to remediate the soil. The remediation costs result in a 
betterment to the land under paragraph (h)(1)(i) of this section because 
X incurred the costs to ameliorate a material condition or defect that 
existed prior to X's acquisition of the land.
    Example 2. Not amelioration of pre-existing condition or defect. X 
owns a building that was constructed with insulation that contained 
asbestos. The health dangers of asbestos were not widely known when the 
building was constructed. X determines that certain areas of asbestos-
containing insulation had begun to deteriorate and could eventually pose 
a health risk to employees. Therefore, X pays an amount to remove the 
asbestos-containing insulation from the building structure and replace 
it with new insulation that is safer to employees, but no more efficient 
or effective than the asbestos insulation. Under paragraph (e)(2)(ii) of 
this section, if the amount paid results in a betterment to the building 
structure or any building system, X must treat the amount as an 
improvement to the building. Although the asbestos is determined to be 
unsafe under certain circumstances, the asbestos is not a preexisting or 
material defect of the building structure under paragraph (h)(1)(i) of 
this section. In addition, the removal and replacement of the asbestos 
does not result in a material addition to the building structure under 
paragraph (h)(1)(ii) of this section or result in a material increase in 
capacity, productivity, efficiency, strength, or quality

[[Page 575]]

of the building structure or the output of the building structure under 
paragraph (h)(1)(iii) of this section. Therefore, the amount paid to 
remove and replace the asbestos insulation does not result in a 
betterment to the building structure under paragraph (h) of this 
section.
    Example 3. Not amelioration of pre-existing material condition or 
defect. (i) In January, Year 1, X purchased a used machine for use in 
its manufacturing operations. Assume that the machine is a unit of 
property and has a class life of 10 years. X placed the machine in 
service in January, Year 1 and at that time expected to perform 
manufacturer recommended scheduled maintenance on the machine every 
three years. The scheduled maintenance includes the cleaning and oiling 
of the machine, the inspection of parts for defects, and the replacement 
of minor items such as springs, bearings, and seals with comparable and 
commercially available and reasonable replacement parts. The scheduled 
maintenance does not result in any material additions or material 
increases in capacity, productivity, efficiency, strength or quality of 
the machine or the output of the machine. At the time X purchased the 
machine, it was approaching the end of a three-year scheduled 
maintenance period. As a result, in February, Year 1, X pays an amount 
to perform the manufacturer recommended scheduled maintenance to keep 
the machine in its ordinarily efficient operating condition.
    (ii) The amount that X pays does not qualify under the routine 
maintenance safe harbor in paragraph (g) of this section because the 
cost primarily results from the prior owner's use of the property and 
not the taxpayer's use. X acquired the machine just before it had 
received its three-year scheduled maintenance. Accordingly, the amount 
that X pays for the scheduled maintenance results from the prior owner's 
use of the property and ameliorates conditions or defects that existed 
prior to X's ownership of the machine. Nevertheless, considering the 
facts and circumstances under paragraph (h)(2)(i) of this section, 
including the purpose and minor nature of the work performed, this 
amount does not ameliorate a material condition or defect in the machine 
under paragraph (h)(1)(i) of this section, result in a material addition 
to the machine under paragraph (h)(1)(ii) of this section, or result in 
a material increase in the capacity, productivity, efficiency, strength, 
or quality of the machine or the output of the machine under paragraph 
(h)(1)(iii) of this section. Therefore, X is not required to capitalize 
the amount paid for the scheduled maintenance as a betterment to the 
machine under this paragraph (h).
    Example 4. Not amelioration of pre-existing material condition or 
defect. X purchases a used ice resurfacing machine for use in the 
operation of its ice skating rink. To comply with local regulations, X 
is required to monitor routinely the air quality in the ice skating 
rink. One week after X places the machine into service, during a routine 
air quality check, X discovers that the operation of the machine is 
adversely affecting the air quality in the skating rink. As a result, X 
pays an amount to inspect and retune the machine, which includes 
replacing minor components of the engine, which had worn out prior to 
X's acquisition of the machine. Assume the resurfacing machine, 
including the engine, is the unit of property. The routine maintenance 
safe harbor in paragraph (g) of this section does not apply to the 
amounts paid because the activities performed do more than return the 
machine to the condition that existed at the time X placed it in 
service. The amount that X pays to inspect, retune, and replace minor 
components of the ice resurfacing machine ameliorates a condition or 
defect that existed prior to X's acquisition of the equipment. 
Nevertheless, considering the facts and circumstances under paragraph 
(h)(3)(i) of this section, including the purpose and minor nature of the 
work performed, this amount does not ameliorate a material condition or 
defect in the machine under paragraph (h)(1)(i) of this section, result 
in a material addition to the machine under paragraph (h)(1)(ii) of this 
section, or result in a material increase in the capacity, productivity, 
efficiency, strength, or quality of the machine or the output of the 
machine under paragraph(h)(1)(iii) of this section. Therefore, X is not 
required to capitalize the amount paid to inspect, retune, and replace 
minor components of the machine as a betterment under this paragraph 
(h).
    Example 5. Amelioration of material condition or defect. (i) X 
acquires a building for use in its business of providing assisted living 
services. Before and after the purchase, the building functions as an 
assisted living facility. However, at the time of the purchase, X is 
aware that the building is in a condition that is below the standards 
that X requires for facilities used in its business. Immediately after 
the acquisition and during the following two years, while X continues to 
use the building as an assisted living facility, X pays amounts for 
repairs, maintenance, and the acquisition of new property to bring the 
facility into the high-quality condition for which X's facilities are 
known. The work on X's building includes repairing damaged drywall, 
repainting, re-wallpapering, replacing windows, repairing and replacing 
doors; replacing and regrouting tile; repairing millwork; and repairing 
and replacing roofing materials. The work also involves the replacement 
of section 1245 property including window treatments, furniture, and 
cabinets. On its applicable financial statements, X capitalizes the

[[Page 576]]

costs of the repairs and maintenance to the building. The work that X 
performs affects only the building structure under paragraph 
(e)(2)(ii)(A) of this section and does not affect any of the building 
systems described in paragraph (e)(2)(ii)(B) of this section. Assume 
that each section 1245 property is a separate unit of property.
    (ii) Under paragraph (e)(2)(ii) of this section, if an amount paid 
results in a betterment to the building structure or any building 
system, X must treat the amount as an improvement to the building. 
Considering the facts and circumstances, as required under paragraph 
(h)(3)(i) of this section, including the purpose of the expenditures, 
the effect of the expenditures on the building structure, and the 
treatment of the expenditures in X's applicable financial statements, 
the amounts that X paid for repairs and maintenance to the building 
structure comprises a betterment to the building structure under 
paragraph (h)(1)(i) of this section because the amounts ameliorate 
material conditions or defects that existed prior to X's acquisition of 
the building. Therefore, in accordance with paragraph (e)(2)(ii) of this 
section, X must treat the amounts paid for the betterment to the 
building structure as an improvement to the building and must capitalize 
the amounts under paragraph (d)(1) of this section. Moreover, X is 
required to capitalize the amounts paid to acquire and install each 
section 1245 property, including each window treatment, each item of 
furniture, and each cabinet, in accordance with Sec. 1.263(a)-2T(d)(1).
    Example 6. Not a betterment; building refresh. (i) X owns a 
nationwide chain of retail stores that sell a wide variety of items. To 
remain competitive in the industry and increase customer traffic and 
sales volume, X periodically refreshes the appearance and layout of its 
stores. The work that X performs to refresh a store consists of cosmetic 
and layout changes to the store's interiors and general repairs and 
maintenance to the store building to make the stores more attractive and 
the merchandise more accessible to customers. The work to each store 
building consists of replacing and reconfiguring a small number of 
display tables and racks to provide better exposure of the merchandise, 
making corresponding lighting relocations and flooring repairs, moving 
one wall to accommodate the reconfiguration of tables and racks, 
patching holes in walls, repainting the interior structure with a new 
color scheme to coordinate with new signage, replacing damaged ceiling 
tiles, cleaning and repairing vinyl flooring throughout the store 
building, and power washing building exteriors. The display tables and 
the racks all constitute section 1245 property. X pays amounts to 
refresh 50 stores during the taxable year. In its applicable financial 
statement, X capitalizes all the costs to refresh the store buildings 
and amortizes them over a 5-year period. Assume that each section 1245 
property within each store is a separate unit of property. Finally, 
assume that the work does not ameliorate any material conditions or 
defects that existed when X acquired the store buildings or result in 
any material additions to the store buildings.
    (ii) Under paragraph (e)(2)(ii) of this section, if an amount paid 
results in a betterment to the building structure or any building 
system, X must treat the amount as an improvement to the building. 
Considering the facts and circumstances, as required under paragraph 
(h)(3)(i) of this section, including the purpose of the expenditure, the 
physical nature of the work performed, the effect of the expenditure on 
buildings' structure and systems, and the treatment of the work on X's 
applicable financial statements, the amounts paid for the refresh of 
each building do not result in material increases in capacity, 
productivity, efficiency, strength, or quality of the buildings' 
structures or any building systems as compared to the condition of the 
buildings' structures and systems after the previous refresh. Rather, 
the work performed keeps X's store buildings' structures and buildings' 
systems in the ordinary efficient operating condition that is necessary 
for X to continue to attract customers to its stores. Therefore, X is 
not required to treat the amounts paid for the refresh of its store 
buildings' structures and buildings' systems as betterments under 
paragraph (h)(1)(iii) of this section. However, X is required to 
capitalize the amounts paid to acquire and install each section 1245 
property in accordance with Sec. 1.263(a)-2T(d)(1).
    Example 7. Building refresh; limited improvement. Assume the same 
facts as Example 6 except, in the course of X's refresh of its stores, X 
pays amounts to remove and replace the bathroom fixtures (that is, the 
toilets, sinks, and plumbing fixtures) with upgraded bathroom fixtures 
in all of the restrooms in X's retail buildings in order to update the 
restroom facilities. As part of the update of the restrooms, X also pays 
amounts to replace the floor and wall tiles that were removed or damaged 
in the installation of the new plumbing fixtures. Under paragraph 
(e)(2)(ii) of this section, if any of the amounts paid result in 
betterments to the building structure or any building system, X must 
treat the amounts as an improvement to the building. Under paragraph 
(e)(2)(ii)(B)(2) of this section, the plumbing system in each of X's 
store buildings, including the plumbing fixtures, is a building system. 
X must treat the amounts paid to replace the bathroom fixtures with 
upgraded fixtures as a betterment because they result in a material 
increase in the quality of each plumbing system under paragraph 
(h)(1)(iii) of this section. Under paragraph (f)(3) of this section, X 
is required

[[Page 577]]

to capitalize all the indirect costs that directly benefit or are 
incurred by reason of the betterment, or improvement, to each plumbing 
system. Because the costs to remove the old plumbing fixtures and to 
remove and replace the bathroom tiles directly benefit and are incurred 
by reason of the improvement to the plumbing system, these costs must 
also be capitalized under paragraph (f)(3) of this section. Therefore, 
in accordance with paragraph (e)(2)(ii) of this section, X must treat 
the amounts paid for a betterment to each plumbing system as an 
improvement to X's retail building to which the costs relate, and must 
capitalize the amounts under paragraph (d)(1) of this section. However, 
X is not required under paragraph (f)(3) of this section to capitalize 
the costs described in Example 6 to refresh the appearance and layout of 
its stores because those costs do not directly benefit and are not 
incurred by reason of the improvements to the stores' plumbing systems. 
Thus, X is not required to capitalize under paragraphs (f)(3) of this 
section any costs specified in Example 6 for the reconfiguration, 
cosmetic changes, repairs, and maintenance to the other parts of X's 
store buildings.
    Example 8. Betterment; building remodel. (i) Assume the same facts 
as Example 6, but assume that the work performed to refresh the stores 
directly benefits or was incurred by reason of a substantial remodel to 
X's store buildings. In addition to the reconfiguration, cosmetic 
changes, repairs, and maintenance activities performed in Example 6, X 
performs significant additional work to alter the appearance and layout 
of its stores in order to increase customer traffic and sales volume. 
First, X pays amounts to upgrade the buildings' structures as defined 
under (e)(2)(ii)(A). This work includes removing and rebuilding walls to 
move built-in changing rooms and specialty departments to different 
areas of the stores, replacing ceilings with acoustical tiles to reduce 
noise and create a more pleasant shopping environment, rebuilding the 
interior and exterior facades around the main doors to create a more 
appealing entrance, replacing conventional doors with automatic doors, 
and replacing carpet with ceramic flooring of different textures and 
styles to delineate departments and direct customer traffic. Second, X 
pays amounts for work on the electrical systems, which are building 
systems under paragraph (e)(2)(ii)(B)(3) of this section. Specifically, 
X upgrades the wiring in the buildings so that X can add video monitors 
and an expanded electronics department. X also removes and replaces the 
recessed lighting throughout the buildings with more efficient and 
brighter lighting. The work performed on the buildings' structures and 
the electrical systems includes the removal and replacement of both 
section 1250 and section 1245 property. In its applicable financial 
statement, X capitalizes all the costs incurred over a 10-year period. 
Upon completion of this period, X anticipates that it will have to 
remodel the store buildings again.
    (ii) Under paragraph (e)(2)(ii) of this section, if any of the 
amounts paid result in a betterment to the building structure or any 
building system, X must treat those amounts as an improvement to the 
building. Considering the facts and circumstances, as required under 
paragraph (h)(3)(i) of this section, including the purpose of the 
expenditure, the physical nature of the work performed, the effect of 
the work on the buildings' structures and buildings' systems, and the 
treatment of the work on X's applicable financial statements, the 
amounts that X pays for the remodeling of its stores result in 
betterments to the buildings' structures and electrical systems under 
paragraph (h) of this section. Specifically, amounts paid to upgrade the 
wiring and to remove and replace the recess lighting throughout the 
stores materially increase the productivity, efficiency, and quality of 
X's stores' electrical systems under paragraph (h)(1)(iii) of this 
section. Also, the amounts paid to remove and rebuild walls, to replace 
ceilings, to rebuild facades, to replace doors, and replace flooring 
materially increase the productivity, efficiency, and quality of X's 
store buildings' structures under paragraph (h)(1)(iii) of this section. 
In addition, the amounts paid for the refresh of the store buildings 
described in Example 6 must be capitalized under paragraph (f)(3)(i) of 
this section because these expenditures directly benefitted or were 
incurred by reason of the improvements to X's store buildings' 
structures and electrical systems. Therefore, in accordance with 
paragraph (e)(2)(ii) of this section, X must treat the costs of 
improving the buildings' structures and systems, including the costs to 
refresh, as improvements to X's retail buildings and must capitalize the 
amounts paid for these improvements under paragraph (d)(1) of this 
section. Moreover, X is required to capitalize the amounts paid to 
acquire and install each section 1245 property in accordance with Sec. 
1.263(a)-2T(d)(1).
    Example 9. Not betterment; relocation and reinstallation of personal 
property. In Year 1, X purchases new cash registers for use in its 
retail store located in leased space in a shopping mall. Assume that 
each cash register is a unit of property as determined under paragraph 
(e)(3) of this section. In Year 1, X capitalizes the costs of acquiring 
and installing the new cash registers under Sec. 1.263(a)-2T(d)(1). In 
Year 3, X's lease expires and X decides to relocate its retail store to 
a different building. In addition to various other costs, X pays $5,000 
to move the cash registers and $1,000 to reinstall them in the new 
store. The cash registers are used for the same purposes and in the same 
manner that they were used in the former location. The amounts that X 
pays to move and reinstall

[[Page 578]]

the cash registers into its new store do not result in a betterment to 
the cash registers under paragraph (h) of this section.
    Example 10. Betterment; relocation and reinstallation of 
manufacturing equipment. X operates a manufacturing facility in Building 
A, which contains various machines that X uses in its manufacturing 
business. X decides to expand part of its operations by relocating a 
machine to Building B to reconfigure the machine with additional 
components. Assume that the machine is a single unit of property under 
paragraph (e)(3) of this section. X pays amounts to disassemble the 
machine, to move the machine to the new location, and to reinstall the 
machine in a new configuration with additional components. Assume that 
the reinstallation, including the reconfiguration and the addition of 
components, results in an increase in capacity of the machine, and 
therefore results in a betterment to the machine under paragraph 
(h)(3)(iii) of this section. Accordingly, X must capitalize the costs of 
reinstalling the machine as an improvement to the machine under 
paragraph (d)(1) of this section. X is also required to capitalize the 
costs of disassembling and moving the machine to Building B because 
these costs directly benefit and are incurred by reason of the 
improvement to the machine under paragraph (f)(3)(i) of this section.
    Example 11. Betterment; regulatory requirement. X owns a hotel that 
includes five feet high unreinforced terra cotta and concrete parapets 
with overhanging cornices around the entire roof perimeter. The parapets 
and cornices are in good condition. In Year 1, City passes an ordinance 
setting higher safety standards for parapets and cornices because of the 
hazardous conditions caused by earthquakes. To comply with the 
ordinance, X pays an amount to remove the old parapets and cornices and 
replace them with new ones made of glass fiber reinforced concrete, 
which makes them lighter and stronger than the original components. They 
are attached to the hotel using welded connections instead of wire 
supports, making them more resistant to damage from lateral movement. 
Under paragraph (e)(2)(ii) of this section, if the amount paid results 
in a betterment to the building structure or any building system, X must 
treat the amount as an improvement to the building. The parapets and 
cornices are part of the building structure as defined in paragraph 
(e)(2)(ii)(A) of this section. The event necessitating the expenditure 
was the City ordinance. Prior to the ordinance, the old parapets and 
cornices were in good condition, but were determined by City to create a 
potential hazard. After the expenditure, the new parapets and cornices 
materially increased the structural soundness (that is, the strength) of 
the hotel structure. X must treat the amount paid to remove and replace 
the parapets and cornices as an improvement because it results in a 
betterment to the building structure under paragraph (h)(1)(iii) of this 
section. Therefore, in accordance with paragraph (e)(2)(ii) of this 
section, X must treat the amount paid for the betterment to the building 
structure as an improvement to the hotel building and must capitalize 
the amount paid under paragraph (d)(1) of this section. City's 
requirement that X correct the potential hazard to continue operating 
the hotel is not relevant in determining whether the amount paid 
improved the hotel. See paragraph (f)(2) of this section.
    Example 12. Not a betterment; regulatory requirement. X owns a meat 
processing plant. X discovers that oil is seeping through the concrete 
walls of the plant, creating a fire hazard. Federal meat inspectors 
advise X that it must correct the seepage problem or shut down its 
plant. To correct the problem, X pays an amount to add a concrete lining 
to the walls from the floor to a height of about four feet and also to 
add concrete to the floor of the plant. Under paragraph (e)(2)(ii) of 
this section, if the amount paid results in a betterment to the building 
structure or any building system, X must treat the amount as an 
improvement to the building. The event necessitating the expenditure was 
the seepage of the oil. Prior to the seepage, the plant did not leak and 
was functioning for its intended use. X is not required to treat the 
amount paid as a betterment under paragraph (h) of this section because 
it does not result in a material addition or material increase in 
capacity, productivity, efficiency, strength or quality of the building 
structure or its output compared to the condition of the structure prior 
to the seepage of the oil. The federal meat inspectors' requirement that 
X correct the seepage to continue operating the plant is not relevant in 
determining whether the amount paid improves the plant. See paragraph 
(f)(2) of this section.
    Example 13. Not a betterment; replacement with same part. X owns a 
small retail shop. A storm damages the roof of X's shop by displacing 
numerous wooden shingles. X pays a contractor to replace all the wooden 
shingles on the roof with new wooden shingles. Under paragraph 
(e)(2)(ii) of this section, if the amount paid results in a betterment 
to the building structure or any building system, X must treat the 
amount as an improvement to the building. The roof is part of the 
building structure under paragraph (e)(2)(ii)(A) of this section. The 
event necessitating the expenditure was the storm. Prior to the storm, 
the building structure was functioning for its intended use. X is not 
required to treat the amount paid to replace the shingles as a 
betterment under paragraph (h) of this section because it does not 
result in a material addition, or material increase in the capacity, 
productivity, efficiency, strength, or

[[Page 579]]

quality of the building structure or the output of the building 
structure compared to the condition of the building structure prior to 
the storm.
    Example 14. Not a betterment; replacement with comparable part. 
Assume the same facts as in Example 13, except that wooden shingles are 
not available on the market. X pays a contractor to replace all the 
wooden shingles with comparable asphalt shingles. The amount that X pays 
to reshingle the roof with asphalt shingles does not result in a 
betterment to the shop building structure, even though the asphalt 
shingles may be stronger than the wooden shingles. Because the wooden 
shingles could not practicably be replaced with new wooden shingles, the 
replacement of the old shingles with comparable asphalt shingles does 
not, by itself, result in a betterment, and therefore, an improvement, 
to the shop building structure under this paragraph (h).
    Example 15. Betterment; replacement with improved parts. Assume the 
same facts as in Example 14, except that, instead of replacing the 
wooden shingles with asphalt shingles, X pays a contractor to replace 
all the wooden shingles with shingles made of lightweight composite 
materials that are maintenance-free and do not absorb moisture. The new 
shingles have a 50-year warranty and a Class A fire rating. The amount 
paid for these shingles results in a betterment to the shop building 
structure under paragraphs (h)(1)(iii) and (h)(3)(iii) of this section 
because it results in a material increase in the quality of the shop 
building structure as compared to the condition of the shop building 
structure prior to the storm. Therefore, in accordance with paragraph 
(e)(2)(ii), X must treat the amount paid for the betterment of the 
building structure as an improvement to the building and must capitalize 
the amount paid under paragraph (d)(1) of this section.
    Example 16. Material increase in capacity. X owns a factory building 
with a storage area on the second floor. X pays an amount to replace the 
columns and girders supporting the second floor to permit storage of 
supplies with a gross weight 50 percent greater than the previous load-
carrying capacity of the storage area. Under paragraph (e)(2)(ii) of 
this section, if the amount results in a betterment to the building 
structure or any building system, X must treat the amount as an 
improvement to the building. The columns and girders are part of the 
building structure defined under paragraph (e)(2)(ii)(A) of this 
section. X must treat the amount paid to replace the columns and girders 
as a betterment under paragraph (h)(1)(iii) of this section because it 
materially increases the load-carrying capacity of the building 
structure. The comparison rule in paragraph (h)(3)(iii) of this section 
does not apply to this amount because the expenditure was not 
necessitated by a particular event. Therefore, in accordance with 
paragraph (e)(2)(ii) of this section, X must treat the amount paid for 
betterment of the building structure as an improvement to the building 
and must capitalize the amount paid under paragraph (d)(1) of this 
section.
    Example 17. Material increase in capacity. X owns harbor facilities 
consisting of a slip for the loading and unloading of barges and a 
channel leading from the slip to the river. At the time of purchase, the 
channel was 150 feet wide, 1,000 feet long, and 10 feet deep. To allow 
for ingress and egress and for the unloading of its barges, X needs to 
deepen the channel to a depth of 20 feet. X pays a contractor to dredge 
the channel to the required depth. Assume the channel is the unit of 
property. X must capitalize as an improvement the amounts paid for the 
dredging because they result in a material increase in the capacity of 
the channel under paragraph (h)(1)(iii) of this section. The comparison 
rule in paragraph (h)(3)(iii) of this section does not apply to these 
amounts paid because the expenditure was not necessitated by a 
particular event.
    Example 18. Not a material increase in capacity. Assume the same 
facts as in Example 17, except that the channel was susceptible to 
siltation and, by the next taxable year, the channel depth had been 
reduced to 18 feet. X pays a contractor to redredge the channel to a 
depth of 20 feet. The event necessitating the expenditure was the 
siltation of the channel. Both prior to the siltation and after the 
redredging, the depth of the channel was 20 feet. X is not required to 
treat the amounts paid to redredge the channel as a betterment under 
paragraphs (h)(1)(ii) or (h)(1)(iii) of this section because they do not 
result in a material addition to the unit of property or a material 
increase in the capacity, productivity, efficiency, strength, or quality 
of the unit of property or the output of the unit of property.
    Example 19. Not a material increase in capacity. X owns a building 
used in its trade or business. The first floor has a drop-ceiling. X 
pays an amount to remove the drop-ceiling and repaint the original 
ceiling. Under paragraph (e)(2)(ii) of this section, if the amount paid 
results in a betterment to the building structure or any building 
system, X must treat the amount as an improvement to the building. The 
ceiling is part of the building structure as defined under paragraph 
(e)(2)(ii)(A) of this section. X is not required to treat the amount 
paid to remove the drop-ceiling as a betterment because it did not 
result in a material addition under paragraph (h)(1)(ii) of this section 
or a material increase to the capacity, productivity, efficiency, 
strength, or quality of the building structure or output of the building 
structure under paragraph (h)(1)(iii) of this section. The comparison 
rule in paragraph (h)(3)(iii)

[[Page 580]]

of this section does not apply to these amounts paid because the 
expenditure was not necessitated by a particular event.

    (i) Capitalization of restorations--(1) In general. A taxpayer must 
capitalize amounts paid to restore a unit of property, including amounts 
paid in making good the exhaustion for which an allowance is or has been 
made. An amount is paid to restore a unit of property only if it--
    (i) Is for the replacement of a component of a unit of property and 
the taxpayer has properly deducted a loss for that component (other than 
a casualty loss under Sec. 1.165-7);
    (ii) Is for the replacement of a component of a unit of property and 
the taxpayer has properly taken into account the adjusted basis of the 
component in realizing gain or loss resulting from the sale or exchange 
of the component;
    (iii) Is for the repair of damage to a unit of property for which 
the taxpayer has properly taken a basis adjustment as a result of a 
casualty loss under section 165, or relating to a casualty event 
described in section 165;
    (iv) Returns the unit of property to its ordinarily efficient 
operating condition if the property has deteriorated to a state of 
disrepair and is no longer functional for its intended use;
    (v) Results in the rebuilding of the unit of property to a like-new 
condition after the end of its class life as defined in paragraph (g)(4) 
of this section (see paragraph (i)(3) of this section); or
    (vi) Is for the replacement of a part or a combination of parts that 
comprise a major component or a substantial structural part of a unit of 
property (see paragraph (i)(4) of this section).
    (2) Restorations of buildings. In the case of a building, an amount 
is paid to restore the unit of property if it restores any of the 
properties designated in paragraphs (e)(2)(ii), (e)(2)(iii)(B), 
(e)(2)(iv)(B), (e)(2)(v)(B) of this section.
    (3) Rebuild to like-new condition. For purposes of paragraph 
(i)(1)(v) of this section, a unit of property is rebuilt to a like-new 
condition if it is brought to the status of new, rebuilt, 
remanufactured, or similar status under the terms of any federal 
regulatory guideline or the manufacturer's original specifications.
    (4) Replacement of a major component or a substantial structural 
part. To determine whether an amount is for the replacement of a part or 
a combination of parts that comprise a major component or a substantial 
structural part of the unit of property, it is appropriate to consider 
all the facts and circumstances. These facts and circumstances include 
the quantitative or qualitative significance of the part or combination 
of parts in relation to the unit of property. A major component or 
substantial structural part includes a part or combination of parts that 
comprise a large portion of the physical structure of the unit of 
property or that perform a discrete and critical function in the 
operation of the unit of property. However, the replacement of a minor 
component of the unit of property, even though such component may affect 
the function of the unit of property, will not generally, by itself, 
constitute a major component or substantial structural part.
    (5) Examples. The following examples illustrate the application of 
this paragraph (i) only and do not address whether capitalization is 
required under another provision of this section or another provision of 
the Internal Revenue Code (for example, section 263A). Unless otherwise 
stated, assume that X has not properly deducted a loss for, nor taken 
into account the adjusted basis on a sale or exchange of, any unit of 
property, asset, or component of a unit of property that is replaced:

    Example 1. Replacement of loss component. X owns a manufacturing 
building containing various types of manufacturing equipment. X does a 
cost segregation study of the manufacturing building and properly 
determines that a walk-in freezer in the manufacturing building is 
section 1245 property as defined in section 1245(a)(3). The freezer is 
not part of the building structure under paragraph (e)(2)(i) of this 
section or the HVAC system, which is a separate building system under 
paragraph (e)(2)(ii)(B)(1) of this section. Several components of the 
walk-in freezer cease to function and X decides to replace them. X 
abandons the old freezer components and properly recognizes a loss from 
the abandonment of the components. X replaces the abandoned freezer 
components with new components and incurs costs to acquire and

[[Page 581]]

install the new components. Under paragraph (i)(1)(i) of this section, X 
must capitalize the amounts paid to acquire and install the new freezer 
components because X replaced components for which it had properly 
deducted a loss.
    Example 2. Replacement of sold component. Assume the same facts as 
in Example 1 except that X did not abandon the components, but instead 
sold them to another party and properly recognized a loss on the sale. 
Under paragraph (i)(1)(ii) of this section, X must capitalize the 
amounts paid to acquire and install the new freezer components because X 
replaced components for which it had properly taken into account the 
adjusted basis of the components in realizing a loss from the sale of 
the components.
    Example 3. Restoration after casualty loss. X owns an office 
building that it uses in its trade or business. A storm damages the 
office building at a time when the building has an adjusted basis of 
$500,000. X deducts under section 165 a casualty loss in the amount of 
$50,000 and properly reduces its basis in the office building to 
$450,000. X hires a contractor to repair the damage to the building and 
pays the contractor $50,000 for the work. Under paragraph (i)(1)(iii) of 
this section, X must capitalize the $50,000 amount paid to the 
contractor because X properly adjusted its basis in that amount as a 
result of a casualty loss under section 165.
    Example 4. Restoration after casualty event. Assume the same facts 
as in Example 3, except that X receives insurance proceeds of $50,000 
after the casualty to compensate for its loss. X cannot deduct a 
casualty loss under section 165 because its loss was compensated by 
insurance. However, X properly reduces its basis in the property by the 
amount of the insurance proceeds. Under paragraph (i)(1)(iii) of this 
section, X must capitalize the $50,000 amount paid to the contractor 
because X has properly taken a basis adjustment relating to a casualty 
event described in section 165.
    Example 5. Restoration of property in a state of disrepair. X owns 
and operates a farm with several barns and outbuildings. X did not use 
or maintain one of the outbuildings on a regular basis, and the 
outbuilding fell into a state of disrepair. The outbuilding previously 
was used for storage but can no longer be used for that purpose because 
the building is not structurally sound. X decides to restore the 
outbuilding and pays an amount to shore up the walls and replace the 
siding. Under paragraph (e)(2)(ii) of this section, if the amount paid 
results in a restoration of the building structure or any building 
system, X must treat the amount as an improvement to the building. The 
walls and siding are part of the building structure under paragraph 
(e)(2)(ii)(A) of this section. Under paragraph (i)(1)(iv) of this 
section, X must treat the amount paid to shore up the walls and replace 
the siding as a restoration of the building structure because the 
amounts return the building structure to its ordinarily efficient 
operating condition after it had deteriorated to a state of disrepair 
and was no longer functional for its intended use. Therefore, in 
accordance with paragraph (e)(2)(ii) of this section, X must treat the 
amount paid as an improvement to the building and must capitalize the 
amount paid under paragraph (d)(2) of this section.
    Example 6. Rebuild of property to like-new condition before end of 
class life. X is a Class I railroad that owns a fleet of freight cars. 
Freight cars have a recovery period of 7 years under section 168(c) and 
a class life of 14 years. Every 8 to 10 years, X rebuilds its freight 
cars. Ten years after X places the freight car in service, X performs a 
rebuild, which includes a complete disassembly, inspection, and 
reconditioning or replacement of components of the suspension and draft 
systems, trailer hitches, and other special equipment. X modifies the 
car to upgrade various components to the latest engineering standards. 
The freight car essentially is stripped to the frame, with all of its 
substantial components either reconditioned or replaced. The frame 
itself is the longest-lasting part of the car and is reconditioned. The 
walls of the freight car are replaced or are sandblasted and repainted. 
New wheels are installed on the car. All the remaining components of the 
car are restored before they are reassembled. At the end of the rebuild, 
the freight car has been restored to rebuilt condition under the 
manufacturer's specifications. Assume the freight car is the unit of 
property. X is not required to capitalize under paragraph (i)(1)(v) of 
this section the amounts paid to rebuild the freight car because, 
although the amounts paid restore the freight car to like-new condition, 
the amounts were not paid after the end of the class life of the freight 
car.
    Example 7. Rebuild of property to like-new condition after end of 
class life. Assume the same facts as in Example 6, except that X 
rebuilds the freight car 15 years after X places it in service. Under 
paragraph (i)(1)(v) of this section, X must capitalize the amounts paid 
to rebuild the freight car because the amounts paid restore the freight 
car to like-new condition after the end of the class life of the freight 
car.
    Example 8. Replacement of major component or substantial structural 
part; personal property. X is a common carrier that owns a fleet of 
petroleum hauling trucks. X pays amounts to replace the existing engine, 
cab, and petroleum tank with a new engine, cab, and tank. Assume the 
tractor of the truck (which includes the cab and the engine) is a single 
unit of property, and that the trailer (which contains the petroleum 
tank) is a separate unit of property. The new engine and cab constitute 
parts or combinations of parts

[[Page 582]]

that comprise a major component or substantial structural part of X's 
tractor. Therefore, the amounts paid for the replacement of those 
components must be capitalized under paragraph (i)(1)(vi) of this 
section. The new petroleum tank constitutes a part or combination of 
parts that comprise a major component and a substantial structural part 
of the trailer. Accordingly, the amounts paid for the replacement of the 
tank also must be capitalized under paragraph (i)(1)(vi) of this 
section.
    Example 9. Repair performed during a restoration. Assume the same 
facts as in Example 8, except that, at the same time the engine and cab 
of the tractor are replaced, X pays amounts to paint the cab of the 
tractor with its company logo and to fix a broken taillight on the 
tractor. The repair of the broken taillight and the painting of the cab 
generally are deductible expenses under Sec. 1.162-4T. However, under 
paragraph (f)(3)(i) of this section, a taxpayer must capitalize all the 
direct costs of an improvement and all the indirect costs that directly 
benefit or are incurred by reason of an improvement in accordance with 
the rules under section 263A. Repairs and maintenance that do not 
directly benefit or are not incurred by reason of an improvement are not 
required to be capitalized under section 263(a), regardless of whether 
they are made at the same time as an improvement. Under paragraph 
(f)(3)(i) of this section, X must capitalize the amounts paid to paint 
the cab as part of the improvement to the tractor because these amounts 
directly benefit and are incurred by reason of the restoration of the 
cab. Amounts paid to repair the broken taillight, however, are not 
incurred by reason of the restoration of the tractor, nor do the amounts 
paid directly benefit the tractor restoration, even though the repair 
was performed at the same time as the restoration. Thus, X must 
capitalize the amounts paid to paint the cab under paragraph (i)(1)(vi) 
and (f)(3)(i) of this section, but X is not required to capitalize the 
amounts paid to repair the broken taillight.
    Example 10. Related amounts to replace major component or 
substantial structural part; personal property. (i) X owns a retail 
gasoline station, consisting of a paved area used for automobile access 
to the pumps and parking areas, a building used to market gasoline, and 
a canopy covering the gasoline pumps. The premises also consist of 
underground storage tanks (USTs) that are connected by piping to the 
pumps and are part of the machinery used in the immediate retail sale of 
gas. To comply with regulations issued by the Environmental Protection 
Agency, X is required to remove and replace leaking USTs. In Year 1, X 
hires a contractor to perform the removal and replacement, which 
consists of removing the old tanks and installing new tanks with leak 
detection systems. The removal of the old tanks includes removing the 
paving material covering the tanks, excavating a hole large enough to 
gain access to the old tanks, disconnecting any strapping and pipe 
connections to the old tanks, and lifting the old tanks out of the hole. 
Installation of the new tanks includes placement of a liner in the 
excavated hole, placement of the new tanks, installation of a leak 
detection system, installation of an overfill system, connection of the 
tanks to the pipes leading to the pumps, backfilling of the hole, and 
replacement of the paving. X also is required to pay a permit fee to the 
county to undertake the installation of the new tanks.
    (ii) X pays the permit fee to the county on October 15, Year 1. On 
December 15, Year 1, the contractor completes the removal of the old 
USTs and bills X for the costs of removal. On January 15, Year 2, the 
contractor completes the installation of the new USTs and bills X for 
the remainder of the work. Assume that X computes its taxes on a 
calendar year basis and X's gasoline distribution system is the unit of 
property. Under paragraph (i)(1)(vi) of this section, X must capitalize 
the amounts paid to replace the USTs as a restoration to the gasoline 
distribution system because the USTs are parts or combinations of parts 
that comprise a major component and substantial structural part of the 
gasoline distribution system. Moreover, under paragraph (f)(3) of this 
section, X must capitalize the costs of removing the old USTs because 
these amounts directly benefit and are incurred by reason of the 
improvement to the gasoline distribution system. Finally, under 
paragraph (f)(4) of this section, X must capitalize the aggregate of 
related amounts paid to improve the gasoline distribution system, 
including the amount paid to the county, the amount paid to remove the 
old USTs, and the amount paid to install the new USTs, even though the 
amounts were separately invoiced, paid to different parties, and 
incurred in different tax years.
    Example 11. Not replacement of major component or substantial 
structural part; personal property. X owns a machine shop in which it 
makes dies used by manufacturers. In Year 1, X purchased a drill press 
for use in its production process. In Year 3, X discovers that the power 
switch assembly, which controls the supply of electric power to the 
drill press, has become damaged and could not operate. To correct this 
problem, X paid amounts to replace the power switch assembly with 
comparable, commercially available and reasonable replacement parts. 
Assume that the drill press is a unit of property under paragraph (e) of 
this section and the power switch assembly is a small component of the 
drill press that may be removed and installed with relative ease. Thus, 
the power switch assembly is not a major component or substantial 
structural part of X's drill press

[[Page 583]]

under paragraph (i)(3) of this section. X is not required to capitalize 
the costs to replace the power switch assembly under paragraph 
(i)(1)(vi) of this section because the replacement, by itself, does not 
constitute the replacement of a part or a combination of parts that 
comprise a major component or substantial structural part of X's drill 
press. But see section 263A and the regulations thereunder for the 
requirement to capitalize indirect costs that directly benefit or are 
incurred by reason of production activities.
    Example 12. Replacement of major component or substantial structural 
part; roof. X owns a large retail store. X discovers a leak in the roof 
of the store and hires a contractor to inspect and fix the roof. The 
contractor discovers that a major portion of the sheathing and rafters 
has rotted, and recommends the replacement of the entire roof. X pays 
the contractor to replace the entire roof with a new roof. Under 
paragraph (e)(2)(ii) of this section, if the amount paid results in a 
restoration of the building structure or any building system, X must 
treat the amount as an improvement to the building. The roof is part of 
the building structure under paragraph (e)(2)(ii)(A) of this section and 
comprises a major component or substantial structural part of X's 
building structure under paragraph (i)(4) of this section. Under 
paragraph (i)(1)(vi) of this section, X must treat the amount paid to 
replace the roof as a restoration because X paid the amount to replace a 
major component or substantial structural part of X's building 
structure. Therefore, in accordance with paragraph (e)(2)(ii) of this 
section, X must treat the amount paid to restore the building structure 
as an improvement to the building and must capitalize the amount paid 
under paragraph (d)(2) of this section.
    Example 13. Replacement of major component or substantial structural 
part; roof. Assume the same facts as Example 12 except the contractor 
recommends replacement of a significant portion of the roof, but not the 
entire roof. Accordingly, X pays an amount to replace a large portion of 
the decking, insulation, and membrane of the roof of X's retail 
building. The portion of the roof replaced comprises a major component 
or substantial structural part of the building structure under paragraph 
(i)(4) of this section. Thus, under paragraph (i)(1)(vi) of this 
section, X must treat the amount paid for the roof work as a restoration 
of the building structure because X paid the amount to replace a major 
component or substantial structural part of the building structure. 
Therefore, in accordance with paragraph (e)(2)(ii) of this section, X 
must treat the amount paid as an improvement to the building and must 
capitalize the amount paid under paragraph (d)(2) of this section.
    Example 14. Not replacement of major component or substantial 
structural part; roof membrane. X is in the business of manufacturing 
parts. X owns a factory facility in which the parts are manufactured. 
The roof over X's facility is comprised of structural elements, 
insulation, and a waterproof membrane. Over time, the waterproof 
membrane began to wear and leakage began to occur. Consequently, X pays 
an amount to replace the plant's worn roof membrane with a similar but 
new membrane. Under paragraph (e)(2)(ii) of this section, if the amount 
paid results in a restoration of the building structure or any building 
system, X must treat the amount as an improvement to the building. The 
roof, including the membrane, is part of the building structure as 
defined under paragraph (e)(2)(ii)(A) of this section. Although the roof 
membrane may affect the function of the building structure, it is not, 
by itself, a major component or substantial structural part of X's 
building structure under paragraph (i)(4) of this section. Because the 
roof membrane is not a major component or substantial structural part of 
the building structure, X is not required to treat the amount paid to 
replace the roof membrane as a restoration of the building structure 
under paragraph (i)(1)(vi) of this section. But see section 263A and the 
regulations thereunder for the requirement to capitalize indirect costs 
that directly benefit or are incurred by reason of production 
activities.
    Example 15. Replacement of major component or substantial structural 
part; HVAC system. X owns a building in which it operates an office that 
provides medical services. The building contains one HVAC system, which 
is comprised of a furnace, an air conditioning unit, and duct work that 
runs throughout the building to distribute the heat or air conditioning 
throughout the building. The furnace in X's building breaks down and X 
pays an amount to replace it with a new furnace. Under paragraph 
(e)(2)(ii) of this section, if the amount paid results in a restoration 
of the building structure or any building system, X must treat the 
amount as an improvement to the building. The heating and air 
conditioning system, including the furnace, is a building system under 
paragraph (e)(2)(ii)(B)(1) of this section. The furnace performs a 
discrete and critical function in the operation of the HVAC system, and 
is therefore a major component or substantial structural part of the 
building system under paragraph (i)(4) of this section. Because the 
furnace comprises a major component or substantial structural part of a 
building system, X must treat the amount paid to replace the furnace as 
a restoration of the building system under paragraph (i)(1)(vi) of this 
section. Therefore, in accordance with paragraph (e)(2)(ii) of this 
section, X must treat the amount paid as an improvement to the building 
and must capitalize the amount paid under paragraph (d)(2) of this 
section.

[[Page 584]]

    Example 16. Replacement of major component or substantial structural 
part; HVAC system. X owns a large office building in which it provides 
consulting services. The building contains one HVAC system, which is 
comprised of one chiller unit, one boiler, pumps, duct work, diffusers, 
air handlers, outside air intake and a cooling tower. The chiller unit 
includes the compressor, evaporator, condenser, and expansion valve, and 
functions to cool the water used to generate air conditioning throughout 
the building. X pays an amount to replace the chiller with a more energy 
efficient unit. Under paragraph (e)(2)(ii) of this section, if the 
amount paid results in a restoration of the building structure or any 
building system, X must treat the amount as an improvement to the 
building. The HVAC system, including the chiller unit, is a building 
system under paragraph (e)(2)(ii)(B)(1) of this section. The chiller 
unit performs a discrete and critical function in the operation of the 
HVAC system and is therefore a major component or substantial structural 
part of the HVAC system under paragraph (i)(4) of this section. Because 
the chiller unit comprises a major component or substantial structural 
part of a building system, X must treat the amount paid to replace the 
chiller unit as a restoration to a building system under paragraph 
(i)(1)(vi) of this section. Therefore, in accordance with paragraph 
(e)(2)(ii) of this section, X must treat the amount paid as an 
improvement to the building and must capitalize the amount paid under 
paragraph (d)(2) of this section.
    Example 17. Not replacement of major component or substantial 
structural part; HVAC system. X owns an office building that it uses to 
provide services to customers. The building contains an HVAC system that 
incorporates ten roof-mounted units that provide heating and air 
conditioning for different parts of the building. The HVAC system also 
consists of controls for the entire system and duct work that 
distributes the heated or cooled air to the various spaces in the 
building's interior. X begins to experience climate control problems in 
various offices throughout the office building and consults with a 
contractor to determine the cause. The contractor recommends that X 
replace two of the roof-mounted units. X pays an amount to replace the 
two specified units. No work is performed on the other roof-mounted 
heating/cooling units, the duct work, or the controls. Under paragraph 
(e)(2)(ii) of this section, if the amount paid results in a restoration 
of the building structure or any building system, X must treat the 
amount as an improvement to the building. The HVAC system, including the 
two-roof mounted units, is a building system under paragraph 
(e)(2)(ii)(B)(1) of this section. The two roof-mounted heating/cooling 
units, by themselves, do not comprise a large portion of the physical 
structure of the HVAC system or perform a discrete and critical function 
in the operation of the system. Therefore, under paragraph (i)(4) of 
this section, the two units do not constitute a major component or 
substantial structural part of the building system. Accordingly, X is 
not required to treat the amount paid to replace the two roof-mounted 
heating/cooling units as a restoration of a building system under 
paragraph (i)(1)(iv) of this section.
    Example 18. Replacement of major component or substantial structural 
part; fire protection system. X owns a building that it uses to operate 
its business. X pays an amount to replace the sprinkler system in the 
building with a new sprinkler system. Under paragraph (e)(2)(ii) of this 
section, if the amount paid results in a restoration of the building 
structure or any building system, X must treat the amount as an 
improvement to the building. The fire protection and alarm system, 
including the sprinkler system, is a building system under paragraph 
(e)(2)(ii)(B)(6) of this section. The sprinkler system performs a 
discrete and critical function in the operation of the fire protection 
and alarm system and is therefore a major component or substantial 
structural part of the fire protection and alarm system under paragraph 
(i)(4) of this section. Because the sprinkler system comprises a major 
component or substantial structural part of a building system, X must 
treat the amount paid to replace the sprinkler system as a restoration 
to a building system under paragraph (i)(1)(vi) of this section. 
Therefore, in accordance with paragraph (e)(2)(ii) of this section, X 
must treat the amount paid as an improvement to the building and must 
capitalize the amount paid under paragraph (d)(2) of this section.
    Example 19. Replacement of major component or substantial structural 
part; electrical system. X owns a building that it uses to operate its 
business. X pays an amount to replace the wiring throughout the building 
with new wiring that meets building code requirements. Under paragraph 
(e)(2)(ii) of this section, if the amount paid results in a restoration 
of the building structure or any building system, X must treat the 
amount as an improvement to the building. The electrical system, 
including the wiring, is a building system under paragraph 
(e)(2)(ii)(B)(3) of this section. The wiring performs a discrete and 
critical function in the operation of the electrical system and is 
therefore a major component or substantial structural part of the 
electrical system under paragraph (i)(4) of this section. Because the 
wiring comprises a major component or substantial structural part of a 
building system, X must treat the amount paid to replace the wiring as a 
restoration to a building system under paragraph (i)(1)(vi) of this 
section. Therefore, in accordance with paragraph (e)(2)(ii) of this 
section, X must treat the amount paid as an

[[Page 585]]

improvement to the building and must capitalize the amount paid under 
paragraph (d)(2) of this section.
    Example 20. Replacement of major component or substantial structural 
part; plumbing system. X owns a building in which it conducts a retail 
business. The retail building has three floors. The retail building has 
men's and women's restrooms on two of the three floors. X decides to 
update the restrooms by paying an amount to replace the plumbing 
fixtures in all of the restrooms, including the toilets, sinks, and 
associated fixtures, with modern style plumbing fixtures of similar 
quality and function. X does not replace the pipes connecting the 
fixtures to the building's plumbing system. Under paragraph (e)(2)(ii) 
of this section, if the amount paid results in a restoration of the 
building structure or any building system, X must treat the amount as an 
improvement to the building. The plumbing system, including the plumbing 
fixtures, is a building system under paragraph (e)(2)(ii)(B)(2) of this 
section. The plumbing fixtures in all the restrooms perform a discrete 
and critical function in the operation of the plumbing system and 
comprise a large portion of the physical structure of plumbing system. 
Therefore, under paragraph (i)(4) of this section, the plumbing fixtures 
comprise a major component or substantial structural part of the 
plumbing system, and X must treat the amount paid to replace all of the 
plumbing fixtures as a restoration of a building system under paragraph 
(i)(1)(vi) of this section. As a result, in accordance with paragraph 
(e)(2)(ii) of this section, X must treat the amount paid to restore the 
plumbing system as an improvement to the building and must capitalize 
these amounts under paragraph (d)(2) of this section.
    Example 21. Not replacement of major component or substantial 
structural part; plumbing system. Assume the same facts as Example 20 
except that X does not update all the bathroom fixtures. Instead, X only 
pays an amount to replace three of the twenty sinks located in the 
various restrooms because these sinks had cracked. The three replaced 
sinks, by themselves, do not comprise a large portion of the physical 
structure of the plumbing system nor do they perform a discrete and 
critical function in the operation of the plumbing system. Therefore, 
under paragraph (i)(4) of this section, the sinks do not constitute a 
major component or substantial structural part of the building system. 
Accordingly, X is not required to treat the amount paid to replace the 
sinks as a restoration of a building system under paragraph (i)(1)(iv) 
of this section.
    Example 22. Replacement of major component or substantial structural 
part; remodel. (i) X owns and operates a hotel building. X decides that 
to attract customers and to remain competitive, it needs to update the 
guest rooms in its facility. Accordingly, X pays amounts to replace the 
bathtubs, toilets, sinks, plumbing fixtures, and to repair, repaint, and 
retile the bathroom walls and floors, which was necessitated by the 
installation of the new plumbing components. The replacement bathtubs, 
toilets, sinks, plumbing fixtures, and tile are new and in a different 
style, but are similar in function and quality to the replaced items. X 
also pays amounts to replace certain section 1245 property, such as the 
guest room furniture, carpeting, drapes, table lamps, and partition-
walls separating the bathroom area. X completes this work on two floors 
at a time, closing those floors and leaving the rest of the hotel open 
for business. In Year 1, X pays amounts to perform the updates for eight 
of the twenty hotel room floors, and expects to complete the renovation 
of the remaining rooms over the next 2 years.
    (ii) Under paragraph (e)(2)(ii) of this section, if the amount paid 
results in a restoration of the building structure or any building 
system, X must treat the amount as an improvement to the building. The 
plumbing system, including the bathtubs, toilets, sinks, and plumbing 
fixtures, is a building system under paragraph (e)(2)(ii)(B)(2) of this 
section. All the bathtubs, toilets, sinks, and plumbing fixtures in the 
hotel building perform a discrete and critical function in the operation 
of the plumbing system and comprise a large portion of the physical 
structure of the plumbing system. Therefore, under paragraph (i)(4) of 
this section, these plumbing components comprise major components or 
substantial structural parts of the plumbing system, and X must treat 
the amount paid to replace these plumbing components as a restoration of 
a building system under paragraph (i)(1)(vi) of this section. In 
addition, under paragraph (f)(3)(i) of this section, X must treat the 
costs of repairing, repainting, and retiling the bathroom walls and 
floors as improvement costs because these costs directly benefit and are 
incurred by reason of the improvement to the plumbing system. Further, 
under paragraph (f)(4) of this section, X must treat the costs incurred 
in Years 1, 2, and 3 for the bathroom remodeling as improvement costs, 
even though they are incurred over a period of several taxable years, 
because they are part of the aggregate of related amounts paid to 
improve the plumbing system. Therefore, in accordance with paragraph 
(e)(2)(ii) of this section, X must treat the amounts it paid to improve 
the plumbing system as the costs of improving the building and must 
capitalize the amounts under paragraph (d)(2) of this section. In 
addition, X must capitalize the amounts paid to acquire and install each 
section 1245 property under Sec. 1.263(a)-2T of the regulations.
    Example 23. Not replacement of major component or substantial 
structural part; windows. X

[[Page 586]]

owns a large office building that it uses to provide office space for 
employees that manage X's operations. The building has 300 exterior 
windows. In Year 1, X pays an amount to replace 30 of the exterior 
windows that had become damaged. At the time of these replacements, X 
has no plans to replace any other windows in the near future. Under 
paragraph (e)(2)(ii) of this section, if the amount paid results in a 
restoration of the building structure or any building system, X must 
treat the amount as an improvement to the building. The exterior windows 
are part of the building structure as defined under paragraph 
(e)(2)(ii)(A) of this section. The 30 replacement windows do not 
comprise a large portion of the physical structure of the office 
building structure and, by themselves, do not perform a discrete and 
critical function in the operation of X's building structure. Therefore, 
under paragraph (i)(4) of this section, the replacement windows do not 
constitute major components or substantial structural parts of the 
building structure. Accordingly, X is not required to treat the amount 
paid to replace the windows as a restoration of a building system under 
paragraph (i)(1)(iv) of this section.
    Example 24. Replacement of major component or substantial structural 
part; windows. Assume the same facts as Example 23 except that X 
replaces 200 of the 300 windows on the building. In addition, as a 
result of damage caused during the window replacements, X also pays an 
amount to repaint the interior trims associated with the replaced 
windows. The 200 replacement windows comprise a large portion of the 
physical structure of X's building and perform a discrete and critical 
function in the operation of the building structure. Therefore, under 
paragraph (i)(4) of this section, the 200 windows comprise a major 
component or substantial structural part of the building structure, and 
X must treat the amount paid to replace the windows as a restoration of 
the building structure under paragraph (i)(1)(vi) of this section. As a 
result, in accordance with paragraph (e)(2)(ii) of this section, X must 
treat the amounts paid to restore the building structure as an 
improvement to the building and must capitalize the amounts under 
paragraph (d)(2) of this section.
    Example 25. Not replacement of major component or substantial 
structural part; floors. X owns and operates a hotel building. X decides 
to refresh the appearance of the hotel lobby by replacing the floors in 
the lobby. The hotel lobby comprises a small portion of the entire hotel 
building. X pays an amount to replace the wood flooring in the lobby 
with new wood flooring. X did not replace any other flooring in the 
building. Assume that the wood flooring constitutes section 1250 
property. Under paragraph (e)(2)(ii) of this section, if the amount paid 
results in a restoration of the building structure or any building 
system, X must treat the amount as an improvement to the building. The 
wood flooring is part of the building structure under paragraph 
(e)(2)(ii)(A) of this section. The replacement wood flooring in the 
lobby of the building does not comprise a large portion of the physical 
structure of the hotel building or perform a discrete and critical 
function in the operation of the hotel building structure. Therefore, 
under paragraph (i)(4) of this section, the wood flooring does not a 
constitute major component or substantial structural part of the hotel 
building structure. Accordingly, X is not required to treat the amount 
paid to replace the wood flooring in the hotel lobby as a restoration 
under paragraph (i)(1)(vi) of this section.
    Example 26. Replacement of major component or substantial structural 
part; floors. Assume the same facts as Example 25 except that X decides 
to refresh the appearance of all the public areas of the hotel building 
by replacing the floors. To that end, X pays an amount to replace all 
the wood floors in all the public areas of the hotel building with new 
wood floors. The public areas include the lobby, the hallways, the 
meeting rooms, and other public rooms throughout the hotel interiors. 
The replacement wood floors in all the public areas comprise a large 
portion of the physical structure of the hotel building structure and 
perform a discrete and critical function in the operation of X's hotel 
building structure. Therefore, under paragraph (i)(4) of this section, 
replacement wood floors comprise a major component or substantial 
structural part of the building structure, and X must treat the amount 
paid to replace the floors as a restoration of the building structure 
under paragraph (i)(1)(vi) of this section. As a result, in accordance 
with paragraph (e)(2)(ii) of this section, X must treat the amounts paid 
to restore the building structure as an improvement to the building and 
must capitalize the amounts under paragraph (d)(2) of this section.

    (j) Capitalization of amounts to adapt property to a new or 
different use--(1) In general. Taxpayers must capitalize amounts paid to 
adapt a unit of property to a new or different use. In general, an 
amount is paid to adapt a unit of property to a new or different use if 
the adaptation is not consistent with the taxpayer's intended ordinary 
use of the unit of property at the time originally placed in service by 
the taxpayer.
    (2) Adapting buildings to new or different use. In the case of a 
building, an amount is paid to adapt the unit of property to a new or 
different use if it adapts to a new or different use any of the 
properties designated in paragraphs

[[Page 587]]

(e)(2)(ii), (e)(2)(iii)(B), (e)(2)(iv)(B), or (e)(2)(v)(B) of this 
section.
    (3) Examples. The following examples illustrate solely the rules of 
this paragraph (j). Even if capitalization is not required in an example 
under this paragraph (j), the amounts paid in the example may be subject 
to capitalization under a different provision of this section or another 
provision of the Internal Revenue Code (for example, section 263A). 
Unless otherwise stated, assume that X has not properly deducted a loss 
for any unit of property, asset, or component of a unit of property that 
is removed and replaced.

    Example 1. New or different use. X is a manufacturer and owns a 
manufacturing building that it has used for manufacturing since Year 1, 
when X placed it in service. In Year 30, X pays an amount to convert its 
manufacturing building into a showroom for its business. To convert the 
facility, X removes and replaces various structural components to 
provide a better layout for the showroom and its offices. X also 
repaints the building interiors as part of the conversion. None of the 
materials used are better than existing materials in the building. Under 
paragraph (e)(2)(ii) of this section, if the amount paid adapts the 
building structure to a new or different use, X must treat the amount as 
an improvement to the building. Under paragraph (j)(1) of this section, 
the amount paid to convert the manufacturing facility into a showroom 
adapts the building structure to a new or different use because the 
conversion is not consistent with X's intended ordinary use of the 
building structure at the time it was placed in service. Therefore, in 
accordance with paragraph (e)(2)(ii) of this section, X must treat the 
amount paid for the adaptation of the building structure as an amount 
that improves the building. Accordingly, X must capitalize the amount as 
an improvement under paragraph (d)(3) of this section.
    Example 2. Not a new or different use. X owns a building consisting 
of twenty retail spaces. The space was designed to be reconfigured; that 
is, adjoining spaces could be combined into one space. One of the 
tenants expands its occupancy to include two adjoining retail spaces. To 
facilitate the new lease, X pays an amount to remove the walls between 
the three retail spaces. Assume that the walls between spaces are part 
of the building and its structural components. Under paragraph 
(e)(2)(ii) of this section, if the amount paid adapts the buildings 
structure to a new or different use, X must treat the amount as an 
improvement to the building. Under paragraph (j)(1) of this section, the 
amount paid to convert three retail spaces into one larger space for an 
existing tenant does not adapt X's building structure to a new or 
different use because the combination of retail spaces is consistent 
with X's intended, ordinary use of the building structure. Therefore, 
the amount paid by X to remove the walls does not improve the building 
under paragraph (d)(3) of this section.
    Example 3. Not a new or different use. X owns a building consisting 
of twenty retail spaces. X decides to sell the building. In anticipation 
of selling the building, X pays an amount to repaint the interior walls 
and to refinish the hardwood floors. Under paragraph (e)(2)(ii) of this 
section, if the amount paid adapts the buildings structure to a new or 
different use, X must treat the amount as an improvement to the 
building. Preparing the building for sale does not constitute a new or 
different use for the building structure under paragraph (j)(1) of this 
section. Therefore, the amount paid to prepare the building structure 
for sale does not improve the building under paragraphs (d)(3) of this 
section.
    Example 4. New or different use. X owns a parcel of land on which it 
previously operated a manufacturing facility. Assume that the land is 
the unit of property. During the course of X's operation of the 
manufacturing facility, the land became contaminated with wastes from 
its manufacturing processes. X discontinues manufacturing operations at 
the site, and decides to sell the property to a developer that intends 
to use the property for residential housing. In anticipation of selling 
the land, X pays an amount to cleanup the land to a standard that is 
required for the land to be used for residential purposes. In addition, 
X pays an amount to regrade the land so that it can be used for 
residential purposes. Amounts that X pays to cleanup wastes that were 
discharged in the course of X's manufacturing operations do not adapt 
the land to a new or different use, regardless of the extent to which 
the land was cleaned. Therefore, X is not required to capitalize the 
amount paid for the cleanup under paragraph (j)(1) of this section. 
However, the amount paid to regrade the land so that it can be used for 
residential purposes adapts the land to a new or different use that is 
inconsistent with X's intended ordinary use of the property at the time 
it was placed in service. Accordingly, the amounts paid to regrade the 
land must be capitalized as improvements under paragraphs (j)(1) of this 
section.

    (k) Optional regulatory accounting method--(1) In general. This 
paragraph (k) provides an optional simplified method (the regulatory 
accounting method) for regulated taxpayers to determine whether amounts 
paid to repair, maintain, or improve tangible property are to be treated 
as deductible expenses or capital expenditures. A

[[Page 588]]

taxpayer that uses the regulatory accounting method described in 
paragraph (k)(3) of this section must use that method for property 
subject to regulatory accounting instead of determining whether amounts 
paid to repair, maintain, or improve property are capital expenditures 
or deductible expenses under the general principles of sections 162(a), 
212, and 263(a). Thus, the capitalization rules in paragraph (d) (and 
the routine maintenance safe harbor described in paragraph (g)) of this 
section do not apply to amounts paid to repair, maintain, or improve 
property subject to regulatory accounting by taxpayers that use the 
regulatory accounting method under this paragraph (k). However, section 
263A continues to apply to costs required to be capitalized to property 
produced by the taxpayer or to property acquired for resale.
    (2) Eligibility for regulatory accounting method. A taxpayer that is 
engaged in a trade or business in a regulated industry may use the 
regulatory accounting method under this paragraph (k). For purposes of 
this paragraph (k), a taxpayer in a regulated industry is a taxpayer 
that is subject to the regulatory accounting rules of the Federal Energy 
Regulatory Commission (FERC), the Federal Communications Commission 
(FCC), or the Surface Transportation Board (STB).
    (3) Description of regulatory accounting method. Under the 
regulatory accounting method, a taxpayer must follow its method of 
accounting for regulatory accounting purposes in determining whether an 
amount paid improves property under this section. Therefore, a taxpayer 
must capitalize for Federal income tax purposes an amount paid that is 
capitalized as an improvement for regulatory accounting purposes. A 
taxpayer must not capitalize for Federal income tax purposes under this 
section an amount paid that is not capitalized as an improvement for 
regulatory accounting purposes. A taxpayer that uses the regulatory 
accounting method must use that method for all of its tangible property 
that is subject to regulatory accounting rules. The method does not 
apply to tangible property that is not subject to regulatory accounting 
rules. The method also does not apply to property for the taxable years 
in which the taxpayer elected to apply the repair allowance under Sec. 
1.167(a)-11(d)(2).
    (4) Examples. The rules of this paragraph (k) are illustrated by the 
following examples:

    Example 1. Taxpayer subject to regulatory accounting rules of FERC. 
X is an electric utility company that operates a power plant that 
generates electricity and that owns and operates network assets to 
transmit and distribute the electricity to its customers. X is subject 
to the regulatory accounting rules of FERC and X chooses to use the 
regulatory accounting method under paragraph (k) of this section. X does 
not capitalize on its books and records for regulatory accounting 
purposes the cost of repairs and maintenance performed on its turbines 
or its network assets. Under the regulatory accounting method, X must 
not capitalize for Federal income tax purposes amounts paid for repairs 
performed on its turbines or its network assets.
    Example 2. Taxpayer not subject to regulatory accounting rules of 
FERC. X is an electric utility company that operates a power plant to 
generate electricity. X previously was subject to the regulatory 
accounting rules of FERC but, for various reasons, X is no longer 
required to use FERC's regulatory accounting rules. X cannot use the 
regulatory accounting method provided in this paragraph (k).
    Example 3. Taxpayer subject to regulatory accounting rules of FCC. X 
is a telecommunications company that is subject to the regulatory 
accounting rules of the FCC. X chooses to use the regulatory accounting 
method under this paragraph (k). X's assets include a telephone central 
office switching center, which contains numerous switches and various 
switching equipment. X capitalizes on its books and records for 
regulatory accounting purposes the cost of replacing each switch. Under 
the regulatory accounting method, X is required to capitalize for 
Federal income tax purposes amounts paid to replace each switch.
    Example 4. Taxpayer subject to regulatory accounting rules of STB. X 
is a Class I railroad that is subject to the regulatory accounting rules 
of the STB. X chooses to use the regulatory accounting method under this 
paragraph (k). X capitalizes on its books and records for regulatory 
accounting purposes the cost of locomotive rebuilds. Under the 
regulatory accounting method, X is required to capitalize for federal 
income tax purposes amounts paid to rebuild its locomotives.

    (l) Methods of accounting authorized in published guidance. A 
taxpayer may use a repair allowance method of accounting or any other 
method of accounting

[[Page 589]]

that is authorized in published guidance in the Federal Register or in 
the Internal Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this 
chapter).
    (m) Treatment of capital expenditures. Amounts required to be 
capitalized under this section are capital expenditures and must be 
taken into account through a charge to capital account or basis, or in 
the case of property that is inventory in the hands of a taxpayer, 
through inclusion in inventory costs. See section 263A for the treatment 
of direct and indirect costs of producing property or acquiring property 
for resale.
    (n) Recovery of capitalized amounts. Amounts that are capitalized 
under this section are recovered through depreciation, cost of goods 
sold, or by an adjustment to basis at the time the property is placed in 
service, sold, used, or otherwise disposed of by the taxpayer. Cost 
recovery is determined by the applicable Internal Revenue Code and 
regulation provisions relating to the use, sale, or disposition of 
property.
    (o) Accounting method changes. Except as otherwise provided in this 
section, a change to comply with this section is a change in method of 
accounting to which the provisions of sections 446 and 481, and the 
regulations thereunder apply. A taxpayer seeking to change to a method 
of accounting permitted in this section must secure the consent of the 
Commissioner in accordance with Sec. 1.446-1(e) and follow the 
administrative procedures issued under Sec. 1.446-1(e)(3)(ii) for 
obtaining the Commissioner's consent to change its accounting method.
    (p) Effective/applicability date--(1) In general. This section 
applies to taxable years beginning on or after January 1, 2014. Section 
1.263(a)-3 as contained in 26 CFR part 1 edition revised as of April 1, 
2011, applies to taxable years beginning before January 1, 2014.
    (2) Optional early application. A taxpayer may choose to apply this 
section to taxable years beginning on or after January 1, 2012.
    (q) Expiration date. The applicability of this section expires on 
December 23, 2014.

[T.D. 9564, 76 FR 81107, Dec. 27, 2011, as amended at 77 FR 18688, Mar. 
28, 2012; 77 FR 74585, Dec. 17, 2012]

    Editorial Note: At 77 FR 18688, Mar. 28, 2012, Sec. 1.263(a)-3T was 
amended; however, the amendment could not be incorporated due to the 
inaccurate amendatory instruction.



Sec. 1.263(a)-4  Amounts paid to acquire or create intangibles.

    (a) Overview. This section provides rules for applying section 
263(a) to amounts paid to acquire or create intangibles. Except to the 
extent provided in paragraph (d)(8) of this section, the rules provided 
by this section do not apply to amounts paid to acquire or create 
tangible assets. Paragraph (b) of this section provides a general 
principle of capitalization. Paragraphs (c) and (d) of this section 
identify intangibles for which capitalization is specifically required 
under the general principle. Paragraph (e) of this section provides 
rules for determining the extent to which taxpayers must capitalize 
transaction costs. Paragraph (f) of this section provides a 12-month 
rule intended to simplify the application of the general principle to 
certain payments that create benefits of a brief duration. Additional 
rules and examples relating to these provisions are provided in 
paragraphs (g) through (n) of this section. The applicability date of 
the rules in this section is provided in paragraph (o) of this section. 
Paragraph (p) of this section provides rules applicable to changes in 
methods of accounting made to comply with this section.
    (b) Capitalization with respect to intangibles--(1) In general. 
Except as otherwise provided in this section, a taxpayer must 
capitalize--
    (i) An amount paid to acquire an intangible (see paragraph (c) of 
this section);
    (ii) An amount paid to create an intangible described in paragraph 
(d) of this section;
    (iii) An amount paid to create or enhance a separate and distinct 
intangible asset within the meaning of paragraph (b)(3) of this section;

[[Page 590]]

    (iv) An amount paid to create or enhance a future benefit identified 
in published guidance in the Federal Register or in the Internal Revenue 
Bulletin (see Sec. 601.601(d)(2)(ii) of this chapter) as an intangible 
for which capitalization is required under this section; and
    (v) An amount paid to facilitate (within the meaning of paragraph 
(e)(1) of this section) an acquisition or creation of an intangible 
described in paragraph (b)(1)(i), (ii), (iii) or (iv) of this section.
    (2) Published guidance. Any published guidance identifying a future 
benefit as an intangible for which capitalization is required under 
paragraph (b)(1)(iv) of this section applies only to amounts paid on or 
after the date of publication of the guidance.
    (3) Separate and distinct intangible asset--(i) Definition. The term 
separate and distinct intangible asset means a property interest of 
ascertainable and measurable value in money's worth that is subject to 
protection under applicable State, Federal or foreign law and the 
possession and control of which is intrinsically capable of being sold, 
transferred or pledged (ignoring any restrictions imposed on 
assignability) separate and apart from a trade or business. In addition, 
for purposes of this section, a fund (or similar account) is treated as 
a separate and distinct intangible asset of the taxpayer if amounts in 
the fund (or account) may revert to the taxpayer. The determination of 
whether a payment creates a separate and distinct intangible asset is 
made based on all of the facts and circumstances existing during the 
taxable year in which the payment is made.
    (ii) Creation or termination of contract rights. Amounts paid to 
another party to create, originate, enter into, renew or renegotiate an 
agreement with that party that produces rights or benefits for the 
taxpayer (and amounts paid to facilitate the creation, origination, 
enhancement, renewal or renegotiation of such an agreement) are treated 
as amounts that do not create (or facilitate the creation of) a separate 
and distinct intangible asset within the meaning of this paragraph 
(b)(3). Further, amounts paid to another party to terminate (or 
facilitate the termination of) an agreement with that party are treated 
as amounts that do not create a separate and distinct intangible asset 
within the meaning of this paragraph (b)(3). See paragraphs (d)(2), 
(d)(6), and (d)(7) of this section for rules that specifically require 
capitalization of amounts paid to create or terminate certain 
agreements.
    (iii) Amounts paid in performing services. Amounts paid in 
performing services under an agreement are treated as amounts that do 
not create a separate and distinct intangible asset within the meaning 
of this paragraph (b)(3), regardless of whether the amounts result in 
the creation of an income stream under the agreement.
    (iv) Creation of computer software. Except as otherwise provided in 
the Internal Revenue Code, the regulations thereunder, or other 
published guidance in the Federal Register or in the Internal Revenue 
Bulletin (see Sec. 601.601(d)(2)(ii) of this chapter), amounts paid to 
develop computer software are treated as amounts that do not create a 
separate and distinct intangible asset within the meaning of this 
paragraph (b)(3).
    (v) Creation of package design. Amounts paid to develop a package 
design are treated as amounts that do not create a separate and distinct 
intangible asset within the meaning of this paragraph (b)(3). For 
purposes of this section, the term package design means the specific 
graphic arrangement or design of shapes, colors, words, pictures, 
lettering, and other elements on a given product package, or the design 
of a container with respect to its shape or function.
    (4) Coordination with other provisions of the Internal Revenue 
Code--(i) In general. Nothing in this section changes the treatment of 
an amount that is specifically provided for under any other provision of 
the Internal Revenue Code (other than section 162(a) or 212) or the 
regulations thereunder.
    (ii) Example. The following example illustrates the rule of this 
paragraph (b)(4):

    Example. On January 1, 2004, G enters into an interest rate swap 
agreement with unrelated counterparty H under which, for a term of five 
years, G is obligated to make annual

[[Page 591]]

payments at 11% and H is obligated to make annual payments at LIBOR on a 
notional principal amount of $100 million. At the time G and H enter 
into this swap agreement, the rate for similar on-market swaps is LIBOR 
to 10%. To compensate for this difference, on January 1, 2004, H pays G 
a yield adjustment fee of $3,790,786. This yield adjustment fee 
constitutes an amount paid to create an intangible and would be 
capitalized under paragraph (d)(2) of this section. However, because the 
yield adjustment fee is a nonperiodic payment on a notional principal 
contract as defined in Sec. 1.446-3(c), the treatment of this fee is 
governed by Sec. 1.446-3 and not this section.

    (c) Acquired intangibles--(1) In general. A taxpayer must capitalize 
amounts paid to another party to acquire any intangible from that party 
in a purchase or similar transaction. Examples of intangibles within the 
scope of this paragraph (c) include, but are not limited to, the 
following (if acquired from another party in a purchase or similar 
transaction):
    (i) An ownership interest in a corporation, partnership, trust, 
estate, limited liability company, or other entity.
    (ii) A debt instrument, deposit, stripped bond, stripped coupon 
(including a servicing right treated for federal income tax purposes as 
a stripped coupon), regular interest in a REMIC or FASIT, or any other 
intangible treated as debt for federal income tax purposes.
    (iii) A financial instrument, such as--
    (A) A notional principal contract;
    (B) A foreign currency contract;
    (C) A futures contract;
    (D) A forward contract (including an agreement under which the 
taxpayer has the right and obligation to provide or to acquire property 
(or to be compensated for such property, regardless of whether the 
taxpayer provides or acquires the property));
    (E) An option (including an agreement under which the taxpayer has 
the right to provide or to acquire property (or to be compensated for 
such property, regardless of whether the taxpayer provides or acquires 
the property)); and
    (F) Any other financial derivative.
    (iv) An endowment contract, annuity contract, or insurance contract.
    (v) Non-functional currency.
    (vi) A lease.
    (vii) A patent or copyright.
    (viii) A franchise, trademark or tradename (as defined in Sec. 
1.197-2(b)(10)).
    (ix) An assembled workforce (as defined in Sec. 1.197-2(b)(3)).
    (x) Goodwill (as defined in Sec. 1.197-2(b)(1)) or going concern 
value (as defined in Sec. 1.197-2(b)(2)).
    (xi) A customer list.
    (xii) A servicing right (for example, a mortgage servicing right 
that is not treated for Federal income tax purposes as a stripped 
coupon).
    (xiii) A customer-based intangible (as defined in Sec. 1.197-
2(b)(6)) or supplier-based intangible (as defined in Sec. 1.197-
2(b)(7)).
    (xiv) Computer software.
    (xv) An agreement providing either party the right to use, possess 
or sell an intangible described in paragraphs (c)(1)(i) through (v) of 
this section.
    (2) Readily available software. An amount paid to obtain a 
nonexclusive license for software that is (or has been) readily 
available to the general public on similar terms and has not been 
substantially modified (within the meaning of Sec. 1.197-2(c)(4)) is 
treated for purposes of this paragraph (c) as an amount paid to another 
party to acquire an intangible from that party in a purchase or similar 
transaction.
    (3) Intangibles acquired from an employee. Amounts paid to an 
employee to acquire an intangible from that employee are not required to 
be capitalized under this section if the amounts are includible in the 
employee's income in connection with the performance of services under 
section 61 or 83. For purposes of this section, whether an individual is 
an employee is determined in accordance with the rules contained in 
section 3401(c) and the regulations thereunder.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (c):

    Example 1. Debt instrument. X corporation, a commercial bank, 
purchases a portfolio of existing loans from Y corporation, another 
financial institution. X pays Y $2,000,000 in exchange for the 
portfolio. The $2,000,000 paid to Y constitutes an amount paid to 
acquire an intangible from Y and must be capitalized.
    Example 2. Option. W corporation owns all of the outstanding stock 
of X corporation. Y corporation holds a call option entitling it to

[[Page 592]]

purchase from W all of the outstanding stock of X at a certain price per 
share. Z corporation acquires the call option from Y in exchange for 
$5,000,000. The $5,000,000 paid to Y constitutes an amount paid to 
acquire an intangible from Y and must be capitalized.
    Example 3. Ownership interest in a corporation. Same as Example 2, 
but assume Z exercises its option and purchases from W all of the 
outstanding stock of X in exchange for $100,000,000. The $100,000,000 
paid to W constitutes an amount paid to acquire an intangible from W and 
must be capitalized.
    Example 4. Customer list. N corporation, a retailer, sells its 
products through its catalog and mail order system. N purchases a 
customer list from R corporation. N pays R $100,000 in exchange for the 
customer list. The $100,000 paid to R constitutes an amount paid to 
acquire an intangible from R and must be capitalized.
    Example 5. Goodwill. Z corporation pays W corporation $10,000,000 to 
purchase all of the assets of W in a transaction that constitutes an 
applicable asset acquisition under section 1060(c). Of the $10,000,000 
consideration paid in the transaction, $9,000,000 is allocable to 
tangible assets purchased from W and $1,000,000 is allocable to 
goodwill. The $1,000,000 allocable to goodwill constitutes an amount 
paid to W to acquire an intangible from W and must be capitalized.

    (d) Created intangibles--(1) In general. Except as provided in 
paragraph (f) of this section (relating to the 12-month rule), a 
taxpayer must capitalize amounts paid to create an intangible described 
in this paragraph (d). The determination of whether an amount is paid to 
create an intangible described in this paragraph (d) is to be made based 
on all of the facts and circumstances, disregarding distinctions between 
the labels used in this paragraph (d) to describe the intangible and the 
labels used by the taxpayer and other parties to the transaction.
    (2) Financial interests--(i) In general. A taxpayer must capitalize 
amounts paid to another party to create, originate, enter into, renew or 
renegotiate with that party any of the following financial interests, 
whether or not the interest is regularly traded on an established 
market:
    (A) An ownership interest in a corporation, partnership, trust, 
estate, limited liability company, or other entity.
    (B) A debt instrument, deposit, stripped bond, stripped coupon 
(including a servicing right treated for federal income tax purposes as 
a stripped coupon), regular interest in a REMIC or FASIT, or any other 
intangible treated as debt for Federal income tax purposes.
    (C) A financial instrument, such as--
    (1) A letter of credit;
    (2) A credit card agreement;
    (3) A notional principal contract;
    (4) A foreign currency contract;
    (5) A futures contract;
    (6) A forward contract (including an agreement under which the 
taxpayer has the right and obligation to provide or to acquire property 
(or to be compensated for such property, regardless of whether the 
taxpayer provides or acquires the property));
    (7) An option (including an agreement under which the taxpayer has 
the right to provide or to acquire property (or to be compensated for 
such property, regardless of whether the taxpayer provides or acquires 
the property)); and
    (8) Any other financial derivative.
    (D) An endowment contract, annuity contract, or insurance contract 
that has or may have cash value.
    (E) Non-functional currency.
    (F) An agreement providing either party the right to use, possess or 
sell a financial interest described in this paragraph (d)(2).
    (ii) Amounts paid to create, originate, enter into, renew or 
renegotiate. An amount paid to another party is not paid to create, 
originate, enter into, renew or renegotiate a financial interest with 
that party if the payment is made with the mere hope or expectation of 
developing or maintaining a business relationship with that party and is 
not contingent on the origination, renewal or renegotiation of a 
financial interest with that party.
    (iii) Renegotiate. A taxpayer is treated as renegotiating a 
financial interest if the terms of the financial interest are modified. 
A taxpayer also is treated as renegotiating a financial interest if the 
taxpayer enters into a new financial interest with the same party (or 
substantially the same parties) to a terminated financial interest, the 
taxpayer could not cancel the terminated financial interest without the 
consent of the other party (or parties), and the other party (or 
parties) would not have

[[Page 593]]

consented to the cancellation unless the taxpayer entered into the new 
financial interest. A taxpayer is treated as unable to cancel a 
financial interest without the consent of the other party (or parties) 
if, under the terms of the financial interest, the taxpayer is subject 
to a termination penalty and the other party (or parties) to the 
financial interest modifies the terms of the penalty.
    (iv) Coordination with other provisions of this paragraph (d). An 
amount described in this paragraph (d)(2) that is also described 
elsewhere in paragraph (d) of this section is treated as described only 
in this paragraph (d)(2).
    (v) Coordination with Sec. 1.263(a)-5. See Sec. 1.263(a)-5 for the 
treatment of borrowing costs and the treatment of amounts paid by an 
option writer.
    (vi) Examples. The following examples illustrate the rules of this 
paragraph (d)(2):

    Example 1. Loan. X corporation, a commercial bank, makes a loan to A 
in the principal amount of $250,000. The $250,000 principal amount of 
the loan paid to A constitutes an amount paid to another party to create 
a debt instrument with that party under paragraph (d)(2)(i)(B) of this 
section and must be capitalized.
    Example 2. Option. W corporation owns all of the outstanding stock 
of X corporation. Y corporation pays W $1,000,000 in exchange for W's 
grant of a 3-year call option to Y permitting Y to purchase all of the 
outstanding stock of X at a certain price per share. Y's payment of 
$1,000,000 to W constitutes an amount paid to another party to create an 
option with that party under paragraph (d)(2)(i)(C)(7) of this section 
and must be capitalized.
    Example 3. Partnership interest. Z corporation pays $10,000 to P, a 
partnership, in exchange for an ownership interest in P. Z's payment of 
$10,000 to P constitutes an amount paid to another party to create an 
ownership interest in a partnership with that party under paragraph 
(d)(2)(i)(A) of this section and must be capitalized.
    Example 4. Take or pay contract. Q corporation, a producer of 
natural gas, pays $1,000,000 to R during 2005 to induce R corporation to 
enter into a 5-year ``take or pay'' gas purchase contract. Under the 
contract, R is liable to pay for a specified minimum amount of gas, 
whether or not R takes such gas. Q's payment of $1,000,000 is an amount 
paid to another party to induce that party to enter into an agreement 
providing Q the right and obligation to provide property or be 
compensated for such property (regardless of whether the property is 
provided) under paragraph (d)(2)(i)(C)(6) of this section and must be 
capitalized.
    Example 5. Agreement to provide property. P corporation pays R 
corporation $1,000,000 in exchange for R's agreement to purchase 1,000 
units of P's product at any time within the three succeeding calendar 
years. The agreement describes P's $1,000,000 as a sales discount. P's 
$1,000,000 payment is an amount paid to induce R to enter into an 
agreement providing P the right and obligation to provide property under 
paragraph (d)(2)(i)(C)(6) of this section and must be capitalized.
    Example 6. Customer incentive payment. S corporation, a computer 
manufacturer, seeks to develop a business relationship with V 
corporation, a computer retailer. As an incentive to encourage V to 
purchase computers from S, S enters into an agreement with V under which 
S agrees that, if V purchases $20,000,000 of computers from S within 3 
years from the date of the agreement, S will pay V $2,000,000 on the 
date that V reaches the $20,000,000 threshold. V reaches the $20,000,000 
threshold during the third year of the agreement, and S pays V 
$2,000,000. S is not required to capitalize its payment to V under this 
paragraph (d)(2) because the payment does not provide S the right or 
obligation to provide property and does not create a separate and 
distinct intangible asset for S within the meaning of paragraph 
(b)(3)(i) of this section.

    (3) Prepaid expenses--(i) In general. A taxpayer must capitalize 
prepaid expenses.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (d)(3):

    Example 1. Prepaid insurance. N corporation, an accrual method 
taxpayer, pays $10,000 to an insurer to obtain three years of coverage 
under a property and casualty insurance policy. The $10,000 is a prepaid 
expense and must be capitalized under this paragraph (d)(3). Paragraph 
(d)(2) of this section does not apply to the payment because the policy 
has no cash value.
    Example 2. Prepaid rent. X corporation, a cash method taxpayer, 
enters into a 24-month lease of office space. At the time of the lease 
signing, X prepays $240,000. No other amounts are due under the lease. 
The $240,000 is a prepaid expense and must be capitalized under this 
paragraph (d)(3).

    (4) Certain memberships and privileges--(i) In general. A taxpayer 
must capitalize amounts paid to an organization to obtain, renew, 
renegotiate, or upgrade a membership or privilege from that 
organization. A taxpayer is not required to capitalize under this

[[Page 594]]

paragraph (d)(4) an amount paid to obtain, renew, renegotiate or upgrade 
certification of the taxpayer's products, services, or business 
processes.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (d)(4):

    Example 1. Hospital privilege. B, a physician, pays $10,000 to Y 
corporation to obtain lifetime staff privileges at a hospital operated 
by Y. B must capitalize the $10,000 payment under this paragraph (d)(4).
    Example 2. Initiation fee. X corporation pays a $50,000 initiation 
fee to obtain membership in a trade association. X must capitalize the 
$50,000 payment under this paragraph (d)(4).
    Example 3. Product rating. V corporation, an automobile 
manufacturer, pays W corporation, a national quality ratings 
association, $100,000 to conduct a study and provide a rating of the 
quality and safety of a line of V's automobiles. V's payment is an 
amount paid to obtain a certification of V's product and is not required 
to be capitalized under this paragraph (d)(4).
    Example 4. Business process certification. Z corporation, a 
manufacturer, seeks to obtain a certification that its quality control 
standards meet a series of international standards known as ISO 9000. Z 
pays $50,000 to an independent registrar to obtain a certification from 
the registrar that Z's quality management system conforms to the ISO 
9000 standard. Z's payment is an amount paid to obtain a certification 
of Z's business processes and is not required to be capitalized under 
this paragraph (d)(4).

    (5) Certain rights obtained from a governmental agency--(i) In 
general. A taxpayer must capitalize amounts paid to a governmental 
agency to obtain, renew, renegotiate, or upgrade its rights under a 
trademark, trade name, copyright, license, permit, franchise, or other 
similar right granted by that governmental agency.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (d)(5):

    Example 1. Business license. X corporation pays $15,000 to state Y 
to obtain a business license that is valid indefinitely. Under this 
paragraph (d)(5), the amount paid to state Y is an amount paid to a 
government agency for a right granted by that agency. Accordingly, X 
must capitalize the $15,000 payment.
    Example 2. Bar admission. A, an individual, pays $1,000 to an agency 
of state Z to obtain a license to practice law in state Z that is valid 
indefinitely, provided A adheres to the requirements governing the 
practice of law in state Z. Under this paragraph (d)(5), the amount paid 
to state Z is an amount paid to a government agency for a right granted 
by that agency. Accordingly, A must capitalize the $1,000 payment.

    (6) Certain contract rights--(i) In general. Except as otherwise 
provided in this paragraph (d)(6), a taxpayer must capitalize amounts 
paid to another party to create, originate, enter into, renew or 
renegotiate with that party--
    (A) An agreement providing the taxpayer the right to use tangible or 
intangible property or the right to be compensated for the use of 
tangible or intangible property;
    (B) An agreement providing the taxpayer the right to provide or to 
receive services (or the right to be compensated for services regardless 
of whether the taxpayer provides such services);
    (C) A covenant not to compete or an agreement having substantially 
the same effect as a covenant not to compete (except, in the case of an 
agreement that requires the performance of services, to the extent that 
the amount represents reasonable compensation for services actually 
rendered);
    (D) An agreement not to acquire additional ownership interests in 
the taxpayer; or
    (E) An agreement providing the taxpayer (as the covered party) with 
an annuity, an endowment, or insurance coverage.
    (ii) Amounts paid to create, originate, enter into, renew or 
renegotiate. An amount paid to another party is not paid to create, 
originate, enter into, renew or renegotiate an agreement with that party 
if the payment is made with the mere hope or expectation of developing 
or maintaining a business relationship with that party and is not 
contingent on the origination, renewal or renegotiation of an agreement 
with that party.
    (iii) Renegotiate. A taxpayer is treated as renegotiating an 
agreement if the terms of the agreement are modified. A taxpayer also is 
treated as renegotiating an agreement if the taxpayer enters into a new 
agreement with the same party (or substantially the same parties) to a 
terminated agreement, the taxpayer could not cancel the terminated 
agreement without the consent of the other party (or parties), and the 
other party (or parties) would not

[[Page 595]]

have consented to the cancellation unless the taxpayer entered into the 
new agreement. A taxpayer is treated as unable to cancel an agreement 
without the consent of the other party (or parties) if, under the terms 
of the agreement, the taxpayer is subject to a termination penalty and 
the other party (or parties) to the agreement modifies the terms of the 
penalty.
    (iv) Right. An agreement does not provide the taxpayer a right to 
use property or to provide or receive services if the agreement may be 
terminated at will by the other party (or parties) to the agreement 
before the end of the period prescribed by paragraph (f)(1) of this 
section. An agreement is not terminable at will if the other party (or 
parties) to the agreement is economically compelled not to terminate the 
agreement until the end of the period prescribed by paragraph (f)(1) of 
this section. All of the facts and circumstances will be considered in 
determining whether the other party (or parties) to an agreement is 
economically compelled not to terminate the agreement. An agreement also 
does not provide the taxpayer the right to provide services if the 
agreement merely provides that the taxpayer will stand ready to provide 
services if requested, but places no obligation on another person to 
request or pay for the taxpayer's services.
    (v) De minimis amounts. A taxpayer is not required to capitalize 
amounts paid to another party (or parties) to create, originate, enter 
into, renew or renegotiate with that party (or those parties) an 
agreement described in paragraph (d)(6)(i) of this section if the 
aggregate of all amounts paid to that party (or those parties) with 
respect to the agreement does not exceed $5,000. If the aggregate of all 
amounts paid to the other party (or parties) with respect to that 
agreement exceeds $5,000, then all amounts must be capitalized. For 
purposes of this paragraph (d)(6), an amount paid in the form of 
property is valued at its fair market value at the time of the payment. 
In general, a taxpayer must determine whether the rules of this 
paragraph (d)(6)(v) apply by accounting for the specific amounts paid 
with respect to each agreement. However, a taxpayer that reasonably 
expects to create, originate, enter into, renew or renegotiate at least 
25 similar agreements during the taxable year may establish a pool of 
agreements for purposes of determining the amounts paid with respect to 
the agreements in the pool. Under this pooling method, the amount paid 
with respect to each agreement included in the pool is equal to the 
average amount paid with respect to all agreements included in the pool. 
A taxpayer computes the average amount paid with respect to all 
agreements included in the pool by dividing the sum of all amounts paid 
with respect to all agreements included in the pool by the number of 
agreements included in the pool. See paragraph (h) of this section for 
additional rules relating to pooling.
    (vi) Exception for lessee construction allowances. Paragraph 
(d)(6)(i) of this section does not apply to amounts paid by a lessor to 
a lessee as a construction allowance to the extent the lessee expends 
the amount for the tangible property that is owned by the lessor for 
Federal income tax purposes (see, for example, section 110).
    (vii) Examples. The following examples illustrate the rules of this 
paragraph (d)(6):

    Example 1. New lease agreement. V seeks to lease commercial property 
in a prominent downtown location of city R. V pays Z, the owner of the 
commercial property, $50,000 in exchange for Z entering into a 10-year 
lease with V. V's payment is an amount paid to another party to enter 
into an agreement providing V the right to use tangible property. 
Because the $50,000 payment exceeds $5,000, no portion of the amount 
paid to Z is de minimis for purposes of paragraph (d)(6)(v) of this 
section. Under paragraph (d)(6)(i)(A) of this section, V must capitalize 
the entire $50,000 payment.
    Example 2. Modification of lease agreement. Partnership Y leases a 
piece of equipment for use in its business from Z corporation. When the 
lease has a remaining term of 3 years, Y requests that Z modify the 
existing lease by extending the remaining term by 5 years. Y pays 
$50,000 to Z in exchange for Z's agreement to modify the existing lease. 
Y's payment of $50,000 is an amount paid to another party to renegotiate 
an agreement providing Y the right to use property. Because the $50,000 
payment exceeds $5,000, no portion of the amount paid to Z is de minimis 
for purposes of paragraph (d)(6)(v) of this section. Under paragraph 
(d)(6)(i)(A) of this section, Y must capitalize the entire $50,000 
payment.

[[Page 596]]

    Example 3. Modification of lease agreement. In 2004, R enters into a 
5-year, non-cancelable lease of a mainframe computer for use in its 
business. R subsequently determines that the mainframe computer that R 
is leasing is no longer adequate for its needs. In 2006, R and P 
corporation (the lessor) agree to terminate the 2004 lease and to enter 
into a new 5-year lease for a different and more powerful mainframe 
computer. R pays P a $75,000 early termination fee. P would not have 
agreed to terminate the 2004 lease unless R agreed to enter into the 
2006 lease. R's payment of $75,000 is an amount paid to another party to 
renegotiate an agreement providing R the right to use property. Because 
the $75,000 payment exceeds $5,000, no portion of the amount paid to P 
is de minimis for purposes of paragraph (d)(6)(v) of this section. Under 
paragraph (d)(6)(i)(A) of this section, R must capitalize the entire 
$75,000 payment.
    Example 4. Modification of lease agreement. Same as Example 3, 
except the 2004 lease agreement allows R to terminate the lease at any 
time subject to a $75,000 early termination fee. Because R can terminate 
the lease without P's approval, R's payment of $75,000 is not an amount 
paid to another party to renegotiate an agreement. Accordingly, R is not 
required to capitalize the $75,000 payment under this paragraph (d)(6).
    Example 5. Modification of lease agreement. Same as Example 4, 
except P agreed to reduce the early termination fee to $60,000. Because 
R did not pay an amount to renegotiate the early termination fee, R's 
payment of $60,000 is not an amount paid to another party to renegotiate 
an agreement. Accordingly, R is not required to capitalize the $60,000 
payment under this paragraph (d)(6).
    Example 6. Covenant not to compete. R corporation enters into an 
agreement with A, an individual, that prohibits A from competing with R 
for a period of three years. To encourage A to enter into the agreement, 
R agrees to pay A $100,000 upon the signing of the agreement. R's 
payment is an amount paid to another party to enter into a covenant not 
to compete. Because the $100,000 payment exceeds $5,000, no portion of 
the amount paid to A is de minimis for purposes of paragraph (d)(6)(v) 
of this section. Under paragraph (d)(6)(i)(C) of this section, R must 
capitalize the entire $100,000 payment.
    Example 7. Standstill agreement. During 2004 through 2005, X 
corporation acquires a large minority interest in the stock of Z 
corporation. To ensure that X does not take control of Z, Z pays X 
$5,000,000 for a standstill agreement under which X agrees not to 
acquire any more stock in Z for a period of 10 years. Z's payment is an 
amount paid to another party to enter into an agreement not to acquire 
additional ownership interests in Z. Because the $5,000,000 payment 
exceeds $5,000, no portion of the amount paid to X is de minimis for 
purposes of paragraph (d)(6)(v) of this section. Under paragraph 
(d)(6)(i)(D) of this section, Z must capitalize the entire $5,000,000 
payment.
    Example 8. Signing bonus. Employer B pays a $25,000 signing bonus to 
employee C to induce C to come to work for B. C can leave B's employment 
at any time to work for a competitor of B and is not required to repay 
the $25,000 bonus to B. Because C is not economically compelled to 
continue his employment with B, B's payment does not provide B the right 
to receive services from C. Accordingly, B is not required to capitalize 
the $25,000 payment.
    Example 9. Renewal. In 2000, M corporation and N corporation enter 
into a 5-year agreement that gives M the right to manage N's investment 
portfolio. In 2005, N has the option of renewing the agreement for 
another three years. During 2004, M pays $10,000 to send several 
employees of N to an investment seminar. M pays the $10,000 to help 
develop and maintain its business relationship with N with the 
expectation that N will renew its agreement with M in 2005. Because M's 
payment is not contingent on N agreeing to renew the agreement, M's 
payment is not an amount paid to renew an agreement under paragraph 
(d)(6)(ii) of this section and is not required to be capitalized.
    Example 10. De minimis payments. X corporation is engaged in the 
business of providing wireless telecommunications services to customers. 
To induce customer B to enter into a 3-year non-cancelable 
telecommunications contract, X provides B with a free wireless 
telephone. The fair market value of the wireless telephone is $300 at 
the time it is provided to B. X's provision of a wireless telephone to B 
is an amount paid to B to induce B to enter into an agreement providing 
X the right to provide services, as described in paragraph (d)(6)(i)(B) 
of this section. Because the amount of the inducement is $300, the 
amount of the inducement is de minimis under paragraph (d)(6)(v) of this 
section. Accordingly, X is not required to capitalize the amount of the 
inducement provided to B.

    (7) Certain contract terminations--(i) In general. A taxpayer must 
capitalize amounts paid to another party to terminate--
    (A) A lease of real or tangible personal property between the 
taxpayer (as lessor) and that party (as lessee);
    (B) An agreement that grants that party the exclusive right to 
acquire or use the taxpayer's property or services or to conduct the 
taxpayer's business (other than an intangible described in paragraph 
(c)(1)(i) through (iv) of this

[[Page 597]]

section or a financial interest described in paragraph (d)(2) of this 
section); or
    (C) An agreement that prohibits the taxpayer from competing with 
that party or from acquiring property or services from a competitor of 
that party.
    (ii) Certain break-up fees. Paragraph (d)(7)(i) of this section does 
not apply to the termination of a transaction described in Sec. 
1.263(a)-5(a) (relating to an acquisition of a trade or business, a 
change in the capital structure of a business entity, and certain other 
transactions). See Sec. 1.263(a)-5(c)(8) for rules governing the 
treatment of amounts paid to terminate a transaction to which that 
section applies.
    (iii) Examples. The following examples illustrate the rules of this 
paragraph (d)(7):

    Example 1. Termination of exclusive license agreement. On July 1, 
2005, N enters into a license agreement with R corporation under which N 
grants R the exclusive right to manufacture and distribute goods using 
N's design and trademarks for a period of 10 years. On June 30, 2007, N 
pays R $5,000,000 in exchange for R's agreement to terminate the 
exclusive license agreement. N's payment to terminate its license 
agreement with R constitutes a payment to terminate an exclusive license 
to use the taxpayer's property, as described in paragraph (d)(7)(i)(B) 
of this section. Accordingly, N must capitalize its $5,000,000 payment 
to R.
    Example 2. Termination of exclusive distribution agreement. On March 
1, 2005, L, a manufacturer, enters into an agreement with M granting M 
the right to be the sole distributor of L's products in state X for 10 
years. On July 1, 2008, L pays M $50,000 in exchange for M's agreement 
to terminate the distribution agreement. L's payment to terminate its 
agreement with M constitutes a payment to terminate an exclusive right 
to acquire L's property, as described in paragraph (d)(7)(i)(B) of this 
section. Accordingly, L must capitalize its $50,000 payment to M.
    Example 3. Termination of covenant not to compete. On February 1, 
2005, Y corporation enters into a covenant not to compete with Z 
corporation that prohibits Y from competing with Z in city V for a 
period of 5 years. On January 31, 2007, Y pays Z $1,000,000 in exchange 
for Z's agreement to terminate the covenant not to compete. Y's payment 
to terminate the covenant not to compete with Z constitutes a payment to 
terminate an agreement that prohibits Y from competing with Z, as 
described in paragraph (d)(7)(i)(C) of this section. Accordingly, Y must 
capitalize its $1,000,000 payment to Z.
    Example 4. Termination of merger agreement. N corporation and U 
corporation enter into an agreement under which N agrees to merge into 
U. Subsequently, N pays U $10,000,000 to terminate the merger agreement. 
As provided in paragraph (d)(7)(ii) of this section, N's $10,000,000 
payment to terminate the merger agreement with U is not required to be 
capitalized under this paragraph (d)(7). In addition, N's $10,000,000 
does not create a separate and distinct intangible asset for N within 
the meaning of paragraph (b)(3)(i) of this section. (See Sec. 1.263(a)-
5 for additional rules regarding termination of merger agreements).

    (8) Certain benefits arising from the provision, production, or 
improvement of real property--(i) In general. A taxpayer must capitalize 
amounts paid for real property if the taxpayer transfers ownership of 
the real property to another person (except to the extent the real 
property is sold for fair market value) and if the real property can 
reasonably be expected to produce significant economic benefits to the 
taxpayer after the transfer. A taxpayer also must capitalize amounts 
paid to produce or improve real property owned by another (except to the 
extent the taxpayer is selling services at fair market value to produce 
or improve the real property) if the real property can reasonably be 
expected to produce significant economic benefits for the taxpayer.
    (ii) Exclusions. A taxpayer is not required to capitalize an amount 
under paragraph (d)(8)(i) of this section if the taxpayer transfers real 
property or pays an amount to produce or improve real property owned by 
another in exchange for services, the purchase or use of property, or 
the creation of an intangible described in paragraph (d) of this section 
(other than in this paragraph (d)(8)). The preceding sentence does not 
apply to the extent the taxpayer does not receive fair market value 
consideration for the real property that is relinquished or for the 
amounts that are paid by the taxpayer to produce or improve real 
property owned by another.
    (iii) Real property. For purposes of this paragraph (d)(8), real 
property includes property that is affixed to real property and that 
will ordinarily remain affixed for an indefinite period of time, such as 
roads, bridges, tunnels,

[[Page 598]]

pavements, wharves and docks, breakwaters and sea walls, elevators, 
power generation and transmission facilities, and pollution control 
facilities.
    (iv) Impact fees and dedicated improvements. Paragraph (d)(8)(i) of 
this section does not apply to amounts paid to satisfy one-time charges 
imposed by a State or local government against new development (or 
expansion of existing development) to finance specific offsite capital 
improvements for general public use that are necessitated by the new or 
expanded development. In addition, paragraph (d)(8)(i) of this section 
does not apply to amounts paid for real property or improvements to real 
property constructed by the taxpayer where the real property or 
improvements benefit new development or expansion of existing 
development, are immediately transferred to a State or local government 
for dedication to the general public use, and are maintained by the 
State or local government. See section 263A and the regulations 
thereunder for capitalization rules that apply to amounts referred to in 
this paragraph (d)(8)(iv).
    (v) Examples. The following examples illustrate the rules of this 
paragraph (d)(8):

    Example 1. Amount paid to produce real property owned by another. W 
corporation operates a quarry on the east side of a river in city Z and 
a crusher on the west side of the river. City Z's existing bridges are 
of insufficient capacity to be traveled by trucks in transferring stone 
from W's quarry to its crusher. As a result, the efficiency of W's 
operations is greatly reduced. W contributes $1,000,000 to city Z to 
defray in part the cost of constructing a publicly owned bridge capable 
of accommodating W's trucks. W's payment to city Z is an amount paid to 
produce or improve real property (within the meaning of paragraph 
(d)(8)(iii) of this section) that can reasonably be expected to produce 
significant economic benefits for W. Under paragraph (d)(8)(i) of this 
section, W must capitalize the $1,000,000 paid to city Z.
    Example 2. Transfer of real property to another. K corporation, a 
shipping company, uses smaller vessels to unload its ocean-going vessels 
at port X. There is no natural harbor at port X, and during stormy 
weather the transfer of freight between K's ocean vessels and port X is 
extremely difficult and sometimes impossible, which can be very costly 
to K. Consequently, K constructs a short breakwater at a cost of 
$50,000. The short breakwater, however, is inadequate, so K persuades 
the port authority to build a larger breakwater that will allow K to 
unload its vessels at any time of the year and during all kinds of 
weather. K contributes the short breakwater and pays $200,000 to the 
port authority for use in building the larger breakwater. Because the 
transfer of the small breakwater and $200,000 is reasonably expected to 
produce significant economic benefits for K, K must capitalize both the 
adjusted basis of the small breakwater (determined at the time the small 
breakwater is contributed) and the $200,000 payment under this paragraph 
(d)(8).
    Example 3. Dedicated improvements. X corporation is engaged in the 
development and sale of residential real estate. In connection with a 
residential real estate project under construction by X in city Z, X is 
required by city Z to construct ingress and egress roads to and from its 
project and immediately transfer the roads to city Z for dedication to 
general public use. The roads will be maintained by city Z. X pays its 
subcontractor $100,000 to construct the ingress and egress roads. X's 
payment is a dedicated improvement within the meaning of paragraph 
(d)(8)(iv) of this section. Accordingly, X is not required to capitalize 
the $100,000 payment under this paragraph (d)(8). See section 263A and 
the regulations thereunder for capitalization rules that apply to 
amounts referred to in paragraph (d)(8)(iv) of this section.

    (9) Defense or perfection of title to intangible property--(i) In 
general. A taxpayer must capitalize amounts paid to another party to 
defend or perfect title to intangible property if that other party 
challenges the taxpayer's title to the intangible property.
    (ii) Certain break-up fees. Paragraph (d)(9)(i) of this section does 
not apply to the termination of a transaction described in Sec. 
1.263(a)-5(a) (relating to an acquisition of a trade or business, a 
change in the capital structure of a business entity, and certain other 
transactions). See Sec. 1.263(a)-5 for rules governing the treatment of 
amounts paid to terminate a transaction to which that section applies. 
Paragraph (d)(9)(i) of this section also does not apply to an amount 
paid to another party to terminate an agreement that grants that party 
the right to purchase the taxpayer's intangible property.
    (iii) Example. The following example illustrates the rules of this 
paragraph (d)(9):


[[Page 599]]


    Example. Defense of title. R corporation claims to own an exclusive 
patent on a particular technology. U corporation brings a lawsuit 
against R, claiming that U is the true owner of the patent and that R 
stole the technology from U. The sole issue in the suit involves the 
validity of R's patent. R chooses to settle the suit by paying U 
$100,000 in exchange for U's release of all future claim to the patent. 
R's payment to U is an amount paid to defend or perfect title to 
intangible property under paragraph (d)(9) of this section and must be 
capitalized.

    (e) Transaction costs--(1) Scope of facilitate--(i) In general. 
Except as otherwise provided in this section, an amount is paid to 
facilitate the acquisition or creation of an intangible (the 
transaction) if the amount is paid in the process of investigating or 
otherwise pursuing the transaction. Whether an amount is paid in the 
process of investigating or otherwise pursuing the transaction is 
determined based on all of the facts and circumstances. In determining 
whether an amount is paid to facilitate a transaction, the fact that the 
amount would (or would not) have been paid but for the transaction is 
relevant, but is not determinative. An amount paid to determine the 
value or price of an intangible is an amount paid in the process of 
investigating or otherwise pursuing the transaction.
    (ii) Treatment of termination payments. An amount paid to terminate 
(or acilitate the termination of) an existing agreement does not 
facilitate the acquisition or creation of another agreement under this 
section. See paragraph (d)(6)(iii) of this section for the treatment of 
termination fees paid to the other party (or parties) of a renegotiated 
agreement.
    (iii) Special rule for contracts. An amount is treated as not paid 
in the process of investigating or otherwise pursuing the creation of an 
agreement described in paragraph (d)(2) or (d)(6) of this section if the 
amount relates to activities performed before the earlier of the date 
the taxpayer begins preparing its bid for the agreement or the date the 
taxpayer begins discussing or negotiating the agreement with another 
party to the agreement.
    (iv) Borrowing costs. An amount paid to facilitate a borrowing does 
not facilitate an acquisition or creation of an intangible described in 
paragraphs (b)(1)(i) through (iv) of this section. See Sec. Sec. 
1.263(a)-5 and 1.446-5 for the treatment of an amount paid to facilitate 
a borrowing.
    (v) Special rule for stock redemption costs of open-end regulated 
investment companies. An amount paid by an open-end regulated investment 
company (within the meaning of section 851) to facilitate a redemption 
of its stock is treated as an amount that does not facilitate the 
acquisition of an intangible under this section.
    (2) Coordination with paragraph (d) of this section. In the case of 
an amount paid to facilitate the creation of an intangible described in 
paragraph (d) of this section, the provisions of this paragraph (e) 
apply regardless of whether a payment described in paragraph (d) is 
made.
    (3) Transaction. For purposes of this section, the term transaction 
means all of the factual elements comprising an acquisition or creation 
of an intangible and includes a series of steps carried out as part of a 
single plan. Thus, a transaction can involve more than one invoice and 
more than one intangible. For example, a purchase of intangibles under 
one purchase agreement constitutes a single transaction, notwithstanding 
the fact that the acquisition involves multiple intangibles and the 
amounts paid to facilitate the acquisition are capable of being 
allocated among the various intangibles acquired.
    (4) Simplifying conventions--(i) In general. For purposes of this 
section, employee compensation (within the meaning of paragraph 
(e)(4)(ii) of this section), overhead, and de minimis costs (within the 
meaning of paragraph (e)(4)(iii) of this section) are treated as amounts 
that do not facilitate the acquisition or creation of an intangible.
    (ii) Employee compensation--(A) In general. The term employee 
compensation means compensation (including salary, bonuses and 
commissions) paid to an employee of the taxpayer. For purposes of this 
section, whether an individual is an employee is determined in 
accordance with the rules contained in section 3401(c) and the 
regulations thereunder.
    (B) Certain amounts treated as employee compensation. For purposes 
of

[[Page 600]]

this section, a guaranteed payment to a partner in a partnership is 
treated as employee compensation. For purposes of this section, annual 
compensation paid to a director of a corporation is treated as employee 
compensation. For example, an amount paid to a director of a corporation 
for attendance at a regular meeting of the board of directors (or 
committee thereof) is treated as employee compensation for purposes of 
this section. However, an amount paid to a director for attendance at a 
special meeting of the board of directors (or committee thereof) is not 
treated as employee compensation. An amount paid to a person that is not 
an employee of the taxpayer (including the employer of the individual 
who performs the services) is treated as employee compensation for 
purposes of this section only if the amount is paid for secretarial, 
clerical, or similar administrative support services. In the case of an 
affiliated group of corporations filing a consolidated Federal income 
tax return, a payment by one member of the group to a second member of 
the group for services performed by an employee of the second member is 
treated as employee compensation if the services provided by the 
employee are provided at a time during which both members are 
affiliated.
    (iii) De minimis costs--(A) In general. Except as provided in 
paragraph (e)(4)(iii)(B) of this section, the term de minimis costs 
means amounts (other than employee compensation and overhead) paid in 
the process of investigating or otherwise pursuing a transaction if, in 
the aggregate, the amounts do not exceed $5,000 (or such greater amount 
as may be set forth in published guidance). If the amounts exceed $5,000 
(or such greater amount as may be set forth in published guidance), none 
of the amounts are de minimis costs within the meaning of this paragraph 
(e)(4)(iii)(A). For purposes of this paragraph (e)(4)(iii), an amount 
paid in the form of property is valued at its fair market value at the 
time of the payment. In determining the amount of transaction costs paid 
in the process of investigating or otherwise pursuing a transaction, a 
taxpayer generally must account for the specific costs paid with respect 
to each transaction. However, a taxpayer that reasonably expects to 
enter into at least 25 similar transactions during the taxable year may 
establish a pool of similar transactions for purposes of determining the 
amount of transaction costs paid in the process of investigating or 
otherwise pursuing the transactions in the pool. Under this pooling 
method, the amount of transaction costs paid in the process of 
investigating or otherwise pursuing each transaction included in the 
pool is equal to the average transaction costs paid in the process of 
investigating or otherwise pursuing all transactions included in the 
pool. A taxpayer computes the average transaction costs paid in the 
process of investigating or otherwise pursuing all transactions included 
in the pool by dividing the sum of all transaction costs paid in the 
process of investigating or otherwise pursuing all transactions included 
in the pool by the number of transactions included in the pool. See 
paragraph (h) of this section for additional rules relating to pooling.
    (B) Treatment of commissions. The term de minimis costs does not 
include commissions paid to facilitate the acquisition of an intangible 
described in paragraphs (c)(1)(i) through (v) of this section or to 
facilitate the creation, origination, entrance into, renewal or 
renegotiation of an intangible described in paragraph (d)(2)(i) of this 
section.
    (iv) Election to capitalize. A taxpayer may elect to treat employee 
compensation, overhead, or de minimis costs paid in the process of 
investigating or otherwise pursuing a transaction as amounts that 
facilitate the transaction. The election is made separately for each 
transaction and applies to employee compensation, overhead, or de 
minimis costs, or to any combination thereof. For example, a taxpayer 
may elect to treat overhead and de minimis costs, but not employee 
compensation, as amounts that facilitate the transaction. A taxpayer 
makes the election by treating the amounts to which the election applies 
as amounts that facilitate the transaction in the taxpayer's timely 
filed original Federal income tax return (including extensions) for the 
taxable year during which the

[[Page 601]]

amounts are paid. In the case of an affiliated group of corporations 
filing a consolidated return, the election is made separately with 
respect to each member of the group, and not with respect to the group 
as a whole. In the case of an S corporation or partnership, the election 
is made by the S corporation or by the partnership, and not by the 
shareholders or partners. An election made under this paragraph 
(e)(4)(iv) is revocable with respect to each taxable year for which made 
only with the consent of the Commissioner.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (e):

    Example 1. Costs to facilitate. In December 2005, R corporation, a 
calendar year taxpayer, enters into negotiations with X corporation to 
lease commercial property from X for a period of 25 years. R pays A, its 
outside legal counsel, $4,000 in December 2005 for services rendered by 
A during December in assisting with negotiations with X. In January 
2006, R and X finalize the terms of the lease and execute the lease 
agreement. R pays B, another of its outside legal counsel, $2,000 in 
January 2006 for services rendered by B during January in drafting the 
lease agreement. The agreement between R and X is an agreement providing 
R the right to use property, as described in paragraph (d)(6)(i)(A) of 
this section. R's payments to its outside counsel are amounts paid to 
facilitate the creation of the agreement. As provided in paragraph 
(e)(4)(iii)(A) of this section, R must aggregate its transaction costs 
for purposes of determining whether the transaction costs are de 
minimis. Because R's aggregate transaction costs exceed $5,000, R's 
transaction costs are not de minimis costs within the meaning of 
paragraph (e)(4)(iii)(A) of this section. Accordingly, R must capitalize 
the $4,000 paid to A and the $2,000 paid to B under paragraph (b)(1)(v) 
of this section.
    Example 2. Costs to facilitate. Partnership X leases its 
manufacturing equipment from Y corporation under a 10-year lease. During 
2005, when the lease has a remaining term of 4 years, X enters into a 
written agreement with Z corporation, a competitor of Y, under which X 
agrees to lease its manufacturing equipment from Z, subject to the 
condition that X first successfully terminates its lease with Y. X pays 
Y $50,000 in exchange for Y's agreement to terminate the equipment 
lease. Under paragraph (e)(1)(ii), X's $50,000 payment does not 
facilitate the creation of the new lease with Z. In addition, X's 
$50,000 payment does not terminate an agreement described in paragraph 
(d)(7) of this section. Accordingly, X is not required to capitalize the 
$50,000 termination payment under this section.
    Example 3. Costs to facilitate. W corporation enters into a lease 
agreement with X corporation under which W agrees to lease property to X 
for a period of 5 years. W pays its outside counsel $7,000 for legal 
services rendered in drafting the lease agreement and negotiating with 
X. The agreement between W and X is an agreement providing W the right 
to be compensated for the use of property, as described in paragraph 
(d)(6)(i)(A) of this section. Under paragraph (e)(1)(i) of this section, 
W's payment to its outside counsel is an amount paid to facilitate the 
creation of that agreement. As provided by paragraph (e)(2) of this 
section, W must capitalize its $7,000 payment to outside counsel 
notwithstanding the fact that W made no payment described in paragraph 
(d)(6)(i) of this section.
    Example 4. Costs to facilitate. U corporation, which owns a majority 
of the common stock of T corporation, votes its controlling interest in 
favor of a perpetual extension of T's charter. M, a minority shareholder 
in T, votes against the extension. Under applicable state law, U is 
required to purchase the stock of T held by M. When U and M are unable 
to agree on the value of M's shares, U brings an action in state court 
to appraise the value of M's stock interest. U pays attorney, accountant 
and appraisal fees of $25,000 for services rendered in connection with 
the negotiation and litigation with M. Because U's attorney, accountant 
and appraisal costs help establish the purchase price of M's stock, U's 
$25,000 payment facilitates the acquisition of stock. Accordingly, U 
must capitalize the $25,000 payment under paragraph (b)(1)(v) of this 
section.
    Example 5. Costs to facilitate. For several years, H corporation has 
provided services to J corporation whenever requested by J. H wants to 
enter into a multiple-year contract with J that would give H the right 
to provide services to J. On June 10, 2004, H starts to prepare a bid to 
provide services to J and pays a consultant $15,000 to research 
potential competitors. On August 10, 2004, H raises the possibility of a 
multi-year contract with J. On October 10, 2004, H and J enter into a 
contract giving H the right to provide services to J for five years. 
During 2004, H pays $7,000 to travel to the city in which J's offices 
are located to continue providing services to J under their prior 
arrangement and pays $6,000 for travel to the city in which J's offices 
are located to further develop H's business relationship with J (for 
example, to introduce new employees, update J on current developments 
and take J's executives to dinner). H also pays $8,000 for travel costs 
to meet with J to discuss and negotiate the contract. Because the 
contract gives H the

[[Page 602]]

right to provide services to J, H must capitalize amounts paid to 
facilitate the creation of the contract. The $7,000 of travel expenses 
paid to provide services to J under their prior arrangement does not 
facilitate the creation of the contract and is not required to be 
capitalized, regardless of when the travel occurs. The $6,000 of travel 
expenses paid to further develop H's business relationship with J is 
paid in the process of pursuing the contract (and therefore must be 
capitalized) only to the extent the expenses relate to travel on or 
after June 10, 2004 (the date H begins to prepare a bid) and before 
October 11, 2004 (the date after H and J enter into the contract). The 
$8,000 of travel expenses paid to meet with J to discuss and negotiate 
the contract is paid in the process of pursuing the contact and must be 
capitalized. The $15,000 of consultant fees is paid to investigate the 
contract and also must be capitalized.
    Example 6. Costs that do not facilitate. X corporation brings a 
legal action against Y corporation to recover lost profits resulting 
from Y's alleged infringement of X's copyright. Y does not challenge X's 
copyright, but argues that it did not infringe upon X's copyright. X 
pays its outside counsel $25,000 for legal services rendered in pursuing 
the suit against Y. Because X's title to its copyright is not in 
question, X's action against Y does not involve X's defense or 
perfection of title to intangible property. Thus, the amount paid to 
outside counsel does not facilitate the creation of an intangible 
described in paragraph (d)(9) of this section. Accordingly, X is not 
required to capitalize its $25,000 payment under this section.
    Example 7. De minimis rule. W corporation, a commercial bank, 
acquires a portfolio containing 100 loans from Y corporation. As part of 
the acquisition, W pays an independent appraiser a fee of $10,000 to 
appraise the portfolio. The fee is an amount paid to facilitate W's 
acquisition of an intangible. The acquisition of the loan portfolio is a 
single transaction within the meaning of paragraph (e)(3) of this 
section. Because the amount paid to facilitate the transaction exceeds 
$5,000, the amount is not de minimis as defined in paragraph 
(e)(4)(iii)(A) of this section. Accordingly, W must capitalize the 
$10,000 fee under paragraph (b)(1)(v) of this section.
    Example 8. Compensation and overhead. P corporation, a commercial 
bank, maintains a loan acquisition department whose sole function is to 
acquire loans from other financial institutions. As provided in 
paragraph (e)(4)(i) of this section, P is not required to capitalize any 
portion of the compensation paid to the employees in its loan 
acquisition department or any portion of its overhead allocable to the 
loan acquisition department.

    (f) 12-month rule--(1) In general. Except as otherwise provided in 
this paragraph (f), a taxpayer is not required to capitalize under this 
section amounts paid to create (or to facilitate the creation of) any 
right or benefit for the taxpayer that does not extend beyond the 
earlier of--
    (i) 12 months after the first date on which the taxpayer realizes 
the right or benefit; or
    (ii) The end of the taxable year following the taxable year in which 
the payment is made.
    (2) Duration of benefit for contract terminations. For purposes of 
this paragraph (f), amounts paid to terminate a contract or other 
agreement described in paragraph (d)(7)(i) of this section prior to its 
expiration date (or amounts paid to facilitate such termination) create 
a benefit for the taxpayer that lasts for the unexpired term of the 
agreement immediately before the date of the termination. If the terms 
of a contract or other agreement described in paragraph (d)(7)(i) of 
this section permit the taxpayer to terminate the contract or agreement 
after a notice period, amounts paid by the taxpayer to terminate the 
contract or agreement before the end of the notice period create a 
benefit for the taxpayer that lasts for the amount of time by which the 
notice period is shortened.
    (3) Inapplicability to created financial interests and self-created 
amortizable section 197 intangibles. Paragraph (f)(1) of this section 
does not apply to amounts paid to create (or facilitate the creation of) 
an intangible described in paragraph (d)(2) of this section (relating to 
amounts paid to create financial interests) or to amounts paid to create 
(or facilitate the creation of) an intangible that constitutes an 
amortizable section 197 intangible within the meaning of section 197(c).
    (4) Inapplicability to rights of indefinite duration. Paragraph 
(f)(1) of this section does not apply to amounts paid to create (or 
facilitate the creation of) an intangible of indefinite duration. A 
right has an indefinite duration if it has no period of duration fixed 
by agreement or by law, or if it is not based on a period of time, such 
as a right attributable to an agreement to provide or receive a fixed 
amount of

[[Page 603]]

goods or services. For example, a license granted by a governmental 
agency that permits the taxpayer to operate a business conveys a right 
of indefinite duration if the license may be revoked only upon the 
taxpayer's violation of the terms of the license.
    (5) Rights subject to renewal--(i) In general. For purposes of 
paragraph (f)(1) of this section, the duration of a right includes any 
renewal period if all of the facts and circumstances in existence during 
the taxable year in which the right is created indicate a reasonable 
expectancy of renewal.
    (ii) Reasonable expectancy of renewal. The following factors are 
significant in determining whether there exists a reasonable expectancy 
of renewal:
    (A) Renewal history. The fact that similar rights are historically 
renewed is evidence of a reasonable expectancy of renewal. On the other 
hand, the fact that similar rights are rarely renewed is evidence of a 
lack of a reasonable expectancy of renewal. Where the taxpayer has no 
experience with similar rights, or where the taxpayer holds similar 
rights only occasionally, this factor is less indicative of a reasonable 
expectancy of renewal.
    (B) Economics of the transaction. The fact that renewal is necessary 
for the taxpayer to earn back its investment in the right is evidence of 
a reasonable expectancy of renewal. For example, if a taxpayer pays 
$14,000 to enter into a renewable contract with an initial 9-month term 
that is expected to generate income to the taxpayer of $1,000 per month, 
the fact that renewal is necessary for the taxpayer to earn back its 
$14,000 payment is evidence of a reasonable expectancy of renewal.
    (C) Likelihood of renewal by other party. Evidence that indicates a 
likelihood of renewal by the other party to a right, such as a bargain 
renewal option or similar arrangement, is evidence of a reasonable 
expectancy of renewal. However, the mere fact that the other party will 
have the opportunity to renew on the same terms as are available to 
others is not evidence of a reasonable expectancy of renewal.
    (D) Terms of renewal. The fact that material terms of the right are 
subject to renegotiation at the end of the initial term is evidence of a 
lack of a reasonable expectancy of renewal. For example, if the parties 
to an agreement must renegotiate price or amount, the renegotiation 
requirement is evidence of a lack of a reasonable expectancy of renewal.
    (E) Terminations. The fact that similar rights are typically 
terminated prior to renewal is evidence of a lack of a reasonably 
expectancy of renewal.
    (iii) Safe harbor pooling method. In lieu of applying the reasonable 
expectancy of renewal test described in paragraph (f)(5)(ii) of this 
section to each separate right created during a taxable year, a taxpayer 
that reasonably expects to enter into at least 25 similar rights during 
the taxable year may establish a pool of similar rights for which the 
initial term does not extend beyond the period prescribed in paragraph 
(f)(1) of this section and may elect to apply the reasonable expectancy 
of renewal test to that pool. See paragraph (h) of this section for 
additional rules relating to pooling. The application of paragraph 
(f)(1) of this section to each pool is determined in the following 
manner:
    (A) All amounts (except de minimis costs described in paragraph 
(d)(6)(v) of this section) paid to create the rights included in the 
pool and all amounts paid to facilitate the creation of the rights 
included in the pool are aggregated.
    (B) If less than 20 percent of the rights in the pool are reasonably 
expected to be renewed beyond the period prescribed in paragraph (f)(1) 
of this section, all rights in the pool are treated as having a duration 
that does not extend beyond the period prescribed in paragraph (f)(1) of 
this section, and the taxpayer is not required to capitalize under this 
section any portion of the aggregate amount described in paragraph 
(f)(5)(iii)(A) of this section.
    (C) If more than 80 percent of the rights in the pool are reasonably 
expected to be renewed beyond the period prescribed in paragraph (f)(1) 
of this section, all rights in the pool are treated as having a duration 
that extends beyond the period prescribed in paragraph (f)(1) of this 
section, and the taxpayer is required to capitalize under

[[Page 604]]

this section the aggregate amount described in paragraph (f)(5)(iii)(A) 
of this section.
    (D) If 20 percent or more, but 80 percent or less, of the rights in 
the pool are reasonably expected to be renewed beyond the period 
prescribed in paragraph (f)(1) of this section, the aggregate amount 
described in paragraph (f)(5)(iii)(A) of this section is multiplied by 
the percentage of the rights in the pool that are reasonably expected to 
be renewed beyond the period prescribed in paragraph (f)(1) of this 
section and the taxpayer must capitalize the resulting amount under this 
section by treating such amount as creating a separate intangible. The 
amount determined by multiplying the aggregate amount described in 
paragraph (f)(5)(iii)(A) of this section by the percentage of rights in 
the pool that are not reasonably expected to be renewed beyond the 
period prescribed in paragraph (f)(1) of this section is not required to 
be capitalized under this section.
    (6) Coordination with section 461. In the case of a taxpayer using 
an accrual method of accounting, the rules of this paragraph (f) do not 
affect the determination of whether a liability is incurred during the 
taxable year, including the determination of whether economic 
performance has occurred with respect to the liability. See Sec. 1.461-
4 for rules relating to economic performance.
    (7) Election to capitalize. A taxpayer may elect not to apply the 
rule contained in paragraph (f)(1) of this section. An election made 
under this paragraph (f)(7) applies to all similar transactions during 
the taxable year to which paragraph (f)(1) of this section would apply 
(but for the election under this paragraph (f)(7)). For example, a 
taxpayer may elect under this paragraph (f)(7) to capitalize its costs 
of prepaying insurance contracts for 12 months, but may continue to 
apply the rule in paragraph (f)(1) to its costs of entering into non-
renewable, 12-month service contracts. A taxpayer makes the election by 
treating the amounts as capital expenditures in its timely filed 
original federal income tax return (including extensions) for the 
taxable year during which the amounts are paid. In the case of an 
affiliated group of corporations filing a consolidated return, the 
election is made separately with respect to each member of the group, 
and not with respect to the group as a whole. In the case of an S 
corporation or partnership, the election is made by the S corporation or 
by the partnership, and not by the shareholders or partners. An election 
made under this paragraph (f)(7) is revocable with respect to each 
taxable year for which made only with the consent of the Commissioner.
    (8) Examples. The rules of this paragraph (f) are illustrated by the 
following examples, in which it is assumed (unless otherwise stated) 
that the taxpayer is a calendar year, accrual method taxpayer that does 
not have a short taxable year in any taxable year and has not made an 
election under paragraph (f)(7) of this section:

    Example 1. Prepaid expenses. On December 1, 2005, N corporation pays 
a $10,000 insurance premium to obtain a property insurance policy (with 
no cash value) with a 1-year term that begins on February 1, 2006. The 
amount paid by N is a prepaid expense described in paragraph (d)(3) of 
this section and not paragraph (d)(2) of this section. Because the right 
or benefit attributable to the $10,000 payment extends beyond the end of 
the taxable year following the taxable year in which the payment is 
made, the 12-month rule provided by this paragraph (f) does not apply. N 
must capitalize the $10,000 payment.
    Example 2. Prepaid expenses. (i) Assume the same facts as in Example 
1, except that the policy has a term beginning on December 15, 2005. The 
12-month rule of this paragraph (f) applies to the $10,000 payment 
because the right or benefit attributable to the payment neither extends 
more than 12 months beyond December 15, 2005 (the first date the benefit 
is realized by the taxpayer) nor beyond the end of the taxable year 
following the taxable year in which the payment is made. Accordingly, N 
is not required to capitalize the $10,000 payment.
    (ii) Alternatively, assume N capitalizes prepaid expenses for 
financial accounting and reporting purposes and elects under paragraph 
(f)(7) of this section not to apply the 12-month rule contained in 
paragraph (f)(1) of this section. N must capitalize the $10,000 payment 
for Federal income tax purposes.
    Example 3. Financial interests. On October 1, 2005, X corporation 
makes a 9-month loan to B in the principal amount of $250,000. The

[[Page 605]]

principal amount of the loan to B constitutes an amount paid to create 
or originate a financial interest under paragraph (d)(2)(i)(B) of this 
section. The 9-month term of the loan does not extend beyond the period 
prescribed by paragraph (f)(1) of this section. However, as provided by 
paragraph (f)(3) of this section, the rules of this paragraph (f) do not 
apply to intangibles described in paragraph (d)(2) of this section. 
Accordingly, X must capitalize the $250,000 loan amount.
    Example 4. Financial interests. X corporation owns all of the 
outstanding stock of Z corporation. On December 1, 2005, Y corporation 
pays X $1,000,000 in exchange for X's grant of a 9-month call option to 
Y permitting Y to purchase all of the outstanding stock of Z. Y's 
payment to X constitutes an amount paid to create or originate an option 
with X under paragraph (d)(2)(i)(C)(7) of this section. The 9-month term 
of the option does not extend beyond the period prescribed by paragraph 
(f)(1) of this section. However, as provided by paragraph (f)(3) of this 
section, the rules of this paragraph (f) do not apply to intangibles 
described in paragraph (d)(2) of this section. Accordingly, Y must 
capitalize the $1,000,000 payment.
    Example 5. License. (i) On July 1, 2005, R corporation pays $10,000 
to state X to obtain a license to operate a business in state X for a 
period of 5 years. The terms of the license require R to pay state X an 
annual fee of $500 due on July 1, 2005, and each of the succeeding four 
years. R pays the $500 fee on July 1 as required by the license.
    (ii) R's payment of $10,000 is an amount paid to a governmental 
agency for a license granted by that agency to which paragraph (d)(5) of 
this section applies. Because R's payment creates rights or benefits for 
R that extend beyond 12 months after the first date on which R realizes 
the rights or benefits attributable to the payment and beyond the end of 
2006 (the taxable year following the taxable year in which the payment 
is made), the rules of this paragraph (f) do not apply to R's payment. 
Accordingly, R must capitalize the $10,000 payment.
    (iii) R's payment of each $500 annual fee is a prepaid expense 
described in paragraph (d)(3) of this section. R is not required to 
capitalize the $500 fee in each taxable year. The rules of this 
paragraph (f) apply to each such payment because each payment provides a 
right or benefit to R that does not extend beyond 12 months after the 
first date on which R realizes the rights or benefits attributable to 
the payment and does not extend beyond the end of the taxable year 
following the taxable year in which the payment is made.
    Example 6. Lease. On December 1, 2005, W corporation enters into a 
lease agreement with X corporation under which W agrees to lease 
property to X for a period of 9 months, beginning on December 1, 2005. W 
pays its outside counsel $7,000 for legal services rendered in drafting 
the lease agreement and negotiating with X. The agreement between W and 
X is an agreement providing W the right to be compensated for the use of 
property, as described in paragraph (d)(6)(i)(A) of this section. W's 
$7,000 payment to its outside counsel is an amount paid to facilitate 
W's creation of the lease as described in paragraph (e)(1)(i) of this 
section. The 12-month rule of this paragraph (f) applies to the $7,000 
payment because the right or benefit that the $7,000 payment facilitates 
the creation of neither extends more than 12 months beyond December 1, 
2005 (the first date the benefit is realized by the taxpayer) nor beyond 
the end of the taxable year following the taxable year in which the 
payment is made. Accordingly, W is not required to capitalize its 
payment to its outside counsel.
    Example 7. Certain contract terminations. V corporation owns real 
property that it has leased to A for a period of 15 years. When the 
lease has a remaining unexpired term of 5 years, V and A agree to 
terminate the lease, enabling V to use the property in its trade or 
business. V pays A $100,000 in exchange for A's agreement to terminate 
the lease. V's payment to A to terminate the lease is described in 
paragraph (d)(7)(i)(A) of this section. Under paragraph (f)(2) of this 
section, V's payment creates a benefit for V with a duration of 5 years, 
the remaining unexpired term of the lease as of the date of the 
termination. Because the benefit attributable to the expenditure extends 
beyond 12 months after the first date on which V realizes the rights or 
benefits attributable to the payment and beyond the end of the taxable 
year following the taxable year in which the payment is made, the rules 
of this paragraph (f) do not apply to the payment. V must capitalize the 
$100,000 payment.
    Example 8. Certain contract terminations. Assume the same facts as 
in Example 7, except that the lease is terminated when it has a 
remaining unexpired term of 10 months. Under paragraph (f)(2) of this 
section, V's payment creates a benefit for V with a duration of 10 
months. The 12-month rule of this paragraph (f) applies to the payment 
because the benefit attributable to the payment neither extends more 
than 12 months beyond the date of termination (the first date the 
benefit is realized by V) nor beyond the end of the taxable year 
following the taxable year in which the payment is made. Accordingly, V 
is not required to capitalize the $100,000 payment.
    Example 9. Certain contract terminations. Assume the same facts as 
in Example 7, except that either party can terminate the lease upon 12 
months notice. When the lease has a remaining unexpired term of 5 years, 
V wants to terminate the lease, however, V does not want to wait another 
12 months. V pays A $50,000 for the ability to terminate

[[Page 606]]

the lease with one month's notice. V's payment to A to terminate the 
lease is described in paragraph (d)(7)(i)(A) of this section. Under 
paragraph (f)(2) of this section, V's payment creates a benefit for V 
with a duration of 11 months, the time by which the notice period is 
shortened. The 12-month rule of this paragraph (f) applies to V's 
$50,000 payment because the benefit attributable to the payment neither 
extends more than 12 months beyond the date of termination (the first 
date the benefit is realized by V) nor beyond the end of the taxable 
year following the taxable year in which the payment is made. 
Accordingly, V is not required to capitalize the $50,000 payment.
    Example 10. Coordination with section 461. (i) U corporation leases 
office space from W corporation at a monthly rental rate of $2,000. On 
August 1, 2005, U prepays its office rent expense for the first six 
months of 2006 in the amount of $12,000. For purposes of this example, 
it is assumed that the recurring item exception provided by Sec. 1.461-
5 does not apply and that the lease between W and U is not a section 467 
rental agreement as defined in section 467(d).
    (ii) Under Sec. 1.461-4(d)(3), U's prepayment of rent is a payment 
for the use of property by U for which economic performance occurs 
ratably over the period of time U is entitled to use the property. 
Accordingly, because economic performance with respect to U's prepayment 
of rent does not occur until 2006, U's prepaid rent is not incurred in 
2005 and therefore is not properly taken into account through 
capitalization, deduction, or otherwise in 2005. Thus, the rules of this 
paragraph (f) do not apply to U's prepayment of its rent.
    (iii) Alternatively, assume that U uses the cash method of 
accounting and the economic performance rules in Sec. 1.461-4 therefore 
do not apply to U. The 12-month rule of this paragraph (f) applies to 
the $12,000 payment because the rights or benefits attributable to U's 
prepayment of its rent do not extend beyond December 31, 2006. 
Accordingly, U is not required to capitalize its prepaid rent.
    Example 11. Coordination with section 461. N corporation pays R 
corporation, an advertising and marketing firm, $40,000 on August 1, 
2005, for advertising and marketing services to be provided to N 
throughout calendar year 2006. For purposes of this example, it is 
assumed that the recurring item exception provided by Sec. 1.461-5 does 
not apply. Under Sec. 1.461-4(d)(2), N's payment arises out of the 
provision of services to N by R for which economic performance occurs as 
the services are provided. Accordingly, because economic performance 
with respect to N's prepaid advertising expense does not occur until 
2006, N's prepaid advertising expense is not incurred in 2005 and 
therefore is not properly taken into account through capitalization, 
deduction, or otherwise in 2005. Thus, the rules of this paragraph (f) 
do not apply to N's payment.

    (g) Treatment of capitalized costs--(1) In general. An amount 
required to be capitalized by this section is not currently deductible 
under section 162. Instead, the amount generally is added to the basis 
of the intangible acquired or created. See section 1012.
    (2) Financial instruments. In the case of a financial instrument 
described in paragraph (c)(1)(iii) or (d)(2)(i)(C) of this section, 
notwithstanding paragraph (g)(1) of this section, if under other 
provisions of law the amount required to be capitalized is not required 
to be added to the basis of the intangible acquired or created, then the 
other provisions of law will govern the tax treatment of the amount.
    (h) Special rules applicable to pooling--(1) In general. Except as 
otherwise provided, the rules of this paragraph (h) apply to the pooling 
methods described in paragraph (d)(6)(v) of this section (relating to de 
minimis rules applicable to certain contract rights), paragraph 
(e)(4)(iii)(A) of this section (relating to de minimis rules applicable 
to transaction costs), and paragraph (f)(5)(iii) of this section 
(relating to the application of the 12-month rule to renewable rights).
    (2) Method of accounting. A pooling method authorized by this 
section constitutes a method of accounting for purposes of section 446. 
A taxpayer that adopts or changes to a pooling method authorized by this 
section must use the method for the year of adoption and for all 
subsequent taxable years during which the taxpayer qualifies to use the 
pooling method unless a change to another method is required by the 
Commissioner in order to clearly reflect income, or unless permission to 
change to another method is granted by the Commissioner as provided in 
Sec. 1.446-1(e).
    (3) Adopting or changing to a pooling method. A taxpayer adopts (or 
changes to) a pooling method authorized by this section for any taxable 
year by establishing one or more pools for the taxable year in 
accordance with the rules governing the particular pooling method and 
the rules prescribed by this paragraph (h), and by using the pooling

[[Page 607]]

method to compute its taxable income for the year of adoption (or 
change).
    (4) Definition of pool. A taxpayer may use any reasonable method of 
defining a pool of similar transactions, agreements or rights, including 
a method based on the type of customer or the type of product or service 
provided under a contract. However, a taxpayer that pools similar 
transactions, agreements or rights must include in the pool all similar 
transactions, agreements or rights created during the taxable year. For 
purposes of the pooling methods described in paragraph (d)(6)(v) of this 
section (relating to de minimis rules applicable to certain contract 
rights) and paragraph (e)(4)(iii)(A) of this section (relating to de 
minimis rules applicable to transaction costs), an agreement (or a 
transaction) is treated as not similar to other agreements (or 
transactions) included in the pool if the amount at issue with respect 
to that agreement (or transaction) is reasonably expected to differ 
significantly from the average amount at issue with respect to the other 
agreements (or transactions) properly included in the pool.
    (5) Consistency requirement. A taxpayer that uses the pooling method 
described in paragraph (f)(5)(iii) of this section for purposes of 
applying the 12-month rule to a right or benefit--
    (i) Must use the pooling methods described in paragraph (d)(6)(v) of 
this section (relating to de minimis rules applicable to certain 
contract rights) and paragraph (e)(4)(iii)(A) of this section (relating 
to de minimis rules applicable to transaction costs) for purposes of 
determining the amount paid to create, or facilitate the creation of, 
the right or benefit; and
    (ii) Must use the same pool for purposes of paragraph (d)(6)(v) of 
this section and paragraph (e)(4)(iii)(A) of this section as is used for 
purposes of paragraph (f)(5)(iii) of this section.
    (6) Additional guidance pertaining to pooling. The Internal Revenue 
Service may publish guidance in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2) of this chapter) prescribing additional rules for applying 
the pooling methods authorized by this section to specific industries or 
to specific types of transactions.
    (7) Example. The following example illustrates the rules of this 
paragraph (h):

    Example. Pooling. (i) In the course of its business, W corporation 
enters into 3-year non-cancelable contracts that provide W the right to 
provide services to its customers. W generally pays certain amounts in 
the process of pursuing an agreement with a customer, including amounts 
paid to credit reporting agencies to verify the credit history of the 
potential customer and commissions paid to the independent sales agent 
who secures the agreement with the customer. In the case of agreements 
that W enters into with customers who are individuals, the agreements 
contain substantially similar terms and conditions and W typically pays 
between $100 and $200 in the process of pursuing each transaction. 
During 2005, W enters into agreements with 300 individuals. Also during 
2005, W enters into an agreement with X corporation containing terms and 
conditions that are substantially similar to those contained in the 
agreements W enters into with its customers who are individuals. W pays 
certain amounts in the process of pursuing the agreement with X that W 
would not typically incur in the process of pursuing an agreement with 
its customers who are individuals. For example, W pays amounts to 
prepare and submit a bid for the agreement with X and amounts to travel 
to X's headquarters to make a sales presentation to X's management. In 
the aggregate, W pays $11,000 in the process of obtaining the agreement 
with X.
    (ii) The agreements between W and its customers are agreements 
providing W the right to provide services, as described in paragraph 
(d)(6)(i)(B) of this section. Under paragraph (b)(1)(v) of this section, 
W must capitalize transaction costs paid to facilitate the creation of 
these agreements. Because W enters into at least 25 similar transactions 
during 2005, W may pool its transactions for purposes of determining 
whether its transaction costs are de minimis within the meaning of 
paragraph (e)(4)(iii)(A) of this section. W adopts a pooling method by 
establishing one or more pools of similar transactions and by using the 
pooling method to compute its taxable income beginning in its 2005 
taxable year. If W adopts a pooling method, W must include all similar 
transactions in the pool. Under paragraph (h)(4) of this section, the 
transaction with X is not similar to the transactions W enters into with 
its customers who are individuals. While the agreement with X contains 
terms and conditions that are substantially similar to those contained 
in the agreements W enters into with its customers who are individuals, 
the transaction costs paid in the process of pursuing

[[Page 608]]

the agreement with X are reasonably expected to differ significantly 
from the average transaction costs attributable to transactions with its 
customers who are individuals. Accordingly, W may not include the 
transaction with X in the pool of transactions with customers who are 
individuals.

    (i) [Reserved]
    (j) Application to accrual method taxpayers. For purposes of this 
section, the terms amount paid and payment mean, in the case of a 
taxpayer using an accrual method of accounting, a liability incurred 
(within the meaning of Sec. 1.446-1(c)(1)(ii)). A liability may not be 
taken into account under this section prior to the taxable year during 
which the liability is incurred.
    (k) Treatment of related parties and indirect payments. For purposes 
of this section, references to a party other than the taxpayer include 
persons related to that party and persons acting for or on behalf of 
that party (including persons to whom the taxpayer becomes obligated as 
a result of assuming a liability of that party). For this purpose, 
persons are related only if their relationship is described in section 
267(b) or 707(b) or they are engaged in trades or businesses under 
common control within the meaning of section 41(f)(1). References to an 
amount paid to or by a party include an amount paid on behalf of that 
party.
    (l) Examples. The rules of this section are illustrated by the 
following examples in which it is assumed that the Internal Revenue 
Service has not published guidance that requires capitalization under 
paragraph (b)(1)(iv) of this section (relating to amounts paid to create 
or enhance a future benefit that is identified in published guidance as 
an intangible for which capitalization is required):

    Example 1. License granted by a governmental unit. (i) X corporation 
pays $25,000 to state R to obtain a license to sell alcoholic beverages 
in its restaurant. The license is valid indefinitely, provided X 
complies with all applicable laws regarding the sale of alcoholic 
beverages in state R. X pays its outside counsel $4,000 for legal 
services rendered in preparing the license application and otherwise 
representing X during the licensing process. In addition, X determines 
that $2,000 of salaries paid to its employees is allocable to services 
rendered by the employees in obtaining the license.
    (ii) X's payment of $25,000 is an amount paid to a governmental unit 
to obtain a license granted by that agency, as described in paragraph 
(d)(5)(i) of this section. The right has an indefinite duration and 
constitutes an amortizable section 197 intangible. Accordingly, as 
provided in paragraph (f)(3) of this section, the provisions of 
paragraph (f) of this section (relating to the 12-month rule) do not 
apply to X's payment. X must capitalize its $25,000 payment to obtain 
the license from state R.
    (iii) As provided in paragraph (e)(4) of this section, X is not 
required to capitalize employee compensation because such amounts are 
treated as amounts that do not facilitate the acquisition or creation of 
an intangible. Thus, X is not required to capitalize the $2,000 of 
employee compensation allocable to the transaction.
    (iv) X's payment of $4,000 to its outside counsel is an amount paid 
to facilitate the creation of an intangible, as described in paragraph 
(e)(1)(i) of this section. Because X's transaction costs do not exceed 
$5,000, X's transaction costs are de minimis within the meaning of 
paragraph (e)(4)(iii)(A) of this section. Accordingly, X is not required 
to capitalize the $4,000 payment to its outside counsel under this 
section.
    Example 2. Franchise agreement. (i) R corporation is a franchisor of 
income tax return preparation outlets. V corporation negotiates with R 
to obtain the right to operate an income tax return preparation outlet 
under a franchise from R. V pays an initial $100,000 franchise fee to R 
in exchange for the franchise agreement. In addition, V pays its outside 
counsel $4,000 to represent V during the negotiations with R. V also 
pays $2,000 to an industry consultant to advise V during the 
negotiations with R.
    (ii) Under paragraph (d)(6)(i)(A) of this section, V's payment of 
$100,000 is an amount paid to another party to enter into an agreement 
with that party providing V the right to use tangible or intangible 
property. Accordingly, V must capitalize its $100,000 payment to R. The 
franchise agreement is a self-created amortizable section 197 intangible 
within the meaning of section 197(c). Accordingly, as provided in 
paragraph (f)(3) of this section, the 12-month rule contained in 
paragraph (f)(1) of this section does not apply.
    (iii) V's payment of $4,000 to its outside counsel and $2,000 to the 
industry consultant are amounts paid to facilitate the creation of an 
intangible, as described in paragraph (e)(1)(i) of this section. Because 
V's aggregate transaction costs exceed $5,000, V's transaction costs are 
not de minimis within the meaning of paragraph (e)(4)(iii)(A) of this 
section. Accordingly, V must capitalize the $4,000 payment to its 
outside counsel and the $2,000 payment to the industry consultant

[[Page 609]]

under this section into the basis of the franchise, as provided in 
paragraph (g) of this section.
    Example 3. Covenant not to compete. (i) On December 1, 2005, N 
corporation, a calendar year taxpayer, enters into a covenant not to 
compete with B, a key employee that is leaving the employ of N. The 
covenant not to compete is not entered into in connection with the 
acquisition of an interest in a trade or business. The covenant not to 
compete prohibits B from competing with N for a period of 9 months, 
beginning December 1, 2005. N pays B $25,000 in full consideration for 
B's agreement not to compete. In addition, N pays its outside counsel 
$6,000 to facilitate the creation of the covenant not to compete with B. 
N does not have a short taxable year in 2005 or 2006.
    (ii) Under paragraph (d)(6)(i)(C) of this section, N's payment of 
$25,000 is an amount paid to another party to induce that party to enter 
into a covenant not to compete with N. However, because the covenant not 
to compete has a duration that does not extend beyond 12 months after 
the first date on which N realizes the rights attributable to its 
payment (i.e., December 1, 2005) or beyond the end of the taxable year 
following the taxable year in which payment is made, the 12-month rule 
contained in paragraph (f)(1) of this section applies. Accordingly, N is 
not required to capitalize its $25,000 payment to B or its $6,000 
payment to facilitate the creation of the covenant not to compete.
    Example 4. Demand-side management. (i) X corporation, a public 
utility engaged in generating and distributing electrical energy, 
provides programs to its customers to promote energy conservation and 
energy efficiency. These programs are aimed at reducing electrical costs 
to X's customers, building goodwill with X's customers, and reducing X's 
future operating and capital costs. X provides these programs without 
obligating any of its customers participating in the programs to 
purchase power from X in the future. Under these programs, X pays a 
consultant to help industrial customers design energy-efficient 
manufacturing processes, to conduct ``energy efficiency audits'' that 
serve to identify for customers inefficiencies in their energy usage 
patterns, and to provide cash allowances to encourage residential 
customers to replace existing appliances with more energy efficient 
appliances.
    (ii) The amounts paid by X to the consultant are not amounts to 
acquire or create an intangible under paragraph (c) or (d) of this 
section or to facilitate such an acquisition or creation. In addition, 
the amounts do not create a separate and distinct intangible asset 
within the meaning of paragraph (b)(3) of this section. Accordingly, the 
amounts paid to the consultant are not required to be capitalized under 
this section. While the amounts may serve to reduce future operating and 
capital costs and create goodwill with customers, these benefits, 
without more, are not intangibles for which capitalization is required 
under this section.
    Example 5. Business process re-engineering. (i) V corporation 
manufactures its products using a batch production system. Under this 
system, V continuously produces component parts of its various products 
and stockpiles these parts until they are needed in V's final assembly 
line. Finished goods are stockpiled awaiting orders from customers. V 
discovers that this process ties up significant amounts of V's capital 
in work-in-process and finished goods inventories. V hires B, a 
consultant, to advise V on improving the efficiency of its manufacturing 
operations. B recommends a complete re-engineering of V's manufacturing 
process to a process known as just-in-time manufacturing. Just-in-time 
manufacturing involves reconfiguring a manufacturing plant to a 
configuration of ``cells'' where each team in a cell performs the entire 
manufacturing process for a particular customer order, thus reducing 
inventory stockpiles.
    (ii) V incurred three categories of costs to convert its 
manufacturing process to a just-in-time system. First, V paid B, a 
consultant, $250,000 in professional fees to implement the conversion of 
V's plant to a just-in-time system. Second, V paid C, a contractor, 
$100,000 to relocate and reconfigure V's manufacturing equipment from an 
assembly line layout to a configuration of cells. Third, V paid D, a 
consultant, $50,000 to train V's employees in the just-in-time 
manufacturing process.
    (iii) The amounts paid by V to B, C, and D are not amounts to 
acquire or create an intangible under paragraph (c) or (d) of this 
section or to facilitate such an acquisition or creation. In addition, 
the amounts do not create a separate and distinct intangible asset 
within the meaning of paragraph (b)(3) of this section. Accordingly, the 
amounts paid to B, C, and D are not required to be capitalized under 
this section. While the amounts produce long term benefits to V in the 
form of reduced inventory stockpiles, improved product quality, and 
increased efficiency, these benefits, without more, are not intangibles 
for which capitalization is required under this section.
    Example 6. Defense of business reputation. (i) X, an investment 
adviser, serves as the fund manager of a money market investment fund. 
X, like its competitors in the industry, strives to maintain a constant 
net asset value for its money market fund of $1.00 per share. During 
2005, in the course of managing the fund assets, X incorrectly predicts 
the direction of market interest rates, resulting in significant 
investment losses to the fund. Due to these significant losses, X is 
faced with the prospect of reporting a net asset value that is less than 
$1.00 per share. X is

[[Page 610]]

not aware of any investment adviser in its industry that has ever 
reported a net asset value for its money market fund of less than $1.00 
per share. X is concerned that reporting a net asset value of less than 
$1.00 per share will significantly harm its reputation as an investment 
adviser, and could lead to litigation by shareholders. X decides to 
contribute $2,000,000 to the fund in order to raise the net asset value 
of the fund to $1.00 per share. This contribution is not a loan to the 
fund and does not give X any ownership interest in the fund.
    (ii) The $2,000,000 contribution is not an amount paid to acquire or 
create an intangible under paragraph (c) or (d) of this section or to 
facilitate such an acquisition or creation. In addition, the amount does 
not create a separate and distinct intangible asset within the meaning 
of paragraph (b)(3) of this section. Accordingly, the amount contributed 
to the fund is not required to be capitalized under this section. While 
the amount serves to protect the business reputation of the taxpayer and 
may protect the taxpayer from litigation by shareholders, these 
benefits, without more, are not intangibles for which capitalization is 
required under this section.
    Example 7. Product launch costs. (i) R corporation, a manufacturer 
of pharmaceutical products, is required by law to obtain regulatory 
approval before selling its products. While awaiting regulatory approval 
on Product A, R pays to develop and implement a marketing strategy and 
an advertising campaign to raise consumer awareness of the purported 
need for Product A. R also pays to train health care professionals and 
other distributors in the proper use of Product A.
    (ii) The amounts paid by R are not amounts paid to acquire or create 
an intangible under paragraph (c) or (d) of this section or to 
facilitate such an acquisition or creation. In addition, the amounts do 
not create a separate and distinct intangible asset within the meaning 
of paragraph (b)(3) of this section. Accordingly, R is not required to 
capitalize these amounts under this section. While the amounts may 
benefit R by creating consumer demand for Product A and increasing 
awareness of Product A among distributors, these benefits, without more, 
are not intangibles for which capitalization is required under this 
section.
    Example 8. Stocklifting costs. (i) N corporation is a wholesale 
distributor of Brand A aftermarket automobile replacement parts. In an 
effort to induce a retail automobile parts supply store to stock only 
Brand A parts, N offers to replace all of the store's inventory of other 
branded parts with Brand A parts, and to credit the store for its cost 
of other branded parts. The store is under no obligation to continue 
stocking Brand A parts or to purchase a minimum volume of Brand A parts 
from N in the future.
    (ii) The amount paid by N as a credit to the store for the cost of 
other branded parts is not an amount paid to acquire or create an 
intangible under paragraph (c) or (d) of this section or to facilitate 
such an acquisition or creation. In addition, the amount does not create 
a separate and distinct intangible asset within the meaning of paragraph 
(b)(3) of this section. Accordingly, N is not required to capitalize the 
amount under this section. While the amount may create a hope or 
expectation by N that the store will continue to stock Brand A parts, 
this benefit, without more, is not an intangible for which 
capitalization is required under this section.
    (iii) Alternatively, assume that N agrees to credit the store for 
its cost of other branded parts in exchange for the store's agreement to 
purchase all of its inventory requirements for such parts from N for a 
period of at least 3 years. The amount paid by N as a credit to the 
store for the cost of other branded parts is an amount paid to induce 
the store to enter into an agreement providing R the right to provide 
property. Accordingly, R must capitalize its payment.
    Example 9. Package design costs. (i) Z corporation manufactures and 
markets personal care products. Z pays $100,000 to a consultant to 
develop a package design for Z's newest product, Product A. Z also pays 
a fee to a government agency to obtain trademark and copyright 
protection on certain elements of the package design. Z pays its outside 
legal counsel $10,000 for services rendered in preparing and filing the 
trademark and copyright applications and for other services rendered in 
securing the trademark and copyright protection.
    (ii) The $100,000 paid by Z to the consultant for development of the 
package design is not an amount paid to acquire or create an intangible 
under paragraph (c) or (d) of this section or to facilitate such an 
acquisition or creation. In addition, as provided in paragraph (b)(3)(v) 
of this section, amounts paid to develop a package design are treated as 
amounts that do not create a separate and distinct intangible asset. 
Accordingly, Z is not required to capitalize the $100,000 payment under 
this section.
    (iii) The amounts paid by Z to the government agency to obtain 
trademark and copyright protection are amounts paid to a government 
agency for a right granted by that agency. Accordingly, Z must 
capitalize the payment. In addition, the $10,000 paid by Z to its 
outside counsel is an amount paid to facilitate the creation of the 
trademark and copyright. Because the aggregate amounts paid to 
facilitate the transaction exceed $5,000, the amounts are not de minimis 
as defined in paragraph (e)(4)(iii)(A) of this section. Accordingly, Z 
must capitalize the $10,000 payment to its outside counsel under 
paragraph (b)(1)(v) of this section.

[[Page 611]]

    (iv) Alternatively, assume that Z acquires an existing package 
design for Product A as part of an acquisition of a trade or business 
that constitutes an applicable asset acquisition within the meaning of 
section 1060(c). Assume further that $100,000 of the consideration paid 
by N in the acquisition is properly allocable to the package design for 
Product A. Under paragraph (c)(1) of this section, Z must capitalize the 
$100,000 payment.
    Example 10. Contract to provide services. (i) Q corporation, a 
financial planning firm, provides financial advisory services on a fee-
only basis. During 2005, Q and several other financial planning firms 
submit separate bids to R corporation for a contract to become one of 
three providers of financial advisory services to R's employees. Q pays 
$2,000 to a printing company to develop and produce materials for its 
sales presentation to R's management. Q also pays $6,000 to travel to 
R's corporate headquarters to make the sales presentation, and $20,000 
of salaries to its employees for services performed in preparing the bid 
and making the presentation to R's management. Q's bid is successful and 
Q enters into an agreement with R in 2005 under which Q agrees to 
provide financial advisory services to R's employees, and R agrees to 
pay Q's fee on behalf of each employee who chooses to utilize such 
services. R enters into similar agreements with two other financial 
planning firms, and R's employees may choose to use the services of any 
one of the three firms. Based on its past experience, Q reasonably 
expects to provide services to at least 5 percent of R's employees.
    (ii) Q's agreement with R is not an agreement providing Q the right 
to provide services, as described in paragraph (d)(6)(i)(B) of this 
section. Under paragraph (d)(6)(iv) the agreement places no obligation 
on another person to request or pay for Q's services. Accordingly, Q is 
not required to capitalize any of the amounts paid in the process of 
pursuing the agreement with R.
    Example 11. Mutual fund distributor. (i) D incurs costs to enter 
into a distribution agreement with M, a mutual fund. The initial term of 
the distribution agreement is two years, and afterwards must be approved 
annually by M. The distribution agreement can be terminated by either 
party on 60 days notice. Although distribution agreements are rarely 
terminated in the mutual fund industry, M is not economically compelled 
to continue D's distribution agreement. Under the distribution 
agreement, D has the exclusive right to sell shares of M and agrees to 
use its best efforts to solicit orders for the sale of shares of M. D 
sells shares in M directly to the general public as well as through 
brokers. When an investor places an order for M shares with a broker, D 
pays the broker a commission for selling the shares to the investor. 
Under the distribution agreement, D receives compensation from M in the 
form of 12b-1 fees (which equal a percentage of M's net asset value 
attributable to investors that have held their shares for up to 6 years) 
and contingent deferred sales charges (which are paid if the investor 
redeems the purchased shares within 6 years).
    (ii) The distribution agreement is not an agreement providing D with 
the right to provide services, as described in paragraph (d)(6)(i)(B) of 
this section, because the distribution agreement can be terminated by M 
at will upon 60 days notice and M is not economically compelled to 
continue the distribution agreement. Accordingly, D is not required to 
capitalize the costs of creating (or facilitating the creation of) the 
distribution agreement under paragraphs (b)(1)(ii) or (v) of this 
section. In addition, as provided in paragraph (b)(3)(ii) of this 
section, amounts paid to create an agreement are treated as amounts that 
do not create a separate and distinct intangible asset. Accordingly, D 
also is not required to capitalize the costs of creating (or 
facilitating the creation of) the distribution agreement under paragraph 
(b)(1)(iii) or (v) of this section.
    (iii) Under paragraph (b)(3)(iii), the broker commissions paid by D 
in performing services under the distribution agreement do not create 
(or facilitate the creation of) a separate and distinct intangible 
asset. In addition, the broker commissions do not create an intangible 
described in paragraph (d) of this section. Accordingly, D is not 
required to capitalize the broker commissions under this section.

    (m) Amortization. For rules relating to amortization of certain 
intangibles, see Sec. 1.167(a)-3.
    (n) Intangible interests in land. [Reserved].
    (o) Effective date. This section applies to amounts paid or incurred 
on or after December 31, 2003.
    (p) Accounting method changes--(1) In general. A taxpayer seeking to 
change a method of accounting to comply with this section must secure 
the consent of the Commissioner in accordance with the requirements of 
Sec. 1.446-1(e). For the taxpayer's first taxable year ending on or 
after December 31, 2003, the taxpayer is granted the consent of the 
Commissioner to change its method of accounting to comply with this 
section, provided the taxpayer follows the administrative procedures 
issued under Sec. 1.446-1(e)(3)(ii) for obtaining the Commissioner's 
automatic consent to a change in accounting method (for further 
guidance, for example, see Rev. Proc. 2002-

[[Page 612]]

9 (2002-1 C.B. 327) and Sec. 601.601(d)(2)(ii)(b) of this chapter).
    (2) Scope limitations. Any limitations on obtaining the automatic 
consent of the Commissioner do not apply to a taxpayer seeking to change 
to a method of accounting to comply with this section for its first 
taxable year ending on or after December 31, 2003.
    (3) Section 481(a) adjustment. With the exception of a change to a 
pooling method authorized by this section, the section 481(a) adjustment 
for a change in method of accounting to comply with this section for a 
taxpayer's first taxable year ending on or after December 31, 2003 is 
determined by taking into account only amounts paid or incurred in 
taxable years ending on or after January 24, 2002. A taxpayer seeking to 
change to a pooling method authorized by this section on or after the 
effective date of these regulations must change to the method using a 
cut-off method.

[T.D. 9107, 69 FR 446, Jan. 5, 2004]



Sec. 1.263(a)-5  Amounts paid or incurred to facilitate an acquisition 
of a trade or business, a change in the capital structure of a 

business entity, and certain other transactions.

    (a) General rule. A taxpayer must capitalize an amount paid to 
facilitate (within the meaning of paragraph (b) of this section) each of 
the following transactions, without regard to whether the transaction is 
comprised of a single step or a series of steps carried out as part of a 
single plan and without regard to whether gain or loss is recognized in 
the transaction:
    (1) An acquisition of assets that constitute a trade or business 
(whether the taxpayer is the acquirer in the acquisition or the target 
of the acquisition).
    (2) An acquisition by the taxpayer of an ownership interest in a 
business entity if, immediately after the acquisition, the taxpayer and 
the business entity are related within the meaning of section 267(b) or 
707(b) (see Sec. 1.263(a)-4 for rules requiring capitalization of 
amounts paid by the taxpayer to acquire an ownership interest in a 
business entity, or to facilitate the acquisition of an ownership 
interest in a business entity, where the taxpayer and the business 
entity are not related within the meaning of section 267(b) or 707(b) 
immediately after the acquisition).
    (3) An acquisition of an ownership interest in the taxpayer (other 
than an acquisition by the taxpayer of an ownership interest in the 
taxpayer, whether by redemption or otherwise).
    (4) A restructuring, recapitalization, or reorganization of the 
capital structure of a business entity (including reorganizations 
described in section 368 and distributions of stock by the taxpayer as 
described in section 355).
    (5) A transfer described in section 351 or section 721 (whether the 
taxpayer is the transferor or transferee).
    (6) A formation or organization of a disregarded entity.
    (7) An acquisition of capital.
    (8) A stock issuance.
    (9) A borrowing. For purposes of this section, a borrowing means any 
issuance of debt, including an issuance of debt in an acquisition of 
capital or in a recapitalization. A borrowing also includes debt issued 
in a debt for debt exchange under Sec. 1.1001-3.
    (10) Writing an option.
    (b) Scope of facilitate--(1) In general. Except as otherwise 
provided in this section, an amount is paid to facilitate a transaction 
described in paragraph (a) of this section if the amount is paid in the 
process of investigating or otherwise pursuing the transaction. Whether 
an amount is paid in the process of investigating or otherwise pursuing 
the transaction is determined based on all of the facts and 
circumstances. In determining whether an amount is paid to facilitate a 
transaction, the fact that the amount would (or would not) have been 
paid but for the transaction is relevant, but is not determinative. An 
amount paid to determine the value or price of a transaction is an 
amount paid in the process of investigating or otherwise pursuing the 
transaction. An amount paid to another party in exchange for tangible or 
intangible property is not an amount paid to facilitate the exchange. 
For example, the purchase price paid to the target of an asset 
acquisition in exchange for its assets is not an amount paid to 
facilitate the acquisition. Similarly, the purchase price paid by an 
acquirer to the target's shareholders in

[[Page 613]]

exchange for their stock in a stock acquisition is not an amount paid to 
facilitate the acquisition of the stock. See Sec. 1.263(a)-1, Sec. 
1.263(a)-2, and Sec. 1.263(a)-4 for rules requiring capitalization of 
the purchase price paid to acquire property.
    (2) Ordering rules. An amount paid in the process of investigating 
or otherwise pursuing both a transaction described in paragraph (a) of 
this section and an acquisition or creation of an intangible described 
in Sec. 1.263(a)-4 is subject to the rules contained in this section, 
and not to the rules contained in Sec. 1.263(a)-4. In addition, an 
amount required to be capitalized by Sec. 1.263(a)-1, Sec. 1.263(a)-2, 
or Sec. 1.263(a)-4 does not facilitate a transaction described in 
paragraph (a) of this section.
    (c) Special rules for certain costs--(1) Borrowing costs. An amount 
paid to facilitate a borrowing does not facilitate another transaction 
(other than the borrowing) described in paragraph (a) of this section.
    (2) Costs of asset sales. An amount paid by a taxpayer to facilitate 
a sale of its assets does not facilitate another transaction (other than 
the sale) described in paragraph (a) of this section. For example, where 
a target corporation, in preparation for a merger with an acquiring 
corporation, sells assets that are not desired by the acquiring 
corporation, amounts paid to facilitate the sale of the unwanted assets 
are not required to be capitalized as amounts paid to facilitate the 
merger.
    (3) Mandatory stock distributions. An amount paid in the process of 
investigating or otherwise pursuing a distribution of stock by a 
taxpayer to its shareholders does not facilitate a transaction described 
in paragraph (a) of this section if the divestiture of the stock (or of 
properties transferred to an entity whose stock is distributed) is 
required by law, regulatory mandate, or court order. A taxpayer is not 
required to capitalize (under this section or Sec. 1.263(a)-4) an 
amount paid to organize (or facilitate the organization of) an entity if 
the entity is organized solely to receive properties that the taxpayer 
is required to divest by law, regulatory mandate, or court order and if 
the taxpayer distributes the stock of the entity to its shareholders. A 
taxpayer also is not required to capitalize (under this section or Sec. 
1.263(a)-4) an amount paid to transfer property to an entity if the 
taxpayer is required to divest itself of that property by law, 
regulatory mandate, or court order and if the stock of the recipient 
entity is distributed to the taxpayer's shareholders.
    (4) Bankruptcy reorganization costs. An amount paid to institute or 
administer a proceeding under Chapter 11 of the Bankruptcy Code by a 
taxpayer that is the debtor under the proceeding constitutes an amount 
paid to facilitate a reorganization within the meaning of paragraph 
(a)(4) of this section, regardless of the purpose for which the 
proceeding is instituted. For example, an amount paid to prepare and 
file a petition under Chapter 11, to obtain an extension of the 
exclusivity period under Chapter 11, to formulate plans of 
reorganization under Chapter 11, to analyze plans of reorganization 
formulated by another party in interest, or to contest or obtain 
approval of a plan of reorganization under Chapter 11 facilitates a 
reorganization within the meaning of this section. However, amounts 
specifically paid to formulate, analyze, contest or obtain approval of 
the portion of a plan of reorganization under Chapter 11 that resolves 
tort liabilities of the taxpayer do not facilitate a reorganization 
within the meaning of paragraph (a)(4) of this section if the amounts 
would have been treated as ordinary and necessary business expenses 
under section 162 had the bankruptcy proceeding not been instituted. In 
addition, an amount paid by the taxpayer to defend against the 
commencement of an involuntary bankruptcy proceeding against the 
taxpayer does not facilitate a reorganization within the meaning of 
paragraph (a)(4) of this section. An amount paid by the debtor to 
operate its business during a Chapter 11 bankruptcy proceeding is not an 
amount paid to institute or administer the bankruptcy proceeding and 
does not facilitate a reorganization. Such amount is treated in the same 
manner as it would have been treated had the bankruptcy proceeding not 
been instituted.
    (5) Stock issuance costs of open-end regulated investment companies. 
Amounts

[[Page 614]]

paid by an open-end regulated investment company (within the meaning of 
section 851) to facilitate an issuance of its stock are treated as 
amounts that do not facilitate a transaction described in paragraph (a) 
of this section unless the amounts are paid during the initial stock 
offering period.
    (6) Integration costs. An amount paid to integrate the business 
operations of the taxpayer with the business operations of another does 
not facilitate a transaction described in paragraph (a) of this section, 
regardless of when the integration activities occur.
    (7) Registrar and transfer agent fees for the maintenance of capital 
stock records. An amount paid by a taxpayer to a registrar or transfer 
agent in connection with the transfer of the taxpayer's capital stock 
does not facilitate a transaction described in paragraph (a) of this 
section unless the amount is paid with respect to a specific transaction 
described in paragraph (a). For example, a taxpayer is not required to 
capitalize periodic payments to a transfer agent for maintaining records 
of the names and addresses of shareholders who trade the taxpayer's 
shares on a national exchange. By comparison, a taxpayer is required to 
capitalize an amount paid to the transfer agent for distributing proxy 
statements requesting shareholder approval of a transaction described in 
paragraph (a) of this section.
    (8) Termination payments and amounts paid to facilitate mutually 
exclusive transactions. An amount paid to terminate (or facilitate the 
termination of) an agreement to enter into a transaction described in 
paragraph (a) of this section constitutes an amount paid to facilitate a 
second transaction described in paragraph (a) of this section only if 
the transactions are mutually exclusive. An amount paid to facilitate a 
transaction described in paragraph (a) of this section is treated as an 
amount paid to facilitate a second transaction described in paragraph 
(a) of this section only if the transactions are mutually exclusive.
    (d) Simplifying conventions--(1) In general. For purposes of this 
section, employee compensation (within the meaning of paragraph (d)(2) 
of this section), overhead, and de minimis costs (within the meaning of 
paragraph (d)(3) of this section) are treated as amounts that do not 
facilitate a transaction described in paragraph (a) of this section.
    (2) Employee compensation--(i) In general. The term employee 
compensation means compensation (including salary, bonuses and 
commissions) paid to an employee of the taxpayer. For purposes of this 
section, whether an individual is an employee is determined in 
accordance with the rules contained in section 3401(c) and the 
regulations thereunder.
    (ii) Certain amounts treated as employee compensation. For purposes 
of this section, a guaranteed payment to a partner in a partnership is 
treated as employee compensation. For purposes of this section, annual 
compensation paid to a director of a corporation is treated as employee 
compensation. For example, an amount paid to a director of a corporation 
for attendance at a regular meeting of the board of directors (or 
committee thereof) is treated as employee compensation for purposes of 
this section. However, an amount paid to the director for attendance at 
a special meeting of the board of directors (or committee thereof) is 
not treated as employee compensation. An amount paid to a person that is 
not an employee of the taxpayer (including the employer of the 
individual who performs the services) is treated as employee 
compensation for purposes of this section only if the amount is paid for 
secretarial, clerical, or similar administrative support services (other 
than services involving the preparation and distribution of proxy 
solicitations and other documents seeking shareholder approval of a 
transaction described in paragraph (a) of this section). In the case of 
an affiliated group of corporations filing a consolidated federal income 
tax return, a payment by one member of the group to a second member of 
the group for services performed by an employee of the second member is 
treated as employee compensation if the services provided by the 
employee are provided at a time during which both members are 
affiliated.
    (3) De minimis costs--(i) In general. The term de minimis costs 
means

[[Page 615]]

amounts (other than employee compensation and overhead) paid in the 
process of investigating or otherwise pursuing a transaction described 
in paragraph (a) of this section if, in the aggregate, the amounts do 
not exceed $5,000 (or such greater amount as may be set forth in 
published guidance). If the amounts exceed $5,000 (or such greater 
amount as may be set forth in published guidance), none of the amounts 
are de minimis costs within the meaning of this paragraph (d)(3). For 
purposes of this paragraph (d)(3), an amount paid in the form of 
property is valued at its fair market value at the time of the payment.
    (ii) Treatment of commissions. The term de minimis costs does not 
include commissions paid to facilitate a transaction described in 
paragraph (a) of this section.
    (4) Election to capitalize. A taxpayer may elect to treat employee 
compensation, overhead, or de minimis costs paid in the process of 
investigating or otherwise pursuing a transaction described in paragraph 
(a) of this section as amounts that facilitate the transaction. The 
election is made separately for each transaction and applies to employee 
compensation, overhead, or de minimis costs, or to any combination 
thereof. For example, a taxpayer may elect to treat overhead and de 
minimis costs, but not employee compensation, as amounts that facilitate 
the transaction. A taxpayer makes the election by treating the amounts 
to which the election applies as amounts that facilitate the transaction 
in the taxpayer's timely filed original federal income tax return 
(including extensions) for the taxable year during which the amounts are 
paid. In the case of an affiliated group of corporations filing a 
consolidated return, the election is made separately with respect to 
each member of the group, and not with respect to the group as a whole. 
In the case of an S corporation or partnership, the election is made by 
the S corporation or by the partnership, and not by the shareholders or 
partners. An election made under this paragraph (d)(4) is revocable with 
respect to each taxable year for which made only with the consent of the 
Commissioner.
    (e) Certain acquisitive transactions--(1) In general. Except as 
provided in paragraph (e)(2) of this section (relating to inherently 
facilitative amounts), an amount paid by the taxpayer in the process of 
investigating or otherwise pursuing a covered transaction (as described 
in paragraph (e)(3) of this section) facilitates the transaction within 
the meaning of this section only if the amount relates to activities 
performed on or after the earlier of--
    (i) The date on which a letter of intent, exclusivity agreement, or 
similar written communication (other than a confidentiality agreement) 
is executed by representatives of the acquirer and the target; or
    (ii) The date on which the material terms of the transaction (as 
tentatively agreed to by representatives of the acquirer and the target) 
are authorized or approved by the taxpayer's board of directors (or 
committee of the board of directors) or, in the case of a taxpayer that 
is not a corporation, the date on which the material terms of the 
transaction (as tentatively agreed to by representatives of the acquirer 
and the target) are authorized or approved by the appropriate governing 
officials of the taxpayer. In the case of a transaction that does not 
require authorization or approval of the taxpayer's board of directors 
(or appropriate governing officials in the case of a taxpayer that is 
not a corporation) the date determined under this paragraph (e)(1)(ii) 
is the date on which the acquirer and the target execute a binding 
written contract reflecting the terms of the transaction.
    (2) Exception for inherently facilitative amounts. An amount paid in 
the process of investigating or otherwise pursuing a covered transaction 
facilitates that transaction if the amount is inherently facilitative, 
regardless of whether the amount is paid for activities performed prior 
to the date determined under paragraph (e)(1) of this section. An amount 
is inherently facilitative if the amount is paid for--
    (i) Securing an appraisal, formal written evaluation, or fairness 
opinion related to the transaction;
    (ii) Structuring the transaction, including negotiating the 
structure of

[[Page 616]]

the transaction and obtaining tax advice on the structure of the 
transaction (for example, obtaining tax advice on the application of 
section 368);
    (iii) Preparing and reviewing the documents that effectuate the 
transaction (for example, a merger agreement or purchase agreement);
    (iv) Obtaining regulatory approval of the transaction, including 
preparing and reviewing regulatory filings;
    (v) Obtaining shareholder approval of the transaction (for example, 
proxy costs, solicitation costs, and costs to promote the transaction to 
shareholders); or
    (vi) Conveying property between the parties to the transaction (for 
example, transfer taxes and title registration costs).
    (3) Covered transactions. For purposes of this paragraph (e), the 
term covered transaction means the following transactions:
    (i) A taxable acquisition by the taxpayer of assets that constitute 
a trade or business.
    (ii) A taxable acquisition of an ownership interest in a business 
entity (whether the taxpayer is the acquirer in the acquisition or the 
target of the acquisition) if, immediately after the acquisition, the 
acquirer and the target are related within the meaning of section 267(b) 
or 707(b).
    (iii) A reorganization described in section 368(a)(1)(A), (B), or 
(C) or a reorganization described in section 368(a)(1)(D) in which stock 
or securities of the corporation to which the assets are transferred are 
distributed in a transaction which qualifies under section 354 or 356 
(whether the taxpayer is the acquirer or the target in the 
reorganization).
    (f) Documentation of success-based fees--An amount paid that is 
contingent on the successful closing of a transaction described in 
paragraph (a) of this section is an amount paid to facilitate the 
transaction except to the extent the taxpayer maintains sufficient 
documentation to establish that a portion of the fee is allocable to 
activities that do not facilitate the transaction. This documentation 
must be completed on or before the due date of the taxpayer's timely 
filed original federal income tax return (including extensions) for the 
taxable year during which the transaction closes. For purposes of this 
paragraph (f), documentation must consist of more than merely an 
allocation between activities that facilitate the transaction and 
activities that do not facilitate the transaction, and must consist of 
supporting records (for example, time records, itemized invoices, or 
other records) that identify--
    (1) The various activities performed by the service provider;
    (2) The amount of the fee (or percentage of time) that is allocable 
to each of the various activities performed;
    (3) Where the date the activity was performed is relevant to 
understanding whether the activity facilitated the transaction, the 
amount of the fee (or percentage of time) that is allocable to the 
performance of that activity before and after the relevant date; and
    (4) The name, business address, and business telephone number of the 
service provider.
    (g) Treatment of capitalized costs--(1) Tax-free acquisitive 
transactions. [Reserved]
    (2) Taxable acquisitive transactions--(i) Acquirer. In the case of 
an acquisition, merger, or consolidation that is not described in 
section 368, an amount required to be capitalized under this section by 
the acquirer is added to the basis of the acquired assets (in the case 
of a transaction that is treated as an acquisition of the assets of the 
target for federal income tax purposes) or the acquired stock (in the 
case of a transaction that is treated as an acquisition of the stock of 
the target for federal income tax purposes).
    (ii) Target--(A) Asset acquisition. In the case of an acquisition, 
merger, or consolidation that is not described in section 368 and that 
is treated as an acquisition of the assets of the target for federal 
income tax purposes, an amount required to be capitalized under this 
section by the target is treated as a reduction of the target's amount 
realized on the disposition of its assets.
    (B) Stock acquisition. [Reserved]
    (3) Stock issuance transactions. [Reserved]
    (4) Borrowings. For the treatment of amounts required to be 
capitalized

[[Page 617]]

under this section with respect to a borrowing, see Sec. 1.446-5.
    (5) Treatment of capitalized amounts by option writer. An amount 
required to be capitalized by an option writer under paragraph (a)(10) 
of this section is not currently deductible under section 162 or 212. 
Instead, the amount required to be capitalized generally reduces the 
total premium received by the option writer. However, other provisions 
of law may limit the reduction of the premium by the capitalized amount 
(for example, if the capitalized amount is never deductible by the 
option writer).
    (h) Application to accrual method taxpayers. For purposes of this 
section, the terms amount paid and payment mean, in the case of a 
taxpayer using an accrual method of accounting, a liability incurred 
(within the meaning of Sec. 1.446-1(c)(1)(ii)). A liability may not be 
taken into account under this section prior to the taxable year during 
which the liability is incurred.
    (i) [Reserved]
    (j) Coordination with other provisions of the Internal Revenue Code. 
Nothing in this section changes the treatment of an amount that is 
specifically provided for under any other provision of the Internal 
Revenue Code (other than section 162(a) or 212) or regulations 
thereunder.
    (k) Treatment of indirect payments. For purposes of this section, 
references to an amount paid to or by a party include an amount paid on 
behalf of that party.
    (l) Examples. The following examples illustrate the rules of this 
section:

    Example 1. Costs to facilitate. Q corporation pays its outside 
counsel $20,000 to assist Q in registering its stock with the Securities 
and Exchange Commission. Q is not a regulated investment company within 
the meaning of section 851. Q's payments to its outside counsel are 
amounts paid to facilitate the issuance of stock. Accordingly, Q must 
capitalize its $20,000 payment under paragraph (a)(8) of this section 
(whether incurred before or after the issuance of the stock and whether 
or not the registration is productive of equity capital).
    Example 2. Costs to facilitate. Q corporation seeks to acquire all 
of the outstanding stock of Y corporation. To finance the acquisition, Q 
must issue new debt. Q pays an investment banker $25,000 to market the 
debt to the public and pays its outside counsel $10,000 to prepare the 
offering documents for the debt. Q's payment of $35,000 facilitates a 
borrowing and must be capitalized under paragraph (a)(9) of this 
section. As provided in paragraph (c)(1) of this section, Q's payment 
does not facilitate the acquisition of Y, notwithstanding the fact that 
Q incurred the new debt to finance its acquisition of Y. See Sec. 
1.446-5 for the treatment of Q's capitalized payment.
    Example 3. Costs to facilitate. (i) Z agrees to pay investment 
banker B $1,000,000 for B's services in evaluating four alternative 
transactions ($250,000 for each alternative): An initial public 
offering; a borrowing of funds; an acquisition by Z of a competitor; and 
an acquisition of Z by a competitor. Z eventually decides to pursue a 
borrowing and abandons the other options.
    (ii) The $250,000 payment to evaluate the possibility of a borrowing 
is an amount paid in the process of investigating or otherwise pursuing 
a transaction described in paragraph (a)(9) of this section. Accordingly 
Z must capitalize that $250,000 payment to B. See Sec. 1.446-5 for the 
treatment of Z's capitalized payment.
    (iii) The $250,000 payment to evaluate the possibility of an initial 
public offering is an amount paid in the process of investigating or 
otherwise pursuing a transaction described in paragraph (a)(8) of this 
section. Accordingly, Z must capitalize that $250,000 payment to B under 
this section. Because the borrowing and the initial public offering are 
not mutually exclusive transactions, the $250,000 is not treated as an 
amount paid to facilitate the borrowing. When Z abandons the initial 
public offering, Z may recover under section 165 the $250,000 paid to 
facilitate the initial public offering.
    (iv) The $500,000 paid by Z to evaluate the possibilities of an 
acquisition of Z by a competitor and an acquisition of a competitor by Z 
are amounts paid in the process of investigating or otherwise pursuing 
transactions described in paragraphs (a) and (e)(3) of this section. 
Accordingly, Z is only required to capitalize under this section the 
portion of the $500,000 payment that relates to inherently facilitative 
activities under paragraph (e)(2) of this section or to activities 
performed on or after the date determined under paragraph (e)(1) of this 
section. Because the borrowing and the possible acquisitions are not 
mutually exclusive transactions, no portion of the $500,000 is treated 
as an amount paid to facilitate the borrowing. When Z abandons the 
acquisition transactions, Z may recover under section 165 any portion of 
the $500,000 that was paid to facilitate the acquisitions.
    Example 4. Corporate acquisition. (i) On February 1, 2005, R 
corporation decides to investigate the acquisition of three potential 
targets: T corporation, U corporation, and V corporation. R's 
consideration of T, U, and V represents the consideration of three 
distinct

[[Page 618]]

transactions, any or all of which R might consummate and has the 
financial ability to consummate. On March 1, 2005, R enters into an 
exclusivity agreement with T and stops pursuing U and V. On July 1, 
2005, R acquires all of the stock of T in a transaction described in 
section 368. R pays $1,000,000 to an investment banker and $50,000 to 
its outside counsel to conduct due diligence on T, U, and V; determine 
the value of T, U, and V; negotiate and structure the transaction with 
T; draft the merger agreement; secure shareholder approval; prepare SEC 
filings; and obtain the necessary regulatory approvals.
    (ii) Under paragraph (e)(1) of this section, the amounts paid to 
conduct due diligence on T, U and V prior to March 1, 2005 (the date of 
the exclusivity agreement) are not amounts paid to facilitate the 
acquisition of the stock of T, U or V and are not required to be 
capitalized under this section. However, the amounts paid to conduct due 
diligence on T on and after March 1, 2005, are amounts paid to 
facilitate the acquisition of the stock of T and must be capitalized 
under paragraph (a)(2) of this section.
    (iii) Under paragraph (e)(2) of this section, the amounts paid to 
determine the value of T, negotiate and structure the transaction with 
T, draft the merger agreement, secure shareholder approval, prepare SEC 
filings, and obtain necessary regulatory approvals are inherently 
facilitative amounts paid to facilitate the acquisition of the stock of 
T and must be capitalized, regardless of whether those activities occur 
prior to, on, or after March 1, 2005.
    (iv) Under paragraph (e)(2) of this section, the amounts paid to 
determine the value of U and V are inherently facilitative amounts paid 
to facilitate the acquisition of U or V and must be capitalized. Because 
the acquisition of U, V, and T are not mutually exclusive transactions, 
the costs that facilitate the acquisition of U and V do not facilitate 
the acquisition of T. Accordingly, the amounts paid to determine the 
value of U and V may be recovered under section 165 in the taxable year 
that R abandons the planned mergers with U and V.
    Example 5. Corporate acquisition; employee bonus. Assume the same 
facts as in Example 4, except R pays a bonus of $10,000 to one of its 
corporate officers who negotiated the acquisition of T. As provided by 
paragraph (d)(1) of this section, Y is not required to capitalize any 
portion of the bonus paid to the corporate officer.
    Example 6. Corporate acquisition; integration costs. Assume the same 
facts as in Example 4, except that, before and after the acquisition is 
consummated, R incurs costs to relocate personnel and equipment, provide 
severance benefits to terminated employees, integrate records and 
information systems, prepare new financial statements for the combined 
entity, and reduce redundancies in the combined business operations. 
Under paragraph (c)(6) of this section, these costs do not facilitate 
the acquisition of T. Accordingly, R is not required to capitalize any 
of these costs under this section.
    Example 7. Corporate acquisition; compensation to target's 
employees. Assume the same facts as in Example 4, except that, prior to 
the acquisition, certain employees of T held unexercised options issued 
pursuant to T's stock option plan. These options granted the employees 
the right to purchase T stock at a fixed option price. The options did 
not have a readily ascertainable value (within the meaning of Sec. 
1.83-7(b)), and thus no amount was included in the employees' income 
when the options were granted. As a condition of the acquisition, T is 
required to terminate its stock option plan. T therefore agrees to pay 
its employees who hold unexercised stock options the difference between 
the option price and the current value of T's stock in consideration of 
their agreement to cancel their unexercised options. Under paragraph 
(d)(1) of this section, T is not required to capitalize the amounts paid 
to its employees. See section 83 for the treatment of amounts received 
in cancellation of stock options.
    Example 8. Asset acquisition; employee compensation. N corporation 
owns tangible and intangible assets that constitute a trade or business. 
M corporation purchases all the assets of N in a taxable transaction. 
Under paragraph (a)(1) of this section, M must capitalize amounts paid 
to facilitate the acquisition of the assets of N. Under paragraph (d)(1) 
of this section, no portion of the salaries of M's employees who work on 
the acquisition are treated as facilitating the transaction.
    Example 9. Corporate acquisition; retainer. Y corporation's outside 
counsel charges Y $60,000 for services rendered in facilitating the 
friendly acquisition of the stock of Y corporation by X corporation. Y 
has an agreement with its outside counsel under which Y pays an annual 
retainer of $50,000. Y's outside counsel has the right to offset amounts 
billed for any legal services rendered against the annual retainer. 
Pursuant to this agreement, Y's outside counsel offsets $50,000 of the 
legal fees from the acquisition against the retainer and bills Y for the 
balance of $10,000. The $60,000 legal fee is an amount paid to 
facilitate the acquisition of an ownership interest in Y as described in 
paragraph (a)(3) of this section. Y must capitalize the full amount of 
the $60,000 legal fee.
    Example 10. Corporate acquisition; antitrust defense costs. On March 
1, 2005, V corporation enters into an agreement with X corporation to 
acquire all of the outstanding stock of X. On April 1, 2005, federal and 
state regulators file suit against V to prevent the acquisition of X on 
the ground that the acquisition violates antitrust laws. V enters into a 
consent

[[Page 619]]

agreement with regulators on May 1, 2005, that allows the acquisition to 
proceed, but requires V to hold separate the business operations of X 
pending the outcome of the antitrust suit and subjects V to possible 
divestiture. V acquires title to all of the outstanding stock of X on 
June 1, 2005. After June 1, 2005, the regulators pursue antitrust 
litigation against V seeking rescission of the acquisition. V pays 
$50,000 to its outside counsel for services rendered after June 1, 2005, 
to defend against the antitrust litigation. V ultimately prevails in the 
antitrust litigation. V's costs to defend the antitrust litigation are 
costs to facilitate its acquisition of the stock of X under paragraph 
(a)(2) of this section and must be capitalized. Although title to the 
shares of X passed to V prior to the date V incurred costs to defend the 
antitrust litigation, the amounts paid by V are paid in the process of 
pursuing the acquisition of the stock of X because the acquisition was 
not complete until the antitrust litigation was ultimately resolved. V 
must capitalize the $50,000 in legal fees.
    Example 11. Corporate acquisition; defensive measures. (i) On 
January 15, 2005, Y corporation, a publicly traded corporation, becomes 
the target of a hostile takeover attempt by Z corporation. In an effort 
to defend against the takeover, Y pays legal fees to seek an injunction 
against the takeover and investment banking fees to locate a potential 
``white knight'' acquirer. Y also pays amounts to complete a defensive 
recapitalization, and pays $50,000 to an investment banker for a 
fairness opinion regarding Z's initial offer. Y's efforts to enjoin the 
takeover and locate a white knight acquirer are unsuccessful, and on 
March 15, 2005, Y's board of directors decides to abandon its defense 
against the takeover and negotiate with Z in an effort to obtain the 
highest possible price for its shareholders. After Y abandons its 
defense against the takeover, Y pays an investment banker $1,000,000 for 
a second fairness opinion and for services rendered in negotiating with 
Z.
    (ii) The legal fees paid by Y to seek an injunction against the 
takeover are not amounts paid in the process of investigating or 
otherwise pursuing the transaction with Z. Accordingly, these legal fees 
are not required to be capitalized under this section.
    (iii) The investment banking fees paid to search for a white knight 
acquirer do not facilitate an acquisition of Y by a white knight because 
none of Y's costs with respect to a white knight were inherently 
facilitative amounts and because Y did not reach the date described in 
paragraph (e)(1) of this section with respect to a white knight. 
Accordingly, these amounts are not required to be capitalized under this 
section.
    (iv) The amounts paid by Y to investigate and complete the 
recapitalization must be capitalized under paragraph (a)(4) of this 
section.
    (v) The $50,000 paid to the investment bankers for a fairness 
opinion during Y's defense against the takeover and the $1,000,000 paid 
to the investment bankers after Y abandons its defense against the 
takeover are inherently facilitative amounts with respect to the 
transaction with Z and must be capitalized under paragraph (a)(3) of 
this section.
    Example 12. Corporate acquisition; acquisition by white knight. (i) 
Assume the same facts as in Example 11, except that Y's investment 
bankers identify three potential white knight acquirers: U corporation, 
V corporation, and W corporation. Y pays its investment bankers to 
conduct due diligence on the three potential white knight acquirers. On 
March 15, 2005, Y's board of directors approves a tentative acquisition 
agreement under which W agrees to acquire all of the stock of Y, and the 
investment bankers stop due diligence on U and V. On June 15, 2005, W 
acquires all of the stock of Y.
    (ii) Under paragraph (e)(1) of this section, the amounts paid to 
conduct due diligence on U, V, and W prior to March 15, 2005 (the date 
of board of directors' approval) are not amounts paid to facilitate the 
acquisition of the stock of Y and are not required to be capitalized 
under this section. However, the amounts paid to conduct due diligence 
on W on and after March 15, 2005, facilitate the acquisition of the 
stock of Y and are required to be capitalized.
    Example 13. Corporate acquisition; mutually exclusive costs. (i) 
Assume the same facts as in Example 11, except that Y's investment 
banker finds W, a white knight. Y and W execute a letter of intent on 
March 10, 2005. Under the terms of the letter of intent, Y must pay W a 
$10,000,000 break-up fee if the merger with W does not occur. On April 
1, 2005, Z significantly increases the amount of its offer, and Y 
decides to accept Z's offer instead of merging with W. Y pays its 
investment banker $500,000 for inherently facilitative costs with 
respect to the potential merger with W. Y also pays its investment 
banker $2,000,000 for due diligence costs with respect to the potential 
merger with W, $1,000,000 of which relates to services performed on or 
after March 10, 2005.
    (ii) Y's $500,000 payment for inherently facilitative costs and Y's 
$1,000,000 payment for due diligence activities performed on or after 
March 10, 2005 (the date the letter of intent with W is entered into) 
facilitate the potential merger with W. Because Y could not merge with 
both W and Z, under paragraph (c)(8) of this section the $500,000 and 
$1,000,000 payments also facilitate the transaction between Y and Z. 
Accordingly, Y must capitalize the $500,000 and $1,000,000 payments as 
amounts that facilitate the transaction with Z.

[[Page 620]]

    (iii) Similarly, because Y could not merge with both W and Z, under 
paragraph (c)(8) of this section the $10,000,000 termination payment 
facilitates the transaction between Y and Z. Accordingly, Y must 
capitalize the $10,000,000 termination payment as an amount that 
facilitates the transaction with Z.
    Example 14. Break-up fee; transactions not mutually exclusive. N 
corporation and U corporation enter into an agreement under which U 
would acquire all the stock or all the assets of N in exchange for U 
stock. Under the terms of the agreement, if either party terminates the 
agreement, the terminating party must pay the other party $10,000,000. U 
decides to terminate the agreement and pays N $10,000,000. Shortly 
thereafter, U acquires all the stock of V corporation, a competitor of 
N. U had the financial resources to have acquired both N and V. U's 
$10,000,000 payment does not facilitate U's acquisition of V. 
Accordingly, U is not required to capitalize the $10,000,000 payment 
under this section.
    Example 15. Corporate reorganization; initial public offering. Y 
corporation is a closely held corporation. Y's board of directors 
authorizes an initial public offering of Y's stock to fund future 
growth. Y pays $5,000,000 in professional fees for investment banking 
services related to the determination of the offering price and legal 
services related to the development of the offering prospectus and the 
registration and issuance of stock. The investment banking and legal 
services are performed both before and after board authorization. Under 
paragraph (a)(8) of this section, the $5,000,000 is an amount paid to 
facilitate a stock issuance.
    Example 16. Auction. (i) N corporation seeks to dispose of all of 
the stock of its wholly owned subsidiary, P corporation, through an 
auction process and requests that each bidder submit a non-binding 
purchase offer in the form of a draft agreement. Q corporation hires an 
investment banker to assist in the preparation of Q's bid to acquire P 
and to conduct a due diligence investigation of P. On July 1, 2005, Q 
submits its draft agreement. On August 1, 2005, N informs Q that it has 
accepted Q's offer, and presents Q with a signed letter of intent to 
sell all of the stock of P to Q. On August 5, 2005, Q's board of 
directors approves the terms of the transaction and authorizes Q to 
execute the letter of intent. Q executes a binding letter of intent with 
N on August 6, 2005.
    (ii) Under paragraph (e)(1) of this section, the amounts paid by Q 
to its investment banker that are not inherently facilitative and that 
are paid for activities performed prior to August 5, 2005 (the date Q's 
board of directors approves the transaction) are not amounts paid to 
facilitate the acquisition of P. Amounts paid by Q to its investment 
banker for activities performed on or after August 5, 2005, and amounts 
paid by Q to its investment banker that are inherently facilitative 
amounts within the meaning of paragraph (e)(2) of this section are 
required to be capitalized under this section.
    Example 17. Stock distribution. Z corporation distributes natural 
gas throughout state Y. The federal government brings an antitrust 
action against Z seeking divestiture of certain of Z's natural gas 
distribution assets. As a result of a court ordered divestiture, Z and 
the federal government agree to a plan of divestiture that requires Z to 
organize a subsidiary to receive the divested assets and to distribute 
the stock of the subsidiary to its shareholders. During 2005, Z pays 
$300,000 to various independent contractors for the following services: 
studying customer demand in the area to be served by the divested 
assets, identifying assets to be transferred to the subsidiary, 
organizing the subsidiary, structuring the transfer of assets to the 
subsidiary to qualify as a tax-free transaction to Z, and distributing 
the stock of the subsidiary to the stockholders. Under paragraph (c)(3) 
of this section, Z is not required to capitalize any portion of the 
$300,000 payments.
    Example 18. Bankruptcy reorganization. (i) X corporation is the 
defendant in numerous lawsuits alleging tort liability based on X's role 
in manufacturing certain defective products. X files a petition for 
reorganization under Chapter 11 of the Bankruptcy Code in an effort to 
manage all of the lawsuits in a single proceeding. X pays its outside 
counsel to prepare the petition and plan of reorganization, to analyze 
adequate protection under the plan, to attend hearings before the 
Bankruptcy Court concerning the plan, and to defend against motions by 
creditors and tort claimants to strike the taxpayer's plan.
    (ii) X's reorganization under Chapter 11 of the Bankruptcy Code is a 
reorganization within the meaning of paragraph (a)(4) of this section. 
Under paragraph (c)(4) of this section, amounts paid by X to its outside 
counsel to prepare, analyze or obtain approval of the portion of X's 
plan of reorganization that resolves X's tort liability do not 
facilitate the reorganization and are not required to be capitalized, 
provided that such amounts would have been treated as ordinary and 
necessary business expenses under section 162 had the bankruptcy 
proceeding not been instituted. All other amounts paid by X to its 
outside counsel for the services described above (including all amounts 
paid to prepare the bankruptcy petition) facilitate the reorganization 
and must be capitalized.

    (m) Effective date. This section applies to amounts paid or incurred 
on or after December 31, 2003.
    (n) Accounting method changes--(1) In general. A taxpayer seeking to 
change a method of accounting to comply with

[[Page 621]]

this section must secure the consent of the Commissioner in accordance 
with the requirements of Sec. 1.446-1(e). For the taxpayer's first 
taxable year ending on or after December 31, 2003, the taxpayer is 
granted the consent of the Commissioner to change its method of 
accounting to comply with this section, provided the taxpayer follows 
the administrative procedures issued under Sec. 1.446-1(e)(3)(ii) for 
obtaining the Commissioner's automatic consent to a change in accounting 
method (for further guidance, for example, see Rev. Proc. 2002-9 (2002-1 
C.B. 327) and Sec. 601.601(d)(2)(ii)(b) of this chapter).
    (2) Scope limitations. Any limitations on obtaining the automatic 
consent of the Commissioner do not apply to a taxpayer seeking to change 
to a method of accounting to comply with this section for its first 
taxable year ending on or after December 31, 2003.
    (3) Section 481(a) adjustment. The section 481(a) adjustment for a 
change in method of accounting to comply with this section for a 
taxpayer's first taxable year ending on or after December 31, 2003 is 
determined by taking into account only amounts paid or incurred in 
taxable years ending on or after January 24, 2002.

[T.D. 9107, 69 FR 446, Jan. 5, 2004]



Sec. 1.263(a)-6T  Election to deduct or capitalize certain expenditures 
(temporary).

    (a) In general. Under certain provisions of the Internal Revenue 
Code, taxpayers may elect to treat capital expenditures as deductible 
expenses or as deferred expenses, or to treat deductible expenses as 
capital expenditures.
    (b) Election provisions. The sections referred to in paragraph (a) 
of this section include:
    (1) Section 173 (circulation expenditures);
    (2) Section 174 (research and experimental expenditures);
    (3) Section 175 (soil and water conservation expenditures; 
endangered species recovery expenditures);
    (4) Section 179 (election to expenses certain depreciable business 
assets);
    (5) Section 179A (deduction for clean-fuel vehicles and certain 
refueling property);
    (6) Section 179B (deduction for capital costs incurred in complying 
with environmental protection agency sulfur regulations);
    (7) Section 179C (election to expense certain refineries);
    (8) Section 179D (energy efficient commercial buildings deduction);
    (9) Section 179E (election to expense advanced mine safety 
equipment);
    (10) Section 180 (expenditures by farmers for fertilizer);
    (11) Section 181 (treatment of certain qualified film and television 
productions);
    (12) Section 190 (expenditures to remove architectural and 
transportation barriers to the handicapped and elderly);
    (13) Section 193 (tertiary injectants);
    (14) Section 194 (treatment of reforestation expenditures);
    (15) Section 195 (start-up expenditures);
    (16) Section 198 (expensing of environmental remediation costs);
    (17) Section 198A (expensing of qualified disaster expenses);
    (18) Section 248 (organization expenditures of a corporation);
    (19) Section 266 (carrying charges);
    (20) Section 616 (development expenditures); and
    (21) Section 709 (organization and syndication fees of a 
partnership).
    (c) Effective/applicability date--(1) In general. This section 
applies to taxable years beginning on or after January 1, 2014. Section 
1.263(a)-3 as contained in 26 CFR part 1 edition revised as of April 1, 
2011, applies to taxable years beginning before January 1, 2014. For the 
effective dates of the enumerated election provisions, see those 
Internal Revenue Code sections and the regulations thereunder.
    (2) Optional early application. A taxpayer may choose to apply this 
section to taxable years beginning on or after January 1, 2012.
    (d) Expiration date. The applicability of this section expires on 
December 23, 2014.

[T.D. 9564, 76 FR 81125, Dec. 27, 2011, as amended by 77 FR 18688, Mar. 
28, 2012; 77 FR 74586, Dec. 17, 2012]

[[Page 622]]



Sec. 1.263(b)-1  Expenditures for advertising or promotion of good will.

    See Sec. 1.162-14 for the rules applicable to a corporation which 
has elected to capitalize expenditures for advertising or the promotion 
of good will under the provisions of section 733 or section 451 of the 
Internal Revenue Code of 1939, in computing its excess profits tax 
credit under Subchapter E, Chapter 2, or Subchapter D, Chapter 1, of the 
Internal Revenue Code of 1939.



Sec. 1.263(c)-1  Intangible drilling and development costs in the case 
of oil and gas wells.

    For rules relating to the option to deduct as expenses intangible 
drilling and development costs in the case of oil and gas wells, see 
Sec. 1.612-4.



Sec. 1.263(e)-1  Expenditures in connection with certain railroad 
rolling stock.

    (a) Allowance of deduction--(1) Election. Under section 263(e), for 
any taxable year beginning after December 31, 1969, a taxpayer may elect 
to treat certain expenditures paid or incurred during such taxable year 
as deductible repairs under section 162 or 212. This election applies 
only to expenditures described in paragraph (c) of this section in 
connection with the rehabilitation of a unit of railroad rolling stock 
(as defined in paragraph (b)(2) of this section) used by a domestic 
common carrier by railroad (as defined in paragraph (b) (3) and (4) of 
this section). However, an election under section 263(e) may not be made 
with respect to expenditures in connection with any unit of railroad 
rolling stock for which an election under section 263(f) and the 
regulations thereunder is in effect. An election made under section 
263(e) is an annual election which may be made with respect to one or 
more of the units of railroad rolling stock owned by the taxpayer.
    (2) Special 20 percent rule. Section 263(e) shall not apply if, 
under paragraph (d) of this section, expenditures paid or incurred 
during any period of 12 calendar months in connection with the 
rehabilitation of a unit exceed 20 percent of the basis (as defined in 
paragraph (b)(1) of this section) of such unit in the hands of the 
taxpayer. However, section 263(e) does not constitute a limit on the 
deduction of expenditures for repairs which are deductible without 
regard to such section. Accordingly, amounts otherwise deductible as 
repairs will continue to be deductible even though such amounts exceed 
20 percent of the basis of the unit of railroad rolling stock in the 
hands of the taxpayer.
    (3) Time and manner of making election. (i) An election by a 
taxpayer under section 263(e) shall be made by a statement to that 
effect attached to its income tax return or amended income tax return 
for the taxable year for which the election is made if such return or 
amended return is filed no later than the time prescribed by law 
(including extensions thereof) for filing the return for the taxable 
year of election. An election under section 263(e) may be made with 
respect to one or more of the units of railroad rolling stock owned by 
the taxpayer. If an election is not made within the time and in the 
manner prescribed in this subparagraph, no election may be made (by the 
filing of an amended return or in any other manner) with respect to the 
taxable year.
    (ii) If the taxpayer has filed a return on or before March 14, 1973, 
and has claimed a deduction under section 162 or 212 by reason of 
section 263(e), and if the taxpayer does not desire to make an election 
under section 263(e) for the taxable year with respect to which such 
return was filed, the taxpayer shall file an amended return for such 
taxable year on or before May 14, 1973, and shall pay any additional tax 
due for such year. The taxpayer shall also file an amended return for 
each taxable year which is affected by the filing of an amended return 
under the preceding sentence and shall pay any additional tax due for 
such year. Nothing in this subdivision shall be construed as extending 
the time specified in section 6511 within which a claim for credit or 
refund may be filed.
    (iii) If an election under section 263(e) was not made at the time 
the return for a taxable year was filed, and it is subsequently 
determined that an expenditure was erroneously treated as

[[Page 623]]

an expenditure which was not in connection with rehabilitation (as 
determined under paragraph (c) of this section), an election under 
section 263(e) may be made with respect to the unit of railroad rolling 
stock for which such expenditure was made for such taxable year, 
notwithstanding any provision in this subparagraph (3) to the contrary. 
Nothing in this subdivision shall be construed as extending the time 
specified in section 6511 within which a claim for credit or refund may 
be filed.
    (iv) The statement required by subdivision (i) of this subparagraph 
shall include the following information:
    (a) The total number of units of railroad rolling stock with respect 
to which an election is being made under section 263(e).
    (b) The aggregate basis (as defined in paragraph (b) (1) of this 
section) of the units described in (a) of this subdivision (iv), and
    (c) The total deduction being claimed under section 263(e) for the 
taxable year.
    (b) Definitions--(1) Basis. (i) In general, for purposes of section 
263(e) the basis of a unit of railroad rolling stock shall be the 
adjusted basis of such unit determined without regard to the adjustments 
provided in paragraphs (1), (2), and (3) of section 1016(a) and section 
1017. Thus, the basis of property would generally be its cost without 
regard to adjustments to basis such as for depreciation or for capital 
improvements. If the basis of a unit in the hands of a transferee is 
determined in whole or in part by reference to its basis in the hands of 
the transferor, for example, by reason of the application of section 362 
(relating to basis to corporations), 374 (relating to gain or loss not 
recognized in certain railroad reorganizations), or 723 (relating to the 
basis of property contributed to a partnership), then the basis of such 
unit in the hands of the transferor for purposes of section 263(e) shall 
be its basis for purposes of section 263(e) in the hands of the 
transferee. Similarly, when the basis of a unit of railroad rolling 
stock in the hands of the taxpayer is determined in whole or in part by 
reference to the basis of another unit, for example, by reason of the 
application of the first sentence of section 1033(c) (relating to 
involuntary conversions), then the basis of the latter unit for purposes 
of section 263(e) shall be the basis for purposes of section 263(e) of 
the former unit. The question whether a capital expenditure in 
connection with a unit of railroad rolling stock results in the 
retirement of such unit and the creation of another unit of railroad 
rolling stock shall be determined without regard to rules under the 
uniform system of accounts prescribed by the Interstate Commerce 
Commission.
    (ii) For example, if a unit of railroad rolling stock has a cost to 
M of $10,000 and because of depreciation adjustments of $4,000 and 
capital expenditures of $3,000, such unit has an adjusted basis in the 
hands of M of $9,000, the basis for purposes of section 263(e) of such 
unit in the hands of M is $10,000. Further, if M transfers such unit to 
N in a transaction in which no gain or loss is recognized such as, for 
example, a transaction to which section 351(a) (relating to a transfer 
to a corporation controlled by the transferor) applies, the basis of 
such unit for purposes of section 263(e) is $10,000 in the hands of N.
    (2) Railroad rolling stock. For purposes of this section, the term 
unit or unit of railroad rolling stock means a unit of transportation 
equipment the expenditures for which are of a type chargeable (or in the 
case of property leased to a domestic common carrier by railroad, would 
be chargeable) to the equipment investment accounts in the uniform 
system of accounts for railroad companies prescribed by the Interstate 
Commerce Commission (49 CFR Part 1201), but only if (i) such unit 
exclusively moves on, moves under, or is guided by rail, and (ii) such 
unit is not a locomotive. Thus, for example, a unit of railroad rolling 
stock includes a box car, a gondola car, a passenger car, a car designed 
to carry truck trailers and containerized freight, a wreck crane, and a 
bunk car. However, such term does not include equipment which does not 
exclusively move on, move under, or is not exclusively guided by rail 
such as, for example, a barge, a tugboat, a container which is used on 
cars designed to carry containerized freight, a truck trailer, or an 
automobile. A locomotive is self-propelled

[[Page 624]]

equipment, the sole function of which is to push or pull railroad 
rolling stock. Thus, a self-propelled passenger or freight car is not a 
locomotive.
    (3) Domestic common carrier by railroad. The term domestic common 
carrier by railroad means a railroad subject to regulation under Part I 
of the Interstate Commerce Act (49 U.S.C. 1 et seq.) or a railroad which 
would be subject to regulation under Part I of the Interstate Commerce 
Act if it were engaged in interstate commerce.
    (4) Use. For purposes of this section, a unit of railroad rolling 
stock is not used by a domestic common carrier by railroad if it is 
owned by a person other than a domestic common carrier by railroad and 
(i) is exclusively used for transportation by the owner or (ii) is 
exclusively used for transportation by another person which is not a 
domestic common carrier by railroad. Thus, for example, a unit of 
railroad rolling stock which is owned by a person which is not a 
domestic common carrier by railroad and is leased to a manufacturing 
company by the owner is not a unit of railroad rolling stock used by a 
domestic common carrier by railroad.
    (c) Expenditures considered in connection with rehabilitation. For 
purposes of section 263(e) and this section all expenditures which would 
be properly chargeable to capital account but for the application of 
section 263 (e) or (f) shall be considered to be expenditures in 
connection with the rehabilitation of a unit of railroad rolling stock. 
Expenditures which are paid or incurred in connection with incidental 
repairs or maintenance of a unit of railroad rolling stock and which are 
deductible without regard to section 263 (e) or (f) shall not be 
included in any determination or computation under section 263(e) and 
shall not be treated as paid or incurred in connection with the 
rehabilitation of a unit of railroad rolling stock for purposes of 
section 263(e). The determination of whether an item would be, but for 
section 263 (e) or (f), properly chargeable to capital account shall be 
made in a manner consistent with the principles for classification of 
expenditures as between capital and expenses under the Internal Revenue 
Code. See, for example, Sec. Sec. 1.162-4, 1.263(a)-1, 1.263(a)-2, and 
paragraph (a)(4) (ii) and (iii) of Sec. 1.446-1. An expenditure shall 
be classified as capital or as expense without regard to its 
classification under the uniform system of accounts prescribed by the 
Interstate Commerce Commission.
    (d) 20-percent limitation--(1) In general. No expenditures in 
connection with the rehabilitation of a unit of railroad rolling stock 
shall be treated as a deductible repair by reason of an election under 
section 263(e) if, during any period of 12 calendar months in which the 
month the expenditure is included falls, all such expenditures exceed an 
amount equal to 20 percent of the basis (as defined in paragraph (b)(1) 
of this section) of such unit in the hands of the taxpayer. All such 
expenditures shall be included in the computation of the 20-percent 
limitation even if such expenditures were deducted under section 263(f) 
in either the preceding or succeeding taxable year. Solely for purposes 
of the 20-percent limitation in this paragraph, such expenditures shall 
be deemed to be included in the month in which a rehabilitation of the 
unit of railroad rolling stock is completed. For the requirement that 
expenditures treated as repairs solely by reason of an election under 
section 263(e) be deducted in the taxable year paid or incurred, see 
paragraph (a) of this section.
    (2) 12-month period. For purposes of this section, any period of 12 
calendar months shall consist of any 12 consecutive calendar months 
except that calendar months prior to the calendar month of January 1970 
shall not be included in determining such period.
    (3) Period for certain corporate acquisitions. If a unit of railroad 
rolling stock to which section 263(e) applies is sold, exchanged, or 
otherwise disposed of in a transaction in which its basis in the hands 
of the transferee is determined in whole or in part by reference to its 
basis in the hands of the transferor (see paragraph (b)(1) of this 
section), calendar months during which such unit is in the hands of the 
transferor and in the hands of such transferee shall both be included in 
the calendar months

[[Page 625]]

used by the transferor and the transferee to determine any period of 12 
calendar months for purposes of section 263(e).
    (4) Deduction allowed in year paid or incurred. If, based on the 
information available when the income tax return for a taxable year is 
filed, an expenditure paid or incurred in such taxable year would be 
deductible by reason of the application of section 263(e) but for the 
fact that it cannot be established whether the 20-percent limitation in 
subparagraph (1) of this paragraph will be exceeded, the expenditure 
shall be deducted for such taxable year. If by reason of the application 
of such 20-percent limitation it is subsequently determined that such 
expenditure is not deductible as a repair, an amended return shall be 
filed for the year in which such deduction was treated as a deductible 
repair and additional tax, if any, for such year shall be paid. 
Appropriate adjustment with respect to the taxpayer's tax liability for 
any other affected year shall be made. Nothing in this subparagraph 
shall be construed as extending the time specified in section 6511 
within which a claim for credit or refund may be filed.
    (e) Recordkeeping requirements--(1) In general. Such records as will 
enable the accurate determination of the expenditures which may be 
subject to the treatment provided in section 263(e) shall be maintained. 
No deduction shall be allowed under section 162 or 212 by reason of 
section 263(e) with respect to a unit unless the taxpayer substantiates 
by adequate records that expenditures in connection with such unit of 
railroad rolling stock meet the requirements and limitations of this 
section.
    (2) Separate records. A separate section 263(e) record shall be 
maintained for each unit with respect to which an election under section 
263(e) is made. Such record shall:
    (i) Identify the unit,
    (ii) State the basis (as defined in paragraph (b)(1) of this 
section) and the date of acquisition of the unit,
    (iii) Enumerate for each unit the amount of all expenditures 
incurred in connection with rehabilitation of such unit which would, but 
for section 263 (e) or (f), be properly chargeable to capital account 
(including expenditures incurred by the taxpayer in connection with 
rehabilitation of such unit undertaken by a person other than the 
taxpayer) regardless of whether such expenditures during any 12-month 
period exceed 20 percent of the basis of such unit,
    (iv) Describe the nature of the work in connection with each 
expenditure, and
    (v) Specify the calendar month in which the rehabilitation is 
completed and the taxable year in which each expenditure is paid or 
incurred.

A section 263(e) record need only be prepared for a unit of railroad 
rolling stock for the period beginning on the first day of the eleventh 
calendar month immediately preceding the month in which the 
rehabilitation of such unit is completed and ending on the last day of 
the eleventh calendar month immediately succeeding such month. No 
section 263(e) record need be prepared for calendar months before 
January 1970.
    (3) Records for certain expenditures: Expenditures determined to be 
incidental repairs and maintenance (referred to in paragraph (c) of this 
section) shall not be entered in the section 263(e) record. However, 
each taxpayer shall maintain records to reflect that such expenditures 
are properly deductible.
    (4) Convenience rule. In general, expenditures and information 
maintained in compliance with subparagraphs (1) and (2) of this 
paragraph shall be recorded in the section 263(e) record of the specific 
unit with respect to which such expenditures are incurred. However, when 
a group of units of the same type are rehabilitated in a single project 
and the expenditure for each unit in the project will approximate the 
average expenditure per unit for the project, expenditures for the 
project may be aggregated without regard to the unit in the project with 
respect to which each expenditure is connected, and an amount equal to 
the aggregate expenditures for the project divided by the number of 
units in the project may be entered in the section 263(e) account of 
each unit in the project.

[[Page 626]]

    (f) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. M Corporation, a domestic common carrier by railroad, 
uses the calendar year as its taxable year. M owns and uses several 
gondola cars to which an election under section 263(e) applies for its 
taxable years 1970-1972. Gondola car No.1 has a basis (defined in 
paragraph (b)(1) of this section) of $10,000. No expenditures properly 
chargeable to the section 263(e) record are made on gondola car No. 1 in 
1970 and 1971, except in January 1971. In January 1971, M at a cost of 
$1,500 performed rehabilitation work on gondola car No. 1. Such amount 
was properly entered in the section 263(e) record for gondola car No.1. 
Since the expenditures in such record do not exceed an amount equal to 
20 percent of the basis of gondola car No. 1 ($2,000) during any period 
of 12 calendar months in which January 1971 falls, the expenditures 
during January 1971 shall be treated as a deductible expense regardless 
of what the treatment would have been if section 263(e) had not been 
enacted.
    Example 2. Assume the same facts as in Example 1. Assume further 
that for 1970, 1971, and 1972, only the following expenditures in 
connection with rehabilitation which would, but for section 263(e), be 
properly chargeable to capital account were deemed included for gondola 
car No. 2:

(a) December 1970..............................................   $1,500
(b) November 1971..............................................      600
(c) December 1971..............................................      400
(d) January 1972...............................................    1,050
 


Assume further that gondola car No. 2 has a basis (as defined in 
paragraph (b) (1) of this section) equal to $10,000, that M files its 
tax return by September 15 following each taxable year, and that each 
rehabilitation was completed in the month in which expenditures in 
connection with it were incurred. Any expenditures in connection with 
each gondola car (No. 1 or No. 2) have no effect on the treatment of 
expenditures in connection with the other gondola car. With respect to 
gondola car No. 2, the expenditures of December 1970 are treated as 
deductible repairs at the time M's income tax return for 1970 is filed 
because, based on the information available when the income tax return 
for 1970 is filed, such expenditure would be deductible by reason of 
application of section 263(e) but for the fact that it cannot be 
established whether the 20-percent limitation in paragraph (d)(1) of 
this section will be exceeded. Nevertheless, because such expenditures 
during the period of 12 calendar months including calendar months 
December 1970 and November 1971 exceed $2,000, the December 1970 
rehabilitation expenditures are not subject to the provisions of section 
263(e). Because such rehabilitation expenditures during the period of 12 
calendar months including calendar months February 1971 and January 1972 
exceed $2,000, rehabilitation expenditures in 1971 are not subject to 
the provisions of section 263(e). Similarly, the 1972 rehabilitation 
expenditures are not subject to the provisions of section 263(e).

[T.D. 7257, 38 FR 4255, Feb. 12, 1973]



Sec. 1.263(f)-1  Reasonable repair allowance.

    (a) For rules regarding the election of the repair allowance 
authorized by section 263(f), the definition of repair allowance 
property, and the conditions under which an election may be made, see 
paragraphs (d) (2) and (f) of Sec. 1.167(a)-11. An election may be made 
under this section for a taxable year only if the taxpayer makes an 
election under Sec. 1.167(a)-11 for such taxable year.

(Sec. 263(f), 85 Stat. 509 (26 U.S.C. 263))

[T.D. 7272, 38 FR 9986, Apr. 23, 1973; 38 FR 12919, May 17, 1973; as 
amended by T.D. 7593, 44 FR 5421, Jan. 26, 1979]



Sec. 1.263A-0  Outline of regulations under section 263A.

    This section lists the paragraphs in Sec. Sec. 1.263A-1 through 
1.263A-4 and Sec. Sec. 1.263A-7 through 1.263A-15 as follows:

             Sec. 1.263A-1 Uniform Capitalization of Costs.

    (a) Introduction.
    (1) In general.
    (2) Effective dates.
    (3) General scope.
    (i) Property to which section 263A applies.
    (ii) Property produced.
    (iii) Property acquired for resale.
    (iv) Inventories valued at market.
    (v) Property produced in a farming business.
    (vi) Creative property.
    (vii) Property produced or property acquired for resale by foreign 
persons.
    (b) Exceptions.
    (1) Small resellers.
    (2) Long-term contracts.
    (3) Costs incurred in certain farming businesses.
    (4) Costs incurred in raising, harvesting, or growing timber.
    (5) Qualified creative expenses.
    (6) Certain not-for-profit activities.
    (7) Intangible drilling and development costs.
    (8) Natural gas acquired for resale.
    (i) Cushion gas.
    (ii) Emergency gas.
    (9) Research and experimental expenditures.

[[Page 627]]

    (10) Certain property that is substantially constructed.
    (11) Certain property provided incident to services.
    (i) In general.
    (ii) Definition of services.
    (iii) De minimis property provided incident to services.
    (12) De minimis rule for certain producers with total indirect costs 
of $200,000 or less.
    (13) Exception for the origination of loans.
    (c) General operation of section 263A.
    (1) Allocations.
    (2) Otherwise deductible.
    (3) Capitalize.
    (4) Recovery of capitalized costs.
    (d) Definitions.
    (1) Self-constructed assets.
    (2) Section 471 costs.
    (i) In general.
    (ii) New taxpayers.
    (iii) Method changes.
    (3) Additional section 263A costs.
    (4) Section 263A costs.
    (e) Types of costs subject to capitalization.
    (1) In general.
    (2) Direct costs.
    (i) Producers.
    (A) Direct material costs.
    (B) Direct labor costs.
    (ii) Resellers.
    (3) Indirect costs.
    (i) In general.
    (ii) Examples of indirect costs required to be capitalized.
    (A) Indirect labor costs.
    (B) Officers' compensation.
    (C) Pension and other related costs.
    (D) Employee benefit expenses.
    (E) Indirect material costs.
    (F) Purchasing costs.
    (G) Handling costs.
    (H) Storage costs.
    (I) Cost recovery.
    (J) Depletion.
    (K) Rent.
    (L) Taxes.
    (M) Insurance.
    (N) Utilities.
    (O) Repairs and maintenance.
    (P) Engineering and design costs.
    (Q) Spoilage.
    (R) Tools and equipment.
    (S) Quality control.
    (T) Bidding costs.
    (U) Licensing and franchise costs.
    (V) Interest.
    (W) Capitalizable service costs.
    (iii) Indirect costs not capitalized.
    (A) Selling and distribution costs.
    (B) Research and experimental expenditures.
    (C) Section 179 costs.
    (D) Section 165 losses.
    (E) Cost recovery allowances on temporarily idle equipment and 
facilities.
    (1) In general.
    (2) Examples.
    (F) Taxes assessed on the basis of income.
    (G) Strike expenses.
    (H) Warranty and product liability costs.
    (I) On-site storage costs.
    (J) Unsuccessful bidding expenses.
    (K) Deductible service costs.
    (4) Service costs.
    (i) Introduction.
    (A) Definition of service costs.
    (B) Definition of service departments.
    (ii) Various service cost categories.
    (A) Capitalizable service costs.
    (B) Deductible service costs.
    (C) Mixed service costs.
    (iii) Examples of capitalizable service costs.
    (iv) Examples of deductible service costs.
    (f) Cost allocation methods.
    (1) Introduction.
    (2) Specific identification method.
    (3) Burden rate and standard cost methods.
    (i) Burden rate method.
    (A) In general.
    (B) Development of burden rates.
    (C) Operation of the burden rate method.
    (ii) Standard cost method.
    (A) In general.
    (B) Treatment of variances.
    (4) Reasonable allocation methods.
    (g) Allocating categories of costs.
    (1) Direct materials.
    (2) Direct labor.
    (3) Indirect costs.
    (4) Service costs.
    (i) In general.
    (ii) De minimis rule.
    (iii) Methods for allocating mixed service costs.
    (A) Direct reallocation method.
    (B) Step-allocation method.
    (C) Examples.
    (iv) Illustrations of mixed service cost allocations using 
reasonable factors or relationships.
    (A) Security services.
    (B) Legal services.
    (C) Centralized payroll services.
    (D) Centralized data processing services.
    (E) Engineering and design services.
    (F) Safety engineering services.
    (v) Accounting method change.
    (h) Simplified service cost method.
    (1) Introduction.
    (2) Eligible property.
    (i) In general.
    (A) Inventory property.
    (B) Non-inventory property held for sale.
    (C) Certain self-constructed assets.
    (D) Self-constructed assets produced on a repetitive basis.
    (ii) Election to exclude self-constructed assets.
    (3) General allocation formula.
    (4) Labor-based allocation ratio.
    (5) Production cost allocation ratio.
    (6) Definition of total mixed service costs.

[[Page 628]]

    (7) Costs allocable to more than one business.
    (8) De minimis rule.
    (9) Separate election.
    (i) [Reserved]
    (j) Special rules.
    (1) Costs provided by a related person.
    (i) In general.
    (ii) Exceptions.
    (2) Optional capitalization of period costs.
    (i) In general.
    (ii) Period costs eligible for capitalization.
    (3) Trade or business application.
    (4) Transfers with a principal purpose of tax avoidance. [Reserved]

   Sec. 1.263A-2 Rules Relating to Property Produced by the Taxpayer.

    (a) In general.
    (1) Produce.
    (i) In general.
    (ii) Ownership.
    (A) General rule.
    (B) Property produced for the taxpayer under a contract.
    (1) In general.
    (2) Definition of contract.
    (C) Home construction contracts.
    (2) Tangible personal property.
    (i) General rule.
    (ii) Intellectual or creative property.
    (A) Intellectual or creative property that is tangible personal 
property.
    (1) Books.
    (2) Sound recordings.
    (B) Intellectual or creative property that is not tangible personal 
property.
    (1) Evidences of value.
    (2) Property provided incident to services.
    (3) Costs required to be capitalized by producers.
    (i) In general.
    (ii) Pre-production costs.
    (iii) Post-production costs.
    (4) Practical capacity concept.
    (5) Taxpayers required to capitalize costs under this section.
    (b) Simplified production method.
    (1) Introduction.
    (2) Eligible property.
    (i) In general.
    (A) Inventory property.
    (B) Non-inventory property held for sale.
    (C) Certain self-constructed assets.
    (D) Self-constructed assets produced on a repetitive basis.
    (ii) Election to exclude self-constructed assets.
    (3) Simplified production method without historic absorption ratio 
election.
    (i) General allocation formula.
    (ii) Definitions.
    (A) Absorption ratio.
    (1) Additional section 263A costs incurred during the taxable year.
    (2) Section 471 costs incurred during the taxable year.
    (B) Section 471 costs remaining on hand at year end.
    (iii) LIFO taxpayers electing the simplified production method.
    (A) In general.
    (B) LIFO increment.
    (C) LIFO decrement.
    (iv) De minimis rule for producers with total indirect costs of 
$200,000 or less.
    (A) In general.
    (B) Related party and aggregation rules.
    (v) Examples.
    (4) Simplified production method with historic absorption ratio 
election.
    (i) In general.
    (ii) Operating rules and definitions.
    (A) Historic absorption ratio.
    (B) Test period.
    (1) In general.
    (2) Updated test period.
    (C) Qualifying period.
    (1) In general.
    (2) Extension of qualifying period.
    (iii) Method of accounting.
    (A) Adoption and use.
    (B) Revocation of election.
    (iv) Reporting and recordkeeping requirements.
    (A) Reporting.
    (B) Recordkeeping.
    (v) Transition rules.
    (vi) Example.
    (c) Additional simplified methods for producers.
    (d) Cross reference.

      Sec. 1.263A-3 Rules Relating to Property Acquired for Resale

    (a) Capitalization rules for property acquired for resale.
    (1) In general.
    (2) Resellers with production activities.
    (i) In general.
    (ii) Exception for small resellers.
    (iii) De minimis production activities.
    (A) In general.
    (B) Example.
    (3) Resellers with property produced under a contract.
    (4) Use of the simplified resale method.
    (i) In general.
    (ii) Resellers with de minimis production activities.
    (iii) Resellers with property produced under a contract.
    (iv) Application of simplified resale method.
    (b) Gross receipts exception for small resellers.
    (1) In general.
    (i) Test period for new taxpayers.
    (ii) Treatment of short taxable year.
    (2) Definition of gross receipts.
    (i) In general.
    (ii) Amounts excluded.
    (3) Aggregation of gross receipts.
    (i) In general.

[[Page 629]]

    (ii) Single employer defined.
    (iii) Gross receipts of a single employer.
    (iv) Examples.
    (c) Purchasing, handling, and storage costs.
    (1) In general.
    (2) Costs attributable to purchasing, handling, and storage.
    (3) Purchasing costs.
    (i) In general.
    (ii) Determination of whether personnel are engaged in purchasing 
activities.
    (A) \1/3\-\2/3\ rule for allocating labor costs.
    (B) Example.
    (4) Handling costs.
    (i) In general.
    (ii) Processing costs.
    (iii) Assembling costs.
    (iv) Repackaging costs.
    (v) Transportation costs.
    (vi) Costs not considered handling costs.
    (A) Distribution costs.
    (B) Delivery of custom-ordered items.
    (C) Repackaging after sale occurs.
    (5) Storage costs.
    (i) In general.
    (ii) Definitions.
    (A) On-site storage facility.
    (B) Retail sales facility.
    (C) An integral part of a retail sales facility.
    (D) On-site sales.
    (E) Retail customer.
    (1) In general.
    (2) Certain non-retail customers treated as retail customers.
    (F) Off-site storage facility.
    (G) Dual-function storage facility.
    (iii) Treatment of storage costs incurred at a dual-function storage 
facility.
    (A) In general.
    (B) Dual-function storage facility allocation ratio.
    (1) In general.
    (2) Illustration of ratio allocation.
    (3) Appropriate adjustments for other uses of a dual-function 
storage facility.
    (C) De minimis 90-10 rule for dual-function storage facilities.
    (iv) Costs not attributable to an off-site storage facility.
    (v) Examples.
    (d) Simplified resale method.
    (1) Introduction.
    (2) Eligible property.
    (3) Simplified resale method without historic absorption ratio 
election.
    (i) General allocation formula.
    (A) In general.
    (B) Effect of allocation.
    (C) Definitions.
    (1) Combined absorption ratio.
    (2) Section 471 costs remaining on hand at year end.
    (D) Storage and handling costs absorption ratio.
    (E) Purchasing costs absorption ratio.
    (F) Allocable mixed service costs.
    (ii) LIFO taxpayers electing simplified resale method.
    (A) In general.
    (B) LIFO increment.
    (C) LIFO decrement.
    (iii) Permissible variations of the simplified resale method.
    (iv) Examples.
    (4) Simplified resale method with historic absorption ratio 
election.
    (i) In general.
    (ii) Operating rules and definitions.
    (A) Historic absorption ratio.
    (B) Test period.
    (1) In general.
    (2) Updated test period.
    (C) Qualifying period.
    (1) In general.
    (2) Extension of qualifying period.
    (iii) Method of accounting.
    (A) Adoption and use.
    (B) Revocation of election.
    (iv) Reporting and recordkeeping requirements.
    (A) Reporting.
    (B) Recordkeeping.
    (v) Transition rules.
    (vi) Example.
    (5) Additional simplified methods for resellers.
    (e) Cross reference.

    Sec. 1.263A-4 Rules for property produced in a farming business.

    (a) Introduction.
    (1) In general.
    (2) Exception.
    (i) In general.
    (ii) Tax shelter.
    (A) In general.
    (B) Presumption.
    (iii) Examples.
    (3) Costs required to be capitalized or inventoried under another 
provision.
    (4) Farming business.
    (i) In general.
    (A) Plant.
    (B) Animal.
    (ii) Incidental activities.
    (A) In general.
    (B) Activities that are not incidental.
    (iii) Examples.
    (b) Application of section 263A to property produced in a farming 
business.
    (1) In general.
    (i) Plants.
    (ii) Animals.
    (2) Preproductive period.
    (i) Plant.
    (A) In general.
    (B) Applicability of section 263A.
    (C) Actual preproductive period.
    (1) Beginning of the preproductive period.
    (2) End of the preproductive period.
    (i) In general.
    (ii) Marketable quantities.

[[Page 630]]

    (D) Examples.
    (ii) Animal.
    (A) Beginning of the preproductive period.
    (B) End of the preproductive period.
    (C) Allocation of costs between animal and first yield.
    (c) Inventory methods.
    (1) In general.
    (2) Available for property used in a trade or business.
    (3) Exclusion of property to which section 263A does not apply.
    (d) Election not to have section 263A apply.
    (1) Introduction.
    (2) Availability of the election.
    (3) Time and manner of making the election.
    (i) Automatic election.
    (ii) Nonautomatic election.
    (4) Special rules.
    (i) Section 1245 treatment.
    (ii) Required use of alternative depreciation system.
    (iii) Related person.
    (A) In general.
    (B) Members of family.
    (5) Examples.
    (e) Exception for certain costs resulting from casualty losses.
    (1) In general.
    (2) Ownership.
    (3) Examples.
    (4) Special rule for citrus and almond groves.
    (i) In general.
    (ii) Example.
    (f) Effective date and change in method of accounting.
    (1) Effective date.
    (2) Change in method of accounting.

   Sec. 1.263A-7 Changing a method of accounting under section 263A.

    (a) Introduction.
    (1) Purpose.
    (2) Taxpayers that adopt a method of accounting under section 263A.
    (3) Taxpayers that change a method of accounting under section 263A.
    (4) Effective date.
    (5) Definition of change in method of accounting.
    (b) Rules applicable to a change in method of accounting.
    (1) General rules.
    (2) Special rules.
    (i) Ordering rules when multiple changes in method of accounting 
occur in the year of change.
    (A) In general.
    (B) Exceptions to the general ordering rule.
    (1) Change from the LIFO inventory method.
    (2) Change from the specific goods LIFO inventory method.
    (3) Change in overall method of accounting.
    (4) Change in method of accounting for depreciation.
    (ii) Adjustment required by section 481(a).
    (iii) Base year.
    (A) Need for a new base year.
    (1) Facts and circumstances revaluation method used.
    (2) 3-year average method used.
    (i) Simplified method not used.
    (ii) Simplified method used.
    (B) Computing a new base year.
    (c) Inventory.
    (1) Need for adjustments.
    (2) Revaluing beginning inventory.
    (i) In general.
    (ii) Methods to revalue inventory.
    (iii) Facts and circumstances revaluation method.
    (A) In general.
    (B) Exception.
    (C) Estimates and procedures allowed.
    (D) Use by dollar-value LIFO taxpayers.
    (E) Examples.
    (iv) Weighted average method.
    (A) In general.
    (B) Weighted average method for FIFO taxpayers.
    (1) In general.
    (2) Example.
    (C) Weighted average method for specific goods LIFO taxpayers.
    (1) In general.
    (2) Example.
    (D) Adjustments to inventory costs from prior years.
    (v) 3-year average method.
    (A) In general.
    (B) Consecutive year requirement.
    (C) Example.
    (D) Short taxable years.
    (E) Adjustments to inventory costs from prior years.
    (1) General rule.
    (2) Examples of costs eligible for restatement adjustment procedure.
    (F) Restatement adjustment procedure.
    (1) In general.
    (2) Examples of restatement adjustment procedure.
    (3) Intercompany items.
    (i) Revaluing intercompany transactions.
    (ii) Example.
    (iii) Availability of revaluation methods.
    (4) Anti-abuse rule.
    (i) In general.
    (ii) Deemed avoidance of this section.
    (A) Scope.
    (B) General rule.
    (iii) Election to use transferor's LIFO layers.
    (iv) Tax avoidance intent not required.
    (v) Related corporation.
    (d) Non-inventory property.
    (1) Need for adjustments.
    (2) Revaluing property.

[[Page 631]]

           Sec. 1.263A-8 Requirement to capitalize interest.

    (a) In general.
    (1) General rule.
    (2) Treatment of interest required to be capitalized.
    (3) Methods of accounting under section 263A(f).
    (4) Special definitions.
    (i) Related person.
    (ii) Placed in service.
    (b) Designated property.
    (1) In general.
    (2) Special rules.
    (i) Application of thresholds.
    (ii) Relevant activities and costs.
    (iii) Production period and cost of production.
    (3) Excluded property.
    (4) De minimis rule.
    (i) In general.
    (ii) Determination of total production expenditures.
    (c) Definition of real property.
    (1) In general.
    (2) Unsevered natural products of land.
    (3) Inherently permanent structures.
    (4) Machinery.
    (i) Treatment.
    (ii) Certain factors not determinative.
    (d) Production.
    (1) Definition of produce.
    (2) Property produced under a contract.
    (i) Customer.
    (ii) Contractor.
    (iii) Definition of a contract.
    (iv) Determination of whether thresholds are satisfied.
    (A) Customer.
    (B) Contractor.
    (v) Exclusion for property subject to long-term contract rules.
    (3) Improvements to existing property.
    (i) In general.
    (ii) Real property.
    (iii) Tangible personal property.

                 Sec. 1.263A-9 The avoided cost method.

    (a) In general.
    (1) Description.
    (2) Overview.
    (i) In general.
    (ii) Rules that apply in determining amounts.
    (3) Definitions of interest and incurred.
    (4) Definition of eligible debt.
    (b) Traced debt amount.
    (1) General rule.
    (2) Identification and definition of traced debt.
    (3) Example.
    (c) Excess expenditure amount.
    (1) General rule.
    (2) Interest required to be capitalized.
    (3) Example.
    (4) Treatment of interest subject to a deferral provision.
    (5) Definitions.
    (i) Nontraced debt.
    (A) Defined.
    (B) Example.
    (ii) Average excess expenditures.
    (A) General rule.
    (B) Example.
    (iii) Weighted average interest rate.
    (A) Determination of rate.
    (B) Interest incurred on nontraced debt.
    (C) Average nontraced debt.
    (D) Special rules if taxpayer has no nontraced debt or rate is 
contingent.
    (6) Examples.
    (7) Special rules where the excess expenditure amount exceeds 
incurred interest.
    (i) Allocation of total incurred interest to units.
    (ii) Application of related person rules to average excess 
expenditures.
    (iii) Special rule for corporations.
    (d) Election not to trace debt.
    (1) General rule.
    (2) Example.
    (e) Election to use external rate.
    (1) In general.
    (2) Eligible taxpayer.
    (f) Selection of computation period and measurement dates and 
application of averaging conventions.
    (1) Computation period.
    (i) In general.
    (ii) Method of accounting.
    (iii) Production period beginning or ending during the computation 
period.
    (2) Measurement dates.
    (i) In general.
    (ii) Measurement period.
    (iii) Measurement dates on which accumulated production expenditures 
must be taken into account.
    (iv) More frequent measurement dates.
    (3) Examples.
    (g) Special rules.
    (1) Ordering rules.
    (i) Provisions preempted by section 263A(f).
    (ii) Deferral provisions applied before this section.
    (2) Application of section 263A(f) to deferred interest.
    (i) In general.
    (ii) Capitalization of deferral amount.
    (iii) Deferred capitalization.
    (iv) Substitute capitalization.
    (A) General rule.
    (B) Capitalization of amount carried forward.
    (C) Method of accounting.
    (v) Examples.
    (3) Simplified inventory method.
    (i) In general.
    (ii) Segmentation of inventory.
    (A) General rule.
    (B) Example.
    (iii) Aggregate interest capitalization amount.

[[Page 632]]

    (A) Computation period and weighted average interest rate.
    (B) Computation of the tentative aggregate interest capitalization 
amount.
    (C) Coordination with other interest capitalization computations.
    (1) In general.
    (2) Deferred interest.
    (3) Other coordinating provisions.
    (D) Treatment of increases or decreases in the aggregate interest 
capitalization amount.
    (E) Example.
    (iv) Method of accounting.
    (4) Financial accounting method disregarded.
    (5) Treatment of intercompany transactions.
    (i) General rule.
    (ii) Special rule for consolidated group with limited outside 
borrowing.
    (iii) Example.
    (6) Notional principal contracts and other derivatives. [Reserved]
    (7) 15-day repayment rule.

                    Sec. 1.263A-10 Unit of property.

    (a) In general.
    (b) Units of real property.
    (1) In general.
    (2) Functional interdependence.
    (3) Common features.
    (4) Allocation of costs to unit.
    (5) Treatment of costs when a common feature is included in a unit 
of real property.
    (i) General rule.
    (ii) Production activity not undertaken on benefitted property.
    (A) Direct production activity not undertaken.
    (1) In general.
    (2) Land attributable to a benefitted property.
    (B) Suspension of direct production activity after clearing and 
grading undertaken.
    (1) General rule.
    (2) Accumulated production expenditures.
    (iii) Common feature placed in service before the end of production 
of a benefitted property.
    (iv) Benefitted property sold before production completed on common 
feature.
    (v) Benefitted property placed in service before production 
completed on common feature.
    (6) Examples.
    (c) Units of tangible personal property.
    (d) Treatment of installations.

          Sec. 1.263A-11 Accumulated production expenditures.

    (a) General rule.
    (b) When costs are first taken into account.
    (1) In general.
    (2) Dedication rule for materials and supplies.
    (c) Property produced under a contract.
    (1) Customer.
    (2) Contractor.
    (d) Property used to produce designated property.
    (1) In general.
    (2) Example.
    (3) Excluded equipment and facilities.
    (e) Improvements.
    (1) General rule.
    (2) De minimis rule.
    (f) Mid-production purchases.
    (g) Related person costs.
    (h) Installation.

                   Sec. 1.263A-12 Production period.

    (a) In general.
    (b) Related person activities.
    (c) Beginning of production period.
    (1) In general.
    (2) Real property.
    (3) Tangible personal property.
    (d) End of production period.
    (1) In general.
    (2) Special rules.
    (3) Sequential production or delivery.
    (4) Examples.
    (e) Physical production activities.
    (1) In general.
    (2) Illustrations.
    (f) Activities not considered physical production.
    (1) Planning and design.
    (2) Incidental repairs.
    (g) Suspension of production period.
    (1) In general.
    (2) Special rule.
    (3) Method of accounting.
    (4) Example.

                 Sec. 1.263A-13 Oil and gas activities.

    (a) In general.
    (b) Generally applicable rules.
    (1) Beginning of production period.
    (i) Onshore activities.
    (ii) Offshore activities.
    (2) End of production period.
    (3) Accumulated production expenditures.
    (i) Costs included.
    (ii) Improvement unit.
    (c) Special rules when definite plan not established.
    (1) In general.
    (2) Oil and gas units.
    (i) First productive well unit.
    (ii) Subsequent units.
    (3) Beginning of production period.
    (i) First productive well unit.
    (ii) Subsequent wells.
    (4) End of production period.
    (5) Accumulated production expenditures.
    (i) First productive well unit.
    (ii) Subsequent well unit.
    (6) Allocation of interest capitalized with respect to first 
productive well unit.
    (7) Examples.

[[Page 633]]

               Sec. 1.263A-14 Rules for related persons.

  Sec. 1.263A-15 Effective dates, transitional rules, and anti-abuse 
                                  rule.

    (a) Effective dates.
    (b) Transitional rule for accumulated production expenditures.
    (1) In general.
    (2) Property used to produce designated property.
    (c) Anti-abuse rule.

[T.D. 8482, 58 FR 42207, Aug. 9, 1993, as amended by T.D. 8584, 59 FR 
67196, Dec. 29, 1994; 60 FR 16574, Mar. 31, 1995; T.D. 8728, 62 FR 
42054, Aug. 5, 1997; T.D. 8897, 65 FR 50643, Aug. 21, 2000]



Sec. 1.263A-1  Uniform capitalization of costs.

    (a) Introduction--(1) In general. The regulations under Sec. Sec. 
1.263A-1 through 1.263A-6 provide guidance to taxpayers that are 
required to capitalize certain costs under section 263A. These 
regulations generally apply to all costs required to be capitalized 
under section 263A except for interest that must be capitalized under 
section 263A(f) and the regulations thereunder. Statutory or regulatory 
exceptions may provide that section 263A does not apply to certain 
activities or costs; however, those activities or costs may nevertheless 
be subject to capitalization requirements under other provisions of the 
Internal Revenue Code and regulations.
    (2) Effective dates. (i) In general, this section and Sec. Sec. 
1.263A-2 and 1.263A-3 apply to costs incurred in taxable years beginning 
after December 31, 1993. In the case of property that is inventory in 
the hands of the taxpayer, however, these sections are effective for 
taxable years beginning after December 31, 1993. Changes in methods of 
accounting necessary as a result of the rules in this section and 
Sec. Sec. 1.263A-2 and 1.263A-3 must be made under terms and conditions 
prescribed by the Commissioner. Under these terms and conditions, the 
principles of Sec. 1.263A-7 must be applied in revaluing inventory 
property.
    (ii) For taxable years beginning before January 1, 1994, taxpayers 
must take reasonable positions on their federal income tax returns when 
applying section 263A. For purposes of this paragraph (a)(2)(iii), a 
reasonable position is a position consistent with the temporary 
regulations, revenue rulings, revenue procedures, notices, and 
announcements concerning section 263A applicable in taxable years 
beginning before January 1, 1994. See Sec. 601.601(d)(2)(ii)(b) of this 
chapter.
    (3) General scope--(i) Property to which section 263A applies. 
Taxpayers subject to section 263A must capitalize all direct costs and 
certain indirect costs properly allocable to--
    (A) Real property and tangible personal property produced by the 
taxpayer; and
    (B) Real property and personal property described in section 
1221(1), which is acquired by the taxpayer for resale.
    (ii) Property produced. Taxpayers that produce real property and 
tangible personal property (producers) must capitalize all the direct 
costs of producing the property and the property's properly allocable 
share of indirect costs (described in paragraphs (e)(2)(i) and (3) of 
this section), regardless of whether the property is sold or used in the 
taxpayer's trade or business. See Sec. 1.263A-2 for rules relating to 
producers.
    (iii) Property acquired for resale. Retailers, wholesalers, and 
other taxpayers that acquire property described in section 1221(1) for 
resale (resellers) must capitalize the direct costs of acquiring the 
property and the property's properly allocable share of indirect costs 
(described in paragraphs (e)(2)(ii) and (3) of this section). See Sec. 
1.263A-3 for rules relating to resellers. See also section 
263A(b)(2)(B), which excepts from section 263A personal property 
acquired for resale by a small reseller.
    (iv) Inventories valued at market. Section 263A does not apply to 
inventories valued at market under either the market method or the lower 
of cost or market method if the market valuation used by the taxpayer 
generally equals the property's fair market value. For purposes of this 
paragraph (a)(3)(iv), the term fair market value means the price at 
which the taxpayer sells its inventory to its customers (e.g., as in the 
market value definition provided in Sec. 1.471-4(b)) less, if 
applicable, the direct cost of disposing of the inventory. However, 
section 263A does apply in determining the market value of any inventory 
for which market is determined with reference to replacement

[[Page 634]]

cost or reproduction cost. See Sec. Sec. 1.471-4 and 1.471-5.
    (v) Property produced in a farming business. Section 263A generally 
requires taxpayers engaged in a farming business to capitalize certain 
costs. See sections 263A(d) and 263A(e) and Sec. 1.263A-4 for rules 
relating to taxpayers engaged in a farming business.
    (vi) Creative property. Section 263A generally requires taxpayers 
engaged in the production and resale of creative property to capitalize 
certain costs.
    (vii) Property produced or property acquired for resale by foreign 
persons. Section 263A generally applies to foreign persons.
    (b) Exceptions--(1) Small resellers. See section 263A(b)(2)(B) for 
the $10,000,000 gross receipts exception for small resellers of personal 
property. See Sec. 1.263A-3(b) for rules relating to this exception. 
See also the exception for small resellers with de minimis production 
activities in Sec. 1.263A-3(a)(2)(ii) and the exception for small 
resellers that have property produced under contract in Sec. 1.263A-
3(a)(3).
    (2) Long-term contracts. Except for certain home construction 
contracts described in section 460(e)(1), section 263A does not apply to 
any property produced by the taxpayer pursuant to a long-term contract 
as defined in section 460(f), regardless of whether the taxpayer uses an 
inventory method to account for such production.
    (3) Costs incurred in certain farming businesses. See section 
263A(d) for an exception for costs paid or incurred in certain farming 
businesses. See Sec. 1.263A-4 for specific rules relating to taxpayers 
engaged in the trade or business of farming.
    (4) Costs incurred in raising, harvesting, or growing timber. See 
section 263A(c)(5) for an exception for costs paid or incurred in 
raising, harvesting, or growing timber and certain ornamental trees. See 
Sec. 1.263A-4, however, for rules relating to taxpayers producing 
certain trees to which section 263A applies.
    (5) Qualified creative expenses. See section 263A(h) for an 
exception for qualified creative expenses paid or incurred by certain 
free-lance authors, photographers, and artists.
    (6) Certain not-for-profit activities. See section 263A(c)(1) for an 
exception for property produced by a taxpayer for use by the taxpayer 
other than in a trade or business or an activity conducted for profit. 
This exception does not apply, however, to property produced by an 
exempt organization in connection with its unrelated trade or business 
activities.
    (7) Intangible drilling and development costs. See section 
263A(c)(3) for an exception for intangible drilling and development 
costs. Additionally, section 263A does not apply to any amount allowable 
as a deduction under section 59(e) with respect to qualified 
expenditures under sections 263(c), 616(a), or 617(a).
    (8) Natural gas acquired for resale. Under this paragraph (b)(8), 
section 263A does not apply to any costs incurred by a taxpayer relating 
to natural gas acquired for resale to the extent such costs would 
otherwise be allocable to cushion gas.
    (i) Cushion gas. Cushion gas is the portion of gas stored in an 
underground storage facility or reservoir that is required to maintain 
the level of pressure necessary for operation of the facility. However, 
section 263A applies to costs incurred by a taxpayer relating to natural 
gas acquired for resale to the extent such costs are properly allocable 
to emergency gas.
    (ii) Emergency gas. Emergency gas is natural gas stored in an 
underground storage facility or reservoir for use during periods of 
unusually heavy customer demand.
    (9) Research and experimental expenditures. See section 263A(c)(2) 
for an exception for any research and experimental expenditure allowable 
as a deduction under section 174 or the regulations thereunder. 
Additionally, section 263A does not apply to any amount allowable as a 
deduction under section 59(e) with respect to qualified expenditures 
under section 174.
    (10) Certain property that is substantially constructed. Section 
263A does not apply to any property produced by a taxpayer for use in 
its trade or business if substantial construction occurred before March 
1, 1986.
    (i) For purposes of this section, substantial construction is deemed 
to have occurred if the lesser of--

[[Page 635]]

    (A) 10 percent of the total estimated costs of construction; or
    (B) The greater of $10 million or 2 percent of the total estimated 
costs of construction, was incurred before March 1, 1986.
    (ii) For purposes of the provision in paragraph (b)(10)(i) of this 
section, the total estimated costs of construction shall be determined 
by reference to a reasonable estimate, on or before March 1, 1986, of 
such amount. Assume, for example, that on March 1, 1986, the estimated 
costs of constructing a facility were $150 million. Assume that before 
March 1, 1986, $12 million of construction costs had been incurred. 
Based on the above facts, substantial construction would be deemed to 
have occurred before March 1, 1986, because $12 million (the costs of 
construction incurred before such date) is greater than $10 million (the 
lesser of $15 million; or the greater of $10 million or $3 million). For 
purposes of this provision, construction costs are defined as those 
costs incurred after construction has commenced at the site of the 
property being constructed (unless the property will not be located on 
land and, therefore, the initial construction of the property must begin 
at a location other than the intended site). For example, in the case of 
a building, construction commences when work begins on the building, 
such as the excavation of the site, the pouring of pads for the 
building, or the driving of foundation pilings into the ground. 
Preliminary activities such as project engineering and architectural 
design do not constitute the commencement of construction, nor are such 
costs considered construction costs, for purposes of this paragraph 
(b)(10).
    (11) Certain property provided incident to services--(i) In general. 
Under this paragraph (b)(11), section 263A does not apply to property 
that is provided to a client (or customer) incident to the provision of 
services by the taxpayer if the property provided to the client is--
    (A) De minimis in amount; and
    (B) Not inventory in the hands of the service provider.
    (ii) Definition of services. For purposes of this paragraph (b)(11), 
services is defined with reference to its ordinary and accepted meaning 
under federal income tax principles. In determining whether a taxpayer 
is a bona-fide service provider under this paragraph (b)(11), the nature 
of the taxpayer's trade or business and the facts and circumstances 
surrounding the taxpayer's trade or business activities must be 
considered. Examples of taxpayers qualifying as service providers under 
this paragraph include taxpayers performing services in the fields of 
health, law, engineering, architecture, accounting, actuarial science, 
performing arts, or consulting.
    (iii) De minimis property provided incident to services. In 
determining whether property provided to a client by a service provider 
is de minimis in amount, all facts and circumstances, such as the nature 
of the taxpayer's trade or business and the volume of its service 
activities in the trade or business, must be considered. A significant 
factor in making this determination is the relationship between the 
acquisition or direct materials costs of the property that is provided 
to clients and the price that the taxpayer charges its clients for its 
services and the property. For purposes of this paragraph (b)(11), if 
the acquisition or direct materials cost of the property provided to a 
client incident to the services is less than or equal to five percent of 
the price charged to the client for the services and property, the 
property is de minimis. If the acquisition or direct materials cost of 
the property exceeds five percent of the price charged for the services 
and property, the property may be de minimis if additional facts and 
circumstances so indicate.
    (12) De minimis rule for certain producers with total indirect costs 
of $200,000 or less. See Sec. 1.263A-2(b)(3)(iv) for a de minimis rule 
that treats producers with total indirect costs of $200,000 or less as 
having no additional section 263A costs (as defined in paragraph (d)(3) 
of this section) for purposes of the simplified production method.
    (13) Exception for the origination of loans. For purposes of section 
263A(b)(2)(A), the origination of loans is not considered the 
acquisition of intangible property for resale. (But section 
263A(b)(2)(A) does include the acquisition by a taxpayer of pre-existing 
loans from other persons for resale.)

[[Page 636]]

    (14) [Reserved] For further guidance, see Sec. 1.263A-1T(b)(14).
    (c) General operation of section 263A--(1) Allocations. Under 
section 263A, taxpayers must capitalize their direct costs and a 
properly allocable share of their indirect costs to property produced or 
property acquired for resale. In order to determine these capitalizable 
costs, taxpayers must allocate or apportion costs to various activities, 
including production or resale activities. After section 263A costs are 
allocated to the appropriate production or resale activities, these 
costs are generally allocated to the items of property produced or 
property acquired for resale during the taxable year and capitalized to 
the items that remain on hand at the end of the taxable year. See 
however, the simplified production method and the simplified resale 
method in Sec. Sec. 1.263A-2(b) and 1.263A-3(d).
    (2) Otherwise deductible. (i) Any cost which (but for section 263A 
and the regulations thereunder) may not be taken into account in 
computing taxable income for any taxable year is not treated as a cost 
properly allocable to property produced or acquired for resale under 
section 263A and the regulations thereunder. Thus, for example, if a 
business meal deduction is limited by section 274(n) to 80 percent of 
the cost of the meal, the amount properly allocable to property produced 
or acquired for resale under section 263A is also limited to 80 percent 
of the cost of the meal.
    (ii) The amount of any cost required to be capitalized under section 
263A may not be included in inventory or charged to capital accounts or 
basis any earlier than the taxable year during which the amount is 
incurred within the meaning of Sec. 1.446-1(c)(1)(ii).
    (3) Capitalize. Capitalize means, in the case of property that is 
inventory in the hands of a taxpayer, to include in inventory costs and, 
in the case of other property, to charge to a capital account or basis.
    (4) [Reserved] For further guidance, see Sec. 1.263A-1T(c)(4).
    (d) Definitions--(1) Self-constructed assets. Self-constructed 
assets are assets produced by a taxpayer for use by the taxpayer in its 
trade or business. Self-constructed assets are subject to section 263A.
    (2) Section 471 costs--(i) In general. Except as otherwise provided 
in paragraphs (d)(2)(ii) and (iii) of this section, for purposes of the 
regulations under section 263A, a taxpayer's section 471 costs are the 
costs, other than interest, capitalized under its method of accounting 
immediately prior to the effective date of section 263A. Thus, although 
section 471 applies only to inventories, section 471 costs include any 
non-inventory costs, other than interest, capitalized or included in 
acquisition or production costs under the taxpayer's method of 
accounting immediately prior to the effective date of section 263A.
    (ii) New taxpayers. In the case of a new taxpayer, section 471 costs 
are those acquisition or production costs, other than interest, that 
would have been required to be capitalized by the taxpayer if the 
taxpayer had been in existence immediately prior to the effective date 
of section 263A.
    (iii) Method changes. If a taxpayer included a cost described in 
Sec. 1.471-11(c)(2)(iii) in its inventoriable costs immediately prior 
to the effective date of section 263A, that cost is included in the 
taxpayer's section 471 costs under paragraph (d)(2)(i) of this section. 
Except as provided in the following sentence, a change in the financial 
reporting practices of a taxpayer for costs described in Sec. 1.471-
11(c)(2)(iii) subsequent to the effective date of section 263A does not 
affect the classification of these costs as section 471 costs. A 
taxpayer may change its established methods of accounting used in 
determining section 471 costs only with the consent of the Commissioner 
as required under section 446(e) and the regulations thereunder.
    (3) Additional section 263A costs. Additional section 263A costs are 
defined as the costs, other than interest, that were not capitalized 
under the taxpayer's method of accounting immediately prior to the 
effective date of section 263A (adjusted as appropriate for any changes 
in methods of accounting for section 471 costs under paragraph 
(d)(2)(iii) of this section), but that are required to be capitalized 
under section 263A. For new taxpayers,

[[Page 637]]

additional section 263A costs are defined as the costs, other than 
interest, that the taxpayer must capitalize under section 263A, but 
which the taxpayer would not have been required to capitalize if the 
taxpayer had been in existence prior to the effective date of section 
263A.
    (4) Section 263A costs. Section 263A costs are defined as the costs 
that a taxpayer must capitalize under section 263A. Thus, section 263A 
costs are the sum of a taxpayer's section 471 costs, its additional 
section 263A costs, and interest capitalizable under section 263A(f).
    (e) Types of costs subject to capitalization--(1) In general. 
Taxpayers subject to section 263A must capitalize all direct costs and 
certain indirect costs properly allocable to property produced or 
property acquired for resale. This paragraph (e) describes the types of 
costs subject to section 263A.
    (2) Direct costs--(i) Producers. Producers must capitalize direct 
material costs and direct labor costs.
    (A) [Reserved] For further guidance, see Sec. 1.263A-
1T(e)(2)(i)(A).
    (B) Direct labor costs include the costs of labor that can be 
identified or associated with particular units or groups of units of 
specific property produced. For this purpose, labor encompasses full-
time and part-time employees, as well as contract employees and 
independent contractors. Direct labor costs include all elements of 
compensation other than employee benefit costs described in paragraph 
(e)(3)(ii)(D) of this section. Elements of direct labor costs include 
basic compensation, overtime pay, vacation pay, holiday pay, sick leave 
pay (other than payments pursuant to a wage continuation plan under 
section 105(d) as it existed prior to its repeal in 1983), shift 
differential, payroll taxes, and payments to a supplemental unemployment 
benefit plan.
    (ii) Resellers. Resellers must capitalize the acquisition costs of 
property acquired for resale. In the case of inventory, the acquisition 
cost is the cost described in Sec. 1.471-3(b).
    (3) Indirect costs--(i) In general. Indirect costs are defined as 
all costs other than direct material costs and direct labor costs (in 
the case of property produced) or acquisition costs (in the case of 
property acquired for resale). Taxpayers subject to section 263A must 
capitalize all indirect costs properly allocable to property produced or 
property acquired for resale. Indirect costs are properly allocable to 
property produced or property acquired for resale when the costs 
directly benefit or are incurred by reason of the performance of 
production or resale activities. Indirect costs may be allocable to both 
production and resale activities, as well as to other activities that 
are not subject to section 263A. Taxpayers subject to section 263A must 
make a reasonable allocation of indirect costs between production, 
resale, and other activities.
    (ii) Examples of indirect costs required to be capitalized. The 
following are examples of indirect costs that must be capitalized to the 
extent they are properly allocable to property produced or property 
acquired for resale:
    (A) Indirect labor costs. Indirect labor costs include all labor 
costs (including the elements of labor costs set forth in paragraph 
(e)(2)(i) of this section) that cannot be directly identified or 
associated with particular units or groups of units of specific property 
produced or property acquired for resale (e.g., factory labor that is 
not direct labor). As in the case of direct labor, indirect labor 
encompasses full-time and part-time employees, as well as contract 
employees and independent contractors.
    (B) Officers' compensation. Officers' compensation includes 
compensation paid to officers of the taxpayer.
    (C) Pension and other related costs. Pension and other related costs 
include contributions paid to or made under any stock bonus, pension, 
profit-sharing or annuity plan, or other plan deferring the receipt of 
compensation, whether or not the plan qualifies under section 401(a). 
Contributions to employee plans representing past services must be 
capitalized in the same manner (and in the same proportion to property 
currently being acquired or produced) as amounts contributed for current 
service.
    (D) Employee benefit expenses. Employee benefit expenses include all 
other employee benefit expenses (not described in paragraph 
(e)(3)(ii)(C) of

[[Page 638]]

this section) to the extent such expenses are otherwise allowable as 
deductions under chapter 1 of the Internal Revenue Code. These other 
employee benefit expenses include: worker's compensation; amounts 
otherwise deductible or allowable in reducing earnings and profits under 
section 404A; payments pursuant to a wage continuation plan under 
section 105(d) as it existed prior to its repeal in 1983; amounts 
includible in the gross income of employees under a method or 
arrangement of employer contributions or compensation that has the 
effect of a stock bonus, pension, profit-sharing or annuity plan, or 
other plan deferring receipt of compensation or providing deferred 
benefits; premiums on life and health insurance; and miscellaneous 
benefits provided for employees such as safety, medical treatment, 
recreational and eating facilities, membership dues, etc. Employee 
benefit expenses do not, however, include direct labor costs described 
in paragraph (e)(2)(i) of this section.
    (E) [Reserved] For further guidance, see Sec. 1.263A-
1T(e)(3)(ii)(E).
    (F) Purchasing costs. Purchasing costs include costs attributable to 
purchasing activities. See Sec. 1.263A-3(c)(3) for a further discussion 
of purchasing costs.
    (G) Handling costs. Handling costs include costs attributable to 
processing, assembling, repackaging and transporting goods, and other 
similar activities. See Sec. 1.263A-3(c)(4) for a further discussion of 
handling costs.
    (H) Storage costs. Storage costs include the costs of carrying, 
storing, or warehousing property. See Sec. 1.263A-3(c)(5) for a further 
discussion of storage costs.
    (I) Cost recovery. Cost recovery includes depreciation, 
amortization, and cost recovery allowances on equipment and facilities 
(including depreciation or amortization of self-constructed assets or 
other previously produced or acquired property to which section 263A or 
section 263 applies).
    (J) Depletion. Depletion includes allowances for depletion, whether 
or not in excess of cost. Depletion is, however, only properly allocable 
to property that has been sold (i.e., for purposes of determining gain 
or loss on the sale of the property).
    (K) Rent. Rent includes the cost of renting or leasing equipment, 
facilities, or land.
    (L) Taxes. Taxes include those taxes (other than taxes described in 
paragraph (e)(3)(iii)(F) of this section) that are otherwise allowable 
as a deduction to the extent such taxes are attributable to labor, 
materials, supplies, equipment, land, or facilities used in production 
or resale activities.
    (M) Insurance. Insurance includes the cost of insurance on plant or 
facility, machinery, equipment, materials, property produced, or 
property acquired for resale.
    (N) Utilities. Utilities include the cost of electricity, gas, and 
water.
    (O) Repairs and maintenance. Repairs and maintenance include the 
cost of repairing and maintaining equipment or facilities.
    (P) Engineering and design costs. Engineering and design costs 
include pre-production costs, such as costs attributable to research, 
experimental, engineering, and design activities (to the extent that 
such amounts are not research and experimental expenditures as described 
in section 174 and the regulations thereunder).
    (Q) Spoilage. Spoilage includes the costs of rework labor, scrap, 
and spoilage.
    (R) Tools and equipment. Tools and equipment include the costs of 
tools and equipment which are not otherwise capitalized.
    (S) Quality control. Quality control includes the costs of quality 
control and inspection.
    (T) Bidding costs. Bidding costs are costs incurred in the 
solicitation of contracts (including contracts pertaining to property 
acquired for resale) ultimately awarded to the taxpayer. The taxpayer 
must defer all bidding costs paid or incurred in the solicitation of a 
particular contract until the contract is awarded. If the contract is 
awarded to the taxpayer, the bidding costs become part of the indirect 
costs allocated to the subject matter of the contract. If the contract 
is not awarded to the taxpayer, bidding costs are deductible in the 
taxable year that the contract is awarded to another party,

[[Page 639]]

or in the taxable year that the taxpayer is notified in writing that no 
contract will be awarded and that the contract (or a similar or related 
contract) will not be rebid, or in the taxable year that the taxpayer 
abandons its bid or proposal, whichever occurs first. Abandoning a bid 
does not include modifying, supplementing, or changing the original bid 
or proposal. If the taxpayer is awarded only part of the bid (for 
example, the taxpayer submitted one bid to build each of two different 
types of products, and the taxpayer was awarded a contract to build only 
one of the two types of products), the taxpayer shall deduct the portion 
of the bidding costs related to the portion of the bid not awarded to 
the taxpayer. In the case of a bid or proposal for a multi-unit 
contract, all bidding costs must be included in the costs allocated to 
the subject matter of the contract awarded to the taxpayer to produce or 
acquire for resale any of such units. For example, where the taxpayer 
submits one bid to produce three similar turbines and the taxpayer is 
awarded a contract to produce only two of the three turbines, all 
bidding costs must be included in the cost of the two turbines. For 
purposes of this paragraph (e)(3)(ii)(T), a contract means--
    (1) In the case of a specific unit of property, any agreement under 
which the taxpayer would produce or sell property to another party if 
the agreement is entered into before the taxpayer produces or acquires 
the specific unit of property to be delivered to the party under the 
agreement; and
    (2) In the case of fungible property, any agreement to the extent 
that, at the time the agreement is entered into, the taxpayer has on 
hand an insufficient quantity of completed fungible items of such 
property that may be used to satisfy the agreement (plus any other 
production or sales agreements of the taxpayer).
    (U) Licensing and franchise costs. Licensing and franchise costs 
include fees incurred in securing the contractual right to use a 
trademark, corporate plan, manufacturing procedure, special recipe, or 
other similar right associated with property produced or property 
acquired for resale. These costs include the otherwise deductible 
portion (e.g., amortization) of the initial fees incurred to obtain the 
license or franchise and any minimum annual payments and royalties that 
are incurred by a licensee or a franchisee.
    (V) Interest. Interest includes interest on debt incurred or 
continued during the production period to finance the production of real 
property or tangible personal property to which section 263A(f) applies.
    (W) Capitalizable service costs. Service costs that are required to 
be capitalized include capitalizable service costs and capitalizable 
mixed service costs as defined in paragraph (e)(4) of this section.
    (iii) Indirect costs not capitalized. The following indirect costs 
are not required to be capitalized under section 263A:
    (A) Selling and distribution costs. These costs are marketing, 
selling, advertising, and distribution costs.
    (B) Research and experimental expenditures. Research and 
experimental expenditures are expenditures described in section 174 and 
the regulations thereunder.
    (C) Section 179 costs. Section 179 costs are expenses for certain 
depreciable assets deductible at the election of the taxpayer under 
section 179 and the regulations thereunder.
    (D) Section 165 losses. Section 165 losses are losses under section 
165 and the regulations thereunder.
    (E) Cost recovery allowances on temporarily idle equipment and 
facilities--(1) In general. Cost recovery allowances on temporarily idle 
equipment and facilities include only depreciation, amortization, and 
cost recovery allowances on equipment and facilities that have been 
placed in service but are temporarily idle. Equipment and facilities are 
temporarily idle when a taxpayer takes them out of service for a finite 
period. However, equipment and facilities are not considered temporarily 
idle--
    (i) During worker breaks, non-working hours, or on regularly 
scheduled non-working days (such as holidays or weekends);
    (ii) During normal interruptions in the operation of the equipment 
or facilities;

[[Page 640]]

    (iii) When equipment is enroute to or located at a job site; or
    (iv) When under normal operating conditions, the equipment is used 
or operated only during certain shifts.
    (2) Examples. The provisions of this paragraph (e)(3)(iii)(E) are 
illustrated by the following examples:

    Example 1. Equipment operated only during certain shifts. Taxpayer A 
manufactures widgets. Although A's manufacturing facility operates 24 
hours each day in three shifts, A only operates its stamping machine 
during one shift each day. Because A only operates its stamping machine 
during certain shifts, A's stamping machine is not considered 
temporarily idle during the two shifts that it is not operated.
    Example 2. Facility shut down for retooling. Taxpayer B owns and 
operates a manufacturing facility. B closes its manufacturing facility 
for two weeks to retool its assembly line. B's manufacturing facility is 
considered temporarily idle during this two-week period.

    (F) Taxes assessed on the basis of income. Taxes assessed on the 
basis of income include only state, local, and foreign income taxes, and 
franchise taxes that are assessed on the taxpayer based on income.
    (G) Strike expenses. Strike expenses include only costs associated 
with hiring employees to replace striking personnel (but not wages of 
replacement personnel), costs of security, and legal fees associated 
with settling strikes.
    (H) Warranty and product liability costs. Warranty costs and product 
liability costs are costs incurred in fulfilling product warranty 
obligations for products that have been sold and costs incurred for 
product liability insurance.
    (I) On-site storage costs. On-site storage costs are storage and 
warehousing costs incurred by a taxpayer at an on-site storage facility, 
as defined in Sec. 1.263A-3(c)(5)(ii)(A), with respect to property 
produced or property acquired for resale.
    (J) Unsuccessful bidding expenses. Unsuccessful bidding costs are 
bidding expenses incurred in the solicitation of contracts not awarded 
to the taxpayer.
    (K) Deductible service costs. Service costs that are not required to 
be capitalized include deductible service costs and deductible mixed 
service costs as defined in paragraph (e)(4) of this section.
    (4) Service costs--(i) Introduction. This paragraph (e)(4) provides 
definitions and categories of service costs. Paragraph (g)(4) of this 
section provides specific rules for determining the amount of service 
costs allocable to property produced or property acquired for resale. In 
addition, paragraph (h) of this section provides a simplified method for 
determining the amount of service costs that must be capitalized.
    (A) Definition of service costs. Service costs are defined as a type 
of indirect costs (e.g., general and administrative costs) that can be 
identified specifically with a service department or function or that 
directly benefit or are incurred by reason of a service department or 
function.
    (B) Definition of service departments. Service departments are 
defined as administrative, service, or support departments that incur 
service costs. The facts and circumstances of the taxpayer's activities 
and business organization control whether a department is a service 
department. For example, service departments include personnel, 
accounting, data processing, security, legal, and other similar 
departments.
    (ii) Various service cost categories--(A) Capitalizable service 
costs. Capitalizable service costs are defined as service costs that 
directly benefit or are incurred by reason of the performance of the 
production or resale activities of the taxpayer. Therefore, these 
service costs are required to be capitalized under section 263A. 
Examples of service departments or functions that incur capitalizable 
service costs are provided in paragraph (e)(4)(iii) of this section.
    (B) Deductible service costs. Deductible service costs are defined 
as service costs that do not directly benefit or are not incurred by 
reason of the performance of the production or resale activities of the 
taxpayer, and therefore, are not required to be capitalized under 
section 263A. Deductible service costs generally include costs incurred 
by reason of the taxpayer's overall management or policy guidance 
functions. In addition, deductible service costs include costs incurred 
by reason of the marketing, selling, advertising, and distribution 
activities of the taxpayer.

[[Page 641]]

Examples of service departments or functions that incur deductible 
service costs are provided in paragraph (e)(4)(iv) of this section.
    (C) Mixed service costs. Mixed service costs are defined as service 
costs that are partially allocable to production or resale activities 
(capitalizable mixed service costs) and partially allocable to non-
production or non-resale activities (deductible mixed service costs). 
For example, a personnel department may incur costs to recruit factory 
workers, the costs of which are allocable to production activities, and 
it may incur costs to develop wage, salary, and benefit policies, the 
costs of which are allocable to non-production activities.
    (iii) Examples of capitalizable service costs. Costs incurred in the 
following departments or functions are generally allocated among 
production or resale activities:
    (A) The administration and coordination of production or resale 
activities (wherever performed in the business organization of the 
taxpayer).
    (B) Personnel operations, including the cost of recruiting, hiring, 
relocating, assigning, and maintaining personnel records or employees.
    (C) Purchasing operations, including purchasing materials and 
equipment, scheduling and coordinating delivery of materials and 
equipment to or from factories or job sites, and expediting and follow-
up.
    (D) Materials handling and warehousing and storage operations.
    (E) Accounting and data services operations, including, for example, 
cost accounting, accounts payable, disbursements, and payroll functions 
(but excluding accounts receivable and customer billing functions).
    (F) Data processing.
    (G) Security services.
    (H) Legal services.
    (iv) Examples of deductible service costs. Costs incurred in the 
following departments or functions are not generally allocated to 
production or resale activities:
    (A) Departments or functions responsible for overall management of 
the taxpayer or for setting overall policy for all of the taxpayer's 
activities or trades or businesses, such as the board of directors 
(including their immediate staff), and the chief executive, financial, 
accounting, and legal officers (including their immediate staff) of the 
taxpayer, provided that no substantial part of the cost of such 
departments or functions benefits a particular production or resale 
activity.
    (B) Strategic business planning.
    (C) General financial accounting.
    (D) General financial planning (including general budgeting) and 
financial management (including bank relations and cash management).
    (E) Personnel policy (such as establishing and managing personnel 
policy in general; developing wage, salary, and benefit policies; 
developing employee training programs unrelated to particular production 
or resale activities; negotiating with labor unions; and maintaining 
relations with retired workers).
    (F) Quality control policy.
    (G) Safety engineering policy.
    (H) Insurance or risk management policy (but not including bid or 
performance bonds or insurance related to activities associated with 
property produced or property acquired for resale).
    (I) Environmental management policy (except to the extent that the 
costs of any system or procedure benefits a particular production or 
resale activity).
    (J) General economic analysis and forecasting.
    (K) Internal audit.
    (L) Shareholder, public, and industrial relations.
    (M) Tax services.
    (N) Marketing, selling, or advertising.
    (f) Cost allocation methods--(1) Introduction. This paragraph (f) 
sets forth various detailed or specific (facts-and-circumstances) cost 
allocation methods that taxpayers may use to allocate direct and 
indirect costs to property produced and property acquired for resale. 
Paragraph (g) of this section provides general rules for applying these 
allocation methods to various categories of costs (i.e., direct 
materials, direct labor, and indirect costs, including service costs). 
In addition, in lieu of a facts-and-circumstances allocation method, 
taxpayers may use the simplified methods provided in Sec. Sec. 1.263A-
2(b) and 1.263A-3(d) to allocate direct

[[Page 642]]

and indirect costs to eligible property produced or eligible property 
acquired for resale; see those sections for definitions of eligible 
property. Paragraph (h) of this section provides a simplified method for 
determining the amount of mixed service costs required to be capitalized 
to eligible property. The methodology set forth in paragraph (h) of this 
section for mixed service costs may be used in conjunction with either a 
facts-and-circumstances or a simplified method of allocating costs to 
eligible property produced or eligible property acquired for resale.
    (2) Specific identification method. A specific identification method 
traces costs to a cost objective, such as a function, department, 
activity, or product, on the basis of a cause and effect or other 
reasonable relationship between the costs and the cost objective.
    (3) Burden rate and standard cost meth- ods--(i) Burden rate 
method--(A) In gen- eral. A burden rate method allocates an appropriate 
amount of indirect costs to property produced or property acquired for 
resale during a taxable year using predetermined rates that approximate 
the actual amount of indirect costs incurred by the taxpayer during the 
taxable year. Burden rates (such as ratios based on direct costs, hours, 
or similar items) may be developed by the taxpayer in accordance with 
acceptable accounting principles and applied in a reasonable manner. A 
taxpayer may allocate different indirect costs on the basis of different 
burden rates. Thus, for example, the taxpayer may use one burden rate 
for allocating the cost of rent and another burden rate for allocating 
the cost of utilities. Any periodic adjustment to a burden rate that 
merely reflects current operating conditions, such as increases in 
automation or changes in operation or prices, is not a change in method 
of accounting under section 446(e). A change, however, in the concept or 
base upon which such rates are developed, such as a change from basing 
the rates on direct labor hours to basing them on direct machine hours, 
is a change in method of accounting to which section 446(e) applies.
    (B) Development of burden rates. The following factors, among 
others, may be used in developing burden rates:
    (1) The selection of an appropriate level of activity and a period 
of time upon which to base the calculation of rates reflecting operating 
conditions for purposes of the unit costs being determined.
    (2) The selection of an appropriate statistical base, such as direct 
labor hours, direct labor dollars, machine hours, or a combination 
thereof, upon which to apply the overhead rate.
    (3) The appropriate budgeting, classification, and analysis of 
expenses (for example, the analysis of fixed versus variable costs).
    (C) Operation of the burden rate method. The purpose of the burden 
rate method is to allocate an appropriate amount of indirect costs to 
production or resale activities through the use of predetermined rates 
intended to approximate the actual amount of indirect costs incurred. 
Accordingly, the proper use of the burden rate method under this section 
requires that any net negative or net positive difference between the 
total predetermined amount of costs allocated to property and the total 
amount of indirect costs actually incurred and required to be allocated 
to such property (i.e., the under or over-applied burden) must be 
treated as an adjustment to the taxpayer's ending inventory or capital 
account (as the case may be) in the taxable year in which such 
difference arises. However, if such adjustment is not significant in 
amount in relation to the taxpayer's total indirect costs incurred with 
respect to production or resale activities for the year, such adjustment 
need not be allocated to the property produced or property acquired for 
resale unless such allocation is made in the taxpayer's financial 
reports. The taxpayer must treat both positive and negative adjustments 
consistently.
    (ii) Standard cost method--(A) In general. A standard cost method 
allocates an appropriate amount of direct and indirect costs to property 
produced by the taxpayer through the use of preestablished standard 
allowances,

[[Page 643]]

without reference to costs actually incurred during the taxable year. A 
taxpayer may use a standard cost method to allocate costs, provided 
variances are treated in accordance with the procedures prescribed in 
paragraph (f)(3)(ii)(B) of this section. Any periodic adjustment to 
standard costs that merely reflects current operating conditions, such 
as increases in automation or changes in operation or prices, is not a 
change in method of accounting under section 446(e). A change, however, 
in the concept or base upon which standard costs are developed is a 
change in method of accounting to which section 446(e) applies.
    (B) Treatment of variances. For purposes of this section, net 
positive overhead variance means the excess of total standard indirect 
costs over total actual indirect costs and net negative overhead 
variance means the excess of total actual indirect costs over total 
standard indirect costs. The proper use of a standard cost method 
requires that a taxpayer must reallocate to property a pro rata portion 
of any net negative or net positive overhead variances and any net 
negative or net positive direct cost variances. The taxpayer must 
apportion such variances to or among the property to which the costs are 
allocable. However, if such variances are not significant in amount 
relative to the taxpayer's total indirect costs incurred with respect to 
production and resale activities for the year, such variances need not 
be allocated to property produced or property acquired for resale unless 
such allocation is made in the taxpayer's financial reports. A taxpayer 
must treat both positive and negative variances consistently.
    (4) Reasonable allocation methods. A taxpayer may use the methods 
described in paragraph (f) (2) or (3) of this section if they are 
reasonable allocation methods within the meaning of this paragraph 
(f)(4). In addition, a taxpayer may use any other reasonable method to 
properly allocate direct and indirect costs among units of property 
produced or property acquired for resale during the taxable year. An 
allocation method is reasonable if, with respect to the taxpayer's 
production or resale activities taken as a whole--
    (i) The total costs actually capitalized during the taxable year do 
not differ significantly from the aggregate costs that would be properly 
capitalized using another permissible method described in this section 
or in Sec. Sec. 1.263A-2 and 1.263A-3, with appropriate consideration 
given to the volume and value of the taxpayer's production or resale 
activities, the availability of costing information, the time and cost 
of using various allocation methods, and the accuracy of the allocation 
method chosen as compared with other allocation methods;
    (ii) The allocation method is applied consistently by the taxpayer; 
and
    (iii) The allocation method is not used to circumvent the 
requirements of the simplified methods in this section or in Sec. 
1.263A-2, Sec. 1.263A-3, or the principles of section 263A.
    (g) Allocating categories of costs--(1) Direct materials. Direct 
material costs (as defined in paragraph (e)(2) of this section) incurred 
during the taxable year must be allocated to the property produced or 
property acquired for resale by the taxpayer using the taxpayer's d of 
accounting for materials (e.g., specific identification; first-in, 
first-out (FIFO); or last-in, first-out (LIFO)), or any other reasonable 
allocation method (as defined under the principles of paragraph (f)(4) 
of this section).
    (2) Direct labor. Direct labor costs (as defined in paragraph (e)(2) 
of this section) incurred during the taxable year are generally 
allocated to property produced or property acquired for resale using a 
specific identification method, standard cost method, or any other 
reasonable allocation method (as defined under the principles of 
paragraph (f)(4) of this section). All elements of compensation, other 
than basic compensation, may be grouped together and then allocated in 
proportion to the charge for basic compensation. Further, a taxpayer is 
not treated as using an erroneous method of accounting if direct labor 
costs are treated as indirect costs under the taxpayer's allocation 
method, provided such costs are capitalized to the extent required by 
paragraph (g)(3) of this section.
    (3) Indirect costs. Indirect costs (as defined in paragraph (e)(3) 
of this section)

[[Page 644]]

are generally allocated to intermediate cost objectives such as 
departments or activities prior to the allocation of such costs to 
property produced or property acquired for resale. Indirect costs are 
allocated using either a specific identification method, a standard cost 
method, a burden rate method, or any other reasonable allocation method 
(as defined under the principles of paragraph (f)(4) of this section).
    (4) Service costs--(i) In general. Service costs are a type of 
indirect costs that may be allocated using the same allocation methods 
available for allocating other indirect costs described in paragraph 
(g)(3) of this section. Generally, taxpayers that use a specific 
identification method or another reasonable allocation method must 
allocate service costs to particular departments or activities based on 
a factor or relationship that reasonably relates the service costs to 
the benefits received from the service departments or activities. For 
example, a reasonable factor for allocating legal services to particular 
departments or activities is the number of hours of legal services 
attributable to each department or activity. See paragraph (g)(4)(iv) of 
this section for other illustrations. Using reasonable factors or 
relationships, a taxpayer must allocate mixed service costs under a 
direct reallocation method described in paragraph (g)(4)(iii)(A) of this 
section, a step-allocation method described in paragraph (g)(4)(iii)(B) 
of this section, or any other reasonable allocation method (as defined 
under the principles of paragraph (f)(4) of this section).
    (ii) De minimis rule. For purposes of administrative convenience, if 
90 percent or more of a mixed service department's costs are deductible 
service costs, a taxpayer may elect not to allocate any portion of the 
service department's costs to property produced or property acquired for 
resale. For example, if 90 percent of the costs of an electing 
taxpayer's industrial relations department benefit the taxpayer's 
overall policy-making activities, the taxpayer is not required to 
allocate any portion of these costs to a production activity. Under this 
election, however, if 90 percent or more of a mixed service department's 
costs are capitalizable service costs, a taxpayer must allocate 100 
percent of the department's costs to the production or resale activity 
benefitted. For example, if 90 percent of the costs of an electing 
taxpayer's accounting department benefit the taxpayer's manufacturing 
activity, the taxpayer must allocate 100 percent of the costs of the 
accounting department to the manufacturing activity. An election under 
this paragraph (g)(4)(ii) applies to all of a taxpayer's mixed service 
departments and constitutes the adoption of a (or a change in) method of 
accounting under section 446 of the Internal Revenue Code.
    (iii) Methods for allocating mixed service costs--(A) Direct 
reallocation method. Under the direct reallocation method, the total 
costs (direct and indirect) of all mixed service departments are 
allocated only to departments or cost centers engaged in production or 
resale activities and then from those departments to particular 
activities. This direct reallocation method ignores benefits provided by 
one mixed service department to other mixed service departments, and 
also excludes other mixed service departments from the base used to make 
the allocation.
    (B) Step-allocation method. (1) Under a step-allocation method, a 
sequence of allocations is made by the taxpayer. First, the total costs 
of the mixed service departments that benefit the greatest number of 
other departments are allocated to--
    (i) Other mixed service departments;
    (ii) Departments that incur only deductible service costs; and
    (iii) Departments that exclusively engage in production or resale 
activities.
    (2) A taxpayer continues allocating mixed service costs in the 
manner described in paragraph (g)(4)(iii)(B)(1) of this section (i.e., 
from the service departments benefitting the greatest number of 
departments to the service departments benefitting the least number of 
departments) until all mixed service costs are allocated to the types of 
departments listed in this paragraph (g)(4)(iii). Thus, a step-
allocation method recognizes the benefits provided by one mixed service 
department to another mixed service department and

[[Page 645]]

also includes mixed service departments that have not yet been allocated 
in the base used to make the allocation.
    (C) Examples. The provisions of this paragraph (g)(4)(iii) are 
illustrated by the following examples:

    Example 1. Direct reallocation method. (i) Taxpayer E has the 
following five departments: the Assembling Department, the Painting 
Department, and the Finishing Department (production departments), and 
the Personnel Department and the Data Processing Department (mixed 
service departments). E allocates the Personnel Department's costs on 
the basis of total payroll costs and the Data Processing Department's 
costs on the basis of data processing hours.
    (ii) Under a direct reallocation method, E allocates the Personnel 
Department's costs directly to its Assembling, Painting, and Finishing 
Department, and not to its Data Processing department.

----------------------------------------------------------------------------------------------------------------
                                                          Total     Amount of
                      Department                          dept.      payroll    Allocation ratio      Amount
                                                          costs       costs                          allocated
----------------------------------------------------------------------------------------------------------------
Personnel............................................    $500,000     $50,000  .................  <$500,000
Sec. 1.263A-1T  Uniform capitalization of costs (temporary).

    (a) through (b)(13) [Reserved] For further guidance, see Sec. 
1.263A-1(a) through (b)(13).
    (14) Property subject to de minimis rule. Section 263A does not 
apply to the costs of property produced by a taxpayer to which the 
taxpayer properly applies the de minimis rule under Sec. 1.263(a)-
2T(g). However, the cost of property to which a taxpayer properly 
applies the de minimis rule under Sec. 1.263(a)-2T(g) may be required 
to be capitalized to other property as a cost incurred by reason of the 
production of

[[Page 652]]

the other property that is subject to section 263A.
    (c)(1) through (c)(3) [Reserved] For further guidance, see Sec. 
1.263A-1(c)(1) through (c)(3).
    (4) Recovery of capitalized costs. Except as provided in Sec. 
1.162-3T(a)(2) (amounts paid to produce incidental materials and 
supplies), costs that are capitalized under section 263A are recovered 
through depreciation, amortization, cost of goods sold, or by an 
adjustment to basis at the time the property is used, sold, placed in 
service, or otherwise disposed of by the taxpayer. Cost recovery is 
determined by the applicable Internal Revenue Code and regulation 
provisions relating to use, sale, or disposition of property.
    (d)(1) through (e)(2)(i) [Reserved] For further guidance, see Sec. 
1.263A-1(d)(1) through (e)(2)(i).
    (A) Direct material costs. Direct materials costs include the cost 
of those materials that become an integral part of specific property 
produced and those materials that are consumed in the ordinary course of 
production and that can be identified or associated with particular 
units or groups of units of property produced. For example, a cost 
described in Sec. 1.162-3T, relating to the cost of a material or 
supply, may be a direct material cost.
    (e)(2)(i)(B) through (e)(2)(ii)(D) [Reserved] For further guidance, 
see Sec. 1.263A-1(e)(2)(i)(B) through (e)(2)(ii)(D).
    (E) Indirect material costs. Indirect material costs include the 
cost of materials that are not an integral part of specific property 
produced and the cost of materials that are consumed in the ordinary 
course of performing production or resale activities that cannot be 
identified or associated with particular units of property. Thus, for 
example, a cost described in Sec. 1.162-3T, relating to the cost of a 
material or supply, may be an indirect cost.
    (e)(2)(ii)(F) through (k)(5) [Reserved] For further guidance, see 
Sec. 1.263A-1(e)(2)(ii)(F) through (k)(5).
    (l) Change in method of accounting for de minimis costs. A change in 
the treatment of amounts paid for property subject to the de minimis 
rule to comply with paragraph (b)(14) of this section is a change in 
method of accounting to which the provisions of sections 446 and 481, 
and the regulations thereunder apply. A taxpayer seeking to change to a 
method of accounting permitted in paragraph (b)(14) of this section must 
secure the consent of the Commissioner in accordance with Sec. 1.446-
1(e) and follow the administrative procedures issued under Sec. 1.446-
1(e)(3)(ii) for obtaining the Commissioner's consent to change its 
accounting method.
    (m) Effective/applicability date. (1) Paragraphs (h)(2)(i)(D), (k), 
and (m)(1) of this section apply for taxable years ending on or after 
August 2, 2005.
    (2) Paragraph (b)(14), the introductory phrase of paragraph (c)(4), 
the last sentence of paragraphs (e)(2)(i)(A) and (e)(2)(ii)(E), 
paragraph (l), and paragraph (m)(2) of this section apply to amounts 
paid or incurred (to acquire or produce property) in taxable years 
beginning on or after January 1, 2014. Section 1.263A-1 as contained in 
26 CFR part 1 edition revised as of April 1, 2011, applies to taxable 
years beginning before January 1, 2014. A taxpayer may choose to apply 
paragraph (b)(14), the introductory text of paragraph (c)(4), the last 
sentence of paragraphs (e)(2)(i)(A) and (e)(2)(ii)(E), and paragraph (l) 
of this section to amounts paid or incurred (to acquire or produce 
property) in taxable years beginning on or after January 1, 2012.
    (n) Expiration date. The applicability of this section expires on 
December 23, 2014.

[T.D. 9564, 76 FR 81126, Dec. 27, 2011, as amended by 77 FR 74586, Dec. 
17, 2012]



Sec. 1.263A-2  Rules relating to property produced by the taxpayer.

    (a) In general. Section 263A applies to real property and tangible 
personal property produced by a taxpayer for use in its trade or 
business or for sale to its customers. In addition, section 263A applies 
to property produced for a taxpayer under a contract with another party. 
The principal terms related to the scope of section 263A with respect to 
producers are provided in this paragraph (a). See Sec. 1.263A-1(b)(11) 
for an exception in the case of certain de minimis property provided to 
customers incident to the provision of services.

[[Page 653]]

    (1) Produce--(i) In general. For purposes of section 263A, produce 
includes the following: construct, build, install, manufacture, develop, 
improve, create, raise, or grow.
    (ii) Ownership--(A) General rule. Except as provided in paragraphs 
(a)(1)(ii) (B) and (C) of this section, a taxpayer is not considered to 
be producing property unless the taxpayer is considered an owner of the 
property produced under federal income tax principles. The determination 
as to whether a taxpayer is an owner is based on all of the facts and 
circumstances, including the various benefits and burdens of ownership 
vested with the taxpayer. A taxpayer may be considered an owner of 
property produced, even though the taxpayer does not have legal title to 
the property.
    (B) Property produced for the taxpayer under a contract--(1) In 
general. Property produced for the taxpayer under a contract with 
another party is treated as property produced by the taxpayer to the 
extent the taxpayer makes payments or otherwise incurs costs with 
respect to the property. A taxpayer has made payment under this section 
if the transaction would be considered payment by a taxpayer using the 
cash receipts and disbursements method of accounting.
    (2) Definition of a contract--(i) General rule. Except as provided 
under paragraph (a)(1)(ii)(B)(2)(ii) of this section, a contract is any 
agreement providing for the production of property if the agreement is 
entered into before the production of the property to be delivered under 
the contract is completed. Whether an agreement exists depends on all 
the facts and circumstances. Facts and circumstances indicating an 
agreement include, for example, the making of a prepayment, or an 
arrangement to make a prepayment, for property prior to the date of the 
completion of production of the property, or the incurring of 
significant expenditures for property of specialized design or 
specialized application that is not intended for self-use.
    (ii) Routine purchase order exception. A routine purchase order for 
fungible property is not treated as a contract for purposes of this 
section. An agreement will not be treated as a routine purchase order 
for fungible property, however, if the contractor is required to make 
more than de minimis modifications to the property to tailor it to the 
customer's specific needs, or if at the time the agreement is entered 
into, the customer knows or has reason to know that the contractor 
cannot satisfy the agreement within 30 days out of existing stocks and 
normal production of finished goods.
    (C) Home construction contracts. Section 460(e)(1) provides that 
section 263A applies to a home construction contract unless that 
contract will be completed within two years of the contract commencement 
date and the taxpayer's average annual gross receipts for the three 
preceding taxable years do not exceed $10,000,000. Section 263A applies 
to such a contract even if the contractor is not considered the owner of 
the property produced under the contract under federal income tax 
principles.
    (2) Tangible personal property--(i) General rule. In general, 
section 263A applies to the costs of producing tangible personal 
property, and not to the costs of producing intangible property. For 
example, section 263A applies to the costs manufacturers incur to 
produce goods, but does not apply to the costs financial institutions 
incur to originate loans.
    (ii) Intellectual or creative property. For purposes of determining 
whether a taxpayer producing intellectual or creative property is 
producing tangible personal property or intangible property, the term 
tangible personal property includes films, sound recordings, video 
tapes, books, and other similar property embodying words, ideas, 
concepts, images, or sounds by the creator thereof. Other similar 
property for this purpose generally means intellectual or creative 
property for which, as costs are incurred in producing the property, it 
is intended (or is reasonably likely) that any tangible medium in which 
the property is embodied will be mass distributed by the creator or any 
one or more third parties in a form that is not substantially altered. 
However, any intellectual or creative property that is embodied in a 
tangible medium that is mass distributed merely incident to the 
distribution of a principal product

[[Page 654]]

or good of the creator is not other similar property for these purposes.
    (A) Intellectual or creative property that is tangible personal 
property. Section 263A applies to tangible personal property defined in 
this paragraph (a)(2) without regard to whether such property is treated 
as tangible or intangible property under other sections of the Internal 
Revenue Code. Thus, for example, section 263A applies to the costs of 
producing a motion picture or researching and writing a book even though 
these assets may be considered intangible for other purposes of the 
Internal Revenue Code. Tangible personal property includes, for example, 
the following:
    (1) Books. The costs of producing and developing books (including 
teaching aids and other literary works) required to be capitalized under 
this section include costs incurred by an author in researching, 
preparing, and writing the book. (However, see section 263A(h), which 
provides an exemption from the capitalization requirements of section 
263A in the case of certain free-lance authors.) In addition, the costs 
of producing and developing books include prepublication expenditures 
incurred by publishers, including payments made to authors (other than 
commissions for sales of books that have already taken place), as well 
as costs incurred by publishers in writing, editing, compiling, 
illustrating, designing, and developing the books. The costs of 
producing a book also include the costs of producing the underlying 
manuscript, copyright, or license. (These costs are distinguished from 
the separately capitalizable costs of printing and binding the tangible 
medium embodying the book (e.g., paper and ink).) See Sec. 1.174-
2(a)(1), which provides that the term research or experimental 
expenditures does not include expenditures incurred for research in 
connection with literary, historical, or similar projects.
    (2) Sound recordings. A sound recording is a work that results from 
the fixation of a series of musical, spoken, or other sounds, regardless 
of the nature of the material objects, such as discs, tapes, or other 
phonorecordings, in which such sounds are embodied.
    (B) Intellectual or creative property that is not tangible personal 
property. Items that are not considered tangible personal property 
within the meaning of section 263A(b) and paragraph (a)(2)(ii) of this 
section include:
    (1) Evidences of value. Tangible personal property does not include 
property that is representative or evidence of value, such as stock, 
securities, debt instruments, mortgages, or loans.
    (2) Property provided incident to services. Tangible personal 
property does not include de minimis property provided to a client or 
customer incident to the provision of services, such as wills prepared 
by attorneys, or blueprints prepared by architects. See Sec. 1.263A-
1(b)(11).
    (3) Costs required to be capitalized by producers--(i) In general. 
Except as specifically provided in section 263A(f) with respect to 
interest costs, producers must capitalize direct and indirect costs 
properly allocable to property produced under section 263A, without 
regard to whether those costs are incurred before, during, or after the 
production period (as defined in section 263A(f)(4)(B)).
    (ii) Pre-production costs. If property is held for future 
production, taxpayers must capitalize direct and indirect costs 
allocable to such property (e.g., purchasing, storage, handling, and 
other costs), even though production has not begun. If property is not 
held for production, indirect costs incurred prior to the beginning of 
the production period must be allocated to the property and capitalized 
if, at the time the costs are incurred, it is reasonably likely that 
production will occur at some future date. Thus, for example, a 
manufacturer must capitalize the costs of storing and handling raw 
materials before the raw materials are committed to production. In 
addition, a real estate developer must capitalize property taxes 
incurred with respect to property if, at the time the taxes are 
incurred, it is reasonably likely that the property will be subsequently 
developed.
    (iii) Post-production costs. Generally, producers must capitalize 
all indirect costs incurred subsequent to completion of production that 
are properly allocable to the property produced. Thus,

[[Page 655]]

for example, storage and handling costs incurred while holding the 
property produced for sale after production must be capitalized to the 
property to the extent properly allocable to the property. However, see 
Sec. 1.263A-3(c) for exceptions.
    (4) Practical capacity concept. Notwithstanding any provision to the 
contrary, the use, directly or indirectly, of the practical capacity 
concept is not permitted under section 263A. For purposes of section 
263A, the term practical capacity concept means any concept, method, 
procedure, or formula (such as the practical capacity concept described 
in Sec. 1.471-11(d)(4)) whereunder fixed costs are not capitalized 
because of the relationship between the actual production at the 
taxpayer's production facility and the practical capacity of the 
facility. For purposes of this section, the practical capacity of a 
facility includes either the practical capacity or theoretical capacity 
of the facility, as defined in Sec. 1.471-11(d)(4), or any similar 
determination of productive or operating capacity. The practical 
capacity concept may not be used with respect to any activity to which 
section 263A applies (i.e., production or resale activities). A taxpayer 
shall not be considered to be using the practical capacity concept 
solely because the taxpayer properly does not capitalize costs described 
in Sec. 1.263A-1(e)(3)(iii)(E), relating to certain costs attributable 
to temporarily idle equipment.
    (5) Taxpayers required to capitalize costs under this section. This 
section generally applies to taxpayers that produce property. If a 
taxpayer is engaged in both production activities and resale activities, 
the taxpayer applies the principles of this section as if it read 
production or resale activities, and by applying appropriate principles 
from Sec. 1.263A-3. If a taxpayer is engaged in both production and 
resale activities, the taxpayer may elect the simplified production 
method provided in this section, but generally may not elect the 
simplified resale method discussed in Sec. 1.263A-3(d). If elected, the 
simplified production method must be applied to all eligible property 
produced and all eligible property acquired for resale by the taxpayer.
    (b) Simplified production method--(1) Introduction. This paragraph 
(b) provides a simplified method for determining the additional section 
263A costs properly allocable to ending inventories of property produced 
and other eligible property on hand at the end of the taxable year.
    (2) Eligible property--(i) In general. Except as otherwise provided 
in paragraph (b)(2)(ii) of this section, the simplified production 
method, if elected for any trade or business of a producer, must be used 
for all production and resale activities associated with any of the 
following categories of property to which section 263A applies:
    (A) Inventory property. Stock in trade or other property properly 
includible in the inventory of the taxpayer.
    (B) Non-inventory property held for sale. Non-inventory property 
held by a taxpayer primarily for sale to customers in the ordinary 
course of the taxpayer's trade or business.
    (C) Certain self-constructed assets. Self-constructed assets 
substantially identical in nature to, and produced in the same manner 
as, inventory property produced by the taxpayer or other property 
produced by the taxpayer and held primarily for sale to customers in the 
ordinary course of the taxpayer's trade or business.
    (D) Self-constructed tangible personal property produced on a 
routine and repetitive basis--(1) In general. Self-constructed tangible 
personal property produced by the taxpayer on a routine and repetitive 
basis in the ordinary course of the taxpayer's trade or business. Self-
constructed tangible personal property is produced by the taxpayer on a 
routine and repetitive basis in the ordinary course of the taxpayer's 
trade or business when units of tangible personal property (as defined 
in Sec. 1.263A-10(c)) are mass-produced, that is, numerous 
substantially identical assets are manufactured within a taxable year 
using standardized designs and assembly line techniques, and either the 
applicable recovery period of the property determined under section 
168(c) is not longer than 3 years or the property is a material or 
supply that will be used and consumed within 3 years of being produced. 
For purposes

[[Page 656]]

of this paragraph (b)(2)(i)(D), the applicable recovery period of the 
assets will be determined at the end of the taxable year in which the 
assets are placed in service for purposes of Sec. 1.46-3(d). Subsequent 
changes to the applicable recovery period after the assets are placed in 
service will not affect the determination of whether the assets are 
produced on a routine and repetitive basis for purposes of this 
paragraph (b)(2)(i)(D).
    (2) Examples. The following examples illustrate this paragraph 
(b)(2)(i)(D):

    Example 1. Y is a manufacturer of automobiles. During the taxable 
year Y produces numerous substantially identical dies and molds using 
standardized designs and assembly line techniques. The dies and molds 
have a 3-year applicable recovery period for purposes of section 168(c). 
Y uses the dies and molds to produce or process particular automobile 
components and does not hold them for sale. The dies and molds are 
produced on a routine and repetitive basis in the ordinary course of Y's 
business for purposes of this paragraph because the dies and molds are 
both mass-produced and have a recovery period of not longer than 3 
years.
    Example 2. Z is an electric utility that regularly manufactures and 
installs identical poles that are used in transmitting and distributing 
electricity. The poles have a 20-year applicable recovery period for 
purposes of section 168(c). The poles are not produced on a routine and 
repetitive basis in the ordinary course of Z's business for purposes of 
this paragraph because the poles have an applicable recovery period that 
is longer than 3 years.
    (ii) Election to exclude self-constructed assets. At the taxpayer's 
election, the simplified production method may be applied within a trade 
or business to only the categories of inventory property and non-
inventory property held for sale described in paragraphs (b)(2)(i) (A) 
and (B) of this section. Taxpayers electing to exclude the self- 
constructed assets, defined in paragraphs (b)(2)(i) (C) and (D) of this 
section, from application of the simplified production method must, 
however, allocate additional section 263A costs to such property in 
accordance with Sec. 1.263A-1 (f).
    (3) Simplified production method without historic absorption ratio 
election--(i) General allocation formula--(A) In general. Except as 
otherwise provided in paragraph (b)(3)(iv) of this section, the 
additional section 263A costs allocable to eligible property remaining 
on hand at the close of the taxable year under the simplified production 
method are computed as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.004

    (B) Effect of allocation. The absorption ratio generally is 
multiplied by the section 471 costs remaining in ending inventory or 
otherwise on hand at the end of each taxable year in which the 
simplified production method is applied. The resulting product is the 
additional section 263A costs that are added to the taxpayer's ending 
section 471 costs to determine the section 263A costs that are 
capitalized. See, however, paragraph (b)(3)(iii) of this section for 
special rules applicable to LIFO taxpayers. Except as otherwise provided 
in this section or in Sec. 1.263A-1 or 1.263A-3, additional section 
263A costs that are allocated to inventories on hand at the close of the 
taxable year under the simplified production method of this paragraph 
(b) are treated as inventory costs for all purposes of the Internal 
Revenue Code.
    (ii) Definitions--(A) Absorption ratio. Under the simplified 
production method, the absorption ratio is determined as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.005


[[Page 657]]


    (1) Additional section 263A costs incurred during the taxable year. 
Additional section 263A costs incurred during the taxable year are 
defined as the additional section 263A costs described in Sec. 1.263A-
1(d)(3) that a taxpayer incurs during its current taxable year.
    (2) Section 471 costs incurred during the taxable year. Section 471 
costs incurred during the taxable year are defined as the section 471 
costs described in Sec. 1.263A-1(d)(2) that a taxpayer incurs during 
its current taxable year.
    (B) Section 471 costs remaining on hand at year end. Section 471 
costs remaining on hand at year end means the section 471 costs, as 
defined in Sec. 1.263A-1(d)(2), that a taxpayer incurs during its 
current taxable year which remain in its ending inventory or are 
otherwise on hand at year end. For LIFO inventories of a taxpayer, the 
section 471 costs remaining on hand at year end means the increment, if 
any, for the current year stated in terms of section 471 costs. See 
paragraph (b)(3)(iii) of this section.
    (iii) LIFO taxpayers electing the simplified production method--(A) 
In general. Under the simplified production method, a taxpayer using a 
LIFO method must calculate a particular year's index (e.g., under Sec. 
1.472-8(e)) without regard to its additional section 263A costs. 
Similarly, a taxpayer that adjusts current-year costs by applicable 
indexes to determine whether there has been an inventory increment or 
decrement in the current year for a particular LIFO pool must disregard 
the additional section 263A costs in making that determination.
    (B) LIFO increment. If the taxpayer determines there has been an 
inventory increment, the taxpayer must state the amount of the increment 
in current-year dollars (stated in terms of section 471 costs). The 
taxpayer then multiplies this amount by the absorption ratio. The 
resulting product is the additional section 263A costs that must be 
added to the taxpayer's increment for the year stated in terms of 
section 471 costs.
    (C) LIFO decrement. If the taxpayer determines there has been an 
inventory decrement, the taxpayer must state the amount of the decrement 
in dollars applicable to the particular year for which the LIFO layer 
has been invaded. The additional section 263A costs incurred in prior 
years that are applicable to the decrement are charged to cost of goods 
sold. The additional section 263A costs that are applicable to the 
decrement are determined by multiplying the additional section 263A 
costs allocated to the layer of the pool in which the decrement occurred 
by the ratio of the decrement (excluding additional section 263A costs) 
to the section 471 costs in the layer of that pool.
    (iv) De minimis rule for producers with total indirect costs of 
$200,000 or less--(A) In general. If a producer using the simplified 
production method incurs $200,000 or less of total indirect costs in a 
taxable year, the additional section 263A costs allocable to eligible 
property remaining on hand at the close of the taxable year are deemed 
to be zero. Solely for purposes of this paragraph (b)(3)(iv), taxpayers 
are permitted to exclude any category of indirect costs (listed in Sec. 
1.263A-1(e)(3)(iii)) that is not required to be capitalized (e.g., 
selling and distribution costs) in determining total indirect costs.
    (B) Related party and aggregation rules. In determining whether the 
producer incurs $200,000 or less of total indirect costs in a taxable 
year, the related party and aggregation rules of Sec. 1.263A-3(b)(3) 
are applied by substituting total indirect costs for gross receipts 
wherever gross receipts appears.
    (v) Examples. The provisions of this paragraph (b) are illustrated 
by the following examples.

    Example 1. FIFO inventory method. (i) Taxpayer J uses the FIFO 
method of accounting for inventories. J's beginning inventory for 1994 
(all of which is sold during 1994) is $2,500,000 (consisting of 
$2,000,000 of section 471 costs and $500,000 of additional section 263A 
costs). During 1994, J incurs $10,000,000 of section 471 costs and 
$1,000,000 of additional section 263A costs. J's additional section 263A 
costs include capitalizable mixed service costs computed under the 
simplified service cost method as well as other allocable costs. J's 
section 471 costs remaining in ending inventory at the end of 1994 are 
$3,000,000. J computes its absorption ratio for 1994, as follows:

[[Page 658]]

[GRAPHIC] [TIFF OMITTED] TC10OC91.006

    (ii) Under the simplified production method, J determines the 
additional section 263A costs allocable to its ending inventory by 
multiplying the absorption ratio by the section 471 costs remaining in 
its ending inventory:
[GRAPHIC] [TIFF OMITTED] TC10OC91.007

    (iii) J adds this $300,000 to the $3,000,000 of section 471 costs 
remaining in its ending inventory to calculate its total ending 
inventory of $3,300,000. The balance of J's additional section 263A 
costs incurred during 1994, $700,000, ($1,000,000 less $300,000) is 
taken into account in 1994 as part of J's cost of goods sold.
    Example 2. LIFO inventory method. (i) Taxpayer K uses a dollar-value 
LIFO inventory method. K's beginning inventory for 1994 is $2,500,000 
(consisting of $2,000,000 of section 471 costs and $500,000 of 
additional section 263A costs). During 1994, K incurs $10,000,000 of 
section 471 costs and $1,000,000 of additional section 263A costs. K's 
1994 LIFO increment is $1,000,000 ($3,000,000 of section 471 costs in 
ending inventory less $2,000,000 of section 471 costs in beginning 
inventory).
    (ii) To determine the additional section 263A costs allocable to its 
ending inventory, K multiplies the 10% absorption ratio ($1,000,000 of 
additional section 263A costs divided by $10,000,000 of section 471 
costs) by the $1,000,000 LIFO increment. Thus, K's additional section 
263A costs allocable to its ending inventory are $100,000 ($1,000,000 
multiplied by 10%). This $100,000 is added to the $1,000,000 to 
determine a total 1994 LIFO increment of $1,100,000. K's ending 
inventory is $3,600,000 (its beginning inventory of $2,500,000 plus the 
$1,100,000 increment). The balance of K's additional section 263A costs 
incurred during 1994, $900,000 ($1,000,000 less $100,000), is taken into 
account in 1994 as part of K's cost of goods sold.
    (iii) In 1995, K sells one-half of the inventory in its 1994 LIFO 
increment. K must include in its cost of goods sold for 1995 the amount 
of additional section 263A costs relating to this inventory, $50,000 
(one-half of the tional section 263A costs capitalized in 1994 ending 
inventory, or $100,000).
    Example 3. LIFO pools. (i) Taxpayer U begins its business in 1994 
and adopts the LIFO inventory method. During 1994, L incurs $10,000 of 
section 471 costs and $1,000 of additional section 263A costs. At the 
end of 1994, L's ending inventory includes $3,000 of section 471 costs 
contained in three LIFO pools (X, Y, and Z) as shown below. Under the 
simplified production method, L computes its absorption ratio and 
inventory for 1994 as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.008


------------------------------------------------------------------------
                                         Total      X        Y       Z
------------------------------------------------------------------------
1994:
  Ending section 471 costs............   $3,000   $1,600    $600    $800
  Additional section 263A costs (10%).      300      160      60      80
                                       ---------------------------------
    1994 ending inventory.............   $3,300   $1,760    $660    $880
------------------------------------------------------------------------

    (ii) During 1995, L incurs $2,000 of section 471 costs as shown 
below and $400 of additional section 263A costs. Moreover, L sells goods 
from pools X, Y, and Z having a total cost of $1,000. L computes its 
absorption ratio and inventory for 1995:

[[Page 659]]

[GRAPHIC] [TIFF OMITTED] TC10OC91.009


------------------------------------------------------------------------
                                         Total      X        Y       Z
------------------------------------------------------------------------
1995:
  Beginning section 471 costs.........   $3,000   $1,600    $600    $800
  1995 section 471 costs..............    2,000    1,500     300     200
  Section 471 cost of goods sold......  (1,000)    (300)   (300)   (400)
                                       ---------------------------------
  1995 ending section 471 costs.......   $4,000   $2,800    $600    $600
                                       =================================
Consisting of:
  1994 layer..........................   $2,800   $1,600    $600    $600
  1995 layer..........................    1,200    1,200  ......  ......
                                       ---------------------------------
                                         $4,000   $2,800    $600    $600
                                       =================================
Additional section 263A costs:
  1994 (10%)..........................     $280     $160     $60     $60
  1995 (20%)..........................      240      240  ......  ......
                                       ---------------------------------
                                           $520     $400     $60     $60
                                       =================================
    1995 ending inventory.............   $4,520   $3,200    $660    $660
------------------------------------------------------------------------

    (iii) In 1995, L experiences a $200 decrement in pool Z. Thus, L 
must charge the additional section 263A costs incurred in prior years 
applicable to the decrement to 1995's cost of goods sold. To do so, L 
determines a ratio by dividing the decrement by the section 471 costs in 
the 1994 layer ($200 divided by $800, or 25%). L then multiplies this 
ratio (25%) by the additional section 263A costs in the 1994 layer ($80) 
to determine the additional section 263A costs applicable to the 
decrement ($20). Therefore, $20 is taken into account by L in 1995 as 
part of its cost of goods sold ($80 multiplied by 25%).

    (4) Simplified production method with historic absorption ratio 
election--(i) In general. This paragraph (b)(4) generally permits 
producers using the simplified production method to elect a historic 
absorption ratio in determining additional section 263A costs allocable 
to eligible property remaining on hand at the close of their taxable 
years. Except as provided in paragraph (b)(4)(v) of this section, a 
taxpayer may only make a historic absorption ratio election if it has 
used the simplified production method for three or more consecutive 
taxable years immediately prior to the year of election and has 
capitalized additional section 263A costs using an actual absorption 
ratio (as defined under

paragraph (b)(3)(ii) of this section) for its three most recent 
consecutive taxable years. This method is not available to a taxpayer 
that is deemed to have zero additional section 263A costs under 
paragraph (b)(3)(iv) of this section. The historic absorption ratio is 
used in lieu of an actual absorption ratio computed under paragraph 
(b)(3)(ii) of this section and is based on costs capitalized by a 
taxpayer during its test period. If elected, the historic absorption 
ratio must be used for each taxable year within the qualifying period 
described in paragraph (b)(4)(ii)(C) of this section.
    (ii) Operating rules and definitions--(A) Historic absorption ratio. 
(1) The historic absorption ratio is equal to the following ratio:
[GRAPHIC] [TIFF OMITTED] TC10OC91.010


[[Page 660]]


    (2) Additional section 263A costs incurred during the test period 
are defined as the additional section 263A costs described in Sec. 
1.263A-1(d)(3) that the taxpayer incurs during the test period described 
in paragraph (b)(4)(ii)(B) of this section.
    (3) Section 471 costs incurred during the test period mean the 
section 471 costs described in Sec. 1.263A-1(d)(2) that the taxpayer 
incurs during the test period described in paragraph (b)(4)(ii)(B) of 
this section.
    (B) Test period--(1) In general. The test period is generally the 
three taxable-year period immediately prior to the taxable year that the 
historic absorption ratio is elected.
    (2) Updated test period. The test period begins again with the 
beginning of the first taxable year after the close of a qualifying 
period. This new test period, the updated test period, is the three 
taxable-year period beginning with the first taxable year after the 
close of the qualifying period as defined in paragraph (b)(4)(ii)(C) of 
this section.
    (C) Qualifying period--(1) In general. A qualifying period includes 
each of the first five taxable years beginning with the first taxable 
year after a test period (or an updated test period).
    (2) Extension of qualifying period. In the first taxable year 
following the close of each qualifying period, (e.g., the sixth taxable 
year following the test period), the taxpayer must compute the actual 
absorption ratio under the simplified production method. If the actual 
absorption ratio computed for this taxable year (the recomputation year) 
is within one-half of one percentage point (plus or minus) of the 
historic absorption ratio used in determining capitalizable costs for 
the qualifying period (i.e., the previous five taxable years), the 
qualifying period is extended to include the recomputation year and the 
following five taxable years, and the taxpayer must continue to use the 
historic absorption ratio throughout the extended qualifying period. If, 
however, the actual absorption ratio computed for the recomputation year 
is not within one-half of one percentage point (plus or minus) of the 
historic absorption ratio, the taxpayer must use actual absorption 
ratios beginning with the recomputation year under the simplified 
production method and throughout the updated test period. The taxpayer 
must resume using the historic absorption ratio (determined with 
reference to the updated test period) in the third taxable year 
following the recomputation year.
    (iii) Method of accounting--(A) Adoption and use. The election to 
use the historic absorption ratio is a method of accounting. A taxpayer 
using the simplified production method may elect the historic absorption 
ratio in any taxable year if permitted under this paragraph (b)(4), 
provided the taxpayer has not obtained the Commissioner's consent to 
revoke the historic absorption ratio election within its prior six 
taxable years. The election is to be effected on a cut-off basis, and 
thus, no adjustment under section 481(a) is required or permitted. The 
use of a historic absorption ratio has no effect on other methods of 
accounting adopted by the taxpayer and used in conjunction with the 
simplified production method in determining its section 263A costs. 
Accordingly, in computing its actual absorption ratios, the taxpayer 
must use the same methods of accounting used in computing its historic 
absorption ratio during its most recent test period unless the taxpayer 
obtains the consent of the Commissioner. Finally, for purposes of this 
paragraph (b)(4)(iii), the recomputation of the historic absorption 
ratio during an updated test period and the change from a historic 
absorption ratio to an actual absorption ratio by reason of the 
requirements of this paragraph (b)(4) are not considered changes in 
methods of accounting under section 446(e) and, thus, do not require the 
consent of the Commissioner or any adjustments under section 481(a).
    (B) Revocation of election. A taxpayer may only revoke its election 
to use the historic absorption ratio with the consent of the 
Commissioner in a manner prescribed under section 446(e) and the 
regulations thereunder. Consent to the change for any taxable year that 
is included in the qualifying period (or an extended qualifying period) 
will be granted only upon a showing of unusual circumstances.
    (iv) Reporting and recordkeeping requirements--(A) Reporting. A 
taxpayer

[[Page 661]]

making an election under this paragraph (b)(4) must attach a statement 
to its federal income tax return for the taxable year in which the 
election is made showing the actual absorption ratios determined under 
the simplified production method during its first test period. This 
statement must disclose the historic absorption ratio to be used by the 
taxpayer during its qualifying period. A similar statement must be 
attached to the federal income tax return for the first taxable year 
within any subsequent qualifying period (i.e., after an updated test 
period).
    (B) Recordkeeping. A taxpayer must maintain all appropriate records 
and details supporting the historic absorption ratio until the 
expiration of the statute of limitations for the last year for which the 
taxpayer applied the particular historic absorption ratio in determining 
additional section 263A costs capitalized to eligible property.
    (v) Transition rules. Taxpayers will be permitted to elect a 
historic absorption ratio in their first, second, or third taxable year 
beginning after December 31, 1993, under such terms and conditions as 
may be prescribed by the Commissioner. Taxpayers are eligible to make an 
election under these transition rules whether or not they previously 
used the simplified production method. A taxpayer making such an 
election must recompute (or compute) its additional section 263A costs, 
and thus, its historic absorption ratio for its first test period as if 
the rules prescribed in this section and Sec. Sec. 1.263A-1 and 1.263A-
3 had applied throughout the test period.
    (vi) Example. The provisions of this paragraph (b)(4) are 
illustrated by the following example:

    Example. (i) Taxpayer M uses the FIFO method of accounting for 
inventories and for 1994 elects to use the historic absorption ratio 
with the simplified production method. After recomputing its additional 
section 263A costs in accordance with the transition rules of paragraph 
(b)(4)(v) of this section, M identifies the following costs incurred 
during the test period:


1991:
    Add'l section 263A costs--$100
    Section 471 costs--$3,000
1992:
    Add'l section 263A costs--$200
    Section 471 costs--$4,000
1993:
    Add'l section 263A costs--$300
    Section 471 costs--$5,000

    (ii) Therefore, M computes a 5% historic absorption ratio determined 
as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.011

    (iii) In 1994, M incurs $10,000 of section 471 costs of which $3,000 
remain in inventory at the end of the year. Under the simplified 
production method using a historic absorption ratio, M determines the 
additional section 263A costs allocable to its ending inventory by 
multiplying its historic absorption ratio (5%) by the section 471 costs 
remaining in its ending inventory as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.012

    (iv) To determine its ending inventory under section 263A, M adds 
the additional section 263A costs allocable to ending inventory to its 
section 471 costs remaining in ending inventory ($3,150=$150+$3,000). 
The balance of M's additional section 263A costs incurred during 1994 is 
taken into account in 1994 as part of M's cost of goods sold.
    (v) M's qualifying period ends with the close of its 1998 taxable 
year. Therefore, 1999 is a recomputation year in which M must compute 
its actual absorption ratio. M determines its actual absorption ratio 
for 1999 to be 5.25% and compares that ratio to its historic absorption 
ratio (5.0%). Therefore, M must continue to use its historic absorption

[[Page 662]]

ratio of 5.0% throughout an extended qualifying period, 1999 through 
2004 (the recomputation year and the following five taxable years).
    (vi) If, instead, M's actual absorption ratio for 1999 were not 
between 4.5% and 5.5%, M's qualifying period would end and M would be 
required to compute a new historic absorption ratio with reference to an 
updated test period of 1999, 2000, and 2001. Once M's historic 
absorption ratio is determined for the updated test period, it would be 
used for a new qualifying period beginning in 2002.

    (c) Additional simplified methods for producers. The Commissioner 
may prescribe additional elective simplified methods by revenue ruling 
or revenue procedure.
    (d) Cross reference. See Sec. 1.6001-1(a) regarding the duty of 
taxpayers to keep such records as are sufficient to establish the amount 
of gross income, deductions, etc.
    (e) Change in method of accounting--(1) In general. A change in a 
taxpayer's treatment of additional section 263A costs to comply with 
paragraph (b)(2)(i)(D) of this section is a change in method of 
accounting to which the provisions of sections 446 and 481 and the 
regulations under those sections apply. See Sec. 1.263A-7. For a 
taxpayer's first taxable year ending on or after August 2, 2005, the 
taxpayer is granted the consent of the Commissioner to change its method 
of accounting to comply with paragraph (b)(2)(i)(D) of this section, 
provided the taxpayer follows the administrative procedures, as modified 
by paragraphs (e)(2) through (4) of this section, issued under Sec. 
1.446-1(e)(3)(ii) for obtaining the Commissioner's automatic consent to 
a change in accounting method (for further guidance, for example, see 
Rev. Proc. 2002-9 (2002-1 CB 327), as modified and clarified by 
Announcement 2002-17 (2002-1 CB 561), modified and amplified by Rev. 
Proc. 2002-19 (2002-1 CB 696), and amplified, clarified, and modified by 
Rev. Proc. 2002-54 (2002-2 CB 432), and Sec. 601.601(d)(2)(ii)(b) of 
this chapter). For purposes of Form 3115, ``Application for Change in 
Accounting Method,'' the designated number for the automatic accounting 
method change authorized by this paragraph (e) is ``95.'' If Form 3115 
is revised or renumbered, any reference in this section to that form is 
treated as a reference to the revised or renumbered form. Alternatively, 
notwithstanding the provisions of any administrative procedures that 
preclude a taxpayer from requesting the advance consent of the 
Commissioner to change a method of accounting that is required to be 
made pursuant to a published automatic change procedure, for its first 
taxable year ending on or after August 2, 2005, a taxpayer may request 
the advance consent of the Commissioner to change its method of 
accounting to comply with paragraph (b)(2)(i)(D) of this section, 
provided the taxpayer follows the administrative procedures, as modified 
by paragraphs (e)(2) through (5) of this section, for obtaining the 
advance consent of the Commissioner (for further guidance, for example, 
see Rev. Proc. 97-27 (1997-1 CB 680), as modified and amplified by Rev. 
Proc. 2002-19 (2002-1 CB 696), as amplified and clarified by Rev. Proc. 
2002-54 (2002-2 CB 432), and Sec. 601.601(d)(2)(ii)(b) of this 
chapter). For the taxpayer's second and subsequent taxable years ending 
on or after August 2, 2005, requests to secure the consent of the 
Commissioner must be made under the administrative procedures, as 
modified by paragraphs (e)(3) and (4) of this section, for obtaining the 
Commissioner's advance consent to a change in accounting method.
    (2) Scope limitations. Any limitations on obtaining the automatic 
consent or advance consent of the Commissioner do not apply to a 
taxpayer seeking to change its method of accounting to comply with 
paragraph (b)(2)(i)(D) of this section for its first taxable year ending 
on or after August 2, 2005.
    (3) Audit protection. A taxpayer that changes its method of 
accounting in accordance with this paragraph (e) to comply with 
paragraph (b)(2)(i)(D) of this section does not receive audit protection 
if its method of accounting for additional section 263A costs is an 
issue under consideration at the time the application is filed with the 
national office.
    (4) Section 481(a) adjustment. A change in method of accounting to 
conform to paragraph (b)(2)(i)(D) of this section requires a section 
481(a) adjustment. The section 481(a) adjustment period is two taxable 
years for a net positive adjustment for an accounting method change

[[Page 663]]

that is made to conform to paragraph (b)(2)(i)(D) of this section.
    (5) Time for requesting change. Notwithstanding the provisions of 
Sec. 1.446-1(e)(3)(i) and any contrary administrative procedure, a 
taxpayer may submit a request for advance consent to change its method 
of accounting to comply with paragraph (b)(2)(i)D) of this section for 
its first taxable year ending on or after August 2, 2005, on or before 
the date that is 30 days after the end of the taxable year for which the 
change is requested.
    (f) Effective date. Paragraphs (b)(2)(i)(D), (e), and (f) of this 
section apply for taxable years ending on or after August 2, 2005.

[T.D. 8482, 58 FR 42219, Aug. 9, 1993, as amended by 59 FR 3318, 3319, 
Jan. 21, 1994; T.D. 8584, 59 FR 67197, Dec. 29, 1994; T.D. 9217, 70 FR 
44469, Aug. 3, 2005; T.D. 9318, 72 FR 14677, Mar. 29, 2007]



Sec. 1.263A-3  Rules relating to property acquired for resale.

    (a) Capitalization rules for property acquired for resale--(1) In 
general. Section 263A applies to real property and personal property 
described in section 1221(1) acquired for resale by a retailer, 
wholesaler, or other taxpayer (reseller). However, section 263A does not 
apply to personal property described in section 1221(1) acquired for 
resale by a reseller whose average annual gross receipts for the three 
previous taxable years do not exceed $10,000,000 (small reseller). For 
this purpose, personal property includes both tangible and intangible 
property. Property acquired for resale includes stock in trade of the 
taxpayer or other property which is includible in the taxpayer's 
inventory if on hand at the close of the taxable year, and property held 
by the taxpayer primarily for sale to customers in the ordinary course 
of the taxpayer's trade or business. See, however, Sec. 1.263A-1(b)(11) 
for an exception for certain de minimis property provided to customers 
incident to the provision of services.
    (2) Resellers with production activities--(i) In general. Generally, 
a taxpayer must capitalize all direct costs and certain indirect costs 
associated with real property and tangible personal property it 
produces. See Sec. 1.263A-2(a). Thus, except as provided in paragraphs 
(a)(2)(ii) and (3) of this section, a reseller, including a small 
reseller, that also produces property must capitalize the additional 
section 263A costs associated with any property it produces.
    (ii) Exception for small resellers. Under this paragraph (a)(2)(ii), 
a small reseller is not required to capitalize additional section 263A 
costs associated with any personal property that is produced incident to 
its resale activities, provided the production activities are de minimis 
(within the meaning of paragraph (a)(2)(iii) of this section).
    (iii) De minimis production activities--(A) In general. (1) In 
determining whether a taxpayer's production activities are de minimis, 
all facts and circumstances must be considered. For example, the 
taxpayer must consider the volume of the production activities in its 
trade or business. Production activities are presumed de minimis if--
    (i) The gross receipts from the sale of the property produced by the 
reseller are less than 10 percent of the total gross receipts of the 
trade or business; and
    (ii) The labor costs allocable to the trade or business' production 
activities are less than 10 percent of the reseller's total labor costs 
allocable to its trade or business.
    (2) For purposes of this de minimis presumption, gross receipts has 
the same definition as provided in paragraph (b) of this section except 
that gross receipts are measured at the trade-or-business level rather 
than at the single-employer level.
    (B) Example. The application of this paragraph (a)(2) may be 
illustrated by the following example:

    Example--Small reseller with de minimis production activities. 
Taxpayer N is a small reseller in the retail grocery business whose 
average annual gross receipts for the three previous taxable years are 
less than $10,000,000. N's grocery stores typically contain bakeries 
where customers may purchase baked goods produced by N. N's gross 
receipts from its bakeries are 5% of the entire grocery business. N's 
labor costs from its bakeries are 3% of its total labor costs allocable 
to the entire grocery business. Because both ratios are less than 10%, 
N's production activities are de minimis. Further, because N's 
production activities are incident to its

[[Page 664]]

resale activities, N is not required to capitalize any additional 
section 263A costs associated with its produced property.

    (3) Resellers with property produced under contract. Generally, 
property produced for a taxpayer under a contract (within the meaning of 
Sec. 1.263A-2(a)(1)(ii)(B)(2)) is treated as property produced by the 
taxpayer. See Sec. 1.263A-2(a)(1)(ii)(B). However, a small reseller is 
not required to capitalize additional section 263A costs to personal 
property produced for it under contract with an unrelated person if the 
contract is entered into incident to the resale activities of the small 
reseller and the property is sold to its customers. For purposes of this 
paragraph, persons are related if they are described in section 267(b) 
or 707(b).
    (4) Use of the simplified resale method--(i) In general. Except as 
provided in paragraphs (a)(4)(ii) and (iii) of this section, a taxpayer 
may elect the simplified production method (as described in Sec. 
1.263A-2(b)) but may not elect the simplified resale method (as 
described in paragraph (d) of this section) if the taxpayer is engaged 
in both production and resale activities with respect to the items of 
eligible property listed in Sec. 1.263A-2(b)(2).
    (ii) Resellers with de minimis production activities. A reseller 
otherwise permitted to use the simplified resale method in paragraph (d) 
of this section may use the simplified resale method if its production 
activities with respect to the items of eligible property listed in 
Sec. 1.263A-2(b)(2) are de minimis (within the meaning of paragraph 
(a)(2)(iii) of this section) and incident to its resale of personal 
property described in section 1221(1).
    (iii) Resellers with property produced under a contract. A reseller 
otherwise permitted to use the simplified resale method in paragraph (d) 
of this section may use the simplified resale method even though it has 
personal property produced for it (e.g., private label goods) under a 
contract with an unrelated person if the contract is entered into 
incident to its resale activities and the property is sold to its 
customers. For purposes of this paragraph (a)(4)(iii), persons are 
related if they are described in section 267(b) or 707(b).
    (iv) Application of simplified resale method. A taxpayer that uses 
the simplified resale method and has de minimis production activities 
incident to its resale activities or property produced under contract 
must capitalize all costs allocable to eligible property produced using 
the simplified resale method.
    (b) Gross receipts exception for small resellers--(1) In general. 
Section 263A does not apply to any personal property acquired for resale 
during any taxable year if the taxpayer's (or its predecessors') average 
annual gross receipts for the three previous taxable years (test period) 
do not exceed $10,000,000. However, taxpayers that acquire real property 
for resale are subject to section 263A with respect to real property 
regardless of their gross receipts. See section 263A(b)(2)(B).
    (i) Test period for new taxpayers. For purposes of applying this 
exception, if a taxpayer has been in existence for less than three 
taxable years, the taxpayer determines its average annual gross receipts 
for the number of taxable years (including short taxable years) that the 
taxpayer (or its predecessor) has been in existence.
    (ii) Treatment of short taxable year. In the case of a short taxable 
year, the taxpayer's gross receipts are annualized by--
    (A) Multiplying the gross receipts of the short taxable year by 12; 
and
    (B) Dividing the product determined in paragraph (b)(1)(ii)(A) of 
this section by the number of months in the short taxable year.
    (2) Definition of gross receipts--(i) In general. Gross receipts are 
the total amount, as determined under the taxpayer's method of 
accounting, derived from all of the taxpayer's trades or businesses 
(e.g., revenues derived from the sale of inventory before reduction for 
cost of goods sold).
    (ii) Amounts excluded. For purposes of this paragraph (b), gross 
receipts do not include amounts representing--
    (A) Returns or allowances;
    (B) Interest, dividends, rents, royalties, or annuities, not derived 
in the ordinary course of a trade or business;
    (C) Receipts from the sale or exchange of capital assets, as defined 
in section 1221;

[[Page 665]]

    (D) Repayments of loans or similar instruments (e.g., a repayment of 
the principal amount of a loan held by a commercial lender);
    (E) Receipts from a sale or exchange not in the ordinary course of 
business, such as the sale of an entire trade or business or the sale of 
property used in a trade or business as defined under section 1221(2); 
and
    (F) Receipts from any activity other than a trade or business or an 
activity engaged in for profit.
    (3) Aggregation of gross receipts--(i) In general. In determining 
gross receipts, all persons treated as a single employer under section 
52(a) or (b), section 414(m), or any regulation prescribed under section 
414 (or persons that would be treated as a single employer under any of 
these provisions if they had employees) shall be treated as one 
taxpayer. The gross receipts of a single employer (or the group) are 
determined by aggregating the gross receipts of all persons (or the 
members) of the group, excluding any gross receipts attributable to 
transactions occurring between group members.
    (ii) Single employer defined. A controlled group, which is treated 
as a single employer under section 52(a), includes members of a 
controlled group within the meaning of section 1563(a), regardless of 
whether such members would be treated as component members of such group 
under section 1563(b). (See Sec. 1.52-1(c).) Thus, for example, the 
gross receipts of a franchised corporation that is treated as an 
excluded member for purposes of section 1563(b) are included in the 
single employer's gross receipts under this aggregation rule, if such 
corporation and the taxpayer were members of the same controlled group 
under section 1563(a).
    (iii) Gross receipts of a single employer. The gross receipts of a 
single employer for the test period include the gross receipts of all 
group members (or their predecessors) that are members of the group as 
of the first day of the taxable year in issue, regardless of whether 
such persons were members of the group for any of the three preceding 
taxable years. The gross receipts of the single employer for the test 
period do not, however, include the gross receipts of any member that 
was a group member (including any predecessor) for any or all of the 
three preceding taxable years, and is no longer a group member as of the 
first day of the taxable year in issue. Any group member that has a 
taxable year of less than 12 months must annualize its gross receipts in 
accordance with paragraph (b)(1)(ii) of this section.
    (iv) Examples. The provisions of this paragraph (b)(3) are 
illustrated by the following examples:

    Example 1. Subsidiary acquired during the taxable year. A parent 
corporation, (P), has owned 100% of the stock of another corporation, 
(S1), continually since 1989. P and S1 are calendar year taxpayers. S1 
acquires property for resale. On January 1, 1994, P acquires 100% of the 
stock of another calendar year corporation (S2). In determining whether 
S1's resale activities are subject to the provisions of section 263A for 
1994, the gross receipts of P, S1, and S2 for 1991, 1992, and 1993 are 
aggregated, excluding the gross receipts, if any, attributable to 
transactions occurring between the three corporations.
    Example 2. Subsidiary sold during the taxable year. Since 1989, a 
parent corporation, (P), has continually owned 100% of the stock of two 
other corporations, (S1) and (S2). The three corporations are calendar 
year taxpayers. S1 acquires property for resale. On December 31, 1993, P 
sells all of its stock in S2. In determining whether S1's resale 
activities are subject to the provisions of section 263A for 1994, only 
the gross receipts of P and S1 for 1991, 1992, and 1993 must be 
aggregated, excluding the gross receipts, if any, attributable to 
transactions occurring between the two corporations.

    (c) Purchasing, handling, and storage costs--(1) In general. 
Generally, Sec. 1.263A-1(e) describes the types of costs that must be 
capitalized by taxpayers. Resellers must capitalize the acquisition cost 
of property acquired for resale, as well as indirect costs described in 
Sec. 1.263A-1(e)(3), which are properly allocable to property acquired 
for resale. The indirect costs most often incurred by resellers are 
purchasing, handling, and storage costs. This paragraph (c) provides 
additional guidance regarding each of these categories of costs. As 
provided in Sec. 1.263A-1(e), this paragraph (c) also applies to 
producers incurring purchasing, handling, and storage costs.

[[Page 666]]

    (2) Costs attributable to purchasing, handling, and storage. The 
costs attributable to purchasing, handling, and storage activities 
generally consist of direct and indirect labor costs (including the 
costs of pension plans and other fringe benefits); occupancy expenses 
including rent, depreciation, insurance, security, taxes, utilities and 
maintenance; materials and supplies; rent, maintenance, depreciation, 
and insurance of vehicles and equipment; tools; telephone; travel; and 
the general and administrative costs that directly benefit or are 
incurred by reason of the taxpayer's activities.
    (3) Purchasing costs--(i) In general. Purchasing costs are costs 
associated with operating a purchasing department or office within a 
trade or business, including personnel costs (e.g., of buyers, assistant 
buyers, and clerical workers), relating to--
    (A) The selection of merchandise;
    (B) The maintenance of stock assortment and volume;
    (C) The placement of purchase orders;
    (D) The establishment and maintenance of vendor contacts; and
    (E) The comparison and testing of merchandise.
    (ii) Determination of whether personnel are engaged in purchasing 
activities. The determination of whether a person is engaged in 
purchasing activities is based upon the activities performed by that 
person and not upon the person's title or job classification. Thus, for 
example, although an employee's job function may be described in such a 
way as to indicate activities outside the area of purchasing (e.g., a 
marketing representative), such activities must be analyzed on the basis 
of the activities performed by that employee. If a person performs both 
purchasing and non-purchasing activities, the taxpayer must reasonably 
allocate the person's labor costs between these activities. For example, 
a reasonable allocation is one based on the amount of time the person 
spends on each activity.
    (A) \1/3\-\2/3\ rule for allocating labor costs. A taxpayer may 
elect the \1/3\-\2/3\ rule for allocating labor costs of persons 
performing both purchasing and non-purchasing activities. If elected, 
the taxpayer must allocate the labor costs of all such persons using the 
\1/3\-\2/3\ rule. Under this rule--
    (1) If less than one-third of a person's activities are related to 
purchasing, none of that person's labor costs are allocated to 
purchasing;
    (2) If more than two-thirds of a person's activities are related to 
purchasing, all of that person's labor costs are allocated to 
purchasing; and
    (3) In all other cases, the taxpayer must reasonably allocate labor 
costs between purchasing and non-purchasing activities.
    (B) Example. The application of paragraph (c)(3)(ii)(A) of this 
section may be illustrated by the following example:

    Example. Taxpayer O is a reseller that employs three persons, A, B, 
and C, who perform both purchasing and non- purchasing activities. These 
persons spend the following time performing purchasing activities: A-25 
%; B-70 %; and C-50 %. Under the \1/3\-\2/3\ rule, Taxpayer O treats 
none of A's labor costs as purchasing costs, all of B's labor costs as 
purchasing costs, and Taxpayer O allocates 50 % of C's labor costs as 
purchasing costs.

    (4) Handling costs--(i) In general. Handling costs include costs 
attributable to processing, assembling, repackaging, transporting, and 
other similar activities with respect to property acquired for resale, 
provided the activities do not come within the meaning of the term 
produce as defined in Sec. 1.263A-2(a)(1). Handling costs are generally 
required to be capitalized under section 263A. Under this paragraph 
(c)(4)(i), however, handling costs incurred at a retail sales facility 
(as defined in paragraph (c)(5)(ii)(B) of this section) with respect to 
property sold to retail customers at the facility are not required to be 
capitalized. Thus, for example, handling costs incurred at a retail 
sales facility to unload, unpack, mark, and tag goods sold to retail 
customers at the facility are not required to be capitalized. In 
addition, handling costs incurred at a dual-function storage facility 
(as defined in paragraph (c)(5)(ii)(G) of this section) with respect to 
property sold to customers from the facility are not required to be 
capitalized to the extent that the costs are incurred with respect to 
property sold in on-site sales. Handling costs attributable to property 
sold to customers

[[Page 667]]

from a dual-function storage facility in on-site sales are determined by 
applying the ratio in paragraph (c)(5)(iii)(B) of this section.
    (ii) Processing costs. Processing costs are the costs a reseller 
incurs in making minor changes or alterations to the nature or form of a 
product acquired for resale. Minor changes to a product include, for 
example, monogramming a sweater, altering a pair of pants, and other 
similar activities.
    (iii) Assembling costs. Generally, assembling costs are costs 
associated with incidental activities that are necessary in readying 
property for resale (e.g., attaching wheels and handlebars to a bicycle 
acquired for resale).
    (iv) Repackaging costs. Repackaging costs are the costs a taxpayer 
incurs to package property for sale to its customers.
    (v) Transportation costs. Generally, transportation costs are the 
costs a taxpayer incurs moving or shipping property acquired for resale. 
These costs include the cost of dispatching trucks; loading and 
unloading shipments; and sorting, tagging, and marking property. 
Transportation costs may consist of depreciation on trucks and equipment 
and the costs of fuel, insurance, labor, and similar costs. Generally, 
transportation costs required to be capitalized include costs incurred 
in transporting property--
    (A) From the vendor to the taxpayer;
    (B) From one of the taxpayer's storage facilities to another of its 
storage facilities;
    (C) From the taxpayer's storage facility to its retail sales 
facility;
    (D) From the taxpayer's retail sales facility to its storage 
facility; and
    (E) From one of the taxpayer's retail sales facilities to another of 
its retail sales facilities.
    (vi) Costs not required to be capitalized as handling costs--(A) 
Distribution costs--(1) In general. Distribution costs are not required 
to be capitalized. Distribution costs are any transportation costs 
incurred outside a storage facility in delivering goods to a customer. 
For this purpose, any costs incurred on a loading dock are treated as 
incurred outside a storage facility.
    (2) Costs incurred in transporting goods to a related person. 
Distribution costs do not include costs incurred by a taxpayer in 
delivering goods to a related person. Thus, for example, when a taxpayer 
sells goods to a related person, the costs of transporting the goods are 
included in determining the basis of the goods that are sold, and hence 
in determining the resulting gain or loss from the sale, for all 
purposes of the Internal Revenue Code and the regulations thereunder. 
See, e.g., sections 267, 707, and 1502. For purposes of this provision, 
persons are related if they are described in section 267(b) or section 
707(b).
    (B) Delivery of custom-ordered items. Generally, costs incurred in 
transporting goods from a taxpayer's storage facility to its retail 
sales facility must be capitalized. However, costs incurred outside a 
storage facility in delivering custom-ordered items to a retail sales 
facility are not required to be capitalized. For this purpose, any costs 
incurred on a loading dock are treated as incurred outside a storage 
facility. Delivery of custom-ordered items occurs when a taxpayer can 
demonstrate that a delivery to the taxpayer's retail sales facility is 
made to fill an identifiable order of a particular customer (placed by 
the customer before the delivery of the goods occurs) for the particular 
goods in question. Factors that may demonstrate the existence of a 
specific, identifiable delivery include the following--
    (1) The customer has paid for the item in advance of the delivery;
    (2) The customer has submitted a written order for the item;
    (3) The item is not normally available at the retail sales facility 
for on-site customer purchases; and
    (4) The item will be returned to the storage facility (and not held 
for sale at the retail sales facility) if the customer cancels an order.
    (C) Pick and pack costs--(1) In general. Generally, handling costs 
incurred inside a storage or warehousing facility must be capitalized. 
However, costs attributable to pick and pack activities inside a storage 
or warehousing facility are not required to be capitalized. Pick and 
pack activities are activities undertaken in preparation for imminent 
shipment to a particular customer

[[Page 668]]

after the customer has ordered the specific goods in question. Examples 
of pick and pack activities include:
    (i) Moving specific goods from a storage location in preparation for 
shipment to the customer;
    (ii) Packing or repacking those goods for shipment to the customer; 
and
    (iii) Staging those goods for shipment to the customer.
    (2) Activities that are not pick and pack activities. Pick and pack 
activities do not include:
    (i) Unloading goods that are received for storage;
    (ii) Checking the quantity and quality of goods received;
    (iii) Comparing the quantity of goods received to the amounts 
ordered and preparing the receiving documents;
    (iv) Moving the goods to their storage location, e.g., bins, racks, 
containers, etc.; and
    (v) Storing the goods.
    (3) Costs not attributable to pick and pack activities. Occupancy 
costs, such as rent, depreciation, insurance, security, taxes, 
utilities, and maintenance costs properly allocable to the storage or 
warehousing facility, are not costs attributable to pick and pack 
activities.
    (5) Storage costs--(i) In general. Generally, storage costs are 
capitalized under section 263A to the extent they are attributable to 
the operation of an off-site storage or warehousing facility (an off-
site storage facility). However, storage costs attributable to the 
operation of an on-site storage facility (as defined in paragraph 
(c)(5)(ii)(A) of this section) are not required to be capitalized under 
section 263A. Storage costs attributable to a dual-function storage 
facility (as defined in paragraph (c)(5)(ii)(G) of this section) must be 
capitalized to the extent that the facility's costs are allocable to 
off-site storage.
    (ii) Definitions--(A) On-site storage facility. An on-site storage 
facility is defined as a storage or warehousing facility that is 
physically attached to, and an integral part of, a retail sales 
facility.
    (B) Retail sales facility. (1) A retail sales facility is defined as 
a facility where a taxpayer sells merchandise exclusively to retail 
customers in on-site sales. For this purpose, a retail sales facility 
includes those portions of any specific retail site--
    (i) Which are customarily associated with and are an integral part 
of the operations of that retail site;
    (ii) Which are generally open each business day exclusively to 
retail customers;
    (iii) On or in which retail customers normally and routinely shop to 
select specific items of merchandise; and
    (iv) Which are adjacent to or in immediate proximity to other 
portions of the specific retail site.
    (2) Thus, for example, two lots of an automobile dealership 
physically separated by an alley or an access road would generally be 
considered one retail sales facility, provided customers routinely shop 
on both of the lots to select the specific automobiles that they wish to 
acquire.
    (C) An integral part of a retail sales facility. A storage facility 
is considered an integral part of a retail sales facility when the 
storage facility is an essential and indispensable part of the retail 
sales facility. For example, if the storage facility is used exclusively 
for filling orders or completing sales at the retail sales facility, the 
storage facility is an integral part of the retail sales facility.
    (D) On-site sales. On-site sales are defined as sales made to retail 
customers physically present at a facility. For example, mail order and 
catalog sales are made to customers not physically present at the 
facility, and thus, are not on-site sales.
    (E) Retail customer--(1) In general. A retail customer is defined as 
the final purchaser of the merchandise. A retail customer does not 
include a person who resells the merchandise to others, such as a 
contractor or manufacturer that incorporates the merchandise into 
another product for sale to customers.
    (2) Certain non-retail customers treated as retail customers. For 
purposes of this section, a non-retail customer is treated as a retail 
customer with respect to a particular facility if the following 
requirements are satisfied--
    (i) The non-retail customer purchases goods under the same terms and 
conditions as are available to retail customers (e.g., no special 
discounts);

[[Page 669]]

    (ii) The non-retail customer purchases goods in the same manner as a 
retail customer (e.g., the non-retail customer may not place orders in 
advance and must come to the facility to examine and select goods);
    (iii) Retail customers shop at the facility on a routine basis 
(i.e., on most business days), and no special days or hours are reserved 
for non-retail customers; and
    (iv) More than 50 percent of the gross sales of the facility are 
made to retail customers.
    (F) Off-site storage facility. An off-site storage facility is 
defined as a storage facility that is not an on-site storage facility.
    (G) Dual-function storage facility. A dual-function storage facility 
is defined as a storage facility that serves as both an off-site storage 
facility and an on-site storage facility. For example, a dual-function 
storage facility would include a regional warehouse that serves the 
taxpayer's separate retail sales outlets and also contains a sales 
outlet therein. A dual-function storage facility also includes any 
facility where sales are made to retail customers in on-site sales and 
to--
    (1) Retail customers in sales that are not on-site sales; or
    (2) Other customers.
    (iii) Treatment of storage costs incurred at a dual-function storage 
facility--(A) In general. Storage costs associated with a dual-function 
storage facility must be allocated between the off-site storage function 
and the on-site storage function. To the extent that the dual-function 
storage facility's storage costs are allocable to the off-site storage 
function, they must be capitalized. To the extent that the dual-function 
storage facility's storage costs are allocable to the on-site storage 
function, they are not required to be capitalized.
    (B) Dual-function storage facility allocation ratio--(1) In general. 
Storage costs associated with a dual-function storage facility must be 
allocated between the off-site storage function and the on-site storage 
function using the ratio of--
    (i) Gross on-site sales of the facility (i.e., gross sales of the 
facility made to retail customers visiting the premises in person and 
purchasing merchandise stored therein); to
    (ii) Total gross sales of the facility. For this purpose, the total 
gross sales of the facility include the value of items shipped to other 
facilities of the taxpayer.
    (2) Illustration of ratio allocation. For example, if a dual-
function storage facility's on-site sales are 40 percent of the total 
gross sales of the facility, then 40 percent of the facility's storage 
costs are allocable to the on-site storage function and are not required 
to be capitalized under section 263A.
    (3) Appropriate adjustments for other uses of a dual-function 
storage facility. Prior to computing the allocation ratio in paragraph 
(c)(5)(iii)(B) of this section, a taxpayer must apply the principles of 
paragraph (c)(5)(iv) of this section in determining the portion of the 
facility that is a dual-function storage facility (and the costs 
attributable to such portion).
    (C) De minimis 90-10 rule for dual-function storage facilities. If 
90 percent or more of the costs of a facility are attributable to the 
on-site storage function, the entire storage facility is deemed to be an 
on-site storage facility. In contrast, if 10 percent or less of the 
costs of a storage facility are attributable to the on-site storage 
function, the entire storage facility is deemed to be an off-site 
storage facility.
    (iv) Costs not attributable to an off-site storage facility. To the 
extent that costs incurred at an off-site storage facility are not 
properly allocable to the taxpayer's storage function, the costs are not 
accounted for as off-site storage costs. For example, if a taxpayer has 
an office attached to its off-site storage facility where work unrelated 
to the storage function is performed, such as a sales office, costs 
associated with this office are not off-site storage costs. However, if 
a taxpayer uses a portion of an off-site storage facility in a manner 
related to the storage function, for example, to store equipment or 
supplies that are not offered for sale to customers, costs associated 
with this portion of the facility are off-site storage costs.

[[Page 670]]

    (v) Examples. The provisions of this paragraph (c)(5) are 
illustrated by the following examples:

    Example 1. Catalog or mail order center. Taxpayer P operates a mail 
order catalog business. As part of its business, P stores merchandise 
for shipment to customers who purchase the merchandise through orders 
placed by telephone or mail. P's storage facility is not an on-site 
storage facility because no on-site sales are made at the facility.
    Example 2. Pooled-stock facility. Taxpayer Q maintains a pooled-
stock facility, which functions as a back-up regional storage facility 
for Q's retail sales outlets in the nearby area. Q's pooled stock 
facility is an off-site storage facility because it is neither 
physically attached to nor an integral part of a retail sales facility.
    Example 3. Wholesale warehouse. Taxpayer R operates a wholesale 
warehouse where wholesale sales are made to customers physically present 
at the facility. R's customers resell the goods they purchase from R to 
final retail customers. Because no retail sales are conducted at the 
facility, all storage costs attributable to R's wholesale warehouse must 
be capitalized.

    (d) Simplified resale method--(1) Introduction. This paragraph (d) 
provides a simplified method for determining the additional section 263A 
costs properly allocable to property acquired for resale and other 
eligible property on hand at the end of the taxable year.
    (2) Eligible property. Generally, the simplified resale method is 
only available to a trade or business exclusively engaged in resale 
activities. However, certain resellers with property produced as a 
result of de minimis production activities or property produced under 
contract may elect the simplified resale method, as described in 
paragraph (a)(4) of this section. Eligible property for purposes of the 
simplified resale method, therefore, includes any real or personal 
property described in section 1221(1) that is acquired for resale and 
any eligible property (within the meaning of Sec. 1.263A-2(b)(2)) that 
is described in paragraph (a)(4) of this section.
    (3) Simplified resale method without historic absorption ratio 
election--(i) General allocation formula--(A) In general. Under the 
simplified resale method, the additional section 263A costs allocable to 
eligible property remaining on hand at the close of the taxable year are 
computed as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.013

    (B) Effect of allocation. The resulting product under the general 
allocation formula is the additional section 263A costs that are added 
to the taxpayer's ending section 471 costs to determine the section 263A 
costs that are capitalized.
    (C) Definitions--(1) Combined absorption ratio. The combined 
absorption ratio is defined as the sum of the storage and handling costs 
absorption ratio as defined in paragraph (d)(3)(i)(D) of this section 
and the purchasing costs absorption ratio as defined in paragraph 
(d)(3)(i)(E) of this section.
    (2) Section 471 costs remaining on hand at year end. Section 471 
costs remaining on hand at year end mean the section 471 costs, as 
defined in Sec. 1.263A-1(d)(2), that the taxpayer incurs during its 
current taxable year, which remain in its ending inventory or are 
otherwise on hand at year end. For LIFO inventories of a taxpayer, the 
section 471 costs remaining on hand at year end means the increment, if 
any, for the current year stated in terms of section 471 costs. See 
paragraph (d)(3)(ii) of this section for special rules applicable to 
LIFO taxpayers. Except as otherwise provided in this section or in Sec. 
1.263A-1 or 1.263A-2, additional section 263A costs that are allocated 
to inventories on hand at the close of the taxable year under the 
simplified resale method of this paragraph (d) are treated as inventory 
costs for all purposes of the Internal Revenue Code.
    (D) Storage and handling costs absorption ratio. (1) Under the 
simplified resale method, the storage and handling costs absorption 
ratio is determined as follows:

[[Page 671]]

[GRAPHIC] [TIFF OMITTED] TC10OC91.014

    (2) Current year's storage and handling costs are defined as the 
total storage costs plus the total handling costs incurred during the 
taxable year that relate to the taxpayer's property acquired for resale 
and other eligible property. See paragraph (c) of this section, which 
discusses storage and handling costs. Storage and handling costs must 
include the amount of allocable mixed service costs as described in 
paragraph (d)(3)(i)(F) of this section. Beginning inventory in the 
denominator of the storage and handling costs absorption ratio refers to 
the section 471 costs of any property acquired for resale or other 
eligible property held by the taxpayer as of the beginning of the 
taxable year. Current year's purchases generally mean the taxpayer's 
section 471 costs incurred with respect to purchases of property 
acquired for resale during the current taxable year. In computing the 
denominator of the storage and handling costs absorption ratio, a 
taxpayer using a dollar-value LIFO method of accounting, must state 
beginning inventory amounts using the LIFO carrying value of the 
inventory and not current-year dollars.
    (E) Purchasing costs absorption ratio. (1) Under the simplified 
resale method, the purchasing costs absorption ratio is determined as 
follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.015

    (2) Current year's purchasing costs are defined as the total 
purchasing costs incurred during the taxable year that relate to the 
taxpayer's property acquired for resale and eligible property. See 
paragraph (c)(3) of this section, which discusses purchasing costs. 
Purchasing costs must include the amount of allocable mixed service 
costs determined in paragraph (d)(3)(i)(F) of this section. Current 
year's purchases generally mean the taxpayer's section 471 costs 
incurred with respect to purchases of property acquired for resale 
during the current taxable year.
    (F) Allocable mixed service costs. (1) If a taxpayer allocates its 
mixed service costs to purchasing costs, storage costs, and handling 
costs using a method described in Sec. 1.263A-1(g)(4), the taxpayer is 
not required to determine its allocable mixed service costs under this 
paragraph (d)(3)(i)(F). However, if the taxpayer uses the simplified 
service cost method, the amount of mixed service costs allocated to and 
included in purchasing costs, storage costs, and handling costs in the 
absorption ratios in paragraphs (d)(3)(i) (D) and (E) of this section is 
determined as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.016

    (2) Labor costs allocable to activity are defined as the total labor 
costs allocable to each particular activity (i.e., purchasing, handling, 
and storage), excluding labor costs included in mixed service costs. 
Total labor costs are defined as the total labor costs (excluding labor 
costs included in mixed service costs) that are incurred in the 
taxpayer's trade or business during the

[[Page 672]]

taxable year. See Sec. 1.263A-1(h)(6) for the definition of total mixed 
service costs.
    (ii) LIFO taxpayers electing simplified resale method--(A) In 
general. Under the simplified resale method, a taxpayer using a LIFO 
method must calculate a particular year's index (e.g., under Sec. 
1.472-8(e)) without regard its additional section 263A costs. Similarly, 
a taxpayer that adjusts current-year costs by applicable indexes to 
determine whether there has been an inventory increment or decrement in 
the current year for a particular LIFO pool must disregard the 
additional section 263A costs in making that determination.
    (B) LIFO increment. If the taxpayer determines there has been an 
inventory increment, the taxpayer must state the amount of the increment 
in current-year dollars (stated in terms of section 471 costs). The 
taxpayer then multiplies this amount by the combined absorption ratio. 
The resulting product is the additional section 263A costs that must be 
added to the taxpayer's increment for the year stated in terms of 
section 471 costs.
    (C) LIFO decrement. If the taxpayer determines there has been an 
inventory decrement, the taxpayer must state the amount of the decrement 
in dollars applicable to the particular year for which the LIFO layer 
has been invaded. The additional section 263A costs incurred in prior 
years that are applicable to the decrement are charged to cost of goods 
sold. The additional section 263A costs that are applicable to the 
decrement are determined by multiplying the additional section 263A 
costs allocated to the layer of the pool in which the decrement occurred 
by the ratio of the decrement (excluding additional section 263A costs) 
to the section 471 costs in the layer of that pool.
    (iii) Permissible variations of the simplified resale method. The 
following variations of the simplified resale method are permitted:
    (A) The exclusion of beginning inventories from the denominator in 
the storage and handling costs absorption ratio formula in paragraph 
(d)(3)(i)(D) of this section; or
    (B) Multiplication of the storage and handling costs absorption 
ratio in paragraph (d)(3)(i)(D) of this section by the total of section 
471 costs included in a LIFO taxpayer's ending inventory (rather than 
just the increment, if any, experienced by the LIFO taxpayer during the 
taxable year) for purposes of determining capitalizable storage and 
handling costs.
    (iv) Examples. The provisions of this paragraph (d)(3) are 
illustrated by the following examples:

    Example 1. FIFO inventory method. (i) Taxpayer S uses the FIFO 
method of accounting for inventories. S's beginning inventory for 1994 
(all of which was sold during 1994) was $2,100,000 (consisting of 
$2,000,000 of section 471 costs and $100,000 of additional section 263A 
costs). During 1994, S makes purchases of $10,000,000. In addition, S 
incurs purchasing costs of $460,000, storage costs of $110,000, and 
handling costs of $90,000. S's purchases (section 471 costs) remaining 
in ending inventory at the end of 1994 are $3,000,000.
    (ii) In 1994, S incurs $400,000 of total mixed service costs and 
$1,000,000 of total labor costs (excluding labor costs included in mixed 
service costs). In addition, S incurs the following labor costs 
(excluding labor costs included in mixed service costs): purchasing--
$100,000, storage--$200,000, and handling--$200,000. Accordingly, the 
following mixed service costs must be included in purchasing costs, 
storage costs, and handling costs as capitalizable mixed service costs: 
purchasing--$40,000 ([$100,000 divided by $1,000,000] multiplied by 
$400,000); storage--$80,000 ([$200,000 divided by $1,000,000] multiplied 
by $400,000); and handling--$80,000 ([$200,000 divided by $1,000,000] 
multiplied by $400,000).
    (iii) S computes its purchasing costs absorption ratio for 1994 as 
follows:

[[Page 673]]

[GRAPHIC] [TIFF OMITTED] TC10OC91.017

    (iv) S computes its storage and handling costs absorption ratio for 
1994 as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.018

    (v) S's combined absorption ratio is 8.0 %, or the sum of the 
purchasing costs absorption ratio (5.0 %) and the storage and handling 
costs absorption ratio (3.0 %). Under the simplified resale method, S 
determines the additional section 263A costs allocable to its ending 
inventory by multiplying the combined absorption ratio by its section 
471 costs with respect to current year's purchases remaining in ending 
inventory:
[GRAPHIC] [TIFF OMITTED] TC10OC91.019

    (vi) S adds this $240,000 to the $3,000,000 of purchases remaining 
in its ending inventory to determine its total ending FIFO inventory of 
$3,240,000.
    Example 2. LIFO inventory method. (i) Taxpayer T uses a dollar-value 
LIFO inventory method. T's beginning inventory for 1994 is $2,100,000 
(consisting of $2,000,000 of section 471 costs and $100,000 of 
additional section 263A costs). During 1994, T makes purchases of 
$10,000,000. In addition, T incurs purchasing costs of $460,000, storage 
costs of $110,000, and handling costs of $90,000. T's 1994 LIFO 
increment is $1,000,000 ($3,000,000 of section 471 costs in ending 
inventory less $2,000,000 of section 471 costs in beginning inventory).
    (ii) In 1994, T incurs $400,000 of total mixed service costs and 
$1,000,000 of total labor costs (excluding labor costs included in mixed 
service costs). In addition, T incurs the following labor costs 
(excluding labor costs included in mixed service costs): purchasing--
$100,000, storage--$200,000, and handling--$200,000. Accordingly, the 
following mixed service costs must be included in purchasing costs, 
storage costs, and handling costs as capitalizable mixed service costs: 
purchasing--$40,000 ([$100,000 divided by $1,000,000] multiplied by 
$400,000); storage--$80,000 ([ $200,000 divided by $1,000,000] 
multiplied by $400,000); and handling--$80,000 ([ $200,000 divided by 
$1,000,000] multiplied by $400,000).
    (iii) Based on these facts, T determines that it has a combined 
absorption ratio of 8.0 %. To determine the additional section 263A 
costs allocable to its ending inventory, T

[[Page 674]]

multiplies its combined absorption ratio (8.0 %) by the $1,000,000 LIFO 
increment. Thus, T's additional section 263A costs allocable to its 
ending inventory are $80,000 ($1,000,000 multiplied by 8.0 %). This 
$80,000 is added to the $1,000,000 to determine a total 1994 LIFO 
increment of $1,080,000. T's ending inventory is $3,180,000 (its 
beginning inventory of $2,100,000 plus the $1,080,000 increment).
    (iv) In 1995, T sells one-half of the inventory in its 1994 LIFO 
increment. T must include in its cost of goods sold for 1995 the amount 
of additional section 263A costs relating to this inventory, i.e., one-
half of the $80,000 additional section 263A costs capitalized in 1994 
ending inventory, or $40,000.
    Example 3. LIFO Pools. (i) Taxpayer U begins its business in 1994, 
and adopts the LIFO inventory method. During 1994, U makes purchases of 
$10,000, and incurs $400 of purchasing costs, $350 of storage costs and 
$250 of handling costs. U's purchasing costs, storage costs, and 
handling costs include their proper allocable share of mixed service 
costs.
    (ii) U computes its purchasing costs absorption ratio for 1994, as 
follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.020

    (iii) U computes its storage and handling costs absorption ratio for 
1994, as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.021

    (iv) U's combined absorption ratio is 10%, or the sum of the 
purchasing costs absorption ratio (4.0%) and the storage and handling 
costs absorption ratio (6.0%). At the end of 1994, U's ending inventory 
included $3,000 of current year purchases, contained in three LIFO pools 
(X, Y, and Z) as shown below. Under the simplified resale method, U 
computes its ending inventory for 1994 as follows:

----------------------------------------------------------------------------------------------------------------
                            1994                                 Total          X            Y            Z
----------------------------------------------------------------------------------------------------------------
Ending section 471 costs....................................       $3,000       $1,600         $600         $800
Additional section 263A costs (10%).........................          300          160           60           80
                                                             ---------------------------------------------------
1994 ending inventory.......................................        3,300        1,760          660          880
----------------------------------------------------------------------------------------------------------------

    (v) During 1995, U makes purchases of $2,000 as shown below, and 
incurs $200 of purchasing costs, $325 of storage costs and $175 of 
handling costs. U's purchasing costs, storage costs, and handling costs 
include their proper share of mixed service costs. Moreover, U sold 
goods from pools X, Y, and Z having a total cost of $1,000. U computes 
its ending inventory for 1995 as follows.
    (vi) U computes its purchasing costs absorption ratio for 1995:
    [GRAPHIC] [TIFF OMITTED] TC10OC91.022
    
    (vii) U computes its storage and handling costs absorption ratio for 
1995:

[[Page 675]]

[GRAPHIC] [TIFF OMITTED] TC10OC91.023

    (viii) U's combined absorption ratio is 20.0%, or the sum of the 
purchasing costs absorption ratio (10.0%) and the storage and handling 
costs absorption ratio (10.0%).

----------------------------------------------------------------------------------------------------------------
                            1995                                 Total          X            Y            Z
----------------------------------------------------------------------------------------------------------------
Beginning section 471 costs.................................       $3,000       $1,600         $600         $800
1995 section 471 costs......................................        2,000        1,500          300          200
Section 471 cost of goods sold..............................      (1,000)        (300)        (300)        (400)
                                                             ---------------------------------------------------
1995 ending section 471 costs...............................        4,000        2,800          600          600
Consisting of:
    1994 layer..............................................        2,800        1,600          600          600
    1995 layer..............................................        1,200        1,200  ...........  ...........
                                                             ---------------------------------------------------
                                                                    4,000        2,800          600          600
Additional section 263A costs:
    1994 (10%)..............................................          280          160           60           60
    1995 (20%)..............................................          240          240  ...........  ...........
                                                             ---------------------------------------------------
                                                                      520          400           60           60
    1995 ending inventory...................................        4,520        3,200          660          660
----------------------------------------------------------------------------------------------------------------

    (ix) In 1995, U experiences a $200 decrement in Pool Z. Thus, U must 
charge the additional section 263A costs incurred in prior years 
applicable to the decrement to 1995's cost of goods sold. To do so, U 
determines a ratio by dividing the decrement by the section 471 costs in 
the 1994 layer ($200 divided by $800, or 25%). U then multiplies this 
ratio (25%) by the additional section 263A costs in the 1994 layer ($80) 
to determine the additional section 263A costs applicable to the 
decrement ($20). Therefore, $20 is taken into account by U in 1995 as 
part of its cost of goods sold ($80 multiplied by 25%).

    (4) Simplified resale method with historic absorption ratio 
election--(i) In general. This paragraph (d)(4) permits resellers using 
the simplified resale method to elect a historic absorption ratio in 
determining additional section 263A costs allocable to eligible property 
remaining on hand at the close of their taxable years. Except as 
provided in paragraph (d)(4)(v) of this section, a taxpayer may only 
make a historic absorption ratio election if it has used the simplified 
resale method for three or more consecutive taxable years immediately 
prior to the year of election. The historic absorption ratio is used in 
lieu of an actual combined absorption ratio computed under paragraph 
(d)(3)(i)(C)(1) of this section and is based on costs capitalized by a 
taxpayer during its test period. If elected, the historic absorption 
ratio must be used for the qualifying period described in paragraph 
(d)(4)(ii)(C) of this section.
    (ii) Operating rules and definitions--(A) Historic absorption ratio. 
(1) The historic absorption ratio is equal to the following ratio:
[GRAPHIC] [TIFF OMITTED] TC10OC91.024


[[Page 676]]


    (2) Additional section 263A costs incurred during the test period 
are defined as the sum of the products of the combined absorption ratios 
(defined in paragraph (d)(3)(i)(C)(1) of this section) multiplied by a 
taxpayer's section 471 costs incurred with respect to purchases, for 
each taxable year of the test period.
    (3) Section 471 costs incurred during the test period mean the 
section 471 costs described in Sec. 1.263A-1(d)(2) that a taxpayer 
incurs generally with respect to its purchases during the test period 
described in paragraph (d)(4)(ii)(B) of this section.
    (B) Test period--(1) In general. The test period is generally the 
three taxable-year period immediately prior to the taxable year that the 
historic absorption ratio is elected.
    (2) Updated test period. The test period begins again with the 
beginning of the first taxable year after the close of a qualifying 
period (as defined in paragraph (d)(4)(ii)(C) of this section). This new 
test period, the updated test period, is the three taxable-year period 
beginning with the first taxable year after the close of the qualifying 
period.
    (C) Qualifying period--(1) In general. A qualifying period includes 
each of the first five taxable years beginning with the first taxable 
year after a test period (or updated test period).
    (2) Extension of qualifying period. In the first taxable year 
following the close of each qualifying period (e.g., the sixth taxable 
year following the test period), the taxpayer must compute the actual 
combined absorption ratio under the simplified resale method. If the 
actual combined absorption ratio computed for this taxable year (the 
recomputation year) is within one-half of one percentage point (plus or 
minus) of the historic absorption ratio used in determining 
capitalizable costs for the qualifying period (i.e., the previous five 
taxable years), the qualifying period must be extended to include the 
recomputation year and the following five taxable years, and the 
taxpayer must continue to use the historic absorption ratio throughout 
the extended qualifying period. If, however, the actual combined 
absorption ratio computed for the recomputation year is not within one-
half of one percentage point (plus or minus) of the historic absorption 
ratio, the taxpayer must use actual combined absorption ratios beginning 
with the recomputation year under the simplified resale method and 
throughout the updated test period. The taxpayer must resume using the 
historic absorption ratio (determined with reference to the updated test 
period) in the third taxable year following the recomputation year.
    (iii) Method of accounting--(A) Adoption and use. The election to 
use the historic absorption ratio is a method of accounting. A taxpayer 
using the simplified resale method may elect the historic absorption 
ratio in any taxable year if permitted under this paragraph (d)(4), 
provided the taxpayer has not obtained the Commissioner's consent to 
revoke the historic absorption ratio election within its prior six 
taxable years. The election is to be effected on a cut-off basis, and 
thus, no adjustment under section 481(a) is required or permitted. The 
use of a historic absorption ratio has no effect on other methods of 
accounting adopted by the taxpayer and used in conjunction with the 
simplified resale method in determining its section 263A costs. 
Accordingly, in computing its actual combined absorption ratios, the 
taxpayer must use the same methods of accounting used in computing its 
historic absorption ratio during its most recent test period unless the 
taxpayer obtains the consent of the Commissioner. Finally, for purposes 
of this paragraph (d)(4)(iii)(A), the recomputation of the historic 
absorption ratio during an updated test period and the change from a 
historic absorption ratio to an actual combined absorption ratio during 
an updated test period by reason of the requirements of this paragraph 
(d)(4) are not considered changes in methods of accounting under section 
446(e) and, thus, do not require the consent of the Commissioner or any 
adjustments under section 481(a).
    (B) Revocation of election. A taxpayer may only revoke its election 
to use the historic absorption ratio with the consent of the 
Commissioner in a manner prescribed under section 446(e) and the 
regulations thereunder. Consent to the change for any taxable year that 
is included in the qualifying period (or an

[[Page 677]]

extended qualifying period) will be granted only upon a showing of 
unusual circumstances.
    (iv) Reporting and recordkeeping requirements--(A) Reporting. A 
taxpayer making an election under this paragraph (d)(4) must attach a 
statement to its federal income tax return for the taxable year in which 
the election is made showing the actual combined absorption ratios 
determined under the simplified resale method during its first test 
period. This statement must disclose the historic absorption ratio to be 
used by the taxpayer during its qualifying period. A similar statement 
must be attached to the federal income tax return for the first taxable 
year within any subsequent qualifying period (i.e., after an updated 
test period).
    (B) Recordkeeping. A taxpayer must maintain all appropriate records 
and details supporting the historic absorption ratio until the 
expiration of the statute of limitations for the last year for which the 
taxpayer applied the particular historic absorption ratio in determining 
additional section 263A costs capitalized to eligible property.
    (v) Transition rules. Taxpayers will be permitted to elect a 
historic absorption ratio in their first, second, or third taxable year 
beginning after December 31, 1993, under such terms and conditions as 
may be prescribed by the Commissioner. Taxpayers are eligible to make an 
election under these transition rules whether or not they previously 
used the simplified resale method. A taxpayer making such an election 
must recompute (or compute) its additional section 263A costs, and thus, 
its historic absorption ratio for its first test period as if the rules 
prescribed in this section and Sec. Sec. 1.263A-1 and 1.263A-2 had 
applied throughout the test period.
    (vi) Example. The provisions of this paragraph (d)(4) are 
illustrated by the following example:

    Example. (i) Taxpayer V uses the FIFO method of accounting for 
inventories and in 1994 elects to use the historic absorption ratio with 
the simplified resale method. After recomputing its additional section 
263A costs in accordance with the transition rules of paragraph 
(d)(4)(v) of this section, V identifies the following costs incurred 
during the test period:


1991:
    Add'l section 263A costs--$100
    Section 471 costs--$3,000
1992:
    Add'l section 263A costs--$200
    Section 471 costs--$4,000
1993:
    Add'l section 263A costs--$300
    Section 471 costs--$5,000
    (ii) Therefore, V computes a 5% historic absorption ratio determined 
as follows:
[GRAPHIC] [TIFF OMITTED] TC10OC91.025

    (iii) In 1994, V incurs $10,000 of section 471 costs of which $3,000 
remain in inventory at the end of the year. Under the simplified resale 
method using a historic absorption ratio, V determines the additional 
section 263A costs allocable to its ending inventory by multiplying its 
historic ratio (5%) by the section 471 costs remaining in its ending 
inventory:
[GRAPHIC] [TIFF OMITTED] TC10OC91.026

    (iv) To determine its ending inventory under section 263A, V adds 
the additional section 263A costs allocable to ending inventory to its 
section 471 costs remaining in ending inventory ($3,150=$150+$3,000). 
The balance of V's additional section 263A costs incurred during 1994 is 
taken into account in 1994 as part of V's cost of goods sold.
    (v) V's qualifying period ends as of the close of its 1998 taxable 
year. Therefore, 1999 is a recomputation year in which V must compute 
its actual combined absorption ratio. V determines its actual absorption

[[Page 678]]

ratio for 1999 to be 5.25% and compares that ratio to its historic 
absorption ratio (5.0%). Therefore, V must continue to use its historic 
absorption ratio of 5.0% throughout an extended qualifying period, 1999 
through 2004 (the recomputation year and the following five taxable 
years).
    (vi) If, instead, V's actual combined absorption ratio for 1999 were 
not between 4.5% and 5.5%, V's qualifying period would end and V would 
be required to compute a new historic absorption ratio with reference to 
an updated test period of 1999, 2000, and 2001. Once V's historic 
absorption ratio is determined for the updated test period, it would be 
used for a new qualifying period beginning in 2002.

    (5) Additional simplified methods for resellers. The Commissioner 
may prescribe additional elective simplified methods by revenue ruling 
or revenue procedure.
    (e) Cross reference. See Sec. 1.6001-1(a) regarding the duty of 
taxpayers to keep such records as are sufficient to establish the amount 
of gross income, deductions, etc.

[T.D. 8482, 58 FR 42224, Aug. 9, 1993; 58 FR 47784, Sept. 10, 1993; 59 
FR 3319, Jan. 21, 1994, as amended by T.D. 8559, 59 FR 39962, Aug. 5, 
1994]



Sec. 1.263A-4  Rules for property produced in a farming business.

    (a) Introduction--(1) In general. This section provides guidance 
with respect to the application of section 263A to property produced in 
a farming business as defined in paragraph (a)(4) of this section. 
Except as otherwise provided by the rules of this section, the general 
rules of Sec. Sec. 1.263A-1 through 1.263A-3 and Sec. Sec. 1.263A-7 
through 1.263A-15 apply to property produced in a farming business. A 
taxpayer that engages in the raising or growing of any agricultural or 
horticultural commodity, including both plants and animals, is engaged 
in the production of property. Section 263A generally requires the 
capitalization of the direct costs and an allocable portion of the 
indirect costs that directly benefit or are incurred by reason of the 
production of this property. The direct and indirect costs of producing 
plants or animals generally include preparatory costs allocable to the 
plant or animal and preproductive period costs of the plant or animal. 
Except as provided in paragraphs (a)(2) and (e) of this section, 
taxpayers must capitalize the costs of producing all plants and animals 
unless the election described in paragraph (d) of this section is made.
    (2) Exception--(i) In general. Section 263A does not apply to the 
costs of producing plants with a preproductive period of 2 years or less 
or the costs of producing animals in a farming business, if the taxpayer 
is not--
    (A) A corporation or partnership required to use an accrual method 
of accounting (accrual method) under section 447 in computing its 
taxable income from farming; or
    (B) A tax shelter prohibited from using the cash receipts and 
disbursements method of accounting (cash method) under section 
448(a)(3).
    (ii) Tax shelter--(A) In general. A farming business is considered a 
tax shelter, and thus a taxpayer prohibited from using the cash method 
under section 448(a)(3), if the farming business is--
    (1) A farming syndicate as defined in section 464(c); or
    (2) A tax shelter, within the meaning of section 6662(d)(2)(C)(iii).
    (B) Presumption. Marketed arrangements in which persons carry on 
farming activities using the services of a common managerial or 
administrative service will be presumed to have the principal purpose of 
tax avoidance, within the meaning of section 6662(d)(2)(C)(iii), if such 
persons prepay a substantial portion of their farming expenses with 
borrowed funds.
    (iii) Examples. The following examples illustrate the provisions of 
this paragraph (a)(2):

    Example 1. Farmer A grows trees that have a preproductive period in 
excess of 2 years, and that produce an annual crop. Farmer A is not 
required by section 447 to use an accrual method or prohibited by 
section 448(a)(3) from using the cash method. Accordingly, Farmer A 
qualifies for the exception described in this paragraph (a)(2). Since 
the trees have a preproductive period in excess of 2 years, Farmer A 
must capitalize the direct costs and an allocable portion of the 
indirect costs that directly benefit or are incurred by reason of the 
production of the trees. Since the annual crop has a preproductive 
period of 2 years or less, Farmer A is not required to capitalize the 
costs of producing the crops.
    Example 2. Assume the same facts as Example 1, except that Farmer A 
is required by

[[Page 679]]

section 447 to use an accrual method or prohibited by 448(a)(3) from 
using the cash method. Farmer A does not qualify for the exception 
described in this paragraph (a)(2). Farmer A is required to capitalize 
the direct costs and an allocable portion of the indirect costs that 
directly benefit or are incurred by reason of the production of the 
trees and crops.

    (3) Costs required to be capitalized or inventoried under another 
provision. The exceptions from capitalization provided in paragraphs 
(a)(2), (d) and (e) of this section do not apply to any cost that is 
required to be capitalized or inventoried under another Internal Revenue 
Code or regulatory provision, such as section 263 or 471.
    (4) Farming business--(i) In general. A farming business means a 
trade or business involving the cultivation of land or the raising or 
harvesting of any agricultural or horticultural commodity. Examples 
include the trade or business of operating a nursery or sod farm; the 
raising or harvesting of trees bearing fruit, nuts, or other crops; the 
raising of ornamental trees (other than evergreen trees that are more 
than 6 years old at the time they are severed from their roots); and the 
raising, shearing, feeding, caring for, training, and management of 
animals. For purposes of this section, the term harvesting does not 
include contract harvesting of an agricultural or horticultural 
commodity grown or raised by another. Similarly, merely buying and 
reselling plants or animals grown or raised entirely by another is not 
raising an agricultural or horticultural commodity. A taxpayer is 
engaged in raising a plant or animal, rather than the mere resale of a 
plant or animal, if the plant or animal is held for further cultivation 
and development prior to sale. In determining whether a plant or animal 
is held for further cultivation and development prior to sale, 
consideration will be given to all of the facts and circumstances, 
including: the value added by the taxpayer to the plant or animal 
through agricultural or horticultural processes; the length of time 
between the taxpayer's acquisition of the plant or animal and the time 
that the taxpayer makes the plant or animal available for sale; and in 
the case of a plant, whether the plant is kept in the container in which 
purchased, replanted in the ground, or replanted in a series of larger 
containers as it is grown to a larger size.
    (A) Plant. A plant produced in a farming business includes, but is 
not limited to, a fruit, nut, or other crop bearing tree, an ornamental 
tree, a vine, a bush, sod, and the crop or yield of a plant that will 
have more than one crop or yield raised by the taxpayer. Sea plants are 
produced in a farming business if they are tended and cultivated as 
opposed to merely harvested.
    (B) Animal. An animal produced in a farming business includes, but 
is not limited to, any stock, poultry or other bird, and fish or other 
sea life raised by the taxpayer. Thus, for example, the term animal may 
include a cow, chicken, emu, or salmon raised by the taxpayer. Fish and 
other sea life are produced in a farming business if they are raised on 
a fish farm. A fish farm is an area where fish or other sea life are 
grown or raised as opposed to merely caught or harvested.
    (ii) Incidental activities--(A) In general. A farming business 
includes processing activities that are normally incident to the 
growing, raising, or harvesting of agricultural or horticultural 
products. For example, a taxpayer in the trade or business of growing 
fruits and vegetables may harvest, wash, inspect, and package the fruits 
and vegetables for sale. Such activities are normally incident to the 
raising of these crops by farmers. The taxpayer will be considered to be 
in the trade or business of farming with respect to the growing of 
fruits and vegetables and the processing activities incident to their 
harvest.
    (B) Activities that are not incidental. Farming business does not 
include the processing of commodities or products beyond those 
activities that are normally incident to the growing, raising, or 
harvesting of such products.
    (iii) Examples. The following examples illustrate the provisions of 
this paragraph (a)(4):

    Example 1. Individual A operates a retail nursery. Individual A has 
three categories of plants. The first category is comprised of plants 
that Individual A grows from seeds or cuttings. The second category is 
comprised of plants that Individual A purchases in containers and grows 
for a period of from several months to several years. Individual A

[[Page 680]]

replants some of these plants in the ground. The others are replanted in 
a series of larger containers as they grow. The third category is 
comprised of plants that are purchased by Individual A in containers. 
Individual A does not grow these plants to a larger size before making 
them available for resale. Instead, Individual A makes these plants 
available for resale, in the container in which purchased, shortly after 
receiving them. Thus, no value is added to these plants by Individual A 
through horticultural processes. Individual A also sells soil, mulch, 
chemicals, and yard tools. Individual A is producing property in the 
farming business with respect to the first two categories of plants 
because these plants are held for further cultivation and development 
prior to sale. The plants in the third category are not held for further 
cultivation and development prior to sale and, therefore, are not 
regarded as property produced in a farming business for purposes of 
section 263A. Accordingly, Individual A must account for the third 
category of plants, along with the soil, mulch, chemicals, and yard 
tools, as property acquired for resale. If Individual A's average annual 
gross receipts are less than $10 million, Individual A will not be 
required to capitalize costs with respect to its resale activities under 
section 263A.
    Example 2. Individual B is in the business of growing and harvesting 
wheat and other grains. Individual B also processes grain that 
Individual B has harvested in order to produce breads, cereals, and 
other similar food products, which Individual B then sells to customers 
in the course of its business. Although Individual B is in the farming 
business with respect to the growing and harvesting of grain, Individual 
B is not in the farming business with respect to the processing of such 
grain to produce the food products.
    Example 3. Individual C is in the business of raising poultry and 
other livestock. Individual C also operates a meat processing operation 
in which the poultry and other livestock are slaughtered, processed, and 
packaged or canned. The packaged or canned meat is sold to Individual 
C's customers. Although Individual C is in the farming business with 
respect to the raising of poultry and other livestock, Individual C is 
not in the farming business with respect to the slaughtering, 
processing, packaging, and canning of such animals to produce the food 
products.

    (b) Application of section 263A to property produced in a farming 
business--(1) In general. Unless otherwise provided in this section, 
section 263A requires the capitalization of the direct costs and an 
allocable portion of the indirect costs that directly benefit or are 
incurred by reason of the production of any property in a farming 
business (including animals and plants without regard to the length of 
their preproductive period). Section 1.263A-1(e) describes the types of 
direct and indirect costs that generally must be capitalized by 
taxpayers under section 263A and paragraphs (b)(1)(i) and (ii) of this 
section provide specific examples of the types of costs typically 
incurred in the trade or business of farming. For purposes of this 
section, soil and water conservation expenditures that a taxpayer has 
elected to deduct under section 175 and fertilizer that a taxpayer has 
elected to deduct under section 180 are not subject to capitalization 
under section 263A, except to the extent these costs are required to be 
capitalized as a preproductive period cost of a plant or animal.
    (i) Plants. The costs of producing a plant typically required to be 
capitalized under section 263A include the costs incurred so that the 
plant's growing process may begin (preparatory costs), such as the 
acquisition costs of the seed, seedling, or plant, and the costs of 
planting, cultivating, maintaining, or developing the plant during the 
preproductive period (preproductive period costs). Preproductive period 
costs include, but are not limited to, management, irrigation, pruning, 
soil and water conservation (including costs that the taxpayer has 
elected to deduct under section 175), fertilizing (including costs that 
the taxpayer has elected to deduct under section 180), frost protection, 
spraying, harvesting, storage and handling, upkeep, electricity, tax 
depreciation and repairs on buildings and equipment used in raising the 
plants, farm overhead, taxes (except state and Federal income taxes), 
and interest required to be capitalized under section 263A(f).
    (ii) Animals. The costs of producing an animal typically required to 
be capitalized under section 263A include the costs incurred so that the 
animal's raising process may begin (preparatory costs), such as the 
acquisition costs of the animal, and the costs of raising or caring for 
such animal during the preproductive period (preproductive period 
costs). Preproductive period costs

[[Page 681]]

include, but are not limited to, management, feed (such as grain, 
silage, concentrates, supplements, haylage, hay, pasture and other 
forages), maintaining pasture or pen areas (including costs that the 
taxpayer has elected to deduct under sections 175 or 180), breeding, 
artificial insemination, veterinary services and medicine, livestock 
hauling, bedding, fuel, electricity, hired labor, tax depreciation and 
repairs on buildings and equipment used in raising the animals (for 
example, barns, trucks, and trailers), farm overhead, taxes (except 
state and Federal income taxes), and interest required to be capitalized 
under section 263A(f).
    (2) Preproductive period--(i) Plant--(A) In general. The 
preproductive period of property produced in a farming business means--
    (1) In the case of a plant that will have more than one crop or 
yield (for example, an orange tree), the period before the first 
marketable crop or yield from such plant;
    (2) In the case of the crop or yield of a plant that will have more 
than one crop or yield (for example, the orange), the period before such 
crop or yield is disposed of; or
    (3) In the case of any other plant, the period before such plant is 
disposed of.
    (B) Applicability of section 263A. For purposes of determining 
whether a plant has a preproductive period in excess of 2 years, the 
preproductive period of plants grown in commercial quantities in the 
United States is based on the nationwide weighted average preproductive 
period for such plant. The Commissioner will publish a noninclusive list 
of plants with a nationwide weighted average preproductive period in 
excess of 2 years. In the case of other plants grown in commercial 
quantities in the United States, the nationwide weighted average 
preproductive period must be determined based on available statistical 
data. For all other plants, the taxpayer is required, at or before the 
time the seed or plant is acquired or planted, to reasonably estimate 
the preproductive period of the plant. If the taxpayer estimates a 
preproductive period in excess of 2 years, the taxpayer must capitalize 
the costs of producing the plant. If the estimate is reasonable, based 
on the facts in existence at the time it is made, the determination of 
whether section 263A applies is not modified at a later time even if the 
actual length of the preproductive period differs from the estimate. The 
actual length of the preproductive period will, however, be considered 
in evaluating the reasonableness of the taxpayer's future estimates. The 
nationwide weighted average preproductive period or the estimated 
preproductive period is only used for purposes of determining whether 
the preproductive period of a plant is greater than 2 years.
    (C) Actual preproductive period. The plant's actual preproductive 
period is used for purposes of determining the period during which a 
taxpayer must capitalize preproductive period costs with respect to a 
particular plant.
    (1) Beginning of the preproductive period. The actual preproductive 
period of a plant begins when the taxpayer first incurs costs that 
directly benefit or are incurred by reason of the plant. Generally, this 
occurs when the taxpayer plants the seed or plant. In the case of a 
taxpayer that acquires plants that have already been permanently 
planted, or plants that are tended by the taxpayer or another prior to 
permanent planting, the actual preproductive period of the plant begins 
upon acquisition of the plant by the taxpayer. In the case of the crop 
or yield of a plant that will have more than one crop or yield, the 
actual preproductive period begins when the plant has become productive 
in marketable quantities and the crop or yield first appears, for 
example, in the form of a sprout, bloom, blossom, or bud.
    (2) End of the preproductive period--(i) In general. In the case of 
a plant that will have more than one crop or yield, the actual 
preproductive period ends when the plant first becomes productive in 
marketable quantities. In the case of any other plant (including the 
crop or yield of a plant that will have more than one crop or yield), 
the actual preproductive period ends when the plant, crop, or yield is 
sold or otherwise disposed of. Field costs, such as irrigating, 
fertilizing, spraying and pruning, that are incurred after the harvest 
of a crop or yield but before the crop or yield is sold or otherwise

[[Page 682]]

disposed of are not required to be included in the preproductive period 
costs of the harvested crop or yield because they do not benefit and are 
unrelated to the harvested crop or yield.
    (ii) Marketable quantities. A plant that will have more than one 
crop or yield becomes productive in marketable quantities once a crop or 
yield is produced in sufficient quantities to be harvested and marketed 
in the ordinary course of the taxpayer's business. Factors that are 
relevant to determining whether a crop or yield is produced in 
sufficient quantities to be harvested and marketed in the ordinary 
course include: whether the crop or yield is harvested that is more than 
de minimis, although it may be less than expected at the maximum bearing 
stage, based on a comparison of the quantities per acre harvested in the 
year in question to the quantities per acre expected to be harvested 
when the plant reaches full maturity; and whether the sales proceeds 
exceed the costs of harvest and make a reasonable contribution to an 
allocable share of farm expenses.
    (D) Examples. The following examples illustrate the provisions of 
this paragraph (b)(2):

    Example 1. (i) Farmer A, a taxpayer that qualifies for the exception 
in paragraph (a)(2) of this section, grows plants that will have more 
than one crop or yield. The plants are grown in commercial quantities in 
the United States. Farmer A acquires 1 year-old plants by purchasing 
them from an unrelated party, Corporation B, and plants them 
immediately. The nationwide weighted average preproductive period of the 
plant is 4 years. The particular plants grown by Farmer A do not begin 
to produce in marketable quantities until 3 years and 6 months after 
they are planted by Farmer A.
    (ii) Since the plants are deemed to have a preproductive period in 
excess of 2 years, Farmer A is required to capitalize the costs of 
producing the plants. See paragraphs (a)(2) and (b)(2)(i)(B) of this 
section. In accordance with paragraph (b)(2)(i)(C)(1) of this section, 
Farmer A must begin to capitalize the preproductive period costs when 
the plants are planted. In accordance with paragraph (b)(2)(i)(C)(2) of 
this section, Farmer A must continue to capitalize preproductive period 
costs to the plants until the plants begin to produce in marketable 
quantities. Thus, Farmer A must capitalize the preproductive period 
costs for a period of 3 years and 6 months (that is, until the plants 
are 4 years and 6 months old), notwithstanding the fact that the plants, 
in general, have a nationwide weighted average preproductive period of 4 
years.
    Example 2. (i) Farmer B, a taxpayer that qualifies for the exception 
in paragraph (a)(2) of this section, grows plants that will have more 
than one crop or yield. The plants are grown in commercial quantities in 
the United States. The nationwide weighted average preproductive period 
of the plant is 2 years and 5 months. Farmer B acquires 1 month-old 
plants by purchasing them from an unrelated party, Corporation B. Farmer 
B enters into a contract with Corporation B under which Corporation B 
will retain and tend the plants for 7 months following the sale. At the 
end of 7 months, Farmer B takes possession of the plants and plants them 
in the permanent orchard. The plants become productive in marketable 
quantities 1 year and 11 months after they are planted by Farmer B.
    (ii) Since the plants are deemed to have a preproductive period in 
excess of 2 years, Farmer B is required to capitalize the costs of 
producing the plants. See paragraphs (a)(2) and (b)(2)(i)(B) of this 
section. In accordance with paragraph (b)(2)(i)(C)(1) of this section, 
Farmer B must begin to capitalize the preproductive period costs when 
the purchase occurs. In accordance with paragraph (b)(2)(i)(C)(2) of 
this section, Farmer B must continue to capitalize the preproductive 
period costs to the plants until the plants begin to produce in 
marketable quantities. Thus, Farmer B must capitalize the preproductive 
period costs of the plants for a period of 2 years and 6 months (the 7 
months the plants are tended by Corporation B and the 1 year and 11 
months after the plants are planted by Farmer B), that is, until the 
plants are 2 years and 7 months old, notwithstanding the fact that the 
plants, in general, have a nationwide weighted average preproductive 
period of 2 years and 5 months.
    Example 3. (i) Assume the same facts as in Example 2, except that 
Farmer B acquires the plants by purchasing them from Corporation B when 
the plants are 8 months old and that the plants are planted by Farmer B 
upon acquisition.
    (ii) Since the plants are deemed to have a preproductive period in 
excess of 2 years, Farmer B is required to capitalize the costs of 
producing the plants. See paragraphs (a)(2) and (b)(2)(i)(B) of this 
section. In accordance with paragraph (b)(2)(i)(C)(1) of this section, 
Farmer B must begin to capitalize the preproductive period costs when 
the plants are planted. In accordance with paragraph (b)(2)(i)(C)(2) of 
this section, Farmer B must continue to capitalize the preproductive 
period costs to the plants until the plants begin to produce in 
marketable quantities. Thus, Farmer B must capitalize the preproductive 
period costs of the plants for a period of 1 year and 11 months.

[[Page 683]]

    Example 4. (i) Farmer C, a taxpayer that qualifies for the exception 
in paragraph (a)(2) of this section, grows plants that will have more 
than one crop or yield. The plants are grown in commercial quantities in 
the United States. Farmer C acquires 1 month-old plants from an 
unrelated party and plants them immediately. The nationwide weighted 
average preproductive period of the plant is 2 years and 3 months. The 
particular plants grown by Farmer C begin to produce in marketable 
quantities 1 year and 10 months after they are planted by Farmer C.
    (ii) Since the plants are deemed to have a nationwide weighted 
average preproductive period in excess of 2 years, Farmer C is required 
to capitalize the costs of producing the plants, notwithstanding the 
fact that the particular plants grown by Farmer C become productive in 
less than 2 years. See paragraph (b)(2)(i)(B) of this section. In 
accordance with paragraph (b)(2)(i)(C)(1) of this section, Farmer C must 
begin to capitalize the preproductive period costs when it plants the 
plants. In accordance with paragraph (b)(2)(i)(C)(2) of this section, 
Farmer C properly ceases capitalization of preproductive period costs 
when the plants become productive in marketable quantities (that is, 1 
year and 10 months after they are planted, which is when they are 1 year 
and 11 months old).
    Example 5. (i) Farmer D, a taxpayer that qualifies for the exception 
in paragraph (a)(2) of this section, grows plants that will have more 
than one crop or yield. The plants are not grown in commercial 
quantities in the United States. Farmer D acquires and plants the plants 
when they are 1 year old and estimates that they will become productive 
in marketable quantities 3 years after planting. Thus, at the time the 
plants are acquired and planted Farmer D reasonably estimates that the 
plants will have a preproductive period of 4 years. The actual plants 
grown by Farmer D do not begin to produce in marketable quantities until 
3 years and 6 months after they are planted by Farmer D.
    (ii) Since the plants have an estimated preproductive period in 
excess of 2 years, Farmer D is required to capitalize the costs of 
producing the plants. See paragraph (b)(2)(i)(B) of this section. In 
accordance with paragraph (b)(2)(i)(C)(1) of this section, Farmer D must 
begin to capitalize the preproductive period costs when it acquires and 
plants the plants. In accordance with paragraph (b)(2)(i)(C)(2) of this 
section, Farmer D must continue to capitalize the preproductive period 
costs until the plants begin to produce in marketable quantities. Thus, 
Farmer D must capitalize the preproductive period costs of the plants 
for a period of 3 years and 6 months (that is, until the plants are 4 
years and 6 months old), notwithstanding the fact that Farmer D 
estimated that the plants would become productive after 4 years.
    Example 6. (i) Farmer E, a taxpayer that qualifies for the exception 
in paragraph (a)(2) of this section grows plants from seed. The plants 
are not grown in commercial quantities in the United States. The plants 
do not have more than 1 crop or yield. At the time the seeds are planted 
Farmer E reasonably estimates that the plants will have a preproductive 
period of 1 year and 10 months. The actual plants grown by Farmer E are 
not ready for harvesting and disposal until 2 years and 2 months after 
the seeds are planted by Farmer E.
    (ii) Because Farmer E's estimate of the preproductive period (which 
was 2 years or less) was reasonable at the time made based on the facts, 
Farmer E will not be required to capitalize the costs of producing the 
plants under section 263A, notwithstanding the fact that the actual 
preproductive period of the plants exceeded 2 years. See paragraph 
(b)(2)(i)(B) of this section. However, Farmer E must take the actual 
preproductive period of the plants into consideration when making future 
estimates of the preproductive period of such plants.
    Example 7. (i) Farmer F, a calendar year taxpayer that does not 
qualify for the exception in paragraph (a)(2) of this section, grows 
trees that will have more than one crop. Farmer F acquires and plants 
the trees in April, Year 1. On October 1, Year 6, the trees become 
productive in marketable quantities.
    (ii) The costs of producing the plant, including the preproductive 
period costs incurred by Farmer F on or before October 1, Year 6, are 
capitalized to the trees. Preproductive period costs incurred after 
October 1, Year 6, are capitalized to a crop when incurred during the 
preproductive period of the crop and deducted as a cost of maintaining 
the tree when incurred between the disposal of one crop and the 
appearance of the next crop. See paragraphs (b)(2)(i)(A), 
(b)(2)(i)(C)(1) and (b)(2)(i)(C)(2) of this section.
    Example 8. (i) Farmer G, a taxpayer that qualifies for the exception 
in paragraph (a)(2) of this section, produces fig trees on 10 acres of 
land. The fig trees are grown in commercial quantities in the United 
States and have a nationwide weighted average preproductive period in 
excess of 2 years. Farmer G acquires and plants the fig trees in their 
permanent grove during Year 1. When the fig trees are mature, Farmer G 
expects to harvest 10x tons of figs per acre. At the end of Year 4, 
Farmer G harvests .5x tons of figs per acre that it sells for $100x. 
During Year 4, Farmer G incurs expenses related to the fig operation of: 
$50x to harvest the figs and transport them to market and other direct 
and indirect costs related to the fig operation in the amount of $1000x.
    (ii) Since the fig trees have a preproductive period in excess of 2 
years, Farmer G is required to capitalize the costs of producing

[[Page 684]]

the fig trees. See paragraphs (a)(2) and (b)(2)(i)(B) of this section. 
In accordance with paragraph (b)(2)(i)(C)(2) of this section, Farmer G 
must continue to capitalize preproductive period costs to the trees 
until they become productive in marketable quantities. The following 
factors weigh in favor of a determination that the fig trees did not 
become productive in Year 4: the quantity of harvested figs is de 
minimis based on the fact that the yield is only 5 percent of the 
expected yield at maturity and the proceeds from the sale of the figs 
are sufficient, after covering the costs of harvesting and transporting 
the figs, to cover only a negligible portion of the allocable farm 
expenses. Based on these facts and circumstances, the fig trees did not 
become productive in marketable quantities in Year 4.

    (ii) Animal. An animal's actual preproductive period is used to 
determine the period that the taxpayer must capitalize preproductive 
period costs with respect to a particular animal.
    (A) Beginning of the preproductive period. The preproductive period 
of an animal begins at the time of acquisition, breeding, or embryo 
implantation.
    (B) End of the preproductive period. In the case of an animal that 
will be used in the trade or business of farming (for example, a dairy 
cow), the preproductive period generally ends when the animal is (or 
would be considered) placed in service for purposes of section 168 
(without regard to the applicable convention). However, in the case of 
an animal that will have more than one yield (for example, a breeding 
cow), the preproductive period ends when the animal produces (for 
example, gives birth to) its first yield. In the case of any other 
animal, the preproductive period ends when the animal is sold or 
otherwise disposed of.
    (C) Allocation of costs between animal and yields. In the case of an 
animal that will have more than one yield, the costs incurred after the 
beginning of the preproductive period of the first yield but before the 
end of the preproductive period of the animal must be allocated between 
the animal and the yield using any reasonable method. Any depreciation 
allowance on the animal may be allocated entirely to the yield. Costs 
incurred after the beginning of the preproductive period of the second 
yield, but before the first yield is weaned from the animal must be 
allocated between the first and second yield using any reasonable 
method. However, a taxpayer may elect to allocate these costs entirely 
to the second yield. An allocation method used by a taxpayer is a method 
of accounting that must be used consistently and is subject to the rules 
of section 446 and the regulations thereunder.
    (c) Inventory methods--(1) In general. Except as otherwise provided, 
the costs required to be allocated to any plant or animal under this 
section may be determined using reasonable inventory valuation methods 
such as the farm-price method or the unit-livestock-price method. See 
Sec. 1.471-6. Under the unit-livestock-price method, unit prices must 
include all costs required to be capitalized under section 263A. A 
taxpayer using the unit-livestock-price method may elect to use the cost 
allocation methods in Sec. 1.263A-1(f) or 1.263A-2(b) to allocate its 
direct and indirect costs to the property produced in the business of 
farming. In such a situation, section 471 costs are the costs taken into 
account by the taxpayer under the unit-livestock-price method using the 
taxpayer's standard unit price as modified by this paragraph (c)(1). Tax 
shelters, as defined in paragraph (a)(2)(ii) of this section, that use 
the unit-livestock-price method for inventories must include in 
inventory the annual standard unit price for all animals that are 
acquired during the taxable year, regardless of whether the purchases 
are made during the last 6 months of the taxable year. Taxpayers 
required by section 447 to use an accrual method or prohibited by 
section 448(a)(3) from using the cash method that use the unit-
livestock-price method must modify the annual standard price in order to 
reasonably reflect the particular period in the taxable year in which 
purchases of livestock are made, if such modification is necessary in 
order to avoid significant distortions in income that would otherwise 
occur through operation of the unit-livestock-price method.
    (2) Available for property used in a trade or business. The farm-
price method or the unit-livestock-price method may be used by any 
taxpayer to allocate costs to any plant or animal under

[[Page 685]]

this section, regardless of whether the plant or animal is held or 
treated as inventory property by the taxpayer. Thus, for example, a 
taxpayer may use the unit-livestock-price method to account for the 
costs of raising livestock that will be used in the trade or business of 
farming (for example, a breeding animal or a dairy cow) even though the 
property in question is not inventory property.
    (3) Exclusion of property to which section 263A does not apply. 
Notwithstanding a taxpayer's use of the farm-price method with respect 
to farm property to which the provisions of section 263A apply, that 
taxpayer is not required, solely by such use, to use the farm-price 
method with respect to farm property to which the provisions of section 
263A do not apply. Thus, for example, assume Farmer A raises fruit trees 
that have a preproductive period in excess of 2 years and to which the 
provisions of section 263A, therefore, apply. Assume also that Farmer A 
raises cattle and is not required to use an accrual method by section 
447 or prohibited from using the cash method by section 448(a)(3). 
Because Farmer A qualifies for the exception in paragraph (a)(2) of this 
section, Farmer A is not required to capitalize the costs of raising the 
cattle. Although Farmer A may use the farm-price method with respect to 
the fruit trees, Farmer A is not required to use the farm-price method 
with respect to the cattle. Instead, Farmer A's accounting for the 
cattle is determined under other provisions of the Code and regulations.
    (d) Election not to have section 263A apply--(1) Introduction. This 
paragraph (d) permits certain taxpayers to make an election not to have 
the rules of this section apply to any plant produced in a farming 
business conducted by the electing taxpayer. The election is a method of 
accounting under section 446, and once an election is made, it is 
revocable only with the consent of the Commissioner.
    (2) Availability of the election. The election described in this 
paragraph (d) is available to any taxpayer that produces plants in a 
farming business, except that no election may be made by a corporation, 
partnership, or tax shelter required to use an accrual method under 
section 447 or prohibited from using the cash method by section 
448(a)(3). Moreover, the election does not apply to the costs of 
planting, cultivation, maintenance, or development of a citrus or almond 
grove (or any part thereof) incurred prior to the close of the fourth 
taxable year beginning with the taxable year in which the trees were 
planted in the permanent grove (including costs incurred prior to the 
permanent planting). If a citrus or almond grove is planted in more than 
one taxable year, the portion of the grove planted in any one taxable 
year is treated as a separate grove for purposes of determining the year 
of planting.
    (3) Time and manner of making the election--(i) Automatic election. 
A taxpayer makes the election under this paragraph (d) by not applying 
the rules of section 263A to determine the capitalized costs of plants 
produced in a farming business and by applying the special rules in 
paragraph (d)(4) of this section on its original return for the first 
taxable year in which the taxpayer is otherwise required to capitalize 
section 263A costs. Thus, in order to be treated as having made the 
election under this paragraph (d), it is necessary to report both income 
and expenses in accordance with the rules of this paragraph (d) (for 
example, it is necessary to use the alternative depreciation system as 
provided in paragraph (d)(4)(ii) of this section). For example, a farmer 
who deducts costs that are otherwise required to be capitalized under 
section 263A but fails to use the alternative depreciation system under 
section 168(g)(2) for applicable property placed in service has not made 
an election under this paragraph (d) and is not in compliance with the 
provisions of section 263A. In the case of a partnership or S 
corporation, the election must be made by the partner, shareholder, or 
member.
    (ii) Nonautomatic election. A taxpayer that does not make the 
election under this paragraph (d) as provided in paragraph (d)(3)(i) 
must obtain the consent of the Commissioner to make the election by 
filing a Form 3115, Application for Change in Method of Accounting, in 
accordance with Sec. 1.446-1(e)(3).

[[Page 686]]

    (4) Special rules. If the election under this paragraph (d) is made, 
the taxpayer is subject to the special rules in this paragraph (d)(4).
    (i) Section 1245 treatment. The plant produced by the taxpayer is 
treated as section 1245 property and any gain resulting from any 
disposition of the plant is recaptured (that is, treated as ordinary 
income) to the extent of the total amount of the deductions that, but 
for the election, would have been required to be capitalized with 
respect to the plant. In calculating the amount of gain that is 
recaptured under this paragraph (d)(4)(i), a taxpayer may use the farm-
price method or another simplified method permitted under these 
regulations in determining the deductions that otherwise would have been 
capitalized with respect to the plant.
    (ii) Required use of alternative depreciation system. If the 
taxpayer or a related person makes an election under this paragraph (d), 
the alternative depreciation system (as defined in section 168(g)(2)) 
must be applied to all property used predominantly in any farming 
business of the taxpayer or related person and placed in service in any 
taxable year during which the election is in effect. The requirement to 
use the alternative depreciation system by reason of an election under 
this paragraph (d) will not prevent a taxpayer from making an election 
under section 179 to deduct certain depreciable business assets.
    (iii) Related person--(A) In general. For purposes of this paragraph 
(d)(4), related person means--
    (1) The taxpayer and members of the taxpayer's family;
    (2) Any corporation (including an S corporation) if 50 percent or 
more of the stock (in value) is owned directly or indirectly (through 
the application of section 318) by the taxpayer or members of the 
taxpayer's family;
    (3) A corporation and any other corporation that is a member of the 
same controlled group (within the meaning of section 1563(a)(1)); and
    (4) Any partnership if 50 percent or more (in value) of the 
interests in such partnership is owned directly or indirectly by the 
taxpayer or members of the taxpayer's family.
    (B) Members of family. For purposes of this paragraph (d)(4)(iii), 
the terms ``members of the taxpayer's family'', and ``members of 
family'' (for purposes of applying section 318(a)(1)), means the spouse 
of the taxpayer (other than a spouse who is legally separated from the 
individual under a decree of divorce or separate maintenance) and any of 
the taxpayer's children (including legally adopted children) who have 
not reached the age of 18 as of the last day of the taxable year in 
question.
    (5) Examples. The following examples illustrate the provisions of 
this paragraph (d):

    Example 1. (i) Farmer A, an individual, is engaged in the trade or 
business of farming. Farmer A grows apple trees that have a 
preproductive period greater than 2 years. In addition, Farmer A grows 
and harvests wheat and other grains. Farmer A elects under this 
paragraph (d) not to have the rules of section 263A apply to the costs 
of growing the apple trees.
    (ii) In accordance with paragraph (d)(4) of this section, Farmer A 
is required to use the alternative depreciation system described in 
section 168(g)(2) with respect to all property used predominantly in any 
farming business in which Farmer A engages (including the growing and 
harvesting of wheat) if such property is placed in service during a year 
for which the election is in effect. Thus, for example, all assets and 
equipment (including trees and any equipment used to grow and harvest 
wheat) placed in service during a year for which the election is in 
effect must be depreciated as provided in section 168(g)(2).
    Example 2. Assume the same facts as in Example 1, except that Farmer 
A and members of Farmer A's family (as defined in paragraph 
(d)(4)(iii)(B) of this section) also own 51 percent (in value) of the 
interests in Partnership P, which is engaged in the trade or business of 
growing and harvesting corn. Partnership P is a related person to Farmer 
A under the provisions of paragraph (d)(4)(iii) of this section. Thus, 
the requirements to use the alternative depreciation system under 
section 168(g)(2) also apply to any property used predominantly in a 
trade or business of farming which Partnership P places in service 
during a year for which an election made by Farmer A is in effect.

    (e) Exception for certain costs resulting from casualty losses--(1) 
In general. Section 263A does not require the capitalization of costs 
that are attributable to

[[Page 687]]

the replanting, cultivating, maintaining, and developing of any plants 
bearing an edible crop for human consumption (including, but not limited 
to, plants that constitute a grove, orchard, or vineyard) that were lost 
or damaged while owned by the taxpayer by reason of freezing 
temperatures, disease, drought, pests, or other casualty (replanting 
costs). Such replanting costs may be incurred with respect to property 
other than the property on which the damage or loss occurred to the 
extent the acreage of the property with respect to which the replanting 
costs are incurred is not in excess of the acreage of the property on 
which the damage or loss occurred. This paragraph (e) applies only to 
the replanting of plants of the same type as those lost or damaged. This 
paragraph (e) applies to plants replanted on the property on which the 
damage or loss occurred or property of the same or lesser acreage in the 
United States irrespective of differences in density between the lost or 
damaged and replanted plants. Plants bearing crops for human consumption 
are those crops normally eaten or drunk by humans. Thus, for example, 
costs incurred with respect to replanting plants bearing jojoba beans do 
not qualify for the exception provided in this paragraph (e) because 
that crop is not normally eaten or drunk by humans.
    (2) Ownership. Replanting costs described in paragraph (e)(1) of 
this section generally must be incurred by the taxpayer that owned the 
property at the time the plants were lost or damaged. Paragraph (e)(1) 
of this section will apply, however, to costs incurred by a person other 
than the taxpayer that owned the plants at the time of damage or loss 
if--
    (i) The taxpayer that owned the plants at the time the damage or 
loss occurred owns an equity interest of more than 50 percent in such 
plants at all times during the taxable year in which the replanting 
costs are paid or incurred; and
    (ii) Such other person owns any portion of the remaining equity 
interest and materially participates in the replanting, cultivating, 
maintaining, or developing of such plants during the taxable year in 
which the replanting costs are paid or incurred. A person will be 
treated as materially participating for purposes of this provision if 
such person would otherwise meet the requirements with respect to 
material participation within the meaning of section 2032A(e)(6).
    (3) Examples. The following examples illustrate the provisions of 
this paragraph (e):

    Example 1. (i) Farmer A grows cherry trees that have a preproductive 
period in excess of 2 years and produce an annual crop. These cherries 
are normally eaten by humans. Farmer A grows the trees on a 100 acre 
parcel of land (parcel 1) and the groves of trees cover the entire 
acreage of parcel 1. Farmer A also owns a 150 acre parcel of land 
(parcel 2) that Farmer A holds for future use. Both parcels are in the 
United States. In 2000, the trees and the irrigation and drainage 
systems that service the trees are destroyed in a casualty (within the 
meaning of paragraph (e)(1) of this section). Farmer A installs new 
irrigation and drainage systems on parcel 1, purchases young trees 
(seedlings), and plants the seedlings on parcel 1.
    (ii) The costs of the irrigation and drainage systems and the 
seedlings must be capitalized. In accordance with paragraph (e)(1) of 
this section, the costs of planting, cultivating, developing, and 
maintaining the seedlings during their preproductive period are not 
required to be capitalized by section 263A.
    Example 2. (i) Assume the same facts as in Example 1 except that 
Farmer A decides to replant the seedlings on parcel 2 rather than on 
parcel 1. Accordingly, Farmer A installs the new irrigation and drainage 
systems on 100 acres of parcel 2 and plants seedlings on those 100 
acres.
    (ii) The costs of the irrigation and drainage systems and the 
seedlings must be capitalized. Because the acreage of the related 
portion of parcel 2 does not exceed the acreage of the destroyed orchard 
on parcel 1, the costs of planting, cultivating, developing, and 
maintaining the seedlings during their preproductive period are not 
required to be capitalized by section 263A. See paragraph (e)(1) of this 
section.
    Example 3. (i) Assume the same facts as in Example 1 except that 
Farmer A replants the seedlings on parcel 2 rather than on parcel 1, and 
Farmer A additionally decides to expand its operations by growing 125 
rather than 100 acres of trees. Accordingly, Farmer A installs new 
irrigation and drainage systems on 125 acres of parcel 2 and plants 
seedlings on those 125 acres.
    (ii) The costs of the irrigation and drainage systems and the 
seedlings must be capitalized. The costs of planting, cultivating, 
developing, and maintaining 100 acres of the

[[Page 688]]

trees during their preproductive period are not required to be 
capitalized by section 263A. The costs of planting, cultivating, 
maintaining, and developing the additional 25 acres are, however, 
subject to capitalization under section 263A. See paragraph (e)(1) of 
this section.

    (4) Special rule for citrus and almond groves--(i) In general. The 
exception in this paragraph (e) is available with respect to replanting 
costs of a citrus or almond grove incurred prior to the close of the 
fourth taxable year after replanting, notwithstanding the taxpayer's 
election to have section 263A not apply (described in paragraph (d) of 
this section).
    (ii) Example. The following example illustrates the provisions of 
this paragraph (e)(4):

    Example. (i) Farmer A, an individual, is engaged in the trade or 
business of farming. Farmer A grows citrus trees that have a 
preproductive period of 5 years. Farmer A elects, under paragraph (d) of 
this section, not to have section 263A apply. This election, however, is 
unavailable with respect to the costs of producing a citrus grove 
incurred within the first 4 years beginning with the year the trees were 
planted. See paragraph (d)(2) of this section. In year 10, after the 
citrus grove has become productive in marketable quantities, the citrus 
grove is destroyed by a casualty within the meaning of paragraph (e)(1) 
of this section. In year 10, Farmer A acquires and plants young citrus 
trees in the same grove to replace those destroyed by the casualty.
    (ii) Farmer A must capitalize the costs of producing the citrus 
grove incurred before the close of the fourth taxable year beginning 
with the year in which the trees were permanently planted. As a result 
of the election not to have section 263A apply, Farmer A may deduct the 
preproductive period costs incurred in the fifth year. In year 10, 
Farmer A must capitalize the acquisition cost of the young trees. 
However, the costs of planting, cultivating, developing, and maintaining 
the young trees that replace those destroyed by the casualty are 
exempted from capitalization under this paragraph (e).

    (f) Effective date and change in method of accounting--(1) Effective 
date. In the case of property that is not inventory in the hands of the 
taxpayer, this section is applicable to costs incurred after August 21, 
2000 in taxable years ending after August 21, 2000. In the case of 
inventory property, this section is applicable to taxable years 
beginning after August 21, 2000.
    (2) Change in method of accounting. Any change in a taxpayer's 
method of accounting necessary to comply with this section is a change 
in method of accounting to which the provisions of sections 446 and 481 
and the regulations thereunder apply. For property that is not inventory 
in the hands of the taxpayer, a taxpayer is granted the consent of the 
Commissioner to change its method of accounting to comply with the 
provisions of this section for costs incurred after August 21, 2000, 
provided the change is made for the first taxable year ending after 
August 21, 2000. For inventory property, a taxpayer is granted the 
consent of the Commissioner to change its method of accounting to comply 
with the provisions of this section for the first taxable year beginning 
after August 21, 2000. A taxpayer changing its method of accounting 
under this paragraph (f)(2) must file a Form 3115, ``Application for 
Change in Accounting Method,'' in accordance with the automatic consent 
procedures in Rev. Proc. 99-49 (1999-2 I.R.B. 725) (see Sec. 
601.601(d)(2) of this chapter). However, the scope limitations in 
section 4.02 of Rev. Proc. 99-49 do not apply, provided the taxpayer's 
method of accounting for property produced in a farming business is not 
an issue under consideration within the meaning of section 3.09 of Rev. 
Proc. 99-49. If the taxpayer is under examination, before an appeals 
office, or before a federal court at the time that a copy of the Form 
3115 is filed with the national office, the taxpayer must provide a 
duplicate copy of the Form 3115 to the examining agent, appeals officer, 
or counsel for the government, as appropriate, at the time the copy of 
the Form 3115 is filed. The Form 3115 must contain the name(s) and 
telephone number(s) of the examining agent, appeals officer, or counsel 
for the government, as appropriate. Further, in the case of property 
that is not inventory in the hands of the taxpayer, a change under this 
paragraph (f)(2) is made on a cutoff basis as described in section 2.06 
of Rev. Proc. 99-49 and without the audit protection provided in section 
7

[[Page 689]]

of Rev. Proc. 99-49. However, a taxpayer may receive such audit 
protection for non-inventory property by taking into account any section 
481(a) adjustment that results from the change in method of accounting 
to comply with this section. A taxpayer that opts to determine a section 
481(a) adjustment (and, thus, obtain audit protection) for non-inventory 
property must take into account only additional section 263A costs 
incurred after December 31, 1986, in taxable years ending after December 
31, 1986. Any change in method of accounting that is not made for the 
taxpayer's first taxable year ending or beginning after August 21, 2000, 
whichever is applicable, must be made in accord with the procedures in 
Rev. Proc. 97-27 (1997-1 C.B. 680) (see Sec. 601.601(d)(2) of this 
chapter).

[T.D. 8897, 65 FR 50644, Aug. 21, 2000; 65 FR 61092, Oct. 16, 2000]



Sec. 1.263A-5  Exception for qualified creative expenses incurred by 
certain free-lance authors, photographers, and artists. [Reserved]



Sec. 1.263A-6  Rules for foreign persons. [Reserved]



Sec. 1.263A-7  Changing a method of accounting under section 263A.

    (a) Introduction--(1) Purpose. These regulations provide guidance to 
taxpayers changing their methods of accounting for costs subject to 
section 263A. The principal purpose of these regulations is to provide 
guidance regarding how taxpayers are to revalue property on hand at the 
beginning of the taxable year in which they change their method of 
accounting for costs subject to section 263A. Paragraph (c) of this 
section provides guidance regarding how items or costs included in 
beginning inventory in the year of change must be revalued. Paragraph 
(d) of this section provides guidance regarding how non-inventory 
property should be revalued in the year of change.
    (2) Taxpayers that adopt a method of accounting under section 263A. 
Taxpayers may adopt a method of accounting for costs subject to section 
263A in the first taxable year in which they engage in resale or 
production activities. For purposes of this section, the adoption of a 
method of accounting has the same meaning as provided in Sec. 1.446-
1(e)(1). Taxpayers are not subject to the provisions of these 
regulations to the extent they adopt, as opposed to change, a method of 
accounting.
    (3) Taxpayers that change a method of accounting under section 263A. 
Taxpayers changing their method of accounting for costs subject to 
section 263A are subject to the revaluation and other provisions of this 
section. Taxpayers subject to these regulations include, but are not 
limited to--
    (i) Resellers of personal property whose average annual gross 
receipts for the immediately preceding 3-year period (or lesser period 
if the taxpayer was not in existence for the three preceding taxable 
years) exceed $10,000,000 where the taxpayer was not subject to section 
263A in the prior taxable year;
    (ii) Resellers of real or personal property that are using a method 
that fails to comply with section 263A and desire to change to a method 
of accounting that complies with section 263A;
    (iii) Producers of real or tangible personal property that are using 
a method that fails to comply with section 263A and desire to change to 
a method of accounting that complies with section 263A; and
    (iv) Resellers and producers that desire to change from one 
permissible method of accounting for costs subject to section 263A to 
another permissible method.
    (4) Effective date. The provisions of this section are effective for 
taxable years beginning on or after August 5, 1997. For taxable years 
beginning before August 5, 1997, the rules of Sec. 1.263A-7T contained 
in the 26 CFR part 1 edition revised as of April 1, 1997, as modified by 
other administrative guidance, will apply.
    (5) Definition of change in method of accounting. For purposes of 
this section, a change in method of accounting has the same meaning as 
provided in Sec. 1.446-1(e)(2)(ii). Changes in method of accounting for 
costs subject to section 263A include changes to methods required or 
permitted by section 263A and the regulations thereunder. Changes in 
method of accounting may be described in the preceding sentence 
irrespective of whether the taxpayer's

[[Page 690]]

previous method of accounting resulted in the capitalization of more (or 
fewer) costs than the costs required to be capitalized under section 
263A and the regulations thereunder, and irrespective of whether the 
taxpayer's previous method of accounting was a permissible method under 
the law in effect when the method was being used. However, changes in 
method of accounting for costs subject to section 263A do not include 
changes relating to factors other than those described therein. For 
example, a change in method of accounting for costs subject to section 
263A does not include a change from one inventory identification method 
to another inventory identification method, such as a change from the 
last-in, first-out (LIFO) method to the first-in, first-out (FIFO) 
method, or vice versa, or a change from one inventory valuation method 
to another inventory valuation method under section 471, such as a 
change from valuing inventory at cost to valuing the inventory at cost 
or market, whichever is lower, or vice versa. In addition, a change in 
method of accounting for costs subject to section 263A does not include 
a change within the LIFO inventory method, such as a change from the 
double extension method to the link-chain method, or a change in the 
method used for determining the number of pools. Further, a change from 
the modified resale method set forth in Notice 89-67 (1989-1 C.B. 723), 
see Sec. 601.601(d)(2) of this chapter, to the simplified resale method 
set forth in Sec. 1.263A-3(d) is not a change in method of accounting 
within the meaning of Sec. 1.446-1(e)(2)(ii) and is therefore not 
subject to the provisions of this section. However, a change from the 
simplified resale method set forth in former Sec. 1.263A-1T(d)(4) to 
the simplified resale method set forth in Sec. 1.263A-3(d) is a change 
in method of accounting within the meaning of Sec. 1.446-1(e)(2)(ii) 
and is subject to the provisions of this section.
    (b) Rules applicable to a change in method of accounting--(1) 
General rules. All changes in method of accounting for costs subject to 
section 263A are subject to the rules and procedures provided by the 
Code, regulations, and administrative procedures applicable to such 
changes. The Internal Revenue Service has issued specific revenue 
procedures that govern certain accounting method changes for costs 
subject to section 263A. Where a specific revenue procedure is not 
applicable, changes in method of accounting for costs subject to section 
263A are subject to the same rules and procedures that govern other 
accounting method changes. See Rev. Proc. 97-27 (1997-21 I.R.B. 10) and 
Sec. 601.601(d)(2) of this chapter.
    (2) Special rules--(i) Ordering rules when multiple changes in 
method of accounting occur in the year of change--(A) In general. A 
change in method of accounting for costs subject to section 263A is 
generally deemed to occur (including the computation of the adjustment 
under section 481(a)) before any other change in method of accounting is 
deemed to occur for that same taxable year.
    (B) Exceptions to the general ordering rule--(1) Change from the 
LIFO inventory method. In the case of a taxpayer that is discontinuing 
its use of the LIFO inventory method in the same taxable year it is 
changing its method of accounting for costs subject to section 263A, the 
change from the LIFO method may be made before the change in method of 
accounting (and the computation of the corresponding adjustment under 
section 481 (a)) under section 263A is made.
    (2) Change from the specific goods LIFO inventory method. In the 
case of a taxpayer that is changing from the specific goods LIFO 
inventory method to the dollar-value LIFO inventory method in the same 
taxable year it is changing its method of accounting for costs subject 
to section 263A, the change from the specific goods LIFO inventory 
method may be made before the change in method of accounting under 
section 263A is made.
    (3) Change in overall method of accounting. In the case of a 
taxpayer that is changing its overall method of accounting from the cash 
receipts and disbursements method to an accrual method in the same 
taxable year it is changing its method of accounting for costs subject 
to section 263A, the taxpayer must change to an accrual method for 
capitalizable costs (see Sec. 1.263A-1(c)(2)(ii)) before the change in 
method of accounting (and the computation of

[[Page 691]]

the corresponding adjustment under section 481(a)) under section 263A is 
made.
    (4) Change in method of accounting for depreciation. In the case of 
a taxpayer that is changing its method of accounting for depreciation in 
the same taxable year it is changing its method of accounting for costs 
subject to section 263A and any portion of the depreciation is subject 
to section 263A, the change in method of accounting for depreciation 
must be made before the change in method of accounting (and the 
computation of the corresponding adjustment under section 481(a)) under 
section 263A is made.
    (ii) Adjustment required by section 481(a). In the case of any 
taxpayer required or permitted to change its method of accounting for 
any taxable year under section 263A and the regulations thereunder, the 
change will be treated as initiated by the taxpayer for purposes of the 
adjustment required by section 481(a). The taxpayer must take the net 
section 481(a) adjustment into account over the section 481(a) 
adjustment period as determined under the applicable administrative 
procedures issued under Sec. 1.446-1(e)(3)(ii) for obtaining the 
Commissioner's consent to a change in accounting method (for example, 
see Rev. Proc. 2002-9 (2002-1 C.B. 327) and Rev. Proc. 97-27 (1997-1 
C.B. 680) (also see Sec. 601.601(d)(2) of this chapter)). This 
paragraph applies to taxable years ending on or after June 16, 2004.
    (iii) Base year--(A) Need for a new base year. Certain dollar-value 
LIFO taxpayers (whether using double extension or link-chain) must 
establish a new base year when they revalue their inventories under 
section 263A.
    (1) Facts and circumstances revaluation method used. A dollar-value 
LIFO taxpayer that uses the facts and circumstances revaluation method 
is permitted, but not required, to establish a new base year.
    (2) 3-year average method used--(i) Simplified method not used. A 
dollar-value LIFO taxpayer using the 3-year average method but not the 
simplified production method or the simplified resale method to revalue 
its inventory is required to establish a new base year.
    (ii) Simplified method used. A dollar-value LIFO taxpayer using the 
3-year average method and either the simplified production method or the 
simplified resale method to revalue its inventory is permitted, but not 
required, to establish a new base year.
    (B) Computing a new base year. For purposes of determining future 
indexes, the year of change becomes the new base year (that is, the 
index at the beginning of the year of change generally must be 1.00) and 
all costs are restated in new base year costs for purposes of extending 
such costs in future years. However, when a new base year is 
established, costs associated with old layers retain their separate 
identity within the base year, with such layers being restated in terms 
of the new base year index. For example, for purposes of determining 
whether a particular layer has been invaded, each layer must retain its 
separate identity. Thus, if a decrement in an inventory pool occurs, 
layers accumulated in more recent years must be viewed as invaded first, 
in order of priority.
    (c) Inventory--(1) Need for adjustments. When a taxpayer changes its 
method of accounting for costs subject to section 263A, the taxpayer 
generally must, in computing its taxable income for the year of change, 
take into account the adjustments required by section 481(a). The 
adjustments required by section 481(a) relate to revaluations of 
inventory property, whether the taxpayer produces the inventory or 
acquires it for resale. See paragraph (d) of this section in regard to 
the adjustments required by section 481(a) that relate to non-inventory 
property.
    (2) Revaluing beginning inventory--(i) In general. If a taxpayer 
changes its method of accounting for costs subject to section 263A, the 
taxpayer must revalue the items or costs included in its beginning 
inventory in the year of change as if the new method (that is, the 
method to which the taxpayer is changing) had been in effect during all 
prior years. In revaluing inventory costs under this procedure, all of 
the capitalization provisions of section 263A and the regulations 
thereunder apply to all inventory costs accumulated in prior years. The 
necessity to revalue beginning inventory as if these capitalization 
rules had been in effect

[[Page 692]]

for all prior years includes, for example, the revaluation of costs or 
layers incurred in taxable years preceding the transition period to the 
full absorption method of inventory costing as described in Sec. 1.471-
11(e), regardless of whether a taxpayer employed a cut-off method under 
those regulations. The difference between the inventory as originally 
valued using the former method (that is, the method from which the 
taxpayer is changing) and the inventory as revalued using the new method 
is equal to the amount of the adjustment required under section 481(a).
    (ii) Methods to revalue inventory. There are three methods available 
to revalue inventory. The first method, the facts and circumstances 
revaluation method, may be used by all taxpayers. Under this method, a 
taxpayer determines the direct and indirect costs that must be assigned 
to each item of inventory based on all the facts and circumstances. This 
method is described in paragraph (c)(2)(iii) of this section. The second 
method, the weighted average method, is available only in certain 
situations to taxpayers using the FIFO inventory method or the specific 
goods LIFO inventory method. This method is described in paragraph 
(c)(2)(iv) of this section. The third method, the 3-year average method, 
is available to all taxpayers using the dollar-value LIFO inventory 
method of accounting. This method is described in paragraph (c)(2)(v) of 
this section. The weighted average method and the 3-year average method 
revalue inventory through processes of estimation and extrapolation, 
rather than based on the facts and circumstances of a particular year's 
data. All three methods are available regardless of whether the taxpayer 
elects to use a simplified method to capitalize costs under section 
263A.
    (iii) Facts and circumstances revaluation method--(A) In general. 
Under the facts and circumstances revaluation method, a taxpayer 
generally is required to revalue inventories by applying the 
capitalization rules of section 263A and the regulations thereunder to 
the production and resale activities of the taxpayer, with the same 
degree of specificity as required of inventory manufacturers under the 
law immediately prior to the effective date of the Tax Reform Act of 
1986 (Pub. L. 99-514, 100 Stat. 2085, 1986-3 C.B. (Vol. 1)). Thus, for 
example, with respect to any prior year that is relevant in determining 
the total amount of the revalued balance as of the beginning of the year 
of change, the taxpayer must analyze the production and resale data for 
that particular year and apply the rules and principles of section 263A 
and the regulations thereunder to determine the appropriate revalued 
inventory costs. However, under the facts and circumstances revaluation 
method, a taxpayer may utilize reasonable estimates and procedures in 
valuing inventory costs if--
    (1) The taxpayer lacks, and is not able to reconstruct from its 
books and records, actual financial and accounting data which is 
required to apply the capitalization rules of section 263A and the 
regulations thereunder to the relevant facts and circumstances 
surrounding a particular item of inventory or cost; and
    (2) The total amounts of costs for which reasonable estimates and 
procedures are employed are not significant in comparison to the total 
restated value (including costs previously capitalized under the 
taxpayer's former method) of the items or costs for the period in 
question.
    (B) Exception. A taxpayer that is not able to comply with the 
requirement of paragraph (c)(2)(iii)(A)(2) of this section because of 
the existence of a significant amount of costs that would require the 
use of estimates and procedures must revalue its inventories under the 
procedures provided in paragraph (c)(2) (iv) or (v) of this section.
    (C) Estimates and procedures allowed. The estimates and procedures 
of this paragraph (c)(2)(iii) include--
    (1) The use of available information from more recent years to 
estimate the amount and nature of inventory costs applicable to earlier 
years; and
    (2) The use of available information with respect to comparable 
items of inventory produced or acquired during the same year in order to 
estimate the costs associated with other items of inventory.

[[Page 693]]

    (D) Use by dollar-value LIFO taxpayers. Generally, a dollar-value 
LIFO taxpayer must recompute its LIFO inventory for each taxable year 
that the LIFO inventory method was used.
    (E) Examples. The provisions of this paragraph (c)(2)(iii) are 
illustrated by the following three examples. The principles set forth in 
these examples are applicable both to production and resale activities 
and the year of change in all three examples is 1997. The examples read 
as follows:

    Example 1. Taxpayer X lacks information for the years 1993 and 
earlier, regarding the amount of costs incurred in transporting finished 
goods from X's factory to X's warehouse and in storing those goods at 
the warehouse until their sale to customers. X determines that, for 1994 
and subsequent years, these transportation and storage costs constitute 
4 percent of the total costs of comparable goods under X's method of 
accounting for such years. Under this paragraph (c)(2)(iii), X may 
assume that transportation and storage costs for the years 1993 and 
earlier constitute 4 percent of the total costs of such goods.
    Example 2. Assume the same facts as in Example 1, except that for 
the year 1993 and earlier, X used a different method of accounting for 
inventory costs whereunder significantly fewer costs were capitalized 
than amounts capitalized in later years. Thus, the application of 
transportation and storage based on a percentage of costs for 1994 and 
later years would not constitute a reasonable estimate for use in 
earlier years. X may use the information from 1994 and later years, if 
appropriate adjustments are made to reflect the differences in inventory 
costs for the applicable years, including, for example--
    (i) Increasing the percentage of costs that are intended to 
represent transportation and storage costs to reflect the aggregate 
differences in capitalized amounts under the two methods of accounting; 
or
    (ii) Taking the absolute dollar amount of transportation and storage 
costs for comparable goods in inventory and applying that amount 
(adjusted for changes in general price levels, where appropriate) to 
goods associated with 1993 and prior periods.
    Example 3. Taxpayer Z lacks information for certain years with 
respect to factory administrative costs, subject to capitalization under 
section 263A and the regulations thereunder, incurred in the production 
of inventory in factory A. Z does have sufficient information to 
determine factory administrative costs with respect to production of 
inventory in factory B, wherein inventory items were produced during the 
same years as factory A. Z may use the information from factory B to 
determine the appropriate amount of factory administrative costs to 
capitalize as inventory costs for comparable items produced in factory A 
during the same years.

    (iv) Weighted average method--(A) In general. A taxpayer using the 
FIFO method or the specific goods LIFO method of accounting for 
inventories may use the weighted average method as provided in this 
paragraph (c)(2)(iv) to estimate the change in the amount of costs that 
must be allocated to inventories for prior years. The weighted average 
method under this paragraph (c)(2)(iv) is only available to a taxpayer 
that lacks sufficient data to revalue its inventory costs under the 
facts and circumstances revaluation method provided for in paragraph 
(c)(2)(iii) of this section. Moreover, a taxpayer that qualifies for the 
use of the weighted average method under this paragraph (c)(2)(iv) must 
utilize such method only with respect to items or costs for which it 
lacks sufficient information to revalue under the facts and 
circumstances revaluation method. Particular items or costs must be 
revalued under the facts and circumstances revaluation method if 
sufficient information exists to make such a revaluation. If a taxpayer 
lacks sufficient information to otherwise apply the weighted average 
method under this paragraph (c)(2)(iv) (for example, the taxpayer is 
unable to revalue the costs of any of its items in inventory due to a 
lack of information), then the taxpayer must use reasonable estimates 
and procedures, as described in the facts and circumstances revaluation 
method, to whatever extent is necessary to allow the taxpayer to apply 
the weighted average method.
    (B) Weighted average method for FIFO taxpayers--(1) In general. This 
paragraph (c)(2)(iv)(B) sets forth the mechanics of the weighted average 
method as applicable to FIFO taxpayers. Under the weighted average 
method, an item in ending inventory for which sufficient data is not 
available for revaluation under section 263A and the regulations 
thereunder must be revalued by using the weighted average percentage 
increase or decrease with respect to such item for the earliest 
subsequent taxable year for which sufficient data is available. With 
respect to an item

[[Page 694]]

for which no subsequent data exists, such item must be revalued by using 
the weighted average percentage increase or decrease with respect to all 
reasonably comparable items in the taxpayer's inventory for the same 
year or the earliest subsequent taxable year for which sufficient data 
is available.
    (2) Example. The provisions of this paragraph (c)(2)(iv)(B) are 
illustrated by the following example. The principles set forth in this 
example are applicable both to production and resale activities and the 
year of change in the example is 1997. The example reads as follows:

    Example. Taxpayer A manufactures bolts and uses the FIFO method to 
identify inventories. Under A's former method, A did not capitalize all 
of the costs required to be capitalized under section 263A. A maintains 
inventories of bolts, two types of which it no longer produces. Bolt A 
was last produced in 1994. The revaluation of the costs of Bolt A under 
this section for bolts produced in 1994 results in a 20 percent increase 
of the costs of Bolt A. A portion of the inventory of Bolt A, however, 
is attributable to 1993. A does not have sufficient data for revaluation 
of the 1993 cost for Bolt A. With respect to Bolt A, A may apply the 20 
percent increase determined for 1994 to the 1993 production as an 
acceptable estimate. Bolt B was last produced in 1992 and no data exists 
that would allow revaluation of the inventory cost of Bolt B. The 
inventories of all other bolts for which information is available are 
attributable to 1994 and 1995. Revaluation of the costs of these other 
bolts using available data results in an average increase in inventory 
costs of 15 percent for 1994 production. With respect to Bolt B, the 
overall 15 percent increase for A's inventory for 1994 may be used in 
revaluing the cost of Bolt B.

    (C) Weighted average method for specific goods LIFO taxpayers--(1) 
In general. This paragraph (c)(2)(iv)(C) sets forth the mechanics of the 
weighted average method as applicable to LIFO taxpayers using the 
specific goods method of valuing inventories. Under the weighted average 
method, the inventory layers with respect to an item for which data is 
available are revalued under this section and the increase or decrease 
in amount for each layer is expressed as a percentage of change from the 
cost in the layer as originally valued. A weighted average of the 
percentage of change for all layers for each type of good is computed 
and applied to all earlier layers for each type of good that lack 
sufficient data to allow for revaluation. In the case of earlier layers 
for which sufficient data exists, such layers are to be revalued using 
actual data. In cases where sufficient data is not available to make a 
weighted average estimate with respect to a particular item of 
inventory, a weighted average increase or decrease is to be determined 
using all other inventory items revalued by the taxpayer in the same 
specific goods grouping. This percentage increase or decrease is then 
used to revalue the cost of the item for which data is lacking. If the 
taxpayer lacks sufficient data to revalue any of the inventory items 
contained in a specific goods grouping, then the weighted average 
increase or decrease of substantially similar items (as determined by 
principles similar to the rules applicable to dollar-value LIFO 
taxpayers in Sec. 1.472-8(b)(3)) must be applied in the revaluation of 
the items in such grouping. If insufficient data exists with respect to 
all the items in a specific goods grouping and to all items that are 
substantially similar (or such items do not exist), then the weighted 
average for all revalued items in the taxpayer's inventory must be 
applied in revaluing items for which data is lacking.
    (2) Example. The provisions of this paragraph (c)(2)(iv)(C) are 
illustrated by the following example. The principles set forth in this 
example are applicable both to production and resale activities and the 
year of change in the example is 1997. The example reads as follows:

    Example. (i) Taxpayer M is a manufacturer that produces two 
different parts. Under M's former method, M did not capitalize all of 
the costs required to be capitalized under section 263A. Work-in-process 
inventory is recorded in terms of equivalent units of finished goods. 
M's records show the following at the end of 1996 under the specific 
goods LIFO inventory method:

[[Page 695]]



----------------------------------------------------------------------------------------------------------------
                                                                                                     Carrying
                     LIFO Product and layer                           Number           Cost           values
----------------------------------------------------------------------------------------------------------------
Product 1:
    1993........................................................             150           $5.00            $750
    1994........................................................             100            6.00             600
    1995........................................................             100            6.50             650
    1996........................................................              50            7.00             350
                                                                 -----------------------------------------------
                                                                                                          $2,350
Product 2:
    1993........................................................             200           $4.00            $800
    1994........................................................             200            4.50             900
    1995........................................................             100            5.00             500
    1996........................................................             100            6.00             600
                                                                 -----------------------------------------------
                                                                                                           2,800
                                                                 ===============================================
        Total carrying value of Products 1 and 2 under M's former method............................
----------------------------------------------------------------------------------------------------------------

    (ii) M has sufficient data to revalue the unit costs of Product 
1 using its new method for 1994, 1995 and 1996. These costs 
are: $7.00 in 1994, $7.75 in 1995, and $9.00 in 1996. This data for 
Product 1 results in a weighted average percentage change of 
20.31 percent ((100x($7.00-$6.00))+(100x($7.75-$6.50))+(50x ($9.00-
$7.00)) divided by (100x$6.00) +(100x$6.50) + (50x$7.00)]. M has 
sufficient data to revalue the unit costs of Product 2 only in 
1995 and 1996. These costs are: $6.00 in 1995 and $7.00 in 1996. This 
data for Product 2 results in a weighted average percentage 
change of 18.18 percent [(100x($6.00-$5.00))+(100x($7.00-$6.00)) divided 
by (100x$5.00)+(100x$6.00)].
    (iii) M can estimate its revalued costs for Product 1 for 
1993 by applying the weighted average increase computed for Product 
1 (20.31 percent) to the unit costs originally carried on M's 
records for 1993 under M's former method. The estimated revalued unit 
cost of Product 1 would be $6.02 ($5.00x1.2031). M estimates 
its revalued costs for Product 2 for 1993 and 1994 in a similar 
fashion. M applies the weighted average increase determined for Product 
2 (18.18 percent) to the unit costs of $4.00 and $4.50 for 1993 
and 1994 respectively. The revalued unit costs of Product 2 are 
$4.73 for 1993 ($4.00x1.1818) and $5.32 for 1994 ($4.50x1.1818).
    (iv) M's inventory would be revalued as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                     Carrying
                     LIFO product and layer                           Number           Cost           values
----------------------------------------------------------------------------------------------------------------
Product 1:
    1993........................................................             150           $6.02            $903
    1994........................................................             100            7.00             700
    1995........................................................             100            7.75             775
    1996........................................................              50            9.00             450
                                                                 -----------------------------------------------
                                                                                                          $2,828
Product 2:
    1993........................................................             200            4.73             946
    1994........................................................             200            5.32           1,064
    1995........................................................             100            6.00             600
    1996........................................................             100            7.00             700
                                                                 -----------------------------------------------
                                                                                                           3,310
        Total value of Products 1 and 2 as      ..............  ..............           6,138
         revalued under M's new method..........................
                                                                                                 ===============
        Total amount of adjustment required under section 481(a)  ..............  ..............             988
         [$6,138-$5,150]........................................
----------------------------------------------------------------------------------------------------------------

    (D) Adjustments to inventory costs from prior years. For special 
rules applicable when a revaluation using the weighted average method 
includes costs not incurred in prior years, see paragraph (c)(2)(v)(E) 
of this section.
    (v) 3-year average method--(A) In general. A taxpayer using the 
dollar-value LIFO method of accounting for inventories may revalue all 
existing LIFO layers of a trade or business based on the 3-year average 
method as provided

[[Page 696]]

in this paragraph (c)(2)(v). The 3-year average method is based on the 
average percentage change (the 3-year revaluation factor) in the current 
costs of inventory for each LIFO pool based on the three most recent 
taxable years for which the taxpayer has sufficient information 
(typically, the three most recent taxable years of such trade or 
business). The 3-year revaluation factor is applied to all layers for 
each pool in beginning inventory in the year of change. The 3-year 
average method is available to any dollar-value taxpayer that complies 
with the requirements of this paragraph (c)(2)(v) regardless of whether 
such taxpayer lacks sufficient data to revalue its inventory costs under 
the facts and circumstances revaluation method prescribed in paragraph 
(c)(2)(iii) of this section. The 3-year average method must be applied 
with respect to all inventory in a taxpayer's trade or business. A 
taxpayer is not permitted to apply the method for the revaluation of 
some, but not all, inventory costs on the basis of pools, business 
units, or other measures of inventory amounts that do not constitute a 
separate trade or business. Generally, a taxpayer revaluing its 
inventory using the 3-year average method must establish a new base 
year. See, paragraph (b)(2)(iii)(A)(2)(i) of this section. However, a 
dollar-value LIFO taxpayer using the 3-year average method and either 
the simplified production method or the simplified resale method to 
revalue its inventory is permitted, but not required, to establish a new 
base year. See, paragraph (b)(2)(iii)(A)(2)(ii) of this section. If a 
taxpayer lacks sufficient information to otherwise apply the 3-year 
average method under this paragraph (c)(2)(v) (for example, the taxpayer 
is unable to revalue the costs of any of its LIFO pools for three years 
due to a lack of information), then the taxpayer must use reasonable 
estimates and procedures, as described in the facts and circumstances 
revaluation method under paragraph (c)(2)(iii) of this section, to 
whatever extent is necessary to allow the taxpayer to apply the 3-year 
average method.
    (B) Consecutive year requirement. Under the 3-year average method, 
if sufficient data is available to calculate the revaluation factor for 
more than three years, the taxpayer may use data from such additional 
years in determining the average percentage increase or decrease only if 
the additional years are consecutive to and prior to the year of change. 
The requirement under the preceding sentence to use consecutive years is 
applicable under this method regardless of whether any inventory costs 
in beginning inventory as of the year of change are viewed as incurred 
in, or attributable to, those consecutive years under the LIFO inventory 
method. Thus, the requirement to use data from consecutive years may 
result in using information from a year in which no LIFO increment 
occurred. For example, if a taxpayer is changing its method of 
accounting in 1997 and has sufficient data to revalue its inventory for 
the years 1991 through 1996, the taxpayer may calculate the revaluation 
factor using all six years. If, however, the taxpayer has sufficient 
data to revalue its inventory for the years 1990 through 1992, and 1994 
through 1996, only the three years consecutive to the year of change, 
that is, 1994 through 1996, may be used in determining the revaluation 
factor. Similarly, for example, a taxpayer with LIFO increments in 1995, 
1993, and 1992 may not calculate the revaluation factor based on the 
data from those years alone, but instead must use the data from 
consecutive years for which the taxpayer has information.
    (C) Example. The provisions of this paragraph (c)(2)(v) are 
illustrated by the following example. The principles set forth in this 
example are applicable both to production and resale activities and the 
year of change in the example is 1997. The example reads as follows:

    Example. (i) Taxpayer G, a calendar year taxpayer, is a reseller 
that is required to change its method of accounting under section 263A. 
G will not use either the simplified production method or the simplified 
resale method. G adopted the dollar-value LIFO inventory method in 1991, 
using a single pool and the double extension method. G's beginning LIFO 
inventory as of January 1, 1997, computed using its former method, for 
the year of change is as follows:

[[Page 697]]



----------------------------------------------------------------------------------------------------------------
                                                                     Base year                     LIFO carrying
                                                                       costs           Index           value
----------------------------------------------------------------------------------------------------------------
Base layer                                                               $14,000            1.00         $14,000
1991 layer......................................................           4,000            1.20           4,800
1992 layer......................................................           5,000            1.30           6,500
1993 layer......................................................           2,000            1.35           2,700
1994 layer......................................................               0            1.40               0
1995 layer......................................................           4,000            1.50           6,000
1996 layer......................................................           5,000            1.60           8,000
                                                                 -----------------------------------------------
    Total.......................................................          34,000  ..............          42,000
----------------------------------------------------------------------------------------------------------------

    (ii) G is able to recompute total inventoriable costs incurred under 
its new method for the three preceding taxable years as follows:

----------------------------------------------------------------------------------------------------------------
                                                                   Current cost
                                                                    as recorded    Current cost     Percentage
                                                                      (former       as adjusted       change
                                                                      method)      (new method)
----------------------------------------------------------------------------------------------------------------
1994............................................................         $35,000         $45,150             .29
1995............................................................          43,500          54,375             .25
1996............................................................          54,400          70,720             .30
                                                                 -----------------------------------------------
    Total.......................................................         132,900         170,245             .28
----------------------------------------------------------------------------------------------------------------

    (iii) Applying the average revaluation factor of .28 to each layer, 
G's inventory is restated as follows:

----------------------------------------------------------------------------------------------------------------
                                                                   Restated base                   Restated LIFO
                                                                    year costs         Index      carrying value
----------------------------------------------------------------------------------------------------------------
Base layer......................................................         $17,920            1.00         $17,920
1991 layer......................................................           5,120            1.20           6,144
1992 layer......................................................           6,400            1.30           8,320
1993 layer......................................................           2,560            1.35           3,456
1994 layer......................................................               0            1.40               0
1995 layer......................................................           5,120            1.50           7,680
1996 layer......................................................           6,400            1.60          10,240
                                                                 -----------------------------------------------
    Total.......................................................          43,520  ..............          53,760
----------------------------------------------------------------------------------------------------------------

    (iv) The adjustment required by section 481(a) is $11,760. This 
amount may be computed by multiplying the average percentage of .28 by 
the LIFO carrying value of G's inventory valued using its former method 
($42,000). Alternatively, the adjustment required by section 481(a) may 
be computed by the difference between--
    (A) The revalued costs of the taxpayer's inventory under its new 
method ($53,760), and
    (B) The costs of the taxpayer's inventory using its former method 
($42,000).
    (v) In addition, the inventory as of the first day of the year of 
change (January 1, 1997) becomes the new base year cost for purposes of 
determining the LIFO index in future years. See, paragraphs 
(b)(2)(iii)(A)(2)(i) and (b)(2)(iii)(B) of this section. This requires 
that layers in years prior to the base year be restated in terms of the 
new base year index. The current year cost of G's inventory, as 
adjusted, is $70,720. Such cost must be apportioned to each layer in 
proportion to the restated base year cost of that layer to total 
restated base year costs ($43,520), as follows:

----------------------------------------------------------------------------------------------------------------
                                                                   Restated base                   Restated LIFO
                                                                    year costs    Restated index  carrying value
----------------------------------------------------------------------------------------------------------------
Old base layer..................................................         $29,120            .615         $17,920
1991 layer......................................................           8,320            .738           6,144
1992 layer......................................................          10,400             .80           8,320
1993 layer......................................................           4,160            .831           3,456
1994 layer......................................................               0  ..............               0
1995 layer......................................................           8,320            .923           7,680

[[Page 698]]

 
1996 layer......................................................          10,400            .985          10,240
                                                                 -----------------------------------------------
        Total...................................................          70,720  ..............          53,760
----------------------------------------------------------------------------------------------------------------

    (D) Short taxable years. A short taxable year is treated as a full 
12 months.
    (E) Adjustments to inventory costs from prior years--(1) General 
rule. (i) The use of the revaluation factor, based on current costs, to 
estimate the revaluation of prior inventory layers under the 3-year 
average method, as described in paragraph (c)(2)(v) of this section, may 
result in an allocation of costs that include amounts attributable to 
costs not incurred during the year in which the layer arose. To the 
extent a taxpayer can demonstrate that costs that contributed to the 
determination of the revaluation factor could not have affected a prior 
year, the revaluation factor as applied to that year may be adjusted 
under the restatement adjustment procedure, as described in paragraph 
(c)(2)(v)(F) of this section. The determination that a cost could not 
have affected a prior year must be made by a taxpayer only upon showing 
that the type of cost incurred during the years used to calculate the 
revaluation factor (revaluation years) was not present during such prior 
year. An item of cost will not be eligible for the restatement 
adjustment procedure simply because the cost varies in amount from year 
to year or the same type of cost is described or referred to by a 
different name from year to year. Thus, the restatement adjustment 
procedure allowed under paragraph (c)(2)(v)(F) of this section is not 
available in a prior year with respect to a particular cost if the same 
type of cost was incurred both in the revaluation years and in such 
prior year, although the amount of such cost and the name or description 
thereof may vary.
    (ii) The provisions of this paragraph (c)(2)(v)(E) are also 
applicable to taxpayers using the weighted average method in revaluing 
inventories under paragraph (c)(2)(iv) of this section. Thus, to the 
extent a taxpayer can demonstrate that costs that contributed to the 
determination of the restatement of a particular year or item could not 
have affected a prior year or item, the taxpayer may adjust the 
revaluation of that prior year or item accordingly under the weighted 
average method. All the requirements and definitions, however, 
applicable to the restatement adjustment procedure under this paragraph 
(c)(2)(v)(E) fully apply to a taxpayer using the weighted average method 
to revalue inventories.
    (2) Examples of costs eligible for restatement adjustment procedure. 
The provisions of this paragraph (c)(2)(v)(E) are illustrated by the 
following four examples. The principles set forth in these examples are 
applicable both to production and resale activities and the year of 
change in the four examples is 1997. The examples read as follows:

    Example 1. Taxpayer A is a reseller that introduced a defined 
benefit pension plan in 1994, and made the plan available to personnel 
whose labor costs were (directly or indirectly) properly allocable to 
resale activities. A determines the revaluation factor based on data 
available for the years 1994 through 1996, for which the pension plan 
was in existence. Based on these facts, the costs of the pension plan in 
the revaluation years are eligible for the restatement adjustment 
procedure for years prior to 1994.
    Example 2. Assume the same facts as in Example 1, except that a 
defined contribution plan was available, during prior years, to 
personnel whose labor costs were properly allocable to resale 
activities. The defined contribution plan was terminated before the 
introduction of the defined benefit plan in 1994. Based on these facts, 
the costs of the defined benefit pension plan in the revaluation years 
are not eligible for the restatement adjustment procedure with respect 
to years for which the defined contribution plan existed.
    Example 3. Taxpayer C is a manufacturer that established a security 
department in 1995 to patrol and safeguard its production and warehouse 
areas used in C's trade or business. Prior to 1995, C had not been 
required to utilize security personnel in its trade or business; C 
established the security department in 1995 in response to increasing 
vandalism and theft at its plant locations. Based on these facts, the 
costs of the security department are eligible for the restatement 
adjustment procedure for years prior to 1995.

[[Page 699]]

    Example 4. Taxpayer D is a reseller that established a payroll 
department in 1995 to process the company's weekly payroll. In the years 
1991 through 1994, D engaged the services of an outside vendor to 
process the company's payroll. Prior to 1991, D's payroll processing was 
done by D's accounting department, which was responsible for payroll 
processing as well as for other accounting functions. Based on these 
facts, the costs of the payroll department are not eligible for the 
restatement adjustment procedure. D was incurring the same type of costs 
in earlier years as D was incurring in the payroll department in 1995 
and subsequent years, although these costs were designated by a 
different name or description.

    (F) Restatement adjustment procedure--(1) In general. (i) This 
paragraph (c)(2)(v)(F) provides a restatement adjustment procedure 
whereunder a taxpayer may adjust the restatement of inventory costs in 
prior taxable years in order to produce a different restated value than 
the value that would otherwise occur through application of the 
revaluation factor to such prior taxable years.
    (ii) Under the restatement adjustment procedure as applied to a 
particular prior year, a taxpayer must determine the particular items of 
cost that are eligible for the restatement adjustment with respect to 
such prior year. The taxpayer must then recompute, using reasonable 
estimates and procedures, the total inventoriable costs that would have 
been incurred for each revaluation year under the taxpayer's former 
method and the taxpayer's new method by making appropriate adjustments 
in the data for such revaluation year to reflect the particular costs 
eligible for adjustment.
    (iii) The taxpayer must then compute the total percentage change 
with respect to each revaluation year, using the revised estimates of 
total inventoriable costs for such year as described in paragraph 
(c)(2)(v)(F)(1)(ii) of this section. The percentage change must be 
determined by calculating the ratio of the revised total of the 
inventoriable costs for such revaluation year under the taxpayer's new 
method to the revised total of the inventoriable costs for such 
revaluation year under the taxpayer's former method.
    (iv) An average of the resulting percentage change for all 
revaluation years is then calculated, and the resulting average is 
applied to the prior year in issue.
    (2) Examples of restatement adjustment procedure. The provisions of 
this paragraph (c)(2)(v)(F) are illustrated by the following two 
examples. The principles set forth in these examples are applicable both 
to production and resale activities and the year of change in the two 
examples is 1997. The examples read as follows:

    Example 1. Taxpayer A is a reseller that is eligible to make a 
restatement adjustment by reason of the costs of a defined benefit 
pension plan that was introduced in 1994, during the revaluation period. 
The revaluation factor, before adjustment of data to reflect the pension 
costs, is as provided in the example in paragraph (c)(2)(v)(C) of this 
section. Thus, for example, with respect to the year 1994, the total 
inventoriable costs under A's former method is $35,000, the total 
inventoriable costs under A's new method is $45,150, and the percentage 
change is .29. Under the method of accounting used by A during 1994 (the 
former method), none of the pension costs were included as inventoriable 
costs. Thus, under the restatement adjustment procedure, the total 
inventoriable cost under A's former method would remain at $35,000 if 
the pension plan had not been in existence. Similarly, A determines that 
the total inventoriable costs for 1994 under A's new method, if the 
pension plan had not been in existence, would have been $42,000. The 
restatement adjustment for 1994 determined under this paragraph 
(c)(2)(v)(F) would then be equal to .20 ([$42,000-$35,000]/$35,000). A 
would make similar calculations with respect to 1995 and 1996. The 
average of such amounts for each of the three years in the revaluation 
period would then be determined as in the example in paragraph 
(c)(2)(v)(C) of this section. Such average would be used to revalue cost 
layers for years for which the pension plan was not in existence. Such 
revalued layers would then be viewed as restated in compliance with the 
requirements of this paragraph. With respect to cost layers incurred 
during years for which the pension plan was in existence, no adjustment 
of the revaluation factor would occur.
    Example 2. Assume the same facts as in Example 1, except that a 
portion of the pension costs were included as inventoriable costs under 
the method used by A during 1994 (the former method). Under the 
restatement adjustment procedure, A determines that the total 
inventoriable costs for 1994 under the former method, if the pension 
plan had not been in existence, would have been $34,000. Similarly, A 
determines that the total inventoriable costs for 1994 under A's new 
method, if the pension plan had not been in

[[Page 700]]

existence, would have been $42,000. The restatement adjustment for 1994 
determined under this paragraph (c)(2)(v)(F) would then be equal to .24 
([$42,000-$34,000]/$34,000). A would make similar calculations with 
respect to 1995 and 1996. The average of such amounts for each of the 
three years in the revaluation period would then be determined as in the 
example in paragraph (c)(2)(v)(C) of this section. Such average would be 
used to revalue cost layers for years for which the pension plan was not 
in existence.

    (3) Intercompany items--(i) Revaluing intercompany transactions. 
Pursuant to any change in method of accounting for costs subject to 
section 263A, taxpayers are required to revalue the amount of any 
intercompany item resulting from the sale or exchange of inventory 
property in an intercompany transaction to an amount equal to the 
intercompany item that would have resulted, had the cost of goods sold 
for that inventory property been determined under the taxpayer's new 
method. The requirement of the preceding sentence applies with respect 
to both inventory produced by a taxpayer and inventory acquired by the 
taxpayer for resale. In addition, the requirements of this paragraph 
(c)(3) apply only to any intercompany item of the taxpayer as of the 
beginning of the year of change in method of accounting. See Sec. 
1.1502-13(b)(2)(ii). A taxpayer must revalue the amount of any 
intercompany item only if the inventory property sold in the 
intercompany transaction is held as inventory by a buying member as of 
the date the taxpayer changes its method of accounting under section 
263A. Corresponding changes to the adjustment required under section 
481(a) must be made with respect to any adjustment of the intercompany 
item required under this paragraph (c)(3). Moreover, the requirements of 
this paragraph (c)(3) apply regardless of whether the taxpayer has any 
items in beginning inventory as of the year of change in method of 
accounting. See Sec. 1.1502-13 for the definition of intercompany 
transaction.
    (ii) Example. The provisions of this paragraph (c)(3) are 
illustrated by the following example. The principles set forth in this 
example are applicable both to production and resale activities and the 
year of change in the example is 1997. The example reads as follows:

    Example. (i) Assume that S, a member of a consolidated group filing 
its federal income tax return on a calendar year, manufactures and sells 
inventory property to B, a member of the same consolidated group, in 
1996. The sale between S and B is an intercompany transaction as defined 
under Sec. 1.1502-13(b)(1). The gain from the intercompany transaction 
is an intercompany item to S under Sec. 1.1502-13(b)(2). As of the 
beginning of the year of change in method of accounting (January 1, 
1997), the inventory property is still held by B based on the particular 
inventory method of accounting used by B for federal income tax purposes 
(for example, the LIFO or FIFO inventory method). The property was sold 
by S to B in 1996 for $150; the cost of goods sold with respect to the 
property under the method in effect at the time the inventory was 
produced was $100, resulting in an intercompany item of $50 to S under 
Sec. 1.1502-13. As of January 1, 1997, S still has an intercompany item 
of $50.
    (ii) S is required to revalue the amount of its intercompany item to 
an amount equal to what the intercompany item would have been had the 
cost of goods sold for that inventory property been determined under S's 
new method. Assume that the cost of the inventory under this method 
would have been $110, had the method applied to S's manufacture of the 
property in 1996. Thus, S is required to revalue the amount of its 
intercompany item to $40 (that is, $150 less $110), necessitating a 
negative adjustment to the intercompany item of $10. Moreover, S is 
required to increase its adjustment under section 481(a) by $10 in order 
to prevent the omission of such amount by virtue of the decrease in the 
intercompany item.

    (iii) Availability of revaluation methods. In revaluing the amount 
of any intercompany item resulting from the sale or exchange of 
inventory property in an intercompany transaction to an amount equal to 
the intercompany item that would have resulted had the cost of goods 
sold for that inventory property been determined under the taxpayer's 
new method, a taxpayer may use the other methods and procedures 
otherwise properly available to that particular taxpayer in revaluing 
inventory under section 263A and the regulations thereunder, including, 
if appropriate, the various simplified methods provided in section 263A 
and the regulations thereunder and the various procedures described in 
this paragraph (c).
    (4) Anti-abuse rule--(i) In general. Section 263A(i)(1) provides 
that the Secretary shall prescribe such regulations

[[Page 701]]

as may be necessary or appropriate to carry out the purposes of section 
263A, including regulations to prevent the use of related parties, pass-
thru entities, or intermediaries to avoid the application of section 
263A and the regulations thereunder. One way in which the application of 
section 263A and the regulations thereunder would be otherwise avoided 
is through the use of entities described in the preceding sentence in 
such a manner as to effectively avoid the necessity to restate beginning 
inventory balances under the change in method of accounting required or 
permitted under section 263A and the regulations thereunder.
    (ii) Deemed avoidance of this section--(A) Scope. For purposes of 
this paragraph (c), the avoidance of the application of section 263A and 
the regulations thereunder will be deemed to occur if a taxpayer using 
the LIFO method of accounting for inventories, transfers inventory 
property to a related corporation in a transaction described in section 
351, and such transfer occurs:
    (1) On or before the beginning of the transferor's taxable year 
beginning in 1987; and
    (2) After September 18, 1986.
    (B) General rule. Any transaction described in paragraph 
(c)(4)(ii)(A) of this section will be treated in the following manner:
    (1) Notwithstanding any provision to the contrary (for example, 
section 381), the transferee corporation is required to revalue the 
inventories acquired from the transferor under the provisions of this 
paragraph (c) relating to the change in method of accounting and the 
adjustment required by section 481(a), as if the inventories had never 
been transferred and were still in the hands of the transferor; and
    (2) Absent an election as described in paragraph (c)(4)(iii) of this 
section, the transferee must account for the inventories acquired from 
the transferor by treating such inventories as if they were contained in 
the transferee's LIFO layer(s).
    (iii) Election to use transferor's LIFO layers. If a transferee 
described in paragraph (c)(4)(ii) of this section so elects, the 
transferee may account for the inventories acquired from the transferor 
by allocating such inventories to LIFO layers corresponding to the 
layers to which such properties were properly allocated by the 
transferor, prior to their transfer. The transferee must account for 
such inventories for all subsequent periods with reference to such 
layers to which the LIFO costs were allocated. Any such election is to 
be made on a statement attached to the timely filed federal income tax 
return of the transferee for the first taxable year for which section 
263A and the regulations thereunder applies to the transferee.
    (iv) Tax avoidance intent not required. The provisions of paragraph 
(c)(4)(ii) of this section will apply to any transaction described 
therein, without regard to whether such transaction was consummated with 
an intention to avoid federal income taxes.
    (v) Related corporation. For purposes of this paragraph (c)(4), a 
taxpayer is related to a corporation if--
    (A) the relationship between such persons is described in section 
267(b)(1), or
    (B) such persons are engaged in trades or businesses under common 
control (within the meaning of paragraphs (a) and (b) of section 52).
    (d) Non-inventory property--(1) Need for adjustments. A taxpayer 
that changes its method of accounting for costs subject to section 263A 
with respect to non-inventory property must revalue the non-inventory 
property on hand at the beginning of the year of change as set forth in 
paragraph (d)(2) of this section, and compute an adjustment under 
section 481(a). The adjustment under section 481(a) will equal the 
difference between the adjusted basis of the property as revalued using 
the taxpayer's new method and the adjusted basis of the property as 
originally valued using the taxpayer's former method.
    (2) Revaluing property. A taxpayer must revalue its non-inventory 
property as of the beginning of the year of change in method of 
accounting. The facts and circumstances revaluation method of paragraph 
(c)(2)(iii) of this section must be used to revalue this property. In 
revaluing non-inventory property, however, the only additional section 
263A costs that must be taken into account are those additional section 
263A costs incurred after the later

[[Page 702]]

of December 31, 1986, or the date the taxpayer first becomes subject to 
section 263A, in taxable years ending after that date. See Sec. 1.263A-
1(d)(3) for the definition of additional section 263A costs.

[T.D. 8728, 62 FR 42054, Aug. 5, 1997, as amended by T.D. 9131, 69 FR 
33572, June 16, 2004]



Sec. 1.263A-8  Requirement to capitalize interest.

    (a) In general--(1) General rule. Capitalization of interest under 
the avoided cost method described in Sec. 1.263A-9 is required with 
respect to the production of designated property described in paragraph 
(b) of this section.
    (2) Treatment of interest required to be capitalized. In general, 
interest that is capitalized under this section is treated as a cost of 
the designated property and is recovered in accordance with Sec. 
1.263A-1(c)(4). Interest capitalized by reason of assets used to produce 
designated property (within the meaning of Sec. 1.263A-11(d)) is added 
to the basis of the designated property rather than the bases of the 
assets used to produce the designated property. Interest capitalized 
with respect to designated property that includes both components 
subject to an allowance for depreciation or depletion and components not 
subject to an allowance for depreciation or depletion is ratably 
allocated among, and is treated as a cost of, components that are 
subject to an allowance for depreciation or depletion.
    (3) Methods of accounting under section 263A(f). Except as otherwise 
provided, methods of accounting and other computations under Sec. Sec. 
1.263A-8 through 1.263A-15 are applied on a taxpayer, as opposed to a 
separate and distinct trade or business, basis.
    (4) Special definitions--(i) Related person. Except as otherwise 
provided, for purposes of Sec. Sec. 1.263A-8 through 1.263A-15, a 
person is related to a taxpayer if their relationship is described in 
section 267(b) or 707(b).
    (ii) Placed in service. For purposes of Sec. Sec. 1.263A-8 through 
1.263A-15, placed in service has the same meaning as set forth in Sec. 
1.46-3(d).
    (b) Designated property--(1) In general. Except as provided in 
paragraphs (b)(3) and (b)(4) of this section, designated property means 
any property that is produced and that is either:
    (i) Real property; or
    (ii) Tangible personal property (as defined in Sec. 1.263A-2(a)(2)) 
which meets any of the following criteria:
    (A) Property with a class life of 20 years or more under section 168 
(long-lived property), but only if the property is not property 
described in section 1221(l) in the hands of the taxpayer or a related 
person,
    (B) Property with an estimated production period (as defined in 
Sec. 1.263A-12) exceeding 2 years (2-year property), or
    (C) Property with an estimated production period exceeding 1 year 
and an estimated cost of production exceeding $1,000,000 (1-year 
property).
    (2) Special rules--(i) Application of thresholds. The thresholds 
described in paragraphs (b)(l)(ii)(A), (B), and (C) of this section are 
applied separately for each unit of property (as defined in Sec. 
1.263A-10).
    (ii) Relevant activities and costs. For purposes of determining 
whether property is designated property, all activities and costs are 
taken into account if they are performed or incurred by, or for, the 
taxpayer or any related persons and they directly benefit or are 
incurred by reason of the production of the property.
    (iii) Production period and cost of production. For purposes of 
applying the classification thresholds under paragraphs (b)(l)(ii) (B) 
and (C) of this section to a unit of property, the taxpayer is required, 
at the beginning of the production period, to reasonably estimate the 
production period and the total cost of production for the unit of 
property. The taxpayer must maintain contemporaneous written records 
supporting the estimates and classification. If the estimates are 
reasonable based on the facts in existence at the beginning of the 
production period, the taxpayer's classification of the property is not 
modified in subsequent periods, even if the actual length of the 
production period or the actual cost of production differs from the 
estimates. To be considered reasonable, estimates of the production 
period and the total

[[Page 703]]

cost of production must include anticipated expense and time for delay, 
rework, change orders, and technological, design or other problems. To 
the extent that several distinct activities related to the production of 
the property are expected to occur simultaneously, the period during 
which these distinct activities occur is not counted more than once. The 
bases of assets used to produce a unit of property (within the meaning 
of Sec. 1.263A-11(d)) and any interest that would be required to be 
capitalized if a unit of property were designated property are 
disregarded in making estimates of the total cost of production for 
purposes of this paragraph (b)(2)(iii).
    (3) Excluded property. Designated property does not include:
    (i) Timber and evergreen trees that are more than 6 years old when 
severed from the roots, or
    (ii) Property produced by the taxpayer for use by the taxpayer other 
than in a trade or business or an activity conducted for profit.
    (4) De minimis rule--(i) In general. Designated property does not 
include property for which--
    (A) The production period does not exceed 90 days; and
    (B) The total production expenditures do not exceed $1,000,000 
divided by the number of days in the production period.
    (ii) Determination of total production expenditures. For purposes of 
determining whether the condition of paragraph (b)(4)(i)(B) of this 
section is met with respect to property, the cost of land, the adjusted 
basis of property used to produce property, and interest that would be 
capitalized with respect to property if it were designated property are 
excluded from total production expenditures.
    (c) Definition of real property--(1) In general. Real property 
includes land, unsevered natural products of land, buildings, and 
inherently permanent structures. Any interest in real property of a type 
described in this paragraph (c), including fee ownership, co-ownership, 
a leasehold, an option, or a similar interest is real property under 
this section. Real property includes the structural components of both 
buildings and inherently permanent structures, such as walls, 
partitions, doors, wiring, plumbing, central air conditioning and 
heating systems, pipes and ducts, elevators and escalators, and other 
similar property. Tenant improvements to a building that are inherently 
permanent or otherwise classified as real property within the meaning of 
this paragraph (c)(1) are real property under this section. However, 
property produced for sale that is not real property in the hands of the 
taxpayer or a related person, but that may be incorporated into real 
property by an unrelated buyer, is not treated as real property by the 
producing taxpayer (e.g., bricks, nails, paint, and windowpanes).
    (2) Unsevered natural products of land. Unsevered natural products 
of land include growing crops and plants, mines, wells, and other 
natural deposits. Growing crops and plants, however, are real property 
only if the preproductive period of the crop or plant exceeds 2 years.
    (3) Inherently permanent structures. Inherently permanent structures 
include property that is affixed to real property and that will 
ordinarily remain affixed for an indefinite period of time, such as 
swimming pools, roads, bridges, tunnels, paved parking areas and other 
pavements, special foundations, wharves and docks, fences, inherently 
permanent advertising displays, inherently permanent outdoor lighting 
facilities, railroad tracks and signals, telephone poles, power 
generation and transmission facilities, permanently installed 
telecommunications cables, broadcasting towers, oil and gas pipelines, 
derricks and storage equipment, grain storage bins and silos. For 
purposes of this section, affixation to real property may be 
accomplished by weight alone. Property may constitute an inherently 
permanent structure even though it is not classified as a building for 
purposes of former section 48(a)(1)(B) and Sec. 1.48-1. Any property 
not othewise described in this paragraph (c)(3) that constitutes other 
tangible property under the principles of former section 48(a)(1)(B) and 
Sec. 1.48-1(d) is treated for the purposes of this section as an 
inherently permanent structure.

[[Page 704]]

    (4) Machinery--(i) Treatment. A structure that is property in the 
nature of machinery or is essentially an item of machinery or equipment 
is not an inherently permanent structure and is not real property. In 
the case, however, of a building or inherently permanent structure that 
includes property in the nature of machinery as a structural component, 
the property in the nature of machinery is real property.
    (ii) Certain factors not determinative. A structure may be an 
inherently permanent structure, and not property in the nature of 
machinery or essentially an item of machinery, even if the structure is 
necessary to operate or use, supports, or is otherwise associated with, 
machinery.
    (d) Production--(1) Definition of produce. Produce is defined as 
provided in section 263A(g) and Sec. 1.263A-2(a)(1)(i).
    (2) Property produced under a contract--(i) Customer. A taxpayer is 
treated as producing any property that is produced for the taxpayer (the 
customer) by another party (the contractor) under a contract with the 
taxpayer or an intermediary. Property produced under a contract is 
designated property to the customer if it is real property or tangible 
personal property that satisfies the classification thresholds described 
in paragraph (b)(1)(ii) of this section. If property produced under a 
contract will become part of a unit of designated property produced by 
the customer in the customer's hands, the property produced under the 
contract is designated property to the customer.
    (ii) Contractor. Property produced under a contract is designated 
property to the contractor if it is real property, 2-year property, or 
1-year property and the property produced under the contract is not 
excluded by reason of paragraph (d)(2)(v) of this section.
    (iii) Definition of a contract. For purposes of this paragraph 
(d)(2), contract has the same meaning as under Sec. 1.263A-
2(a)(1)(ii)(B)(2).
    (iv) Determination of whether thresholds are satisfied. In the case 
of tangible personal property produced under a contract, the customer 
and the contractor each determine under this paragraph (d)(2), whether 
the property satisfies the classification thresholds described in 
paragraph (b)(1)(ii) of this section. Thus, tangible personal property 
may be designated property with respect to either, or both, the customer 
and the contractor. The provisions of paragraph (b)(2)(iii) of this 
section are modified as set forth in this paragraph (d)(2)(iv) for 
purposes of determining whether tangible personal property produced 
under a contract is 2-year property or 1-year property.
    (A) Customer. In determining a customer's estimated cost of 
production, the customer takes into account costs and payments that are 
reasonably expected to be incurred by the customer, but does not take 
into account costs incurred (or to be incurred) by an unrelated 
contractor. In determining the customer's estimated length of the 
production period, the production period is treated as beginning on the 
earlier of the date the contract is executed or the date that the 
customer's accumulated production expenditures for the unit are at least 
5 percent of the customer's total estimated production expenditures for 
the unit. The customer, however, may elect to treat the production 
period as beginning on the date the sum of the accumulated production 
expenditures of the contractor (or contractors if more than one 
contractor is producing components for the unit of property) and of the 
customer are at least 5 percent of the customer's estimated production 
expenditures for the unit.
    (B) Contractor. In determining a contractor's estimated cost of 
production, the contractor takes into account only the costs that are 
reasonably expected to be incurred by the contractor, without any 
reduction for payments from the customer. In determining the 
contractor's estimated length of the production period, the production 
period is treated as beginning on the date the contractor's accumulated 
production expenditures (without any reduction for payments from the 
customer) are at least 5 percent of the contractor's total estimated 
accumulated production expenditures.
    (v) Exclusion for property subject to long-term contract rules. 
Property described in paragraph (b) of this section is designated 
property with respect to a contractor only if--

[[Page 705]]

    (A) The contract is not a long-term contract (within the meaning of 
section 460(f)); or
    (B) The contract is a home construction contract (within the meaning 
of section 460(e)(6)(A)) with respect to which the requirements of 
section 460(e)(1)(B) (i) and (ii) are not met.
    (3) Improvements to existing property--(i) In general. Any 
improvement to property described in Sec. 1.263(a)-1(b) constitutes the 
production of property. Generally, any improvement to designated 
property constitutes the production of designated property. An 
improvement is not treated as the production of designated property, 
however, if the de minimis exception described in paragraph (b)(4) of 
this section applies to the improvement. In addition, paragraph 
(d)(3)(iii) of this section provides an exception for certain 
improvements to tangible personal property. Incidental maintenance and 
repairs are not treated as improvements under this paragraph (d)(3). See 
Sec. 1.162-4.
    (ii) Real property. The rehabilitation or preservation of a standing 
building, the clearing of raw land prior to sale, and the drilling of an 
oil well are activities constituting improvements to real property and, 
therefore, the production of designated property. Similarly, the 
demolition of a standing building generally constitutes an activity that 
is an improvement to real property and, therefore, the production of 
designated property. See the exceptions, however, in paragraphs (b)(3) 
and (b)(4) of this section.
    (iii) Tangible personal property. If the taxpayer has treated a unit 
of tangible personal property as designated property under this section, 
an improvement to such property constitutes the production of designated 
property regardless of the remaining useful life of the improved 
property (or the improvement) and, except as provided in paragraph 
(b)(4) of this section, regardless of the estimated length of the 
production period or the estimated cost of the improvement. If the 
taxpayer has not treated a unit of tangible personal property as 
designated property under this section, an improvement to such property 
constitutes the production of designated property only if the 
improvement independently meets the classification thresholds described 
in paragraph (b)(1)(ii) of this section.

[T.D. 8584, 59 FR 67198, Dec. 29, 1994; 60 FR 16574, Mar. 31, 1995]



Sec. 1.263A-9  The avoided cost method.

    (a) In general--(1) Description. The avoided cost method described 
in this section must be used to calculate the amount of interest 
required to be capitalized under section 263A(f). Generally, any 
interest that the taxpayer theoretically would have avoided if 
accumulated production expenditures (as defined in Sec. 1.263A-11) had 
been used to repay or reduce the taxpayer's outstanding debt must be 
capitalized under the avoided cost method. The application of the 
avoided cost method does not depend on whether the taxpayer actually 
would have used the amounts expended for production to repay or reduce 
debt. Instead, the avoided cost method is based on the assumption that 
debt of the taxpayer would have been repaid or reduced without regard to 
the taxpayer's subjective intentions or to restrictions (including 
legal, regulatory, contractual, or other restrictions) against repayment 
or use of the debt proceeds.
    (2) Overview--(i) In general. For each unit of designated property 
(within the meaning of Sec. 1.263A-8(b)), the avoided cost method 
requires the capitalization of--
    (A) The traced debt amount under paragraph (b) of this section, and
    (B) The excess expenditure amount under paragraph (c) of this 
section.
    (ii) Rules that apply in determining amounts. The traced debt and 
excess expenditure amounts are determined for each taxable year or 
shorter computation period that includes the production period (as 
defined in Sec. 1.263A-12) of a unit of designated property. Paragraph 
(d) of this section provides an election not to trace debt to specific 
units of designated property. Paragraph (f) of this section provides 
rules for selecting the computation period, for calculating averages, 
and for determining measurement dates within the computation period. 
Special rules are in paragraph (g) of this section.

[[Page 706]]

    (3) Definitions of interest and incurred. Except as provided in the 
case of certain expenses that are treated as a substitute for interest 
under paragraphs (c)(2)(iii) and (g)(2)(iv) of this section, interest 
refers to all amounts that are characterized as interest expense under 
any provision of the Code, including, for example, sections 482, 483, 
1272, 1274, and 7872. Incurred refers to the amount of interest that is 
properly accruable during the period of time in question determined by 
taking into account the loan agreement and any applicable provisions of 
the Internal Revenue laws and regulations such as section 163, Sec. 
1.446-2, and sections 1271 through 1275.
    (4) Definition of eligible debt. Except as provided in this 
paragraph (a)(4), eligible debt includes all outstanding debt (as 
evidenced by a contract, bond, debenture, note, certificate, or other 
evidence of indebtedness). Eligible debt does not include--
    (i) Debt (or the portion thereof) bearing interest that is 
disallowed under a provision described in Sec. 1.163-8T(m)(7)(ii);
    (ii) Debt, such as accounts payable and other accrued items, that 
bears no interest, except to the extent that such debt is traced debt 
(as defined in paragraph (b)(2) of this section);
    (iii) Debt that is borrowed directly or indirectly from a person 
related to the taxpayer and that bears a rate of interest that is less 
than the applicable Federal rate in effect under section 1274(d) on the 
date of issuance;
    (iv) Debt (or the portion thereof) bearing personal interest within 
the meaning of section 163(h)(2);
    (v) Debt (or the portion thereof) bearing qualified residence 
interest within the meaning of section 163(h)(3);
    (vi) Debt incurred by an organization that is exempt from Federal 
income tax under section 501(a), except to the extent interest on such 
debt is directly attributable to an unrelated trade or business of the 
organization within the meaning of section 512;
    (vii) Reserves, deferred tax liabilities, and similar items that are 
not treated as debt for Federal income tax purposes, regardless of the 
extent to which the taxpayer's applicable financial accounting or other 
regulatory reporting principles require or support treating these items 
as debt;
    (viii) Federal, State, and local income tax liabilities, deferred 
tax liabilities under section 453A, and hypothetical tax liabilities 
under the look-back method of section 460(b) or similar provisions; and
    (ix) A purchase money obligation given by the lessor to the lessee 
(or a party that is related to the lessee) in a sale and leaseback 
transaction involving an agreement qualifying as a lease under Sec. 
5c.168(f)(8)-1 through Sec. 5c.168(f)(8)-11 of this chapter. See Sec. 
5c.168(f)(8)-1(e) Example (2) of this chapter.
    (b) Traced debt amount--(1) General rule. Interest must be 
capitalized with respect to a unit of designated property in an amount 
(the traced debt amount) equal to the total interest incurred on the 
traced debt during each measurement period (as defined in paragraph 
(f)(2)(ii) of this section) that ends on a measurement date described in 
paragraph (f)(2)(iii) of this section. See the example in paragraph 
(b)(3) of this section. If any interest incurred on the traced debt is 
not taken into account for the taxable year that includes the 
measurement period because of a deferral provision, see paragraph (g)(2) 
of this section for the time and manner for capitalizing and recovering 
that amount. This paragraph (b)(1) does not apply if the taxpayer elects 
under paragraph (d) of this section not to trace debt.
    (2) Identification and definition of traced debt. On each 
measurement date described in paragraph (f)(2)(iii) of this section, the 
taxpayer must identify debt that is traced debt with respect to a unit 
of designated property. On each such date, traced debt with respect to a 
unit of designated property is the outstanding eligible debt (as defined 
in paragraph (a)(4) of this section) that is allocated, on that date, to 
accumulated production expenditures with respect to the unit of 
designated property under the rules of Sec. 1.163-8T. Traced debt also 
includes unpaid interest that has been capitalized with respect to such 
unit under paragraph (b)(1) of this section and that is included in 
accumulated production expenditures on the measurement date.

[[Page 707]]

    (3) Example. The provisions of paragraphs (b)(1) and (b)(2) of this 
section are illustrated by the following example.

    Example. Corporation X, a calendar year taxpayer, is engaged in the 
production of a single unit of designated property during 1995 (unit A). 
Corporation X adopts a taxable year computation period and quarterly 
measurement dates. Production of unit A starts on January 14, 1995, and 
ends on June 16, 1995. On March 31, 1995 and on June 30, 1995, 
Corporation X has outstanding a $1,000,000 loan that is allocated under 
the rules of Sec. 1.163-8T to production expenditures with respect to 
unit A. During the period January 1, 1995, through June 30, 1995, 
Corporation X incurs $50,000 of interest related to the loan. Under 
paragraph (b)(1) of this section, the $50,000 of interest Corporation X 
incurs on the loan during the period January 1, 1995, through June 30, 
1995, must be capitalized with respect to unit A.

    (c) Excess expenditure amount--(1) General rule. If there are 
accumulated production expenditures in excess of traced debt with 
respect to a unit of designated property on any measurement date 
described in paragraph (f)(2)(iii) of this section, the taxpayer must, 
for the computation period that includes the measurement date, 
capitalize with respect to this unit the excess expenditure amount 
calculated under this paragraph (c)(1). However, if the sum of the 
excess expenditure amounts for all units of designated property of a 
taxpayer exceeds the total interest described in paragraph (c)(2) of 
this section, only a prorata amount (as determined under paragraph 
(c)(7) of this section) of such interest must be capitalized with 
respect to each unit. For each unit of designated property, the excess 
expenditure amount for a computation period equals the product of--
    (i) The average excess expenditures (as determined under paragraph 
(c)(5)(ii) of this section) for the unit of designated property for that 
period, and
    (ii) The weighted average interest rate (as determined under 
paragraph (c)(5)(iii) of this section) for that period.
    (2) Interest required to be capitalized. With respect to an excess 
expenditure amount, interest incurred during the computation period is 
capitalized from the following sources and in the following sequence but 
not in excess of the excess expenditure amount for all units of 
designated property:
    (i) Interest incurred on nontraced debt (as defined in paragraph 
(c)(5)(i) of this section);
    (ii) Interest incurred on borrowings described in paragraph 
(a)(4)(iii) of this section (relating to certain borrowings from related 
persons); and
    (iii) In the case of a partnership, guaranteed payments for the use 
of capital (within the meaning of section 707(c)) that would be 
deductible by the partnership if section 263A(f) did not apply.
    (3) Example. The provisions of paragraph (c)(1) and (2) of this 
section are illustrated by the following example.

    Example. (i) P, a partnership owned equally by Corporation A and 
Individual B, is engaged in the construction of an office building 
during 1995. Average excess expenditures for the office building for 
1995 are $2,000,000. When P was formed, A and B agreed that A would be 
entitled to an annual guaranteed payment of $70,000 in exchange for A's 
capital contribution. The only borrowing of P, A, and B for 1995 is a 
loan to P from an unrelated lender of $1,000,000 (loan 1). The 
loan is nontraced debt and bears interest at an annual rate of 10 
percent. Thus, P's weighted average interest rate (determined under 
paragraph (c)(5)(iii) of this section) is 10 percent and interest 
incurred during 1995 is $100,000.
    (ii) In accordance with paragraph (c)(1) of this section, the excess 
expenditure amount is $200,000 ($2,000,000 x 10%). The interest 
capitalized under paragraph (c)(2) of this section is $170,000 ($100,000 
of interest plus $70,000 of guaranteed payments).

    (4) Treatment of interest subject to a deferral provision. If any 
interest described in paragraph (c)(2) of this section is not taken into 
account for the taxable year that includes the computation period 
because of a deferral provision described in paragraph (g)(1)(ii) of 
this section, paragraph (c)(2) of this section is first applied without 
regard to the amount of the deferred interest. After applying paragraph 
(c)(2) without regard to the deferred interest, if the amount of 
interest capitalized with respect to all units of designated property 
for the computation period is less than the amount that would have been 
capitalized if a deferral provision did not apply, see

[[Page 708]]

paragraph (g)(2) of this section for the time and manner for 
capitalizing and recovering the difference (the shortfall amount).
    (5) Definitions--(i) Nontraced debt--(A) Defined. Nontraced debt 
means all eligible debt on a measurement date other than any debt that 
is treated as traced debt with respect to any unit of designated 
property on that measurement date. For example, nontraced debt includes 
eligible debt that is allocated to expenditures that are not capitalized 
under section 263A(a) (e.g., expenditures deductible under section 
174(a) or 263(c)). Similarly, even if eligible debt is allocated to a 
production expenditure for a unit of designated property, the debt is 
included in nontraced debt on measurement dates before the first or 
after the last measurement date for that unit of designated property. 
Thus, nontraced debt may include debt that was previously treated as 
traced debt or that will be treated as traced debt on a future 
measurement date.
    (B) Example. The provisions of paragraph (c)(5)(i)(A) of this 
section are illustrated by the following example.

    Example. In 1995, Corporation X begins, but does not complete, the 
construction of two office buildings that are separate units of 
designated property as defined in Sec. 1.263A-10 (Property D and 
Property E). At the beginning of 1995, X borrows $2,500,000 (the 
$2,500,000 loan), which will be used exclusively to finance production 
expenditures for Property D. Although interest is paid currently, the 
entire principal amount of the loan remains outstanding at the end of 
1995. Corporation X also has outstanding during all of 1995 a long-term 
loan with a principal amount of $2,000,000 (the $2,000,000 loan). The 
proceeds of the $2,000,000 loan were used exclusively to finance the 
production of Property C, a unit of designated property that was 
completed in 1994. Under the rules of paragraph (b)(2) of this section, 
the portion of the $2,500,000 loan allocated to accumulated production 
expenditures for property D at each measurement date during 1995 is 
treated as traced debt for that measurement date. The excess, if any, of 
$2,500,000 over the amount treated as traced debt at each measurement 
date during 1995 is treated as nontraced debt for that measurement date, 
even though it is expected that the entire $2,500,000 will be treated as 
traced debt with respect to Property D on subsequent measurement dates 
as more of the proceeds of the loan are used to finance additional 
production expenditures. In addition, the entire principal amount of the 
$2,000,000 loan is treated as nontraced debt for 1995, even though it 
was treated as traced debt with respect to Property C in a previous 
period.

    (ii) Average excess expenditures--(A) General rule. The average 
excess expenditures for a unit of designated property for a computation 
period are computed by--
    (1) Determining the amount (if any) by which accumulated production 
expenditures exceed traced debt at each measurement date during the 
computation period; and
    (2) Dividing the sum of these amounts by the number of measurement 
dates during the computation period.
    (B) Example. The provisions of paragraph (c)(5)(ii)(A) of this 
section are illustrated by the following example.

    Example. Corporation X, a calendar year taxpayer, is engaged in the 
production of a single unit of designated property during 1995 (unit A). 
Corporation X adopts the taxable year as the computation period and 
quarterly measurement dates. The production period for unit A begins on 
January 14, 1995, and ends on June 16, 1995. On March 31, 1995, and on 
June 30, 1995, Corporation X has outstanding $1,000,000 of traced debt 
with respect to unit A. Accumulated production expenditures for unit A 
on March 31, 1995, are $1,400,000 and on June 30, 1995, are $1,600,000. 
Accumulated production expenditures in excess of traced debt for unit A 
on March 31, 1995, are $400,000 and on June 30, 1995, are $600,000. 
Average excess expenditures for unit A during 1995 are therefore 
$250,000 ([$400,000 + $600,000 + $0 +$0] / 4).

    (iii) Weighted average interest rate--(A) Determination of rate. The 
weighted average interest rate for a computation period is determined by 
dividing interest incurred on nontraced debt during the period by 
average nontraced debt for the period.
    (B) Interest incurred on nontraced debt. Interest incurred on 
nontraced debt during the computation period is equal to the total 
amount of interest incurred during the computation period on all 
eligible debt minus the amount of interest incurred during the 
computation period on traced debt. Thus, all interest incurred on 
nontraced debt

[[Page 709]]

during the computation period is included in the numerator of the 
weighted average interest rate, even if the underlying nontraced debt is 
repaid before the end of a measurement period and excluded from 
nontraced debt outstanding for measurement dates after repayment, in 
determining the denominator of the weighted average interest rate. 
However, see paragraph (g)(7) of this section for an election to treat 
eligible debt that is repaid within the 15-day period immediately 
preceding a quarterly measurement date as outstanding on that 
measurement date. See paragraph (a)(3) of this section for the 
definitions of interest and incurred.
    (C) Average nontraced debt. The average nontraced debt for a 
computation period is computed by--
    (1) Determining the amount of nontraced debt outstanding on each 
measurement date during the computation period; and
    (2) Dividing the sum of these amounts by the number of measurement 
dates during the computation period.
    (D) Special rules if taxpayer has no nontraced debt or rate is 
contingent. If the taxpayer does not have nontraced debt outstanding 
during the computation period, the weighted average interest rate for 
purposes of applying paragraphs (c)(1) and (c)(2) of this section is the 
highest applicable Federal rate in effect under section 1274(d) during 
the computation period. If interest is incurred at a rate that is 
contingent at the time the return for the year that includes the 
computation period is filed, the amount of interest is determined using 
the higher of the fixed rate of interest (if any) on the underlying debt 
or the applicable Federal rate in effect under section 1274(d) on the 
date of issuance.
    (6) Examples. The following examples illustrate the principles of 
this paragraph (c):

    Example 1. (i) W, a calendar year taxpayer, is engaged in the 
production of a unit of designated property during 1995. For purposes of 
applying the avoided cost method of this section, W uses the taxable 
year as the computation period. During 1995, W's only debt is a 
$1,000,000 loan bearing interest at a rate of 7 percent from Y, a person 
that is related to W. Assuming the applicable Federal rate in effect 
under section 1274(d) on the date of issuance of the loan is 10 percent, 
the loan is not eligible debt under paragraph (a)(4) of this section. 
However, even though W has no eligible debt, W incurs $70,000 
($1,000,000x7%) of interest during the computation period. This interest 
is described in paragraph (c)(2) of this section and must be capitalized 
under paragraph (c)(1) of this section to the extent it does not exceed 
W's excess expenditure amount for the unit of property.
    (ii) W determines, under paragraph (c)(5)(ii) of this section, that 
average excess expenditures for the unit of property are $600,000. 
Assuming the highest applicable Federal rate in effect under section 
1274(d) during the computation period is 10 percent, W uses 10 percent 
as the weighted average interest rate for purposes of determining the 
excess expenditure amount. See paragraph (c)(5)(iii)(D) of this section. 
In accordance with paragraph (c)(1) of this section, the excess 
expenditure amount is therefore $60,000. Because this amount does not 
exceed the total amount of interest described in paragraph (c)(2) of 
this section ($70,000), W is required to capitalize $60,000 of interest 
with respect to the unit of designated property for the 1995 computation 
period.
    Example 2. (i) Corporation X, a calendar year taxpayer, is engaged 
in the production of a single unit of designated property during 1955 
(unit A). Corporation X adopts the taxable year as the computation 
period and quarterly measurement dates. Production of unit A begins in 
1994 and ends on June 30, 1995. On March 31, 1995, and on June 30, 1995, 
Corporation X has outstanding $1,000,000 of eligible debt (loan 
1) that is allocated under the rules of Sec. 1.163-8T to 
production expenditures for unit A. During each of the first two 
quarters of 1995, $30,000 of interest is incurred on loan 1. 
The loan is repaid on July 1, 1995. Throughout 1995, Corporation X also 
has outstanding $2,000,000 of eligible debt (loan 2) which is 
not allocated under the rules of Sec. 1.163-8T to the production of 
unit A. During 1995, $200,000 of interest is incurred on this nontraced 
debt. Accumulated production expenditures on March 31, 1995, are 
$1,400,000 and on June 30, 1995, are $1,600,000. Accumulated production 
expenditures in excess of traced debt on March 31, 1995, are $400,000 
and on June 30, 1995, are $600,000.
    (ii) Under paragraph (b)(1) of this section, the amount of interest 
capitalized with respect to traced debt is $60,000 ($30,000 for the 
measurement period ending March 31, 1995, and $30,000 for the 
measurement period ending June 30, 1995). Under paragraph (c)(5)(ii) of 
this section, average excess expenditures for unit A are $250,000 
([($1,400,000-$1,000,000) + ($1,600,000-$1,000,000) + $0 + $0]/4). Under 
paragraph (c)(5)(iii)(C) of this section, average nontraced debt is 
$2,000,000 ([$2,000,000 + $2,000,000 + $2,000,000 + $2,000,000]/4). 
Under paragraph (c)(5)(iii)(B) of this section, interest incurred on 
nontraced debt is $200,000

[[Page 710]]

($260,000 of interest incurred on all eligible debt less $60,000 of 
interest incurred on traced debt). Under paragraph (c)(5)(iii)(A) of 
this section, the weighted average interest rate is 10 percent 
($200,000/$2,000,000). Under paragraph (c)(1) of this section, 
Corporation X capitalizes the excess expenditure amount of $25,000 
($250,000x10%), because it does not exceed the total amount of interest 
subject to capitalization under paragraph (c)(2) of this section 
($200,000). Thus, the total interest capitalized with respect to unit A 
during 1995 is $85,000 ($60,000+$25,000).

    (7) Special rules where the excess expenditure amount exceeds 
incurred interest--(i) Allocation of total incurred interest to units. 
For a computation period in which the sum of the excess expenditure 
amounts under paragraph (c)(1) of this section for all units of 
designated property exceeds the total amount of interest (including 
deferred interest) available for capitalization, as determined under 
paragraph (c)(2) of this section, the amount of interest that is 
allocated to a unit of designated property is equal to the product of--
    (A) The total amount of interest (including deferred interest) 
available for capitalization, as determined under paragraph (c)(2) of 
this section; and
    (B) A fraction, the numerator of which is the average excess 
expenditures for the unit of designated property and the denominator of 
which is the sum of the average excess expenditures for all units of 
designated property.
    (ii) Application of related person rules to average excess 
expenditure. Certain excess expenditures must be taken into account by 
the persons (if any) required to capitalize interest with respect to 
production expenditures of the taxpayer under applicable related person 
rules. For each computation period, the amount of average excess 
expenditures that must be taken into account by such persons for each 
unit of the taxpayer's property is computed by--
    (A) Determining, for the computation period, the amount (if any) by 
which the excess expenditure amount for the unit exceeds the amount of 
interest allocated to the unit under paragraph (c)(7)(i) of this 
section; and
    (B) Dividing the excess by the weighted average interest rate for 
the period.
    (iii) Special rule for corporations. If a corporation is related to 
another person for the purposes of the applicable related party rules, 
the District Director upon examination may require that the corporation 
apply this paragraph (c)(7) and other provisions of the regulations by 
excluding deferred interest from the total interest available for 
capitalization.
    (d) Election not to trace debt--(1) General rule. Taxpayers may 
elect not to trace debt. If the election is made, the average excess 
expenditures and weighted average interest rate under paragraph (c)(5) 
of this section are determined by treating all eligible debt as 
nontraced debt. For this purpose, debt specified in paragraph (a)(4)(ii) 
of this section (e.g., accounts payable) may be included in eligible 
debt, provided it would be treated as traced debt but for an election 
under this paragraph (d). The election not to trace debt is a method of 
accounting that applies to the determination of capitalized interest for 
all designated property of the taxpayer. The making or revocation of the 
election is a change in method of accounting requiring the consent of 
the Commissioner under section 446(e) and Sec. 1.446-1(e).
    (2) Example. The provisions of paragraph (d)(1) of this section are 
illustrated by the following example.

    Example. (i) Corporation X, a calendar year taxpayer, is engaged in 
the production of a single unit of designated property during 1995 (unit 
A). Corporation X adopts the taxable year as the computation period and 
quarterly measurement dates. At each measurement date (March 31, June 
30, September 30, and December 31) Corporation X has the following 
outstanding indebtedness:

Noninterest-bearing accounts payable traced to unit A........   $100,000
Noninterest-bearing accounts payable that are not traced to     $300,000
 unit A......................................................
Interest-bearing loans that are eligible debt within the        $900,000
 meaning of paragraph (a)(4) of this section.................
 

    (ii) Corporation X elects under this paragraph (d) not to trace 
debt. Eligible debt at each measurement date for purposes of calculating 
the weighted average interest rate under paragraph (c)(5)(iii) of this 
section is $1,000,000 ($100,000 + $900,000).

    (e) Election to use external rate--(1) In general. An eligible 
taxpayer may elect to use the highest applicable Federal rate (AFR) 
under section 1274(d) in effect during the computation period

[[Page 711]]

plus 3 percentage points (AFR plus 3) as a substitute for the weighted 
average interest rate determined under paragraph (c)(5)(iii) of this 
section. A taxpayer that makes this election may not trace debt. The use 
of the AFR plus 3 as provided under this paragraph (e)(1) constitutes a 
method of accounting. A taxpayer makes the election to use the AFR plus 
3 method by using the AFR plus 3 as the taxpayer's weighted average 
interest rate, and any change to the AFR plus 3 method by a taxpayer 
that has never previously used the method does not require the consent 
of the Commissioner. Any other change to or from the use of the AFR plus 
3 method under this paragraph (e)(1) (other than by reason of a taxpayer 
ceasing to be an eligible taxpayer) is a change in method of accounting 
requiring the consent of the Commissioner under section 446(e) and Sec. 
1.446-1(e). All changes to or from the AFR plus 3 method are effected on 
a cut-off basis.
    (2) Eligible taxpayer. A taxpayer is an eligible taxpayer for a 
taxable year for purposes of this paragraph (e) if the average annual 
gross receipts of the taxpayer for the three previous taxable years do 
not exceed $10,000,000 (the $10,000,000 gross receipts test) and the 
taxpayer has met the $10,000 gross receipts for all prior taxable years 
beginning after December 31, 1994. For purposes of this paragraph 
(e)(2), the principles of section 263A(b)(2)(B) and (C) and Sec. 
1.263A-3(b) apply in determining whether a taxpayer is an eligible 
taxpayer for a taxable year.
    (f) Selection of computation period and measurement dates and 
application of averaging conventions--(1) Computation period--(i) In 
general. A taxpayer may (but is not required to) make the avoided cost 
calculation on the basis of a full taxable year. If the taxpayer uses 
the taxable year as the computation period, a single avoided cost 
calculation is made for each unit of designated property for the entire 
taxable year. If the taxpayer uses a computation period that is shorter 
than the full taxable year, an avoided cost calculation is made for each 
unit of designated property for each shorter computation period within 
the taxable year. If the taxpayer uses a shorter computation period, the 
computation period may not include portions of more than one taxable 
year and, except as provided in the case of short taxable years, each 
computation period within a taxable year must be the same length. In the 
case of a short taxable year, a taxpayer may treat a period shorter than 
the taxpayer's regular computation period as the first or last 
computation period, or as the only computation period for the year if 
the year is shorter than the taxpayer's regular computation period. A 
taxpayer must use the same computation periods for all designated 
property produced during a single taxable year.
    (ii) Method of accounting. The choice of a computation period is a 
method of accounting. Any change in the computation period is a change 
in method of accounting requiring the consent of the Commissioner under 
section 446(e) and Sec. 1.446-1(e).
    (iii) Production period beginning or ending during the computation 
period. The avoided cost method applies to the production of a unit of 
designated property on the basis of a full computation period, 
regardless of whether the production period for the unit of designated 
property begins or ends during the computation period.
    (2) Measurement dates--(i) In general. If a taxpayer uses the 
taxable year as the computation period, measurement dates must occur at 
quarterly or more frequent regular intervals. If the taxpayer uses 
computation periods that are shorter than the taxable year, measurement 
dates must occur at least twice during each computation period and at 
least four times during the taxable year (or consecutive 12-month period 
in the case of a short taxable year). The taxpayer must use the same 
measurement dates for all designated property produced during a 
computation period. Except in the case of a computation period that 
differs from the taxpayer's regular computation period by reason of a 
short taxable year (see paragraph (f)(1)(i) of this section), 
measurement dates must occur at equal intervals during each computation 
period that falls within a single taxable year. For any computation 
period that differs from the taxpayer's regular computation period by 
reason

[[Page 712]]

of a short taxable year, the measurement dates used by the taxpayer 
during that period must be consistent with the principles and purposes 
of section 263A(f). A taxpayer is permitted to modify the frequency of 
measurement dates from year to year.
    (ii) Measurement period. For purposes of this section, measurement 
period means the period that begins on the first day following the 
preceding measurement date and that ends on the measurement date.
    (iii) Measurement dates on which accumulated production expenditures 
must be taken into account. The first measurement date on which 
accumulated production expenditures must be taken into account with 
respect to a unit of designated property is the first measurement date 
following the beginning of the production period for the unit of 
designated property. The final measurement date on which accumulated 
production expenditures with respect to a unit of designated property 
must be taken into account is the first measurement date following the 
end of the production period for the unit of designated property. 
Accumulated production expenditures with respect to a unit of designated 
property must also be taken into account on all intervening measurement 
dates. See Sec. 1.263A-12 to determine when the production period 
begins and ends.
    (iv) More frequent measurement dates. When in the opinion of the 
District Director more frequent measurement dates are necessary to 
determine capitalized interest consistent with the principles and 
purposes of section 263A(f) for a particular computation period, the 
District Director may require the use of more frequent measurement 
dates. If a significant segment of the taxpayer's production activities 
(the first segment) requires more frequent measurement dates than 
another significant segment of the taxpayer's production activities, the 
taxpayer may request a ruling from the Internal Revenue Service 
permitting, for a taxable year and all subsequent taxable years, a 
segregation of the two segments and, notwithstanding paragraph (f)(2)(i) 
of this section, the use of the more frequent measurement dates for only 
the first segment. The request for a ruling must be made in accordance 
with any applicable rules relating to submissions of ruling requests. 
The request must be filed on or before the due date (including 
extensions) of the original Federal income tax return for the first 
taxable year to which it will apply.
    (3) Examples. The following examples illustrate the principles of 
this paragraph (f):

    Example 1. Corporation X, a calendar year taxpayer, is engaged in 
the production of designated property during 1995. Corporation X adopts 
the taxable year as the computation period and quarterly measurement 
dates. Corporation X must identify traced debt, accumulated production 
expenditures, and nontraced debt at each quarterly measurement date 
(March 31, June 30, September 30, and December 31). Under paragraph 
(c)(5)(ii) of this section, Corporation X must calculate average excess 
expenditures for each unit of designated property by determining the 
amount by which accumulated production expenditures exceed traced debt 
for each unit at the end of each quarter and dividing the sum of these 
amounts by four. Under paragraph (c)(5)(iii) (C) of this section, 
Corporation X must calculate average nontraced debt by determining the 
amount of nontraced debt outstanding at the end of each quarter and 
dividing the sum of these amounts by four.
    Example 2. Corporation X, a calendar year taxpayer, is engaged in 
the production of designated property during 1995. Corporation X adopts 
a 6-month computation period with two measurement dates within each 
computation period. Corporation X must identify traced debt, accumulated 
production expenditures, and nontraced debt at each measurement date 
(March 31 and June 30 for the first computation period and September 30 
and December 31 for the second computation period). Under paragraph 
(c)(5)(ii) of this section, Corporation X must, for each computation 
period, calculate average excess expenditures for each unit of 
designated property by determining the amount by which accumulated 
production expenditures exceed traced debt for each unit at each 
measurement date during the period and dividing the sum of these amounts 
by two. Under paragraph (c)(5)(iii)(C) of this section, Corporation X 
must calculate average nontraced debt for each computation period by 
determining the amount of nontraced debt outstanding at each measurement 
date during the period and dividing the sum of these amounts by two.
    Example 3. (i) Corporation X, a calendar year taxpayer, is engaged 
in the production of two units of designated property during 1995. 
Production of Unit A starts in 1994 and ends on June 20, 1995. 
Production of Unit B

[[Page 713]]

starts on April 15, 1995, but does not end until 1996. Corporation X 
adopts the taxable year as its computation period and does not elect 
under paragraph (d) of this section not to trace debt. Corporation X 
uses quarterly measurement dates and pays all interest on eligible debt 
in the quarter in which the interest is incurred. During 1995, 
Corporation X has two items of eligible debt. The debt and the manner in 
which it is used are as follows:

------------------------------------------------------------------------
                               Annual
    No.         Principal       rate        Period       Use of proceeds
                             (percent)    outstanding
------------------------------------------------------------------------
1..........      $1,000,000          9       1/01-9/01  Unit A.
2..........       2,000,000         11      6/01-12/31  Nontraced.
------------------------------------------------------------------------

    (ii) Based on the annual 9 percent rate of interest, Corporation X 
incurs $7,500 of interest during each month that Loan 1 is 
outstanding.
    (iii) Accumulated production expenditures at the end of each quarter 
during 1995 are as follows:

------------------------------------------------------------------------
            Measurement date                  Unit A          Unit B
------------------------------------------------------------------------
March 31................................      $1,200,000              $0
June 30.................................       1,800,000         500,000
Sept. 30................................               0       1,000,000
Dec. 31.................................               0       1,600,000
------------------------------------------------------------------------

    (iv) Corporation X must first determine the amount of interest 
incurred on traced debt and capitalize the interest incurred on this 
debt (the traced debt amount). Loan 1 is allocated to Unit A on 
the March 31 and June 30 measurement dates. Accordingly, Loan 1 
is treated as traced debt with respect to unit A for the measurement 
periods beginning January 1 and ending June 30. The interest incurred on 
Loan 1 during the period that Loan 1 is treated as 
traced debt must be capitalized with respect to Unit A. Thus, $45,000 
($7,500 per month for 6 months) is capitalized with respect to Unit A.
    (v) Second, Corporation X must determine average excess expenditures 
for Unit A and Unit B. For Unit A, this amount is $250,000 ([$200,000 + 
$800,000 + $0 +$0] / 4). For Unit B, this amount is $775,000 ([$0 + 
$500,000 + $1,000,000 + $1,600,000]/4).
    (vi) Third, Corporation X must determine the weighted average 
interest rate and apply that rate to the average excess expenditures for 
Units A and B. The rate is equal to the total amount of interest 
incurred on nontraced debt (i.e., interest incurred on all eligible debt 
reduced by interest incurred on traced debt) divided by the average 
nontraced debt. The interest incurred on nontraced debt equals $143,333 
([$1,000,000 x 9% x \8/12\] + [$2,000,000 x 11% x \7/12\] - $45,000). 
The average nontraced debt equals $1,500,000 ([$0 + $2,000,000 + 
$2,000,000 + $2,000,000] / 4). The weighted average interest rate of 
9.56 percent ($143,333 ' $1,500,000), is then applied to average excess 
expenditures for Units A and B. Accordingly, Corporation X capitalizes 
an additional $23,900 ($250,000 x 9.56%) with respect to Unit A and 
$74,090 ($775,000 x 9.56%) with respect to Unit B (the excess 
expenditure amounts).

    (g) Special rules--(1) Ordering rules--(i) Provisions preempted by 
section 263A(f). Interest must be capitalized under section 263A(f) 
before the application of section 163(d) (regarding the investment 
interest limitation), section 163(j) (regarding the limitation on 
interest paid to a tax-exempt related person), section 266 (regarding 
the election to capitalize carrying charges), section 469 (regarding the 
limitation on passive losses), and section 861 (regarding the allocation 
of interest to United States sources). Any interest that is capitalized 
under section 263A(f) is not taken into account as interest under those 
sections. However, in applying section 263A(f) with respect to the 
excess expenditure amount, the taxpayer must capitalize all interest 
that is neither investment interest under section 163(d), exempt related 
person interest under section 163(j), nor passive interest under section 
469 before capitalizing any interest that is either investment interest, 
exempt related person interest, or passive interest. Any interest that 
is not required to be capitalized after the application of section 
263A(f) is then taken into account as interest subject to sections 
163(d), 163(j), 266, 469, and 861. If, after the application of section 
263A(f), interest is deferred under sections 163(d), 163(j), 266, or 
469, that interest is not subject to capitalization under section 
263A(f) in any subsequent taxable year.
    (ii) Deferral provisions applied before this section. Interest 
(including contingent interest) that is subject to a deferral provision 
described in this paragraph (g)(1)(ii) is subject to capitalization 
under section 263A(f) only in the taxable year in which it would be 
deducted if section 263A(f) did not apply.

[[Page 714]]

Deferral provisions include sections 163(e)(3), 267, 446, and 461, and 
all other deferral or limitation provisions that are not described in 
paragraph (g)(1)(i) of this section. In contrast to the provisions of 
paragraph (g)(1)(i) of this section, deferral provisions are applied 
before the application of section 263A(f).
    (2) Application of section 263A(f) to deferred interest--(i) In 
general. This paragraph (g)(2) describes the time and manner of 
capitalizing and recovering the deferral amount. The deferral amount for 
any computation period equals the sum of--
    (A) The amount of interest that is incurred on traced debt that is 
deferred during the computation period and is not deductible for the 
taxable year that includes the computation period because of a deferral 
provision described in paragraph (g)(1)(ii) of this section, and
    (B) The shortfall amount described in paragraph (c)(4) of this 
section.
    (ii) Capitalization of deferral amount. The rules described in 
paragraph (g)(2)(iii) of this section apply to the deferral amount 
unless the taxpayer elects under paragraph (g)(2)(iv) of this section to 
capitalize substitute costs.
    (iii) Deferred capitalization. If the taxpayer does not elect under 
paragraph (g)(2)(iv) of this section to capitalize substitute costs, 
deferred interest to which the deferral amount is attributable 
(determined under any reasonable method) is capitalized in the year or 
years in which the deferred interest would have been deductible but for 
the application of section 263A(f) (the capitalization year). For this 
purpose, any interest that is deferred from a prior computation period 
is taken into account in subsequent capitalization years in the same 
order in which the interest was deferred. If a unit of designated 
property to which previously deferred interest relates is sold before 
the capitalization year, the deferred interest applicable to that unit 
of property is taken into account in the capitalization year and treated 
as if recovered from the sale of the property. If the taxpayer continues 
to hold, throughout the capitalization year, a unit of depreciable 
property to which previously deferred interest relates, the adjusted 
basis and applicable recovery percentages for the unit of property are 
redetermined for the capitalization year and subsequent years so that 
the increase in basis is accounted for over the remaining recovery 
periods beginning with the capitalization year. See Example 2 of 
paragraph (g)(2)(v) of this section.
    (iv) Substitute capitalization--(A) General rule. In lieu of 
deferred capitalization under paragraph (g)(2)(iii) of this section, the 
taxpayer may elect the substitute capitalization method described in 
this paragraph (g)(2)(iv). Under this method, the taxpayer capitalizes 
for the computation period in which interest is incurred and deferred 
(the deferral period) costs that would be deducted but for this 
paragraph (g)(2)(iv) (substitute costs). The taxpayer must capitalize an 
amount of substitute costs equal to the deferral amount for each unit of 
designated property, or if less, a prorata amount (determined in 
accordance with the principles of paragraph (c)(7)(i) of this section) 
of the total substitute costs that would be deducted but for this 
paragraph (g)(2)(iv) during the deferral period. If the entire deferral 
amount is capitalized pursuant to this paragraph (g)(2)(iv) in the 
deferral period, any interest incurred and deferred in the deferral 
period is neither capitalized nor deducted during the deferral period 
and, unless subsequently capitalized as a substitute cost under this 
paragraph (g)(2)(iv), is deductible in the appropriate subsequent period 
without regard to section 263A(f).
    (B) Capitalization of amount carried forward. If the taxpayer has an 
insufficient amount of substitute costs in the deferral period, the 
amount by which substitute costs are insufficient with respect to each 
unit of designated property is a deferral amount carryforward to 
succeeding computation periods beginning with the next computation 
period. In any carryforward year, the taxpayer must capitalize an amount 
of substitute costs equal to the deferral amount carryforward or, if 
less, a prorata amount (determined in accordance with the principles of 
paragraph (c)(7)(i) of this section) of the total substitute costs that 
would be deducted during the carryforward year or years

[[Page 715]]

(the carryforward capitalization year) but for this paragraph (g)(2)(iv) 
(after applying the substitute cost method of this paragraph (g)(2)(iv) 
to the production of designated property in the carryforward period). If 
a unit of designated property to which the deferral amount carryforward 
relates is sold prior to the carryforward capitalization year, 
substitute costs applicable to that unit of property are taken into 
account in the carryforward capitalization year and treated as if 
recovered from the sale of the property. If the taxpayer continues to 
hold, throughout the capitalization year, a unit of depreciable property 
to which a deferral amount carryforward relates, the adjusted basis and 
applicable recovery percentages for the unit of property are 
redetermined for the carryforward capitalization year and subsequent 
years so that the increase in basis is accounted for over the remaining 
recovery periods beginning with the carryforward capitalization year. 
See Example 2 of paragraph (g)(2)(v) of this section.
    (C) Method of accounting. The substitute capitalization method under 
this paragraph (g)(2)(iv) is a method of accounting that applies to all 
designated property of the taxpayer. A change to or from the substitute 
capitalization method is a change in method of accounting requiring the 
consent of the Commissioner under section 446(e) and Sec. 1.446-1(e).
    (v) Examples. The following examples illustrate the application of 
the avoided cost method when interest is subject to a deferral 
provision:

    Example 1. (i) Corporation X is a calendar year taxpayer and uses 
the taxable year as it computation period. During 1995, X is engaged in 
the construction of a warehouse which X will use in its storage 
business. The warehouse is completed and placed in service in December 
1995. X's average excess expenditures for 1995 equal $1,000,000. 
Throughout 1995, X's only outstanding debt is nontraced debt of $900,000 
and $1,200,000, bearing interest at 15 percent and 9 percent, 
respectively, per year. Of the $243,000 interest incurred during the 
year ([$900,000x15%] + [$1,200,000x9%] = [$135,000+$108,000]), $75,000 
is deferred under section 267(a)(2).
    (ii) X must first determine the amount of interest required to be 
capitalized under paragraph (c)(1) of this section for 1995 (the 
deferral period) without applying section 267(a)(2). The weighted 
average interest rate is 11.6 percent ([$135,000+$108,000]/ $2,100,000), 
and the excess expenditure amount under paragraph (c)(1) of this section 
is $116,000 ($1,000,000x11.6%). Under paragraph (c)(4) of this section, 
X must then determine the amount of interest that would be capitalized 
by applying paragraph (c)(2) of this section without regard to the 
amount of deferred interest. Disregarding deferred interest, the amount 
of interest available for capitalization is $168,000 ([$900,000x15%] + 
[$1,200,000x9%]- $75,000). Thus, the full excess expenditure amount 
($116,000) is capitalized from interest that is not deferred under 
section 267(a)(2) and there is no shortfall amount.
    Example 2. (i) The facts are the same as in Example 1, except that 
$140,000 of interest is deferred under section 267 (a)(2) in 1995. The 
taxpayer does not elect to use the substitute capitalization method. 
This interest is also deferred in 1996 but would be deducted in 1997 if 
section 263A(f) did not apply. As in Example 1, the excess expenditure 
amount is $116,000. However, the amount of interest available for 
capitalization after excluding the amount of deferred interest is 
$103,000 ([$900,000x15%] + [$1,200,000x9%]- $140,000). Thus, only 
$103,000 of interest is capitalized with respect to the warehouse in 
1995. Since $116,000 of interest would be capitalized if section 
267(a)(2) did not apply, the deferral amount determined under paragraphs 
(c)(2) and (g)(2)(i) of this section is $13,000 ($116,000 -$103,000), 
and $13,000 of deferred interest must be capitalized in the year in 
which it would be deducted if section 263A(f) did not apply.
    (ii) The $140,000 of interest deferred under section 267(a)(2) in 
1995 would be deducted in 1997 if section 263A(f) did not apply. X is 
therefore required to capitalize an additional $13,000 of interest with 
respect to the warehouse in 1997 and must redetermine its basis and 
recovery percentage.

    (3) Simplified inventory method--(i) In general. This paragraph 
(g)(3) provides a simplified method of capitalizing interest expense 
with respect to designated property that is inventory. Under this 
method, the taxpayer determines beginning and ending inventory and cost 
of goods sold applying all other capitalization provisions, including, 
for example, the simplified production method of Sec. 1.263A-2(b), but 
without regard to the capitalization of interest with respect to 
inventory. The taxpayer must establish a separate capital asset, 
however, in an amount equal to the aggregate interest capitalization 
amount (as defined in paragraph (g)(3)(iii)(C) of this section).

[[Page 716]]

Under the simplified inventory method, increases in the aggregate 
interest capitalization amount from one year to the next generally are 
treated as reductions in interest expense, and decreases in the 
aggregate interest capitalization amount from one year to the next are 
treated as increases to cost of goods sold.
    (ii) Segmentation of inventory--(A) General rule. Under the 
simplified inventory method, the taxpayer first separates its total 
ending inventory value into segments that are equal to the total ending 
inventory value divided by the inverse inventory turnover rate. Each 
inventory segment is then assigned an age starting with one year and 
increasing by one year for each additional segment. The inverse 
inventory turnover rate is determined by finding the average of 
beginning and ending inventory, dividing the average by the cost of 
goods sold for the year, and rounding the result to the nearest whole 
number. Beginning and ending inventory amounts are determined using 
total current cost of inventory for the year (rather than carrying 
value). Cost of goods sold, however, may be determined using either 
total current cost or the taxpayer's inventory method. In addition, for 
purposes of this paragraph (g)(3)(ii), current costs for a year (and, if 
applicable, the cost of goods sold for the year under the taxpayer's 
inventory method) are determined without regard to the capitalization of 
interest with respect to inventory.
    (B) Example. The provisions of paragraph (g)(3)(ii)(A) of this 
section are illustrated by the following example.

    Example. X, a taxpayer using the FIFO inventory method, determines 
that total cost of goods sold for 1995 equals $900, and the cost of both 
beginning and ending inventory equals $3,000. Thus, X's inverse 
inventory turnover rate equals 3 (3.33 rounded to the nearest whole 
number). Total ending inventory of $3,000 is divided into three segments 
of $1,000 each. One segment is treated as 3-year-old inventory, one 
segment is treated as 2-year-old inventory, and one segment is treated 
as 1-year-old inventory.

    (iii) Aggregate interest capitalization amount--(A) Computation 
period and weighted average interest rate. If a taxpayer elects the 
simplified inventory method, the taxpayer must use the taxable year as 
its computation period and use the weighted average interest rate 
determined under this paragraph (g)(3)(iii)(A) in determining the 
aggregate interest capitalization amount defined in paragraph 
(g)(3)(iii)(C) of this section and in determining the amount of interest 
capitalized with respect to any designated property that is not 
inventory. Under the simplified inventory method, the taxpayer 
determines the weighted average interest rate in accordance with 
paragraph (c)(5)(iii) of this section, treating all eligible debt (other 
than debt traced to noninventory property in the case of a taxpayer 
tracing debt) as nontraced debt (i.e., without tracing debt to 
inventory). A taxpayer that has elected under paragraph (e) of this 
section to use an external rate as a substitute for the weighted average 
interest rate determined under paragraph (c)(5)(iii) of this section 
uses the rate described in paragraph (e)(1) as the weighted average 
interest rate.
    (B) Computation of the tentative aggregate interest capitalization 
amount. The weighted average interest rate is compounded annually by the 
number of years assigned to a particular inventory segment to produce an 
interest factor (applicable interest factor) for that segment. The 
amounts determined by multiplying the value of each inventory segment by 
its applicable interest factor are then combined to produce a tentative 
aggregate interest capitalization amount.
    (C) Coordination with other interest capitalization computations--
(1) In general. If the tentative aggregate interest capitalization 
amount for a year exceeds the aggregate interest capitalization amount 
(defined in paragraph (g)(3)(iii)(D) of this section) as of the close of 
the preceding year, then, for purposes of applying the rules of 
paragraph (c)(7) of this section, the excess is treated as an excess 
expenditure amount and the inventory to which the simplified inventory 
method of this paragraph (g)(3) applies is treated as a single unit of 
designated property. If, after these modifications, no paragraph (c)(7) 
interest allocation is necessary (i.e., the excess expenditure amounts 
for all units of designated property do not exceed the total amount of 
interest

[[Page 717]]

(including deferred interest) available for capitalization), the 
aggregate interest capitalization amount generally equals the tentative 
aggregate interest capitalization amount. If, on the other hand, a 
paragraph (c)(7) allocation is necessary, the tentative aggregate 
interest capitalization amount is generally adjusted to reflect the 
results of that allocation (i.e., the increase in the aggregate interest 
capitalization amount is limited to the amount of interest allocated to 
inventory, reduced, however, by any substitute costs that are 
capitalized with respect to inventory under applicable related party 
rules).
    (2) Deferred interest. In determining the aggregate interest 
capitalization amount, the tentative aggregate interest capitalization 
amount is adjusted (after the application of paragraph (c)(7) of this 
section) as appropriate to reflect the deferred interest rules of 
paragraph (g)(2) of this section. The tentative aggregate interest 
capitalization amount would be reduced, for example, by the amount of a 
taxpayer's deferred interest for a taxable year unless the taxpayer has 
elected the substitute capitalization method under paragraph (g)(2)(iv).
    (3) Other coordinating provisions. The Commissioner may prescribe, 
by revenue ruling or revenue procedure, additional provisions to 
coordinate the election and use of the simplified inventory method with 
other interest capitalization requirements and methods. See Sec. 
601.601(d)(2)(ii)(b) of this chapter.
    (D) Treatment of increases or decreases in the aggregate interest 
capitalization amount. Except as otherwise provided in this paragraph 
(g)(3)(iii)(D), increases in the aggregate interest capitalization 
amount from one year to the next are treated as reductions in interest 
expense, and decreases in the aggregate interest capitalization amount 
from one year to the next are treated as increases to cost of goods 
sold. To the extent a taxpayer capitalizes substitute costs under either 
applicable related party rules or the deferred interest rules in 
paragraph (g)(2) of this section, increases in the aggregate interest 
capitalization amount are treated as reductions in applicable substitute 
costs, rather than interest expense.
    (E) Example. The provisions of this paragraph (g)(3)(iii) are 
illustrated by the following example.

    Example. The facts are the same as in the example in paragraph 
(g)(3)(ii)(B) of this section, and, in addition, X determines that its 
weighted average interest rate for 1995 is 10 percent. Additionally, 
assume that X has no deferred interest in 1995 or 1996 and no deferral 
amount carryforward to either 1995 or 1996. (See paragraph (g)(2) of 
this section.) Also assume that no allocation is necessary under 
paragraph (c)(7) of this section in either 1995 or 1996. Under the rules 
of paragraph (g)(3)(ii) of this section, X divides ending inventory into 
segments of $1,000 each. One segment is 1-year old inventory, one 
segment is 2-year old inventory, and one segment is 3-year old 
inventory. Under paragraph (g)(3)(iii)(B) of this section, X must 
compute the applicable interest factor for each segment. The applicable 
interest factor for the 1-year old inventory is not compounded. The 
applicable interest factor for the 2-year old inventory is compounded 
for 1 year. The applicable interest factor for the 3-year old inventory 
is compounded for 2 years. The interest factor applied to the 1-year old 
inventory segment is .1. The interest factor applied to the 2-year old 
inventory segment is .21 [(1.1x1.1)-1]. The interest factor applied to 
the 3-year old inventory is .331 [(1.1x1.1x1.1)-1]. Thus, the tentative 
aggregate interest capitalization amount for 1995 is $641 (1,000 x [.1 + 
.21 + .331]). Because X has no deferred interest in 1995, no deferral 
amount carryforward to 1995, and no required allocation under paragraph 
(c)(7) of this section in 1995, X's aggregate interest capitalization 
amount equals its $641 tentative aggregate interest capitalization 
amount. If, in 1996, X computes an aggregate interest capitalization 
amount of $750, the $109 increase in the amount from 1995 to 1996 would 
be treated as a reduction in interest expense for 1996.

    (iv) Method of accounting. The simplified inventory method is a 
method of accounting that must be elected for and applied to all 
inventory within a single trade or business of the taxpayer (within the 
meaning of section 446(d) and Sec. 1.446-1(d)). This method may be 
elected only if the inventory in that trade or business consists only of 
designated property and only if the taxpayer's inverse inventory 
turnover rate for that trade or business (as defined in paragraph 
(g)(3)(ii)(A) of this section) is greater than or equal to one. A

[[Page 718]]

change from or to the simplified inventory method is a change in method 
of accounting requiring the consent of the Commissioner under section 
446(e) and Sec. 1.446-(1)(e).
    (4) Financial accounting method disregarded. The avoided cost method 
is applied under this section without regard to any financial or 
regulatory accounting principles for the capitalization of interest. For 
example, this section determines the amount of interest that must be 
capitalized without regard to Financial Accounting Standards Board 
(FASB) Statement Nos. 34, 71, and 90, issued by the Financial Accounting 
Standards Board, Norwalk, CT 06856-5116. Similarly, taxpayers are not 
permitted to net interest income and interest expense in determining the 
amount of interest that must be capitalized under this section with 
respect to certain restricted tax-exempt borrowings even though netting 
is permitted under FASB Statement No. 62.
    (5) Treatment of intercompany transactions--(i) General rule. If 
interest capitalized under section 263A(f) by a member of a consolidated 
group (within the meaning of Sec. 1.1502-1(h)) with respect to a unit 
of designated property is attributable to a loan from another member of 
the group (the lending member), the intercompany transaction provisions 
of the consolidated return regulations do not apply to the lending 
member's interest income with respect to that loan, except as provided 
in paragraph (g)(5)(ii) of this section. For this purpose, the 
capitalized interest expense that is attributable to a loan from another 
member is determined under any method that reasonably reflects the 
principles of the avoided cost method, including the traced and 
nontraced concepts. For purposes of this paragraph (g)(5)(i) and 
paragraph (g)(5)(ii) of this section, in order for a method to be 
considered reasonable it must be consistently applied.
    (ii) Special rule for consolidated group with limited outside 
borrowing. If, for any year, the aggregate amount of interest income 
described in paragraph (g)(5)(i) of this section for all members of the 
group with respect to all units of designated property exceeds the total 
amount of interest that is deductible for that year by all members of 
the group with respect to debt of a member owed to nonmembers (group 
deductible interest) after applying section 263A(f), the intercompany 
transaction provisions of the consolidated return regulations are 
applied to the excess, and the amount of interest income that must be 
taken into account by the group under paragraph (g)(5)(i) of this 
section is limited to the amount of the group deductible interest. The 
amount to which the intercompany transaction provisions of the 
consolidated return regulations apply by reason of this paragraph 
(g)(5)(ii) is allocated among the lending members under any method that 
reasonably reflects each member's share of interest income described in 
paragraph (g)(5)(i) of this section. If a lending member has interest 
income that is attributable to more than one unit of designated 
property, the amount to which the intercompany transaction provisions of 
the consolidated return regulations apply by reason of this paragraph 
(g)(5)(ii) with respect to the member is allocated among the units in 
accordance with the principles of paragraph (c)(7)(i) of this section.
    (iii) Example. The provisions of paragraph (g)(5)(ii) of this 
section are illustrated by the following example.

    Example. (i) P and S1 are the members of a consolidated group. In 
1995, S1 begins and completes the construction of a shopping center and 
is required to capitalize interest with respect to the construction. 
S1's average excess expenditures for 1995 are $5,000,000. Throughout 
1995, S1's only borrowings include a $6,000,000 loan from P bearing 
interest at an annual rate of 10 percent ($600,000 per year). Under the 
avoided cost method, S1 is required to capitalize interest in the amount 
of $500,000 ([$600,000/$6,000,000x5,000,000).
    (ii) P's only borrowing from unrelated lenders is a $2,000,000 loan 
bearing interest at an annual rate of 10 percent ($200,000 per year). 
Under the principles of paragraph (g)(5)(ii) of this section, because 
the aggregate amount of interest described in paragraph (g)(5)(i) of 
this section ($500,000) exceeds the aggregate amount of currently 
deductible interest of the group ($200,000), the intercompany 
transaction provisions of the consolidated return regulations apply to 
the excess of $300,000 and the amount of P's interest income that is 
subject to current inclusion by reason of paragraph (g)(5)(i) of this 
section is limited to $200,000.


[[Page 719]]


    (6) Notional principal contracts and other derivatives. [Reserved]
    (7) 15-day repayment rule. A taxpayer may elect to treat any 
eligible debt that is repaid within the 15-day period immediately 
preceding a quarterly measurement date as outstanding as of that 
measurement date for purposes of determining traced debt, average 
nontraced debt, and the weighted average interest rate. This election 
may be made or discontinued for any computation period and is not a 
method of accounting.

[T.D. 8584, 59 FR 67200, Dec. 29, 1994; 60 FR 16574, Mar. 31, 1995, as 
amended by T.D. 8584, 60 FR 47053, Sept. 11, 1995; T.D. 9129, 69 FR 
29067, May 20, 2004; T.D. 9179, 70 FR 8730, Feb. 23, 2005]



Sec. 1.263A-10  Unit of property.

    (a) In general. The unit of property as defined in this section is 
used as the basis to determine accumulated production expenditures under 
Sec. 1.263A-11 and the beginning and end of the production period under 
Sec. 1.263A-12. Whether property is 1-year or 2-year property under 
Sec. 1.263A-8(b)(1)(ii) is also determined separately with respect to 
each unit of property as defined in this section.
    (b) Units of real property--(1) In general. A unit of real property 
includes any components of real property owned by the taxpayer or a 
related person that are functionally interdependent and an allocable 
share of any common feature owned by the taxpayer or a related person 
that is real property even though the common feature does not meet the 
functional interdependence test. When the production period begins with 
respect to any functionally interdependent component or any common 
feature of the unit of real property, the production period has begun 
for the entire unit of real property. See, however, paragraph (b)(5) of 
this section for rules under which the costs of a common feature or 
benefitted property are excluded from accumulated production 
expenditures for one or more measurement dates. The portion of land 
included in a unit of real property includes land on which real property 
(including a common feature) included in the unit is situated, land 
subject to setback restrictions with respect to such property, and any 
other contiguous portion of the tract of land other than land that the 
taxpayer holds for a purpose unrelated to the unit being produced (e.g., 
investment purposes, personal use purposes, or specified future 
development as a separate unit of real property).
    (2) Functional interdependence. Components of real property produced 
by, or for, the taxpayer, for use by the taxpayer or a related person 
are functionally interdependent if the placing in service of one 
component is dependent on the placing in service of the other component 
by the taxpayer or a related person. In the case of property produced 
for sale, components of real property are functionally interdependent if 
they are customarily sold as a single unit. For example, the real 
property components of a single-family house (e.g., the land, 
foundation, and walls) are functionally interdependent. In contrast, 
components of real property that are expected to be separately placed in 
service or held for resale are not functionally interdependent. Thus, 
dwelling units within a multi-unit building that are separately placed 
in service or sold (within the meaning of Sec. 1.263A-12(d)(1)) are 
treated as functionally independent of any other units, even though the 
units are located in the same building.
    (3) Common features. For purposes of this section, a common feature 
generally includes any real property (as defined in Sec. 1.263A-8(c)) 
that benefits real property produced by, or for, the taxpayer or a 
related person, and that is not separately held for the production of 
income. A common feature need not be physically contiguous to the real 
property that it benefits. Examples of common features include streets, 
sidewalks, playgrounds, clubhouses, tennis courts, sewer lines, and 
cables that are not held for the production of income separately from 
the units of real property that they benefit.
    (4) Allocation of costs to unit. Except as provided in paragraph 
(b)(5) of this section, the accumulated production expenditures for a 
unit of real property include, in all cases, the costs that directly 
benefit, or are incurred by reason of the production of, the unit of

[[Page 720]]

real property. Accumulated production expenditures also include the 
adjusted basis of property used to produce the unit of real property. 
The accumulated costs of a common feature or land that benefits more 
than one unit of real property, or that benefits designated property and 
property other than designated property, is apportioned among the units 
of designated property, or among the designated property and property 
other than designated property, in determining accumulated production 
expenditures. The apportionment of the accumulated costs of the common 
feature (allocable share) or land (attributable land costs) generally 
may be made using any method that is applied on a consistent basis and 
that reasonably reflects the benefits provided. For example, an 
apportionment based on relative costs to be incurred, relative space to 
be occupied, or relative fair market values may be reasonable.
    (5) Treatment of costs when a common feature is included in a unit 
of real property--(i) General rule. Except as provided in this paragraph 
(b)(5), the accumulated production expenditures of a unit of real 
property include the costs of functionally interdependent components 
(benefitted property) and an allocable share of the cost of common 
features throughout the entire production period of the unit. See Sec. 
1.263A-12, relating to the production period of a unit of property.
    (ii) Production activity not undertaken on benefitted property--(A) 
Direct production activity not undertaken--(1) In general. The costs of 
land attributable to a benefitted property may be treated as not 
included in accumulated production expenditures for a unit of real 
property for measurement dates prior to the first date a production 
activity (direct production activity), including the clearing and 
grading of land, has been undertaken with respect to the land 
attributable to the benefitted property. Thus, the costs of land 
attributable to a benefitted property (as opposed to land attributable 
to the common features) with respect to which no direct production 
activities have been undertaken may be treated as not included in the 
accumulated production expenditures of a unit of real property even 
though a production activity has begun on a common feature allocable to 
the unit.
    (2) Land attributable to a benefitted property. For purposes of this 
paragraph (b)(5)(ii), land attributable to a benefitted property 
includes all land in the unit of real property that includes the 
benefitted property other than land for a common feature. (Thus, land 
attributable to a benefitted property does not include land attributable 
to a common feature.)
    (B) Suspension of direct production activity after clearing and 
grading undertaken--(1) General rule. This paragraph (b)(5)(ii)(B) may 
be used to determine the accumulated production expenditures for a unit 
of real property, if the only production activity with respect to a 
benefitted property has been clearing and grading and no further direct 
production activity is undertaken with respect to the benefitted 
property for at least 120 consecutive days (i.e., direct production 
activity has ceased). Under this paragraph (b)(5)(ii)(B), the 
accumulated production expenditures attributable to a benefitted 
property qualifying under this paragraph (b)(5)(ii)(B) may be excluded 
from the accumulated production expenditures of the unit of real 
property even though production continues on a common feature allocable 
to the unit. For purposes of this paragraph (b)(5)(ii)(B), production 
activity is considered to occur during any time which would not qualify 
as a cessation of production activities under the suspension period 
rules of Sec. 1.263A-12(g).
    (2) Accumulated production expenditures. If this paragraph 
(b)(5)(ii)(B) applies, accumulated production expenditures attributable 
to the benefitted property of the unit of real property may be treated 
as not included in the accumulated production expenditures for the unit 
starting with the first measurement period beginning after the first day 
of the 120 consecutive day period, but must be included in the 
accumulated production expenditures for the unit beginning in the 
measurement period in which direct production activity has resumed on 
the benefitted

[[Page 721]]

property. Accumulated production expenditures with respect to common 
features allocable to the unit of real property may not be excluded 
under this paragraph (b)(5)(ii)(B).
    (iii) Common feature placed in service before the end of production 
of a benefitted property. To the extent that a common feature with 
respect to which all production activities to be undertaken by, or for, 
a taxpayer or a related person are completed is placed in service before 
the end of the production period of a unit that includes an allocable 
share of the costs of the common feature, the costs of the common 
feature are not treated as included in accumulated production 
expenditures of the unit for measurement periods beginning after the 
date the common feature is placed in service.
    (iv) Benefitted property sold before production completed on common 
feature. If a unit of real property is sold before common features 
included in the unit are completed, the production period of the unit 
ends on the date of sale. Thus, common feature costs actually incurred 
and properly allocable to the unit as of the date of sale are excluded 
from accumulated production expenditures for measurement periods 
beginning after the date of sale. Common feature costs properly 
allocable to the unit and actually incurred after the sale are not taken 
into account in determining accumulated production expenditures.
    (v) Benefitted property placed in service before production 
completed on common feature. Where production activities remain to be 
undertaken on a common feature allocable to a unit of real property that 
includes benefitted property, the costs of the benefitted property are 
not treated as included in the accumulated production expenditures for 
the unit for measurement periods beginning after the date the benefitted 
property is placed in service and all production activities reasonably 
expected to be undertaken by, or for, the taxpayer or a related person 
with respect to the benefitted property are completed.
    (6) Examples. The principles of paragraph (b) of this section are 
illustrated by the following examples:

    Example 1. B, an individual, is in the trade or business of 
constructing custom-built houses for sale. B owns a 10-acre tract upon 
which B intends to build four houses on 2-acre lots. In addition, on the 
remaining 2 acres B plans to construct a perimeter road that benefits 
the four houses and is not held for the production of income separately 
from the sale of the houses. In 1995, B begins constructing the 
perimeter road and clears the land for one house. Under the principles 
of paragraph (b)(1) of this section, each planned house (including 
attributable land) is part of a separate unit of real property (house 
unit). Under the principles of paragraph (b)(3) of this section, the 
perimeter road (including attributable land) constitutes a common 
feature with respect to each planned house (i.e., benefitted property). 
In accordance with paragraph (b)(1), the production period for all four 
house units begins when production commences on the perimeter road in 
1995. In addition, under the principles of paragraph (b)(4) of this 
section, the accumulated production expenditures for the four house 
units include the allocable costs of the road. In addition, for the 
house with respect to which B has cleared the land, the accumulated 
production expenditures for the house unit include the land costs 
attributable to the house. See paragraph (b)(5)(i) of this section. 
However, the accumulated production expenditures for each of the three 
house units that include a house for which B has not yet undertaken a 
direct production activity do not include the land costs attributable to 
the house. See paragraph (b)(5)(ii) of this section.
    Example 2. Assume the same facts as Example 1, except that B 
undertakes no further direct production activity with respect to the 
house for which the land was cleared for a period of at least 120 days 
but continues constructing the perimeter road during this period. In 
accordance with paragraph (b)(5)(ii)(B) of this section, B may exclude 
the accumulated production expenditures attributable to the benefitted 
property from the accumulated production expenditures of the house unit 
starting with the first measurement period that begins after the first 
day of the 120 consecutive day period. B must include the accumulated 
production expenditures attributable to the benefitted property in the 
accumulated production expenditures for the house unit beginning with 
the measurement period in which direct production resumes on the 
benefitted property. The house unit will continue to include the 
accumulated production expenditures attributable to the perimeter road 
during the period in which direct production activity was suspended on 
the benefitted property.
    Example 3. (i) D, a corporation, is in the trade or business of 
developing commercial real property. D owns a 20-acre tract upon which D 
intends to build a shopping center with 150 stores. D intends to lease 
the stores. D will also provide on the 20 acres a 1500-car

[[Page 722]]

parking lot, which is not held by D for the production of income 
separately from the stores in the shopping center. Additionally, D will 
not produce any other common features as part of the project. D intends 
to complete the shopping center in phases and expects that each store 
will be placed in service independently of any other store.
    (ii) Under paragraphs (b)(1) and (b)(2) of this section, each store 
(including attributable land) is part of a separate unit of real 
property (store unit). The 1500-car parking lot is a common feature 
benefitting each store, and D must include an allocable share of the 
parking lots in each store unit. See paragraphs (b)(1) and (b)(3). In 
accordance with paragraph (b)(5)(i), D includes in the accumulated 
production expenditures for each store unit during each store unit's 
production period: the costs capitalized with respect to the store 
(including attributable land costs in accordance with paragraph (b)(5) 
of this section) and an allocable share of the parking lot costs 
(including attributable land costs in accordance with paragraph (b)(5) 
of this section). Under paragraph (b)(4), the portion of the parking lot 
costs that is included in the accumulated production expenditures of a 
store unit is determined using a reasonable method of allocation.
    Example 4. X, a real estate developer, begins a project to construct 
a condominium building and a convenience store for the benefit of the 
condominium. X intends to separately lease the convenience store. 
Because the convenience store is held for the production of income 
separately from the condominium units that it benefits, the convenience 
store is not a common feature with respect to the condominium building. 
Instead, the convenience store is a separate unit of property with a 
separate production period and for which a separate determination of 
accumulated production expenditures must be made.
    Example 5. (i) In 1995, X, a real estate developer, begins a project 
consisting of a condominium building and a common swimming pool that is 
not held for the production of income separately from the condominium 
sales. The condominium building consists of 10 stories, and each story 
is occupied by a single condominium. Production of the swimming pool 
begins in January. No direct production activity is undertaken on any 
condominium until September, when direct production activity commences 
on each condominium. On December 31, 1995, 1 condominium that was 
completed in December has been sold, 3 condominiums that were completed 
in December have not been sold, and 6 condominiums are only partially 
complete; additionally, the swimming pool is completed. X is a calendar 
year taxpayer that uses a full taxable year as the computation period, 
and quarterly measurement dates.
    (ii) Under paragraphs (b)(1) and (b)(2) of this section, each 
condominium (including attributable land) is part of a separate unit of 
real property. Under the principles of paragraph (b)(3) of this section, 
the swimming pool is a common feature with respect to each condominium 
and under paragraph (b)(4) of this section the cost of the swimming pool 
is allocated equally among the condominiums.
    (iii) Under paragraph (b)(1) of this section, the production period 
of each of the 10 condominium units begins in January when production of 
the swimming pool begins. On X's March 31, 1995, and June 30, 1995, 
measurement dates, the accumulated production expenditures for each 
condominium unit include the allocable costs of the swimming pool, but 
not the land costs attributable to the condominium because no direct 
production activity has been undertaken on the condominium. See 
paragraph (b)(5)(ii)(A) of this section. On X's September 30, 1995, and 
December 31, 1995, measurement dates, the accumulated production 
expenditures for each unit include the allocable costs of the swimming 
pool, and the costs of the condominium (including attributable land 
costs) because a direct production activity has commenced on the 
condominium. See paragraph (b)(5)(i) of this section.
    (iv) The production period for the condominium unit that includes 
the condominium that is sold as of the end of 1995 ends on the date the 
condominium is sold. See paragraph (b)(5)(iv) of this section. The 
production period of each unit that is ready to be held for sale ends 
when all production activities have been completed on the unit, in this 
case on December 31, 1995, the date that the swimming pool included in 
the unit is completed. See Sec. 1.263A-12(d). Accordingly, interest 
capitalization ceases for each such unit that is sold or ready to be 
held for sale as of the end of 1995 (including each unit's allocable 
share of the completed swimming pool).
    (v) The production periods for the condominium units that include 
the condominiums that are only partially complete at the end of 1995 
continue after 1995. The accumulated production expenditures for each 
partially completed condominium unit continue to include the costs of 
the condominium (including attributable land costs) in addition to the 
costs of an allocable share of the completed swimming pool (including 
attributable land costs).
    Example 6. Assume the same facts as in Example 5, except that the 
swimming pool is only partially complete as of the end of 1995. Under 
these facts, X capitalizes no interest during 1996 for the 1 unit that 
includes the condominium sold during 1995 (including the costs of the 
allocable share of the swimming pool). See paragraph (b)(5)(iv) of this 
section. However, with respect to the 6 condominiums that are partially 
complete and the 3

[[Page 723]]

condominiums that are completed but unsold, interest capitalization 
continues after the end of 1995. The accumulated production expenditures 
for each of these 9 units include the costs of an allocable share of the 
swimming pool. See paragraph (b)(5)(i) of this section. In determining 
the costs of an allocable share of the swimming pool included in the 
accumulated production expenditures for each of the 9 units, X includes 
all costs of the swimming pool properly allocable to each unit, 
including those cost incurred as of the date of the sale of unit 1 that 
may have been used under applicable administrative procedures (e.g., 
Rev. Proc. 92-29, 1992-1 C.B. 748) in determining the basis of unit 1 
solely for purposes of computing gain or loss on the sale of unit 1. See 
Sec. 601.601(d)(2)(ii)(b) of this chapter.
    Example 7. (i) Assume the same facts as in Example 5, except that X 
intends to lease rather than sell the condominiums and the completed 
swimming pool is placed in service for depreciation purposes on December 
31, 1995. Additionally, assume that all 10 condominiums are partially 
completed at the end of 1995.
    (ii) Under these facts, because the swimming pool is a common 
feature that is placed in service separately from the condominiums that 
it benefits, under paragraph (b)(5)(iii) of this section, the 
accumulated production expenditures of each of the condominium units do 
not include the costs of the allocable share of the swimming pool after 
1995.

    (c) Units of tangible personal property. Components of tangible 
personal property are a single unit of property if the components are 
functionally interdependent. Components of tangible personal property 
that are produced by, or for, the taxpayer, for use by the taxpayer or a 
related person, are functionally interdependent if the placing in 
service of one component is dependent on the placing in service of the 
other component by the taxpayer or a related person. In the case of 
tangible personal property produced for sale, components of tangible 
personal property are functionally interdependent if they are 
customarily sold as a single unit. For example, if an aircraft 
manufacturer customarily sells completely assembled aircraft, the unit 
of property includes all components of a completely assembled aircraft. 
If the manufacturer also customarily sells aircraft engines separately, 
any engines that are reasonably expected to be sold separately are 
treated as single units of property.
    (d) Treatment of installations. If the taxpayer produces or is 
treated as producing any property that is installed on or in other 
property, the production activity and installation activity relating to 
each unit of property generally are not aggregated for purposes of this 
section. However, if the taxpayer is treated as producing and installing 
any property for use by the taxpayer or a related person or if the 
taxpayer enters into a contract requiring the taxpayer to install 
property for use by a customer, the production activity and installation 
activity are aggregated for purposes of this section.

[T.D. 8584, 59 FR 67207, Dec. 29, 1994; 60 FR 16574, 16575, Mar. 31, 
1995]



Sec. 1.263A-11  Accumulated production expenditures.

    (a) General rule. Accumulated production expenditures generally 
means the cumulative amount of direct and indirect costs described in 
section 263A(a) that are required to be capitalized with respect to the 
unit of property (as defined in Sec. 1.263A-10), including interest 
capitalized in prior computation periods, plus the adjusted bases of any 
assets described in paragraph (d) of this section that are used to 
produce the unit of property during the period of their use. Accumulated 
production expenditures may also include the basis of any property 
received by the taxpayer in a nontaxable transaction.
    (b) When costs are first taken into account--(1) In general. Except 
as provided in paragraph (c)(1) of this section, costs are taken into 
account in the computation of accumulated production expenditures at the 
time and to the extent they would otherwise be taken into account under 
the taxpayer's method of accounting (e.g., after applying the 
requirements of section 461, including the economic performance 
requirement of section 461(h)). Costs that have been incurred and 
capitalized with respect to a unit of property prior to the beginning of 
the production period are taken into account as accumulated production 
expenditures beginning on the date on which the production period of the 
property begins (as defined in Sec. 1.263A-12(c)). Thus, for example, 
the cost of raw land acquired for development, the cost of a leasehold 
in mineral properties acquired for development, and

[[Page 724]]

the capitalized cost of planning and design activities are taken into 
account as accumulated production expenditures beginning on the first 
day of the production period. For purposes of determining accumulated 
production expenditures on any measurement date during a computation 
period, the interest required to be capitalized for the computation 
period is deemed to be capitalized on the day immediately following the 
end of the computation period. For any subsequent measurement dates and 
computation periods, that interest is included in accumulated production 
expenditures. If the cost of land or common features is allocated among 
planned units of property that are completed in phases, any portion of 
the cost properly allocated to completed units is not reallocated to any 
incomplete units of property.
    (2) Dedication rule for materials and supplies. The costs of raw 
materials, supplies, or similar items are taken into account as 
accumulated production expenditures when they are incurred and dedicated 
to production of a unit of property. Dedicated means the first date on 
which the raw materials, supplies, or similar items are specifically 
associated with the production of any unit of property, including by 
record, assignment to the specific job site, or physical incorporation. 
In contrast, in the case of a component or subassembly that is 
reasonably expected to be become a part of (e.g., be incorporated into) 
any unit of property, costs incurred (including dedicated raw materials) 
for the component or subassembly are taken into account as accumulated 
production expenditures during the production of any portion of the 
component or subassembly and prior to its connection with (e.g., 
incorporation into) any specific unit of property. For purposes of the 
preceding sentence, components and subassemblies must be aggregated at 
each measurement date in a reasonable manner that is consistent with the 
purposes of section 263A(f).
    (c) Property produced under a contract--(1) Customer. If a unit of 
property produced under a contract is designated property under Sec. 
1.263A-8(d)(2)(i) with respect to the customer, the customer's 
accumulated production expenditures include any payments under the 
contract that represent part of the purchase price of the unit of 
designated property or, to the extent costs are incurred earlier than 
payments are made (determined on a cumulative basis for each unit of 
designated property), any part of such price for which the requirements 
of section 461 have been satisfied. The customer has made a payment 
under this section if the transaction would be considered a payment by a 
taxpayer using the cash receipts and disbursements method of accounting. 
The customer's accumulated production expenditures also include any 
other costs incurred by the customer, such as interest, or any other 
direct or indirect costs that are required to be capitalized under 
section 263A(a) and the regulations thereunder with respect to the 
production of the unit of designated property.
    (2) Contractor. If a unit of property produced under a contract is 
designated property under Sec. 1.263A-8(d)(2)(ii) with respect to the 
contractor, the contractor must treat the cumulative amount of payments 
made by the customer under the contract attributable to the unit of 
property as a reduction in the contractor's accumulated production 
expenditures. The customer has made a payment under this section if the 
transaction would be considered a payment by a taxpayer using the cash 
receipts and disbursements method of accounting.
    (d) Property used to produce designated property--(1) In general. 
Accumulated production expenditures include the adjusted bases (or 
portion thereof) of any equipment, facilities, or other similar assets, 
used in a reasonably proximate manner for the production of a unit of 
designated property during any measurement period in which the asset is 
so used. Examples of assets used in a reasonably proximate manner 
include machinery and equipment used directly or indirectly in the 
production process, such as assembly-line structures, cranes, 
bulldozers, and buildings. A taxpayer apportions the adjusted basis of 
an asset used in the production of more than one unit of designated 
property in a measurement period

[[Page 725]]

among such units of designated property using reasonable criteria 
corresponding to the use of the asset, such as machine hours, mileage, 
or units of production. If an asset used in a reasonably proximate 
manner for the production of a unit of designated property is 
temporarily idle (within the meaning of Sec. 1.263A-1(e)(3)(iii)(E)) 
for an entire measurement period, the adjusted basis of the asset is 
excluded from the accumulated production expenditures for the unit 
during that measurement period. Notwithstanding this paragraph (d)(1), 
the portion of the depreciation allowance for equipment, facilities, or 
any other asset that is capitalized with respect to a unit of designated 
property in accordance with Sec. 1.263A-1(e)(3)(ii)(I) is included in 
accumulated production expenditures without regard to the extent of use 
under this paragraph (d)(1) (i.e., without regard to whether the asset 
is used in a reasonably proximate manner for the production of the unit 
of designated property).
    (2) Example. The following example illustrates how the basis of an 
asset is allocated on the basis of time:

    Example. In 1995, X uses a bulldozer exclusively to clear the land 
on several adjacent real estate development projects, A, B, and C. A, B, 
and C are treated as separate units of property under the principles of 
Sec. 1.263A-10. X decides to allocate the basis of the bulldozer among 
the three projects on the basis of time. At the end of the first quarter 
of 1995, the production period has commenced for all three projects. The 
bulldozer was operated for 30 hours on project A, 80 hours on project B, 
and 10 hours on project C, for a total of 120 hours for the entire 
period. For purposes of determining accumulated production expenditures 
as of the end of the first quarter, \1/4\ of the adjusted basis of the 
bulldozer is allocated to project A, \2/3\ to project B, and \1/12\ to 
project C. Nonworking hours, regularly scheduled nonworking days, or 
other periods in which the bulldozer is temporarily idle (within the 
meaning of Sec. 1.263A-1(e)(3)(iii)(E)) during the measurement period 
are not taken into account in allocating the basis of the bulldozer.

    (3) Excluded equipment and facilities. The adjusted bases of 
equipment, facilities, or other assets that are not used in a reasonably 
proximate manner to produce a unit of property are not included in the 
computation of accumulated production expenditures. For example, the 
adjusted bases of equipment and facilities, including buildings and 
other structures, used in service departments performing administrative, 
purchasing, personnel, legal, accounting, or similar functions, are 
excluded from the computation of accumulated production expenditures 
under this paragraph (d)(3).
    (e) Improvements--(1) General rule. If an improvement constitutes 
the production of designated property under $1.263A-8(d)(3), accumulated 
production expenditures with respect to the improvement consist of--
    (i) All direct and indirect costs required to be capitalized with 
respect to the improvement,
    (ii) In the case of an improvement to a unit of real property--
    (A) An allocable portion of the cost of land, and
    (B) For any measurement period, the adjusted basis of any existing 
structure, common feature, or other property that is not placed in 
service or must be temporarily withdrawn from service to complete the 
improvement (associated property) during any part of the measurement 
period if the associated property directly benefits the property being 
improved, the associated property directly benefits from the 
improvement, or the improvement was incurred by reason of the associated 
property. See, however, the de minimis rule under paragraph (e)(2) of 
this section that applies in the case of associated property.
    (iii) In the case of an improvement to a unit of tangible personal 
property, the adjusted basis of the asset being improved if that asset 
either is not placed in service or must be temporarily withdrawn from 
service to complete the improvement.
    (2) De minimis rule. For purposes of paragraph (e)(1)(ii) of this 
section, the total costs of all associated property for an improvement 
unit (associated property costs) are excluded from the accumulated 
production expenditures for the improvement unit during its production 
period if, on the date the production period of the unit begins, the 
taxpayer reasonably expects that at no time during the production period 
of the unit will the accumulated production expenditures for the unit,

[[Page 726]]

determined without regard to the associated property costs, exceed 5 
percent of the associated property costs.
    (f) Mid-production purchases. If a taxpayer purchases a unit of 
property for further production, the taxpayer's accumulated production 
expenditures include the full purchase price of the property plus, in 
accordance with the principles of paragraph (e) of this section, 
additional direct and indirect costs incurred by the taxpayer.
    (g) Related person costs. The activities of a related person are 
taken into account in applying the classification thresholds under Sec. 
1.263A-8(b)(1)(ii)(B) and (C), and in determining the production period 
of a unit of designated property under Sec. 1.263A-12. However, only 
those costs incurred by the taxpayer are taken into account in the 
taxpayer's accumulated production expenditures under this section 
because the related person includes its own capitalized costs in the 
related person's accumulated production expenditures with respect to any 
unit of designated property upon which the parties engage in mutual 
production activities. For purposes of the preceding sentence, the 
accumulated production expenditures of any property transferred to a 
taxpayer in a nontaxable transaction are treated as accumulated 
production expenditures incurred by the taxpayer.
    (h) Installation. If the taxpayer installs property that is 
purchased by the taxpayer, accumulated production expenditures include 
the cost of the property that is installed in addition to the direct and 
indirect costs of installation.

[T.D. 8584, 59 FR 67210, Dec. 29, 1994; 60 FR 16575, Mar. 31, 1995]



Sec. 1.263A-12  Production period.

    (a) In general. Capitalization of interest is required under Sec. 
1.263A-9 for computation periods (within the meaning of Sec. 1.263A-
9(f)(1)) that include the production period of a unit of designated 
property. In contrast, section 263A(a) requires the capitalization of 
all other direct or indirect costs, such as insurance, taxes, and 
storage, that directly benefit or are incurred by reason of the 
production of property without regard to whether they are incurred 
during a period in which production activity occurs.
    (b) Related person activities. Activities performed and costs 
incurred by a person related to the taxpayer that directly benefit or 
are incurred by reason of the taxpayer's production of designated 
property are taken into account in determining the taxpayer's production 
period (regardless of whether the related person is performing only a 
service or is producing a subassembly or component that the related 
person is required to treat as an item of designated property). These 
activities and the related person's costs are also taken into account in 
determining whether tangible personal property produced by the taxpayer 
is 1-year or 2-year property under Sec. 1.263A-8(b)(1)(ii) (B) and (C).
    (c) Beginning of production period--(1) In general. A separate 
production period is determined for each unit of property defined in 
Sec. 1.263A-10. The production period begins on the date that 
production of the unit of property begins.
    (2) Real property. The production period of a unit of real property 
begins on the first date that any physical production activity (as 
defined in paragraph (e) of this section) is performed with respect to a 
unit of real property. See Sec. 1.263A-10(b)(1). The production period 
of a unit of real property produced under a contract begins for the 
contractor on the date the contractor begins physical production 
activity on the property. The production period of a unit of real 
property produced under a contract begins for the customer on the date 
either the customer or the contractor begins physical production 
activity on the property.
    (3) Tangible personal property. The production period of a unit of 
tangible personal property begins on the first date by which the 
taxpayer's accumulated production expenditures, including planning and 
design expenditures, are at least 5 percent of the taxpayer's total 
estimated accumulated production expenditures for the property unit. 
Thus, the beginning of the production period is determined without 
regard to whether physical production activity has commenced. The 
production period of a unit of tangible personal property

[[Page 727]]

produced under a contract begins for the contractor when the 
contractor's accumulated production expenditures, without any reduction 
for payments from the customer, are at least 5 percent of the 
contractor's total estimated accumulated production expenditures. The 
production period for a unit of tangible personal property produced 
under a contract begins for the customer when the customer's accumulated 
production expenditures are at least 5 percent of the customer's total 
estimated accumulated production expenditures.
    (d) End of production period--(1) In general. The production period 
for a unit of property produced for self use ends on the date that the 
unit is placed in service and all production activities reasonably 
expected to be undertaken by, or for, the taxpayer or a related person 
are completed. The production period for a unit of property produced for 
sale ends on the date that the unit is ready to be held for sale and all 
production activities reasonably expected to be undertaken by, or for, 
the taxpayer or a related person are completed. See, however, Sec. 
1.263A-10(b)(5)(iv) providing an exception for common features in the 
case of a benefitted property that is sold. In the case of a unit of 
property produced under a contract, the production period for the 
customer ends when the property is placed in service by the customer and 
all production activities reasonably expected to be undertaken are 
complete (i.e., generally, no earlier than when the customer takes 
delivery). In the case of property that is customarily aged (such as 
tobacco, wine, or whiskey) before it is sold, the production period 
includes the aging period.
    (2) Special rules. The production period does not end for a unit of 
property prior to the completion of physical production activities by 
the taxpayer even though the property is held for sale or lease, since 
all production activities reasonably expected to be undertaken by the 
taxpayer with respect to such property have not in fact been completed. 
See, however, Sec. 1.263A-10(b)(5) regarding separation of certain 
common features.
    (3) Sequential production or delivery. The production period ends 
with respect to each unit of property (as defined in Sec. 1.263A-10) 
and its associated accumulated production expenditures as the unit of 
property is completed within the meaning of paragraph (d)(1) of this 
section, without regard to the production activities or costs of any 
other units of property. Thus, for example, in the case of separate 
apartments in a multi-unit building, each of which is a separate unit of 
property within the meaning of Sec. 1.263A-10, the production period 
ends for each separate apartment when it is ready to be held for sale or 
placed in service within the meaning of paragraph (d)(1) of this 
section. In the case of a single unit of property that merely undergoes 
separate and distinct stages of production, the production period ends 
at the same time (i.e., when all separate stages of production are 
completed with respect to the entire amount of accumulated production 
expenditures for the property).
    (4) Examples. The provisions of paragraph (d) of this section are 
illustrated by the following examples:

    Example 1. E is engaged in the original construction of a high-rise 
office building with two wings. At the end of 1995, Wing 1, but 
not Wing 2, is placed in service. Moreover, at the end of 1995, 
all production activities reasonably expected to be undertaken on Wing 
1 are completed. In accordance with Sec. 1.263A-10(b)(1), Wing 
1 and Wing 2 are separate units of designated 
property. E may stop capitalizing interest on Wing 1 but not on 
Wing 2.
    Example 2. F is in the business of constructing finished houses. F 
generally paints and finishes the interior of the house, although this 
does not occur until a potential buyer is located. Because F reasonably 
expects to undertake production activity (painting and finishing), the 
production period of each house does not end until these activities are 
completed.

    (e) Physical production activities--(1) In general. The term 
physical production activities includes any physical activity that 
constitutes production within the meaning of Sec. 1.263A-8(d)(1). The 
production period begins and interest must be capitalized with respect 
to real property if any physical production activities are undertaken, 
whether alone or in preparation for the construction of buildings or 
other structures, or with respect to the improvement of existing

[[Page 728]]

structures. For example, the clearing of raw land constitutes the 
production of designated property, even if only cleared prior to resale.
    (2) Illustrations. The following is a partial list of activities any 
one of which constitutes a physical production activity with respect to 
the production of real property:
    (i) Clearing, grading, or excavating of raw land;
    (ii) Demolishing a building or gutting a standing building;
    (iii) Engaging in the construction of infrastructure, such as roads, 
sewers, sidewalks, cables, and wiring;
    (iv) Undertaking structural, mechanical, or electrical activities 
with respect to a building or other structure; or
    (v) Engaging in landscaping activities.
    (f) Activities not considered physical production. The activities 
described in paragraphs (f)(1) and (f)(2) of this section are not 
considered physical production activities:
    (1) Planning and design. Soil testing, preparing architectural 
blueprints or models, or obtaining building permits.
    (2) Incidental repairs. Physical activities of an incidental nature 
that may be treated as repairs under Sec. 1.162-4.
    (g) Suspension of production period--(1) In general. If production 
activities related to the production of a unit of designated property 
cease for at least 120 consecutive days (cessation period), a taxpayer 
may suspend the capitalization of interest with respect to the unit of 
designated property starting with the first measurement period that 
begins after the first day in which production ceases. The taxpayer must 
resume the capitalization of interest with respect to a unit beginning 
with the measurement period during which production activities resume. 
In addition, production activities are not considered to have ceased if 
they cease because of circumstances inherent in the production process, 
such as normal adverse weather conditions, scheduled plant shutdowns, or 
delays due to design or construction flaws, the obtaining of a permit or 
license, or the settlement of groundfill to construct property. Interest 
incurred on debt that is traced debt with respect to a unit of 
designated property during the suspension period is subject to 
capitalization with respect to the production of other units of 
designated property as interest on nontraced debt. See Sec. 1.263A-
9(c)(5)(i) of this section. For applications of the avoided cost method 
after the end of the suspension period, the accumulated production 
expenditures for the unit include the balance of accumulated production 
expenditures as of the beginning of the suspension period, plus any 
additional capitalized costs incurred during the suspension period. No 
further suspension of interest capitalization may occur unless the 
requirements for a new suspension period are satisfied.
    (2) Special rule. If a cessation period spans more than one taxable 
year, the taxpayer may suspend the capitalization of interest with 
respect to a unit beginning with the first measurement period of the 
taxable year in which the 120-day period is satisfied.
    (3) Method of accounting. An election to suspend interest 
capitalization under paragraph (g)(1) of this section is a method of 
accounting that must be consistently applied to all units that satisfy 
the requirements of paragraph (g)(1) of this section. However, the 
special rule in paragraph (g)(2) of this section is applied on an annual 
basis to all units of an electing taxpayer that satisfy the requirements 
of paragraph (g)(2) of this section.
    (4) Example. The provisions of paragraph (g)(1) of this section are 
illustrated by the following example.

    Example. (i) D, a calendar-year taxpayer, began production of a 
residential housing development on January 1, 1995. D, in applying the 
avoided cost method, chose a taxable year computation period and 
quarterly measurement dates. On April 10, 1995, all production 
activities ceased with respect to the units in the development until 
December 1, 1996. The cessation, which occurred for a period of at least 
120 consecutive days, was not attributable to circumstances inherent in 
the production process. With respect to the units in the development, D 
incurred production expenditures of $2,000,000 from January 1, 1995 
through April 10, 1995. D incurred interest of $100,000 on traced debt 
with respect to the units for the period beginning January 1, 1995, and 
ending June 30, 1995. D did not incur any production expenditures for 
the more than 20-month cessation beginning April 10, 1995, and ending 
December 1, 1996,

[[Page 729]]

but incurred $200,000 of production expenditures from December 1, 1996, 
through December 31, 1996.
    (ii) D is required to capitalize the $100,000 interest on traced 
debt incurred during the two measurement periods beginning January 1, 
1995, and ending June 30, 1995. Because D satisfied the 120-day rule 
under this paragraph (g), D is not required to capitalize interest with 
respect to the accumulated production expenditures for the units for the 
measurement period beginning July 1, 1995, and ending September 30, 
1995, which is the first measurement period that begins after the date 
production activities cease. D is rquired to resume interest 
capitalization with respect to the $2,300,000 
(2,000,000+100,000+200,000) of accumulated production expenditures for 
the units for the measurement period beginning October 1, 1996, and 
ending December 31, 1996 (the measurement period during which production 
activities resume). Accordingly, D may suspend the capitalization of 
interest with respect to the units from July 1, 1995, through September 
30, 1996.

[T.D. 8584, 59 FR 67212, Dec. 29, 1994; 60 FR 16575, Mar. 31, 1995]



Sec. 1.263A-13  Oil and gas activities.

    (a) In general. This section provides rules that are to be applied 
in tandem with Sec. Sec. 1.263A-8 through 1.263A-12, 1.263A-14, and 
1.263A-15 in capitalizing interest with respect to the development 
(within the meaning of section 263A(g)) of oil or gas property. For this 
purpose, oil or gas property consists of each separate operating mineral 
interest in oil or gas as defined in section 614(a), or, if a taxpayer 
makes an election under section 614(b), the aggregate of two or more 
separate operating mineral interests in oil or gas as described in 
section 614(b) (section 614 property). Thus, an oil or gas property is 
designated property unless the de minimis rule applies. A taxpayer must 
apply the rules in paragraph (c) of this section if the taxpayer cannot 
establish, at the beginning of the production period of the first well 
drilled on the property, a definite plan that identifies the number and 
location of other wells planned with respect to the property. If a 
taxpayer can establish such a plan at the beginning of the production 
period of the first well drilled on the property, the taxpayer may 
either apply the rules of paragraph (c) of this section or treat each of 
the planned wells as a separate unit and partition the leasehold 
acquisition costs and costs of common features based on the number of 
planned well units.
    (b) Generally applicable rules--(1) Beginning of production period--
(i) Onshore activities. In the case of onshore oil or gas development 
activities, the production period for a unit begins on the first date 
physical site preparation activities (such as building an access road, 
leveling a site for a drilling rig, or excavating a mud pit) are 
undertaken with respect to the unit.
    (ii) Offshore activities. In the case of offshore development 
activities, the production period for a unit begins on the first date 
physical site preparation activities, other than activities undertaken 
with respect to expendable wells, are undertaken with respect to the 
unit. For purposes of the preceding sentence, the first physical site 
preparation activity undertaken with respect to a section 614 property 
is generally the first activity undertaken with respect to the anchoring 
of a platform (e.g., drilling to drive the piles). For purposes of this 
section, an expendable well is a well drilled solely to determine the 
location and delineation of offshore hydrocarbon deposits.
    (2) End of production period. The production period ends for a 
productive well unit on the date the well is placed in service and all 
production activities reasonably expected to be undertaken by, or for, 
the taxpayer or a related person are completed. See Sec. 1.263A-12(d).
    (3) Accumulated production expenditures--(i) Costs included. 
Accumulated production expenditures for a well unit include the 
following costs (to the extent they are not intangible drilling and 
development costs allowable as a deduction under section 263(c), 263(i), 
or 291(b)(2)): the costs of acquiring the section 614 leasehold and the 
costs of taxes and similar items that are required to be capitalized 
under section 263A(a) with respect to the section 614 leasehold; the 
cost of real property associated with developing the section 614 
property (e.g., casing); the basis of real property that constitutes a 
common feature within the meaning of Sec. 1.263A-10(b)(3); and the 
adjusted basis of property used to produce property

[[Page 730]]

(such as a mobile rig, drilling ship, or an offshore drilling platform).
    (ii) Improvement unit. To the extent section 614 costs are allocated 
to a well unit, the undepleted portion of those section 614 costs must 
also be included in the accumulated production expenditures for any 
improvement unit (within the meaning of Sec. 1.263A-8(d)(3)) with 
respect to that well unit.
    (c) Special rules when definite plan not established--(1) In 
general. The special rules of this paragraph (c) must be applied by a 
taxpayer that cannot establish, at the beginning of the production 
period of the first well drilled on the property, a definite plan that 
identifies the number and location of the wells planned with respect to 
the property. A taxpayer than can establish such a plan is permitted, 
but not required, to apply the rules of this paragraph (c), provided the 
rules of this paragraph (c) are consistently applied for all the 
taxpayer's oil or gas properties for which a definite plan can be 
established.
    (2) Oil and gas units--(i) First productive well unit. Until the 
first productive well is placed in service and all production activities 
reasonably expected to be undertaken by, or for, the taxpayer or a 
related person are completed, a first productive well unit includes the 
section 614 property and all real property associated with the 
development of the section 614 property. Thus, for example, a first 
productive well unit includes the section 614 property and real property 
associated with any nonproductive well drilled on the section 614 
property on or before the date the first productive well is placed in 
service and all production activities reasonably expected to be 
undertaken by, or for, the taxpayer or a related person are completed. 
For purposes of this section, a productive well is a well that produces 
in commercial quantities. See paragraph (c)(5) of this section, which 
provides a special rule whereby the costs of a section 614 property and 
common feature costs for a section 614 property generally are included 
only in the accumulated production expenditures for the first productive 
well unit.
    (ii) Subsequent units. Generally, real property associated with each 
productive or nonproductive well with respect to which production 
activities begin after the date the first productive well is placed in 
service and all production activities reasonably expected to be 
undertaken by, or for, the taxpayer or a related person are completed, 
constitutes a unit of real property. Additionally, a productive or 
nonproductive well that is included in a first productive well unit and 
for which development continues after the date the first productive well 
is placed in service and all production activities reasonably expected 
to be undertaken by, or for, the taxpayer or a related person are 
completed, generally is treated as a separate unit of property after 
that date. See, however, paragraph (c)(5) of this section, which 
provides rules for the treatment of costs included in the accumulated 
production expenditures of a first productive well unit.
    (3) Beginning of production period--(i) First productive well unit. 
The beginning of the production period of the first productive well unit 
is determined as provided in paragraph (b) of this section.
    (ii) Subsequent wells. In applying paragraph (b) of this section to 
subsequent well units (as described in paragraph (c)(2)(ii) of this 
section), any activities occurring prior to the date the production 
period ends for the first productive well unit are not taken into 
account in determining the beginning of the production period for the 
subsequent well units.
    (4) End of production period. The end of the production period for 
both the first productive well unit and subsequent productive well units 
is determined as provided in paragraph (b)(2) of this section. See Sec. 
1.263A-12(d). Nonproductive wells included in the first productive well 
unit need not be plugged and abandoned for the production period to end 
for a first productive well unit.
    (5) Accumulated production expenditures--(i) First productive well 
unit. The accumulated production expenditures for a first productive 
well unit include all costs incurred with respect to the section 614 
property and associated real property at any time through the end of the 
production period for the first productive well unit. Thus, the costs of 
acquiring the section 614 property, the costs of taxes and similar items 
that

[[Page 731]]

are required to be capitalized under section 263A(a) with respect to the 
section 614 property, and the costs of common features, that are 
incurred at any time through the end of the production period of the 
first productive well unit (section 614 costs) are included in the 
accumulated production expenditures for the first productive well unit.
    (ii) Subsequent well unit. The accumulated production expenditures 
for a subsequent well do not include any costs included in the 
accumulated production expenditures for a first productive well unit. In 
the event that section 614 costs or common feature costs with respect to 
a section 614 property are incurred subsequent to the end of the 
production period of the first productive well unit, those common 
feature costs and undepleted section 614 costs are allocated among the 
accumulated production expenditures of wells being drilled as of the 
date such costs are incurred.
    (6) Allocation of interest capitalized with respect to first 
productive well unit. Interest attributable to any productive or 
nonproductive well included in the first productive well unit (within 
the meaning of paragraph (c)(2)(ii) of this section) is allocated among 
and capitalized to the basis of the property associated with the first 
productive well unit. See Sec. 1.263A-8(a)(2).
    (7) Example. The provisions of this paragraph (c) are illustrated by 
the following example.

    Example. (i) Corporation Z, an oil company, acquired a section 614 
property in an onshore tract, Tract B, for development. In 1995, 
Corporation Z began site preparation activities on Tract B and also 
commenced drilling Well 1 on Tract B. Corporation Z was unable to 
establish, as provided in paragraph (a) of this section, a definite plan 
identifying the number and location of other wells planned on Tract B. 
In 1996, Corporation Z began drilling Well 2. On May 1, 1997, Well 2, a 
productive well, was placed in service and all production activities 
reasonably expected to be undertaken with respect to Well 2 were 
completed. By that date, also, Well 1 was abandoned.
    (ii) Well 2 is a first productive well (within the meaning of 
paragraph (c)(2)(i) of this section). Well 1 is a nonproductive well 
drilled prior to a first productive well. Under paragraph (c) of this 
section, Corporation Z must treat both Well 1 and Well 2 as part of the 
first productive well unit on the section 614 property. In accordance 
with paragraphs (c)(3) and (c)(4) of this section, the production period 
of the first productive well unit begins on the date physical site 
preparation activities are undertaken with respect to Well 1 in 1995 and 
ends on May 1, 1997, the date that Well 2 is placed in service and all 
production activities reasonably expected to be undertaken are 
completed. In accordance with paragraph (c)(5) of this section, the 
accumulated production expenditures for the first productive well unit 
include, among other capitalized costs, the entire section 614 property 
costs capitalized with respect to Tract B and all common feature costs 
incurred with respect to the section 614 property through May 1, 1997.
    (iii) Any well that Corporation Z begins after May 1, 1997, is a 
separate unit of property. See paragraph (c)(2)(ii) of this section. 
Under paragraph (c)(3)(ii) of this section, the production period for 
any such well unit begins on the first day after May 1, 1997, on which 
Corporation Z undertakes physical site preparation activities with 
respect to the well unit. Moreover, Corporation Z does not include any 
of the section 614 property costs in the accumulated production 
expenditures for any well unit begun after May 1, 1997.

[T.D. 8584, 59 FR 67213, Dec. 29, 1994; 60 FR 16575, Mar. 31, 1995]



Sec. 1.263A-14  Rules for related persons.

    Taxpayers must account for average excess expenditures allocated to 
related persons under applicable administrative pronouncements 
interpreting section 263A(f). See Sec. 601.601(d)(2)(ii)(b) of this 
chapter.

[T.D. 8584, 59 FR 67215, Dec. 29, 1994]



Sec. 1.263A-15  Effective dates, transitional rules, and anti-abuse 
rule.

    (a) Effective dates--(1) Sections 1.263A-8 through 1.263A-15 
generally apply to interest incurred in taxable years beginning on or 
after January 1, 1995. In the case of property that is inventory in the 
hands of the taxpayer, however, these sections are effective for taxable 
years beginning on or after January 1, 1995. Changes in methods of 
accounting necessary as a result of the rules in Sec. Sec. 1.263A-8 
through 1.263A-15 must be made under the terms and conditions prescribed 
by the Commissioner. Under these terms and conditions, the principles of 
Sec. 1.263A-7 must be applied in revaluing inventory property.
    (2) For taxable years beginning before January 1, 1995, taxpayers 
must

[[Page 732]]

take reasonable positions on their federal income tax returns when 
applying section 263A(f). For purposes of this paragraph (a)(2), a 
reasonable position is a position consistent with the temporary 
regulations, revenue rulings, revenue procedures, notices, and 
announcements concerning section 263A applicable in taxable years 
beginning before January 1, 1995. See Sec. 601.601(d)(2)(ii)(b) of this 
chapter. For this purpose, Notice 88-99, 1988-2 C.B. 422, applies to 
taxable years beginning after August 17, 1988, in the case of inventory, 
and to interest incurred in taxable years beginning after August 17, 
1988, in all other cases. Finally, under administrative procedures 
issued by the Commissioner, taxpayers may elect early application of 
Sec. Sec. 1.263A-8 through 1.263A-15 to taxable years beginning on or 
after January 1, 1994, in the case of inventory property, and to 
interest incurred in taxable years beginning on or after January 1, 
1994, in the case of property that is not inventory in the hands of the 
taxpayer.
    (3) Section 1.263A-9(a)(4)(ix) generally applies to interest 
incurred in taxable years beginning on or after May 20, 2004. In the 
case of property that is inventory in the hands of the taxpayer, Sec. 
1.263A-9(a)(4)(ix) applies to taxable years beginning on or after May 
20, 2004. Taxpayers may elect to apply Sec. 1.263A-9(a)(4)(ix) to 
interest incurred in taxable years beginning on or after January 1, 
1995, or, in the case of property that is inventory in the hands of the 
taxpayer, to taxable years beginning on or after January 1, 1995. A 
change in a taxpayer's treatment of interest to a method consistent with 
Sec. 1.263A-9(a)(4)(ix) is a change in method of accounting to which 
sections 446 and 481 apply.
    (b) Transitional rule for accumulated production expenditures--(1) 
In general. Except as provided in paragraph (b)(2) of this section, 
costs incurred before the effective date of section 263A are included in 
accumulated production expenditures (within the meaning of Sec. 1.263A-
11) with respect to noninventory property only to the extent those costs 
were required to be capitalized under section 263 when incurred and 
would have been taken into account in determining the amount of interest 
required to be capitalized under former section 189 (relating to the 
capitalization of real property interest and taxes) or pursuant to an 
election that was in effect under section 266 (relating to the election 
to capitalize certain carrying charges).
    (2) Property used to produce designated property. The basis of 
property acquired prior to 1987 and used to produce designated 
noninventory property after December 31, 1986, is included in 
accumulated production expenditures in accordance with Sec. 1.263A-
11(d) without regard to whether the basis would have been taken into 
account under former section 189 or section 266.
    (c) Anti-abuse rule. The interest capitalization rules contained in 
Sec. Sec. 1.263A-8 through 1.263A-15 must be applied by the taxpayer in 
a manner that is consistent with and reasonably carries out the purposes 
of section 263A(f). For example, in applying Sec. 1.263A-10, regarding 
the definition of a unit of property, taxpayers may not divide a single 
unit of property to avoid property classifying the property as 
designated property. Similarly, taxpayers may not use loans in lieu of 
advance payments, tax-exempt parties, loan restructurings at measurement 
dates, or obligations bearing an unreasonably low rate of interest (even 
if such rate equals or exceeds the applicable Federal rate under section 
1274(d)) to avoid the purposes of section 263A(f). For purposes of this 
paragraph (c), the presence of back-to-back loans with different rates 
of interest, and other uses of related parties to facilitate an 
avoidance of interest capitalization, evidences abuse. In such cases, 
the District Director may, based upon all the facts and circumstances, 
determine the amount of interest that must be capitalized in a manner 
that is consistent with and reasonably carries out the purposes of 
section 263A(f).

[T.D. 8584, 59 FR 67215, Dec. 29, 1994, as amended by T.D. 8728, 62 FR 
42062, Aug. 5, 1997; T.D. 9179, 70 FR 8730, Feb. 23, 2005]



Sec. 1.264-1  Premiums on life insurance taken out in a trade or 
business.

    (a) When premiums are not deductible. Premiums paid by a taxpayer on 
a life insurance policy are not deductible from the taxpayer's gross 
income, even

[[Page 733]]

though they would otherwise be deductible as trade or business expenses, 
if they are paid on a life insurance policy covering the life of any 
officer or employee of the taxpayer, or any person (including the 
taxpayer) who is financially interested in any trade or business carried 
on by the taxpayer, when the taxpayer is directly or indirectly a 
beneficiary of the policy. For additional provisions relating to the 
nondeductibility of premiums paid on life insurance policies (whether 
under section 162 or any other section of the Code), see section 262, 
relating to personal, living, and family expenses, and section 265, 
relating to expenses allocable to tax-exempt income.
    (b) When taxpayer is a beneficiary. If a taxpayer takes out a policy 
for the purpose of protecting himself from loss in the event of the 
death of the insured, the taxpayer is considered a beneficiary directly 
or indirectly under the policy. However, if the taxpayer is not a 
beneficiary under the policy, the premiums so paid will not be 
disallowed as deductions merely because the taxpayer may derive a 
benefit from the increased efficiency of the officer or employee 
insured. See section 162 and the regulations thereunder. A taxpayer is 
considered a beneficiary under a policy where, for example, he, as a 
principal member of a partnership, takes out an insurance policy on his 
own life irrevocably designating his partner as the sole beneficiary in 
order to induce his partner to retain his investment in the partnership. 
Whether or not the taxpayer is a beneficiary under a policy, the 
proceeds of the policy paid by reason of the death of the insured may be 
excluded from gross income whether the beneficiary is an individual or a 
corporation, except in the case of (1) certain transferees, as provided 
in section 101(a)(2); (2) portions of amounts of life insurance proceeds 
received at a date later than death under the provisions of section 
101(d); and (3) life insurance policy proceeds which are includible in 
the gross income of a husband or wife under section 71 (relating to 
alimony) or section 682 (relating to income of an estate or trust in 
case of divorce, etc.). (See section 101(e).) For further reference, 
see, generally, section 101 and the regulations thereunder.



Sec. 1.264-2  Single premium life insurance, endowment, or annuity 
contracts.

    Amounts paid or accrued on indebtedness incurred or continued, 
directly or indirectly, to purchase or to continue in effect a single 
premium life insurance or endowment contract, or to purchase or to 
continue in effect a single premium annuity contract purchased (whether 
from the insurer, annuitant, or any other person) after March 1, 1954, 
are not deductible under section 163 or any other provision of chapter 1 
of the Code. This prohibition applies even though the insurance is not 
on the life of the taxpayer and regardless of whether or not the 
taxpayer is the annuitant or payee of such annuity contract. A contract 
is considered a single premium life insurance, endowment, or annuity 
contract, for the purposes of this section, if substantially all the 
premiums on the contract are paid within four years from the date on 
which the contract was purchased, or if an amount is deposited after 
March 1, 1954, with the insurer for payment of a substantial number of 
future premiums on the contract.



Sec. 1.264-3  Effective date; taxable years ending after March 1, 1954, 
subject to the Internal Revenue Code of 1939.

    Pursuant to section 7851(a)(1)(C), the regulations prescribed in 
Sec. 1.264-2, to the extent that they relate to amounts paid or accrued 
on indebtedness incurred or continued to purchase or carry a single 
premium annuity contract purchased after March 1, 1954, and to the 
extent they consider a contract a single premium life insurance, 
endowment, or annuity contract if an amount is deposited after March 1, 
1954, with the insurer for payment of a substantial number of future 
premiums on the contract, shall also apply to taxable years beginning 
before January 1, 1954, and ending after March 1, 1954, and to taxable 
years beginning after December 31, 1953, and ending after March 1, 1954, 
but before August 17, 1954, although such years are subject to the 
Internal Revenue Code of 1939.

[[Page 734]]



Sec. 1.264-4  Other life insurance, endowment, or annuity contracts.

    (a) General rule. Except as otherwise provided in paragraphs (d) and 
(e) of this section, no deduction shall be allowed under section 163 or 
any other provision of chapter 1 of the Code for any amount (determined 
under paragraph (b) of this section) paid or accrued during the taxable 
year on indebtedness incurred or continued to purchase or continue in 
effect a life insurance, endowment, or annuity contract (other than a 
single premium contract or a contract treated as a single premium 
contract) if such indebtedness is incurred pursuant to a plan of 
purchase which contemplates the systematic direct or indirect borrowing 
of part or all of the increases in the cash value of such contract 
(either from the insurer or otherwise). For the purposes of the 
preceding sentence, the term of purchase includes the payment of part or 
all of the premiums on a contract, and not merely payment of the premium 
due upon inital issuance of the contract. The rule of this paragraph 
applies whether or not the taxpayer is the insured, payee, or annuitant 
under the contract. the rule of this paragraph does not apply to 
contracts purchased by the taxpayer on or before August 6, 1963, even 
though there is a substantial increase in premiums after such date. The 
rule of this paragraph does not apply to any amount paid or accrued on 
indebtedness incurred or continued to purchase or carry a single premium 
life insurance, endowment, or annuity contract (including a contract 
treated as a single premium contract); the treatment of such amounts is 
governed by Sec. 1.264-2.
    (b) Determination of amount not allowed. The amount not allowed as a 
deduction under paragraph (a) of this section is determined with 
reference to the entire amount of borrowing to purchase or carry the 
contract, and is not limited with reference to the amount of borrowing 
of increases in the cash value. The rule of this paragraph may be 
illustrated by the following example:

    Example. A, a calendar year taxpayer using the cash receipts and 
disbursements method of accounting, on January 1, 1964, purchases from a 
life insurance company a policy in the amount of $100,000 with an annual 
gross premium of $2,200. For the first policy year, A pays the annual 
premium by means other than by borrowing. For the second, third, fourth, 
and fifth policy years, A continues the policy in effect by incurring 
indebtedness pursuant to a plan referred to in paragraph (a) of this 
section. The years and amounts applicable to the policy are as follows:

------------------------------------------------------------------------
                                      Cumulative                Interest
                                      cash value   Total loan   paid at
                Years                     of      outstanding     4.8
                                       contract                 percent
------------------------------------------------------------------------
1964................................        $370           0           0
1965................................       2,175      $2,200     $105.60
1966................................       4,000       4,400      211.20
1967................................       5,865       6,600      316.80
1968................................       7,745       8,800      422.40
------------------------------------------------------------------------

    On these facts (assuming that none of the exceptions contained in 
paragraph (d) of this section are applicable), no deduction is allowed 
for the interest paid during the year 1968. Moreover, the interest 
deduction will be disallowed for the taxable years 1965 through 1967 if 
such taxable years are not closed by reason of the statute of 
limitations or other rule of law.

    (c) Special rules. For purposes of this section:
    (1) Determination of existence of a plan which contemplates 
systematic borrowing--(i) In general. The determination of whether 
indebtedness is incurred or continued pursuant to a plan referred to in 
paragraph (a) of this section shall be made on the basis of all the 
facts and circumstances in each case. Unless the taxpayer shows 
otherwise, in the case of borrowing in connection with premiums for more 
than three years, the existence of a plan referred to in paragraph (a) 
of this section will be presumed. The mere fact that a taxpayer does not 
borrow to pay a premium in a particular year does not in and of itself 
preclude the existence of a plan referred to in paragraph (a) of this 
section. A plan referred to in paragraph (a) of this section need not 
exist at the time the contract is entered into, but may come into 
existence at any time during the 7-year period following the taxpayer's 
purchase of the contract or following a substantial increase (referred 
to in paragraph (d)(1) of this section) in premiums on the contract.
    (ii) Premium attributable to more than one year. For purposes of 
subdivision (i)

[[Page 735]]

of this subparagraph, if the stated annual premiums due on a contract 
vary in amount, borrowing in connection with any premium, the amount of 
which exceeds the amount of any other premium, on such contract may be 
considered borrowing to pay premiums for more than one year. The 
preceding sentence shall not apply where the borrowing is in connection 
with a substantially increased premium within the meaning of paragraph 
(d)(1) of this section.
    (2) Direct or indirect. A plan referred to in paragraph (a) of this 
section may contemplate direct or indirect borrowing of increases in 
cash value of the contract directly or indirectly to pay premiums and 
many contemplate borrowing either from an insurance carrier, from a 
bank, or from any other person. Thus, for example, if a taxpayer borrows 
$100,000 from a bank and uses the funds to purchase securities, later 
borrows $100,000 from a second bank and uses the funds to repay the 
first bank, later sells the securities and uses the funds as a part of a 
plan referred to in paragraph (a) of this section to pay premiums on a 
contract of cash value life insurance, the deduction for interest paid 
in continuing the loan from the second bank shall not be allowed 
(assuming that none of the exceptions contained in paragraph (d) of this 
section are applicable). Moreover, a plan referred to in paragraph (a) 
of this section need not involve a pledge of the contract, but may 
contemplate unsecured borrowing or the use of other property.
    (d) Exceptions. No deduction shall be denied under paragraph (a) of 
this section with respect to any amount paid or accrued during a taxable 
year on indebtedness incurred or continued as part of a plan referred to 
in paragraph (a) of this section if any of the following exceptions 
apply.
    (1) The 7-year exception--(i) In general. No part of 4 of the annual 
premiums due during the 7-year period (beginning with the date the first 
premium on the contract to which such plan relates was paid) is paid 
under such plan by means of indebtedness. For purposes of this 
exception, in the event of a substantial increase in any annual premium 
on a contract, a new 7-year period begins on the date such increased 
premium is paid. If premiums on a contract are payable other than on an 
annual basis (for example, monthly), the annual premium is the aggregate 
of premiums due for the year. See paragraph (c)(1)(ii) of this section 
for cases where one premium on a contract paid by means of indebtedness 
may be considered as more than one annual premium.
    (ii) Application of borrowings. For purposes of subdivision (i) of 
this subparagraph, if during a 7-year period referred to in such 
subdivision the taxpayer, directly or indirectly, borrows with respect 
to more than one annual premium on a contract, such borrowing shall be 
considered first attributable to the premium for the current policy year 
(within the meaning of subdivision (iii) of this subparagraph) and then 
attributable to premiums for prior policy years beginning with the most 
recent prior policy year (but not including any prior policy year to the 
extent that such taxpayer has indebtedness outstanding with respect to 
the premium for such prior policy year). If such borrowing exceeds the 
premiums paid for the current policy year and for prior policy years and 
the taxpayer has, with respect to the current policy year, deposited 
premiums in advance of the due date of such premiums, such excess 
borrowing shall be considered indebtedness incurred to carry the 
contract which is attributable to the premiums deposited for succeeding 
policy years beginning with the premium for the next succeeding policy 
year. The preceding sentence shall not apply to a single premium 
contract referred to in Sec. 1.264-2.
    (iii) Current policy year. For purposes of subdivision (ii) of this 
subparagraph, the term current policy year refers to the policy year 
which begins with or within the taxable year of the taxpayer.
    (iv) Illustrations. The provisions of subdivision (ii) of this 
subparagraph may be illustrated by the following examples:

    Example 1. A, a calendar year taxpayer using the cash receipts and 
disbursements method of accounting, on January 1, 1964, purchases from a 
life insurance company a

[[Page 736]]

policy in the amount of $100,000 with an annual gross premium of $2,200. 
For the first four policy years, A initially pays the annual premium by 
means other than borrowing. On January 1, 1968, pursuant to a plan 
referred to in paragraph (a) of this section, A borrows $10,000 with 
respect to the policy. Such borrowing is considered first attributable 
to paying the premium for the year 1968 and then attributable to paying 
the premiums for the years 1967, 1966, 1965, and 1964 (in part). No 
deduction is allowed for the interest paid by A on the $10,000 
indebtedness during the year 1968.
    Example 2. The facts are the same as in Example 1, except that on 
January 1, 1964, A pays the first annual premium and deposits an amount 
equal to the second and third annual premiums, all such amounts 
initially being paid or deposited by means other than borrowing. On 
January 1, 1965, A deposits an amount equal to the fourth, fifth, and 
sixth annual premiums, and borrows $4,400 pursuant to a plan referred to 
in paragraph (a) of this section. Such borrowing is considered 
attributable to the premiums paid for the policy years 1965 and 1964. On 
January 1, 1966, A deposits an amount equal to the seventh, eighth, and 
ninth annual premiums, and borrows $6,600 pursuant to such plan. Such 
borrowing is considered attributable to the premium paid for the policy 
year 1966 and deposited for the policy years 1967 and 1968. No deduction 
is allowed for interest paid by A on the $11,000 indebtedness during 
1966. Moreover, the interest deduction will be disallowed for the 
taxable year 1965. However, if this contract is treated as a single 
premium contract under Sec. 1.264-2 (by reason of deposit with the 
insurer of an amount for payment of a substantial number of future 
premiums), the deduction for interest on indebtedness incurred or 
continued to purchase or carry the contract would be denied without 
reference to this section.

    (2) The $100 exception. The total amount paid or accrued during the 
taxable year by the taxpayer who has entered one or more plans referred 
to in paragraph (a) of this section for which (without regard to this 
subparagraph) no deduction would be allowable under paragraph (a) of 
this section does not exceed $100. Where the amount so paid or accrued 
during the taxable year exceeds $100, the entire amount shall be subject 
to the general rule of paragraph (a) of this section.
    (3) The unforeseen events exception. The amount is paid or accrued 
by the taxpayer on indebtedness incurred because of an unforeseen 
substantial loss of such taxpayer's income or an unforeseen substantial 
increase in such taxpayer's financial obligations. A loss of income or 
increase in financial obligations is not unforeseen, within the meaning 
of this subparagraph, if at the time of the purchase of the contract 
such event was or could have been foreseen. College education expenses 
are foreseeable; however, if college expenses substantially increase, 
then to the extent that such increases are unforeseen, this exception 
will apply. This exception applies only if the plan referred to in 
paragraph (a) of this section arises because of the unforeseen event. 
Thus, for example, if a taxpayer or his family incur substantial 
unexpected medical expenses or the taxpayer is laid off from his job, 
and for that reason systematically borrows against the cash value of a 
previously purchased contract, the deduction for the interest paid on 
the loan will not be denied, whether or not the loan is used to pay a 
premium on the contract.
    (4) The trade or business exception. The indebtedness is incurred by 
the taxpayer in connection with his trade or business. To be within this 
exception, the indebtedness must be incurred to finance business 
obligations rather than to finance cash value life insurance. Thus, if a 
taxpayer pledges a life insurance, endowment, or annuity contract as 
part of the collateral for a loan to finance the expansion of inventory 
or capital improvements for his business, no part of the deduction for 
interest on such loan will be denied under paragraph (a) of this 
section. Borrowing by a business taxpayer to finance business life 
insurance such as under so-called keyman, split dollar, or stock 
retirement plans is not considered to be incurred in connection with the 
taxpayer's trade or business within the meaning of this subparagraph. 
The determination of whether the indebtedness is incurred in connection 
with the taxpayer's trade or business, within the meaning of this 
exception, rather than to finance cash value life insurance shall be 
made on the basis of all the facts and circumstances. The provisions of 
this subparagraph may be illustrated by the following examples:


[[Page 737]]


    Example 1. Corporation M each year borrows substantial sums to carry 
on its business. Corporation M agrees to provide a retirement plan for 
its employees and purchases level premium life insurance to fund its 
obligation under the plan. The mere fact that M Corporation purchases a 
cash value life insurance policy will not cause its deduction for 
interest paid on its normal indebtedness to be denied even though the 
policy is later used as part of the collateral for its normal 
indebtedness.
    Example 2. Corporation R has $200,000 of bonds outstanding and 
purchases cash value life insurance policies on several of its key 
employees. Such purchase by R Corporation will not, of itself, cause its 
deduction for interest on its bonded indebtedness to be denied. If, 
however, the premiums on the life insurance policies are $10,000 each 
year, the cash value increases by $8,000 each year, and R Corporation 
increases its indebtedness by $10,000 each year, its deduction for 
interest on such indebtedness will not be allowed under the rule of 
paragraph (a) of this section. On the other hand, the absence of such a 
directly parallel increase will not of itself establish that the 
deduction for interest is allowable.

    (e) Applicability of section. The rules of this section apply with 
respect to taxable years beginning after December 31, 1963, but only 
with respect to contracts purchased after August 6, 1963. With respect 
to contracts entered into on or before August 6, 1963, but purchased or 
acquired whether from the insurer, insured, or any other person (other 
than by gift, bequest, or inheritance, or in a transaction to which 
section 381(a) of the Code applies) after such date, the rules of this 
section apply after such purchase or acquisition.

[T.D. 6773, 29 FR 15751, Nov. 24, 1964]



Sec. 1.265-1  Expenses relating to tax-exempt income.

    (a) Nondeductibility of expenses allocable to exempt income. (1) No 
amount shall be allowed as a deduction under any provision of the Code 
for any expense or amount which is otherwise allowable as a deduction 
and which is allocable to a class or classes of exempt income other than 
a class or classes of exempt interest income.
    (2) No amount shall be allowed as a deduction under section 212 
(relating to expenses for production of income) for any expense or 
amount which is otherwise allowable as a deduction and which is 
allocable to a class or classes of exempt interest income.
    (b) Exempt income and nonexempt income. (1) As used in this section, 
the term class of exempt income means any class of income (whether or 
not any amount of income of such class is received or accrued) wholly 
exempt from the taxes imposed by Subtitle A of the Code. For purposes of 
this section, a class of income which is considered as wholly exempt 
from the taxes imposed by subtitle A includes any class of income which 
is:
    (i) Wholly excluded from gross income under any provision of 
Subtitle A, or
    (ii) Wholly exempt from the taxes imposed by Subtitle A under the 
provisions of any other law.
    (2) As used in this section the term nonexempt income means any 
income which is required to be included in gross income.
    (c) Allocation of expenses to a class or classes of exempt income. 
Expenses and amounts otherwise allowable which are directly allocable to 
any class or classes of exempt income shall be allocated thereto; and 
expenses and amounts directly allocable to any class or classes of 
nonexempt income shall be allocated thereto. If an expense or amount 
otherwise allowable is indirectly allocable to both a class of nonexempt 
income and a class of exempt income, a reasonable proportion thereof 
determined in the light of all the facts and circumstances in each case 
shall be allocated to each.
    (d) Statement of classes of exempt income; records. (1) A taxpayer 
receiving any class of exempt income or holding any property or engaging 
in any activity the income from which is exempt shall submit with his 
return as a part thereof an itemized statement, in detail, showing (i) 
the amount of each class of exempt income, and (ii) the amount of 
expenses and amounts otherwise allowable allocated to each such class 
(the amount allocated by apportionment being shown separately) as 
required by paragraph (c) of this section. If an item is apportioned 
between a class of exempt income and a class of nonexempt income, the 
statement shall show the basis of the apportionment. Such statement 
shall also recite that

[[Page 738]]

each deduction claimed in the return is not in any way attributable to a 
class of exempt income.
    (2) The taxpayer shall keep such records as will enable him to make 
the allocations required by this section. See section 6001 and the 
regulations thereunder.



Sec. 1.265-2  Interest relating to tax exempt income.

    (a) In general. No amount shall be allowed as a deduction for 
interest on any indebtedness incurred or continued to purchase or carry 
obligations, the interest on which is wholly exempt from tax under 
subtitle A of the Code, such as municipal bonds, Panama Canal loan 3-
percent bonds, or obligations of the United States, the interest on 
which is wholly exempt from tax under Subtitle A, and which were issued 
after September 24, 1917, and not originally subscribed for by the 
taxpayer. Interest paid or accrued within the taxable year on 
indebtedness incurred or continued to purchase or carry (1) obligations 
of the United States issued after September 24, 1917, the interest on 
which is not wholly exempt from the taxes imposed under Subtitle A of 
the Code, or (2) obligations of the United States issued after September 
24, 1917, and originally subscribed for by the taxpayer, the interest on 
which is wholly exempt from the taxes imposed by Subtitle A of the Code, 
is deductible. For rules as to the inclusion in gross income of interest 
on certain governmental obligations, see section 103 and the regulations 
thereunder.
    (b) Special rule for certain financial institutions. (1) No 
deduction shall be disallowed, for taxable years ending after February 
26, 1964, under section 265(2) for interest paid or accrued by a 
financial institution which is a face-amount certificate company 
registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 and 
following) and which is subject to the banking laws of the State in 
which it is incorporated, on face-amount certificates (as defined in 
section 2(a)(15) of the Investment Company Act of 1940) issued by such 
institution and on amounts received for the purchase of such 
certificates to be issued by the institution, if the average amount of 
obligations, the interest on which is wholly exempt from the taxes 
imposed by Subtitle A of the Code, held by such institution during the 
taxable year, does not exceed 15 percent of the average amount of the 
total assets of such institution during such year. See subparagraph (3) 
of this paragraph for treatment of interest paid or accrued on face-
amount certificates where the figure is in excess of 15 percent. 
Interest expense other than that paid or accrued on face-amount 
certificates or on amounts received for the purchase of such 
certificates does not come within the rules of this paragraph.
    (2) This subparagraph is prescribed under the authority granted the 
Secretary or his delegate under section 265(2) to prescribe regulations 
governing the determination of the average amount of tax-exempt 
obligations and of the total assets held during an institution's taxable 
year. The average amount of tax-exempt obligations held during an 
institution's taxable year shall be the average of the amounts of tax-
exempt obligations held at the end of each month ending within such 
taxable year. The average amount of total assets for a taxable year 
shall be the average of the total assets determined at the beginning and 
end of the institution's taxable year. If the Commissioner, however, 
determines that any such amount is not fairly representative of the 
average amount of tax-exempt obligations or total assets, as the case 
may be, held by such institution during such taxable year, then the 
Commissioner shall determine the amount which is fairly representative 
of the average amount of tax-exempt obligations or total assets, as the 
case may be. The percentage which the average amount of tax-exempt 
obligations is of the average amount of total assets is determined by 
dividing the average amount of tax-exempt obligations by the average 
amount of total assets, and multiplying by 100. The amount of tax-exempt 
obligations means that portion of the total assets of the institution 
which consists of obligations the interest on which is wholly exempt 
from tax under Subtitle A of the Code, and valued at their adjusted 
basis, appropriately adjusted for amortization of premium or discount. 
Total

[[Page 739]]

assets means the sum of the money, plus the aggregate of the adjusted 
basis of the property other than money held by the taxpayer in good 
faith for the purpose of the business. Such adjusted basis for any asset 
is its adjusted basis for determining gain upon sale or exchange for 
Federal income tax purposes.
    (3) If the percentage computation required by subparagraph (2) of 
this paragraph results in a figure in excess of 15 percent for the 
taxable year, there is interest that does not come within the special 
rule for certain financial institutions contained in section 265(2). The 
amount of such interest is obtained by multiplying the total interest 
paid or accrued for the taxable year on face-amount certificates and on 
amounts received for the purchase of such certificates by the percentage 
figure equal to the excess of the percentage figure computed under 
subparagraph (2) of this paragraph over 15 percent. See paragraph (a) 
for the disallowance of interest on indebtedness incurred or continued 
to purchase or carry obligations the interest on which is wholly exempt 
from tax under Subtitle A of the Code.
    (4) Every financial institution claiming the benefits of the special 
rule for certain financial institutions contained in section 265(2) 
shall file with its return for the taxable year:
    (i) A statement showing that it is a face-amount certificate company 
registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 and 
following) and that it is subject to the banking laws of the State in 
which it is incorporated.
    (ii) A detailed schedule showing the computation of the average 
amount of tax-exempt obligations, the average amount of total assets of 
such institutions, and the total amount of interest paid or accrued on 
face-amount certificates and on amounts received for the purchase of 
such certificates for the taxable year.

[T.D. 6927, 32 FR 13221, Sept. 19, 1967]



Sec. 1.265-3  Nondeductibility of interest relating to exempt-interest 
dividends.

    (a) In general. No deduction is allowed to a shareholder of a 
regulated investment company for interest on indebtedness that relates 
to exempt-interest dividends distributed by the company to the 
shareholder during the shareholder's taxable year.
    (b) Interest relating to exempt-interest dividends. (1) All or a 
portion of the interest on an indebtedness relates to exempt-interest 
dividends if the indebtedness is either incurred or continued to 
purchase or carry shares of stock of a regulated investment company that 
distributes exempt-interest dividends (as defined in section 852(b)(5) 
of the Code) to the holder of the shares during the shareholder's 
taxable year.
    (2) To determine the amount of interest that relates to the exempt-
interest dividends the total amount of interest paid or accrued on the 
indebtedness is multiplied by a fraction. The numerator of the fraction 
is the amount of exempt-interest dividends received by the shareholder. 
The denominator of the fraction is the sum of the exempt-interest 
dividends and taxable dividends received by the shareholder (excluding 
capital gain dividends received by the shareholder and capital gains 
required to be included in the shareholder's computation of long-term 
capital gains under section 852(b)(3)(D)).

[T.D. 7601, 44 FR 16013, Mar. 16, 1979]



Sec. 1.266-1  Taxes and carrying charges chargeable to capital account 
and treated as capital items.

    (a)(1) In general. In accordance with section 266, items enumerated 
in paragraph (b)(1) of this section may be capitalized at the election 
of the taxpayer. Thus, taxes and carrying charges with respect to 
property of the type described in this section are chargeable to capital 
account at the election of the taxpayer, notwithstanding that they are 
otherwise expressly deductible under provisions of Subtitle A of the 
Code. No deduction is allowable for any items so treated.
    (2) See Sec. Sec. 1.263A-8 through 1.263A-15 for rules regarding 
the requirement to capitalize interest, that apply prior to the 
application of this section. After applying Sec. Sec. 1.263A-8 through 
1.263A-15, a taxpayer may elect to capitalize interest under section 266 
with respect to

[[Page 740]]

designated property within the meaning of Sec. 1.263A-8(b), provided a 
computation under any provision of the Internal Revenue Code is not 
thereby materially distorted, including computations relating to the 
source of deductions.
    (b) Taxes and carrying charges. (1) The taxpayer may elect, as 
provided in paragraph (c) of this section, to treat the items enumerated 
in this subparagraph which are otherwise expressly deductible under the 
provisions of Subtitle A of the Code as chargeable to capital account 
either as a component of original cost or other basis, for the purposes 
of section 1012, or as an adjustment to basis, for the purposes of 
section 1016(a)(1). The items thus chargeable to capital account are:
    (i) In the case of unimproved and unproductive real property: Annual 
taxes, interest on a mortgage, and other carrying charges.
    (ii) In the case of real property, whether improved or unimproved 
and whether productive or unproductive:
    (a) Interest on a loan (but not theoretical interest of a taxpayer 
using his own funds),
    (b) Taxes of the owner of such real property measured by 
compensation paid to his employees,
    (c) Taxes of such owner imposed on the purchase of materials, or on 
the storage, use, or other consumption of materials, and
    (d) Other necessary expenditures,

paid or incurred for the development of the real property or for the 
construction of an improvement or additional improvement to such real 
property, up to the time the development or construction work has been 
completed. The development or construction work with respect to which 
such items are incurred may relate to unimproved and unproductive real 
estate whether the construction work will make the property productive 
of income subject to tax (as in the case of a factory) or not (as in the 
case of a personal residence), or may relate to property already 
improved or productive (as in the case of a plant addition or 
improvement, such as the construction of another floor on a factory or 
the installation of insulation therein).
    (iii) In the case of personal property:
    (a) Taxes of an employer measured by compensation for services 
rendered in transporting machinery or other fixed assets to the plant or 
installing them therein,
    (b) Interest on a loan to purchase such property or to pay for 
transporting or installing the same, and
    (c) Taxes of the owner thereof imposed on the purchase of such 
property or on the storage, use, or other consumption of such property,

paid or incurred up to the date of installation or the date when such 
property is first put into use by the taxpayer, whichever date is later.
    (iv) Any other taxes and carrying charges with respect to property, 
otherwise deductible, which in the opinion of the Commissioner are, 
under sound accounting principles, chargeable to capital account.
    (2) The sole effect of section 266 is to permit the items enumerated 
in subparagraph (1) of this paragraph to be chargeable to capital 
account notwithstanding that such items are otherwise expressly 
deductible under the provisions of Subtitle A of the Code. An item not 
otherwise deductible may not be capitalized under section 266.
    (3) In the absence of a provision in this section for treating a 
given item as a capital item, this section has no effect on the 
treatment otherwise accorded such item. Thus, items which are otherwise 
deductible are deductible notwithstanding the provisions of this 
section, and items which are otherwise treated as capital items are to 
be so treated. Similarly, an item not otherwise deductible is not made 
deductible by this section. Nor is the absence of a provision in this 
section for treating a given item as a capital item to be construed as 
withdrawing or modifying the right now given to the taxpayer under any 
other provisions of subtitle A of the Code, or of the regulations 
thereunder, to elect to capitalize or to deduct a given item.
    (c) Election to charge taxes and carrying charges to capital 
account. (1) If for any taxable year there are two or more items of the 
type described in paragraph (b)(1) of this section, which relate to the 
same project to which the election is applicable, the taxpayer may elect 
to capitalize any one or

[[Page 741]]

more of such items even though he does not elect to capitalize the 
remaining items or to capitalize items of the same type relating to 
other projects. However, if expenditures for several items of the same 
type are incurred with respect to a single project, the election to 
capitalize must, if exercised, be exercised as to all items of that 
type. For purposes of this section, a project means, in the case of 
items described in paragraph (b)(1)(ii) of this section, a particular 
development of, or construction of an improvement to, real property, and 
in the case of items described in paragraph (b)(1)(iii) of this section, 
the transportation and installation of machinery or other fixed assets.
    (2)(i) An election with respect to an item described in paragraph 
(b)(1)(i) of this section is effective only for the year for which it is 
made.
    (ii) An election with respect to an item described in:
    (a) Paragraph (b)(1)(ii) of this section is effective until the 
development or construction work described in that subdivision has been 
completed;
    (b) Paragraph (b)(1)(iii) of this section is effective until the 
later of either the date of installation of the property described in 
that subdivision, or the date when such property is first put into use 
by the taxpayer;
    (c) Paragraph (b)(1)(iv) of this section is effective as determined 
by the Commissioner.

Thus, an item chargeable to capital account under this section must 
continue to be capitalized for the entire period described in this 
subdivision applicable to such election although such period may consist 
of more than one taxable year.
    (3) If the taxpayer elects to capitalize an item or items under this 
section, such election shall be exercised by filing with the original 
return for the year for which the election is made a statement 
indicating the item or items (whether with respect to the same project 
or to different projects) which the taxpayer elects to treat as 
chargeable to capital account. Elections filed for taxable years 
beginning before January 1, 1954, and for taxable years ending before 
August 17, 1954, under section 24(a)(7) of the Internal Revenue Code of 
1939, and the regulations thereunder, shall have the same effect as if 
they were filed under this section. See section 7807(b)(2).
    (d) The following examples are illustrative of the application of 
the provisions of this section:

    Example 1. In 1956 and 1957 A pays annual taxes and interest on a 
mortgage on a piece of real property. During 1956, the property is 
vacant and unproductive, but throughout 1957 A operates the property as 
a parking lot. A may capitalize the taxes and mortgage interest paid in 
1956, but not the taxes and mortgage interest paid in 1957.
    Example 2. In February 1957, B began the erection of an office 
building for himself. B in 1957, in connection with the erection of the 
building, paid $6,000 social security taxes, which in his 1957 return he 
elected to capitalize. B must continue to capitalize the social security 
taxes paid in connection with the erection of the building until its 
completion.
    Example 3. Assume the same facts as in Example 2 except that in 
November 1957, B also begins to build a hotel. In 1957 B pays $3,000 
social security taxes in connection with the erection of the hotel. B's 
election to capitalize the social security taxes paid in erecting the 
office building started in February 1957 does not bind him to capitalize 
the social security taxes paid in erecting the hotel; he may deduct the 
$3,000 social security taxes paid in erecting the hotel.
    Example 4. In 1957, M Corporation began the erection of a building 
for itself, which will take three years to complete. M Corporation in 
1957 paid $4,000 social security taxes and $8,000 interest on a building 
loan in connection with this building. M Corporation may elect to 
capitalize the social security taxes although it deducts the interest 
charges.
    Example 5. C purchases machinery in 1957 for use in his factory. He 
pays social security taxes on the labor for transportation and 
installation of the machinery, as well as interest on a loan to obtain 
funds to pay for the machinery and for transportation and installation 
costs. C may capitalize either the social security taxes or the 
interest, or both, up to the date of installation or until the machinery 
is first put into use by him, whichever date is later.

    (e) Allocation. If any tax or carrying charge with respect to 
property is in part a type of item described in paragraph (b) of this 
section and in part a type of item or items with respect to which no 
election to treat as a capital item is given, a reasonable proportion of 
such tax or carrying charge, determined in the light of all the facts 
and

[[Page 742]]

circumstances in each case, shall be allocated to each item. The rule of 
this paragraph may be illustrated by the following example:

    Example. N Corporation, the owner of a factory in New York on which 
a new addition is under construction, in 1957 pays its general manager, 
B, a salary of $10,000 and also pays a New York State unemployment 
insurance tax of $81 on B's salary. B spends nine-tenths of his time in 
the general business of the firm and the remaining one-tenth in 
supervising the construction work. N Corporation treats as expenses 
$9,000 of B's salary, and charges the remaining $1,000 to capital 
account. N Corporation may elect to capitalize $8.10 of the $81 New York 
State unemployment insurance tax paid in 1957 since such tax is 
deductible under section 164.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 8584, 59 FR 67215, Dec. 29, 1994]



Sec. 1.267(a)-1  Deductions disallowed.

    (a) Losses. Except in cases of distributions in corporate 
liquidations, no deduction shall be allowed for losses arising from 
direct or indirect sales or exchanges of property between persons who, 
on the date of the sale or exchange, are within any one of the 
relationships specified in section 267(b). See Sec. 1.267(b)-1.
    (b) Unpaid expenses and interest. (1) No deduction shall be allowed 
a taxpayer for trade or business expenses otherwise deductible under 
section 162, for expenses for production of income otherwise deductible 
under section 212, or for interest otherwise deductible under section 
163:
    (i) If, at the close of the taxpayer's taxable year within which 
such items are accrued by the taxpayer or at any time within 2\1/2\ 
months thereafter, both the taxpayer and the payee are persons within 
any one of the relationships specified in section 267(b) (see Sec. 
1.267(b)-1); and
    (ii) If the payee is on the cash receipts and disbursements method 
of accounting with respect to such items of gross income for his taxable 
year in which or with which the taxable year of accrual by the debtor-
taxpayer ends; and
    (iii) If, within the taxpayer's taxable year within which such items 
are accrued by the taxpayer and 2\1/2\ months after the close thereof, 
the amount of such items is not paid and the amount of such items is not 
otherwise (under the rules of constructive receipt) includible in the 
gross income of the payee.
    (2) The provisions of section 267(a)(2) and this paragraph do not 
otherwise affect the general rules governing the allowance of deductions 
under an accrual method of accounting. For example, if the accrued 
expenses or interest are paid after the deduction has become disallowed 
under section 267(a)(2), no deduction would be allowable for the taxable 
year in which payment is made, since an accrual item is deductible only 
in the taxable year in which it is properly accruable.
    (3) The expenses and interest specified in section 267(a)(2) and 
this paragraph shall be considered as paid for purposes of that section 
to the extent of the fair market value on the date of issue of notes or 
other instruments of similar effect received in payment of such expenses 
or interest if such notes or other instruments were issued in such 
payment by the taxpayer within his taxable year or within 2\1/2\ months 
after the close thereof. The fair market value on the date of issue of 
such notes or other instruments of similar effect is includible in the 
gross income of the payee for the taxable year in which he receives the 
notes or other instruments.
    (4) The provisions of this paragraph may be illustrated by the 
following example:

    Example. A, an individual, is the holder and owner of an interest-
bearing note of the M Corporation, all the stock of which was owned by 
him on December 31, 1956. A and the M Corporation make their income tax 
returns for a calendar year. The M Corporation uses an accrual method of 
accounting. A uses a combination of accounting methods permitted under 
section 446(c)(4) in which he uses the cash receipts and disbursements 
method in respect of items of gross income. The M Corporation does not 
pay any interest on the note to A during the calendar year 1956 or 
within 2\1/2\ months after the close of that year, nor does it credit 
any interest to A's account in such a manner that it is subject to his 
unqualified demand and thus is constructively received by him. M 
Corporation claims a deduction for the year 1956 for the interest 
accruing on the note in that year. Since A is on the cash receipts and 
disbursements method in respect of items of

[[Page 743]]

gross income, the interest is not includible in his return for the year 
1956. Under the provisions of section 267(a)(2) and this paragraph, no 
deduction for such interest is allowable in computing the taxable income 
of the M Corporation for the taxable year 1956 or for any other taxable 
year. However, if the interest had actually been paid to A on or before 
March 15, 1957, or if it had been made available to A before that time 
(and thus had been constructively received by him), the M Corporation 
would be allowed to deduct the amount of the payment in computing its 
taxable income for 1956.

    (c) Scope of section. Section 267(a) requires that deductions for 
losses or unpaid expenses or interest described therein be disallowed 
even though the transaction in which such losses, expenses, or interest 
were incurred was a bona fide transaction. However, section 267 is not 
exclusive. No deduction for losses or unpaid expenses or interest 
arising in a transaction which is not bona fide will be allowed even 
though section 267 does not apply to the transaction.



Sec. 1.267(a)-2T  Temporary regulations; questions and answers arising 
under the Tax Reform Act of 1984 (temporary).

    (a) Introduction--(1) Scope. This section prescribes temporary 
question and answer regulations under section 267(a) and related 
provisions as amended by section 174 of the Tax Reform Act of 1984, Pub. 
L. No. 98-369.
    (2) Effective date. Except as otherwise provided by Answer 2 or 
Answer 3 in paragraph (c) of this section, the effective date set forth 
in section 174(c) of the Tax Reform Act of 1984 applies to this section.
    (b) Questions applying section 267(a)(2) and (b) generally. The 
following questions and answers deal with the application of section 
267(a)(2) and (b) generally:
    Question 1: Does section 267(a)(2) ever apply to defer the deduction 
of an otherwise deductible amount if the person to whom the payment is 
to be made properly uses the completed contract method of accounting 
with respect to such amount?
    Answer 1: No. Section 267(a)(2) applies only if an otherwise 
deductible amount is owed to a related person under whose method of 
accounting such amount is not includible in income unless paid to such 
person. Regardless of when payment is made, an amount owed to a 
contractor using the completed contract method of accounting is 
includible in the income of the contractor in accordance with Sec. 
1.451-3(d) in the year in which the contract is completed or in which 
certain disputes are resolved.
    Question 2: Does section 267(a)(2) ever apply to defer the deduction 
of otherwise deductible original issue discount as defined in sections 
163(e) and 1271 through 1275 (``the OID rules'')?
    Answer 2. No. Regardless of when payment is made, an amount owed to 
a lender that constitutes original issue discount is included in the 
income of the lender periodically in accordance with the OID rules. 
Similarly, section 267(a)(2) does not apply to defer an otherwise 
deductible amount to the extent section 467 or section 7872 requires 
periodic inclusion of such amount in the income of the person to whom 
payment is to be made, even though payment has not been made.
    Question 3: Does section 267(a)(2) ever apply to defer the deduction 
of otherwise deductible unstated interest determined to exist under 
section 483?
    Answer 3: Yes. If section 483 recharacterizes any amount as unstated 
interest and the other requirements of section 267(a)(2) are met, a 
deduction for such unstated interest will be deferred under section 267.
    Question 4: Does section 267(a)(2) ever apply to defer the deduction 
of otherwise deductible cost recovery, depreciation, or amortization?
    Answer 4: Yes, in certain cases. In general, section 267(a)(2) does 
not apply to defer the deduction of otherwise deductible cost recovery, 
depreciation, or amortization. Notwithstanding this general rule, if the 
other requirements of section 267(a)(2) are met, section 267(a)(2) does 
apply to defer deductions for cost recovery, depreciation, or 
amortization of an amount owed to a related person for interest or rent 
or for the performance or nonperformance of services, which amount the 
taxpayer payor capitalized or treated as a deferred expense (unless the 
taxpayer payor elected to capitalize or defer the amount and section 
267(a)(2) would not have deferred the deduction of such amount if the 
taxpayer payor had not

[[Page 744]]

so elected). Amounts owed for services that may be subject to this 
provision include, for example, amounts owed for acquisition, 
development, or organizational services or for covenants not to compete. 
In applying this rule, payments made between persons described in any of 
the paragraphs of section 267(b) (as modified by section 267(e)) will be 
closely scrutinized to determine whether they are made in respect of 
capitalized costs (or costs treated as deferred expenses) that are 
subject to deferral under section 267(a)(2), or in respect of other 
capitalized costs not so subject.
    Question 5: If a deduction in respect of an otherwise deductible 
amount is deferred by section 267(a)(2) and, prior to the time the 
amount is includible in the gross income of the person to whom payment 
is to be made, such person and the payor taxpayer cease to be persons 
specified in any of the paragraphs of section 267(b) (as modified by 
section 267(e)), is the deduction allowable as of the day on which the 
relationship ceases?
    Answer 5: No. The deduction is not allowable until the day as of 
which the amount is includible in the gross income of the person to whom 
payment of the amount is made, even though the relationship ceases to 
exist at an earlier time.
    Question 6: Do references in other sections to persons described in 
section 267(b) incorporate changes made to section 267(b) by section 174 
of the Tax Reform Act of 1984?
    Answer 6: Yes. References in other sections to persons described in 
section 267(b) take into account changes made to section 267(b) by 
section 174 of the Tax Reform Act of 1984 (without modification by 
section 267(e)(1)). For example, a transfer after December 31, 1983 (the 
effective date of the new section 267(b)(3) relationship added by the 
Tax Reform Act of 1984) of section 1245 class property placed in service 
before January 1, 1981, from one corporation to another corporation, 11 
percent of the stock of which is owned by the first corporation, will 
not constitute recovery property (as defined in section 168) in the 
hands of the second corporation by reason of section 168(e)(4) (A)(i) 
and (D).
    (c) Questions applying section 267(a) to partnerships. The following 
questions and answers deal with the application of section 267(a) to 
partnerships:
    Question 1: Does section 267(a) disallow losses and defer otherwise 
deductible amounts at the partnership (entity) level?
    Answer 1: Yes. If a loss realized by a partnership from a sale or 
exchange of property is disallowed under section 267(a)(1), that loss 
shall not enter into the computation of the partnership's taxable 
income. If an amount that otherwise would be deductible by a partnership 
is deferred by section 267(a)(2), that amount shall not enter into the 
computation of the partnership's taxable income until the taxable year 
of the partnership in which falls the day on which the amount is 
includible in the gross income of the person to whom payment of the 
amount is made.
    Question 2: Does section 267(a)(1) ever apply to disallow a loss if 
the sale or exchange giving rise to the loss is between two partnerships 
even though the two partnerships are not persons specified in any of the 
paragraphs of section 267(b)?
    Answer 2: Yes. If the other requirements of section 267(a)(1) are 
met, section 267(a)(1) applies to such losses arising as a result of 
transactions entered into after December 31, 1984 between partnerships 
not described in any of the paragraphs of section 267(b) as follows, and 
Sec. 1.267(b)-1(b) does not apply. If the two partnerships have one or 
more common partners (i.e., if any person owns directly, indirectly, or 
constructively any capital or profits interest in each of such 
partnerships), or if any partner in either partnership and one or more 
partners in the other partnership are persons specified in any of the 
paragraphs of section 267(b) (without modification by section 267(e)), a 
portion of the selling partnership's loss will be disallowed under 
section 267(a)(1). The amount disallowed under this rule is the greater 
of: (1) The amount that would be disallowed if the transaction giving 
rise to the loss had occurred between the selling partnership and the 
separate partners of the purchasing partnership (in proportion to their 
respective interests in the purchasing partnership); or (2) the amount

[[Page 745]]

that would be disallowed if such transaction had occurred between the 
separate partners of the selling partnership (in proportion to their 
respective interests in the selling partnership) and the purchasing 
partnership. Notwithstanding the general rule of this paragraph (c) 
Answer 2, no disallowance shall occur if the amount that would be 
disallowed pursuant to the immediately preceding sentence is less than 5 
percent of the loss arising from the sale or exchange.
    Question 3: Does section 267(a)(2) ever apply to defer an otherwise 
deductible amount if the taxpayer payor is a partnership and the person 
to whom payment of such amount is to be made is a partnership even 
though the two partnerships are not persons specified in any of the 
paragraphs of section 267(b) (as modified by section 267(e))?
    Answer 3: Yes. If the other requirements of section 267(a)(2) are 
met, section 267(a)(2) applies to such amounts arising as a result of 
transactions entered into after December 31, 1984 between partnerships 
not described in any of the paragraphs of section 267(b) (as modified by 
section 267(e)) as follows, and Sec. 1.267(b)-1(b) does not apply. If 
the two partnerships have one or more common partners (i.e., if any 
person owns directly, indirectly, or constructively any capital or 
profits interest in each of such partnerships), or if any partner in 
either partnership and one or more partners in the other partnership are 
persons specified in any of the paragraphs of section 267(b) (without 
modification by section 267(e)), a portion of the payor partnership's 
otherwise allowable deduction will be deferred under section 267(a)(2). 
The amount deferred under this rule is the greater of: (1) The amount 
that would be deferred if the transaction giving rise to the otherwise 
allowable deduction had occurred between the payor partnership and the 
separate partners of the payee partnership (in proportion to their 
respective interests in the payee partnership); or (2) the amount that 
would be deferred if such transaction had occurred between the separate 
partners of the payor partnership (in proportion to their respective 
interests in the payor partnership) and the payee partnership. 
Notwithstanding the general rule of this paragraph (c) Answer 3, no 
deferral shall occur if the amount that would be deferred pursuant to 
the immediately preceding sentence is less than 5 percent of the 
otherwise allowable deduction.

    Example. On May 1, 1985, partnership AB enters into a transaction 
whereby it accrues an otherwise deductible amount to partnership AC. AC 
is on the cash receipts and disbursements method of accounting. A holds 
a 5 percent capital and profits interest in AB and a 49 percent capital 
and profits interest in AC, and A's interest in each item of the income, 
gain, loss, deduction, and credit of each partnership is 5 percent and 
49 percent, respectively. B and C are not related. Notwithstanding that 
AB and AC are not persons specified in section 267(b), 49 percent of the 
deduction in respect of such amount will be deferred under section 
267(a)(2). The result would be the same if A held a 49 percent interest 
in AB and a 5 percent interest in AC. However, if A held more than 50 
percent of the capital or profits interest of either AB or AC, the 
entire deduction in respect of such amount would be deferred under 
section 267(a)(2).

    Question 4: What does the phrase incurred at an annual rate not in 
excess of 12 percent mean as used in section 267(e)(5)(C)(ii)?
    Answer 4: The phrase refers to interest that accrues but is not 
includible in the income of the person to whom payment is to be made 
during the taxable year of the payor. Thus, in determining whether the 
requirements of section 267(e)(5) (providing an exception to certain 
provisions of section 267 for certain expenses and interest of 
partnerships owning low income housing) are met with respect to a 
transaction, the requirement of section 267(e)(5)(C)(ii) will be 
satisfied, even though the total interest (both stated and unstated) 
paid or accrued in any taxable year of the payor taxpayer exceeds 12 
percent, if the interest in excess of 12 percent per annum, compounded 
semi-annually, on the outstanding loan balance (principal and accrued 
but unpaid interest) is includible in the income of the person to whom 
payment is to be made no later than the last day of such taxable year of 
the payor taxpayer.

(98 Stat. 704, 26 U.S.C. 267; 98 Stat. 589, 26 U.S.C. 706; 68A Stat. 
367, 26 U.S.C. 1502; 68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7991, 49 FR 46995, Nov. 30, 1984]

[[Page 746]]



Sec. 1.267(a)-3  Deduction of amounts owed to related foreign persons.

    (a) Purpose and scope. This section provides rules under section 
267(a) (2) and (3) governing when an amount owed to a related foreign 
person that is otherwise deductible under Chapter 1 may be deducted. 
Paragraph (b) of this section provides the general rules, and paragraph 
(c) of this section provides exceptions and special rules.
    (b) Deduction of amount owed to related foreign person--(1) In 
general. Except as provided in paragraph (c) of this section, section 
267(a)(3) requires a taxpayer to use the cash method of accounting with 
respect to the deduction of amounts owed to a related foreign person. An 
amount that is owed to a related foreign person and that is otherwise 
deductible under Chapter 1 thus may not be deducted by the taxpayer 
until such amount is paid to the related foreign person. For purposes of 
this section, a related foreign person is any person that is not a 
United States person within the meaning of section 7701(a)(30), and that 
is related (within the meaning of section 267(b)) to the taxpayer at the 
close of the taxable year in which the amount incurred by the taxpayer 
would otherwise be deductible. Section 267(f) defines controlled group 
for purposes of section 267(b) without regard to the limitations of 
section 1563(b). An amount is treated as paid for purposes of this 
section if the amount is considered paid for purposes of section 1441 or 
section 1442 (including an amount taken into account pursuant to section 
884(f)).
    (2) Amounts covered. This section applies to otherwise deductible 
amounts that are of a type described in section 871(a)(1) (A), (B) or 
(D), or in section 881(a) (1), (2) or (4). The rules of this section 
also apply to interest that is from sources outside the United States. 
Amounts other than interest that are from sources outside the United 
States, and that are not income of a related foreign person effectively 
connected with the conduct by such related foreign person of a trade or 
business within the United States, are not subject to the rules of 
section 267(a) (2) or (3) or this section. See paragraph (c) of this 
section for rules governing the treatment of amounts that are income of 
a related foreign person effectively connected with the conduct of a 
trade or business within the United States by such related foreign 
person.
    (3) Change in method of accounting. A taxpayer that uses a method of 
accounting other than that required by the rules of this section must 
change its method of accounting to conform its method to the rules of 
this section. The taxpayer's change in method must be made pursuant to 
the rules of section 446(e), the regulations thereunder, and any 
applicable administrative procedures prescribed by the Commissioner. 
Because the rules of this section prescribe a method of accounting, 
these rules apply in the determination of taxpayer's earnings and 
profits pursuant to Sec. 1.1312-6(a).
    (4) Examples. The provisions of this paragraph (b) may be 
illustrated by the following examples:

    Example 1. (i) FC, a corporation incorporated in Country X, owns 100 
percent of the stock of C, a domestic corporation. C uses the accrual 
method of accounting in computing its income and deductions, and is a 
calendar year taxpayer. In Year 1, C accrues an amount owed to FC for 
interest. C makes an actual payment of the amount owed to FC in Year 2.
    (ii) Regardless of its source, the interest owed to FC is an amount 
to which this section applies. Pursuant to the rules of this paragraph 
(b), the amount owed to FC by C will not be allowable as a deduction in 
Year 1. Section 267 does not preclude the deduction of this amount in 
Year 2.
    Example 2. (i) RS, a domestic corporation, is the sole shareholder 
of FSC, a foreign sales corporation. Both RS and FSC use the accrual 
method of accounting. In Year 1, RS accrues $z owed to FSC for 
commissions earned by FSC in Year 1. Pursuant to the foreign sales 
company provisions, sections 921 through 927, a portion of this amount, 
$x, is treated as effectively connected income of FSC from sources 
outside the United States. Accordingly, the rules of section 267(a)(3) 
and paragraph (b) of this section do not apply. See paragraph (c) of 
this section for the rules governing the treatment of amounts that are 
effectively connected income of FSC.
    (ii) The remaining amount of the commission, $y, is classified as 
exempt foreign trade income under section 923(a)(3) and is treated as 
income of FSC from sources outside the United States that is not 
effectively connected income. This amount is one to which the provisions 
of this section do not apply, since it is an amount other than interest 
from sources outside the United States and

[[Page 747]]

is not effectively connected income. Therefore, a deduction for $y is 
allowable to RS as of the day on which it accrues the otherwise 
deductible amount, without regard to section 267 (a)(2) and (a)(3) and 
the regulations thereunder.

    (c) Exceptions and special rules--(1) Effectively connected income 
subject to United States tax. The provisions of section 267(a)(2) and 
the regulations thereunder, and not the provisions of paragraph (b) of 
this section, apply to an amount that is income of the related foreign 
person that is effectively connected with the conduct of a United States 
trade or business of such related foreign person. An amount described in 
this paragraph (c)(1) thus is allowable as a deduction as of the day on 
which the amount is includible in the gross income of the related 
foreign person as effectively connected income under sections 872(a)(2) 
or 882(b) (or, if later, as of the day on which the deduction would be 
so allowable but for section 267(a)(2)). However, this paragraph (c)(1) 
does not apply if the related foreign person is exempt from United 
States income tax on the amount owed, or is subject to a reduced rate of 
tax, pursuant to a treaty obligation of the United States (such as under 
an article relating to the taxation of business profits).
    (2) Items exempt from tax by treaty. Except with respect to 
interest, neither paragraph (b) of this section nor section 267 (a)(2) 
or (a)(3) applies to any amount that is income of a related foreign 
person with respect to which the related foreign person is exempt from 
United States taxation on the amount owed pursuant to a treaty 
obligation of the United States (such as under an article relating to 
the taxation of business profits). Interest that is effectively 
connected income of the related foreign person under sections 872(a)(2) 
or 882(b) is an amount covered by paragraph (c)(1) of this section. 
Interest that is not effectively connected income of the related foreign 
person is an amount covered by paragraph (b) of this section, regardless 
of whether the related foreign person is exempt from United States 
taxation on the amount owed pursuant to a treaty obligation of the 
United States.
    (3) Items subject to reduced rate of tax by treaty. Paragraph (b) of 
this section applies to amounts that are income of a related foreign 
person with respect to which the related foreign person claims a reduced 
rate of United States income tax on the amount owed pursuant to a treaty 
obligation of the United States (such as under an article relating to 
the taxation of royalties).
    (4) Amounts owed to a foreign personal holding company, controlled 
foreign corporation, or passive foreign investment company--(i) Foreign 
personal holding companies. If an amount to which paragraph (b) of this 
section otherwise applies is owed to a related foreign person that is a 
foreign personal holding company within the meaning of section 552, then 
the amount is allowable as a deduction as of the day on which the amount 
is includible in the income of the foreign personal holding company. The 
day on which the amount is includible in income is determined with 
reference to the method of accounting under which the foreign personal 
holding company computes its taxable income and earnings and profits for 
purposes of sections 551 through 558. See section 551(c) and the 
regulations thereunder for the reporting requirements of the foreign 
personal holding company provisions (sections 551 through 558).
    (ii) Controlled foreign corporations. If an amount to which 
paragraph (b) of this section otherwise applies is owed to a related 
foreign person that is a controlled foreign corporation within the 
meaning of section 957, then the amount is allowable as a deduction as 
of the day on which the amount is includible in the income of the 
controlled foreign corporation. The day on which the amount is 
includible in income is determined with reference to the method of 
accounting under which the controlled foreign corporation computes its 
taxable income and earnings and profits for purposes of sections 951 
through 964. See section 6038 and the regulations thereunder for the 
reporting requirements of the controlled foreign corporation provisions 
(sections 951 through 964).
    (iii) Passive foreign investment companies. If an amount to which 
paragraph (b) of this section otherwise applies is

[[Page 748]]

owed to a related foreign person that is a passive foreign investment 
company within the meaning of section 1296, then the amount is allowable 
as a deduction as of the day on which amount is includible in the income 
of the passive foreign investment company. The day on which the amount 
is includible in income is determined with reference to the method of 
accounting under which the earnings and profits of the passive foreign 
investment company are computed for purposes of sections 1291 through 
1297. See sections 1291 through 1297 and the regulations thereunder for 
the reporting requirements of the passive foreign investment company 
provisions. This exception shall apply, however, only if the person that 
owes the amount at issue has made and has in effect an election pursuant 
to section 1295 with respect to the passive foreign investment company 
to which the amount at issue is owed.
    (iv) Examples. The rules of this paragraph (c)(4) may be illustrated 
by the following examples. Application of the provisions of sections 951 
through 964 are provided for illustration only, and do not provide 
substantive rules concerning the operation of those provisions. The 
principles of these examples apply equally to the provisions of 
paragraphs (c)(4) (i) through (iii) of this section.

    Example 1. P, a domestic corporation, owns 100 percent of the total 
combined voting power and value of the stock of both FC1 and FC2. P is a 
calendar year taxpayer that uses the accrual method of accounting in 
computing its income and deductions. FC1 is incorporated in Country X, 
and FC2 is incorporated in Country Y. FC1 and FC2 are controlled foreign 
corporations within the meaning of section 957, and are both calendar 
year taxpayers. FC1 computes its taxable income and earnings and 
profits, for purposes of sections 951 through 964, using the accrual 
method of accounting, while FC2 uses the cash method. In Year 1 FC1 has 
gross income of $10,000 that is described in section 952 (a) (``subpart 
F income''), and which includes interest owed to FC1 by P that is 
described in paragraph (b) of this section and that is otherwise 
allowable as a deduction to P under chapter 1. The interest owed to FC1 
is allowable as a deduction to P in Year 1.
    Example 2. The facts are the same as in Example 1, except that in 
Year 1 FC1 reports no subpart F income because of the application of 
section 954 (b)(3)(A) (the subpart F de minimis rule). Because the 
amount owed to FC1 by P is includible in FC1's gross income in Year 1, 
the interest owed to FC1 is allowable as a deduction to P in Year 1.
    Example 3. The facts are the same as in Example 1. In Year 1, FC1 
accrues interest owed to FC2 that would be allowable as a deduction by 
FC1 under chapter 1 if FC1 were a domestic corporation. The interest 
owed to FC2 by FC1 is paid by FC1 in Year 2. Because FC2 uses the cash 
method of accounting in computing its taxable income for purposes of 
subpart F, the interest owed by FC1 is allowable as a deduction by FC1 
in Year 2, and not in Year 1.

    (d) Effective date. The rules of this section are effective with 
respect to interest that is allowable as a deduction under chapter 1 
(without regard to the rules of this section) in taxable years beginning 
after December 31, 1983, but are not effective with respect to interest 
that is incurred with respect to indebtedness incurred on or before 
September 29, 1983, or incurred after that date pursuant to a contract 
that was binding on that date and at all times thereafter (unless the 
indebtedness or the contract was renegotiated, extended, renewed, or 
revised after that date). The regulations in this section issued under 
section 267 apply to all other deductible amounts that are incurred 
after July 31, 1989, but do not apply to amounts that are incurred 
pursuant to a contract that was binding on September 29, 1983, and at 
all times thereafter (unless the contract was renegotiated, extended, 
renewed, or revised after that date).

[T.D. 8465, 58 FR 237, Jan. 5, 1993]



Sec. 1.267(b)-1  Relationships.

    (a) In general. (1) The persons referred to in section 267(a) and 
Sec. 1.267 (a)-1 are specified in section 267(b).
    (2) Under section 267(b)(3), it is not necessary that either of the 
two corporations be a personal holding company or a foreign personal 
holding company for the taxable year in which the sale or exchange 
occurs or in which the expenses or interest are properly accruable, but 
either one of them must be such a company for the taxable year next 
preceding the taxable year in which the sale or exchange occurs or in 
which the expenses or interest are accrued.

[[Page 749]]

    (3) Under section 267(b)(9), the control of certain educational and 
charitable organizations exempt from tax under section 501 includes any 
kind of control, direct or indirect, by means of which a person in fact 
controls such an organization, whether or not the control is legally 
enforceable and regardless of the method by which the control is 
exercised or exercisable. In the case of an individual, control 
possessed by the individual's family, as defined in section 267(c)(4) 
and paragraph (a)(4) of Sec. 1.267 (c)-1, shall be taken into account.
    (b) Partnerships. (1) Since section 267 does not include members of 
a partnership and the partnership as related persons, transactions 
between partners and partnerships do not come within the scope of 
section 267. Such transactions are governed by section 707 for the 
purposes of which the partnership is considered to be an entity separate 
from the partners. See section 707 and Sec. 1.707-1. Any transaction 
described in section 267(a) between a partnership and a person other 
than a partner shall be considered as occurring between the other person 
and the members of the partnership separately. Therefore, if the other 
person and a partner are within any one of the relationships specified 
in section 267(b), no deductions with respect to such transactions 
between the other person and the partnership shall be allowed:
    (i) To the related partner to the extent of his distributive share 
of partnership deductions for losses or unpaid expenses or interest 
resulting from such transactions, and
    (ii) To the other person to the extent the related partner acquires 
an interest in any property sold to or exchanged with the partnership by 
such other person at a loss, or to the extent of the related partner's 
distributive share of the unpaid expenses or interest payable to the 
partnership by the other person as a result of such transaction.
    (2) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. A, an equal partner in the ABC partnership, personally 
owns all the stock of M Corporation. B and C are not related to A. The 
partnership and all the partners use an accrual method of accounting, 
and are on a calendar year. M Corporation uses the cash receipts and 
disbursements method of accounting and is also on a calendar year. 
During 1956 the partnership borrowed money from M Corporation and also 
sold property to M Corporation, sustaining a loss on the sale. On 
December 31, 1956, the partnership accrued its interest liability to the 
M Corporation and on April 1, 1957 (more than 2\1/2\ months after the 
close of its taxable year), it paid the M Corporation the amount of such 
accrued interest. Applying the rules of this paragraph, the transactions 
are considered as occurring between M Corporation and the partners 
separately. The sale and interest transactions considered as occurring 
between A and the M Corporation fall within the scope of section 267 (a) 
and (b), but the transactions considered as occurring between partners B 
and C and the M Corporation do not. The latter two partners may, 
therefore, deduct their distributive shares of partnership deductions 
for the loss and the accrued interest. However, no deduction shall be 
allowed to A for his distributive shares of these partnership 
deductions. Furthermore, A's adjusted basis for his partnership interest 
must be decreased by the amount of his distributive share of such 
deductions. See section 705(a)(2).
    Example 2. Assume the same facts as in Example 1 of this 
subparagraph except that the partnership and all the partners use the 
cash receipts and disbursements method of accounting, and that M 
Corporation uses an accrual method. Assume further, that during 1956 M 
Corporation borrowed money from the partnership and that on a sale of 
property to the partnership during that year M Corporation sustained a 
loss. On December 31, 1956, the M Corporation accrued its interest 
liability on the borrowed money and on April 1, 1957 (more than 2\1/2\ 
months after the close of its taxable year) it paid the accrued interest 
to the partnership. The corporation's deduction for the accrued interest 
is not allowed to the extent of A's distributive share (one-third) of 
such interest income. M Corporation's deduction for the loss on the sale 
of the property to the partnership is not allowed to the extent of A's 
one-third interest in the purchased property.



Sec. 1.267(c)-1  Constructive ownership of stock.

    (a) In general. (1) The determination of stock ownership for 
purposes of section 267(b) shall be in accordance with the rules in 
section 267(c).
    (2) For an individual to be considered under section 267(c)(2) as 
constructively owning the stock of a corporation which is owned, 
directly or indirectly, by or for members of his family it is not 
necessary that he own stock in

[[Page 750]]

the corporation either directly or indirectly. On the other hand, for an 
individual to be considered under section 267(c)(3) as owning the stock 
of a corporation owned either actually, or constructively under section 
267(c)(1), by or for his partner, such individual must himself actually 
own, or constructively own under section 267(c)(1), stock of such 
corporation.
    (3) An individual's constructive ownership, under section 267(c) (2) 
or (3), of stock owned directly or indirectly by or for a member of his 
family, or by or for his partner, is not to be considered as actual 
ownership of such stock, and the individual's constructive ownership of 
the stock is not to be attributed to another member of his family or to 
another partner. However, an individual's constructive ownership, under 
section 267(c)(1), of stock owned directly or indirectly by or for a 
corporation, partnership, estate, or trust shall be considered as actual 
ownership of the stock, and the individual's ownership may be attributed 
to a member of his family or to his partner.
    (4) The family of an individual shall include only his brothers and 
sisters, spouse, ancestors, and lineal descendants. In determining 
whether any of these relationships exist, full effect shall be given to 
a legal adoption. The term ancestors includes parents and grandparents, 
and the term lineal descendants includes children and grandchildren.
    (b) Examples. The application of section 267(c) may be illustrated 
by the following examples:

    Example 1. On July 1, 1957, A owned 75 percent, and AW, his wife, 
owned 25 percent, of the outstanding stock of the M Corporation. The M 
Corporation in turn owned 80 percent of the outstanding stock of the O 
Corporation. Under section 267(c)(1), A and AW are each considered as 
owning an amount of the O Corporation stock actually owned by M 
Corporation in proportion to their respective ownership of M Corporation 
stock. Therefore, A constructively owns 60 percent (75 percent of 80 
percent) of the O Corporation stock and AW constructively owns 20 
percent (25 percent of 80 percent) of such stock. Under the family 
ownership rule of section 267(c)(2), an individual is considered as 
constructively owning the stock actually owned by his spouse. A and AW, 
therefore, are each considered as constructively owning the M 
Corporation stock actually owned by the other. For the purpose of 
applying this family ownership rule, A's and AW's constructive ownership 
of O Corporation stock is considered as actual ownership under section 
267(c)(5). Thus, A constructively owns the 20 percent of the O 
Corporation stock constructively owned by AW, and AW constructively owns 
the 60 percent of the O Corporation stock constructively owned by A. In 
addition, the family ownership rule may be applied to make AWF, AW's 
father, the constructive owner of the 25 percent of the M Corporation 
stock actually owned by AW. As noted above, AW's constructive ownership 
of 20 percent of the O Corporation stock is considered as actual 
ownership for purposes of applying the family ownership rule, and AWF is 
thereby considered the constructive owner of this stock also. However, 
AW's constructive ownership of the stock constructively and actually 
owned by A may not be considered as actual ownership for the purpose of 
again applying the family ownership rule to make AWF the constructive 
owner of these shares. The ownership of the stock in the M and O 
Corporations may be tabulated as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Stock ownership in M                            Stock ownsership in O
                                                                    Corporation             Total under             Corporation             Total under
                         Person                          --------------------------------   Section 267  --------------------------------   Section 267
                                                              Actual       Constructive      (Percent)        Actual       Constructive      (Percent)
                                                             (Percent)       (Percent)                       (Percent)       (Percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
A.......................................................              75              25             100  ..............              60  ..............
                                                          ..............  ..............  ..............            None  ..............              80
                                                          ..............  ..............  ..............  ..............              20  ..............
 
A W (A's wife)..........................................              25              75             100  ..............              20  ..............
                                                          ..............  ..............  ..............            None  ..............              80
                                                          ..............  ..............  ..............  ..............              60  ..............
 
A W F (AW's father).....................................            None              25              25            None              20              20
M Corporation...........................................  ..............  ..............  ..............              80            None              80
O Corporation...........................................            None            None            None  ..............  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 751]]


Assuming that the M Corporation and the O Corporation make their income 
tax returns for calendar years, and that there was no distribution in 
liquidation of the M or O Corporation, and further assuming that other 
corporation was a personal holding company under section 542 for the 
calendar year 1956, no deduction is allowable with respect to losses 
from sales or exchanges of property made on July 1, 1957, between the 
two corporations. Moreover, whether or not either corporation was a 
personal holding company, no loss would be allowable on a sale or 
exchange between A or AW and either corporation. A deduction would be 
allowed, however, for a loss sustained in an arm's length sale or 
exchange between A and AWF, and between AWF and the M or O Corporation.
    Example 2. On June 15, 1957, all of the stock of the N Corporation 
was owned in equal proportions by A and his partner, AP. Except in the 
case of distributions in liquidation by the N Corporation, no deduction 
is allowable with respect to losses from sales or exchanges of property 
made on June 15, 1957, between A and the N Corporation or AP and the N 
Corporation since each partner is considered as owning the stock owned 
by the other; therefore, each is considered as owning more than 50 
percent in value of the outstanding stock of the N Corporation.
    Example 3. On June 7, 1957, A owned no stock in X Corporation, but 
his wife, AW, owned 20 percent in value of the outstanding stock of X, 
and A's partner, AP, owned 60 percent in value of the outstanding stock 
of X. The partnership firm of A and AP owned no stock in X Corporation. 
The ownership of AW's stock is attributed to A, but not that of AP since 
A does not own any X Corporation stock either actually, or 
constructively under section 267(c)(1). A's constructive ownership of 
AW's stock is not the ownership required for the attribution of AP's 
stock. Therefore, deductions for losses from sales or exchanges of 
property made on June 7, 1957, between X Corporation and A or AW are 
allowable since neither person owned more than 50 percent in value of 
the outstanding stock of X, but deductions for losses from sales or 
exchanges between X Corporation and AP would not be allowable by section 
267(a) (except for distributions in liquidation of X Corporation).



Sec. 1.267(d)-1  Amount of gain where loss previously disallowed.

    (a) General rule. (1) If a taxpayer acquires property by purchase or 
exchange from a transferor who, on the transaction, sustained a loss not 
allowable as a deduction by reason of section 267(a)(1) (or by reason of 
section 24(b) of the Internal Revenue Code of 1939), then any gain 
realized by the taxpayer on a sale or other disposition of the property 
after December 31, 1953, shall be recognized only to the extent that the 
gain exceeds the amount of such loss as is properly allocable to the 
property sold or otherwise disposed of by the taxpayer.
    (2) The general rule is also applicable to a sale or other 
disposition of property by a taxpayer when the basis of such property in 
the taxpayer's hands is determined directly or indirectly by reference 
to other property acquired by the taxpayer from a transferor through a 
sale or exchange in which a loss sustained by the transferor was not 
allowable. Therefore, section 267(d) applies to a sale or other 
disposition of property after a series of transactions if the basis of 
the property acquired in each transaction is determined by reference to 
the basis of the property transferred, and if the original property was 
acquired in a transaction in which a loss to a transferor was not 
allowable by reason of section 267(a)(1) (or by reason of section 24(b) 
of the Internal Revenue Code of 1939).
    (3) The benefit of the general rule is available only to the 
original transferee but does not apply to any original transferee (e.g., 
a donee) who acquired the property in any manner other than by purchase 
or exchange.
    (4) The application of the provisions of this paragraph may be 
illustrated by the following examples:

    Example 1. H sells to his wife, W, for $500, certain corporate stock 
with an adjusted basis for determining loss to him of $800. The loss of 
$300 is not allowable to H by reason of section 267(a)(1) and paragraph 
(a) of Sec. 1.267 (a)-1. W later sells this stock for $1,000. Although 
W's realized gain is $500 ($1,000 minus $500, her basis), her recognized 
gain under section 267(d) is only $200, the excess of the realized gain 
of $500 over the loss of $300 not allowable to H. In determining capital 
gain or loss W's holding period commences on the date of the sale from H 
to W.
    Example 2. Assume the same facts as in Example 1 except that W later 
sells her stock for $300 instead of $1,000. Her recognized loss is $200 
and not $500 since section 267(d) applies only to the nonrecognition of 
gain and does not affect basis.
    Example 3. Assume the same facts as in Example 1 except that W 
transfers her stock as a gift to X. The basis of the stock in the hands 
of X for the purpose of determining gain, under the provisions of 
section 1015, is

[[Page 752]]

the same as W's, or $500. If X later sells the stock for $1,000 the 
entire $500 gain is taxed to him.
    Example 4. H sells to his wife, W, for $5,500, farmland, with an 
adjusted basis for determining loss to him of $8,000. The loss of $2,500 
is not allowable to H by reason of section 267(a)(1) and paragraph (a) 
of Sec. 1.267 (a)-1. W exchanges the farmland, held for investment 
purposes, with S, an unrelated individual, for two city lots, also held 
for investment purposes. The basis of the city lots in the hands of W 
($5,500) is a substituted basis determined under section 1031(d) by 
reference to the basis of the farmland. Later W sells the city lots for 
$10,000. Although W's realized gain is $4,500 (10,000 minus $5,500), her 
recognized gain under section 267(d) is only $2,000, the excess of the 
realized gain of $4,500 over the loss of $2,500 not allowable to H.

    (b) Determination of basis and gain with respect to divisible 
property--(1) Taxpayer's basis. When the taxpayer acquires divisible 
property or property that consists of several items or classes of items 
by a purchase or exchange on which loss is not allowable to the 
transferor, the basis in the taxpayer's hands of a particular part, 
item, or class of such property shall be determined (if the taxpayer's 
basis for that part is not known) by allocating to the particular part, 
item, or class a portion of the taxpayer's basis for the entire property 
in the proportion that the fair market value of the particular part, 
item, or class bears to the fair market value of the entire property at 
the time of the taxpayer's acquisition of the property.
    (2) Taxpayer's recognized gain. Gain realized by the taxpayer on 
sales or other dispositions after December 31, 1953, of a part, item, or 
class of the property shall be recognized only to the extent that such 
gain exceeds the amount of loss attributable to such part, item, or 
class of property not allowable to the taxpayer's transferor on the 
latter's sale or exchange of such property to the taxpayer.
    (3) Transferor's loss not allowable. (i) The transferor's loss on 
the sale or exchange of a part, item, or class of the property to the 
taxpayer shall be the excess of the transferor's adjusted basis for 
determining loss on the part, item, or class of the property over the 
amount realized by the transferor on the sale or exchange of the part, 
item, or class. The amount realized by the transferor on the part, item, 
or class shall be determined (if such amount is not known) in the same 
manner that the taxpayer's basis for such part, item, or class is 
determined. See subparagraph (1) of this paragraph.
    (ii) If the transferor's basis for determining loss on the part, 
item, or class cannot be determined, the transferor's loss on the 
particular part, item, or class transferred to the taxpayer shall be 
determined by allocating to the part, item, or class a portion of his 
loss on the entire property in the proportion that the fair market value 
of such part, item, or class bears to the fair market value of the 
entire property on the date of the taxpayer's acquisition of the entire 
property.
    (4) Examples. The application of the provisions of this paragraph 
may be illustrated by the following examples:

    Example 1. During 1953, H sold class A stock which had cost him 
$1,100, and common stock which had cost him $2,000, to his wife W for a 
lump sum of $1,500. Under section 24(b)(1)(A) of the 1939 Code, the loss 
of $1,600 on the transaction was not allowable to H. At the time the 
stocks were purchased by W, the fair market value of class A stock was 
$900 and the fair market value of common stock was $600. In 1954, W sold 
the class A stock for $2,500. W's recognized gain is determined as 
follows:

Amount realized by W on sale of class A stock................     $2,500
Less: Basis allocated to class A stock--$900/$1,500 x $1,500.        900
                                                              ----------
    Realized gain on transaction.............................      1,600
Less: Loss sustained by H on sale of class A stock to W not
 allowable as a deduction:
  Basis to H of class A stock.....................     $1,100
  Amount realized by H on class A stock--$900/            900
   $1,500 x $1,500................................
                                                   -----------
    Unallowable loss to H on sale of class A stock...........        200
                                                              ----------
  Recognized gain on sale of class A stock by W..............      1,400
 

    Example 2. Assume the same facts as those stated in Example 1 of 
this subparagraph except that H originally purchased both classes of 
stock for a lump sum of $3,100. The unallowable loss to H on the sale of 
all the stock to W is $1,600 ($3,100 minus $1,500). An exact 
determination of the unallowable loss sustained by H on sale to W of 
class A stock cannot be made because H's basis for class A stock cannot 
be determined. Therefore, a determination of the unallowable loss is 
made by allocating to class A stock a portion of H's loss on the entire 
property transferred to W in the proportion that the fair market value 
of class A stock at the time acquired

[[Page 753]]

by W ($900) bears to the fair market value of both classes of stock at 
that time ($1,500). The allocated portion is $900/$1,500 x $1,600, or 
$960. W's recognized gain is, therefore, $640 (W's realized gain of 
$1,600 minus $960).

    (c) Special rules. (1) Section 267(d) does not affect the basis of 
property for determining gain. Depreciation and other items which depend 
on such basis are also not affected.
    (2) The provisions of section 267(d) shall not apply if the loss 
sustained by the transferor is not allowable to the transferor as a 
deduction by reason of section 1091, or section 118 of the Internal 
Revenue Code of 1939, which relate to losses from wash sales of stock or 
securities.
    (3) In determining the holding period in the hands of the transferee 
of property received in an exchange with a transferor with respect to 
whom a loss on the exchange is not allowable by reason of section 267, 
section 1223(2) does not apply to include the period during which the 
property was held by the transferor. In determining such holding period, 
however, section 1223(1) may apply to include the period during which 
the transferee held the property which he exchanged where, for example, 
he exchanged a capital asset in a transaction which, as to him, was 
nontaxable under section 1031 and the property received in the exchange 
has the same basis as the property exchanged.



Sec. 1.267(d)-2  Effective date; taxable years subject to the Internal 
Revenue Code of 1939.

    Pursuant to section 7851(a)(1)(C), the regulations prescribed in 
Sec. 1.267(d)-1, to the extent that they relate to determination of 
gain resulting from the sale or other disposition of property after 
December 31, 1953, with respect to which property a loss was not 
allowable to the transferor by reason of section 267(a)(1) (or by reason 
of section 24(b) of the Internal Revenue Code of 1939), shall also apply 
to taxable years beginning before January 1, 1954, and ending after 
December 31, 1953, and taxable years beginning after December 31, 1953, 
and ending before August 17, 1954, which years are subject to the 
Internal Revenue Code of 1939.



Sec. 1.267(f)-1  Controlled groups.

    (a) In general--(1) Purpose. This section provides rules under 
section 267(f) to defer losses and deductions from certain transactions 
between members of a controlled group (intercompany sales). The purpose 
of this section is to prevent members of a controlled group from taking 
into account a loss or deduction solely as the result of a transfer of 
property between a selling member (S) and a buying member (B).
    (2) Application of consolidated return principles. Under this 
section, S's loss or deduction from an intercompany sale is taken into 
account under the timing principles of Sec. 1.1502-13 (intercompany 
transactions between members of a consolidated group), treating the 
intercompany sale as an intercompany transaction. For this purpose:
    (i) The matching and acceleration rules of Sec. 1.1502-13 (c) and 
(d), the definitions and operating rules of Sec. 1.1502-13 (b) and (j), 
and the simplifying rules of Sec. 1.1502-13(e)(1) apply with the 
adjustments in paragraphs (b) and (c) of this section to reflect that 
this section--
    (A) Applies on a controlled group basis rather than consolidated 
group basis; and
    (B) Generally affects only the timing of a loss or deduction, and 
not it's attributes (e.g., its source and character) or the holding 
period of property.
    (ii) The special rules under Sec. 1.1502-13(f) (stock of members) 
and (g) (obligations of members) apply under this section only to the 
extent the transaction is also an intercompany transaction to which 
Sec. 1.1502-13 applies.
    (iii) Any election under Sec. 1.1502-13 to take items into account 
on a separate entity basis does not apply under this section. See Sec. 
1.1502-13(e)(3).
    (3) Other law. The rules of this section apply in addition to other 
applicable law (including nonstatutory authorities). For example, to the 
extent a loss or deduction deferred under this section is from a 
transaction that is also an intercompany transaction under Sec. 1.1502-
13(b)(1), attributes of the loss or deduction are also subject to 
recharacterization under Sec. 1.1502-13. See also, sections 269 
(acquisitions to evade or avoid income tax) and 482 (allocations among 
commonly controlled taxpayers). Any loss or deduction taken

[[Page 754]]

into account under this section can be deferred, disallowed, or 
eliminated under other applicable law. See, for example, section 1091 
(loss eliminated on wash sale).
    (b) Definitions and operating rules. The definitions in Sec. 
1.1502-13(b) and the operating rules of Sec. 1.1502-13(j) apply under 
this section with appropriate adjustments, including the following:
    (1) Intercompany sale. An intercompany sale is a sale, exchange, or 
other transfer of property between members of a controlled group, if it 
would be an intercompany transaction under the principles of Sec. 
1.1502-13, determined by treating the references to a consolidated group 
as references to a controlled group and by disregarding whether any of 
the members join in filing consolidated returns.
    (2) S's losses or deductions. Except to the extent the intercompany 
sale is also an intercompany transaction to which Sec. 1.1502-13 
applies, S's losses or deductions subject to this section are determined 
on a separate entity basis. For example, the principles of Sec. 1.1502-
13(b)(2)(iii) (treating certain amounts not yet recognized as items to 
be taken into account) do not apply. A loss or deduction is from an 
intercompany sale whether it is directly or indirectly from the 
intercompany sale.
    (3) Controlled group; member. For purposes of this section, a 
controlled group is defined in section 267(f). Thus, a controlled group 
includes a FSC (as defined in section 922) and excluded members under 
section 1563(b)(2), but does not include a DISC (as defined in section 
992). Corporations remain members of a controlled group as long as they 
remain in a controlled group relationship with each other. For example, 
corporations become nonmembers with respect to each other when they 
cease to be in a controlled group relationship with each other, rather 
than by having a separate return year (described in Sec. 1.1502-
13(j)(7)). Further, the principles of Sec. 1.1502-13(j)(6) (former 
common parent treated as continuation of group) apply to any corporation 
if, immediately before it becomes a nonmember, it is both the selling 
member and the owner of property with respect to which a loss or 
deduction is deferred (whether or not it becomes a member of a different 
controlled group filing consolidated or separate returns). Thus, for 
example, if S and B merge together in a transaction described in section 
368(a)(1)(A), the surviving corporation is treated as the successor to 
the other corporation, and the controlled group relationship is treated 
as continuing.
    (4) Consolidated taxable income. References to consolidated taxable 
income (and consolidated tax liability) include references to the 
combined taxable income of the members (and their combined tax 
liability). For corporations filing separate returns, it ordinarily will 
not be necessary to actually combine their taxable incomes (and tax 
liabilities) because the taxable income (and tax liability) of one 
corporation does not affect the taxable income (or tax liability) of 
another corporation.
    (c) Matching and acceleration principles of Sec. 1.1502-13--(1) 
Adjustments to the timing rules. Under this section, S's losses and 
deductions are deferred until they are taken into account under the 
timing principles of the matching and acceleration rules of Sec. 
1.1502-13(c) and (d) with appropriate adjustments. For example, if S 
sells depreciable property to B at a loss, S's loss is deferred and 
taken into account under the principles of the matching rule of Sec. 
1.1502-13(c) to reflect the difference between B's depreciation taken 
into account with respect to the property and the depreciation that B 
would take into account if S and B were divisions of a single 
corporation; if S and B subsequently cease to be in a controlled group 
relationship with each other, S's remaining loss is taken into account 
under the principles of the acceleration rule of Sec. 1.1502-13(d). For 
purposes of this section, the adjustments to Sec. 1.1502-13 (c) and (d) 
include the following:
    (i) Application on controlled group basis. The matching and 
acceleration rules apply on a controlled group basis, rather than a 
consolidated group basis. Thus if S and B are wholly-owned members of a 
consolidated group and 21% of the stock of S is sold to an unrelated 
person, S's loss continues to be deferred under this section because S 
and B continue to be members of a controlled group even though S is no

[[Page 755]]

longer a member of the consolidated group. Similarly, S's loss would 
continue to be deferred if S and B remain in a controlled group 
relationship after both corporations become nonmembers of their former 
consolidated group.
    (ii) Different taxable years. If S and B have different taxable 
years, the taxable years that include a December 31 are treated as the 
same taxable years. If S or B has a short taxable year that does not 
include a December 31, the short year is treated as part of the 
succeeding taxable year that does include a December 31.
    (iii) Transfer to a section 267(b) or 707(b) related person. To the 
extent S's loss or deduction from an intercompany sale of property is 
taken into account under this section as a result of B's transfer of the 
property to a nonmember that is a person related to any member, 
immediately after the transfer, under sections 267(b) or 707(b), or as a 
result of S or B becoming a nonmember that is related to any member 
under section 267(b), the loss or deduction is taken into account but 
allowed only to the extent of any income or gain taken into account as a 
result of the transfer. The balance not allowed is treated as a loss 
referred to in section 267(d) if it is from a sale or exchange by B 
(rather than from a distribution).
    (iv) B's item is excluded from gross income or noncapital and 
nondeductible. To the extent S's loss would be redetermined to be a 
noncapital, nondeductible amount under the principles of Sec. 1.1502-
13, but is not redetermined under paragraph (c)(2) of this section 
(which generally renders the attribute redetermination rule inapplicable 
to sales between members of a controlled group), S's loss continues to 
be deferred. For purposes of this paragraph, stock held by S, stock held 
by B, stock held by all members of S's consolidated group, stock held by 
any member of a controlled group of which S is a member that was 
acquired from a member of S's consolidated group, and stock issued by T 
to a member of the controlled group must be taken into account in 
determining whether a loss would be redetermined to be a noncapital, 
nondeductible amount under the principles of Sec. 1.1502-13. If the 
loss remains deferred, it is taken into account when S and B (including 
their successors) are no longer in a controlled group relationship. (If, 
however, the property is transferred to certain related persons, 
paragraph (c)(1)(iii) of this section will cause the loss to be 
permanently disallowed.) For example, if S sells all of the T stock to B 
at a loss (in a transaction that is treated as a sale or exchange for 
Federal income tax purposes), and T subsequently liquidates in an 
unrelated transaction that qualifies under section 332, S's loss is 
deferred until S and B are no longer in a controlled group relationship. 
Similarly, if S owns all of the T stock and sells 30 percent of T's 
stock to B at a loss (in a transaction that is treated as a sale or 
exchange for Federal income tax purposes), and T subsequently 
liquidates, S's loss on the sale is deferred until S and B (including 
their successors) are no longer in a controlled group relationship.
    (v) Circularity of references. References to deferral or elimination 
under the Internal Revenue Code or regulations do not include references 
to section 267(f) or this section. See, e.g., Sec. 1.1502-13(a)(4) 
(applicability of other law).
    (2) Attributes generally not affected. The matching and acceleration 
rules are not applied under this section to affect the attributes of S's 
intercompany item, or cause it to be taken into account before it is 
taken into account under S's separate entity method of accounting. 
However, the attributes of S's intercompany item may be redetermined, or 
an item may be taken into account earlier than under S's separate entity 
method of accounting, to the extent the transaction is also an 
intercompany transaction to which Sec. 1.1502-13 applies. Similarly, 
except to the extent the transaction is also an intercompany transaction 
to which Sec. 1.1502-13 applies, the matching and acceleration rules do 
not apply to affect the timing or attributes of B's corresponding items.
    (d) Intercompany sales of inventory involving foreign persons--(1) 
General rule. Section 267(a)(1) and this section do not apply to an 
intercompany sale of property that is inventory (within the

[[Page 756]]

meaning of section 1221(1)) in the hands of both S and B, if--
    (i) The intercompany sale is in the ordinary course of S's trade or 
business;
    (ii) S or B is a foreign corporation; and
    (iii) Any income or loss realized on the intercompany sale by S or B 
is not income or loss that is recognized as effectively connected with 
the conduct of a trade or business within the United States within the 
meaning of section 864 (unless the income is exempt from taxation 
pursuant to a treaty obligation of the United States).
    (2) Intercompany sales involving related partnerships. For purposes 
of paragraph (d)(1) of this section, a partnership and a foreign 
corporation described in section 267(b)(10) are treated as members, 
provided that the income or loss of the foreign corporation is described 
in paragraph (d)(1)(iii) of this section.
    (3) Intercompany sales in ordinary course. For purposes of this 
paragraph (d), whether an intercompany sale is in the ordinary course of 
business is determined under all the facts and circumstances.
    (e) Treatment of a creditor with respect to a loan in nonfunctional 
currency. Sections 267(a)(1) and this section do not apply to an 
exchange loss realized with respect to a loan of nonfunctional currency 
if--
    (1) The loss is realized by a member with respect to nonfunctional 
currency loaned to another member;
    (2) The loan is described in Sec. 1.988-1(a)(2)(i);
    (3) The loan is not in a hyperinflationary currency as defined in 
Sec. 1.988-1(f); and
    (4) The transaction does not have as a significant purpose the 
avoidance of Federal income tax.
    (f) Receivables. If S acquires a receivable from the sale of goods 
or services to a nonmember at a gain, and S sells the receivable at fair 
market value to B, any loss or deduction of S from its sale to B is not 
deferred under this section to the extent it does not exceed S's income 
or gain from the sale to the nonmember that has been taken into account 
at the time the receivable is sold to B.
    (g) Earnings and profits. A loss or deduction deferred under this 
section is not reflected in S's earnings and profits before it is taken 
into account under this section. See, e.g., Sec. Sec. 1.312-6(a), 
1.312-7, and 1.1502-33(c)(2).
    (h) Anti-avoidance rule. If a transaction is engaged in or 
structured with a principal purpose to avoid the purposes of this 
section (including, for example, by avoiding treatment as an 
intercompany sale or by distorting the timing of losses or deductions), 
adjustments must be made to carry out the purposes of this section.
    (i) [Reserved]
    (j) Examples. For purposes of the examples in this paragraph (j), 
unless otherwise stated, corporation P owns 75% of the only class of 
stock of subsidiaries S and B, X is a person unrelated to any member of 
the P controlled group, the taxable year of all persons is the calendar 
year, all persons use the accrual method of accounting, tax liabilities 
are disregarded, the facts set forth the only activity, and no member 
has a special status. If a member acts as both a selling member and a 
buying member (e.g., with respect to different aspects of a single 
transaction, or with respect to related transactions), the member is 
referred as to M (rather than as S or B). This section is illustrated by 
the following examples.

    Example 1. Matching and acceleration rules. (a) Facts. S holds land 
for investment with a basis of $130. On January 1 of Year 1, S sells the 
land to B for $100. On a separate entity basis, S's loss is long-term 
capital loss. B holds the land for sale to customers in the ordinary 
course of business. On July 1 of Year 3, B sells the land to X for $110.
    (b) Matching rule. Under paragraph (b)(1) of this section, S's sale 
of land to B is an intercompany sale. Under paragraph (c)(1) of this 
section, S's $30 loss is taken into account under the timing principles 
of the matching rule of Sec. 1.1502-13(c) to reflect the difference for 
the year between B's corresponding items taken into account and the 
recomputed corresponding items. If S and B were divisions of a single 
corporation and the intercompany sale were a transfer between the 
divisions, B would succeed to S's $130 basis in the land and would have 
a $20 loss from the sale to X in Year 3. Consequently, S takes no loss 
into account in Years 1 and 2, and takes the entire $30 loss into 
account in Year 3 to reflect the $30 difference in that year between the

[[Page 757]]

$10 gain B takes into account and its $20 recomputed loss. The 
attributes of S's intercompany items and B's corresponding items are 
determined on a separate entity basis. Thus, S's $30 loss is long-term 
capital loss and B's $10 gain is ordinary income.
    (c) Acceleration resulting from sale of B stock. The facts are the 
same as in paragraph (a) of this Example 1, except that on July 1 of 
Year 3 P sells all of its B stock to X (rather than B's selling the land 
to X). Under paragraph (c)(1) of this section, S's $30 loss is taken 
into account under the timing principles of the acceleration rule of 
Sec. 1.1502-13(d) immediately before the effect of treating S and B as 
divisions of a single corporation cannot be produced. Because the effect 
cannot be produced once B becomes a nonmember, S takes its $30 loss into 
account in Year 3 immediately before B becomes a nonmember. S's loss is 
long-term capital loss.
    (d) Subgroup principles applicable to sale of S and B stock. The 
facts are the same as in paragraph (a) of this Example 1, except that on 
July 1 of Year 3 P sells all of its S and B stock to X (rather than B's 
selling the land to X). Under paragraph (b)(3) of this section, S and B 
are considered to remain members of a controlled group as long as they 
remain in a controlled group relationship with each other (whether or 
not in the original controlled group). P's sale of their stock does not 
affect the controlled group relationship of S and B with each other. 
Thus, S's loss is not taken into account as a result of P's sale of the 
stock. Instead, S's loss is taken into account based on subsequent 
events (e.g., B's sale of the land to a nonmember).
    Example 2. Distribution of loss property. (a) Facts. S holds land 
with a basis of $130 and value of $100. On January 1 of Year 1, S 
distributes the land to P in a transaction to which section 311 applies. 
On July 1 of Year 3, P sells the land to X for $110.
    (b) No loss taken into account. Under paragraph (b)(2) of this 
section, because P and S are not members of a consolidated group, Sec. 
1.1502-13(f)(2)(iii) does not apply to cause S to recognize a $30 loss 
under the principles of section 311(b). Thus, S has no loss to be taken 
into account under this section. (If P and S were members of a 
consolidated group, Sec. 1.1502-13(f)(2)(iii) would apply to S's loss 
in addition to the rules of this section, and the loss would be taken 
into account in Year 3 as a result of P's sale to X.)
    Example 3. Loss not yet taken into account under separate entity 
accounting method. (a) Facts. S holds land with a basis of $130. On 
January 1 of Year 1, S sells the land to B at a $30 loss but does not 
take into account the loss under its separate entity method of 
accounting until Year 4. On July 1 of Year 3, B sells the land to X for 
$110.
    (b) Timing. Under paragraph (b)(2) of this section, S's loss is 
determined on a separate entity basis. Under paragraph (c)(1) of this 
section, S's loss is not taken into account before it is taken into 
account under S's separate entity method of accounting. Thus, although B 
takes its corresponding gain into account in Year 3, S has no loss to 
take into account until Year 4. Once S's loss is taken into account in 
Year 4, it is not deferred under this section because B's corresponding 
gain has already been taken into account. (If S and B were members of a 
consolidated group, S would be treated under Sec. 1.1502-13(b)(2)(iii) 
as taking the loss into account in Year 3.)
    Example 4. Consolidated groups. (a) Facts. P owns all of the stock 
of S and B, and the P group is a consolidated group. S holds land for 
investment with a basis of $130. On January 1 of Year 1, S sells the 
land to B for $100. B holds the land for sale to customers in the 
ordinary course of business. On July 1 of Year 3, P sells 25% of B's 
stock to X. As a result of P's sale, B becomes a nonmember of the P 
consolidated group but S and B remain in a controlled group relationship 
with each other for purposes of section 267(f). Assume that if S and B 
were divisions of a single corporation, the items of S and B from the 
land would be ordinary by reason of B's activities.
    (b) Timing and attributes. Under paragraph (a)(3) of this section, 
S's sale to B is subject to both Sec. 1.1502-13 and this section. Under 
Sec. 1.1502-13, S's loss is redetermined to be an ordinary loss by 
reason of B's activities. Under paragraph (b)(3) of this section, 
because S and B remain in a controlled group relationship with each 
other, the loss is not taken into account under the acceleration rule of 
Sec. 1.1502-13(d) as modified by paragraph (c) of this section. See 
Sec. 1.1502-13(a)(4). Nevertheless, S's loss is redetermined by Sec. 
1.1502-13 to be an ordinary loss, and the character of the loss is not 
further redetermined under this section. Thus, the loss continues to be 
deferred under this section, and will be taken into account as ordinary 
loss based on subsequent events (e.g., B's sale of the land to a 
nonmember).
    (c) Resale to controlled group member. The facts are the same as in 
paragraph (a) of this Example 4, except that P owns 75% of X's stock, 
and B resells the land to X (rather than P's selling any B stock). The 
results for S's loss are the same as in paragraph (b) of this Example 4. 
Under paragraph (b) of this section, X is also in a controlled group 
relationship, and B's sale to X is a second intercompany sale. Thus, S's 
loss continues to be deferred and is taken into account under this 
section as ordinary loss based on subsequent events (e.g., X's sale of 
the land to a nonmember).
    Example 5. Intercompany sale followed by installment sale. (a) 
Facts. S holds land for investment with a basis of $130x. On January 1 
of Year 1, S sells the land to B for $100x. B holds the land for 
investment. On July 1 of Year 3, B sells the land to X in exchange for

[[Page 758]]

X's $110x note. The note bears a market rate of interest in excess of 
the applicable Federal rate, and provides for principal payments of $55x 
in Year 4 and $55x in Year 5. Section 453A applies to X's note.
    (b) Timing and attributes. Under paragraph (c) of this section, S's 
$30x loss is taken into account under the timing principles of the 
matching rule of Sec. 1.1502-13(c) to reflect the difference in each 
year between B's gain taken into account and its recomputed loss. Under 
section 453, B takes into account $5x of gain in Year 4 and in Year 5. 
Therefore, S takes $20x of its loss into account in Year 3 to reflect 
the $20x difference in that year between B's $0 loss taken into account 
and its $20x recomputed loss. In addition, S takes $5x of its loss into 
account in Year 4 and in Year 5 to reflect the $5x difference in each 
year between B's $5x gain taken into account and its $0 recomputed gain. 
Although S takes into account a loss and B takes into account a gain, 
the attributes of B's $10x gain are determined on a separate entity 
basis, and therefore the interest charge under section 453A(c) applies 
to B's $10x gain on the installment sale beginning in Year 3.
    Example 6. Section 721 transfer to a related nonmember. (a) Facts. S 
owns land with a basis of $130. On January 1 of Year 1, S sells the land 
to B for $100. On July 1 of Year 3, B transfers the land to a 
partnership in exchange for a 40% interest in capital and profits in a 
transaction to which section 721 applies. P also owns a 25% interest in 
the capital and profits of the partnership.
    (b) Timing. Under paragraph (c)(1)(iii) of this section, because the 
partnership is a nonmember that is a related person under sections 
267(b) and 707(b), S's $30 loss is taken into account in Year 3, but 
only to the extent of any income or gain taken into account as a result 
of the transfer. Under section 721, no gain or loss is taken into 
account as a result of the transfer to the partnership, and thus none of 
S's loss is taken into account. Any subsequent gain recognized by the 
partnership with respect to the property is limited under section 
267(d). (The results would be the same if the P group were a 
consolidated group, and S's sale to B were also subject to Sec. 1.1502-
13.)
    Example 7. Receivables. (a) Controlled group. S owns goods with a 
$60 basis. In Year 1, S sells the goods to X for X's $100 note. The note 
bears a market rate of interest in excess of the applicable Federal 
rate, and provides for payment of principal in Year 5. S takes into 
account $40 of income in Year 1 under its method of accounting. In Year 
2, the fair market value of X's note falls to $90 due to an increase in 
prevailing market interest rates, and S sells the note to B for its $90 
fair market value.
    (b) Loss not deferred. Under paragraph (f) of this section, S takes 
its $10 loss into account in Year 2. (If the sale were not at fair 
market value, paragraph (f) of this section would not apply and none of 
S's $10 loss would be taken into account in Year 2.)
    (c) Consolidated group. Assume instead that P owns all of the stock 
of S and B, and the P group is a consolidated group. In Year 1, S sells 
to X goods having a basis of $90 for X's $100 note (bearing a market 
rate of interest in excess of the applicable Federal rate, and providing 
for payment of principal in Year 5), and S takes into account $10 of 
income in Year 1. In Year 2, S sells the receivable to B for its $85 
fair market value. In Year 3, P sells 25% of B's stock to X. Although 
paragraph (f) of this section provides that $10 of S's loss (i.e., the 
extent to which S's $15 loss does not exceed its $10 of income) is not 
deferred under this section, S's entire $15 loss is subject to Sec. 
1.1502-13 and none of the loss is taken into account in Year 2 under the 
matching rule of Sec. 1.1502-13(c). See paragraph (a)(3) of this 
section (continued deferral under Sec. 1.1502-13). P's sale of B stock 
results in B becoming a nonmember of the P consolidated group in Year 3. 
Thus, S's $15 loss is taken into account in Year 3 under the 
acceleration rule of Sec. 1.1502-13(d). Nevertheless, B remains in a 
controlled group relationship with S and paragraph (f) of this section 
permits only $10 of S's loss to be taken into account in Year 3. See 
Sec. 1.1502-13(a)(4) (continued deferral under section 267). The 
remaining $5 of S's loss continues to be deferred under this section and 
taken into account under this section based on subsequent events (e.g., 
B's collection of the note or P's sale of the remaining B stock to a 
nonmember).
    Example 8. Selling member ceases to be a member. (a) Facts. P owns 
all of the stock of S and B, and the P group is a consolidated group. S 
has several historic assets, including land with a basis of $130 and 
value of $100. The land is not essential to the operation of S's 
business. On January 1 of Year 1, S sells the land to B for $100. On 
July 1 of Year 3, P transfers all of S's stock to newly formed X in 
exchange for a 20% interest in X stock as part of a transaction to which 
section 351 applies. Although X holds many other assets, a principal 
purpose for P's transfer is to accelerate taking S's $30 loss into 
account. P has no plan or intention to dispose of the X stock.
    (b) Timing. Under paragraph (c) of this section, S's $30 loss 
ordinarily is taken into account immediately before P's transfer of the 
S stock, under the timing principles of the acceleration rule of Sec. 
1.1502-13(d). Although taking S's loss into account results in a $30 
negative stock basis adjustment under Sec. 1.1502-32, because P has no 
plan or intention to dispose of its X stock, the negative adjustment 
will not immediately affect taxable income. P's transfer accelerates a 
loss that otherwise would be deferred, and an adjustment under paragraph 
(h) of this section is

[[Page 759]]

required. Thus, S's loss is never taken into account, and S's stock 
basis and earnings and profits are reduced by $30 under Sec. Sec. 
1.1502-32 and 1.1502-33 immediately before P's transfer of the S stock.
    (c) Nonhistoric assets. Assume instead that, with a principal 
purpose to accelerate taking into account any further loss that may 
accrue in the value of the land without disposing of the land outside of 
the controlled group, P forms M with a $100 contribution on January 1 of 
Year 1 and S sells the land to M for $100. On December 1 of Year 1, when 
the value of the land has decreased to $90, M sells the land to B for 
$90. On July 1 of Year 3, while B still owns the land, P sells all of 
M's stock to X and M becomes a nonmember. Under paragraph (c) of this 
section, M's $10 loss ordinarily is taken into account under the timing 
principles of the acceleration rule of Sec. 1.1502-13(d) immediately 
before M becomes a nonmember. (S's $30 loss is not taken into account 
under the timing principles of Sec. 1.1502-13(c) or Sec. 1.1502-13(d) 
as a result of M becoming a nonmember, but is taken into account based 
on subsequent events such as B's sale of the land to a nonmember or P's 
sale of the stock of S or B to a nonmember.) The land is not an historic 
asset of M and, although taking M's loss into account reduces P's basis 
in the M stock under Sec. 1.1502-32, the negative adjustment only 
eliminates the $10 duplicate stock loss. Under paragraph (h) of this 
section, M's loss is never taken into account. M's stock basis, and the 
earnings and profits of M and P, are reduced by $10 under Sec. Sec. 
1.1502-32 and 1.1502-33 immediately before P's sale of the M stock.
    Example 9. Sale of stock by consolidated group member to controlled 
group member. (a) Facts. P1, a domestic corporation, owns 75% of the 
outstanding stock of P, the common parent of a consolidated group. P 
owns all of the outstanding stock of subsidiaries M and S, which are 
members of P's consolidated group. M and S each own 50% of the only 
class of stock of L, a nonmember life insurance company. On January 1 of 
Year 1, S sells 25% of L's stock to P1 for $50 cash. At the time of the 
sale, S's aggregate basis in the L shares transferred to P1 was $80, and 
S recognizes a $30 loss. On February 18 of Year 3, at a time when the L 
shares held by P1 are worth $60, L liquidates. As a result of the 
liquidation, P1 recognizes a $10 gain.
    (b) Timing. Under paragraph (a)(2) of this section, S's loss on the 
sale of the L stock to P1 is deferred. Under paragraph (c)(1)(iv) of 
this section, upon the liquidation of L, to the extent S's loss would be 
redetermined to be a noncapital, nondeductible amount under the 
principles of Sec. 1.1502-13, S's loss continues to be deferred. Under 
the principles of Sec. 1.1502-13, S's loss is not redetermined to be a 
noncapital, nondeductible amount to the extent of P1's $10 of gain 
recognized. Accordingly, S takes into account $10 of loss as a result of 
the liquidation. In determining whether the remainder of S's $20 loss 
would be redetermined to be a noncapital, nondeductible amount, under 
paragraph (c)(1)(iv) of this section, stock held by P1, stock held by M, 
and stock held by S is taken into account. Accordingly, under the 
principles of Sec. 1.1502-13, the liquidation of L would be treated as 
a liquidation qualifying under section 332, and the remainder of S's 
loss would be redetermined to be a noncapital, nondeductible amount. 
Thus, under paragraph (c)(1)(iv), S's remaining $20 loss continues to be 
deferred until S and P1 are no longer in a controlled group 
relationship.
    Example 10. Issuance of stock to controlled group member. (a) Facts. 
FP is a foreign corporation that owns all the stock of FS, a foreign 
corporation, and all the stock of P, a domestic corporation. P owns all 
of the single class of outstanding common stock of T. In Year 1, FS 
contributes cash to T in exchange for newly issued stock of T that 
constitutes 40 percent of T's outstanding stock. In Year 2, when the 
value of the T stock owned by P is less than its basis in P's hands, P 
sells all of its T stock to FP. In Year 3, in a transaction unrelated to 
the issuance of the T stock in Year 1, T converts under state law to a 
limited liability company that is treated as a partnership for Federal 
income tax purposes.
    (b) Timing. Under paragraph (a)(2) of this section, P's loss on the 
sale of its T stock is deferred. Under paragraph (c)(1)(iv) of this 
section, upon the conversion of T, to the extent P's loss would be 
redetermined to be a noncapital, nondeductible amount under the 
principles of Sec. 1.1502-13, P's loss continues to be deferred. In 
determining whether the loss would be redetermined to be a noncapital, 
nondeductible amount, stock held by FS (which was acquired from T) and 
stock held by FP (the buyer of the T stock from P and a member of P's 
controlled group) is taken into account. Accordingly, under the 
principles of Sec. 1.1502-13 the deemed liquidation of T resulting from 
the conversion of T would be treated as a liquidation qualifying under 
section 332, and P's loss would be redetermined to be a noncapital, 
nondeductible amount. Thus, under paragraph (c)(1)(iv), P's loss 
continues to be deferred until P and FP are no longer in a controlled 
group relationship.

    (k) Cross-reference. For additional rules applicable to the 
disposition, deconsolidation, or transfer of the stock of members of 
consolidated groups, see Sec. Sec. 1.337(d)-2, 1.1502-13(f)(6), 1.1502-
35, and 1.1502-36.
    (l) Effective dates--(1) In general. This section applies with 
respect to transactions occurring in S's years beginning on or after 
July 12, 1995. If both

[[Page 760]]

this section and prior law apply to a transaction, or neither applies, 
with the result that items are duplicated, omitted, or eliminated in 
determining taxable income (or tax liability), or items are treated 
inconsistently, prior law (and not this section) applies to the 
transaction.
    (2) Avoidance transactions. This paragraph (l)(2) applies if a 
transaction is engaged in or structured on or after April 8, 1994, with 
a principal purpose to avoid the rules of this section (and instead to 
apply prior law). If this paragraph (l)(2) applies, appropriate 
adjustments must be made in years beginning on or after July 12, 1995, 
to prevent the avoidance, duplication, omission, or elimination of any 
item (or tax liability), or any other inconsistency with the rules of 
this section.
    (3) Effective/applicability date. Paragraph (c)(1)(iv) of this 
section applies to a loss that continues to be deferred pursuant to that 
paragraph if the event that would cause the loss to be redetermined as a 
noncapital nondeductible amount under the principles of Sec. 1.1502-13 
occurs on or after April 16, 2012.
    (4) Prior law. For transactions occurring in S's years beginning 
before July 12, 1995 see the applicable regulations issued under 
sections 267 and 1502. See, e.g., Sec. Sec. 1.267(f)-1, 1.267(f)-1T, 
1.267(f)-2T, 1.267(f)-3, 1.1502-13, 1.1502-13T, 1.1502-14, 1.1502-14T, 
and 1.1502-31 (as contained in the 26 CFR part 1 edition revised as of 
April 1, 1995).

[T.D. 8597, 60 FR 36680, July 18, 1995, as amended by T.D. 8660, 61 FR 
10499, Mar. 14, 1996; 62 FR 12097, Mar. 14, 1997; T.D. 9048, 68 FR 
12290, Mar. 14, 2003; T.D. 9187, 70 FR 10327, Mar. 3, 2005; T.D. 9254, 
71 FR 13018, Mar. 14, 2006; T.D. 9424, 73 FR 53986, Sept. 17, 2008; T.D. 
9583, 77 FR 22482, Apr. 16, 2012]



Sec. 1.268-1  Items attributable to an unharvested crop sold with the 
land.

    In computing taxable income no deduction shall be allowed in respect 
of items attributable to the production 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(b)(4). Such items shall be so treated whether or not the taxable 
year involved is that of the sale, exchange, or conversion of such crop 
and whether they are for expenses, depreciation, or otherwise. If the 
taxable year involved is not that of the sale, exchange, or conversion 
of such crop, a recomputation of the tax liability for such year shall 
be made; such recomputation should be in the form of an ``amended 
return'' if necessary. For the adjustments to basis as a result of such 
disallowance, see section 1016(a)(11) and the regulations thereunder.



Sec. 1.269-1  Meaning and use of terms.

    As used in section 269 and Sec. Sec. 1.269-2 through 1.269-7:
    (a) Allowance. The term allowance refers to anything in the internal 
revenue laws which has the effect of diminishing tax liability. The term 
includes, among other things, a deduction, a credit, an adjustment, an 
exemption, or an exclusion.
    (b) Evasion or avoidance. The phrase evasion or avoidance is not 
limited to cases involving criminal penalties, or civil penalties for 
fraud.
    (c) Control. The term control means the ownership of stock 
possessing at least 50 percent of the total combined voting power of all 
classes of stock entitled to vote, or at least 50 percent of the total 
value of shares of all classes of stock of the corporation. For control 
to be ``acquired on or after October 8, 1940'', it is not necessary that 
all of such stock be acquired on or after October 8, 1940. Thus, if A, 
on October 7, 1940, and at all times thereafter, owns 40 percent of the 
stock of X Corporation and acquires on October 8, 1940, an additional 10 
percent of such stock, an acquisition within the meaning of such phrase 
is made by A on October 8, 1940. Similarly, if B, on October 7, 1940, 
owns certain assets and transfers on October 8, 1940, such assets to a 
newly organized Y Corporation in exchange for all the stock of Y 
Corporation, an acquisition within the meaning of such phrase is made by 
B on October 8, 1940. If, under the facts stated in the preceding 
sentence, B is a corporation, all of whose stock is owned by Z 
Corporation, then an acquisition within the meaning of such phrase is 
also made by Z Corporation on October 8, 1940, as well as by the 
shareholders of Z Corporation taken as a group on such date, and by

[[Page 761]]

any of such shareholders if such shareholders as a group own 50 percent 
of the stock of Z on such date.
    (d) Person. The term person includes an individual, a trust, an 
estate, a partnership, an association, a company or a corporation.

[T.D. 6595, 27 FR 3596, Apr. 14, 1962, as amended by T.D. 8388, 57 FR 
345, Jan. 6, 1992]



Sec. 1.269-2  Purpose and scope of section 269.

    (a) General. Section 269 is designed to prevent in the instances 
specified therein the use of the sections of the Internal Revenue Code 
providing deductions, credits, or allowances in evading or avoiding 
Federal income tax. See Sec. 1.269-3.
    (b) Disallowance of deduction, credit, or other allowance. Under the 
Code, an amount otherwise constituting a deduction, credit, or other 
allowance becomes unavailable as such under certain circumstances. 
Characteristic of such circumstances are those in which the effect of 
the deduction, credit, or other allowance would be to distort the 
liability of the particular taxpayer when the essential nature of the 
transaction or situation is examined in the light of the basic purpose 
or plan which the deduction, credit, or other allowance was designed by 
the Congress to effectuate. The distortion may be evidenced, for 
example, by the fact that the transaction was not undertaken for reasons 
germane to the conduct of the business of the taxpayer, by the unreal 
nature of the transaction such as its sham character, or by the unreal 
or unreasonable relation which the deduction, credit, or other allowance 
bears to the transaction. The principle of law making an amount 
unavailable as a deduction, credit, or other allowance in cases in which 
the effect of making an amount so available would be to distort the 
liability of the taxpayer, has been judicially recognized and applied in 
several cases. Included in these cases are Gregory v. Helvering (1935) 
(293 U.S. 465; Ct. D. 911, C.B. XIV-1, 193); Griffiths v. Helvering 
(1939) (308 U.S. 355; Ct. D. 1431, C.B. 1940-1, 136); Higgins v. Smith 
(1940) (308 U.S. 473; Ct. D. 1434, C.B. 1940-1, 127); and J. D. & A. B. 
Spreckles Co. v. Commissioner (1940) (41 B.T.A. 370). In order to give 
effect to such principle, but not in limitation thereof, several 
provisions of the Code, for example, section 267 and section 270, 
specify with some particularity instances in which disallowance of the 
deduction, credit, or other allowance is required. Section 269 is also 
included in such provisions of the Code. The principle of law and the 
particular sections of the Code are not mutually exclusive and in 
appropriate circumstances they may operate together or they may operate 
separately. See, for example, Sec. 1.269-6.

[T.D. 6595, 27 FR 3596, Apr. 14, 1962]



Sec. 1.269-3  Instances in which section 269(a) disallows a deduction, 
credit, or other allowance.

    (a) Instances of disallowance. Section 269 specifies two instances 
in which a deduction, credit, or other allowance is to be disallowed. 
These instances, described in paragraphs (1) and (2) of section 269(a), 
are those in which:
    (1) Any person or persons acquire, or acquired on or after October 
8, 1940, directly or indirectly, control of a corporation, or
    (2) Any corporation acquires, or acquired on or after October 8, 
1940, directly or indirectly, property of another corporation (not 
controlled, directly or indirectly, immediately before such acquisition 
by such acquiring corporation or its stockholders), the basis of which 
property in the hands of the acquiring corporation is determined by 
reference to the basis in the hands of the transferor corporation.

In either instance the principal purpose for which the acquisition was 
made must have been the evasion or avoidance of Federal income tax by 
securing the benefit of a deduction, credit, or other allowance which 
such person, or persons, or corporation, would not otherwise enjoy. If 
this requirement is satisfied, it is immaterial by what method or by 
what conjunction of events the benefit was sought. Thus, an acquiring 
person or corporation can secure the benefit of a deduction, credit, or 
other allowance within the meaning of section 269 even though it is the 
acquired corporation that is entitled to such deduction, credit, or 
other allowance in the determination of its tax. If the purpose to evade 
or avoid Federal income

[[Page 762]]

tax exceeds in importance any other purpose, it is the principal 
purpose. This does not mean that only those acquisitions fall within the 
provisions of section 269 which would not have been made if the evasion 
or avoidance purpose was not present. The determination of the purpose 
for which an acquisition was made requires a scrutiny of the entire 
circumstances in which the transaction or course of conduct occurred, in 
connection with the tax result claimed to arise therefrom.
    (b) Acquisition of control; transactions indicative of purpose to 
evade or avoid tax. If the requisite acquisition of control within the 
meaning of paragraph (1) of section 269(a) exists, the transactions set 
forth in the following subparagraphs are among those which, in the 
absence of additional evidence to the contrary, ordinarily are 
indicative that the principal purpose for acquiring control was evasion 
or avoidance of Federal income tax:
    (1) A corporation or other business enterprise (or the interest 
controlling such corporation or enterprise) with large profits acquires 
control of a corporation with current, past, or prospective credits, 
deductions, net operating losses, or other allowances and the 
acquisition is followed by such transfers or other action as is 
necessary to bring the deduction, credit, or other allowance into 
conjunction with the income (see further Sec. 1.269-6). This 
subparagraph may be illustrated by the following example:

    Example. Individual A acquires all of the stock of L Corporation 
which has been engaged in the business of operating retail drug stores. 
At the time of the acquisition, L Corporation has net operating loss 
carryovers aggregating $100,000 and its net worth is $100,000. After the 
acquisition, L Corporation continues to engage in the business of 
operating retail drug stores but the profits attributable to such 
business after the acquisition are not sufficient to absorb any 
substantial portion of the net operating loss carryovers. Shortly after 
the acquisition, individual A causes to be transferred to L Corporation 
the assets of a hardware business previously controlled by A which 
business produces profits sufficient to absorb a substantial portion of 
L Corporation's net operating loss carryovers. The transfer of the 
profitable business, which has the effect of using net operating loss 
carryovers to offset gains of a business unrelated to that which 
produced the losses, indicates that the principal purpose for which the 
acquisition of control was made is evasion or avoidance of Federal 
income tax.

    (2) A person or persons organize two or more corporations instead of 
a single corporation in order to secure the benefit of multiple surtax 
exemptions (see section 11(c)) or multiple minimum accumulated earnings 
credits (see section 535(c)(2) and (3)).
    (3) A person or persons with high earning assets transfer them to a 
newly organized controlled corporation retaining assets producing net 
operating losses which are utilized in an attempt to secure refunds.
    (c) Acquisition of property; transactions indicative of purpose to 
evade or avoid tax. If the requisite acquisition of property within the 
meaning of paragraph (2) of section 269(a) exists, the transactions set 
forth in the following subparagraphs are among those which, in the 
absence of additional evidence to the contrary, ordinarily are 
indicative that the principal purpose for acquiring such property was 
evasion or avoidance of Federal income tax:
    (1) A corporation acquires property having in its hands an aggregate 
carryover basis which is materially greater than its aggregate fair 
market value at the time of such acquisition and utilizes the property 
to create tax-reducing losses or deductions.
    (2) A subsidiary corporation, which has sustained large net 
operating losses in the operation of business X and which has filed 
separate returns for the taxable years in which the losses were 
sustained, acquires high earning assets, comprising business Y, from its 
parent corporation. The acquisition occurs at a time when the parent 
would not succeed to the net operating loss carryovers of the subsidiary 
if the subsidiary were liquidated, and the profits of business Y are 
sufficient to offset a substantial portion of the net operating loss 
carryovers attributable to business X (see further Example 3 of Sec. 
1.269-6).
    (d) Ownership changes to which section 382(l)(5) applies; 
transactions indicative of purpose to evade or avoid tax--(1) In 
general. Absent strong evidence to the contrary, a requisite acquisition 
of control

[[Page 763]]

or property in connection with an ownership change to which section 
382(l)(5) applies is considered to be made for the principal purpose of 
evasion or avoidance of Federal income tax unless the corporation 
carries on more than an insignificant amount of an active trade or 
business during and subsequent to the title 11 or similar case (as 
defined in section 382(l)(5)(G)). The determination of whether the 
corporation carries on more than an insignificant amount of an active 
trade or business is made without regard to the continuity of business 
enterprise set forth in Sec. 1.368-1(d). The determination is based on 
all the facts and circumstances, including, for example, the amount of 
business assets that continue to be used, or the number of employees in 
the work force who continue employment, in an active trade or business 
(although not necessarily the historic trade or business). Where the 
corporation continues to utilize a significant amount of its business 
assets or work force, the requirement of carrying on more than an 
insignificant amount of an active trade or business may be met even 
though all trade or business activities temporarily cease for a period 
of time in order to address business exigencies.
    (2) Effective date. The presumption under paragraph (d) of this 
section applies to acquisitions of control or property effected pursuant 
to a plan of reorganization confirmed by a court in a title 11 or 
similar case (within the meaning of section 368(a)(3)(A)) after August 
14, 1990.
    (e) Relationship of section 269 to 11 U.S.C. 1129(d). In determining 
for purposes of section 269 of the Internal Revenue Code whether an 
acquisition pursuant to a plan of reorganization in a case under title 
11 of the United States Code was made for the principal purpose of 
evasion or avoidance of Federal income tax, the fact that a governmental 
unit did not seek a determination under 11 U.S.C. 1129(d) is not taken 
into account and any determination by a court under 11 U.S.C. 1129(d) 
that the principal purpose of the plan is not avoidance of taxes is not 
controlling.

[T.D. 6595, 27 FR 3596, Apr. 14, 1962, as amended by T.D. 8388, 57 FR 
345, Jan. 6, 1992]



Sec. 1.269-4  Power of district director to allocate deduction, credit, 
or allowance in part.

    The district director is authorized by section 269(b) to allow a 
part of the amount disallowed by section 269(a), but he may allow such 
part only if and to the extent that he determines that the amount 
allowed will not result in the evasion or avoidance of Federal income 
tax for which the acquisition was made. The district director is also 
authorized to use other methods to give effect to part of the amount 
disallowed under section 269(a), but only to such extent as he 
determines will not result in the evasion or avoidance of Federal income 
tax for which the acquisition was made. Whenever appropriate to give 
proper effect to the deduction, credit, or other allowance, or such part 
of it which may be allowed, this authority includes the distribution, 
apportionment, or allocation of both the gross income and the 
deductions, credits, or other allowances the benefit of which was 
sought, between or among the corporations, or properties, or parts 
thereof, involved, and includes the disallowance of any such deduction, 
credit, or other allowance to any of the taxpayers involved.

[T.D. 6595, 27 FR 3597, Apr. 14, 1962]



Sec. 1.269-5  Time of acquisition of control.

    (a) In general. For purposes of section 269, an acquisition of 
control occurs when one or more persons acquire beneficial ownership of 
stock possessing at least 50 percent of the total combined voting power 
of all classes of stock entitled to vote or at least 50 percent of the 
total value of share of all classes of stock of the corporation.
    (b) Application of general rule to certain creditor acquisitions. 
(1) For purposes of section 269, creditors of an insolvent or bankrupt 
corporation (by themselves or in conjunction with other persons) acquire 
control of the corporation when they acquire beneficial ownership of the 
requisite amount of stock. Although insolvency or bankruptcy may cause 
the interests of creditors to predominate as a practical matter, 
creditor interests do not constitute beneficial ownership of the

[[Page 764]]

corporation's stock. Solely for purposes of section 269, creditors of a 
bankrupt corporation are treated as acquiring beneficial ownership of 
stock of the corporation no earlier than the time a bankruptcy court 
confirms a plan of reorganization.
    (2) The provisions of this section are illustrated by the following 
example.

    Example. Corporation L files a petition under chapter 11 of the 
Bankruptcy Code on January 5, 1987. A creditors' committee is formed. On 
February 22, 1987, and upon the request of the creditors, the bankruptcy 
court removes the debtor-in-possession from business management and 
operations and appoints a trustee. The trustee consults regularly with 
the creditors' committee in formulating both short-term and long-term 
management decisions. After three years, the creditors approve a plan of 
reorganization in which the outstanding stock of Corporation L is 
canceled and its creditors receive shares of stock constituting all of 
the outstanding shares. The bankruptcy court confirms the plan of 
reorganization on March 23, 1990, and the plan is put into effect on May 
25, 1990. For purposes of section 269, the creditors acquired control of 
Corporation L than March 23, 1990. Similarly, the determination of 
whether the creditors acquired control of Corporation L no earlier with 
the principal purpose of evasion or avoidance of Federal income tax is 
made by reference to the creditors' purposes as of no earlier than March 
23, 1990.

[T.D. 8388, 57 FR 346, Jan. 6, 1992]



Sec. 1.269-6  Relationship of section 269 to section 382 before the Tax 
Reform Act of 1986.

    Section 269 and Sec. Sec. 1.269-1 through 1.269-5 may be applied to 
disallow a net operating loss carryover even though such carryover is 
not disallowed (in whole or in part) under section 382 and the 
regulations thereunder. This section may be illustrated by the following 
examples:

    Example 1. L Corporation has computed its taxable income on a 
calendar year basis and has sustained heavy net operating losses for a 
number of years. Assume that A purchases all of the stock of L 
Corporation on December 31, 1955, for the principal purpose of utilizing 
its net operating loss carryovers by changing its business to a 
profitable new business. Assume further that A makes no attempt to 
revitalize the business of L Corporation during the calendar year 1956 
and that during January 1957 the business is changed to an entirely new 
and profitable business. The carryovers will be disallowed under the 
provisions of section 269(a) without regard to the application of 
section 382.
    Example 2. L Corporation has sustained heavy net operating losses 
for a number of years. In a merger under State law, P Corporation 
acquires all of the assets of L Corporation for the principal purpose of 
utilizing the net operating loss carryovers of L Corporation against the 
profits of P Corporation's business. As a result of the merger, the 
former stockholders of L Corporation own, immediately after the merger, 
12 percent of the fair market value of the outstanding stock of P 
Corporation. If the merger qualifies as a reorganization to which 
section 381(a) applies, the entire net operating loss carryovers will be 
disallowed under the provisions of section 269(a) without regard to the 
application of section 382.
    Example 3. L Corporation has been sustaining net operating losses 
for a number of years. P Corporation, a profitable corporation, on 
December 31, 1955, acquires all the stock of L Corporation for the 
purpose of continuing and improving the operation of L Corporation's 
business. Under the provisions of sections 334(b)(2) and 381(a)(1), P 
Corporation would not succeed to L Corporation's net operating loss 
carryovers if L Corporation were liquidated pursuant to a plan of 
liquidation adopted within two years after the date of the acquisition. 
During 1956, P Corporation transfers a profitable business to L 
Corporation for the principal purpose of using the profits of such 
business to absorb the net operating loss carryovers of L Corporation. 
The transfer is such as to cause the basis of the transferred assets in 
the hands of L Corporation to be determined by reference to their basis 
in the hands of P Corporation. L Corporation's net operating loss 
carryovers will be disallowed under the provisions of section 269(a) 
without regard to the application of section 382.

[T.D. 6595, 27 FR 3597, Apr. 14, 1962, as amended by T.D. 8388, 57 FR 
346, Jan. 6, 1992]



Sec. 1.269-7  Relationship of section 269 to sections 382 and 383 




after the Tax Reform Act of 1986.

    Section 269 and Sec. Sec. 1.269-1 through 1.269-5 may be applied to 
disallow a deduction, credit, or other allowance notwithstanding that 
the utilization or amount of a deduction, credit, or other allowance is 
limited or reduced under section 382 or 383 and the regulations 
thereunder. However, the fact that the amount of taxable income or tax 
that may be offset by a deduction, credit, or other allowance is limited 
under section 382(a) or 383 and the regulations

[[Page 765]]

thereunder is relevant to the determination of whether the principal 
purpose of an acquisition is the evasion or avoidance of Federal income 
tax.

[T.D. 8388, 57 FR 346, Jan. 6, 1992]



Sec. 1.269B-1  Stapled foreign corporations.

    (a) Treatment as a domestic corporation--(1) General rule. Except as 
otherwise provided, if a foreign corporation is a stapled foreign 
corporation within the meaning of paragraph (b)(1) of this section, such 
foreign corporation will be treated as a domestic corporation for U.S. 
Federal income tax purposes. Accordingly, for example, the worldwide 
income of such corporation will be subject to the tax imposed by section 
11. For application of the branch profits tax under section 884, and 
application of sections 871(a), 881, 1441, and 1442 to dividends and 
interest paid by a stapled foreign corporation, see Sec. Sec. 1.884-
1(h) and 1.884-4(d).
    (2) Foreign owned exception. Paragraph (a)(1) of this section will 
not apply if a foreign corporation and a domestic corporation are 
stapled entities (as provided in paragraph (b) of this section) and such 
foreign and domestic corporations are foreign owned within the meaning 
of this paragraph (a)(2). A corporation will be treated as foreign owned 
if it is established to the satisfaction of the Commissioner that United 
States persons hold directly (or indirectly applying section 958(a)(2) 
and (3) and section 318(a)(4)) less than 50 percent of the total 
combined voting power of all classes of stock entitled to vote and less 
than 50 percent of the total value of the stock of such corporation. For 
the consequences of a stapled foreign corporation becoming or ceasing to 
be foreign owned, therefore converting its status as either a foreign or 
domestic corporation within the meaning of this paragraph (a)(2), see 
paragraph (c) of this section.
    (b) Definition of a stapled foreign corporation--(1) General rule. A 
foreign corporation is a stapled foreign corporation if such foreign 
corporation and a domestic corporation are stapled entities. A foreign 
corporation and a domestic corporation are stapled entities if more than 
50 percent of the aggregate value of each corporation's beneficial 
ownership consists of interests that are stapled. In the case of 
corporations with more than one class of stock, it is not necessary for 
a class of stock representing more than 50 percent of the beneficial 
ownership of the foreign corporation to be stapled to a class of stock 
representing more than 50 percent of the beneficial ownership of the 
domestic corporation, provided that more than 50 percent of the 
aggregate value of each corporation's beneficial ownership (taking into 
account all classes of stock) are in fact stapled. Interests are stapled 
if a transferor of one or more interests in one entity is required, by 
form of ownership, restrictions on transfer, or other terms or 
conditions, to transfer interests in the other entity. The determination 
of whether interests are stapled for this purpose is based on the 
relevant facts and circumstances, including, but not limited to, the 
corporations' by-laws, articles of incorporation or association, and 
stock certificates, shareholder agreements, agreements between the 
corporations, and voting trusts with respect to the corporations. For 
the consequences of a foreign corporation becoming or ceasing to be a 
stapled foreign corporation (e.g., a corporation that is no longer 
foreign owned) under this paragraph (b)(1), see paragraph (c) of this 
section.
    (2) Related party ownership rule. For purposes of determining 
whether a foreign corporation is a stapled foreign corporation, the 
Commissioner may, at his discretion, treat interests that otherwise 
would be stapled interests as not being stapled if the same person or 
related persons (within the meaning of section 267(b) or 707(b)) hold 
stapled interests constituting more than 50 percent of the beneficial 
ownership of both corporations, and a principal purpose of the stapling 
of those interests is the avoidance of U.S. income tax. A stapling of 
interests may have a principal purpose of tax avoidance even though the 
tax avoidance purpose is outweighed by other purposes when taken 
together.
    (3) Example. The principles of paragraph (b)(1) of this section are 
illustrated by the following example:

    Example. USCo, a domestic corporation, and FCo, a foreign 
corporation, are publicly

[[Page 766]]

traded companies, each having two classes of stock outstanding. USCo's 
class A shares, which constitute 75% of the value of all beneficial 
ownership in USCo, are stapled to FCo's class B shares, which constitute 
25% of the value of all beneficial ownership in F Co. USCo's class B 
shares, which constitute 25% of the value of all beneficial ownership in 
USCo, are stapled to FCo class A shares, which constitute 75% of the 
value of all beneficial ownership in FCo. Because more than 50% of the 
aggregate value of the stock of each corporation is stapled to the stock 
of the other corporation, USCo and FCo are stapled entities within the 
meaning of section 269B(c)(2).

    (c) Changes in domestic or foreign status. The deemed conversion of 
a foreign corporation to a domestic corporation under section 269B is 
treated as a reorganization under section 368(a)(1)(F). Similarly, the 
deemed conversion of a corporation that is treated as a domestic 
corporation under section 269B to a foreign corporation is treated as a 
reorganization under section 368(a)(1)(F). For the consequences of a 
deemed conversion, including the closing of a corporation's taxable 
year, see Sec. Sec. 1.367(a)-1T(e), (f) and 1.367(b)-2(f).
    (d) Includible corporation--(1) Except as provided in paragraph 
(d)(2) of this section, a stapled foreign corporation treated as a 
domestic corporation under section 269B nonetheless is treated as a 
foreign corporation in determining whether it is an includible 
corporation within the meaning of section 1504(b). Thus, for example, a 
stapled foreign corporation is not eligible to join in the filing of a 
consolidated return under section 1501, and a dividend paid by such 
corporation is not a qualifying dividend under section 243(b), unless a 
valid section 1504(d) election is made with respect to such corporation.
    (2) A stapled foreign corporation is treated as a domestic 
corporation in determining whether it is an includible corporation under 
section 1504(b) for purposes of applying Sec. Sec. 1.904(i)-1 and 
1.861-11T(d)(6).
    (e) U.S. treaties--(1) A stapled foreign corporation that is treated 
as a domestic corporation under section 269B may not claim an exemption 
from U.S. income tax or a reduction in U.S. tax rates by reason of any 
treaty entered into by the United States.
    (2) The principles of this paragraph (e) are illustrated by the 
following example:

    Example. FCo, a Country X corporation, is a stapled foreign 
corporation that is treated as a domestic corporation under section 
269B. FCo qualifies as a resident of Country X pursuant to the income 
tax treaty between the United States and Country X. Under such treaty, 
the United States is permitted to tax business profits of a Country X 
resident only to the extent that the business profits are attributable 
to a permanent establishment of the Country X resident in the United 
States. While FCo earns income from sources within and without the 
United States, it does not have a permanent establishment in the United 
States within the meaning of the relevant treaty. Under paragraph (e)(1) 
of this section, however, FCo is subject to U.S. Federal income tax on 
its income as a domestic corporation without regard to the provisions of 
the U.S.-Country X treaty and therefore without regard to the fact that 
FCo has no permanent establishment in the United States.

    (f) Tax assessment and collection procedures--(1) In general. (i) 
Any income tax imposed on a stapled foreign corporation by reason of its 
treatment as a domestic corporation under section 269B (whether such 
income tax is shown on the stapled foreign corporation's U.S. Federal 
income tax return or determined as a deficiency in income tax) shall be 
assessed as the income tax liability of such stapled foreign 
corporation.
    (ii) Any income tax assessed as a liability of a stapled foreign 
corporation under paragraph (f)(1)(i) of this section shall be 
considered as having been properly assessed as an income tax liability 
of the stapled domestic corporation (as defined in paragraph (f)(4)(i) 
of this section) and all 10-percent shareholders of the stapled foreign 
corporation (as defined in paragraph (f)(4)(ii) of this section). The 
date of such deemed assessment shall be the date the income tax 
liability of the stapled foreign corporation was properly assessed. The 
Commissioner may collect such income tax from the stapled domestic 
corporation under the circumstances set forth in paragraph (f)(2) of 
this section and may collect such income tax from any 10-percent 
shareholders of the stapled foreign corporation under the circumstances 
set forth in paragraph (f)(3) of this section.

[[Page 767]]

    (2) Collection from domestic stapled corporation. If the stapled 
foreign corporation does not pay its income tax liability that was 
properly assessed, the unpaid balance of such income tax or any portion 
thereof may be collected from the stapled domestic corporation, provided 
that the following conditions are satisfied--
    (i) The Commissioner has issued a notice and demand for payment of 
such income tax to the stapled foreign corporation in accordance with 
Sec. 301.6303-1 of this Chapter;
    (ii) The stapled foreign corporation has failed to pay the income 
tax by the date specified in such notice and demand;
    (iii) The Commissioner has issued a notice and demand for payment of 
the unpaid portion of such income tax to the stapled domestic 
corporation in accordance with Sec. 301.6303-1 of this Chapter.
    (3) Collection from 10-percent shareholders of the stapled foreign 
corporation. The unpaid balance of the stapled foreign corporation's 
income tax liability may be collected from a 10-percent shareholder of 
the stapled foreign corporation, limited to each such shareholder's 
income tax liability as determined under paragraph (f)(4)(iv) of this 
section, provided the following conditions are satisfied--
    (i) The Commissioner has issued a notice and demand to the stapled 
domestic corporation for the unpaid portion of the stapled foreign 
corporation's income tax liability, as provided in paragraph (f)(2)(iii) 
of this section;
    (ii) The stapled domestic corporation has failed to pay the income 
tax by the date specified in such notice and demand;
    (iii) The Commissioner has issued a notice and demand for payment of 
the unpaid portion of such income tax to such 10-percent shareholder of 
the stapled foreign corporation in accordance with Sec. 301.6303-1 of 
this Chapter.
    (4) Special rules and definitions. For purposes of this paragraph 
(f), the following rules and definitions apply:
    (i) Stapled domestic corporation. A domestic corporation is a 
stapled domestic corporation with respect to a stapled foreign 
corporation if such domestic corporation and the stapled foreign 
corporation are stapled entities as described in paragraph (b)(1) of 
this section.
    (ii) 10-percent shareholder. A 10-percent shareholder of a stapled 
foreign corporation is any person that owned directly 10 percent or more 
of the total value or total combined voting power of all classes of 
stock in the stapled foreign corporation for any day of the stapled 
foreign corporation's taxable year with respect to which the income tax 
liability relates.
    (iii) 10-percent shareholder in the case of indirect ownership of 
stapled foreign corporation stock. [Reserved]
    (iv) Determination of a 10-percent shareholder's income tax 
liability. The income tax liability of a 10-percent shareholder of a 
stapled foreign corporation, for the income tax of the stapled foreign 
corporation under section 269B and this section, is determined by 
assigning an equal portion of the total income tax liability of the 
stapled foreign corporation for the taxable year to each day in such 
corporation's taxable year, and then dividing that portion ratably among 
the shares outstanding for that day on the basis of the relative values 
of such shares. The liability of any 10-percent shareholder for this 
purpose is the sum of the income tax liability allocated to the shares 
held by such shareholder for each day in the taxable year.
    (v) Income tax. The term income tax means any income tax liability 
imposed on a domestic corporation under title 26 of the United States 
Code, including additions to tax, additional amounts, penalties, and 
interest related to such income tax liability.
    (g) Effective dates--(1) Except as provided in this paragraph (g), 
the provisions of this section are applicable for taxable years that 
begin after July 29, 2005.
    (2) Paragraphs (d)(1) and (f) of this section (except as applied to 
the collection of tax from any 10-percent shareholder of a stapled 
foreign corporation that is a foreign person) are applicable beginning 
on--
    (i) July 18, 1984, for any foreign corporation that became stapled 
to a domestic corporation after June 30, 1983; and

[[Page 768]]

    (ii) January 1, 1987, for any foreign corporation that was stapled 
to a domestic corporation as of June 30, 1983.
    (3) Paragraph (d)(2) of this section is applicable for taxable years 
beginning after July 22, 2003, except that in the case of a foreign 
corporation that becomes stapled to a domestic corporation on or after 
July 22, 2003, paragraph (d)(2) of this section applies for taxable 
years ending on or after July 22, 2003.
    (4) Paragraph (e) of this section is applicable beginning on July 
18, 1984, except as provided in paragraph (g)(5) of this section.
    (5) In the case of a foreign corporation that was stapled to a 
domestic corporation as of June 30, 1983, which was entitled to claim 
benefits under an income tax treaty as of that date, and which remains 
eligible for such treaty benefits, paragraph (e) of this section will 
not apply to such foreign corporation and for all purposes of the 
Internal Revenue Code such corporation will continue to be treated as a 
foreign entity. The prior sentence will continue to apply even if such 
treaty is subsequently modified by protocol, or superseded by a new 
treaty, so long as the stapled foreign corporation continues to be 
eligible to claim such treaty benefits. If the treaty benefits to which 
the stapled foreign corporation was entitled as of June 30, 1983, are 
terminated, then a deemed conversion of the foreign corporation to a 
domestic corporation shall occur pursuant to paragraph (c) of this 
section as of the date of such termination.

[T.D. 9216, 70 FR 43758, July 29, 2005]



Sec. 1.270-1  Limitation on deductions allowable to individuals in 
certain cases.

    (a) Recomputation of taxable income. (1) Under certain 
circumstances, section 270 limits the deductions (other than certain 
deductions described in subsection (b) thereof) attributable to a trade 
or business carried on by an individual which are otherwise allowable to 
such individual under the provisions of chapter 1 of the Code or the 
corresponding provisions of prior revenue laws. If, in each of five 
consecutive taxable years (including at least one taxable year beginning 
after December 31, 1953, and ending after August 16, 1954), the 
deductions attributable to a trade or business carried on by an 
individual (other than the specially treated deductions described in 
paragraph (b) of this section) exceed the gross income derived from such 
trade or business by more than $50,000, the taxable income computed 
under section 63 (or the net income computed under the corresponding 
provisions of prior revenue laws) of such individual shall be recomputed 
for each of such taxable years.
    (2) In recomputing the taxable income (or the net income, in the 
case of taxable years which are otherwise subject to the Internal 
Revenue Code of 1939) for each of the five taxable years, the deductions 
(other than the specially treated deductions described in paragraph (b) 
of this section with the exception of the net operating loss deduction) 
attributable to the trade or business carried on by the individual shall 
be allowed only to the extent of (i) the gross income derived from such 
trade or business, plus (ii) $50,000. The specially treated deductions 
described in paragraph (b) of this section (other than the net operating 
loss deduction) shall each be allowed in full. The net operating loss 
deduction, to the extent attributable to such trade or business, shall 
be disallowed in its entirety. Thus, a carryover or a carryback of a net 
operating loss so attributable, either from a year within the period of 
five consecutive taxable years or from a taxable year outside of such 
period, shall be ignored in making the recomputation of taxable income 
or net income, as the case may be.
    (3) The limitations on deductions provided by section 270 are also 
applicable in determining under section 172, or the corresponding 
provisions of prior revenue laws, the amount of any net operating loss 
carryover or carryback from any year which falls within the provisions 
of section 270 to any year which does not fall within such provisions. 
Also, in determining under section 172, or the corresponding provisions 
of prior revenue laws, the amount of any net operating loss carryover 
from a year which falls within the provisions of section 270 to a year 
which does not fall within such provisions, the amount of net operating 
loss is to be reduced by the taxable income or

[[Page 769]]

net income, as the case may be (computed as provided in Sec. 1.172-5, 
or 26 CFR (1939) 39.122-4(c) (Regulations 118), as the case may be and, 
in the case of any taxable year which falls within the provisions of 
section 270, determined after the application of section 270), of any 
taxable year preceding or succeeding the taxable year of the net 
operating loss to which such loss must first be carried back or carried 
over under the provisions of section 172(b), or the corresponding 
provisions of prior revenue laws, even though the net operating loss 
deduction is not an allowable deduction for such preceding or succeeding 
taxable year.
    (4) If an individual carries on several trades or businesses, the 
deductions attributable to such trades or businesses and the gross 
income derived therefrom shall not be aggregated in determining whether 
the deductions (other than the specially treated deductions) exceed the 
gross income derived from such trades or businesses by more than $50,000 
in any taxable year. For the purposes of section 270, each trade or 
business shall be considered separately. However, where a particular 
business of an individual is conducted in one or more forms such as a 
partnership, joint venture, or individual proprietorship, the 
individual's share of the profits and losses from each business unit 
must be aggregated to determine the applicability of section 270. See 
paragraphs (a)(8)(ii) and (b) of Sec. 1.702-1, relating to 
applicability of section 270 to a partner. Where it is established that 
for tax purposes a husband and wife are partners in the same trade or 
business or that each is participating independently of the other in the 
same trade or business with his and her own money, the husband's gross 
income and deductions from that trade or business shall be considered 
separately from the wife's gross income and deductions from that trade 
or business even though they file a joint return. Where a taxpayer is 
engaged in a trade or business in a community property State under 
circumstances such that the income therefrom is considered to be 
community income, the taxpayer and his spouse are treated for purposes 
of section 270 as two individuals engaged separately in the same trade 
or business and the gross income and deductions attributable to the 
trade or business are allocated one-half to the taxpayer and one-half to 
the spouse. Where several business activities emanate from a single 
commodity, such as oil or gas or a tract of land, it does not 
necessarily follow that such activities are one business for the 
purposes of section 270. However, in order to be treated separately, it 
must be established that such business activities are actually conducted 
separately and are not closely interrelated with each other. For the 
purposes of section 270, the trade or business carried on by an 
individual must be the same in each of the five consecutive years in 
which the deductions (other than the specially treated deductions) 
exceed the gross income derived from such trade or business by more than 
$50,000.
    (5) For the purposes of section 270, a taxable year may be part of 
two or more periods of five consecutive taxable years. Thus, if the 
deductions (other than the specially treated deductions) attributable to 
a trade or business carried on by an individual exceed the gross income 
therefrom by more than $50,000 for each of six consecutive taxable 
years, the fifth year of such six consecutive taxable years shall be 
considered to be a part both of a five-year period beginning with the 
first and ending with the fifth taxable year and of a five-year period 
beginning with the second and ending with the sixth taxable year.
    (6) For the purposes of section 270, a short taxable year required 
to effect a change in accounting period constitutes a taxable year. In 
determining the applicability of section 270 in the case of a short 
taxable year, items of income and deduction are not annualized.
    (b) Specially treated deductions. (1) For the purposes of section 
270 and paragraph (a) of this section, the specially treated deductions 
are:
    (i) Taxes,
    (ii) Interest,
    (iii) Casualty and abandonment losses connected with a trade or 
business deductible under section 165(c)(1) or the corresponding 
provisions of prior revenue laws,

[[Page 770]]

    (iv) Losses and expenses of the trade or business of farming which 
are directly attributable to drought,
    (v) The net operating loss deduction allowed by section 172, or the 
corresponding provisions of prior revenue laws, and
    (vi) Expenditures as to which a taxpayer is given the option, under 
law or regulations, either (a) to deduct as expenses when incurred, or 
(b) to defer or capitalize.
    (2) For the purpose of subparagraph (1)(iv) of this paragraph, an 
individual is engaged in the ``trade or business of farming'' if he 
cultivates, operates, or manages a farm for gain or profit, either as 
owner or tenant. An individual who receives a rental (either in cash or 
in kind) which is based upon farm production is engaged in the trade or 
business of farming. However, an individual who receives a fixed rental 
(without reference to production) is engaged in the trade or business of 
farming only if he participates to a material extent in the operation or 
management of the farm. An individual engaged in forestry or the growing 
of timber is not thereby engaged in the trade or business of farming. An 
individual cultivating or operating a farm for recreation or pleasure 
rather than a profit is not engaged in the trade or business of farming. 
The term farm is used in its ordinarily accepted sense and includes 
stock, dairy, poultry, fruit, crop, and truck farms, and also 
plantations, ranches, ranges, and orchards. An individual is engaged in 
the trade or business of farming if he is a member of a partnership 
engaged in the trade or business of farming.
    (3) In order for losses and expenses of the trade or business of 
farming to qualify as specially treated deductions under subparagraph 
(1)(iv) of this paragraph such losses and expenses must be directly 
attributable to drought conditions and not to other causes such as 
faulty management or unfavorable market conditions. In general, the 
following are the types of losses and expenses which, if otherwise 
deductible, may qualify as specially treated deductions under 
subparagraph (1)(iv) of this paragraph:
    (i) Losses for damages to or destruction of property as a result of 
drought conditions, if such property is used in the trade or business of 
farming or is purchased for resale in the trade or business of farming;
    (ii) Expenses directly related to raising crops or livestock which 
are destroyed or damaged by drought. Included in this category are, for 
example, payments for labor, fertilizer, and feed used in raising such 
crops or livestock. If such crops or livestock to which the expenditures 
relate are only partially destroyed or damaged by drought then only a 
proportionate part of the expenditures is regarded as specially treated 
deductions; and
    (iii) Expenses which would not have been incurred in the absence of 
drought conditions, such as expenses for procuring pasture or additional 
supplies of water or feed.
    (4) The expenditures referred to in subparagraph (1)(vi) of this 
paragraph include, but are not limited to, intangible drilling and 
development costs in the case of oil and gas wells as provided in 
section 263(c) and the regulations thereunder, and expenditures for the 
development of a mine or other natural deposit (other than an oil or gas 
well) as provided in section 616 and the regulations thereunder.
    (5) The provisions of section 270(b) do not operate to make an 
expenditure a deductible item if it is not otherwise deductible under 
the law applicable to the particular year in which it was incurred. 
Thus, for example, if it is necessary, pursuant to the provisions of 
section 270, to recompute the taxable or net income of an individual for 
the taxable years 1950 through 1954, the individual in making the 
recomputation may not deduct expenditures paid or incurred in the years 
1950 through 1953 which must be capitalized under the law applicable to 
those years, even though the expenditures are deductible under the Code.
    (c) Applicability to taxable years otherwise subject to the Internal 
Revenue Code of 1939. The net income of a taxable year otherwise subject 
to the Internal Revenue Code of 1939 shall be recomputed pursuant to 
section 270 if (i) such taxable year is included in a period of five 
consecutive taxable years which includes at least one taxable year 
beginning after December 31, 1953, and

[[Page 771]]

ending after August 16, 1954, and (ii) the deductions (other than the 
specially treated deductions specified in section 270(b)) for each 
taxable year in such five-year period exceed the $50,000 limitation 
specified in section 270. As described in paragraph (a)(5) of this 
section, a taxable year may be part of two or more periods of five 
consecutive taxable years, one meeting the requirements for 
recomputation pursuant to section 130 of the Internal Revenue Code of 
1939 and the other meeting the requirements for recomputation pursuant 
to section 270 of the Internal Revenue Code of 1954, then the 
recomputation for such taxable year shall be made pursuant to section 
270. For example, if a calendar year taxpayer sustains a loss from a 
trade or business for each of the years 1949 through 1954, the years 
1950, 1951, 1952, and 1953 may be a part of two such periods of five 
consecutive taxable years. If, however, a taxable year is part of a 
period of five consecutive taxable years which meets the requirements 
for recomputation pursuant to section 130 of the Internal Revenue Code 
of 1939, but is not part of a period which meets the requirements for 
recomputation, pursuant to section 270, then a recomputation of net 
income for such taxable year must be made pursuant to section 130.
    (d) Redetermination of tax. The tax imposed by Chapter 1 of the 
Code, or by the corresponding provisions of prior revenue laws, for each 
of the five consecutive taxable years specified in paragraph (a) of this 
section shall be redetermined upon the basis of the taxable income or 
net income of the individual, as the case may be, recomputed in the 
manner described in paragraph (a) of this section. If the assessment of 
a deficiency is prevented (except for the provisions of Part II (section 
1311 and following), Subchapter Q, Chapter 1 of the Code, relating to 
the effect of limitations and other provisions in income tax cases) by 
the operation of any provision of law (e.g., sections 6501 and 6502, or 
the corresponding provisions of prior revenue laws, relating to the 
period of limitations upon assessment and collection) except section 
7122, or the corresponding provisions of prior revenue laws, relating to 
compromises, or by any rule of law (e.g., res judicata), then the excess 
of the tax for such year as recomputed over the tax previously 
determined for such year shall be considered a deficiency for the 
purposes of section 270. The term tax previously determined shall have 
the same meaning as that assigned to such term by section 1314(a). See 
Sec. 1.1314 (a)-1.
    (e) Assessment of tax. Any amount determined as a deficiency in the 
manner described in paragraph (d) of this section in respect of any 
taxable year of the five consecutive taxable years specified in 
paragraph (a) of this section may be assessed and collected as if on the 
date of the expiration of the period of limitation for the assessment of 
a deficiency for the fifth taxable year of such five consecutive taxable 
years, one year remained before the expiration of the period of 
limitation upon assessment for the taxable year in respect of which the 
deficiency is determined. If the taxable year is one in respect of which 
an assessment could be made without regard to section 270, the amount of 
the actual deficiency as defined in section 6211(a) (whether it is 
greater than, equal to, or less than the deficiency determined under 
section 270(c)) shall be assessed and collected. However, if the 
assessment of a deficiency for such taxable year would be prevented by 
any provision of law (e.g., the period of limitation upon the assessment 
of tax) except section 7122, or the corresponding provision of prior 
revenue laws, relating to compromises, or by the operation of any rule 
of law (e.g., res judicata), then the excess of the tax recomputed as 
described in paragraph (d) of this section over the tax previously 
determined may be assessed and collected even though in fact there is no 
actual deficiency, as defined in section 6211(a), in respect of the 
given taxable year.
    (f) Effective date; cross reference. The provisions of section 270 
and this section apply to taxable years beginning before January 1, 
1970. Thus, for instance, if the taxpayer had a profit of $2,000 
attributable to a trade or business in 1965, section 270 and this 
section would not apply to the taxable years 1966 through 1970, even 
though he had losses of more than $50,000 in each of

[[Page 772]]

the 5 years ending with 1970. For provisions relating to activities not 
engaged in for profit applicable to taxable years beginning after 
December 31, 1969, see section 183 and the regulations thereunder.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7198, 37 FR 13685, July 13, 1972]



Sec. 1.271-1  Debts owed by political parties.

    (a) General rule. In the case of a taxpayer other than a bank (as 
defined in section 581 and the regulations thereunder), no deduction 
shall be allowed under section 166 (relating to bad debts) or section 
165(g) (relating to worthlessness of securities) by reason of the 
worthlessness of any debt, regardless of how it arose, owed by a 
political party. For example, it is immaterial that the debt may have 
arisen as a result of services rendered or goods sold or that the 
taxpayer included the amount of the debt in income. In the case of a 
bank, no deduction shall be allowed unless, under the facts and 
circumstances, it appears that the bad debt was incurred to or purchased 
by, or the worthless security was acquired by, the taxpayer in 
accordance with its usual commercial practices. Thus, if a bank makes a 
loan to a political party not in accordance with its usual commercial 
practices but solely because the president of the bank has been active 
in the party no bad debt deduction will be allowed with respect to the 
loan.
    (b) Definitions--(1) Political party. For purposes of this section 
and Sec. 1.276-1, the term political party means a political party (as 
commonly understood), a National, State, or local committee thereof, or 
any committee, association, or organization, whether incorporated or 
not, which accepts contributions (as defined in subparagraph (2) of this 
paragraph) or makes expenditures (as defined in subparagraph (3) of this 
paragraph) for the purpose of influencing or attempting to influence the 
election of presidential or vice-presidential electors, or the 
selection, nomination, or election of any individual to any Federal, 
State, or local elective public office, whether or not such individual 
or electors are selected, nominated, or elected. Accordingly, a 
political party includes a committee or other group which accepts 
contributions or makes expenditures for the purpose of promoting the 
nomination of an individual for an elective public office in a primary 
election, or in any convention, meeting, or caucus of a political party. 
It is immaterial whether the contributions or expenditures are accepted 
or made directly or indirectly. Thus, for example, a committee or other 
group, is considered to be a political party, if, although it does not 
expend any funds, it turns funds over to another organization, which 
does expend funds for the purpose of attempting to influence the 
nomination of an individual for an elective public office. An 
organization which engages in activities which are truly nonpartisan in 
nature will not be considered a political party merely because it 
conducts activities with respect to an election campaign if, under all 
the facts and circumstances, it is clear that its efforts are not 
directed to the election of the candidates of any particular party or 
parties or to the selection, nomination or election of any particular 
candidate. For example, a committee or group will not be treated as a 
political party if it is organized merely to inform the electorate as to 
the identity and experience of all candidates involved, to present on a 
nonpreferential basis the issues or views of the parties or candidates 
as described by the parties or candidates, or to provide a forum in 
which the candidates are freely invited on a nonpreferential basis to 
discuss or debate the issues.
    (2) Contributions. For purposes of this section and Sec. 1.276-1, 
the term contributions includes a gift, subscription, loan, advance, or 
deposit, of money or anything of value, and includes a contract, 
promise, or agreement to make a contribution, whether or not legally 
enforceable.
    (3) Expenditures. For purposes of this section and Sec. 1.276-1, 
the term expenditures includes a payment, distribution, loan, advance, 
deposit, or gift, of money or anything of value, and includes a 
contract, promise, or agreement to make an expenditure, whether or not 
legally enforceable.

[T.D. 6996, 34 FR 832, Jan. 18, 1969]

[[Page 773]]



Sec. 1.272-1  Expenditures relating to disposal of coal or domestic 
iron ore.

    (a) Introduction. Section 272 provides special treatment for certain 
expenditures paid or incurred by a taxpayer in connection with a 
contract (hereafter sometimes referred to as a ``coal royalty contract'' 
or ``iron ore royalty contract'') for the disposal of coal or iron ore 
the gain or loss from which is treated under section 631(c) as a section 
1231 gain or loss on the sale of coal or iron ore. See paragraph (e) of 
Sec. 1.631-3 for special rules relating to iron ore. The expenditures 
covered by section 272 are those which are attributable to the making 
and administering of such a contract or to the preservation of the 
economic interest retained under the contract. For examples of such 
expenditures, see paragraph (d) of this section. For a taxable year in 
which gross royalty income is realized under the contract of disposal, 
such expenditures shall not be allowed as a deduction. Instead, they are 
to be added to the adjusted depletion basis of the coal or iron ore 
disposed of in the taxable year in computing gain or loss under section 
631(c). However, where no gross royalty income is realized under the 
contract of disposal in a particular taxable year, such expenditure 
shall be treated without regard to section 272.
    (b) In general. (1) Where the disposal of coal or iron ore is 
covered by section 631(c), the provisions of section 272 and this 
section shall be applicable for a taxable year in which there is income 
under the contract of disposal. (For purposes of section 272 and this 
section, the term income means gross amounts received or accrued which 
are royalties or bonuses in connection with a contract to which section 
631(c) applies.) All expenditures paid or incurred by the taxpayer 
during the taxable year which are attributable to the making and 
administering of the contract disposing of the coal or iron ore and all 
expenditures paid or incurred during the taxable year in order to 
preserve the owner's economic interest retained under the contract shall 
be disallowed as deductions in computing taxable income for the taxable 
year. The sum of such expenditures and the adjusted depletion basis of 
the coal or iron ore disposed of in the taxable year shall be used in 
determining the amount of gain or loss with respect to the disposal. See 
Sec. 1.631-3. For special rule in case of loss, see paragraph (c) of 
this section. Section 272 and this section do not apply to capital 
expenditures, and such expenditures are not taken into account in 
computing gain or loss under section 631(c) except to the extent they 
are properly part of the depletable basis of the coal or iron ore.
    (2) The expenditures covered under section 272 and this section are 
disallowed as a deduction only with respect to a taxable year in which 
income is realized under the coal royalty contract (or iron ore royalty 
contract) to which such expenditures are attributable. Where no income 
is realized under the contract in a taxable year, these expenditures 
shall be deducted as expenses for the production of income, or as a 
business expense, or they may be treated under section 266 (relating to 
taxes and carrying charges) if applicable.
    (3) The provisions of section 272 and this section apply to a 
taxable year in which income from the disposal by the owner of coal or 
iron ore held by him for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) is 
subject to the provisions of section 631(c) even though the actual 
mining of coal or iron ore under the coal royalty contract (or iron ore 
royalty contract) does not take place during the taxable year. Where the 
right under the contract to mine coal or iron ore for which advance 
payment has been made expires, terminates, or is abandoned before the 
coal or iron ore is mined, and paragraph (c) of Sec. 1.631-3 requires 
the owner to recompute his tax with respect to such payment, the 
recomputation must be made without applying the provisions of section 
272 and this section.
    (c) Losses. If, in any taxable year, the expenditures referred to in 
section 272 and this section plus the adjusted depletion basis (as 
defined in paragraph (b)(2) of Sec. 1.631-3) of the coal or iron ore 
disposed of during the taxable year exceed the amount realized under the 
contract which is subject to section 631(c) during the taxable year, 
such excess shall be considered under section

[[Page 774]]

1231 as a loss from the sale of property used in the trade or business 
and, to the extent not availed of as a reduction of gain under that 
section, shall be a loss deductible under section 165(a) (relating to 
the deduction of losses generally).
    (d) Examples of expenditures. (1) The expenditures referred to in 
section 272 include, but are not limited to, the following items, if 
such items are attributable to the making or administering of the 
contract or preserving the economic interest therein: Ad valorem taxes 
imposed by State or local authorities, costs of fire protection, costs 
of insurance (other than liability insurance), costs incurred in 
administering the contract (including costs of bookkeeping and technical 
supervision), interest on loans, expenses of flood control, legal and 
technical expenses, and expenses of measuring and checking quantities of 
coal or iron ore disposed of under the contract. Whether the interest on 
loans is attributable to the making or administering of the contract or 
preserving the economic interest therein will depend upon the use to 
which the borrowed monies are put.
    (2) Any expenditure referred to in this section which is applicable 
to more than one coal royalty contract or iron ore royalty contract 
shall be reasonably apportioned to each of such contracts. Furthermore, 
if an expenditure applies only in part to the making or administering of 
the contract or the preservation of the economic interest, then only 
such part shall be treated under section 272. The apportionment of the 
expenditure shall be made on a reasonable basis. For example, where a 
taxpayer has other income (such as income from oil or gas royalties, 
rentals, right of way fees, interest, or dividends) as well as income 
under section 631(c), and where the salaries of some of its employees or 
other expenses relate to both classes of income, such expenses shall be 
allocated reasonably between the income subject to section 631(c) and 
the other income. Where a taxpayer has more than one coal royalty 
contract or iron ore royalty contract, expenditures under this section 
relating to a contract from which no income has been received in the 
taxable year may not be allocated to income from another contract from 
which income has been received in the taxable year.
    (3) The taxpayer may have expenses which are not attributable even 
partly to making and administering a coal royalty contract or iron ore 
royalty contract or to the preservation of the economic interest 
retained under the contract and, accordingly, are not included in the 
expenditures described in section 272. These include such items as ad 
valorem taxes imposed by State or local authorities on property not 
covered by the contract, salaries, wages, or other expenses entirely 
incident to the ownership and protection of such property and 
depreciation of improvements thereon, fire insurance on such property, 
charitable contributions, and similar expenses unrelated to the making 
or to the administering of coal royalty contracts or iron ore royalty 
contracts or preserving the taxpayer's economic interest retained 
therein.
    (e) Nonapplication of section. For purposes of section 543, the 
provisions of section 272 shall have no application. For example, the 
taxpayer may, for the purposes of section 543(a)(3)(C) or the 
corresponding provisions of prior income tax laws, include in the sum of 
the deductions which are allowable under section 162 an amount paid to 
an attorney as compensation for legal services rendered in connection 
with the making of a coal royalty contract or iron ore royalty contract 
(assuming the expenditure otherwise qualifies under section 162 as an 
ordinary and necessary expense incurred in the taxpayer's trade or 
business), even though such expenditure is disallowed as a deduction 
under section 272.

[T.D. 6841, 30 FR 9304, July 27, 1965, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]



Sec. 1.273-1  Life or terminable interests.

    Amounts paid as income to the holder of a life or a terminable 
interest acquired by gift, bequest, or inheritance shall not be subject 
to any deduction for shrinkage (whether called by depreciation or any 
other name) in the value of such interest due to the lapse of time. In 
other words, the holder of such an interest so acquired may not set up

[[Page 775]]

the value of the expected future payments as corpus or principal and 
claim deduction for shrinkage or exhaustion thereof due to the passage 
of time. For the treatment generally of distributions to beneficiaries 
of an estate or trust, see Subparts A, B, C, and D (section 641 and 
following), Subchapter J, Chapter 1 of the Code, and the regulations 
thereunder. For basis of property acquired from a decedent and by gifts 
and transfers in trust, see sections 1014 and 1015, and the regulations 
thereunder.



Sec. 1.274-1  Disallowance of certain entertainment, gift and travel 
expenses.

    Section 274 disallows in whole, or in part, certain expenditures for 
entertainment, gifts and travel which would otherwise be allowable under 
Chapter 1 of the Code. The requirements imposed by section 274 are in 
addition to the requirements for deductibility imposed by other 
provisions of the Code. If a deduction is claimed for an expenditure for 
entertainment, gifts, or travel, the taxpayer must first establish that 
it is otherwise allowable as a deduction under Chapter 1 of the Code 
before the provisions of section 274 become applicable. An expenditure 
for entertainment, to the extent it is lavish or extravagant, shall not 
be allowable as a deduction. The taxpayer should then substantiate such 
an expenditure in accordance with the rules under section 274(d). See 
Sec. 1.274-5. Section 274 is a disallowance provision exclusively, and 
does not make deductible any expense which is disallowed under any other 
provision of the Code. Similarly, section 274 does not affect the 
includability of an item in, or the excludability of an item from, the 
gross income of any taxpayer. For specific provisions with respect to 
the deductibility of expenditures: for an activity of a type generally 
considered to constitute entertainment, amusement, or recreation, and 
for a facility used in connection with such an activity, as well as 
certain travel expenses of a spouse, etc., see Sec. 1.274-2; for 
expenses for gifts, see Sec. 1.274-3; for expenses for foreign travel, 
see Sec. 1.274-4; for expenditures deductible without regard to 
business activity, see Sec. 1.274-6; and for treatment of personal 
portion of entertainment facility, see Sec. 1.274-7.

[T.D. 6659, 28 FR 6499, June 25, 1963, as amended by T.D. 8666, 61 FR 
27006, May 30, 1996]



Sec. 1.274-2  Disallowance of deductions for certain expenses for 
entertainment, amusement, recreation, or travel.

    (a) General rules--(1) Entertainment activity. Except as provided in 
this section, no deduction otherwise allowable under Chapter 1 of the 
Code shall be allowed for any expenditure with respect to entertainment 
unless the taxpayer establishes:
    (i) That the expenditure was directly related to the active conduct 
of the taxpayer's trade or business, or
    (ii) In the case of an expenditure directly preceding or following a 
substantial and bona fide business discussion (including business 
meetings at a convention or otherwise), that the expenditure was 
associated with the active conduct of the taxpayer's trade or business.

Such deduction shall not exceed the portion of the expenditure directly 
related to (or in the case of an expenditure described in subdivision 
(ii) of this subparagraph, the portion of the expenditure associated 
with) the active conduct of the taxpayer's trade or business.
    (2) Entertainment facilities--(i) Expenditures paid or incurred 
after December 31, 1978, and not with respect to a club. Except as 
provided in this section with respect to a club, no deduction otherwise 
allowable under chapter 1 of the Code shall be allowed for any 
expenditure paid or incurred after December 31, 1978, with respect to a 
facility used in connection with entertainment.
    (ii) Expenditures paid or incurred before January 1, 1979, with 
respect to entertainment facilities, or paid or incurred before January 
1, 1994, with respect to clubs--(a) Requirements for deduction. Except 
as provided in this section, no deduction otherwise allowable under 
chapter 1 of the Internal Revenue Code shall be allowed for any 
expenditure paid or incurred before January 1, 1979, with respect to a 
facility used in connection with entertainment, or for any expenditure 
paid or incurred before

[[Page 776]]

January 1, 1994, with respect to a club used in connection with 
entertainment, unless the taxpayer establishes--
    (1) That the facility or club was used primarily for the furtherance 
of the taxpayer's trade or business; and
    (2) That the expenditure was directly related to the active conduct 
of that trade or business.
    (b) Amount of deduction. The deduction allowable under paragraph 
(a)(2)(ii)(a) of this section shall not exceed the portion of the 
expenditure directly related to the active conduct of the taxpayer's 
trade or business.
    (iii) Expenditures paid or incurred after December 31, 1993, with 
respect to a club--(a) In general. No deduction otherwise allowable 
under chapter 1 of the Internal Revenue Code shall be allowed for 
amounts paid or incurred after December 31, 1993, for membership in any 
club organized for business, pleasure, recreation, or other social 
purpose. The purposes and activities of a club, and not its name, 
determine whether it is organized for business, pleasure, recreation, or 
other social purpose. Clubs organized for business, pleasure, 
recreation, or other social purpose include any membership organization 
if a principal purpose of the organization is to conduct entertainment 
activities for members of the organization or their guests or to provide 
members or their guests with access to entertainment facilities within 
the meaning of paragraph (e)(2) of this section. Clubs organized for 
business, pleasure, recreation, or other social purpose include, but are 
not limited to, country clubs, golf and athletic clubs, airline clubs, 
hotel clubs, and clubs operated to provide meals under circumstances 
generally considered to be conducive to business discussion.
    (b) Exceptions. Unless a principal purpose of the organization is to 
conduct entertainment activities for members or their guests or to 
provide members or their guests with access to entertainment facilities, 
business leagues, trade associations, chambers of commerce, boards of 
trade, real estate boards, professional organizations (such as bar 
associations and medical associations), and civic or public service 
organizations will not be treated as clubs organized for business, 
pleasure, recreation, or other social purpose.
    (3) Cross references. For definition of the term entertainment, see 
paragraph (b)(1) of this section. For the disallowance of deductions for 
the cost of admission to a dinner or program any part of the proceeds of 
which inures to the use of a political party or political candidate, and 
cost of admission to an inaugural event or similar event identified with 
any political party or political candidate, see Sec. 1.276-1. For rules 
and definitions with respect to:
    (i) ``Directly related entertainment'', see paragraph (c) of this 
section,
    (ii) ``Associated entertainment'', see paragraph (d) of this 
section,
    (iii) ``Expenditures paid or incurred before January 1, 1979, with 
respect to entertainment facilities or before January 1, 1994, with 
respect to clubs'', see paragraph (e) of this section, and
    (iv) ``Specific exceptions'' to the disallowance rules of this 
section, see paragraph (f) of this section.
    (b) Definitions--(1) Entertainment defined--(i) In general. For 
purposes of this section, the term entertainment means any activity 
which is of a type generally considered to constitute entertainment, 
amusement, or recreation, such as entertaining at night clubs, cocktail 
lounges, theaters, country clubs, golf and athletic clubs, sporting 
events, and on hunting, fishing, vacation and similar trips, including 
such activity relating solely to the taxpayer or the taxpayer's family. 
The term entertainment may include an activity, the cost of which is 
claimed as a business expense by the taxpayer, which satisfies the 
personal, living, or family needs of any individual, such as providing 
food and beverages, a hotel suite, or an automobile to a business 
customer or his family. The term entertainment does not include 
activities which, although satisfying personal, living, or family needs 
of an individual, are clearly not regarded as constituting 
entertainment, such as (a) supper money provided by an employer to his 
employee working overtime, (b) a hotel room maintained by an employer 
for lodging of his employees while in business travel status, or (c) an 
automobile used in the active conduct of trade or business even though 
used for routine personal purposes such as commuting to and from work. 
On the other

[[Page 777]]

hand, the providing of a hotel room or an automobile by an employer to 
his employee who is on vacation would constitute entertainment of the 
employee.
    (ii) Objective test. An objective test shall be used to determine 
whether an activity is of a type generally considered to constitute 
entertainment. Thus, if an activity is generally considered to be 
entertainment, it will constitute entertainment for purposes of this 
section and section 274(a) regardless of whether the expenditure can 
also be described otherwise, and even though the expenditure relates to 
the taxpayer alone. This objective test precludes arguments such as that 
entertainment means only entertainment of others or that an expenditure 
for entertainment should be characterized as an expenditure for 
advertising or public relations. However, in applying this test the 
taxpayer's trade or business shall be considered. Thus, although 
attending a theatrical performance would generally be considered 
entertainment, it would not be so considered in the case of a 
professional theater critic, attending in his professional capacity. 
Similarly, if a manufacturer of dresses conducts a fashion show to 
introduce his products to a group of store buyers, the show would not be 
generally considered to constitute entertainment. However, if an 
appliance distributor conducts a fashion show for the wives of his 
retailers, the fashion show would be generally considered to constitute 
entertainment.
    (iii) Special definitional rules--(a) In general. Except as 
otherwise provided in (b) or (c) of this subdivision, any expenditure 
which might generally be considered either for a gift or entertainment, 
or considered either for travel or entertainment, shall be considered an 
expenditure for entertainment rather than for a gift or travel.
    (b) Expenditures deemed gifts. An expenditure described in (a) of 
this subdivision shall be deemed for a gift to which this section does 
not apply if it is:
    (1) An expenditure for packaged food or beverages transferred 
directly or indirectly to another person intended for consumption at a 
later time.
    (2) An expenditure for tickets of admission to a place of 
entertainment transferred to another person if the taxpayer does not 
accompany the recipient to the entertainment unless the taxpayer treats 
the expenditure as entertainment. The taxpayer may change his treatment 
of such an expenditure as either a gift or entertainment at any time 
within the period prescribed for assessment of tax as provided in 
section 6501 of the Code and the regulations thereunder.
    (3) Such other specific classes of expenditure generally considered 
to be for a gift as the Commissioner, in his discretion, may prescribe.
    (c) Expenditures deemed travel. An expenditure described in (a) of 
this subdivision shall be deemed for travel to which this section does 
not apply if it is:
    (1) With respect to a transportation type facility (such as an 
automobile or an airplane), even though used on other occasions in 
connection with an activity of a type generally considered to constitute 
entertainment, to the extent the facility is used in pursuit of a trade 
or business for purposes of transportation not in connection with 
entertainment. See also paragraph (e)(3)(iii)(b) of this section for 
provisions covering nonentertainment expenditures with respect to such 
facilities.
    (2) Such other specific classes of expenditure generally considered 
to be for travel as the Commissioner, in his discretion, may prescribe.
    (2) Other definitions--(i) Expenditure. The term expenditure as used 
in this section shall include expenses paid or incurred for goods, 
services, facilities, and items (including items such as losses and 
depreciation).
    (ii) Expenses for production of income. For purposes of this 
section, any reference to trade or business shall include any activity 
described in section 212.
    (iii) Business associate. The term business associate as used in 
this section means a person with whom the taxpayer could reasonably 
expect to engage or deal in the active conduct of the taxpayer's trade 
or business such

[[Page 778]]

as the taxpayer's customer, client, supplier, employee, agent, partner, 
or professional adviser, whether established or prospective.
    (c) Directly related entertainment--(1) In general. Except as 
otherwise provided in paragraph (d) of this section (relating to 
associated entertainment) or under paragraph (f) of this section 
(relating to business meals and other specific exceptions), no deduction 
shall be allowed for any expenditure for entertainment unless the 
taxpayer establishes that the expenditure was directly related to the 
active conduct of his trade or business within the meaning of this 
paragraph.
    (2) Directly related entertainment defined. Any expenditure for 
entertainment, if it is otherwise allowable as a deduction under chapter 
1 of the Code, shall be considered directly related to the active 
conduct of the taxpayer's trade or business if it meets the requirements 
of any one of subparagraphs (3), (4), (5), or (6) of this paragraph.
    (3) Directly related in general. Except as provided in subparagraph 
(7) of this paragraph, an expenditure for entertainment shall be 
considered directly related to the active conduct of the taxpayer's 
trade or business if it is established that it meets all of the 
requirements of subdivisions (i), (ii), (iii) and (iv) of this 
subparagraph.
    (i) At the time the taxpayer made the entertainment expenditure (or 
committed himself to make the expenditure), the taxpayer had more than a 
general expectation of deriving some income or other specific trade or 
business benefit (other than the goodwill of the person or persons 
entertained) at some indefinite future time from the making of the 
expenditure. A taxpayer, however, shall not be required to show that 
income or other business benefit actually resulted from each and every 
expenditure for which a deduction is claimed.
    (ii) During the entertainment period to which the expenditure 
related, the taxpayer actively engaged in a business meeting, 
negotiation, discussion, or other bona fide business transaction, other 
than entertainment, for the purpose of obtaining such income or other 
specific trade or business benefit (or, at the time the taxpayer made 
the expenditure or committed himself to the expenditure, it was 
reasonable for the taxpayer to expect that he would have done so, 
although such was not the case solely for reasons beyond the taxpayer's 
control).
    (iii) In light of all the facts and circumstances of the case, the 
principal character or aspect of the combined business and entertainment 
to which the expenditure related was the active conduct of the 
taxpayer's trade or business (or at the time the taxpayer made the 
expenditure or committed himself to the expenditure, it was reasonable 
for the taxpayer to expect that the active conduct of trade or business 
would have been the principal character or aspect of the entertainment, 
although such was not the case solely for reasons beyond the taxpayer's 
control). It is not necessary that more time be devoted to business than 
to entertainment to meet this requirement. The active conduct of trade 
or business is considered not to be the principal character or aspect of 
combined business and entertainment activity on hunting or fishing trips 
or on yachts and other pleasure boats unless the taxpayer clearly 
establishes to the contrary.
    (iv) The expenditure was allocable to the taxpayer and a person or 
persons with whom the taxpayer engaged in the active conduct of trade or 
business during the entertainment or with whom the taxpayer establishes 
he would have engaged in such active conduct of trade or business if it 
were not for circumstances beyond the taxpayer's control. For 
expenditures closely connected with directly related entertainment, see 
paragraph (d)(4) of this section.
    (4) Expenditures in clear business setting. An expenditure for 
entertainment shall be considered directly related to the active conduct 
of the taxpayer's trade or business if it is established that the 
expenditure was for entertainment occurring in a clear business setting 
directly in furtherance of the taxpayer's trade or business. Generally, 
entertainment shall not be considered to have occurred in a clear 
business setting unless the taxpayer clearly establishes that any 
recipient of the entertainment would have reasonably

[[Page 779]]

known that the taxpayer had no significant motive, in incurring the 
expenditure, other than directly furthering his trade or business. 
Objective rather than subjective standards will be determinative. Thus, 
entertainment which occurred under any circumstances described in 
subparagraph (7)(ii) of this paragraph ordinarily will not be considered 
as occurring in a clear business setting. Such entertainment will 
generally be considered to be socially rather than commercially 
motivated. Expenditures made for the furtherance of a taxpayer's trade 
or business in providing a ``hospitality room'' at a convention 
(described in paragraph (d)(3)(i)(b) of this section) at which goodwill 
is created through display or discussion of the taxpayer's products, 
will, however, be treated as directly related. In addition, 
entertainment of a clear business nature which occurred under 
circumstances where there was no meaningful personal or social 
relationship between the taxpayer and the recipients of the 
entertainment may be considered to have occurred in a clear business 
setting. For example, entertainment of business representatives and 
civic leaders at the opening of a new hotel or theatrical production, 
where the clear purpose of the taxpayer is to obtain business publicity 
rather than to create or maintain the goodwill of the recipients of the 
entertainment, would generally be considered to be in a clear business 
setting. Also, entertainment which has the principal effect of a price 
rebate in connection with the sale of the taxpayer's products generally 
will be considered to have occurred in a clear business setting. Such 
would be the case, for example, if a taxpayer owning a hotel were to 
provide occasional free dinners at the hotel for a customer who 
patronized the hotel.
    (5) Expenditures for services performed. An expenditure shall be 
considered directly related to the active conduct of the taxpayer's 
trade or business if it is established that the expenditure was made 
directly or indirectly by the taxpayer for the benefit of an individual 
(other than an employee), and if such expenditure was in the nature of 
compensation for services rendered or was paid as a prize or award which 
is required to be included in gross income under section 74 and the 
regulations thereunder. For example, if a manufacturer of products 
provides a vacation trip for retailers of his products who exceed sales 
quotas as a prize or award which is includible in gross income, the 
expenditure will be considered directly related to the active conduct of 
the taxpayer's trade or business.
    (6) Club dues, etc., allocable to business meals. An expenditure 
shall be considered directly related to the active conduct of the 
taxpayer's trade or business if it is established that the expenditure 
was with respect to a facility (as described in paragraph (e) of this 
section) used by the taxpayer for the furnishing of food or beverages 
under circumstances described in paragraph (f)(2)(i) of this section 
(relating to business meals and similar expenditures), to the extent 
allocable to the furnishing of such food or beverages. This paragraph 
(c)(6) applies to club dues paid or incurred before January 1, 1987.
    (7) Expenditures generally considered not directly related. 
Expenditures for entertainment, even if connected with the taxpayer's 
trade or business, will generally be considered not directly related to 
the active conduct of the taxpayer's trade or business, if the 
entertainment occurred under circumstances where there was little or no 
possibility of engaging in the active conduct of trade or business. The 
following circumstances will generally be considered circumstances where 
there was little or no possibility of engaging in the active conduct of 
a trade or business:
    (i) The taxpayer was not present;
    (ii) The distractions were substantial, such as:
    (a) A meeting or discussion at night clubs, theaters, and sporting 
events, or during essentially social gatherings such as cocktail 
parties, or
    (b) A meeting or discussion, if the taxpayer meets with a group 
which includes persons other than business associates, at places such as 
cocktail lounges, country clubs, golf and athletic clubs, or at vacation 
resorts.

An expenditure for entertainment in any such case is considered not to 
be directly related to the active conduct

[[Page 780]]

of the taxpayer's trade or business unless the taxpayer clearly 
establishes to the contrary.
    (d) Associated entertainment--(1) In general. Except as provided in 
paragraph (f) of this section (relating to business meals and other 
specific exceptions) and subparagraph (4) of this paragraph (relating to 
expenditures closely connected with directly related entertainment), any 
expenditure for entertainment which is not directly related to the 
active conduct of the taxpayer's trade or business will not be allowable 
as a deduction unless:
    (i) It was associated with the active conduct of trade or business 
as defined in subparagraph (2) of this paragraph, and
    (ii) The entertainment directly preceded or followed a substantial 
and bona fide business discussion as defined in subparagraph (3) of this 
paragraph.
    (2) Associated entertainment defined. Generally, any expenditure for 
entertainment, if it is otherwise allowable under Chapter 1 of the Code, 
shall be considered associated with the active conduct of the taxpayer's 
trade or business if the taxpayer establishes that he had a clear 
business purpose in making the expenditure, such as to obtain new 
business or to encourage the continuation of an existing business 
relationship. However, any portion of an expenditure allocable to a 
person who was not closely connected with a person who engaged in the 
substantial and bona fide business discussion (as defined in 
subparagraph (3)(i) of this paragraph) shall not be considered 
associated with the active conduct of the taxpayer's trade or business. 
The portion of an expenditure allocable to the spouse of a person who 
engaged in the discussion will, if it is otherwise allowable under 
chapter 1 of the Code, be considered associated with the active conduct 
of the taxpayer's trade or business.
    (3) Directly preceding or following a substantial and bona fide 
business discussion defined--(i) Substantial and bona fide business 
discussion--(a) In general. Whether any meeting, negotiation or 
discussion constitutes a ``substantial and bona fide business 
discussion'' within the meaning of this section depends upon the facts 
and circumstances of each case. It must be established, however, that 
the taxpayer actively engaged in a business meeting, negotiation, 
discussion, or other bona fide business transaction, other than 
entertainment, for the purpose of obtaining income or other specific 
trade or business benefit. In addition, it must be established that such 
a business meeting, negotiation, discussion, or transaction was 
substantial in relation to the entertainment. This requirement will be 
satisfied if the principal character or aspect of the combined 
entertainment and business activity was the active conduct of business. 
However, it is not necessary that more time be devoted to business than 
to entertainment to meet this requirement.
    (b) Meetings at conventions, etc. Any meeting officially scheduled 
in connection with a program at a convention or similar general 
assembly, or at a bona fide trade or business meeting sponsored and 
conducted by business or professional organizations, shall be considered 
to constitute a substantial and bona fide business discussion within the 
meaning of this section provided:
    (1) Expenses necessary to taxpayer's attendance. The expenses 
necessary to the attendance of the taxpayer at the convention, general 
assembly, or trade or business meeting, were ordinary and necessary 
within the meaning of section 162 or 212;
    (2) Convention program. The organization which sponsored the 
convention, or trade or business meeting had scheduled a program of 
business activities (including committee meetings or presentation of 
lectures, panel discussions, display of products, or other similar 
activities), and that such program was the principal activity of the 
convention, general assembly, or trade or business meeting.
    (ii) Directly preceding or following. Entertainment which occurs on 
the same day as a substantial and bona fide business discussion (as 
defined in subdivision (i) of this subparagraph) will be considered to 
directly precede or follow such discussion. If the entertainment and the 
business discussion do not occur on the same day, the facts and 
circumstances of each case are to be considered, including the place, 
date

[[Page 781]]

and duration of the business discussion, whether the taxpayer or his 
business associates are from out of town, and, if so, the date of 
arrival and departure, and the reasons the entertainment did not take 
place on the day of the business discussion. For example, if a group of 
business associates comes from out of town to the taxpayer's place of 
business to hold a substantial business discussion, the entertainment of 
such business guests and their wives on the evening prior to, or on the 
evening of the day following, the business discussion would generally be 
regarded as directly preceding or following such discussion.
    (4) Expenses closely connected with directly related entertainment. 
If any portion of an expenditure meets the requirements of paragraph 
(c)(3) of this section (relating to directly related entertainment in 
general), the remaining portion of the expenditure, if it is otherwise 
allowable under Chapter 1 of the Code, shall be considered associated 
with the active conduct of the taxpayer's trade or business to the 
extent allocable to a person or persons closely connected with a person 
referred to in paragraph (c)(3)(iv) of this section. The spouse of a 
person referred to in paragraph(c)(3)(iv) of this section will be 
considered closely connected to such a person for purposes of this 
subparagraph. Thus, if a taxpayer and his wife entertain a business 
customer and the customer's wife under circumstances where the 
entertainment of the customer is considered directly related to the 
active conduct of the taxpayer's trade or business (within the meaning 
of paragraph (c)(3) of this section) the portion of the expenditure 
allocable to both wives will be considered associated with the active 
conduct of the taxpayer's trade or business under this subparagraph.
    (e) Expenditures paid or incurred before January 1, 1979, with 
respect to entertainment facilities or before January 1, 1994, with 
respect to clubs--(1) In general. Any expenditure paid or incurred 
before January 1, 1979, with respect to a facility, or paid or incurred 
before January 1, 1994, with respect to a club, used in connection with 
entertainment shall not be allowed as a deduction except to the extent 
it meets the requirements of paragraph (a)(2)(ii) of this section.
    (2) Facilities used in connection with entertainment--(i) In 
general. Any item of personal or real property owned, rented, or used by 
a taxpayer shall (unless otherwise provided under the rules of 
subdivision (ii) of this subparagraph) be considered to constitute a 
facility used in connection with entertainment if it is used during the 
taxable year for, or in connection with, entertainment (as defined in 
paragraph (b)(1) of this section). Examples of facilities which might be 
used for, or in connection with, entertainment include yachts, hunting 
lodges, fishing camps, swimming pools, tennis courts, bowling alleys, 
automobiles, airplanes, apartments, hotel suites, and homes in vacation 
resorts.
    (ii) Facilities used incidentally for entertainment. A facility used 
only incidentally during a taxable year in connection with 
entertainment, if such use is insubstantial, will not be considered a 
``facility used in connection with entertainment'' for purposes of this 
section or for purposes of the recordkeeping requirements of section 
274(d). See Sec. 1.274-5(c)(6)(iii).
    (3) Expenditures with respect to a facility used in connection with 
entertainment--(i) In general. The phrase expenditures with respect to a 
facility used in connection with entertainment includes depreciation and 
operating costs, such as rent and utility charges (for example, water or 
electricity), expenses for the maintenance, preservation or protection 
of a facility (for example, repairs, painting, insurance charges), and 
salaries or expenses for subsistence paid to caretakers or watchmen. In 
addition, the phrase includes losses realized on the sale or other 
disposition of a facility.
    (ii) Club dues--(a) Club dues paid or incurred before January 1, 
1994. Dues or fees paid before January 1, 1994, to any social, athletic, 
or sporting club or organization are considered expenditures with 
respect to a facility used in connection with entertainment. The 
purposes and activities of a club or organization, and not its name, 
determine its character. Generally, the phrase social, athletic, or 
sporting club or organization has the same meaning for purposes of

[[Page 782]]

this section as that phrase had in section 4241 and the regulations 
thereunder, relating to the excise tax on club dues, prior to the repeal 
of section 4241 by section 301 of Public Law 89-44. However, for 
purposes of this section only, clubs operated solely to provide lunches 
under circumstances of a type generally considered to be conducive to 
business discussion, within the meaning of paragraph (f)(2)(i) of this 
section, will not be considered social clubs.
    (b) Club dues paid or incurred after December 31, 1993. See 
paragraph (a)(2)(iii) of this section with reference to the disallowance 
of deductions for club dues paid or incurred after December 31, 1993.
    (iii) Expenditures not with respect to a facility. The following 
expenditures shall not be considered to constitute expenditures with 
respect to a facility used in connection with entertainment:
    (a) Out of pocket expenditures. Expenses (exclusive of operating 
costs and other expenses referred to in subdivision (i) of this 
subparagraph) incurred at the time of an entertainment activity, even 
though in connection with the use of facility for entertainment 
purposes, such as expenses for food and beverages, or expenses for 
catering, or expenses for gasoline and fishing bait consumed on a 
fishing trip;
    (b) Non-entertainment expenditures. Expenses or items attributable 
to the use of a facility for other than entertainment purposes such as 
expenses for an automobile when not used for entertainment; and
    (c) Expenditures otherwise deductible. Expenses allowable as a 
deduction without regard to their connection with a taxpayer's trade or 
business such as taxes, interest, and casualty losses. The provisions of 
this subdivision shall be applied in the case of a taxpayer which is not 
an individual as if it were an individual. See also Sec. 1.274-6.
    (iv) Cross reference. For other rules with respect to treatment of 
certain expenditures for entertainment-type facilities, see Sec. 1.274-
7.
    (4) Determination of primary use--(i) In general. A facility used in 
connection with entertainment shall be considered as used primarily for 
the furtherance of the taxpayer's trade or business only if it is 
established that the primary use of the facility during the taxable year 
was for purposes considered ordinary and necessary within the meaning of 
sections 162 and 212 and the regulations thereunder. All of the facts 
and circumstances of each case shall be considered in determining the 
primary use of a facility. Generally, it is the actual use of the 
facility which establishes the deductibility of expenditures with 
respect to the facility; not its availability for use and not the 
taxpayer's principal purpose in acquiring the facility. Objective rather 
than subjective standards will be determinative. If membership entitles 
the member's entire family to use of a facility, such as a country club, 
their use will be considered in determining whether business use of the 
facility exceeds personal use. The factors to be considered include the 
nature of each use, the frequency and duration of use for business 
purposes as compared with other purposes, and the amount of expenditures 
incurred during use for business compared with amount of expenditures 
incurred during use for other purposes. No single standard of 
comparison, or quantitative measurement, as to the significance of any 
such factor, however, is necessarily appropriate for all classes or 
types of facilities. For example, an appropriate standard for 
determining the primary use of a country club during a taxable year will 
not necessarily be appropriate for determining the primary use of an 
airplane. However, a taxpayer shall be deemed to have established that a 
facility was used primarily for the furtherance of his trade or business 
if he establishes such primary use in accordance with subdivision (ii) 
or (iii) of this subparagraph. Subdivisions (ii) and (iii) of this 
subparagraph shall not preclude a taxpayer from otherwise establishing 
the primary use of a facility under the general provisions of this 
subdivision.
    (ii) Certain transportation facilities. A taxpayer shall be deemed 
to have established that a facility of a type described in this 
subdivision was used primarily for the furtherance of his trade or 
business if:
    (a) Automobiles. In the case of an automobile, the taxpayer 
establishes that more than 50 percent of mileage

[[Page 783]]

driven during the taxable year was in connection with travel considered 
to be ordinary and necessary within the meaning of section 162 or 212 
and the regulations thereunder.
    (b) Airplanes. In the case of an airplane, the taxpayer establishes 
that more than 50 percent of hours flown during the taxable year was in 
connection with travel considered to be ordinary and necessary within 
the meaning of section 162 or 212 and the regulations thereunder.
    (iii) Entertainment facilities in general. A taxpayer shall be 
deemed to have established that:
    (a) A facility used in connection with entertainment, such as a 
yacht or other pleasure boat, hunting lodge, fishing camp, summer home 
or vacation cottage, hotel suite, country club, golf club or similar 
social, athletic, or sporting club or organization, bowling alley, 
tennis court, or swimming pool, or,
    (b) A facility for employees not falling within the scope of section 
274(e) (2) or (5) was used primarily for the furtherance of his trade or 
business if he establishes that more than 50 percent of the total 
calendar days of use of the facility by, or under authority of, the 
taxpayer during the taxable year were days of business use. Any use of a 
facility (of a type described in this subdivision) during one calendar 
day shall be considered to constitute a ``day of business use'' if the 
primary use of the facility on such day was ordinary and necessary 
within the meaning of section 162 or 212 and the regulations thereunder. 
For the purposes of this subdivision, a facility shall be deemed to have 
been primarily used for such pruposes on any one calendar day if the 
facility was used for the conduct of a substantial and bona fide 
business discussion (as defined in paragraph (d)(3)(i) of this section) 
notwithstanding that the facility may also have been used on the same 
day for personal or family use by the taxpayer or any member of the 
taxpayer's family not involving entertainment of others by, or under the 
authority of, the taxpayer.
    (f) Specific exceptions to application of this section--(1) In 
general. The provisions of paragraphs (a) through (e) of this section 
(imposing limitations on deductions for entertainment expenses) are not 
applicable in the case of expenditures set forth in subparagraph (2) of 
this paragraph. Such expenditures are deductible to the extent allowable 
under chapter 1 of the Code. This paragraph shall not be construed to 
affect the allowability or nonallowability of a deduction under section 
162 or 212 and the regulations thereunder. The fact that an expenditure 
is not covered by a specific exception provided for in this paragraph 
shall not be determinative of the allowability or nonallowability of the 
expenditure under paragraphs (a) through (e) of this section. 
Expenditures described in subparagraph (2) of this paragraph are subject 
to the substantiation requirements of section 274(d) to the extent 
provided in Sec. 1.274-5.
    (2) Exceptions. The expenditures referred to in subparagraph (1) of 
this paragraph are set forth in subdivisions (i) through (ix) of this 
subparagraph.
    (i) Business meals and similar expenditures paid or incurred before 
January 1, 1987--(a) In general. Any expenditure for food or beverages 
furnished to an individual under circumstances of a type generally 
considered conducive to business discussion (taking into account the 
surroundings in which furnished, the taxpayer's trade, business, or 
income-producing activity, and the relationship to such trade, business 
or activity of the persons to whom the food or beverages are furnished) 
is not subject to the limitations on allowability of deductions provided 
for in paragraphs (a) through (e) of this section. There is no 
requirement that business actually be discussed for this exception to 
apply.
    (b) Surroundings. The surroundings in which the food or beverages 
are furnished must be such as would provide an atmosphere where there 
are no substantial distractions to discussion. This exception applies 
primarily to expenditures for meals and beverages served during the 
course of a breakfast, lunch or dinner meeting of the taxpayer and his 
business associates at a restaurant, hotel dining room, eating club or 
similar place not involving distracting influences such as a floor

[[Page 784]]

show. This exception also applies to expenditures for beverages served 
apart from meals if the expenditure is incurred in surroundings 
similarly conducive to business discussion, such as an expenditure for 
beverages served during the meeting of the taxpayer and his business 
associates at a cocktail lounge or hotel bar not involving distracting 
influences such as a floor show. This exception may also apply to 
expenditures for meals or beverages served in the taxpayer's residence 
on a clear showing that the expenditure was commercially rather than 
socially motivated. However, this exception, generally, is not 
applicable to any expenditure for meals or beverages furnished in 
circumstances where there are major distractions not conducive to 
business discussion, such as at night clubs, sporting events, large 
cocktail parties, sizeable social gatherings, or other major distracting 
influences.
    (c) Taxpayer's trade or business and relationship of persons 
entertained. The taxpayer's trade, business, or income-producing 
activity and the relationship of the persons to whom the food or 
beverages are served to such trade, business or activity must be such as 
will reasonably indicate that the food or beverages were furnished for 
the primary purpose of furthering the taxpayer's trade or business and 
did not primarily serve a social or personal purpose. Such a business 
purpose would be indicated, for example, if a salesman employed by a 
manufacturing supply company meets for lunch during a normal business 
day with a purchasing agent for a manufacturer which is a prospective 
customer. Such a purpose would also be indicated if a life insurance 
agent meets for lunch during a normal business day with a client.
    (d) Business programs. Expenditures for business luncheons or 
dinners which are part of a business program, or banquets officially 
sponsored by business or professional associations, will be regarded as 
expenditures to which the exception of this subdivision (i) applies. In 
the case of such a business luncheon or dinner it is not always 
necessary that the taxpayer attend the luncheon or dinner himself. For 
example, if a dental equipment supplier purchased a table at a dental 
association banquet for dentists who are actual or prospective customers 
for his equipment, the cost of the table would not be disallowed under 
this section. See also paragraph (c)(4) of this section relating to 
expenditures made in a clear business setting.
    (ii) Food and beverages for employees. Any expenditure by a taxpayer 
for food and beverages (or for use of a facility in connection 
therewith) furnished on the taxpayer's business premises primarily for 
his employees is not subject to the limitations on allowability of 
deductions provided for in paragraphs (a) through (e) of this section. 
This exception applies not only to expenditures for food or beverages 
furnished in a typical company cafeteria or an executive dining room, 
but also to expenditures with respect to the operation of such 
facilities. This exception applies even though guests are occasionally 
served in the cafeteria or dining room.
    (iii) Certain entertainment and travel expenses treated as 
compensation--(A) In general. Any expenditure by a taxpayer for 
entertainment (or for use of a facility in connection therewith) or for 
travel described in section 274(m)(3), if an employee is the recipient 
of the entertainment or travel, is not subject to the limitations on 
allowability of deductions provided for in paragraphs (a) through (e) of 
this section to the extent that the expenditure is treated by the 
taxpayer--
    (1) On the taxpayer's income tax return as originally filed, as 
compensation paid to the employee; and
    (2) As wages to the employee for purposes of withholding under 
chapter 24 (relating to collection of income tax at source on wages).
    (B) Expenses includible in income of persons who are not employees. 
Any expenditure by a taxpayer for entertainment (or for use of a 
facility in connection therewith), or for travel described in section 
274(m)(3), is not subject to the limitations on allowability of 
deductions provided for in paragraphs (a) through (e) of this section to 
the extent the expenditure is includible in gross income as compensation 
for services rendered, or as a prize or award under section 74, by a 
recipient of the expenditure who is not an employee of the taxpayer. The 
preceding sentence

[[Page 785]]

shall not apply to any amount paid or incurred by the taxpayer if such 
amount is required to be included (or would be so required except that 
the amount is less that $600) in any information return filed by such 
taxpayer under part III of subchapter A of chapter 61 and is not so 
included. See section 274(e)(9).
    (C) Example. The following example illustrates the provisions this 
paragraph (f):

    Example. If an employer rewards the employee (and the employee's 
spouse) with an expense paid vacation trip, the expense is deductible by 
the employer (if otherwise allowable under section 162 and the 
regulations thereunder) to the extent the employer treats the expenses 
as compensation and as wages. On the other hand, if a taxpayer owns a 
yacht which the taxpayer uses for the entertainment of business 
customers, the portion of salary paid to employee members of the crew 
which is allocable to use of the yacht for entertainment purposes (even 
though treated on the taxpayer's tax return as compensation and treated 
as wages for withholding tax purposes) would not come within this 
exception since the members of the crew were not recipients of the 
entertainment. If an expenditure of a type described in this subdivision 
properly constitutes a dividend paid to a shareholder or if it 
constitutes unreasonable compensation paid to an employee, nothing in 
this exception prevents disallowance of the expenditure to the taxpayer 
under other provisions of the Internal Revenue Code.

    (iv) Reimbursed entertainment expenses--(a) Introductory. In the 
case of any expenditure for entertainment paid or incurred by one person 
in connection with the performance by him of services for another person 
(whether or not such other person is an employer) under a reimbursement 
or other expense allowance arrangement, the limitations on allowability 
of deductions provided for in paragraphs (a) through (e) of this section 
shall be applied only once, either (1) to the person who makes the 
expenditure or (2) to the person who actually bears the expense, but not 
to both. For purposes of this subdivision (iv), the term reimbursement 
or other expense allowance arrangement has the same meaning as it has in 
section 62(2)(A), but without regard to whether the taxpayer is the 
employee of a person for whom services are performed. If an expenditure 
of a type described in this subdivision properly constitutes a dividend 
paid to a shareholder, unreasonable compensation paid to an employee, or 
a personal, living or family expense, nothing in this exception prevents 
disallowance of the expenditure to the taxpayer under other provisions 
of the Code.
    (b) Reimbursement arrangements between employee and employer. In the 
case of an expenditure for entertainment paid or incurred by an employee 
under a reimbursement or other expense allowance arrangement with his 
employer, the limitations on deductions provided for in paragraphs (a) 
through (e) of this section shall not apply:
    (1) Employees. To the employee except to the extent his employer has 
treated the expenditure on the employer's income tax return as 
originally filed as compensation paid to the employee and as wages to 
such employee for purposes of withholding under Chapter 24 (relating to 
collection of income tax at source on wages).
    (2) Employers. To the employer to the extent he has treated the 
expenditure as compensation and wages paid to an employee in the manner 
provided in (b)(1) of this subdivision.
    (c) Reimbursement arrangements between independent contractors and 
clients or customers. In the case of an expenditure for entertainment 
paid or incurred by one person (hereinafter termed ``independent 
contractor'') under a reimbursement or other expense allowance 
arrangement with another person other than an employer (hereinafter 
termed ``client or customer''), the limitations on deductions provided 
for in paragraphs (a) through (e) of this section shall not apply:
    (1) Independent contractors. To the independent contractor to the 
extent he accounts to his client or customer within the meaning of 
section 274(d) and the regulations thereunder. See Sec. 1.274-5.
    (2) Clients or customers. To the client or customer if the 
expenditure is disallowed to the independent contractor under paragraphs 
(a) through (e) of this section.
    (v) Recreational expenses for employees generally. Any expenditure 
by a taxpayer for a recreational, social, or

[[Page 786]]

similar activity (or for use of a facility in connection therewith), 
primarily for the benefit of his employees generally, is not subject to 
the limitations on allowability of deductions provided for in paragraphs 
(a) through (e) of this section. This exception applies only to 
expenditures made primarily for the benefit of employees of the taxpayer 
other than employees who are officers, shareholders on other owners who 
own a 10-percent or greater interest in the business, or other highly 
compensated employees. For purposes of the preceding sentence, an 
employee shall be treated as owning any interest owned by a member of 
his family (within the meaning of section 267(c)(4) and the regulations 
thereunder). Ordinarily, this exception applies to usual employee 
benefit programs such as expenses of a taxpayer (a) in holding Christmas 
parties, annual picnics, or summer outings, for his employees generally, 
or (b) of maintaining a swimming pool, baseball diamond, bowling alley, 
or golf course available to his employees generally. Any expenditure for 
an activity which is made under circumstances which discriminate in 
favor of employees who are officers, shareholders or other owners, or 
highly compensated employees shall not be considered made primarily for 
the benefit of employees generally. On the other hand, an expenditure 
for an activity will not be considered outside of this exception merely 
because, due to the large number of employees involved, the activity is 
intended to benefit only a limited number of such employees at one time, 
provided the activity does not discriminate in favor of officers, 
shareholders, other owners, or highly compensated employees.
    (vi) Employee, stockholder, etc., business meetings. Any expenditure 
by a taxpayer for entertainment which is directly related to bona fide 
business meetings of the taxpayer's employees, stockholders, agents, or 
directors held principally for discussion of trade or business is not 
subject to the limitations on allowability of deductions provided for in 
paragraphs (a) through (e) of this section. For purposes of this 
exception, a partnership is to be considered a taxpayer and a member of 
a partnership is to be considered an agent. For example, an expenditure 
by a taxpayer to furnish refreshments to his employees at a bona fide 
meeting, sponsored by the taxpayer for the principal purpose of 
instructing them with respect to a new procedure for conducting his 
business, would be within the provisions of this exception. A similar 
expenditure made at a bona fide meeting of stockholders of the taxpayer 
for the election of directors and discussion of corporate affairs would 
also be within the provisions of this exception. While this exception 
will apply to bona fide business meetings even though some social 
activities are provided, it will not apply to meetings which are 
primarily for social or nonbusiness purposes rather than for the 
transaction of the taxpayer's business. A meeting under circumstances 
where there was little or no possibility of engaging in the active 
conduct of trade or business (as described in paragraph (c)(7) of this 
section) generally will not be considered a business meeting for 
purposes of this subdivision. This exception will not apply to a meeting 
or convention of employees or agents, or similar meeting for directors, 
partners or others for the principal purpose of rewarding them for their 
services to the taxpayer. However, such a meeting or convention of 
employees might come within the scope of subdivisions (iii) or (v) of 
this subparagraph.
    (vii) Meetings of business leagues, etc. Any expenditure for 
entertainment directly related and necessary to attendance at bona fide 
business meetings or conventions of organizations exempt from taxation 
under section 501(c)(6) of the Code, such as business leagues, chambers 
of commerce, real estate boards, boards of trade, and certain 
professional associations, is not subject to the limitations on 
allowability of deductions provided in paragraphs (a) through (e) of 
this section.
    (viii) Items available to the public. Any expenditure by a taxpayer 
for entertainment (or for a facility in connection therewith) to the 
extent the entertainment is made available to the general public is not 
subject to the limitations on allowability of deductions provided for in 
paragraphs (a) through (e) of this section. Expenditures for 
entertainment of the general public by

[[Page 787]]

means of television, radio, newspapers and the like, will come within 
this exception, as will expenditures for distributing samples to the 
general public. Similarly, expenditures for maintaining private parks, 
golf courses and similar facilities, to the extent that they are 
available for public use, will come within this exception. For example, 
if a corporation maintains a swimming pool which it makes available for 
a period of time each week to children participating in a local public 
recreational program, the portion of the expense relating to such public 
use of the pool will come within this exception.
    (ix) Entertainment sold to customers. Any expenditure by a taxpayer 
for entertainment (or for use of a facility in connection therewith) to 
the extent the entertainment is sold to customers in a bona fide 
transaction for an adequate and full consideration in money or money's 
worth is not subject to the limitations on allowability of deductions 
provided for in paragraphs (a) through (e) of this section. Thus, the 
cost of producing night club entertainment (such as salaries paid to 
employees of night clubs and amounts paid to performers) for sale to 
customers or the cost of operating a pleasure cruise ship as a business 
will come within this exception.
    (g) Additional provisions of section 274--travel of spouse, 
dependent or others. Section 274(m)(3) provides that no deduction shall 
be allowed under this chapter (except section 217) for travel expenses 
paid or incurred with respect to a spouse, dependent, or other 
individual accompanying the taxpayer (or an officer or employee of the 
taxpayer) on business travel, unless certain conditions are met. As 
provided in section 274(m)(3), the term other individual does not 
include a business associate (as defined in paragraph (b)(2)(iii) of 
this section) who otherwise meets the requirements of sections 
274(m)(3)(B) and (C).

[T.D. 6659, 28 FR 6499, June 25, 1963, as amended by T.D. 6996, 34 FR 
835, Jan. 18, 1969; T.D. 8051, 50 FR 36576, Sept. 9, 1985; T.D. 8601, 60 
FR 36994, July 19, 1995; T.D. 8666, 61 FR 27006, May 30, 1996]



Sec. 1.274-3  Disallowance of deduction for gifts.

    (a) In general. No deduction shall be allowed under section 162 or 
212 for any expense for a gift made directly or indirectly by a taxpayer 
to any individual to the extent that such expense, when added to prior 
expenses of the taxpayer for gifts made to such individual during the 
taxpayer's taxable year, exceeds $25.
    (b) Gift defined--(1) In general. Except as provided in subparagraph 
(2) of this paragraph the term gift, for purposes of this section, means 
any item excludable from the gross income of the recipient under section 
102 which is not excludable from his gross income under any other 
provision of chapter 1 of the Code. Thus, a payment by an employer to a 
deceased employee's widow is not a gift, for purposes of this section, 
to the extent the payment constitutes an employee's death benefit 
excludable by the recipient under section 101(b). Similarly, a 
scholarship which is excludable from a recipient's gross income under 
section 117, and a prize or award which is excludable from a recipient's 
gross income under section 74(b), are not subject to the provisions of 
this section.
    (2) Items not treated as gifts. The term gift, for purposes of this 
section, does not include the following:
    (i) An item having a cost to the taxpayer not in excess of $4.00 on 
which the name of the taxpayer is clearly and permanently imprinted and 
which is one of a number of identical items distributed generally by 
such a taxpayer.
    (ii) A sign, display rack, or other promotional material to be used 
on the business premises of the recipient, or
    (iii) In the case of a taxable year of a taxpayer ending on or after 
August 13, 1981, an item of tangible personal property which is awarded 
before January 1, 1987, to an employee of the taxpayer by reason of the 
employee's length of service (including an award upon retirement), 
productivity, or safety achievement, but only to the extent that--
    (A) The cost of the item to the taxpayer does not exceed $400; or
    (B) The item is a qualified plan award (as defined in paragraph (d) 
of this section); or

[[Page 788]]

    (iv) In the case of a taxable year of a taxpayer ending before 
August 13, 1981, an item of tangible personal property having a cost to 
the taxpayer not in excess of $100 which is awarded to an employee of 
the taxpayer by reason of the employee's length of service (including an 
award upon retirement) or safety achievement.

For purposes of paragraphs (b)(2) (iii) and (iv) of this section, the 
term tangible personal property does not include cash or any gift 
certificate other than a nonnegotiable gift certificate conferring only 
the right to receive tangible personal property. Thus, for example, if a 
nonnegotiable gift certificate entitles an employee to choose between 
selecting an item of merchandise or receiving cash or reducing the 
balance due on his account with the issuer of the gift certificate, the 
gift certificate is not tangible personal property for purposes of this 
section. To the extent that an item is not treated as a gift for 
purposes of this section, the deductibility of the expense of the item 
is not governed by this section, and the taxpayer need not take such 
item into account in determining whether the $25 limitation on gifts to 
any individual has been exceeded. For example, if an employee receives 
by reason of his length of service a gift of an item of tangible 
personal property that costs the employer $450, the deductibility of 
only $50 ($450 minus $400) is governed by this section, and the employer 
takes the $50 into account for purposes of the $25 limitation on gifts 
to that employee. The fact that an item is wholly or partially excepted 
from the applicability of this section has no effect in determining 
whether the value of the item is includible in the gross income of the 
recipient. For rules relating to the taxability to the recipient of any 
item described in this subparagraph, see sections 61, 74, and 102 and 
the regulations thereunder. For rules relating to the deductibility of 
employee achievement awards awarded after December 31, 1986, see section 
274 (j).
    (c) Expense for a gift. For purposes of this section, the term 
expense for a gift means the cost of the gift to the taxpayer, other 
than incidental costs such as for customary engraving on jewelry, or for 
packaging, insurance, and mailing or other delivery. A related cost will 
be considered ``incidental'' only if it does not add substantial value 
to the gift. Although the cost of customary gift wrapping will be 
considered an incidental cost, the purchase of an ornamental basket for 
packaging fruit will not be considered an incidental cost of packaging 
if the basket has a value which is substantial in relation to the value 
of the fruit.
    (d) Qualified plan award--(1) In general. Except as provided in 
subparagraph (2) of this paragraph the term qualified plan award, for 
purposes of this section, means an item of tangible personal property 
that is awarded to an employee by reason of the employee's length of 
service (including retirement), productivity, or safety achievement, and 
that is awarded pursuant to a permanent, written award plan or program 
of the taxpayer that does not discriminate as to eligibility or benefits 
in favor of employees who are officers, shareholders, or highly 
compensated employees. The ``permanency'' of an award plan shall be 
determined from all the facts and circumstances of the particular case, 
including the taxpayer's ability to continue to make the awards as 
required by the award plan. Although the taxpayer may reserve the right 
to change or to terminate an award plan, the actual termination of the 
award plan for any reason other than business necessity within a few 
years after it has taken effect may be evidence that the award plan from 
its inception was not a ``permanent'' award plan. Whether or not an 
award plan is discriminatory shall be determined from all the facts and 
circumstances of the particular case. An award plan may fail to qualify 
because it is discriminatory in its actual operation even though the 
written provisions of the award plan are not discriminatory.
    (2) Items not treated as qualified plan awards. The term qualified 
plan award, for purposes of this section, does not include an item 
qualifying under paragraph (d)(1) of this section to the extent that the 
cost of the item exceeds $1,600. In addition, that term does not include 
any items qualifying under paragraph (d)(1) of this section if the 
average cost of all items (whether or

[[Page 789]]

not tangible personal property) awarded during the taxable year by the 
taxpayer under any plan described in paragraph (d)(1) of this section 
exceeds $400. The average cost of those items shall be computed by 
dividing (i) the sum of the costs for those items (including amounts in 
excess of the $1,600 limitation) by (ii) the total number of those 
items.
    (e) Gifts made indirectly to an individual--(1) Gift to spouse or 
member of family. If a taxpayer makes a gift to the wife of a man who 
has a business connection with the taxpayer, the gift generally will be 
considered as made indirectly to the husband. However, if the wife has a 
bona fide business connection with the taxpayer independently of her 
relationship to her husband, a gift to her generally will not be 
considered as made indirectly to her husband unless the gift is intended 
for his eventual use or benefit. Thus, if a taxpayer makes a gift to a 
wife who is engaged with her husband in the active conduct of a 
partnership business, the gift to the wife will not be considered an 
indirect gift to her husband unless it is intended for his eventual use 
or benefit. The same rules apply to gifts to any other member of the 
family of an individual who has a business connection with the taxpayer.
    (2) Gift to corporation or other business entity. If a taxpayer 
makes a gift to a corporation or other business entity intended for the 
eventual personal use or benefit of an individual who is an employee, 
stockholder, or other owner of the corporation or business entity, the 
gift generally will be considered as made indirectly to such individual. 
Thus, if a taxpayer provides theater tickets to a closely held 
corporation for eventual use by any one of the stockholders of the 
corporation, and if such tickets are gifts, the gifts will be considered 
as made indirectly to the individual who eventually uses such ticket. On 
the other hand, a gift to a business organization of property to be used 
in connection with the business of the organization (for example, a 
technical manual) will not be considered as a gift to an individual, 
even though, in practice, the book will be used principally by a readily 
identifiable individual employee. A gift for the eventual personal use 
or benefit of some undesignated member of a large group of individuals 
generally will not be considered as made indirectly to the individual 
who eventually uses, or benefits from, such gifts unless, under the 
circumstances of the case, it is reasonably practicable for the taxpayer 
to ascertain the ultimate recipient of the gift. Thus, if a taxpayer 
provides several baseball tickets to a corporation for the eventual use 
by any one of a large number of employees or customers of the 
corporation, and if such tickets are gifts, the gifts generally will not 
be treated as made indirectly to the individuals who use such tickets.
    (f) Special rules--(1) Partnership. In the case of a gift by a 
partnership, the $25 annual limitation contained in paragraph (a) of 
this section shall apply to the partnership as well as to each member of 
the partnership. Thus, in the case of a gift made by a partner with 
respect to the business of the partnership, the $25 limitation will be 
applied at the partnership level as well as at the level of the 
individual partner. Consequently, deductions for gifts made with respect 
to partnership business will not exceed $25 annually for each recipient, 
regardless of the number of partners.
    (2) Husband and wife. For purposes of applying the $25 annual 
limitation contained in paragraph (a) of this section, a husband and 
wife shall be treated as one taxpayer. Thus, in the case of gifts to an 
individual by a husband and wife, the spouses will be treated as one 
donor; and they are limited to a deduction of $25 annually for each 
recipient. This rule applies regardless of whether the husband and wife 
file a joint return or whether the husband and wife make separate gifts 
to an individual with respect to separate businesses. Since the term 
taxpayer in paragraph (a) of this section refers only to the donor of a 
gift, this special rule does not apply to treat a husband and wife as 
one individual where each is a recipient of a gift. See paragraph (e)(1) 
of this section.

[[Page 790]]

    (g) Cross reference. For rules with respect to whether this section 
or Sec. 1.274-2 applies, see Sec. 1.274-2(b)(1) (iii).

[T.D. 6659, 28 FR 6505, June 25, 1963, as amended by T.D. 8230, 53 FR 
36451, Sept. 20, 1988]



Sec. 1.274-4  Disallowance of certain foreign travel expenses.

    (a) Introductory. Section 274(c) and this section impose certain 
restrictions on the deductibility of travel expenses incurred in the 
case of an individual who, while traveling outside the United States 
away from home in the pursuit of trade or business (hereinafter termed 
``business activity''), engages in substantial personal activity not 
attributable to such trade or business (hereinafter termed ``nonbusiness 
activity''). Section 274(c) and this section are limited in their 
application to individuals (whether or not an employee or other person 
traveling under a reimbursement or other expense allowance arrangement) 
who engage in nonbusiness activity while traveling outside the United 
States away from home, and do not impose restrictions on the 
deductibility of travel expenses incurred by an employer or client under 
an advance, reimbursement, or other arrangement with the individual who 
engages in nonbusiness activity. For purposes of this section, the term 
United States includes only the States and the District of Columbia, and 
any reference to ``trade or business'' or ``business activity'' includes 
any activity described in section 212. For rules governing the 
determination of travel outside the United States away from home, see 
paragraph (e) of this section. For rules governing the disallowance of 
travel expense to which this section applies, see paragraph (f) of this 
section.
    (b) Limitations on application of section. The restrictions on 
deductibility of travel expenses contained in paragraph (f) of this 
section are applicable only if:
    (1) The travel expense is otherwise deductible under section 162 or 
212 and the regulations thereunder,
    (2) The travel expense is for travel outside the United States away 
from home which exceeds 1 week (as determined under paragraph (c) of 
this section), and
    (3) The time outside the United States away from home attributable 
to nonbusiness activity (as determined under paragraph (d) of this 
section) constitutes 25 percent or more of the total time on such 
travel.
    (c) Travel in excess of 1 week. This section does not apply to an 
expense of travel unless the expense is for travel outside the United 
States away from home which exceeds 1 week. For purposes of this 
section, 1 week means 7 consecutive days. The day in which travel 
outside the United States away from home begins shall not be considered, 
but the day in which such travel ends shall be considered, in 
determining whether a taxpayer is outside the United States away from 
home for more than 7 consecutive days. For example, if a taxpayer 
departs on travel outside the United States away from home on a 
Wednesday morning and ends such travel the following Wednesday evening, 
he shall be considered as being outside the United States away from home 
only 7 consecutive days. In such a case, this section would not apply 
because the taxpayer was not outside the United States away from home 
for more than 7 consecutive days. However, if the taxpayer travels 
outside the United States away from home for more than 7 consecutive 
days, both the day such travel begins and the day such travel ends shall 
be considered a ``business day'' or a ``nonbusiness day'', as the case 
may be, for purposes of determining whether nonbusiness activity 
constituted 25 percent or more of travel time under paragraph (d) of 
this section and for purposes of allocating expenses under paragraph (f) 
of this section. For purposes of determining whether travel is outside 
the United States away from home, see paragraph (e) of this section.
    (d) Nonbusiness activity constituting 25 percent or more of travel 
time--(1) In general. This section does not apply to any expense of 
travel outside the United States away from home unless the portion of 
time outside the United States away from home attributable to 
nonbusiness activity constitutes 25 percent or more of the total time on 
such travel.
    (2) Allocation on per day basis. The total time traveling outside 
the United

[[Page 791]]

States away from home will be allocated on a day-by-day basis to (i) 
days of business activity or (ii) days of nonbusiness activity 
(hereinafter termed ``business days'' or ``nonbusiness days'' 
respectively) unless the taxpayer establishes that a different method of 
allocation more clearly reflects the portion of time outside the United 
States away from home which is attributable to nonbusiness activity. For 
purposes of this section, a day spent outside the United States away 
from home shall be deemed entirely a business day even though spent only 
in part on business activity if the taxpayer establishes:
    (i) Transportation days. That on such day the taxpayer was traveling 
to or returning from a destination outside the United States away from 
home in the pursuit of trade or business. However, if for purposes of 
engaging in nonbusiness activity, the taxpayer while traveling outside 
the United States away from home does not travel by a reasonably direct 
route, only that number of days shall be considered business days as 
would be required for the taxpayer, using the same mode of 
transportation, to travel to or return from the same destination by a 
reasonably direct route. Also, if, while so traveling, the taxpayer 
interrupts the normal course of travel by engaging in substantial 
diversions for nonbusiness reasons of his own choosing, only that number 
of days shall be considered business days as equals the number of days 
required for the taxpayer, using the same mode of transportation, to 
travel to or return from the same destination without engaging in such 
diversion. For example, if a taxpayer residing in New York departs on an 
evening on a direct flight to Quebec for a business meeting to be held 
in Quebec the next morning, for purposes of determining whether 
nonbusiness activity constituted 25 percent or more of his travel time, 
the entire day of his departure shall be considered a business day. On 
the other hand, if a taxpayer travels by automobile from New York to 
Quebec to attend a business meeting and while en route spends 2 days in 
Ottawa and 1 day in Montreal on nonbusiness activities of his personal 
choice, only that number of days outside the United States shall be 
considered business days as would have been required for the taxpayer to 
drive by a reasonably direct route to Quebec, taking into account normal 
periods for rest and meals.
    (ii) Presence required. That on such day his presence outside the 
United States away from home was required at a particular place for a 
specific and bona fide business purpose. For example, if a taxpayer is 
instructed by his employer to attend a specific business meeting, the 
day of the meeting shall be considered a business day even though, 
because of the scheduled length of the meeting, the taxpayer spends more 
time during normal working hours of the day on nonbusiness activity than 
on business activity.
    (iii) Days primarily business. That during hours normally considered 
to be appropriate for business activity, his principal activity on such 
day was the pursuit of trade or business.
    (iv) Circumstances beyond control. That on such day he was prevented 
from engaging in the conduct of trade or business as his principal 
activity due to circumstances beyond his control.
    (v) Weekends, holidays, etc. That such day was a Saturday, Sunday, 
legal holiday, or other reasonably necessary standby day which 
intervened during that course of the taxpayer's trade or business while 
outside the United States away from home which the taxpayer endeavored 
to conduct with reasonable dispatch. For example, if a taxpayer travels 
from New York to London to take part in business negotiations beginning 
on a Wednesday and concluding on the following Tuesday, the intervening 
Saturday and Sunday shall be considered business days whether or not 
business is conducted on either of such days. Similarly, if in the above 
case the meetings which concluded on Tuesday evening were followed by 
business meetings with another business group in London on the 
immediately succeeding Thursday and Friday, the intervening Wednesday 
will be deemed a business day. However, if at the conclusion of the 
business meetings on Friday, the taxpayer stays in London for an 
additional week for personal purposes, the Saturday and Sunday following 
the conclusion of the

[[Page 792]]

business meeting will not be considered business days.
    (e) Domestic travel excluded--(1) In general. For purposes of this 
section, travel outside the United States away from home does not 
include any travel from one point in the United States to another point 
in the United States. However, travel which is not from one point in the 
United States to another point in the United States shall be considered 
travel outside the United States. If a taxpayer travels from a place 
within the United States to a place outside the United States, the 
portion, if any, of such travel which is from one point in the United 
States to another point in the United States is to be disregarded for 
purposes of determining:
    (i) Whether the taxpayer's travel outside the United States away 
from home exceeds 1 week (see paragraph (c) of this section),
    (ii) Whether the time outside the United States away from home 
attributable to nonbusiness activity constitutes 25 percent or more of 
the total time on such travel (see paragraph (d) of this section), or
    (iii) The amount of travel expense subject to the allocation rules 
of this section (see paragraph (f) of this section).
    (2) Determination of travel from one point in the United States to 
another point in the United States. In the case of the following means 
of transportation, travel from one point in the United States to another 
point in the United States shall be determined as follows:
    (i) Travel by public transportation. In the case of travel by public 
transportation, any place in the United States at which the vehicle 
makes a scheduled stop for the purpose of adding or discharging 
passengers shall be considered a point in the United States.
    (ii) Travel by private automobile. In the case of travel by private 
automobile, any such travel which is within the United States shall be 
considered travel from one point in the United States to another point 
in the United States.
    (iii) Travel by private airplane. In the case of travel by private 
airplane, any flight, whether or not constituting the entire trip, where 
both the takeoff and the landing are within the United States shall be 
considered travel from one point in the United States to another point 
in the United States.
    (3) Examples. The provisions of subparagraph (2) may be illustrated 
by the following examples:

    Example 1. Taxpayer A flies from Los Angeles to Puerto Rico with a 
brief scheduled stopover in Miami for the purpose of adding and 
discharging passengers and A returns by airplane nonstop to Los Angeles. 
The travel from Los Angeles to Miami is considered travel from one point 
in the United States to another point in the United States. The travel 
from Miami to Puerto Rico and from Puerto Rico to Los Angeles is not 
considered travel from one point in the United States to another point 
in the United States and, thus, is considered to be travel outside the 
United States away from home.
    Example 2. Taxpayer B travels by train from New York to Montreal. 
The travel from New York to the last place in the United States where 
the train is stopped for the purpose of adding or discharging passengers 
is considered to be travel from one point in the United States to 
another point in the United States.
    Example 3. Taxpayer C travels by automobile from Tulsa to Mexico 
City and back. All travel in the United States is considered to be 
travel from one point in the United States to another point in the 
United States.
    Example 4. Taxpayer D flies nonstop from Seattle to Juneau. Although 
the flight passes over Canada, the trip is considered to be travel from 
one point in the United States to another point in the United States.
    Example 5. If in Example 4 above, the airplane makes a scheduled 
landing in Vancouver, the time spent in traveling from Seattle to Juneau 
is considered to be travel outside the United States away from home. 
However, the time spent in Juneau is not considered to be travel outside 
the United States away from home.

    (f) Application of disallowance rules--(1) In general. In the case 
of expense for travel outside the United States away from home by an 
individual to which this section applies, except as otherwise provided 
in subparagraph (4) or (5) of this paragraph, no deduction shall be 
allowed for that amount of travel expense specified in subparagraph (2) 
or (3) of this paragraph (whichever is applicable) which is obtained by 
multiplying the total of such travel expense by a fraction:
    (i) The numerator of which is the number of nonbusiness days during 
such travel, and

[[Page 793]]

    (ii) The denominator of which is the total number of business days 
and nonbusiness days during such travel.

For determination of ``business days'' and ``nonbusiness days'', see 
paragraph (d)(2) of this section.
    (2) Nonbusiness activity at, near, or beyond business destination. 
If the place at which the individual engages in nonbusiness activity 
(hereinafter termed ``nonbusiness destination'') is at, near, or beyond 
the place to which he travels in the pursuit of a trade or business 
(hereinafter termed ``business destination''), the amount of travel 
expense referred to in subparagraph (1) of this paragraph shall be the 
amount of travel expense, otherwise allowable as a deduction under 
section 162 or section 212, which would have been incurred in traveling 
from the place where travel outside the United States away from home 
begins to the business destination, and returning. Thus, if the 
individual travels from New York to London on business, and then takes a 
vacation in Paris before returning to New York, the amount of the travel 
expense subject to allocation is the expense which would have been 
incurred in traveling from New York to London and returning.
    (3) Nonbusiness activity on the route to or from business 
destination. If the nonbusiness destination is on the route to or from 
the business destination, the amount of the travel expense referred to 
in subparagraph (1) of this paragraph shall be the amount of travel 
expense, otherwise allowable as a deduction under section 162 or 212, 
which would have been incurred in traveling from the place where travel 
outside the United States away from home begins to the nonbusiness 
destination and returning. Thus, if the individual travels on business 
from Chicago to Rio de Janeiro, Brazil with a scheduled stop in New York 
for the purpose of adding and discharging passengers, and while en route 
stops in Caracas, Venezuela for a vacation and returns to Chicago from 
Rio de Janeiro with another scheduled stop in New York for the purpose 
of adding and discharging passengers, the amount of travel expense 
subject to allocation is the expense which would have been incurred in 
traveling from New York to Caracas and returning.
    (4) Other allocation method. If a taxpayer establishes that a method 
other than allocation on a day-by-day basis (as determined under 
paragraph (d)(2) of this section) more clearly reflects the portion of 
time outside the United States away from home which is attributable to 
nonbusiness activity, the amount of travel expense for which no 
deduction shall be allowed shall be determined by such other method.
    (5) Travel expense deemed entirely allocable to business activity. 
Expenses of travel shall be considered allocable in full to business 
activity, and no portion of such expense shall be subject to 
disallowance under this section, if incurred under circumstances 
provided for in subdivision (i) or (ii) of this subparagraph.
    (i) Lack of control over travel. Expenses of travel otherwise 
deductible under section 162 or 212 shall be considered fully allocable 
to business activity if, considering all the facts and circumstances, 
the individual incurring such expenses did not have substantial control 
over the arranging of the business trip. A person who is required to 
travel to a business destination will not be considered to have 
substantial control over the arranging of the business trip merely 
because he has control over the timing of the trip. Any individual who 
travels on behalf of his employer under a reimbursement or other expense 
allowance arrangement shall be considered not to have had substantial 
control over the arranging of his business trip, provided the employee 
is not:
    (a) A managing executive of the employer for whom he is traveling 
(and for this purpose the term managing executive includes only an 
employee who, by reason of his authority and responsibility, is 
authorized, without effective veto procedures, to decide upon the 
necessity for his business trip), or
    (b) Related to his employer within the meaning of section 267(b) but 
for this purpose the percentage referred to in section 267(b)(2) shall 
be 10 percent.
    (ii) Lack of major consideration to obtain a vacation. Any expense 
of travel, which qualifies for deduction under section 162 or 212, shall 
be considered fully allocable to business activity if the individual 
incurring such expenses

[[Page 794]]

can establish that, considering all the facts and circumstances, he did 
not have a major consideration, in determining to make the trip, of 
obtaining a personal vacation or holiday. If such a major consideration 
were present, the provisions of subparagraphs (1) through (4) of this 
paragraph shall apply. However, if the trip were primarily personal in 
nature, the traveling expenses to and from the destination are not 
deductible even though the taxpayer engages in business activities while 
at such destination. See paragraph (b) of Sec. 1.162-2.
    (g) Examples. The application of this section may be illustrated by 
the following examples:

    Example 1. Individual A flew from New York to Paris where he 
conducted business for 1 day. He spent the next 2 days sightseeing in 
Paris and then flew back to New York. The entire trip, including 2 days 
for travel en route, took 5 days. Since the time outside the United 
States away from home during the trip did not exceed 1 week, the 
disallowance rules of this section do not apply.
    Example 2. Individual B flew from Tampa to Honolulu (from one point 
in the United States to another point in the United States) for a 
business meeting which lasted 3 days and for personal matters which took 
10 days. He then flew to Melbourne, Australia where he conducted 
business for 2 days and went sightseeing for 1 day. Immediately 
thereafter he flew back to Tampa, with a scheduled landing in Honolulu 
for the purpose of adding and discharging passengers. Although the trip 
exceeded 1 week, the time spent outside the United States away from 
home, including 2 days for traveling from Honolulu to Melbourne and 
return, was 5 days. Since the time outside the United States away from 
home during the trip did not exceed 1 week, the disallowance rules of 
this section do not apply.
    Example 3. Individual C flew from Los Angeles to New York where he 
spent 5 days. He then flew to Brussels where he spent 14 days on 
business and 5 days on personal matters. He then flew back to Los 
Angeles by way of New York. The entire trip, including 4 days for travel 
en route, took 28 days. However, the 2 days spent traveling from Los 
Angeles to New York and return, and the 5 days spent in New York are not 
considered travel outside the United States away from home and, thus, 
are disregarded for purposes of this section. Although the time spent 
outside the United States away from home exceeded 1 week, the time 
outside the United States away from home attributable to nonbusiness 
activities (5 days out of 21) was less than 25 percent of the total time 
outside the United States away from home during the trip. Therefore, the 
disallowance rules of this section do not apply.
    Example 4. D, an employee of Y Company, who is neither a managing 
executive of, nor related to, Y Company within the meaning of paragraph 
(f)(5)(i) of this section, traveled outside the United States away from 
home on behalf of his employer and was reimbursed by Y for his traveling 
expense to and from the business destination. The trip took more than a 
week and D took advantage of the opportunity to enjoy a personal 
vacation which exceeded 25 percent of the total time on the trip. Since 
D, traveling under a reimbursement arrangement, is not a managing 
executive of, or related to, Y Company, he is not considered to have 
substantial control over the arranging of the business trip, and the 
travel expenses shall be considered fully allocable to business 
activity.
    Example 5. E, a managing executive and principal shareholder of X 
Company, travels from New York to Stockholm, Sweden, to attend a series 
of business meetings. At the conclusion of the series of meetings, which 
last 1 week, E spends 1 week on a personal vacation in Stockholm. If E 
establishes either that he did not have substantial control over the 
arranging of the trip or that a major consideration in his determining 
to make the trip was not to provide an opportunity for taking a personal 
vacation, the entire travel expense to and from Stockholm shall be 
considered fully allocable to business activity.
    Example 6. F, a self-employed professional man, flew from New York 
to Copenhagen, Denmark, to attend a convention sponsored by a 
professional society. The trip lasted 3 weeks, of which 2 weeks were 
spent on vacation in Europe. F generally would be regarded as having 
substantial control over arranging this business trip. Unless F can 
establish that obtaining a vacation was not a major consideration in 
determining to make the trip, the disallowance rules of this section 
apply.
    Example 7. Taxpayer G flew from Chicago to New York where he spent 6 
days on business. He then flew to London where he conducted business for 
2 days. G then flew to Paris for a 5 day vacation after which he flew 
back to Chicago, with a scheduled landing in New York for the purpose of 
adding and discharging passengers. G would not have made the trip except 
for the business he had to conduct in London. The travel outside the 
United States away from home, including 2 days for travel en route, 
exceeded a week and the time devoted to nonbusiness activities was not 
less than 25 percent of the total time on such travel. The 2 days spent 
traveling from Chicago to New York and return, and the 6 days spent in 
New York are disregarded for purposes of determining whether the

[[Page 795]]

travel outside the United States away from home exceeded a week and 
whether the time devoted to nonbusiness activities was less than 25 
percent of the total time outside the United States away from home. If G 
is unable to establish either that he did not have substantial control 
over the arranging of the business trip or that an opportunity for 
taking a personal vacation was not a major consideration in his 
determining to make the trip, 5/9ths (5 days devoted to nonbusiness 
activities out of a total 9 days outside the United States away from 
home on the trip) of the expenses attributable to transportation and 
food from New York to London and from London to New York will be 
disallowed (unless G establishes that a different method of allocation 
more clearly reflects the portion of time outside the United States away 
from home which is attributable to nonbusiness activity).

    (h) Cross reference. For rules with respect to whether an expense is 
travel or entertainment, see paragraph (b)(1)(iii) of Sec. 1.274-2.

[T.D. 6758, 29 FR 12768, Sept. 10, 1964]



Sec. 1.274-5  Substantiation requirements.

    (a)-(b) [Reserved]. For further guidance, see Sec. 1.274-5T(a) and 
(b).
    (c) Rules of substantiation--(1) [Reserved]. For further guidance, 
see Sec. 1.274-5T(c)(1).
    (2) Substantiation by adequate records--(i) and (ii) [Reserved]. For 
further guidance, see Sec. 1.274-5T(c)(2)(i) and (ii).
    (iii) Documentary evidence--(A) Except as provided in paragraph 
(c)(2)(iii)(B), documentary evidence, such as receipts, paid bills, or 
similar evidence sufficient to support an expenditure, is required for--
    (1) Any expenditure for lodging while traveling away from home, and
    (2) Any other expenditure of $75 or more except, for transportation 
charges, documentary evidence will not be required if not readily 
available.
    (B) The Commissioner, in his or her discretion, may prescribe rules 
waiving the documentary evidence requirements in circumstances where it 
is impracticable for such documentary evidence to be required. 
Ordinarily, documentary evidence will be considered adequate to support 
an expenditure if it includes sufficient information to establish the 
amount, date, place, and the essential character of the expenditure. For 
example, a hotel receipt is sufficient to support expenditures for 
business travel if it contains the following: name, location, date, and 
separate amounts for charges such as for lodging, meals, and telephone. 
Similarly, a restaurant receipt is sufficient to support an expenditure 
for a business meal if it contains the following: name and location of 
the restaurant, the date and amount of the expenditure, the number of 
people served, and, if a charge is made for an item other than meals and 
beverages, an indication that such is the case. A document may be 
indicative of only one (or part of one) element of an expenditure. Thus, 
a cancelled check, together with a bill from the payee, ordinarily would 
establish the element of cost. In contrast, a cancelled check drawn 
payable to a named payee would not by itself support a business 
expenditure without other evidence showing that the check was used for a 
certain business purpose.
    (iv)-(v) [Reserved]. For further guidance, see Sec. 1.274-
5T(c)(2)(iv) and (v).
    (3)-(7) [Reserved]. For further guidance, see Sec. 1.274-5T(c)(3) 
through (7).
    (d)-(e) [Reserved]. For further guidance, see Sec. 1.274-5T(d) and 
(e).
    (f) Reporting and substantiation of expenses of certain employees 
for travel, entertainment, gifts, and with respect to listed property--
(1) through (3) [Reserved]. For further guidance, see Sec. 1.274-
5T(f)(1) through (3).
    (4) Definition of an adequate accounting to the employer--(i) In 
general. For purposes of this paragraph (f) an adequate accounting means 
the submission to the employer of an account book, diary, log, statement 
of expense, trip sheet, or similar record maintained by the employee in 
which the information as to each element of an expenditure or use 
(described in paragraph (b) of this section) is recorded at or near the 
time of the expenditure or use, together with supporting documentary 
evidence, in a manner that conforms to all the adequate records 
requirements of paragraph (c)(2) of this section. An adequate accounting 
requires that the employee account for all amounts received from the 
employer during the taxable year as advances, reimbursements, or 
allowances (including those charged directly or indirectly to the

[[Page 796]]

employer through credit cards or otherwise) for travel, entertainment, 
gifts, and the use of listed property. The methods of substantiation 
allowed under paragraph (c)(4) or (c)(5) of this section also will be 
considered to be an adequate accounting if the employer accepts an 
employee's substantiation and establishes that such substantiation meets 
the requirements of paragraph (c)(4) or (c)(5). For purposes of an 
adequate accounting, the method of substantiation allowed under 
paragraph (c)(3) of this section will not be permitted.
    (ii) Procedures for adequate accounting without documentary 
evidence. The Commissioner may, in his or her discretion, prescribe 
rules under which an employee may make an adequate accounting to an 
employer by submitting an account book, log, diary, etc., alone, without 
submitting documentary evidence.
    (iii) Employer. For purposes of this section, the term employer 
includes an agent of the employer or a third party payor who pays 
amounts to an employee under a reimbursement or other expense allowance 
arrangement.
    (5) [Reserved]. For further guidance, see Sec. 1.274-5T(f)(5).
    (g) Substantiation by reimbursement arrangements or per diem, 
mileage, and other traveling allowances--(1) In general. The 
Commissioner may, in his or her discretion, prescribe rules in 
pronouncements of general applicability under which allowances for 
expenses described in paragraph (g)(2) of this section will, if in 
accordance with reasonable business practice, be regarded as equivalent 
to substantiation by adequate records or other sufficient evidence, for 
purposes of paragraph (c) of this section, of the amount of the expenses 
and as satisfying, with respect to the amount of the expenses, the 
requirements of an adequate accounting to the employer for purposes of 
paragraph (f)(4) of this section. If the total allowance received 
exceeds the deductible expenses paid or incurred by the employee, such 
excess must be reported as income on the employee's return. See 
paragraph (j)(1) of this section relating to the substantiation of meal 
expenses while traveling away from home, and paragraph (j)(2) of this 
section relating to the substantiation of expenses for the business use 
of a vehicle.
    (2) Allowances for expenses described. An allowance for expenses is 
described in this paragraph (g)(2) if it is a--
    (i) Reimbursement arrangement covering ordinary and necessary 
expenses of traveling away from home (exclusive of transportation 
expenses to and from destination);
    (ii) Per diem allowance providing for ordinary and necessary 
expenses of traveling away from home (exclusive of transportation costs 
to and from destination); or
    (iii) Mileage allowance providing for ordinary and necessary 
expenses of local transportation and transportation to, from, and at the 
destination while traveling away from home.
    (h) [Reserved]. For further guidance, see Sec. 1.274-5T(h).
    (i) [Reserved]
    (j) Authority for optional methods of computing certain expenses--
(1) Meal expenses while traveling away from home. The Commissioner may 
establish a method under which a taxpayer may use a specified amount or 
amounts for meals while traveling away from home in lieu of 
substantiating the actual cost of meals. The taxpayer will not be 
relieved of the requirement to substantiate the actual cost of other 
travel expenses as well as the time, place, and business purpose of the 
travel. See paragraphs (b)(2) and (c) of this section.
    (2) Use of mileage rates for vehicle expenses. The Commissioner may 
establish a method under which a taxpayer may use mileage rates to 
determine the amount of the ordinary and necessary expenses of using a 
vehicle for local transportation and transportation to, from, and at the 
destination while traveling away from home in lieu of substantiating the 
actual costs. The method may include appropriate limitations and 
conditions in order to reflect more accurately vehicle expenses over the 
entire period of usage. The taxpayer will not be relieved of the 
requirement to substantiate the amount of each business use (i.e., the 
business mileage), or the time and business purpose of each use. See 
paragraphs (b)(2) and (c) of this section.

[[Page 797]]

    (3) Incidental expenses while traveling away from home. The 
Commissioner may establish a method under which a taxpayer may use a 
specified amount or amounts for incidental expenses paid or incurred 
while traveling away from home in lieu of substantiating the actual cost 
of incidental expenses. The taxpayer will not be relieved of the 
requirement to substantiate the actual cost of other travel expenses as 
well as the time, place, and business purpose of the travel.
    (k) Exceptions for qualified nonpersonal use vehicles--(1) In 
general. The substantiation requirements of section 274(d) and this 
section do not apply to any qualified nonpersonal use vehicle (as 
defined in paragraph (k)(2) of this section).
    (2) Qualified nonpersonal use vehicle--(i) In general. For purposes 
of section 274(d) and this section, the term qualified nonpersonal use 
vehicle means any vehicle which, by reason of its nature (that is, 
design), is not likely to be used more than a de minimis amount for 
personal purposes.
    (ii) List of vehicles. Vehicles which are qualified nonpersonal use 
vehicles include the following:
    (A) Clearly marked police, fire, and public safety officer vehicles 
(as defined and to the extent provided in paragraph (k)(3) of this 
section).
    (B) Ambulances used as such or hearses used as such.
    (C) Any vehicle designed to carry cargo with a loaded gross vehicle 
weight over 14,000 pounds.
    (D) Bucket trucks (cherry pickers).
    (E) Cement mixers.
    (F) Combines.
    (G) Cranes and derricks.
    (H) Delivery trucks with seating only for the driver, or only for 
the driver plus a folding jump seat.
    (I) Dump trucks (including garbage trucks).
    (J) Flatbed trucks.
    (K) Forklifts.
    (L) Passenger buses used as such with a capacity of at least 20 
passengers.
    (M) Qualified moving vans (as defined in paragraph (k)(4) of this 
section).
    (N) Qualified specialized utility repair trucks (as defined in 
paragraph (k)(5) of this section).
    (O) Refrigerated trucks.
    (P) School buses (as defined in section 4221(d)(7)(c)).
    (Q) Tractors and other special purpose farm vehicles.
    (R) Unmarked vehicles used by law enforcement officers (as defined 
in paragraph (k)(6) of this section) if the use is officially 
authorized.
    (S) Such other vehicles as the Commissioner may designate.
    (3) Clearly marked police, fire, or public safety officer vehicles. 
A police, fire, or public safety officer vehicle is a vehicle, owned or 
leased by a governmental unit, or any agency or instrumentality thereof, 
that is required to be used for commuting by a police officer, fire 
fighter, or public safety officer (as defined in section 402(l)(4)(C) of 
this chapter) who, when not on a regular shift, is on call at all times, 
provided that any personal use (other than commuting) of the vehicle 
outside the limit of the police officer's arrest powers or the fire 
fighter's or public safety officer's obligation to respond to an 
emergency is prohibited by such governmental unit. A police, fire, or 
public safety officer vehicle is clearly marked if, through painted 
insignia or words, it is readily apparent that the vehicle is a police, 
fire, or public safety officer vehicle. A marking on a license plate is 
not a clear marking for purposes of this paragraph (k).
    (4) Qualified moving van. The term qualified moving van means any 
truck or van used by a professional moving company in the trade or 
business of moving household or business goods if--
    (i) No personal use of the van is allowed other than for travel to 
and from a move site (or for de minimis personal use, such as a stop for 
lunch on the way between two move sites);
    (ii) Personal use for travel to and from a move site is an irregular 
practice (that is, not more than five times a month on average); and
    (iii) Personal use is limited to situations in which it is more 
convenient to the employer, because of the location of the employee's 
residence in relation to the location of the move site, for the van not 
to be returned to the employer's business location.

[[Page 798]]

    (5) Qualified specialized utility repair truck. The term qualified 
specialized utility repair truck means any truck (not including a van or 
pickup truck) specifically designed and used to carry heavy tools, 
testing equipment, or parts if--
    (i) The shelves, racks, or other permanent interior construction 
which has been installed to carry and store such heavy items is such 
that it is unlikely that the truck will be used more than a de minimis 
amount for personal purposes; and
    (ii) The employer requires the employee to drive the truck home in 
order to be able to respond in emergency situations for purposes of 
restoring or maintaining electricity, gas, telephone, water, sewer, or 
steam utility services.
    (6) Unmarked law enforcement vehicles--(i) In general. The 
substantiation requirements of section 274(d) and this section do not 
apply to officially authorized uses of an unmarked vehicle by a ``law 
enforcement officer''. To qualify for this exception, any personal use 
must be authorized by the Federal, State, county, or local governmental 
agency or department that owns or leases the vehicle and employs the 
officer, and must be incident to law-enforcement functions, such as 
being able to report directly from home to a stakeout or surveillance 
site, or to an emergency situation. Use of an unmarked vehicle for 
vacation or recreation trips cannot qualify as an authorized use.
    (ii) Law enforcement officer. The term law enforcement officer means 
an individual who is employed on a full-time basis by a governmental 
unit that is responsible for the prevention or investigation of crime 
involving injury to persons or property (including apprehension or 
detention of persons for such crimes), who is authorized by law to carry 
firearms, execute search warrants, and to make arrests (other than 
merely a citizen's arrest), and who regularly carries firearms (except 
when it is not possible to do so because of the requirements of 
undercover work). The term ``law enforcement officer'' may include an 
arson investigator if the investigator otherwise meets the requirements 
of this paragraph (k)(6)(ii), but does not include Internal Revenue 
Service special agents.
    (7) Trucks and vans. The substantiation requirements of section 
274(d) and this section apply generally to any pickup truck or van, 
unless the truck or van has been specially modified with the result that 
it is not likely to be used more than a de minimis amount for personal 
purposes. For example, a van that has only a front bench for seating, in 
which permanent shelving that fills most of the cargo area has been 
installed, that constantly carries merchandise or equipment, and that 
has been specially painted with advertising or the company's name, is a 
vehicle not likely to be used more than a de minimis amount for personal 
purposes.
    (8) Examples. The following examples illustrate the provisions of 
paragraph (k)(3) and (6) of this section:

    Example 1. Detective C, who is a ``law enforcement officer'' 
employed by a state police department, headquartered in City M, is 
provided with an unmarked vehicle (equipped with radio communication) 
for use during off-duty hours because C must be able to communicate with 
headquarters and be available for duty at any time (for example, to 
report to a surveillance or crime site). The police department generally 
has officially authorized personal use of the vehicle by C but has 
prohibited use of the vehicle for recreational purposes or for personal 
purposes outside the state. Thus, C's use of the vehicle for commuting 
between headquarters or a surveillance site and home and for personal 
errands is authorized personal use as described in paragraph (k)(6)(i) 
of this section. With respect to these authorized uses the vehicle is 
not subject to the substantiation requirements of section 274(d) and the 
value of these uses is not included in C's gross income.
    Example 2. Detective T is a ``law enforcement officer'' employed by 
City M. T is authorized to make arrests only within M's city limits. T, 
along with all other officers of the force, is ordinarily on duty for 
eight hours each work day and on call during the other sixteen hours. T 
is provided with the use of a clearly marked police vehicle in which T 
is required to commute to his home in City M. The police department's 
official policy regarding marked police vehicles prohibits its personal 
use (other than commuting) of the vehicles outside the city limits. When 
not using the vehicle on the job, T uses the vehicle only for commuting, 
personal errands on the way between work and home, and personal errands 
within City M.

[[Page 799]]

All use of the vehicle by T conforms to the requirements of paragraph 
(k)(3) of this section. Therefore, the value of that use is excluded 
from T's gross income as a working condition fringe and the vehicle is 
not subject to the substantiation requirements of section 274(d).
    Example 3. Director C is employed by City M as the director of the 
City's rescue squad and is provided with a vehicle for use in responding 
to emergencies. Director C is trained in rescue activity and has the 
legal authority and legal responsibility to engage in rescue activity. 
The city's rescue squad is not a part of City M's police or fire 
departments. The director's vehicle is a sedan which is painted with 
insignia and words identifying the vehicle as being owned by the City's 
rescue squad. C, when not on a regular shift, is on call at all times. 
The City's official policy regarding clearly marked public safety 
officer vehicles prohibits personal use (other than for commuting) of 
the vehicle outside of the limits of the public safety officer's 
obligation to respond to an emergency. When not using the vehicle to 
respond to emergencies, City M authorizes C to use the vehicle only for 
commuting, personal errands on the way between work and home, and 
personal errands within the limits of C's obligation to respond to 
emergencies. With respect to these authorized uses, the vehicle is not 
subject to the substantiation requirements of section 274(d) and the 
value of these uses is not includable in C's gross income.
    Example 4. Coroner D is employed by County N to investigate and 
determine the cause, time, and manner of certain deaths occurring in the 
County. Coroner D also safeguards the property of the deceased, notifies 
the next of kin, conducts inquests, and arranges for the burial of 
indigent persons. D is provided with a vehicle for use by County N. The 
vehicle is to be used in County N business and for commuting. Personal 
use other than for commuting purposes is forbidden. D is trained in 
rescue activity but has no legal authority or legal responsibility to 
engage in rescue activity. D's vehicle is a sedan which is painted with 
insignia and words identifying it as a County N vehicle. D, when not on 
a regular shift, is on call at all times. D does not satisfy the 
criteria of a public safety officer under 28 CFR 32.3 (2008). Thus, D's 
vehicle cannot qualify as a clearly marked public safety officer 
vehicle. Accordingly, business use of the vehicle is subject to the 
substantiation requirements of section 274(d), and the value of any 
personal use of the vehicle, such as commuting, is includable in D's 
gross income.

    (l) Definitions. For purposes of section 274(d) and this section, 
the terms automobile and vehicle have the same meanings as prescribed in 
Sec. 1.61-21(d)(1)(ii) and (e)(2), respectively. Also, for purposes of 
section 274(d) and this section, the terms employer, employee and 
personal use have the same meanings as prescribed in Sec. 1.274-6T(e).
    (m) Effective date. This section applies to expenses paid or 
incurred after December 31, 1997. However, paragraph (j)(3) of this 
section applies to expenses paid or incurred after September 30, 2002, 
and paragraph (k) applies to clearly marked public safety officer 
vehicles, as defined in Sec. 1.274-5(k)(3), only with respect to uses 
occurring after May 19, 2010.

[T.D. 8864, 65 FR 4122, Jan. 26, 2000; 65 FR 15547, Mar. 23, 2000, as 
amended by T.D. 9020, 67 FR 68513, Nov. 12, 2002; T.D. 9064, 68 FR 
39011, July 1, 2003; T.D. 9483, 75 FR 27936, May 19, 2010]



Sec. 1.274-5T  Substantiation requirements (temporary).

    (a) In general. For taxable years beginning on or after January 1, 
1986, no deduction or credit shall be allowed with respect to--
    (1) Traveling away from home (including meals and lodging),
    (2) Any activity which is of a type generally considered to 
constitute entertainment, amusement, or recreation, or with respect to a 
facility used in connection with such an activity, including the items 
specified in section 274(e),
    (3) Gifts defined in section 274(b), or
    (4) Any listed property (as defined in section 280F(d)(4) and Sec. 
1.280F-6T(b)), unless the taxpayer substantiates each element of the 
expenditure or use (as described in paragraph (b) of this section) in 
the manner provided in paragraph (c) of this section. This limitation 
supersedes the doctrine found in Cohan v. Commissioner, 39 F. 2d 540 (2d 
Cir. 1930). The decision held that, where the evidence indicated a 
taxpayer incurred deductible travel or entertainment expenses but the 
exact amount could not be determined, the court should make a close 
approximation and not disallow the deduction entirely. Section 274(d) 
contemplates that no deduction or credit shall be allowed a taxpayer on 
the basis of such approximations or unsupported testimony of

[[Page 800]]

the taxpayer. For purposes of this section, the term entertainment means 
entertainment, amusement, or recreation, and use of a facility therefor; 
and the term expenditure includes expenses and items (including items 
such as losses and depreciation).
    (b) Elements of an expenditure or use--(1) In general. Section 
274(d) and this section contemplate that no deduction or credit shall be 
allowed for travel, entertainment, a gift, or with respect to listed 
property unless the taxpayer substantiates the requisite elements of 
each expenditure or use as set forth in this paragraph (b).
    (2) Travel away from home. The elements to be provided with respect 
to an expenditure for travel away from home are--
    (i) Amount. Amount of each separate expenditure for traveling away 
from home, such as cost of transportation or lodging, except that the 
daily cost of the traveler's own breakfast, lunch, and dinner and of 
expenditures incidental to such travel may be aggregated, if set forth 
in reasonable categories, such as for meals, for gasoline and oil, and 
for taxi fares;
    (ii) Time. Dates of departure and return for each trip away from 
home, and number of days away from home spent on business;
    (iii) Place. Destinations or locality of travel, described by name 
of city or town or other similar designation; and
    (iv) Business purpose. Business reason for travel or nature of the 
business benefit derived or expected to be derived as a result of 
travel.
    (3) Entertainment in general. The elements to be proved with respect 
to an expenditure for entertainment are--
    (i) Amount. Amount of each separate expenditure for entertainment, 
except that such incidental items as taxi fares or telephone calls may 
be aggregated on a daily basis;
    (ii) Time. Date of entertainment;
    (iii) Place. Name, if any, address or location, and destination of 
type of entertainment, such as dinner or theater, if such information is 
not apparent from the designation of the place;
    (iv) Business purpose. Business reason for the entertainment or 
nature of business benefit derived or expected to be derived as a result 
of the entertainment and, except in the case of business meals described 
in section 274(e)(1), the nature of any business discussion or activity;
    (v) Business relationship. Occupation or other information relating 
to the person or persons entertained, including name, title, or other 
designation, sufficient to establish business relationship to the 
taxpayer.
    (4) Entertainment directly preceding or following a substantial and 
bona fide business discussion. If a taxpayer claims a deduction for 
entertainment directly preceding or following a substantial and bona 
fide business discussion on the ground that such entertainment was 
associated with the active conduct of the taxpayer's trade or business, 
the elements to be proved with respect to such expenditure, in addition 
to those enumerated in paragraph (b)(3) (i), (ii), (iii), and (v) of 
this section are--
    (i) Time. Date and duration of business discussion;
    (ii) Place. Place of business discussion;
    (iii) Business purpose. Nature of business discussion, and business 
reason for the entertainment or nature of business benefit derived or 
expected to be derived as the result of the entertainment.
    (iv) Business relationship. Identification of those persons 
entertained who participated in the business discussion.
    (5) Gifts. The elements to be proved with respect to an expenditure 
for a gift are--
    (i) Amount. Cost of the gift to the taxpayer;
    (ii) Time. Date of the gift;
    (iii) Description. Description of the gift;
    (iv) Business purpose. Business reason for the gift or nature of 
business benefit derived or expected to be derived as a result of the 
gift; and
    (v) Business relationship. Occupation or other information relating 
to the recipient of the gift, including name, title, or other 
designation, sufficient to establish business relationship to the 
taxpayer.
    (6) Listed property. The elements to be proved with respect to any 
listed property are--
    (i) Amount--(A) Expenditures. The amount of each separate 
expenditure

[[Page 801]]

with respect to an item of listed property, such as the cost of 
acquisition, the cost of capital improvements, lease payments, the cost 
of maintenance and repairs, or other expenditures, and
    (B) Uses. The amount of each business/investment use (as defined in 
Sec. 1.280F-6T (d)(3) and (e)), based on the appropriate measure (i.e., 
mileage for automobiles and other means of transportation and time for 
other listed property, unless the Commissioner approves an alternative 
method), and the total use of the listed property for the taxable 
period.
    (ii) Time. Date of the expenditure or use with respect to listed 
property, and
    (iii) Business or investment purpose. The business purpose for an 
expenditure or use with respect to any listed property (see Sec. 1.274-
5T(c)(6)(i) (B) and (C) for special rules for the aggregation of 
expenditures and business use and Sec. 1.280F-6T(d)(2) for the 
distinction between qualified business use and business/investment use).

See also Sec. 1.274-5T(e) relating to the substantiation of business 
use of employer-provided listed property and Sec. 1.274-6T for special 
rules for substantiating the business/investment use of certain types of 
listed property.
    (c) Rules of substantiation--(1) In general. Except as otherwise 
provided in this section and Sec. 1.274-6T, a taxpayer must 
substantiate each element of an expenditure or use (described in 
paragraph (b) of this section) by adequate records or by sufficient 
evidence corroborating his own statement. Section 274(d) contemplates 
that a taxpayer will maintain and produce such substantiation as will 
constitute proof of each expenditure or use referred to in section 274. 
Written evidence has considerably more probative value than oral 
evidence alone. In addition, the probative value of written evidence is 
greater the closer in time it relates to the expenditure or use. A 
contemporaneous log is not required, but a record of the elements of an 
expenditure or of a business use of listed property made at or near the 
time of the expenditure or use, supported by sufficient documentary 
evidence, has a high degree of credibility not present with respect to a 
statement prepared subsequent thereto when generally there is a lack of 
accurate recall. Thus, the corroborative evidence required to support a 
statement not make at or near the time of the expenditure or use must 
have a high degree of probative value to elevate such statement and 
evidence to the level of credibility reflected by a record made at or 
near the time of the expenditure or use supported by sufficient 
documentary evidence. The substantiation requirements of section 274(d) 
are designed to encourage taxpayers to maintain the records, together 
with documentary evidence, as provided in paragraph (c)(2) of this 
section.
    (2) Substantiation by adequate records--(i) In general. To meet the 
``adequate records'' requirements of section 274(d), a taxpayer shall 
maintain an account book, diary, log, statement of expense, trip sheets, 
or similar record (as provided in paragraph (c)(2)(ii) of this section), 
and documentary evidence (as provided in paragraph (c)(2)(iii) of this 
section) which, in combination, are sufficient to establish each element 
of an expenditure or use specified in paragraph (b) of this section. It 
is not necessary to record information in an account book, diary, log, 
statement of expense, trip sheet, or similar record which duplicates 
information reflected on a receipt so long as the account book, etc. and 
receipt complement each other in an orderly manner.
    (ii) Account book, diary, etc. An account book, diary, log, 
statement of expense, trip sheet, or similar record must be prepared or 
maintained in such manner that each recording of an element of an 
expenditure or use is made at or near the time of the expenditure or 
use.
    (A) Made at or near the time of the expenditure or use. For purposes 
of this section, the phrase made at or near the time of the expenditure 
or use means the element of an expenditure or use are recorded at a time 
when, in relation to the use or making of an expenditure, the taxpayer 
has full present knowledge of each element of the expenditure or use, 
such as the amount, time, place, and business purpose of the expenditure 
and business relationship. An expense account statement which is a 
transcription of an account book,

[[Page 802]]

diary, log, or similar record prepared or maintained in accordance with 
the provisions of this paragraph (c)(2)(ii) shall be considered a record 
prepared or maintained in the manner prescribed in the preceding 
sentence if such expense account statement is submitted by an employee 
to his employer or by an independent contractor to his client or 
customer in the regular course of good business practice. For example, a 
log maintained on a weekly basis, which accounts for use during the 
week, shall be considered a record made at or near the time of such use.
    (B) Substantiation of business purpose. In order to constitute an 
adequate record of business purpose within the meaning of section 274(d) 
and this paragraph (c)(2), a written statement of business purpose 
generally is required. However, the degree of substantiation necessary 
to establish business purpose will vary depending upon the facts and 
circumstances of each case. Where the business purpose is evident from 
the surrounding facts and circumstances, a written explanation of such 
business purpose will not be required. For example, in the case of a 
salesman calling on customers on an established sales route, a written 
explanation of the business purpose of such travel ordinarily will not 
be required. Similarly, in the case of a business meal described in 
section 274(e)(1), if the business purpose of such meal is evident from 
the business relationship to the taxpayer of the persons entertained and 
other surrounding circumstances, a written explanation of such business 
purpose will not be required.
    (C) Substantiation of business use of listed property--(1) Degree of 
substantiation. In order to constitute an adequate record (within the 
meaning of section 274(d) and this paragraph (c)(2)(ii)), which 
substantiates business/investment use of listed property (as defined in 
Sec. 1.280F-6T(d)(3)), the record must contain sufficient information 
as to each element of every business/investment use. However, the level 
of detail required in an adequate record to substantiate business/
investment use may vary depending upon the facts and circumstances. For 
example, a taxpayer who uses a truck for both business and personal 
purposes and whose only business use of a truck is to make deliveries to 
customers on an established route may satisfy the adequate record 
requirement by recording the total number miles driven during the 
taxable year, the length of the delivery route once, and the date of 
each trip at or near the time of the trips. Alternatively, the taxpayer 
may establish the date of each trip with a receipt, record of delivery, 
or other documentary evidence.
    (2) Written record. Generally, an adequate record must be written. 
However, a record of the business use of listed property, such as a 
computer or automobile, prepared in a computer memory device with the 
aid of a logging program will constitute an adequate record.
    (D) Confidential information. If any information relating to the 
elements of an expenditure or use, such as place, business purpose, or 
business relationship, is of a confidential nature, such information 
need not be set forth in the account book, diary, log, statement of 
expense, trip sheet, or similar record, provided such information is 
recorded at or near the time of the expenditure or use and is elsewhere 
available to the district director to substantiate such element of the 
expenditure or use.
    (iii) [Reserved]. For further guidance, see Sec. 1.274-
5(c)(2)(iii).
    (iv) Retention of written evidence. The Commissioner may, in his 
discretion, prescribe rules under which an employer may dispose of the 
adequate records and documentary evidence submitted to him by employees 
who are required to, and do, make an adequate accounting to the employer 
(within the meaning of paragraph (f)(4) of this section) if the employer 
maintains adequate accounting procedures with respect to such employees 
(within the meaning of paragraph (f)(5) of this section.
    (v) Substantial compliance. If a taxpayer has not fully 
substantiated a particular element of an expenditure or use, but the 
taxpayer establishes to the satisfaction of the district director that 
he has substantially complied with the ``adequate records'' requirements 
of this paragraph (c)(2) with respect to the expenditure or use, the

[[Page 803]]

taxpayer may be permitted to establish such element by evidence which 
the district director shall deem adequate.
    (3) Substantiation by other sufficient evidence--(i) In general. If 
a taxpayer fails to establish to the satisfaction of the district 
director that he has substantially complied with the ``adequate 
records'' requirements of paragraph (c)(2) of this section with respect 
to an element of an expenditure or use, then, except as otherwise 
provided in this paragraph, the taxpayer must establish such element--
    (A) By his own statement, whether written or oral, containing 
specific information in detail as to such element; and
    (B) By other corrobative evidence sufficient to establish such 
element.

If such element is the description of a gift, or the cost or amount, 
time, place, or date of an expenditure or use, the corrobative evidence 
shall be direct evidence, such as a statement in writing or the oral 
testimony of persons entertained or other witnesses setting forth 
detailed information about such element, or the documentary evidence 
described in paragraph (c)(2) of this section. If such element is either 
the business relationship to the taxpayer of persons entertained, or the 
business purpose of an expenditure, the corrobative evidence may be 
circumstantial evidence.
    (ii) Sampling--(A) In general. Except as provided in paragraph 
(c)(3)(ii)(B) of this section, a taxpayer may maintain an adequate 
record for portions of a taxable year and use that record to 
substantiate the business/investment use of listed property for all or a 
portion of the taxable year if the taxpayer can demonstrate by other 
evidence that the periods for which an adequate record is maintained are 
representative of the use for the taxable year or a portion thereof.
    (B) Exception for pooled vehicles. The sampling method of paragraph 
(c)(3)(ii)(A) of this section may not be used to substantiate the 
business/investment use of an automobile or other vehicle of an employer 
that is made available for use by more than one employee for all or a 
portion of a taxable year.
    (C) Examples. The following examples illustrate this paragraph 
(c)(3)(ii).

    Example 1. A, a sole proprietor and calendar year taxpayer, operates 
an interior decorating business out of her home. A uses an automobile 
for local business travel to visit the homes or offices of clients, to 
meet with suppliers and other subcontractors, and to pick up and deliver 
certain items to clients when feasible. There is no other business use 
of the automobile but A and other members of her family also use the 
automobile for personal purposes. A maintains adequate records for the 
first three months of 1986 that indicate that 75 percent of the use of 
the automobile was in A's business. Invoices from subcontractors and 
paid bills indicate that A's business continued at approximately the 
same rate for the remainder of 1986. If other circumstances do not 
change (e.g., A does not obtain a second car for exclusive use in her 
business), the determination that the business/investment use of the 
automobile for the taxable year is 75 percent is based on sufficient 
corroborative evidence.
    Example 2. The facts are the same as in Example 1, except that A 
maintains adequate records during the first week of every month, which 
indicate that 75 percent of the use of the automobile is in A's 
business. The invoices from A's business indicate that A's business 
continued at the same rate during the subsequent weeks of each month so 
that A's weekly records are representative of each month's business use 
of the automobile. Thus, the determination that the business/investment 
use of the automobile for the taxable year is 75 percent is based on 
sufficient corroborative evidence.
    Example 3. B, a sole proprietor and calendar year taxpayer, is a 
salesman in a large metropolitan area for a company that manufactures 
household products. For the first three weeks of each month, B uses his 
own automobile occasionally to travel within the metropolitan area on 
business. During these three weeks, B's use of the automobile for 
business purposes does not follow a consistent pattern from day to day 
or week to week. During the fourth week of each month, B delivers to his 
customers all the orders taken during the previous month. B's use of his 
automobile for business purposes, as substantiated by adequate records, 
is 70 percent of the total use during that fourth week. In this example, 
a determination based on the records maintained during that fourth week 
that the business/investment use of the automobile for the taxable year 
is 70 percent is not based on sufficient corroborative evidence because 
use during this week is not representative of use during other periods.


[[Page 804]]


    (iii) Special rules. See Sec. 1.274-6T for special rules for 
substantiation by sufficient corroborating evidence with respect to 
certain listed property.
    (4) Substantiation in exceptional circumstances. If a taxpayer 
establishes that, by reason of the inherent nature of the situation--
    (i) He was unable to obtain evidence with respect to an element of 
the expenditure or use which conforms fully to the ``adequate records'' 
requirements of paragraph (c)(2) of this section,
    (ii) He is unable to obtain evidence with respect to such element 
which conforms fully to the ``other sufficient evidence'' requirements 
of paragraph (c)(3) of this section, and
    (iii) He has presented other evidence, with respect to such element, 
which possesses the highest degree of probative value possible under the 
circumstances, such other evidence shall be considered to satisfy the 
substantiation requirements of section 274(d) and this paragraph.
    (5) Loss of records due to circumstances beyond control of the 
taxpayer. Where the taxpayer establishes that the failure to produce 
adequate records is due to the loss of such records through 
circumstances beyond the taxpayer's control, such as destruction by 
fire, flood, earthquake, or other casualty, the taxpayer shall have a 
right to substantiate a deduction by reasonable reconstruction of his 
expenditures or use.
    (6) Special rules--(i) Separate expenditure or use--(A) In general. 
For the purposes of this section, each separate payment or use by the 
taxpayer shall ordinarily be considered to constitute a separate 
expenditure. However, concurrent or repetitious expenses or uses may be 
substantiated as a single item. To illustrate the above rules, where a 
taxpayer entertains a business guest at dinner and thereafter at the 
theater, the payment for dinner shall be considered to constitute one 
expenditure and the payment for the tickets for the theater shall be 
considered to constitute a separate expenditure. Similarly, if during a 
day of business travel a taxpayer makes separate payments for breakfast, 
lunch, and dinner, he shall be considered to have made three separate 
expenditures. However, if during entertainment at a cocktail lounge the 
taxpayer pays separately for each serving of refreshments, the total 
amount expended for the refreshments will be treated as a single 
expenditure. A tip may be treated as a separate expenditure.
    (B) Aggregation of expenditures. Except as otherwise provided in 
this section, the account book, diary, log, statement of expense, trip 
sheet, or similar record required by paragraph (c)(2)(ii) of this 
section shall be maintained with respect to each separate expenditure 
and not with respect to aggregate amounts for two or more expenditures. 
Thus, each expenditure for such items as lodging and air or rail travel 
shall be recorded as a separate item and not aggregated. However, at the 
option of the taxpayer, amounts expended for breakfast, lunch, or 
dinner, may be aggregated. A tip or gratuity which is related to an 
underlying expense may be aggregated with such expense. In addition, 
amounts expended in connection with the use of listed property during a 
taxable year, such as for gasoline or repairs for an automobile, may be 
aggregated. If these expenses are aggregated, the taxpayer must 
establish the date and amount, but need not prove the business purpose 
of each expenditure. Instead, the taxpayer may prorate the expenses 
based on the total business use of the listed property. For other 
provisions permitting recording of aggregate amounts in an account book, 
diary, log, statement of expense, trip sheet, or similar record, see 
paragraphs (b)(2)(i) and (b)(3) of this section (relating to incidental 
costs of travel and entertainment).
    (C) Aggregation of business use. Uses which may be considered part 
of a single use, for example, a round trip or uninterrupted business 
use, may be accounted for by a single record. For example, use of a 
truck to make deliveries at several different locations which begins and 
ends at the business premises and which may include a stop at the 
business premises in between two deliveries may be accounted for by a 
single record of miles driven. In addition, use of a passenger 
automobile by a salesman for a business trip away from home over a 
period of time may

[[Page 805]]

be accounted for by a single record of miles traveled. De minimis 
personal use (such as a stop for lunch on the way between two business 
stops) is not an interruption of business use.
    (ii) Allocation of expenditure. For purposes of this section, if a 
taxpayer has established the amount of an expenditure, but is unable to 
establish the portion of such amount which is attributable to each 
person participating in the event giving rise to the expenditure, such 
amount shall ordinarily be allocated to each participant on a pro rata 
basis, if such determination is material. Accordingly, the total number 
of persons for whom a travel or entertainment expenditure is incurred 
must be established in order to compute the portion of the expenditure 
allocable to such person.
    (iii) Primary use of a facility. Section 274(a) (1)(B) and (2)(C) 
deny a deduction for any expenditure paid or incurred before January 1, 
1979, with respect to a facility, or paid or incurred before January 1, 
1994, with respect to a club, used in connection with an entertainment 
activity unless the taxpayer establishes that the facility (including a 
club) was used primarily for the furtherance of the taxpayer's trade or 
business. A determination whether a facility before January 1, 1979, or 
a club before January 1, 1994, was used primarily for the furtherance of 
the taxpayer's trade or business will depend upon the facts and 
circumstances of each case. In order to establish that a facility was 
used primarily for the furtherance of his trade or business, the 
taxpayer shall maintain records of the use of the facility, the cost of 
using the facility, mileage or its equivalent (if appropriate), and such 
other information as shall tend to establish such primary use. Such 
records of use shall contain--
    (A) For each use of the facility claimed to be in furtherance of the 
taxpayer's trade or business, the elements of an expenditure specified 
in paragraph (b)(3) of this section, and
    (B) For each use of the facility not in furtherance of the 
taxpayer's trade or business, an appropriate description of such use, 
including cost, date, number of persons entertained, nature of 
entertainment and, if applicable, information such as mileage or its 
equivalent. A notation such as ``personal use'' or ``family use'' would, 
in the case of such use, be sufficient to describe the nature of 
entertainment.

If a taxpayer fails to maintain adequate records concerning a facility 
which is likely to serve the personal purposes of the taxpayer, it shall 
be presumed that the use of such facility was primarily personal.
    (iv) Additional information. In a case where it is necessary to 
obtain additional information, either--
    (A) To clarify information contained in records, statements, 
testimony, or documentary evidence submitted by a taxpayer under the 
provisions of paragraph (c)(2) or (c)(3) of this section, or
    (B) To establish the reliability or accuracy of such records, 
statements, testimony, or documentary evidence, the district director 
may, notwithstanding any other provision of this section, obtain such 
additional information by personal interview or otherwise as he 
determines necessary to implement properly the provisions of section 274 
and the regulations thereunder.
    (7) Specific exceptions. Except as otherwise prescribed by the 
Commissioner, substantiation otherwise required by this paragraph is not 
required for--
    (i) Expenses described in section 274(e)(2) relating to food and 
beverages for employees, section 274(e)(3) relating to expenses treated 
as compensation, section 274(e)(8) relating to items available to the 
public, and section 274(e)(9) relating to entertainment sold to 
customers, and
    (ii) Expenses described in section 274(e)(5) relating to 
recreational, etc., expenses for employees, except that a taxpayer shall 
keep such records or other evidence as shall establish that such 
expenses were for activities (or facilities used in connection 
therewith) primarily for the benefit of employees other than employees 
who are officers, shareholders or other owners (as defined in section 
274(e)(5)), or highly compensated employees.
    (d) Disclosure on returns--(1) In general. The Commissioner may, in 
his discretion, prescribe rules under which any taxpayer claiming a 
deduction or credit for entertainment, gifts, travel,

[[Page 806]]

or with respect to listed property, or any other person receiving 
advances, reimbursements, or allowances for such items, shall make 
disclosure on his tax return with respect to such items. The provisions 
of this paragraph shall apply notwithstanding the provisions of 
paragraph (f) of this section.
    (2) Business use of passenger automobiles and other vehicles. (i) On 
returns for taxable years beginning after December 31, 1984, taxpayers 
that claim a deduction or credit with respect to any vehicle are 
required to answer certain questions providing information about the use 
of the vehicle. The information required on the tax return relates to 
mileage (total, business, commuting, and other personal mileage), 
percentage of business use, date placed in service, use of other 
vehicles, after-work use, whether the taxpayer has evidence to support 
the business use claimed on the return, and whether or not the evidence 
is written.
    (ii) Any employer that provides the use of a vehicle to an employee 
must obtain information from the employee sufficient to complete the 
employer's tax return. Any employer that provides more than five 
vehicles to its employees need not include any information on its 
return. The employer, instead, must obtain the information from its 
employees, indicate on its return that it has obtained the information, 
and retain the information received. Any employer--
    (A) That can satisfy the requirements of Sec. 1.274-6T(a)(2), 
relating to vehicles not used for personal purposes,
    (B) That can satisfy the requirements of Sec. 1.274-6T(a)(3), 
relating to vehicles not used for personal purposes other than 
commuting, or
    (C) That treats all use of vehicles by employees as personal use 
need not obtain information with respect to those vechicles, but instead 
must indicate on its return that it has vehicles exempt from the 
requirements of this paragraph (d)(2).
    (3) Business use of other listed property. On returns for taxable 
years beginning after December 31, 1984, taxpayers that claim a 
deduction or credit with respect to any listed property other than a 
vehicle (for example, a yacht, airplane, or certain computers) are 
required to provide the following information:
    (i) The date that the property was placed in service,
    (ii) The percentage of business use,
    (iii) Whether evidence is available to support the percentage of 
business use claimed on the return, and
    (iv) Whether the evidence is written.
    (e) Substantiation of the business use of listed property made 
available by an employer for use by an employee--(1) Employee--(i) In 
general. An employee may not exclude from gross income as a working 
condition fringe any amount of the value of the availability of listed 
property provided by an employer to the employee, unless the employee 
substantiates for the period of availability the amount of the exclusion 
in accordance with the requirements of section 274(d) and either this 
section or Sec. 1.274-6T.
    (ii) Vehicles treated as used entirely for personal purposes. If an 
employer includes the value of the availability of a vehicle (as defined 
in Sec. 1.61-21(e)(2)) in an employee's gross income without taking 
into account any exclusion for a working condition fringe allowable 
under section 132 and the regulations thereunder with respect to the 
vehicle, the employee must substantiate any deduction claimed under 
Sec. Sec. 1.162-25 and 1.162-25T for the business/investment use of the 
vehicle in accordance with the requirements of section 274(d) and either 
this section or Sec. 1.274-6T.
    (2) Employer--(i) In general. An employer substantiates its 
business/investment use of listed property by showing either--
    (A) That, based on evidence that satisfies the requirements of 
section 274(d) or statements submitted by employees that summarize such 
evidence, all or a portion of the use of the listed property is by 
employees in the employer's trade or business and, if any employee used 
the property for personal purposes, the employer included an appropriate 
amount in the employee's income, or
    (B) In the case of a vehicle, the employer treats all use by 
employees as personal use and includes an appropriate amount in the 
employees' income.

[[Page 807]]

    (ii) Reliance on employee records. For purposes of substantiating 
the business/investment use of listed property that an employer provides 
to an employee and for purposes of the information required by paragraph 
(d)(2) and (3) of this section, the employer may rely on adequate 
records maintained by the employee or on the employee's own statement if 
corroborated by other sufficient evidence unless the employer knows or 
has reason to know that the statement, records, or other evidence are 
not accurate. The employer must retain a copy of the adequate records 
maintained by the employee or the other sufficient evidence, if 
available. Alternatively, the employer may rely on a statement submitted 
by the employee that provides sufficient information to allow the 
employer to determine the business/investment use of the property unless 
the employer knows or has reason to know that the statement is not based 
on adequate records or on the employee's own statement corroborated by 
other sufficient evidence. If the employer relies on the employee's 
statement, the employer must retain only a copy of the statement. The 
employee must retain a copy of the adequate records or other evidence.
    (f) Reporting and substantiation of expenses of certain employees 
for travel, entertainment, gifts, and with respect to listed property--
(1) In general. The purpose of this paragraph is to provide rules for 
reporting and substantiation of certain expenses paid or incurred by 
employees in connection with the performance of services as employees. 
For purposes of this paragraph, the term business expenses means 
ordinary and necessary expenses for travel, entertainment, gifts, or 
with respect to listed property which are deductible under section 162, 
and the regulations thereunder, to the extent not disallowed by section 
262, 274(c), and 280F. Thus, the term business expenses does not include 
personal, living, or family expenses disallowed by section 262, travel 
expenses disallowed by section 274(c), or cost recovery deductions and 
credits with respect to listed property disallowed by section 280F(d)(3) 
because the use of such property is not for the convenience of the 
employer and required as a condition of employment. Except as provided 
in paragraph (f)(2), advances, reimbursements, or allowances for such 
expenditures must be reported as income by the employee.
    (2) Reporting of expenses for which the employee is required to make 
an adequate accounting to his employer--(i) Reimbursements equal to 
expenses. For purposes of computing tax liability, an employee need not 
report on his tax return business expenses for travel, transportation, 
entertainment, gifts, or with respect to listed property, paid or 
incurred by him solely for the benefit of his employer for which he is 
required to, and does, make an adequate accounting to his employer (as 
defined in paragraph (f)(4) of this section) and which are charged 
directly or indirectly to the employer (for example, through credit 
cards) or for which the employee is paid through advances, 
reimbursements, or otherwise, provided that the total amount of such 
advances, reimbursements, and charges is equal to such expenses.
    (ii) Reimbursements in excess of expenses. In case the total of the 
amounts charged directly or indirectly to the employer or received from 
the employer as advances, reimbursements, or otherwise, exceeds the 
business expenses paid or incurred by the employee and the employee is 
required to, and does, make an adequate accounting to his employer for 
such expenses, the employee must include such excess (including amounts 
received for expenditures not deductible by him) in income.
    (iii) Expenses in excess of reimbursements. If an employee incurs 
deductible business expenses on behalf of his employer which exceed the 
total of the amounts charged directly or indirectly to the employer and 
received from the employer as advances, reimbursements, or otherwise, 
and the employee makes an adequate accounting to his employer, the 
employee must be able to substantiate any deduction for such excess with 
such records and supporting evidence as will substantiate each element 
of an expenditure (described in paragraph (b) of this section) in 
accordance with paragraph (c) of this section.

[[Page 808]]

    (3) Reporting of expenses for which the employee is not required to 
make an adequate accounting to his employer. If the employee is not 
required to make an adequate accounting to his employer for his business 
expenses or, though required, fails to make an adequate accounting for 
such expenses, he must submit, as a part of his tax return, the 
appropriate form issued by the Internal Revenue Service for claiming 
deductions for employee business expenses (e.g., Form 2106, Employee 
Business Expenses, for 1985) and provide the information requested on 
that form, including the information required by paragraph (d)(2) and 
(3) of this section if the employee's business expenses are with respect 
to the use of listed property. In addition, the employee must maintain 
such records and supporting evidence as will substantiate each element 
of an expenditure or use (described in paragraph (b) of this section) in 
accordance with paragraph (c) of this section.
    (4) [Reserved]. For further guidance, see Sec. 1.274-5(f)(4).
    (5) Substantiation of expenditures by certain employees. An employee 
who makes an adequate accounting to his employer within the meaning of 
this paragraph will not again be required to substantiate such expense 
account information except in the following cases:
    (i) An employee whose business expenses exceed the total of amounts 
charged to his employer and amounts received through advances, 
reimbursements or otherwise and who claims a deduction on his return for 
such excess,
    (ii) An employee who is related to his employer within the meaning 
of section 267(b), but for this purpose the percentage referred to in 
section 267(b)(2) shall be 10 percent, and
    (iii) Employees in cases where it is determined that the accounting 
procedures used by the employer for the reporting and substantiation of 
expenses by such employees are not adequate, or where it cannot be 
determined that such procedures are adequate. The district director will 
determine whether the employer's accounting procedures are adequate by 
considering the facts and circumstances of each case, including the use 
of proper internal controls. For example, an employer should require 
that an expense account be verified and approved by a reasonable person 
other than the person incurring such expenses. Accounting procedures 
will be considered inadequate to the extent that the employer does not 
require an adequate accounting from his employees as defined in 
paragraph (f)(4) of this section, or does not maintain such 
substantiation. To the extent an employer fails to maintain adequate 
accounting procedures he will thereby obligate his employees to 
substantiate separately their expense account information.
    (g) [Reserved]. For further guidance, see Sec. 1.274-5(g).
    (h) Reporting and substantiation of certain reimbursements of 
persons other than employees--(1) In general. The purpose of this 
paragraph is to provide rules for the reporting and substantiation of 
certain expenses for travel, entertainment, gifts, or with respect to 
listed property paid or incurred by one person (hereinafter termed 
``independent contractor'') in connection with services performed for 
another person other than an employer (hereinafter termed ``client or 
customer'') under a reimbursement or other expense allowance arrangement 
with such client or customer. For purposes of this paragraph, the term 
business expenses means ordinary and necessary expenses for travel, 
entertainment, gifts, or with respect to listed property which are 
deductible under section 162, and the regulations thereunder, to the 
extent not disallowed by sections 262 and 274(c). Thus, the term 
business expenses does not include personal, living, or family expenses 
disallowed by section 262 or travel expenses disallowed by section 
274(c), and reimbursements for such expenditures must be reported as 
income by the independent contractor. For purposes of this paragraph, 
the term reimbursements means advances, allowances, or reimbursements 
received by an independent contractor for travel, entertainment, gifts, 
or with respect to listed property in connection with the performance by 
him of services for his client or customer, under a reimbursement or 
other expense allowance arrangement with his client or customer, and 
includes amounts charged directly

[[Page 809]]

or indirectly to the client or customer through credit card systems or 
otherwise. See paragraph (j) of this section relating to the 
substantiation of meal expenses while traveling away from home.
    (2) Substantiation by independent contractors. An independent 
contractor shall substantiate, with respect to his reimbursements, each 
element of an expenditure (described in paragraph (b) of this section) 
in accordance with the requirements of paragraph (c) of this section; 
and, to the extent he does not so substantiate, he shall include such 
reimbursements in income. An independent contractor shall so 
substantiate a reimbursement for entertainment regardless of whether he 
accounts (within the meaning of paragraph (h)(3) of this section) for 
such entertainment.
    (3) Accounting to a client or customer under section 274(e)(4)(B). 
Section 274(e)(4)(B) provides that section 274(a) (relating to 
disallowance of expenses for entertainment) shall not apply to 
expenditures for entertainment for which an independent contractor has 
been reimbursed if the independent contractor accounts to his client or 
customer, to the extent provided by section 274(d). For purposes of 
section 274(e)(4)(B), an independent contractor shall be considered to 
account to his client or customer for an expense paid or incurred under 
a reimbursement or other expense allowance arrangement with his client 
or customer if, with respect to such expense for entertainment, he 
submits to his client or customer adequate records or other sufficient 
evidence conforming to the requirements of paragraph (c) of this 
section.
    (4) Substantiation by client or customer. A client or customer shall 
not be required to substantiate, in accordance with the requirements of 
paragraph (c) of this section, reimbursements to an independent 
contractor for travel and gifts, or for entertainment unless the 
independent contractor has accounted to him (within the meaning of 
section 274(e)(4)(B) and paragraph (h)(3) of this section) for such 
entertainment. If an independent contractor has so accounted to a client 
or customer for entertainment, the client or customer shall substantiate 
each element of the expenditure (as described in paragraph (b) of this 
section) in accordance with the requirements of paragraph (c) of this 
section.
    (i) [Reserved]
    (j) [Reserved]. For further guidance, see Sec. 1.274-5(j).
    (k) and (l) [Reserved] For further guidance, see Sec. 1.274-5(k) 
and (l).
    (m) Effective date. Section 274(d), as amended by the Tax Reform Act 
of 1984 and Public Law 99-44, and this section (except as provided in 
paragraph (d)(2) and (3) of this section) apply with respect to taxable 
years beginning after December 31, 1985. Section 274(d) and this section 
apply to any deduction or credit claimed in a taxable year beginning 
after December 31, 1985, with respect to any listed property, regardless 
of the taxable year in which the property was placed in service. 
However, except as provided in Sec. 1.132-5(h) with respect to 
qualified nonpersonal use vehicles, the substantiation requirements of 
section 274(d) and this section do not apply to the determination of an 
employee's working condition fringe exclusion or to the determination 
under Sec. 1.162-25(b) of an employee's deduction before the date that 
those requirements apply, under this paragraph (m), to the employer, if 
the employer is taxable. Paragraph (j)(3) of this section applies to 
expenses paid or incurred after September 30, 2002.

[T.D. 8061, 50 FR 46014, Nov. 6, 1985; as amended by T.D. 8063, 50 FR 
52312, Dec. 23, 1985; T.D. 8276, 54 FR 51027, Dec. 12, 1989; T.D. 8451, 
57 FR 57669, Dec. 7, 1992; T.D. 8601, 60 FR 36995, July 19, 1995; T.D. 
8715, 62 FR 13990, Mar. 25, 1997; T.D. 8864, 65 FR 4123, Jan. 26, 2000; 
T.D. 9020, 67 FR 68513, Nov. 12, 2002; T.D. 9020, 67 FR 72273, Dec. 4, 
2002; T.D. 9064, July 1, 2003; T.D. 9483, 75 FR 27937, May 19, 2010]



Sec. 1.274-6  Expenditures deductible without regard to trade or 
business or other income producing activity.

    The provisions of Sec. Sec. 1.274-1 through 1.274-5, inclusive, do 
not apply to any deduction allowable to the taxpayer without regard to 
its connection with the taxpayer's trade or business or other income 
producing activity. Examples of such items are interest, taxes such as 
real property taxes, and casualty losses. Thus, if a taxpayer owned a 
fishing camp, the taxpayer could still deduct mortgage interest

[[Page 810]]

and real property taxes in full even if deductions for its use are not 
allowable under section 274(a) and Sec. 1.274-2. In the case of a 
taxpayer which is not an individual, the provisions of this section 
shall be applied as if it were an individual. Thus, if a corporation 
sustains a casualty loss on an entertainment facility used in its trade 
or business, it could deduct the loss even though deductions for the use 
of the facility are not allowable.

[T.D. 8051, 50 FR 36576, Sept. 9, 1985]



Sec. 1.274-6T  Substantiation with respect to certain types of listed 
property for taxable years beginning after 1985 (temporary).

    (a) Written policy statements as to vehicles--(1) In general. Two 
types of written policy statements satisfying the conditions described 
in paragraph (a)(2) and (3) of this section, if initiated and kept by an 
employer to implement a policy of no personal use, or no personal use 
except for commuting, of a vehicle provided by the employer, qualify as 
sufficient evidence corroborating the taxpayer's own statement and 
therefore will satisfy the employer's substantiation requirements under 
section 274(d). Therefore, the employee need not keep a separate set of 
records for purposes of the employer's substantiation requirements under 
section 274(d) with respect to use of a vehicle satisfying these written 
policy statement rules. A written policy statement adopted by a 
governmental unit as to employee use of its vehicles is eligible for 
these exceptions to the section 274(d) substantiation rules. Thus, a 
resolution of a city council or a provision of state law or a state 
constitution would qualify as a written policy statement, as long as the 
conditions described in paragraph (a)(2) and (3) of this section are 
met.
    (2) Vehicles not used for personal purposes--(i) Employers. A policy 
statement that prohibits personal use by an employee satisfies an 
employer's substantiation requirements under section 274(d) if all the 
following conditions are met--
    (A) The vehicle is owned or leased by the employer and is provided 
to one or more employees for use in connection with the employer's trade 
or business,
    (B) When the vehicle is not used in the employer's trade or 
business, it is kept on the employer's business premises, unless it is 
temporarily located elsewhere, for example, for maintenance or because 
of a mechanical failure,
    (C) No employee using the vehicle lives at the employer's business 
premises,
    (D) Under a written policy of the employer, neither an employee, nor 
any individual whose use would be taxable to the employee, may use the 
vehicle for personal purposes, except for de minimis personal use (such 
as a stop for lunch between two business deliveries), and
    (E) The employer reasonably believes that, except for de minimis 
use, neither the employee, nor any individual whose use would be taxable 
to the employee, uses the vehicle for any personal purpose.

There must also be evidence that would enable the Commissioner to 
determine whether the use of the vehicle meets the preceding five 
conditions.
    (ii) Employees. An employee, in lieu of substantiating the business/
investment use of an employer-provided vehicle under Sec. 1.274-5T, may 
treat all use of the vehicle as business/investment use if the following 
conditions are met--
    (A) The vehicle is owned or leased by the employer and is provided 
to one or more employees for use in connection with the employer's trade 
or business,
    (B) When the vehicle is not used in the employer's trade or 
business, it is kept on the employer's business premises, unless it is 
temporarily located elsewhere, for example, for maintenance or because 
of a mechanical failure,
    (C) No employee using the vehicle lives at the employer's business 
premises,
    (D) Under a written policy of the employer, neither the employee, 
nor any individual whose use would be taxable to the employee, may use 
the vehicle for personal purposes, except for de minimis personal use 
(such as a stop for lunch between two business deliveries), and
    (E) Except for de minimis personal use, neither the employee, nor 
any individual whose use would be taxable to

[[Page 811]]

the employee, uses the vehicle for any personal purpose.

There must also be evidence that would enable the Commissioner to 
determine whether the use of the vehicle meets the preceding five 
conditions.
    (3) Vehicles not used for personal purposes other than commuting--
(i) Employers. A policy statement that prohibits personal use by an 
employee, other than commuting, satisfies an employer's substantiation 
requirements under section 274(d) if all the following conditions are 
met--
    (A) The vehicle is owned or leased by the employer and is provided 
to one or more employees for use in connection with the employer's trade 
or business and is used in the employer's trade or business,
    (B) For bona fide noncompensatory business reasons, the employer 
requires the employee to commute to and/or from work in the vehicle,
    (C) The employer has established a written policy under which 
neither the employee, nor any individual whose use would be taxable to 
the employee, may use the vehicle for personal purposes, other than for 
commuting or de minimis personal use (such as a stop for a personal 
errand on the way between a business delivery and the employee's home),
    (D) The employer reasonably believes that, except for de minimis 
personal use, neither the employee, nor any individual whose use would 
be taxable to the employee, uses the vehicle for any personal purpose 
other than commuting,
    (E) The employee required to use the vehicle for commuting is not a 
control employee (as defined in Sec. 1.61-2T(f) (5) and (6)) required 
to use an automobile (as defined in Sec. 1.61-2T(d)(1)(ii)), and
    (F) The employer accounts for the commuting use by including in the 
employee's gross income the commuting value provided in Sec. 1.61-
2T(f)(3) (to the extent not reimbursed by the employee).

There must be evidence that would enable the Commissioner to determine 
whether the use of the vehicle met the preceding six conditions.
    (ii) Employees. An employee, in lieu of substantiating the business/
investment use of an employer-provided vehicle under Sec. 1.274-5T, may 
substantiate any exclusion allowed under section 132 for a working 
condition fringe by including in income the commuting value of the 
vehicle (determined by the employer pursuant to Sec. 1.61-2T(f)(3)) if 
all the following conditions are met:
    (A) The vehicle is owned or leased by the employer and is provided 
to one or more employees for use in connection with the employer's trade 
or business and is used in the employer's trade or business,
    (B) For bona fide noncompensatory business reasons, the employer 
requires the employee to commute to and/or from work in the vehicle,
    (C) Under a written policy of the employer, neither the employee, 
nor any individual whose use would be taxable to the employee, may use 
the vehicle for personal purposes, other than for commuting or de 
minimis personal use (such as a stop for a personal errand on the way 
between a business delivery and the employee's home),
    (D) Except for de minimis personal use, neither the employee, nor 
any individual whose use would be taxable to the employee, uses the 
vehicle for any personal purpose other than commuting,
    (E) The employee required to use the vehicle for commuting is not a 
control employee (as defined in Sec. 1.61-2T(f) (5) and (6) required to 
use an automobile (as defined in Sec. 1.61-2T(d)(1)(ii)), and
    (F) The employee includes in gross income the commuting value 
determined by the employer as provided in Sec. 1.61-2T(f)(3) (to the 
extent that the employee does not reimburse the employer for the 
commuting use).

There must also be evidence that would enable the Commissioner to 
determine whether the use of the vehicle met the preceding six 
conditions.
    (b) Vehicles used in connection with the business of farming--(1) In 
general. If, during a taxable year or shorter period, a vehicle, not 
otherwise described in section 274(i), Sec. 1.274-5T(k), or paragraph 
(a) (2) or (3) of this section, is owned or leased by an employer and 
used during most of a normal business day directly in connection with 
the business of farming (as defined in paragraph (b)(2) of this 
section), the employer, in lieu of substantiating the use

[[Page 812]]

of the vehicle as prescribed in Sec. 1.274-5T(b)(6)(i)(B), may 
determine any deduction or credit with respect to the vehicle as if the 
business/investment use (as defined in Sec. 1.280F-6T(d)(3)(i)) and the 
qualified business use (as defined in Sec. 1.280F-6T(d)(2)) of the 
vehicle in the business of farming for the taxable year or shorter 
period were 75 percent plus that percentage, if any, attributable to an 
amount included in an employee's gross income. If the vehicle is also 
available for personal use by employees, the employer must include the 
value of that personal use in the gross income of the employees, 
allocated among them in the manner prescribed in Sec. 1.132-5T(g).
    (2) Directly in connection with the business of farming. The phrase 
directly in connection with the business of farming means that the 
vehicle must be used directly in connection with the business of 
operating a farm (i.e., cultivating land or raising or harvesting any 
agricultural or horticultural commodity, or the raising, shearing, 
feeding, caring for, training, and management of animals) or incidental 
thereto (for example, trips to the feed and supply store).
    (3) Substantiation by employees. If an employee is provided with the 
use of a vehicle to which this paragraph (b) applies, the employee may, 
in lieu of substantiating the business/investment use of the vehicle in 
the manner prescribed in Sec. 1.274-5T, substantiate any exclusion 
allowed under section 132 for a working condition fringe as if the 
business/investment use of the vehicle were 75 percent, plus that 
percentage, if any, determined by the employer to be attributable to the 
use of the vehicle by individuals other than the employee, provided that 
the employee includes in gross income the amount determined by the 
employer as includible in the employee's gross income. See Sec. 1.132-
5T(g)(3) for examples illustrating the allocation of use of a vehicle 
among employees.
    (c) Vehicles treated as used entirely for personal purposes. An 
employer may satisfy the substantiation requirements under section 
274(d) for a taxable year or shorter period with respect to the business 
use of a vehicle that is provided to an employee by including the value 
of the availability of the vehicle during the relevant period in the 
employee's gross income without any exclusion for a working condition 
fringe with respect to the vehicle and, if required, by withholding any 
taxes. Under these circumstances, the employer's business/investment use 
of the vehicle during the relevant period is 100 percent. The employer's 
qualified business use of the vehicle is dependent upon the relationship 
of the employee to the employer (see Sec. 1.280F-6T(d)(2)).
    (d) Limitation. If a taxpayer chooses to satisfy the substantiation 
requirements of section 274(d) and Sec. 1.274-5T by using one of the 
methods prescribed in paragraphs (a) (2) or (3), (b), or (c) of this 
section and files a return with the Internal Revenue Service for a 
taxable year consistent with such choice, the taxpayer may not later use 
another of these methods. Similarly, if a taxpayer chooses to satisfy 
the substantiation requirements of section 274(d) in the manner 
prescribed in Sec. 1.274-5T and files a return with the Internal 
Revenue Service for a taxable year consistent with such choice, the 
taxpayer may not later use a method prescribed in paragraph (a) (2) or 
(3), (b), or (c) of this section. This rule applies to an employee for 
purposes of substantiating any working condition fringe exclusion as 
well as to an employer. For example, if an employee excludes on his 
federal income tax return for a taxable year 90 percent of the value of 
the availability of an employer-provided automobile on the basis of 
records that allegedly satisfy the ``adequate records'' requirement of 
Sec. 1.274-5T(c)(2), and that requirement is not satisfied, then the 
employee may not satisfy the substantiation requirements of section 
274(d) for the taxable year by any method prescribed in this section, 
but may present other corroborative evidence as prescribed in Sec. 
1.274-5T(c)(3).
    (e) Definitions--(1) In general. The definitions provided in this 
paragraph (e) apply for purposes of section 274(d), Sec. 1.274-5T, and 
this section.
    (2) Employer and employee. The terms employer and employee include 
the following:
    (i) A sole proprietor shall be treated as both an employer and 
employee,

[[Page 813]]

    (ii) A partnership shall be treated as an employer of its partners, 
and
    (iii) A partner shall be treated as an employee of the partnership.
    (3) Automobile. The term automobile has the same meaning as 
prescribed in Sec. 1.61-2T(d)(1)(ii).
    (4) Vehicle. The term vehicle has the same meaning as prescribed in 
Sec. 1.61-2T(e)(2).
    (5) Personal use. Personal use by an employee of an employer-
provided vehicle includes use in any trade or business other than the 
trade or business of being the employee of the employer providing the 
vehicle.
    (f) Effective date. This section is effective for taxable years 
beginning after December 31, 1985.

[T.D. 8061, 50 FR 46037, Nov. 6, 1985; as amended by T.D. 8063, 50 FR 
52312, Dec. 23, 1985]



Sec. 1.274-7  Treatment of certain expenditures with respect to 
entertainment-type facilities.

    If deductions are disallowed under Sec. 1.274-2 with respect to any 
portion of a facility, such portion shall be treated as an asset which 
is used for personal, living, and family purposes (and not as an asset 
used in a trade or business). Thus, the basis of such a facility will be 
adjusted for purposes of computing depreciation deductions and 
determining gain or loss on the sale of such facility in the same manner 
as other property (for example, a residence) which is regarded as used 
partly for business and partly for personal purposes.

[T.D. 6659, 28 FR 6507, June 25, 1963]



Sec. 1.274-8  Effective date.

    Except as provided in Sec. 1.274-2 (a) and (e), Sec. Sec. 1.274-1 
through 1.274-7 apply with respect to taxable years ending after 
December 31, 1962, but only in respect of periods after such date.

[T.D. 8051, 50 FR 36576, Sept. 9, 1985]



Sec. 1.274-9  Entertainment provided to specified individuals.

    (a) In general. Paragraphs (e)(2) and (e)(9) of section 274 provide 
exceptions to the disallowance of section 274(a) for expenses for 
entertainment, amusement, or recreation activities, or for an 
entertainment facility. In the case of a specified individual (as 
defined in paragraph (b) of this section), the exceptions of paragraphs 
(e)(2) and (e)(9) of section 274 apply only to the extent that the 
expenses do not exceed the amount of the expenses treated as 
compensation (under section 274(e)(2)) or as income (under section 
274(e)(9)) to the specified individual. The amount disallowed is reduced 
by any amount that the specified individual reimburses a taxpayer for 
the entertainment.
    (b) Specified individual defined. (1) A specified individual is an 
individual who is subject to section 16(a) of the Securities Act of 1934 
in relation to the taxpayer, or an individual who would be subject to 
section 16(a) if the taxpayer were an issuer of equity securities 
referred to in that section. Thus, for example, a specified individual 
is an officer, director, or more than 10 percent owner of a corporation 
taxed under subchapter C or subchapter S or a personal service 
corporation. A specified individual includes every individual who--
    (i) Is the direct or indirect beneficial owner of more than 10 
percent of any class of any registered equity (other than an exempted 
security);
    (ii) Is a director or officer of the issuer of the security;
    (iii) Would be the direct or indirect beneficial owner of more than 
10 percent of any class of a registered security if the taxpayer were an 
issuer of equity securities; or
    (iv) Is comparable to an officer or director of an issuer of equity 
securities.
    (2) For partnership purposes, a specified individual includes any 
partner that holds more than a 10 percent equity interest in the 
partnership, or any general partner, officer, or managing partner of a 
partnership.
    (3) For purposes of this section, officer has the same meaning as in 
17 CFR Sec. 240.16a-1(f).
    (4) A specified individual includes a director or officer of a tax-
exempt entity.
    (5) A specified individual of a taxpayer includes a specified 
individual of a party related to the taxpayer within the meaning of 
section 267(b) or section 707(b).

[[Page 814]]

    (c) Specified individual treated as recipient of entertainment 
provided to others. For purposes of section 274(a), a specified 
individual is treated as the recipient of entertainment provided to 
another individual because of the relationship of the other individual 
to the specified individual if the entertainment is a fringe benefit to 
the specified individual under section 61(a)(1) (without regard to any 
exclusions from gross income). Thus, expenses allocable to entertainment 
provided to the other individual are attributed to the specified 
individual for purposes of determining the amount of disallowed 
expenses.
    (d) Entertainment use of aircraft by specified individuals. For 
rules relating to entertainment use of aircraft by specified 
individuals, see Sec. 1.274-10.
    (e) Effective/applicability date. This section applies to taxable 
years beginning after August 1, 2012.

[T.D. 9597, 77 FR 45483, Aug. 1, 2012]



Sec. 1.274-10  Special rules for aircraft used for entertainment.

    (a) Use of an aircraft for entertainment--(1) In general. Section 
274(a) disallows a deduction for certain expenses for entertainment, 
amusement, or recreation activities, or for an entertainment facility. 
Under section 274(a) and this section, no deduction otherwise allowable 
under chapter 1 is allowed for expenses for the use of a taxpayer-
provided aircraft for entertainment, except as provided in paragraph 
(a)(2) of this section.
    (2) Exceptions--(i) In general. Paragraph (a)(1) of this section 
does not apply to deductions for expenses for business entertainment air 
travel or to deductions for expenses that meet the exceptions of section 
274(e), Sec. 1.274-2(f), and this section. Section 274(e)(2) and (e)(9) 
provides certain exceptions to the disallowance of section 274(a) for 
expenses for goods, services, and facilities for entertainment, 
recreation, or amusement.
    (ii) Expenses treated as compensation--(A) Employees who are not 
specified individuals. Section 274(a), Sec. 1.274-2(a) through (d), and 
paragraph (a)(1) of this section, in accordance with section 
274(e)(2)(A), do not apply to expenses for entertainment air travel 
provided to an employee who is not a specified individual to the extent 
that a taxpayer--
    (1) Properly treats the expenses relating to the recipient of 
entertainment as compensation to an employee under chapter 1 and as 
wages to the employee for purposes of chapter 24; and
    (2) Treats the proper amount as compensation to the employee under 
Sec. 1.61-21.
    (B) Persons who are not employees and are not specified individuals. 
Section 274(a), Sec. 1.274-2(a) through (d), and paragraph (a)(1) of 
this section, in accordance with section 274(e)(9), do not apply to 
expenses for entertainment air travel provided to a person who is not an 
employee and is not a specified individual to the extent that the 
expenses are includible in the income of that person. This exception 
does not apply to any amount paid or incurred by the taxpayer that is 
required to be included in any information return filed by the taxpayer 
under part III of subchapter A of chapter 61 and is not so included.
    (C) Specified individuals. Section 274(a), Sec. 1.274-2(a) through 
(d), and paragraph (a)(1) of this section, in accordance with section 
274(e)(2)(B), do not apply to expenses for entertainment air travel of a 
specified individual to the extent that the amount of the expenses do 
not exceed the sum of--
    (1) The amount treated as compensation to or included in the income 
of the specified individual in the manner specified under paragraph 
(a)(2)(ii)(A)(1) of this section (if the specified individual is an 
employee) or under paragraph (a)(2)(ii)(B) of this section (if the 
specified individual is not an employee); and
    (2) Any amount the specified individual reimburses the taxpayer.
    (iii) Travel on regularly scheduled commercial airlines. Section 
274(a), Sec. 1.274-2(a) through (d), and paragraph (a)(1) of this 
section do not apply to expenses for entertainment air travel that a 
taxpayer that is a commercial passenger airline provides to specified 
individuals of the taxpayer on the taxpayer's regularly scheduled 
flights on which at least 90 percent of the seats are available for sale 
to the public to the extent

[[Page 815]]

the expenses are includible in the income of the recipient of the 
entertainment in the manner specified under paragraph (a)(2)(ii)(A)(1) 
of this section (if the specified individual is an employee) or under 
paragraph (a)(2)(ii)(B) of this section (if the specified individual is 
not an employee).
    (b) Definitions. The definitions in this paragraph (b) apply for 
purposes of this section.
    (1) Entertainment. For the definition of entertainment for purposes 
of this section, see Sec. 1.274-2(b)(1). Entertainment does not include 
personal travel that is not for entertainment purposes. For example, 
travel to attend a family member's funeral is not entertainment.
    (2) Entertainment air travel. Entertainment air travel is any travel 
aboard a taxpayer-provided aircraft for entertainment purposes.
    (3) Business entertainment air travel. Business entertainment air 
travel is any entertainment air travel aboard a taxpayer-provided 
aircraft that is directly related to the active conduct of the 
taxpayer's trade or business or related to an expenditure directly 
preceding or following a substantial and bona fide business discussion 
and associated with the active conduct of the taxpayer's trade or 
business. See Sec. 1.274-2(a)(1)(i) and (ii). Air travel is not 
business entertainment air travel merely because a taxpayer-provided 
aircraft is used for the travel as a result of a bona fide security 
concern under Sec. 1.132-5(m).
    (4) Taxpayer-provided aircraft. A taxpayer-provided aircraft is any 
aircraft owned by, leased to, or chartered to, a taxpayer or any party 
related to the taxpayer (within the meaning of section 267(b) or section 
707(b)).
    (5) Specified individual. For rules relating to the definition of a 
specified individual, see Sec. 1.274-9.
    (c) Amount disallowed. Except as otherwise provided, the amount 
disallowed under this section for an entertainment flight by a specified 
individual is the amount of expenses allocable to the entertainment 
flight of the specified individual under paragraph (e)(2), (e)(3), or 
(f)(3) of this section, reduced (but not below zero) by the amount the 
taxpayer treats as compensation or reports as income under paragraph 
(a)(2)(ii)(C)(1) of this section to the specified individual, plus any 
amount the specified individual reimburses the taxpayer.
    (d) Expenses subject to disallowance under this section--(1) 
Definition of expenses. In determining the amount of expenses subject to 
disallowance under this section, a taxpayer must include all of the 
expenses of operating the aircraft, including all fixed and variable 
expenses the taxpayer deducts in the taxable year. These expenses 
include, but are not limited to, salaries for pilots, maintenance 
personnel, and other personnel assigned to the aircraft; meal and 
lodging expenses of flight personnel; take-off and landing fees; costs 
for maintenance flights; costs of on-board refreshments, amenities and 
gifts; hangar fees (at home or away); management fees; costs of fuel, 
tires, maintenance, insurance, registration, certificate of title, 
inspection, and depreciation; interest on debt secured by or properly 
allocated (within the meaning of Sec. 1.163-8T) to an aircraft; and all 
costs paid or incurred for aircraft leased or chartered to the taxpayer.
    (2) Leases or charters to third parties. Expenses allocable to a 
lease or charter of a taxpayer's aircraft to an unrelated (as determined 
under section 267(b) or 707(b)) third-party in a bona-fide business 
transaction for adequate and full consideration are excluded from the 
definition of expenses in paragraph (d)(1) of this section. Only 
expenses allocable to the lease or charter period are excluded under 
this paragraph (d)(2).
    (3) Straight-line method permitted for determining depreciation 
disallowance under this section--(i) In general. In lieu of the amount 
of depreciation deducted in the taxable year, solely for purposes of 
paragraph (d)(1) of this section, a taxpayer may elect to treat as its 
depreciation deduction the amount that would result from using the 
straight-line method of depreciation over the class life (as defined by 
section 168(i)(1) and using the applicable convention under section 
168(d)) of an aircraft, even if the taxpayer uses a different 
methodology to calculate depreciation for the aircraft under other 
sections of

[[Page 816]]

the Internal Revenue Code (for example, section 168). If the property 
qualifies for the additional first-year depreciation deduction provided 
by, for example, section 168(k), 168(n), 1400L(b), or 1400N(d), 
depreciation for purposes of this straight-line election is determined 
on the unadjusted depreciable basis (as defined in Sec. 1.168(b)-
1(a)(3)) of the property. However, the amount of depreciation disallowed 
as a result of this paragraph (d)(3) for any taxable year cannot exceed 
a taxpayer's allowable depreciation for that taxable year. For purposes 
of this section, a taxpayer that elects to use the straight-line method 
and class life under this paragraph (d)(3) for any aircraft it operates 
must use that methodology for all depreciable aircraft it operates and 
must continue to use the methodology for the entire period the taxpayer 
uses any depreciable aircraft.
    (ii) Aircraft placed in service in earlier taxable years. The amount 
of depreciation for purposes of this paragraph (d)(3) for aircraft 
placed in service in taxable years before the taxable year of the 
election is determined by applying the straight-line method of 
depreciation to the unadjusted depreciable basis (or, for property 
acquired in an exchange to which section 1031 applies, the basis of the 
aircraft as determined under section 1031(d)) and over the class life 
(using the applicable convention under section 168(d)) of the aircraft 
as though the taxpayer used that methodology from the year the aircraft 
was placed in service.
    (iii) Manner of making and revoking election. A taxpayer makes the 
election under this paragraph (d)(3) by filing an income tax return for 
the taxable year that determines the taxpayer's expenses for purposes of 
paragraph (d)(1) of this section by computing depreciation under this 
paragraph (d)(3). A taxpayer may revoke an election only for compelling 
circumstances upon consent of the Commissioner by private letter ruling.
    (4) Aggregation of aircraft--(i) In general. A taxpayer may 
aggregate the expenses of aircraft of similar cost profiles for purposes 
of calculating disallowed expenses under paragraph (c) of this section.
    (ii) Similar cost profiles. Aircraft are of similar cost profiles if 
their operating costs per mile or per hour of flight are comparable. 
Aircraft must have the same engine type (jet or propeller) and the same 
number of engines to have similar cost profiles. Other factors to be 
considered in determining whether aircraft have similar cost profiles 
include, but are not limited to, maximum take-off weight, payload, 
passenger capacity, fuel consumption rate, age, maintenance costs, and 
depreciable basis.
    (5) Authority for establishing safe harbors for determining 
expenses. The Commissioner may establish in published guidance, see 
Sec. 601.601(d)(2) of this chapter, one or more safe harbor methods 
under which a taxpayer may determine the amount of expenses paid or 
incurred for entertainment flights.
    (e) Allocation of expenses--(1) General rule. For purposes of 
determining the expenses allocated to entertainment air travel of a 
specified individual under paragraph (a)(2)(ii)(C) of this section, a 
taxpayer must use either the occupied seat hours or miles method of 
paragraph (e)(2) of this section or the flight-by-flight method of 
paragraph (e)(3) of this section. A taxpayer must use the chosen method 
for all flights of all aircraft for the taxable year.
    (2) Occupied seat hours or miles method--(i) In general. The 
occupied seat hours or miles method determines the amount of expenses 
allocated to a particular entertainment flight of a specified individual 
based on the occupied seat hours or miles for an aircraft for the 
taxable year. Under this method, a taxpayer may choose to use either 
occupied seat hours or miles for the taxable year to determine the 
amount of expenses allocated to entertainment flights of specified 
individuals, but must use occupied seat hours or miles consistently for 
all flights of all aircraft for the taxable year.
    (ii) Computation under the occupied seat hours or miles method. The 
amount of expenses allocated to an entertainment flight taken by a 
specified individual is computed under the occupied seat hours or miles 
method by determining--
    (A) The total expenses for the year under paragraph (d) of this 
section for

[[Page 817]]

the aircraft or group of aircraft (if aggregated under paragraph (d)(4) 
of this section), as applicable;
    (B) The number of occupied seat hours or miles for the taxable year 
for the aircraft or group of aircraft by totaling the occupied seat 
hours or miles of all flights in the taxable year flown by the aircraft 
or group of aircraft, as applicable. The occupied seat hours or miles 
for a flight is the number of hours or miles flown for the flight 
multiplied by the number of seats occupied on that flight. For example, 
a flight of 6 hours with three passengers results in 18 occupied seat 
hours;
    (C) The cost per occupied seat hour or mile for the aircraft or 
group of aircraft, as applicable, by dividing the total expenses under 
paragraph (e)(2)(ii)(A) of this section by the total number of occupied 
seat hours or miles under paragraph (e)(2)(ii)(B) of this section; and
    (D) The amount of expenses allocated to an entertainment flight 
taken by a specified individual by multiplying the number of hours or 
miles of the flight by the cost per occupied hour or mile for that 
aircraft or group of aircraft, as applicable, as determined under 
paragraph (e)(2)(ii)(C) of this section.
    (iii) Allocation of expenses of multi-leg trips involving both 
business and entertainment legs. A taxpayer that uses the occupied seat 
hours or miles allocation method must allocate the expenses of a trip by 
a specified individual that involves at least one segment for business 
and one segment for entertainment between the business travel and the 
entertainment travel unless none of the expenses for the entertainment 
segment are disallowed. The entertainment cost of a multi-leg trip is 
the total cost of the flights (by occupied seat hours or miles) minus 
the cost of the flights that would have been taken without the 
entertainment segment or segments.
    (iv) Examples. The following examples illustrate the provisions of 
this paragraph (e)(2):

    Example 1. (i) A taxpayer-provided aircraft is used for Flights 1, 
2, and 3, of 5 hours, 5 hours, and 4 hours, respectively, during the 
Taxpayer's taxable year. Each flight carries four passengers. On Flight 
1, none of the passengers is a specified individual. On Flight 2, 
passengers A and B are specified individuals traveling for entertainment 
purposes and passengers C and D are not specified individuals. For 
Flight 2, Taxpayer treats $1,200 as compensation to A, and B reimburses 
Taxpayer $500. On Flight 3, all four passengers (A, B, E, and F) are 
specified individuals traveling for entertainment purposes. For Flight 
3, Taxpayer treats $1,300 each as compensation to A, B, E, and F. 
Taxpayer incurs $56,000 in expenses for the operation of the aircraft 
for the taxable year. The aircraft is operated for 56 occupied seat 
hours for the period (four passengers times 5 hours (20 occupied seat 
hours) for Flight 1, plus four passengers times 5 hours (20 occupied 
seat hours) for Flight 2, plus four passengers times 4 hours (16 
occupied seat hours) for Flight 3. The cost per occupied seat hour is 
$1,000 ($56,000/56 hours).
    (ii) For purposes of determining the amount disallowed (to the 
extent not treated as compensation or reimbursed) for entertainment 
provided to specified individuals, $5,000 ($1,000 x 5 hours) each is 
allocable to A and B for Flight 2, and $4,000 ($1,000 x 4 hours) each is 
allocable to A, B, E, and F for Flight 3.
    (iii) For Flight 2, because Taxpayer treats $1,200 as compensation 
to A, and B reimburses Taxpayer $500, Taxpayer may deduct $1,700 of the 
cost of Flight 2 allocable to A and B. The deduction for the remaining 
$8,300 cost allocable to entertainment provided to A and B on Flight 2 
is disallowed (for A, $5,000 less the $1,200 treated as compensation, 
and for B, $5,000 less the $500 reimbursed).
    (iv) For Flight 3, because Taxpayer treats $1,300 each as 
compensation to A, B, E, and F, Taxpayer may deduct $5,200 of the cost 
of Flight 3. The deduction for the remaining $10,800 cost allocable to 
entertainment provided to A, B, E, and F on Flight 3 is disallowed 
($4,000 less the $1,300 treated as compensation to each specified 
individual).

    Example 2. (i) G, a specified individual, is the sole passenger on 
an aircraft that makes three flights. First, G travels on a two-hour 
flight from City A to City B for business purposes. G then travels on a 
three-hour flight from City B to City C for entertainment purposes, and 
returns from City C to City A on a four-hour flight. G's flights have 
resulted in nine occupied seat hours (two for the first segment, plus 
three for the second segment, plus four for the third segment). If G had 
returned directly to City A from City B, the flights would have resulted 
in four occupied seat hours.
    (ii) Under paragraph (e)(2)(iii) of this section, five occupied seat 
hours are allocable to G's entertainment (nine total occupied seat hours 
minus the four occupied seat hours that would have resulted if the 
travel had been a roundtrip business trip without

[[Page 818]]

the entertainment segment). If Taxpayer's cost per occupied seat hour 
for the year is $1,000, $5,000 is allocated to G's entertainment use of 
the aircraft ($1,000 x five occupied seat hours). The amount disallowed 
is $5,000 minus the total of any amount the Taxpayer treats as 
compensation to G plus any amount that G reimburses Taxpayer.

    (3) Flight-by-flight method--(i) In general. The flight-by-flight 
method determines the amount of expenses allocated to a particular 
entertainment flight of a specified individual on a flight-by-flight 
basis by allocating expenses to individual flights and then to a 
specified individual traveling for entertainment purposes on that 
flight.
    (ii) Allocation of expenses. A taxpayer using the flight-by-flight 
method must combine all expenses (as defined in paragraph (d)(1) of this 
section) for the taxable year for the aircraft or group of aircraft (if 
aggregated under paragraph (d)(4) of this section), as applicable, and 
divide the total amount of expenses by the number of flight hours or 
miles for the taxable year for that aircraft or group of aircraft, as 
applicable, to determine the cost per hour or mile. Expenses are 
allocated to each flight by multiplying the number of miles for the 
flight by the cost per mile or the number of hours for the flight by the 
cost per hour. The expenses for the flight then are allocated to the 
passengers on the flight per capita. Thus, if five passengers are 
traveling on a flight, and the total expense allocated to the flight is 
$10,000, the expense allocable to each passenger is $2,000.
    (f) Special rules--(1) Determination of basis. (i) If any deduction 
for depreciation is disallowed under this section, the rules of Sec. 
1.274-7 apply. In that case, the basis of an aircraft is not reduced for 
the amount of depreciation disallowed under this section.
    (ii) The provisions of this paragraph (f)(1) are illustrated by the 
following examples:

    Example 1. (i) B Co. is a calendar-year taxpayer that owns an 
aircraft not used in commercial or contract carrying of passengers or 
freight. The aircraft is placed in service on July 1 of Year 1 and has 
an unadjusted depreciable basis of $1,000,000. The class life of the 
aircraft for depreciation purposes is 6 years. For determining 
depreciation under section 168, B Co. uses the optional depreciation 
table that corresponds with the general depreciation system, the 200 
percent declining balance method of depreciation, a 5-year recovery 
period, and the half-year convention. For determining the depreciation 
disallowance for each year under paragraph (d)(3) of this section, B Co. 
elects to use the straight-line method of depreciation and the class 
life of 6 years and, therefore, uses the optional depreciation table for 
purposes of section 168 that corresponds with the straight-line method 
of depreciation, a recovery period of 6 years, and the half-year 
convention. In each year, the aircraft entertainment use subject to 
disallowance under this section is 10 percent of the total use.
    (ii) B Co. calculates the depreciation and basis of the aircraft as 
follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     200 Percent
                                      declining     Straight         Depreciation
                                       balance        line        disallowance under        Depreciation      Sec. 1.274-7 Basis    Suspended basis.
                                    depreciation  depreciation       section 274             deduction            of  aircraft
                                       amount        amount
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1............................       200,000        83,300  8,330. (.10 x 83,300)  191,670 (200,000       808,330 (1,000,000    8,330.
                                                                                        minus 8,330).          minus 191,670).
Year 2............................       320,000       166,700  16,670 (.10 x          303,330 (320,000       505,000 (808,330      25,000 (8,300 plus
                                                                 166,700).              minus 16,670).         minus 303,330).       16,670).
Year 3............................       192,000       166,700  16,670 (.10 x          175,330 (192,000       329,670 (505,000      41,670 (25,000 plus
                                                                 166,700).              minus 16,670).         minus 175,330).       16,670).
Year 4............................       115,200       166,700  16,670 (.10 x          98,530 (115,200 minus  231,140 (329,670      58,340 (41,670 plus
                                                                 166,700).              16,670).               minus 98,530).        16,670).
Year 5............................       115,200       166,600  16,660 (.10 x          98,540 (115,200 minus  132,600 (231,140      75,000 (58,340 plus
                                                                 166,600).              16,660).               minus 98,540).        16,660).
Year 6............................        57,600       166,700  16,670 (.10 x          40,930 (57,600 minus   91,670 (132,600       91,670 (75,000 plus
                                                                 166,700).              16,670).               minus 40,930).        16,670).
Year 7............................  ............        83,300  8,330 (.10 x 83,300).  .....................  91,670..............  91,670.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (iii) In Year 7, there is no further deduction for depreciation of 
the aircraft, therefore, under paragraph (d)(3) of this section, no 
depreciation expense is disallowed. Under Sec. 1.274-7 and this 
paragraph (f)(1), basis is not

[[Page 819]]

reduced for disallowed depreciation. Therefore, at the end of Year 7, 
the basis of the aircraft for purposes of Sec. 1.274-7 is $91,670, 
which is the total amount of disallowed depreciation in Years 1 through 
6. B Co.'s deductions for depreciation total $908,330, which added to 
$91,670 equals $1,000,000.
    Example 2. (i) The facts are the same as in Example 1, except that B 
Co. does not elect to use the straight-line method of depreciation under 
paragraph (d)(3) of this section until Year 3.
    (ii) B Co. calculates the depreciation and basis of the aircraft as 
follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     200 Percent
                                      declining     Straight         Depreciation
                                       balance        line        disallowance under        Depreciation       Sec. 1.274 Basis     Suspended basis.
                                    depreciation  depreciation       section 274             deduction            of  aircraft
                                       amount        amount
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1............................       200,000  ............  20,000 (.10 x          180,000..............  820,000 (1,000,000    20,000.
                                                                 200,000).                                     minus 180,000).
Year 2............................       320,000  ............  32,000 (.10 x          288,000 (320,000       532,000 (820,000      52,000 (20,000 plus
                                                                 320,000).              minus 32,000).         minus 288,000).       32,000).
Year 3............................       192,000       166,700  16,670 (.10 x          175,330 (192,000       356,670 (532,000      68,670 (52,000 plus
                                                                 166,700).              minus 16,670).         minus 175,330).       16,670).
Year 4............................       115,200       166,700  16,670 (.10 x          98,530 (115,200 minus  258,140 (356,670      85,340 (68,670 plus
                                                                 166,700).              16,670).               minus 98,530).        16,670).
Year 5............................       115,200       166,600  16,660 (.10 x          98,540 (115,200 minus  159,600 (258,140      102,000 (85,340 plus
                                                                 166,600).              16,660).               minus 98,540).        16,660).
Year 6............................        57,600       166,700  16,670 (.10 x          40,930 (57,600 minus   118,670 (159,600      118,670 (102,000
                                                                 166,700).              16,670).               minus 40,930).        plus 16,670).
Year 7............................  ............        83,300  8,330 (.10 x 83,300).  0....................  118,670.............  118,670.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (iii) In Year 7, there is no further deduction for depreciation of 
the aircraft, therefore, under paragraph (d)(3) of this section, no 
depreciation expense is disallowed. Under Sec. 1.274-7 and this 
paragraph (f)(1), basis is not reduced for disallowed depreciation. 
Therefore, at the end of Year 7, the basis of the aircraft for purposes 
of Sec. 1.274-7 is $118,670, which is the total amount of disallowed 
depreciation in Years 1 through 6. B Co.'s deductions for depreciation 
total $881,330, which added to $118,670 equals $1,000,000.
    (2) Pro rata disallowance. (i) The amount of disallowed expenses, 
and any amounts reimbursed or treated as compensation, under this 
section are applied on a pro rata basis to all of the categories of 
expenses subject to disallowance under this section.
    (ii) The provisions of this paragraph (f)(2) are illustrated by the 
following example:

    Example. (i) C Co. owns an aircraft that it uses for business and 
other purposes. The expenses of operating the aircraft in the current 
year total $1,000,000. This amount includes $250,000 for depreciation 
(25 percent of total expenses).
    (ii) In the same year, the aircraft entertainment use subject to 
disallowance under this section is 20 percent of the total use and C Co. 
treats $80,000 as compensation to specified individuals. Thus, the 
amount of the disallowance under this section is $120,000 ($1,000,000 x 
20 percent ($200,000) less $80,000).
    (iii) Under paragraph (f)(2) of this section, C Co. may calculate 
the amount by which a category of expense, such as depreciation, is 
disallowed by multiplying the total disallowance of $120,000 by the 
ratio of the amount of the expense to total expenses. Thus, $30,000 of 
the $120,000 total disallowed expenses is depreciation ($250,000/
$1,000,000 (25 percent) x $120,000).
    (iv) The result is the same if C Co. separately calculates the 
amount of depreciation in total disallowed expenses and in the amount 
treated as compensation and nets the result. Depreciation is 25 percent 
of total expenses, thus, the amount of depreciation in disallowed 
expenses is $50,000 (25 percent x $200,000 total disallowed expenses) 
and the amount of depreciation treated as compensation is $20,000 (25 
percent x $80,000). Disallowed depreciation is $50,000 less $20,000, or 
$30,000.

    (3) Deadhead flights. (i) For purposes of this section, an aircraft 
returning without passengers after discharging passengers or flying 
without passengers to pick up passengers (deadheading) is treated as 
having the same number and character of passengers as the leg of the 
trip on which passengers are aboard for purposes of allocating expenses 
under paragraphs (e)(2) or (e)(3) of this section. For example, when an 
aircraft travels from point A to point B and then back to point A, and 
one of the legs is a deadhead flight, for determination of

[[Page 820]]

disallowed expenses, the aircraft is treated as having made both legs of 
the trip with the same passengers aboard for the same purposes.
    (ii) When a deadhead flight does not occur within a roundtrip 
flight, but occurs between two unrelated flights involving more than two 
destinations (such as an occupied flight from point A to point B, 
followed by a deadhead flight from point B to point C, and then an 
occupied flight from point C to point A), the allocation of passengers 
and expenses to the deadhead flight occurring between the two occupied 
trips must be based solely on the number of passengers on board for the 
two occupied legs of the flight, the character of the travel of the 
passengers on board (entertainment or nonentertainment) and the length 
in hours or miles of the two occupied legs of the flight.
    (iii) The provisions of this paragraph (f)(3) are illustrated by the 
following examples:

    Example 1. (i) Aircraft flies from City A to City B, a 6-hour trip, 
with 12 passengers aboard. Eight of the passengers are traveling for 
business and four of the passengers are specified individuals traveling 
for entertainment purposes. The aircraft flies empty (deadheads) from 
City B to City C, a 4-hour trip. At City C it picks up 12 passengers, 
six of whom are traveling for business and six of whom are specified 
individuals traveling for entertainment purposes, for a 2-hour trip to 
City A. The taxpayer uses the occupied seat hour method of allocating 
expenses.
    (ii) The two legs of the trip on which the aircraft is occupied 
comprise 96 occupied seat hours (12 passengers x 6 hours (72) for the 
first leg plus 12 passengers x 2 hours (24) for the third leg). Sixty 
occupied seat hours are for business (8 passengers x 6 hours (48) for 
the first leg plus 6 passengers x 2 (12) hours for the third leg) and 36 
occupied seat hours are for entertainment purposes (4 passengers x 6 
hours (24) for the first leg plus 6 passengers x 2 (12) hours for the 
third leg). Dividing the 36 occupied seat entertainment hours by 96 
total occupied seat hours, 37.5 percent of the total occupied seat hours 
of the two occupied flights are for entertainment.
    (iii) The 4-hour deadhead leg comprises one-third of the total 
flight time of 12 hours. Therefore, the deadhead flight is deemed to 
have provided one-third of the total 96 occupied seat hours, or 32 
occupied seat hours (96 x \1/3\ = 32). Of the 32 deemed occupied seat 
hours, 37.5 percent, or 12 deemed occupied seat hours, are treated as 
entertainment under paragraph (f)(3)(ii) of this section. The 32 deemed 
occupied seat hours for the deadhead flight are included in the 
calculation under paragraph (e)(2)(ii)(B) of this section and expenses 
are allocated under paragraph (e)(2)(ii)(D) of this section to the 12 
deemed occupied seat hours treated as entertainment.
    Example 2. (i) The facts are the same as for Example 1, but the 
taxpayer uses the flight-by-flight method of allocation.
    (ii) Of the 24 passengers on the occupied flights, 10 passengers, or 
41.7 percent, are traveling for entertainment purposes. If the annual 
cost per flight hour calculated under paragraph (e)(3)(ii) of this 
section is $1,000, $4,000 is allocated to the 4-hour deadhead leg. Under 
paragraph (f)(3)(ii) of this section, 41.7 percent of the $4,000, or 
$1,667, is treated as an expense for entertainment. The calculation of 
the cost per mile or hour for the year under paragraph (e)(3)(ii) of 
this section includes the expenses and number of miles or hours flown 
for the deadhead leg.

    (g) Effective/applicability date. This section applies to taxable 
years beginning after August 1, 2012.

[T.D. 9597, 77 FR 45483, Aug. 1, 2012]



Sec. 1.275-1  Deduction denied in case of certain taxes.

    For description of the taxes for which a deduction is denied under 
section 275, see paragraphs (a), (b), (c), (e), and (h) of Sec. 1.164-
2.

[T.D. 6780, 29 FR 18148, Dec. 22, 1964, as amended by T.D. 7767, 46 FR 
11264, Feb. 6, 1981]



Sec. 1.276-1  Disallowance of deductions for certain indirect 
contributions to political parties.

    (a) In general. Notwithstanding any other provision of law, no 
deduction shall be allowed for income tax purposes in respect of any 
amount paid or incurred after March 15, 1966, in a taxable year of the 
taxpayer beginning after December 31, 1965, for any expenditure to which 
paragraph (b)(1), (c), (d), or (e) of this section is applicable. 
Section 276 is a disallowance provision exclusively and does not make 
deductible any expenses which are not otherwise allowed under the Code. 
For certain other rules in respect of deductions for expenditures for 
political purposes, see Sec. Sec. 1.162-15(b), 1.162-20, and 1.271-1.
    (b) Advertising in convention program--(1) General rule. (i) Except 
as provided in subparagraph (2) of this paragraph,

[[Page 821]]

no deduction shall be allowed for an expenditure for advertising in a 
convention program of a political party. For purposes of this 
subparagraph it is immaterial who publishes the convention program or to 
whose use the proceeds of the program inure (or are intended to inure). 
A convention program is any written publication (as defined in paragraph 
(c) of this section) which is distributed or displayed in connection 
with or at a political convention, conclave, or meeting. Under certain 
conditions payments to a committee organized for the purpose of bringing 
a political convention to an area are deductible under paragraph (b) of 
Sec. 1.162-15. This rule is not affected by the provisions of this 
section. For example, such payments may be deductible notwithstanding 
the fact that the committee purchases from a political party the right 
to publish a pamphlet in connection with a convention and that the 
deduction of costs of advertising in the pamphlet is prohibited under 
this section.
    (ii) The application of the provisions of this subparagraph may be 
illustrated by the following example:

    Example. M Corporation publishes the convention program of the Y 
political party for a convention not described in subparagraph (2) of 
this paragraph. The corporation makes no payment of any kind to or on 
behalf of the party or any of its candidates and no part of the proceeds 
of the publication and sale of the program inures directly or indirectly 
to the benefit of any political party or candidate. P Corporation 
purchases an advertisement in the program. P Corporation may not deduct 
the cost of such advertisement.

    (2) Amounts paid or incurred on or after January 1, 1968, for 
advertising in programs of certain national political conventions. (i) 
Subject to the limitations in subdivision (ii) of this subparagraph, a 
deduction may be allowed for any amount paid or incurred on or after 
January 1, 1968, for advertising in a convention program of a political 
party distributed in connection with a convention held for the purpose 
of nominating candidates for the offices of President and Vice President 
of the United States, if the proceeds from the program are actually used 
solely to defray the costs of conducting the convention (or are set 
aside for such use at the next convention of the party held for such 
purpose) and if the amount paid or incurred for the advertising is 
reasonable. If such amount is not reasonable or if any part of the 
proceeds is used for a purpose other than that of defraying such 
convention costs, no part of the amount is deductible. Whether or not an 
amount is reasonable shall be determined in light of the business the 
taxpayer may expect to receive either directly as a result of the 
advertising or as a result of the convention being held in an area in 
which the taxpayer has a principal place of business. For these 
purposes, an amount paid or incurred for advertising will not be 
considered as reasonable if it is greater than the amount which would be 
paid for comparable advertising in a comparable convention program of a 
nonpolitical organization. Institutional advertising (e.g., advertising 
of a type not designed to sell specific goods or services to persons 
attending the convention) is not advertising which may be expected to 
result directly in business for the taxpayer sufficient to make the 
expenditures reasonable. Accordingly, an amount spent for institutional 
advertising in a convention program may be deductible only if the 
taxpayer has a principal place of business in the area where the 
convention is held. An official statement made by a political party 
after a convention as to the use made of the proceeds from its 
convention program shall constitute prima facie evidence of such use.
    (ii) No deduction may be taken for any amount described in this 
subparagraph which is not otherwise allowable as a deduction under 
section 162, relating to trade or business expenses. Therefore, in order 
for any such amount to be deductible, it must first satisfy the 
requirements of section 162, and, in addition, it must also satisfy the 
more restrictive requirements of this subparagraph.
    (c) Advertising in publication other than convention program. No 
deduction shall be allowed for an expenditure for advertising in any 
publication other than a convention program if any part of the proceeds 
of such publication directly or indirectly inures (or is intended to 
inure) to or for the use of a

[[Page 822]]

political party or a political candidate. For purposes of this 
paragraph, a publication includes a book, magazine, pamphlet, brochure, 
flier, almanac, newspaper, newsletter, handbill, billboard, menu, sign, 
scorecard, program, announcement, radio or television program or 
announcement, or any similar means of communication. For the definition 
of inurement of proceeds to a political party or a political candidate, 
see paragraph (f)(3) of this section.
    (d) Admission to dinner or program. No deduction shall be allowed 
for an expenditure for admission to any dinner or program, if any part 
of the proceeds of such event directly or indirectly inures (or is 
intended to inure) to or for the use of a political party or a political 
candidate. For purposes of this paragraph, a dinner or program includes 
a gala, dance, ball, theatrical or film presentation, cocktail or other 
party, picnic, barbecue, sporting event, brunch, tea, supper, auction, 
bazaar, reading, speech, forum, lecture, fashion show, concert, opening, 
meeting, gathering, or any similar event. For the definition of 
inurement of proceeds to a political party or a political candidate and 
of admission to a dinner or program, see paragraph (f) of this section.
    (e) Admission to inaugural event. (1) No deduction shall be allowed 
for an expenditure for admission to an inaugural ball, inaugural gala, 
inaugural parade, or inaugural concert, or to any similar event (such as 
a dinner or program, as defined in paragraph (d) of this section), in 
connection with the inauguration or installation in office of any 
official, or any equivalent event for an unsuccessful candidate, if the 
event is identified with a political party or a political candidate. For 
purposes of this paragraph, the sponsorship of the event and the use to 
which the proceeds of the event are or may be put are irrelevant, except 
insofar as they may tend to identify the event with a political party or 
a political candidate. For the definition of admission to an inaugural 
event, see paragraph (f)(4) of this section.
    (2) The application of the provisions of this paragraph may be 
illustrated by the following example:

    Example. An inaugural reception for A, a prominent member of Y party 
who has been recently elected judge of the municipal court of F city, is 
held with the proceeds going to the city treasury. The price of 
admission to such affair is not deductible.

    (f) Definitions--(1) Political party. For purposes of this section 
the term political party has the same meaning as that provided for in 
paragraph (b)(1) of Sec. 1.271-1.
    (2) Political candidate. For purposes of this section, the term 
political candidate is to be construed in accordance with the purpose of 
section 276 to deny tax deductions for certain expenditures which may be 
used directly or indirectly to finance political campaigns. The term 
includes a person who, at the time of the event or publication with 
respect to which the deduction is being sought, has been selected or 
nominated by a political party for any elective office. It also includes 
an individual who is generally believed, under the facts and 
circumstances at the time of the event or publication, by the persons 
making expenditures in connection therewith to be an individual who is 
or who in the reasonably foreseeable future will be seeking selection, 
nomination, or election to any public office. For purposes of the 
preceding sentence, the facts and circumstances to be considered 
include, but are not limited to, the purpose of the event or publication 
and the disposition to be made of the proceeds. In the absence of 
evidence to the contrary it shall be presumed that persons making 
expenditures in connection with an event or publication generally 
believe that an incumbent of an elective public office will run for 
reelection to his office or for election to some other public office.
    (3) Inurement of proceeds to political party or political 
candidate--(i) In general. Subject to the special rules presented in 
subdivision (iii) of this subparagraph (relating to a political 
candidate), proceeds directly or indirectly inure to or for the use of a 
political party or a political candidate (a) if the party or candidate 
may order the disposition of any part of such proceeds, regardless of 
what use is actually made thereof, or (b) if any part of such proceeds 
is utilized by any person for the benefit of the party or candidate. 
These

[[Page 823]]

conditions are equally applicable in determining whether the proceeds 
are intended to inure. Accordingly, it is immaterial whether the event 
or publication operates at a loss if, had there been a profit, any part 
of the proceeds would have inured to or for the use of a political party 
or a political candidate. Moreover, it shall be presumed that where a 
dinner, program, or publication is sponsored by or identified with a 
political party or political candidate, the proceeds of such dinner, 
program, or publication directly or indirectly inure (or are intended to 
inure) to or for the use of the party or candidate. On the other hand, 
proceeds are not considered to directly or indirectly inure to the 
benefit of a political party or political candidate if the benefit 
derived is so remote as to be negligible or merely a coincidence of the 
relationship of a political candidate to a trade or business profiting 
from an expenditure of funds. For example, the proceeds of expenditures 
made by a taxpayer in the ordinary course of his trade or business for 
advertising in a publication, such as a newspaper or magazine, are not 
considered as inuring to the benefit of a political party or political 
candidate merely because the publication endorses a particular political 
candidate or candidates of a particular political party, the publisher 
independently contributes to the support of a political party or 
candidate out of his own personal funds, or the principal stockholder of 
the publishing firm is a candidate for public office.
    (ii) Proceeds to political party. If a political party may order the 
disposition of any part of the proceeds of a publication or event 
described in paragraph (c) or (d) of this section, such proceeds inure 
to the use of the party regardless of what the proceeds are to be used 
for or that their use is restricted to a particular purpose unrelated to 
the election of specific candidates for public office. Accordingly, 
where a political party holds a dinner for the purpose of raising funds 
to be used in a voter registration drive, voter education program, or 
nonprofit political research program, partisan or nonpartisan, the 
proceeds are considered to directly or indirectly inure to or for the 
use of the political party. Proceeds may inure to or for the use of a 
political party even though they are to be used for purposes which may 
not be directly related to any particular election (such as to pay 
office rent for its permanent quarters, salaries to permanent employees, 
or utilities charges, or to pay the cost of an event such as a dinner or 
program as defined in paragraph (d) of this section).
    (iii) Proceeds to political candidate. Proceeds directly or 
indirectly inure (or are intended to inure) to or for the use of a 
political candidate if, in addition to meeting the conditions described 
in subdivision (i) of this subparagraph, (a) some part of the proceeds 
is or may be used directly or indirectly for the purpose of furthering 
his candidacy for selection, nomination, or election to any elective 
public office, and (b) they are not received by him in the ordinary 
course of a trade or business (other than the trade or business of 
holding public office). Proceeds may so inure whether or not the 
expenditure sought to be deducted was paid or incurred before the 
commencement of political activities with respect to the selection, 
nomination, or election referred to in (a) of this subdivision, or after 
such selection, nomination, or election has been made or has taken 
place. For example, proceeds of an event which may be used by an 
individual who, under the facts and circumstances at the time of the 
event, the persons making expenditures in connection therewith generally 
believe will in the reasonably foreseeable future run for a public 
office, and which may be used in furtherance of such individual's 
candidacy, generally will be deemed to inure (or to be intended to 
inure) to or for the use of a political candidate for the purpose of 
furthering such individual's candidacy. Or, as another example, proceeds 
of an event occurring after an election, which may be used by a 
candidate in that election to repay loans incurred in directly or 
indirectly furthering his candidacy, or in reimbursement of expenses 
incurred in directly or indirectly furthering his candidacy, will be 
deemed to directly or indirectly inure (or to be intended to inure) to 
or for the use of a political candidate for the purpose of furthering

[[Page 824]]

his candidacy. For purposes of this subdivision, if the proceeds 
received by a candidate exceed substantially the fair market value of 
the goods furnished or services rendered by him, the proceeds are not 
received by the candidate in the ordinary course of his trade or 
business.
    (iv) The application of the provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. Corporation O pays the Y political party $100,000 per 
annum for the right to publish the Y News, and retains the entire 
proceeds from the sale of the publication. Amounts paid or incurred for 
advertising in the Y News are not deductible because a part of the 
proceeds thereof indirectly inures to or for the use of a political 
party.
    Example 2. The X political party holds a highly publicized ball 
honoring one of its active party members and admission tickets are 
offered to all. The guest of honor is a prominent national figure and a 
former incumbent of a high public office. The price of admission is 
designed to cover merely the cost of entertainment, food, and the 
ballroom, and all proceeds are paid to the hotel where the function is 
held, with the political party bearing the cost of any deficit. No 
deduction may be taken for the price of admission to the ball since the 
proceeds thereof inure to or for the use of a political party.
    Example 3. Taxpayer A, engaged in a trade or business, purchases a 
number of tickets for admission to a fundraising affair held on behalf 
of political candidate B. The funds raised by this affair can be used by 
B for the purpose of furthering his candidacy. These expenditures are 
not deductible by A notwithstanding that B donates the proceeds of the 
affair to a charitable organization.
    Example 4. A, an individual taxpayer who publishes a newspaper, is a 
candidate for elective public office. X Corporation advertises its 
products in A's newspaper, paying substantially more than the normal 
rate for such advertising. X Corporation may not deduct any portion of 
the cost of that advertising.

    (4) Admission to dinners, programs, inaugural events. For purposes 
of this section, the cost of admission to a dinner, program, or 
inaugural event includes all charges, whether direct or indirect, for 
attendance and participation at such function. Thus, for example, 
amounts spent to be eligible for door prizes, for the privilege of 
sitting at the head table, or for transportation furnished as part of 
such an event, or any separate charges for food or drink, are amounts 
paid for admission.

[T.D. 6996, 34 FR 833, Jan. 18, 1969, as amended by T.D. 7010, 34 FR 
7145, May 1, 1969]



Sec. 1.278-1  Capital expenditures incurred in planting and developing 
citrus and almond groves.

    (a) General rule. (1)(i) Except as provided in subparagraph (2)(iii) 
of this paragraph and paragraph (b) of this section, there shall be 
charged to capital account any amount (allowable as a deduction without 
regard to section 278 or this section) which is attributable to the 
planting, cultivation, maintenance, or development of any citrus or 
almond grove (or part thereof), and which is incurred before the close 
of the fourth taxable year beginning with the taxable year in which the 
trees were planted. For purposes of section 278 and this section, such 
an amount shall be considered as ``incurred'' in accordance with the 
taxpayer's regular tax accounting method used in reporting income and 
expenses connected with the citrus or almond grove operation. For 
purposes of this paragraph, the portion of a citrus or almond grove 
planted in 1 taxable year shall be treated separately from the portion 
of such grove planted in another taxable year. The provisions of section 
278 and this section apply to taxable years beginning after December 31, 
1969, in the case of a citrus grove, and to taxable years beginning 
after January 12, 1971, in the case of an almond grove.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. T, a fiscal year taxpayer plants a citrus grove 5 weeks 
before the close of his taxable year ending in 1971. T is required to 
capitalize any amount (allowable as a deduction without regard to 
section 278 or this section) attributable to the planting, cultivation, 
maintenance, or development of such grove until the close of his taxable 
year ending in 1974.
    Example 2. Assume the same facts as in Example 1, except that T 
plants one portion of such grove 5 weeks before the close of his taxable 
year ending in 1971 and another portion of such grove at the beginning 
of his taxable year ending in 1972. The required capitalization period 
for expenses attributable to the first portion of such grove shall

[[Page 825]]

run until the close of T's taxable year ending in 1974. The required 
capitalization period for expenses attributable to the second portion of 
such grove shall run until the close of T's taxable year ending in 1975.

    (2)(i) For purposes of section 278 and this section a citrus grove 
is defined as one or more trees of the rue family, often thorny and 
bearing large fruit with hard, usually thick peel and pulpy flesh, such 
as the orange, grapefruit, lemon, lime, citron, tangelo, and tangerine.
    (ii) For purposes of section 278 and this section, an almond grove 
is defined as one or more trees of the species Prunus amygdalus.
    (iii) An amount attributable to the cultivation, maintenance, or 
development of a citrus or almond grove (or part thereof) shall include, 
but shall not be limited to, the following developmental or cultural 
practices expenditures: Irrigation, cultivation, pruning, fertilizing, 
management fees, frost protection, spraying, and upkeep of the citrus or 
almond grove. The provisions of section 278(a) and this paragraph shall 
apply to expenditures for fertilizer and related materials 
notwithstanding the provisions of section 180, but shall not apply to 
expenditures attributable to real estate taxes or interest, to soil and 
water conservation expenditures allowable as a deduction under section 
175, or to expenditures for clearing land allowable as a deduction under 
section 182. Further, the provisions of section 278(a) and this 
paragraph apply only to expenditures allowable as deductions without 
regard to section 278 and have no application to expenditures otherwise 
chargeable to capital account, such as the cost of the land and 
preparatory expenditures incurred in connection with the citrus or 
almond grove.
    (iv) For purposes of section 278 and this section, a citrus or 
almond tree shall be considered to be ``planted'' on the date on which 
the tree is placed in the permanent grove from which production is 
expected.
    (3)(i) The period during which expenditures described in section 
278(a) and this paragraph are required to be capitalized shall, once 
determined, be unaffected by a sale or other disposition of the citrus 
or almond grove. Such period shall, in all cases, be computed by 
reference to the taxable years of the owner of the grove at the time 
that the citrus or almond trees were planted. Therefore, if a citrus or 
almond grove subject to the provisions of section 278 or this paragraph 
is sold or otherwise transferred by the original owner of the grove 
before the close of his fourth taxable year beginning with the taxable 
year in which the trees were planted, expenditures described in section 
278(a) or this paragraph made by the purchaser or other transferee of 
the citrus or almond grove from the date of his acquisition until the 
close of the original holder's fourth such taxable year are required to 
be capitalized.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. T, a fiscal year taxpayer, plants a citrus grove at the 
beginning of his taxable year ending in 1971. At the beginning of his 
taxable year ending in 1972, T sells the grove to X. The required period 
during which expenditures described in section 278 (a) are required to 
be capitalized runs from the date on which T planted the grove until the 
end of T's taxable year ending in 1974. Therefore, X must capitalize any 
such expenditures incurred by him from the time he purchased the grove 
from T until the end of T's taxable year ending in 1974.

    (b) Exceptions. (1) Paragraph (a) of this section shall not apply to 
amounts allowable as deductions (without regard to section 278 or this 
section) and attributable to a citrus or almond grove (or part thereof) 
which is replanted by a taxpayer after having been lost or damaged 
(while in the hands of such taxpayer) by reason of freeze, disease, 
drought, pests, or casualty.
    (2)(i) Paragraph (a) of this section shall not apply to amounts 
allowable as deductions (without regard to section 278 or this section), 
and attributable to a citrus grove (or part thereof) which was planted 
or replanted prior to December 30, 1969, or to an almond grove (or part 
thereof) which was planted or replanted prior to December 30, 1970.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:


[[Page 826]]


    Example 1. T, a fiscal year taxpayer with a taxable year of July 1, 
1969, through v June 30, 1970, plants a citrus grove on August 1, 1969. 
Since the grove was planted prior to December 30, 1969, no expenses 
incurred with respect to the grove shall be subject to the provisions of 
paragraph (a).
    Example 2. Assume the same facts as in Example 1, except that T 
plants the grove on March 1, 1970. Since the grove was planted after 
December 30, 1969, all amounts allowable as deductions (without regard 
to section 278 or this section) and attributable to the grove shall be 
subject to the provisions of paragraph (a). However, since paragraph (a) 
applies only to taxable years beginning after December 31, 1969, T must 
capitalize only those amounts incurred during his taxable years ending 
in 1971, 1972, and 1973.

[T.D. 7098, 36 FR 5214, Mar. 18, 1971, as amended by T.D. 7136, 36 FR 
14731, Aug. 11, 1971]



Sec. 1.279-1  General rule; purpose.

    An obligation issued to provide a consideration directly or 
indirectly for a corporate acquisition, although constituting a debt 
under section 385, may have characteristics which make it more 
appropriate that the participation in the corporation which the 
obligation represents be treated for purposes of the deduction of 
interest as if it were a stockholder interest rather than a creditors 
interest. To deal with such cases, section 279 imposes certain 
limitations on the deductibility of interest paid or incurred on 
obligations which have certain equity characteristics and are classified 
as corporate acquisition indebtedness. Generally, section 279 provides 
that no deduction will be allowed for any interest paid or incurred by a 
corporation during the taxable year with respect to its corporate 
acquisition indebtedness to the extent such interest exceeds $5 million. 
However, the $5 million limitation is reduced by the amount of interest 
paid or incurred on obligations issued under the circumstances described 
in section 279(a)(2) but which are not corporate acquisition 
indebtedness. Section 279(b) provides that an obligation will be 
corporate acquisition indebtedness if it was issued under certain 
circumstances and meets the four tests enumerated therein. Although an 
obligation may satisfy the conditions referred to in the preceding 
sentence, it may still escape classification as corporate acquisition 
indebtedness if the conditions as described in sections 279(d) (3), (4), 
and (5), 279(f), or 279(i) are present. However, no inference should be 
drawn from the rules of section 279 as to whether a particular 
instrument labeled a bond, debenture, note, or other evidence of 
indebtedness is in fact a debt. Before the determination as to whether 
the deduction for payments pursuant to an obligation as described in 
this section is to be disallowed, the obligation must first qualify as 
debt in accordance with section 385. If the obligation is not debt under 
section 385, it will be unnecessary to apply section 279 to any payments 
pursuant to such obligation.

[T.D. 7262, 38 FR 5844, Mar. 5, 1973]



Sec. 1.279-2  Amount of disallowance of interest on corporate 
acquisition indebtedness.

    (a) In general. Under section 279(a), no deduction is allowed for 
any interest paid or incurred by a corporation during the taxable year 
with respect to its corporate acquisition indebtedness to the extent 
that such interest exceeds:
    (1) $5 million, reduced by
    (2) The amount of interest paid or incurred by such corporation 
during such year on any obligation issued after December 31, 1967, to 
provide consideration directly or indirectly for an acquisition 
described in section 279(b)(1) but which is not corporate acquisition 
indebtedness. Such an obligation is not corporate acquisition 
indebtedness if it:
    (i) Was issued prior to October 10, 1969, or
    (ii) Was issued after October 9, 1969, but does not meet any one or 
more of the tests of section 279(b) (2), (3), or (4), or
    (iii) Was originally deemed to be corporate acquisition indebtedness 
but is no longer so treated by virtue of the application of paragraphs 
(3) or (4) of section 279(d) or
    (iv) Is specifically excluded from treatment as corporate 
acquisition indebtedness by virtue of sections 279(d)(5), (f), or (i).

The computation of the amount by which the $5 million limitation 
described in this paragraph is to be reduced with respect to any taxable 
year is to be made as of the last day of the

[[Page 827]]

taxable year in which an acquisition described in section 279(b)(1) 
occurs. In no case shall the $5 million limitation be reduced below 
zero.
    (b) Certain terms defined. When used in section 279 and the 
regulations thereunder:
    (1) The term issued includes the giving of a note or other evidence 
of indebtedness to a bank or other lender as well as an issuance of a 
bond or debenture. In the case of obligations which are registered with 
the Securities and Exchange Commission, the date of issue is the date on 
which the issue is first offered to the public. In the case of 
obligations which are not so registered, the date of issue is the date 
on which the obligation is sold to the first purchaser.
    (2) The term interest includes both stated interest and unstated 
interest (such as original issue discount as defined in paragraph (a)(1) 
of Sec. 1.163-4 and amounts treated as interest under section 483).
    (3) The term money means cash and its equivalent.
    (4) The term control shall have the meaning assigned to such term by 
section 368(c).
    (5) The term affiliated group shall have the meaning assigned to 
such term by section 1504(a), except that all corporations other than 
the acquired corporation shall be treated as includible corporations 
(without any exclusion under section 1504(b)) and the acquired 
corporation shall not be treated as an includible corporation. This 
definition shall apply whether or not some or all of the members of the 
affiliated group file a consolidated return.
    (c) Examples. The provisions of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. On March 4, 1973, X Corporation, a calendar year 
taxpayer, issues an obligation which satisfies the test of section 
279(b)(1) but fails to satisfy either of the tests of section 279(b) (2) 
or (3). Since at least one of the tests of section 279(b) is not 
satisfied the obligation is not corporate acquisition indebtedness. 
However, since the test of section 279(b)(1) is satisfied, the interest 
on the obligation will reduce the $5 million limitation provided by 
section 279 (a)(1).
    Example 2. On January 1, 1969, X Corporation, a calendar year 
taxpayer, issues an obligation, which satisfies all the tests of section 
279(b), requiring it to pay $3.5 million of interest each year. Since 
the obligation was issued before October 10, 1969, the obligation cannot 
be corporate acquisition indebtedness, and a deduction for the $3.5 
million of interest attributable to such obligation is not subject to 
disallowance under section 279(a). However, since the obligation was 
issued after December 31, 1967, in an acquisition described in section 
279(b)(1), under section 279(a)(2) the $3.5 million of interest 
attributable to such obligation reduces the $5 million limitation 
provided by section 279(a)(1) to $1.5 million.
    Example 3. Assume the same facts as in Example 2. Assume further 
that on January 1, 1970, X Corporation issues more obligations which are 
classified as corporate acquisition indebtedness and which require X 
Corporation to pay $4 million of interest each year. For 1970 the amount 
of interest paid or accrued on corporate acquisition indebtedness, which 
may be deducted is $1.5 million ($5 million maximum provided by section 
279(a)(1) less $3.5 million, the reduction required under section 
279(a)(2)). Thus, $2.5 million of the $4 million interest incurred on a 
corporate acquisition indebtedness is subject to disallowance under 
section 279(a) for the taxable year 1970.
    Example 4. Assume the same facts as in Example 3. Assume further 
that on the last day of each of the taxable years 1971, 1972, and 1973 
of X Corporation neither of the conditions described in section 
279(b)(4) was present.
    Under these circumstances, such obligations for all taxable years 
after 1973 are not corporate acquisition indebtedness under section 
279(d)(4). Therefore, the $2.5 million of interest previously not 
deductible is not deductible for all taxable years after 1973. Although 
such obligations are no longer treated as corporate acquisition 
indebtedness, the interest attributable thereto must be applied in 
further reduction of the $5 million limitation. The $5 million 
limitation of section 279(a)(1) is therefore reduced to zero. While the 
limitation is at the zero level any interest paid or incurred on 
corporate acquisition indebtedness will be disallowed.

[T.D. 7262, 38 FR 5844, Mar. 5, 1973]



Sec. 1.279-3  Corporate acquisition indebtedness.

    (a) Corporate acquisition indebtedness. For purposes of section 279, 
the term corporate acquisition indebtedness means any obligation 
evidenced by a bond, debenture, note, or certificate or other evidence 
of indebtedness issued after

[[Page 828]]

October 9, 1969, by a corporation (referred to in section 279 and the 
regulations thereunder as ``issuing corporation'') if the obligation is 
issued to provide consideration directly or indirectly for the 
acquisition of stock in, or certain assets of, another corporation (as 
described in paragraph (b) of this Sec. 1.279-3), is ``subordinated'' 
(as described in paragraph (c) of this Sec. 1.279-3), is 
``convertible'' (as described in paragraph (d) of this Sec. 1.279-3), 
and satisfies either the ratio of debt to equity test (as described in 
paragraph (f) of Sec. 1.279-5) or the projected earnings test (as 
described in paragraph (d) of Sec. 1.279-5).
    (b) Acquisition of stock or assets. (1) Section 279(b)(1) describes 
one of the tests to be satisfied if an obligation is to be classified as 
corporate acquisition indebtedness. Under section 279(b)(1), the 
obligation must be issued to provide consideration directly or 
indirectly for the acquisition of:
    (i) Stock (whether voting or nonvoting) in another corporation 
(referred to in section 279 and the regulations thereunder as ``acquired 
corporation''), or
    (ii) Assets of another corporation (referred to in section 279 and 
the regulations thereunder as ``acquired corporation'') pursuant to a 
plan under which at least two-thirds (in value) of all the assets 
(excluding money) used in trades or businesses carried on by such 
corporation are acquired.

The fact that the corporation that issues the obligation is not the same 
corporation that acquires the acquired corporation does not prevent the 
application of section 279. For example, if X Corporation acquires all 
the stock of Y Corporation through the utilization of an obligation of Z 
Corporation, a wholly owned subsidiary of X Corporation, this section 
will apply.
    (2) Direct or indirect consideration. Obligations are issued to 
provide direct consideration for an acquisition within the meaning of 
section 279(b)(1) where the obligations are issued to the shareholders 
of an acquired corporation in exchange for stock in such acquired 
corporation or where the obligations are issued to the acquired 
corporation in exchange for its assets. The application of the 
provisions of this subsection relating to indirect consideration for an 
acquisition of stock or assets depends upon the facts and circumstances 
surrounding the acquisition and the issuance of the obligations. 
Obligations are issued to provide indirect consideration for an 
acquisition of stock or assets within the meaning of section 279(b)(1) 
where (i) at the time of the issuance of the obligations the issuing 
corporation anticipated the acquisition of such stock or assets and the 
obligations would not have been issued if the issuing corporation had 
not so anticipated such acquisition, or where (ii) at the time of the 
acquisition the issuing corporation foresaw or reasonably should have 
foreseen that it would be required to issue obligations, which it would 
not have otherwise been required to issue if the acquisition had not 
occurred, in order to meet its future economic needs.
    (3) Stock acquisition. (i) For purposes of section 279, an 
acquisition in which the issuing corporation issues an obligation to 
provide consideration directly or indirectly for the acquisition of 
stock in the acquired corporation shall be treated as a stock 
acquisition within the meaning of section 279(b)(1)(A). Where the stock 
of one corporation is acquired from another corporation and such stock 
constitutes at least two-thirds (in value) of all the assets (excluding 
money) of the latter corporation, such acquisition shall be deemed an 
asset acquisition as described in section 279(b)(1)(B) and subparagraph 
(4) of this section. If the issuing corporation acquires less than two-
thirds (in value) of all the assets (excluding money) used in trades or 
businesses carried on by the acquired corporation within the meaning of 
section 279(b)(1)(B) and subparagraph (4) of this paragraph and such 
assets include stock of another corporation, the acquisition of such 
stock is a stock acquisition within the meaning of section 279(b)(1)(A) 
and of this subparagraph. In such a case the amount of the obligation 
which is characterized as corporate acquisition indebtedness shall bear 
the same relationship to the total amount of the obligation issued as 
the fair market value of the stock acquired bears to the total of the 
fair market value of the assets acquired and stock

[[Page 829]]

acquired, as of the date of acquisition. For rules with respect to 
acquisitions of stock, where the total amount of stock of the acquired 
corporation held by the issuing corporation never exceeded 5 percent of 
the total combined voting power of all classes of stock of the acquired 
corporation entitled to vote, see Sec. 1.279-4(b)(1).
    (ii) If the issuing corporation acquired stock of an acquired 
corporation in an acquisition described in section 279(b)(1)(A), and 
liquidated the acquired corporation under section 334(b)(2) and the 
regulations thereunder before the last day of the taxable year in which 
such stock acquisition is made, such obligation issued to provide 
consideration directly or indirectly to acquire such stock of the 
acquired corporation shall be considered as issued in an acquisition 
described in section 279(b)(1)(B).
    (4) Asset acquisition. (i) For purposes of section 279, an 
acquisition in which the issuing corporation issues an obligation to 
provide consideration directly or indirectly for the acquisition of 
assets of an acquired corporation pursuant to a plan under which at 
least two-thirds of the gross value of all the assets (excluding money) 
used in trades and businesses carried on by such acquired corporation 
are acquired shall be treated as an asset acquisition within the meaning 
of section 279(b)(1)(B). For purposes of section 279(b)(1)(B), the gross 
value of any acquired asset shall be its fair market value as of the day 
of its acquisition. In determining the fair market value of an asset, no 
reduction shall be made for any liabilities, mortgages, liens, or other 
encumbrances to which the asset or any part thereof may be subjected. 
For purposes of this subparagraph, an asset which has been actually used 
in the trades and businesses of a corporation but which is temporarily 
not being used in such trades and businesses shall be treated as if it 
is being used in such manner. For purposes of this paragraph, the day of 
acquisition will be determined by reference to the facts and 
circumstances surrounding the transaction.
    (ii) For purposes of the two-thirds test described in section 
279(b)(1)(B), the stock of any corporation which is controlled by the 
acquired corporation shall be considered as an asset used in the trades 
and businesses of such acquired corporation.
    (5) Certain nontaxable transactions. (i) Under section 279(e), an 
acquisition of stock of a corporation of which the issuing corporation 
is in control in a transaction in which gain or loss is not recognized 
shall be deemed an acquisition described in section 279(b)(1)(A) only if 
immediately before such transaction the acquired corporation was in 
existence, and the issuing corporation was not in control of such 
corporation. If the issuing corporation is a member of an affiliated 
group, then in accordance with section 279(g), the affiliated group 
shall be treated as the issuing corporation. Thus, any stock of the 
acquired corporation, owned by members of the affiliated group, shall be 
aggregated in determining whether the issuing corporation was in control 
of the acquired corporation.
    (ii) The $5 million limitation provided by section 279(a)(1) is not 
reduced by the interest on an obligation issued in a transaction which, 
under section 279 (e), is deemed not to be an acquisition described in 
section 279(b)(1).
    (iii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. On January 1, 1973, W Corporation, a calendar year 
taxpayer, issues to the public 10,000 10 year convertible bonds each 
with a principal of $1,000 for $9 million. On June 6, 1973, W 
Corporation transfers the $9 million proceeds of such bond issue to X 
Corporation in exchange for X Corporation's common stock in a 
transaction that satisfies the provisions of section 351(a). On December 
31, 1973, W Corporation's ratio of debt to equity is 1\1/2\ to 1 and its 
project earnings exceed three times the annual interest to be paid or 
incurred. Immediately prior to the transaction between the two 
corporations W Corporation owned no stock in X Corporation which had 
been in existence for several years. However, immediately after this 
transaction W Corporation is in control of X Corporation. Since X 
Corporation, the acquired corporation, was in existence and W 
Corporation, the issuing corporation, was not in control of X 
Corporation immediately before the section 351 transaction (a 
transaction in which gain or loss is not recognized) and since W 
Corporation is now in control of X Corporation, the acquisition of X 
Corporation's common stock by W Corporation is not protected from 
treatment as

[[Page 830]]

an acquisition described in section 279(b)(1)(A). However, the 
obligation will not be deemed to be corporate acquisition indebtedness 
since the test of section 279(b)(4) is not met. The interest on the 
obligation will reduce the $5 million limitation of section 279(a).
    Example 2. Assume the facts are the same as described in Example 1, 
except that X Corporation was not in existence prior to June 6, 1973, 
but rather is newly created by W Corporation on such date. Since X 
Corporation, the acquired corporation, was not in existence before June 
6, 1973, the date on which W Corporation, the issuing corporation, 
acquired control of X Corporation in a transaction on which gain or loss 
is not recognized, the acquisition is not deemed to be an acquisition 
described in section 279(b)(1)(A). Thus, under the provisions of 
subdivision (ii) of this subparagraph, the $5 million limitation 
provided by section 279(a)(1) will not be reduced by the yearly interest 
incurred on the convertible bonds issued by W Corporation.
    Example 3. Assume that the facts are the same as described in 
Example 1, except that W Corporation was in control of X Corporation 
immediately before the transaction. Since W Corporation was in control 
of X Corporation immediately before the section 351(a) transaction and 
is in control of X Corporation after such transaction, the result will 
be the same as in Example 2.

    (c) Subordinated obligation--(1) In general. An obligation which is 
issued to provide consideration for an acquisition described in section 
279(b)(1) is subordinated within the meaning of section 279(b)(2) if it 
is either:
    (i) Subordinated to the claims of trade creditors of the issuing 
corporation generally, or
    (ii) Expressly subordinated in right of payment to the payment of 
any substantial amount of unsecured indebtedness, whether outstanding or 
subsequently issued, of the issuing corporation, irrespective of whether 
such subordination relates to payment of interest, or principal, or 
both. In applying section 279 (b)(2) and this paragraph in any case 
where the issuing corporation is a member of an affiliated group of 
corporations, the affiliated group shall be treated as the issuing 
corporation.
    (2) Expressly subordinated obligation. In applying subparagraph 
(1)(ii) of this paragraph, an obligation is considered expressly 
subordinated whether the terms of the subordination are provided in the 
evidence of indebtedness itself, or in another agreement between the 
parties to such obligation. An obligation shall be considered to be 
expressly subordinated within the meaning of subparagraph (1)(ii) of 
this paragraph if such obligation by its terms can become subordinated 
in right of payment to the payment of any substantial amount of 
unsecured indebtedness which is outstanding or which may be issued 
subsequently. However, an obligation shall not be considered expressly 
subordinated if such subordination occurs solely by operation of law, 
such as in the case of bankruptcy laws. For purposes of this paragraph, 
the term substantial amount of unsecured indebtedness means an amount of 
unsecured indebtedness equal to 5 percent or more of the face amount of 
the obligations issued within the meaning of section 279(b)(1).
    (d) Convertible obligation. An obligation which is issued to provide 
consideration directly or indirectly for an acquisition described in 
section 279 (b)(1) is convertible within the meaning of section 
279(b)(3) if it is either--(1) Convertible directly or indirectly into 
stock of the issuing corporation, or (2) Part of an investment unit or 
other arrangement which includes, in addition to such bond or other 
evidence of indebtedness, an option to acquire directly or indirectly 
stock in the issuing corporation. Stock warrants or convertible 
preferred stock included as part of an investment unit constitute 
options within the meaning of the preceding sentence. Indebtedness is 
indirectly convertible if the conversion feature gives the holder the 
right to convert into another bond of the issuing corporation which is 
then convertible into the stock of the issuing corporation. In any case 
where the corporation which in fact issues an obligation to provide 
consideration for an acquisition described in section 279(b)(1) is a 
member of an affiliated group, the provisions of section 279(b)(3) and 
this paragraph are deemed satisfied if the stock into which either the 
obligation or option which is part of an investment unit or other 
arrangement is convertible, directly or indirectly, is stock of any 
member of the affiliated group.
    (e) Ratio of debt to equity and projected earnings test. For rules 
with respect to

[[Page 831]]

the application of section 279(b)(4) (relating to the ratio of debt to 
equity and the ratio of projected earnings to annual interest to be paid 
or incurred), see paragraphs (d), (e), and (f) of Sec. 1.279-5.
    (f) Certain obligations issued after October 9, 1969--(1) In 
general. Under section 279(i), an obligation shall not be corporate 
acquisition indebtedness if such obligation is issued after October 9, 
1969, to provide consideration for the acquisition of:
    (i) Stock or assets pursuant to a binding written contract which was 
in effect on October 9, 1969, and at all times thereafter before such 
acquisition, or
    (ii) Stock in any corporation where the issuing corporation, on 
October 9, 1969, and at all times thereafter before such acquisition, 
owned at least 50 percent of the total combined voting power of all 
classes of stock entitled to vote of the acquired corporation.

Subdivision (ii) of this subparagraph shall cease to apply when (at any 
time on or after October 9, 1969) the issuing corporation has acquired 
control of the acquired corporation. The interest attributable to any 
obligation which satisfies the conditions stated in the first sentence 
of this subparagraph shall reduce the $5 million limitation of section 
279(a)(1).
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On September 5, 1969, M Corporation, a calendar year 
taxpayer, entered into a binding written contract with N Corporation to 
purchase 20 percent of the voting stock of N Corporation. The contract 
was in effect on October 9, 1969, and at all times thereafter before the 
acquisition of the stock on January 1, 1970. Pursuant to such contract M 
Corporation issued on January 1, 1970, to N Corporation an obligation 
which satisfies the tests of section 279(b) requiring it to pay $1 
million of interest each year. However, under the provisions of 
subparagraph (1)(i) of this paragraph, such obligation is not corporate 
acquisition indebtedness since it was issued to provide consideration 
for the acquisition of stock pursuant to a binding written contract 
which was in effect on October 9, 1969, and at all times thereafter 
before such acquisition. The $1 million of yearly interest on the 
obligation reduces the $5 million limitation provided for in section 
279(a)(1) to $4 million since such interest is attributable to an 
obligation which was issued to provide consideration for the acquisition 
of stock in an acquired corporation.
    Example 2. On October 9, 1969, O Corporation, a calendar year 
taxpayer, owned 50 percent of the total combined voting power of all 
classes of stock entitled to vote of P Corporation. P Corporation has no 
other class of stock. On January 1, 1970, while still owning such voting 
stock O Corporation issued to the shareholders of P Corporation to 
provide consideration for an additional 40 percent of P Corporation's 
voting stock an obligation which satisfied the tests of section 279(b) 
requiring it to pay $4 million of interest each year. Hence, O 
Corporation acquired control of P Corporation, and the provisions of 
subparagraph (1)(ii) of this paragraph ceased to apply to O Corporation. 
Thus, 75 percent of the obligation issued by O Corporation to provide 
consideration for the stock of P Corporation is not corporate 
acquisition indebtedness (that is, of the 40 percent of the voting stock 
of P Corporation which was acquired, only 30 percent was needed to give 
O Corporation control). Since 25 percent of the obligation is corporate 
acquisition indebtedness, $1 million of interest attributable to such 
obligation is subject to disallowance under section 279(a) for the 
taxable year 1970. The remaining $3 million of interest attributable to 
the obligation will reduce the $5 million limitation provided by in 
section 279(a)(1).

    (g) Exemptions for certain acquisitions of foreign corporations--(1) 
In general. Under section 279(f), the term corporate acquisition 
indebtedness does not include any indebtedness issued to any person to 
provide consideration directly or indirectly for the acquisition of 
stock in, or assets of, any foreign corporation substantially all the 
income of which, for the 3-year period ending with the date of such 
acquisition or for such part of such period as the foreign corporation 
was in existence, is from sources without the United States. The 
interest attributable to any obligation excluded from treatment as 
corporate acquisition indebtedness by reason of this paragraph shall 
reduce the $5 million limitation of 279(a)(1).
    (2) Foreign corporation. For purposes of this paragraph, the term 
foreign corporation shall have the same meaning as in section 
7701(a)(5).
    (3) Income from sources without the United States. For purposes of 
this paragraph, the term income from sources without the United States 
shall be determined in accordance with sections 862

[[Page 832]]

and 863. If more than 80 percent of a foreign corporation's gross income 
is derived from sources without the United States, such corporation 
shall be considered to be deriving substantially all of its income from 
sources without the United States.

[T.D. 7262, 38 FR 5845, Mar. 5, 1973]



Sec. 1.279-4  Special rules.

    (a) Special 3-year rule. Under section 279(d)(4), if an obligation 
which has been deemed to be corporate acquisition indebtedness for any 
taxable year would not be such indebtedness for each of any 3 
consecutive taxable years thereafter if the ratio of debt to equity and 
the ratio of projected earnings to annual interest to be paid or 
incurred of section 279 (b)(4) were applied as of the close of each of 
such 3 years, then such obligation shall not be corporate acquisition 
indebtedness for any taxable years after such 3 consecutive taxable 
years. The test prescribed by section 279(b)(4) shall be applied as of 
the close of any taxable year whether or not the issuing corporation 
issues any obligation to provide consideration for an acquisition 
described in section 279(b)(1) in such taxable year. Thus, for example, 
if a corporation, reporting income on a calendar year basis, has an 
obligation outstanding as of December 31, 1975, which was classified as 
a corporate acquisition indebtedness as of the close of 1972 and such 
obligation would not have been classified as corporate acquisition 
indebtedness as of the close of 1973, 1974, and 1975 because neither of 
the conditions of section 279(b)(4) were present as of such dates, then 
such obligation shall not be corporate acquisition indebtedness for 1976 
and all taxable years thereafter. Such obligation shall not be 
reclassified as corporate acquisition indebtedness in any taxable year 
following 1975, even if the issuing corporation issues more obligations 
(whether or not found to be corporate acquisition indebtedness) in such 
later years to provide consideration for the acquisition of additional 
stock in, or assets of, the same acquired corporation with respect to 
which the original obligation was issued. The interest attributable to 
such obligation shall reduce the $5 million limitation provided by 
section 279(a)(1) for 1976 and all taxable years thereafter.
    (b) Five percent stock rule--(1) In general. Under section 
279(d)(5), if an obligation issued to provide consideration for an 
acquisition of stock in another corporation meets the tests of section 
279(b), such obligation shall be corporate acquisition indebtedness for 
a taxable year only if at sometime after October 9, 1969, and before the 
close of such year the issuing corporation owns or has owned 5 percent 
or more of the total combined voting power of all classes of stock 
entitled to vote in the acquired corporation. If the issuing corporation 
is a member of an affiliated group, then in accordance with section 
279(g) the affiliated group shall be treated as the issuing corporation. 
Thus, any stock of the acquired corporation owned by members of the 
affiliated group shall be aggregated to determine if the percentage 
limitation provided by this subparagraph is exceeded. Once an obligation 
is deemed to be corporate acquisition indebtedness such obligation will 
continue to be deemed corporate acquisition indebtedness for all taxable 
years thereafter unless the provisions of section 279(d) (3) or (4) 
apply, notwithstanding the fact that the issuing corporation owns less 
than 5 percent of the combined voting power of all classes of stock 
entitled to vote of the acquired corporation in any or all taxable years 
thereafter.
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Corporation Y uses the calendar year as its taxable year 
and has only one class of stock outstanding. On June 1, 1972, X 
Corporation which is also a calendar year taxpayer and which has never 
been a shareholder of Y Corporation acquires from the shareholders of Y 
Corporation 4 percent of the stock of Y Corporation in exchange for 
obligations which satisfy the conditions of section 279(b). At no time 
during 1972 does X Corporation own 5 percent or more of the stock of Y 
Corporation. Accordingly, under the provisions of subparagraph (1) of 
this paragraph, for 1972 the obligations issued by X Corporation to 
provide consideration for the acquisition of Y Corporation's stock do 
not constitute corporate acquisition indebtedness.
    Example 2. Assume the same facts as in Example 1. Assume further 
that on February 24,

[[Page 833]]

1973, X Corporation acquires from the shareholders of Y Corporation an 
additional 7 percent of the stock of Y Corporation in exchange for 
obligations which satisfy all of the tests of section 279(b). On 
December 28, 1973, X Corporation sells all of its stock in Y 
Corporation. For 1973, the obligations issued by X Corporation in 1972 
and in 1973 constitute corporate acquisition indebtedness since X 
Corporation at some time after October 9, 1969, and before the close of 
1973 owned 5 percent or more of the voting stock of Y Corporation. 
Furthermore, such obligations shall be corporate acquisition 
indebtedness for all taxable years thereafter unless the special 
provisions of section 279(d) (3) or (4) could apply.

    (c) Changes in obligation--(1) In general. Under section 279(h), for 
purposes of section 279:
    (i) Any extension, renewal, or refinancing of an obligation 
evidencing a preexisting indebtedness shall not be deemed to be the 
issuance of a new obligation, and
    (ii) Any obligation which is corporate acquisition indebtedness of 
the issuing corporation is also corporate acquisition indebtedness of 
any corporation which in any transaction or by operation of law assumes 
liability for such obligation or becomes liable for such obligation as 
guarantor, endorser, or indemnitor.
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On January 1, 1971, X Corporation, which files its return 
on the basis of a calendar year, issues an obligation, which satisfies 
the tests of section 279(b), and is deemed to be corporate acquisition 
indebtedness. On January 1, 1973, an agreement is concluded between X 
Corporation and the holder of the obligation whereby the maturity date 
of such obligation is extended until December 31, 1979. Under the 
provisions of subparagraph (1)(i) of this paragraph such extended 
obligation is not deemed to be a new obligation, and still constitutes 
corporate acquisition indebtedness.
    Example 2. On June 12, 1971, X Corporation, a calendar year 
taxpayer, issued convertible and subordinated obligations to acquire the 
stock of Z Corporation. The obligations were deemed corporate 
acquisition indebtedness on December 31, 1971. On March 4, 1973, X 
Corporation and Y Corporation consolidated to form XY Corporation in 
accordance with State law. Corporation XY is liable for the obligations 
issued by X Corporation by operation of law and the obligations continue 
to be corporate acquisition indebtedness. In 1975 XY Corporation 
exchanges its own nonconvertible obligations for the obligations X 
Corporation issued. The obligations of XY Corporation issued in exchange 
for those of X Corporation will be deemed to be corporate acquisition 
indebtedness.

[T.D. 7262, 38 FR 5847, Mar. 5, 1973; 38 FR 6893, Mar. 14, 1973]



Sec. 1.279-5  Rules for application of section 279(b).

    (a) Taxable years to which applicable--(1) First year of 
disallowance. Under section 279(d)(1), the deduction of interest on any 
obligation shall not be disallowed under section 279(a) before the first 
taxable year of the issuing corporation as of the last day of which the 
application of either section 279(b)(4) (A) or (B) results in such 
obligation being classified as corporate acquisition indebtedness. See 
section 279(c)(1) and paragraph (b)(2) of this section for the time when 
an obligation is subjected to the test of section 279(b)(4).
    (2) General rule for succeeding years. Under section 279(d)(2), 
except as provided in paragraphs (3), (4), and (5) of section 279(d), if 
an obligation is determined to be corporate acquisition indebtedness as 
of the last day of any taxable year of the issuing corporation, such 
obligation shall be corporate acquisition indebtedness for such taxable 
year and all subsequent taxable years.
    (b) Time of determination--(1) In general. The determination of 
whether an obligation meets the conditions of section 279(b) (1), (2), 
and (3) shall be made as of the day on which the obligation is issued.
    (2) Ratio of debt to equity, projected earnings, and annual interest 
to be paid or incurred. (i) Under section 279(c)(1), the determination 
of whether an obligation meets the conditions of section 279(b)(4) is 
first to be made as of the last day of the taxable year of the issuing 
corporation in which it issues the obligation to provide consideration 
directly or indirectly for an acquisition described in section 279(b)(1) 
of stock in, or assets of, the acquired corporation. An obligation which 
is not corporate acquisition indebtedness only because it does not 
satisfy the test of section 279(b)(4) in the taxable year of the issuing 
corporation in which the obligation is issued for stock in, or assets 
of, the acquired corporation may

[[Page 834]]

be subjected to the test of section 279(b)(4) again. A retesting will 
occur in any subsequent taxable year of the issuing corporation in which 
the issuing corporation issues any obligation to provide consideration 
directly or indirectly for an acquisition described in section 279(b)(1) 
with respect to the same acquired corporation, irrespective of whether 
such subsequent obligation is itself classified as corporate acquisition 
indebtedness. If the issuing corporation is a member of an affiliated 
group, then in accordance with section 279(g) the affiliated group shall 
be treated as the issuing corporation. Thus, if any member of the 
affiliated group issues an obligation to acquire additional stock in, or 
assets of, the acquired corporation, this paragraph shall apply.
    (ii) For purposes of section 279(b)(4) and this paragraph, in any 
case where the issuing corporation is a member of an affiliated group 
(see section 279(g) and Sec. 1.279-6 for rules regarding application of 
section 279 to certain affiliated groups) which does not file a 
consolidated return and all the members of which do not have the same 
taxable year, determinations with respect to the ratio of debt to equity 
of, and projected earnings of, and annual interest to be paid or 
incurred by, any member of the affiliated group shall be made as of the 
last day of the taxable year of the corporation which in fact issues the 
obligation to provide consideration for an acquisition described in 
section 279(b)(1).
    (3) Redetermination where control or substantially all the 
properties have been acquired. Under section 279(d)(3), if an obligation 
is determined to be corporate acquisition indebtedness as of the close 
of a taxable year of the issuing corporation in which section 
279(c)(3)(A)(i) (relating to the projected earnings of the issuing 
corporation only) applied, but would not be corporate acquisition 
indebtedness if the determination were made as of the close of the first 
taxable year of such corporation thereafter in which section 
279(c)(3)(A)(ii) (relating to the projected earnings of both the issuing 
corporation and the acquired corporation) could apply, such obligation 
shall be considered not to be corporate acquisition indebtedness for 
such later taxable year and all taxable years thereafter. Where an 
obligation ceases to be corporate acquisition indebtedness as a result 
of the application of this paragraph, the interest on such obligation 
shall not be disallowed under section 279(a) as a deduction for the 
taxable year in which the obligation ceases to be corporate acquisition 
indebtedness and all taxable years thereafter. However, under section 
279(a)(2) the interest paid or incurred on such obligation which is 
allowed as a deduction will reduce the $5 million limitation provided by 
section 279(a)(1).
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. In 1971, X Corporation, which files its Federal income 
tax return on the basis of a calendar year, issues its obligations to 
provide consideration for the acquisition of 15 percent of the voting 
stock of both Y Corporation and Z Corporation. Y Corporation and Z 
Corporation each have only one class of stock. When issued, such 
obligations satisfied the tests prescribed in section 279(b) (1), (2), 
and (3) and would have constituted corporate acquisition indebtedness 
but for the test prescribed in section 279(b)(4). On December 31, 1971, 
the application of section 279(b)(4) results in X Corporation's 
obligations issued in 1971 not being treated as corporate acquisition 
indebtedness for that year.
    Example 2. Assume the same facts as in Example 1, except that in 
1972, X Corporation issues more obligations which come within the tests 
of section 279(b) (1), (2), and (3) to acquire an additional 10 percent 
of the voting stock of Y Corporation. No stock of Z Corporation is 
acquired after 1971. The application of section 279(b)(4)(B) (relating 
to the projected earnings of X Corporation) as of the end of 1972 
results in the obligations issued in 1972 to provide consideration for 
the acquisition of the stock of Y Corporation being treated as corporate 
acquisition indebtedness. Since X Corporation during 1972 did issue 
obligations to acquire more stock of Y Corporation, under the provisions 
of section 279(c)(1) and subparagraph (2) of this paragraph the 
obligations issued by X Corporation in 1971 to acquire stock in Y 
Corporation are again tested to determine whether the test of section 
279(b)(4) with respect to such obligations is satisfied for 1972. Thus, 
since such obligations issued by X Corporation to acquire Y 
Corporation's stock in 1971 previously came within the provisions of 
section 279(b) (1), (2), and (3) and the projected earnings test of 
section 279(b)(4)(B) is satisfied for 1972, all of such obligations are

[[Page 835]]

to be deemed to constitute corporate acquisition indebtedness for 1972 
and subsequent taxable years. The obligations issued in 1971 to acquire 
stock in Z Corporation continue not to constitute corporate acquisition 
indebtedness.
    Example 3. Assume the same facts as in Examples 1 and 2. In 1973, X 
Corporation issues more obligations which come within the tests of 
section 279(b) (1), (2), and (3) to acquire more stock (but not control) 
in Y Corporation. On December 31, 1973, it is determined with respect to 
X Corporation that neither of the conditions described in section 
279(b)(4) are present. Thus, the obligations issued in 1973 do not 
constitute corporate acquisition indebtedness. However, the obligations 
issued in 1971 and 1972 by X Corporation to acquire stock in Y 
Corporation continue to be treated as corporate acquisition 
indebtedness.
    Example 4. Assume the same facts as in Example 3, except that X 
Corporation acquires control of Y Corporation in 1973. Since X 
Corporation has acquired control of Y Corporation, the average annual 
earnings (as defined in section 279(c)(3)(B) and the annual interest to 
be paid or incurred (as provided by section 279(c)(4)) of both X 
Corporation and Y Corporation under section 279(c)(3)(A)(ii) are taken 
into account in computing for 1973 the ratio of projected earnings to 
annual interest to be paid or incurred described in section 
279(b)(4)(B). Assume further that after applying section 279(b)(4)(B) 
the obligations issued in 1973 escape treatment as corporate acquisition 
indebtedness for 1973. Under section 279(d)(3), all of the obligations 
issued by X Corporation to acquire stock in Y Corporation in 1971 and 
1972 are removed from classification as corporate acquisition 
indebtedness for 1973 and all subsequent taxable years.
    Example 5. In 1975, M Corporation, which files its Federal income 
tax return on the basis of a calendar year, issues its obligations to 
acquire 30 percent of the voting stock of N Corporation. N Corporation 
has only one class of stock. Such obligations satisfy the tests 
prescribed in section 279(b) (1), (2), and (3). Additionally, as of the 
close of 1975, M Corporation's ratio of debt to equity exceeds the ratio 
of 2 to 1 and its projected earnings do not exceed three times the 
annual interest to be paid or incurred. The obligations issued by M 
Corporation are corporate acquisition indebtedness for 1975 since all 
the provisions of section 279(b) are satisfied. In 1976 M Corporation 
issues its obligations to acquire from the shareholders of N Corporation 
an additional 60 percent of the voting stock of N Corporation, thereby 
acquiring control of N Corporation. However, with respect to the 
obligations issued by M Corporation in 1975, there is no redetermination 
under section 279(d)(3) and subparagraph (3) of this paragraph as to 
whether such obligations may escape classification as corporate 
acquisition indebtedness because in 1975 it was the ratio of debt to 
equity test which caused such obligations to be corporate acquisition 
indebtedness. If in 1975, M Corporation met the conditions of section 
279(b)(4) solely because of the ratio of projected earnings to annual 
interest to be paid or incurred described in section 279(b)(4)(B), its 
obligation issued in 1975 could be retested in 1976.

    (c) Acquisition of stock or assets of several corporations. An 
issuing corporation which acquires stock in, or assets of, more than one 
corporation during any taxable year must apply the tests described in 
section 279(b) (1), (2), and (3) separately with respect to each 
obligation issued to provide consideration for the acquisition of the 
stock in, or assets of, each such acquired corporation. Thus, if an 
acquisition is made with obligations of the issuing corporation that 
satisfy the tests described in section 279(b) (2) and (3) and 
obligations that fail to satisfy such tests, only those obligations 
satisfying such tests need be further considered to determine whether 
they constitute corporate acquisition indebtedness. Those obligations 
which meet the test of section 279(b)(1) but which are not deemed 
corporate acquisition indebtedness shall be taken into account for 
purposes of determining the reduction in the $5 million limitation of 
section 279(a)(1).
    (d) Ratio of debt to equity and projected earnings--(1) In general. 
One of the four tests to determine whether an obligation constitutes 
corporate acquisition indebtedness is contained in section 279(b)(4). An 
obligation will meet the test of section 279(b)(4) if, as of a day 
determined under section 279(c)(1) and paragraph (b)(2) of this section, 
either:
    (i) The ratio of debt to equity (as defined in paragraph (f) of this 
section) of the issuing corporation exceeds 2 to 1, or
    (ii) The projected earnings (as defined in subparagraph (2) of this 
paragraph) of the issuing corporation, or of both the issuing 
corporation and acquired corporation in any case where subparagraph 
(2)(ii) of this paragraph is applicable, do not exceed three times the 
annual interest to be paid or incurred (as defined in paragraph (e) of

[[Page 836]]

this section) by such issuing corporation, or, where applicable, by such 
issuing corporation and acquired corporation. Where paragraphs 
(d)(2)(ii) and (e)(1)(ii) of this section are applicable in computing 
projected earnings and annual interest to be paid or incurred, 100 
percent of the acquired corporation's projected earnings and annual 
interest to be paid or incurred shall be included in such computation, 
even though less than all of the stock or assets of the acquired 
corporation have been acquired.
    (2) Projected earnings. The term projected earnings means the 
``average annual earnings'' (as defined in subparagraph (3) of this 
paragraph) of:
    (i) The issuing corporation only, if subdivision (ii) of this 
subparagraph, does not apply, or
    (ii) Both the issuing corporation and the acquired corporation, in 
any case where the issuing corporation as of the close of its taxable 
year has acquired control, or has acquired substantially all of the 
properties, of the acquired corporation.

For purposes of subdivision (ii) of this subparagraph, an acquisition of 
``substantially all of the properties'' of the acquired corporation 
means the acquisition of assets representing at least 90 percent of the 
fair market value of the net assets and at least 70 percent of the fair 
market value of the gross assets held by the acquired corporation 
immediately prior to the acquisition.
    (3) Average annual earnings. (i) The term average annual earnings 
referred to in subparagraph (2) of this paragraph is, for any 
corporation, the amount of its earnings and profits for any 3-year 
period ending with the last day of a taxable year of the issuing 
corporation in which it issues any obligation to provide consideration 
for an acquisition described in section 279(b)(1), computed without 
reduction for:
    (a) Interest paid or incurred,
    (b) Depreciation or amortization allowed under Chapter 1 of the 
Code,
    (c) Liability for tax under Chapter 1 of the Code, and
    (d) Distributions to which section 301(c)(1) apply (other than such 
distributions from the acquired corporation to the issuing corporation), 
and reduced to an annual average for such 3-year period. For the rules 
to determine the amount of earnings and profits of any corporation, see 
section 312 and the regulations thereunder.
    (ii) Except as provided for in subdivision (iii) of this 
subparagraph, for purposes of subdivision (i) of this subparagraph in 
the case of any corporation, the earnings and profits for such 3-year 
period shall be reduced to an annual average by dividing such earnings 
and profits by 36 and multiplying the quotient by 12. If a corporation 
was not in existence during the entire 36-month period as of the close 
of the taxable year referred to in subdivision (i) of this subparagraph, 
its average annual earnings shall be determined by dividing its earnings 
and profits for the period of its existence by the number of whole 
calendar months in such period and multiplying the quotient by 12.
    (iii) Where the issuing corporation acquires substantially all of 
the properties of an acquired corporation, the computation of earnings 
and profits of such acquired corporation shall be made for the period of 
such corporation beginning with the first day of the 3-year period of 
the issuing corporation and ending with the last day prior to the date 
on which substantially all of the properties were acquired. In 
determining the number of whole calendar months for such acquired 
corporation where the period for determining its earnings and profits 
includes 2 months which are not whole calendar months and the total 
number of days in such 2 fractional months exceeds 30 days, the number 
of whole calendar months for such period shall be increased by one. 
Where the number of days in the 2 fractional months total 30 days or 
less such fractional months shall be disregarded. After the number of 
whole calendar months is determined, the calculation for average annual 
earnings shall be made in the same manner as described in the last 
sentence of subdivision (ii) of this subparagraph.
    (e) Annual interest to be paid or incurred--(1) In general. For 
purposes of section 279(b)(4)(B), the term annual interest to be paid or 
incurred means:
    (i) If subdivision (ii) of this subparagraph does not apply, the 
annual interest to be paid or incurred by the

[[Page 837]]

issuing corporation only, for the taxable year beginning immediately 
after the day described in section 279(c)(1), determined by reference to 
its total indebtedness outstanding as of such day, or
    (ii) If projected earnings are determined under paragraph (d)(2)(ii) 
of this section, the annual interest to be paid or incurred by both the 
issuing corporation and the acquired corporation for 1 year beginning 
immediately after the day described in section 279(c)(1), determined by 
reference to their combined total indebtedness outstanding as of such 
day. However, where the issuing corporation acquires substantially all 
of the properties of the acquired corporation, the annual interest to be 
paid or incurred will be determined by reference to the total 
indebtedness outstanding of the issuing corporation only (including any 
indebtedness it assumed in the acquisition) as of the day described in 
section 279(c)(1).

The term annual interest to be paid or incurred refers to both actual 
interest and unstated interest. Such unstated interest includes original 
issue discount as defined in paragraph (a)(1) of Sec. 1.163-4 and 
amounts treated as interest under section 483. For purposes of this 
paragraph and paragraph (f) of this section (relating to the ratio of 
debt to equity), the indebtedness of any corporation shall be determined 
in accordance with generally accepted accounting principles. Thus, for 
example, the indebtedness of a corporation includes short-term 
liabilities, such as accounts payable to suppliers, as well as long-term 
indebtedness. Contingent liabilities, such as those arising out of 
discounted notes, the assignment of accounts receivable, or the 
guarantee of the liability of another, shall be included in the 
determination of the indebtedness of a corporation if the contingency is 
likely to become a reality. In addition, the indebtedness of a 
corporation includes obligations issued by the corporation, secured only 
by property of the corporation, and with respect to which the 
corporation is not personally liable. See section 279(g) and Sec. 
1.279-6 for rules with respect to the computation of annual interest to 
be paid or incurred in regard to members of an affiliated group of 
corporations.
    (2) Examples. The provisions of these paragraphs may be illustrated 
by the following examples:

    Example 1. Corporation X's earnings and profits calculated in 
accordance with section 279(c)(3)(B) for 1972, 1971, and 1970 
respectively were $29 million, $23 million, and $20 million. The 
interest to be paid or incurred during the calendar year of 1973 as 
determined by reference to the issuing corporation's total outstanding 
indebtedness as of December 31, 1972, was $10 million. By dividing the 
sum of the earnings and profits for the 3 years by 36 (the number of 
whole calendar months in the 3-year period) and multiplying the quotient 
by 12, the average annual earnings for X Corporation is $24 million. 
Since the projected earnings of X Corporation do not exceed by three 
times the annual interest to be paid or incurred (they exceed by only 
2.4 times), one of the circumstances described in section 279(b)(4) is 
present.
    Example 2. On March 1, 1972, W Corporation acquires substantially 
all of the properties of Z Corporation in exchange for W Corporation's 
bonds which satisfy the tests of section 279(b) (2) and (3). W 
Corporation files its income tax returns on the basis of fiscal years 
ending June 30. Z Corporation, which was formed on September 1, 1969, is 
a calendar year taxpayer. The earnings and profits of W Corporation for 
the last 3 fiscal years ending June 30, 1972, calculated in accordance 
with the provisions of section 279(c)(3)(B) were $300 million, $400 
million, and $380 million, respectively. The average annual earnings of 
W Corporation is $360 million ($1,080 million / 36x12). The earnings and 
profits of Z Corporation calculated in accordance with the provisions of 
section 279(c)(3)(B) were $4 million for the period of September 1, 1969 
to December 31, 1969, $10 million and $14 million for the calendar years 
of 1970 and 1971, respectively, and $2 million for the period of January 
1, 1972, through February 29, 1972, or a total of $30 million. To arrive 
at the average annual earnings, the sum of the earnings and profits, $30 
million, must be divided by 30 (the number of whole calendar months that 
Z Corporation was in existence during W Corporation's 3-year period 
ending with the day prior to the date substantially all the assets were 
acquired) and the quotient is multiplied by 12, which results in an 
average annual earnings of $12 million ($30 million/30x12) for Z 
Corporation. The combined average annual earnings of W Corporation and Z 
Corporation is $372 million. The interest for the fiscal year ending 
June 30, 1973, to be paid or incurred by W Corporation on its 
outstanding indebtedness as of June 30, 1972, is $110 million. Since the 
projected earnings exceed the annual interest to be paid or incurred by 
more than three times, the obligation will

[[Page 838]]

not be corporate acquisition indebtedness, unless the issuing 
corporation's debt to equity ratio exceeds 2 to 1.

    (f) Ratio of debt to equity--(1) In general. The condition described 
in section 279(b)(4)(A) is present if the ratio of debt to equity of the 
issuing corporation exceeds 2 to 1. Under section 279(c)(2), the term 
ratio of debt to equity means the ratio which the total indebtedness of 
the issuing corporation bears to the sum of its money and all its other 
assets (in an amount equal to adjusted basis for determining gain) less 
such total indebtedness. For the meaning of the term indebtedness, see 
paragraph (e)(1) of this section. See section 279(g) and Sec. 1.279-6 
for rules with respect to the computation of the ratio of debt to equity 
in regard to an affiliated group of corporations.
    (2) Examples. The provisions of section 279(b)(4)(A) and this 
paragraph may be illustrated by the following example:

[$5 million interest to be paid or incurred x $80 million owed to X Bank 
    by its customers/$100 million total indebtedness]

    Example 1. On June 1, 1971, X Corporation, which files its federal 
income tax returns on a calendar year basis, issues an obligation for 
$45 million to the shareholders of Y Corporation to provide 
consideration for the acquisition of all of the stock of Y Corporation. 
Such obligation has the characteristics of corporate acquisition 
indebtedness described in section 279(b) (2) and (3). The projected 
earnings of X Corporation and Y Corporation exceed 3 times the annual 
interest to be paid or incurred by those corporations and, accordingly, 
the condition described in section 279(b)(4)(B) is not present. Also, on 
December 31, 1971, X Corporation has total assets with an adjusted basis 
of $150 million (including the newly acquired stock of Y Corporation 
having a basis of $45 million) and total indebtedness of $90 million. 
Hence, X Corporation's equity is $60 million computed by subtracting its 
$90 million of total indebtedness from its $150 million of total assets. 
Since X Corporation's ratio of debt to equity of 1.5 to 1 ($90 million 
of total indebtedness over $60 million equity) does not exceed 2 to 1, 
the condition described in section 279(b)(4)(A) is not present. 
Therefore, X Corporation's obligation for $45 million is not corporate 
acquisition indebtedness because on December 31, 1971, neither of the 
conditions specified in section 279(b)(4) existed.

    (g) Special rules for banks and lending or finance companies--(1) 
Debt to equity and projected earnings. Under section 279(c)(5), with 
respect to any corporation which is a bank (as defined in section 581) 
or is primarily engaged in a lending or finance business, the following 
rules are to be applied:
    (i) In determining under paragraph (f) of this section the ratio of 
debt to equity of such corporation (or of the affiliated group of which 
such corporation is a member), the total indebtedness of such 
corporation (and the assets of such corporation) shall be reduced by an 
amount equal to the total indebtedness owed to such corporation which 
arises out of the banking business of such corporation, or out of the 
lending or finance business of such corporation, as the case may be;
    (ii) In determining under paragraph (e) of this section the annual 
interest to be paid or incurred by such corporation (or by the issuing 
corporation and acquired corporation referred to in section 279(c)(4)(B) 
or by the affiliated group of corporations of which such corporation is 
a member), the amount of such interest (determined without regard to 
this subparagraph) shall be reduced by an amount which bears the same 
ratio to the amount of such interest as the amount of the reduction for 
the taxable year under subdivision (i) of this subparagraph bears to the 
total indebtedness of such corporation; and
    (iii) In determining under section 279(c)(3)(B) the average annual 
earnings, the amount of the earnings and profits for the 3-year period 
shall be reduced by the sum of the reductions under subdivision (ii) of 
this subparagraph for such period.

For purposes of this paragraph, the term lending or finance business 
means a business of making loans or purchasing or discounting accounts 
receivable, notes, or installment obligations. Additionally, the rules 
stated in this paragraph regarding the application of the ratio of debt 
to equity, the determination of the annual interest to be paid or 
incurred, and the determination of the average annual earnings also 
apply if the bank or lending or finance company is a member of an 
affiliated group of corporations. However, the rules are

[[Page 839]]

to be applied only for purposes of determining the debt, equity, 
projected earnings and annual interest of the bank or lending or finance 
company which then are taken into account in determining the debt to 
equity ratio and ratio of projected earnings to annual interest to be 
paid or incurred by the affiliated group as a whole. Thus, these rules 
are to be applied to reduce the bank's or lending or finance 
corporation's indebtedness, annual interest to be paid or incurred, and 
average annual earnings which are taken into account with respect to the 
group, but are not to reduce the indebtedness of, annual interest to be 
paid or incurred by, and average annual earnings of, any corporation in 
the affiliated group which is not a bank or a lending or finance 
company. In determining whether any corporation which is a member of an 
affiliated group is primarily engaged in a lending or finance business, 
only the activities of such corporation, and not those of the whole 
group, are to be taken into account. See Sec. 1.279-6 for the 
application of section 279 to certain affiliated groups of corporations.
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. As of the close of the taxable year, X Bank has a total 
indebtedness of $100 million, total assets of $115 million, and $80 
million is owed to X Bank by its customers. Bank X's indebtedness is $20 
million ($100 million total indebtedness less $80 million owed to the X 
Bank by its customers) and its assets are $35 million ($115 million 
total assets less $80 million owed to the bank by its customers). If its 
annual interest to be paid or incurred is $5 million, such amount is 
reduced by $4 million. Thus, X Bank's annual interest to be paid or 
incurred is $1 million.
    Example 2. Assume the same facts as in Example 1. X Bank has 
earnings and profits of $23 million for the 3-year period used to 
determine projected earnings. In computing the average annual earnings, 
the $23 million amount will be reduced by $12 million (three times the 
$4 million reduction of interest in Example 1, assuming that the 
reduction was the same for each year). Thus X Bank's earnings and 
profits for such 3-year period are $11 million ($23 million total 
earnings and profits less $12 million reduction).


[T.D. 7262, 38 FR 5847, Mar. 7, 1973, as amended by T.D. 9264, 71 FR 
30593, May 30, 2006]



Sec. 1.279-6  Application of section 279 to certain affiliated groups.

    (a) In general. Under section 279(g), in any case in which the 
issuing corporation is a member of an affiliated group, the application 
of section 279 shall be determined by treating all of the members of the 
affiliated group in the aggregate as the issuing corporation, except 
that the ratio of debt to equity of, projected earnings of, and the 
annual interest to be paid or incurred by any corporation (other than 
the issuing corporation determined without regard to this paragraph) 
shall be included in the determinations required under section 279(b)(4) 
as of any day only if such corporation is a member of the affiliated 
group on such day, and, in determining projected earnings of such 
corporation under section 279(c)(3), there shall be taken into account 
only the earnings and profits of such corporation for the period during 
which it was a member of the affiliated group. The total amount of an 
affiliated member's assets, indebtedness, projected earnings, and 
interest to be paid or incurred will enter into the computation required 
by this section, irrespective of any minority ownership in such member.
    (b) Aggregate money and other assets. In determining the aggregate 
money and all the other assets of the affiliated group, the money and 
all the other assets of each member of such group shall be separately 
computed and such separately computed amounts shall be added together, 
except that adjustments shall be made, as follows:
    (1) There shall be eliminated from the aggregate money and all the 
other assets of the affiliated group intercompany receivables as of the 
date described in section 279(c)(1);
    (2) There shall be eliminated from the total assets of the 
affiliated group any amount which represents stock ownership in any 
member of such group;
    (3) In any case where gain or loss is not recognized on transactions 
between members of an affiliated group under paragraph (d)(3) of this 
section, the basis of any asset involved in such transaction shall be 
the transferor's basis;

[[Page 840]]

    (4) The basis of property in a transaction to which Sec. 1.1502-13 
applies is the basis of the property determined under that section; and
    (5) There shall be eliminated from the money and all the other 
assets of the affiliated group any other amount which, if included, 
would result in a duplication of amounts in the aggregate money and all 
the other assets of the affiliated group.
    (c) Aggregate indebtedness. For purposes of applying section 279(c), 
in determining the aggregate indebtedness of an affiliated group of 
corporations the total indebtedness of each member of such group shall 
be separately determined, and such separately determined amounts shall 
be added together, except that there shall be eliminated from such total 
indebtedness as of the date described in section 279(c)(1):
    (1) The amount of intercompany accounts payable,
    (2) The amount of intercompany bonds or other evidences of 
indebtedness, and
    (3) The amount of any other indebtedness which, if included, would 
result in a duplication of amounts in the aggregate indebtedness of such 
affiliated group.
    (d) Aggregate projected earnings. In the case of an affiliated group 
of corporations (whether or not such group files a consolidated return 
under section 1501), the aggregate projected earnings of such group 
shall be computed by separately determining the projected earnings of 
each member of such group under paragraph (d) of Sec. 1.279-5, and then 
adding together such separately determined amounts, except that:
    (1) A dividend (a distribution which is described in section 
301(c)(1) other than a distribution described in section 243(c)(1)) 
distributed by one member to another member shall be eliminated, and
    (2) In determining the earnings and profits of any member of an 
affiliated group, there shall be eliminated any amount of interest 
income received or accrued, and of interest expense paid or incurred, 
which is attributable to intercompany indebtedness,
    (3) No gain or loss shall be recognized in any transaction between 
members of the affiliated group, and
    (4) Members of an affiliated group who file a consolidated return 
shall not apply the provisions of Sec. 1.1502-18 dealing with inventory 
adjustments in determining earnings and profits for purposes of this 
section.
    (e) Aggregate interest to be paid or incurred. For purposes of 
section 279(c)(4), in determining the aggregate annual interest to be 
paid or incurred by an affiliated group of corporations, the annual 
interest to be paid or incurred by each member of such affiliated group 
shall be separately calculated under paragraph (e) of Sec. 1.279-5, and 
such separately calculated amounts shall be added together, except that 
any amount of annual interest to be paid or incurred on any intercompany 
indebtedness shall be eliminated from such aggregate interest.

[T.D. 7262, 38 FR 5850, Mar. 5, 1973, as amended by T.D. 8560, 59 FR 
41675, Aug. 15, 1994; T.D. 8597, 60 FR 36679, July 18, 1995]



Sec. 1.279-7  Effect on other provisions.

    Under section 279(j), no inference is to be drawn from any provision 
in section 279 and the regulations thereunder that any instrument 
designated as a bond, debenture, note, or certificate or other evidence 
of indebtedness by its issuer represents an obligation or indebtedness 
of such issuer in applying any other provision of this title. Thus, for 
example, an instrument, the interest on which is not subject to 
disallowance under section 279 could, under section 385 and the 
regulations thereunder, be found to constitute a stock interest, so that 
any amounts paid or payable thereon would not be deductible.

[T.D. 7262, 38 FR 5851, Mar. 5, 1973]



Sec. 1.280B-1  Demolition of structures.

    (a) In general. Section 280B provides that, in the case of the 
demolition of any structure, no deduction otherwise allowable under 
chapter 1 of subtitle A shall be allowed to the owner or lessee of such 
structure for any amount expended for the demolition or any loss 
sustained on account of the demolition, and that the expenditure or loss 
shall be treated as properly chargeable to the capital account with 
respect to the

[[Page 841]]

land on which the demolished structure was located.
    (b) Definition of structure. For purposes of section 280B, the term 
structure means a building, as defined in Sec. 1.48-1(e)(1), including 
the structural components of that building, as defined in Sec. 1.48-
1(e)(2).
    (c) Effective date. This section is effective for demolitions 
commencing on or after December 30, 1997.

[T.D. 8745, 62 FR 67726, Dec. 30, 1997]



Sec. 1.280C-1  Disallowance of certain deductions for wage or salary 
expenses.

    If an employer elects to claim the targeted jobs credit under 
section 44B (as amended by the Revenue Act of 1978), or elects to claim 
the new jobs credit under section 44B (as in effect prior to enactment 
of the Revenue Act of 1978), the employer must reduce its deduction for 
wage or salary expenses paid or incurred in the year the credit is 
earned by the amount allowable as credit (determined without regard to 
the provisions of section 53). In the case in which wages and salaries 
are capitalized the amount subject to depreciation must be reduced by an 
amount equal to the amount of the credit (determined without regard to 
the provisions of section 53) in determining the depreciation deduction. 
In the case of an employer who uses the full absorption method of 
inventory costing under Sec. 1.471-11, the portion of the basis of the 
inventory attributable to the wage or salary expenses giving rise to the 
credit and paid or incurred in the year the credit is earned must be 
reduced by the amount of the credit allowable (determined without regard 
to the provisions of section 53). If the employer is an organization 
that is under common control (as described in Sec. 1.52-1), it must 
reduce its deduction for wage or salary expenses by the amount of the 
credit apportioned to it under Sec. 1.52-1 (a) or (b). The deduction 
for wage and salary expenses must be reduced in the year the credit is 
earned, even if the employer is unable to use the credit in that year 
because of the limitations imposed by section 53.

(Secs. 44B, 381, and 7805 of the Internal Revenue Code of 1954, 92 Stat. 
2834 (28 U.S.C. 44B); 91 Stat. 148 (26 U.S.C. 381(c)(26)); 68A Stat. 917 
(28 U.S.C. 7805))

[T.D. 7921, 48 FR 52908, Nov. 23, 1983]



Sec. 1.280C-3  Disallowance of certain deductions for qualified 
clinical testing expenses when section 28 credit is allowable.

    (a) In general. If a taxpayer is entitled to a credit under section 
28 for qualified clinical testing expenses (as defined in section 
28(b)), it must reduce the amount of any deduction for qualified 
clinical testing expenses paid or incurred in the year the credit is 
earned by the amount allowable as credit for such expenses (determined 
without regard to section 28(d)(2)).
    (b) Capitalization of qualified clinical testing expenses. In a case 
in which qualified clinical testing expenses are capitalized, the amount 
chargeable to the capital account for a taxable year must be reduced by 
the excess of the amount of the credit allowable for the taxable year 
under section 28 (determined without regard to section 28(d)(2)) over 
the amount allowable as a deduction for qualified clinical testing 
expenses (determined without regard to paragraph (a) of this section) 
for the taxable year. See section 174 and the regulations thereunder.
    (c) Controlled group of corporations; organizations under common 
control. In the case of a taxpayer described in paragraph (d)(5) of 
Sec. 1.28-1 of this chapter (relating to controlled groups of 
corporations and organizations under common control), paragraphs (a) and 
(b) of this section shall be applied in accordance with the rules 
prescribed for aggregation of expenditures under that paragraph.
    (d) Example. The following example illustrates the application of 
paragraphs (a) and (b) of this section:

    Example. A incurs $1,000 in clinical testing expenses for which a 
$500 credit is allowable under section 28. A also elects under section 
174 of the Code to amortize these expenses over a 5-year period 
beginning in the year the credit is claimed. Under paragraph (a), the 
current year amortization deduction of $200 ($1,000/5) is disallowed. 
Moreover, the

[[Page 842]]

amount which would otherwise be capitalized, $800, is reduced by the 
excess of the amount of the section 28 credit claimed for the taxable 
year over the amount of the allowable section 174 amortization deduction 
for the taxable year, or $300 ($500-$200). Thus, the amount chargeable 
to the capital account for the taxable year is $500 ($800-$300). A is 
entitled to amortize $500 over the remaining amortization period 
resulting in a deduction of $125 for each of the remaining four years.

[T.D. 8232, 53 FR 38715, Oct. 3, 1988]



Sec. 1.280C-4  Credit for increasing research activities.

    (a) In general. An election under section 280C(c)(3) to have the 
provisions of section 280C(c)(1) and (c)(2) not apply and elect the 
reduced research credit under section 280C(c)(3)(B) shall be made on 
Form 6765, ``Credit for Increasing Research Activities'' (or any 
successor form). In order for the election to be effective, the Form 
6765 must clearly indicate the taxpayer's intent to make the section 
280C(c)(3) election, and must be filed with an original return for the 
taxable year filed on or before the due date (including extensions) for 
filing the income tax return for such year, regardless of whether any 
research credits are claimed on the original return. An election, once 
made for any taxable year, is irrevocable for that taxable year.
    (b) Controlled groups of corporations; trades or businesses under 
common control--(1) In general. A member of a controlled group of 
corporations (within the meaning of section 41(f)(5)), or a trade or 
business which is treated as being under common control with other 
trades or businesses (within the meaning of section 41(f)(1)(B)), may 
make the election under section 280C(c)(3). However, only the common 
parent (within the meaning of Sec. 1.1502-77(a)(1)(i)) of a 
consolidated group may make the election on behalf of the members of a 
consolidated group. A member or trade or business shall make the 
election on Form 6765 and by the time prescribed in paragraph (a) of 
this section.
    (2) Example. The following example illustrates an application of 
paragraph (b) of this section:

    Example. A, B, and C, all of which are calendar year taxpayers, are 
members of a controlled group of corporations (within the meaning of 
section 41(f)(5)). A, B, and C each attach a statement to the 2009 Form 
6765, ``Credit for Increasing Research Activities,'' showing A and C had 
stand-alone entity credits (within the meaning of Sec. 1.41-6(c)(2)) 
that exceeded the group credit (within the meaning of Sec. 1.41-
6(a)(3)(iv)). A and C report their allocated portions of the group 
credit (as determined under Sec. 1.41-6(c)) on the 2009 Form 6765 and B 
reports no research credit on the 2009 Form 6765. A and B, but not C, 
each make an election for the reduced credit on the 2009 Form 6765. In 
December 2010, A determines that it understated its qualified research 
expenses in 2009 resulting in the group credit exceeding the sum of the 
stand-alone credits. On an amended 2009 Form 6765, A, B, and C each 
report their allocated portions of the group credit (including the 
excess group credit). B reports its credit as a regular credit under 
section 41(a) and reduces the credit under section 280C(c)(3)(B). C may 
not reduce its credit under section 280C(c)(3)(B) because C did not make 
an election for the reduced credit with its original return.

    (c) Effective/applicability date. This section applies to taxable 
years ending on or after July 27, 2011.

[T.D. 9539, 76 FR 44801, July 27, 2011]



Sec. 1.280F-1T  Limitations on investment tax credit and recovery 
deductions under section 168 for passenger automobiles and certain 

other listed property; overview of regulations (temporary).

    (a) In general. Section 280F(a) limits the amount of investment tax 
credit determined under section 46(a) and recovery deductions under 
section 168 for passenger automobiles. Section 280F(b) denies the 
investment tax credit and requires use of the straight line method of 
recovery for listed property that is not predominantly used in a 
qualified business use. In certain circumstances, section 280F(b) 
requires the recapture of an amount of cost recovery deductions 
previously claimed by the taxpayer. Section 280F(c) provides that 
lessees are to be subject to restrictions substantially equivalent to 
those imposed on owners of such property under section 280F (a) and (b). 
Section 280F(d) provides definitions and special rules; note that 
section 280F(d) (2) and (3) apply with respect to all listed property, 
even if the other provisions of section 280F do not affect the treatment 
of the property.

[[Page 843]]

    (b) Key to Code provisions. The following table identifies the 
provisions of section 280F under which regulations are provided, and 
lists each provision below with its corresponding regulation section:

 
                                                      Sections
                                Section    Section   1.280F-5T   Section
      Section 1.280F-2T        1.280F-3T  1.280F-4T     and     1.280F-6
                                                      1.280F-7
 
             (a)                  (b)       (d)(2)      (c)      (d)(3)
            (d)(1)               (d)(1)   .........  .........   (d)(4)
            (d)(8)             .........  .........  .........   (d)(5)
           (d)(10)             .........  .........  .........   (d)(6)
 


Sections 1.280F-2T(f) and 1.280F-4T(b) also provide special rules for 
improvements to passenger automobiles and other listed property that 
qualify as capital expenditures.
    (c) Effective dates--(1) In general. This section and Sec. Sec. 
1.280F-2T through 1.280F-6 apply to property placed in service or leased 
after June 18, 1984, in taxable years ending after that date. Section 
1.280F-7 applies to property leased after December 31, 1986, in taxable 
years ending after that date.
    (2) Exception. This section and Sec. Sec. 1.280F-2T through 1.280F-
6 shall not apply to any property:
    (i) Acquired pursuant to a binding contract in effect on June 18, 
1984, and at all times thereafter, or under construction by the taxpayer 
on that date, but only if the property is placed in service before 
January 1, 1985 (January 1, 1987, in the case of 15-year real property), 
or
    (ii) Leased pursuant to a binding contract in effect on June 18, 
1984, and at all times thereafter, but only if the lessee first uses 
such property under the lease before January 1, 1985 (January 1, 1987, 
in the case of 15-year real property).
    (3) Leased passenger automobiles. Section 1.280F-5T(e) generally 
applies to passenger automobiles leased after April 2, 1985, and before 
January 1, 1987, in taxable years ending after April 2, 1985. Section 
1.280F-5T(e) generally applies to passenger automobiles leased after 
April 2, 1985, in taxable years ending after that date. Section 1.280F-
5T(e) does not apply to any passenger automobile that is leased pursuant 
to a binding contract, which is entered into no later than April 2, 
1985, and which is in effect at all times thereafter, but only if the 
automobile is used under the lease before August 1, 1985. If Sec. 
1.280F-5T(e) does not apply to a passenger automobile, see paragraph (c) 
(1) and (2) of this section. Section 1.280F-7(a) applies to passenger 
automobiles leased after December 31, 1986, in taxable years ending 
after that date.

[T.D. 7986, 49 FR 42704, Oct. 24, 1984; as amended by T.D. 8061, 50 FR 
46038, Nov. 6, 1985; T.D. 8218, 53 FR 29881, Aug. 9, 1988; T.D. 8473, 58 
FR 19060, Apr. 12, 1993; T.D. 9133, 69 FR 35514, June 25, 2004]



Sec. 1.280F-2T  Limitations on recovery deductions and the investment 
tax credit for certain passenger automobiles (temporary).

    (a) Limitation on amount of investment tax credit--(1) General rule. 
The amount of the investment tax credit determined under section 46(a) 
for any passenger automobile shall not exceed $1,000. For a passenger 
automobile placed in service after December 31, 1984, the $1,000 amount 
shall be increased by the automobile price inflation adjustment (as 
defined in section 280F(d)(7)) for the calendar year in which the 
automobile is placed in service.
    (2) Election of reduced investment tax credit. If the taxpayer 
elects under section 48(q)(4) to reduce the amount of the investment tax 
credit in lieu of adjusting the basis of the passenger automobile under 
section 48(q)(1), the amount of the investment tax credit for any 
passenger automobile shall not exceed two-thirds of the amount 
determined under paragraph (a)(1) of this section.
    (b) Limitations on allowable recovery deductions--(1) Recovery 
deduction for year passenger automobile is placed in service. For the 
taxable year that a taxpayer places a passenger automobile in service, 
the allowable recovery deduction under section 168(a) shall not exceed 
$4,000. See paragraph (b)(3) of this

[[Page 844]]

section for the adjustment to this limitation.
    (2) Recovery deduction for remaining taxable years during the 
recovery period. For any taxable year during the recovery period 
remaining after the year that the property is placed in service, the 
allowable recovery deduction under section 168(a) shall not exceed 
$6,000. See paragraph (b)(3) of this section for the adjustment to this 
limitation.
    (3) Adjustment to limitation by reason of automobile price inflation 
adjustment. The limitations on the allowable recovery deductions 
prescribed in paragraph (b) (1) and (2) of this section are increased by 
the automobile price inflation adjustment (as defined in section 
280F(d)(7)) for the calendar year in which the automobile is placed in 
service.
    (4) Coordination with section 179. For purposes of section 280F(a) 
and this section, any deduction allowable under section 179 (relating to 
the election to expense certain depreciable trade or business assets) is 
treated as if that deduction were a recovery deduction under section 
168. Thus, the amount of the section 179 deduction is subject to the 
limitations described in paragraph (b) (1) and (2) of this section.
    (c) Disallowed recovery deductions allowed for years subsequent to 
the recovery period--(1) In general. (i) Except as otherwise provided in 
this paragraph (c), the ``unrecovered basis'' (as defined in paragraph 
(c)(1)(ii) of this section) of any passenger automobile is treated as a 
deductible expense in the first taxable year succeeding the end of the 
recovery period.
    (ii) The term unrecovered basis means the excess (if any) of:
    (A) The unadjusted basis (as defined in section 168(d)(1)(A), except 
that there is no reduction by reason of an election to expense a portion 
of the basis under section 179) of the passenger automobile, over
    (B) The amount of the recovery deductions (including any section 179 
deduction elected by the taxpayer) which would have been allowable for 
taxable years in the recovery period (determined after the application 
of section 280F (a) and paragraph (b) of this section and as if all use 
during the recovery period were used described in section 168(c)(1)).
    (2) Special rule when taxpayer elects to use the section 168(b)(3) 
optional recovery percentages. If the taxpayer elects to use the 
optional recovery percentages under section 168(b)(3) or must use the 
straight line method over the earnings and profits life (as defined and 
described in Sec. 1.280F-3T(f)), the second succeeding taxable year 
after the end of the recovery period is treated as the first succeeding 
taxable year after the end of the recovery period for purposes of this 
paragraph (c) because of the half-year convention. For example, assume a 
calendar-year taxpayer places in service on July 1, 1984, a passenger 
automobile (i.e., 3-year recovery property) and elects under section 
168(b)(3) to recover its cost over 5 years using the straight line 
optional percentages. Based on these facts, calendar year 1990 is 
treated as the first succeeding taxable year after the end of the 
recovery period.
    (3) Deduction limited to $6,000 for any taxable year. The amount 
that may be treated as a deductible expense under this paragraph (c) in 
the first taxable year succeeding the recovery period shall not exceed 
$6,000. Any excess shall be treated as an expense for the succeeding 
taxable years. However, in no event may any deduction in a succeeding 
taxable year exceed $6,000. The limitation on amounts deductible as an 
expense under this paragraph (c) with respect to any passenger 
automobile is increased by the automobile price inflation adjustment (as 
defined in section 280F(d)(7)) for the calendar year in which such 
automobile is placed in service.
    (4) Deduction treated as a section 168 recovery deduction. Any 
amount allowable as an expense in a taxable year after the recovery 
period by reason of this paragraph (c) shall be treated as a recovery 
deduction allowable under section 168. However, a deduction is allowable 
by reason of this paragraph (c) with respect to any passenger automobile 
for a taxable year only to the extent that a deduction under section 168 
would be allowable with respect to

[[Page 845]]

the automobile for that year. For example, no recovery deduction is 
allowable for a year during which a passenger automobile is disposed of 
or is used exclusively for personal purposes.
    (d) Additional reduction in limitations by reason of personal use of 
passenger automobile or by reason of a short taxable year. See paragraph 
(i) of this section for rules regarding the additional reduction in the 
limitations prescribed by paragraphs (a) through (c) of this section by 
reason of the personal use of a passenger automobile or by reason of a 
short taxable year.
    (e) Examples. The provisions of paragraphs (a) through (c) of this 
section may be illustrated by the following examples. For purposes of 
these examples, assume that all taxpayers use the calendar year and that 
no short taxable years are involved.

    Example 1. (i) On July 1, 1984, B purchases for $45,000 and places 
in service a passenger automobile which is 3-year recovery property 
under section 168. In 1984, B does not elect under section 179 to 
expense a portion of the cost of the automobile. The automobile is used 
exclusively in B's business during taxable years 1984 through 1990.
    (ii) The maximum amount of B's investment tax credit is $1,000 
(i.e., the lesser of $1,000 or .06x$45,000). B's unadjusted basis for 
purposes of section 168 is $44,500 (i.e., $45,000 reduced under section 
48(q)(1) by $500). B selects the use of the accelerated recovery 
percentages under section 168(b)(1).
    (iii) The maximum amount of B's recovery deduction for 1984 is 
$4,000 (i.e, the lesser of $4,000 or .25x$44,500); for 1985, $6,000 
(i.e., the lesser of $6,000 or .38x$44,500); and for 1986, $6,000 (i.e., 
the lesser of $6,000 or .37x$44,500).
    (iv) At the beginning of taxable year 1987, B's unrecovered basis in 
the automobile is $28,500 (i.e., $44,500-$16,000). Under paragraph (c) 
of this section, B may expense $6,000 of the unrecovered basis in the 
automobile in 1987. This expense is treated as a recovery deduction 
under section 168. For taxable years 1988 through 1990, B may deduct 
$6,000 of the unrecovered basis per year. At the beginning of 1991, B's 
unrecovered basis in the automobile is $4,500. During that year, B 
disposes of the automobile. B is not allowed a deduction for 1991 
because no deduction would be allowable under section 168 based on these 
facts.
    Example 2. (i) On July 1, 1984, C purchases for $50,000 and places 
in service a passenger automobile which is 3-year recovery property 
under section 168. The automobile is used exclusively in C's business 
during taxable years 1984 through 1992. In 1984, C does not elect under 
section 179 to expense a portion of the automobile's cost. C elects 
under section 48(q)(4) to take a reduced investment tax credit in lieu 
of the section 48(q)(1) basis adjustment.
    (ii) The maximum amount of C's investment tax credit is $666.67 
(i.e., the lesser of \2/3\ of $1,000 or .04x$50,000). C's unadjusted 
basis for purposes of section 168 is $50,000. C elects to use the 
optional recovery percentages under section 168(b)(3) based on a 5-year 
recovery period.
    (iii) The maximum amount of C's recovery deduction for 1984 is 
$4,000 (i.e., the lesser of $4,000 or .10x$50,000); for taxable years 
1985 through 1988, $6,000 per year (i.e., the lesser of $6,000 or .20 of 
$50,000). C's recovery deduction for 1989 is $5,000 (i.e., the lesser of 
.10x$50,000 or $6,000).
    (iv) At the beginning of taxable year 1990, C's unrecovered basis in 
the automobile is $17,000. Under paragraph (c) of this section, C may 
expense $6,000 of the unrecovered basis in the automobile in 1990. this 
expense is treated as a recovery deduction under section 168. For 
taxable years 1991 and 1992, C may deduct $6,000, and $5,000, 
respectively of the unrecovered basis per year.
    Example 3. Assume the same facts as in Example 2, except that C 
disposes of the passenger automobile on July 1, 1990. Under paragraph 
(c) of this section, C is not allowed a deduction for 1990 or for any 
succeeding taxable year because no deduction would be allowable under 
section 168 based on these facts.
    Example 4. (i) On July 1, 1984, G purchases for $15,000 and places 
in service a passenger automobile which is 3-year recovery property 
under section 168. The automobile is used exclusively in G's business 
during taxable years 1984 through 1987. In 1984, G elects under section 
179 to expense $5,000 of the cost of the property.
    (ii) The maximum amount of G's investment tax credit is $600 (i.e., 
the lesser of .06x$10,000 or $1,000).
    (iii) G's unadjusted basis for purposes of section 168 is $9,700 
(i.e., $15,000 minus the sum of $5,000 (the amount of the expense 
elected under section 179) and $300 (one-half of the investment tax 
credit under section 48(q)(1))). Under paragraph (b)(4) of this section, 
the allowable deduction under section 179 is treated as a recovery 
deduction under section 168 for purposes of this section. Thus, the 
maximum amount of G's section 179 deduction is $4,000 (i.e., the lesser 
of $4,000 or $5,000+.25x$9,700). G is entitled to no further recovery 
deduction under section 168 for 1984. The amount of G's 1985 and 1986 
recovery deductions are $3,686 (i.e., the lesser of .38x$9,700 or 
$6,000) and $3,589 (i.e., the lesser of .37x$9,700 or $6,000), 
respectively. At the beginning of 1987, G's unrecovered basis in the 
automobile is $3,425 (i.e., $14,700-$11,275).

[[Page 846]]

Under paragraph (c) of this section, G may expense the remaining $3,425 
in 1987.
    Example 5. (i) On July 1, 1984, D purchases for $55,000 and places 
in service a passenger automobile which is 3-year recovery property 
under section 168. The automobile is used exclusvely in D's business 
during taxable years 1984 through 1993. In 1984, D elects under section 
179 to expense $5,000 of the cost of the property.
    (ii) The maximum amount of D's investment tax credit is $1,000 
(i.e., the lesser of $1,000 or .06x$50,000).
    (iii) D's unadjusted basis for purposes of section 168 is $49,500 
(i.e., $55,000 minus the sum of $5,000 (the amount of the expense 
elected under section 179) and $500 (one-half of the investment tax 
credit under section 48 (q)(1))). Under paragraph (b)(4) of this 
section, the allowable deduction under section 179 is treated as a 
recovery deduction under section 168 for purposes of this section. Thus, 
the maximum amount of D's section 179 deduction is $4,000 (i.e., the 
lesser of $4,000 or $5,000+.25x$49,500). D is entitled to no further 
recovery deduction under section 168 for 1984. The maximum amount of D's 
1985 recovery deduction is $6,000 (i.e., the lesser of $6,000 or 
.38x$49,500); and for 1986, $6,000 (i.e., the lesser of $6,000 or .37 of 
$49,500).
    (iv) At the beginning of 1987, D's unrecovered basis is $38,500. D 
may expense the remaining unrecovered basis at the rate of $6,000 per 
year through 1992 and $2,500 in 1993.
    Example 6. Assume the same facts as in Example 5, except that in 
1993, D uses the automobile only 60 percent in his business. Under 
paragraph (c)(4) of this section for 1993, D may expense $1,500 (i.e., 
.60x$2,500). D is entitled to no further deductions with respect to the 
automobile in any later year.
    Example 7. (i) On July 1, 1984, F purchases for $44,500 and places 
in service a passenger automobile which is 3-year recovery property 
under section 168. The automobile is used exclusively in F's business 
during taxable years 1984 through 1992. In 1984, F elects under section 
179 to expense $5,000 of the cost of the property.
    (ii) F elects under section 48(q)(4) to take a reduced investment 
tax credit in lieu of the section 48(q)(1) basis adjustment. The maximum 
amount of F's investment tax credit is $666.67 (i.e., the lesser of \2/
3\ of $1,000 or .04x$39,500).
    (iii) F's unadjusted basis for purposes of section 168 is $39,500 
(i.e., $44,500-$5,000 (the amount of the expense elected under section 
179)). F elects to use the optional recovery percentage under section 
168(b)(3) based on a 5-year recovery period. Under paragraph (b)(4) of 
this section, the allowable section 179 deduction is treated as a 
recovery deduction under section 168 for purposes of this section. Thus, 
the maximum amount of F's section 179 deduction is $4,000 (i.e., the 
lesser of $4,000 or $5,000+.10x$39,500). F is entitled to no further 
recovery deduction under section 168 for 1984. The maximum amounts of 
F's recovery deductions for 1985 through 1988 are $6,000 per year (i.e., 
the lesser of $6,000 or .20x$39,500). F's recovery deduction for 1989 
(the first taxable year after the 5-year recovery period but the sixth 
recovery year for purposes of section 168) is $3,950 (i.e., the lesser 
of .10x$39,500 or $6,000).
    (iv) Under paragraph (c), taxable year 1990 is considered to be the 
first taxable year succeeding the end of the recovery period. At the 
beginning of taxable year 1990, F's unrecovered basis in the automobile 
is $12,550 (i.e., $44,500-$31,950). Under paragraph (c), F may expense 
$6,000 of his unrecovered basis in the automobile in 1990 and in 1991. 
This expense is treated as a recovery deduction under section 168. For 
taxable year 1992, F may expense the remaining $550 of his unrecovered 
basis in the automobile.

    (f) Treatment of improvements that qualify as capital expenditures. 
An improvement to a passenger automobile that qualifies as a capital 
expenditure under section 263 is treated as a new item of recovery 
property placed in service in the year the improvement is made. However, 
the limitations in paragraph (b) of this section on the amount of 
recovery deductions allowable are determined by taking into account as a 
whole both the improvement and the property of which the improvement is 
a part. If that improvement also qualifies as an investment in new 
section 38 property under section 48(b) and Sec. 1.48-2(b)(2), the 
limitation in paragraph (a)(1) of this section on the amount of the 
investment tax credit for that improvement is determined by taking into 
account any investment tax credit previously allowed for the passenger 
automobile (including any prior improvement considered part of the 
passenger automobile). Thus, the maximum credit allowable for the 
automobile (including the improvement) will be $1,000 (or \2/3\ of 
$1,000, in the case of an election to take a reduced credit under 
section 48(q)(4)) (adjusted under section 280F(d)(7) to reflect the 
automobile price inflation adjustment for the year the property of which 
the improvement is a part is placed in service).
    (g) Treatment of section 1031 or section 1033 transactions--(1) 
Treatment of exchanged passenger automobile. For a taxable year in which 
a transaction described in section 1031 or section 1033

[[Page 847]]

occurs, the unadjusted basis of an exchanged or converted passenger 
automobile shall cease to be taken into account in determining any 
recovery deductions allowable under section 168 as of the beginning of 
the taxable year in which the exchange or conversion occurs. Thus, no 
recovery deduction is allowable for the exchanged or converted 
automobile in the year of the exchange or conversion.
    (2) Treatment of acquired passenger automobile--(i) In general. The 
acquired automobile is treated as new property placed in service in the 
year of the exchange (or in the replacement year) and that year is its 
first recovery year.
    (ii) Limitations on recovery deductions. If the exchanged (or 
converted) automobile was acquired after the effective date of section 
280F (as set out in Sec. 1.280F-1(c)), the basis of that automobile as 
determined under section 1031(d) or section 1033(b) (whichever is 
applicable) must be reduced for purposes of computing recovery 
deductions with respect to the acquired automobile (but not for purposes 
of determining the amount of the investment tax credit and gain or loss 
on the sale or other disposition of the property) by the excess (if any) 
of:
    (A) The sum of the amounts that would have been allowable as 
recovery deductions with respect to the exchanged (or converted) 
automobile during taxable years preceding the year of the exchange (or 
conversion) if all of the use of the automobile during those years was 
use described in section 168(c), over
    (B) The sum of the amounts allowable as recovery deductions during 
those years.
    (3) Examples. The provisions of this paragraph (g) may be 
illustrated by the following examples:

    Example 1. (i) In 1982, F purchases and places in service a 
passenger automobile which is 3-year recovery property under section 
168. The automobile is used exclusively in F's business.
    (ii) On July 1, 1984, F exchanges the passenger automobile and 
$1,000 cash for a new passenger automobile (``like kind'' property). 
Under paragraph (g)(1) of this section, no recovery deduction is allowed 
in 1984 for the exchanged automobile. Any investment tax credit claimed 
with respect to that automobile is subject to recapture under section 
47.
    (iii) F's basis in the acquired property (as determined under 
section 1031(d) and F's qualified investment are $20,000. Under the 
provisions of paragraph (g)(2)(i) of this section, the acquired property 
is treated as new recovery property placed in service in 1984 to the 
extent of the full $20,000 of basis. The maximum amount of F's 
investment tax credit is limited to $1,000 (i.e., the lesser of $1,000 
or .06x$20,000). Cost recovery deductions are computed pursuant to 
paragraph (b) of this section.
    Example 2. (i) On July 1, 1984, E purchases for $30,000 and places 
in service a passenger automobile which is 3-year recovery property 
under section 168. In 1984, E's business use percentage is 80 percent 
and such use constitutes his total business/investment use.
    (ii) E elects under section 48(q)(4) to take a reduced investment 
tax credit in lieu of the section 48 (q)(1) basis adjustment. The 
maximum amount of E's investment tax credit is $533.33 (i.e., the lesser 
of \2/3\ of $1,000x.80 or .80x.04x$30,000).
    (iii) E's unadjusted basis for purposes of section 168 is $30,000. E 
selects the use of the accelerated recovery percentages under section 
168(b)(1). The maximum amount of E's recovery deduction for 1984 is 
$3,200 (i.e., the lesser of .80x$4,000 or .80x.25x$30,000).
    (iv) On June 10, 1985, E exchanges the passenger automobile and 
$1,000 cash for a new passenger automobile (``like kind'' property). 
Under paragraph (g)(1) of this section, no recovery deduction is 
allowable in 1985 for the exchanged automobile. The investment tax 
credit claimed is subject to recapture under section 47. Under paragraph 
(g)(2)(ii) of this section, E's basis in the acquired property for 
purposes of computing recovery deductions under section 280F is $27,000 
(i.e., $27,800 (section 1031(d) basis)--$800). The acquired automobile 
is used exclusively in F's business during taxable years 1985 through 
1988. Under paragraph (g)(2) of this section, the acquired property is 
treated as new recovery property placed in service in 1985. Assume that 
the automobile price inflation adjustment (as described under section 
280F(d)(7)) is zero. E's qualified investment in the property, as 
determined under Sec. 1.46-3(c)(1), is $27,800. The maximum amount of 
E's investment tax credit is $1,000 (i.e., the lesser of $1,000 or 
.06x$27,800). E's unadjusted basis for purposes of section 168 is 
$26,500 (i.e., $27,000 reduced under section 48(q)(1) by $500). Cost 
recovery deductions are computed pursuant to paragraph (b) of this 
section.

    (h) Other nonrecognition transactions. [Reserved]
    (i) Limitation under this section applies before other limitations--
(1) Personal use.

[[Page 848]]

The limitations imposed upon the maximum amount of the allowable 
investment tax credit and the allowable recovery deductions (as 
described in paragraphs (a) through (c) of this section) must be 
adjusted during any taxable year in which a taxpayer makes any use of a 
passenger automobile other than for business/investment use (as defined 
in Sec. 1.280F-6(d)(3)). The limitations on the amount of the allowable 
investment tax credit (as described in paragraph (a) of this section) 
and the allowable cost recovery deductions (as described in paragraphs 
(b) and (c) of this section) are redetermined by multiplying the 
limitations by the percentage of business/investment use (determined on 
an annual basis) during the taxable year.
    (2) Short taxable year. The limitations imposed upon the maximum 
amount of the allowable recovery deductions (as described in paragraphs 
(a) through (c) of this section) must be adjusted during any taxable 
year in which a taxpayer has a short taxable year. In this case, the 
limitation is adjusted by multiplying the limitation that would have 
been applied if the taxable year were not a short taxable year by a 
fraction, the numerator of which is the number of months and part-months 
in the short taxable year and the denominator of which is 12.
    (3) Examples. The provisions of this paragraph (i) may be 
illustrated by the following examples:

    Example 1. On July 1, 1984, A purchases and places in service a 
passenger automobile and uses it 80 percent for business/investment use 
during 1984. Under paragraph (i)(1) of this section, the maximum amount 
of the investment tax credit that A may claim for the automobile is $800 
(i.e., .80x$1,000).
    Example 2. Assume the same facts as in Example 1, except that A 
elects under section 48(q)(4) to take a reduced investment tax credit in 
lieu of the section 48(q)(1) basis adjustment. Under paragraph (i)(1) of 
this section, the maximum amount of the investment tax credit that A may 
claim for the automobile is $533.33 (i.e., .80x \2/3\ x$1,000).
    Example 3. On July 1, 1984, B purchases and places in service a 
passenger automobile and uses it 60 percent for business/investment use 
during 1984. Under paragraph (i)(1) of this section, the maximum amount 
of the investment tax credit that B may claim for the automobile is $600 
(i.e., .60x$1,000). B uses the car 70 percent for business/investment 
use during 1985 and 80 percent during 1986. Under paragraph (i)(1) of 
this section, the maximum amount of recovery deductions that B may claim 
for 1984, 1985, and 1986 are $2,400 (i.e., .60x$4,000), $4,200 (i.e., 
.70x$6,000), and $4,800 (i.e., .80x$6,000), respectively.
    Example 4. Assume the same facts as in Example 3 with the added 
facts that B's unrecovered basis at the beginning of 1987 is $6,000 and 
that B uses the automobile 85 percent for business/investment use during 
1987. Under paragraph (i)(1) of this section, the maximum amount that B 
may claim as an expense for 1987 is $5,000 (i.e., .85x$6,000).
    Example 5. On August 1, 1984, C purchases and places in service a 
passenger automobile and uses it exclusively for business. Taxable year 
1984 for C is a short taxable year which consists of 6 months. Under 
paragraph (i)(2) of this section, the maximum amount that C may claim as 
a recovery deduction for 1984 is $2,000 (i.e., \6/12\x$4,000).
    Example 6. Assume the same facts as in Example 5, except that C uses 
the passenger automobile 70 percent for business/investment use during 
1984. Under paragraph (i) (1) and (2) of this section, the maximum 
amount that C may claim as a recovery deduction for 1984 is $1,400 
(i.e., .70x\6/12\x$4,000).

(98 Stat. 494, 26 U.S.C. 280F; 68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7986, 49 FR 42704, Oct. 24, 1984, as amended by T.D. 9133, 69 FR 
35514, June 25, 2004]



Sec. 1.280F-3T  Limitations on recovery deductions and the investment 
tax credit when the business use percentage of listed property is 

not greater than 50 percent (temporary).

    (a) In general. Section 280F(b), generally, imposes limitations with 
respect to the amount allowable as an investment tax credit under 
section 46(a) and the amount allowable as a recovery deduction under 
section 168 in the case of listed property (as defined in Sec. 1.280F-
6(b)) if certain business use of the property (referred to as 
``qualified business use'') does not exceed 50 percent during a taxable 
year. Qualified business use generally means use in a trade or business, 
rather than use in an investment or other activity conducted for the 
production of income within the meaning of section 212. See Sec. 
1.280F-6(d) for the distinction between ``business/ investment use'' and 
``qualified business use.''
    (b) Limitation on the amount of investment tax credit--(1) Denial of 
investment tax credit when business use percentage

[[Page 849]]

not greater than 50 percent. Listed property is not treated as section 
38 property to any extent unless the business use percentage (as defined 
in section 280F(d)(6) and Sec. 1.280F-6(d)(1)) is greater than 50 
percent. For example, if a taxpayer uses listed property in a trade or 
business in the taxable year in which it is placed in service, but the 
business use percentage is not greater than 50 percent, no investment 
tax credit is allowed for that listed property. If, in the taxable year 
in which listed property is placed in service, the only business/
investment use (as defined in Sec. 1.280F-6(d)(3)) of that property is 
qualified business use (as defined in Sec. 1.280F-6(d)(2)(i)), and the 
business use percentage is 55 percent, the investment tax credit is 
allowed for the 55 percent of the listed property that is treated as 
section 38 property. The credit allowed is unaffected by any increase in 
the business use percentage in a subsequent taxable year.
    (2) Recapture of investment tax credit. Listed property ceases to be 
section 38 property to the extent that the business/investment use (as 
defined in Sec. 1.280F-6(d)(3)) for any taxable year is less than the 
business/investment use for the taxable year in which the property is 
placed in service. See Sec. 1.47-2(c). If the business use percentage 
(as defined in Sec. 1.280F-6(d)(1)) of listed property is greater than 
50 percent for the taxable year in which the property is placed in 
service, and less than or equal to 50 percent for any subsequent taxable 
year, that property ceases to be section 38 property in its entirety in 
that subsequent taxable year. Under Sec. 1.47-1(c)(1)(ii)(b), the 
property (or a portion thereof) is treated as ceasing to be section 38 
property on the first day of the taxable year in which the cessation 
occurs.
    (c) Limitation on the method of cost recovery under section 168 when 
business use of property not greater than 50 percent--(1) Year of 
acquisition. If any listed property (as defined in Sec. 1.280F-6(b)) is 
not predominantly used in a qualified business use (as defined in Sec. 
1.280F-6(d)(4)) in the year it is acquired, the recovery deductions 
allowed under section 168 for the property for that taxable year and for 
succeeding taxable years are to be determined using the straight line 
method over its earnings and profits life (as defined in paragraph (f) 
of this section). Additionally, the taxpayer is not entitled to make any 
election under section 179 with respect to the property for that year.
    (2) Subsequent years. If any listed property is not subject to 
paragraph (c)(1) of this section because such property is predominantly 
used in a qualified business use (as defined in Sec. 1.280F-6(d)(4)) 
during the year it is acquired but is not predominantly used in a 
qualified business use during a subsequent taxable year, the rules of 
this paragraph (c)(2) apply. In such a case, the taxpayer must determine 
the recovery deductions allowed under section 168 for the taxable year 
that the listed property is not predominantly used in a qualified 
business use and for any subsequent taxable year as if such property was 
not predominantly used in a qualified business use in the year in which 
it was acquired and there had been no section 179 election with respect 
to the property. Thus, the recovery deductions allowable under section 
168 for the remaining taxable years are computed by determining the 
applicable recovery percentage that would apply if the taxpayer had used 
the straight line method over the property's earnings and profits life 
beginning with the year the property was placed in service.
    (3) Effect of rule on recovery property that is not listed property. 
The mandatory use of the straight line method over the property's 
earnings and profits life under paragraphs (d) (1) and (2) of this 
section does not have any effect on the proper method of cost recovery 
for other recovery property of that same class placed in service in the 
same taxable year by the taxpayer and does not constitute an election to 
use an optional recovery period under section 168(b)(3).
    (d) Recapture of excess recovery deductions claimed--(1) In general. 
If paragraph (c)(2) of this section is applicable, any excess 
depreciation (as defined in paragraph (d)(2) of this section) must be 
included in the taxpayer's gross income and added to the property's 
adjusted basis for the first taxable year in which the property is not

[[Page 850]]

predominantly used in a qualified business use (as defined in Sec. 
1.280F-6(d)(4)).
    (2) Definition of excess depreciation. For purposes of this section, 
the term excess depreciation means the excess (if any) of:
    (i) The amount of the recovery deductions allowable with respect to 
the property for taxable years before the first taxable year in which 
the property was not predominantly used in a qualified business use, 
over
    (ii) The amount of the recovery deductions which would have been 
allowable for those years if the property had not been predominantly 
used in a qualified business use for the year it was acquired and there 
had been no section 179 election with respect to the property.

For purposes of paragraph (d)(2)(i), any deduction allowable under 
section 179 (relating to the election to expense certain depreciable 
trade or business assets) is treated as if that deduction was a recovery 
deduction under section 168.
    (3) Recordkeeping requirement. A taxpayer must be able to 
substantiate the use of any listed property, as prescribed in section 
274(d)(4) and Sec. 1.274-5T or Sec. 1.274-6T, for any taxable year for 
which recapture under section 280F(b)(3) and paragraph (d) (1) and (2) 
of this section may occur even if the taxpayer has fully depreciated (or 
expensed) the listed property in a prior year. For example, in the case 
of 3-year recovery property, the taxpayer shall maintain a log, journal, 
etc. for six years even though the taxpayer fully depreciated the 
property in the first three years.
    (e) Earnings and profits life--(1) Definition. The earnings and 
profits life with respect to any listed property is generally the 
following:

------------------------------------------------------------------------
                                               The applicable recovery
              In the case of--                       period is--
------------------------------------------------------------------------
3-year property............................  5 years.
5-year property............................  12 years.
10-year property...........................  25 years.
18-year real property and low-income         40 years.
 housing.
15-year public utility property............  35 years.
------------------------------------------------------------------------


However, if the recovery period applicable to any recovery property 
under section 168 is longer than the above assigned recovery period, 
such longer recovery period shall be used. For example, generally, the 
recovery period for recovery property used predominantly outside the 
United States is the property's present class life (as defined in 
section 168(g)(2)). In many cases, a property's present class life is 
longer than the recovery period assigned to the property under the above 
table. Pursuant to this paragraph (e)(1), the property's recovery period 
is its present class life.
    (2) Applicable recovery percentages. If the applicable recovery 
period is determined pursuant to the table prescribed in paragraph 
(e)(1) of this section, the applicable recovery percentage is:
    (i) For property other than 18-year real property or low-income 
housing:

------------------------------------------------------------------------
                                           And the recovery period is--
        If the recovery year is--        -------------------------------
                                             5      12      25      35
------------------------------------------------------------------------
1.......................................      10       4       2       1
2.......................................      20       9       4       3
3.......................................      20       9       4       3
4.......................................      20       9       4       3
5.......................................      10       8       4       3
7.......................................  ......       8       4       3
8.......................................  ......       8       4       3
9.......................................  ......       8       4       3
10......................................  ......       8       4       3
11......................................  ......       8       4       3
12......................................  ......       8       4       3
13......................................  ......       4       4       3
14......................................  ......  ......       4       3
15......................................  ......  ......       4       3
16......................................  ......  ......       4       3
17......................................  ......  ......       4       3
18......................................  ......  ......       4       3
19......................................  ......  ......       4       3
20......................................  ......  ......       4       3
21......................................  ......  ......       4       3
22......................................  ......  ......       4       3
23......................................  ......  ......       4       3
24......................................  ......  ......       4       3
25......................................  ......  ......       4       3
26......................................  ......  ......       2       3
27......................................  ......  ......  ......       3
28......................................  ......  ......  ......       3
29......................................  ......  ......  ......       3
30......................................  ......  ......  ......       3
31......................................  ......  ......  ......       3
32......................................  ......  ......  ......       2
33......................................  ......  ......  ......       2
34......................................  ......  ......  ......       2
35......................................  ......  ......  ......       2
36......................................  ......  ......  ......       1
------------------------------------------------------------------------

    (ii) For 18-year real property: [Reserved]
    (iii) For low-income housing: [Reserved]
    (f) Examples. The provisions of this section may be illustrated by 
the following examples. For purposes of these examples, assume that all 
taxpayers

[[Page 851]]

use the calendar year and that no short taxable years are involved.

    Example 1. On July 1, 1984, B purchases for $50,000 and places in 
service an item of listed property (other than a passenger automobile) 
which is 3-year recovery property under section 168. For the first 
taxable year that the property is in service, B used the property 40 
percent in a trade or business, 40 percent for the production of income, 
and 20 percent for personal purposes. Although B's total business/
investment use is greater than 50 percent, the business use percentage 
for that taxable year is only 40 percent. Under paragraph (b)(1) of this 
section, no investment tax credit is allowed for the property.
    Example 2. (i) On January 1, 1985, C purchases for $40,000 and 
places in service an item of listed property (other than a passenger 
automobile) that is 3-year recovery property under section 168. Seventy 
percent of the use of the property is in C's trade or business and 30 
percent of the use is for personal purposes. C does not elect a reduced 
investment tax credit under section 48(q)(4). The amount of C's 
investment tax credit is $1,680 (i.e., $40,000 x .60 x .10 x .70).
    (ii) In addition, in 1986, only 55 percent of the use of the 
property is in C's trade or business and 45 percent of the use is for 
personal purposes. Under paragraph (b)(2) of this section, the property 
ceases to be section 38 property to the extent that the use in a trade 
or business decreased below 70 percent. As a result, a portion of the 
investment tax credit must be recaptured as an increase in tax liability 
for 1986 under the rules of section 47 (relating to the recapture of 
investment tax credit). See section 47(a)(5) and Sec. 1.47-2(e) for 
rules relating to the computation of the recapture amount.
    Example 3. On July 1, 1984, B purchases and places in service an 
item of listed property (other than a passenger automobile) that is 3-
year recovery property. B elects to take a reduced investment tax credit 
under section 48(q)(4). In 1984, B uses the property exclusively in his 
business. Assume that B's 1984 allowable recovery deduction is $12,500. 
In 1985 and 1986, the property is not predominantly used in a qualified 
business use. The investment tax credit claimed is subject to recapture 
in full under section 47 in 1985 since the property ceases to be section 
38 property in its entirety on January 1, 1985. Under paragraph (c)(2) 
of this section, B must treat the property for 1985 and subsequent 
taxable years as if he recovered its cost over a 5-year recovery period 
(i.e., its earnings and profits life) using the straight line method 
(with the half-year convention) from the time it was placed in service. 
Therefore, taxable year 1985 is treated as the property's second 
recovery year (of its 5-year recovery period) and the applicable 
recovery deduction using the straight line method must be used to 
determine the recovery deduction. Under paragraph (d) of this section, B 
must recapture any excess depreciation claimed for taxable year 1984. If 
B had used the straight line method over a 5-year recovery period his 
recovery deduction for 1984 would have been $5,000. Under paragraph 
(d)(2) of this section, B's excess depreciation is $7,500 (i.e., $12,500 
- $5,000) and that amount must be included in B's 1985 gross income and 
added to the property's basis. The taxable years 1986 through 1989 are 
the property's second through sixth recovery years, respectively, of 
such property's 5-year recovery period.
    Example 4. Assume the same facts as in Example 3, except that in 
1986 B used the property exclusively in his business. B is entitled to 
no investment tax credit with respect to the property in 1986 and must 
continue to recover the property's cost over a 5-year recovery period 
using the straight line method.
    Example 5. On July 1, 1984, H purchases and places in service listed 
property (other than a passenger automobile) which is 3-year recovery 
property under section 168. H selects the use of the accelerated 
recovery percentages under section 168. In 1984 through 1986, H uses the 
property exclusively for business. In 1987, the property is not 
predominantly used in a qualified business use. Under paragraph (c)(2) 
of this section, H must compute his 1987 and subsequent taxable year's 
recovery deductions using the straight line method over a 5-year 
recovery period with 1987 treated as the fourth recovery year. Under 
paragraph (d) of this section, H must recapture any excess depreciation 
claimed for taxable years 1984 through 1986 even though by 1987 the full 
cost of the property had already been recovered.
    Example 6. Assume the same facts as in Example 5, except that H uses 
the property exclusively for personal purposes in 1987. Under paragraph 
(d) of this section, H must recapture any excess depreciation claimed 
for taxable years 1984 through 1986. H is entitled to no cost recovery 
deduction under the 5-year straight line method for 1987. Assume further 
that in 1988 H uses the property 70 percent in his business. Thus, H's 
business use percentage for that year is 70 percent. Under paragraph 
(c)(2) of this section, H must compute his 1988 cost recovery deduction 
using the straight line method over a 5-year recovery period with 1988 
treated as the fifth recovery year.
    Example 7. (i) On July 1, 1984, F purchases for $70,000 and places 
in service listed property (other than a passenger automobile) which is 
3-year recovery property under section 168. F's business use percentage 
for 1984 through 1986 is 60 percent. F elects under section 179 to 
expense $5,000 of the cost of the property.
    (ii) F elects a reduced investment tax credit under section 
48(q)(4). The maximum

[[Page 852]]

amount of F's investment tax credit is $1,560 (i.e., $65,000x.04x.60).
    (iii) F's unadjusted basis for purposes of section 168 is $65,000 
(i.e., $70,000 reduced by the $5,000 section 179 expense). F selects the 
use of the accelerated recovery percentages under section 168(b)(1). F's 
recovery deduction for 1984 is $9,750 (i.e., $65,000x.25x.60).
    (iv) In 1985, the property is not predominantly used in a qualified 
business use. The investment tax credit claimed is subject to recapture 
in full under section 47 in 1985 since the property ceases to be section 
38 property in its entirety on January 1, 1985. Under paragraph (c)(2) 
of this section, F must treat the property for 1985 and subsequent 
taxable years as if he recovered its cost over a 5-year recovery period 
(i.e., its earnings and profits life) using the straight line method 
(with the half year convention) from the time it was placed in service. 
Under paragraph (d) of this section, F must recapture any excess 
depreciation claimed for taxable year 1984. F's excess depreciation is 
$10,550 [i.e., ($65,000x.25x.60+$5,000)-($70,000x.10x.60)]. This amount 
must be included in F's 1985 gross income and added to the property's 
adjusted basis.
    Example 8. (i) On July 1, 1984, G purchases for $60,000 and places 
in service a passenger automobile which is 3-year recovery property 
under section 168.
    (ii) In 1984, G's business use percentage is 80 percent and such use 
constitutes his total business/investment use. G elects under section 
48(q)(4) to take a reduced investment tax credit in lieu of the basis 
adjustment under section 48(q)(1). The maximum amount of G's investment 
tax credit is $533.33 (i.e., the lesser of .80x\2/3\x$1,000 or 
$60,000x.80x.04).
    (iii) In 1984, G does not elect under section 179 to expense a 
portion of the automobile's cost. G selects the use of the accelerated 
recovery percentages under section 168. G's unadjusted basis for 
purposes of section 168 is $60,000. The maximum amount of G's 1984 
recovery deduction is $3,200 (i.e., the lesser of .80x$4,000 or 
.80x.25x$60,000).
    (iv) In 1985, G's business use percentage is 80 percent and such use 
constitutes his total business/investment use. The maximum amount of G's 
1985 recovery deduction is $4,800 (i.e., the lesser of .80x$6,000 or 
.80x.38x$60,000).
    (v) In 1986, G's business use percentage is 45 percent and such use 
constitutes his total business/investment use. Under paragraph (b)(2) of 
this section, as a result of the decline in the business use percentage 
to 50 percent or less, the automobile ceases to be section 38 property 
in its entirety and G must recapture (pursuant to Sec. Sec. 1.47-1(c) 
and 1.47-2(e)) the investment tax credit previously claimed. Since G's 
business use percentage in 1986 is not greater than 50 percent, under 
the provisions of paragraph (d) of this section, G must recompute (for 
recapture purposes) his recovery deductions for 1984 and 1985 using the 
straight line method over a 5-year recovery period (i.e., earnings and 
profits life for 3-year recovery property using the half-year 
convention) to determine if any excess depreciation must be included in 
his 1986 taxable income. G's recomputed recovery deductions for 1984 and 
1985 are $3,200 (i.e., the lesser of .80x$4,000 or .80x.10x$60,000), and 
$4,800 (i.e., the lesser of .80x$6,000 or .80x.20x$60,000), 
respectively. G does not have to recapture any excess depreciation since 
his recovery deductions for 1984 and 1985 computed using the straight 
line method over a 5-year recovery period are the same as the amounts 
actually claimed during those years.
    (vi) Under paragraph (c)(2) of this section, for 1986 and succeeding 
taxable years G must compute his remaining recovery deductions using the 
straight line method over a 5-year recovery period beginning with the 
third recovery year. The maximum amount of G's 1986 recovery deduction 
is $2,700 (i.e., the lesser of .45x$6,000 or .45x.20x$60,000). For 
taxable years 1987 through 1993, G's business use percentage is 55 
percent and such use constitutes his total business/investment use. G's 
1987 and 1988 recovery deductions are $3,300 per year (i.e., the lesser 
of .55x$6,000 or .55x.20x$60,000). For taxable year 1989 (the last 
recovery year), G's recovery deduction is $3,300 (i.e., .55x.10x$60,000 
or .55x$6,000).
    (vii) As of the beginning of 1990, G will have claimed a total of 
$20,600 of recovery deductions. Under Sec. 1.280F-2T(c), G may expense 
his remaining unrecovered basis (up to a certain amount per year) in the 
first succeeding taxable year after the end of the recovery period and 
in taxable years thereafter. If G had used his automobile for 100 
percent business use in taxable years 1984 through 1989, G could have 
claimed a recovery deduction of $4,000 in 1984 and a recovery deduction 
of $6,000 in each of those remaining years. At the beginning of 1990, 
therefore, G's unrecovered basis (as defined in section 280F(d)(8)) is 
$26,000 (i.e., $60,000-$34,000). The maximum amount of G's 1990 recovery 
deduction is $3,300 (i.e., .55x$6,000). At the beginning of 1991, G's 
unrecovered basis is $20,000 (i.e., $26,000 adjusted under section 
280F(d)(2) and Sec. 1.280F-4T(a) to account for the amount that would 
have been claimed in 1990 for 100 percent business/investment use during 
that year). The maximum amount of G's 1991 recovery deduction is $3,300 
(i.e., .55x$6,000) and his unrecovered basis as of the beginning of 1992 
is $14,000 (i.e., $20,000-$6,000). In 1992, G disposes of the

[[Page 853]]

automobile. G is not allowed a recovery deduction for 1992.

(98 Stat. 494, 26 U.S.C. 280F; 68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7986, 49 FR 42707, Oct. 24, 1984; as amended by T.D. 8061, 50 FR 
46038, Nov. 6, 1985; T.D. 9133, 69 FR 35514, June 25, 2004]



Sec. 1.280F-4T  Special rules for listed property (temporary).

    (a) Limitations on allowable recovery deductions in subsequent 
taxable years--(1) Subsequent taxable years affected by reason of 
personal use in prior years. For purposes of computing the amount of the 
recovery deduction for ``listed property'' for a subsequent taxable 
year, the amount that would have been allowable as a recovery deduction 
during an earlier taxable year if all of the use of the property was use 
described in section 168(c) is treated as the amount of the recovery 
deduction allowable during that earlier taxable year. The preceding 
sentence applies with respect to all earlier taxable years, beginning 
with the first taxable year in which some or all use of the ``listed 
property'' is use described in section 168(c). For example, on July 1, 
1984, B purchases and places in service listed property (other than a 
passenger automobile) which is 5-year recovery property under section 
168. B selects the use of the accelerated percentages under section 168. 
B's business/investment use of the property (all of which is qualified 
business use as defined in section 280F(d)(6)(B) and Sec. 1.280F-
6(d)(2)) in 1984 through 1988 is 80 percent, 70 percent, 60 percent, and 
55 percent, respectively, and B claims recovery deductions for those 
years based on those percentages. B's qualified business use for the 
property for 1989 and taxable years thereafter increases to 100 percent. 
Pursuant to this rule, B may not claim a recovery deduction in 1989 (or 
for any subsequent taxable year) for the increase in business use 
because there is no adjusted basis remaining to be recovered for cost 
recovery purposes after 1988.
    (2) Special rule for passenger automobiles. In the case of a 
passenger automobile that is subject to the limitations of Sec. 1.280F-
2T, the amount treated as the amount that would have been allowable as a 
recovery deduction if all of the use of the automobile was use described 
in section 168(c) shall not exceed $4,000 for the year the passenger 
automobile is placed in service and $6,000 for each succeeding taxable 
year (adjusted to account for the automobile price inflation adjustment, 
if any, under section 280F(d)(7) and for short taxable year under Sec. 
1.280F-2T(i)(2)). See. Sec. 1.280F-3T(g). Example 8.
    (b) Treatment of improvements that qualify as capital expenditures--
(1) In general. In the case of any improvement that qualifies as a 
capital expenditure under section 263 made to any listed property other 
than a passenger automobile, the rules of this paragraph (b) apply. See 
Sec. 1.280F-2T(f) for the treatment of an improvement made to a 
passenger automobile.
    (2) Investment tax credit allowed for the improvement. If the 
improvement qualifies as an investment in new section 38 property under 
section 48(b) and Sec. 1.48-2(b), the investment tax credit for that 
improvement is limited by paragraph (b)(1) of Sec. 1.280F-3T, as 
applied to the item of listed property as a whole.
    (3) Cost recovery of the improvement. The improvement is treated as 
a new item of recovery property. The method of cost recovery with 
respect to that improvement is limited by Sec. 1.280F-3T(c), as applied 
to the item of listed property as a whole.

(98 Stat. 494, 26 U.S.C. 280F; 68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7986, 49 FR 42710, Oct. 24, 1984, as amended by T.D. 9133, 69 FR 
35514, June 25, 2004]



Sec. 1.280F-5T  Leased property (temporary).

    (a) In general. Except as otherwise provided in this section, the 
limitation on cost recovery deductions and the investment tax credit 
provided in section 280F (a) and (b) and Sec. Sec. 1.280F-2T and 
1.280F-3T do not apply to any listed property leased or held for leasing 
by any person regularly engaged in the business of leasing listed 
property. If a person is not regularly engaged in the business of 
leasing listed property, the limitations on cost recovery deductions and 
the investment tax credit provided in section 280F and Sec. Sec. 
1.280F-2T and 1.280F-3T apply to such property leased or held for 
leasing by such

[[Page 854]]

person. The special rules for lessees set out in this section apply with 
respect to all lessees of listed property, even those whose lessors are 
not regularly engaged in the business of leasing listed property. For 
rules on determining inclusion amounts with respect to passenger 
automobiles, see paragraphs (d), (e) and (g) of this section, and see 
Sec. 1.280F-7(a). For rules on determining inclusion amounts with 
respect to other listed property, see paragraphs (f) and (g) of this 
section, and see Sec. 1.280F-7(b).
    (b) Section 48(d) election. If a lessor elects under section 48(d) 
with respect to any listed property to treat the lessee as having 
acquired such property, the amount of the investment tax credit allowed 
to the lessee is subject to the limitation prescribed in Sec. 1.280F-
3T(b) (1) and (2). If a lessor elects under section 48(d) with respect 
to any passenger automobile to treat the lessee as having acquired such 
automobile, the amount of the investment tax credit allowed to the 
lessee is also subject to the limitations prescribed in Sec. 1.280F-2T 
(a) and (i).
    (c) Regularly engaged in the business of leasing. For purposes of 
paragraph (a) of this section, a person shall be considered regularly 
engaged in the business of leasing listed property only if contracts to 
lease such property are entered into with some frequency over a 
continuous period of time. The determination shall be made on the basis 
of the facts and circumstances in each case, taking into account the 
nature of the person's business in its entirety. Occasional or 
incidental leasing activity is insufficient. For example, a person 
leasing only one passenger automobile during a taxable year is not 
regularly engaged in the business of leasing automobiles. In addition, 
an employer that allows an employee to use the employer's property for 
personal purposes and charges such employee for the use of the property 
is not regularly engaged in the business of leasing with respect to the 
property used by the employee.
    (d) Inclusions in income of lessees of passenger automobiles leased 
after June 18, 1984, and before April 3, 1985--(1) In general. If a 
taxpayer leases a passenger automobile after June 18, 1984, but before 
April 3, 1985, for each taxable year (except the last taxable year) 
during which the taxpayer leases the automobile, the taxpayer must 
include in gross income an inclusion amount (prorated for the number of 
days of the lease term included in that taxable year), determined under 
this paragraph (d)(1), and multiplied by the business/investment use (as 
defined in Sec. 1.280F-6(d)(3)(i)) for the particular taxable year. The 
inclusion amount:
    (i) Is 7.5 percent of the excess (if any) of the automobile's fair 
market value over $16,500 for each of the first three taxable years 
during which a passenger automobile is leased.
    (ii) Is 6 percent of the excess (if any) of the automobile's fair 
market value over $22,500 for the fourth taxable year during which a 
passenger automobile is leased.
    (iii) Is 6 percent of the excess (if any) of the automobile's fair 
market value over $28,500 for the fifth taxable year during which a 
passenger automobile is leased.
    (iv) Is 6 percent of the excess (if any) of the automobile's fair 
market value over $34,500 for the sixth taxable year during which a 
passenger automobile is leased.

For the seventh and subsequent taxable years during which a passenger 
automobile is leased, the inclusion amount is 6 percent of the excess 
(if any) of the automobile's fair market value over the sum of (A) 
$16,500 and (B) $6,000 multiplied by the number of such taxable years in 
excess of three years. See paragraph (g)(2) of this section for the 
definition of fair market value.
    (2) Additional inclusion amount when less than predominant use in a 
qualified business use. (i) If a passenger automobile, which is leased 
after June 18, 1984, and before April 3, 1985, is not used predominantly 
in a qualified business use during a taxable year, the lessee must add 
to gross income in the first taxable year that the automobile is not so 
used (and only in that year) an inclusion amount determined under this 
paragraph (d)(2). This inclusion amount is in addition to the amount 
required to be included in gross income under paragraph (d)(1) of this 
section.

[[Page 855]]

    (ii) If the fair market value (as defined in paragraph (h)(2) of 
this section) of the automobile is greater than $16,500, the inclusion 
amount is determined by multiplying the average of the business/
investment use (as defined in paragraph (h)(3) of this section) by the 
appropriate dollar amount from the table in paragraph (d)(2)(iii) of 
this section. If the fair market value (as defined in paragraph (h)(2) 
of this section) of the automobile is $16,500 or less, the inclusion 
amount is the product of the fair market value of the automobile, the 
average business/investment use, and the applicable percentage from the 
table in paragraph (d)(2)(iv) of this section.
    (iii) The dollar amount is determined under the following table:

------------------------------------------------------------------------
                                          The dollar amount:
If a passenger automobile is -------------------------------------------
 not predominantly used in a              Lease term (years)
   qualified business use    -------------------------------------------
          during--                1          2          3      4 or more
------------------------------------------------------------------------
The first taxable year of          $350       $700     $1,350     $1,850
 the lease term.............
The second taxable year of    .........  .........        650      1,250
 the lease term.............
The third taxable year of     .........  .........  .........        650
 the lease term.............
------------------------------------------------------------------------

    (iv) The applicable percentage is determined under the following 
table:

------------------------------------------------------------------------
                                           The applicable percentage:
                                       ---------------------------------
   If a passenger automobile is not            Lease term (years)
   predominantly used in a qualified   ---------------------------------
         business use during--                                     4 or
                                           1       2        3      more
------------------------------------------------------------------------
The first taxable year of the lease        3.0     6.0     10.2     13.2
 term.................................
The second taxable year of the lease    ......     1.25     6.2     10.4
 term.................................
The third taxable year of the lease     ......  .......     2.25     6.5
 term.................................
The fourth taxable year of the lease    ......  .......  .......     1.7
 term.................................
The fifth taxable year of the lease     ......  .......  .......     0.5
 term.................................
------------------------------------------------------------------------

    (e) Inclusions in income of lessees of passenger automobiles leased 
after April 2, 1985, and before January 1, 1987--(1) In general. For any 
passenger automobile that is leased after April 2, 1985, and before 
January 1, 1987, for each taxable year (except the last taxable year) 
during which the taxpayer leases the automobile, the taxpayer must 
include in gross income an inclusion amount determined under 
subparagraphs (2) through (5) of this paragraph (e). Additional 
inclusion amounts when a passenger automobile is not used predominantly 
in a qualified business use during a taxable year are determined under 
paragraph (e)(6) of this section. See paragraph (h)(2) of this section 
for the definition of fair market value.
    (2) Fair market value not greater than $50,000: years one through 
three. For any passenger automobile that has a fair market value not 
greater than $50,000, the inclusion amount for each of the first three 
taxable years during which the automobile is leased is determined as 
follows:
    (i) For the appropriate range of fair market values in the table in 
paragraph (e)(2)(iv) of this section, select the dollar amount from the 
column for the quarter of the taxable year in which the automobile is 
first used under the lease,
    (ii) Prorate the dollar amount for the number of days of the lease 
term included in the taxable year, and
    (iii) Multiply the prorated dollar amount by the business/investment 
use for the taxable year.
    (iv) Dollar amounts: Years 1-3:

                        Dollar Amounts: Years 1-3
------------------------------------------------------------------------
    Fair market value                  Taxable year quarter
------------------------------------------------------------------------
               But not
  Greater      greater        4th         3d          2d          1st
   than--       than--
------------------------------------------------------------------------
  $11,250      $11,500           $8          $7          $6          $6
   11,500       11,750           24          21          19          17
   11,750       12,000           40          35          32          29
   12,000       12,250           56          49          44          40
   12,250       12,500           72          64          57          52
   12,500       12,750           88          78          70          63
   12,750       13,000          104          92          83          75
   13,000       13,250          120         106          95          86
   13,250       13,500          144         128         115         104
   13,500       13,750          172         153         137         124
   13,750       14,000          200         177         159         145
   14,000       14,250          228         202         182         165
   14,250       14,500          256         227         204         185
   14,500       14,750          284         252         226         206
   14,750       15,000          312         277         249         226
   15,000       15,250          340         302         271         246
   15,250       15,500          369         327         293         266
   15,500       15,750          397         352         316         287

[[Page 856]]

 
   15,750       16,000          425         377         338         307
   16,000       16,250          453         402         360         327
   16,250       16,500          481         426         383         348
   16,500       16,750          509         451         405         368
   16,750       17,000          537         476         428         388
   17,000       17,500          579         514         461         419
   17,500       18,000          635         563         506         459
   18,000       18,500          691         613         550         500
   18,500       19,000          748         663         595         541
   19,000       19,500          804         713         640         581
   19,500       20,000          860         763         685         622
   20,000       20,500          916         812         729         662
   20,500       21,000          972         862         774         703
   21,000       21,500        1,028         912         819         744
   21,500       22,000        1,084         962         863         784
   22,000       23,000        1,169       1,036         930         845
   23,000       24,000        1,281       1,136       1,020         926
   24,000       25,000        1,393       1,236       1,109       1,007
   25,000       26,000        1,506       1,335       1,199       1,089
   26,000       27,000        1,618       1,435       1,288       1,170
   27,000       28,000        1,730       1,534       1,377       1,251
   28,000       29,000        1,842       1,634       1,467       1,332
   29,000       30,000        1,955       1,734       1,556       1,413
   30,000       31,000        2,067       1,833       1,646       1,495
   31,000       32,000        2,179       1,933       1,735       1,576
   32,000       33,000        2,292       2,032       1,824       1,657
   33,000       34,000        2,404       2,132       1,914       1,738
   34,000       35,000        2,516       2,232       2,003       1,819
   35,000       36,000        2,629       2,331       2,093       1,901
   36,000       37,000        2,741       2,431       2,182       1,982
   37,000       38,000        2,853       2,530       2,271       2,063
   38,000       39,000        2,965       2,630       2,361       2,144
   39,000       40,000        3,078       2,730       2,450       2,225
   40,000       41,000        3,190       2,829       2,540       2,307
   41,000       42,000        3,302       2,929       2,629       2,388
   42,000       43,000        3,415       3,028       2,718       2,469
   43,000       44,000        3,527       3,128       2,808       2,550
   44,000       45,000        3,639       3,228       2,897       2,631
   45,000       46,000        3,752       3,327       2,987       2,713
   46,000       47,000        3,864       3,427       3,076       2,794
   47,000       48,000        3,976       3,526       3,165       2,875
   48,000       49,000        4,088       3,626       3,255       2,956
   49,000       50,000        4,201       3,726       3,344       3,037
------------------------------------------------------------------------

    (3) Fair market value not greater than $50,000: years four through 
six. For any passenger automobile that has a fair market value greater 
than $18,000, but not greater than $50,000, the inclusion amount for the 
fourth, fifth, and sixth taxable years during which the automobile is 
leased is determined as follows:
    (i) For the appropriate range of fair market values in the table in 
paragraph (e)(3)(iv) of this section, select the dollar amount from the 
column for the taxable year in which the automobile is used under the 
lease,
    (ii) Prorate the dollar amount for the number of days of the lease 
term included in the taxable year, and
    (iii) Multiply this dollar amount by the business/investment use for 
the taxable year.
    (iv) Dollar Amounts: Years 4-6:

                        Dollar Amounts: Years 4-6
------------------------------------------------------------------------
      Fair market value                          Year
------------------------------------------------------------------------
                  But not
Greater than-- greater than--       4              5              6
 
------------------------------------------------------------------------
   $18,000        $18,500            $15     .............  ............
    18,500         19,000             45     .............  ............
    19,000         19,500             75     .............  ............
    19,500         20,000            105     .............  ............
    20,000         20,500            135     .............  ............
    20,500         21,000            165     .............  ............
    21,000         21,500            195     .............  ............
    21,500         22,000            225     .............  ............
    22,000         23,000            270     .............  ............
    23,000         24,000            330            $42     ............
    24,000         25,000            390            102     ............
    25,000         26,000            450            162     ............
    26,000         27,000            510            222     ............
    27,000         28,000            570            282     ............
    28,000         29,000            630            342            $54
    29,000         30,000            690            402            114
    30,000         31,000            750            462            174
    31,000         32,000            810            522            234
    32,000         33,000            870            582            294
    33,000         34,000            930            642            354
    34,000         35,000            990            702            414
    35,000         36,000          1,050            762            474
    36,000         37,000          1,110            822            534
    37,000         38,000          1,170            882            594
    38,000         39,000          1,230            942            654
    39,000         40,000          1,290          1,002            714
    40,000         41,000          1,350          1,062            774
    41,000         42,000          1,410          1,122            834
    42,000         43,000          1,470          1,182            894
    43,000         44,000          1,530          1,242            954
    44,000         45,000          1,590          1,302          1,014
    45,000         46,000          1,650          1,362          1,074
    46,000         47,000          1,710          1,422          1,134
    47,000         48,000          1,770          1,482          1,194
    48,000         49,000          1,830          1,542          1,254
    49,000         50,000         11,890          1,602          1,314
------------------------------------------------------------------------

    (4) Fair market value greater than $50,000: years one through six. 
(i) For any passenger automobile that has a fair market value greater 
than $50,000, the inclusion amount for the first six taxable years 
during which the automobile is leased is determined as follows:
    (A) Determine the dollar amount by using the appropriate formula in 
paragraph (e)(4)(ii) of this section,
    (B) Prorate the dollar amount for the number of days of the lease 
term included in the taxable year, and
    (C) Multiply this dollar amount by the business/investment use for 
the taxable year.
    (ii) The dollar amount is computed as follows:

[[Page 857]]

    (A) If the automobile is first used under the lease in the fourth 
quarter of a taxable year, the dollar amount for each of the first three 
taxable years during which the automobile is leased is the sum of--
    (1) $124, and
    (2) 11 percent of the excess of the automobile's fair market value 
over $13,200.
    (B) If the automobile is first used under the lease in the third 
quarter of a taxable year, the dollar amount for each of the first three 
taxable years during which the automobile is leased is the sum of--
    (1) $110, and
    (2) 10 percent of the excess of the automobile's fair market value 
over $13,200.
    (C) If the automobile is first used under the lease in the second 
quarter of a taxable year, the dollar amount for each of the first three 
taxable years during which the automobile is leased is the sum of--
    (1) $100, and
    (2) 9 percent of the excess of the automobile's fair market value 
over $13,200.
    (D) If the automobile is first used under the lease in the first 
quarter of a taxable year, the dollar amount for each of the first three 
taxable years during which the automobile is leased is the sum of--
    (1) $90, and
    (2) 8 percent of the excess of the automobile's fair market value 
over $13,200.
    (E) For the fourth taxable year during which the automobile is 
leased, the dollar amount is 6 percent of the excess of the automobile's 
fair market value over $18,000.
    (F) For the fifth taxable year during which the automobile is 
leased, the dollar amount is 6 percent of the excess of the automobile's 
fair market value over $22,800.
    (G) For the sixth taxable year during which the automobile is 
leased, the dollar amount is 6 percent of the excess of the automobile's 
fair market value over $27,600.
    (5) Seventh and subsequent taxable years. (i) For any passenger 
automobile that has a fair market value less than or equal to $32,400, 
the inclusion amount for the seventh and subsequent taxable years during 
which the automobile is leased is zero.
    (ii) For any passenger automobile that has a fair market value 
greater than $32,400, the inclusion amount for the seventh and 
subsequent taxable years during which the automobile is leased is 6 
percent of--
    (A) The excess (if any) of the automobile's fair market value, over
    (B) The sum of--
    (1) $13,200 and
    (2) $4,800 multiplied by the number of taxable years in excess of 
three years.
    (6) Additional inclusion amount when less than predominant use in a 
qualified business use. (i) If a passenger automobile, which is leased 
after April 2, 1985, and before January 1, 1987, is not predominantly 
used in a qualified business use during a taxable year, the lessee must 
add to gross income in the first taxable year that the automobile is not 
so used (and only in that year) an inclusion amount determined under 
this paragraph (e)(6). This inclusion amount is in addition to the 
amount required to be included in gross income under paragraph (e) (2), 
(3), (4), and (5) of this section.
    (ii) If the fair market value (as defined in paragraph (h)(2) of 
this section) of the automobile is greater than $11,250, the inclusion 
amount is determined by multiplying the average of the business/
investment use (as defined in paragraph (h)(3) of this section) by the 
appropriate dollar amount from the table in paragraph (e)(6)(iii) of 
this section. If the fair market value of the automobile is $11,250 or 
less, the inclusion amount is the product of the fair market value of 
the automobile, the average business/investment use, and the applicable 
percentage from the table in paragraph (e)(6)(iv) of this section.
    (iii) The dollar amount is determined under the following table:

[[Page 858]]



------------------------------------------------------------------------
                                         The dollar amount is:
If a passenger automobile is -------------------------------------------
 not predominantly used in a             Lease term (years)--
   qualified business use    -------------------------------------------
          during--                1          2          3      4 or more
------------------------------------------------------------------------
The first taxable year of          $350       $700     $1,150     $1,500
 the lease term.............
The second taxable year of    .........        150        700      1,200
 the lease term.............
The third taxable year of     .........  .........        250        750
 the lease term.............
------------------------------------------------------------------------

    (iv) The applicable percentage is determined under the following 
table:

------------------------------------------------------------------------
                                           The applicable percentage:
                                       ---------------------------------
   If a passenger automobile is not           Lease term (years)--
   predominantly used in a qualified   ---------------------------------
         business use during--                                     4 or
                                           1       2        3      more
------------------------------------------------------------------------
The first taxable year of the lease        3.0     6.0     10.2     13.2
 term.................................
The second taxable year of the lease    ......     1.25     6.2     10.4
 term.................................
The third taxable year of the lease     ......  .......     2.25     6.5
 term.................................
The fourth taxable year of the lease    ......  .......  .......     1.7
 term.................................
The fifth taxable year of the lease     ......  .......  .......     0.5
 term.................................
------------------------------------------------------------------------

    (f) Inclusions in income of lessees of listed property other than 
passenger automobiles--(1) In general. If listed property other than a 
passenger automobile is not used predominantly in a qualified business 
use in any taxable year in which such property is leased, the lessee 
must add an inclusion amount to gross income in the first taxable year 
in which such property is not so predominantly used (and only in that 
year). This inclusion amount is determined under paragraph (f)(2) of 
this section for property leased after June 18, 1984, and before January 
1, 1987. The inclusion amount is determined under Sec. 1.280F-7(b) for 
property leased after December 31, 1986.
    (2) Inclusion amount for property leased after June 18, 1984, and 
before January 1, 1987. The inclusion amount for property leased after 
June 18, 1984, and before January 1, 1987, is the product of the 
following amounts:
    (i) The fair market value (as defined in paragraph (h)(2) of this 
section) of the property,
    (ii) The average business/investment use (as defined in paragraph 
(h)(3) of this section), and
    (iii) The applicable percentage (as determined under paragraph 
(f)(3) of this section).
    (3) Applicable percentages. The applicable percentages for 3-, 5-, 
and 10-year recovery property are determined according to the following 
tables:
    (i) In the case of 3-year recovery property:

----------------------------------------------------------------------------------------------------------------
                                                           For the first taxable year in which the business use
                                                             percentage is 50 percent or less, the applicable
                                                                   percentage for such taxable year is--
             Taxable year during lease term              -------------------------------------------------------
                                                                                                          6 and
                                                             1         2         3        4        5      later
----------------------------------------------------------------------------------------------------------------
For a lease term of:
  1 year................................................      3.0  ........  ........  .......  .......  .......
  2 years...............................................      6.0      1.25  ........  .......  .......  .......
  3 years...............................................     10.2      6.2       2.25  .......  .......  .......
  4 or more years.......................................     13.2     10.4       6.5       1.7      0.5        0
----------------------------------------------------------------------------------------------------------------

    (ii) In the case of 5-year recovery property:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  For the first taxable year in which the business use percentage is 50 percent or less,
                                                                                   the applicable percentage for such taxable year is--
                 Taxable year during lease term                  ---------------------------------------------------------------------------------------
                                                                     1       2       3       4      5      6      7      8      9      10     11     12
--------------------------------------------------------------------------------------------------------------------------------------------------------
For a lease term of:
    1 year......................................................     2.7  ......  ......  ......  .....  .....  .....  .....  .....  .....  .....  .....
    2 years.....................................................     5.3     1.2  ......  ......  .....  .....  .....  .....  .....  .....  .....  .....

[[Page 859]]

 
    3 years.....................................................     9.9     6.1     1.6  ......  .....  .....  .....  .....  .....  .....  .....  .....
    4 years.....................................................    14.4    11.1     7.3     2.3  .....  .....  .....  .....  .....  .....  .....  .....
    5 years.....................................................    18.4    15.7    12.4     8.2    3.0  .....  .....  .....  .....  .....  .....  .....
    6 or more years.............................................    21.8    19.6    16.7    13.5    9.6   5.25    4.4    3.6    2.8    1.8    1.0      0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (iii) In the case of 10-year recovery property:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    For the first taxable year in which the business use percentage is 50 pct or less, the applicable
                                                                                  percentage for such taxable year is--
         Taxable year during lease term         --------------------------------------------------------------------------------------------------------
                                                   1      2      3      4      5      6      7      8      9      10     11     12     13     14     15
--------------------------------------------------------------------------------------------------------------------------------------------------------
For a lease term of:
    1 year.....................................    2.5  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....
    2 years....................................    5.1     .6  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....
    3 years....................................    9.8    5.6    1.0  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....
    4 years....................................   14.0   10.3    6.2    1.4  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....
    5 years....................................   17.9   14.5   10.9    6.7    1.8  .....  .....  .....  .....  .....  .....  .....  .....  .....  .....
    6 years....................................   21.3   18.3   15.1   11.4    7.1    2.1  .....  .....  .....  .....  .....  .....  .....  .....  .....
    7 years....................................   21.9   19.0   15.9   12.4    8.4    3.9    2.4  .....  .....  .....  .....  .....  .....  .....  .....
    8 years....................................   22.4   19.6   16.7   13.4    9.7    5.5    4.5    2.7  .....  .....  .....  .....  .....  .....  .....
    9 years....................................   22.9   20.2   17.4   14.3   10.9    7.0    6.4    5.1    3.0  .....  .....  .....  .....  .....  .....
    10 years...................................   23.5   20.9   18.2   15.2   11.9    8.3    8.1    7.2    5.7    3.3  .....  .....  .....  .....  .....
    11 years...................................   23.9   21.4   18.8   16.0   12.8    9.3    9.4    8.9    7.7    5.9    3.1  .....  .....  .....  .....
    12 years...................................   24.3   21.9   19.3   16.5   13.4   10.1   10.3   10.0    9.3    7.8    5.5    2.9  .....  .....  .....
    13 years...................................   24.7   22.2   19.7   16.9   14.0   10.7   11.1   11.0   10.4    9.2    7.4    5.2    2.7  .....  .....
    14 years...................................   25.0   22.5   20.1   17.3   14.4   11.1   11.6   11.7   11.3   10.3    8.8    6.9    4.8    2.5  .....
    15 or more years...........................   25.3   22.8   20.3   17.5   14.7   11.5   12.0   12.2   11.9   11.1    9.8    8.2    6.5    4.5    2.3
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (g) Special rules applicable to inclusions in income of lessees. 
This paragraph (g) applies to the inclusions in gross income of lessees 
prescribed under paragraphs (d)(2), (e)(6), or (f) of this section, or 
prescribed under Sec. 1.280F-7(b).
    (1) Lease term commences within 9 months of the end of lessee's 
taxable year. If:
    (i) The lease term commences within 9 months before the close of the 
lessee's taxable year,
    (ii) The property is not predominantly used in a qualified business 
use during that portion of the taxable year, and
    (iii) The lease term continues into the lessee's subsequent taxable 
year, then the inclusion amount is added to gross income in the lessee's 
subsequent taxable year and the amount is determined by taking into 
account the average of the business/investment use for both taxable 
years and the applicable percentage for the taxable year in which the 
lease term begins (or, in the case of a passenger automobile with a fair 
market value greater than $16,500, the appropriate dollar amount for the 
taxable year in which the lease term begins).
    (2) Lease term less than one year. If the lease term is less than 
one year, the amount which must be added to gross income is an amount 
that bears the same ratio to the inclusion amount determined before the 
application of this paragraph (g)(2) as the number of days in the lease 
term bears to 365.
    (3) Maximum inclusion amount. The inclusion amount shall not exceed 
the sum of all deductible amounts in connection with the use of the 
listed property properly allocable to the lessee's taxable year in which 
the inclusion amount must be added to gross income.
    (h) Definitions--(1) Lease term. In determining the term of any 
lease for purposes of this section, the rules of section 168(i)(3)(A) 
shall apply.
    (2) Fair market value. For purposes of this section, the fair market 
value of listed property is such value on the

[[Page 860]]

first day of the lease term. If the capitalized cost of listed property 
is specified in the lease agreement, the lessee shall treat such amount 
as the fair market value of the property.
    (3) Average business/investment use. For purposes of this section, 
the average business/investment use of any listed property is the 
average of the business/investment use for the first taxable year in 
which the business use percentage is 50 percent or less and all 
preceding taxable years in which such property is leased. See paragraph 
(g)(1) of this section for special rule when lease term commences within 
9 months before the end of the lessee's taxable year.
    (i) Examples. This section may be illustrated by the following 
examples.

    Example 1. On January 1, 1985, A, a calendar year taxpayer, leases 
and places in service a passenger automobile with a fair market value of 
$55,000. The lease is to be for a period of four years. During taxable 
years 1985 and 1986, A uses the automobile exclusively in a trade or 
business. Under paragraph (d)(1) of this section, A must include in 
gross income in both 1985 and 1986, $2,887.50 (i.e., ($55,000-
$16,500)x7.5%).
    Example 2. The facts are the same as in Example 1, and in addition, 
A uses the automobile only 45 percent in a trade or business during 
1987. Under paragraph (d)(1) of this section for 1987, A must include in 
gross income $1,299.38 (i.e., ($55,000-$16,500)x7.5%x45%). In addition, 
under paragraph (d)(2) of this section, A must also include in gross 
income in 1987, $530.85 (i.e., $650x81.67%, average business/investment 
use).
    Example 3. On August 1, 1985, B, a calendar year taxpayer, leases 
and places in service an item of listed property which is 5-year 
recovery property, with a fair market value of $10,000. The lease is to 
be for a period of 5 years. B's qualified business use of the property 
is 40 percent in 1985, 100 percent in 1986, and 90 percent in 1987. 
Under paragraphs (f)(1) and (g)(1) of this section, before the 
application of paragraph (g)(3) of this section, B must include in gross 
income in 1986, $1,288.00 (i.e., $10,000x70%x18.4%, the product of the 
fair market value, the average business use for both taxable years, and 
the applicable percentage for year one from the table in paragraph 
(f)(3)(iii) of this section).
    Example 4. On October 1, 1985, C, a calendar year taxpayer, leases 
and places in service an item of listed property which is 3-year 
recovery property with a fair market value of $15,000. The lease term is 
6 months (ending March 31, 1986) during which C uses the property 45 
percent in a trade or business, the only business/investment use. Under 
paragraphs (f)(1) and (g) (1) and (2) of this section, before the 
application of paragraph (g)(3) of this section, C must include in gross 
income in 1986, $100.97 (i.e., $15,000x45%x3%x182/365, the product of 
the fair market value, the average business use for both taxable years, 
and the applicable percentage for year one from the table in paragraph 
(f)(3)(i) of this section, prorated for the length of the lease term).
    Example 5. On July 15, 1985, A, a calendar year taxpayer, leases and 
places in service a passenger automobile with a fair market value of 
$45,300. The lease is for a period of 5 years, during which A uses the 
automobile exclusively in a trade or business. Under paragraph (e) (2) 
and (3) of this section, for taxable years 1985 through 1989, A must 
include the following amounts in gross income:

------------------------------------------------------------------------
                                                     Business
          Taxable year           Dollar  Proration     use     Inclusion
                                 amount             (percent)
------------------------------------------------------------------------
1985...........................  $3,327    170/365       100      $1,550
1986...........................   3,327    365/365       100       3,327
1987...........................   3,327    365/365       100       3,327
1988...........................   1,650    366/366       100       1,650
1989...........................   1,362    365/365       100       1,362
------------------------------------------------------------------------

    Example 6. The facts are the same as in Example 1, except that A 
uses the automobile only 45 percent in a trade or business during 1987 
through 1990. Under Sec. 1.280F-5T(e)(6), A must include in gross 
income for taxable year 1987, the first taxable year in which the 
automobile is not used predominantly in a trade or business, an 
additional amount based on the average business/investment use for 
taxable years 1985 through 1987. For taxable years 1985 through 1989, A 
must include the following amounts in gross income:

------------------------------------------------------------------------
                                                     Business
          Taxable year           Dollar  Proration     use     Inclusion
                                 amount             (percent)
------------------------------------------------------------------------
1985...........................  $3,327    170/365    100         $1,550
1986...........................   3,327    365/365    100          3,327
1987...........................   3,327    365/365     45          1,497
                                    750  .........     81.67         612
1988...........................   1,650    366/366     45            743
1989...........................   1,362    365/365     45            613
------------------------------------------------------------------------


(98 Stat. 494, 26 U.S.C. 280F; 68A Stat. 917, 26 U.S.C. 7805)

[T.D. 7986, 49 FR 42710, Oct. 24, 1984; as amended by T.D. 8061, 50 FR 
46038, Nov. 6, 1985; T.D. 8218, 53 FR 29881, Aug. 9, 1988; T.D. 8473, 58 
FR 19060, Apr. 12, 1993; T.D. 9133, 69 FR 35514, June 25, 2004]



Sec. 1.280F-6  Special rules and definitions.

    (a) Deductions of employee--(1) In general. Employee use of listed 
property

[[Page 861]]

shall not be treated as business/investment use (as defined in paragraph 
(d)(3) of this section) for purposes of determining the amount of any 
recovery deduction allowable (including any deduction under section 179) 
to the employee unless that use is for the convenience of the employer 
and required as a condition of employment.
    (2) ``Convenience of the employer'' and ``condition of employment'' 
requirements--(i) In general. The terms convenience of the employer and 
condition of employment generally have the same meaning for purposes of 
section 280F as they have for purposes of section 119 (relating to the 
exclusion from gross income for meals or lodging furnished for the 
convenience of the employer).
    (ii) ``Condition of employment.'' In order to satisfy the 
``condition of employment'' requirement, the use of the property must be 
required in order for the employee to perform the duties of his or her 
employment properly. Whether the use of the property is so required 
depends on all the facts and circumstances. Thus, the employer need not 
explicitly require the employee to use the property. Similarly, a mere 
statement by the employer that the use of the property is a condition of 
employment is not sufficient.
    (iii) ``Convenience of employer''. [Reserved]
    (3) Employee use. For purposes of this section, the term employee 
use means any use in connection with the performance of services by the 
employee as an employee.
    (4) Examples. The principles of this paragraph are illustrated in 
the following examples:

    Example 1. A is employed as a courier with W, which provides local 
courier services. A owns and uses a motorcycle to deliver packages to 
downtown offices for W. W does not provide delivery vehicles and 
explicitly requires all of its couriers to own a car or motorcycle for 
use in their employment with the company. A's use of the motorcycle for 
delivery purposes is for the convenience of W and is required as a 
condition of employment.
    Example 2. B is an inspector for X, a construction company with many 
construction sites in the local area. B is required to travel to the 
various construction sites on a regular basis; B uses her automobile to 
make these trips. Although X does not furnish B an automobile, X does 
not explicitly require B to use here own automobile. However, X 
reimburses B for any costs she incurs in traveling to the various job 
sites. B's use of here automobile in here employment is for the 
convenience of X and is required as a condition of employment.
    Example 3. Assume the same facts as in Example 2, except that X 
makes an automobile available to B who chooses to use her own automobile 
and receive reimbursement. B's use of her own automobile is not for the 
convenience of X and is not required as a condition of employment.
    Example 4. C is a pilot for Y, a small charter airline. Y requires 
its pilots to obtain x hours of flight time annually in addition to the 
number of hours of flight time spent with the airline. Pilots can 
usually obtain these hours by flying with a military reserve unit or by 
flying part-time with another airline. C owns his own airplane. C's use 
of his airplane to obtain the required flight hours is not for the 
convenience of the employer and is not required as a condition of 
employment.
    Example 5. D is employed as an engineer with Z, an engineering 
contracting firm. D occasionally takes work home at night rather than 
working late in the office. D owns and uses a computer which is 
virtually identical to the one she uses at the office to complete her 
work at home. D's use of the computer is not for the convenience of here 
employer and is not required as a condition of employment.

    (b) Listed property--(1) In general. Except as otherwise provided in 
paragraph (b)(5) of this section, the term listed property means:
    (i) Any passenger automobile (as defined in paragraph (c) of this 
section),
    (ii) Any other property used as a means of transportation (as 
defined in paragraph (b)(2) of this section),
    (iii) Any property of a type generally used for purposes of 
entertainment, recreation, or amusement, and
    (iv) Any computer or peripheral equipment (as defined in section 
168(i)(2)(B)), and
    (v) Any other property specified in paragraph (b)(4) of this 
section.
    (2) Means of transportation--(i) In general. Except as otherwise 
provided in paragraph (b)(2)(ii) of this section, property used as a 
means of transportation includes trucks, buses, trains, boats, 
airplanes, motorcycles, and any other vehicles for transporting persons 
or goods.
    (ii) Exception. The term ``listed property'' does not include any 
vehicle that is a qualified nonpersonal use vehicle

[[Page 862]]

as defined in section 274(i) and Sec. 1.274-5(k).
    (3) Property used for entertainment, etc.--(i) In general. Property 
of a type generally used for purposes of entertainment, recreation, or 
amusement includes property such as photographic, phonographic, 
communication, and video recording equipment.
    (ii) Exception. The term listed property does not include any 
photographic, phonographic, communication, or video recording equipment 
of a taxpayer if the equipment is use either exclusively at the 
taxpayer's regular business establishment or in connection with the 
taxpayer's principal trade or business.
    (iii) Regular business establishment. The regular business 
establishment of an employee is the regular business establishment of 
the employer of the employee. For purposes of this paragraph (b)(3), a 
portion of a dwelling unit is treated as a regular business 
establishment if the requirements of section 280A(c)(1) are met with 
respect to that portion.
    (4) Other property. [Reserved]
    (5) Exception for computers. The term listed property shall not 
include any computer (including peripheral equipment) used exclusively 
at a regular business establishment. For purposes of the preceding 
sentence, a portion of a dwelling unit shall be treated as a regular 
business establishment if (and only if) the requirements of section 
280A(c)(1) are met with respect to that portion.
    (c) Passenger automobile--(1) In general. Except as provided in 
paragraph (c)(3) of this section, the term passenger automobile means 
any 4-wheeled vehicle which is:
    (i) Manufactured primarily for use on public streets, roads, and 
highways, and
    (ii) Rated at 6,000 pounds gross vehicle weight or less.
    (2) Parts, etc. of automobile. The term passenger automobile 
includes any part, component, or other item that is physically attached 
to the automobile or is traditionally included in the purchase price of 
an automobile. The term does not include repairs that are not capital 
expenditures within the meaning of section 263.
    (3) Exception for certain vehicles. The term passenger automobile 
shall not include any:
    (i) Ambulance, hearse, or combination ambulance-hearse used by the 
taxpayer directly in a trade or business,
    (ii) Vehicle used by the taxpayer directly in the trade or business 
of transporting persons or property for compensation or hire, or
    (iii) Truck or van that is a qualified nonpersonal use vehicle as 
defined under Sec. 1.274-5T(k).
    (d) Business use percentage--(1) In general. The term business use 
percentage means the percentage of the use of any listed property which 
is qualified business use as described in paragraph (d)(2) of this 
section.
    (2) Qualified business use--(i) In general. Except as provided in 
paragraph (d)(2)(ii) of this section, the term qualified business use 
means any use in a trade or business of the taxpayer. The term qualified 
business use does not include use for which a deduction is allowable 
under section 212. Whether the amount of qualified business use exceeds 
50 percent is determinative of whether the investment tax credit and the 
accelerated percentages under section 168 are available for listed 
property (or must be recaptured). See Sec. 1.280F-3T.
    (ii) Exception for certain use by 5-percent owners and related 
persons--(A) In general. The term qualified business use shall not 
include:
    (1) Leasing property to any 5-percent owner or related person,
    (2) Use of property provided as compensation for the performance of 
services by a 5-percent owner or related person, or
    (3) Use of property provided as compensation for the performance of 
services by any person not described in paragraph (d)(2)(ii)(A)(2) of 
this section unless an amount is properly reported by the taxpayer as 
income to such person and, where required, there was withholding under 
chapter 24.

Paragraph (d)(2)(ii)(A)(1) of this section shall apply only to the 
extent that the use of the listed property is by an individual who is a 
related party or a 5-percent owner with respect to the owner or lessee 
of the property.

[[Page 863]]

    (B) Special rule for aircraft. Paragraph (d)(2)(ii)(A) of this 
section shall not apply with respect to any aircraft if at least 25 
percent of the total use of the aircraft during the taxable year 
consists of qualified business use not described in paragraph 
(d)(2)(ii)(A).
    (C) Definitions. For purposes of this paragraph:
    (1) 5-percent owner. The term 5-percent owner means any person who 
is a 5-percent owner with respect to the taxpayer (as defined in section 
416 (i)(1)(B)(i)).
    (2) Related person. The term related person means any person related 
to the taxpayer (within the meaning of section 267(b)).
    (3) Business/investment use--(i) In general. The term business/
investment use means the total business or investment use of listed 
property that may be taken into account for purposes of computing 
(without regard to section 280F(b)) the percentage of cost recovery 
deduction for a passenger automobile or other listed property for the 
taxable year. Whether the accelerated percentages under section 168 (as 
opposed to use of the straight line method of cost recovery) are 
available with respect to listed property or must be recaptured is 
determined, however, by reference to qualified business use (as defined 
in paragraph (d)(2) of this section) rather than by reference to 
business/investment use. Whether a particular use of property is a 
business or investment use shall generally be determined under the rules 
of section 162 or 212.
    (ii) Entertainment use. The use of listed property for 
entertainment, recreation, or amusement purposes shall be treated as 
business use to the extent that expenses (other than interest and 
property tax expenses) attributable to that use are deductible after 
application of section 274.
    (iii) Employee use. See paragraph (a) of this section for 
requirements to be satisfied for employee use of listed property to be 
considered business/investment use of the property.
    (iv) Use of taxpayer's automobile by another person. Any use of the 
taxpayer's automobile by another person shall not be treated, for 
purposes of section 280F, as use in a trade or business under section 
162 unless that use:
    (A) Is directly connected with the business of the taxpayer,
    (B) Is properly reported by the taxpayer as income to the other 
person and, where required, there was withholding under chapter 24, or
    (C) Results in a payment of fair market rent.

For purposes of this paragraph (d)(4)(iv)(C), payment to the owner of 
the automobile in connection with such use is treated as the payment of 
rent.
    (4) Predominantly used in qualified business use--(i) Definition. 
Property is predominantly used in a qualified business use for any 
taxable year if the business use percentage (as defined in paragraph 
(d)(1) of this section) is greater than 50 percent.
    (ii) Special rule for transfers at death. Property does not cease to 
be used predominantly in a qualified business use by reason of a 
transfer at death.
    (iii) Other dispositions of property. [Reserved]
    (5) Examples. The following examples illustrate the principles set 
forth in this paragraph.

    Example 1. E uses a home computer 50 percent of the time to manage 
her investments. The computer is listed property within the meaning of 
section 280F(d)(4). E also uses the computer 40 percent of the time in 
her part-time consumer research business. Because E's business use 
percentage for the computer does not exceed 50 percent, the computer is 
not predominantly used in a qualified business use for the taxable year. 
Her aggregate business/investment use for purposes of determining the 
percent of the total allowable straight line depreciation that she can 
claim is 90 percent.
    Example 2. Assume that E in Example 1 uses the computer 30 percent 
of the time to manage her investments and 60 percent of the time in her 
consumer research business. E's business use percentage exceeds 50 
percent. Her aggregrate business/investment use for purposes of 
determining her allowable investment tax credit and cost recovery 
deductions is 90 percent.
    Example 3. F is the proprietor of a plumbing contracting business. 
F's brother is employed with F's company. As part of his compensation, 
F's brother is allowed to use one of the company automobiles for 
personal use. The use of the company automobiles by F's brother is not a 
qualified business use because F and F's brother are related parties 
within the meaning of section 267(b).

[[Page 864]]

    Example 4. F, in Example 3, allows employees unrelated to him to use 
company automobiles as part of their compensation. F, however, does not 
include the value of these automobiles in the employees' gross income 
and F does not withhold with respect to the use of these automobiles. 
The use of the company automobiles by the employees in this case is not 
business/investment use.
    Example 5. X Corporation owns several automobiles which its 
employees use for business purposes. The employees are also allowed to 
take the automobiles home at night. However, the fair market value of 
the use of the automobile for any personal purpose, e.g., commuting to 
work, is reported by X as income to the employee and is withheld upon by 
X. The use of the automobile by the employee, even for personal 
purposes, is a qualified business use the respect to X.

    (e) Method of allocating use of property--(1) In general. For 
purposes of section 280F, the taxpayer shall allocate the use of any 
listed property that is used for more than one purpose during the 
taxable year to the various uses in the manner prescribed in paragraph 
(e) (2) and (3) of this section.
    (2) Passenger automobiles and other means of transportation. In the 
case of a passenger automobile or any other means of transportation, the 
taxpayer shall allocate the use of the property on the basis of mileage. 
Thus, the percentage of use in a trade or business for the year shall be 
determined by dividing the number of miles the vehicle is driven for 
purposes of that trade or business during the year by the total number 
of miles the vehicle is driven during the year for any purpose.
    (3) Other listed property. In the case of other listed property, the 
taxpayer shall allocate the use of that property on the basis of the 
most appropriate unit of time the property is actually used (rather than 
merely being available for use). For example, the percentage of use of a 
computer in a trade or business for a taxable year is determined by 
dividing the number of hours the computer is used for business purposes 
during the year by the total number of hours the computer is used for 
any purpose during the year.
    (f) Effective date--(1) In general. Except as provided in paragraph 
(f)(2) of this section, this section applies to property placed in 
service by a taxpayer on or after July 7, 2003. For regulations 
applicable to property placed in service before July 7, 2003, see Sec. 
1.280F-6T as in effect prior to July 7, 2003 (Sec. 1.280F-6T as 
contained in 26 CFR part 1, revised as of April 1, 2003).
    (2) Property placed in service before July 7, 2003. The following 
rules apply to property that is described in paragraph (c)(3)(iii) of 
this section, was placed in service by the taxpayer before July 7, 2003, 
and was treated by the taxpayer as a passenger automobile under Sec. 
1.280F-6T as in effect prior to July 7, 2003 (pre-effective date 
vehicle):
    (i) Except as provided in paragraphs (f)(2)(ii), (iii), and (iv) of 
this section, a pre-effective date vehicle will be treated as a 
passenger automobile to which section 280F(a) applies.
    (ii) A pre-effective date vehicle will be treated as property to 
which section 280F(a) does not apply if the taxpayer adopts that 
treatment in determining depreciation deductions on the taxpayer's 
original return for the year in which the vehicle is placed in service.
    (iii) A pre-effective date vehicle will be treated, to the extent 
provided in this paragraph (f)(2)(iii), as property to which section 
280F(a) does not apply if the taxpayer adopts that treatment on an 
amended Federal tax return in accordance with this paragraph 
(f)(2)(iii). This paragraph (f)(2)(iii) applies only if, on or before 
December 31, 2004, the taxpayer files, for all applicable taxable years, 
amended Federal tax returns (or qualified amended returns, 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)) treating the vehicle as property 
to which section 280F(a) does not apply. The applicable taxable years 
for this purpose are the taxable year in which the vehicle was placed in 
service by the taxpayer (or, if the period of limitation for assessment 
under section 6501 has expired for such year or any subsequent year (a 
closed year), the first taxable year following the most recent closed 
year) and all subsequent taxable years in which the vehicle was treated 
on the taxpayer's return as property to which section 280F(a) applies. 
If the earliest applicable taxable year is not the year in which the 
vehicle was placed in service, the adjusted depreciable basis of the 
property as of the

[[Page 865]]

beginning of the first applicable taxable year is recovered over the 
remaining recovery period. If the remaining recovery period as of the 
beginning of the first applicable taxable year is less than 12 months, 
the entire adjusted depreciable basis of the property as of the 
beginning of the first applicable taxable year is recovered in that 
year.
    (iv) A pre-effective date vehicle will be treated, to the extent 
provided in this paragraph (f)(2)(iv), as property to which section 
280F(a) does not apply if the taxpayer adopts that treatment on Form 
3115, Application for Change in Accounting Method, in accordance with 
this paragraph (f)(2)(iv). The taxpayer must follow 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, for example, see Rev. Proc. 2002-9 
(2002-1 C.B. 327) and Sec. 601.601(d)(2)(ii)(b) of this chapter). If 
the taxpayer files a Form 3115 treating the vehicle as property to which 
section 280F(a) does not apply, the taxpayer will be permitted to treat 
the change as a change in method of accounting under section 446(e) of 
the Internal Revenue Code and to take into account the section 481 
adjustment resulting from the method change. For purposes of Form 3115, 
the designated number for the automatic accounting method change 
authorized for this paragraph (f)(2)(iv) is 89.

[T.D. 7986, 49 FR 42713, Oct. 24, 1984, as amended by T.D. 8061, 50 FR 
46041, Nov. 6, 1985; T.D. 9069, 68 FR 40130, July 7, 2003; T.D. 9133, 69 
FR 35514, June 25, 2004; T.D. 9483, 75 FR 27937, May 19, 2010]



Sec. 1.280F-7  Property leased after December 31, 1986.

    (a) Inclusions in income of lessees of passenger automobiles leased 
after December 31, 1986--(1) In general. If a taxpayer leases a 
passenger automobile after December 31, 1986, the taxpayer must include 
in gross income an inclusion amount determined under this paragraph (a), 
for each taxable year during which the taxpayer leases the automobile. 
This paragraph (a) applies only to passenger automobiles for which the 
taxpayer's lease term begins after December 31, 1986. See Sec. Sec. 
1.280F-5T(d) and 1.280F-5T(e) for rules on determining inclusion amounts 
for passenger automobiles for which the taxpayer's lease term begins 
before January 1, 1987. See Sec. 1.280F-5T(h)(2) for the definition of 
fair market value.
    (2) Inclusion Amount. For any passenger automobile leased after 
December 31, 1986, the inclusion amount for each taxable year during 
which the automobile is leased is determined as follows:
    (i) For the appropriate range of fair market values in the 
applicable table, select the dollar amount from the column for the 
taxable year in which the automobile is used under the lease (but for 
the last taxable year during any lease that does not begin and end in 
the same taxable year, use the dollar amount for the preceding taxable 
year).
    (ii) Prorate the dollar amount for the number of days of the lease 
term included in the taxable year.
    (iii) Multiply the prorated dollar amount by the business/investment 
use (as defined in Sec. 1.280F-6(d)(3)(i)) for the taxable year.
    (iv) The following table is the applicable table in the case of a 
passenger automobile leased after December 31, 1986, and before January 
1, 1989:

            Dollar Amounts for Automobiles With a Lease Term Beginning in Calendar Year 1987 or 1988
----------------------------------------------------------------------------------------------------------------
  Fair market                               Taxable year during lease
    value of    ---------------------------------------------------------------------------------
   automobile          1st              2nd             3rd             4th         5 and later
----------------------------------------------------------------------------------------------------------------
      Over           Not over
 
      $12,800          $13,100              $2              $5              $7              $8              $9
       13,100           13,400               6              14              20              24              28
       13,400           13,700              10              23              34              41              47
       13,700           14,000              15              32              47              57              65
       14,000           14,300              19              41              61              73              84

[[Page 866]]

 
       14,300           14,600              23              50              74              89             103
       14,600           14,900              27              59              88             105             122
       14,900           15,200              31              68             101             122             140
       15,200           15,500              35              77             115             138             159
       15,500           15,800              40              87             128             154             178
       15,800           16,100              44              96             142             170             196
       16,100           16,400              48             105             155             186             215
       16,400           16,700              52             114             169             203             234
       16,700           17,000              56             123             182             219             253
       17,000           17,500              62             135             200             240             277
       17,500           18,000              69             150             223             267             309
       18,000           18,500              76             166             246             294             340
       18,500           19,000              83             181             268             321             371
       19,000           19,500              90             196             291             348             402
       19,500           20,000              97             211             313             375             433
       20,000           20,500             104             226             336             402             465
       20,500           21,000             111             242             358             429             496
       21,000           21,500             117             257             381             456             527
       21,500           22,000             124             272             403             483             558
       22,000           23,000             135             295             437             524             605
       23,000           24,000             149             325             482             578             667
       24,000           25,000             163             356             527             632             729
       25,000           26,000             177             386             572             686             792
       26,000           27,000             190             416             617             740             854
       27,000           28,000             204             447             662             794             917
       28,000           29,000             218             477             707             848             979
       29,000           30,000             232             507             752             902           1,041
       30,000           31,000             246             538             797             956           1,104
       31,000           32,000             260             568             842           1,010           1,166
       32,000           33,000             274             599             887           1,064           1,228
       33,000           34,000             288             629             933           1,118           1,291
       34,000           35,000             302             659             978           1,172           1,353
       35,000           36,000             316             690           1,023           1,226           1,415
       36,000           37,000             329             720           1,068           1,280           1,478
       37,000           38,000             343             751           1,113           1,334           1,540
       38,000           39,000             357             781           1,158           1,388           1,602
       39,000           40,000             371             811           1,203           1,442           1,665
       40,000           41,000             385             842           1,248           1,496           1,727
       41,000           42,000             399             872           1,293           1,550           1,789
       42,000           43,000             413             902           1,338           1,604           1,852
       43,000           44,000             427             933           1,383           1,658           1,914
       44,000           45,000             441             963           1,428           1,712           1,976
       45,000           46,000             455             994           1,473           1,766           2,039
       46,000           47,000             468           1,024           1,518           1,820           2,101
       47,000           48,000             482           1,054           1,563           1,874           2,164
       48,000           49,000             496           1,085           1,608           1,928           2,226
       49,000           50,000             510           1,115           1,653           1,982           2,288
       50,000           51,000             524           1,146           1,698           2,036           2,351
       51,000           52,000             538           1,176           1,743           2,090           2,413
       52,000           53,000             552           1,206           1,788           2,144           2,475
       53,000           54,000             566           1,237           1,834           2,198           2,538
       54,000           55,000             580           1,267           1,879           2,252           2,600
       55,000           56,000             594           1,297           1,924           2,306           2,662
       56,000           57,000             607           1,328           1,969           2,360           2,725
       57,000           58,000             621           1,358           2,014           2,414           2,787
       58,000           59,000             635           1,389           2,059           2,468           2,849
       59,000           60,000             649           1,419           2,104           2,522           2,912
       60,000           62,000             670           1,465           2,171           2,603           3,005
       62,000           64,000             698           1,525           2,262           2,711           3,130
       64,000           66,000             726           1,586           2,352           2,819           3,255
       66,000           68,000             753           1,647           2,442           2,927           3,379
       68,000           70,000             781           1,708           2,532           3,035           3,504
       70,000           72,000             809           1,768           2,622           3,143           3,629
       72,000           74,000             837           1,829           2,712           3,251           3,753
       74,000           76,000             865           1,890           2,802           3,359           3,878
       76,000           78,000             892           1,951           2,892           3,468           4,003
       78,000           80,000             920           2,012           2,982           3,576           4,128
       80,000           85,000             969           2,118           3,140           3,765           4,346
       85,000           90,000           1,038           2,270           3,365           4,035           4,658

[[Page 867]]

 
       90,000           95,000           1,108           2,422           3,590           4,305           4,969
       95,000          100,000           1,177           2,574           3,816           4,575           5,281
      100,000          110,000           1,282           2,802           4,154           4,980           5,749
      110,000          120,000           1,421           3,105           4,604           5,520           6,372
      120,000          130,000           1,560           3,409           5,055           6,060           6,996
      130,000          140,000           1,699           3,713           5,505           6,600           7,619
      140,000          150,000           1,838           4,017           5,956           7,140           8,243
      150,000          160,000           1,977           4,321           6,406           7,680           8,866
      160,000          170,000           2,116           4,625           6,857           8,221           9,490
      170,000          180,000           2,255           4,929           7,307           8,761          10,113
      180,000          190,000           2,394           5,232           7,758           9,301          10,737
      190,000          200,000           2,533           5,536           8,208           9,841          11,360
----------------------------------------------------------------------------------------------------------------

    (v) The applicable table in the case of a passenger automobile first 
leased after December 31, 1988, will be contained in a revenue ruling or 
revenue procedure published in the Internal Revenue Bulletin.
    (3) Example. The following example illustrates the application of 
this paragraph (a):

    Example. On April 1, 1987, A, a calendar year taxpayer, leases and 
places in service a passenger automobile with a fair market value of 
$31,500. The lease is to be for a period of three years. During taxable 
years 1987 and 1988, A uses the automobile exclusively in a trade or 
business. During 1989 and 1990, A's business/investment use is 45 
percent. The appropriate dollar amounts from the table in paragraph 
(a)(2)(iv) of this section are $260 for 1987 (first taxable year during 
the lease), $568 for 1988 (second taxable year during the lease), $842 
for 1989 (third taxable year during the lease), and $842 for 1990. Since 
1990 is the last taxable year during the lease, the dollar amount for 
the preceding year (the third year) is used, rather than the dollar 
amount for the fourth year. For taxable years 1987 through 1990, A's 
inclusion amounts are determined as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                          Business
                          Tax year                               Dollar     Proration       use       Inclusion
                                                                 amount                  (percent)      amount
----------------------------------------------------------------------------------------------------------------
1987........................................................         $260      275/365          100         $196
1988........................................................          568      366/366          100          568
1989........................................................          842      365/365           45          379
1990........................................................          842       90/365           45           93
----------------------------------------------------------------------------------------------------------------

    (b) Inclusions in income of lessees of listed property (other than 
passenger automobiles) leased after December 31, 1986--(1) In general. 
If listed property other than a passenger automobile is not used 
predominantly in a qualified business use in any taxable year in which 
such property is leased, the lessee must add an inclusion amount to 
gross income in the first taxable year in which such property is not so 
predominantly used (and only in that year). This year is the first 
taxable year in which the business use percentage (as defined in Sec. 
1.280F-6(d)(1)) of the property is 50 percent or less. This inclusion 
amount is determined under this paragraph (b) for property for which the 
taxpayer's lease term begins after December 31, 1986 (and under Sec. 
1.280F-5T(f) for property for which the taxpayer's lease term begins 
before January 1, 1987). See also Sec. 1.280F-5T(g).
    (2) Inclusion amount. The inclusion amount for any listed property 
(other than a passenger automobile) leased after December 31, 1986, is 
the sum of the amounts determined under subdivisions (i) and (ii) of 
this subparagraph (2).
    (i) The amount determined under this subdivision (i) is the product 
of the following amounts:
    (A) The fair market value (as defined in Sec. 1.280F-5T(h)(2)) of 
the property,
    (B) The business/investment use (as defined in Sec. 1.280F-
6(d)(3)(i)) for the first taxable year in which the business

[[Page 868]]

use percentage (as defined in Sec. 1.280F-6(d)(1)) is 50 percent or 
less, and
    (C) The applicable percentage from the following table:

[[Page 869]]



------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         First taxable year during lease in which business use percentage is 50% or less
                                                               ---------------------------------------------------------------------------------------------------------------------------------
                       Type of property                                                                                                                                                  12 and
                                                                    1         2         3          4          5          6          7          8          9          10         11       Later
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Property with a recovery period of less than 7 years under the       2.1      -7.2      -19.8      -20.1      -12.4      -12.4      -12.4      -12.4      -12.4      -12.4      -12.4      -12.4
 alternative depreciation system (such as computers, trucks
 and airplanes)...............................................
Property with a 7- to 10-year recovery period under the              3.9      -3.8      -17.7      -25.1      -27.8      -27.2      -27.1      -27.6      -23.7      -14.7      -14.7      -14.7
 alternative depreciation system (such as recreation property)
Property with a recovery period of more than 10 years under          6.6      -1.6      -16.9      -25.6      -29.9      -31.1      -32.8      -35.1      -33.3      -26.7      -19.7      -12.2
 the alternative depreciation system (such as certain property
 with no class life)..........................................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 870]]

    (ii) The amount determined under this subdivision (ii) is the 
product of the following amounts:
    (A) The fair market value of the property,
    (B) The average of the business/investment use for all taxable years 
(in which such property is leased) that precede the first taxable year 
in which the business use percentage is 50 percent or less, and
    (C) The applicable percentage from the following table:

----------------------------------------------------------------------------------------------------------------
                                First taxable year during lease in which business use percentage is 50% or less
                             -----------------------------------------------------------------------------------
      Type of property                                                                                       12
                                1      2      3      4      5      6      7      8      9      10     11    and
                                                                                                           Later
----------------------------------------------------------------------------------------------------------------
Property with a recovery        0.0   10.0   22.0   21.2   12.7   12.7   12.7   12.7   12.7   12.7   12.7   12.7
 period of less than 7 years
 under the alternative
 depreciation system (Such
 as computers, trucks and
 airplanes).................
Property with a 7- to 10-       0.0    9.3   23.8   31.3   33.8   32.7   31.6   30.5   25.0   15.0   15.0   15.0
 year recovery period under
 the alternative
 depreciation system (such
 as recreation property)....
Property with a recovery        0.0   10.1   26.3   35.4   39.6   40.2   40.8   41.4   37.5   29.2   20.8   12.5
 period of more than 10
 years under the alternative
 depreciation system (such
 as certain property with no
 class life)................
----------------------------------------------------------------------------------------------------------------

    (3) Example. The following example illustrates the application of 
this paragraph (b):

    Example. On February 1, 1987, B, a calendar year taxpayer, leases 
and places in service a computer with a fair market value of $3,000. The 
lease is to be for a period of two years. B's qualified business use of 
the property, which is the only business/investment use, is 80 percent 
in taxable year 1987, 40 percent in taxable year 1988, and 35 percent in 
taxable year 1989. B must add an inclusion amount to gross income for 
taxable year 1988, the first taxable year in which B does not use the 
computer predominantly for business (i.e., the first taxable year in 
which B's business use percentage is 50 percent or less). Since 1988 is 
the second taxable year during the lease, and since the computer has a 
5-year recovery period under the General and Alternative Depreciation 
Systems, the applicable percentage from the table in subdivision (i) of 
paragraph (b)(2) is -7.2%, and the applicable percentage from the table 
in subdivision (ii) is 10%. B's inclusion amount is $154, which is the 
sum of the amounts determined under subdivisions (i) and (ii) of 
subparagraph (b)(2) of this paragraph. The amount determined under 
subdivision (i) is -$86 [$3,000 x 40% x (-7.2%)], and the amount 
determined under subdivision (ii) is $240 [$3,000 x 80% x 10%].

[T.D. 8218, 53 FR 29881, Aug. 9, 1988; 53 FR 32821, Aug. 26, 1988, as 
amended by T.D. 8298, 55 FR 13370, Apr. 12, 1990; Redesignated and 
amended at T.D. 8473, 58 FR 19060, Apr. 12, 1993; T.D. 9133, 69 FR 
35515, June 25, 2004; T.D. 9483, 75 FR 27937, May 19, 2010]



Sec. 1.280G-1  Golden parachute payments.

    The following questions and answers relate to the treatment of 
golden parachute payments under section 280G of the Internal Revenue 
Code of 1986, as added by section 67 of the Tax Reform Act of 1984 (Pub. 
L. No. 98-369; 98 Stat. 585) and amended by section 1804(j) of the Tax 
Reform Act of 1986 (Pub. L. No. 99-514; 100 Stat. 2807), section 
1018(d)(6)-(8) of the Technical and Miscellaneous Revenue Act of 1988 
(Pub. L. No. 100-647; 102 Stat. 3581), and section 1421 of the Small 
Business Job Protection Act of 1996 (Pub. L. No. 104-188; 110 Stat. 
1755). The following is a table of subjects covered in this section:

                                Overview

Effect of section 280G--Q/A-1
Meaning of ``parachute payment''--Q/A-2
Meaning of ``excess parachute payment''--Q/A-3
Effective date of section 280G--Q/A-4

                             Exempt Payments

Exempt payments generally--Q/A-5
Exempt payments with respect to certain corporations--Q/A-6
Shareholder approval requirements--Q/A-7
Exempt payments under a qualified plan--Q/A-8
Exempt payments of reasonable compensation--Q/A-9
Payor of Parachute Payments--Q/A-10

[[Page 871]]

                 Payments in the Nature of Compensation

The nature of compensation--Q/A-11
Property transfers--Q/A-12
Stock options--Q/A-13
Reduction of amount of payment by consideration paid--Q/A-14

                        Disqualified Individuals

Meaning of ``disqualified individual''--Q/A-15
Personal service corporation treated as individual--Q/A-16
Meaning of ``shareholder''--Q/A-17
Meaning of ``officer''--Q/A-18
Meaning of ``highly-compensated individual''--Q/A-19
Meaning of ``disqualified individual determination period''--Q/A-20
Meaning of ``compensation''--Q/A-21

              Contingent on Change in Ownership or Control

General rules for determining payments contingent on change--Q/A-22
Payments under agreement entered into after change--Q/A-23
Amount of payment contingent on change--Q/A-24
Presumption that payment is contingent on change--Q/A-25, 26
Change in ownership or control--Q/A-27, 28, 29

           Three-Times-Base-Amount Test for Parachute Payments

Three-times-base-amount test--Q/A-30
Determination of present value--Q/A-31, 32, 33
Meaning of ``base amount''--Q/A-34
Meaning of ``base period''--Q/A-35
Special rule for determining base amount--Q/A-36
Securities Violation Parachute Payments--Q/A-37

         Computation and Reduction of Excess Parachute Payments

Computation of excess parachute payments--Q/A-38
Reduction by reasonable compensation--Q/A-39

                Determination of Reasonable Compensation

General criteria for determining reasonable compensation--Q/A-40
Types of payments generally considered reasonable compensation--Q/A-41, 
42, 43
Treatment of severance payments--Q/A-44

                           Miscellaneous Rules

Definition of corporation--Q/A-45
Treatment of affiliated group as one corporation--Q/A-46

                             Effective Date

General effective date of section 280G--Q/A-47
Effective date of regulations--Q/A-48

                                Overview

    Q-1: What is the effect of Internal Revenue Code section 280G?
    A-1: (a) Section 280G disallows a deduction for any excess parachute 
payment paid or accrued. For rules relating to the imposition of a 
nondeductible 20-percent excise tax on the recipient of any excess 
parachute payment, see Internal Revenue Code sections 4999, 275(a)(6), 
and 3121(v)(2)(A).
    (b) The disallowance of a deduction under section 280G is not 
contingent on the imposition of the excise tax under section 4999. The 
imposition of the excise tax under section 4999 is not contingent on the 
disallowance of a deduction under section 280G. Thus, for example, 
because the imposition of the excise tax under section 4999 is not 
contingent on the disallowance of a deduction under section 280G, a 
payee may be subject to the 20-percent excise tax under section 4999 
even though the disallowance of the deduction for the excess parachute 
payment may not directly affect the federal taxable income of the payor.
    Q-2: What is a parachute payment for purposes of section 280G?
    A-2: (a) The term parachute payment means any payment (other than an 
exempt payment described in Q/A-5) that--
    (1) Is in the nature of compensation;
    (2) Is made or is to be made to (or for the benefit of) a 
disqualified individual;
    (3) Is contingent on a change--
    (i) In the ownership of a corporation;
    (ii) In the effective control of a corporation; or
    (iii) In the ownership of a substantial portion of the assets of a 
corporation; and
    (4) Has (together with other payments described in paragraphs 
(a)(1), (2), and (3) of this A-2 with respect to the same disqualified 
individual) an aggregate present value of at least 3 times the 
individual's base amount.
    (b) Hereinafter, a change referred to in paragraph (a)(3) of this A-
2 is generally referred to as a change in ownership or control. For a 
discussion of the application of paragraph (a)(1), see Q/A-11 through Q/
A-14; paragraph (a)(2), Q/A-15 through Q/A-21; paragraph (a)(3),

[[Page 872]]

Q/A-22 through Q/A-29; and paragraph (a)(4), Q/A-30 through Q/A-36.
    (c) The term parachute payment also includes any payment in the 
nature of compensation to (or for the benefit of) a disqualified 
individual that is pursuant to an agreement that violates a generally 
enforced securities law or regulation. This type of parachute payment is 
referred to in this section as a securities violation parachute payment. 
See Q/A-37 for the definition and treatment of securities violation 
parachute payments.
    Q-3: What is an excess parachute payment for purposes of section 
280G?
    A-3: The term excess parachute payment means an amount equal to the 
excess of any parachute payment over the portion of the base amount 
allocated to such payment. Subject to certain exceptions and 
limitations, an excess parachute payment is reduced by any portion of 
the payment which the taxpayer establishes by clear and convincing 
evidence is reasonable compensation for personal services actually 
rendered by the disqualified individual before the date of the change in 
ownership or control. For a discussion of the nonreduction of a 
securities violation parachute payment by reasonable compensation, see 
Q/A-37. For a discussion of the computation of excess parachute payments 
and their reduction by reasonable compensation, see Q/A-38 through Q/A-
44.
    Q-4: What is the effective date of section 280G and this section?
    A-4: In general, section 280G applies to payments under agreements 
entered into or renewed after June 14, 1984. Section 280G also applies 
to certain payments under agreements entered into on or before June 14, 
1984, and amended or supplemented in significant relevant respect after 
that date. This section applies to any payment that is contingent on a 
change in ownership or control and the change in ownership or control 
occurs on or after January 1, 2004. For a discussion of the application 
of the effective date, see Q/A-47 and Q/A-48.

                             Exempt Payments

    Q-5: Are some types of payments exempt from the definition of the 
term parachute payment?
    A-5: (a) Yes, the following five types of payments are exempt from 
the definition of parachute payment--
    (1) Payments with respect to a small business corporation (described 
in Q/A-6 of this section);
    (2) Certain payments with respect to a corporation no stock in which 
is readily tradeable on an established securities market (or otherwise) 
(described in Q/A-6 of this section);
    (3) Payments to or from a qualified plan (described in Q/A-8 of this 
section);
    (4) Certain payments made by a corporation undergoing a change in 
ownership or control that is described in any of the following sections 
of the Internal Revenue Code: section 501(c) (but only if such 
organization is subject to an express statutory prohibition against 
inurement of net earnings to the benefit of any private shareholder or 
individual, or if the organization is described in section 501(c)(1) or 
section 501(c)(21)), section 501(d), or section 529, collectively 
referred to as tax-exempt organizations (described in Q/A-6 of this 
section); and
    (5) Certain payments of reasonable compensation for services to be 
rendered on or after the change in ownership or control (described in Q/
A-9 of this section).
    (b) Deductions for payments exempt from the definition of parachute 
payment are not disallowed by section 280G, and such exempt payments are 
not subject to the 20-percent excise tax of section 4999. In addition, 
such exempt payments are not taken into account in applying the 3-times-
base-amount test of Q/A-30 of this section.
    Q-6: Which payments with respect to a corporation referred to in 
paragraph (a)(1), (a)(2), or (a)(4) of Q/A-5 of this section are exempt 
from the definition of parachute payment?
    A-6: (a) The term parachute payment does not include--
    (1) Any payment to a disqualified individual with respect to a 
corporation which (immediately before the change in ownership or 
control) would qualify as a small business corporation (as defined in 
section 1361(b) but without regard to section 1361(b)(1)(C) thereof), 
without regard to whether the corporation had an election to be treated 
as a

[[Page 873]]

corporation under section 1361 in effect on the date of the change in 
ownership or control;
    (2) Any payment to a disqualified individual with respect to a 
corporation (other than a small business corporation described in 
paragraph (a)(1) of this A-6) if--
    (i) Immediately before the change in ownership or control, no stock 
in such corporation was readily tradeable on an established securities 
market or otherwise; and
    (ii) The shareholder approval requirements described in Q/A-7 of 
this section are met with respect to such payment; or
    (3) Any payment to a disqualified individual made by a corporation 
which is a tax-exempt organization (as defined in paragraph (a)(4) of Q/
A-5 of this section), but only if the corporation meets the definition 
of a tax-exempt organization both immediately before and immediately 
after the change in ownership or control.
    (b) For purposes of paragraph (a)(1) of this A-6, the members of an 
affiliated group are not treated as one corporation.
    (c) The requirements of paragraph (a)(2)(i) of this A-6 are not met 
with respect to a corporation if a substantial portion of the assets of 
any entity consists (directly or indirectly) of stock in such 
corporation and any ownership interest in such entity is readily 
tradeable on an established securities market or otherwise. For this 
purpose, such stock constitutes a substantial portion of the assets of 
an entity if the total fair market value of the stock is equal to or 
exceeds one third of the total gross fair market value of all of the 
assets of the entity. For this purpose, gross fair market value means 
the value of the assets of the entity, determined without regard to any 
liabilities associated with such assets. If a corporation is a member of 
an affiliated group (which group is treated as one corporation under A-
46 of this section), the requirements of paragraph (a)(2)(i) of this A-6 
are not met if any stock in any member of such group is readily 
tradeable on an established securities market or otherwise.
    (d) For purposes of paragraph (a)(2)(i) of this A-6, the term stock 
does not include stock described in section 1504(a)(4) if the payment 
does not adversely affect the redemption and liquidation rights of any 
shareholder owning such stock.
    (e) For purposes of paragraph (a)(2)(i) of this A-6, stock is 
treated as readily tradeable if it is regularly quoted by brokers or 
dealers making a market in such stock.
    (f) For purposes of paragraph (a)(2)(i) of this A-6, the term 
established securities market means an established securities market as 
defined in Sec. 1.897-1(m).
    (g) The following examples illustrate the application of this 
exemption:

    Example 1. A small business corporation (within the meaning of 
paragraph (a)(1) of this A-6) operates two businesses. The corporation 
sells the assets of one of its businesses, and these assets represent a 
substantial portion of the assets of the corporation. Because of the 
sale, the corporation terminates its employment relationship with 
persons employed in the business the assets of which are sold. Several 
of these employees are highly-compensated individuals to whom the owners 
of the corporation make severance payments in excess of 3 times each 
employee's base amount. Since the corporation is a small business 
corporation immediately before the change in ownership or control, the 
payments are not parachute payments.
    Example 2. Assume the same facts as in Example 1, except that the 
corporation is not a small business corporation within the meaning of 
paragraph (a)(1) of this A-6. If no stock in the corporation is readily 
tradeable on an established securities market (or otherwise) immediately 
before the change in ownership or control and the shareholder approval 
requirements described in Q/A-7 of this section are met, the payments 
are not parachute payments.
    Example 3. Stock of Corporation S is owned by Corporation P, stock 
in which is readily tradeable on an established securities market. The 
Corporation S stock equals or exceeds one third of the total gross fair 
market value of the assets of Corporation P, and thus, represents a 
substantial portion of the assets of Corporation P. Corporation S makes 
severance payments to several of its highly-compensated individuals that 
are parachute payments under section 280G and Q/A-2 of this section. 
Because stock in Corporation P is readily tradeable on an established 
securities market, the payments are not exempt from the definition of 
parachute payments under this A-6.
    Example 4. A is a corporation described in section 501(c)(3), and 
accordingly, its net earnings are prohibited from inuring to the

[[Page 874]]

benefit of any private shareholder or individual. A transfers 
substantially all of its assets to another corporation resulting in a 
change in ownership or control. Contingent on the change in ownership or 
control, A makes a payment that, but for the potential application of 
the exemption described in A-5(a)(4), would constitute a parachute 
payment. However, one or more aspects of the transaction that 
constitutes the change in ownership or control causes A to fail to be 
described in section 501(c)(3). Accordingly, A fails to meet the 
definition of a tax-exempt organization both immediately before and 
immediately after the change in ownership or control, as required by 
this A-6. As a result, the payment made by A that was contingent on the 
change in ownership or control is not exempt from the definition of 
parachute payment under this A-6.
    Example 5. B is a corporation described in section 501(c)(15). B 
does not meet the definition of a tax-exempt organization because 
section 501(c)(15) does not expressly prohibit inurement of B's net 
earnings to the benefit of any private shareholder or individual. 
Accordingly, if B has a change in ownership or control and makes a 
payment that would otherwise meet the definition of a parachute payment, 
such payment is not exempt from the definition of the term parachute 
payment for purposes of this A-6.

    Q-7: How are the shareholder approval requirements referred to in 
paragraph (a)(2)(ii) of Q/A-6 of this section met?
    A-7: (a) General rule. The shareholder approval requirements 
referred to in paragraph (a)(2)(ii) of Q/A-6 of this section are met 
with respect to any payment if--
    (1) Such payment is approved by more than 75 percent of the voting 
power of all outstanding stock of the corporation entitled to vote (as 
described in this A-7) immediately before the change in ownership or 
control; and
    (2) Before the vote, there was adequate disclosure to all persons 
entitled to vote (as described in this A-7) of all material facts 
concerning all material payments which (but for Q/A-6 of this section) 
would be parachute payments with respect to a disqualified individual.
    (b) Voting requirements--(1) General rule. The vote described in 
paragraph (a)(1) of this A-7 must determine the right of the 
disqualified individual to receive the payment, or, in the case of a 
payment made before the vote, the right of the disqualified individual 
to retain the payment. Except as otherwise provided in this A-7, the 
normal voting rules of the corporation are applicable. Thus, for 
example, an optionholder is generally not permitted to vote for purposes 
of this A-7. For purposes of this A-7, the vote can be on less than the 
full amount of the payment(s) to be made. Shareholder approval can be a 
single vote on all payments to any one disqualified individual, or on 
all payments to more than one disqualified individual. The total 
payment(s) submitted for shareholder approval, however, must be 
separately approved by the shareholders. The requirements of this 
paragraph (b)(1) are not satisfied if approval of the change in 
ownership or control is contingent, or otherwise conditioned, on the 
approval of any payment to a disqualified individual that would be a 
parachute payment but for Q/A-6 of this section.
    (2) Special rule. A vote to approve the payment does not fail to be 
a vote of the outstanding stock of the corporation entitled to vote 
immediately before the change in ownership or control merely because the 
determination of the shareholders entitled to vote on the payment is 
based on the shareholders of record as of any day within the six-month 
period immediately prior to and ending on date of the change in 
ownership or control, provided the disclosure requirements described in 
paragraph (c) of this A-7 are met.
    (3) Entity shareholder. (i) Approval of a payment by any shareholder 
that is not an individual (an entity shareholder) generally must be made 
by the person authorized by the entity shareholder to approve the 
payment. See paragraph (b)(4) of this A-7 if the person so authorized by 
the entity shareholder is a disqualified individual who would receive a 
parachute payment if the shareholder approval requirements of this A-7 
are not met.
    (ii) However, if a substantial portion of the assets of an entity 
shareholder consists (directly or indirectly) of stock in the 
corporation undergoing the change in ownership or control, approval of 
the payment by that entity

[[Page 875]]

shareholder must be made by a separate vote of the persons who hold, 
immediately before the change in ownership or control, more than 75 
percent of the voting power of the entity shareholder entitled to vote. 
The preceding sentence does not apply if the value of the stock of the 
corporation owned, directly or indirectly, by or for the entity 
shareholder does not exceed 1 percent of the total value of the 
outstanding stock of the corporation undergoing a change in ownership or 
control. Where approval of a payment by an entity shareholder must be 
made by a separate vote of the owners of the entity shareholder, the 
normal voting rights of the entity shareholder determine which owners 
shall vote. For purposes of this (b)(3)(ii), stock represents a 
substantial portion of the assets of an entity shareholder if the total 
fair market value of the stock held by the entity shareholder in the 
corporation undergoing the change in ownership or control is equal to or 
exceeds one third of the total gross fair market value of all of the 
assets of the entity shareholder. For this purpose, gross fair market 
value means the value of the assets of the entity, determined without 
regard to any liabilities associated with such assets.
    (4) Disqualified individuals and attribution of stock ownership. In 
determining the persons entitled to vote referred to in paragraph (a)(1) 
or (b)(3) of this A-7, stock that would otherwise be entitled to vote is 
not counted as outstanding stock and is not considered in determining 
whether the more than 75 percent vote has been obtained under this A-7 
if the stock is actually owned or constructively owned under section 
318(a) by or for a disqualified individual who receives (or is to 
receive) payments that would be parachute payments if the shareholder 
approval requirements described in paragraph (a) of this A-7 are not 
met. Likewise, stock is not counted as outstanding stock if the owner is 
considered under section 318(a) to own any part of the stock owned 
directly or indirectly by or for a disqualified individual described in 
the preceding sentence. In addition, if the person authorized to vote 
the stock of an entity shareholder is a disqualified individual who 
would receive a parachute payment if the shareholder approval 
requirements described in this A-7 are not met, such person is not 
permitted to vote such shares, but the entity shareholder is permitted 
to appoint an equity interest holder in the entity shareholder, or in 
the case of a trust another person eligible to vote on behalf of the 
trust, to vote the otherwise eligible shares. However, if all persons 
who hold voting power in the corporation undergoing the change in 
ownership or control are disqualified individuals or related persons 
described in this paragraph (b)(4), then such stock is counted as 
outstanding stock and votes by such persons are considered in 
determining whether the more than 75 percent vote has been obtained.
    (c) Adequate disclosure. To be adequate disclosure for purposes of 
paragraph (a)(2) of this A-7, disclosure must be full and truthful 
disclosure of the material facts and such additional information as is 
necessary to make the disclosure not materially misleading at the time 
the disclosure is made. Disclosure of such information must be made to 
every shareholder of the corporation entitled to vote under this A-7. 
For each disqualified individual, material facts that must be disclosed 
include, but are not limited to, the event triggering the payment or 
payments, the total amount of the payments that would be parachute 
payments if the shareholder approval requirements described in paragraph 
(a) of this A-7 are not met, and a brief description of each payment 
(e.g., accelerated vesting of options, bonus, or salary). An omitted 
fact is considered a material fact if there is a substantial likelihood 
that a reasonable shareholder would consider it important.
    (d) Corporation without shareholders. If a corporation does not have 
shareholders, the exemption described in Q/A-6(a)(2) of this section and 
the shareholder approval requirements described in this A-7 do not 
apply. Solely for purposes of this paragraph (d), a shareholder does not 
include a member in an association, joint stock company, or insurance 
company.
    (e) Examples. The following examples illustrate the application of 
this A-7:


[[Page 876]]


    Example 1. Corporation S has two shareholders--Corporation P, which 
owns 76 percent of the stock of Corporation S, and A, a disqualified 
individual who would receive a parachute payment if the shareholder 
approval requirements of this A-7 are not met. No stock of Corporation P 
or S is readily tradeable on an established securities market (or 
otherwise). The value of the stock of Corporation S equals or exceeds 
one third of the gross fair market value of the assets of Corporation P, 
and thus, represents a substantial portion of the assets of Corporation 
P. All of the stock of Corporation S is sold to Corporation M. 
Contingent on the change in ownership of Corporation S, severance 
payments are made to certain officers of Corporation S in excess of 3 
times each officer's base amount. If the payments are approved by a 
separate vote of the persons who hold, immediately before the sale, more 
than 75 percent of the voting power of the outstanding stock entitled to 
vote of Corporation P and the disclosure rules of paragraph (a)(2) of 
this A-7 are complied with, the shareholder approval requirements of 
this A-7 are met, and the payments are exempt from the definition of 
parachute payment pursuant to A-6 of this section.
    Example 2. (i) Stock of Corporation X, none of which is traded on an 
established market, is acquired by Corporation Y. In the voting ballot 
concerning the sale, the Corporation X shareholders are asked to vote 
either ``yes'' on the sale and ``yes'' to paying parachute payments to 
A, a disqualified individual with respect to Corporation A, or ``no'' on 
the sale and ``no'' to paying parachute payments to A.
    (ii) Because the approval of the change in ownership or control is 
conditioned on the approval of the payments to A, the shareholder 
approval requirements of this A-7 are not satisfied. If the payments are 
made to A, the payments are not exempt from the definition of parachute 
payment pursuant to Q/A-6 of this section.
    (iii) Assume the same facts as in paragraph (i) of this Example 2, 
except that the acquisition agreement between Corporation X and 
Corporation Y states that the acquisition is approved only if there are 
no parachute payments made to A. If the shareholder approval and the 
disclosure requirements described in this A-7 are met, the payments will 
not be parachute payments. Alternatively, if the shareholders do not 
approve the payments, the payments cannot be made (or retained). Thus, 
the transaction is not conditioned on the approval of the parachute 
payments. If the payments are made and the requirements of this A-7 are 
met, the payments are exempt from the definition of parachute payment 
pursuant to Q/A-6 of this section.
    Example 3. Corporation M is wholly owned by Partnership P. No 
interest in either M or P is readily tradeable on an established 
securities market (or otherwise). The value of the stock of Corporation 
M equals or exceeds one third of the gross fair market value of the 
assets of Partnership P, and thus, represents a substantial portion of 
the assets of Partnership P. Corporation M undergoes a change in 
ownership or control. Partnership P has one general partner and 200 
limited partners. The general partner is not a disqualified individual. 
None of the limited partners are entitled to vote on issues involving 
the management of the partnership investments. If the payments that 
would be parachute payments if the shareholder approval requirements of 
this A-7 are not met are approved by the general partner and the 
disclosure rules of paragraph (a)(2) of this A-7 are complied with, the 
shareholder approval requirements of this A-7 are met, and the payments 
are exempt from the definition of parachute payment pursuant to A-6 of 
this section.
    Example 4. Corporation A has several shareholders including X and Y, 
who are disqualified individuals with respect to Corporation A and would 
receive parachute payments if the shareholder approval requirements of 
this A-7 are not met. No stock of Corporation A is readily tradeable on 
an established securities market (or otherwise). Corporation A undergoes 
a change in ownership or control. Contingent on the change in ownership 
or control, severance payments are payable to X and Y that are in excess 
of 3 times each individual's base amount. To determine whether the 
shareholder approval requirements of paragraph (a)(1) of this A-7 are 
satisfied regarding the payments to X and Y, the stock of X and Y is not 
considered outstanding, and X and Y are not entitled to vote.
    Example 5. Assume the same facts as in Example 4, except that after 
adequate disclosure of all material facts (within the meaning of 
paragraph (a)(2) of this A-7) to all shareholders entitled to vote, 60 
percent of the shareholders who are entitled to vote approve the 
payments to X and Y. Because more than 75 percent of the shareholders 
holding outstanding stock who were entitled to vote did not approve the 
payments to X and Y, the payments cannot be made.
    Example 6. Assume the same facts as in Example 4 except that 
disclosure of all the material facts (within the meaning of paragraph 
(a)(2) of this A-7) regarding the payments to X and Y is made to two of 
Corporation A's shareholders, who collectively own 80 percent of 
Corporation A's stock entitled to vote and approve the payment. Both 
shareholders approve the payments. Assume further that no adequate 
disclosure of the material facts regarding the payments to X and Y is 
made to other Corporation A shareholders who are entitled to vote within 
the meaning of this A-7. Notwithstanding that 80 percent of the 
shareholders entitled to vote approve

[[Page 877]]

the payments, because disclosure regarding the payments to X and Y is 
not made to all of Corporation A's shareholders who were entitled to 
vote, the disclosure requirements of paragraph (a)(2) of this A-7 are 
not met, and the payments are not exempt from the definition of 
parachute payment pursuant to Q/A-6.
    Example 7. Corporation C has three shareholders--Partnership, which 
owns 20 percent of the stock of Corporation C; A, an individual who owns 
60 percent of the stock of Corporation C; and B, an individual who owns 
20 percent of Corporation C. Stock of Corporation C does not represent a 
substantial portion of the assets of Partnership. No interest in either 
Partnership or Corporation C is readily tradeable on an established 
securities market (or otherwise). P, a one-third partner in Partnership, 
is a disqualified individual with respect to Corporation C. Corporation 
C undergoes a change in ownership or control. Contingent on the change, 
a severance payment is payable to P in excess of 3 times P's base 
amount. To determine the persons who are entitled to vote referred to in 
paragraph (a)(1) of this A-7, one-third of the stock held by Partnership 
is not considered outstanding stock. If P is the person authorized by 
Partnership to approve the payment, none of the shares of Partnership 
are considered outstanding stock. However, Partnership is permitted to 
appoint an equity interest holder in Partnership (who is not a 
disqualified individual who would receive a parachute payment if the 
requirements of this A-7 are not met), to vote the two-thirds of the 
shares held by Partnership that are otherwise entitled to be voted.
    Example 8. X, Y, and Z are all employees and disqualified 
individuals with respect to Corporation E. No stock in Corporation E is 
readily tradeable on an established securities market (or otherwise). 
Each individual has a base amount of $100,000. Corporation E undergoes a 
change in ownership or control. Contingent on the change, a severance 
payment of $400,000 is payable to X; $600,000 is payable to Y; and 
$1,000,000 is payable to Z. Corporation E provides each Corporation E 
shareholder entitled to vote (as determined under this A-7) with a 
ballot listing and describing the payments of $400,000 to X; $600,000 to 
Y; and $1,000,000 to Z and the triggering event that generated the 
payments. Next to each name and corresponding amount on the ballot, 
Corporation E requests approval (with a ``yes'' and ``no'' box) of each 
total payment to be made to each individual and states that if the 
payment is not approved the payment will not be made. Adequate 
disclosure, within the meaning of this A-7 is made to each shareholder 
entitled to vote under this A-7. More than 75 percent of the Corporation 
E shareholders who are entitled to vote under paragraph (a)(1) of this 
A-7 approve each payment to each individual. The shareholder approval 
requirements of this A-7 are met, and the payments are exempt from the 
definition of parachute payment pursuant to A-6 of this section.
    Example 9. Assume the same facts as in Example 8 except that the 
ballot does not request approval of each total payment to each 
individual separately. Instead, the ballot states that $2,000,000 in 
payments will be made to X, Y, and Z and requests approval of the 
$2,000,000 payments. Assuming the triggering event and amount of the 
payments to X, Y, and Z are separately described to the shareholders 
entitled to vote under this A-7, the shareholder approval requirements 
of paragraph (a)(1) of this A-7 are met, and the payments are exempt 
from the definition of parachute payment pursuant to A-6 of this 
section.
    Example 10. B, an employee of Corporation X, is a disqualified 
individual with respect to Corporation X. Stock of Corporation X is not 
readily tradeable on an established securities market (or otherwise). 
Corporation X undergoes a change in ownership or control. B's base 
amount is $205,000. Under B's employment agreement with Corporation X, 
in the event of a change in ownership or control, B's stock options will 
vest and B will receive severance and bonus payments. Contingent on the 
change in ownership or control, B's stock options with a fair market 
value of $500,000 immediately vest, $200,000 of which is contingent on 
the change, and B will receive a $200,000 bonus payment and a $400,000 
severance payment. Corporation X distributes a ballot to every 
shareholder of Corporation X who immediately before the change is 
entitled to vote as described in this A-7. The ballot contains adequate 
disclosure of all material facts and lists the following payments to be 
made to B: The contingent payment of $200,000 attributable to options, a 
$200,000 bonus payment, and a $400,000 severance payment. The ballot 
requests shareholder approval of the $200,000 bonus payment to B and 
states that whether or not the $200,000 bonus payment is approved, B 
will receive $200,000 attributable to options and a $400,000 severance 
payment. More than 75 percent of the shareholders entitled to vote as 
described by this A-7 approve the $200,000 bonus payment to B. The 
shareholder approval requirements of this A-7 are met, and the $200,000 
payment is exempt from the definition of parachute payment pursuant to 
A-6 of this section.

    Q-8: Which payments under a qualified plan are exempt from the 
definition of parachute payment?
    A-8: The term parachute payment does not include any payment to or 
from--
    (a) A plan described in section 401(a) which includes a trust exempt 
from tax under section 501(a);

[[Page 878]]

    (b) An annuity plan described in section 403(a);
    (c) A simplified employee pension (as defined in section 408(k)); or
    (d) A simple retirement account (as defined in section 408(p)).
    Q-9: Which payments of reasonable compensation are exempt from the 
definition of parachute payment?
    A-9: Except in the case of securities violation parachute payments, 
the term parachute payment does not include any payment (or portion 
thereof) which the taxpayer establishes by clear and convincing evidence 
is reasonable compensation for personal services to be rendered by the 
disqualified individual on or after the date of the change in ownership 
or control. See Q/A-37 of this section for the definition and treatment 
of securities violation parachute payments. See Q/A-40 through Q/A-44 of 
this section for rules on determining amounts of reasonable 
compensation.

                       Payor of Parachute Payments

    Q-10: Who may be the payor of parachute payments?
    A-10: Parachute payments within the meaning of Q/A-2 of this section 
may be paid, directly or indirectly, by--
    (i) The corporation referred to in paragraph (a)(3) of Q/A-2 of this 
section;
    (ii) A person acquiring ownership or effective control of that 
corporation or ownership of a substantial portion of that corporation's 
assets; or
    (iii) Any person whose relationship to such corporation or other 
person is such as to require attribution of stock ownership between the 
parties under section 318(a).

                 Payments in the Nature of Compensation

    Q-11: What types of payments are in the nature of compensation?
    A-11: (a) General rule. For purposes of this section, all payments--
in whatever form--are payments in the nature of compensation if they 
arise out of an employment relationship or are associated with the 
performance of services. For this purpose, the performance of services 
includes holding oneself out as available to perform services and 
refraining from performing services (such as under a covenant not to 
compete or similar arrangement). Payments in the nature of compensation 
include (but are not limited to) wages and salary, bonuses, severance 
pay, fringe benefits, life insurance, pension benefits, and other 
deferred compensation (including any amount characterized by the parties 
as interest thereon). A payment in the nature of compensation also 
includes cash when paid, the value of the right to receive cash, 
(including the value of accelerated vesting under Q/A-24(c), or a 
transfer of property. However, payments in the nature of compensation do 
not include attorney's fees or court costs paid or incurred in 
connection with the payment of any amount described in paragraphs 
(a)(1), (2), and (3) of Q/A-2 of this section or a reasonable rate of 
interest accrued on any amount during the period the parties contest 
whether a payment will be made.
    (b) When payment is considered to be made. Except as otherwise 
provided in A-11 through Q/A-13 of this section, a payment in the nature 
of compensation is considered made (and is subject to the excise tax 
under section 4999) in the taxable year in which it is includible in the 
disqualified individual's gross income or, in the case of fringe 
benefits and other benefits excludible from income, in the taxable year 
the benefits are received.
    (c) Prepayment rule. Notwithstanding the general rule described in 
paragraph (b) of this A-11, a disqualified individual may, in the year 
of the change in ownership or control, or any later year, prepay the 
excise tax under section 4999, provided that the payor and disqualified 
individual treat the payment of the excise tax consistently and the 
payor satisfies its obligations under section 4999(c) in the year of 
prepayment. The prepayment of the excise tax for purposes of section 
4999 must be based on the present value of the excise tax that would be 
due in the year the excess parachute payment would actually be paid 
(calculated using the discount rate equal to 120 percent of the 
applicable Federal rate (determined under section 1274(d) and 
regulations thereunder; see Q/A-32)). For purposes of projecting the 
future value of a payment that provides for interest to be credited at a 
variable interest rate, it

[[Page 879]]

is permissible to make a reasonable assumption regarding this variable 
rate. A disqualified individual is not required to adjust the excise tax 
paid under this paragraph (c) merely because the interest rates in the 
future are not the same as the rate used for purposes of projecting the 
future value of the payment. However, a disqualified individual may not 
apply this paragraph (c) of this A-11 to a payment to be made in cash if 
the present value of the payment would be considered not reasonably 
ascertainable under section 3121(v) and Sec. 31.3121(v)(2)-1(e)(4) of 
this Chapter or to a payment related to health benefits or coverage. The 
Commissioner may provide additional guidance regarding the applicability 
of this paragraph (c) to certain payments in published guidance of 
general applicability under Sec. 601.601(d)(2) of this Chapter.
    (d) Transfers of property. Transfers of property are treated as 
payments for purposes of this A-11. See Q/A-12 of this section for rules 
on determining when such payments are considered made and the amount of 
such payments. See Q/A-13 of this section for special rules on transfers 
of stock options.
    (e) The following example illustrates the principles of this A-11:

    Example. D is a disqualified individual with respect to Corporation 
X. D has a base amount of $100,000 and is entitled to receive two 
parachute payments, one of $200,000 and the other of $400,000. A change 
in ownership or control of Corporation X occurs on May 1, 2005, and the 
$200,000 payment is made to D at the time of the change in ownership or 
control. The $400,000 payment is to be made on October 1, 2010. 
Corporation X and D agree that D will prepay the excise tax and X will 
satisfy its obligations under section 4999(c) with respect to the 
$400,000 payment. Using discount rate determined under Q/A-32, 
Corporation X and D determine that the present value of the $400,000 
payment is $300,000 on the date of the change in ownership or control. 
The portions of the base amount allocated to these payments are $40,000 
(($200,000/$500,000) x $100,000) and $60,000 (($300,000/$500,000 x 
$100,000), respectively. Thus, the amount of the first excess parachute 
payment is $160,000 ($200,000-$40,000) and that of the second excess 
parachute payment is $340,000 ($400,000-$60,000). The excise tax on the 
$400,000 payment is $68,000 ($340,000 x 20 percent). Assume the present 
value (calculated in accordance with paragraph (c) of this A-11) of 
$68,000 is $50,000. To prepay the excise tax due on the $400,000 
payment, Corporation X must satisfy its obligations under section 4999 
with respect to the $50,000, in addition to the $32,000 withholding 
required with respect to the $200,000 payment.

    Q-12: If a property transfer to a disqualified individual is a 
payment in the nature of compensation, when is the payment considered 
made (or to be made), and how is the amount of the payment determined?
    A-12: (a) Except as provided in this A-12 and Q/A-13 of this 
section, a transfer of property is considered a payment made (or to be 
made) in the taxable year in which the property transferred is 
includible in the gross income of the disqualified individual under 
section 83 and the regulations thereunder. Thus, in general, such a 
payment is considered made (or to be made) when the property is 
transferred (as defined in Sec. 1.83-3(a)) to the disqualified 
individual and becomes substantially vested (as defined in Sec. 1.83-
3(b) and (j)) in such individual. The amount of the payment is 
determined under section 83 and the regulations thereunder. Thus, in 
general, the amount of the payment is equal to the excess of the fair 
market value of the transferred property (determined without regard to 
any lapse restriction, as defined in Sec. 1.83-3(i)) at the time that 
the property becomes substantially vested, over the amount (if any) paid 
for the property.
    (b) An election made by a disqualified individual under section 
83(b) with respect to transferred property will not apply for purposes 
of this A-12. Thus, even if such an election is made with respect to a 
property transfer that is a payment in the nature of compensation, for 
purposes of this section, the payment is generally considered made (or 
to be made) when the property is transferred to and becomes 
substantially vested in such individual.
    (c) See Q/A-13 of this section for rules on applying this A-12 to 
transfers of stock options.
    (d) The following example illustrates the principles of this A-12:

    Example. On January 1, 2006, Corporation M gives to A, a 
disqualified individual, a bonus of 100 shares of Corporation M stock in 
connection with the performance of services to Corporation M. Under the 
terms of the bonus arrangement A is obligated to return the

[[Page 880]]

Corporation M stock to Corporation M unless the earnings of Corporation 
M double by January 1, 2009, or there is a change in ownership or 
control of Corporation M before that date. A's rights in the stock are 
treated as substantially nonvested (within the meaning of Sec. 1.83-
3(b)) during that period because A's rights in the stock are subject to 
a substantial risk of forfeiture (within the meaning of Sec. 1.83-3(c)) 
and are nontransferable (within the meaning of Sec. 1.83-3(d)). On 
January 1, 2008, a change in ownership or control of Corporation M 
occurs. On that day, the fair market value of the Corporation M stock is 
$250 per share. Because A's rights in the Corporation M stock become 
substantially vested (within the meaning of Sec. 1.83-3(b)) on that 
day, the payment is considered made on that day, and the amount of the 
payment for purposes of this section is equal to $25,000 (100 x $250). 
See Q/A-38 through 41 for rules relating to the reduction of the excess 
parachute payment by the portion of the payment which is established to 
be reasonable compensation for personal services actually rendered 
before the date of a change in ownership or control.

    Q-13: How are transfers of statutory and nonstatutory stock options 
treated?
    A-13: (a) For purposes of this section, an option (including an 
option to which section 421 applies) is treated as property that is 
transferred when the option becomes vested (regardless of whether the 
option has a readily ascertainable fair market value as defined in Sec. 
1.83-7(b)). For purposes of this A-13, vested means substantially vested 
within the meaning of Sec. 1.83-3(b) and (j) or the right to the 
payment is not otherwise subject to a substantial risk of forfeiture 
within the meaning of section 83(c). Thus, for purposes of this section, 
the vesting of such an option is treated as a payment in the nature of 
compensation. The value of an option at the time the option vests is 
determined under all the facts and circumstances in the particular case. 
Factors relevant to such a determination include, but are not limited 
to: The difference between the option's exercise price and the value of 
the property subject to the option at the time of vesting; the 
probability of the value of such property increasing or decreasing; and 
the length of the period during which the option can be exercised. Thus, 
an option is treated as a payment in the nature of compensation on the 
date of grant or vesting, as applicable, without regard to whether such 
option has an ascertainable fair market value. For purposes of this A-
13, valuation may be determined by any method prescribed by the 
Commissioner in published guidance of general applicability under Sec. 
601.601(d)(2) of this Chapter.
    (b) Any money or other property transferred to the disqualified 
individual on the exercise, or as consideration on the sale or other 
disposition, of an option described in paragraph (a) of this A-13 after 
the time such option vests is not treated as a payment in the nature of 
compensation to the disqualified individual under Q/A-11 of this 
section. Nonetheless, the amount of the otherwise allowable deduction 
under section 162 or 212 with respect to such transfer is reduced by the 
amount of the payment described in paragraph (a) of this A-13 treated as 
an excess parachute payment.
    Q-14: Are payments in the nature of compensation reduced by 
consideration paid by the disqualified individual?
    A-14: Yes, to the extent not otherwise taken into account under Q/A-
12 and Q/A-13 of this section, the amount of any payment in the nature 
of compensation is reduced by the amount of any money or the fair market 
value of any property (owned by the disqualified individual without 
restriction) that is (or will be) transferred by the disqualified 
individual in exchange for the payment. For purposes of the preceding 
sentence, the fair market value of property is determined as of the date 
the property is transferred by the disqualified individual.

                        Disqualified Individuals

    Q-15: Who is a disqualified individual?
    A-15: (a) For purposes of this section, an individual is a 
disqualified individual with respect to a corporation if, at any time 
during the disqualified individual determination period (as defined in 
Q/A-20 of this section), the individual is an employee or independent 
contractor of the corporation and is, with respect to the corporation--
    (1) A shareholder (but see Q/A-17 of this section);
    (2) An officer (see Q/A-18 of this section); or

[[Page 881]]

    (3) A highly-compensated individual (see Q/A-19 of this section).
    (b) For purposes of this A-15, a director is a disqualified 
individual with respect to a corporation if, at any time during the 
disqualified individual determination period, the director is, with 
respect to the corporation, a shareholder (see Q/A-17 of this section), 
an officer (see Q/A-18 of this section), or a highly-compensated 
individual (see Q/A-19 of this section).
    (c) For purposes of this A-15, an individual who is an employee or 
independent contractor of a corporation other than the corporation 
undergoing a change in ownership or control is disregarded for purposes 
of determining who is a disqualified individual if such individual is 
employed by the corporation undergoing the change in ownership or 
control only on the last day of the disqualified individual 
determination period. Thus, for example, assume that E is an employee of 
Corporation X, that Y is acquired by Corporation X, and that Y undergoes 
a change in ownership or control. If E becomes an employee of Y on the 
date of the acquisition, in determining the disqualified individuals 
with respect to Y, E is disregarded under this paragraph (c).
    Q-16: Is a personal service corporation treated as an individual?
    A-16: (a) Yes. For purposes of this section, a personal service 
corporation (as defined in section 269A(b)(1)), or a noncorporate entity 
that would be a personal service corporation if it were a corporation, 
is treated as an individual.
    (b) The following example illustrates the principles of this A-16:

    Example. Corporation N, a personal service corporation (as defined 
in section 269A(b)(1)), has a single individual as its sole shareholder 
and employee. Corporation N performs personal services for Corporation 
M. The compensation paid to Corporation N by Corporation M puts 
Corporation N within the group of highly-compensated individuals of 
Corporation M as determined under A-19 of this section. Thus, 
Corporation N is treated as a highly-compensated individual with respect 
to Corporation M.

    Q-17: Are all shareholders of a corporation considered shareholders 
for purposes of paragraphs (a)(1) and (b) of Q/A-15 of this section?
    A-17: (a) No. Only an individual who owns stock of a corporation 
with a fair market value that exceeds 1 percent of the fair market value 
of the outstanding shares of all classes of the corporation's stock is 
treated as a disqualified individual with respect to the corporation by 
reason of stock ownership. An individual who owns a lesser amount of 
stock may, however, be a disqualified individual with respect to the 
corporation if such individual is an officer (see Q/A-18) or highly-
compensated individual (see Q/A-19) with respect to the corporation.
    (b) For purposes of determining the amount of stock owned by an 
individual for purposes of paragraph (a) of this A-17, the constructive 
ownership rules of section 318(a) apply. Stock underlying a vested 
option is considered owned by an individual who holds the vested option 
(and the stock underlying an unvested option is not considered owned by 
an individual who holds the unvested option). For purposes of the 
preceding sentence, however, if the option is exercisable for stock that 
is not substantially vested (as defined by Sec. Sec. 1.83-3(b) and 
(j)), the stock underlying the option is not treated as owned by the 
individual who holds the option. Solely for purposes of determining the 
amount of stock owned by an individual for purposes of this A-17, mutual 
and cooperative corporations are treated as having stock.
    (c) The following examples illustrates the principles of this A-17:

    Example 1. E, an employee of Corporation A, received options under 
Corporation A's Stock Option Plan. E's stock options vest three years 
after the date of grant. E is not an officer or highly compensated 
individual during the disqualified individual determination period. E 
does not own, and is not considered to own under section 318, any other 
Corporation A stock. Two years after the options are granted to E, all 
of Corporation A's stock is acquired by Corporation B. Under Corporation 
A's Stock Option Plan, E's options are converted to Corporation B 
options and the vesting schedule remains the same. Under paragraph (b) 
of this A-17, the stock underlying the unvested options held by E on the 
date of the change in ownership or control is not considered owned by E. 
Because E is not considered to own Corporation A stock with a fair 
market value exceeding 1 percent of the total fair market value of all 
of the

[[Page 882]]

outstanding shares of all classes of Corporation A and E is not an 
officer or highly-compensated individual during the disqualified 
individual determination period, E is not a disqualified individual 
within the meaning of Q&A-15 of this section with respect to Corporation 
A.
    Example 2. Assume the same facts as in Example 1, except that 
Corporation A's Stock Option Plan provides that all unvested options 
will vest immediately on a change in ownership or control. Under 
paragraph (b) of this A-17, the stock underlying the options that vest 
on the change in ownership or control is considered owned by E. If the 
stock considered owned by E exceeds 1 percent of the total fair market 
value of all of the outstanding shares of all classes of Corporation A 
stock (including for this purpose, all stock owned or constructively 
owned by all shareholders, provided that no share of stock is counted 
more than once), E is a disqualified individual within the meaning of Q/
A-15 of this section with respect to Corporation A.
    Example 3. Assume the same facts as in Example 1 except that E 
received nonstatutory stock options that are exercisable for stock 
subject to a substantial risk of forfeiture under section 83. Assume 
further that under Corporation A's Stock Option Plan, the nonstatutory 
options will vest on a change in ownership or control. Under paragraph 
(b) of this A-17, E is not considered to own the stock underlying the 
options that vest on the change in ownership or control because the 
options are exercisable for stock subject to a substantial risk of 
forfeiture within the meaning of section 83. Because E is not considered 
to own Corporation A stock with a fair market value exceeding 1 percent 
of the total fair market value of all of the outstanding shares of all 
classes of Corporation A stock and E is not an officer or highly 
compensated individual during the disqualified individual determination 
period, E is not a disqualified individual within the meaning of Q/A-15 
of this section with respect to Corporation A.

    Q-18: Who is an officer?
    A-18: (a) For purposes of this section, whether an individual is an 
officer with respect to a corporation is determined on the basis of all 
the facts and circumstances in the particular case (such as the source 
of the individual's authority, the term for which the individual is 
elected or appointed, and the nature and extent of the individual's 
duties). Any individual who has the title of officer is presumed to be 
an officer unless the facts and circumstances demonstrate that the 
individual does not have the authority of an officer. However, an 
individual who does not have the title of officer may nevertheless be 
considered an officer if the facts and circumstances demonstrate that 
the individual has the authority of an officer. Generally, the term 
officer means an administrative executive who is in regular and 
continued service. The term officer implies continuity of service and 
excludes those employed for a special and single transaction.
    (b) An individual who is an officer with respect to any member of an 
affiliated group that is treated as one corporation pursuant to Q/A-46 
of this section is treated as an officer of such one corporation.
    (c) No more than 50 employees (or, if less, the greater of 3 
employees, or 10 percent of the employees (rounded up to the nearest 
integer)) of the corporation (in the case of an affiliated group treated 
as one corporation, each member of the affiliated group) are treated as 
disqualified individuals with respect to a corporation by reason of 
being an officer of the corporation. For purposes of the preceding 
sentence, the number of employees of the corporation is the greatest 
number of employees the corporation has during the disqualified 
individual determination period (as defined in Q/A-20 of this section). 
If the number of officers of the corporation exceeds the number of 
employees who may be treated as officers under the first sentence of 
this paragraph (c), then the employees who are treated as officers for 
purposes of this section are the highest paid 50 employees (or, if less, 
the greater of 3 employees, or 10 percent of the employees (rounded up 
to the nearest integer)) of the corporation when ranked on the basis of 
compensation (as determined under Q/A-21 of this section) paid during 
the disqualified individual determination period.
    (d) In determining the total number of employees of a corporation 
for purposes of this A-18, employees are not counted if they normally 
work less than 17\1/2\ hours per week (as defined in section 
414(q)(5)(B) and the regulations thereunder) or if they normally work 
during not more than 6 months during any year (as defined in section 
414(q)(5)(C) and the regulations thereunder). However, an employee who 
is

[[Page 883]]

not counted for purposes of the preceding sentence may still be an 
officer.
    Q-19: Who is a highly-compensated individual?
    A-19: (a) For purposes of this section, a highly-compensated 
individual with respect to a corporation is any individual who is, or 
would be if the individual were an employee, a member of the group 
consisting of the lesser of the highest paid 1 percent of the employees 
of the corporation (rounded up to the nearest integer), or the highest 
paid 250 employees of the corporation, when ranked on the basis of 
compensation (as determined under Q/A-21 of this section) earned during 
the disqualified individual determination period (as defined in Q/A-20 
of this section). For purposes of the preceding sentence, the number of 
employees of the corporation is the greatest number of employees the 
corporation has during the disqualified individual determination period 
(as defined in Q/A-20 of this section). However, no individual whose 
annualized compensation during the disqualified individual determination 
period is less than the amount described in section 414(q)(1)(B)(i) for 
the year in which the change in ownership or control occurs will be 
treated as a highly-compensated individual.
    (b) An individual who is not an employee of the corporation is not 
treated as a highly-compensated individual with respect to the 
corporation on account of compensation received for performing services 
(such as brokerage, legal, or investment banking services) in connection 
with a change in ownership or control of the corporation, if the 
services are performed in the ordinary course of the individual's trade 
or business and the individual performs similar services for a 
significant number of clients unrelated to the corporation.
    (c) The total number of employees of a corporation for purposes of 
this A-19 is determined in accordance with Q/A-18(d) of this section. 
However, an employee who is not counted for purposes of the preceding 
sentence may still be a highly-compensated individual.
    Q-20: What is the disqualified individual determination period?
    A-20: The disqualified individual determination period is the 
twelve-month period prior to and ending on the date of the change in 
ownership or control of the corporation.
    Q-21: How is compensation defined for purposes of determining who is 
a disqualified individual?
    A-21: (a) For purposes of determining who is a disqualified 
individual, the term compensation means the compensation which was 
earned by the individual for services performed for the corporation with 
respect to which the change in ownership or control occurs (changed 
corporation), for a predecessor entity, or for a related entity. Such 
compensation is determined without regard to sections 125, 132(f)(4), 
402(e)(3), and 402(h)(1)(B). Thus, for example, compensation includes 
elective or salary reduction contributions to a cafeteria plan, cash or 
deferred arrangement or tax-sheltered annuity, and amounts credited 
under a nonqualified deferred compensation plan.
    (b) For purposes of this A-21, a predecessor entity is any entity 
which, as a result of a merger, consolidation, purchase or acquisition 
of property or stock, corporate separation, or other similar business 
transaction transfers some or all of its employees to the changed 
corporation or to a related entity or to a predecessor entity of the 
changed corporation. The term related entity includes--
    (1) All members of a controlled group of corporations (as defined in 
section 414(b)) that includes the changed corporation or a predecessor 
entity;
    (2) All trades or businesses (whether or not incorporated) that are 
under common control (as defined in section 414(c)) if such group 
includes the changed corporation or a predecessor entity;
    (3) All members of an affiliated service group (as defined in 
section 414(m)) that includes the changed corporation or a predecessor 
entity; and
    (4) Any other entities required to be aggregated with the changed 
corporation or a predecessor entity pursuant to section 414(o) and the 
regulations thereunder (except leasing organizations as defined in 
section 414(n)).
    (c) For purposes of Q/A-18 and Q/A-19 of this section, compensation 
that was contingent on the change in ownership or control and that was 
payable in the

[[Page 884]]

year of the change is not treated as compensation.

              Contingent on Change in Ownership or Control

    Q-22: When is a payment contingent on a change in ownership or 
control?
    A-22: (a) In general, a payment is treated as contingent on a change 
in ownership or control if the payment would not, in fact, have been 
made had no change in ownership or control occurred, even if the payment 
is also conditioned on the occurrence of another event. A payment 
generally is treated as one which would not, in fact, have been made in 
the absence of a change in ownership or control unless it is 
substantially certain, at the time of the change, that the payment would 
have been made whether or not the change occurred. (But see Q/A-23 of 
this section regarding payments under agreements entered into after a 
change in ownership or control.) A payment that becomes vested as a 
result of a change in ownership or control is not treated as a payment 
which was substantially certain to have been made whether or not the 
change occurred. For purposes of this A-22, vested means the payment is 
substantially vested within the meaning of Sec. 1.83-3(b) and (j) or 
the right to the payment is not otherwise subject to a substantial risk 
of forfeiture as defined by section 83(c).
    (b)(1) For purposes of paragraph (a), a payment is treated as 
contingent on a change in ownership or control if--
    (i) The payment is contingent on an event that is closely associated 
with a change in ownership or control;
    (ii) A change in ownership or control actually occurs; and
    (iii) The event is materially related to the change in ownership or 
control.
    (2) For purposes of paragraph (b)(1)(i) of this A-22, a payment is 
treated as contingent on an event that is closely associated with a 
change in ownership or control unless it is substantially certain, at 
the time of the event, that the payment would have been made whether or 
not the event occurred. An event is considered closely associated with a 
change in ownership or control if the event is of a type often 
preliminary or subsequent to, or otherwise closely associated with, a 
change in ownership or control. For example, the following events are 
considered closely associated with a change in the ownership or control 
of a corporation: The onset of a tender offer with respect to the 
corporation; a substantial increase in the market price of the 
corporation's stock that occurs within a short period (but only if such 
increase occurs prior to a change in ownership or control); the 
cessation of the listing of the corporation's stock on an established 
securities market; the acquisition of more than 5 percent of the 
corporation's stock by a person (or more than one person acting as a 
group) not in control of the corporation; the voluntary or involuntary 
termination of the disqualified individual's employment; a significant 
reduction in the disqualified individual's job responsibilities; and a 
change in ownership or control as defined in the disqualified 
individual's employment agreement (or elsewhere) that does not meet the 
definition of a change in ownership or control described in Q/A-27, 28, 
or 29 of this section. Whether other events are treated as closely 
associated with a change in ownership or control is based on all the 
facts and circumstances of the particular case.
    (3) For purposes of determining whether an event (as described in 
paragraph (b)(2) of this A-22) is materially related to a change in 
ownership or control, the event is presumed to be materially related to 
a change in ownership or control if such event occurs within the period 
beginning one year before and ending one year after the date of the 
change in ownership or control. If such event occurs outside of the 
period beginning one year before and ending one year after the date of 
change in ownership or control, the event is presumed not materially 
related to the change in ownership or control. A payment does not fail 
to be contingent on a change in ownership or control merely because it 
is also contingent on the occurrence of a second event (without regard 
to whether the second event is closely associated with or materially 
related to a change in ownership or control). Similarly, a payment that 
is treated as contingent

[[Page 885]]

on a change in ownership or control because it is contingent on a 
closely associated event does not fail to be treated as contingent on a 
change in ownership or control merely because it is also contingent on 
the occurrence of a second event (without regard to whether the second 
event is closely associated with or materially related to a change in 
ownership or control).
    (c) A payment that would in fact have been made had no change in 
ownership or control occurred is treated as contingent on a change in 
ownership or control if the change in ownership or control (or the 
occurrence of an event that is closely associated with and materially 
related to a change in ownership or control within the meaning of 
paragraph (b)(1) of this A-22), accelerates the time at which the 
payment is made. Thus, for example, if a change in ownership or control 
accelerates the time of payment of deferred compensation that is vested 
without regard to the change in ownership or control, the payment may be 
treated as contingent on the change. See Q/A-24 of this section 
regarding the portion of a payment that is so treated. See also Q/A-8 of 
this section regarding the exemption for certain payments under 
qualified plans and Q/A-40 of this section regarding the treatment of a 
payment as reasonable compensation.
    (d) A payment is treated as contingent on a change in ownership or 
control even if the employment or independent contractor relationship of 
the disqualified individual is not terminated (voluntarily or 
involuntarily) as a result of the change.
    (e) The following examples illustrate the principles of this A-22:

    Example 1. A corporation grants a stock appreciation right to a 
disqualified individual, A, more than one year before a change in 
ownership or control. After the stock appreciation right vests and 
becomes exercisable, a change in ownership or control of the corporation 
occurs, and A exercises the right. Assuming neither the granting nor the 
vesting of the stock appreciation right is contingent on a change in 
ownership or control, the payment made on exercise is not contingent on 
the change in ownership or control.
    Example 2. A contract between a corporation and B, a disqualified 
individual, provides that a payment will be made to B if the corporation 
undergoes a change in ownership or control and B's employment with the 
corporation is terminated at any time over the succeeding 5 years. 
Eighteen months later, a change in the ownership of the corporation 
occurs. Two years after the change in ownership, B's employment is 
terminated and the payment is made to B. Because it was not 
substantially certain that the corporation would have made the payment 
to B on B's termination of employment if there had not been a change in 
ownership, the payment is treated as contingent on the change in 
ownership under paragraph (a) of this A-22. This is true even though B's 
termination of employment is presumed not to be, and in fact may not be, 
materially related to the change in ownership or control.
    Example 3. A contract between a corporation and C, a disqualified 
individual, provides that a payment will be made to C if C's employment 
is terminated at any time over the succeeding 3 years (without regard to 
whether or not there is a change in ownership or control). Eighteen 
months after the contract is entered into, a change in the ownership or 
control of the corporation occurs. Six months after the change in 
ownership or control, C's employment is terminated and the payment is 
made to C. Termination of employment is considered an event closely 
associated with a change in ownership or control. Because the 
termination occurred within one year after the date of the change in 
ownership or control, the termination of C's employment is presumed to 
be materially related to the change in ownership or control under 
paragraph (b)(3) of this A-22. If this presumption is not successfully 
rebutted, the payment will be treated as contingent on the change in 
ownership or control under paragraph (b) of this A-22.
    Example 4. A contract between a corporation and a disqualified 
individual, D, provides that a payment will be made to D upon the onset 
of a tender offer for shares of the corporation's stock. A tender offer 
is made on December 1, 2008, and the payment is made to D. Although the 
tender offer is unsuccessful, it leads to a negotiated merger with 
another entity on June 1, 2009, which results in a change in the 
ownership or control of the corporation. It was not substantially 
certain, at the time of the onset of the tender offer, that the payment 
would have been made had no tender offer taken place. The onset of a 
tender offer is considered closely associated with a change in ownership 
or control. Because the tender offer occurred within one year before the 
date of the change in ownership or control of the corporation, the onset 
of the tender offer is presumed to be materially related to the change 
in ownership or control. If this presumption is not rebutted, the 
payment will be treated as contingent on the change in ownership or 
control. If no change in ownership or control had occurred, the payment 
would not be

[[Page 886]]

treated as contingent on a change in ownership or control; however, the 
payment still could be a parachute payment under Q/A-37 of this section 
if the contract violated a generally enforced securities law or 
regulation.
    Example 5. A contract between a corporation and a disqualified 
individual, E, provides that a payment will be made to E if the 
corporation's level of product sales or profits reaches a specified 
level. At the time the contract was entered into, the parties had no 
reason to believe that such an increase in the corporation's level of 
product sales or profits would be preliminary or subsequent to, or 
otherwise closely associated with, a change in ownership or control of 
the corporation. Eighteen months later, a change in the ownership or 
control of the corporation occurs and within one year after the date of 
the change of ownership or control, the corporation's level of product 
sales or profits reaches the specified level. Under these facts and 
circumstances (and in the absence of contradictory evidence), the 
increase in product sales or profits of the corporation is not an event 
closely associated with the change in ownership or control of the 
corporation. Accordingly, even if the increase is materially related to 
the change in ownership or control, the payment will not be treated as 
contingent on a change in ownership or control.

    Q-23: May a payment be treated as contingent on a change in 
ownership or control if the payment is made under an agreement entered 
into after the change?
    A-23: (a) No. Payments are not treated as contingent on a change in 
ownership or control if they are made (or are to be made) pursuant to an 
agreement entered into after the change (a post-change agreement). For 
this purpose, an agreement that is executed after a change in ownership 
or control pursuant to a legally enforceable agreement that was entered 
into before the change is considered to have been entered into before 
the change. (See Q/A-9 of this section regarding the exemption for 
reasonable compensation for services rendered on or after a change in 
ownership or control.) If an individual has a right to receive a payment 
that would be a parachute payment if made under an agreement entered 
into prior to a change in ownership or control (pre-change agreement) 
and gives up that right as bargained-for consideration for benefits 
under a post-change agreement, the agreement is treated as a post-change 
agreement only to the extent the value of the payments under the 
agreement exceed the value of the payments under the pre-change 
agreement. To the extent payments under the agreement have the same 
value as the payments under the pre-change agreement, such payments 
retain their character as parachute payments subject to this section.
    (b) The following examples illustrate the principles of this A-23:

    Example 1. Assume that a disqualified individual is an employee of a 
corporation. A change in ownership or control of the corporation occurs, 
and thereafter the individual enters into an employment agreement with 
the acquiring company. Because the agreement is entered into after the 
change in ownership or control occurs, payments to be made under the 
agreement are not treated as contingent on the change.
    Example 2. Assume the same facts as in Example 1, except that the 
agreement between the disqualified individual and the acquiring company 
is executed after the change in ownership or control, pursuant to a 
legally enforceable agreement entered into before the change. Payments 
to be made under the agreement may be treated as contingent on the 
change in ownership or control pursuant to Q/A-22 of this section. 
However, see Q/A-9 of this section regarding the exemption from the 
definition of parachute payment for certain amounts of reasonable 
compensation.
    Example 3. Assume the same facts as in Example 1, except that prior 
to the change in ownership or control, the individual and corporation 
enter into an agreement under which the individual will receive 
parachute payments in the event of a change in ownership or control of 
the corporation. After the change, the individual agrees to give up the 
right to payments under the pre-change agreement that would be parachute 
payments if made, in exchange for compensation under a new agreement 
with the acquiring corporation. Because the individual gave up the right 
to parachute payments under the pre-change agreement in exchange for 
other payments under the post-change agreement, payments in an amount 
equal to the parachute payments under the pre-change agreement are 
treated as contingent on the change in ownership or control under this 
A-23. Because the post-change agreement was entered into after the 
change, payments in excess of this amount are not treated as parachute 
payments.

    Q-24: If a payment is treated as contingent on a change in ownership 
or control, is the full amount of the payment so treated?

[[Page 887]]

    A-24: (a)(1) General rule. Yes. If the payment is a transfer of 
property, the amount of the payment is determined under Q/A-12 or Q/A-13 
of this section. For all other payments, the amount of the payment is 
determined under Q/A-11 of this section. However, in certain 
circumstances, described in paragraphs (b) and (c) of this A-24, only a 
portion of the payment is treated as contingent on the change. Paragraph 
(b) of this A-24 applies to a payment that is vested, without regard to 
the change in ownership or control, and is treated as contingent on the 
change in ownership or control because the change accelerates the time 
at which the payment is made. Paragraph (c) of this A-24 applies to a 
payment that becomes vested as a result of the change in ownership or 
control if, without regard to the change in ownership or control, the 
payment was contingent only on the continued performance of services for 
the corporation for a specified period of time and if the payment is 
attributable, at least in part, to services performed before the date 
the payment becomes vested. Paragraph (b) or (c) does not apply to any 
payment (or portion thereof) if the payment is treated as contingent on 
the change in ownership or control pursuant to Q/A-25 of this section. 
For purposes of this A-24, vested has the same meaning as provided in Q/
A-22(a).
    (2) Reduction by reasonable compensation. The amount of a payment 
under paragraph (a)(1) of this A-24 is reduced by any portion of such 
payment that the taxpayer establishes by clear and convincing evidence 
is reasonable compensation for personal services rendered by the 
disqualified individual on or after the date of the change of control. 
See Q/A-9 and Q/A-38 through 44 of this section for rules concerning 
reasonable compensation. The portion of an amount treated as contingent 
under paragraph (b) or (c) of this A-24 may not be reduced by reasonable 
compensation.
    (b) Vested payments. This paragraph (b) applies if a payment is 
vested, without regard to the change in ownership or control, and is 
treated as contingent on the change in ownership or control because the 
change accelerates the time at which the payment is made. In such a 
case, the portion of the payment, if any, that is treated as contingent 
on the change in ownership or control is the amount by which the amount 
of the accelerated payment exceeds the present value of the payment 
absent the acceleration. If the value of such a payment absent the 
acceleration is not reasonably ascertainable, and the acceleration of 
the payment does not significantly increase the present value of the 
payment absent the acceleration, the present value of the payment absent 
the acceleration is treated as equal to the amount of the accelerated 
payment. If the value of the payment absent the acceleration is not 
reasonably ascertainable, but the acceleration significantly increases 
the present value of the payment, the future value of such payment is 
treated as equal to the amount of the accelerated payment. For rules on 
determining present value, see paragraph (e) of this A-24, Q/A-32, and 
Q/A-33 of this section.
    (c)(1) Nonvested payments. This paragraph (c) applies to a payment 
that becomes vested as a result of the change in ownership or control to 
the extent that--
    (i) Without regard to the change in ownership or control, the 
payment was contingent only on the continued performance of services for 
the corporation for a specified period of time; and
    (ii) The payment is attributable, at least in part, to the 
performance of services before the date the payment is made or becomes 
certain to be made.
    (2) The portion of the payment subject to paragraph (c) of this A-24 
that is treated as contingent on the change in ownership or control is 
the amount described in paragraph (b) of this A-24, plus an amount, as 
determined in paragraph (c)(4) of this A-24, to reflect the lapse of the 
obligation to continue to perform services. In no event can the portion 
of the payment treated as contingent on the change in ownership or 
control under this paragraph (c) exceed the amount of the accelerated 
payment, or, if the payment is not accelerated, the present value of the 
payment.
    (3) For purposes of this paragraph (c) of this A-24, the 
acceleration of the vesting of a stock option or the lapse of

[[Page 888]]

a restriction on restricted stock is considered to significantly 
increase the value of a payment.
    (4) The amount reflecting the lapse of the obligation to continue to 
perform services (described in paragraph (c)(2) of this A-24) is 1 
percent of the amount of the accelerated payment multiplied by the 
number of full months between the date that the individual's right to 
receive the payment is vested and the date that, absent the 
acceleration, the payment would have been vested. This paragraph (c)(4) 
applies to the accelerated vesting of a payment in the nature of 
compensation even if the time at which the payment is made is not 
accelerated. In such a case, the amount reflecting the lapse of the 
obligation to continue to perform services is 1 percent of the present 
value of the future payment multiplied by the number of full months 
between the date that the individual's right to receive the payment is 
vested and the date that, absent the acceleration, the payment would 
have been vested.
    (d) Application of this A-24 to certain payments--(1) Benefits under 
a nonqualified deferred compensation plan. In the case of a payment of 
benefits under a nonqualified deferred compensation plan, paragraph (b) 
of this A-24 applies to the extent benefits under the plan are vested 
without regard to the change in ownership or control. Paragraph (c) of 
this A-24 applies to the extent benefits under the plan become vested as 
a result of the change in ownership or control and are attributable, at 
least in part, to the performance of services prior to vesting. Any 
other payment of benefits under a nonqualified deferred compensation 
plan is a payment in the nature of compensation subject to the general 
rule of paragraph (a) of this A-24 and the rules in Q/A-11 of this 
section.
    (2) Employment agreements. The general rule of paragraph (a) of this 
A-24 (and not the rules in paragraphs (b) or (c)) applies to the payment 
of amounts due under an employment agreement on a termination of 
employment or a change in ownership or control that otherwise would be 
attributable to the performance of services (or refraining from the 
performance of services) during any period that begins after the date of 
termination of employment or change in ownership or control, as 
applicable. For purposes of this paragraph (d)(2) of this A-24, an 
employment agreement means an agreement between an employee or 
independent contractor and employer or service recipient which 
describes, among other things, the amount of compensation or 
remuneration payable to the employee or independent contractor. See Q/A-
42(b) and 44 of this section for the treatment of the remaining amounts 
of salary under an employment agreement.
    (3) Vesting due to an event other than services. Neither paragraph 
(b) nor (c) of this A-24 applies to a payment if (without regard to the 
change in ownership or control) vesting of the payment depends on an 
event other than the performance of services, such as the attainment of 
a performance goal, and the event does not occur prior to the change in 
ownership or control. In such circumstances, the full amount of the 
accelerated payment is treated as contingent on the change in ownership 
or control under paragraph (a) of this A-24. However, see Q/A-39 of this 
section for rules relating to the reduction of the excess parachute 
payment by the portion of the payment which is established to be 
reasonable compensation for personal services actually rendered before 
the date of a change in ownership or control.
    (e) Present value. For purposes of this A-24, the present value of a 
payment is determined as of the date on which the accelerated payment is 
made.
    (f) Examples. The following examples illustrate the principles of 
this A-24:

    Example 1. (i) Corporation maintains a qualified plan and a 
nonqualified supplemental retirement plan (SERP) for its executives. 
Benefits under the SERP are not paid to participants until retirement. 
E, a disqualified individual with respect to Corporation, has a vested 
account balance of $500,000 under the SERP. A change in ownership or 
control of Corporation occurs. The SERP provides that in the event of a 
change in ownership or control, all vested accounts will be paid to SERP 
participants.
    (ii) Because E was vested in $500,000 of benefits under the SERP 
prior to the change in ownership or control and the change merely 
accelerated the time at which the payment was made to E, only a portion 
of the payment, as determined under paragraph (b) of

[[Page 889]]

this A-24, is treated as contingent on the change. Thus, the portion of 
the payment that is treated as contingent on the change is the amount by 
which the amount of the accelerated payment ($500,000) exceeds the 
present value of the payment absent the acceleration.
    (iii) Assume the same facts as in paragraph (i) of this Example 1, 
except that E's account balance of $500,000 is not vested. Instead, 
assume that E will vest in E's account balance of $500,000 in 2 years if 
E continues to perform services for the next 2 years. Assume further 
that the SERP provides that all unvested SERP benefits vest immediately 
on a change in ownership or control and are paid to the participants. 
Because the vesting of the SERP payment, without regard to the change, 
depends only on the performance of services for a specified period of 
time and the payment is attributable, in part, to the performance of 
services before the change in ownership or control, only a portion of 
the $500,000 payment, as determined under paragraph (c) of this A-24, is 
treated as contingent on the change. The portion of the payment that is 
treated as contingent on the change is the lesser of the amount of the 
accelerated payment or the amount by which the accelerated payment 
exceeds the present value of the payment absent the acceleration, plus 
an amount to reflect the lapse of the obligation to continue to perform 
services.
    (iv) Assume the same facts as in paragraph (i) of this Example 1, 
except that in addition to the pay out of the vested account balance of 
$500,000 on the change in ownership or control, an additional $70,000 
will be credited to E's account and included in the payment to E. 
Because the $500,000 was vested without regard to the change in 
ownership or control, paragraph (b) of this A-24 applies to the $500,000 
payment. Because the $70,000 is not vested, without regard to the 
change, and is not attributable to the performance of services prior to 
the change, the entire $70,000 payment is contingent on the change in 
ownership or control under paragraph (a) of this A-24.
    (v) Assume the same facts as in paragraph (i) of this Example 1, 
except that the benefit under the SERP is calculated using a percentage 
of final average compensation multiplied by years of service. If, 
contingent on the change in ownership or control, E is credited with 
additional years of service, an adjustment to final average 
compensation, or an increase in the applicable percentage, any increase 
in the benefit payable under the SERP is not attributable to the 
performance of services prior to the change, and the entire increase in 
the benefit is contingent on the change in ownership or control under 
paragraph (a) of this A-24.
    Example 2. As a result of a change in the effective control of a 
corporation D, a disqualified individual with respect to the 
corporation, receives accelerated payment of D's vested account balance 
in a nonqualified deferred compensation account plan. Actual interest 
and other earnings on the plan assets are credited to each account as 
earned before distribution. Investment of the plan assets is not 
restricted in such a manner as would prevent the earning of a market 
rate of return on the plan assets. The date on which D would have 
received D's vested account balance absent the change in ownership or 
control is uncertain, and the rate of earnings on the plan assets is not 
fixed. Thus, the amount of the payment absent the acceleration is not 
reasonably ascertainable. Under these facts, acceleration of the payment 
does not significantly increase the present value of the payment absent 
the acceleration, and the present value of the payment absent the 
acceleration is treated as equal to the amount of the accelerated 
payment. Accordingly, no portion of the payment is treated as contingent 
on the change.
    Example 3. (i) On January 15, 2006, a corporation and a disqualified 
individual, F, enter into a contract providing for a retention bonus of 
$500,000 to be paid to F on January 15, 2011. The payment of the bonus 
will be forfeited by F if F does not remain employed by the corporation 
for the entire 5-year period. However, the contract provides that the 
full amount of the payment will be made immediately on a change in 
ownership or control of the corporation during the 5-year period. On 
January 15, 2009, a change in ownership or control of the corporation 
occurs and the full amount of the payment ($500,000) is made on that 
date to F. Under these facts, the payment of $500,000 was contingent 
only on F's performance of services for a specified period and is 
attributable, in part, to the performance of services before the change 
in ownership or control. Therefore, only a portion of the payment, as 
determined under paragraph (c) of this A-24 is treated as contingent on 
the change. The portion of the payment that is treated as contingent on 
the change is the amount by which the amount of the accelerated payment 
(i.e., $500,000, the amount paid to the individual because of the change 
in ownership) exceeds the present value of the payment that was expected 
to have been made absent the acceleration (i.e., $406,838, the present 
value on January 15, 2009, of a $500,000 payment on January 15, 2011), 
plus $115,000 (1 percent x 23 months x $500,000) which is the amount 
reflecting the lapse of the obligation to continue to perform services. 
Accordingly, the amount of the payment treated as contingent on the 
change in ownership or control is $208,162, the sum of $93,162 
($500,000-$406,838) + $115,000). This result does not change if F 
actually remains employed until the end of the 5-year period.

[[Page 890]]

    (ii) Assume the same facts as in paragraph (i) of this Example 3, 
except that the retention bonus will vest on the change in ownership or 
control, but will not be paid until January 15, 2011 (the original date 
in the contract). Because the payment of $500,000 was contingent only on 
F's performance of services for a specified period and is attributable, 
in part, to the performance of services before the change in ownership 
or control, only a portion of the $500,000 payment is treated as 
contingent on the change in ownership or control as determined under 
paragraph (c) of this A-24. Because there is accelerated vesting of the 
bonus, the portion of the payment treated as contingent on the change is 
the amount described in paragraph (b) of this A-27, which is $0 under 
these facts, plus an amount reflecting the lapse of the obligation to 
continue to perform services which is $93,573 (1 percent x 23 months x 
$406,838 (the present value of a $500,000 payment).
    Example 4. (i) On January 15, 2006, a corporation gives to a 
disqualified individual, in connection with her performance of services 
to the corporation, a bonus of 1,000 shares of the corporation's stock. 
Under the terms of the bonus arrangement, the individual is obligated to 
return the stock to the corporation if she terminates her employment for 
any reason prior to January 15, 2011. However, if there is a change in 
the ownership or effective control of the corporation prior to January 
15, 2011, she ceases to be obligated to return the stock. The 
individual's rights in the stock are treated as substantially nonvested 
(within the meaning of Sec. 1.83-3(b) and (j)) during that period. On 
January 15, 2009, a change in the ownership of the corporation occurs. 
On that day, the fair market value of the stock is $500,000.
    (ii) Under these facts, the payment was contingent only on 
performance of services for a specified period and is attributable, in 
part, to the performance of services before the change in ownership or 
control. Thus, only a portion of the payment, as determined under 
paragraph (c) of this A-24, is treated as contingent on the change in 
ownership or control. The portion of the payment that is treated as 
contingent on the change is the amount by which the present value of the 
accelerated payment on January 15, 2009 ($500,000), exceeds the present 
value of the payment that was expected to have been made on January 15, 
2011, plus an amount reflecting the lapse of the obligation to continue 
to perform services. At the time of the change, it cannot be reasonably 
ascertained what the value of the stock would have been on January 15, 
2011. The acceleration of the lapse of a restriction on stock is treated 
as significantly increasing the value of the payment. Therefore, the 
value of such stock on January 15, 2011, is deemed to be $500,000, the 
amount of the accelerated payment. The present value on January 15, 
2009, of a $500,000 payment to be made on January 15, 2011, is $406,838. 
Thus, the portion of the payment treated as contingent on the change is 
$208,162, the sum of $93,162 ($500,000-$406,838), plus $115,000 (1 
percent x 23 months x $500,000), the amount reflecting the lapse of the 
obligation to continue to perform services.
    Example 5. (i) On January 15, 2006, a corporation grants to a 
disqualified individual nonqualified stock options to purchase 30,000 
shares of the corporation's stock. The options will be forfeited by the 
individual if he fails to perform personal services for the corporation 
until January 15, 2009. The options will, however, vest in the 
individual at an earlier date if there is a change in ownership or 
control of the corporation. On January 16, 2008, a change in the 
ownership or control of the corporation occurs and the options become 
vested in the individual. The value of the options on January 16, 2008, 
determined in accordance with Q/A-13, is $600,000.
    (ii) The payment of the options to purchase 30,000 shares was 
contingent only on performance of services for the corporation until 
January 15, 2009, and is attributable, in part, to the performance of 
services before the change in ownership or control. Therefore, only a 
portion of the payment is treated as contingent on the change. The 
portion of the payment that is treated as contingent on the change is 
the amount by which the accelerated payment on January 16, 2008 
($600,000) exceeds the present value on January 16, 2008, of the payment 
that was expected to have been made on January 15, 2009, absent the 
acceleration, plus an amount reflecting the lapse of the obligation to 
continue to perform services. At the time of the change, it cannot be 
reasonably ascertained what the value of the options would have been on 
January 15, 2009. The acceleration of vesting in the options is treated 
as significantly increasing the value of the payment. Therefore, the 
value of such options on January 15, 2009, is deemed to be $600,000, the 
amount of the accelerated payment. The present value on January 16, 
2008, of a $600,000 payment to be made on January 15, 2009, is $549,964. 
Thus, the portion of the payment treated as contingent on the change is 
$116,036, the sum of $50,036 ($600,000-$549,964), plus an amount 
reflecting the lapse of the obligation to continue to perform services 
which is $66,000 (1 percent x 11 months x $600,000).
    Example 6. (i) Assume the same facts as in Example 5, except that 
the options become vested periodically (absent a change in ownership or 
control), with one-third of the options vesting on January 15, 2007, 
2008, and 2009, respectively. Thus, options to purchase 20,000 shares 
vest independently of the January 16, 2008, change in ownership or 
control and the options to purchase the remaining

[[Page 891]]

10,000 shares vest as a result of the change in ownership or control.
    (ii) The payment of the options to purchase 10,000 shares was 
contingent only on performance of services for the corporation until 
January 15, 2009, and is attributable, in part, to the performance of 
services before the change in ownership or control. Therefore, only a 
portion of the payment as determined under paragraph (c) of this A-24 is 
treated as contingent on the change in ownership or control. The portion 
of the payment that is treated as contingent on the change in ownership 
or control is the amount by which the accelerated payment on January 16, 
2008 ($200,000) exceeds the present value on January 16, 2008, of the 
payment that was expected to have been made on January 15, 2009, absent 
the acceleration, plus an amount reflecting the lapse of the obligation 
to perform services. At the time of the change in ownership or control, 
it cannot be reasonably ascertained what the value of the options would 
have been on January 15, 2009. The acceleration of vesting in the 
options is treated as significantly increasing the value of the payment. 
Therefore, the value of such options on January 15, 2009, is deemed to 
be $200,000, the amount of the accelerated payment. The present value on 
January 16, 2008, of a $200,000 payment to be made on January 15, 2009, 
is $183,328.38. Thus, the portion of the payment treated as contingent 
on the change is $38,671.62, the sum of $16,671.62 ($200,000-
$183,328.38), plus an amount reflecting the lapse of the obligation to 
continue to perform services which is $22,000 (1 percent x 11 months x 
$200,000).
    Example 7. Assume the same facts as in Example 5, except that the 
option agreement provides that the options will vest either on the 
corporation's level of profits reaching a specified level, or if 
earlier, on the date on which there is a change in ownership or control 
of the corporation. The corporation's level of profits do not reach the 
specified level prior to January 16, 2008. In such case, the full amount 
of the payment, $600,000, is treated as contingent on the change in 
ownership or control under paragraph (a) of this A-24. Because the 
payment was not contingent only on the performance of services for the 
corporation for a specified period, the rules of paragraph (b) and (c) 
of this A-24 do not apply. See Q/A-39 of this section for rules relating 
to the reduction of the excess parachute payment by the portion of the 
payment which is established to be reasonable compensation for personal 
services actually rendered before the date of a change in ownership or 
control.
    Example 8. On January 1, 2005, E, a disqualified individual with 
respect to Corporation X, enters into an employment agreement with 
Corporation X under which E will be paid wages of $200,000 each year 
during the 5-year employment agreement. The employment agreement 
provides that if a change in ownership or control of Corporation X 
occurs, E will be paid the present value of the remaining salary under 
the employment agreement. On January 1, 2006, a change in ownership or 
control of Corporation X occurs, E is terminated, and E receives a 
payment of the present value of $200,000 for each of the 4 years 
remaining under the employment agreement. Because the payment represents 
future salary under an employment agreement (i.e., amounts otherwise 
attributable to the performance of services for periods that begin after 
the termination of employment), the general rule of paragraph (a) of 
this A-24 applies to the payment and not the rules of paragraphs (b) and 
(c) of this A-24. See Q/A-42(c) and 44 of this section for the treatment 
of the remaining payments under an employment agreement.

            Presumption That Payment Is Contingent on Change

    Q-25: Is there a presumption that certain payments are contingent on 
a change in ownership or control?
    A-25: Yes, for purposes of this section, any payment is presumed to 
be contingent on such a change unless the contrary is established by 
clear and convincing evidence if the payment is made pursuant to--
    (a) An agreement entered into within one year before the date of a 
change in ownership or control; or
    (b) An amendment that modifies a previous agreement in any 
significant respect, if the amendment is made within one year before the 
date of a change in ownership or control. In the case of an amendment 
described in paragraph (b) of this A-25, only the portion of any payment 
that exceeds the amount of such payment that would have been made in the 
absence of the amendment is presumed, by reason of the amendment, to be 
contingent on the change in ownership or control.
    Q-26: How may the presumption described in Q/A-25 of this section be 
rebutted?
    A-26: (a) To rebut the presumption described in Q/A-25 of this 
section, the taxpayer must establish by clear and convincing evidence 
that the payment is not contingent on the change in ownership or 
control. Whether the payment is contingent on such change is determined 
on the basis of all the facts and circumstances of the particular

[[Page 892]]

case. Factors relevant to such a determination include, but are not 
limited to, the content of the agreement or amendment and the 
circumstances surrounding the execution of the agreement or amendment, 
such as whether it was entered into at a time when a takeover attempt 
had commenced and the degree of likelihood that a change in ownership or 
control would actually occur. However, even if the presumption is 
rebutted with respect to an agreement, some or all of the payments under 
the agreement may still be contingent on the change in ownership or 
control pursuant to Q/A-22 of this section.
    (b) In the case of an agreement described in Q/A-25 of this section, 
clear and convincing evidence that the agreement is one of the three 
following types will generally rebut the presumption that payments under 
the agreement are contingent on the change in ownership or control--
    (1) A nondiscriminatory employee plan or program as defined in 
paragraph (c) of this A-26;
    (2) A contract between a corporation and an individual that replaces 
a prior contract entered into by the same parties more than one year 
before the change in ownership or control, if the new contract does not 
provide for increased payments (apart from normal increases attributable 
to increased responsibilities or cost of living adjustments), accelerate 
the payment of amounts due at a future time, or modify (to the 
individual's benefit) the terms or conditions under which payments will 
be made; or
    (3) A contract between a corporation and an individual who did not 
perform services for the corporation prior to the one year period before 
the change in ownership or control occurs, if the contract does not 
provide for payments that are significantly different in amount, timing, 
terms, or conditions from those provided under contracts entered into by 
the corporation (other than contracts that themselves were entered into 
within one year before the change in ownership or control and in 
contemplation of the change) with individuals performing comparable 
services.
    (c) For purposes of this section, the term nondiscriminatory 
employee plan or program means: a group term life insurance plan that 
meets the requirements of section 79(d); a self insured medical 
reimbursement plan that meets the requirements of section 105(h); a 
cafeteria plan (within the meaning of section 125); an educational 
assistance program (within the meaning of section 127); a dependent care 
assistance program (within the meaning of section 129); a no-additional-
cost service (within the meaning of section 132(b)) or qualified 
employee discount (within the meaning of section 132(c)); a qualified 
retirement planning services program under section 132(m); an adoption 
assistance program (within the meaning of section 137); and such other 
items as provided by the Commissioner in published guidance of general 
applicability under Sec. 601.601(d)(2). Payments under certain other 
plans are exempt from the definition of parachute payment under Q/A-8 of 
this section.
    (d) The following examples illustrate the application of the 
presumption:

    Example 1. A corporation and a disqualified individual who is an 
employee of the corporation enter into an employment contract. The 
contract replaces a prior contract entered into by the same parties more 
than one year before the change in ownership or control and the new 
contract does not provide for any increased payments other than a cost 
of living adjustment, does not accelerate the payment of amounts due at 
a future time, and does not modify (to the individual's benefit) the 
terms or conditions under which payments will be made. Clear and 
convincing evidence of these facts rebuts the presumption described in 
A-25 of this section. However, payments under the contract still may be 
contingent on the change in ownership or control pursuant to Q/A-22 of 
this section.
    Example 2. Assume the same facts as in Example 1, except that the 
contract is entered into after a tender offer for the corporation's 
stock had commenced and it was likely that a change in ownership or 
control would occur and the contract provides for a substantial bonus 
payment to the individual upon his signing the contract. The individual 
has performed services for the corporation for many years, but previous 
employment contracts between the corporation and the individual did not 
provide for a similar signing bonus. One month after the contract is 
entered into, a change in the ownership or control of the corporation 
occurs. All payments under the contract are presumed to be contingent on 
the change in ownership or

[[Page 893]]

control even though the bonus payment would have been legally required 
even if no change had occurred. Clear and convincing evidence of these 
facts rebuts the presumption described in A-25 of this section with 
respect to all of the payments under the contract with the exception of 
the bonus payment (which is treated as contingent on the change). 
However, payments other than the bonus under the contract still may be 
contingent on the change in ownership or control pursuant to Q/A-22 of 
this section.
    Example 3. A corporation and a disqualified individual, who is an 
employee of the corporation, enter into an employment contract within 
one year of a change in ownership or control of the corporation. Under 
the contract, in the event of a change in ownership or control and 
subsequent termination of employment, certain payments will be made to 
the individual. A change in ownership or control occurs, but the 
individual is not terminated until 2 years after the change in ownership 
or control. If clear and convincing evidence does not rebut the 
presumption described in A-25 of this section, because the payment is 
made pursuant to an agreement entered into within one year of the date 
of the change in ownership or control, the payment is presumed 
contingent on the change under A-25 of this section. This is true even 
though A's termination of employment is presumed not to be materially 
related to the change in ownership or control under Q/A-22 of this 
section.

                     Change in Ownership or Control

    Q-27: When does a change in the ownership of a corporation occur?
    A-27: (a) For purposes of this section, a change in the ownership of 
a corporation occurs on the date that any one person, or more than one 
person acting as a group (as defined in paragraph (b) of this A-27), 
acquires ownership of stock of the corporation that, together with stock 
held by such person or group, has more than 50 percent of the total fair 
market value or total voting power of the stock of such corporation. 
However, if any one person, or more than one person acting as a group, 
is considered to own more than 50 percent of the total fair market value 
or total voting power of the stock of a corporation, the acquisition of 
additional stock by the same person or persons is not considered to 
cause a change in the ownership of the corporation (or to cause a change 
in the effective control of the corporation (within the meaning of Q/A-
28 of this section)). An increase in the percentage of stock owned by 
any one person, or persons acting as a group, as a result of a 
transaction in which the corporation acquires its stock in exchange for 
property will be treated as an acquisition of stock for purposes of this 
section. This A-27 applies only when there is a transfer of stock of a 
corporation (or issuance of stock of a corporation) and stock in such 
corporation remains outstanding after the transaction. (See Q/A-29 for 
rules regarding the transfer of assets of a corporation).
    (b) For purposes of paragraph (a) of this A-27, persons will not be 
considered to be acting as a group merely because they happen to 
purchase or own stock of the same corporation at the same time, or as a 
result of the same public offering. However, persons will be considered 
to be acting as a group if they are owners of a corporation that enters 
into a merger, consolidation, purchase or acquisition of stock, or 
similar business transaction with the corporation. If a person, 
including an entity shareholder, owns stock in both corporations that 
enter into a merger, consolidation, purchase or acquisition of stock, or 
similar transaction, such shareholder is considered to be acting as a 
group with other shareholders in a corporation only with respect to the 
ownership in that corporation prior to the transaction giving rise to 
the change and not with respect to the ownership interest in the other 
corporation.
    (c) For purposes of this A-27 (and Q/A-28 and 29), section 318(a) 
applies to determine stock ownership. Stock underlying a vested option 
is considered owned by the individual who holds the vested option (and 
the stock underlying an unvested option is not considered owned by the 
individual who holds the unvested option). For purposes of the preceding 
sentence, however, if the option is exercisable for stock that is not 
substantially vested (as defined by sections 1.83-3(b) and (j)), the 
stock underlying the option is not treated as owned by the individual 
who holds the option. In addition, mutual and cooperative corporations 
are treated as having stock for purposes of this A-27.
    (d) The following examples illustrate the principles of this A-27:


[[Page 894]]


    Example 1. Corporation M has owned stock with a fair market value 
equal to 19 percent of the value of the stock of Corporation N (an 
otherwise unrelated corporation) for many years prior to 2006. 
Corporation M acquires additional stock with a fair market value equal 
to 15 percent of the value of the stock of Corporation N on January 1, 
2006, and an additional 18 percent on February 21, 2007. As of February 
21, 2007, Corporation M has acquired stock with a fair market value 
greater than 50 percent of the value of the stock of Corporation N. 
Thus, a change in the ownership of Corporation N is considered to occur 
on February 21, 2007 (assuming that Corporation M did not have effective 
control of Corporation N immediately prior to the acquisition on that 
date).
    Example 2. All of the corporation's stock is owned by the founders 
of the corporation. The board of directors of the corporation decides to 
offer shares of the corporation to the public. After the public 
offering, the founders of the corporation own a total of 40 percent of 
the corporation's stock, and members of the public own 60 percent. If no 
one person (or more than one person acting as a group) owns more than 50 
percent of the corporation's stock (by value or voting power) after the 
public offering, there is no change in the ownership of the corporation.
    Example 3. Corporation P merges into Corporation O (a previously 
unrelated corporation). In the merger, the shareholders of Corporation P 
receive Corporation O stock in exchange for their Corporation P stock. 
Immediately after the merger, the former shareholders of Corporation P 
own stock with a fair market value equal to 60 percent of the value of 
the stock of Corporation O, and the former shareholders of Corporation O 
own stock with a fair market value equal to 40 percent of the value of 
the stock of Corporation O. The former shareholders of Corporation P 
will be treated as acting as a group in their acquisition of Corporation 
O stock. Thus, a change in the ownership of Corporation O occurs on the 
date of the merger. See Q/A-29, Example 3, regarding whether there is a 
change in ownership or control of P.
    Example 4. Assume the same facts as in Example 3, except that 
immediately after the change, the former shareholders of Corporation P 
own stock with a fair market value of 51 percent of the value of 
Corporation O stock and the former shareholders of Corporation O own 
stock with a fair market value equal to 49 percent of the value of 
Corporation O stock. Assume further that prior to the merger several 
Corporation O shareholders also owned Corporation P stock (overlapping 
shareholders). In the merger, those O shareholders received additional O 
stock by virtue of their ownership of P stock with a fair market value 
of 5 percent of the value of Corporation O stock. Including the O stock 
attributable to the P shares, the O shareholders hold 54 percent of O 
after the transaction. However, those overlapping shareholders that 
owned both Corporation O stock and Corporation P stock prior to the 
merger are treated as acting as a group with the Corporation O 
shareholders only with respect to their ownership interest in 
Corporation O prior to the transaction. Therefore, because the 
Corporation O shareholders owned 49 percent of the value of Corporation 
O stock, a change in the ownership of Corporation O occurs on the date 
of the merger. See Q/A-29, Example 3, regarding whether there is a 
change in ownership or control of P.
    Example 5. A, an individual, owns stock with a fair market value 
equal to 20 percent of the value of the stock of Corporation Q. On 
January 1, 2007, Corporation Q acquires in a redemption for cash all of 
the stock held by shareholders other than A. Thus, A is left as the sole 
shareholder of Corporation O. A change in ownership of Corporation O is 
considered to occur on January 1, 2007 (assuming that A did not have 
effective control of Corporation Q immediately prior to the redemption).
    Example 6. Assume the same facts as in Example 5, except that A owns 
stock with a fair market value equal to 51 percent of the value of all 
the stock of Corporation Q immediately prior to the redemption. There is 
no change in the ownership of Corporation Q as a result of the 
redemption.

    Q-28: When does a change in the effective control of a corporation 
occur?
    A-28: (a) Notwithstanding that a corporation has not undergone a 
change in ownership under Q/A-27, for purposes of this section, a change 
in the effective control of a corporation is presumed to occur on the 
date that either--
    (1) Any one person, or more than one person acting as a group (as 
determined under paragraph (e) of this A-28), acquires (or has acquired 
during the 12-month period ending on the date of the most recent 
acquisition by such person or persons) ownership of stock of the 
corporation possessing 20 percent or more of the total voting power of 
the stock of such corporation; or
    (2) A majority of members of the corporation's board of directors is 
replaced during any 12-month period by directors whose appointment or 
election is not endorsed by a majority of the members of the 
corporation's board of directors prior to the date of the appointment or 
election.

[[Page 895]]

    (b) The presumption of paragraph (a) of this A-28 may be rebutted by 
establishing that such acquisition or acquisitions of the corporation's 
stock, or such replacement of the majority of the members of the 
corporation's board of directors, does not transfer the power to control 
(directly or indirectly) the management and policies of the corporation 
from any one person (or more than one person acting as a group) to 
another person (or group). For purposes of this section, in the absence 
of an event described in paragraph (a)(1) or (2) of this A-28, a change 
in the effective control of a corporation is presumed not to have 
occurred.
    (c) In no event does a change in effective control under this A-28 
occur in any transaction in which either of the two corporations 
involved in the transaction has a change in ownership or control under 
Q/A-27 or 29 of this section. Thus, for example, assume Corporation P 
transfers more than one-third of the total gross fair market value of 
its assets to Corporation O in exchange for 20 percent of O's stock. 
Because P has undergone a change in ownership of a substantial portion 
of its assets under Q/A-29 of this section, O does not have a change in 
effective control under Q/A-28.
    (d) If any one person, or more than one person acting as a group, is 
considered to effectively control a corporation (within the meaning of 
this A-28), the acquisition of additional control of the corporation by 
the same person or persons is not considered to cause a change in the 
effective control of the corporation (or to cause a change in the 
ownership of the corporation within the meaning of Q/A-27 of this 
section).
    (e) For purposes of this A-28, persons will not be considered to be 
acting as a group merely because they happen to purchase or own stock of 
the same corporation at the same time, or as a result of the same public 
offering. However, persons will be considered to be acting as a group if 
they are owners of a corporation that enters into a merger, 
consolidation, purchase or acquisition of stock, or similar business 
transaction with the corporation. If a person, including an entity 
shareholder, owns stock in both corporations that enter into a merger, 
consolidation, purchase or acquisition of stock, or similar transaction, 
such shareholder is considered to be acting as a group with other 
shareholders in a corporation only with respect to the ownership in that 
corporation prior to the transaction giving rise to the change and not 
with respect to the ownership interest in the other corporation.
    (f) For purposes of determining stock ownership, see Q/A-27(c).
    (g) The following examples illustrate the principles of this A-28:

    Example 1. Shareholder A acquired the following percentages of the 
voting stock of Corporation M (an otherwise unrelated corporation) on 
the following dates: 16 percent on January 1, 2005; 10 percent on 
January 10, 2006; 8 percent on February 10, 2006; 11 percent on March 1, 
2007; and 8 percent on March 10, 2007. Thus, on March 10, 2007, A owns a 
total of 53 percent of M's voting stock. Because A did not acquire 20 
percent or more of M's voting stock during any 12-month period, there is 
no presumption of a change in effective control pursuant to paragraph 
(a)(1) of this A-28. In addition, under these facts there is a 
presumption that no change in the effective control of Corporation M 
occurred. If this presumption is not rebutted (and thus no change in 
effective control of Corporation M is treated as occurring prior to 
March 10, 2007), a change in the ownership of Corporation M is treated 
as having occurred on March 10, 2007 (pursuant to Q/A-27 of this 
section) because A had acquired more than 50 percent of Corporation M's 
voting stock as of that date.
    Example 2. A minority group of shareholders of a corporation opposes 
the practices and policies of the corporation's current board of 
directors. A proxy contest ensues. The minority group presents its own 
slate of candidates for the board at the next annual meeting of the 
corporation's shareholders, and candidates of the minority group are 
elected to replace a majority of the current members of the board. A 
change in the effective control of the corporation is presumed to have 
occurred on the date the election of the new board of directors becomes 
effective.

    Q-29: When does a change in the ownership of a substantial portion 
of a corporation's assets occur?
    A-29: (a) For purposes of this section, a change in the ownership of 
a substantial portion of a corporation's assets occurs on the date that 
any one person, or more than one person acting as a group (as determined 
in paragraph (c) of this A-29), acquires (or has acquired

[[Page 896]]

during the 12-month period ending on the date of the most recent 
acquisition by such person or persons) assets from the corporation that 
have a total gross fair market value equal to or more than one-third of 
the total gross fair market value of all of the assets of the 
corporation immediately prior to such acquisition or acquisitions. For 
this purpose, gross fair market value means the value of the assets of 
the corporation, or the value of the assets being disposed of, 
determined without regard to any liabilities associated with such 
assets. This A-29 applies in any situation other than one involving the 
transfer of stock (or issuance of stock) in a parent corporation and 
stock in such corporation remains outstanding after the transaction. 
Thus, this A-29 applies to the sale of stock in a subsidiary (when that 
subsidiary is treated as a single corporation with the parent pursuant 
to Q/A-46) and to mergers involving the creation of a new corporation or 
with respect to the corporation that is not surviving entity.
    (b) (1) There is no change in ownership or control under this A-29 
when there is a transfer to an entity that is controlled by the 
shareholders of the transferring corporation immediately after the 
transfer, as provided in this paragraph (b). A transfer of assets by a 
corporation is not treated as a change in the ownership of such assets 
if the assets are transferred to--
    (i) A shareholder of the corporation (immediately before the asset 
transfer) in exchange for or with respect to its stock;
    (ii) An entity, 50 percent or more of the total value or voting 
power of which is owned, directly or indirectly, by the corporation;
    (iii) A person, or more than one person acting as a group, that 
owns, directly or indirectly, 50 percent or more of the total value or 
voting power of all the outstanding stock of the corporation; or
    (iv) An entity, at least 50 percent of the total value or voting 
power is owned, directly or indirectly, by a person described in 
paragraph (b)(1)(iii) of this A-29.
    (2) For purposes of paragraph (b) and except as otherwise provided, 
a person's status is determined immediately after the transfer of the 
assets. For example, a transfer to a corporation in which the transferor 
corporation has no ownership interest in before the transaction, but 
which is a majority-owned subsidiary of the transferor corporation after 
the transaction is not treated as a change in the ownership of the 
assets of the transferor corporation.
    (c) For purposes of this A-29, persons will not be considered to be 
acting as a group merely because they happen to purchase assets of the 
same corporation at the same time, or as a result of the same public 
offering. However, persons will be considered to be acting as a group if 
they are owners of a corporation that enters into a merger, 
consolidation, purchase or acquisition of assets, or similar business 
transaction with the corporation. If a person, including an entity 
shareholder, owns stock in both corporations that enter into a merger, 
consolidation, purchase or acquisition of stock, or similar transaction, 
such shareholder is considered to be acting as a group with other 
shareholders in a corporation only to the extent of the ownership in 
that corporation prior to the transaction giving rise to the change and 
not with respect to the ownership interest in the other corporation.
    (d) For purposes of determining stock ownership, see Q/A-27(c).
    (e) The following examples illustrate the principles of this A-29:

    Example 1. Corporation M acquires assets having a gross fair market 
value of $500,000 from Corporation N (an unrelated corporation) on 
January 1, 2006. The total gross fair market value of Corporation N's 
assets immediately prior to the acquisition was $3 million. Since the 
value of the assets acquired by Corporation M is less than one-third of 
the total gross fair market value of Corporation N's total assets 
immediately prior to the acquisition, the acquisition does not represent 
a change in the ownership of a substantial portion of Corporation N's 
assets.
    Example 2. Assume the same facts as in Example 1. Also assume that 
on November 1, 2006, Corporation M acquires from Corporation N 
additional assets having a fair market value of $700,000. Thus, 
Corporation M has acquired from Corporation N assets worth a total of 
$1.2 million during the 12-month period ending on November 1, 2006. 
Since $1.2 million is more than one-third of the total

[[Page 897]]

gross fair market value of all of Corporation N's assets immediately 
prior to the earlier of these acquisitions ($3 million), a change in the 
ownership of a substantial portion of Corporation N's assets is 
considered to have occurred on November 1, 2006.
    Example 3. (i) All of the assets of Corporation P are transferred to 
Corporation O (an unrelated corporation). In exchange, the shareholders 
of Corporation P receive Corporation O stock. Immediately after the 
transfer, the former shareholders of Corporation P own 60 percent of the 
fair market value of the outstanding stock of Corporation O and the 
former shareholders of Corporation O own 40 percent of the fair market 
value of the outstanding stock of Corporation O. Because Corporation O 
is an entity more than 50 percent of the fair market value of the 
outstanding stock of which is owned by the former shareholders of 
Corporation P (based on ownership of Corporation P prior the change), 
the transfer of assets is not treated as a change in ownership of a 
substantial portion of the assets of Corporation P. However, a change in 
the ownership (within the meaning of Q/A-27) of Corporation O occurs.
    (ii) The result in paragraph (i) would be the same if immediately 
after the change, the former shareholders of Corporation P own stock 
with a fair market value of 51 percent of the value of Corporation O 
stock because Corporation O is an entity more than 50 percent of the 
fair market value of the outstanding stock of which is owned by the 
former shareholders of Corporation P. See Q/A-27, Example 4, regarding 
whether there is a change in ownership or control of O.
    Example 4. Corporation P sells all of the stock of its wholly-owned 
subsidiary, S, to Corporation Y. The fair market value of the affiliated 
group, determined without regard to its liabilities, is $210 million. 
The fair market value of S, determined without regard to its 
liabilities, is $80 million. Because there is a change in more than one-
third of the gross fair market value of the total assets of the 
affiliated group, there is a change in the ownership of a substantial 
portion of the assets of the affiliated group.

           Three-Times-Base-Amount Test for Parachute Payments

    Q-30: Are all payments that are in the nature of compensation, are 
made to a disqualified individual, and are contingent on a change in 
ownership or control, parachute payments?
    A-30: (a) No. To determine whether such payments are parachute 
payments, they must be tested against the individual's base amount (as 
defined in Q/A-34 of this section). To do this, the aggregate present 
value of all payments in the nature of compensation that are made or to 
be made to (or for the benefit of) the same disqualified individual and 
are contingent on the change in ownership or control must be determined. 
If this aggregate present value equals or exceeds the amount equal to 3 
times the individual's base amount, the payments are parachute payments. 
If this aggregate present value is less than the amount equal to 3 times 
the individual's base amount, no portion of the payment is a parachute 
payment. See Q/A-31, Q/A-32, and Q/A-33 of this section for rules on 
determining present value. Parachute payments that are securities 
violation parachute payments are not included in the foregoing 
computation if they are not contingent on a change in ownership or 
control. See Q/A-37 of this section for the definition and treatment of 
securities violation parachute payments.
    (b) The following examples illustrate the principles of this A-30:

    Example 1. A is a disqualified individual with respect to 
Corporation M. A's base amount is $100,000. Payments in the nature of 
compensation that are contingent on a change in the ownership or control 
of Corporation M totaling $400,000 are made to A on the date of the 
change in ownership or control. The payments are parachute payments 
because they have an aggregate present value at least equal to 3 times 
A's base amount of $100,000 (3xx$100,000=$300,000).
    Example 2. Assume the same facts as in Example 1, except that the 
payments contingent on the change in the ownership or control of 
Corporation M total $290,000. Because the payments do not have an 
aggregate present value at least equal to 3 times A's base amount, no 
portion of the payments is a parachute payment.

    Q-31: As of what date is the present value of a payment determined?
    A-31: (a) Except as provided in this section, the present value of a 
payment is determined as of the date on which the change in ownership or 
control occurs, or, if a payment is made prior to such date, the date on 
which the payment is made.

[[Page 898]]

    (b)(1) For purposes of determining whether a payment is a parachute 
payment, if a payment in the nature of compensation is the right to 
receive payments in a year (or years) subsequent to the year of the 
change in ownership or control, the value of the payment is the present 
value of such payment (or payments) calculated in accordance with Q/A-32 
of this section and based on reasonable actuarial assumptions.
    (2) If the payment in the nature of compensation is an obligation to 
provide health care, then for purposes of this A-31 and for applying the 
3-times-base-amount test under Q/A-30 of this section, the present value 
of such obligation should be calculated in accordance with generally 
accepted accounting principles. For purposes of Q/A-30 and this A-31, 
the obligation to provide health care is permitted to be measured by 
projecting the cost of premiums for purchased health care insurance, 
even if no health care insurance is actually purchased. If the 
obligation to provide health care is made in coordination with a health 
care plan that the corporation makes available to a group, then the 
premiums used for this purpose may be group premiums.
    Q-32: What discount rate is to be used to determine present value?
    A-32: For purposes of this section, present value generally is 
determined by using a discount rate equal to 120 percent of the 
applicable Federal rate (determined under section 1274(d) and the 
regulations thereunder) compounded semiannually. The applicable Federal 
rate to be used for this purpose is the Federal rate that is in effect 
on the date as of which the present value is determined, using the 
period until the payment would have been made without regard to the 
change in ownership or control as the term of the debt instrument under 
section 1274(d). See Q/A-24 and 31 of this section. However, for any 
payment, the corporation and the disqualified individual may elect to 
use the applicable Federal rate that is in effect on the date that the 
contract which provides for the payment is entered into, if such 
election is made in the contract.
    Q-33: If the present value of a payment to be made in the future is 
contingent on an uncertain future event or condition, how is the present 
value of the payment determined?
    A-33: (a) In certain cases, it may be necessary to apply the 3-
times-base-amount test of Q/A-30 of this section, or to allocate a 
portion of the base amount to a payment described in paragraphs (a)(1), 
(2), and (3) of Q/A-2 of this section, at a time when the aggregate 
present value of all such payments cannot be determined with certainty 
because the time, amount, or right to receive one or more such payments 
is contingent on the occurrence of an uncertain future event or 
condition. For example, a disqualified individual's right to receive a 
payment may be contingent on the involuntary termination of such 
individual's employment with the corporation. In such a case, it must be 
reasonably estimated whether the payment will be made. If it is 
reasonably estimated that there is a 50-percent or greater probability 
that the payment will be made, the full amount of the payment is 
considered for purposes of the 3-times-base-amount test and the 
allocation of the base amount. Conversely, if it is reasonably estimated 
that there is a less than 50-percent probability that the payment will 
be made, the payment is not considered for either purpose.
    (b) If the estimate made under paragraph (a) of this A-33 is later 
determined to be incorrect, the 3-times-base-amount test described in Q/
A-30 of this section must be reapplied (and the portion of the base 
amount allocated to previous payments must be reallocated (if necessary) 
to such payments) to reflect the actual time and amount of the payment. 
Whenever the 3-times-base-amount test is applied (or whenever the base 
amount is allocated), the aggregate present value of the payments 
received or to be received by the disqualified individual is 
redetermined as of the date described in A-31 of this section, using the 
discount rate described in A-32 of this section. This redetermination 
may affect the amount of any excess parachute payment for a prior 
taxable year. Alternatively, if, based on the application of the 3-
times-base-amount test without regard to the payment described in 
paragraph (a) of this A-33, a disqualified individual is

[[Page 899]]

determined to have an excess parachute payment or payments, then the 3-
times-base-amount test does not have to be reapplied when a payment 
described in paragraph (a) of this A-33 is made (or becomes certain to 
be made) if no base amount is allocated to such payment.
    (c) To the extent provided in published guidance of general 
applicability under Sec. 601.601(d)(2) of this Chapter, an initial 
estimate of the value of an option subject to Q/A-13 of this section is 
permitted to be made, with the valuation subsequently re-determined, and 
the 3-times-base-amount test reapplied.
    (d) The following examples illustrate the principles of this A-33:

    Example 1. A, a disqualified individual with respect to Corporation 
M, has a base amount of $100,000. Under A's employment agreement with 
Corporation M, A is entitled to receive a payment in the nature of 
compensation in the amount of $250,000 contingent on a change in 
ownership or control of Corporation M. In addition, the agreement 
provides that if A's employment is terminated within 1 year after the 
change in ownership or control, A will receive an additional payment in 
the nature of compensation in the amount of $150,000, payable 1 year 
after the date of the change in ownership or control. A change in 
ownership or control of Corporation M occurs and A receives the first 
payment of $250,000. Corporation M reasonably estimates that there is a 
50-percent probability that, as a result of the change, A's employment 
will be terminated within 1 year of the date of the change. For purposes 
of applying the 3-times-base-amount test (and if the first payment is 
determined to be a parachute payment, for purposes of allocating a 
portion of A's base amount to that payment), because M reasonably 
estimates that there is a 50-percent or greater probability that, as a 
result of the change, A's employment will be terminated within 1 year of 
the date of the change, Corporation M must assume that the $150,000 
payment will be made to A as a result of the change in ownership or 
control. The present value of the additional payment is determined under 
Q/A-31 and Q/A-32 of this section.
    Example 2. Assume the same facts as in Example 1, except that 
Corporation M reasonably estimates that there is a less than 50-percent 
probability that, as a result of the change, A's employment will be 
terminated within 1 year of the date of the change. For purposes of 
applying the 3-times-base-amount test, because Corporation M reasonably 
estimates that there is a less than 50-percent probability that, as a 
result of the change, A's employment will be terminated within 1 year of 
the date of the change, Corporation M must assume that the $150,000 
payment will not be made to A as a result of the change in ownership or 
control.
    Example 3. B, a disqualified individual with respect to Corporation 
P, has a base amount of $200,000. Under B's employment agreement with 
Corporation P, if there is a change in ownership or control of 
Corporation P, B will receive a severance payment of $600,000 and a 
bonus payment of $400,000. In addition, the agreement provides that if 
B's employment is terminated within 1 year after the change, B will 
receive an additional payment in the nature of compensation of $500,000. 
A change in ownership or control of Corporation P occurs, and B receives 
the $600,000 and $400,000 payments. At the time of the change in 
ownership or control, Corporation P reasonably estimates that there is a 
less than 50-percent probability that B's employment will be terminated 
within 1 year of the change. For purposes of applying the 3-times-base-
amount test, because Corporation P reasonably estimates that there is a 
less than 50-percent probability that B's employment will be terminated 
within 1 year of the date of the change, Corporation P assumes that the 
$500,000 payment will not be made to B. Eleven months after the change 
in ownership or control, B's employment is terminated, and the $500,000 
payment is made to B. Because B was determined to have excess parachute 
payments without regard to the $500,000 payment, the 3-times-base-amount 
test is not reapplied and the base amount is not reallocated to include 
the $500,000 payment. The entire $500,000 payment is treated as an 
excess parachute payment.

    Q-34: What is the base amount?
    A-34: (a) The base amount of a disqualified individual is the 
average annual compensation for services performed for the corporation 
with respect to which the change in ownership or control occurs (or for 
a predecessor entity or a related entity as defined in Q/A-21 of this 
section) which was includible in the gross income of such individual for 
taxable years in the base period (including amounts that were excluded 
under section 911), or which would have been includible in such gross 
income if such person had been a United States citizen or resident. See 
Q/A-35 of this section for the definition of base period and for 
examples of base amount computations.
    (b) If the base period of a disqualified individual includes a short 
taxable year or less than all of a taxable year,

[[Page 900]]

compensation for such short or incomplete taxable year must be 
annualized before determining the average annual compensation for the 
base period. In annualizing compensation, the frequency with which 
payments are expected to be made over an annual period must be taken 
into account. Thus, any amount of compensation for such a short or 
incomplete taxable year that represents a payment that will not be made 
more often than once per year is not annualized.
    (c) Because the base amount includes only compensation that is 
includible in gross income, the base amount does not include certain 
items that constitute parachute payments. For example, payments in the 
form of excludible fringe benefits are not included in the base amount 
but may be treated as parachute payments.
    (d) The base amount includes the amount of compensation included in 
income under section 83(b) during the base period. See Q/A-35 for the 
definition of base period.
    (e) The following example illustrates the principles of this A-34:

    Example. A disqualified individual, D, receives an annual salary of 
$500,000 per year during the 5-year base period. D defers $100,000 of 
D's salary each year under the corporation's nonqualified deferred 
compensation plan. D's base amount is $400,000 ($400,000 x (5/5)).

    Q-35: What is the base period?
    A-35: (a) The base period of a disqualified individual is the most 
recent 5 taxable years of the individual ending before the date of the 
change in ownership or control. For this purpose, the date of the change 
in ownership or control is the date the corporation experiences one of 
the events described in Q/A-27, Q/A-28, or Q/A-29 of this section. 
However, if the disqualified individual was not an employee or 
independent contractor of the corporation with respect to which the 
change in ownership or control occurs (or a predecessor entity or a 
related entity as defined in Q/A-21 of this section) for this entire 5-
year period, the individual's base period is the portion of such 5-year 
period during which the individual performed personal services for the 
corporation or predecessor entity or related entity.
    (b) The following examples illustrate the principles of Q/A-34 of 
this section and this Q/A-35:

    Example 1. A disqualified individual, D, was employed by a 
corporation for 2 years and 4 months preceding the taxable year in which 
a change in ownership or control of the corporation occurs. D's 
includible compensation income from the corporation was $30,000 for the 
4-month period, $120,000 for the first full year, and $150,000 for the 
second full year. D's base amount is $120,000, ((3 x $30,000) + $120,000 
+ $150,000)/3.
    Example 2. Assume the same facts as in Example 1, except that D also 
received a $60,000 signing bonus when D's employment with the 
corporation commenced at the beginning of the 4-month period. D's base 
amount is $140,000, (($60,000 + (3 x $30,000)) + $120,000 + $150,000) / 
3. Since the bonus will not be paid more often than once per year, the 
amount of the bonus is not increased in annualizing D's compensation for 
the 4-month period.
    Example 3. E is a disqualified individual with respect to 
Corporation X who was not an employee or independent contractor for the 
full 5-year base period. In 2004 and 2005, E is a director of X and 
receives $30,000 per year for E's services. In 2006, E becomes an 
officer of X. E's includible compensation from Corporation X is $250,000 
for 2006 and 2007, and $300,000 for 2008. In 2008, X undergoes a change 
in ownership or control. E's base amount is $140,000 ((2 x $250,000) + 
(2 x $30,000) / 4).

    Q-36: How is the base amount determined in the case of a 
disqualified individual who did not perform services for the corporation 
(or a predecessor entity or a related entity as defined in Q/A-21 of 
this section), prior to the individual's taxable year in which the 
change in ownership or control occurs?
    A-36: (a) In such a case, the individual's base amount is the 
annualized compensation for services performed for the corporation (or a 
predecessor entity or related entity) which--
    (1) Was includible in the individual's gross income for that 
portion, prior to such change, of the individual's taxable year in which 
the change occurred (including amounts that were excluded under section 
911), or would have been includible in such gross income if such person 
had been a United States citizen or resident;
    (2) Was not contingent on the change in ownership or control; and
    (3) Was not a securities violation parachute payment.

[[Page 901]]

    (b) The following examples illustrate the principles of this A-36:

    Example 1. On January 1, 2006, A, an individual whose taxable year 
is the calendar year, enters into a 4-year employment contract with 
Corporation M as an officer of the corporation. A has not previously 
performed services for Corporation M (or any predecessor entity or 
related entity as defined in Q/A-21 of this section). Under the 
employment contract, A is to receive an annual salary of $120,000 for 
each of the 4 years that he remains employed by Corporation M with any 
remaining unpaid balance to be paid immediately in the event that A's 
employment is terminated without cause. On July 1, 2006, after A has 
received compensation of $60,000, a change in the ownership or control 
of Corporation M occurs. Because of the change, A's employment is 
terminated without cause, and he receives a payment of $420,000. It is 
established by clear and convincing evidence that the $60,000 in 
compensation is not contingent on the change in ownership or control, 
but the presumption that the $420,000 payment is contingent on the 
change is not rebutted. Thus, the payment of $420,000 is treated as 
contingent on the change in ownership or control of Corporation M. In 
this case, A's base amount is $120,000 (2 x $60,000). Since the present 
value of the payment which is contingent on the change in ownership of 
Corporation M ($420,000) is more than 3 times A's base amount of 
$120,000 (3 x $120,000 = $360,000), the payment is a parachute payment.
    Example 2. Assume the same facts as in Example 1, except that A also 
receives a signing bonus of $50,000 from Corporation M on January 1, 
2006. It is established by clear and convincing evidence that the bonus 
is not contingent on the change in ownership or control. When the change 
in ownership or control occurs on July 1, 2006, A has received 
compensation of $110,000 (the $50,000 bonus plus $60,000 in salary). In 
this case, A's base amount is $170,000 ($50,000 + (2 x $60,000)). 
Because the $50,000 bonus will not be paid more than once per year, the 
amount of the bonus is not increased in annualizing A's compensation. 
The present value of the potential parachute payment ($420,000) is less 
than 3 times A's base amount of $170,000 (3 x $170,000 = $510,000), and 
therefore no portion of the payment is a parachute payment.

                 Securities Violation Parachute Payments

    Q-37: Must a payment be contingent on a change in ownership or 
control in order to be a parachute payment?
    A-37: (a) No, the term parachute payment also includes any payment 
(other than a payment exempted under Q/A-6 or Q/A-8 of this section) 
that is in the nature of compensation and is to (or for the benefit of) 
a disqualified individual, if such payment is a securities violation 
payment. A securities violation payment is a payment made or to be 
made--
    (1) Pursuant to an agreement that violates any generally enforced 
Federal or state securities laws or regulations; and
    (2) In connection with a potential or actual change in ownership or 
control.
    (b) A violation is not taken into account under paragraph (a)(1) of 
this A-37 if it is merely technical in character or is not materially 
prejudicial to shareholders or potential shareholders. Moreover, a 
violation will be presumed not to exist unless the existence of the 
violation has been determined or admitted in a civil or criminal action 
(or an administrative action by a regulatory body charged with enforcing 
the particular securities law or regulation) which has been resolved by 
adjudication or consent. Parachute payments described in this A-37 are 
referred to in this section as securities violation payments.
    (c) Securities violation parachute payments that are not contingent 
on a change in ownership or control within the meaning of Q/A-22 of this 
section are not taken into account in applying the 3-times-base-amount 
test of Q/A-30 of this section. Such payments are considered parachute 
payments regardless of whether such test is met with respect to the 
disqualified individual (and are included in allocating base amount 
under Q/A-38 of this section). Moreover, the amount of a securities 
violation parachute payment treated as an excess parachute payment shall 
not be reduced by the portion of such payment that is reasonable 
compensation for personal services actually rendered before the date of 
a change in ownership or control if such payment is not contingent on 
such change. Likewise, the amount of a securities violation parachute 
payment includes the portion of such payment that is reasonable 
compensation for personal services to be rendered on or after the date 
of a change in ownership or control if such payment is not contingent on 
such change.

[[Page 902]]

    (d) The rules in paragraph (b) of this A-37 also apply to securities 
violation parachute payments that are contingent on a change in 
ownership or control if the application of these rules results in 
greater total excess parachute payments with respect to the disqualified 
individual than would result if the payments were treated simply as 
payments contingent on a change in ownership or control (and hence were 
taken into account in applying the 3-times-base-amount test and were 
reduced by, or did not include, any applicable amount of reasonable 
compensation).
    (e) The following examples illustrate the principles of this A-37:

    Example 1. A, a disqualified individual with respect to Corporation 
M, receives two payments in the nature of compensation that are 
contingent on a change in the ownership or control of Corporation M. The 
present value of the first payment is equal to A's base amount and is 
not a securities violation parachute payment. The present value of the 
second payment is equal to 1.5 times A's base amount and is a securities 
violation parachute payment. Neither payment includes any reasonable 
compensation. If the second payment is treated simply as a payment 
contingent on a change in ownership or control, the amount of A's total 
excess parachute payments is zero because the aggregate present value of 
the payments does not equal or exceed 3 times A's base amount. If the 
second payment is treated as a securities violation parachute payment 
subject to the rules of paragraph (b) of this A-37, the amount of A's 
total excess parachute payments is 0.5 times A's base amount. Thus, the 
second payment is treated as a securities violation parachute payment.
    Example 2. Assume the same facts as in Example 1, except that the 
present value of the first payment is equal to 2 times A's base amount. 
If the second payment is treated simply as a payment contingent on a 
change in ownership or control, the total present value of the payments 
is 3.5 times A's base amount, and the amount of A's total excess 
parachute payments is 2.5 times A's base amount. If the second payment 
is treated as a securities violation parachute payment, the amount of 
A's total excess parachute payments is 0.5 times A's base amount. Thus, 
the second payment is treated simply as a payment contingent on a change 
in ownership or control.
    Example 3. B, a disqualified individual with respect to Corporation 
N, receives two payments in the nature of compensation that are 
contingent on a change in the control of Corporation N. The present 
value of the first payment is equal to 4 times B's base amount and is a 
securities violation parachute payment. The present value of the second 
payment is equal to 2 times B's base amount and is not a securities 
violation parachute payment. B establishes by clear and convincing 
evidence that the entire amount of the first payment is reasonable 
compensation for personal services to be rendered after the change in 
ownership or control. If the first payment is treated simply as a 
payment contingent on a change in ownership or control, it is exempt 
from the definition of parachute payment pursuant to Q/A-9 of this 
section. Thus, the amount of B's total excess parachute payment is zero 
because the present value of the second payment does not equal or exceed 
3 times B's base amount. However, if the first payment is treated as a 
securities violation parachute payment, the amount of B's total excess 
parachute payments is 3 times B's base amount. Thus, the first payment 
is treated as a securities violation parachute payment.
    Example 4. Assume the same facts as in Example 3, except that B does 
not receive the second payment and B establishes by clear and convincing 
evidence that the first payment is reasonable compensation for services 
actually rendered before the change in the control of Corporation N. If 
the payment is treated simply as a payment contingent on a change in 
ownership or control, the amount of B's excess parachute payment is zero 
because the amount treated as an excess parachute payment is reduced by 
the amount that B establishes as reasonable compensation. However, if 
the payment is treated as a securities violation parachute payment, the 
amount of B's excess parachute payment is 3 times B's base amount. Thus, 
the payment is treated as a securities violation parachute payment.

         Computation and Reduction of Excess Parachute Payments

    Q-38: How is the amount of an excess parachute payment computed?
    A-38: (a) The amount of an excess parachute payment is the excess of 
the amount of any parachute payment over the portion of the disqualified 
individual's base amount that is allocated to such payment. For this 
purpose, the portion of the base amount allocated to any parachute 
payment is the amount that bears the same ratio to the base amount as 
the present value of such parachute payment bears to the aggregate 
present value of all parachute payments made or to be made to (or for 
the benefit of) the same disqualified individual. Thus, the portion of 
the base amount allocated to any parachute

[[Page 903]]

payment is determined by multiplying the base amount by a fraction, the 
numerator of which is the present value of such parachute payment and 
the denominator of which is the aggregate present value of all such 
payments. See Q/A-31, Q/A-32, and Q/A-33 of this section for rules on 
determining present value and Q/A-34 of this section for the definition 
of base amount.
    (b) The following example illustrates the principles of this A-38:

    Example. An individual with a base amount of $100,000 is entitled to 
receive two parachute payments, one of $200,000 and the other of 
$400,000. The $200,000 payment is made at the time of the change in 
ownership or control, and the $400,000 payment is to be made at a future 
date. The present value of the $400,000 payment is $300,000 on the date 
of the change in ownership or control. The portions of the base amount 
allocated to these payments are $40,000 (($200,000/$500,000) x $100,000) 
and $60,000 (($300,000/$500,000) x $100,000), respectively. Thus, the 
amount of the first excess parachute payment is $160,000 ($200,000-
$40,000) and that of the second is $340,000 ($400,000-$60,000).

    Q-39: May the amount of an excess parachute payment be reduced by 
reasonable compensation for personal services actually rendered before 
the change in ownership or control?
    A-39: (a) Generally, yes. Except in the case of payments treated as 
securities violation parachute payments or when the portion of a payment 
that is treated as contingent on the change in ownership or control is 
determined under paragraph (b) or (c) of Q/A-24 of this section, the 
amount of an excess parachute payment is reduced by any portion of the 
payment that the taxpayer establishes by clear and convincing evidence 
is reasonable compensation for personal services actually rendered by 
the disqualified individual before the date of the change in ownership 
or control. Services reasonably compensated for by payments that are not 
parachute payments (for example, because the payments are not contingent 
on a change in ownership or control and are not securities violation 
parachute payments, or because the payments are exempt from the 
definition of parachute payment under Q/A-6 through Q/A-9 of this 
section) are not taken into account for this purpose. The portion of any 
parachute payment that is established as reasonable compensation is 
first reduced by the portion of the disqualified individual's base 
amount that is allocated to such parachute payment; any remaining 
portion of the parachute payment established as reasonable compensation 
then reduces the excess parachute payment.
    (b) The following examples illustrate the principles of this A-39:

    Example 1. Assume that a parachute payment of $600,000 is made to a 
disqualified individual, and the portion of the individual's base amount 
that is allocated to the parachute payment is $100,000. Also assume that 
$300,000 of the $600,000 parachute payment is established as reasonable 
compensation for personal services actually rendered by the disqualified 
individual before the date of the change in ownership or control. Before 
the reasonable compensation is taken into account, the amount of the 
excess parachute payment is $500,000 ($600,000--$100,000). In reducing 
the excess parachute payment by reasonable compensation, the portion of 
the parachute payment that is established as reasonable compensation 
($300,000) is first reduced by the portion of the disqualified 
individual's base amount that is allocated to the parachute payment 
($100,000), and the remainder ($200,000) then reduces the excess 
parachute payment. Thus, in this case, the excess parachute payment of 
$500,000 is reduced by $200,000 of reasonable compensation.
    Example 2. Assume the same facts as in Example 1, except that the 
full amount of the $600,000 parachute payment is established as 
reasonable compensation. In this case, the excess parachute payment of 
$500,000 is reduced to zero by $500,000 of reasonable compensation. As a 
result, no portion of any deduction for the payment is disallowed by 
section 280G, and no portion of the payment is subject to the 20-percent 
excise tax of section 4999.

                Determination of Reasonable Compensation

    Q-40: How is it determined whether payments are reasonable 
compensation?
    A-40: (a) In general, whether payments are reasonable compensation 
for personal services actually rendered, or to be rendered, by the 
disqualified individual is determined on the basis of all the facts and 
circumstances of the particular case. Factors relevant to such a 
determination include, but are not limited to, the following--

[[Page 904]]

    (1) The nature of the services rendered or to be rendered;
    (2) The individual's historic compensation for performing such 
services; and
    (3) The compensation of individuals performing comparable services 
in situations where the compensation is not contingent on a change in 
ownership or control.
    (b) For purposes of section 280G, reasonable compensation for 
personal services includes reasonable compensation for holding oneself 
out as available to perform services and refraining from performing 
services (such as under a covenant not to compete).
    Q-41: Is any particular type of evidence generally considered clear 
and convincing evidence of reasonable compensation for personal 
services?
    A-41: Yes. A showing that payments are made under a 
nondiscriminatory employee plan or program (as defined in Q/A-26 of this 
section) generally is considered to be clear and convincing evidence 
that the payments are reasonable compensation. This is true whether the 
personal services for which the payments are made are actually rendered 
before, or are to be rendered on or after, the date of the change in 
ownership or control. Q/A-46 of this section (relating to the treatment 
of an affiliated group as one corporation) does not apply for purposes 
of this A-41. No determination of reasonable compensation is needed for 
payments under qualified plans to be exempt from the definition of 
parachute payment under Q/A-8 of this section.
    Q-42: Is any particular type of evidence generally considered clear 
and convincing evidence of reasonable compensation for personal services 
to be rendered on or after the date of a change in ownership or control?
    A-42: (a) Yes, if payments are made or to be made to (or on behalf 
of) a disqualified individual for personal services to be rendered on or 
after the date of a change in ownership or control, a showing of the 
following generally is considered to be clear and convincing evidence 
that the payments are reasonable compensation for services to be 
rendered on or after the date of the change in ownership or control--
    (1) The payments were made or are to be made only for the period the 
individual actually performs such personal services; and
    (2) If the individual's duties and responsibilities are 
substantially the same after the change in ownership or control, the 
individual's annual compensation for such services is not significantly 
greater than such individual's annual compensation prior to the change 
in ownership or control, apart from normal increases attributable to 
increased responsibilities or cost of living adjustments. If the scope 
of the individual's duties and responsibilities are not substantially 
the same, the annual compensation after the change is not significantly 
greater than the annual compensation customarily paid by the employer or 
by comparable employers to persons performing comparable services. 
However, except as provided in paragraph (b) and (c) of this A-42, such 
clear and convincing evidence will not exist if the individual does not, 
in fact, perform the services contemplated in exchange for the 
compensation.
    (b) Generally, an agreement under which the disqualified individual 
must refrain from performing services (e.g., a covenant not to compete) 
is an agreement for the performance of personal services for purposes of 
this A-42 to the extent that it is demonstrated by clear and convincing 
evidence that the agreement substantially constrains the individual's 
ability to perform services and there is a reasonable likelihood that 
the agreement will be enforced against the individual. In the absence of 
clear and convincing evidence, payments under the agreement are treated 
as severance payments under Q/A-44 of this section.
    (c) If the employment of a disqualified individual is involuntarily 
terminated before the end of a contract term and the individual is paid 
damages for breach of contract, a showing of the following factors 
generally is considered clear and convincing evidence that the payment 
is reasonable compensation for personal services to be rendered on or 
after the date of change in ownership or control--

[[Page 905]]

    (1) The contract was not entered into, amended, or renewed in 
contemplation of the change in ownership or control;
    (2) The compensation the individual would have received under the 
contract would have qualified as reasonable compensation under section 
162;
    (3) The damages do not exceed the present value (determined as of 
the date of receipt) of the compensation the individual would have 
received under the contract if the individual had continued to perform 
services for the employer until the end of the contract term;
    (4) The damages are received because an offer to provide personal 
services was made by the disqualified individual but was rejected by the 
employer (including involuntary termination or constructive discharge); 
and
    (5) The damages are reduced by mitigation. Mitigation will be 
treated as occurring when such damages are reduced (or any payment of 
such damages is returned) to the extent of the disqualified individual's 
earned income (within the meaning of section 911(d)(2)(A)) during the 
remainder of the period in which the contract would have been in effect. 
See Q/A-44 of this section for rules regarding damages for a failure to 
make severance payments.
    (d) The following examples illustrate the principles of this A-42:

    Example 1. A, a disqualified individual, has a three-year employment 
contract with Corporation M, a publicly traded corporation. Under this 
contract, A is to receive a salary for $100,000 for the first year of 
the contract and, for each succeeding year, an annual salary that is 10 
percent higher than the prior year's salary. During the third year of 
the contract, Corporation N acquires all the stock of Corporation M. 
Prior to the change in ownership, Corporation N arranges to retain A's 
services by entering into an employment contract with A that is 
essentially the same as A's contract with Corporation M. Under the new 
contract, Corporation N is to fulfill Corporation M's obligations for 
the third year of the old contract, and, for each of the succeeding 
years, pay A an annual salary that is 10 percent higher than A's prior 
year's salary. Amounts are payable under the new contract only for the 
portion of the contract term during which A remains employed by 
Corporation N. A showing of the facts described above (and in the 
absence of contradictory evidence) is regarded as clear and convincing 
evidence that all payments under the new contract are reasonable 
compensation for personal services to be rendered on or after the date 
of the change in ownership. Therefore, the payments under this agreement 
are exempt from the definition of parachute payment pursuant to Q/A-9 of 
this section.
    Example 2. Assume the same facts as in Example 1, except that A does 
not perform the services described in the new contract, but receives 
payment under the new contract. Because services were not rendered after 
the change, the payments under this contract are not exempt from the 
definition of parachute payment pursuant to Q/A-9 of this section.
    Example 3. Assume the same facts as in Example 1, except that under 
the new contract A agrees to perform consulting services to Corporation 
N, when and if Corporation N requires A's services. Assume further that 
when Corporation N does not require A's services, the contract provides 
that A must not perform services for any other competing company. 
Corporation N previously enforced similar contracts against former 
employees of Corporation N. Because A is substantially constrained under 
this contract and Corporation N is reasonably likely to enforce the 
contract against A, the agreement is an agreement for the performance of 
services under paragraph (b) of this A-42. Assuming the requirements of 
paragraph (a) of this A-42 are met and there is clear and convincing 
evidence that all payments under the new contract are reasonable 
compensation for personal services to be rendered on or after the date 
of the change in ownership, the payments under this contract are exempt 
from the definition of parachute payment pursuant to Q/A-9 of this 
section.
    Example 4. Assume the same facts as in Example 1, except that 
instead of agreeing not to compete with Corporation N, under the new 
agreement A agrees not to disparage either Corporation M or Corporation 
N. Because the nondisparagement agreement does not substantially 
constrain A's ability to perform services, no amount of the payments 
under this contract are reasonable compensation for the nondisparagement 
agreement.
    Example 5. Assume the same facts as in Example 1, except that the 
employment contract with Corporation N does not provide that amounts are 
payable under the contract only for the portion of the term for which A 
remains employed by Corporation N. Shortly after the change in 
ownership, and despite A's request to remain employed by Corporation N, 
A's employment with Corporation N is involuntarily terminated. Shortly 
thereafter, A obtains employment with Corporation O. A commences a civil 
action against Corporation N, alleging breach of the employment 
contract. In settlement of the litigation, A receives an amount equal to 
the

[[Page 906]]

present value of the compensation A would have received under the 
contract with Corporation N, reduced by the amount of compensation A 
otherwise receives from Corporation O during the period that the 
contract would have been in effect. A showing of the facts described 
above (and in the absence of contradictory evidence) is regarded as 
clear and convincing evidence that the amount A receives as damages is 
reasonable compensation for personal services to be rendered on or after 
the date of the change in ownership. Therefore, the amount received by A 
is exempt from the definition of parachute payment pursuant to Q/A-9 of 
this section.

    Q-43: Is any particular type of payment generally considered 
reasonable compensation for personal services actually rendered before 
the date of a change in ownership or control?
    A-43: Yes, payments of compensation earned before the date of a 
change in ownership or control generally are considered reasonable 
compensation for personal services actually rendered before the date of 
a change in ownership or control if they qualify as reasonable 
compensation under section 162.
    Q-44: May severance payments be treated as reasonable compensation?
    A-44: (a) No, severance payments are not treated as reasonable 
compensation for personal services actually rendered before, or to be 
rendered on or after, the date of a change in ownership or control. 
Moreover, any damages paid for a failure to make severance payments are 
not treated as reasonable compensation for personal services actually 
rendered before, or to be rendered on or after, the date of such change. 
For purposes of this section, the term severance payment means any 
payment that is made to (or for the benefit of) a disqualified 
individual on account of the termination of such individual's employment 
prior to the end of a contract term, but does not include any payment 
that otherwise would be made to (or for the benefit of) such individual 
on the termination of such individual's employment, whenever occurring.
    (b) The following example illustrates the principles of this A-44:

    Example. A, a disqualified individual, has a three-year employment 
contract with Corporation X. Under the contract, A will receive a salary 
of $200,000 for the first year of the contract, and for each succeeding 
year, an annual salary that is $100,000 higher than the previous year. 
In the event of A's termination of employment following a change in 
ownership or control, the contract provides that A will receive the 
remaining salary due under the employment contract. At the beginning of 
the second year of the contract, Corporation Y acquires all of the stock 
of Corporation X, A's employment is terminated, and A receives $700,000 
($300,000 for the second year of the contract plus $400,000 for the 
third year of the contract) representing the remaining salary due under 
the employment contract. Because the $700,000 payment is treated as a 
severance payment, it is not reasonable compensation for personal 
services on or after the date of the change in ownership or control. 
Thus, the full amount of the $700,000 is a parachute payment.

                           Miscellaneous Rules

    Q-45: How is the term corporation defined?
    A-45: For purposes of this section, the term corporation has the 
meaning prescribed by section 7701(a)(3) and Sec. 301.7701-2(b) of this 
Chapter. For example, a corporation, for purposes of this section, 
includes a publicly traded partnership treated as a corporation under 
section 7704(a); an entity described in Sec. 301.7701-3(c)(1)(v)(A) of 
this Chapter; a real estate investment trust under section 856(a); a 
corporation that has mutual or cooperative (rather than stock) 
ownership, such as a mutual insurance company, a mutual savings bank, or 
a cooperative bank (as defined in section 7701(a)(32)), and a foreign 
corporation as defined under section 7701(a)(5).
    Q-46: How is an affiliated group treated?
    A-46: For purposes of this section, and except as otherwise provided 
in this section, all members of the same affiliated group (as defined in 
section 1504, determined without regard to section 1504(b)) are treated 
as one corporation. Rules affected by this treatment of an affiliated 
group include (but are not limited to) rules relating to exempt payments 
of certain corporations (Q/A-6, Q/A-7 of this section (except as 
provided therein)), payor of parachute payments (Q/A-10 of this 
section), disqualified individuals (Q/A-15 through Q/A-21 of this 
section (except as provided therein)), rebuttal of the presumption that 
payments are contingent on a change (Q/A-26 of this section (except

[[Page 907]]

as provide therein)), change in ownership or control (Q/A-27, 28, and 29 
of this section), and reasonable compensation (Q/A-42, 43, and 44 of 
this section).

                             Effective Date

    Q-47: What is the general effective date of section 280G?
    A-47: (a) Generally, section 280G applies to payments under 
agreements entered into or renewed after June 14, 1984. Any agreement 
that is entered into before June 15, 1984, and is renewed after June 14, 
1984, is treated as a new contract entered into on the day the renewal 
takes effect.
    (b) For purposes of paragraph (a) of this A-47, a contract that is 
terminable or cancellable unconditionally at will by either party to the 
contract without the consent of the other, or by both parties to the 
contract, is treated as a new contract entered into on the date any such 
termination or cancellation, if made, would be effective. However, a 
contract is not treated as so terminable or cancellable if it can be 
terminated or cancelled only by terminating the employment relationship 
or independent contractor relationship of the disqualified individual.
    (c) Section 280G applies to payments under a contract entered into 
on or before June 14, 1984, if the contract is amended or supplemented 
after June 14, 1984, in significant relevant respect. For this purpose, 
a supplement to a contract is defined as a new contract entered into 
after June 14, 1984, that affects the trigger, amount, or time of 
receipt of a payment under an existing contract.
    (d)(1) Except as otherwise provided in paragraph (e) of this A-47, a 
contract is considered to be amended or supplemented in significant 
relevant respect if provisions for payments contingent on a change in 
ownership or control (parachute provisions), or provisions in the nature 
of parachute provisions, are added to the contract, or are amended or 
supplemented to provide significant additional benefits to the 
disqualified individual. Thus, for example, a contract generally is 
treated as amended or supplemented in significant relevant respect if it 
is amended or supplemented--
    (i) To add or modify, to the disqualified individual's benefit, a 
change in ownership or control trigger;
    (ii) To increase amounts payable that are contingent on a change in 
ownership or control (or, where payment is to be made under a formula, 
to modify the formula to the disqualified individual's advantage); or
    (iii) To accelerate, in the event of a change in ownership or 
control, the payment of amounts otherwise payable at a later date.
    (2) For purposes of paragraph (a) of this A-47, a payment is not 
treated as being accelerated in the event of a change in ownership or 
control if the acceleration does not increase the present value of the 
payment.
    (e) A contract entered into on or before June 14, 1984, is not 
treated as amended or supplemented in significant relevant respect 
merely by reason of normal adjustments in the terms of employment 
relationship or independent contractor relationship of the disqualified 
individual. Whether an adjustment in the terms of such a relationship is 
considered normal for this purpose depends on all of the facts and 
circumstances of the particular case. Relevant factors include, but are 
not limited to, the following--
    (1) The length of time between the adjustment and the change in 
ownership or control;
    (2) The extent to which the corporation, at the time of the 
adjustment, viewed itself as a likely takeover candidate;
    (3) A comparison of the adjustment with historical practices of the 
corporation;
    (4) The extent of overlap between the group receiving the benefits 
of the adjustment and those members of that group who are the 
beneficiaries of pre-June 15, 1984, parachute contracts; and
    (5) The size of the adjustment, both in absolute terms and in 
comparison with the benefits provided to other members of the group 
receiving the benefits of the adjustment.
    Q-48: What is the effective date of this section?
    A-48: This section applies to any payments that are contingent on a 
change in ownership or control if the change in ownership or control 
occurs on or after

[[Page 908]]

January 1, 2004. Taxpayers may rely on these regulations after August 4, 
2003, for the treatment of any parachute payment.

[T.D. 9083, 68 FR 45750, Aug. 4, 2003; T.D. 9083, 68 FR 59114, Oct. 14, 
2003]



Sec. 1.280H-0T  Table of contents (temporary).

    This section lists the captions that appear in the temporary 
regulations under section 280H.

Sec. 1.280H-1T Limitation on certain amounts paid to employee-owners by 
    personal service corporations electing alternative taxable years 
                              (temporary).

    (a) Introduction.
    (b) Limitations on certain deductions of a personal service 
corporation.
    (1) In general.
    (2) Carryover of nondeductible amounts.
    (3) Disallowance inapplicable for certain purposes.
    (4) Definition of applicable amount.
    (i) In general.
    (ii) Special rule for certain indirect payments.
    (iii) Examples.
    (c) Minimum distribution requirement.
    (1) Determination of whether requirement satisfied.
    (i) In general.
    (ii) Employee-owner defined.
    (2) Preceding year test.
    (i) In general.
    (ii) Example.
    (3) 3-year average test.
    (i) In general.
    (ii) Applicable percentage.
    (iii) Adjusted taxable income.
    (A) In general.
    (B) Determination of adjusted taxable income for the deferral period 
of the applicable election year.
    (C) NOL carryovers.
    (D) Examples.
    (d) Maximum deductible amount.
    (1) In general.
    (2) Example.
    (e) Special rules and definition.
    (1) Newly organized personal service corporations.
    (2) Existing corporations that become personal service corporations.
    (3) Disallowance of NOL carryback.
    (4) Deferral period.
    (5) Examples.
    (f) Effective date.

[T.D. 8205, 53 FR 19711, May 27, 1988]



Sec. 1.280H-1T  Limitation on certain amounts paid to employee-owners 
by personal service corporations electing alternative taxable years 

(temporary).

    (a) Introduction. This section applies to any taxable year that a 
personal service corporation has a section 444 election in effect (an 
``applicable election year''). For purposes of this section, the term 
personal service corporation has the same meaning given such term in 
Sec. 1.441-3(c).
    (b) Limitation on certain deductions of personal service 
corporations--(1) In general. If, for any applicable election year, a 
personal service corporation does not satisfy the minimum distribution 
requirement in paragraph (c) of this section, the deduction otherwise 
allowable under chapter 1 of the Internal Revenue Code of 1986 (the 
Code) for applicable amounts, as defined in paragraph (b)(4) of this 
section, shall not exceed the maximum deductible amount, as defined in 
paragraph (d) of this section.
    (2) Carryover of nondeductible amounts. Any amount not allowed as a 
deduction in an applicable election year under paragraph (b)(1) of this 
section shall be allowed as a deduction in the succeeding taxable year.
    (3) Disallowance inapplicable for certain purposes. The disallowance 
of deductions under paragraph (b)(1) of this section shall not apply for 
purposes of subchapter G of chapter 1 of the Code (relating to 
corporations used to avoid income tax on shareholders) nor for 
determining whether the compensation of employee-owners is reasonable. 
Thus, for example, in determining whether a personal service corporation 
is subject to the accumulated earnings tax imposed by section 531, 
deductions disallowed under paragraph (b)(1) of this section are treated 
as allowed in computing accumulated taxable income.
    (4) Definition of applicable amount--(i) In general. For purposes of 
section 280H and the regulations thereunder, the term applicable amount 
means, with respect to a taxable year, any amount

[[Page 909]]

that is otherwise deductible by a personal service corporation in such 
year and includable at any time, directly or indirectly, in the gross 
income of a taxpayer that during such year is an employee-owner. Thus, 
an amount includable in the gross income of an employee-owner will be 
considered an applicable amount even though such employee owns no stock 
of the corporation on the date the employee includes the amount in 
income. See Example 1 in paragraph (b)(4)(iii) of this section.
    (ii) Special rule for certain indirect payments. For purposes of 
paragraph (b)(4)(i) of this section, amounts are indirectly includable 
in the gross income of an employee-owner of a personal service 
corporation that has made a section 444 election (an electing personal 
service corporation) if the amount is includable in the gross income 
of--
    (A) The spouse (other than a spouse who is legally separated from 
the partner or shareholder under a decree of divorce or separate 
maintenance) or child (under age 14) of such employee-owner, or
    (B) A corporation more than 50 percent (measured by fair market 
value) of which is owned in the aggregate by employee-owners (and 
individuals related under paragraph (b)(4)(ii)(A) of this section to 
such employee-owners), of the electing personal service corporation, or
    (C) A partnership more than 50 percent of the profits and capital of 
which is owned by employee-owners (and individuals related under 
paragraph (b)(4)(ii)(A) of this section to such employee-owners) of the 
electing personal service corporation, or
    (D) A trust more than 50 percent of the beneficial ownership of 
which is owned in the aggregate by employee-owners (and individuals 
related under paragraph (b)(4)(ii)(A) of this section to any such 
employee-owners), of the electing personal service corporation.

For purposes of this paragraph (b)(4)(ii), ownership by any person 
described in this paragraph (b)(4)(ii) shall be treated as ownership by 
the employee-owners of the electing personal service corporation. 
Paragraph (b)(4)(ii)(B) of this section will not apply if the 
corporation has made a section 444 election to use the same taxable year 
as that of the electing personal service corporation. Similarly, 
paragraph (b)(4)(ii)(C) of this section will not apply if the 
partnership has made a section 444 election to use the same taxable year 
as that of the electing personal service corporation. Notwithstanding 
the general effective date provision of paragraph (f) of this section, 
this paragraph (b)(4)(ii) is effective for amounts deductible on or 
after June 1, 1988.
    (iii) Example. The provisions of paragraph (b)(4) of this section 
may be illustrated by the following examples.

    Example 1. A is an employee of P, an accrual basis personal service 
corporation with a taxable year ending September 30. P makes a section 
444 election for its taxable year beginning October 1, 1987. On October 
1, 1987, A owns no stock of P; However, on March 31, 1988, A acquires 10 
of the 200 outstanding shares of P stock. During the period October 1, 
1987 to March 31, 1988, A earned $40,000 of compensation as an employee 
of P. During the period April 1, 1988 to September 30 1988, A earned 
$60,000 of compensation as an employee-owner of P. If paragraph (b) of 
this section does not apply, P would deduct for its taxable year ended 
September 30, 1988 the $100,000 earned by A during such year. Based upon 
these facts, the $100,000 otherwise deductable amount is considered an 
applicable amount under this section.
    Example 2. I1 and I2, calendar year individuals, are employees of 
PSC1, a personal service corporation that has historically used a 
taxable year ending January 31. I1 and I2 also own all the stock, and 
are employees, of PSC2, a calendar year personal service corporation. 
For its taxable years beginning February 1, 1987, 1988, and 1989, PSC1 
has a section 444 election in effect to use a January 31 taxable year. 
During its taxable years beginning February 1, 1986, 1987, and 1988, 
PSC1 deducted $10,000, $11,000, and $12,000, respectively, that was 
included in PSC2's gross income. Furthermore, of the $12,000 deducted by 
PSC1 for its taxable year beginning February 1, 1988, $7,000 was 
deducted during the period June 1, 1988 to January 31, 1989. Pursuant to 
paragraph (b)(4)(ii)(B) of this section, the $7,000 deducted by PSC1 on 
or after June 1, 1988, and included in PSC2's gross income is considered 
an applicable amount for PSC1's taxable year beginning February 1, 1988. 
Amounts deducted by PSC1 prior to June 1, 1988, are not subject to 
paragraph (b)(4)(ii)(B) of this section.
    Example 3. The facts are the same as in Example 2, except that for 
its taxable years beginning February 1, 1987, 1988, and 1989, PSC2 has a 
section 444 election in effect to use a

[[Page 910]]

January 31 taxable year. Since both PSC1 and PSC2 have the same taxable 
year and both have section 444 elections in effect, paragraph 
(b)(4)(ii)(B) of this section does not apply to the $7,000 deducted by 
PSC1 for its taxable year beginning February 1, 1988.

    (c) Minimum distribution requirement--(1) Determination of whether 
requirement satisfied--(i) In general. A personal service corporation 
meets the minimum distribution requirement of this paragraph (c) for an 
applicable election year if, during the deferral period of such taxable 
year, the applicable amounts (determined without regard to paragraph 
(b)(2) of this section) for all employee-owners in the aggregate equal 
or exceed the lesser of--
    (A) The amount determined under the ``preceding year test'' (see 
paragraph (c)(2) of this section), or
    (B) The amount determined under the ``3-year average test'' (see 
paragraph (c)(3) of this section).

The following example illustrates the application of this paragraph 
(c)(1)(i).

    Example. Q, an accrual-basis personal service corporation, makes a 
section 444 election to retain a year ending January 31 for its taxable 
year beginning February 1, 1987. Q has 4 employee-owners, B, C, D, and 
E. For Q's applicable election year beginning February 1, 1987 and 
ending January 31, 1988, B earns $6,000 a month plus a $45,000 bonus on 
January 15, 1988; C earns $5,000 a month plus a $40,000 bonus on January 
15, 1988; D and E each earn $4,500 a month plus a $4,000 bonus on 
January 15, 1988. Q meets the minimum distribution requirement for such 
applicable election year if the applicable amounts during the deferral 
period (i.e., $220,000) equal or exceed the amount determined under the 
preceding year test or the 3-year average test.

    (ii) Employee-owner defined. For purposes of section 280H and the 
regulations thereunder, a person is an employee-owner of a corporation 
for a taxable year if--
    (A) On any day of the corporation's taxable year, the person is an 
employee of the corporation or performs personal services for or on 
behalf of the corporation, even if the legal form of that person's 
relationship to the corporation is that of an independent contractor, 
and
    (B) On any day of the corporation's taxable year, the person owns 
any outstanding stock of the corporation.
    (2) Preceding year test--(i) In general. The amount determined under 
the preceding year test is the product of--
    (A) The applicable amounts during the taxable year preceding the 
applicable election year (the ``preceding taxable year''), divided by 
the number of months (but not less than one) in the preceding taxable 
year, multiplied by
    (B) The number of months in the deferral period of the applicable 
election year.
    (ii) Example. The provisions of paragraph (c)(2) of this section may 
be illustrated by the following example.

    Example. R, a personal service corporation, has historically used a 
taxable year ending January 31. For its taxable year beginning February 
1, 1987, R makes a section 444 election to retain its January 31 taxable 
year. R is an accrual basis taxpayer and has one employee-owner, F. For 
R's taxable year ending January 31, 1987, F earns $5,000 a month plus a 
$40,000 bonus on January 15, 1987. The amount determined under the 
preceding year test for R's applicable election year beginning February 
1, 1987 is $91,667 ($100,000, the applicable amounts during R's taxable 
year ending January 31, 1987, divided by 12, the number of months in R's 
taxable year ending January 31, 1987, multiplied by 11, the number of 
months in R's deferral period for such year).

    (3) 3-year average test--(i) In general. The amount determined under 
the 3-year average test is the applicable percentage multiplied by the 
adjusted taxable income for the deferral period of the applicable 
election year.
    (ii) Applicable percentage. The term applicable percentage means the 
percentage (not in excess of 95 percent) determined by dividing--
    (A) The applicable amounts during the 3 taxable years of the 
corporation (or, if fewer, the taxable years the corporation has been in 
existence) immediately preceding the applicable election year, by
    (B) The adjusted taxable income of such corporation for such 3 
taxable years (or, if fewer, the taxable years of existence).
    (iii) Adjusted taxable income--(A) In general. The term adjusted 
taxable income means taxable income determined without regard to 
applicable amounts.
    (B) Determination of adjusted taxable income for the deferral period 
of the applicable election year. Adjusted taxable

[[Page 911]]

income for the deferral period of the applicable election year equals 
the adjusted taxable income that would result if the personal service 
corporation filed an income tax return for the deferral period of the 
applicable election year under its normal method of accounting. However, 
a personal service corporation may make a reasonable estimate of such 
amount.
    (C) NOL carryovers. For purposes of determining adjusted taxable 
income for any period, any NOL carryover shall be reduced by the amount 
of such carryover that is attributable to the deduction of applicable 
amounts. The portion of the NOL carryover attributable to the deduction 
of applicable amounts is the difference between the NOL carryover 
computed with the deduction of such amounts and the NOL carryover 
computed without the deduction of such amounts. For purposes of 
determining the adjusted taxable income for the deferral period, an NOL 
carryover to the applicable election year, reduced as provided in this 
paragraph (c)(3)(iii)(C), shall be allowed first against the income of 
the deferral period.
    (D) Examples. The provisons of this paragraph (c)(3)(iii) may be 
illustrated by the following examples.

    Example 1. S is a personal service corporation that has historically 
used a taxable year ending January 31. For its taxable year beginning 
February 1, 1987, S makes a section 444 election to retain its taxable 
year ending January 31. S does not satisfy the minimum distribution 
requirement for its first applicable election year, and the applicable 
amounts for that year exceed the maximum deductible amount by $54,000. 
Under paragraph (b)(2) of this section, the $54,000 excess is carried 
over to S's taxable year beginning February 1, 1988. Furthermore, if S 
continues its section 444 election for its taxable year beginning 
February 1, 1988, and desires to use the 3-year average test provided in 
this paragraph for such year, pursuant to paragraph (c)(3)(iii)(A) of 
this section the $54,000 will not be allowed to reduce adjusted taxable 
income for such year. See also section 280H(e) regarding the 
disallowance of net operating loss carrybacks to (or from) any taxable 
year of a corporation personal service election under section 444 
applies.
    Example 2. T, a personal service corporation with a section 444 
election in effect, is determining whether it satisfies the 3-year 
average test for its second applicable election year. T had a net 
operating loss (NOL) for its first applicable election year of $45,000. 
The NOL resulted from $150,000 of gross income less the sum of $96,000 
of salary, $45,000 of other expenses, and $54,000 of deductible 
applicable amounts. Pursuant to paragraph (c)(3)(iii)(C) of this 
section, the entire amount of the $45,000 NOL is attributable to 
applicable amounts since the applicable amounts deducted in arriving at 
the NOL (i.e., $54,000) were greater than the NOL (i.e., $45,000). Thus, 
for purposes of computing the adjusted taxable income for the deferral 
period of T's second applicable election year, the NOL carryover to that 
year is $0 ($45,000 NOL less $45,000 amount of NOL attributable to 
applicable amounts).

    (d) Maximum deductible amount--(1) In general. For purposes of this 
section, the term maximum deductible amount means the sum of--
    (i) The applicable amounts during the deferral period of the 
applicable election year, plus
    (ii) An amount equal to the product of--
    (A) The amount determined under paragraph (d)(1)(i) of this section 
divided by the number of months in the deferral period of the applicable 
election year, multiplied by
    (B) The number of months in the nondeferral period of the applicable 
election year. For purposes of the preceding sentence, the term 
nondeferral period means the portion of the applicable election year 
that occurs after the portion of such year constituting the deferral 
period.
    (2) Example. The provisions of paragraph (d)(1) of this section may 
be illustrated by the following example.

    Example. U, an accrual basis personal service corporation with a 
taxable year ending January 31, makes a section 444 election to retain a 
year ending January 31 for its taxable year beginning February 1, 1987. 
For its applicable election year beginning February 1, 1987, U does not 
satisfy the minimum distribution requirement in paragraph (c) of this 
section. Furthermore, U has 3 employee-owners, G, H, and I. G and H have 
been employee-owners of U for 10 years. Although I has been an employee 
of U for 4 years, I did not become an employee-owner until December 1, 
1987, when I acquired 5 of the 20 outstanding shares of U stock. For U's 
applicable election year beginning February 1, 1987, G earns $5,000 a 
month plus a $40,000 bonus on January 15, 1988, and H and I each earn 
$4,000 a month plus a $32,000 bonus on January 15, 1988. Thus, the total 
of the applicable

[[Page 912]]

amounts during the deferral period of the applicable election year 
beginning February 1, 1987 is $143,000. Based on these facts, U's 
deduction for applicable amounts is limited to $156,000, determined as 
follows--$143,000 (applicable amounts during the deferral period) plus 
$13,000 (applicable amounts during the deferral period, divided by the 
number of months in the deferral period, multiplied by the number of 
months in the nondeferral period).

    (e) Special rules and definition--(1) Newly organized personal 
service corporations. A personal service corporation is deemed to 
satisfy the preceding year test and the 3-year average test for the 
first year of the corporation's existence.
    (2) Existing corporations that become personal service corporations. 
If an existing corporation becomes a personal service corporation and 
makes a section 444 election, the determination of whether the 
corporation satisfies the preceding year test and the 3-year average 
test is made by treating the corporation as though it were a personal 
service corporation for each of the 3 years preceding the applicable 
election year.
    (3) Disallowance of NOL carryback. No net operating loss carryback 
shall be allowed to (or from) any applicable election year of a personal 
service corporation.
    (4) Deferral period. For purposes of section 280H and the 
regulations thereunder, the term deferral period has the same meaning as 
under Sec. 1.444-1T(b)(4).
    (5) Examples. The provisions of this paragraph (e) may be 
illustrated by the following examples.

    Example 1. V is a personal service corporation with a taxable year 
ending September 30. V makes a section 444 election for its taxable year 
beginning October 1, 1987, and incurs a net operating loss (NOL) for 
such year. Because an NOL is not allowed to be carried back from an 
applicable election year, V may not carry back the NOL from its first 
applicable election year to reduce its 1985, 1986, or 1987 taxable 
income.
    Example 2. W, a personal service corporation, commences operations 
on July 1, 1990. Furthermore, for its taxable year beginning July 1, 
1990, W makes a section 444 election to use a year ending September 30. 
Pursuant to paragraph (e)(1) of this section, W satisfies the preceding 
year test and the 3-year average test for its first year in existence. 
Thus, W may deduct, without limitation under this section, any 
applicable amounts for its taxable year beginning July 1, 1990.
    Example 3. The facts are the same as in Example 2. For its taxable 
year beginning October 1, 1990, W incurs an NOL and is not a personal 
service corporation. Furthermore, W desires to carry back the NOL to its 
preceding taxable year (a year that was an applicable election year). 
Pursuant to paragraph (e)(3) of this section, W may not carry back an 
NOL ``to'' its taxable year beginning July 1, and ending September 30, 
1990, because such year was an applicable election year.

    (f) Effective date. The provisions of this section are effective for 
taxable years beginning after December 31, 1986.

[T.D. 8205, 53 FR 19711, May 27, 1988]

            Taxable Years Beginning Prior to January 1, 1986



Sec. 1.274-5A  Substantiation requirements.

    (a) In general. No deduction shall be allowed for any expenditure 
with respect to:
    (1) Traveling away from home (including meals and lodging) 
deductible under section 162 or 212,
    (2) Any activity which is of a type generally considered to 
constitute entertainment, amusement, or recreation, or with respect to a 
facility used in connection with such an activity, including the items 
specified in section 274(e), or
    (3) Gifts defined in section 274, unless the taxpayer substantiates 
such expenditure as provided in paragraph (c) of this section. This 
limitation supersedes with respect to any such expenditure the doctrine 
of Cohan v. Commissioner (C.C.A. 2d 1930) 39 F. 2d 540. The decision 
held that, where the evidence indicated a taxpayer incurred deductible 
travel or entertainment expense but the exact amount could not be 
determined, the court should make a close approximation and not disallow 
the deduction entirely. Section 274(d) contemplates that no deduction 
shall be allowed a taxpayer for such expenditures on the basis of such 
approximations or unsupported testimony of the taxpayer. For purposes of 
this section, the term entertainment means entertainment, amusement, or 
recreation, and use of a facility therefore; and the

[[Page 913]]

term expenditure includes expenses and items (including items such as 
losses and depreciation).
    (b) Elements of an expenditure--(1) In general. Section 274(d) and 
this section contemplate that no deduction shall be allowed for any 
expenditure for travel, entertainment, or a gift unless the taxpayer 
substantiates the following elements for each such expenditure:
    (i) Amount;
    (ii) Time and place of travel or entertainment (or use of a facility 
with respect to entertainment), or date and description of a gift;
    (iii) Business purpose; and
    (iv) Business relationship to the taxpayer of each person 
entertained, using an entertainment facility or receiving a gift.
    (2) Travel. The elements to be proved with respect to an expenditure 
for travel are:
    (i) Amount. Amount of each separate expenditure for traveling away 
from home, such as cost of transportation or lodging, except that the 
daily cost of the traveler's own breakfast, lunch, and dinner and of 
expenditures incidental to such travel may be aggregated, if set forth 
in reasonable categories, such as for meals, for gasoline and oil, and 
for taxi fares;
    (ii) Time. Dates of departure and return for each trip away from 
home, and number of days away from home spent on business;
    (iii) Place. Destinations or locality of travel, described by name 
of city or town or other similar designation; and
    (iv) Business purpose. Business reason for travel or nature of the 
business benefit derived or expected to be derived as a result of 
travel.
    (3) Entertainment in general. Elements to be proved with respect to 
an expenditure for entertainment are:
    (i) Amount. Amount of each separate expenditure for entertainment, 
except that such incidental items as taxi fares or telephone calls may 
be aggregated on a daily basis;
    (ii) Time. Date of entertainment;
    (iii) Place. Name, if any, address or location, and designation of 
type of entertainment, such as dinner or theater, if such information is 
not apparent from the designation of the place;
    (iv) Business purpose. Business reason for the entertainment or 
nature of business benefit derived or expected to be derived as a result 
of the entertainment and, except in the case of business meals described 
in section 274(e)(1), the nature of any business discussion or activity;
    (v) Business relationship. Occupation or other information relating 
to the person or persons entertained, including name, title, or other 
designation, sufficient to establish business relationship to the 
taxpayer.
    (4) Entertainment directly preceding or following a substantial and 
bona fide business discussion. If a taxpayer claims a deduction for 
entertainment directly preceding or following a substantial and bona 
fide business discussion on the ground that such entertainment was 
associated with the active conduct of the taxpayer's trade or business, 
the elements to be proved with respect to such expenditure, in addition 
to those enumerated in subparagraph (3)(i), (ii), (iii), and (v) of this 
paragraph, are:
    (i) Time. Date and duration of business discussion;
    (ii) Place. Place of business discussion;
    (iii) Business purpose. Nature of business discussion, and business 
reason for the entertainment or nature of business benefit derived or 
expected to be derived as the result of the entertainment;
    (iv) Business relationship. Identification of those persons 
entertained who participated in the business discussion.
    (5) Gifts. Elements to be proved with respect to an expenditure for 
a gift are:
    (i) Amount. Cost of the gift to the taxpayer;
    (ii) Time. Date of the gift;
    (iii) Description. Description of the gift;
    (iv) Business purpose. Business reason for the gift or nature of 
business benefit derived or expected to be derived as a result of the 
gift; and
    (v) Business relationship. Occupation or other information relating 
to the recipient of the gift, including name, title, or other 
designation, sufficient to establish business relationship to the 
taxpayer.
    (c) Rules for substantiation--(1) In general. A taxpayer must 
substantiate

[[Page 914]]

each element of an expenditure (described in paragraph (b) of this 
section) by adequate records or by sufficient evidence corroborating his 
own statement except as otherwise provided in this section. Section 
274(d) contemplates that a taxpayer will maintain and produce such 
substantiation as will constitute clear proof of an expenditure for 
travel, entertainment, or gifts referred to in section 274. A record of 
the elements of an expenditure made at or near the time of the 
expenditure, supported by sufficient documentary evidence, has a high 
degree of credibility not present with respect to a statement prepared 
subsequent thereto when generally there is a lack of accurate recall. 
Thus, the corroborative evidence required to support a statement not 
made at or near the time of the expenditure must have a high degree of 
probative value to elevate such statement and evidence to the level of 
credibility reflected by a record made at or near the time of the 
expenditure supported by sufficient documentary evidence. The 
substantiation requirements of section 274(d) are designed to encourage 
taxpayers to maintain the records, together with documentary evidence, 
as provided in subparagraph (2) of this paragraph. To obtain a deduction 
for an expenditure for travel, entertainment, or gifts, a taxpayer must 
substantiate, in accordance with the provisions of this paragraph, each 
element of such an expenditure.
    (2) Substantiation by adequate records--(i) In general. To meet the 
``adequate records'' requirements of section 274(d), a taxpayer shall 
maintain an account book, diary, statement of expense or similar record 
(as provided in subdivision (ii) of this subparagraph) and documentary 
evidence (as provided in subdivision (iii) of this subparagraph) which, 
in combination, are sufficient to establish each element of an 
expenditure specified in paragraph (b) of this section. It is not 
necessary to record information in an account book, diary, statement of 
expense or similar record which duplicates information reflected on a 
receipt so long as such account book and receipt complement each other 
in an orderly manner.
    (ii) Account book, diary, etc. An account book, diary, statement of 
expense or similar record must be prepared or maintained in such manner 
that each recording of an element of an expenditure is made at or near 
the time of the expenditure.
    (a) Made at or near the time of the expenditure. For purposes of 
this section, the phrase made at or near the time of the expenditure 
means the elements of an expenditure are recorded at a time when, in 
relation to the making of an expenditure, the taxpayer has full present 
knowledge of each element of the expenditure, such as the amount, time, 
place and business purpose of the expenditure and business relationship 
to the taxpayer of any person entertained. An expense account statement 
which is a transcription of an account book, diary, or similar record 
prepared or maintained in accordance with the provisions of this 
subdivision shall be considered a record prepared or maintained in the 
manner prescribed in the preceding sentence if such expense account 
statement is submitted by an employee to his employer or by an 
independent contractor to his client or customer in the regular course 
of good business practice.
    (b) Substantiation of business purpose. In order to constitute an 
adequate record of business purpose within the meaning of section 274(d) 
and this subparagraph, a written statement of business purpose generally 
is required. However, the degree of substantiation necessary to 
establish business purpose will vary depending upon the facts and 
circumstances of each case. Where the business purpose of an expenditure 
is evident from the surrounding facts and circumstances, a written 
explanation of such business purpose will not be required. For example, 
in the case of a salesman calling on customers on an established sales 
route, a written explanation of the business purpose of such travel 
ordinarily will not be required. Similarly, in the case of a business 
meal described in section 274(e)(1), if the business purpose of such 
meal is evident from the business relationship to the taxpayer of the 
persons entertained and other surrounding circumstances, a written 
explanation of

[[Page 915]]

such business purpose will not be required.
    (c) Confidential information. If any information relating to the 
elements of an expenditure, such as place, business purpose or business 
relationship, is of a confidential nature, such information need not be 
set forth in the account book, diary, statement of expense or similar 
record, provided such information is recorded at or near the time of the 
expenditure and is elsewhere available to the district director to 
substantiate such element of the expenditure.
    (iii) Documentary evidence. Documentary evidence, such as receipts, 
paid bills, or similar evidence sufficient to support an expenditure 
shall be required for:
    (a) Any expenditure for lodging while traveling away from home, and
    (b) Any other expenditure of $25 or more, except, for transportation 
charges, documentary evidence will not be required if not readily 
available.

Provided, however, that the Commissioner, in his discretion, may 
prescribe rules waiving such requirements in circumstances where he 
determines it is impracticable for such documentary evidence to be 
required. Ordinarily, documentary evidence will be considered adequate 
to support an expenditure if it includes sufficient information to 
establish the amount, date, place, and the essential character of the 
expenditure. For example, a hotel receipt is sufficient to support 
expenditures for business travel if it contains the following: name, 
location, date, and separate amounts for charges such as for lodging, 
meals, and telephone. Similarly, a restaurant receipt is sufficient to 
support an expenditure for a business meal if it contains the following: 
name and location of the restaurant, the date and amount of the 
expenditure, and, if a charge is made for an item other than meals and 
beverages, an indication that such is the case. A document may be 
indicative of only one (or part of one) element of an expenditure. Thus, 
a cancelled check, together with a bill from the payee, ordinarily would 
establish the element of cost. In contrast, a cancelled check drawn 
payable to a named payee would not by itself support a business 
expenditure without other evidence showing that the check was used for a 
certain business purpose.
    (iv) Retention of documentary evidence. The Commissioner may, in his 
discretion, prescribe rules under which an employer may dispose of 
documentary evidence submitted to him by employees who are required to, 
and do, make an adequate accounting to the employer (within the meaning 
of paragraph (e)(4) of this section) if the employer maintains adequate 
accounting procedures with respect to such employees (within the meaning 
of paragraph (e)(5) of this section).
    (v) Substantial compliance. If a taxpayer has not fully 
substantiated a particular element of an expenditure, but the taxpayer 
establishes to the satisfaction of the district director that he has 
substantially complied with the adequate records requirements of this 
subparagraph with respect to the expenditure, the taxpayer may be 
permitted to establish such element by evidence which the district 
director shall deem adequate.
    (3) Substantiation by other sufficient evidence. If a taxpayer fails 
to establish to the satisfaction of the district director that he has 
substantially complied with the ``adequate records'' requirements of 
subparagraph (2) of this paragraph with respect to an element of an 
expenditure, then, except as otherwise provided in this paragraph, the 
taxpayer must establish such element:
    (i) By his own statement, whether written or oral, containing 
specific information in detail as to such element; and
    (ii) By other corroborative evidence sufficient to establish such 
element.

If such element is the description of a gift, or the cost, time, place, 
or date of an expenditure, the corroborative evidence shall be direct 
evidence, such as a statement in writing or the oral testimony of 
persons entertained or other witness setting forth detailed information 
about such element, or the documentary evidence described in 
subparagraph (2) of this paragraph. If such element is either the 
business relationship to the taxpayer of persons entertained or the 
business purpose of an expenditure, the corroborative evidence may be 
circumstantial evidence.

[[Page 916]]

    (4) Substantiation in exceptional circumstances. If a taxpayer 
establishes that, by reason of the inherent nature of the situation in 
which an expenditure was made:
    (i) He was unable to obtain evidence with respect to an element of 
the expenditure which conforms fully to the ``adequate records'' 
requirements of subparagraph (2) of this paragraph,
    (ii) He is unable to obtain evidence with respect to such element 
which conforms fully to the ``other sufficient evidence'' requirements 
of subparagraph (3) of this paragraph, and
    (iii) He has presented other evidence, with respect to such element, 
which possesses the highest degree of probative value possible under the 
circumstances, such other evidence shall be considered to satisfy the 
substantiation requirements of section 274(d) and this paragraph.
    (5) Loss of records due to circumstances beyond control of taxpayer. 
Where the taxpayer establishes that the failure to produce adequate 
records is due to the loss of such records through circumstances beyond 
the taxpayer's control, such as destruction by fire, flood, earthquake, 
or other casualty, the taxpayer shall have a right to substantiate a 
deduction by reasonable reconstruction of his expenditures.
    (6) Special rules--(i) Separate expenditure--(a) In general. For the 
purposes of this section, each separate payment by the taxpayer shall 
ordinarily be considered to constitute a separate expenditure. However, 
concurrent or repetitious expenses of a similar nature occurring during 
the course of a single event shall be considered a single expenditure. 
To illustrate the above rules, where a taxpayer entertains a business 
guest at dinner and thereafter at the theater, the payment for dinner 
shall be considered to constitute one expenditure and the payment for 
the tickets for the theater shall be considered to constitute a separate 
expenditure. Similarly, if during a day of business travel a taxpayer 
makes separate payments for breakfast, lunch, and dinner, he shall be 
considered to have made three separate expenditures. However, if during 
entertainment at a cocktail lounge the taxpayer pays separately for each 
serving of refreshments, the total amount expended for the refreshments 
will be treated as a single expenditure. A tip may be treated as a 
separate expenditure.
    (b) Aggregation. Except as otherwise provided in this section, the 
account book, diary, statement of expense, or similar record required by 
subparagraph (2)(ii) of this paragraph shall be maintained with respect 
to each separate expenditure and not with respect to aggregate amounts 
for two or more expenditures. Thus, each expenditure for such items as 
lodging and air or rail travel shall be recorded as a separate item and 
not aggregated. However, at the option of the taxpayer, amounts expended 
for breakfast, lunch, or dinner, may be aggregated. A tip or gratuity 
which is related to an underlying expense may be aggregated with such 
expense. For other provisions permitting recording of aggregate amounts 
in an account book, diary, statement of expense or similar record see 
paragraph (b)(2)(i) and (b)(3) of this section (relating to incidental 
costs of travel and entertainment).
    (ii) Allocation of expenditure. For purposes of this section, if a 
taxpayer has established the amount of an expenditure, but is unable to 
establish the portion of such amount which is attributable to each 
person participating in the event giving rise to the expenditure, such 
amount shall ordinarily be allocated to each participant on a pro rata 
basis, if such determination is material. Accordingly, the total number 
of persons for whom a travel or entertainment expenditure is incurred 
must be established in order to compute the portion of the expenditure 
allocable to each such person.
    (iii) Primary use of a facility. Section 274(a) (1)(B) and (2)(C) 
denies a deduction for any expenditure paid or incurred before January 
1, 1979, with respect to a facility, or paid or incurred at any time 
with respect to a club, used in connection with an entertainment 
activity unless the taxpayer establishes that the facility (including a 
club) was used primarily for the furtherance of his trade or business. A 
determination whether a facility before January 1, 1979, or a club at 
any time was used primarily for the futherance of the taxpayer's trade 
or business will

[[Page 917]]

depend upon the facts and circumstances of each case. In order to 
establish that a facility was used primarily for the furtherance of his 
trade or business, the taxpayer shall maintain records of the use of the 
facility, the cost of using the facility, mileage or its equivalent (if 
appropriate), and such other information as shall tend to establish such 
primary use. Such records of use shall contain:
    (a) For each use of the facility claimed to be in furtherance of the 
taxpayer's trade or business, the elements of an expenditure specified 
in paragraph (b) of this section, and
    (b) For each use of the facility not in furtherance of the 
taxpayer's trade or business, an appropriate description of such use, 
including cost, date, number of persons entertained, nature of 
entertainment and, if applicable, information such as mileage or its 
equivalent. A notation such as ``personal use'' or ``family use'' would, 
in the case of such use, be sufficient to describe the nature of 
entertainment.

If a taxpayer fails to maintain adequate records concerning a facility 
which is likely to serve the personal purposes of the taxpayer, it shall 
be presumed that the use of such facility was primarily personal.
    (iv) Additional information. In a case where it is necessary to 
obtain additional information, either:
    (a) To clarify information contained in records, statements, 
testimony, or documentary evidence submitted by a taxpayer under the 
provisions of paragraph (c)(2) or (c)(3) of this section, or
    (b) To establish the reliability or accuracy of such records, 
statements, testimony, or documentary evidence, the district director 
may, notwithstanding any other provision of this section, obtain such 
additional information as he determines necessary to properly implement 
the provisions of section 274 and the regulations thereunder by personal 
interview or otherwise.
    (7) Specific exceptions. Except as otherwise prescribed by the 
Commissioner, substantiation otherwise required by this paragraph is not 
required for:
    (i) Expenses described in section 274 (e)(2) relating to food and 
beverages for employees, section 274(e)(3) relating to expenses treated 
as compensation, section 274(e)(8) relating to items available to the 
public, and section 274(e)(9) relating to entertainment sold to 
customers, and
    (ii) Expenses described in section 274(e)(5) relating to 
recreational, etc., expenses for employees, except that a taxpayer shall 
keep such records or other evidence as shall establish that such 
expenses were for activities (or facilities used in connection 
therewith) primarily for the benefit of employees other than employees 
who are officers, shareholders or other owners (as defined in section 
274(e)(5)), or highly compensated employees.
    (d) Disclosure on returns. The Commissioner may, in his discretion, 
prescribe rules under which any taxpayer claiming a deduction for 
entertainment, gifts, or travel or any other person receiving advances, 
reimbursements, or allowances for such items, shall make disclosure on 
his tax return with respect to such items. The provisions of this 
paragraph shall apply notwithstanding the provisions of paragraph (e) of 
this section.
    (e) Reporting and substantiation of expenses of certain employees 
for travel, entertainment, and gifts--(1) In general. The purpose of 
this paragraph is to provide rules for reporting and substantiation of 
certain expenses paid or incurred by taxpayers in connection with the 
performance of services as employees. For purposes of this paragraph, 
the term business expenses means ordinary and necessary expenses for 
travel, entertainment, or gifts which are deductible under section 162, 
and the regulations thereunder, to the extent not disallowed by section 
274(c). Thus, the term business expenses does not include personal, 
living or family expenses disallowed by section 262 or travel expenses 
disallowed by section 274(c), and advances, reimbursements, or 
allowances for such expenditures must be reported as income by the 
employee.
    (2) Reporting of expenses for which the employee is required to make 
an adequate accounting to his employer--(i) Reimbursements equal to 
expenses. For purposes of computing tax liability, an employee need not 
report on his tax return business expenses for travel, transportation, 
entertainment, gifts,

[[Page 918]]

and similar purposes, paid or incurred by him solely for the benefit of 
his employer for which he is required to, and does, make an adequate 
accounting to his employer (as defined in subparagraph (4) of this 
paragraph) and which are charged directly or indirectly to the employer 
(for example, through credit cards) or for which the employee is paid 
through advances, reimbursements, or otherwise, provided that the total 
amount of such advances, reimbursements, and charges is equal to such 
expenses.
    (ii) Reimbursements in excess of expenses. In case the total of the 
amounts charged directly or indirectly to the employer or received from 
the employer as advances, reimbursements, or otherwise, exceeds the 
business expenses paid or incurred by the employee and the employee is 
required to, and does, make an adequate accounting to his employer for 
such expenses, the employee must include such excess (including amounts 
received for expenditures not deductible by him) in income.
    (iii) Expense in excess of reimbursements. If an employee incurs 
deductible business expenses on behalf of his employer which exceed the 
total of the amounts charged directly or indirectly to the employer and 
received from the employer as advances, reimbursements, or otherwise, 
and the employee wishes to claim a deduction for such excess, he must:
    (a) Submit a statement as part of his tax return showing all of the 
information required by subparagraph (3) of this paragraph, and,
    (b) Maintain such records and supporting evidence as will 
substantiate each element of an expenditure (described in paragraph (b) 
of this section) in accordance with paragraph (c) of this section.
    (3) Reporting of expenses for which the employee is not required to 
make an adequate accounting to his employer. If the employee is not 
required to make an adequate accounting to his employer for his business 
expenses or, though required, fails to make an adequate accounting for 
such expenses, he must submit, as a part of his tax return, a statement 
showing the following information:
    (i) The total of all amounts received as advances or reimbursements 
from his employer, including amounts charged directly or indirectly to 
the employer through credit cards or otherwise; and
    (ii) The nature of his occupation, the number of days away from home 
on business, and the total amount of business expenses paid or incurred 
by him (including those charged directly or indirectly to the employer 
through credit cards or otherwise) broken down into such categories as 
transportation, meals and lodging while away from home overnight, 
entertainment, gifts, and other business expenses.

In addition, he must maintain such records and supporting evidence as 
will substantiate each element of an expenditure (described in paragraph 
(b) of this section) in accordance with paragraph (c) of this section.
    (4) Definition of an ``adequate accounting'' to the employer. For 
purposes of this paragraph an adequate accounting means the submission 
to the employer of an account book, diary, statement of expense, or 
similar record maintained by the employee in which the information as to 
each element of an expenditure (described in paragraph (b) of this 
section) is recorded at or near the time of the expenditure, together 
with supporting documentary evidence, in a manner which conforms to all 
the ``adequate records'' requirements of paragraph (c)(2) of this 
section. An adequate accounting requires that the employee account for 
all amounts received from his employer during the taxable year as 
advances, reimbursements, or allowances (including those charged 
directly or indirectly to the employer through credit cards or 
otherwise) for travel, entertainment, and gifts. The methods of 
substantiation allowed under paragraph (c)(4) or (c)(5) of this section 
also will be considered to be an adequate accounting if the employer 
accepts an employee's substantiation and establishes that such 
substantiation meets the requirements of such paragraph (c)(4) or 
(c)(5). For purposes of an adequate accounting the method of 
substantiation allowed under paragraph (c)(3) of this section will not 
be permitted.

[[Page 919]]

    (5) Substantiation of expenditures by certain employees. An employee 
who makes an adequate accounting to his employer within the meaning of 
this paragraph will not again be required to substantiate such expense 
account information except in the following cases:
    (i) An employee whose business expenses exceed the total of amounts 
charged to his employer and amounts received through advances, 
reimbursements or otherwise and who claims a deduction on his return for 
such excess;
    (ii) An employee who is related to his employer within the meaning 
of section 267(b) but for this purpose the percentage referred to in 
section 267(b)(2) shall be 10 percent; and
    (iii) Employees in cases where it is determined that the accounting 
procedures used by the employer for the reporting and substantiation of 
expenses by such employees are not adequate, or where it cannot be 
determined that such procedures are adequate. The district director will 
determine whether the employer's accounting procedures are adequate by 
considering the facts and circumstances of each case, including the use 
of proper internal controls. For example, an employer should require 
that an expense account must be verified and approved by a responsible 
person other than the person incurring such expenses. Accounting 
procedures will be considered inadequate to the extent that the employer 
does not require an adequate accounting from his employees as defined in 
subparagraph (4) of this paragraph, or does not maintain such 
substantiation. To the extent an employer fails to maintain adequate 
accounting procedures he will thereby obligate his employees to 
separately substantiate their expense account information.
    (f) Substantiation by reimbursement arrangements or per diem, 
mileage, and other traveling allowances. The Commissioner may, in his 
discretion, prescribe rules under which:
    (1) Reimbursement arrangements covering ordinary and necessary 
expenses of traveling away from home (exclusive of transportation 
expenses to and from destination),
    (2) Per diem allowances providing for ordinary and necessary 
expenses of traveling away from home (exclusive of transportation costs 
to and from destination), and
    (3) Mileage allowances providing for ordinary and necessary expenses 
of transportation while traveling away from home, will, if in accordance 
with reasonable business practice, be regarded as equivalent to 
substantiation by adequate records or other sufficient evidence for 
purposes of paragraph (c) of this section of the amount of such 
traveling expenses and as satisfying, with respect to the amount of such 
traveling expenses, the requirements of an adequate accounting to the 
employer for purposes of paragraph (e)(4) of this section. If the total 
travel allowance received exceeds the deductible traveling expenses paid 
or incurred by the employee, such excess must be reported as income on 
the employee's return. See paragraph (h) of this section relating to the 
substantiation of meal expenses while traveling.
    (g) Reporting and substantiation of certain reimbursements of 
persons other than employees--(1) In general. The purpose of this 
paragraph is to provide rules for the reporting and substantiation of 
certain expenses for travel, entertainment, and gifts paid or incurred 
by one person (hereinafter termed ``independent contractor'') in 
connection with services performed for another person other than an 
employer (hereinafter termed ``client or customer'') under a 
reimbursement or other expense allowance arrangement with such client or 
customer. For purposes of this paragraph, the term business expenses 
means ordinary and necessary expenses for travel, entertainment, or 
gifts which are deductible under section 162, and the regulations 
thereunder, to the extent not disallowed by section 274(c). Thus, the 
term business expenses does not include personal, living or family 
expenses disallowed by section 262 or travel expenses disallowed by 
section 274(c), and reimbursements for such expenditures must be 
reported as income by the independent contractor. For purposes of this 
paragraph, the term reimbursements means advances, allowances, or 
reimbursements received by an independent contractor for travel, 
entertainment,

[[Page 920]]

or gifts, in connection with the performance by him of services for his 
client or customer, under a reimbursement or other expense allowance 
arrangement with his client or customer, and includes amounts charged 
directly or indirectly to the client or customer through credit card 
systems or otherwise. See paragraph (h) of this section relating to the 
substantiation of meal expenses while traveling.
    (2) Substantiation by independent contractors. An independent 
contractor shall substantiate, with respect to his reimbursements, each 
element of an expenditure (described in paragraph (b) of this section) 
in accordance with the requirements of paragraph (c) of this section; 
and, to the extent he does not so substantiate, he shall include such 
reimbursements in income. An independent contractor shall so 
substantiate a reimbursement for entertainment regardless of whether he 
accounts (within the meaning of subparagraph (3) of this paragraph) for 
such entertainment.
    (3) Accounting to a client or customer under section 274(e)(4)(B). 
Section 274(e)(4)(B) provides that section 274(a) (relating to 
disallowance of expenses for entertainment) shall not apply to 
expenditures for entertainment for which an independent contractor has 
been reimbursed if the independent contractor accounts to his client or 
customer to the extent provided by section 274(d). For purposes of 
section 274(e)(4)(B), an independent contractor shall be considered to 
account to his client or customer for an expense paid or incurred under 
a reimbursement or other expense allowance arrangement with his client 
or customer if, with respect to such expense for entertainment, he 
submits to his client or customer adequate records or other sufficient 
evidence conforming to the requirements of paragraph (c) of this 
section.
    (4) Substantiation by client or customer. A client or customer shall 
not be required to substantiate, in accordance with the requirements of 
paragraph (c) of this section, reimbursements to an independent 
contractor for travel and gifts, or for entertainment unless the 
independent contractor has accounted to him (within the meaning of 
section 274(e)(4)(B) and subparagraph (3) of this paragraph) for such 
entertainment. If an independent contractor has so accounted to a client 
or customer for entertainment, the client or customer shall substantiate 
each element of the expenditure (as described in paragraph (b) of this 
section) in accordance with the requirements of paragraph (c) of this 
section.
    (h) Authority for an optional method of computing meal expenses 
while traveling. The Commissioner may establish a method under which a 
taxpayer may elect to use a specified amount or amounts for meals while 
traveling in lieu of substantiating the actual cost of meals. The 
taxpayer would not be relieved of substantiating the actual cost of 
other travel expenses as well as the time, place, and business purpose 
of the travel. See paragraph (b)(2) and (c) of this section.
    (i) Effective date--(1) In general. Section 274(d) and this section 
apply with respect to taxable years ending after December 31, 1962, but 
only with respect to period after that date.
    (2) Certain meal expenses. Paragraph (h) of this section is 
effective for expenses paid or incurred after December 31, 1982.

[T.D. 6630, 27 FR 12931, Dec. 29, 1972, as amended by T.D. 7226, 37 FR 
26711, Dec. 15, 1972; T.D. 7909, 48 FR 40370, Sept. 7, 1983; 48 FR 
41017, Sept. 13, 1983; T.D. 8051, 50 FR 36576, Sept. 9, 1985. 
Redesignated by T.D. 8715, 62 FR 13990, Mar. 25, 1997; T.D. 8996, 67 FR 
35008, May 17, 2002]

          Terminal Railroad Corporations and Their Shareholders



Sec. 1.281-1  In general.

    Section 281 provides special rules for the computation of the 
taxable incomes of a terminal railroad corporation and its shareholders 
when the terminal railroad corporation, as a result of taking related 
terminal income into account, reduces a charge which was made or which 
would be made for related terminal services furnished to a railroad 
corporation. Section 281 and paragraphs (a) and (b) of Sec. 1.281-2 
provide that the ``reduced amount'' described in paragraph (c) of Sec. 
1.281-2 is not includable in gross income of the terminal railroad 
corporation, is not

[[Page 921]]

treated as a dividend or other distribution to its railroad 
shareholders, and is not treated as an amount paid -or incurred by the 
railroad shareholders to the terminal railroad corporation. Section 281 
and paragraph (a)(2) of Sec. 1.281-2 provide that no deduction 
otherwise allowable to a terminal railroad corporation shall be 
disallowed as a result of the ``reduced amount'' described in paragraph 
(c) of Sec. 1.281-2. Section 1.281-3 defines the terms terminal 
railroad corporation, related terminal income, related terminal 
services, agreement, and railroad corporation. Section 1.281-4 describes 
the effective dates and special rules for application of section 281 to 
taxable years ending before October 23, 1962.

[T.D. 7356, 40 FR 23732, June 2, 1975]



Sec. 1.281-2  Effect of section 281 upon the computation of taxable 
income.

    (a) Computation of taxable income of terminal railroad 
corporations--(1) Income not considered received or accrued. A terminal 
railroad corporation (as defined in paragraph (a) of Sec. 1.281-3) 
shall not be considered to have received or accrued the ``reduced 
amount'' described in paragraph (c) of this section in the computation 
of its taxable income. Thus, income is not to be considered accrued or 
actually or constructively received by a terminal railroad corporation 
where, in the manner described in paragraph (c) of this section, (i) a 
charge which would be made to any railroad corporation for related 
terminal services is not made, or (ii) a portion of any liability 
payable by any railroad corporation with respect to related terminal 
services is discharged.
    (2) Deduction not disallowed. In the computation of the taxable 
income of a terminal railroad corporation, a deduction relating to a 
``reduced amount'', described in paragraph (c) of this section, which is 
otherwise allowable to it under chapter 1 of the Code (without regard to 
sec. 277) shall not be disallowed by reason of section 281. Thus, 
deductions for expenses attributable to services rendered to a 
shareholder are not to be disallowed to a terminal railroad corporation 
merely because, in the manner described in paragraph (c) of this 
section, (i) a charge which would be made to any railroad corporation 
for related terminal services is not made, or (ii) a portion of any 
liability payable by any railroad corporation with respect to related 
terminal services is discharged. To the extent that section 281 applies 
to a deduction relating to a ``reduced amount'', such deduction shall 
not be disallowed under section 277.
    (b) Computation of taxable income of shareholders--(1) Income not 
considered received or accrued. A shareholder of a terminal railroad 
corporation shall not be considered to have received or accrued any 
``reduced amount'' (described in paragraph (c) of this section) in the 
computation of the shareholder's taxable income. Thus a dividend is not 
to be considered actually or constructively received by a shareholder of 
a terminal railroad corporation merely because, in the manner described 
in paragraph (c) of this section, (i) a charge which would be made to 
the shareholder or any other railroad corporation for related terminal 
services is not made, or (ii) a portion of any liability payable by it 
or any other railroad corporation with respect to related terminal 
services is discharged.
    (2) Expenses not considered paid or incurred. In the computation of 
the taxable income of a shareholder of a terminal railroad corporation, 
the shareholder shall not be considered to have paid or incurred any 
``reduced amount'' (described in paragraph (c) of this section). Thus, a 
shareholder of the terminal railroad corporation may not deduct as an 
expense for related terminal services (as defined in paragraph (c) of 
Sec. 1.281-3) an amount in excess of the net cost to it of such 
services.
    (c) Amounts to which section 281 applies--(1) Reduced amount. For 
purposes of this section, the term reduced amount means, subject to the 
limitation of paragraph (c)(4) of this section, the amount by which:
    (i) A charge which would be made by a terminal railroad corporation 
for its taxable year for related terminal services provided to a 
railroad corporation; or
    (ii) A liability of a railroad corporation, resulting from a charge 
made by a terminal railroad corporation for its taxable year, with 
respect to related terminal services provided by the terminal railroad 
corporation, is reduced

[[Page 922]]

by reason of the terminal railroad corporation's taking into account, 
pursuant to an agreement (as defined in paragraph (d) of Sec. 1.281-3), 
related terminal income (as defined in paragraph (b) of Sec. 1.281-3) 
received or accrued (without regard to section 281) during such taxable 
year.
    (2) Charge which would be made. For purposes of this section, a 
``charge which would be made'' by a terminal railroad corporation is the 
amount that would be charged to any railroad corporation for related 
terminal services provided if the terminal railroad corporation made the 
charge without taking related terminal income into account.
    (3) Reduction resulting from related terminal income. For purposes 
of subparagraph (1) of this section, a charge or a liability is reduced 
by taking related terminal income into account to the extent that:
    (i) Related terminal income is received or accrued (without regard 
to section 281) by the terminal railroad corporation for its taxable 
year in which the charge or liability is reduced; and
    (ii) The charge or liability in question would have been larger than 
it is had such income not been received or accrued (without regard to 
section 281).

The reduction must be made (directly or indirectly) on the books of the 
terminal railroad corporation, and in fact, for the same taxable year 
for which the charge would be made or for which the liability is 
incurred. The reduction of the charge or liability must be taken into 
account by the terminal railroad corporation in ascertaining the income, 
profit, or loss for such taxable year for the purpose of reports to 
shareholders and the Interstate Commerce Commission, and for credit 
purposes.
    (4) Limitation. To the extent that a reduced amount (as described in 
paragraph (c)(1) of this section but without regard to the limitation 
under this subparagraph) would operate either to create or to increase a 
net operating loss for the terminal railroad corporation, this section 
shall not apply. Therefore, if a portion of a liability is discharged 
(in the manner described in this paragraph) and the discharged portion 
of the liability exceeds an amount equal to the terminal railroad 
corporation's gross income minus the deductions allowed by chapter 1 of 
the Code (computed with regard to the modifications specified in section 
172(d) but without regard to section 281 and this section), then section 
281 and this section shall not apply to such excess. The limitation 
described in this subparagraph shall apply only to taxable years of 
terminal railroad corporations ending after October 23, 1962.
    (d) Examples. The provisions of this section may be illustrated by 
the following examples. In these examples, references to ``before the 
application of section 281'', ``after the application of section 281'', 
``taxable income'', and ``allowable deductions'' take no account of 
section 277, which may apply to deductions to which section 281 does not 
apply.

    Example 1. (i) Facts. The T Company is a terminal railroad 
corporation which charges its three equal shareholders, the X, Y, and Z 
railroad corporations, a rental calculated monthly on a wheelage or user 
basis for the use of its services and facilities. The T Company and each 
of its shareholders report income on the calendar year basis. A written 
lease agreement to which all of the shareholders were parties was 
entered into in 1947. The agreement provides that at the end of each 
year the liabilities of each of the shareholders resulting from charges 
for rental obligations with respect to related terminal services shall 
be reduced by the shareholder's one-third share of the net income from 
each source of revenue that produced income (computed before reduction 
for Federal income taxes). For the calendar year 1973, the T Company's 
charges to its shareholders include the following charges for related 
terminal services: $35,000 to the X Company, $25,000 to the Y Company, 
and $20,000 to the Z Company. Thus, prior to reduction, total 
shareholder liabilities to the T Company for related terminal services 
are $80,000 at the end of 1973. The T Company's net income from all 
sources (before reduction of liabilities pursuant to the 1947 agreement 
and before reduction for Federal income taxes) and its taxable income, 
before the application of section 281, for 1973 are $36,000 determined 
as follows:

------------------------------------------------------------------------
                                                                 Income
                 Source                     Gross    Allowable     (or
                                           income   deductions    loss)
------------------------------------------------------------------------
Related terminal services performed:
    For shareholders....................   $80,000     $65,000   $15,000
    For nonshareholders.................    46,000      37,000     9,000
                                         -------------------------------

[[Page 923]]

 
  Related terminal income...............   126,000     102,000    24,000
  Nonrelated terminal income............    30,000      18,000    12,000
                                         -------------------------------
      Total.............................   156,000     120,000    36,000
------------------------------------------------------------------------


The liability of each shareholder is, pursuant to the agreement, 
discharged in part by the T Company crediting $12,000 against the rental 
due from each shareholder for a total discharge of liabilities of 
$36,000 (the net income from all sources), resulting in net shareholder 
liabilities owing to the T Company at the end of 1973 of $44,000 
($80,000 less $36,000): $23,000 from the X Company, $13,000 from the Y 
Company, and $8,000 from the Z Company.
    (ii) Effect on terminal railroad corporation. The reduced amount to 
which this section applies is $24,000 (related terminal income of $9,000 
from nonshareholders and $15,000 from shareholders). Thus, to the extent 
of $24,000, the T Company is not considered to have received or accrued 
income from the discharged liabilities of $36,000. Similarly, to the 
extent of the same $24,000, the T Company is not disallowed deductions 
for expenses merely by reason of the discharge. The T Company's taxable 
income for 1973 after application of section 281 is $12,000, computed as 
follows:

Gross income ($156,000 less $24,000).........................   $132,000
Less allowable deductions....................................    120,000
                                                              ----------
    Taxable income...........................................     12,000
 

    (iii) Effect on shareholders--The reduced amount of $24,000 shall 
not be deemed to constitute either a dividend to the shareholders of the 
T Company or an expense paid or incurred by them. Thus, under the facts 
described, neither the X Company, the Y Company, nor the Z Company shall 
be considered to have received or accrued a dividend of $8,000, or to 
have paid or incurred an expense of $8,000. Assuming the X Company's 
taxable income for 1973 before the application of section 281 would have 
been $43,200, computed in the following manner, its taxable income for 
1973 after the application of section 281 is $50,000, determined as 
follows:

------------------------------------------------------------------------
                                                 Before the   After the
                                                application  application
                                                of sec. 281  of sec. 281
------------------------------------------------------------------------
Gross income:
  From sources other than T Co................    $146,000     $146,000
  Dividend considered received because of T         12,000        4,000
   Co.'s discharge of liabilities of $12,000..
                                               -------------------------
    Total.....................................     158,000      150,000
                                               =========================
Less allowable deductions:
  From sources other than T Co................      69,600       69,600
  85 percent dividend received deduction under      10,200        3,400
   sec. 243 attributable to dividend
   considered received because of T Co.'s
   discharge of liabilities...................
  Expenses for accrued charges for related          35,000       27,000
   terminal services performed by T Co........
                                               -------------------------
                                                   114,800      100,000
                                               =========================
  Taxable income..............................      43,200       50,000
------------------------------------------------------------------------

    Example 2. Assume the same facts as in Example 1, except that the 
charges to each of the shareholders for related terminal services for 
1973 were as follows: $35,000 to the X Company, $40,000 to the Y 
Company, and $5,000 to the Z Company. Assume further that the Z Company, 
prior to the reduction in liabilities at the end of 1973, owed the T 
Company an additional $4,000 resulting from charges for 1972 for related 
terminal services and $6,000 resulting from the purchase of equipment. 
Since only $21,000 (X Company $8,000, Y Company $8,000, Z Company 
$5,000) of the liabilities which were discharged resulted from charges 
made for 1973 for related terminal services, the reduced amount to which 
this section applies is $21,000 (instead of $24,000 as in Example 1). 
Thus, the T Company's taxable income for 1973 would be $15,000 ($36,000 
less $21,000 reduced amount) and the amount which shall be considered 
not to have been received or accrued as a dividend nor paid or incurred 
as an expense of each shareholder is $8,000 for the X Company, $8,000 
for the Y Company, and $5,000 for the Z Company.
    Example 3. Assume the same facts as in Example 1, except that the 
allowable deductions with respect to nonrelated terminal activities were 
$39,000 instead of $18,000. The T Company's net income from all sources 
(before reduction for Federal income taxes) and its taxable income, 
before the application of section 281, is therefore $15,000, determined 
as follows:

------------------------------------------------------------------------
                                          Gross     Allowable    Income
                Source                    income   deductions  (or loss)
------------------------------------------------------------------------
Related terminal income...............   $126,000    $102,000    $24,000
Nonrelated terminal income............     30,000      39,000    (9,000)
                                       ---------------------------------
    Total.............................    156,000     141,000     15,000
------------------------------------------------------------------------


The liability of each shareholder is nevertheless discharged in part, 
pursuant to the agreement, by the T Company crediting $8,000 against the 
rental due from each shareholder for a total discharge of liabilities of 
$24,000 (the net income from each

[[Page 924]]

source of revenue that produced income). Assume further that none of the 
modifications specified in section 172(d) apply. If the limitation under 
paragraph (c)(4) of this section were not applied, the reduced amount 
for the purposes of this section would be $24,000, and the operation of 
this section would result in a net operating loss of $9,000, since the 
allowable deductions of $141,000 would exceed the gross income of 
$132,000 ($156,000 less discharged liabilities of $24,000) by that 
amount. Because of the limitation under paragraph (c)(4) of this 
section, however, $9,000 is not included in the reduced amount to which 
this section applies. Accordingly, the reduced amount is $15,000 
(instead of $24,000 as in Example 1). Thus, the T Company's taxable 
income for 1973 would be zero ($15,000 less the $15,000 reduced amount), 
and the amount which each shareholder shall be considered not to have 
received or accrued as a dividend nor paid or incurred as an expense is 
$5,000.
    Example 4. Assume the same facts as in Example 1, except that under 
the agreement income from the terminal parking lot would not reduce the 
shareholders' liabilities. Assume further that such income amounted to 
$3,000 of the total related terminal income of $24,000 for the taxable 
year 1973. The liability of each shareholder therefore is discharged by 
crediting $11,000 against its rental due for a total discharge of 
liabilities of $33,000. The reduced amount to which this section applies 
is $21,000 ($24,000 less $3,000) since only to the extent of $21,000 
would there have been no such reduction under the agreement if there 
were no related terminal income.
    Example 5. Assume the same facts as in Example 1, except that, 
pursuant to the agreement, the A Company, a nonshareholder railroad 
corporation, is to have its liabilities resulting from charges for 
rental obligations reduced equally with each of the shareholders. Assume 
further that the T Company's charges to the A Company for the calendar 
year 1973 included $15,000 for related terminal services and that the 
liability of each shareholder and the A Company is discharged in part 
pursuant to the agreement by the T Company crediting $9,000 against the 
rental due from each. The reduced amount to which this section applies 
is $24,000. Thus, the T Company's taxable income for 1973 is $12,000, 
and each shareholder shall not be considered to have received or accrued 
as a dividend nor paid or incurred as an expense $6,000 ($24,000/ 
$36,000 x $9,000) merely because of the discharge of its own liability. 
Similarly, each shareholder shall not be considered to have received or 
accrued as a dividend nor paid or incurred as an expense $2,000 (1/3 x 
($24,000/$36,000 x $9,000)) merely because of the discharge of the 
liability of the A Company. Section 281 does not apply to the 
determination of the tax consequences of the transaction to the A 
Company. Similarly, the section does not apply to the determination of 
the tax consequences to the shareholders resulting from that portion of 
the discharge of the liability of the A Company which is attributable to 
the application of income which is not related terminal income ($3,000). 
Hence, such consequences shall be determined under the sections of the 
Internal Revenue Code which govern in the absence of section 281.
    Example 6. (i) Facts. The TR Company is a terminal railroad 
corporation with three equal shareholders, the M, N, and O Railroad 
Corporations. The TR Company and each of its shareholders report income 
on the calendar year basis. Pursuant to a written agreement entered into 
in 1947 to which all shareholders were parties, the TR Company makes one 
annual charge to each of the three shareholders at the end of each year 
for the difference between the cost of operations, allocated on a 
wheelage or user basis for the use of its services and facilities 
provided to the shareholder during the year, and one-third of its net 
income from all other sources (computed before reduction for Federal 
income taxes). The TR Company's taxable income, before the application 
of section 281, for 1973 is $21,000 determined as follows:

------------------------------------------------------------------------
                                          Gross     Allowable    Income
                Source                    income   deductions  (or loss)
------------------------------------------------------------------------
Related terminal services performed:
    For shareholders..................    $65,000     $65,000          0
    For nonshareholders...............     46,000      37,000     $9,000
                                       ---------------------------------
Related terminal income...............    111,000     102,000      9,000
Nonrelated terminal income from            30,000      18,000     12,000
 nonshareholders......................
                                       ---------------------------------
    Total.............................    141,000     120,000     21,000
------------------------------------------------------------------------


For the calendar year 1973, the TR company's charges to its shareholders 
are $23,000 ($30,000 less $7,000) to the M company, $13,000 ($20,000 
less $7,000) to the N company, and $8,000 ($15,000 less $7,000) to the O 
company for a total of $44,000 for related terminal services.
    (ii) Effect on terminal railroad corporation. The reduced amount to 
which this section applies is $9,000. The TR company is not considered 
to have received or accrued income of $9,000 (related terminal income) 
merely because the charge of $21,000 (net income from all sources other 
than shareholders) was not made. Similarly, to the extent of $9,000, the 
TR company is not disallowed deductions for expenses merely because the 
full cost of services was not charged. The TR company's taxable income 
for 1973 after application of section 281, is $12,000, computed as 
follows:

[[Page 925]]



Gross income ($141,000 less $9,000 charges not made).........   $132,000
Less allowable deductions....................................    120,000
                                                              ----------
  Taxable income.............................................     12,000
 

    (iii) Effect on shareholders. Neither the M company, the N company, 
nor the O company shall be considered to have received or accrued a 
dividend of $3,000 nor to have paid or incurred an expense of $3,000 
merely by reason of the reduced charges. Thus, assuming the M company's 
taxable income for 1973 before the application of section 281 would have 
been $47,450, computed in the following manner, its taxable income for 
1973 after the application of section 281 is $50,000, determined as 
follows:

------------------------------------------------------------------------
                                                 Before the   After the
                                                application  application
                                                of sec. 281  of sec. 281
------------------------------------------------------------------------
Gross income:
  From sources other than TR Co...............    $146,000     $146,000
  Dividend considered received because of TR         7,000        4,000
   Co.'s reduction of charges.................
                                               -------------------------
    Total.....................................     153,000      150,000
                                               =========================
Less allowable deductions:
  From sources other than TR Co...............      69,600       69,600
85 percent dividend received deduction under         5,950        3,400
 sec. 243 attributable to dividend considered
 received because of TR Co.'s reduction of
 charges......................................
Expenses for accrued charges for related            30,000       27,000
 terminal services performed by TR Co.........
                                               -------------------------
                                                   105,550      100,000
                                               =========================
  Taxable income..............................      47,450       50,000
------------------------------------------------------------------------


[T.D. 7356, 40 FR 23733, June 2, 1975]



Sec. 1.281-3  Definitions.

    (a) Terminal railroad corporation. The term terminal railroad 
corporation means a corporation which, in the taxable year, meets all of 
the following conditions:
    (1) The corporation and each of its shareholders must be domestic 
corporations. Thus, all of the shareholders of the corporation, as well 
as the corporation itself, must be corporations which were organized or 
created in the United States, including only the States and the District 
of Columbia, or under the law of the United States or of any State or 
territory.
    (2) All of the shareholders must be railroad corporations which are 
subject to Part I of the Interstate Commerce Act. Thus, if any 
shareholder of the corporation, regardless of the class or percentage of 
stock owned, is not subject to the jurisdiction of the Interstate 
Commerce Commission under part I of that Act, the corporation cannot 
qualify as a terminal railroad corporation.
    (3) The corporation must not be a member of an affiliated group of 
corporations (as defined in section 1504), other than as a common parent 
corporation. For this purpose it is immaterial whether or not the 
affiliated group has ever made a consolidated income tax return. Thus, 
if the X railroad corporation owns 80 percent of all of the outstanding 
stock of the Y railroad corporation, the X railroad corporation may 
qualify, but the Y railroad corporation cannot qualify, as a terminal 
railroad corporation.
    (4) The primary business of the corporation must be that of 
providing to domestic railroad corporations subject to Part I of the 
Interstate Commerce Act and to the shippers and passengers of such 
railroad corporations one or more of the following facilities or 
services: (i) Railroad terminal facilities, (ii) railroad switching 
facilities, (iii) railroad terminal services, or (iv) railroad switching 
services. The designated facilities and services include the furnishing 
of terminal trackage, the operation of stockyards or a union passenger 
or freight station, and the operation of railroad bridges and ferries. 
The providing of the designated facilities includes the leasing of those 
facilities. A corporation shall be considered as having established that 
its primary business is that of providing the designated facilities and 
services if more than 50 percent of its gross income (computed without 
regard to section 281, and excluding dividends and gains and losses from 
the disposition of capital assets or property described in section 
1231(b)) for the taxable year is derived from those sources. The fact 
that income from a service or facility is included within the definition 
of related terminal income is immaterial for purposes of determining 
whether that service or facility is one which is designated in this 
subparagraph. Thus, although income from the operation of a commuter 
railroad line may be related

[[Page 926]]

terminal income, a corporation whose primary business is the operation 
of that facility is not a terminal railroad corporation, since its 
primary business is not the providing of the designated facilities or 
services.
    (5) A substantial part of the services rendered by the corporation 
for the taxable year must be rendered to one or more of its 
shareholders. For purposes of this requirement, providing the use of 
facilities shall be considered the rendering of services.
    (6) Each shareholder of the corporation must compute its taxable 
income on the basis of a taxable year which either begins or ends on the 
same day as the taxable year of the corporation.
    (b) Related terminal income--(1) In general. Related terminal income 
is, generally, the type of income normally earned from the operation of 
a railroad terminal. The term related terminal income means the taxable 
income (computed without regard to sections 172, 277, or 281) which the 
terminal railroad corporation derives for the taxable year from the 
sources enumerated in paragraph (b)(2) of this section. Related terminal 
income must be derived from direct provision of the specified facilities 
or services by the terminal corporation itself. Thus, income consisting 
of rent from a lease of a terminal facility by a terminal corporation to 
a railroad user would qualify; but dividends from a corporation in which 
the terminal corporation owned stock and which provided such facilities 
or services to others would not qualify. The term does not include gain 
or loss derived from the sale, exchange, or other disposition of capital 
assets or section 1231 assets, whether or not section 1245 or section 
1250 applies to part or all of that gain. For example, the term does not 
apply to gain from the sale of a terminal building or terminal 
equipment. All direct and indirect expenses and other deductible items 
attributable to related terminal services or facilities shall be 
deducted in determining related terminal income. Attribution shall be 
determined in accordance with customary railroad accounting practices 
accepted by the Interstate Commerce Commission, except that interest 
paid with respect to the indebtedness of a terminal railroad corporation 
shall be deducted from related terminal income to the extent that the 
proceeds from the indebtedness were directly or indirectly applied to 
facilities or activities producing such income. The district director 
may either accept the use of the taxpayer's method of determining the 
application of the proceeds of all indebtedness of such corporation or 
prescribe the use of another method which, under all the facts and 
circumstances, appears to reflect more accurately the probable 
application of such proceeds.
    (2) Sources of related terminal income. The term related terminal 
income includes only income derived from one or more of the following 
sources:
    (i) From services or facilities of a character ordinarily and 
regularly provided by terminal railroad corporations for railroad 
corporations or for the employees, passengers, or shippers of railroad 
corporations. Whether the services or facilities are of a character 
ordinarily and regularly provided by terminal railroad corporations is 
to be determined by accepted industry practice. The fact that 
nonterminal businesses may also provide such services or facilities is 
immaterial. However, there must be a direct relationship between the 
service or facility provided and the operation of the terminal, 
including the operation of its trackage and switching facilities. Thus, 
the term related terminal income includes income derived from operating 
or leasing switching facilities and terminal facilities, such as income 
from charges to railroad corporations for the use of a union passenger 
or freight station. Also included for this purpose is income derived 
from charges to railroad shippers, including express companies and 
freight forwarders, for the use of sheds or warehouses, even though not 
directly intended for railroad use. The term includes income derived 
from leasing or operating restaurants, drugstores, barbershops, 
newsstands, ticket agencies, banking facilities, car rental facilities, 
or other similar facilities for passengers, in waiting rooms or along 
passenger concourses. Similarly, the term includes income derived from 
operating or leasing passenger parking facilities, and from renting 
taxicab space, located on or adjacent to the

[[Page 927]]

terminal premises. Although the term does include income derived from 
the operation of a small hotel operated primarily for and usually 
occupied primarily by the employees of the railroad corporations, it 
does not include income derived from the operation of a hotel for 
passengers or other persons.
    (ii) From any railroad corporation for services or facilities 
provided by the terminal railroad corporation in connection with 
railroad operations. A service or a facility is provided in connection 
with railroad operations if it is of a character ordinarily and 
regularly availed of by railroad corporations. For purposes of this 
subdivision, the income must be derived from railroad corporations. 
Thus, in addition to the income derived from sources described in 
paragraph (b)(2)(i) of this section, the term related terminal income 
includes income derived from switching facilities or leasing to any 
railroad corporation, or operating for the benefit of such corporation, 
a beltline or bypass railroad leading to or from the terminal premises. 
Also included are income derived from the rental of office space 
(whether or not services are provided to the occupants) in the terminal 
building to any railroad corporation for that corporation's 
administrative or operating divisions, and income derived from tolls 
charged to any railroad corporation for the use of a railroad bridge or 
ferry.
    (iii) From the use by persons other than railroad corporations of a 
portion of a facility, or of a service, which is used primarily for 
railroad purposes. A facility or service is used primarily for railroad 
purposes if the predominant reason for its continued operation or 
provision is the furnishing of facilities or services described in 
either subdivision (i) or (ii) of this subparagraph. The determination 
required by this subdivision is to be made independently for each 
separate facility or service. Two substantial portions of a single 
structure may be considered separate facilities, depending upon the 
respective uses made of each. Moreover, any substantial addition, 
constructed after October 23, 1962, to a facility shall be considered a 
separate facility.

The term related terminal income includes income produced by operating a 
commuter service or by renting tracks and facilities for a commuter 
service to an independent operator. The term also includes the sale or 
rental of advertising space at a terminal facility. If the conditions 
described in this subdivision are satisfied, the term related terminal 
income may include income which has no connection with the operation of 
the terminal. Thus, if a terminal railroad corporation operates a 
railroad bridge primarily to provide railroad corporations a means of 
crossing a river and the lower level of the bridge contains a roadway 
for similar use by automobiles, the term includes income derived from 
the tolls charged to the automobiles for the use of the bridge roadway. 
However, upon the discontinuance of operations of the railroad level of 
the bridge, the term would cease to include the automobile tolls. If 
excess steam from a steam plant operated primarily to supply steam to 
the terminal is sold to another business in the neighborhood, the term 
would include the income derived from such sale. However, because an oil 
or gas well or a mine constitutes a separate facility, the term related 
terminal income does not include income derived in any form from a 
deposit of oil, natural gas, or any other mineral located on property 
owned or leased by the terminal railroad corporation.

Similarly, while the term includes income derived from the rental of a 
small number of offices located in the terminal building (whether or not 
the lessees are railroad corporations), it does not include income 
derived from the leasing or operation, for the use of the general 
public, of a large number of offices or a large number of rooms for 
lodging, whether or not the space is physically part of the same 
structure as the terminal. Moreover, the term does not include income 
derived from the rental of offices to the general public in an addition 
to the terminal building constructed after October 23, 1962, unless the 
addition is primarily used for railroad purposes and the offices rented 
to the general public do not constitute a separate facility in the 
addition. Whether or not income from the addition is determined to be 
related terminal income, the income from the

[[Page 928]]

small number of offices which were included in the terminal building 
before the addition was constructed shall continue to be related 
terminal income.
    (iv) From the United States in payment for facilities or services in 
connection with mail handling. The income must be derived directly from 
the U.S. Government, or any agency thereof (including for this purpose 
the U.S. Postal Service), through the receipt of payments for mail-
handling facilities or services. Thus, the term would include income 
derived from the rental of space for a post office for use by the 
general public on the terminal premises or from the sorting of mail in a 
railroad box car.
    (3) Illustration. The provisions of this paragraph may be 
illustrated by the following example:

    Example. For its calendar year 1973, the R Company, a terminal 
railroad corporation, has taxable income of $36,000, before the 
application of section 281 and taking no account of section 277, 
determined as follows:

Gross income:
  Switching charges.........................................     $50,000
  Express companies.........................................       2,000
  Commuter line.............................................       4,000
  U.S. mail handling........................................       4,000
  Railroad bridge tolls:....................................
    From railroads..........................................       2,000
    From automobiles........................................       1,000
                                                             -----------
      Total.................................................       3,000
  Station and train charges.................................      47,000
  Terminal parking lot......................................       4,000
  Rent from terminal building:
    Passenger facilities (ground level).....................       8,000
    Offices leased to railroads (2d floor)..................       3,000
    Offices leased to others (2d floor).....................       1,000
    Hotel open to public (3d through 6th floors)............      14,000
      Total.................................................      26,000
  Interest received from bond investments...................       1,500
  Dividends received from wholly owned subsidiary...........      10,000
  Amount realized from sale of equipment....................       6,000
  Less:
    Adjusted basis..........................................       1,000
    Expenses of sale........................................         500
                                                             -----------
                                                                   1,500
                                                             -----------
                                                                   4,500
                                                             -----------
                                                                 156,000
Allowable deductions:
  Dividend received deduction...............................       8,500
  Interest paid:
    On loan for hotel furnishings...........................       1,500
    On loan for rolling stock...............................       2,000
                                                             -----------
                                                                   3,500
  Maintenance, depreciation, management and other expenses:
    Attributable to hotel...................................       3,000
    Attributable to parking lot.............................       1,000
    Attributable to U.S. mail handling......................       1,000
    All other...............................................      98,000
                                                             -----------
                                                                 103,000
  Loss from sale of securities..............................       3,000
  Charitable contribution...................................         500
  Net operating loss deduction..............................       1,500
                                                             -----------
                                                                 120,000
                                                             -----------
  Taxable income before the application of sec. 281.........      36,000
                                                             ===========
  The R Co.'s related terminal income for 1973 is $24,000,
   computed as follows:
  Taxable income (before the application of sec. 281).......      36,000
  Less:
    Dividend received.......................................      10,000
    Minus dividend received deduction.......................       8,500
                                                             -----------
                                                                   1,500
  Interest received.........................................       1,500
  Amount realized from sale of equipment....................       6,000
  Less:
    Adjusted basis..........................................       1,000
    Expense of sale.........................................         500
                                                             -----------
                                                                   1,500
                                                             -----------
                                                                   4,500
  Hotel income..............................................      14,000
  Less:
    Interest paid on loan for hotel.........................       1,500
    Other hotel expenses....................................       3,000
                                                             -----------
                                                                   4,500
                                                             -----------
                                                                   9,500
                                                             -----------
                                                                  17,000
                                                             -----------
                                                                  19,000
  Add:
    Loss from sale of securities............................       3,000
    Charitable contribution.................................         500
    Net operating loss deduction............................       1,500
                                                                   5,000
                                                             -----------
  Related terminal income...................................      24,000
                                                             ===========
 

    (c) Related terminal services. The term related terminal services 
means only the services or the use of facilities, provided by the 
terminal railroad corporation, which are taken into account in computing 
related terminal income. Thus, the term includes the providing of 
terminal and switching services, the furnishing of terminal and 
switching facilities including the furnishing of terminal trackage, and 
the operation of bridges and ferries for railroad purposes. For example, 
upon the facts of the example in the preceding paragraph, the charges 
for related terminal services are $126,000, determined as follows:

Switching charges...........................................     $50,000
Express companies...........................................       2,000
Commuter line...............................................       4,000

[[Page 929]]

 
U.S. mail handling..........................................       4,000
Railroad bridge tolls.......................................       3,000
Station and train charges...................................      47,000
Terminal parking lot........................................       4,000
Rent from:
  Passenger facilities......................................       8,000
  Offices...................................................       4,000
                                                             -----------
    Total...................................................     126,000
 

    (d) Agreement. As used in section 281 and Sec. 1.281-2 the term 
agreement means a written contract, entered into before the beginning of 
the terminal railroad corporation's taxable year in question, to which 
all shareholders of the terminal railroad corporation are parties. The 
fact that other railroad corporations or persons are also parties will 
not disqualify an agreement. Section 281 applies only if, and to the 
extent that, the reduction of the liability or charge that would be 
made, as described in paragraph (c) of Sec. 1.281-2, results from the 
agreement. Thus, where the other conditions of the statute are met, 
section 281 applies if a written agreement, to which all of the 
shareholders were parties and which was entered into prior to the 
beginning of the terminal railroad corporation's taxable year, provides 
that the net revenues of the terminal railroad corporation are to be 
applied as a reduction of what would otherwise be the charge for the 
taxable year for related terminal services provided to the shareholders. 
Similarly, section 281 applies, where its other requirements are 
fulfilled, if the agreement provides that the net revenues are to be 
credited against rental obligations resulting from related terminal 
services furnished to shareholders. However, section 281 does not apply 
where the agreement provides that the net revenues are to be divided 
among the shareholders and distributed to them in cash or held subject 
to their unconditional right of withdrawal instead of being applied to 
the computation of charges, or in reduction of liabilities incurred, for 
related terminal services.
    (e) Railroad corporation. For purposes of section 281, Sec. 1.281-
2, and this section, the term railroad corporation means any corporation 
(regardless of whether it is a shareholder of the terminal railroad 
corporation) that is engaged as a common carrier in the furnishing or 
sale of transportation by railroad, or is a lessor of railroad equipment 
or facilities. For purposes of the preceding sentence, a corporation is 
a lessor of railroad equipment or facilities only if (1) it is subject 
to part I of the Interstate Commerce Act, (2) substantially all of its 
railroad properties have been leased to a railroad corporation or 
corporations, (3) each lease is for a term of more than 20 years, and 
(4) 80 percent or more of its gross income for the taxable year is 
derived for such leases.

[T.D. 7356, 40 FR 23735, June 2, 1975]



Sec. 1.281-4  Taxable years affected.

    (a) In general. Except as provided in paragraph (b) of this section, 
the provisions of section 281 and Sec. Sec. 1.281-2 and 1.281-3 shall 
apply to all taxable years to which either the Internal Revenue Code of 
1954 or the Internal Revenue Code of 1939 apply.
    (b) Taxable years ending before October 23, 1962. (1)(i) In the case 
of a taxable year of a terminal railroad corporation ending before 
October 23, 1962, section 281 (a) shall apply only to the extent that 
the terminal railroad corporation (a) computed its taxable income on its 
return for such taxable year as if the ``reduced amount'', described in 
paragraph (c) of Sec. 1.281-2, were not received or accrued, and (b) 
did not decrease its otherwise allowable deductions for such taxable 
year on account of that ``reduced amount''. Similarly, in the case of a 
taxable year of a shareholder of a terminal railroad corporation ending 
before October 23, 1962, section 281(b) shall apply only to the extent 
that such shareholder computed its taxable income on its return for such 
taxable year as if the shareholder had neither received or accrued as a 
dividend nor paid or incurred as an expense the ``reduced amount'' 
described in paragraph (c) of Sec. 1.281-2. Such return must have been 
filed on or before the due date (including the period of any extension 
of time) for filing the return for the applicable taxable year. The fact 
that an amended return or claim for refund or credit of overpayment was 
subsequently filed, or a deficiency subsequently assessed, based upon a 
computation of taxable income which is inconsistent with the manner in 
which the taxable income was computed on the timely filed return, is 
immaterial.

[[Page 930]]

    (ii) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. The G Company is a terminal railroad corporation which in 
1960 reduced the liabilities resulting from charges to its shareholders, 
pursuant to a 1947 written agreement, by its income from nonshareholder 
sources. For the calendar year 1960, the G Company's related terminal 
income was $24,000, of which $3,000 is attributable to income from the 
United States in payment for facilities and services in connection with 
mail handling. Although the shareholders' liabilities were reduced by 
$24,000 as a result of taking related terminal income earned during the 
taxable year into account, on its timely filed 1960 income tax return 
the G Company treated the $3,000 of liabilities which were reduced on 
account of income from mail handling as gross income received or accrued 
during the year. Assuming that the provisions of Sec. 1.281-2 otherwise 
apply, their application to the determination of the 1960 tax liability 
of the G Company shall not extend to the entire ``reduced amount'' of 
$24,000, but shall be limited to $21,000 of that amount.
    Example 2. Assume the same facts as in Example 1, and the following 
additional facts. The G Company had three shareholders in 1960, and an 
equal discharge of liability of $8,000 resulted for each of them on 
account of related terminal income. Each shareholder treated, on its 
timely filed 1960 income tax return, $1,000 of its liabilities, which 
were so reduced and were attributable to income from the United States 
in payment for facilities and services in connection with mail handling, 
as if it had received $1,000 from the G Company as a dividend and paid 
that $1,000 to the G Company for services. Each shareholder treated the 
remaining $7,000 of its liabilities which were so reduced as if the 
liabilities which were reduced had never been incurred. Assuming that 
the provisions of Sec. 1.281-2 otherwise apply, each shareholder shall 
not be considered to have received or accrued as a dividend, nor to have 
paid or incurred as an expense $7,000 (instead of $8,000).

    (2) For any taxable year of a terminal railroad corporation ending 
before October 23, 1962, a claim for refund or credit of overpayment of 
income tax based upon section 281 may be filed, even though such refund 
or credit of overpayment was otherwise barred by operation of any law or 
rule of law on October 23, 1962, subject to the conditions set forth in 
paragraph (b)(2)(i) through (v) of this section.
    (i) The claim for refund or credit of overpayment must not have been 
barred by a closing agreement (under either section 3760 of the Internal 
Revenue Code of 1939 or section 7121 of the Internal Revenue Code of 
1954), or by a compromise (under section 3761 of the Internal Revenue 
Code of 1939 or section 7122 of the Internal Revenue Code of 1954);
    (ii) The claim for refund or credit of overpayment shall be allowed 
only to the extent that the overpayment of income tax results from the 
recomputation of the terminal railroad corporation's taxable income in 
the manner described in paragraph (a) of Sec. 1.281-2;
    (iii) The claim for refund or credit of the overpayment must have 
been filed prior to October 23, 1963;
    (iv) The claim for refund or credit of overpayment shall be allowed 
only to the extent that the manner in which the terminal railroad 
corporation's taxable income is recomputed is the manner in which the 
terminal railroad corporation's taxable income was computed on its 
timely filed income tax return for such taxable year; and
    (v) Each railroad corporation which was a shareholder of the 
terminal railroad corporation during such taxable year must consent in 
writing to the assessment, within such period as may be agreed upon with 
the district director, of any deficiency for any year (even though 
assessment of the deficiency would otherwise be prevented by the 
operation of any law or rule of law at the time of filing the consent) 
to the extent that:
    (A) The deficiency is attributable to the recomputation of the 
shareholder's taxable income in the manner described in paragraph (b) of 
Sec. 1.281-2, and
    (B) The deficiency results from the shareholder's allocable portion 
of the ``reduced amount'' (described in paragraph (c) of Sec. 1.281-2) 
which gives rise to the refund or credit granted to the terminal 
railroad corporation under this subparagraph.

[T.D. 7356, 40 FR 23737, June 2, 1975]



Sec. Sec. 1.282-1.300  [Reserved]

[[Page 931]]



                              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 933]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2013)

                      Title 1--General Provisions

 Chapter I  Administrative Committee of the Federal Register 
                (Parts 1--49)
Chapter II  Office of the Federal Register (Parts 50--299)
  Chapter 
       III  Administrative Conference of the United States (Parts 
                300--399)
Chapter IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
 Chapter I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
Chapter II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
  Chapter 
       III  Department of Health and Human Services (Parts 300-- 
                399)
Chapter IV  Department of Agriculture (Parts 400--499)
Chapter VI  Department of State (Parts 600--699)
  Chapter 
       VII  Agency for International Development (Parts 700--799)
  Chapter 
      VIII  Department of Veterans Affairs (Parts 800--899)
Chapter IX  Department of Energy (Parts 900--999)
Chapter XI  Department of Defense (Parts 1100--1199)
  Chapter 
       XII  Department of Transportation (Parts 1200--1299)
  Chapter 
      XIII  Department of Commerce (Parts 1300--1399)
  Chapter 
       XIV  Department of the Interior (Parts 1400--1499)
Chapter XV  Environmental Protection Agency (Parts 1500--1599)
  Chapter 
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
Chapter XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
  Chapter 
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
  Chapter 
     XXIII  Social Security Administration (Parts 2300--2399)
  Chapter 
      XXIV  Housing and Urban Development (Parts 2400--2499)
  Chapter 
       XXV  National Science Foundation (Parts 2500--2599)
  Chapter 
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 934]]

  Chapter 
     XXVII  Small Business Administration (Parts 2700--2799)
  Chapter 
    XXVIII  Department of Justice (Parts 2800--2899)
  Chapter 
       XXX  Department of Homeland Security (Parts 3000--3099)
  Chapter 
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
  Chapter 
     XXXII  National Endowment for the Arts (Parts 3200--3299)
  Chapter 
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
  Chapter 
     XXXIV  Department of Education (Parts 3400--3499)
  Chapter 
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
  Chapter 
    XXXVII  Peace Corps (Parts 3700--3799)
  Chapter 
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

 Chapter I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

 Chapter I  Government Accountability Office (Parts 1--199)
Chapter II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   Title 5--Administrative Personnel

 Chapter I  Office of Personnel Management (Parts 1--1199)
Chapter II  Merit Systems Protection Board (Parts 1200--1299)
  Chapter 
       III  Office of Management and Budget (Parts 1300--1399)
 Chapter V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
Chapter VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
  Chapter 
      VIII  Office of Special Counsel (Parts 1800--1899)
Chapter IX  Appalachian Regional Commission (Parts 1900--1999)
Chapter XI  Armed Forces Retirement Home (Parts 2100--2199)
  Chapter 
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
Chapter XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
  Chapter 
       XVI  Office of Government Ethics (Parts 2600--2699)
  Chapter 
       XXI  Department of the Treasury (Parts 3100--3199)
  Chapter 
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)

[[Page 935]]

  Chapter 
     XXIII  Department of Energy (Parts 3300--3399)
  Chapter 
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
  Chapter 
       XXV  Department of the Interior (Parts 3500--3599)
  Chapter 
      XXVI  Department of Defense (Parts 3600-- 3699)
  Chapter 
    XXVIII  Department of Justice (Parts 3800--3899)
  Chapter 
      XXIX  Federal Communications Commission (Parts 3900--3999)
  Chapter 
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
  Chapter 
      XXXI  Farm Credit Administration (Parts 4100--4199)
  Chapter 
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
  Chapter 
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
  Chapter 
      XXXV  Office of Personnel Management (Parts 4500--4599)
  Chapter 
    XXXVII  Federal Election Commission (Parts 4700--4799)
Chapter XL  Interstate Commerce Commission (Parts 5000--5099)
  Chapter 
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
  Chapter 
      XLII  Department of Labor (Parts 5200--5299)
  Chapter 
     XLIII  National Science Foundation (Parts 5300--5399)
  Chapter 
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
  Chapter 
      XLVI  Postal Rate Commission (Parts 5600--5699)
  Chapter 
     XLVII  Federal Trade Commission (Parts 5700--5799)
  Chapter 
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
  Chapter 
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
 Chapter L  Department of Transportation (Parts 6000--6099)
  Chapter 
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
  Chapter 
      LIII  Department of Education (Parts 6300--6399)
  Chapter 
       LIV  Environmental Protection Agency (Parts 6400--6499)
Chapter LV  National Endowment for the Arts (Parts 6500--6599)
  Chapter 
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
  Chapter 
      LVII  General Services Administration (Parts 6700--6799)
  Chapter 
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
  Chapter 
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
Chapter LX  United States Postal Service (Parts 7000--7099)
  Chapter 
       LXI  National Labor Relations Board (Parts 7100--7199)
  Chapter 
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
  Chapter 
     LXIII  Inter-American Foundation (Parts 7300--7399)
  Chapter 
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
  Chapter 
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)

[[Page 936]]

  Chapter 
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
  Chapter 
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
  Chapter 
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
  Chapter 
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
  Chapter 
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
  Chapter 
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
  Chapter 
    LXXIII  Department of Agriculture (Parts 8300--8399)
  Chapter 
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
  Chapter 
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
  Chapter 
    LXXVII  Office of Management and Budget (Parts 8700--8799)
  Chapter 
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
  Chapter 
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)
  Chapter 
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
  Chapter 
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
  Chapter 
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
  Chapter 
     XCVII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)

                      Title 6--Domestic Security

 Chapter I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
 Chapter I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
Chapter II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
  Chapter 
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
Chapter IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)

[[Page 937]]

 Chapter V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
Chapter VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
  Chapter 
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
  Chapter 
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
Chapter IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
 Chapter X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
Chapter XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
  Chapter 
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
Chapter XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
  Chapter 
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
  Chapter 
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
  Chapter 
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
Chapter XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
  Chapter 
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
  Chapter 
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
  Chapter 
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
  Chapter 
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
  Chapter 
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
  Chapter 
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
  Chapter 
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
  Chapter 
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
  Chapter 
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
  Chapter 
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
  Chapter 
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)

[[Page 938]]

  Chapter 
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
  Chapter 
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
  Chapter 
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
  Chapter 
       XLI  [Reserved]
  Chapter 
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

 Chapter I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
 Chapter V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

 Chapter I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
Chapter II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
  Chapter 
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

 Chapter I  Nuclear Regulatory Commission (Parts 0--199)
Chapter II  Department of Energy (Parts 200--699)
  Chapter 
       III  Department of Energy (Parts 700--999)
 Chapter X  Department of Energy (General Provisions) (Parts 
                1000--1099)
  Chapter 
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
  Chapter 
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
  Chapter 
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

 Chapter I  Federal Election Commission (Parts 1--9099)
Chapter II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

 Chapter I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
Chapter II  Federal Reserve System (Parts 200--299)
  Chapter 
       III  Federal Deposit Insurance Corporation (Parts 300--399)

[[Page 939]]

Chapter IV  Export-Import Bank of the United States (Parts 400--
                499)
 Chapter V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
Chapter VI  Farm Credit Administration (Parts 600--699)
  Chapter 
       VII  National Credit Union Administration (Parts 700--799)
  Chapter 
      VIII  Federal Financing Bank (Parts 800--899)
Chapter IX  Federal Housing Finance Board (Parts 900--999)
 Chapter X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
Chapter XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
  Chapter 
       XII  Federal Housing Finance Agency (Parts 1200--1299)
  Chapter 
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
  Chapter 
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
Chapter XV  Department of the Treasury (Parts 1500--1599)
  Chapter 
       XVI  Office of Financial Research (Parts 1600--1699)
  Chapter 
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
  Chapter 
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

 Chapter I  Small Business Administration (Parts 1--199)
  Chapter 
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
Chapter IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
 Chapter V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

 Chapter I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
Chapter II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
  Chapter 
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
 Chapter V  National Aeronautics and Space Administration (Parts 
                1200--1299)
Chapter 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
 Chapter I  Bureau of the Census, Department of Commerce (Parts 
                30--199)

[[Page 940]]

Chapter II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
  Chapter 
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
Chapter IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
  Chapter 
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
  Chapter 
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
Chapter IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
Chapter XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
  Chapter 
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
  Chapter 
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
Chapter XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
  Chapter 
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

 Chapter I  Federal Trade Commission (Parts 0--999)
Chapter II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

 Chapter I  Commodity Futures Trading Commission (Parts 1--199)
Chapter II  Securities and Exchange Commission (Parts 200--399)
Chapter IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

 Chapter I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
  Chapter 
       III  Delaware River Basin Commission (Parts 400--499)
Chapter VI  Water Resources Council (Parts 700--799)
  Chapter 
      VIII  Susquehanna River Basin Commission (Parts 800--899)
  Chapter 
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

 Chapter I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)

[[Page 941]]

Chapter II  United States International Trade Commission (Parts 
                200--299)
  Chapter 
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
Chapter IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

 Chapter I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
Chapter II  Railroad Retirement Board (Parts 200--399)
  Chapter 
       III  Social Security Administration (Parts 400--499)
Chapter IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
 Chapter V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
Chapter VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
  Chapter 
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
  Chapter 
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
Chapter IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

 Chapter I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
Chapter II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
  Chapter 
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

 Chapter I  Department of State (Parts 1--199)
Chapter II  Agency for International Development (Parts 200--299)
  Chapter 
       III  Peace Corps (Parts 300--399)
Chapter IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
 Chapter V  Broadcasting Board of Governors (Parts 500--599)
  Chapter 
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
Chapter IX  Foreign Service Grievance Board (Parts 900--999)
 Chapter X  Inter-American Foundation (Parts 1000--1099)
Chapter XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
  Chapter 
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
  Chapter 
      XIII  Millennium Challenge Corporation (Parts 1300--1399)

[[Page 942]]

  Chapter 
       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)
Chapter XV  African Development Foundation (Parts 1500--1599)
  Chapter 
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
  Chapter 
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

 Chapter I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
Chapter II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
  Chapter 
       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
 Chapter I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
Chapter II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
  Chapter 
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
Chapter IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
 Chapter V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
Chapter VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
  Chapter 
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
  Chapter 
      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)
Chapter IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)

[[Page 943]]

 Chapter X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
  Chapter 
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
Chapter XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
Chapter XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
  Chapter 
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
  Chapter 
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

 Chapter I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
Chapter II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
  Chapter 
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
Chapter IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
 Chapter V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
Chapter VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
  Chapter 
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

 Chapter I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

 Chapter I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
Chapter II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

 Chapter I  Department of Justice (Parts 0--299)
  Chapter 
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
 Chapter V  Bureau of Prisons, Department of Justice (Parts 500--
                599)

[[Page 944]]

Chapter VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
  Chapter 
       VII  Office of Independent Counsel (Parts 700--799)
  Chapter 
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
Chapter IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
Chapter 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
 Chapter I  National Labor Relations Board (Parts 100--199)
Chapter II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
  Chapter 
       III  National Railroad Adjustment Board (Parts 300--399)
Chapter IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
 Chapter V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
Chapter IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
 Chapter X  National Mediation Board (Parts 1200--1299)
  Chapter 
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
  Chapter 
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
  Chapter 
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
Chapter XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
  Chapter 
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
  Chapter 
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
Chapter XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

 Chapter I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
Chapter II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
Chapter IV  Geological Survey, Department of the Interior (Parts 
                400--499)
 Chapter V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
  Chapter 
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
  Chapter 
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

[[Page 945]]

                 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
 Chapter I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
Chapter II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
Chapter IV  Secret Service, Department of the Treasury (Parts 
                400--499)
 Chapter V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
Chapter VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
  Chapter 
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
  Chapter 
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
Chapter IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
 Chapter X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
 Chapter I  Office of the Secretary of Defense (Parts 1--399)
 Chapter V  Department of the Army (Parts 400--699)
Chapter VI  Department of the Navy (Parts 700--799)
  Chapter 
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
  Chapter 
       XII  Defense Logistics Agency (Parts 1200--1299)
  Chapter 
       XVI  Selective Service System (Parts 1600--1699)
  Chapter 
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
  Chapter 
     XVIII  National Counterintelligence Center (Parts 1800--1899)
  Chapter 
       XIX  Central Intelligence Agency (Parts 1900--1999)
Chapter XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
  Chapter 
       XXI  National Security Council (Parts 2100--2199)
  Chapter 
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
  Chapter 
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
  Chapter 
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

 Chapter I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
Chapter II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 946]]

Chapter 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
 Chapter I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
Chapter II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
  Chapter 
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
Chapter IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
 Chapter V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
Chapter VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
  Chapter 
       VII  Office of Educational Research and Improvement, 
                Department of Education (799--799) [Reserved]
Chapter XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
  Chapter 
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

 Chapter I  National Park Service, Department of the Interior 
                (Parts 1--199)
Chapter II  Forest Service, Department of Agriculture (Parts 200--
                299)
  Chapter 
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
Chapter IV  American Battle Monuments Commission (Parts 400--499)
 Chapter V  Smithsonian Institution (Parts 500--599)
Chapter VI  [Reserved]
  Chapter 
       VII  Library of Congress (Parts 700--799)
  Chapter 
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
Chapter IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
 Chapter X  Presidio Trust (Parts 1000--1099)
Chapter XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
  Chapter 
       XII  National Archives and Records Administration (Parts 
                1200--1299)
Chapter XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
  Chapter 
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

[[Page 947]]

             Title 37--Patents, Trademarks, and Copyrights

 Chapter I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
Chapter II  Copyright Office, Library of Congress (Parts 200--299)
  Chapter 
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
Chapter IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

 Chapter I  Department of Veterans Affairs (Parts 0--199)
Chapter II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

 Chapter I  United States Postal Service (Parts 1--999)
  Chapter 
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

 Chapter I  Environmental Protection Agency (Parts 1--1099)
Chapter IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
 Chapter V  Council on Environmental Quality (Parts 1500--1599)
Chapter VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
  Chapter 
       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 A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
Chapter 50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
Chapter 51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
Chapter 60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
Chapter 61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
 Chapters 
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
  Chapter 
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
  Chapter 
       102  Federal Management Regulation (Parts 102-1--102-299)
 Chapters 
       103  104 [Reserved]

[[Page 948]]

  Chapter 
       105  General Services Administration (Parts 105-1--105-999)
  Chapter 
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
  Chapter 
       114  Department of the Interior (Parts 114-1--114-99)
  Chapter 
       115  Environmental Protection Agency (Parts 115-1--115-99)
  Chapter 
       128  Department of Justice (Parts 128-1--128-99)
 Chapters 
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
  Chapter 
       300  General (Parts 300-1--300-99)
  Chapter 
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
  Chapter 
       302  Relocation Allowances (Parts 302-1--302-99)
  Chapter 
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
  Chapter 
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

 Chapter I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
Chapter IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--599)
 Chapter 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
 Chapter I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
Chapter II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
  Chapter 
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

 Chapter I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
Chapter IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 949]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)158 I18[Reserved]
            Subtitle B--Regulations Relating to Public Welfare
Chapter II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
  Chapter 
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
Chapter IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
 Chapter V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
Chapter VI  National Science Foundation (Parts 600--699)
  Chapter 
       VII  Commission on Civil Rights (Parts 700--799)
  Chapter 
      VIII  Office of Personnel Management (Parts 800--899)
 Chapter X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
Chapter XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
  Chapter 
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
  Chapter 
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
  Chapter 
       XVI  Legal Services Corporation (Parts 1600--1699)
  Chapter 
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
  Chapter 
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
  Chapter 
       XXI  Commission on Fine Arts (Parts 2100--2199)
  Chapter 
     XXIII  Arctic Research Commission (Part 2301)
  Chapter 
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
  Chapter 
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

 Chapter I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
Chapter II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
  Chapter 
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
Chapter IV  Federal Maritime Commission (Parts 500--599)

[[Page 950]]

                      Title 47--Telecommunication

 Chapter I  Federal Communications Commission (Parts 0--199)
Chapter II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
  Chapter 
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
Chapter IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

 Chapter 1  Federal Acquisition Regulation (Parts 1--99)
 Chapter 2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
 Chapter 3  Health and Human Services (Parts 300--399)
 Chapter 4  Department of Agriculture (Parts 400--499)
 Chapter 5  General Services Administration (Parts 500--599)
 Chapter 6  Department of State (Parts 600--699)
 Chapter 7  Agency for International Development (Parts 700--799)
 Chapter 8  Department of Veterans Affairs (Parts 800--899)
 Chapter 9  Department of Energy (Parts 900--999)
Chapter 10  Department of the Treasury (Parts 1000--1099)
Chapter 12  Department of Transportation (Parts 1200--1299)
Chapter 13  Department of Commerce (Parts 1300--1399)
Chapter 14  Department of the Interior (Parts 1400--1499)
Chapter 15  Environmental Protection Agency (Parts 1500--1599)
Chapter 16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
Chapter 17  Office of Personnel Management (Parts 1700--1799)
Chapter 18  National Aeronautics and Space Administration (Parts 
                1800--1899)
Chapter 19  Broadcasting Board of Governors (Parts 1900--1999)
Chapter 20  Nuclear Regulatory Commission (Parts 2000--2099)
Chapter 21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
Chapter 23  Social Security Administration (Parts 2300--2399)
Chapter 24  Department of Housing and Urban Development (Parts 
                2400--2499)
Chapter 25  National Science Foundation (Parts 2500--2599)
Chapter 28  Department of Justice (Parts 2800--2899)
Chapter 29  Department of Labor (Parts 2900--2999)
Chapter 30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
Chapter 34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
Chapter 51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)

[[Page 951]]

Chapter 52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
Chapter 53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
Chapter 54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
Chapter 57  African Development Foundation (Parts 5700--5799)
Chapter 61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
Chapter 63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
Chapter 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
 Chapter I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
Chapter II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
  Chapter 
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
Chapter IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
 Chapter V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
Chapter VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
  Chapter 
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
  Chapter 
      VIII  National Transportation Safety Board (Parts 800--999)
 Chapter X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
Chapter XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
  Chapter 
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

 Chapter I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
Chapter II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
  Chapter 
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 952]]

Chapter 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)
 Chapter V  Marine Mammal Commission (Parts 500--599)
Chapter VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 953]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2013)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     22, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  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
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 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
  National Institute of Food and Agriculture      7, XXXIV
  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, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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

[[Page 954]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
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
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
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
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                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  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
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       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 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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
   for the District of Columbia
[[Page 955]]

Customs and Border Protection                     19, I
Defense Contract Audit Agency                     32, I
Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  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, 2
  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                 2, XI; 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          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 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
Election Assistance Commission                    2, LVIII; 11, II
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                             2, IX; 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                   2, XV; 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

[[Page 956]]

  Management and Budget, Office of                2, Subtitle A; 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
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
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 Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
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

[[Page 957]]

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
  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          2, III; 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
  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
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I; 8, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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 Review, Executive Office for          8, V

[[Page 958]]

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
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
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Bureau of Ocean Energy Management, Regulation,  30, II
       and Enforcement
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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
Investment Security, Office of                    31, VIII
Iraq Reconstruction, Special Inspector General    5, LXXXVII
     for
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                                2, XXVIII; 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
  Employee Benefits Security Administration       29, XXV

[[Page 959]]

  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
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  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, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
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
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 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   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
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 Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI

[[Page 960]]

National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 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, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
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                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  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 Regulatory 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
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI

[[Page 961]]

Rural Utilities Service                           7, XVII, XVIII, XLII, L
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                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
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                     2, XII; 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; 47, IV; 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                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, 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
[[Page 962]]

Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 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 963]]







                      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.

     PART 602_OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

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
1.36B-5....................................................    1545-2232
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
1.42-18....................................................    1545-2088
1.43-3(a)(3)...............................................    1545-1292
1.43-3(b)(3)...............................................    1545-1292
1.44B-1....................................................    1545-0219
1.45D-1....................................................    1545-1765
1.45G-1....................................................    1545-2031
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.....................................................    1545-0155
                                                               1545-0166
1.47-3.....................................................    1545-0155
                                                               1545-0166
1.47-4.....................................................    1545-0123
1.47-5.....................................................    1545-0092
1.47-6.....................................................    1545-0099
1.48-3.....................................................    1545-0155
1.48-4.....................................................    1545-0155
                                                               1545-0808
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

[[Page 964]]

 
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
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
1.108-7....................................................    1545-2155
1.108(i)-1T................................................    1545-2147
1.108(i)-2T................................................    1545-2147
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
1.162-24...................................................    1545-2115
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

[[Page 965]]

 
                                                               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
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..................................................    1545-0074
                                                               1545-0123
                                                               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
1.179B-1T..................................................    1545-2076
1.179C-1...................................................    1545-2103
1.179C-1T..................................................    1545-2103
1.180-2....................................................    1545-0074
1.181-1....................................................    1545-2059
1.181-2....................................................    1545-2059
1.181-3....................................................    1545-2059
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
1.199-6....................................................    1545-1966
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
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....................................................    1545-2019
1.337(d)-1.................................................    1545-1160
1.337(d)-2.................................................    1545-1160
                                                               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
1.338-11...................................................    1545-1990
1.338(h)(10)-1.............................................    1545-1658
1.338(i)-1.................................................    1545-1990
1.341-7....................................................    1545-0123
1.351-3....................................................    1545-2019

[[Page 966]]

 
1.355-5....................................................    1545-2019
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)-3T................................................    1545-2183
1.367(a)-6T................................................    1545-0026
1.367(a)-7.................................................    1545-2183
1.367(a)-7T................................................    1545-2183
1.367(a)-8.................................................    1545-1271
                                                               1545-2056
                                                               1545-2183
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....................................................    1545-2019
1.371-1....................................................    1545-0123
1.371-2....................................................    1545-0123
1.374-3....................................................    1545-0123
1.381(b)-1.................................................    1545-0123
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)(22)-1.............................................    1545-1990
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....................................................    1545-1120
                                                               1545-1260
                                                               1545-1275
                                                               1545-1324
1.382-11...................................................    1545-2019
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
1.402A-1...................................................    1545-1992
1.403(b)-1.................................................    1545-0710
1.403(b)-3.................................................    1545-0996
1.403(b)-7.................................................    1545-1341
1.403(b)-10................................................    1545-2068
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
1.430(f)-1.................................................    1545-2095
1.430(g)-1.................................................    1545-2095
1.430(h)(2)-1..............................................    1545-2095
1.436-1....................................................    1545-2095
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
1.448-2....................................................    1545-1855
1.448-2T...................................................    1545-0152

[[Page 967]]

 
                                                               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
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-3(h), 1.468A-7, and 1.468A-8(d).....................    1545-2091
1.468A-4...................................................    1545-0954
1.468A-7...................................................    1545-0954
                                                               1545-1511
1.468A-8...................................................    1545-1269
1.468B-1...................................................    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
1.468B-9...................................................    1545-1631
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(a)-4.................................................    1545-1945
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
1.482-9(b).................................................    1545-2149
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)-4.................................................    1545-2157
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

[[Page 968]]

 
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
1.664-1....................................................    1545-0196
1.664-1(a)(7)..............................................    1545-1536
1.664-1(c).................................................    1545-2101
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....................................................    1545-0074
                                                               1545-0099
                                                               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
1.752-2....................................................    1545-1905
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....................................................    1545-2035
1.853-4....................................................    1545-2035
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

[[Page 969]]

 
1.860E-2(a)(5).............................................    1545-1276
1.860E-2(a)(7).............................................    1545-1276
1.860E-2(b)(2).............................................    1545-1276
1.860G-2...................................................    1545-2110
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
1.863-8....................................................    1545-1718
1.863-9....................................................    1545-1718
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
1.883-0....................................................    1545-1677
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
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
1.904-7....................................................    1545-2104
1.904-7T...................................................    1545-2104
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
1.936-5....................................................    1545-0704
1.936-6....................................................    1545-0215
1.936-7....................................................    1545-0215
1.936-10(c)................................................    1545-1138
1.937-1....................................................    1545-1930
1.952-2....................................................    1545-0126
1.953-2....................................................    1545-0126
1.954-1....................................................    1545-1068
1.954-2....................................................    1545-1068
1.955-2....................................................    1545-0123
1.955-3....................................................    1545-0123
1.955A-2...................................................    1545-0755
1.955A-3...................................................    1545-0755
1.956-1....................................................    1545-0704
1.956-2....................................................    1545-0704
1.959-1....................................................    1545-0704
1.959-2....................................................    1545-0704
1.960-1....................................................    1545-0122
1.962-2....................................................    1545-0704
1.962-3....................................................    1545-0704
1.962-4....................................................    1545-0704
1.964-1....................................................    1545-0126

[[Page 970]]

 
                                                               1545-0704
                                                               1545-1072
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1.1092(b)-2T...............................................    1545-0644
1.1092(b)-3T...............................................    1545-0644
1.1092(b)-4T...............................................    1545-0644
1.1092(b)-5T...............................................    1545-0644
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1.1244(e)-1................................................    1545-0123
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1.1248(f)-2................................................    1545-2183
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                                                               1545-0135
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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(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
1.6694-2(c)(3).............................................    1545-1231
1.6694-3(e)................................................    1545-1231
1.6695-1...................................................    1545-0074
                                                               1545-1385

[[Page 974]]

 
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...................................................    1545-0042
                                                               1545-0074
                                                               1545-0098
                                                               1545-0129
                                                               1545-0172
                                                               1545-0582
                                                               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
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
20.2010-2T.................................................    1545-0015
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
20.6060-1(a)(1)............................................    1545-1231
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
20.6107-1..................................................    1545-1231
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

[[Page 975]]

 
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
25.6060-1(a)(1)............................................    1545-1231
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
25.6107-1..................................................    1545-1231
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
26.2642-6..................................................    1545-1902
26.2652-2..................................................    1545-0985
26.2654-1..................................................    1545-1902
26.2662-1..................................................    1545-0015
                                                               1545-0985
26.2662-2..................................................    1545-0985
26.6060-1(a)(1)............................................    1545-1231
26.6107-1..................................................    1545-1231
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
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
                                                               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

[[Page 976]]

 
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
                                                               1545-0256
                                                               1545-0718
                                                               1545-2097
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
                                                               1545-2097
31.6011(a)-5...............................................    1545-0028
                                                               1545-0718
                                                               1545-2097
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
31.6060-1(a)(1)............................................    1545-1231
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
31.6107-1..................................................    1545-1231
31.6157-1..................................................    1545-0955
31.6205-1..................................................    1545-0029
                                                               1545-2097
31.6301(c)-1AT.............................................    1545-0035
                                                               1545-0112
                                                               1545-0257
31.6302-1..................................................    1545-1413
31.6302-2..................................................    1545-1413
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
                                                               1545-2097
31.6413(a)-1...............................................    1545-0029
                                                               1545-2097
31.6413(a)-2...............................................    1545-0029
                                                               1545-0256
                                                               1545-2097
31.6413(c)-1...............................................    1545-0029
                                                               1545-0171
31.6414-1..................................................    1545-0029
                                                               1545-2097
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
40.6060-1(a)(1)............................................    1545-1231
40.6107-1..................................................    1545-1231
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
41.6060-1(a)(1)............................................    1545-1231
41.6071(a)-1...............................................    1545-0143
41.6081(a)-1...............................................    1545-0143
41.6091-1..................................................    1545-0143
41.6107-1..................................................    1545-1231
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
44.6060-1(a)(1)............................................    1545-1231
44.6071-1..................................................    1545-0235
44.6091-1..................................................    1545-0235
44.6107-1..................................................    1545-1231
44.6151-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-2..................................................    1545-0235
46.4371-4..................................................    1545-0023
46.4374-1..................................................    1545-0023
46.4375-1..................................................    1545-2238

[[Page 977]]

 
46.4376-1..................................................    1545-2238
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
                                                               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
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...............................................    1545-0014
                                                               1545-0023
48.4223-1..................................................    1545-0023
                                                               1545-0257
                                                               1545-0723
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)(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
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

[[Page 978]]

 
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
                                                               1545-0224
                                                               1545-0225
                                                               1545-0226
                                                               1545-0230
                                                               1545-0257
                                                               1545-0912
49.4271-1(d)...............................................    1545-0685
51.8T......................................................    1545-2209
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)...............................................    1545-0257
                                                               1545-1153
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
53.6060-1(a)(1)............................................    1545-1231
53.6065-1..................................................    1545-0052
53.6071-1..................................................    1545-0049
53.6081-1..................................................    1545-0066
                                                               1545-0148
53.6107-1..................................................    1545-1231
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
54.6060-1(a)(1)............................................    1545-1231
54.6107-1..................................................    1545-1231
54.9801-3..................................................    1545-1537
54.9801-4..................................................    1545-1537
54.9801-5..................................................    1545-1537
54.9801-6..................................................    1545-1537
54.9812-1T.................................................    1545-2165
54.9815-1251T..............................................    1545-2178
54.9815-2711T..............................................    1545-2179
54.9815-2712T..............................................    1545-2180
54.9815-2714T..............................................    1545-2172
54.9815-2715...............................................    1545-2229
54.9815-2719AT.............................................    1545-2181
54.9815-2719T..............................................    1545-2182
55.6001-1..................................................    1545-0123
55.6011-1..................................................    1545-0123
                                                               1545-0999
                                                               1545-1016
55.6060-1(a)(1)............................................    1545-1231
55.6061-1..................................................    1545-0999
55.6071-1..................................................    1545-0999
55.6107-1..................................................    1545-1231
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
56.6060-1(a)(1)............................................    1545-1231
56.6081-1..................................................    1545-1049
56.6107-1..................................................    1545-1231
56.6161-1..................................................    1545-0257
                                                               1545-1049
145.4051-1.................................................    1545-0745
145.4052-1.................................................    1545-0120
                                                               1545-0745
                                                               1545-1076
145.4061-1.................................................    1545-0224
                                                               1545-0230
                                                               1545-0257
                                                               1545-0745
156.6001-1.................................................    1545-1049
156.6011-1.................................................    1545-1049
156.6060-1(a)(1)...........................................    1545-1231
156.6081-1.................................................    1545-1049
156.6107-1.................................................    1545-1231
156.6161-1.................................................    1545-1049
157.6001-1.................................................    1545-1824
157.6011-1.................................................    1545-1824
157.6060-1(a)(1)...........................................    1545-1231
157.6081-1.................................................    1545-1824
157.6107-1.................................................    1545-1231
157.6161-1.................................................    1545-1824
301.6011-2.................................................    1545-0225
                                                               1545-0350
                                                               1545-0387
                                                               1545-0441
                                                               1545-0957
301.6011(g)-1..............................................    1545-2079
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

[[Page 979]]

 
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.................................................    1545-0024
                                                               1545-0074
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..............................................    1545-0024
                                                               1545-0582
301.6511(d)-2..............................................    1545-0024
                                                               1545-0582
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
301.7502-1.................................................    1545-1899
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
                                                               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
301.9000-5.................................................    1545-1850
301.9001-1.................................................    1545-0220
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

[[Page 980]]

 
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 
Finding Aids section of the printed volume and at www.fdsys.gov.

[[Page 981]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2008 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, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2008

26 CFR
                                                                   73 FR
                                                                    Page
Chapter I
1.170A-1 (j)(9) and (k) heading revised; (k) amended...............19358
1.170A-1T Removed..................................................19358
1.170A-9 (a) through (i) redesignated as (b) through (j); 
        introductory text redesignated as new (a); new (a) and (d) 
        revised; (k) added.........................................52533
1.170A-9T Added....................................................52536
1.179B-1T Added....................................................36422
1.179C-1T Added....................................................39230
1.195-1 Revised....................................................38913
1.195-1T Added.....................................................38913
1.248-1 (a) and (c) revised; (d) through (g) added.................38913
1.248-1T Added.....................................................38913
1.267(f)-1 (k) amended.............................................53987

                                  2009

26 CFR
                                                                   74 FR
                                                                    Page
Chapter I
1.170A-12 (b)(2) and (3) revised; (f) added........................21439
    (e)(2) amended.................................................21518
    (e)(2) correctly amended.......................................27079
1.170A-12T Added...................................................21440
1.170A-14 (h)(4) Example 2 amended.................................21518

                                  2010

26 CFR
                                                                   75 FR
                                                                    Page
Chapter I
1.274-5 (k) and (l) revised; (m) amended...........................27936
1.274-5T (k) and (l) revised.......................................27937
1.280F-6 (b)(2)(ii) revised........................................27937

                                  2011

26 CFR
                                                                   76 FR
                                                                    Page
Chapter I
1.170A-9 (f) and (k) revised.......................................55750
1.170A-9T Removed..................................................55759
1.170A-12 (b)(2), (3) and (f) revised..............................49571
    (e)(2) amended.................................................49612
1.170A-12T Removed.................................................49572
1.171-1 (f) Example 2 revised......................................39280
1.171-1T Added.....................................................39280
1.179C-1 Added.....................................................52558
1.179C-1T Removed..................................................52560
1.181-0 Added......................................................60724
1.181-0T Removed...................................................60724
    Added..........................................................64817
1.181-1 Added......................................................60724
    (a)(1)(ii), (6), (b)(1)(ii) and (2)(vi) revised................64817
    (c)(2) correctly revised.......................................71450
1.181-1T Removed...................................................60726
    Added..........................................................64817
1.181-2 Added......................................................60726
1.181-2T Removed...................................................60727
1.181-3 Added......................................................60727

[[Page 982]]

1.181-3T Removed...................................................60728
1.181-4 Added......................................................60728
1.181-4T Removed...................................................60729
1.181-5 Added......................................................60729
1.181-5T Removed...................................................60729
1.181-6 Added......................................................60729
1.181-6T Removed...................................................60729
    Added..........................................................64818
1.195-1 Revised....................................................50888
1.195-1T Removed...................................................50889
1.197-2 (b)(7) revised.............................................39280
1.197-2T Added.....................................................39280
1.248-1 (a) and (c) revised; (d), (e) and (f) revised..............50889
1.248-1T Removed...................................................50890
1.249-1 (e)(2)(ii) and (f) heading revised; (f)(3) added...........39281
1.249-1T Added.....................................................39281
1.263(a)-0 Amended (temporary).....................................81100
1.263(a)-0T Added (temporary)......................................81100
1.263(a)-1 Revised (temporary).....................................81101
1.263(a)-1T Added (temporary)......................................81101
1.263(a)-2 Revised (temporary).....................................81102
1.263(a)-2T Added (temporary)......................................81102
1.263(a)-3 Revised (temporary).....................................81107
1.263(a)-3T Added (temporary.......................................81107
1.263(a)-6T Added (temporary)......................................81125
1.263A-1 (b)(14) and (m) added; (c)(4), (e)(2)(i)(A),(e)(ii)(E) 
        and (l) added (temporary)..................................81126
1.263A-1T Added (temporary)........................................81126
1.280C-4 Revised...................................................44801

                                  2012

26 CFR
                                                                   77 FR
                                                                    Page
Chapter I
1.181-0 Amended....................................................72924
1.181-0T Removed...................................................72924
1.181-1 (a)(1)(ii), (6), (b)(1)(ii), (2)(vi) and (c)(2) revised....72924
1.181-1T Removed...................................................72924
1.181-6 Revised....................................................72924
1.181-6T Removed...................................................72924
1.263(a)-0T Amended................................................74585
1.263(a)-1T (g) revised............................................74585
1.263(a)-2T (g)(8) Example 2 and (k) correctly amended.............18687
    (k) revised....................................................74585
1.263(a)-3T (b) and (q) correctly revised; (e)(6) Example 17 and 
        (i)(5) Examples 20, 22 and 23 correctly amended............18688
    (p) revised....................................................74585
1.263(a)-6T (b)(13) and (d) correctly revised......................18688
    (c) revised....................................................74586
1.263A-1T (m)(2) revised; (m)(3) redesignated as (n)...............74586
1.267(f)-1 (c)(1)(iv) revised; (l)(3) redesignated as (l)(4); (j) 
        Examples 9 and 10 and new (l)(3) added.....................22482
1.274-9 Added......................................................45483
1.274-10 Added.....................................................45483

                                  2013

   (Regulations published from January 1, 2013, through April 1, 2013)

26 CFR
                                                                   78 FR
                                                                    Page
Chapter I
1.171-1 (e)(1)(iii)(C) amended......................................8006
1.171-2T Added.......................................................667
1.171-3 (b) amended..................................................668


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